/raid1/www/Hosts/bankrupt/CAR_Public/120918.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, September 18, 2012, Vol. 14, No. 185
Headlines
ABBVIE INC: Abbott Continues to Defend False Pricing Class Suits
ABBVIE INC: Eleventh Circuit Denies FTC's Petition for Rehearing
B&H EDUCATION: Sued for Fraud in Inducing Students to Enroll
BLACK LANE: Class Action Plaintiff Attorney Seeks New Judge
CALIX INC: Occam Merger-Related Class Suits Remain Pending
CALIX INC: "Rebhun" Class Action Suit Dismissed in May 2012
CASH STORE: Faces Class Action Over Excessive Payday Loan Rates
CITIGROUP INC: Security Breach Class Action Dismissed
CLEARWIRE CORP: Agreement on "Minnick" Suit Deal Not Yet Filed
CLEARWIRE CORP: Hearing in "Kwan" Suit Stayed as Talks Continue
CLEARWIRE CORP: Has Yet to File Formal Agreement in "Newton" Suit
CONCORD MANAGEMENT: Sued Over Unpaid Security Deposit Interest
DANNON'S: Faces Class Action Over Activia Product Labels
DEBEERS DIAMOND: Class Action Claims Processing Begins
DEPAUL UNIVERSITY: Judge Dismisses Class Action Over Job Stats
DFI MARKETING: Recalls Cantaloupe Due to Possible Salmonella Risk
DIGITAL DOMAIN: Ex-Worker Files Class Action Over Unpaid Wages
DIRECT DIGITAL: Sued for False Advertising on Instaflex
EXPEDIA INC: Plaintiff in "Chistie" Suit Terminates Claims
FLORIDA: 3rd Circuit Upholds Citrus Tree Class Certification
LORILLARD INC: Flight Attendant Suits vs. Unit Still Pending
LORILLARD INC: Unit Resolves Attorney Fee Claims in "Scott" Suit
LORILLARD INC: Trial in "Brown" Case Set for April 19 Next Year
MAKO SURGICAL: Consolidated Shareholder Suit Pending in Florida
MILLENNIUM TRUST: Faces Class action Over IRA-Based Ponzi Scheme
SPARTAN STORES: Recalls Deli Products Due to Health Risks
SPIRIT AEROSYSTEMS: Appeal in Discrimination Suit Remains Pending
SPIRIT AEROSYSTEMS: To Be Dismissed From "Harkness" Class Suit
SUPERMEDIA INC: Appeal in ERISA Class Action Still Pending
SYNGENTA CROP: Attorney Files Objection to Atrazine Settlement
TRAVELCENTERS OF AMERICA: Fuel Temperature Suits Remain Pending
TRAVELCENTERS OF AMERICA: Continues to Defend Antitrust Suit
TRONOX INC: Nov. 19 Class Action Settlement Fairness Hearing Set
TRUE INNOVATIONS: Recalls 8,400 Prestigio Leather Office Chairs
VISA INC: Bid to Dismiss National ATM Council Class Suit Pending
VISA INC: Awaits Ruling on Columbia Consumer Suit Dismissal Bids
WELTMAN WEINBERG: Accused of Illegal Debt Collection in Calif.
WHOLE FOODS: Recalls Cheese in 21 States and Washington, D.C.
ZELTIQ AESTHETICS: Consolidated Securities Suit Pending in Calif.
*********
ABBVIE INC: Abbott Continues to Defend False Pricing Class Suits
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Several cases, brought as purported class actions or
representative actions on behalf of individuals or entities, are
pending against Abbott Laboratories, AbbVie Inc.'s parent, that
allege generally that Abbott and numerous other pharmaceuticals
companies reported false pricing information in connection with
certain drugs that are reimbursable under Medicare and Medicaid
and by private payors. These cases, brought by private
plaintiffs, state Attorneys General, and other state government
entities, generally seek monetary damages and/or injunctive relief
and attorneys' fees. The federal court cases were consolidated for
pre-trial purposes in the United States District Court for the
District of Massachusetts under the Multi District Litigation
Rules as In re: Pharmaceutical Industry Average Wholesale Price
Litigation, MDL 1456, which now includes only one state Attorney
General lawsuit filed in August 2006 on behalf of the State of
South Carolina. In addition, several cases are pending against
Abbott in state courts: Commonwealth of Kentucky, filed in
September 2003 in the Circuit Court of Franklin County, Kentucky;
State of Wisconsin, filed in June 2004 in the Circuit Court of
Dane County, Wisconsin; State of Illinois, filed in February 2005
in the Circuit Court of Cook County, Illinois; State of South
Carolina (on behalf of its state health plan), filed in August
2006 in the Court of Common Pleas, Fifth Judicial Circuit of
Richland County, South Carolina; State of Alaska, filed in October
2006 in the Superior Court for the Third Judicial District in
Anchorage, Alaska; State of Idaho, filed in January 2007 in the
District Court of the Fourth Judicial District in Ada County,
Idaho; State of Utah, filed in November 2007 in the Third Judicial
District in Salt Lake County, Utah; State of Louisiana, filed in
October 2010 in the Nineteenth Judicial District, Parish of Baton
Rouge, Louisiana.
No further updates were reported in the Company's August 7, 2012,
Form 10-12B/A filing with the U.S. Securities and Exchange
Commission.
ABBVIE INC: Eleventh Circuit Denies FTC's Petition for Rehearing
----------------------------------------------------------------
The United States Court of Appeals for the Eleventh Circuit denied
in July 2012 the Federal Trade Commission's petition seeking
rehearing en banc from a district court ruling dismissing its
claims in the AndroGel Antitrust Litigation, according to AbbVie
Inc.'s August 7, 2012, Form 10-12B/A filing with the U.S.
Securities and Exchange Commission.
Several pending lawsuits filed against Unimed Pharmaceuticals,
Inc., Solvay Pharmaceuticals, Inc. (a company Abbott Laboratories,
AbbVie Inc.'s parent, acquired in February 2010) et al. were
consolidated for pre-trial purposes in the United States District
Court for the Northern District of Georgia under the Multi
District Litigation Rules as In re AndroGel Antitrust Litigation,
MDL No. 2084. These cases, brought by private plaintiffs and the
Federal Trade Commission ("FTC"), generally allege Solvay's 2006
patent litigation involving AndroGel was sham litigation and the
patent litigation settlement agreement and related agreements with
three generic companies violate federal and state antitrust laws
and state consumer protection and unjust enrichment laws.
Plaintiffs generally seek monetary damages and/or injunctive
relief and attorneys' fees. MDL 2084 includes: (a) 3 individual
plaintiff lawsuits: Supervalu, Inc. v. Unimed Pharmaceuticals,
Inc. et al., was filed in April 2010 in the United States District
Court for the Northern District of Georgia; and Rite Aid Corp. et
al. v. Unimed Pharmaceuticals, Inc. et al. and Walgreen Co. et al.
v. Unimed Pharmaceuticals, Inc. et al., both of which were filed
in June 2009 in the United States District Court for the Middle
District of Pennsylvania and subsequently transferred to the
United States District Court for the Northern District of Georgia;
(b) 7 purported class actions: Meijer, Inc. et al. v. Unimed
Pharmaceuticals, Inc. et al., Rochester Drug Co-Operative, Inc. et
al. v. Unimed Pharmaceuticals, Inc. et al., and Louisiana
Wholesale Drug Co., Inc. et al. v. Unimed Pharmaceuticals, Inc. et
al., all of which were filed in May 2009 in the United States
District Court for the Northern District of Georgia; Fraternal
Order of Police v. Unimed Pharmaceuticals, Inc. et al., filed in
September 2009 in the United States District Court for the
Northern District of Georgia; Jabo's Pharmacy, Inc. v. Solvay
Pharmaceuticals, Inc. et al., filed in October 2009 in the United
States District Court for the Eastern District of Tennessee;
LeGrand v. Unimed Pharmaceuticals, Inc. et al., filed in September
2010 in the United States District Court for the Northern District
of Georgia; and Health Net, Inc. v. Solvay Pharmaceuticals, Inc.,
filed in February 2011 in the Northern District of Georgia; and
(c) a lawsuit brought by the FTC, Federal Trade Commission v.
Watson Pharmaceuticals, Inc. et al., filed in May 2009 in the
United States District Court for the Northern District of Georgia.
In February 2010, Solvay's motion to dismiss the cases was
partially granted and all of the FTC's claims and all of the
plaintiffs' claims except those alleging sham litigation were
dismissed.
In May 2012, the United States Court of Appeals for the Eleventh
Circuit affirmed the district court's decision to dismiss the
FTC's claims. In July 2012, the Eleventh Circuit denied the FTC's
petition seeking rehearing en banc.
B&H EDUCATION: Sued for Fraud in Inducing Students to Enroll
------------------------------------------------------------
Courthouse News Service reports that a Superior Court class action
claims B&H Education dba Marinello School of Beauty, et al., which
have 40 campuses in California, fraudulently induced its students
to enroll.
BLACK LANE: Class Action Plaintiff Attorney Seeks New Judge
-----------------------------------------------------------
Ann Maher, writing for The Madison St. Clair Record, reports that
plaintiff attorney Thomas Maag has asked for a new judge in a
proposed class action where he seeks damages for the "improper"
towing of his client's vehicle.
Mr. Maag represents Tiffany A. Craycraft of East Alton who alleges
Black Lane Auto Parts of Caseyville towed her 2000 Ford Taurus
from a Caseyville road on April 11 without her consent.
She seeks damages for alleged violations of the Illinois Vehicle
Code under its Anti-Theft Laws and Abandoned Vehicles chapter, as
well as under the Illinois Consumer Fraud Act because when she
retrieved her vehicle she did not receive a detailed, signed
receipt showing the legal name of the towing service.
The lawsuit was filed four weeks after Ms. Craycraft's vehicle was
towed from a turning lane on Highway 157 that leads to eastbound
Interstate 64.
She had been arrested by Caseyville Police at 2:30 a.m. after she
was observed disobeying a traffic light, court documents show.
During the traffic stop, Caseyville officer Andrew Schuler
determined that Ms. Craycraft was the subject of an outstanding
warrant issued by the St. Clair County Circuit Clerk, and she was
taken into custody.
Mr. Schuler wrote in an affidavit attached to Black Lane's brief
in support of dismissing the suit that the vehicle had posed a
serious traffic hazard, which is why a "police tow" was authorized
to remove Ms. Craycraft's vehicle.
Black Lane, represented by Thomas R. Frenkel -- tfrenkel@fmgr.com
-- of Carbondale, argues that plaintiff's individual claims should
be dismissed with prejudice and Mr. Maag's motion for class
certification should be denied.
"Defendant effected a police tow of an unattended vehicle, a 2000
Ford Taurus, incidental to Plaintiff's arrest, from a location in
a traffic lane of a public highway where it presented a traffic
hazard, at the direction of a law enforcement agency, all in the
interest of public safety," Mr. Frenkel wrote.
"Accordingly, the 2000 Ford Taurus was properly towed under
subsection of 4-203(d) of the Code as the tow was ordered by
police from a public highway to a police impound lot. And because
the tow was a police tow from a public highway, the Code's receipt
requirement, which applies only to towing or removal of a vehicle
from private property, does not apply."
Ms. Crafycraft's complaint states that Black Lane does not have
authority to tow vehicles unless they have been abandoned on a
toll highway or interstate highway for more than two hours or have
been abandoned on a highway in an urban district for more than 10
hours.
Mr. Maag proposes certifying a class that includes persons whose
vehicles were towed from May 10, 2009, in which the vehicles were
alongside roadways for a time period less than that specified by
statute, "and the operator of the vehicle was not placed under
arrest for a violation of . . . the Illinois Vehicle Code."
He also seeks to include persons who paid funds to Black Lane Auto
Parts to get vehicles that had been towed with authorization from
law enforcement, from May 10, 2009, and in which Black Lane did
not provide a detailed signed receipt showing the legal name of
the towing service at the time of payment.
Madison County Associate Judge Thomas Chapman had presided in the
case. Mr. Maag moved for substitution of judge on Sept. 7, and as
of Sept. 11, the case had not been reassigned.
Madison County Circuit Court case number: 12-L-641.
CALIX INC: Occam Merger-Related Class Suits Remain Pending
----------------------------------------------------------
Class action lawsuits arising from Calix, Inc.'s acquisition of
Occam Networks, Inc. remain pending, according to the Company's
August 7, 2012, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2012.
On September 16, 2010, the Company, two direct, wholly-owned
subsidiaries of the Company, and Occam Networks, Inc. entered into
an Agreement and Plan of Merger and Reorganization (the "Merger
Agreement"). In response to the announcement of the Merger
Agreement, on September 17, 2010, September 20, 2010, and
September 21, 2010, three purported class action complaints were
filed by three purported stockholders of Occam in the California
Superior Court for Santa Barbara County: Kardosh v. Occam
Networks, Inc., et al. (Case No. 1371748), or the Kardosh
complaint; Kennedy v. Occam Networks, Inc., et al. (Case No.
1371762), or the Kennedy complaint; and Moghaddam v. Occam
Networks, Inc., et al. (Case No. 1371802), or the Moghaddam
complaint, respectively. The Kardosh, Kennedy and Moghaddam
complaints, which are referred to collectively as the California
class action complaints, are substantially similar. Each of the
California class action complaints names Occam, the pre-
acquisition members of the Occam board of directors and the
Company as defendants.
On February 22, 2011, the Company completed its acquisition of
Occam.
The California class action complaints generally allege that the
former members of the Occam board breached their fiduciary duties
in connection with the acquisition of Occam by Calix, by, among
other things, engaging in an allegedly unfair process and agreeing
to an allegedly unfair price for the proposed merger transaction.
The California class action complaints further allege that Occam
and the other entity defendants aided and abetted the alleged
breaches of fiduciary duty. The plaintiffs in the California
class action complaints sought injunctive relief rescinding the
merger transaction and damages in an unspecified amount, as well
as costs, attorney's fees, and other relief. On November 2, 2010,
the three California class action complaints were consolidated
into a single action, with the plaintiffs in the Kardosh complaint
appointed as the lead plaintiffs, and on November 19, 2010, the
California Superior Court issued an order staying the California
class action complaints in favor of a substantively identical
stockholder class action pending in the Delaware Court of
Chancery. The California class action complaints remain stayed
under that order.
On October 6, 2010, a purported class action complaint was filed
by stockholders of Occam in the Delaware Court of Chancery:
Steinhardt v. Howard-Anderson, et al. (Case No. 5878-VCL). On
November 24, 2010, these stockholders filed an amended complaint,
or the amended Steinhardt complaint. The amended Steinhardt
complaint names Occam and the members of the Occam board of
directors as defendants. The amended Steinhardt complaint does
not name Calix as a defendant.
Like the California class action complaints, the amended
Steinhardt complaint generally alleges that the members of the
Occam board breached their fiduciary duties in connection with the
acquisition of Occam by Calix, by, among other things, engaging in
an allegedly unfair process and agreeing to an allegedly unfair
price for the merger transaction. The amended Steinhardt
complaint also alleges that Occam and the former members of the
Occam board breached their fiduciary duties by failing to disclose
certain allegedly material facts about the merger transaction in
the preliminary proxy statement and prospectus included in the
Registration Statement on Form S-4 that Calix filed with the SEC
on November 2, 2010. The amended Steinhardt complaint sought
injunctive relief rescinding the merger transaction and award of
damages in an unspecified amount, as well as plaintiffs' costs,
attorney's fees, and other relief.
The merger transaction was completed on February 22, 2011. On
January 6, 2012, the Delaware court ruled on a motion for
sanctions brought by the defendants in the Delaware case against
certain of the lead plaintiffs. The Delaware court found that
lead plaintiffs Michael Steinhardt, Steinhardt Overseas
Management, L.P., and Ilex Partners, L.L.C., collectively the
"Steinhardt Plaintiffs," had engaged in improper trading of Calix
shares, and dismissed the Steinhardt Plaintiffs from the case with
prejudice. The court further held that the Steinhardt Plaintiffs
are: (i) barred from receiving any recovery from the litigation,
(ii) required to self-report to the SEC, (iii) directed to
disclose their improper trading in any future application to serve
as lead plaintiff, and (iv) ordered to disgorge trading profits of
$0.5 million, to be distributed to the remaining members of the
class of former Occam stockholders. The Delaware court also
granted the motion of the remaining lead plaintiffs, Herbert Chen
and Derek Sheeler, for class certification, and certified Messrs.
Chen and Sheeler as class representatives. Chen and Sheeler, on
behalf of the class of similarly situated former Occam
stockholders, continue to seek an award of damages in an
unspecified amount.
The Company believes that the allegations in the California and
Delaware action are without merit and intends to continue to
vigorously contest the actions. However, there can be no
assurance that the Company will be successful in defending these
ongoing actions. In addition, the Company has obligations, under
certain circumstances, to hold harmless and indemnify each of the
former Occam directors against judgments, fines, settlements and
expenses related to claims against such directors and otherwise to
the fullest extent permitted under Delaware law and Occam's bylaws
and certificate of incorporation. Such obligations may apply to
these lawsuits.
CALIX INC: "Rebhun" Class Action Suit Dismissed in May 2012
-----------------------------------------------------------
The class action lawsuit captioned Rebhun v. Calix, Inc., et al.,
was dismissed without prejudice in May 2012, according to the
Company's August 7, 2012, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2012.
On April 19, 2012, the Company and each member of its board of
directors were sued by a purported shareholder in a purported
class action complaint filed in the Delaware Court of Chancery
captioned Rebhun v. Calix, Inc., et al., C.A. No. 7444-CS. The
Rebhun complaint arises from the Company's proposal to amend its
Amended and Restated Certificate of Incorporation ("Certificate")
to designate the Chancery Court of the state of Delaware as the
exclusive forum for the resolution of intra-corporate disputes.
The Rebhun complaint alleged that the definitive proxy statement
filed by the Company on April 9, 2012, failed to fully and fairly
disclose the purposes, scope and effects of this proposed
amendment, and further alleged that the Company's directors
breached their fiduciary duties of loyalty, care and disclosure by
adopting and recommending the proposed amendment.
On April 24, 2012, the Company filed additional definitive proxy
soliciting materials with the SEC withdrawing the proposal to
amend the Certificate from the agenda for the Company's May 23,
2012 annual meeting of stockholders. On May 15, 2012, the
Delaware Court of Chancery dismissed the Rebhun matter without
prejudice as moot.
The attorneys for plaintiff Rebhun subsequently filed a petition
seeking an award of attorneys' fees, and the Company and the
plaintiff negotiated a settlement of that petition and entered
into a limited release agreement. On July 10, 2012, the Delaware
Court of Chancery dismissed the fee petition with prejudice.
CASH STORE: Faces Class Action Over Excessive Payday Loan Rates
---------------------------------------------------------------
Courthouse News Service reports that The Cash Store and Instaloans
charged illegal rates of more than 23 percent on payday loans, a
class action claims in British Columbia Supreme Court.
A copy of the Complaint in Stewart v. The Cash Store Financial
Services, Inc., et al., Case No. 126361 (B.C. Sup. Ct.), is
available at:
http://www.courthousenews.com/2012/09/13/PaydayLoans.pdf
The Plaintiff is represented by:
Paul R. Bennett, Esq.
HORDO BENNETT MOUNTEER LLP
1400-128 West Pender Street
Vancouver, BC V6B 1R8
E-mail: pb@hbmlaw.ca
CITIGROUP INC: Security Breach Class Action Dismissed
-----------------------------------------------------
Patricia Hurtado, writing for Bloomberg News, reports that
Citigroup Inc., the third-largest U.S. bank, won dismissal of a
suit in which cardholders claimed the bank failed to take adequate
steps to prevent a computer security breach that affected more
than 360,000 accounts.
Kristina and Steven Orman of Northport, New York, sued Citigroup
in federal court in Manhattan in October, seeking to represent
victims of the hacking in a class-action, or group, lawsuit. They
claimed they were victims of identity theft and money was stolen
from their bank account and their credit cards following the
breach.
U.S. District Judge Deborah Batts in Manhattan on Sept. 12 ruled
that the dispute should be decided by an arbitrator. She said the
plaintiffs didn't dispute that they had entered into an
arbitration agreement with the bank. She also said the lawsuit
didn't assert any claims under federal law.
"Dismissal of this action is therefore warranted," the judge said
in the order.
Citigroup said in June 2011 that the breach, affecting 1.5 percent
of its card customers in North America, was discovered at Citi
Account Online during routine monitoring. Customers' names,
account numbers and e-mail addresses were viewed, Citigroup said.
"We are pleased with the court's ruling in this matter," Emily
Collins, a spokeswoman for New York-based Citigroup, said in
statement. "We will not comment further because this matter may
continue in arbitration."
The case is Orman v. Citigroup Inc. (C), 11-cv-7086, U.S. District
Court, Southern District of New York (Manhattan).
CLEARWIRE CORP: Agreement on "Minnick" Suit Deal Not Yet Filed
--------------------------------------------------------------
The settlement negotiated by Clearwire Corporation to resolve the
class action lawsuit commenced by Chad Minnick, et al., is pending
execution of an agreement and preliminary court approval,
according to the Company's July 27, 2012, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2012.
In April 2009, a purported class action lawsuit was filed against
Clearwire U.S. LLC in Superior Court in King County, Washington by
a group of five plaintiffs (Chad Minnick, et al.). The lawsuit
generally alleges that the Company disseminated false advertising
about the quality and reliability of its services; imposed an
unlawful early termination fee, which the Company refers refer to
as ETF; and invoked allegedly unconscionable provisions of the
Company's Terms of Service to the detriment of subscribers. Among
other things, the lawsuit seeks a determination that the alleged
claims may be asserted on a class-wide basis; an order declaring
certain provisions of the Company's Terms of Service, including
the ETF provision, void and unenforceable; an injunction
prohibiting the Company from collecting ETFs and further false
advertising; restitution of any ETFs paid by the Company's
subscribers; equitable relief; and an award of unspecified damages
and attorneys' fees. Plaintiffs subsequently amended their
complaint adding seven additional plaintiffs. The Company removed
the case to the United States District Court for the Western
District of Washington. On July 23, 2009, the Company filed a
motion to dismiss the amended complaint. The Court stayed
discovery pending its ruling on the motion, and on February 2,
2010, granted the Company's motion to dismiss in its entirety.
Plaintiffs appealed to the Ninth Circuit Court of Appeals. On
March 29, 2011 the Court of Appeals entered an Order Certifying
Question to the Supreme Court of Washington requesting guidance on
a question of Washington state law. On May 23, 2012, the
Washington Supreme Court issued a decision holding that an ETF is
a permissible alternative performance provision. The Court of
Appeals has stayed the matter. The parties have agreed to settle
the lawsuit. The settlement is pending execution of an agreement
and preliminary court approval. The Company has accrued an
estimated amount it anticipates to pay for the settlement in Other
current liabilities. The amount accrued is considered immaterial
to the financial statements.
Kirkland, Wash.-based Clearwire Corporation (NASDAQ: CLWR)
-- http://www.clearwire.com/-- through its operating
subsidiaries, is a provider of 4G mobile broadband network
services in 68 markets, including New York City, Los Angeles,
Chicago, Dallas, Philadelphia, Houston, Miami, Washington, D.C.,
Atlanta and Boston.
CLEARWIRE CORP: Hearing in "Kwan" Suit Stayed as Talks Continue
---------------------------------------------------------------
Evidentiary hearing in an unlawful collection class action
complaint against Clearwire Corporation was stayed until August 30
as the parties continued to engage in settlement talks, according
to the Company's July 27, 2012, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2012.
In September 2009, a purported class action lawsuit was filed
against Clearwire in King County Superior Court, brought by
representative plaintiff Rosa Kwan. The complaint alleges that
the Company placed unlawful telephone calls using automatic
dialing and announcing devices and engaged in unlawful collection
practices. It seeks declaratory, injunctive, and/or equitable
relief and actual and statutory damages under federal and state
law. On October 1, 2009, the Company removed the case to the
United States District Court for the Western District of
Washington. The parties stipulated to allow a Second Amended
Complaint, which plaintiffs filed on December 23, 2009. The
Company then filed a motion to dismiss the amended complaint. On
February 22, 2010, the Court granted the Company's motion to
dismiss in part, dismissing certain claims with prejudice and
granting plaintiff leave to further amend the complaint. Plaintiff
filed a Third Amended Complaint adding additional state law claims
and joining Bureau of Recovery, a purported collection agency, as
a co-defendant. On January 27, 2011, the court granted the
parties' stipulation allowing plaintiff to file a Fourth Amended
Complaint adding two new class representatives. The Company then
filed motions to compel the newly-added customer plaintiffs to
arbitrate their individual claims. On January 3, 2012, the Court
denied without prejudice the Company's motions to compel
arbitration because of factual issues to be resolved at an
evidentiary hearing. The parties stipulated to allow a Fifth
Amended Complaint, which has not yet been filed. The evidentiary
hearing and the matter are stayed until August 30, 2012. The
parties mediated on June 14-15, 2012, and settlement negotiations
are ongoing.
The Company has accrued an estimated amount it anticipates to pay
for the settlement in Other current liabilities. The amount
accrued is considered immaterial to the financial statements. The
case is in the early stages of litigation and its outcome is
unknown.
Kirkland, Wash.-based Clearwire Corporation (NASDAQ: CLWR)
-- http://www.clearwire.com/-- through its operating
subsidiaries, is a provider of 4G mobile broadband network
services in 68 markets, including New York City, Los Angeles,
Chicago, Dallas, Philadelphia, Houston, Miami, Washington, D.C.,
Atlanta and Boston.
CLEARWIRE CORP: Has Yet to File Formal Agreement in "Newton" Suit
-----------------------------------------------------------------
A formal agreement on the settlement negotiated by Clearwire
Corporation to resolve a class action complaint alleging false
advertising is yet to be executed, according to the Company's July
27, 2012, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended June 30, 2012.
In March 2011, a purported class action was filed against
Clearwire in the U.S. District Court for the Eastern District of
California. The case, Newton v. Clearwire, Inc. [sic], alleges
Clearwire's network management and advertising practices
constitute breach of contract, unjust enrichment, unfair
competition under California's Business and Professions Code
Sections 17200 et seq., and violation of California's Consumers'
Legal Remedies Act. Plaintiff contends Clearwire's advertisements
of "no speed cap" and "unlimited data" are false and misleading.
Plaintiff alleges Clearwire has breached its contracts with
customers by not delivering the Internet service as advertised.
Plaintiff also claims slow data speeds are due to Clearwire's
network management practices. Plaintiff seeks class
certification; declaratory and injunctive relief; unspecified
restitution and/or disgorgement of fees paid for Clearwire
service; and unspecified damages, interest, fees and costs. On
June 9, 2011, Clearwire filed a motion to compel arbitration. The
parties have agreed to settle the lawsuit. The settlement is
pending execution of an agreement and preliminary court approval.
The Company has accrued an estimated amount it anticipates to pay
for the settlement in Other current liabilities. The amount
accrued is considered immaterial to the financial statements.
Kirkland, Wash.-based Clearwire Corporation (NASDAQ: CLWR)
-- http://www.clearwire.com/-- through its operating
subsidiaries, is a provider of 4G mobile broadband network
services in 68 markets, including New York City, Los Angeles,
Chicago, Dallas, Philadelphia, Houston, Miami, Washington, D.C.,
Atlanta and Boston.
CONCORD MANAGEMENT: Sued Over Unpaid Security Deposit Interest
--------------------------------------------------------------
Andrea Dearden, writing for The Madison St. Clair Record, reports
that a Belleville man has filed a class action lawsuit against the
managers of an O'Fallon apartment complex for allegedly not paying
interest on security deposits.
Kyle Oller, individually and on behalf of a group of others, filed
a class action complaint Aug. 24 in St. Clair County Circuit Court
against Concord Management Ltd.
According to the complaint, Mr. Oller signed a year-to-year lease
for an apartment managed by Concord in 2007. Mr. Oller says he
agreed to rent a two bedroom unit at the Fairfield Place Apartment
Complex. Mr. Oller claims Concord required a security deposit for
the apartment, which he says he paid.
Mr. Oller contends that Illinois state law mandates that any
company that collects a security deposit on a complex containing
25 or more units and holds that deposit for more than six months,
is required to pay interest to the tenant on that deposit.
Mr. Oller says Concord kept his deposit for more than six months
but did not pay him interest on that deposit.
The class accuses Concord of violating Illinois' Security Deposit
Interest Act and breach of contract. It asks for an undetermined
amount of money in statutory damages plus interest and court
costs.
The group is represented by attorney David I. Cates of Swansea.
St. Clair County Circuit Court Case No. 12-L-442
DANNON'S: Faces Class Action Over Activia Product Labels
--------------------------------------------------------
Bruce Golding, writing for New York Post, reports that the world's
leading yogurt maker was accused on Sept. 12 of fermenting a fraud
on consumers.
A class-action suit charges that Dannon's popular Activia-brand
products are falsely labeled as yogurt, even though they contain
fillers including water, corn starch and "milk protein
concentrate."
The Manhattan federal court filing says Activia -- which is touted
in ads featuring Jamie Lee Curtis -- "cannot legally be sold at
any price" because the Food and Drug Administration "has
prohibited the use of these filler materials in yogurt."
"Just as the mineral pyrite resembles gold, Activia resembles
yogurt," court papers say. "But fool's gold is not gold. And
Activia is not yogurt."
Potential damages in the case are estimated to exceed $5 million.
Dannon didn't return requests for comment.
DEBEERS DIAMOND: Class Action Claims Processing Begins
------------------------------------------------------
The Real Deal reports that progress has been made in the prolonged
class action lawsuit against DeBeers Diamond Co.
The first checks have been cut, although they're not for regular
customers. Several thousand claims were processed, but all belong
to what are called "authorized reseller claimants," which include
diamond jewelry manufacturers and retailers.
The claims administrator is still processing the claims of people
who bought DeBeers diamonds for themselves or for others.
They say checks should be cut within the next few months. The
deadline to file has passed. There's no way to tell how much
money a claimant can expect before receiving the check in the
mail.
The progress of the settlement can be tracked at
diamondclassaction.com
DEPAUL UNIVERSITY: Judge Dismisses Class Action Over Job Stats
--------------------------------------------------------------
Casey Sullivan at Thomson Reuters reports that an Illinois judge
has dismissed a class action brought by nine graduates of a
Chicago law school who claimed they were misled about future job
prospects.
In a lawsuit filed in February, the nine accused DePaul University
of fraudulent concealment and misrepresentation, claiming the
school published overstated employment data in an attempt to
persuade students to enroll. The DePaul graduates have not yet
found legal jobs in a tough market and owe hefty student loans
since graduating in 2008.
The plaintiffs had sought reimbursement of portions of their
tuition as well as compensation they would have received had they
been hired out of law school, according to court papers.
In an 11-page decision issued on Sept. 11 in the Circuit Court of
Cook County, Illinois, Judge Neil Cohen dismissed the case against
DePaul, saying the graduates didn't prove it was university's
fault they haven't found work in the legal industry, and therefore
they cannot claim damages.
Judge Cohen wrote that the plaintiffs hadn't demonstrated facts
"connecting DePaul's alleged fraud to their inability to obtain
full-time legal employment sufficient to repay their loans."
He also wrote that the plaintiffs paid tuition to receive a legal
education, and not to necessarily receive employment, which
undercut their efforts seeking tuition reimbursements.
The lawsuit is one of more than a dozen throughout the country
that involve jobless law school graduates who have sued their alma
maters for reporting skewed employment statistics. In recent
months, judges have dismissed several related cases in New York
and Michigan, while others have been upheld in California,
including those against Golden Gate University School of Law and
University of San Francisco School of Law.
The graduates who sued DePaul took issue with the fact that the
school's employment statistics had advertised that between 88 and
98 percent of graduates were employed after graduating. But the
students said in court papers that the school didn't tell them
that many of those jobs weren't full-time legal positions.
In Judge Cohen's dismissal of the lawsuit, he made a point that
DePaul didn't owe the graduates a fiduciary duty to disclose
accurate employment statistics, which is required in order to
allege fraudulent concealment.
"There is no Illinois authority finding that a fiduciary
relationship exists between a student and an educational
institution," Judge Cohen wrote.
The lawyer representing the DePaul graduates, Edward Clinton of
Chicago firm Edward X. Clinton, said he intends on appealing the
decision in Illinois Appellate Court, First District.
DePaul said in a statement on Sept. 12, "We are pleased that the
Court's decision support's DePaul's position, and we applaud Judge
Neil Cohen's ruling . . . . These are challenging times for job
seekers, and DePaul's Law Career Services Office is dedicated to
helping our law students find careers that are right for them."
DePaul's lawyer, Lawrence DiNardo -- lcdinardo@jonesday.com -- of
Jones Day, did not return requests for comment.
The case is: Jonathan Phillips v. DePaul University, No. 2012-CH-
3523
For the plaintiffs: Edward Clinton of Edward X. Clinton.
For the defendant: Lawrence DiNardo, of Jones Day.
DFI MARKETING: Recalls Cantaloupe Due to Possible Salmonella Risk
-----------------------------------------------------------------
DFI Marketing Inc. of Fresno, California, is voluntarily recalling
cantaloupe because it has the potential to be contaminated with
Salmonella. Salmonella was found on a single sample of cantaloupe
during routine testing conducted at a wholesale produce
distribution center (terminal market) as part of a USDA testing
program. Salmonella, an organism which can cause serious and
sometimes fatal infections in young children, frail or elderly
people, and others with weakened immune systems. Healthy persons
infected with Salmonella often experience fever, diarrhea (which
may be bloody), nausea, vomiting and abdominal pain. In rare
circumstances, infection with Salmonella can result in the
organism getting into the bloodstream and producing more severe
illnesses such as arterial infections (i.e., infected aneurysms),
endocarditis and arthritis.
The Company is voluntarily recalling this product out of an
abundance of caution and no illnesses have been reported.
Through the Company's comprehensive recall and trace back systems,
it has been determined the suspected cantaloupes include
approximately 28,000 cartons of bulk-packed product. The
cantaloupes are packed in 6, 9, 12, 15, or 18 cantaloupes per
carton. Specific information on how to identify the product: All
cantaloupes are packed in a DFI brand carton and the following is
stamped in black on the carton "826 CALIFORNIA WESTSIDE."
The cantaloupes were packed on August 26, 2012. The cantaloupes
may have been distributed from August 27 to September 10, 2012,
primarily to retail customers in the following states and one
country: Alabama, Arizona, California, Colorado, Florida, Georgia,
Idaho, Illinois, Indiana, Kansas, Kentucky, Maine, Michigan,
Minnesota, Missouri, Nevada, New York, Oklahoma, Tennessee, Texas,
Virginia, and Mexico. The Company believes, due to the perishable
nature of cantaloupe, the majority of this recalled product is no
longer in commerce.
A picture of the recalled products' label is available at:
http://www.fda.gov/Safety/Recalls/ucm319338.htm
As a company committed to food safety, DFI Marketing Inc.
routinely samples products for food borne pathogens prior to
harvest by third party laboratories. The Company's internal
sampling of the cartons involved in this recall was negative for
salmonella.
Retail customers who may have received this product should contact
DFI Marketing Inc. Consumers who may have this product should
discard it or return it to the store where they purchased it.
Consumers with questions may contact the company at 1-559-449-0244
24 hours a day.
DIGITAL DOMAIN: Ex-Worker Files Class Action Over Unpaid Wages
--------------------------------------------------------------
Tyler Treadway, writing for TCPalm.com, reports that a former
employee of Digital Domain Media Group has filed a class-action
lawsuit seeking 60 days of pay and benefits for all the workers
laid off when the firm closed its doors.
According to a complaint filed on Sept. 11 on behalf of Minh-Tam
Frye of Port St. Lucie in the U.S. Bankruptcy Court in Delaware,
Digital Domain employees had not been given 60 days' advance
written notice before their termination as required by the federal
Worker Adjustment and Retaining Notification Act, also known as
the WARN Act.
"Plaintiff and all similarly situated employees seek to recover 60
days' wages and benefits . . . from defendants," according to the
complaint filed by Julia Klein -- klein@teamrosner.com -- an
attorney with the Rosner Law Group in Wilmington, Del.
Specifically, the complaint seeks the former employees' "unpaid
wages, salary, commissions, bonuses, accrued holiday pay, accrued
vacation pay, pension and (retirement account) contributions and
other (health insurance) benefits, for 60 days, that would have
been covered and paid under the then-applicable employee benefit
plans had that coverage continued for that period."
The complaint, filed in the same Delaware court where Digital
Domain filed for bankruptcy on Sept. 11, also asks that the
terminated employees' request for wages be given "priority status"
among the creditors seeking money from Digital Domain.
For a single employee to sue for two months' pay wouldn't be cost-
effective, said Rene S. Roupinian -- rsr@outtengolden.com -- an
attorney with the New York City law firm of Outten & Golden that
also represents Ms. Frye. The complaint was filed as a class-
action suit "because it makes sense for a number of employees to
bring the case collectively."
Ms. Roupinian said her firm doesn't "need a slew of retained
clients" to file the class-action suit, but added, "There's been a
lot of interest on the part of the employees (about the lawsuit).
We've been contacted by quite a few."
Jack A. Raisner -- jar@outtengolden.com -- also an attorney at
Outten & Golden, said he didn't know how much 60 days of pay and
benefits for the laid-off employees would total.
"That would depend on the compensation all of the employees were
paid," Mr. Raisner said, "and we don't have that information. Of
course, the employer certainly does."
Mr. Raisner said the first step in the case will be for it to be
certified as a class action and for Ms. Frye to be certified as a
class representative.
"In bankruptcy court there are a lot of other creditors and a lot
of other business to conduct," he said. "So it's hard to predict
the pace of the case at this stage. But now, at least, the
employees have an iron in the fire."
DIRECT DIGITAL: Sued for False Advertising on Instaflex
-------------------------------------------------------
Harold M. Hoffman, individually and on behalf of those similarly
situated v. Direct Digital, LLC, Case No. L-006842-12 (N.J. Super.
Ct., September 6, 2012) is brought to seek redress from injury
inflicted by the Defendant regarding the marketing and sale of the
dietary supplement, Instaflex.
Instaflex is neither "revolutionary," nor does it possess capacity
to deliver its advertised results, like relief from stiff and achy
joints, Mr. Hoffman alleges. He contends that the Defendant's
claims are not approved, evaluated or sanctioned by the U.S. Food
and Drug Administration.
Mr. Hoffman is a resident of the County of Bergen, in New Jersey.
He asserts that he was exposed to and read, saw and heard the
Defendant's advertising and marketing claims and promises with
respect to Instaflex, and thereafter purchased Instaflex, in
August 2012.
Direct Digital is a Delaware limited liability company based in
Charlotte, North Carolina. Direct Digital advertises, markets and
sells a variety of dietary supplements to consumers throughout the
country, including Instaflex.
The Plaintiff represented himself in the lawsuit:
Harold M. Hoffman, Esq.
240 Grand Avenue
Englewood, NJ 07631
Telephone: (201) 569-0086
E-mail: hoffman.esq@verizon.net
EXPEDIA INC: Plaintiff in "Chistie" Suit Terminates Claims
----------------------------------------------------------
In the consumer class action lawsuit Matthew R. Chistie, et al. v.
Hotels.com L.P., et al., No. 08-CV-10676 (S.D.N.Y.), the plaintiff
dismissed all of its asserted claims on May 24, 2012, according to
Expedia, Inc.'s July 27, 2012, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2012.
The putative class action was filed on December 8, 2008, in
federal court in New York State against Expedia, Hotels.com and
Hotwire. Similar lawsuits were filed at or about the same time
against Priceline and Travelocity. The complaint alleged that the
defendants are improperly charging and/or failing to pay hotel
occupancy taxes and engaging in other deceptive practices in
charging customers for taxes and fees. The complaint sought
certification of a nationwide class of all persons who booked a
hotel room in New York City through the defendants. The complaint
asserted claims for deceptive business practices,
conversion, breach of fiduciary duty and breach of contract and
seeks a declaratory judgment, injunctive relief and damages in an
unspecified amount, but exceeding $5 million. On November 15,
2010, defendants' motion to dismiss was granted in part and the
bulk of the plaintiff's claims were dismissed. Expedia filed a
Motion for Reconsideration seeking to have the remainder of the
case dismissed, which was denied.
FLORIDA: 3rd Circuit Upholds Citrus Tree Class Certification
------------------------------------------------------------
News-Press reports that a South Florida appeals court on Sept. 12
cleared the way for a class-action lawsuit stemming from the
state's destruction of more than 247,000 citrus trees in Miami-
Dade County. The 3rd District Court of Appeal upheld a lower
court decision certifying a class of homeowners whose healthy
trees were eliminated as part of a state effort in 2000 to block
the spread of citrus canker disease. In a 2-1 opinion, the
appeals court also rejected an argument by the Florida Department
of Agriculture and Consumer Services that the proper measure of
damages should be decreases in property value. The court approved
the use of tree-replacement costs as the proper measure. Judge
Leslie Rothenberg, who wrote a dissenting opinion, contended in
part that there is "no practicable, uniform way of accurately
calculating the replacement value of each of the 247,972 trees in
this case." The dissent said the class includes 83,630
homeowners.
LORILLARD INC: Flight Attendant Suits vs. Unit Still Pending
------------------------------------------------------------
Remaining lawsuits commenced by flight attendants against
Lorillard, Inc.'s principal operating subsidiary are still pending
as no trial dates have been scheduled as of July 23, 2012,
according to the Company's July 27, 2012, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2012.
Lorillard Tobacco and three other cigarette manufacturers are the
defendants in each of pending "Flight Attendant Cases." Lorillard,
Inc. is not a defendant in any of these cases. These suits were
filed as a result of a settlement agreement by the parties,
including Lorillard Tobacco, in Broin v. Philip Morris Companies,
Inc., et al. (Circuit Court, Miami-Dade County, Florida, filed
October 31, 1991), a class action brought on behalf of flight
attendants claiming injury as a result of exposure to
environmental tobacco smoke. The settlement agreement, among
other things, permitted the plaintiff class members to file these
individual suits. These individuals may not seek punitive damages
for injuries that arose prior to January 15, 1997. The period for
filing Flight Attendant Cases expired in 2000 and no additional
cases in this category may be filed.
The judges who have presided over the cases that have been tried
have relied upon an order entered in October 2000 by the Circuit
Court of Miami-Dade County, Florida. The October 2000 order has
been construed by these judges as holding that the flight
attendants are not required to prove the substantive liability
elements of their claims for negligence, strict liability and
breach of implied warranty in order to recover damages. The court
further ruled that the trials of these suits are to address
whether the plaintiffs' alleged injuries were caused by their
exposure to environmental tobacco smoke and, if so, the amount of
damages to be awarded.
Lorillard Tobacco was a defendant in each of the eight Flight
Attendant Cases in which verdicts have been returned. Defendants
have prevailed in seven of the eight trials. In one of the seven
cases in which a defense verdict was returned, the court granted
plaintiff's motion for a new trial and, following appeal, the case
has been returned to the trial court for a second trial. The six
remaining cases in which defense verdicts were returned are
concluded. In the single trial decided for the plaintiff, French
v. Philip Morris Incorporated, et al., the jury awarded $5.5
million in damages. The court, however, reduced this award to
$500,000. This verdict, as reduced by the trial court, was
affirmed on appeal and the defendants have paid the award.
Lorillard Tobacco's share of the judgment in this matter,
including interest, was approximately $60,000.
As of July 23, 2012, none of the Flight Attendant Cases were
scheduled for trial. Trial dates are subject to change.
Lorillard, Inc., through its subsidiaries, is engaged in the
manufacture and sale of cigarettes. Its principal products are
marketed under the brand names of Newport, Kent, True, Maverick
and Old Gold with substantially all of its sales in the United
States of America. Lorillard recently acquired blu ecigs, the
leading electronic cigarette company in the U.S.
LORILLARD INC: Unit Resolves Attorney Fee Claims in "Scott" Suit
----------------------------------------------------------------
Lorillard Tobacco negotiated a settlement last May in the "Scott"
lawsuit resolving claims for attorneys' fees, according to
Lorillard, Inc.'s July 27, 2012, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2012.
Lorillard Inc.'s principal operating subsidiary, Lorillard
Tobacco, is a defendant in the class action, Scott v. The American
Tobacco Company, et al. (District court, Orleans Parish,
Louisiana, filed May 24, 1996). Lorillard Inc. is not a defendant
in the case. In the case, Plaintiffs sought class certification
on behalf of groups of cigarette smokers, or the estates of
deceased cigarette smokers, who reside in the state in which the
case was filed.
A Louisiana jury awarded damages to the certified class in 2004.
The jury's award was reduced on two separate occasions in response
to defendants' appeals, but defendants exhausted their appeals and
have paid the final judgment. In August 2011, Lorillard Tobacco
paid approximately $69.7 million, or one-fourth of the award, to
satisfy its portion of the final judgment and the interest that
accrued while appeals were pending.
In 1997, Scott was certified a class action on behalf of certain
cigarette smokers resident in the State of Louisiana who desire to
participate in medical monitoring or smoking cessation programs
and who began smoking prior to September 1, 1988, or who began
smoking prior to May 24, 1996 and allege that defendants
undermined compliance with the warnings on cigarette packages.
In the fourth quarter of 2007, Lorillard, Inc. recorded a pretax
provision of approximately $66 million for this matter which was
included in selling, general and administrative expenses on the
consolidated statements of income and was reclassified from other
liabilities to accrued liabilities in the second quarter of 2010
on the consolidated balance sheets.
Counsel for the certified class has filed a motion for attorneys'
fees, for costs and expenses, and for an award to the class
representatives. Plaintiffs' counsel contends they incurred
approximately $59.0 million in attorneys' fees, and further
contend that the value of those fees, given the age of the case,
is approximately $92.0 million. Plaintiffs' counsel request that a
multiplier as high as seven be applied to any award ordered by the
court. Plaintiffs' counsel ask the court to order defendants to
pay an award in excess of $300.0 million, but request in the
alternative that they be awarded, from the fund awarded to the
class, 33% to 40% of the amount of that fund. In addition,
plaintiffs' counsel seeks approximately $13.4 million in costs and
expenses. Plaintiffs' counsel further request that the court order
a "substantial" award of an unspecified amount to the two class
representatives for their services.
In May 2012, an agreement was reached among all parties that
released all claims against the defendants for attorneys' fees and
costs, and provided that class counsel would seek a fee only from
the fund awarded to the class.
Lorillard, Inc., through its subsidiaries, is engaged in the
manufacture and sale of cigarettes. Its principal products are
marketed under the brand names of Newport, Kent, True, Maverick
and Old Gold with substantially all of its sales in the United
States of America. Lorillard recently acquired blu ecigs, the
leading electronic cigarette company in the U.S.
LORILLARD INC: Trial in "Brown" Case Set for April 19 Next Year
---------------------------------------------------------------
An April 19, 2013 trial date has been scheduled in a class action
complaint commenced by Brown against Lorillard, Inc.'s principal
operating subsidiary, according to the Company's July 27, 2012,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended June 30, 2012.
In the class action case pending against Lorillard Tobacco, Brown
v. The American Tobacco Company, Inc., et al. (Superior Court, San
Diego County, California, filed June 10, 1997), the California
Supreme Court in 2009 vacated an order that had previously
decertified a class and returned Brown to the trial court for
further activity. The class in Brown is composed of residents of
California who smoked at least one of defendants' cigarettes
between June 10, 1993 and April 23, 2001 and who were exposed to
defendants' marketing and advertising activities in California.
The trial court has permitted plaintiffs to assert claims based on
the alleged misrepresentation, concealment and fraudulent
marketing of "light" or "ultra-light" cigarettes.
In May 2012, the court ruled on separate motions by the defendants
to decertify the class and to determine the suitability of
currently named plaintiffs to represent the class. The court
found that the class action could proceed as to the "light"
claims, but that only one of the currently named plaintiffs was
suitable to represent the class.
Trial is set for April 19, 2013. Lorillard, Inc. is not a
defendant in Brown.
Lorillard, Inc., through its subsidiaries, is engaged in the
manufacture and sale of cigarettes. Its principal products are
marketed under the brand names of Newport, Kent, True, Maverick
and Old Gold with substantially all of its sales in the United
States of America. Lorillard recently acquired blu ecigs, the
leading electronic cigarette company in the U.S.
MAKO SURGICAL: Consolidated Shareholder Suit Pending in Florida
---------------------------------------------------------------
A consolidated shareholder lawsuit filed against MAKO Surgical
Corp. is pending in Florida, according to the Company's August 7,
2012, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended June 30, 2012.
In May 2012, two shareholder complaints were filed in the U.S.
District Court for the Southern District of Florida against the
Company and certain of its officers and directors as purported
class actions on behalf of all purchasers of the Company's common
stock between January 9, 2012, and May 7, 2012. The cases were
filed under the captions James H. Harrison, Jr. v. MAKO Surgical
Corp. et al., No. 12-cv-60875 and Brian Parker v. MAKO Surgical
Corp. et al., No. 12-cv-60954. The complaints allege the Company,
its Chief Executive Officer, President and Chairman, Maurice R.
Ferre, M.D., and its Chief Financial Officer, Fritz L. LaPorte,
violated federal securities laws by making misrepresentations and
omissions during the proposed class period about the sales of the
Company's RIO system and the Company's financial guidance for 2012
that artificially inflated the Company's stock price. The
complaints seek an unspecified amount of compensatory damages,
interest, attorneys' fees, and costs. On August 1, 2012, the
court appointed Oklahoma Firefighters Pension and Retirement
System and Baltimore County Employees' Retirement System as lead
plaintiff, consolidated the Harrison and Parker complaints,
granted the lead plaintiff an extension to file the amended and
consolidated complaint on August 29, 2012, and denied as moot a
motion previously filed by the Company, Dr. Ferre, and Mr. LaPorte
to dismiss the Harrison complaint.
MILLENNIUM TRUST: Faces Class action Over IRA-Based Ponzi Scheme
----------------------------------------------------------------
Rebekah Kearn at Courthouse News Service reports that Millennium
Trust Co. helped "fraud promoters" steal millions of dollars from
elderly people in an IRA-based Ponzi scheme, an elderly man claims
in a federal class action.
Lead plaintiff Stanley Levine, 85, claims he lost his entire
$225,000 investment, and that the class lost at least $5 million
in the scheme, which was based on self-directed investment
retirement accounts, or SDIRAs.
A similar class action was filed 6 weeks ago against Entrust Group
and five of its affiliates.
Mr. Levine claims: "The fraud promoters invested the money
deposited by plaintiff and the class members in their SDIRAs in
'investments' that were fraudulent, illusory or non-existent.
Millennium Trust aided and abetted the fraud by periodically
sending out investment account statements showing extraordinary
investment returns in the SDIRAs when in fact the fraud promoters
were absconding or had already absconded with the victims' money."
Millennium Trust is an Illinois-based company with offices in
Carlsbad, in North San Diego County. It "touts itself as having
over 170,000 accounts with total assets under custody exceeding
$4.6 billion as of December 31, 2011," according to the complaint.
Millennium is a defendant in two other pending Ponzi class actions
in Illinois, the complaint states.
Mr. Levine claims: "Millennium Trust gave plaintiff and the class
members a false sense of security by making false and deceptive
representations that their 'investments' would be safe, insured,
accurately administered, and legally sound. Plaintiff and the
class members, relying on those representations, tendered their
hard-earned money to Millennium Trust, while Millennium Trust
enabled the fraud promoters to steal the monies invested by
plaintiff and the class members. Many investors lost their entire
life savings."
Mr. Levine seeks compensatory and punitive damages and statutory
penalties for fraud, conspiracy, and financial elder abuse, and a
court order freezing Millennium Trust's assets.
A copy of the Complaint in Levine v. Millennium Trust Company,
LLC, Case No. 12-cv-02210 (S.D. Calif.), is available at:
http://www.courthousenews.com/2012/09/13/Millennium.pdf
The Plaintiff is represented by:
L. Timothy Fisher, Esq.
BURSOR & FISHER, P.A.
1990 North California Blvd., Suite 940
Walnut Creek, CA 94596
Telephone: (925) 300-4455
E-mail: ltfisher@bursor.com
- and -
David K. Dorenfeld, Esq.
Michael W. Brown, Esq.
SNYDER DORENFELD, LLP
5010 Chesebro Road
Agoura Hills, CA 91301
Telephone: (818) 865-4000
E-mail: dkd@sd4law.com
mwb@sd4law.com
- and -
Cathy J. Lerman, Esq.
CATHY JACKSON LERMAN, PA
7857 W. Sample Rd., Suite 140
Coral Springs, FL 33065
Telephone: (954) 663-5818
E-mail: clerman@lermanfirm.com
SPARTAN STORES: Recalls Deli Products Due to Health Risks
---------------------------------------------------------
Spartan Stores is initiating a precautionary recall of certain
deli products due to concerns of possible Listeria Monocytogenes
contact. This recall is precautionary and is being initiated to
ensure the highest degree of confidence to the Company's
customers. Listeria monocytogenes is an organism which can cause
serious and sometimes fatal infections in young children, frail or
elderly people, and others with weakened immune systems. Although
healthy individuals may suffer only short-term symptoms such as
high fever, severe headache, stiffness, nausea, abdominal pain and
diarrhea, Listeria infection can cause miscarriages and
stillbirths among pregnant women.
No products have been identified as coming into contact with the
Listeria monocytogenes organism.
The deli products were distributed to Family Fare, D&W Fresh
Markets, Glen's, VG's and a limited number of independent
supermarkets in Michigan. Spartan Stores has received no reports
of illness associated with the consumption of these products.
Anyone concerned about an illness should contact their healthcare
provider immediately. All of the products involved in the recall
should be discarded or returned for a full refund.
For a specific list of items go to Spartan's retail Web sites
listed below or the courtesy desks at each store.
* Family Fare - http://familyfare.spartanstores.com/recalls/
* D&W Fresh Markets - http://dwfm.spartanstores.com/recalls/
* Glen's - http://glens.spartanstores.com/recalls/
* VG's - http://vgs.spartanstores.com/recalls/
* Independent supermarkets -
http://t2s.spartanstores.com/spartan-brands/recalls/
Pictures of the recalled products are available at:
http://www.fda.gov/downloads/Safety/Recalls/UCM319446.pdf
This recall is the result of a routine surface swabbing conducted
by the FDA which resulted in positive samples of Listeria
monocytogenes.
Consumers with questions about the recall may contact Spartan
Stores' Consumer Affairs at 1-800-451-8500 from 8:00 a.m. to 5:00
p.m. Eastern Standard Time.
About Spartan Stores
Grand Rapids, Michigan-based Spartan Stores, Inc. (Nasdaq: SPTN)
is the nation's tenth largest grocery distributor with 1.4 million
square feet of warehouse, distribution, and office space located
in Grand Rapids, Michigan. The Company distributes more than
40,000 private and national brand products to approximately 375
independent grocery locations in Michigan, Indiana and Ohio, and
to 97 corporate owned stores located in Michigan, including Family
Fare Supermarkets, Glen's Markets, D&W Fresh Markets, VG's Food
and Pharmacy, and Valu Land.
SPIRIT AEROSYSTEMS: Appeal in Discrimination Suit Remains Pending
-----------------------------------------------------------------
In December 2005, a lawsuit was filed against Spirit AeroSystems
Holdings, Inc.'s subsidiary, Spirit AeroSystems, Inc. ("Spirit"),
Onex Corporation ("Onex") and The Boeing Company ("Boeing"),
alleging age discrimination in the hiring of employees by Spirit
when Boeing sold its Wichita commercial division to Onex. The
complaint was filed in U.S. District Court in Wichita, Kansas and
seeks class-action status, an unspecified amount of compensatory
damages and more than 1.5 billion dollars in punitive damages.
The asset purchase agreement from the Boeing Acquisition requires
Spirit to indemnify Boeing for damages resulting from the
employment decisions that were made by the Company with respect to
former employees of Boeing Wichita, which relate or allegedly
relate to the involvement of, or consultation with, employees of
Boeing in such employment decisions. On June 30, 2010, the U.S.
District Court granted defendants' dispositive motions, finding
that the case should not be allowed to proceed as a class action.
The matter is now on appeal to the Tenth Circuit Court of Appeals,
which could reverse the District Court's June 30, 2010 ruling.
The Company intends to continue to vigorously defend itself in
this matter. Management believes the resolution of this matter
will not materially affect the Company's financial position,
results of operations or liquidity.
No further updates were reported in the Company's August 7, 2012,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended June 28, 2012.
SPIRIT AEROSYSTEMS: To Be Dismissed From "Harkness" Class Suit
--------------------------------------------------------------
In the lawsuit captioned Harkness et al. v. The Boeing Company et
al., plaintiffs' counsel agreed to work with "Spirit" entities to
seek the voluntary dismissal all claims against them, Spirit
AeroSystems Holdings, Inc. disclosed in its August 7, 2012, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended June 28, 2012.
On February 16, 2007, an action entitled Harkness et al. v. The
Boeing Company et al. was filed in the U.S. District Court for the
District of Kansas. The defendants were served in early July
2007. The defendants include Spirit AeroSystems Holdings, Inc.,
Spirit AeroSystems, Inc., the Spirit AeroSystems Holdings Inc.
Retirement Plan for the International Brotherhood of Electrical
Workers (IBEW), Wichita Engineering Unit (SPEEA WEU) and Wichita
Technical and Professional Unit (SPEEA WTPU) Employees, and the
Spirit AeroSystems Retirement Plan for International Association
of Machinists and Aerospace Workers (IAM) Employees, along with
Boeing and Boeing retirement and health plan entities. The named
plaintiffs are twelve former Boeing employees, eight of whom were
or are employees of Spirit. The plaintiffs assert several claims
under the Employee Retirement Income Security Act and general
contract law and brought the case as a class action on behalf of
similarly situated individuals. The putative class consists of
approximately 2,500 current or former employees of Spirit. The
parties agreed to class certification. The sub-class members who
have asserted claims against the Spirit entities are those
individuals who, as of June 2005, were employed by Boeing in
Wichita, Kansas, were participants in the Boeing pension plan, had
at least 10 years of vesting service in the Boeing plan, were in
jobs represented by a union, were between the ages of 49 and 55,
and who went to work for Spirit on or about June 17, 2005.
Although there are many claims in the lawsuit, the plaintiffs'
claims against the Spirit entities, asserted under various
theories, are (1) that the Spirit plans wrongfully failed to
determine that certain plaintiffs are entitled to early retirement
"bridging rights" to pension and retiree medical benefits that
were allegedly triggered by their separation from employment by
Boeing and (2) that the plaintiffs' pension benefits were
unlawfully transferred from Boeing to Spirit in that their claimed
early retirement "bridging rights" are not being afforded these
individuals as a result of their separation from Boeing, thereby
decreasing their benefits.
The plaintiffs initially sought a declaration that they are
entitled to the early retirement pension benefits and retiree
medical benefits, an injunction ordering that the defendants
provide the benefits, damages pursuant to breach of contract
claims and attorney fees. Following the completion of discovery,
however, plaintiffs' counsel informed Spirit counsel that
plaintiffs' counsel had determined that all claims against the
Spirit entities were not viable, and plaintiffs' counsel agreed to
work with the Spirit entities to seek the voluntary dismissal with
prejudice of all claims against the Spirit entities. Plaintiffs'
claims against Boeing entities remain pending in the litigation.
Boeing has notified Spirit that it believes it is entitled to
indemnification from Spirit for any "indemnifiable damages" it may
incur in the Harkness litigation, under the terms of the asset
purchase agreement from the Boeing Acquisition between Boeing and
Spirit. Spirit disputes Boeing's position on indemnity.
Management believes the resolution of this matter will not
materially affect the Company's financial position, results of
operations or liquidity.
SUPERMEDIA INC: Appeal in ERISA Class Action Still Pending
----------------------------------------------------------
On December 10, 2009, a former employee with a history of
litigation against Supermedia, Inc. filed a putative class action
lawsuit in the U.S. District Court for the Northern District of
Texas, Dallas Division, against certain of the Company's current
and former officers, directors and members of the Company's EBC.
The complaint attempts to recover alleged losses to the various
savings plans that were allegedly caused by the breach of
fiduciary duties in violation of ERISA by the defendants in
administrating the plans from November 17, 2006 to March 31, 2009.
The complaint alleges that: (i) the defendants wrongfully allowed
all the plans to invest in Idearc common stock, (ii) the
defendants made material misrepresentations regarding the
Company's financial performance and condition, (iii) the
defendants had divided loyalties, (iv) the defendants mismanaged
the plan assets, and (v) certain defendants breached their duty to
monitor and inform the EBC of required disclosures. The
plaintiffs are seeking unspecified compensatory damages and
reimbursement for litigation expenses. At this time, a class has
not been certified. The plaintiffs have filed a consolidated
complaint. The Company filed a motion to dismiss the entire
complaint on June 22, 2010. On March 16, 2011, the Court granted
the Company defendants' motion to dismiss the entire complaint;
however, the plaintiffs have repleaded their complaint. The
Company defendants have filed another motion to dismiss the new
complaint. On March 15, 2012, the court granted the Company
defendants' second motion dismissing the case with prejudice. The
plaintiffs have filed a notice of their intent to appeal the
dismissal. The Company plans to honor its indemnification
obligations and vigorously defend the lawsuit on the defendants'
behalf.
No updates were reported in the Company's July 27, 2012, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2012.
Headquartered in Dallas, Texas, SuperMedia Inc. --
http://www.supermedia.com/-- operates as a yellow pages directory
publisher in the United States. The Company was formerly known as
Idearc Inc. and changed its name to SuperMedia Inc. in January
2010. SuperMedia Inc. is headquartered in Dallas, Texas.
SYNGENTA CROP: Attorney Files Objection to Atrazine Settlement
--------------------------------------------------------------
Bethany Krajelis, writing for The Madison St. Clair Record,
reports that a California attorney has filed an objection to the
proposed $105 million settlement over atrazine.
On behalf of Public Water Supply District 1 of Clinton County, Mo.
and the Nocona Water Department in Texas, attorney Darrell Palmer
asserts in an objection filed that the attorneys' fee request is
excessive and that the settlement fund is minimal considering the
claims.
Mr. Palmer also contends that neither the notice nor the proposed
settlement provides information as to how much money class members
can expect to receive and although attorneys have contracted to
get paid within 14 days of the settlement's approval, there is no
deadline for the payment of claims to class members.
In addition, Mr. Palmer claims that some class members, including
one of his clients, never received notice of the settlement.
The proposed settlement, which is set for a final fairness hearing
next month, stems from the class action lawsuit St. Louis attorney
Stephen Tillery brought in 2010 on behalf of the city of
Greenville, as well as several other Midwestern water providers,
and against Syngenta Crop Protection and Syngenta AG.
The plaintiffs claim that atrazine, a common agricultural
herbicide manufactured and sold by the Syngenta defendants, ran
off farm fields and into their drinking water supplies, forcing
them to incur expenses related to the testing, monitoring and
filtering of their water.
After more than a year of negotiations, the Syngenta defendants in
May agreed to pay $105 million to resolve claims of nearly 2,000
water providers.
Attorneys at Mr. Tillery's firm, Korein Tillery, and fellow class
counsel at Baron & Budd in Texas have requested about one-third of
the pending settlement -- nearly $35 million -- in attorneys'
fees. A handful of attorneys last month submitted declarations in
support of that amount.
Mr. Tillery's firm responded to Mr. Palmer's objection on Sept. 7,
the day after the California attorney filed the objection.
In their response, attorneys at Mr. Tillery's firm note that
although Federal Rule 23 gives class members the opportunity to
object to class action settlements, something that can play a
valuable role in the process, "there are also 'serial' or
'professional' objectors who file meritless objections in an
effort to extract payment in exchange for dismissal of their
frivolous claims."
Mr. Palmer, they contend, fits into that category.
"Mr. Palmer is a self-proclaimed serial objector, who
parasitically files stock objections in case after case, with the
only impact on the class being to delay the distribution of
relief," Mr. Tillery's firm claims.
"Incredibly, this statement is not hyperbole. Mr. Palmer gladly
acknowledges his position and has even gone so far as to brag of
his success."
To support that statement, Mr. Tillery's firm points to an Oct.
17, 2011 entry on ClassActionBlawg.com about a panel discussion at
the American Bar Association's 15th Annual National Institute on
Class Actions.
The blog entry notes that Mr. Palmer, who served as a panelist at
the event, told attendees that "objecting is a hobby for me" and
admitted that he has accepted "a lot" of money over the years to
drop his objections.
"Mr. Palmer seeks to add this case to that long list of
conquests," Mr. Tillery's firm contends.
In his objection, Mr. Palmer states that data provided by class
counsel in its motion for fees was "incomplete."
While they claim that one-third of recovery is normal in
complicated class actions such as this one, Mr. Palmer contends
that most studies on class action fee awards have found that the
normal rate is about one-quarter of the settlement.
"Based on this empirical 'market rate' data, it is clear that the
one-third requested here is excessive," Mr. Palmer contends in his
clients' opposition. "It is particularly excessive given the
likely damages each water district is due to incur versus the
likely recovery it will receive."
"For example, most lead plaintiffs estimate their damages at
$75,000 per district . . . while American Water has estimated its
damages in the millions of dollars," Mr. Palmer wrote.
"Accordingly, for class counsel to reduce the common fund by more
than the usual market rate is improper and should be viewed with
great scrutiny by this Court."
In his clients' objection, Mr. Palmer urges the court to utilize
the so-called Lodestar method to determine attorneys' fees.
Under this method, courts calculate attorneys' fees by multiplying
a reasonable hourly rate by the number of hours expended on the
litigation.
"Here, class counsel state that the lodestar amount is in excess
of $24 million for approximately 83,300 hours. This seems to be
an excessive amount of lodestar and hours given the relative
brevity of this case; which is only two years old," Mr. Palmer
asserts. "The class (clients) should be allowed to review the
detailed billing records to uncover duplication and other
practices which may have inflated the alleged lodestar."
Mr. Tillery's firm wrote in its response that Mr. Palmer's
reference to the case only being two years old is a factual error
that demonstrates his "canned objection" is "both frivolous and
based upon a complete lack of investigation into the facts and law
of this case."
Pointing to declarations previously submitted by Mr. Tillery and
Scott Sumny of Baron & Budd, attorneys at Mr. Tillery's firm note
that "the proposed settlement resolves litigation that has been
pending for more than eight years."
They are referring to the class action lawsuits Mr. Tillery filed
in 2004 in Madison County, which appear to be covered under the
proposed settlement.
Mr. Tillery's firm also takes issue with Mr. Palmer's accusation
that class counsel included a "quick pay" provision in the
settlement that would provide payment of attorneys' fees before
the resolution of any appeals in the settlement.
Mr. Palmer claims that the proposed settlement would let class
counsel reap their fees within 14 days of the court's final
approval hearing, regardless of appeals.
"When attorneys negotiate a quick-pay provision for themselves, it
is a clear indication that they are putting their own interests
ahead of their clients," Mr. Palmer wrote. "The attorneys ensure
that they are paid immediately, while there is no contractual
deadline for disbursement of the class funds and the class may be
forced to wait out the appeal, while their lawyers have used this
latest device to attempt to avoid that delay."
Mr. Tillery's firm, however, asserts that Mr. Palmer's allegations
that the proposed settlement doesn't provide class members
information on how claims are computed and fails to provide a
timeline for claims to be processed are not "remotely true, as
anyone who reviewed the settlement would know."
"Contrary to the objectors' claims, the proposed settlement
includes a detailed Allocation Plan . . . that was approved by the
Court and pursuant to its Order made available to all as an
attachment to the settlement agreement on the settlement
Web site," Mr. Tillery's firm contends.
This plan, Mr. Tillery's firm states in its response to the
objection, details the "exact method for calculating each class
member's share of the settlement proceeds," which is a formula
based on a fixed payment of $5,000, and explains that payment of
approved claims will be issued within 30 days of the settlement's
final approval.
Mr. Tilley's firm also claims that Mr. Palmer's arguments over
notice "are untethered to reality."
In his clients' objection, Mr. Palmer states that notice
requirements under Federal Rule 23 were not met in this case.
This rule requires that absent class members receive "the best
notice that is practicable under the circumstances, including
individual notice to all members who can be identified through
reasonable effort."
"However, it appears that personal service of this notice was not
accomplished here," Mr. Palmer claims, adding that his client,
Nocona Water, as well as its surrounding communities, did not
receive notice of the settlement.
"And, why is it that the class counsel is allowed to advance the
interests of certain class members ahead of others? Defendants no
doubt demanded the broadest possible class definition, but the
vast majority of class members know nothing about this case or the
settlement," he wrote. "What is truly remarkable is that as of
last week, the National Rural Water Association had no information
regarding this lawsuit."
Mr. Tillery's firm asserts that "each known class member was sent
notice of this settlement on June 11 and August 2 by first class
mail" and "notice of the settlement was also published in the July
issues of American Water Works Association Magazine, Public Works
Magazine, and American City and County Magazine."
"Furthermore, Class Counsel also either sent a third notice by
first class mail or placed a personal phone call to each known
class member beginning on August 13."
On top of the legal and factual errors in Mr. Palmer's objection,
Mr. Tillery's firm contends that "Palmer's objection failed the
most basic of procedural requirements: it was filed more than one
week past the objection deadline."
According to the atrazine settlement Web site, the deadline to
file objections to the proposed settlement was August 28.
Court records show that the clerk of the federal court received
Mr. Palmer's objection on Sept. 4, but returned the document for
failure to electronically file the document. He electronically
filed it two days later on Sept. 6.
"Given these failures, Mr. Palmer's presence in this matter will
not assist the Court or any member of the class," Mr. Tillery's
firm asserts in his response. "With the patent deficiencies in
Mr. Palmer's objection, he simply has no business before the
Court."
Attorneys at Mr. Tillery's firm, however, wrote that the denial of
Mr. Palmer's pro hac vice application "would do nothing to prevent
the damage from Mr. Palmer's inevitable appeal."
As such, they asked the court to delay considering Mr. Palmer's
application while plaintiffs pursue discovery to determine the
bases, if any, of the objectors' claims and Mr. Palmer's alleged
practice as a serial objector "so the court may make a more
informed opinion on his fitness to appear in this matter."
Mr. Tillery's firm also noted in its response that it planned to
serve Mr. Palmer notices of deposition and document requests to
reveal the bases of the objectors' claims, as well as his methods
and motives.
In addition, Mr. Tillery's firm stated in its response that it
would file a motion seeking to shorten the time frame for
responding to its discovery to make sure it can be completed
before the court's final fairness hearing, which is set for
Oct. 22 in Benton.
TRAVELCENTERS OF AMERICA: Fuel Temperature Suits Remain Pending
---------------------------------------------------------------
Various motions are pending in the class action lawsuits over
motor fuel temperatures, according to TravelCenters of America
LLC's August 7, 2012, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended June 30, 2012.
Beginning in December 2006, a series of class action lawsuits was
filed against numerous companies in the petroleum industry,
including the Company's predecessor and its subsidiaries, in U.S.
district courts in over 20 states. Major petroleum refiners and
retailers were named as defendants in one or more of these
lawsuits. The plaintiffs in the lawsuits generally allege that
they are retail purchasers who purchased motor fuel at
temperatures greater than 60 degrees Fahrenheit at the time of
sale. One theory alleges that the plaintiffs purchased smaller
amounts of motor fuel than the amount for which defendants charged
them because the defendants measured the amount of motor fuel they
delivered by volumes which, at higher temperatures, contain less
energy. A second theory alleges that fuel taxes are calculated in
temperature adjusted 60 degree gallons and are collected by
governmental agencies from suppliers and wholesalers, who are
reimbursed in the amount of the tax by the defendant retailers
before the fuel is sold to consumers. These "tax" cases allege
that, when the fuel is subsequently sold to consumers at
temperatures above 60 degrees, the retailers sell a greater volume
of fuel than the amount on which they paid tax, and therefore reap
unjust benefit because the customers pay more tax than the
retailer pays. The Company believes that there are substantial
factual and legal defenses to the theories alleged in these so
called "hot fuel" lawsuits. The "temperature" cases seek
nonmonetary relief in the form of an order requiring the
defendants to install devices that display the temperature of the
fuel and/or temperature correcting equipment on their retail fuel
pumps and monetary relief in the form of damages, but the
plaintiffs have not quantified the damages they seek. The "tax"
cases also seek monetary relief. Plaintiffs have proposed a
formula (which the Company disputes) to measure these damages as
the difference between the amount of fuel excise taxes paid by
defendants and the amount collected by defendants on motor fuel
sales.
Plaintiffs have taken the position in filings with the Court that
under this approach, the Company's damages for an eight-year
period for one state would be approximately $10,700,000. The
Company denies liability and disagrees with the plaintiffs'
positions. All of these cases have been consolidated in the U.S.
District Court for the District of Kansas pursuant to multi-
district litigation procedures. On May 28, 2010, that Court ruled
that, with respect to two cases originally filed in the U.S.
District Court for the District of Kansas, it would grant
plaintiffs' motion to certify a class of plaintiffs seeking
injunctive relief (implementation of fuel temperature equipment
and/or posting of notices regarding the effect of temperature on
fuel). On January 19, 2012, the Court amended its prior ruling,
and certified a class with respect to plaintiffs' claims for
damages as well. A TA entity was named in one of those two Kansas
cases, but the Court ruled that the named plaintiffs were not
sufficient to represent a class as to TA. Several defendants in
the Kansas cases, including major petroleum refiners, have entered
into multi-state settlements, which have not yet been approved by
the Court. A trial against the remaining defendants in the Kansas
cases was scheduled for August 27, 2012. The U.S. District Court
for the District of Kansas has not issued a decision on class
certification with respect to the remaining cases that have been
consolidated in the multi-district litigation.
Because various motions are pending, the Company says it cannot
estimate its ultimate exposure to loss or liability, if any,
related to these lawsuits. However, the continued cost of
litigating these cases could be significant.
TravelCenters of America, LLC -- http://www.tatravelcenters.com/-
- operates and franchises travel centers primarily along the U.S.
interstate highway system. The Company was formed as a wholly
owned subsidiary of Hospitality Properties Trust. Its customers
include long haul trucking fleets and their drivers, independent
truck drivers and motorists. The Company offers a broad range of
products and services, including diesel fuel and gasoline, truck
repair and maintenance services, full service restaurants, more
than 20 different brands of quick serve restaurants, or QSRs,
travel and convenience stores and various driver amenities.
TRAVELCENTERS OF AMERICA: Continues to Defend Antitrust Suit
------------------------------------------------------------
TravelCenters of America LLC continues to defend itself against an
antitrust class action lawsuit originally filed against Comdata
Network, Inc., according to the Company's August 7, 2012, Form 10-
Q filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2012.
On April 6, 2009, five independent truck stop owners, who are
plaintiffs in a purported class action lawsuit against Comdata
Network, Inc., or Comdata, in the U.S. District Court for the
Eastern District of Pennsylvania, filed a motion to amend their
complaint to add the Company as a defendant, which was allowed on
March 25, 2010. The amended complaint also added as defendants
Ceridian Corporation, Pilot Travel Centers LLC and Love's Travel
Stops & Country Stores, Inc. Comdata markets fuel cards which are
used for payments by trucking companies at truck stops. The
amended complaint alleged antitrust violations arising out of
Comdata's contractual relationships with truck stops in connection
with its fuel cards. The plaintiffs have sought unspecified
damages and injunctive relief. On March 24, 2011, the Court
dismissed the claims against TA in the amended complaint, but
granted plaintiffs leave to file a new amended complaint. Four
independent truck stop owners, as plaintiffs, filed a new amended
complaint against the Company on April 21, 2011, repleading their
claims. On May 6, 2011, the Company renewed its motion to dismiss
the complaint with prejudice while discovery otherwise proceeded.
The Court denied the Company's renewed motion to dismiss on March
29, 2012, and the Company filed an answer to the complaint on
April 30, 2012. A trial schedule for the matter has not otherwise
been set.
The Company believes that there are substantial factual and legal
defenses to the plaintiffs' claims against it, but that the costs
to defend this case could be significant.
TravelCenters of America, LLC -- http://www.tatravelcenters.com/-
- operates and franchises travel centers primarily along the U.S.
interstate highway system. The Company was formed as a wholly
owned subsidiary of Hospitality Properties Trust. Its customers
include long haul trucking fleets and their drivers, independent
truck drivers and motorists. The Company offers a broad range of
products and services, including diesel fuel and gasoline, truck
repair and maintenance services, full service restaurants, more
than 20 different brands of quick serve restaurants, or QSRs,
travel and convenience stores and various driver amenities.
TRONOX INC: Nov. 19 Class Action Settlement Fairness Hearing Set
----------------------------------------------------------------
Gold Bennett Cera & Sidener LLP on Sept. 12 issued an order of the
United States District Court for the Southern District of New
York:
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
IN RE TRONOX, INC. SECURITIES
LITIGATION
______________________________________
)
)
)
)
)
)
Civil Action No. 09-CV-06220-SAS
ECF Case
THIS DOCUMENT RELATES TO ALL CLASS ACTIONS
SUMMARY NOTICE OF PENDENCY OF CLASS ACTION AND PROPOSED
SETTLEMENT, SETTLEMENT FAIRNESS HEARING, AND MOTION FOR ATTORNEYS'
FEES AND REIMBURSEMENT OF LITIGATION EXPENSES
TO: ALL PERSONS OR ENTITIES WHO PURCHASED OR OTHERWISE ACQUIRED
TRONOX, INC. CLASS A OR CLASS B COMMON STOCK OR TRONOX, INC.'S 9«
PERCENT SENIOR NOTES DUE 2012 DURING THE PERIOD FROM NOVEMBER 21,
2005 THROUGH JANUARY 12, 2009, INCLUSIVE (THE "CLASS PERIOD"), AND
WHO WERE DAMAGED THEREBY (THE "CLASS").
YOU ARE HEREBY NOTIFIED: (1) that the above-captioned action (the
"Action") has been certified as a class action for purposes of a
proposed settlement on behalf of the Class identified above,
except for certain persons and entities who are excluded from the
Class by definition as set forth in the Stipulation and Agreement
of Settlement; and (2) that LaGrange Capital Partners, LP and
LaGrange Capital Partners Offshore Fund, Ltd. (together "Lead
Plaintiffs"), Named Plaintiff The Fire and Police Pension
Association of Colorado and Named Plaintiff The San Antonio Fire
and Police Pension Fund (collectively with Lead Plaintiffs,
"Plaintiffs") and Thomas W. Adams, Marty J. Rowland, Mary
Mikkelson (the "Tronox Individual Defendants"); Robert M.
Wohleber, J. Michael Rauh, Luke R. Corbett, and Gregory F. Pilcher
(the "Kerr-McGee Individual Defendants"); Kerr-McGee Corporation
("Kerr-McGee"); Anadarko Petroleum Corporation ("Anadarko"); and
Ernst & Young LLP ("E&Y") (collectively, the "Settling
Defendants") have entered into a proposed settlement (the
"Settlement") for $37 million in cash, plus interest as it
accrues. If approved, the Settlement will resolve all claims in
the Action.
A hearing will be held before the Honorable Shira A. Scheindlin,
in the United States District Court for the Southern District of
New York, 500 Pearl Street, Courtroom 15C, New York, NY 10007, at
4:30 p.m. on November 19, 2012, to determine whether the proposed
Settlement should be approved by the Court as fair, reasonable,
and adequate, and to consider the application of Lead Counsel for
attorneys' fees and reimbursement of litigation expenses. The
Court may change the date of the hearing without providing
additional notice to Class Members.
IF YOU PURCHASED OR ACQUIRED TRONOX, INC. CLASS A OR CLASS B
COMMON STOCK OR TRONOX, INC.'S 9« PERCENT SENIOR NOTES DUE 2012
DURING THE CLASS PERIOD DESCRIBED ABOVE, YOUR RIGHTS MAY BE
AFFECTED BY THE SETTLEMENT AND YOU MAY BE ENTITLED TO SHARE IN THE
SETTLEMENT PROCEEDS.
If you are a member of the Class in order to be eligible to share
in the distribution of the net proceeds of the Settlement, you
must submit a Proof of Claim Form no later than January 7, 2013.
You will be bound by any judgment entered in the Action whether or
not you submit a Claim Form. If you have not received the Notice
of Pendency of Class Action and Proposed Settlement, Settlement
Fairness Hearing, and Motion for Attorneys' Fees and Reimbursement
of Litigation Expenses (the "Notice") or Claim Form, you may
obtain copies of these documents by contacting: In re Tronox, Inc.
Securities Litigation, c/o Gilardi & Co, LLC, P.O. Box 8040, San
Rafael, CA 94912-8040, or toll-free at 1-888-213-8535. Copies of
the Notice and Claim Form may also be downloaded from:
http://www.gilardi.com/tronox
Inquiries, other than requests for copies of the Notice, may also
be made to Lead Counsel:
Gold Bennett Cera & Sidener LLP Solomon B. Cera, Esq. or Thomas C.
Bright, Esq. 595 Market Street, Suite 2300 San Francisco, CA 94105
Telephone: (415) 777-2230 scera@gbcslaw.com or tbright@gbcslaw.com
If you desire to be excluded from the Class, you must file a
request for exclusion by October 29, 2012, in the manner and form
set forth in the Notice. All members of the Class who do not
request exclusion will be bound by any judgment entered in the
Action.
Any objection to the proposed Settlement, Plan of Allocation, or
Lead Counsel's application for attorneys' fees and reimbursement
of Litigation Expenses must be filed with the Court and delivered
to counsel for the parties no later than October 29, 2012, at the
addresses provided in, and in the manner and form set forth in the
Notice.
PLEASE DO NOT CONTACT THE COURT OR THE CLERK'S OFFICE REGARDING
THIS NOTICE.
DATED: August 29, 2012
BY ORDER OF THE COURT UNITED STATES DISTRICT COURT SOUTHERN
DISTRICT OF NEW YORK
TRUE INNOVATIONS: Recalls 8,400 Prestigio Leather Office Chairs
---------------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
manufacturer, True Innovations LLC, of Hong Kong, China, and
importer, Office Depot Inc., of Boca Raton, Florida, announced a
voluntary recall of about 8,400 units of Realspace Soho Prestigio
High-Back Leather Chair. Consumers should stop using recalled
products immediately unless otherwise instructed. It is illegal
to resell or attempt to resell a recalled consumer product.
The seat plate can break, posing fall and injury hazards to
consumers.
Office Depot has received 78 reports of incidents involving seat
plates breaking, including one report of a fall injury.
This recall involves Prestigio model leather office chairs. The
high-back leather chairs were sold in black and have a five-leg
metallic finish base with casters. The SKU number 181-265 and the
words "Realspace Soho" and "Prestigio High-Back Chair Black
Leather" are printed on a label located on the underside of the
seat. A picture of the recalled products is available at:
http://www.cpsc.gov/cpscpub/prerel/prhtml12/12276.html
The recalled products were manufactured in China and sold
exclusively at Office Depot retail stores nationwide and online at
OfficeDepot.com from October 2008 through February 2011 for about
$250.
Consumers should immediately stop using the chairs and contact
True Innovations for a free seat repair kit including a
replacement seat plate and an installation tool. For additional
information, contact True Innovations at (800) 379-9773 between
9:00 a.m. and 8:00 p.m. Eastern Time Monday through Friday, or
visit the firm's Web site at http://www.trueinnovations.com/
VISA INC: Bid to Dismiss National ATM Council Class Suit Pending
----------------------------------------------------------------
Visa Inc.'s motion to dismiss an amended class action complaint
filed by the National ATM Council and other plaintiffs is pending,
according to the Company's July 27, 2012, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2012.
On October 12, 2011, the National ATM Council and 13 non-bank ATM
operators filed a class action lawsuit against Visa (Visa Inc.,
Visa International Service Association, Visa USA, and Plus System,
Inc.) and MasterCard International Incorporated in U.S. District
Court for the District of Columbia. The complaint
challenges Visa's rule (and a similar MasterCard rule) that if an
ATM operator chooses to charge consumers an access fee for a Visa
or Plus transaction, that fee cannot be greater than the access
fee charged for transactions on other networks. The plaintiffs
claim that the rule prevents non-bank ATM operators from
attracting customers through lower prices, allegedly in violation
of Section 1 of the Sherman Act. The complaint requests
injunctive relief, attorneys' fees, and damages "in an amount not
presently known, but which is tens of millions of dollars, prior
to trebling."
On January 10, 2012, plaintiffs filed an amended class action
complaint against the same defendants. Like the original
complaint, the amended complaint alleges that the ATM access fee
rule prevents non-bank ATM operators from attracting customers to
use other networks in violation of Section 1 of the Sherman Act.
The amended complaint also alleges that Visa's rule has enabled
Visa to charge artificially high network fees for ATM
transactions, to compensate ATM operators inadequately, and to
compensate member banks excessively. Plaintiffs request
injunctive relief, attorneys' fees, and treble damages.
On January 30, 2012, Visa, MasterCard, and the defendant financial
institutions filed motions to dismiss the complaints in the
National ATM Council class action.
Headquartered in San Francisco, California, Visa Inc. --
http://www.corporate.visa.com-- a payments technology company,
engages in the operation of retail electronic payments network
worldwide. It facilitates commerce through the transfer of value
and information among financial institutions, merchants,
consumers, businesses, and government entities. The company owns
and operates VisaNet, a global processing platform that provides
transaction processing services. The Company provides its payment
platforms under the Visa, Visa Electron, PLUS, and Interlink brand
names.
VISA INC: Awaits Ruling on Columbia Consumer Suit Dismissal Bids
----------------------------------------------------------------
Visa Inc. is awaiting a ruling on its motion to dismiss consumer
class action lawsuits pending in Columbia, according to the
Company's July 27, 2012, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended June 30, 2012.
In October 2011, three consumer class actions were filed against
Visa and MasterCard in the U.S. District Court for the District of
Columbia. They were filed by Stoumbos, Bartron and Genese
respectively. One case, Genese, adds three financial institutions
as defendants. All three cases purport to represent classes of
consumers in claims brought under Section 1 of the Sherman Act.
Stoumbos adds claims under antitrust and/or consumer protection
statutes in certain states and the District of Columbia, and
Bartron adds claims on behalf of sub-classes of consumers under
such state laws. The consumer suits seek injunctive relief,
attorneys' fees, and treble damages; Bartron and Stoumbos also
seek restitution where available under state law.
On December 1, 2011, the plaintiff in the Stoumbos case filed a
corrected complaint, asserting the same claims as in the original
complaint.
On January 10, 2012, the Bartron and Genese complaints were
combined into a single amended complaint, now captioned Mackmin.
The amended complaint challenges the same ATM access fee rules and
names Visa, MasterCard, and three financial institutions as
defendants, but the putative class representatives are different
from those in the original Bartron and Genese complaints. Mackmin
purports to represent classes and sub-classes of consumers in
claims brought under Section 1 of the Sherman Act and the
antitrust and/or consumer protection statutes in certain states
and the District of Columbia. The amended complaint seeks
injunctive relief, attorneys' fees, treble damages, and
restitution where available under state law.
On January 30, 2012, Visa, MasterCard, and the defendant financial
institutions filed motions to dismiss the complaints in the
consumer class actions.
Headquartered in San Francisco, California, Visa Inc. --
http://www.corporate.visa.com-- a payments technology company,
engages in the operation of retail electronic payments network
worldwide. It facilitates commerce through the transfer of value
and information among financial institutions, merchants,
consumers, businesses, and government entities. The company owns
and operates VisaNet, a global processing platform that provides
transaction processing services. The Company provides its payment
platforms under the Visa, Visa Electron, PLUS, and Interlink brand
names.
WELTMAN WEINBERG: Accused of Illegal Debt Collection in Calif.
--------------------------------------------------------------
Ronaldo Suelen, on behalf of himself and all others similarly
situated v. Weltman, Weinberg & Reis Co., LPA, Case No. 3:12-cv-
04720 (N.D. Calif., September 10, 2012) accuses Weltman of
violating the Fair Debt Collection Practices Act and the
California Fair Debt Collection Practices Act with respect to Mr.
Suelen's credit transaction with Chase Bank.
The parties identified on the privacy notice sent by Weltman to
collect his debt are unknown to him, Mr. Suelen alleges. He adds
that Weltman's collection letters fail, among other things, to
disclose the name of the client that retained it to collect the
alleged account.
Mr. Suelen is a resident of San Francisco County, California.
Weltman Weinberg is an out-of-state entity that collects debts
using the mail and telephone.
The Plaintiff is represented by:
Irving L. Berg, Esq.
THE BERG LAW GROUP
145 Town Center, PMB 493
Corte Madera, CA 94925
Telephone: (415) 924-0742
Facsimile: (415) 891-8208
E-mail: irvberg@comcast.net
WHOLE FOODS: Recalls Cheese in 21 States and Washington, D.C.
-------------------------------------------------------------
Whole Foods Market announces that it is recalling ricotta salata
sold in 21 states and Washington, D.C. that came from its supplier
Forever Cheese Inc. of Long Island City, New York. Forever Cheese
recalled this cheese product because it may be contaminated with
Listeria monocytogenes. Listeria monocytogenes is an organism
which can cause serious and sometimes fatal infections in young
children, frail or elderly people, and others with weakened immune
systems. Although healthy individuals may suffer only short-term
symptoms such as high fever, severe headache, stiffness, nausea,
abdominal pain and diarrhea, Listeria infection can cause
miscarriages and stillbirths among pregnant women.
The recalled Ricotta Salata Frescolina brand cheese was cut into
wedges, packaged in clear plastic wrap and sold with a Whole Foods
Market scale label using PLU 293427. All "sell by" dates through
October 2 are affected. Fourteen illnesses have been reported
which may be associated with the Frescolina recall.
Pictures of the recalled products' labels are available at:
http://www.fda.gov/Safety/Recalls/ucm319305.htm
Whole Foods Market stores in the following states are affected by
this recall:
1. Alabama (1 store)
2. Arizona (2 stores)
3. California (2 stores)
4. Colorado (2 stores)
5. Florida (5 stores)
6. Georgia (4 stores)
7. Kansas (1 store)
8. Kentucky (1 store)
9. Maryland (6 stores)
10. North Carolina (7 stores)
11. New Jersey (2 stores)
12. New Mexico (2 stores)
13. New York (2 stores)
14. Ohio (2 stores)
15. Oregon (6 stores)
16. Pennsylvania (5 stores)
17. South Carolina (1 store)
18. Tennessee (3 stores)
19. Utah (1 store)
20. Virginia (6 stores)
21. Washington (6 stores)
22. Washington, D.C. (3 stores)
Signage is posted in Whole Foods Market stores to notify customers
of this recall. Customers who have purchased this product from
Whole Foods Market may return it to the store for a full refund,
and call with questions 512-542-0060 Monday through Friday, 8:00
a.m. to 5:00 p.m. Central Standard Time.
ZELTIQ AESTHETICS: Consolidated Securities Suit Pending in Calif.
-----------------------------------------------------------------
A consolidated securities class action lawsuit against ZELTIQ
Aesthetics, Inc. is pending in California, according to the
Company's August 7, 2012, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2012.
On March 13, 2012, an alleged purchaser of the Company's publicly
traded common stock, filed a securities class action in the
Superior Court of California, County of Alameda, entitled Marcano
v. Nye, et al., Case No. RG12621290. The complaint alleges that
the Company made false and misleading statements or omitted to
state facts necessary to make the disclosures not misleading in
its Form S-1, and the amendments thereto, issued in connection
with the Company's initial public offering. The claims are
asserted under Sections 11 and 15 of the Securities Act of 1933.
On March 15, 2012, April 3, 2012, and May 24, 2012, three
additional and substantially similar lawsuits were filed in the
same court, some adding the Company's underwriters as defendants.
All four cases were consolidated and a consolidated complaint was
deemed operative. The Company believes the lawsuit to be without
merit and intends to vigorously defend it. The Company believes
there is no sufficient evidence to indicate that a probable loss
had been incurred as of June 30, 2012.
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania,
USA, and Beard Group, Inc., Frederick, Maryland USA. Noemi Irene
A. Adala, Joy A. Agravante, Ivy B. Magdadaro, Psyche A. Castillon,
Julie Anne L. Toledo, Christopher Patalinghug, Frauline Abangan
and Peter A. Chapman, Editors.
Copyright 2012. All rights reserved. ISSN 1525-2272.
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