/raid1/www/Hosts/bankrupt/CAR_Public/121120.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, November 20, 2012, Vol. 14, No. 230
Headlines
ALASKA AIRLINES: Emerson Poynter Files Class Action
AMERICAN GREETINGS: Faces Suit Over Weiss' Acquisition Proposal
AMERICAN GREETINGS: Baker, Collier Suits Proceeding in Ohio Ct.
AMERICAN HONDA: Recalls 150,600 Portable Generators
ANGIODYNAMICS INC: "Nazarenko" Suit Terminated in October
AU OPTRONICS: Wis. Consumers Have Until Dec. 6 to File LCD Claims
BP: To Pay $4.5 Billion in Federal Charges Over Oil Spill
BROCADE COMMS: Court Sets Dec. 14 Final Hrg. on "Knee" Suit Deal
CACHE CACHE: Says Tip-Pool Class Action Lacks Merit
CARMAX INC: Appeal Challenging Arbitration in Fowler Suit Pending
CENTRAL EUROPEAN: Four Class Suits Consolidated in N.J. Court
CHICAGO SCHOOL: Students Sue Over False APA Accreditation
CINTAS CORP: Appeals in Discrimination Suits Still Pending
DEERE & CO: Recalls 4,340 Utility Vehicles With Kawasaki Engines
DIGITALGLOBE INC: Signs MOU to Settle Suits Over GeoEye Merger
DOLAN NORTHWEST: Recalls 8,000 Ceiling-Mounted Light Fixtures
IMMUCOR INC: Antitrust Class Settlement Gets Court's Final Nod
IMPERIAL HOLDINGS: Consolidated Securities Suit Pending in Fla.
JERSEY CENTRAL: Sued Over Handling of Superstorm Sandy
KAWASAKI MOTORS: Recalls 210T Lawn Mower Engines Due to Fire Risk
KAWASAKI MOTORS: Recalls 55T Fuel Filters and 1.2T TUNE-UP KITS
MASTERCARD INC: "Attridge" Suit Still Pending in California
MASTERCARD INC: Awaits Order on Bid to Junk ATM Surcharges Suits
MASTERCARD INC: Calif. Suit Parties Seek Approval of Revised Deal
MASTERCARD INC: April 2013 Class Cert. Hearing in B.C. Suit Set
MICROSOFT: Sued Over False Claims on Surface RT Tablets
NEOSTEM INC: Reached Tentative Settlement in "Schumacher" Lawsuit
NEW ORIENTAL: Defends Four ADS-Related Suits in N.Y. & Calif.
PIEDMONT OFFICE: Agrees to Settle Maryland Suit for $4.9MM
PIEDMONT OFFICE: Agrees to Settle Ga. Securities Suit for $2.6MM
PRINCIPAL FINANCIAL: Appeal in "Fairmount" Suit Still Pending
PRINCIPAL FINANCIAL: Still Defends "Cruise/Mullaney" Class Suit
SAN FRANCISCO, CA: Faces Class Action Over Public Nudity Ban
SIRIUS XM: Sued Over Illegal Use of Motor Vehicle Registrations
SLOVENIA: Soldiers' Trade Union Files Class Action
SPEARMINT RHINO: Court Approves $13 Million Class Suit Settlement
SPRINT COMMS: Judge Approves $3.79MM Class Action Settlement
STARBUCKS: Baristas' Class Action Over Tipping Policy Resolved
TIME WARNER: Faces Class Action in New York Over Modem Fee
TITANIUM METALS: Being Sold to Precision for Too Little, Suit Says
TRUSTWAVE CORP: Faces Suit Over South Carolina Tax System Hack
TURKANA FOOD: Recalls "Turkana Valley" Brand Dried Apricots
UBER: Faces Suit For Creating Unfair Business Competition
WELLCARE HEALTH: Still Subject to Contingencies Under Suit Deal
WILLIAMS COS: Awaits April 2013 Trial on FHRA and WAPI Claims
WILLIAMS COS: Continues to Defend Suits Over Gas Price Indices
XEROX CORP: Awaits Summ. Judgment Bid Ruling in Securities Suit
*********
ALASKA AIRLINES: Emerson Poynter Files Class Action
---------------------------------------------------
Emerson Poynter LLP, with offices in Little Rock, Arkansas and
Houston, Texas, on Nov. 14 disclosed that it filed a class action
lawsuit on behalf of Alaska Airlines flight attendants who have
experienced numerous health problems as a result of wearing their
uniform.-
Last year, the airline issued new uniforms to its flight
attendants. The new uniforms were manufactured by Twin Hill (a
division of Men's Wearhouse, and have been found to contain
Disperse Orange 37/76, which is a dye that has been banned from
use in apparel products, because Disperse Orange 37/76 is a known
skin and respiratory irritant. Almost immediately after the new
Twin Hill uniforms were issued to the flight attendants, they
began to experience skin symptoms -- rash, hives, redness, or
itching. A growing number of attendants are also reporting
abnormal thyroid functions, hair loss, eye
irritation/inflammation, fatigue, shortness of breath, congestion,
coughing and asthma.
While the uniforms continue to be tested for other toxic
substances, it is clear the new uniforms pose a substantial health
threat to Alaska Airlines' flight attendants. In fact, more than
400 flight attendants have reported significant health issues
while wearing the new uniforms to their union, the Association of
Flight Attendants-CWA (or "AFA"). Even though affected attendants
have been permitted to wear their old uniform or even civilian
clothing, they are still experiencing the same health issues,
because they work in obviously close quarters with other flight
attendants wearing the new uniform containing Disperse Orange
37/76. For this reason, the class action complaint filed
yesterday on behalf of Alaska Airline flight attendants in United
States District Court, Central District of California, seeks to
compel a total recall of the new uniforms. The AFA has also
demanded a recall.
On November 9, 2012, the AFA issued a press release reporting the
hundreds of complaints filed by Alaska Airlines' flight attendants
about the new uniforms causing them to fall ill. In the press
release, the AFA demanded a recall of the new Twin Hill uniforms
and said: "For the safety and health of Alaska Flight Attendants,
we are demanding that management work with us to immediately
recall these hazardous uniforms and issue new pieces that are safe
alternatives and not harmful to crewmembers and our families."
If you have experienced similar problems with your company
uniform, and you believe it was also manufactured by Twin Hill,
please consider contacting Emerson Poynter LLP. You may either
contact Emerson Poynter LLP through the firm's Web site or call.
Additionally, Emerson Poynter LLP has set up a Web site for flight
attendants of any airline experiencing these or similar medical
issues to contact the firm and seek representation.
Emerson Poynter LLP has a national and international class-action
legal practice with offices in Little Rock, Arkansas and Houston,
Texas. Emerson Poynter handles complex commercial, environmental
and consumer protection litigation throughout the United States.
CONTACT: John G. Emerson, Esq.
Scott E. Poynter, Esq.
Emerson Poynter LLP
500 President Clinton Ave, Suite 305
Little Rock, AR 72201
Telephone: (501) 907-2555
Tel Toll Free: (800) 663-9817
E-mail: flightuniform@emersonpoynter.com
Web site: http://www.emersonpoynter.com
AMERICAN GREETINGS: Faces Suit Over Weiss' Acquisition Proposal
---------------------------------------------------------------
American Greeting Corporation is defending itself against a class
action complaint relating to a non-binding acquisition proposal of
the Company's outstanding common shares, according to the
Company's October 3, 2012, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended August
24, 2012.
On September 26, 2012, American Greeting Corporation announced
that its Board of Directors had received a non-binding proposal
dated September 25, 2012 from Zev Weiss, its Chief Executive
Officer, and Jeffrey Weiss, its President and Chief Operating
Officer, on behalf of themselves and certain other members of the
Weiss family and related parties, to acquire all of the Company's
outstanding Class A and Class B common shares not currently owned
by them for $17.18 per share. On September 27, 2012, a
shareholder filed a purported class action and shareholder
derivative lawsuit in the Court of Common Pleas in Cuyahoga
County, Ohio entitled, Dolores Carter v. Zev Weiss, et al.,
against American Greetings Corporation and all of the members of
the Company's Board of Directors alleging that the Directors
breached their fiduciary duties to the Company and its
shareholders. The plaintiff seeks to have the court declare that
the Directors breached their fiduciary duties, rescind any
implementation of the non-binding proposal, and payment for
attorneys' fees and expenses.
Based in Brooklyn, Ohio, American Greetings Corporation is a
greeting card company. It sells paper greeting cards, electronic
greeting cards, party products (such as wrapping papers and
decorations), and electronic expressive content (e.g., ringtones
and images for cell phones). In addition to the American
Greetings brand, the Company owns the Carlton Cards, Tender
Thoughts and Gibson brands of greeting cards.
AMERICAN GREETINGS: Baker, Collier Suits Proceeding in Ohio Ct.
---------------------------------------------------------------
Two class action complaints against American Greeting Corporation
over certain insurance policies are ongoing in parallel
proceedings in an Ohio federal court, according to the Company's
October 3, 2012, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended August 24, 2012.
American Greetings Corporation is a defendant in two putative
class action lawsuits involving corporate-owned life insurance
policies: one filed in the Northern District of Ohio on January
11, 2012 by Theresa Baker as the personal representative of the
estate of Richard Charles Wolfe (the "Baker Litigation"); and the
other filed in the Northern District of Oklahoma on October 1,
2010 by Keith Collier as the personal representative of the estate
of Ruthie Collier (the "Collier Litigation").
In the Baker Litigation, the plaintiff claims that the Company (1)
misappropriated its employees' names and identities to benefit
itself; (2) breached its fiduciary duty by using its employees'
identities and personal information to benefit itself; (3)
unjustly enriched itself through the receipt of corporate-owned
life insurance policy benefits, interest and investment returns;
and (4) improperly received insurance policy benefits for the
insurable interest in Mr. Wolfe's life. The plaintiff seeks
damages in the amount of all pecuniary benefits associated with
the subject Insurance Policies, including investment returns,
interest and life insurance policy benefits that American
Greetings Corporation received from the deaths of the former
employees whose estates form the putative class. The plaintiff
also seeks punitive damages, pre- and post-judgment interest,
costs and attorney's fees. On April 30, 2012, the Company filed a
Motion to Dismiss the Complaint. Shortly thereafter, the plaintiff
filed a Motion for Class Certification. The court stayed the
plaintiff's Motion for Class Certification until the Motion to
Dismiss was decided.
In the Collier Litigation, the plaintiff claims that the Company
did not have an insurable interest when it obtained the subject
Insurance Policies and wrongfully received the benefits from those
policies. The plaintiff seeks damages in the amount of policy
benefits received by the Company from the subject Insurance
Policies, as well as attorney's fees and costs and interest. On
April 2, 2012, plaintiff filed its First Amended Complaint, adding
misappropriation of employee information and breach of fiduciary
duty claims as well as seeking punitive damages. On April 20,
2012, the Company moved to transfer the Collier Litigation to the
Northern District of Ohio. On July 6, 2012, the court granted the
Company's Motion to Transfer and transferred the case to the
Northern District of Ohio, where the Baker Litigation is pending.
On September 19, 2012, the Ohio federal court ordered the Baker
plaintiff to file an amended complaint and then denied the
Company's Motion to Dismiss the Baker Litigation as moot and
without prejudice. On October 1, 2012, the plaintiff filed an
Amended Complaint. As requested by the court, the parties will
file a joint proposed scheduling order, setting the Collier and
Baker Litigations on parallel tracks. The same law firm
represents the individual plaintiffs in the Collier and Baker
matters.
Class certification has not been decided in either of these cases.
The Company believes the plaintiffs' allegations in these lawsuits
are without merit and intend to continue to defend the actions
vigorously. The Company does not believe that the impact of the
lawsuit, if any, will have a material adverse effect on our
financial position, liquidity or results of operations, although
the impact could be material to its operating results for any
particular period, depending, in part, upon the operating results
for such period.
Based in Brooklyn, Ohio, American Greetings Corporation is a
greeting card company. It sells paper greeting cards, electronic
greeting cards, party products (such as wrapping papers and
decorations), and electronic expressive content (e.g., ringtones
and images for cell phones). In addition to the American
Greetings brand, the Company owns the Carlton Cards, Tender
Thoughts and Gibson brands of greeting cards.
AMERICAN HONDA: Recalls 150,600 Portable Generators
---------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
American Honda Motor Co. Inc., of Torrance, California, announced
a voluntary recall of about 150,600 Portable Generators.
Consumers should stop using recalled products immediately unless
otherwise instructed. It is illegal to resell or attempt to
resell a recalled consumer product.
The generator's fuel hose can leak, posing fire and burn hazards.
Honda is aware of four incidents of fuel leaks. No fires or
injuries have been reported.
This recall involves Honda gasoline-powered portable generators
with model number EU2000i and serial numbers EAAJ-2260273 through
EAAJ-2485025. The generators are black and red in color or have a
camouflage design. They measure about 20 inches long by 11 1/2
inches wide by 16 1/2 inches tall. "Honda," "EU converter" and
the model number 2000i are printed on the side of the generator.
"Companion" is printed on the side of some EU2000i models. The
serial number is located on the lower right side, rear corner of
the generator. Pictures of the recalled products are available
at: http://www.cpsc.gov/cpscpub/prerel/prhtml13/13042.html
The recalled products were manufactured in Japan and sold at Honda
Power Equipment dealers, Camping World, Gander Mountain, Grainger,
Hertz Rental, John Deere, National Pump & Compressor, Northern
Tool, Scheels Sporting, Sportsman's Warehouse, Sunbelt Rentals,
True Value, United Rentals, White Cap and Wholesale Sports store
nationwide and online from October 2011 through September 2012 for
between $1,150 and $1,400.
Consumers should immediately stop using the recalled generators
and contact the nearest Honda Power Equipment dealer to schedule a
free inspection and repair. American Honda may be reached at
(888) 888-3139, 8:30 a.m. to 5:00 p.m. East Monday through Friday,
or online at http://powerequipment.honda.com/and click on
"Recalls and Updates" under "Service and Support" for more
information.
ANGIODYNAMICS INC: "Nazarenko" Suit Terminated in October
---------------------------------------------------------
On October 9, 2012, the plaintiff in the action captioned Tara
Nazarenko v. AngioDynamics, Inc. et al, voluntarily dismissed the
Complaint, without prejudice, according to the Company's October
12, 2012, Form 8-K filing with the U.S. Securities and Exchange
Commission. The Company did not enter into any settlement
agreement or agree to pay any compensation in connection with the
voluntary dismissal.
The Nazarenko case is a shareholder class action complaint filed
on September 27, 2012, in the Supreme Court of the State of New
York, County of Albany.
The Complaint purports to allege claims against AngioDynamics,
Inc. and its directors for alleged breaches of fiduciary duties in
connection with the disclosures made regarding Proposal 3 and
Proposal 5 in AngioDynamics' Proxy Statement for its October 22,
2012 Annual Meeting of Stockholders, as filed with the Securities
and Exchange Commission on September 10, 2012. Proposal 3 seeks
the approval of AngioDynamics' stockholders for a proposed
amendment to AngioDynamics' 2004 Stock and Incentive Award Plan to
increase the total number of shares of common stock reserved for
issuance under the plan by 1,000,000 shares. Proposal 5 seeks a
"Say-on-Pay" non-binding advisory vote approving the compensation
of AngioDynamics' named executive officers. The Complaint seeks
declaratory and injunctive relief and unspecified damages and
costs. On October 3, 2012, plaintiffs filed a motion seeking
expedited discovery and an order temporarily enjoining the
shareholder vote. AngioDynamics had said the Complaint is without
merit and intends to vigorously defend against the claims
asserted.
AU OPTRONICS: Wis. Consumers Have Until Dec. 6 to File LCD Claims
------------------------------------------------------------------
The Associated Press reports that if you own a television or a
computer monitor, you might have some money coming.
Wisconsin attorney general J.B. Van Hollen says those who bought a
TV, monitor or laptop with an LCD flat screen have about three
weeks left to claim part of a settlement in a class action
lawsuit.
The billion dollar settlement was reached with 10 electronics
manufacturers who were accused of conspiring to raise prices for
the LCD screens. The settlement pertains to merchandise purchased
between 1999 and 2006.
Mr. Van Hollen says eligible consumers have until December 6 to
file a claim.
They'll have to answer a few questions about the merchandise they
bought.
The amount of each payment will depend upon the number of products
purchased and the number of claims filed.
No receipts or other documents are required.
BP: To Pay $4.5 Billion in Federal Charges Over Oil Spill
---------------------------------------------------------
Barbara Leonard at Courthouse News Service reports that BP will
pay $4.5 billion and plead guilty to felonies to settle federal
charges over the 2010 oil disaster that resulted in 11 deaths, the
company said on Nov. 15.
The deal reportedly marks the largest penalty of its kind,
toppling an honor previously held by Pfizer after it agreed to a
$1.2 billion fine in 2009.
"As part of the resolution, BP has agreed to plead guilty to 11
felony counts of Misconduct or Neglect of Ships Officers relating
to the loss of 11 lives; one misdemeanor count under the Clean
Water Act; one misdemeanor count under the Migratory Bird Treaty
Act; and one felony count of obstruction of Congress," according
to a statement on BP's Web site.
BP Chairman Carl-Henric Svanberg told shareholders in a statement
that the resolution "removes two significant legal risks and
allows us to vigorously defend the company against the remaining
civil claims."
Executives of the London-based company allegedly lied to Congress
about the size of the April 20, 2010, spill, which dumped millions
of gallons of oil into the Gulf of Mexico.
The $4.5 billion figure includes a $1.2 billion criminal fine, a
payment of nearly $2.4 billion to the National Fish & Wildlife
Foundation, and a $350 million payment to the National Academy of
Sciences. All of the amounts are payable over five years. The
Securities and Exchange Commission will collect $525 million of
the settlement over a period of three years.
Claims against BP still outstanding include "federal civil claims,
including those arising under the Clean Water Act," according to
the company's statement.
BP says it also still faces "federal and state Natural Resource
Damages claims; private civil claims pending in MDL 2179 that were
not covered by the settlement with the Plaintiffs' Steering
Committee (PSC); private securities claims pending in MDL 2185;
state economic loss claims; and miscellaneous private civil claims
pending in other federal and state courts."
Back in March, BP reached a $7.8 billion settlement to compensate
116,000 Gulf Coast fishermen, hotel owners, restaurant workers and
seafood processors who lost income because of the Deepwater
Horizon disaster.
U.S. District Judge Carl Barbier in New Orleans has been
overseeing the sprawling claims over the spill.
Rep. Ed Markey, D-Mass, has been the lead congressional
investigator into the spill with the Natural Resources Committee.
He called the settlement "appropriate" in a statement on Nov. 8.
"People died, BP lied to Congress, and millions of barrels of oil
poured into the Gulf," Mr. Markey said. "This steep cost to BP
will provide the Gulf coast some of the funds needed to restore
the region, and will hopefully deliver some comfort and closure to
the families and businesses affected by the spill."
BROCADE COMMS: Court Sets Dec. 14 Final Hrg. on "Knee" Suit Deal
----------------------------------------------------------------
On September 28, 2012, the California Superior Court, County of
Santa Clara, issued an order preliminarily approving the proposed
settlement between the Company and the named plaintiff in the
matter captioned Stephen Knee vs. Brocade Communications Systems,
Inc. (Case No.: 1-12-CV-220249), according to Brocade
Communication Systems, Inc.'s October 5, 2012, Form 8-K filing
with the U.S. Securities and Exchange Commission.
A hearing to determine whether the Court should issue an order of
final approval of the settlement has been scheduled for December
14, 2012, at 9:00 a.m. at the Superior Court of the State of
California, County of Santa Clara, Civil Division, located at 191
N. First Street, San Jose, California.
Pursuant to the Court's order, any objections to the settlement
must be filed in writing with the Court by no later than ten (10)
calendar days prior to that final settlement hearing scheduled for
December 14, 2012.
The settlement relates to a proposal in Brocade's proxy statement
for its 2012 Annual Meeting to increase the number of shares
available for grant under Brocade's 2009 Stock Plan. Brocade's
proxy statement for the 2012 Annual Meeting was filed with the
Securities and Exchange Commission on February 24, 2012 and
supplemental disclosures regarding the proposal were filed on
April 12, 2012. Brocade's annual meeting of stockholders was held
on April 12, 2012 and was adjourned until April 20, 2012 with
respect to the vote on Brocade's proposal to increase the number
of shares available for grant under the 2009 Stock Plan. At the
reconvened session of the Annual Meeting, Brocade's stockholders
approved the proposal.
Brocade Communications Systems, Inc. is an American multinational
corporation and a technology company specializing in data and
storage networking products. The Company's product portfolio
spans across Enterprise Ethernet (LAN, WLAN) Switches, WAN
(Internet) Routers, SAN Switches, Application Delivery
Controllers, Network Security Appliances, Ethernet/Storage Network
Adapters and PHY Transceivers. Founded in 1995, the Company is
headquartered in San Jose, California, USA.
CACHE CACHE: Says Tip-Pool Class Action Lacks Merit
---------------------------------------------------
Rick Carroll, writing for The Aspen Times, reports that the hiring
of an illegal immigrant has emerged as an issue in a class-action
lawsuit over an Aspen restaurant's tipping pool.
Faced with allegations that it runs an illegal tipping pool, Cache
Cache claims that the federal suit lacks merit because its sole
plaintiff so far, Sandro Torres, entered the United States as an
illegal immigrant and used phony documentation to get a job at the
upscale restaurant.
Mr. Torres, who once bused tables at the downtown restaurant, sued
Cache Cache in January. The suit was filed in the U.S. District
Court of Denver by Fort Collins attorney Brian Gonzales, who has
sued other restaurants throughout Colorado making similar
accusations.
Depositions, including those of Mr. Torres and Cache Cache owners
Jodi Larner and Chris Lanter, have been taken. The discovery
deadline was Nov. 1; a jury trial is set for June.
Transcripts from the July 24 deposition of Mr. Torres show he
admitted to entering the country illegally from Mexico. He also
conceded, when deposed, to working at three other Aspen businesses
illegally.
According to the deposition transcripts, Mr. Torres arrived in the
U.S. in 2000 and worked various jobs in the Roaring Fork Valley.
He did not file state or federal income tax returns from 2000 to
2007, but in 2008, when he obtained legal status, he made good on
his back taxes, he said in a deposition.
Although Mr. Torres worked here illegally, his attorney has
contended in subsequent court filings that it's an "open secret"
that restaurants such as Cache Cache hire undocumented workers and
Torres' immigration status is not germane to his case.
The arguments underlie a motion pending before U.S. Judge Lewis T.
Babcock. Filed Oct. 8 by Cache Cache's attorney, Peter Thomas, of
Aspen, the motion says the suit has not achieved the class-action
status required to move forward and that Mr. Torres' allegations
are unsubstantiated and his credibility tainted.
Mr. Torres, the only Cache Cache worker who has accused the
restaurant of illegal tip pooling, has "hopes of profiting from
this period of ill-gotten employment," the motion says. He is the
sole plaintiff in the suit, which is seeking other workers
"similarly situated" as Mr. Torres to join the claim.
"Mr. Torres was hired by Cache Cache in 2004 where he worked until
2008. Mr. Torres provided Cache Cache with a counterfeit social
security card and submitted falsified paperwork to the federal
government in order to obtain employment with Cache Cache,"
Thomas, Cache Cache's attorney, wrote in a motion filed Oct. 8.
Mr. Gonzales, on behalf of Mr. Torres, who also worked at Cache
Cache from January 2011 to April 2011, when he had legal status,
conceded as much. But Mr. Torres' immigration status is not
relevant, Mr. Gonzales argued in a response to the Cache Cache
motion dated Oct. 28.
"It is an 'open secret' that the restaurant industry, including
Cache Cache, employs numerous undocumented workers," the response
says. "Nonetheless, Cache Cache impugns (Torres') credibility by
arguing that he worked illegally. This fact is irrelevant both to
issues of credibility and to the question of whether (Torres)
should be paid his earned wages."
During his deposition, Mr. Torres said Cache Cache management was
aware that he had a fake ID at the time of his hiring. And
Mr. Gonzales also suggested that employers can exploit illegal
immigrants by paying them less.
"If employers could use an employee's immigrant status to
undermine the (Fair Labor Standards Act) protections and
enforcement, employers would be further incentivized to capitalize
on what is perhaps the most attractive feature of such workers --
their willingness to work for less than the minimum wage," Mr.
Gonzales wrote in his response to Cache Cache's October motion.
Mr. Torres' complaint says he made less than minimum wage -- $4 to
$4.25. Paying less than minimum wage to regularly tipped employees
is a standard practice in the restaurant industry. But for
restaurants to take a tip credit against the minimum wage, they
must adhere to state labor laws, which allow for tip pools.
By Colorado law, Mr. Torres' suit alleges, the only employees who
can collect from a tip pool are "front of the house" workers such
as servers and hostesses. But at Cache Cache, such employees as
chefs, dishwashers and food preparers -- who were not regularly
tipped -- also participated in the tip pool, the suit says.
By doing so, Cache Cache violated the Colorado Wage Claim Act and
the federal Fair Labor Standards Act, the suit alleges.
Yet Cache Cache's October motion says it did not have a mandatory
tipping pool as Torres alleged.
"Mr. Torres' story depends upon believing his allegation that he
and all other wait staff were required to participate in a
mandatory tip pooling/sharing policy," the motion says. "The
undisputed facts belie his contention."
According to Cache Cache's motion, its tip-pooling policy has been
"proper and legal." That's because its servers pool their tips at
the end of the shift and share them with other restaurant workers
who helped provide customer service during the shift.
"These other employees include bartenders, bussers, and servers
who had performed host and other customer service functions during
the shift," the motion says. "Only employees who customarily
receive tips as part of their job duties and functions participate
in the tip pool."
Mr. Torres' suit also accuses Cache Cache's management of
receiving tips, another allegation the restaurant disputes. But
when Mr. Torres was deposed, he admitted that just one person in
management, the restaurant's head sommelier, received tips.
"Put simply, Mr. Torres has no cognizable claim that Cache Cache
has an illegal tip pooling policy requiring the improper pooling
of tips with management. The sommelier receives tips for his
services to customers," the motion says. "(Torres') suggestion
that this is improper lacks any factual or legal basis."
Mr. Torres also took another restaurant, Campo de Fiori, to
federal court earlier this year on the same allegations. That
suit has been settled for undisclosed terms, and it won't be
officially closed until January, according to court filings.
CARMAX INC: Appeal Challenging Arbitration in Fowler Suit Pending
-----------------------------------------------------------------
An appeal from a court ruling compelling arbitration of
plaintiffs' claims on an individualized basis in the consolidated
class action lawsuit against CarMax, Inc.'s subsidiaries remains
pending, according to the Company's October 10, 2012, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended August 2012.
On April 2, 2008, Mr. John Fowler filed a putative class action
lawsuit against CarMax Auto Superstores California, LLC and CarMax
Auto Superstores West Coast, Inc. in the Superior Court of
California, County of Los Angeles. Subsequently, two other
lawsuits, Leena Areso et al. v. CarMax Auto Superstores
California, LLC and Justin Weaver v. CarMax Auto Superstores
California, LLC, were consolidated as part of the Fowler case.
The allegations in the consolidated case involved: (1) failure to
provide meal and rest breaks or compensation in lieu thereof; (2)
failure to pay wages of terminated or resigned employees related
to meal and rest breaks and overtime; (3) failure to pay overtime;
(4) failure to comply with itemized employee wage statement
provisions; and (5) unfair competition/California's Labor Code
Private Attorney General Act. The putative class consisted of
sales consultants, sales managers, and other hourly employees who
worked for the company in California from April 2, 2004, to the
present. On May 12, 2009, the court dismissed all of the class
claims with respect to the sales manager putative class. On June
16, 2009, the court dismissed all claims related to the failure to
comply with the itemized employee wage statement provisions. The
court also granted CarMax's motion for summary adjudication with
regard to CarMax's alleged failure to pay overtime to the sales
consultant putative class. The plaintiffs appealed the court's
ruling regarding the sales consultant overtime claim. On May 20,
2011, the California Court of Appeal affirmed the court's ruling
in favor of CarMax. The plaintiffs filed a Petition of Review
with the California Supreme Court, which was denied. As a result,
the plaintiffs' overtime claims are no longer part of the case.
The claims currently remaining in the lawsuit regarding the sales
consultant putative class are: (1) failure to provide meal and
rest breaks or compensation in lieu thereof; (2) failure to pay
wages of terminated or resigned employees related to meal and rest
breaks; and (3) unfair competition/California's Labor Code Private
Attorney General Act. On June 16, 2009, the court entered a stay
of these claims pending the outcome of a California Supreme Court
case involving unrelated third parties but related legal issues.
Subsequently, CarMax moved to lift the stay and compel the
plaintiffs' remaining claims into arbitration on an individualized
basis, which the court granted on November 21, 2011. Plaintiffs
filed an appeal that is currently pending with the California
Court of Appeal. The Fowler lawsuit seeks compensatory and
special damages, wages, interest, civil and statutory penalties,
restitution, injunctive relief and the recovery of attorneys'
fees.
No updates were reported in the Company's latest Form 10-Q filing.
The Company is unable to make a reasonable estimate of the amount
or range of loss that could result from an unfavorable outcome in
these matters.
CENTRAL EUROPEAN: Four Class Suits Consolidated in N.J. Court
-------------------------------------------------------------
Four class action complaints alleging securities law violations
have been consolidated in a New Jersey federal court and are now
proceeding as In re Central European Distribution Corp. Securities
Litigation, according to the Company's October 5, 2012, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2012.
On October 24, 2011, a class action complaint titled Steamfitters
Local 449 Pension Fund vs. Central European Distribution
Corporation, et al., was filed in the United States District
Court, District of New Jersey on behalf of a putative class of all
purchasers of the Company's common stock from August 5, 2010
through February 28, 2011 against the Company and certain of its
officers. The complaint seeks unspecified money damages and
alleges violations of federal securities law in connection with
alleged materially false and misleading statements and/or
omissions regarding the Company business, financial results and
prospects in the Company's public statements and public filings
with the U.S. Securities & Exchange Commission for the second and
third quarters of 2010, relating to declines in the Company's
vodka portfolio, its need to take an impairment charge relating to
the deterioration in fair value of certain of its brands in Poland
and negative financial results from the launch of Zubrowka Biala.
Subsequent to the above complaint, a second, substantially similar
class action complaint titled Tim Schuler v. Central European
Distribution Corporation, et al., was filed in the same court. By
Order dated August 22, 2012, the Steamfitters action and the
Schuler action were consolidated and are now proceeding in the
District of New Jersey under the caption In re Central European
Distribution Corp. Securities Litigation.
On June 8, 2012, a purported securities fraud class action titled
Grodko v. Central European Distribution Corporation, et al., was
filed against the Company in the United States District Court for
the Southern District of New York. The plaintiff in the lawsuit,
who is suing purportedly on behalf of a class of all purchasers of
the Company's common stock between March 1, 2010 and June 4, 2012,
alleges that the Company made false and/or misleading statements
related to and/or failed to disclose that (1) the Company's
reported net sales in the years ended December 31, 2010 and 2011
were materially inflated; (2) as a result of a failure to account
for retroactive trade rebates provided to the customers of Russian
Alcohol, the Company anticipates restating its reported
consolidated net sales, operating profit and related accounts for
these periods; and (3) as a result of the foregoing, the Company's
statements were materially false and misleading at all relevant
times. On August 7, 2012, a second, substantially similar class
action complaint titled Puerto Rico System of Annuities and
Pension for Teachers v. Central European Distribution Corporation,
et al., was filed in the same court.
By Orders dated September 4, 2012, the Grodko action and the
Puerto Rico System of Annuities and Pension for Teachers action
were transferred to the United States District Court for the
District of New Jersey, where the actions have been consolidated
with the prior-pending cases in New Jersey and are proceeding
under the caption In re Central European Distribution Corp.
Securities Litigation. Objections by certain plaintiffs to the
consolidation of these actions are pending.
The Company intends to mount a vigorous defense to the claims
asserted. Although it believes the allegations in the class
action complaints are without merit, these types of lawsuits can
be protracted, time-consuming, distracting to management and
expensive and, whether or not the claims are ultimately
successful, could ultimately have an adverse effect on the
Company's business, operating results and cash flows.
CHICAGO SCHOOL: Students Sue Over False APA Accreditation
---------------------------------------------------------
William Dotinga at Courthouse News Service reports that students
claim in a class action that the Los Angeles campus of the Chicago
School of Professional Psychology recruited them by lying that it
was accredited by the American Psychological Association.
Miranda Jo Truitt and three other named plaintiffs sued the
Chicago School of Professional Psychology and its subsidiaries,
including TCS Global, in Superior Court. They allege fraud,
conspiracy, false advertising and consumer law violations.
Also named as defendants are the California Graduate Institute and
the school's national president Michelle Nealon-Woods and "lead
faculty" member of the Los Angeles campus, David Sitzer.
The students claim the Chicago School of Professional Psychology,
or TCS, was "ostensibly formed, organized and operated exclusively
for exempt purposes under section 501(c)(3) of the Internal
Revenue Code for the 'advancement of education and science,' but
in fact is being operated by its management team for the benefit
of private interests for financial profit and personal gain
through a network of interrelated companies and entities owned and
controlled by TCS. TCS's profit motive is best evidenced by the
fact that substantial funds totaling millions of dollars were
exchanged between TCS and a number of these interrelated companies
and entities from sources that included tuition payments from TCS
students, including plaintiffs and other 2008 cohorts and the
members of the class herein. Moreover, the misconduct of
defendants complained of herein was done for the purpose of
padding the roles to ensure the profitability of TCS's fledgling
Los Angeles campus."
The students say they enrolled at the L.A. campus during the fall
2008 semester, based on oral and written promises that the school
was accredited by the American Psychological Association.
At some point -- and continuing through June 2012 -- the
defendants changed their promises, and said that the campus would
be accredited before the 2008 class graduated, according to the
complaint.
The students say that attending an APA-accredited school is
essential to landing a job in the psychology field, and in
California, candidates who did not attend an accredited school
cannot sit for board certification. The process begins when a
school submits a "self-study" which is reviewed by the APA's
commission on accreditation and -- if accepted -- takes an average
of 18 months to complete the other steps.
TCS's Chicago campus has been accredited since 1987. But the
students claim that in the four years since the L.A. school
opened, the defendants have failed to take even the first steps
necessary for accreditation.
"At all times herein mentioned, TCS's Los Angeles Campus was in
fact a 'degree mill,' a dubious provider of educational offerings
or operations whose degrees and certificates may not even be
acknowledged by other institutions when students seek to transfer.
Similarly, prospective employers may not acknowledge degrees and
certificates from the Los Angeles Campus due to its lack of APA
accreditation, just like other Southern California professional
schools that are owned and operated by TCS-related entities that
are also 'degree mills,' such as the Santa Barbara and Ventura
Colleges of Law, where the California Bar passage rates for
graduates from these 'degree mills' is typically less than 10
percent," the students say in their complaint.
The students claim they were swayed from their original intentions
to attend the Chicago campus -- an accredited school -- by
defendant Ms. Nealon-Woods, who directed them to enroll in the
newly opened L.A. campus which was "'just like the Chicago Campus
program, only warmer.'"
The students say Ms. Nealon-Woods told them that the L.A. campus
was also APA-accredited.
They say they discovered that the Los Angeles school was not
accredited during orientation sessions with Ms. Woods-Nealon and
defendant Mr. Sitzer in 2008 and early 2009.
Both defendants repeatedly assured the students that the
accreditation process was "'well underway'" and would be finished
by the time they graduated, according to the complaint. The
students say instructors gave them the same story during monthly
meetings through June 27, 2012.
On that day, the students say, Mr. Sitzer and Ms. Woods-Nealon
sent them a letter admitting the truth.
"[T]hey disclosed, for the first time, that the Los Angeles Campus
had not even applied for APA accreditation, that the APA
accreditation process was not underway and more importantly, that
the Los Angeles Campus had no intention of even submitting its
self-study to the APA for at least several more semesters. . . .
Accordingly, plaintiffs and the members of the class learned for
the first time that defendants' prior representations and
assurances about the Los Angeles Campus's APA accreditation
efforts and progress were in fact false, known to be false by
defendants and that the Los Angeles Campus would never be APA
accredited by the time plaintiffs and the other 2008 Cohorts and
the members of the class graduated," the students say in their
complaint.
The students say they have incurred at least $30 million in
damages, including tuition, moving costs, impairment of their
professional careers and lost future earnings.
They are represented by Michael Reznick and Jennifer Del Toro of
Oak Parks, Calif.
CINTAS CORP: Appeals in Discrimination Suits Still Pending
----------------------------------------------------------
Cintas Corporation is a defendant in a purported class action
lawsuit, Mirna E. Serrano, et al. v. Cintas Corporation (Serrano),
filed on May 10, 2004, and pending in the United States District
Court, Eastern District of Michigan, Southern Division. The
Serrano plaintiffs alleged that Cintas discriminated against women
in hiring into various service sales representative positions
across all divisions of Cintas. On November 15, 2005, the Equal
Employment Opportunity Commission (EEOC) intervened in the Serrano
lawsuit. The Serrano plaintiffs seek injunctive relief,
compensatory damages, punitive damages, attorneys' fees and other
remedies. On October 27, 2008, the United States District Court
in the Eastern District of Michigan granted summary judgment in
favor of Cintas limiting the scope of the putative class in the
Serrano lawsuit to female applicants for service sales
representative positions at Cintas locations within the state of
Michigan. Consequently, all claims brought by female applicants
for service sales representative positions outside of the state of
Michigan were dismissed. Similarly, any claims brought by the
EEOC on behalf of similarly situated female applicants outside of
the state of Michigan have also been dismissed from the Serrano
lawsuit.
Cintas Corporation is a defendant in another purported class
action lawsuit, Blanca Nelly Avalos, et al. v. Cintas Corporation
(Avalos), which was filed in the United States District Court,
Eastern District of Michigan, Southern Division. The Avalos
plaintiffs alleged that Cintas discriminated against women,
African-Americans and Hispanics in hiring into various service
sales representative positions in Cintas' Rental division only
throughout the United States. The Avalos plaintiffs sought
injunctive relief, compensatory damages, punitive damages,
attorneys' fees and other remedies. The claims in Avalos
originally were brought in the lawsuit captioned Robert Ramirez,
et al. v. Cintas Corporation (Ramirez), filed on January 20, 2004,
in the United States District Court, Northern District of
California, San Francisco Division.
On May 11, 2006, the Ramirez and Avalos African-American, Hispanic
and female failure to hire into service sales representative
positions claims and the EEOC's intervention were consolidated for
pretrial purposes with the Serrano case and transferred to the
United States District Court for the Eastern District of Michigan,
Southern Division. The consolidated case was known as Mirna E.
Serrano/Blanca Nelly Avalos, et al. v. Cintas Corporation
(Serrano/Avalos). On March 31, 2009, the United States District
Court, Eastern District of Michigan, Southern Division entered an
order denying class certification to all plaintiffs in the
Serrano/Avalos lawsuits. Following denial of class
certification, the Court permitted the individual Avalos and
Serrano plaintiffs to proceed separately. In the Avalos case, the
Court dismissed the remaining claims of the individual plaintiffs
who remained in that case after the denial of class certification.
On May 11, 2010, Plaintiff Tanesha Davis, on behalf of all
similarly situated plaintiffs in the Avalos case, filed a notice
of appeal of the District Court's summary judgment order in the
United States Court of Appeals for the Sixth Circuit. The
Appellate Court has made no determination regarding the merits of
Davis' appeal. In September 2010, the Court in Serrano dismissed
all private individual claims and all claims of the EEOC and the
13 individuals it claimed to represent. The EEOC has appealed the
District Court's summary judgment decisions and various other
rulings to the United States Court of Appeals for the Sixth
Circuit. The Court of Appeals has not yet ruled on the EEOC's
appeal.
No further updates were reported in the Company's October 10,
2012, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended August 31, 2012.
Headquartered in Cincinnati, Ohio, Cintas Corporation is a
publicly traded company that operates more than 430 facilities
throughout North America. The Company provides specialized
services to businesses, including the design and manufacturing of
corporate identity uniform programs, entrance mats, restroom
supplies, promotional products, first aid and safety products,
fire protection services and document management services to
approximately 900,000 businesses.
DEERE & CO: Recalls 4,340 Utility Vehicles With Kawasaki Engines
----------------------------------------------------------------
About 4,340 Utility Vehicles were voluntarily recalled by
manufacturer of utility vehicles, Deere & Company of Moline,
Illinois, and manufacturer of engines, Kawasaki Motors Corp. USA
of Grand Rapids, Michigan, in cooperation with the CPSC.
Consumers should stop using the product immediately unless
otherwise instructed. It is illegal to resell or attempt to
resell a recalled consumer product.
The fuel filter can leak, posing a fire hazard.
No incidents or injuries have been reported.
This recall involves John Deere TH, TS and TX-model Gator(TM)
utility vehicles that have Kawasaki FE, FH and FJ series engines.
The model information is located on the vehicle's cargo box. Only
utility vehicles with the below serial numbers are included in
this recall. The serial number is on the vertical frame directly
below the driver's seat.
Serial Numbers:
--------------------------------------
1M04X2SJ++M070915 to 1M04X2SJ++M072247
1M04X2XC++M070040 to 1M04X2XC++M070213
1M04X2XD++M070314 to 1M04X2XD++M072731
1M06X4HD++M070049 to 1M06X4HD++M070372
Kawasaki Motors is recalling the filters used in these utility
vehicle engines, and lawn mower engines that use the recalled
filters, also. Pictures of the recalled products are available
at: http://www.cpsc.gov/cpscpub/prerel/prhtml13/13706.html
The recalled products were manufactured in the United States of
America and sold at John Deere dealers nationwide from November
2011 to August 2012 for between $6,600 and $9,400.
Consumers should stop using utility vehicles with the recalled
engines and contact a John Deere dealer to have the fuel filter
replaced. John Deere is contacting all registered owners of the
recalled utility vehicles directly. Deere and Company may be
reached at (800) 537-8233, from 8:00 a.m. to 6:00 p.m. Eastern
Time Monday through Friday, and Saturdays from 9:00 a.m. to 3:00
p.m. Eastern Time or http://www.johndeere.com/
DIGITALGLOBE INC: Signs MOU to Settle Suits Over GeoEye Merger
--------------------------------------------------------------
DigitalGlobe, Inc. entered into a memorandum of understanding to
settle merger-related lawsuits, according to the Company's October
31, 2012, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended September 30, 2012.
On July 22, 2012, DigitalGlobe entered into an Agreement and Plan
of Merger (the "Merger Agreement") with GeoEye, Inc. ("GeoEye"),
20/20 Acquisition Sub, Inc., a Delaware corporation and a wholly
owned subsidiary of DigitalGlobe, and WorldView, LLC, a Delaware
limited liability company and a wholly owned subsidiary of
DigitalGlobe. Under the terms of the Merger Agreement, GeoEye
common stockholders will have the right to elect to receive
either: (i) 1.137 shares of DigitalGlobe common stock and $4.10 in
cash, (ii) 100% of the consideration in cash ($20.27 per share)
or, (iii) 100% of the consideration in stock (1.425 shares of
DigitalGlobe common stock), for each share of GeoEye common stock
they own, with the amount of cash and stock subject to proration
depending upon the elections of GeoEye common stockholders, such
that the aggregate consideration mix reflects the ratio of 1.137
shares of DigitalGlobe common stock and $4.10 in cash per share of
GeoEye common stock. Accordingly, the aggregate consideration
pursuant to the Merger Agreement is a fixed amount of shares and
cash. DigitalGlobe expects to issue approximately 26.0 million
shares of common stock and pay $93.9 million to GeoEye's common
stockholders.
In July 2012, GeoEye and the GeoEye board of directors,
DigitalGlobe, 20/20 Acquisition Sub, Inc. and WorldView, LLC were
named as defendants in three purported class action lawsuits filed
in the United States District Court for the Eastern District of
Virginia. The lawsuits were brought on behalf of proposed classes
consisting of all public holders of GeoEye common stock, excluding
the defendants and, among others, their affiliates. The actions
were captioned: Behnke v. GeoEye, Inc., et al., No. 1:12-CV-826-
CMH-TCB, filed on July 26, 2012; Braendli v. GeoEye, Inc., et al.,
No. 1:12-CV-841-CMH-TRJ, filed on
July 30, 2012; and Crow v. Abrahamson, et al., No. 1:12-CV-842-
CMH-TCB, filed on July 30, 2012. On September 7, 2012, the Court
ordered the consolidation of the three actions. The consolidated
action is captioned: In re GeoEye, Inc., Shareholder Litigation,
Consol. No. 1:12-cv-00826-CMH-TCB. The Court's consolidation
order provided for, among other things, the appointment of the law
firms of Robbins Geller Rudman & Dowd LLP, Levi & Korsinsky LLP
and Finkelstein Thompson LLP as members of the Plaintiffs'
Executive Committee of Lead Counsel ("Lead Counsel") and the
setting of the defendants' response date to the amended complaint
as 30 days after its filing.
A corrected amended complaint was filed in the consolidated action
on September 24, 2012. The amended complaint contains allegations
that the GeoEye board of directors breached their fiduciary duties
by, among other things, failing to maximize stockholder value,
agreeing to preclusive deal protection measures and failing to
disclose certain information necessary to make an informed vote on
whether to approve the proposed merger. DigitalGlobe is alleged
to have aided and abetted these breaches of fiduciary duty. In
addition, the amended complaint contains allegations that the
GeoEye board of directors and DigitalGlobe violated Section 20(a)
and Section 14(a) of the Securities Exchange Act of 1934, and Rule
14a-9 promulgated thereunder, by the filing of a Registration
Statement allegedly omitting material facts and setting forth
materially misleading information. The consolidated action seeks,
among other things, a declaration that a class action is
maintainable, an injunction preventing the consummation of the
merger and an award of damages, costs and attorneys' fees.
On September 28, 2012, Lead Counsel filed a motion for expedited
discovery. On September 30, 2012, Lead Counsel made a
confidential settlement demand requesting additional disclosures
to address the alleged omissions raised in the amended complaint.
On October 9, 2012, following arm's-length negotiations, the
parties to the consolidated action entered into a memorandum of
understanding (the "MOU") to settle all claims asserted therein on
a class-wide basis. GeoEye and the GeoEye board of directors,
DigitalGlobe, 20/20 Acquisition Sub, Inc. and WorldView, LLC
entered into the MOU solely to avoid the costs, risks and
uncertainties inherent in litigation, and without admitting any
liability or wrongdoing. In connection with the MOU, DigitalGlobe
agreed to make additional disclosures in Amendment No. 1 to the
Registration Statement. The settlement set forth in the MOU
includes a release of all claims against defendants alleged in the
corrected amended complaint, and is subject to, among other items,
the completion of confirmatory discovery, execution of a
stipulation of settlement and court approval, as well as the
Merger becoming effective under applicable law. Payments made in
connection with the settlement, which are subject to court
approval, are not expected to be material to the combined company.
DOLAN NORTHWEST: Recalls 8,000 Ceiling-Mounted Light Fixtures
-------------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
importer, Dolan Northwest LLC, of Seattle, doing business as
Seattle Lighting, Globe Lighting, Builders Lighting and
Destination Lighting, and manufacturer, Dongguan Young Long
Electric Co. Ltd., announced a voluntary recall of about 8,000
Ceiling-Mounted Light Fixtures. Consumers should stop using
recalled products immediately unless otherwise instructed. It is
illegal to resell or attempt to resell a recalled consumer
product.
The fixture's socket wire insulation can degrade, leading to
charged wires becoming exposed, causing electricity to pass to the
metal canopy of the fixture. This poses a fire and electric shock
hazard to consumers.
The firm has received two reports of defective fixtures which
resulted in the home's Arc Fault Circuit Interrupter (AFCI)
tripping. No injuries have been reported to the firm.
This recall involves round ceiling-mounted light fixtures, satin
nickel or bronze in color with a domed alabaster glass shade. The
light fixture is 14 inches in diameter and 5.5 inches high and has
two sockets marked "BO AN" that take 75 watt bulbs. The light
fixtures were sold as Design Classics Model 562-09 and 562-30.
The brand name and model number are on the inside of the fixture
pan. Pictures of the recalled products are available at:
http://www.cpsc.gov/cpscpub/prerel/prhtml13/13039.html
The recalled products were manufactured in China and sold at
Builders Lighting, Globe Lighting, Seattle Lighting and online at
DestinationLighting.com from September 2008 through September 2009
for about $32.
Consumers should immediately stop using the recalled light
fixtures and return them to the place of purchase to obtain a free
replacement fixture and a $50 voucher, or contact the firm to
schedule a free home repair. Dolan Northwest LLC may be reached
at (888) 213-5758, from 9:00 a.m. to 5:00 p.m. Pacific Time Monday
through Friday; or e-mail flushmountrecall@seattlelighting.com,
flushmountrecall@globelighting.com,
flushmountrecall@builderslighting.com, or
flushmountrecall@destinationlighting.com; or online at
http://www.seattlelighting.com/,http://www.globelighting.com/,
http://www.builderslighting.com/,or
http://www.destinationlighting.com/
IMMUCOR INC: Antitrust Class Settlement Gets Court's Final Nod
--------------------------------------------------------------
Beginning in May 2009, a series of class action lawsuits was filed
against the Immucor Inc., Ortho-Clinical Diagnostics, Inc. and
Johnson & Johnson Health Care Systems, Inc. alleging that the
defendants conspired to fix prices at which blood reagents are
sold, asserting claims under Section 1 of the Sherman Act, and
seeking declaratory and injunctive relief, treble damages, costs,
and attorneys' fees. All of these actions make substantially the
same allegations, and were consolidated in the U.S. District Court
for the Eastern District of Pennsylvania. In January 2012,
Immucor entered into a settlement agreement with the plaintiff
class representatives in these actions pursuant to which the
Company paid $22.0 million into a qualified settlement trust fund
in April 2012.
In September 2012, the Court granted final approval of the
settlement, the Company disclosed in its October 10, 2012, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended August 31, 2012.
Under the settlement agreement, all potential class members
released the Company from the direct purchaser claims related to
the products and acts enumerated in the lawsuits, and the Company
was dismissed from the case with prejudice.
The $22.0 million is reflected in "certain litigation expenses" on
our consolidated statements of operations for the fiscal year
ended May 31, 2012.
Immucor, Inc. makes manual and automated analysis equipment used
by blood banks, hospitals, and clinical laboratories to test blood
prior to transfusions. Its traditional reagents are used to
manually test samples for blood type, group matching, and foreign
substance detection, while its Galileo, Galileo Echo, and Galileo
NEO automated instrumentation systems use traditional and
proprietary Capture reagents to perform multiple blood tests at
one time. Immucor sells its products primarily in North America,
Western Europe, and Japan. Immucor was taken private in 2011 by
equity firm TPG Capital for some $1.9 billion.
IMPERIAL HOLDINGS: Consolidated Securities Suit Pending in Fla.
---------------------------------------------------------------
A consolidated securities class action complaint designated as
Fuller v. Imperial Holdings et al. remains pending in Florida,
according to the Company's October 5, 2012, Form 10-K filing with
the U.S. Securities and Exchange Commission for the fiscal year
ended December 31, 2012.
Initially on September 28, 2011, the Company, and certain of its
officers and directors were named as defendants in a putative
securities class action filed in the Circuit Court of the 15th
Judicial Circuit in and for Palm Beach County, Florida, entitled
Martin J. Fuller v. Imperial Holdings, Inc. et al. Also named as
defendants were the underwriters of the Company's initial public
offering. That complaint asserted claims under Sections 11, 12
and 15 of the Securities Act of 1933, as amended, alleging that
the Company should have but failed to disclose in the registration
statement for its initial public offering purported wrongful
conduct relating to its life finance business which gave rise to
the U.S. Attorney's Office for the District of New Hampshire
(USAO) Investigation. On October 21, 2011, an amended complaint
was filed that asserts claims under Sections 11, 12 and 15 of the
Securities Act of 1933, based on similar allegations. On October
25, 2011, defendants removed the case to the United States
District Court for the Southern District of Florida.
On October 31, 2011, another putative class action case was filed
in the Circuit Court of the 15th Judicial Circuit in and for Palm
Beach County, Florida, entitled City of Roseville Employees
Retirement System v. Imperial Holdings, et al, naming the same
defendants and also bringing claims under Sections 11, 12 and 15
of the Securities Act based on similar allegations. On November
28, 2011, defendants removed the case to the United States
District Court for the Southern District of Florida. The
plaintiffs in the Fuller and City of Roseville cases moved to
remand their cases back to state court. Those motions were fully
briefed and argued, and a decision is pending.
On November 18, 2011, a putative class action case was filed in
the United States District Court for the Southern District of
Florida, entitled Sauer v. Imperial Holdings, Inc., et al, naming
the same defendants and bringing claims under Sections 11 and 15
of the Securities Act of 1933 based on similar allegations.
On December 14, 2011, another putative class action case filed in
United States District Court for the Southern District of Florida,
entitled Pondick v. Imperial Holdings, Inc., et al., naming the
same defendants and bringing claims under Sections 11, 12, and 15
of the Securities Act of 1933 based on similar allegations.
On February 24, 2012, the four putative class actions were
consolidated and designated: Fuller v. Imperial Holdings et al. in
the United States District Court for the Southern District of
Florida, and lead plaintiffs were appointed. The lead plaintiffs
had until November 5, 2012 to file an amended complaint.
In addition, the underwriters of the Company's initial public
offering have asserted that the Company is required by its
Underwriting Agreement to indemnify the underwriters' expenses and
potential liabilities in connection with the litigation.
The parties have been attending mediation, most recently on
September 7, 2012.
Imperial Holdings, Inc. operates in two reportable business
segments: life finance (formerly referred to as premium finance)
and structured settlements. In the life finance business, the
Company earns revenue/income from interest charged on loans, loan
origination fees, agency fees from referring agents, changes in
the fair value of life insurance policies that the Company
acquires and receipt of death benefits with respect to matured
life insurance policies it owns. In the structured settlement
business, the Company purchases structured settlement receivables
at a discounted rate and sells these receivables to third parties.
JERSEY CENTRAL: Sued Over Handling of Superstorm Sandy
------------------------------------------------------
Dino Flammia, writing for New Jersey 101.5, reports that twenty
New Jersey residents and businesses are suing Jersey Central Power
& Light for its handling of Superstorm Sandy. The Simon Law
Group, representing the irate plaintiffs, alleges breach of
contract, misconduct, negligence and consumer fraud.
The public utility company has been the focus of numerous
complaints from customers who had been left in the dark for days.
"These monopolistic public utilities have lost focus on providing
services to the people they serve," said Britt Simon, Managing
Partner of the Simon Law Group. "Instead, they are blinded by
profits, big executive salaries and greed."
Mr. Simon said JCP&L, owned and operated by Ohio-based FirstEnergy
Corp., "needs to do a better job."
Governor Chris Christie credited JCP&L for a job well done at a
press event last week, saying their performance improved since
Irene last year.
The utility's response came under strong scrutiny last August; it
was also the focus of legislative hearings.
As of 6:20 p.m. on Nov. 14, JCP&L had not seen the complaint and
could not comment.
ConEd, a utility company that handles much of New York City, was
recently named in a similar class action lawsuit in New York's
Westchester County Supreme Court.
KAWASAKI MOTORS: Recalls 210T Lawn Mower Engines Due to Fire Risk
-----------------------------------------------------------------
The U.S. Consumer Product Safety Commission and Health Canada, in
cooperation with Kawasaki Motors Corp. USA of Grand Rapids,
Michigan, announced a voluntary recall of about 210,000 Lawn Mower
Engines. Consumers should stop using recalled products
immediately unless otherwise instructed. It is illegal to resell
or attempt to resell a recalled consumer product.
The fuel filter can leak, posing a fire hazard.
Kawasaki Motors has received 110 reports of fuel leaks. No
injuries reported.
This recall includes Kawasaki FH, FR, FS and FX series engines
used in riding and wide area, walk-behind lawnmowers made and sold
under the following brand names: Ariens, Bad Boy Mowers, Big Dog,
Bob-Cat, Bush Hog, Country Clipper, Cub Cadet, Dixie Chopper,
Dixon, DR Power Equipment, Encore, Exmark, Ferris, Gravely,
Hustler, Husqvarna, Land Pride, SCAG, Simplicity, Snapper Pro,
Tiger Corp, Toro, Worldlawn and Woods. Engines may also have been
bought separately and used in other lawn mowers. Recalled engines
are 13 to 36 horsepower, air-cooled, v-twin engines. "Kawasaki"
and the model number are printed on the top of all of the engines.
In addition, the spec and serial numbers are printed on a label on
one side of the engine.
The following model, spec and serial numbers are included:
Brand(s) Model Spec. Serial Number Range
-------- ----- ----- ---------------------------
Ariens/Gravely FR691V AS19 FR691VB01958 - FR691VB51951
FR691V CS09 FR691VB01958 - FR691VB51951
FR730V AS15 FR730VA19372 - FR730VA61003
FR730V CS07 FS730VA18873 - FS730VA36464
FS481V BS22 FS481VA30837 - FS481VA73952
FS600V BS18 FS600VA08439 - FS600VA55651
FS691V CS08 FS691VA07498 - FS691VA13372
FX481V DS04 FX481VA00810 - FX481VA01191
FX481V DS04 FX481VA00810 - FX481VA01191
FX600V DS08 FX600VA14634 - FX600VA18373
FX691V DS04 FX691VA18538 - FX691VA29675
FX730V DS04 FX730VA13811 - FX730VA48607
FX730V DS04 FX730VA13811 - FX730VA48607
FX751V DS05 FX751VA24127 - FX751VA33598
FX850V DS07 FX850VA32209 - FX850VA42326
FX921V AS09 FX921VA07267 - FX921VA13450
Bad Boy Mowers FR651V AS19 FR651VB13474 - FR651VB64183
FR651V BS17 FR651VB13474 - FR651VB64183
FR730V AS16 FR730VA19372 - FR730VA61003
FS730V AS14 FS730VA18873 - FS730VA36464
FX850V AS15 FX850VA32209 - FX850VA42326
FX850V ES09 FX850VA32209 - FX850VA42326
Bob-Cat FR651V AS18 FR651VB13474 - FR651VB64183
FR691V AS18 FR691VB01958 - FR691VB51951
FS481V CS04 FS481VA30837 - FS481VA73952
FS541V BS08 FS541VA40673 - FS541VA74103
FS541V CS05 FS541VA40673 - FS541VA74103
FS541V CS08 FS541VA40673 - FS541VA74103
FS600V CS07 FS600VA08439 - FS600VA55651
FS600V CS08 FS600VA08439 - FS600VA55651
FX541V CS05 FX541VA00980 - FX541VA01063
FX600V CS05 FX600VA14634 - FX600VA18373
FX651V CS05 FX651VA16250 - FX651VA22022
FX691V CS06 FX691VA18538 - FX691VA29675
FX730V CS09 FX730VA13811 - FX730VA48607
FX801V DS08 FX801VA26410 - FX801VA35509
FX921V CS08 FX921VA07267 - FX921VA13450
FXT00V DS01 FXT00VA08783 - FXT00VA11119
FXT00V ES01 FXT00VA08783 - FXT00VA11119
Bush Hog FS691V CS09 FS691VA07498 - FS691VA13372
FX730V BS14 FX730VA13811 - FX730VA48607
Bush Hog, FX730V BS14 FX730VA13811 - FX730VA48607
Tiger Corp.
Country Clipper FS651V AS13 FS651VA30654 - FS651VA48562
FX730V CS00 FX730VA13811 - FX730VA48607
FX801V AS09 FX801VA26410 - FX801VA35509
FXT00V ES00 FXT00VA08783 - FXT00VA11119
Cub Cadet FR600V BS06 FR600VA28739 - FR600VA47566
FR651V CS05 FR651VB13474 - FR651VB64183
FR651V CS08 FR651VB13474 - FR651VB64183
FR691V AS17 FR691VB01958 - FR691VB51951
FR691V DS05 FR691VB01958 - FR691VB51951
FR730V CS05 FR730VA19372 - FR730VA61003
FX850V CS11 FX850VA32209 - FX850VA42326
FXT00V CS09 FXT00VA08783 - FXT00VA11119
Dixie Chopper FS651V CS07 FS651VA30654 - FS651VA48562
FS730V BS09 FS730VA18873 - FS730VA36464
FX850V AS14 FX850VA32209 - FX850VA42326
FXT00V AS10 FXT00VA08783 - FXT00VA11119
DR Power FS600V AS19 FS600VA08439 - FS600VA55651
Equipment
Encore FS541V BS16 FS541VA40673 - FS541VA74103
Exmark FR651V BS13 FR651VB13474 - FR651VB64183
FR651V CS06 FR651VB13474 - FR651VB64183
FR651V CS10 FR651VB13474 - FR651VB64183
FR691V BS13 FR691VB01958 - FR691VB51951
FR691V CS07 FR691VB01958 - FR691VB51951
FS481V AS25 FS481VA30837 - FS481VA73952
FS481V CS06 FS481VA30837 - FS481VA73952
FS541V AS23 FS541VA40673 - FS541VA74103
FS541V CS06 FS541VA40673 - FS541VA74103
FS600V CS15 FS600VA08439 - FS600VA55651
FS651V AS12 FS651VA30654 - FS651VA48562
FS691V BS12 FS691VA07498 - FS691VA13372
FX730V CS13 FX730VA13811 - FX730VA48607
Ferris/Snapper FS541V AS25 FS541VA40673 - FS541VA74103
Pro FS600V AS22 FS600VA08439 - FS600VA55651
FS730V AS12 FS730VA18873 - FS730VA36464
FX600V CS06 FX600VA14634 - FX600VA18373
FX651V AS11 FX651VA16250 - FX651VA22022
FX730V AS18 FX730VA13811 - FX730VA48607
Ferris/Snapper FS691V AS14 FS691VA07498 - FS691VA13372
Pro/Simplicity FX801V AS09 FX801VA26410 - FX801VA35509
Husqvarna FR691V BS15 FR691VB01958 - FR691VB51951
FR691V CS06 FR691VB01958 - FR691VB51951
FR730V AS12 FR730VA19372 - FR730VA61003
FR730V AS13 FR730VA19372 - FR730VA61003
FR730V AS14 FR730VA19372 - FR730VA61003
FX651V DS09 FX651VA16250 - FX651VA22022
FX730V CS15 FX730VA13811 - FX730VA48607
Husqvarna/Dixon FR651V CS09 FR651VB13474 - FR651VB64183
FR730V DS04 FR730VA19372 - FR730VA61003
FX691V DS10 FX691VA18538 - FX691VA29675
FX730V CS07 FX730VA13811 - FX730VA48607
FX801V ES00 FX801VA26410 - FX801VA35509
FX921V DS06 FX921VA07267 - FX921VA13450
Hustler/Big Dog FR541V BS04 FR541VA05747 - FR541VA10514
FR600V BS08 FR600VA28739 - FR600VA47566
FR651V BS11 FR651VB13474 - FR651VB64183
FR691V BS14 FR691VB01958 - FR691VB51951
FR730V BS10 FS730VA18873 - FS730VA36464
FS481V CS19 FS481VA30837 - FS481VA73952
FS541V CS21 FS541VA40673 - FS541VA74103
FS600V BS14 FS600VA08439 - FS600VA55651
FS651V CS11 FS651VA30654 - FS651VA48562
FS691V BS10 FS691VA07498 - FS691VA13372
FX600V BS14 FX600VA14634 - FX600VA18373
FX691V CS18 FX691VA18538 - FX691VA29675
FX730V CS17 FX730VA13811 - FX730VA48607
FX850V CS12 FX850VA32209 - FX850VA42326
FXT00V CS08 FXT00VA08783 - FXT00VA11119
Land Pride FR541V CS00 FR541VA05747 - FR541VA10514
FR600V CS00 FR600VA28739 - FR600VA47566
FS691V CS04 FS691VA07498 - FS691VA13372
FX730V CS08 FX730VA13811 - FX730VA48607
FX850V ES09 FX850VA32209 - FX850VA42326
SCAG FS481V CS18 FS481VA30837 - FS481VA73952
FS541V CS19 FS541VA40673 - FS541VA74103
FS600V BS13 FS600VA08439 - FS600VA55651
FS600V CS12 FS600VA08439 - FS600VA55651
FS651V BS10 FS651VA30654 - FS651VA48562
FS651V CS09 FS651VA30654 - FS651VA48562
FS730V AS11 FS730VA18873 - FS730VA36464
FX600V CS09 FX600VA14634 - FX600VA18373
FX691V DS11 FX691VA18538 - FX691VA29675
FX730V CS06 FX730VA13811 - FX730VA48607
FX801V CS07 FX801VA26410 - FX801VA35509
FX850V DS10 FX850VA32209 - FX850VA42326
FX921V BS07 FX921VA07267 - FX921VA13450
Toro FR651V BS12 FR651VB13474 - FR651VB64183
FR651V CS10 FR651VB13474 - FR651VB64183
FR691V CS12 FR691VB01958 - FR691VB51951
FR730V CS09 FR730VA19372 - FR730VA61003
FS481V CS08 FS481VA30837 - FS481VA73952
FS541V CS06 FS541VA40673 - FS541VA74103
FS541V CS11 FS541VA40673 - FS541VA74103
FS600V BS10 FS600VA08439 - FS600VA55651
FS600V CS09 FS600VA08439 - FS600VA55651
FS691V CS05 FS691VA07498 - FS691VA13372
FS730V CS06 FS730VA18873 - FS730VA36464
FX691V DS13 FX691VA18538 - FX691VA29675
Woods FH770D FS04 FH770DA17828 - FH770DA17997
Worldlawn FR651V ES00 FR651VB13474 - FR651VB64183
FR691V ES00 FR691VB01958 - FR691VB51951
FS481V BS12 FS481VA30837 - FS481VA73952
FS481V BS13 FS481VA30837 - FS481VA73952
FS481V BS24 FS481VA30837 - FS481VA73952
FX651V CS08 FX651VA16250 - FX651VA22022
FX691V CS14 FX691VA18538 - FX691VA29675
FX751V ES00 FX751VA24127 - FX751VA33598
Kawasaki Motors is recalling the filters
[http://www.cpsc.gov/cpscpub/prerel/prhtml13/13041.html]used in
these lawn mower engines and utility vehicle engines
[[http://www.cpsc.gov/cpscpub/prerel/prhtml13/13706.html]that use
the recalled filters, also. Pictures of the recalled products are
available at:
http://www.cpsc.gov/cpscpub/prerel/prhtml13/13040.html
The recalled products were manufactured in the United States of
America and sold at authorized Kawasaki small engine dealers and
lawn and garden equipment retailers nationwide. Recalled units
were sold between October 2011 and August 2012 for between $2000
and $10,000.
Consumers should immediately stop using mowers with the recalled
engines and fuel filters and contact Kawasaki or a Kawasaki dealer
for a free repair. Kawasaki Motors may be reached at (866) 836-
446, from 8:00 a.m. to 5:00 p.m. Eastern Time, Monday through
Friday, or online at http://www.kawpower.com/or e-mail the firm
at ffrecall@kmc-usa.com for more information.
KAWASAKI MOTORS: Recalls 55T Fuel Filters and 1.2T TUNE-UP KITS
---------------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
Kawasaki Motors Corp. USA of Grand Rapids, Michigan, announced a
voluntary recall of about 55,000 Fuel Filters and about 1,200
Tune-Up Kits with Fuel Filters. Consumers should stop using
recalled products immediately unless otherwise instructed. It is
illegal to resell or attempt to resell a recalled consumer
product.
The fuel filter can leak, posing a fire hazard.
Kawasaki has received 110 reports of fuel leaks in lawn mowers,
including two reports of leaks from replacement filters. No
injuries reported.
The recalled fuel filters are white translucent plastic and attach
to the fuel tubes on Kawasaki lawn mower and utility vehicle
engines. The filters were sold separately and as part of engine
tune-up kits. "VISU Filter" and a manufacturing date code number
are on the top of the filter. The following date codes are
included in this recall: 136/11 through 365/11 and 001/12 through
216/12. The tune-up kits say "Kawasaki Engine Tune-Up Kit" on the
box. A part number is located on the top of the box. Recalled
tune-up kits include one of the following part numbers: 99969-
6189, 99969-6190, 99969-6191, 99969-6196 and 99969-6220.
Kawasaki Motors is recalling
[http://www.cpsc.gov/cpscpub/prerel/prhtml13/13040.html]and
utility vehicles
[http://www.cpsc.gov/cpscpub/prerel/prhtml13/13706.html]that use
this filter, also.
Pictures of the recalled products are available at:
http://www.cpsc.gov/cpscpub/prerel/prhtml13/13041.html
The recalled products were manufactured in the United States of
America and sold at Kawasaki dealers nationwide between August
2011 and August 2012. Filters cost about $5; tune-up kits cost
between $40 and $70.
Consumers should immediately stop using products with the recalled
fuel filters and contact Kawasaki or a Kawasaki dealer for a free
repair. Kawasaki Motors may be reached at (866) 836-4463, 8:00
a.m. to 5:00 p.m. Eastern Time Monday through Friday,
http://www.kawpower.com/or e-mail ffrecall@kmc-usa.com
MASTERCARD INC: "Attridge" Suit Still Pending in California
-----------------------------------------------------------
The class action lawsuit known as the "Attridge action" remains
pending in California, according to MasterCard Incorporated's
October 31, 2012, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended September 30, 2012.
In October 1998, the U.S. Department of Justice ("DOJ") filed a
lawsuit against MasterCard International, Visa U.S.A., Inc. and
Visa International Corp. in the U.S. District Court for the
Southern District of New York alleging that both MasterCard's and
Visa's governance structure and policies violated U.S. federal
antitrust laws. The DOJ challenged (1) "dual governance", where a
financial institution has a representative on the Board of
Directors of MasterCard or Visa while a portion of its card
portfolio is issued under the brand of the other association, and
(2) both MasterCard's Competitive Programs Policy ("CPP") and a
Visa bylaw provision that prohibited financial institutions
participating in the respective associations from issuing
competing proprietary payment cards (such as American Express or
Discover). In October 2001, the judge issued an opinion upholding
the legality and pro-competitive nature of dual governance.
However, the judge also held that MasterCard's CPP and the Visa
bylaw constituted unlawful restraints of trade under the federal
antitrust laws. The judge subsequently issued a final judgment
that ordered MasterCard to repeal the CPP and enjoined MasterCard
from enacting or enforcing any bylaw, rule, policy or practice
that prohibits its issuers from issuing general purpose credit or
debit cards in the United States on any other general purpose card
network.
In April 2005, a complaint was filed in California state court on
behalf of a putative class of consumers under California unfair
competition law (Section 17200) and the Cartwright Act (the
"Attridge action"). The claims in this action seek to piggyback
on the portion of the DOJ antitrust litigation with regard to the
District Court's findings concerning MasterCard's CPP and Visa's
related bylaw. The Court granted the defendants' motion to
dismiss the plaintiffs' Cartwright Act claims but denied the
defendants' motion to dismiss the plaintiffs' Section 17200 unfair
competition claims. The parties have proceeded with discovery.
In September 2009, MasterCard executed a settlement agreement that
is subject to court approval in the separate California consumer
litigations (see "U.S. Merchant and Consumer Litigations"). The
agreement includes a release that the parties believe encompasses
the claims asserted in the Attridge action. In August 2010, the
Court in the California consumer actions granted final approval to
the settlement. The plaintiff from the Attridge action and three
other objectors filed appeals of the settlement approval.
In January 2012, the Appellate Court reversed the trial court's
settlement approval and remanded the matter to the trial court for
further proceedings. In August 2012, the parties in the
California consumer actions filed a motion seeking approval of a
revised settlement agreement.
At this time, the Company says it is not possible to determine the
outcome of, or estimate the liability related to, the Attridge
action and no incremental provision for losses has been provided
in connection with it.
MASTERCARD INC: Awaits Order on Bid to Junk ATM Surcharges Suits
----------------------------------------------------------------
MasterCard Incorporated is awaiting a court decision on its motion
to dismiss lawsuits over ATM rule surcharges, according to the
Company's October 31, 2012, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended September
30, 2012.
In October 2011, a trade association of independent Automated
Teller Machine ("ATM") operators and 13 independent ATM operators
filed a complaint styled as a class action lawsuit in the U.S.
District Court for the District of Columbia against both
MasterCard and Visa (the "ATM Operators Complaint"). Plaintiffs
seek to represent a class of non-bank operators of ATM terminals
that operate ATM terminals in the United States with the
discretion to determine the price of the ATM access fee for the
terminals they operate. Plaintiffs allege that MasterCard and
Visa have violated Section 1 of the Sherman Act by imposing rules
that require ATM operators to charge non-discriminatory ATM
surcharges for transactions processed over MasterCard's and Visa's
respective networks that are not greater than the surcharge
charged for transactions over other networks accepted at the same
ATM. Plaintiffs seek both injunctive and monetary relief equal to
treble the damages they claim to have sustained as a result of the
alleged violations and their costs of lawsuit, including
attorneys' fees. Plaintiffs have not quantified their damages
although they allege that they expect damages to be in the tens of
millions of dollars.
Subsequently, multiple related complaints were filed in the U.S.
District Court for the District of Columbia alleging both federal
antitrust and multiple state unfair competition, consumer
protection and common law claims against MasterCard and Visa on
behalf of putative classes of users of ATM services (the "ATM
Consumer Complaints"). The claims in these actions largely mirror
the allegations made in the ATM Operators Complaint, although
these complaints seek damages on behalf of consumers of ATM
services who pay allegedly inflated ATM fees at both bank and non-
bank ATM operators as a result of the defendants' ATM rules.
Plaintiffs seek both injunctive and monetary relief equal to
treble the damages they claim to have sustained as a result of the
alleged violations and their costs of lawsuit, including
attorneys' fees. Plaintiffs have not quantified their damages
although they allege that they expect damages to be in the tens of
millions of dollars.
In January 2012, the plaintiffs in the ATM Operators Complaint and
the ATM Consumer Complaints filed amended class action complaints
that largely mirror their prior complaints. MasterCard has moved
to dismiss the complaints for failure to state a claim. Oral
argument on the motion was heard by the court in September 2012.
At this time, and at this early stage of the cases, the Company
says it is not possible to determine the outcome of, or, estimate
the liability related to, the cases and no provision for losses
has been provided in connection with them.
MASTERCARD INC: Calif. Suit Parties Seek Approval of Revised Deal
-----------------------------------------------------------------
Parties in consumer lawsuits filed in California are seeking
approval of their revised settlement agreement, according to
MasterCard Incorporated's October 31, 2012, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
September 30, 2012.
Commencing in October 1996, several class action lawsuits were
brought by a number of U.S. merchants against MasterCard
International and Visa U.S.A., Inc. challenging certain aspects of
the payment card industry under U.S. federal antitrust law. The
plaintiffs claimed that MasterCard's "Honor All Cards" rule (and a
similar Visa rule), which required merchants who accept MasterCard
cards to accept for payment every validly presented MasterCard
card, constituted an illegal tying arrangement in violation of
Section 1 of the Sherman Act. In June 2003, MasterCard
International signed a settlement agreement to settle the claims
brought by the plaintiffs in this matter, which the Court approved
in December 2003. Pursuant to the settlement, MasterCard agreed,
among other things, to create two separate "Honor All Cards" rules
in the United States -- one for debit cards and one for credit
cards.
In addition, individual or multiple complaints have been brought
in 19 states and the District of Columbia alleging state unfair
competition, consumer protection and common law claims against
MasterCard International (and Visa) on behalf of putative classes
of consumers. The claims in these actions largely mirror the
allegations made in the U.S. merchant lawsuit and assert that
merchants, faced with excessive interchange fees, have passed
these overhead charges to consumers in the form of higher prices
on goods and services sold. MasterCard has successfully resolved
the cases in all of the jurisdictions except California, where
there continues to be outstanding cases. With respect to the
California state court actions, in September 2009, the parties to
the California state court actions executed a settlement agreement
which required a payment by MasterCard of $6 million, subject to
approval by the California state court. In August 2010, the court
granted final approval of the settlement, subsequent to which
MasterCard made the payment required by the settlement agreement.
The plaintiff from the Attridge action and three other objectors
filed appeals of the settlement approval order. In January 2012,
the Appellate Court reversed the trial court's settlement approval
and remanded the matter to the trial court for further
proceedings.
In August 2012, the parties in the California consumer actions
filed a motion seeking approval of a revised settlement agreement.
MASTERCARD INC: April 2013 Class Cert. Hearing in B.C. Suit Set
---------------------------------------------------------------
A British Columbia court has scheduled a class certification
hearing for April 2013 in a purported class action lawsuit filed
against MasterCard Incorporated, Visa U.S.A., Inc. and Visa
International Corp. and a number of large financial institutions
in Canada, according to MasterCard's October 31, 2012, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended September 30, 2012.
In December 2010, the Canadian Competition Bureau (the "CCB")
filed an application with the Canadian Competition Tribunal to
strike down certain MasterCard rules related to point-of-sale
acceptance, including the "honor all cards" and "no surcharge"
rules. The hearing on the matter was held before the Canadian
Competition Tribunal and was completed in June 2012. The parties
are awaiting a decision from the Canadian Competition Tribunal.
In December 2010, a complaint styled as a class action lawsuit was
commenced against MasterCard in Quebec on behalf of Canadian
merchants. That lawsuit essentially repeated the allegations and
arguments of the CCB application to the Canadian Competition
Tribunal and sought compensatory and punitive damages in
unspecified amounts, as well as injunctive relief. In March 2011,
a second purported class action lawsuit was commenced in British
Columbia against MasterCard, Visa U.S.A., Inc. and Visa
International Corp. and a number of large Canadian financial
institutions, and in May 2011 a third purported class action
lawsuit was commenced in Ontario against the same defendants.
These lawsuits allege that MasterCard, Visa and the financial
institutions have engaged in a conspiracy to increase or maintain
the fees paid by merchants on credit card transactions and
establish rules which force merchants to accept all MasterCard and
Visa credit cards and prevent merchants from charging more for
payments with MasterCard and Visa premium cards. The British
Columbia lawsuit seeks compensatory damages in unspecified
amounts, and the Ontario lawsuit seeks compensatory damages of $5
billion. The British Columbia and Ontario lawsuits also seek
punitive damages in unspecified amounts, as well as injunctive
relief, interest and legal costs.
In April 2012, the Quebec lawsuit was amended to include the same
defendants and similar claims as in the British Columbia and
Ontario lawsuits. With respect to status of the proceedings: (1)
the Quebec lawsuit was stayed in June 2012 until June 2013,
subject to an ongoing obligation to report to the case management
judge, (2) the Ontario lawsuit is being temporarily suspended
while the British Columbia lawsuit proceeds, and (3) the British
Columbia court has scheduled a class certification hearing for
April 2013. Additional complaints styled as class actions have
been filed in Saskatchewan and Alberta. The claims in these
complaints largely mirror the claims in the British Columbia and
Ontario lawsuits.
If the CCB's challenges and/or the class action lawsuits are
ultimately successful, negative decisions could have a significant
adverse impact on the revenues of MasterCard's Canadian customers
and on MasterCard's overall business in Canada and, in the case of
the private lawsuits, could result in substantial damage awards.
MICROSOFT: Sued Over False Claims on Surface RT Tablets
-------------------------------------------------------
Matt Reynolds at Courthouse News Service reports that Microsoft
misrepresents the storage capacity of its Surface RT tablets, an
Angeleno claims in a Superior Court class action.
Lead plaintiff Andrew Sokolowski accuses Microsoft of violating
state consumer laws, false advertising and unfair business
practices.
He claims that the Windows RT operating system takes up to half
the storage on the tablets, sold in 32-gigabyte and 64-gigabyte
versions.
"Microsoft knows, but conceals and fails to disclose in its
advertising, marketing or promotional materials, that the Windows
RT operating system consumes approximately 16 GB of the
represented storage capacity of the Surface RT tablets and that
those 16 GBs are not, therefore, storage space that the consumer
can actually use to store files after purchase," the 16-page
complaint states.
"Thus for a consumer who purchases the 32 GB Surface RT tablet, as
plaintiff did, about 50 percent of the represented storage
capacity is inaccessible and unusable. For purchasers of 64 GB
Surface RT tablets, approximately 25 percent of the represented
storage capacity is inaccessible and unusable."
Mr. Sokolowski says that when he loaded music and documents onto
his 32 GB tablet, the device alerted him that it lacked capacity
to store all his files.
"Microsoft continues to mislead consumers by representing that its
Surface RT tablets are equipped with either 32 GB or 64 GB of
storage space while concealing, omitting and failing to disclose
that approximately 16 GB of that space is not available storage
space that the purchaser can access and use to store his or her
own files," according to the complaint.
The Surface RT 32 GB retails for $499 or $599 with a built-in
touch keyboard. The 64 GB version sells for $699 with a keyboard,
according to the complaint.
Mr. Sokolowski is represented by Rhett Francisco of Woodland
Hills.
In a statement from its representatives at Waggener Edstrom
Worldwide, Microsoft said the complaint "is without merit."
"Customers understand the operating system and pre-installed
applications reside on the device's internal storage thereby
reducing the total free space," Microsoft said. "Surface with
Windows RT customers benefit from the ability to attach additional
storage via the integrated microSD slot or full-size USB port."
NEOSTEM INC: Reached Tentative Settlement in "Schumacher" Lawsuit
-----------------------------------------------------------------
Neostem, Inc. has negotiated a tentative settlement resolving a
class action commenced by William Schumacher, according to the
Company's October 5, 2012, Form 8-K filing with the U.S.
Securities and Exchange Commission.
On September 20, 2012, William Schumacher, a holder of 200 NeoStem
shares, filed a lawsuit against the Company and its directors in
New York state court seeking class action status and asserting
that the Company's proxy statement for its October 5, 2012 annual
meeting was misleading and incomplete with respect to Proposal
Number 3, the proposal to amend and restate of the Company's 2009
Equity Compensation Plan. The lawsuit sought a variety of relief
including an injunction delaying the vote on Proposal 3.
The Company believes that its proxy statement fully complied with
applicable disclosure standards and do not believe there were any
deficiencies with respect to its proxy disclosures. However, to
avoid the expense of litigation and any disruption to its
scheduled meeting, the Company reached an agreement in principle
to settle the matter in exchange for certain undertakings with
respect to its corporate governance practices in the future. Under
the settlement, the litigation will be dismissed with prejudice,
no corrective disclosure was required, the Company continues to
deny that it has breached any disclosure duty and there will be no
admission of liability. The settlement is subject to court
approval.
NEW ORIENTAL: Defends Four ADS-Related Suits in N.Y. & Calif.
-------------------------------------------------------------
New Oriental Education & Technology Group Inc. is defending itself
against four securities class actions in California and New York
over the American depository shares, according to the
Company's October 12, 2012, Form 20-F filing with the U.S.
Securities and Exchange Commission for the fiscal year ended May
31, 2012.
On July 23, 2012, a putative shareholder class action lawsuit
against the Company, Michael Minhong Yu and Louis T. Hsieh, Wong
v. New Oriental Education & Technology Group Inc., No. 2:12-cv-
06316-MMM-JEM, was filed in the United States District Court for
the Central District of California. Shortly thereafter, three
more putative shareholder class action suits against the same
defendants were filed in the United States District Court for the
Southern District of New York: Sax v. New Oriental Education &
Technology Group, Inc., No. 1:12-cv-05724-JGK (S.D.N.Y. filed July
25, 2012); Gabel v. New Oriental Education & Technology Group,
Inc., No. 1:12-cv-05963-JGK (S.D.N.Y. filed Aug. 3, 2012); and
Tardio v. New Oriental Education & Technology Group, Inc., No.
1:12-cv-06619-JGK (S.D.N.Y. filed Aug. 29, 2012).
The four actions contain similar factual allegations, allege
virtually the same class period, are brought against the same
defendants, and advance the same theories of liability. These
actions seek to represent a class of persons who suffered damages
as a result of their trading activities related to the Company's
American depository shares (ADSs) from July 21, 2009 to July 23,
2012. All four actions allege violations of section 10(b) of the
Exchange Act and Rule 10b-5 promulgated thereunder, 17 C.F.R.
240.10b-5 (2012), and section 20(a) of the Exchange Act, 15 U.S.C.
-- 78j(b), 78t(a). The complaints allege that various press
releases, financial statements and other related disclosures made
by the Company during the class period contained material
misstatements and omissions, in violation of the federal
securities laws, and that such press releases, financial
statements and other related disclosures artificially inflated the
value of the Company's ADSs and affected the trading prices of the
ADSs. The complaints generally seek monetary damages on behalf of
the class of persons who suffered losses during the class period.
The actions remain at their preliminary stages. The Company
believes the cases are without merit and intend to defend the
actions vigorously.
New Oriental Education & Technology Group Inc. is a provider of
private educational services in China based on the number of
program offerings, total student enrollments and geographic
presence. The Company offers a wide range of educational
programs, services and products, consisting primarily of English
and other foreign language training, test preparation courses for
admissions and assessment tests in the United States, the PRC and
Commonwealth countries, primary and secondary school education,
development and distribution of educational content, software and
other technology, and online education. It provides educational
services primarily under its "New Oriental" brand, which it
believes is the leading consumer brand in China's private
education sector.
PIEDMONT OFFICE: Agrees to Settle Maryland Suit for $4.9MM
-----------------------------------------------------------
Piedmont Office Realty Trust, Inc. reached an agreement in
principle last month to settle for $4.9 million the class action
lawsuit styled In Re Wells Real Estate Investment Trust, Inc.
Securities Litigation, Civil Action No. 1:07-cv-00862-CAP,
according to the Company's October 31, 2012, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
September 30, 2012.
On March 12, 2007, a stockholder filed a class action and
derivative complaint in the United States District Court for the
District of Maryland against, among others, Piedmont, Piedmont's
previous advisors, and certain officers and directors of Piedmont.
Upon motion by the defendants, the case was transferred to the
United States District Court for the Northern District of Georgia
on April 17, 2007.
As subsequently amended and dismissed in part, the complaint
alleges violations of Section 14(a), including Rule 14a-9
thereunder, and Section 20(a) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), based upon allegations that
the proxy statement for Piedmont's 2007 internalization
transaction (the "Internalization") contains false and misleading
statements or omits to state material facts. On February 9, 2011,
the plaintiff dismissed its claim for violation of Section 20(a)
of the Exchange Act.
As subsequently amended and dismissed in part, the complaint
seeks, among other things, (i) certification of the class action;
(ii) a judgment declaring the proxy statement false and
misleading; (iii) unspecified monetary damages; (iv) to nullify
any stockholder approvals obtained during the proxy process; (v)
to nullify the Internalization; (vi) cancellation and rescission
of any stock issued as consideration in the Internalization, or,
in the alternative, rescissory damages; and (vii) the payment of
reasonable attorneys' fees and experts' fees. On September 16,
2009, the court granted the plaintiff's motion for class
certification.
On December 4, 2009, the parties filed motions for summary
judgment. On August 2, 2010, the court entered an order denying
the defendants' motion for summary judgment and granting, in part,
the plaintiff's motion for partial summary judgment.
On November 17, 2011, the court issued rulings granting several of
the plaintiff's pre trial motions to prohibit the defendants from
introducing certain evidence, including evidence of the
defendants' reliance on advice from their outside legal and
financial advisors, and limiting the defendants' ability to relate
their subjective views, considerations, and observations during
the trial of the case.
On February 23, 2012, the court granted several of defendants'
motions, including a motion for reconsideration regarding a motion
plaintiff had filed seeking exclusion of certain evidence
impacting damages, and motions seeking exclusion of certain
evidence proposed to be submitted by plaintiff.
On March 20, 2012, the court granted the defendants leave to file
a motion for summary judgment. On April 5, 2012, the defendants
filed a motion for summary judgment. On September 26, 2012, the
court granted the defendants' motion for summary judgment and
entered judgment in favor of the defendants. Plaintiff appealed
to the Eleventh Circuit Court of Appeals on October 12, 2012.
Agreement in Principle to Resolve Legal Action
On October 11, 2012, Piedmont reached agreement in principle to
settle the lawsuit. Under the terms of the proposed settlement of
the lawsuit, Plaintiff will dismiss the appeal and release all
defendants from liability in exchange for total payment of $4.9
million in cash by Piedmont and its insurer.
The settlement is subject to court approval following the
negotiation and execution of definitive agreements and notice to
the classes. The Company believes that plaintiffs' allegations in
the lawsuit are without merit, and the Company will continue to
vigorously defend the action if for any reason the settlement is
not approved. Due to the uncertainties inherent in the litigation
process, the Company's assessment of the merits of the claim
notwithstanding, the risk of material financial loss does exist.
PIEDMONT OFFICE: Agrees to Settle Ga. Securities Suit for $2.6MM
-----------------------------------------------------------------
Piedmont Office Realty Trust, Inc. disclosed in its October 31,
2012, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended September 30, 2012, that it
reached an agreement in principle to settle for $2.6 million the
class action lawsuit titled In Re Piedmont Office Realty Trust,
Inc. Securities Litigation, Civil Action No. 1:07-cv-02660-CAP.
On October 25, 2007, the same stockholder that filed a class
action lawsuit in Maryland filed a second purported class action
in the United States District Court for the Northern District of
Georgia against Piedmont and its board of directors. The
complaint attempts to assert class action claims on behalf of (i)
those persons who were entitled to tender their shares pursuant to
the tender offer filed with the SEC by Lex-Win Acquisition LLC, a
former stockholder, on May 25, 2007, and (ii) all persons who are
entitled to vote on the proxy statement filed with the SEC on
October 16, 2007.
As subsequently amended and dismissed in part, the complaint
alleges, among other things, violations of the federal securities
laws, including Sections 14(a) and 14(e) of the Exchange Act and
Rules 14a-9 and 14e-2(b) promulgated thereunder based upon
allegations regarding (i) the failure to disclose certain
information in the Company's amended response to the Lex-Win
tender offer and (ii) purported misstatements or omissions in the
Company's proxy statement concerning then-existing market
conditions, the alternatives to a listing or extension that were
explored by the defendants, the results of conversations with
potential buyers as to the Company's valuation, and certain
details of the Company's share redemption program.
On June 10, 2009, the plaintiffs filed a motion for class
certification. The court granted the plaintiffs' motion for class
certification on March 10, 2010. Defendants sought and received
permission from the Eleventh Circuit Court of Appeals to appeal
the class certification order on an interlocutory basis. On April
11, 2011, the Eleventh Circuit Court of Appeals invalidated the
district court's order certifying a class and remanded the case to
the district court for further proceedings.
Following remand, plaintiffs filed a third amended complaint
pursuant to leave granted on September 27, 2011. On October 21,
2011, the defendants filed a motion to dismiss the third amended
complaint. On August 27, 2012, the court granted the defendants'
motion to dismiss the third amended complaint and entered judgment
in favor of the defendants. On September 26, 2012, the plaintiffs
filed a notice of appeal with the Eleventh Circuit Court of
Appeals.
Agreement in Principle to Resolve Legal Action
On October 11, 2012, Piedmont reached agreement in principle to
settle the lawsuit. Plaintiffs will dismiss the appeal and
release all defendants from liability in exchange for total
payment of $2.6 million in cash by Piedmont and its insurer.
The settlement is subject to court approval following the
negotiation and execution of definitive agreements and notice to
the classes. The Company believes that plaintiffs' allegations in
the lawsuit are without merit, and the Company will continue to
vigorously defend the action if for any reason the settlement is
not approved. Due to the uncertainties inherent in the litigation
process, the Company's assessment of the merits of the claim
notwithstanding, the risk of material financial loss does exist.
PRINCIPAL FINANCIAL: Appeal in "Fairmount" Suit Still Pending
-------------------------------------------------------------
On November 8, 2006, a trustee of Fairmount Park Inc. Retirement
Savings Plan filed a putative class action lawsuit in the United
States District Court for the Southern District of Illinois
against Principal Financial Group, Inc.'s subsidiary, Principal
Life Insurance Company. Principal Life's motion to transfer venue
was granted and the case is now pending in the Southern District
of Iowa. The complaint alleged, among other things, that
Principal Life breached its alleged fiduciary duties while
performing services to 401(k) plans by failing to disclose, or
adequately disclose, to employers or plan participants the fact
that Principal Life receives "revenue sharing fees from mutual
funds that are included in its pre-packaged 401(k) plans" and
allegedly failed to use the revenue to defray the expenses of the
services provided to the plans. Plaintiff further alleged that
these acts constitute prohibited transactions under the Employee
Retirement Income Security Act of 1974 ("ERISA"). Plaintiff
sought to certify a class of all retirement plans to which
Principal Life was a service provider and for which Principal Life
received and retained "revenue sharing" fees from mutual funds.
On August 27, 2008, the plaintiff's motion for class certification
was denied. On June 13, 2011, the court entered a consent
judgment resolving the claims of the plaintiff. On
July 12, 2011, plaintiff filed a notice of appeal related to the
issue of the denial of class certification. Principal Life says
it continues to aggressively defend the lawsuit.
No further updates were reported in the Company's October 31,
2012, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended September 30, 2012.
PRINCIPAL FINANCIAL: Still Defends "Cruise/Mullaney" Class Suit
---------------------------------------------------------------
On December 2, 2009, and December 4, 2009, two plaintiffs, Cruise
and Mullaney, each filed putative class action lawsuits in the
United States District Court for the Southern District of New York
against Principal Financial Group, Inc.; Principal Life Insurance
Company; Principal Global Investors, LLC; and Principal Real
Estate Investors, LLC (the "Cruise/Mullaney Defendants"). The
lawsuits alleged the Cruise/Mullaney Defendants failed to manage
the Principal U.S. Property Separate Account ("PUSPSA") in the
best interests of investors, improperly imposed a "withdrawal
freeze" on September 26, 2008, and instituted a "withdrawal queue"
to honor withdrawal requests as sufficient liquidity became
available. Plaintiffs allege these actions constitute a breach of
fiduciary duties under the Employee Retirement Income Security Act
of 1974 ("ERISA"). Plaintiffs seek to certify a class including
all qualified ERISA plans and the participants of those plans that
invested in PUSPSA between September 26, 2008, and the present
that have suffered losses caused by the queue. The two lawsuits,
as well as two subsequently filed complaints asserting similar
claims, have been consolidated and are now known as In re
Principal U.S. Property Account Litigation. On April 22, 2010, an
order was entered granting the motion made by the Cruise/Mullaney
Defendants for change of venue to the United States District Court
for the Southern District of Iowa. Plaintiffs filed an Amended
Consolidated Complaint adding five new plaintiffs on November 22,
2010, and the Cruise/Mullaney Defendants moved to dismiss the
amended complaint. The court denied the Cruise/Mullaney
Defendants' motion to dismiss on
May 17, 2011. The Cruise/Mullaney Defendants are aggressively
defending the lawsuit.
No further updates were reported in the Company's October 31,
2012, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended September 30, 2012.
SAN FRANCISCO, CA: Faces Class Action Over Public Nudity Ban
------------------------------------------------------------
William Dotinga at Courthouse News Service reports that nudists
have taken pre-emptive action against San Francisco's proposed ban
on public nudity, filing a federal class action claiming the city-
county's move would violate their constitutional rights.
Lead plaintiffs Mitch Hightower, Oxane "Gypsy" Taub, George Davis
and Russell Mills sued the City and County of San Francisco and
three of its supervisors -- David Chiu, Scott Weiner and Angela
Calvillo. They seek declaratory judgment and injunctive relief.
The San Francisco Board of Supervisors plan to vote on
Mr. Weiner's proposed ordinance at its Nov. 20 meeting.
Mr. Weiner represents the Castro District -- notorious for nudity
-- and told NBC News that a neighborhood square in his district is
becoming "an ad-hoc nudist colony."
San Francisco's parks and port property already prohibit nudity.
Mr. Weiner successfully encouraged a law requiring nudists to
place a cloth buffer between their "genitals, buttocks or anal
region and the public seating" in 2011.
The new ordinance would require clothing on public transit,
sidewalks and city streets, plazas and parklets.
The city's street fairs, festivals, parades and beaches would
still welcome nudists, but the plaintiffs say it's not enough.
Hightower claims his annual "Nude-In" promotes "a spirit of
tolerance, peace and fellowship among the attendees."
Ms. Taub says she uses her naked body "as an integral part of her
political speech" and produces "a television program on nude
activism, including but not limited to nudity in public spaces."
Mr. Davis says he was a candidate for mayor in 2007, and
"campaigned and debated in the nude as the 'nude candidate' and
received over 600 votes citywide."
Mr. Davis ran for supervisor as the "nude candidate" in 2010 and
"uses nudity as part of his political expression."
Fighting against the proposed ordinance appears to be plaintiff
Mills' first brush with using his naked body as a political
weapon. However, he says he runs the online group "Fans-of-Urban-
Nudism."
The nudists say that the class they represent is "so numerous that
joinder is impractical. Between the 'Nude-In,' the Global Naked
Bike Ride, the San Francisco Pride Festival, the Trans March, the
Dyke March, Dore Alley and the Folsom Street Fair, approximately
several hundred people are nude at various times in public spaces
in San Francisco during a typical year," according to the
complaint.
The nudists say the proposed ordinance "violates the First
Amendment rights to free speech and association because its
provisions are overbroad and impermissibly burden speech without
being tailored to the city's stated objectives."
They continue: "The mere status of being nude is not and cannot be
considered a criminal offense. 'It is settled that mere nudity
does not constitute a form of sexual "activity." . . . Absent
additional conduct intentionally directing attention to his
genitals for sexual purposes, a person, as here, who simply
sunbathes in the nude on an isolated beach does not "lewdly"
expose his private parts within the meaning of [state law],'" the
complaint states, citing In re Smith, 7 Cal. 3d. 362, 366 (1972).
The nudists say they are entitled to a high level of protection
because their nakedness is "inextricably intertwined with their
political activism, including but not limited to their words and
written statements." They also note that the proposed ordinance
contains no exclusion for free speech.
They say the nudity ban also violates the equal protection clause
of the Fourteenth Amendment since it creates two classes of
nudists -- the plaintiffs on one side, and attendees at city-
sanctioned events where nudity is permitted.
The nudists point out that children younger than 5 are exempt from
the proposed ordinance.
"Pursuant to the provisions of the proposed ordinance . . .
nudists could escape this Sword of Damocles in only two ways.
They could be younger than 5 years of age, which is not practical
for all of the named plaintiffs and proposed representatives of
the plaintiff class or they could spend several hundred (or
several thousand) dollars to a plethora of city agencies to obtain
a special event permit each time they wanted to exercise their
First Amendment right to expressive free speech," the complaint
states.
If supervisors pass the ordinance, the nudists face up to $100 in
fines for their first offense, $200 for a second offense within a
year and either a misdemeanor or a $500 ticket for a third strike.
A misdemeanor conviction carries up to a year in county jail, a
$500 fine or both.
The nudists are represented by San Francisco civil rights attorney
Christina DiEdoardo.
SIRIUS XM: Sued Over Illegal Use of Motor Vehicle Registrations
---------------------------------------------------------------
Courthouse News Service reports that Sirius XM Radio is illegally
using motor vehicle registrations for mass marketing, a class
action claims in Federal Court.
SLOVENIA: Soldiers' Trade Union Files Class Action
--------------------------------------------------
STA reports that the Soldiers' Trade Union filed a class action
lawsuit on Nov. 15 against Slovenia over the payment of overtime,
demanding about EUR30 million in back payments stretching back to
mid-2008.
SPEARMINT RHINO: Court Approves $13 Million Class Suit Settlement
-----------------------------------------------------------------
Stephanie Hoops, writing for Ventura County Star, reports that a
federal court has approved a nearly $13 million settlement in a
nationwide class-action lawsuit initiated by women who worked as
exotic dancers for the Spearmint Rhino adult nightclub in Oxnard.
It took more than two years for U.S. District Court Judge Virginia
Phillips to approve the settlement as lawyers tried to show that
the agreement represented all the dancers' interests fairly.
Two women who danced at the Spearmint Rhino in Oxnard launched the
suit: Christeen Rivera and Tracy Dawn Trauth. They claimed they
were wrongly treated as independent contractors rather than
employees entitled to benefits. They sought back wages, tips,
attorney fees and damages.
According to the suit, the women each earned an average of
$500,000 a year in tips for lap and table dances. But the dancers
alleged most of the money went to the club to cover "rent," the
disc jockey, stage fees, overhead costs and even penalties if they
didn't get enough men to purchase drinks during a shift.
In addition to the financial hit to the 16 companies that were
sued, the clubs have agreed that within six months they will no
longer treat dancers as independent contractors or lessees, but as
employees, shareholders, partners or some type of owner. In
California specifically, dancers will no longer be charged stage
fees.
As part of the settlement, lawyers on both sides agreed to not
speak to the media for six months.
Ms. Rivera and Ms. Trauth were eventually joined by 12 other
Spearmint Rhino dancers who agreed to be named as class
representatives in the lawsuit. Each of them will get an
"incentive award" of $1,000 to $15,000 for the time they spent on
the case and the personal and professional risk they took in
allowing their names to be used.
The rest of the dancers' share of the $12.97 million settlement
will be divvied up among an unknown number of dancers in six
states who end up filing claims.
After attorney fees and incentive awards are deducted, dancers in
California are entitled to 50.14 percent of the remaining amount.
Dancers in Nevada will get 42.69 percent, and 7.16 percent will go
to dancers in Kentucky, Idaho, Texas and Florida.
SPRINT COMMS: Judge Approves $3.79MM Class Action Settlement
------------------------------------------------------------
Roxana Hegeman, writing for The Associated Press, reports that a
federal judge gave final approval on Nov. 14 to a $3.79 million
class action settlement over claims by thousands of Kansas
landowners against three of the nation's largest
telecommunications companies in a property rights dispute over
installation of fiber optic cable on railroad rights of way.
The ruling by U.S. Magistrate Judge Kenneth Gale affects about
3,700 Kansas landowners with property adjacent and underlying the
railroad rights of way.
Under terms of the settlement, more than $2.4 million in benefits
will be available for landowners. An additional $1 million goes
for attorneys' fees and $321,000 pays administrative costs.
The federal lawsuit in Kansas was filed in 2010 against Sprint
Communications Co., Qwest Communication Co. and Level 3
Communications.
The judge found that attorneys' fees of 26 percent of the value of
the settlement were "especially reasonable" given the unusually
lengthy and hard-fought litigation. He noted similar attorney
awards in the nine other settlements have received final approval
in federal courts in Idaho, Illinois, Alabama, North Dakota,
Montana, Michigan, Minnesota, Virginia and Vermont.
Judge Gale initially granted preliminary approval to the Kansas
settlement in March, an action that triggered the mailings of
formal notifications to landowners and hearings over the deal.
The Kansas settlement is among 46 settlements of railway rights of
way lawsuits in various legal stages across the country.
At issue in some of the 70 similar lawsuits filed in state and
federal courts is the practice whereby telecommunications
installed fiber-optic cable systems in railroad rights of way by
reaching agreements with the railroads that possessed those
rights. The plaintiffs alleged the railroads do not have
sufficient rights to authorize the installation, while the
defendants disagreed.
Under the settlement, the telecom companies will get easements
from landowners for fiber-optic cable.
Payments to landowners with valid claims vary on whether the
railroad originally acquired the property under a federal land-
grant statute or by private conveyance.
That dates back to the mid-1800s when Congress tried to encourage
the building of transcontinental railroads by granting railroads
not only right of way corridors but also ownership of alternating
sections of public lands on either side of those corridors,
according to court documents.
Kansas landowners with property adjacent to nonland-grant rights
of way who submit a qualified claim would be paid $2.10 per foot.
Property owners with land-grant claims would be paid between 13
cents and 52 cents per foot.
STARBUCKS: Baristas' Class Action Over Tipping Policy Resolved
--------------------------------------------------------------
QMI Agency reports that about 2,500 Starbucks baristas in
Massachusetts will get to keep more than $14 million awarded to
them when a court ruled the company's tipping policy is illegal in
the state.
The class-action initiated in 2008 by current and former baristas
claimed they should not be forced to share their tips with shift
supervisors. A federal court ruled in their favor and awarded
them damages totaling $14,126,542 plus interest.
The state's Tips Act says wait staff employees are not required to
share tips with anyone who is not a wait staff employee.
The federal appeals court based in Boston on Nov. 9 upheld the
decision, rejecting Starbucks' claim that shift supervisors are
wait staff, not managers, and called the chain's interpretation
"hair splitting."
"The Tips Act states unequivocally that only employees who possess
'no managerial responsibility' may qualify as 'wait staff,'" Judge
Bruce Selya wrote in the decision.
"After careful consideration of a fundamental (and previously
unanswered) interpretative question, we hold that the plain
language of the Tips Act prohibits the defendant's tip-pooling
policy," Judge Selya wrote. "We also reject the parties' other
claims of error. When all is said and done, we leave the
combatants where we found them."
TIME WARNER: Faces Class Action in New York Over Modem Fee
----------------------------------------------------------
Adam Klasfeld at Courthouse News Service reports that Time Warner
Cable is defrauding millions of customers by making them pay to
lease used modems along with their monthly fees, a class action
claims in state court.
Lead plaintiff Kathleen McNally sued Time Warner Cable in New York
County Supreme Court, on behalf of a proposed class of millions.
"Prior to October 15th, the company provided customers with
Internet modems included as part of their monthly service plans,"
the complaint states. "Now, however, TWC is charging millions of
customers an extra $3.95 per month for the privilege of 'leasing'
old modems -- used pieces of equipment that the company supplied
and typically wrote off as worthless years ago."
Time Warner has more than 50,000 employees and more than 15
million customers, making it the second-largest cable company in
the United States.
Given the company's size, the $3.95 lease charge adds up to "a
virtually guaranteed $40+ million cash flow per month," the
complaint states.
"With revenues already topping $19.7 billion in 2011, the new
modem fee could quickly pump another $500+ million per year into
the corporate coffers and push the company over the $20 billion
mark.
"To prevent defendant TWC's massive consumer fraud and breach of
contract, the New York plaintiffs seek a declaratory judgment and
injunction to stop the media giant from following through on its
scheme to charge this surprise fee both in New York as well as the
27 other states where Time Warner Cable has cable Internet
customers."
The class claims that Time Warner's code of professional business
conduct instructs its employees to ask themselves three questions
when making a business decision: "Does it feel right? How would
the person I respect the most view this decision? How would this
look in a newspaper?"
The plaintiffs answer in the complaint: "No, the surprise new
Lease Fee doesn't feel right; the people you respect would call it
a scam; and it will look terrible once the media gets hold of the
story. Yes, it's the same old story once again, a corporate
behemoth putting profits over people by way of some sneaky fee."
Time Warner spokesman Eric Mangan declined to comment on pending
litigation.
The class seeks an injunction and damages for breach of contract,
consumer fraud, unjust enrichment and other charges.
It is represented by Steven Wittels of Armonk, and Richard Roth in
New York City.
TITANIUM METALS: Being Sold to Precision for Too Little, Suit Says
------------------------------------------------------------------
Courthouse News Service reports that directors of Titanium Metals
Corp. are selling the company to Precision Castparts Corp. in an
unfair, self-dealing transaction for "no value," shareholders
claim in Chancery Court.
TRUSTWAVE CORP: Faces Suit Over South Carolina Tax System Hack
--------------------------------------------------------------
Jack Bouboushian at Courthouse News Service reports that South
Carolina's cyber-security contractor, Trustwave, let hackers into
the state tax system, compromising the personal information of 3.6
million South Carolinians, taxpayers claim in a federal class
action.
Lead plaintiff Amber Strautins sued Trustwave Corp. for breach of
contract, privacy invasion and negligence.
"Plaintiff and the other Class Members are taxpayers who filed tax
returns (or had tax returns filed on their behalf) with the South
Carolina Department of Revenue ('SCDOR') from 1998 to the
present," the complaint states. "By filing tax returns with the
SCDOR and paying their taxes, Plaintiff and the other Class
Members entrusted Trustwave, a SCDOR cyber-security contractor,
with the duty to protect their Social Security numbers, federal
identification numbers, credit card and/or debit card numbers, tax
returns and/or other personally identifiable information
(collectively, 'Personally Identifiable Information' or 'PII')
submitted in connection with filing their tax returns."
Ms. Strautins says the confidential identification of 3.6 million
people and 650,000 businesses may have been compromised.
"Sometime during August 2012 and September 2012, hackers
infiltrated and improperly accessed SCDOR computer systems
containing Plaintiff's and the other Class Members' PII through an
exposed portal on the SCDOR Web site and stole and compromised
Plaintiff's and the other Class Members' PII (the 'Data Breach').
Defendant failed to properly safeguard and protect SCDOR's
computer systems and, in the process, failed to safeguard and
protect Plaintiff's and the other Class Members' PII," according
to the complaint.
Ms. Strautins says Trustwave did not discover the security breach
until at least a month after it occurred, and did not inform class
members of the breach for weeks after it did know.
Citing a 2012 Identity Fraud Report released by Javelin Strategy &
Research, Ms. Strautins claims that "individuals whose PII is
subject to a reported data breach -- such as the data breach at
issue here -- are approximately 9.5 times more likely than the
general public to suffer identity fraud and/or identity theft.
Moreover, there is a high likelihood that significant identity
theft and/or identity fraud has not yet been discovered or
reported and a high probability that criminals who may now possess
Plaintiff's and the other Class Members' PII have not yet used the
information but will do so later, or re-sell it."
Ms. Strautins seeks punitive damages for violation of the Fair
Credit Reporting Act, negligence, invasion of privacy, and breach
of contract.
She is represented by Ben Barnow of Barnow and Associates, with
assistance from Richard Coffman in Beaumont, Texas.
TURKANA FOOD: Recalls "Turkana Valley" Brand Dried Apricots
-----------------------------------------------------------
Turkana Food Inc. of Kenilworth, New Jersey, is recalling 250 g
(8.82 oz) and 500 g (17.63 oz) containers of Turkish "Turkana
Valley" dried apricots because they were found to contain
undeclared sulfites as preservatives. People who have
sensitivities to sulfites run the risk of serious life-threatening
reaction if they consume this product.
The recalled "Turkana Valley" dried apricots product of Turkey was
distributed to retail stores in the northeast.
The products come in a plastic package 250 g (8.82 oz) and 500 g
(17.63 oz) with an orange and black colored label with the
following expiration and code information.
* 250 G (8.82 oz) PLASTIC CONTAINER/LOT# 11-4/EXP DATE 2-2013/
UPC# 8692594007804
* 500 G (17.63 oz) PLASTIC CONTAINER/LOT# 11-3/
EXP DATE 2-2013/UPC# 8692594007811
No illnesses have been reported to date in connection with this
problem.
The recall was initiated because NYSDAM found undeclared, high
sulfite levels in the dried apricots during routine product
sampling. It was discovered that the sulfites containing product
was distributed in packaging that did not reveal the presence of
sulfites as preservatives. Subsequent investigation indicates the
problem was caused by a temporary breakdown in the Company's
production and packaging processes.
The FDA is aware of this recall by Turkana Food Inc. Turkana Food
Inc. says it will take the necessary measures to recall the
products.
Already steps have been taken to quarantine the product in the
Company's warehouse. In addition, the Company will contact
customers to inform them that they need to pull this recalled
product "Turkana Valley" dried apricots 250 g (8.82 oz) and 500 g
(17.63 oz), off their shelves and keep them in their storage room
until the Company collects them.
Consumers who have purchased packages of "Turkana Valley" dried
apricots are urged to destroy or return them to the place of
purchase for a full refund. Consumers with questions may contact
the Company at (908) 810-8800. Business hours are Monday through
Friday 7:00 a.m. - 5:00 p.m. Eastern Standard Time, and Saturday
8:00 a.m. - 4:00 p.m. Eastern Standard Time.
UBER: Faces Suit For Creating Unfair Business Competition
---------------------------------------------------------
Will Reisman, writing for The San Francisco Examiner, reports that
cab drivers say that Uber creates unfair business competition
because they operate outside state and local regulations.
A class-action lawsuit has been filed against Uber demanding that
the transportation service company stop operating and pay taxi
drivers damages for lost wages.
Filed on behalf of cabdrivers Leonid Goncharov and Mohammed
Eddine, the suit claims Uber creates unfair business competition
by operating without regulation from state and local authorities.
Uber connects drivers with passengers looking for rides by using
smartphone technology to locate and dispatch taxis, limousines and
town cars.
While taxi drivers must have operating permits issued by The City,
Uber employees do not, the suit claims. As a result, Uber is
affecting the business of competing cabdrivers.
Meanwhile on Nov. 14, state regulator the California Public
Utilities Commission issued $20,000 citations for illegal
operations to Uber and fellow ride-service companies Lyft and
Sidecar. The citation cites a lack of proper insurance and
workers' compensation benefits, as well as a failure to enroll
operators in mandatory driving classes. Previously, the CPUC had
issued a cease-and-desist order against Uber, which has continued
to operate.
Gary Oswald, the attorney who filed the lawsuit, said the CPUC's
actions bolster the drivers' claims.
"This is all part and parcel of what we are arguing," Mr. Oswald
said. "This is the consequence of operating outside of the
required regulations."
The lawsuit also attempts to recoup damages for The City's 5,000
taxi drivers who have been affected by Uber. Mr. Oswald said he
has not determined how much the drivers will seek.
John Quinn, an attorney for Uber, said the company complies with
all laws and regulations applicable to its business.
"Any claim to the contrary is baseless and motivated by those who
seek to deprive the public of this safe and convenient
transportation option," Mr. Quinn said. "Uber would rather
compete for business on the streets of San Francisco than in the
courtroom, but Uber will defend these claims in court and is
confident of the outcome."
When faced with cease-and-desist orders in the past, Uber has
claimed that current regulations do not take into account
technological innovations made possible through smartphones.
Scott Dodson, a professor at UC Hastings College of the Law, was
skeptical of Uber's reasoning.
"Social and cultural developments can justify a change in the law,
but I doubt smartphone technology would justify a change in class-
action law here," Mr. Dodson said. "And it is unclear why
smartphone technology would justify a change in the substantive
law regulating taxicab services."
Mark Gruberg, spokesman for the United Taxicab Workers union, said
he hopes the lawsuit is successful.
"These guys are hurting us badly," Mr. Gruberg said. "This is a
company that is openly contentious of any kind of regulation.
They not only don't care about public transportation laws, they're
disdainful of them."
WELLCARE HEALTH: Still Subject to Contingencies Under Suit Deal
---------------------------------------------------------------
In December 2010, WellCare Health Plans, Inc., entered into a
Stipulation and Agreement of Settlement (the "Stipulation
Agreement") with the lead plaintiffs in the consolidated
securities class action Eastwood Enterprises, L.L.C. v. Farha, et
al., Case No. 8:07-cv-1940-VMC-EAJ. The Stipulation Agreement
included two contingencies to which WellCare remains subject.
First, it provides that if, within three years following the date
of the Stipulation Agreement, the Company is acquired or otherwise
experience a change in control at a share price of $30.00 or more,
the Company will pay to the class an additional $25,000. Second,
the Stipulation Agreement provides that the Company will pay to
the class 25% of any sums it recovers from Todd Farha, Paul
Behrens and/or Thaddeus Bereday as a result of claims arising from
the same facts and circumstances that gave rise to the
consolidated securities class action.
No further updates were reported in the Company's October 31,
2012, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended September 30, 2012.
WILLIAMS COS: Awaits April 2013 Trial on FHRA and WAPI Claims
-------------------------------------------------------------
The Williams Companies, Inc. is awaiting a scheduled April 2013
trial over contractual indemnification disputes between Williams
Alaska Petroleum Inc. (WAPI), and Flint Hills Resources Alaska,
LLC (FHRA) for sulfolane contamination, according to the Company's
October 31, 2012, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended September 30, 2012.
In January 2010, James West filed a class action lawsuit in state
court in Fairbanks, Alaska, on behalf of individual property
owners whose water contained sulfolane contamination allegedly
emanating from the Flint Hills Oil Refinery in North Pole, Alaska.
The lawsuit named the Company's subsidiary, Williams Alaska
Petroleum Inc. (WAPI), and Flint Hills Resources Alaska, LLC
(FHRA), a subsidiary of Koch Industries, Inc., as defendants. The
Company owned and operated the refinery until 2004 when the
Company sold it to FHRA. The Company and FHRA have made claims
under the pollution liability insurance policy issued in
connection with the sale of the North Pole refinery to FHRA. The
Company and FHRA also filed claims against each other seeking,
among other things, contractual indemnification alleging that the
other party caused the sulfolane contamination.
In August 2010, the court denied West's request for class
certification. On May 5, 2011, the Company and FHRA settled the
James West claim, leaving FHRA and WAPI claims. On November 17,
2011, the Company filed motions for summary judgment on FHRA's
claims against it, but the motions are unlikely to resolve all the
outstanding claims. Similarly, FHRA has filed motions for summary
judgment that would resolve some, but not all, of the Company's
claims against it. Trial is set for April 2013.
While significant uncertainty still exists due to, among other
things, ongoing proceedings and expert evaluations, the Company
says it currently estimates that its reasonably possible loss
exposure in this matter could range from an insignificant amount
up to $32 million. The Company might have the ability to recover
any such losses under the pollution liability policy if FHRA has
not exhausted the policy limits.
WILLIAMS COS: Continues to Defend Suits Over Gas Price Indices
--------------------------------------------------------------
The Williams Companies, Inc. continues to defend lawsuits alleging
manipulation of published gas price indices, according to the
Company's October 31, 2012, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended September
30, 2012.
On December 1, 2011, the Company announced that its Board of
Directors approved a tax-free spinoff of 100 percent of its
exploration and production business, WPX Energy, Inc. (WPX), to
the Company's shareholders. On December 31, 2011, the Company
distributed one share of WPX common stock for every three shares
of Williams common stock. As a result, with the exception of the
December 31, 2011 balance sheet which no longer includes WPX, the
Company's consolidated financial statements reflect the results of
operations and financial position of WPX as discontinued
operations.
Civil lawsuits based on allegations of manipulating published gas
price indices have been brought against WPX and others, in each
case seeking an unspecified amount of damages. WPX is currently a
defendant in class action litigation and other litigation
originally filed in state court in Colorado, Kansas, Missouri, and
Wisconsin brought on behalf of direct and indirect purchasers of
natural gas in those states. These cases were transferred to the
federal court in Nevada. In 2008, the court granted summary
judgment in the Colorado case in favor of WPX and most of the
other defendants based on plaintiffs' lack of standing. In 2009,
the court denied the plaintiffs' request for reconsideration of
the Colorado dismissal and entered judgment in WPX's favor. The
court's order became final on July 18, 2011, and the Colorado
plaintiffs might appeal the order.
In the other cases, on July 18, 2011, the Nevada district court
granted WPX's joint motions for summary judgment to preclude the
plaintiffs' state law claims because the federal Natural Gas Act
gives the Federal Energy Regulatory Commission ("FERC") exclusive
jurisdiction to resolve those issues. The court also denied the
plaintiffs' class certification motion as moot. In 2011, the
plaintiffs' appealed the court's ruling to the Ninth Circuit Court
of Appeals, and in early 2012, the parties completed briefing the
issues. A decision is expected in 2013.
Because of the uncertainty around these current pending unresolved
issues, including an insufficient description of the purported
classes and other related matters, the Company says it cannot
reasonably estimate a range of potential exposures at this time.
However, it is reasonably possible that the ultimate resolution of
these items and the Company's related indemnification obligation
could result in future charges that may be material to its results
of operations.
XEROX CORP: Awaits Summ. Judgment Bid Ruling in Securities Suit
---------------------------------------------------------------
Xerox Corporation is still awaiting a court decision on its motion
for summary judgment in the consolidated securities law action
pending in Connecticut, according to the Company's October 31,
2012, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended September 30, 2012.
A consolidated securities law action (consisting of 17 cases) is
pending in the United States District Court for the District of
Connecticut. Defendants are the Company, Barry Romeril, Paul
Allaire and G. Richard Thoman. The consolidated action is a class
action on behalf of all persons and entities who purchased Xerox
Corporation common stock during the period October 22, 1998,
through October 7, 1999, inclusive ("Class Period") and who
suffered a loss as a result of misrepresentations or omissions by
Defendants as alleged by Plaintiffs (the "Class"). The Class
alleges that in violation of Section 10(b) and/or 20(a) of the
Securities Exchange Act of 1934, as amended ("1934 Act"), and SEC
Rule 10b-5 thereunder, each of the defendants is liable as a
participant in a fraudulent scheme and course of business that
operated as a fraud or deceit on purchasers of the Company's
common stock during the Class Period by disseminating materially
false and misleading statements and/or concealing material facts
relating to the defendants' alleged failure to disclose the
material negative impact that the April 1998 restructuring had on
the Company's operations and revenues. The complaint further
alleges that the alleged scheme: (i) deceived the investing public
regarding the economic capabilities, sales proficiencies, growth,
operations and the intrinsic value of the Company's common stock;
(ii) allowed several corporate insiders, such as the named
individual defendants, to sell shares of privately held common
stock of the Company while in possession of materially adverse,
non-public information; and (iii) caused the individual plaintiffs
and the other members of the purported class to purchase common
stock of the Company at inflated prices. The complaint seeks
unspecified compensatory damages in favor of the plaintiffs and
the other members of the purported class against all defendants,
jointly and severally, for all damages sustained as a result of
defendants' alleged wrongdoing, including interest thereon,
together with reasonable costs and expenses incurred in the
action, including counsel fees and expert fees.
In 2001, the Court denied the defendants' motion for dismissal of
the complaint. The plaintiffs' motion for class certification was
denied by the Court in 2006, without prejudice to refiling. In
February 2007, the Court granted the motion of the International
Brotherhood of Electrical Workers Welfare Fund of Local Union No.
164, Robert W. Roten, Robert Agius ("Agius") and Georgia Stanley
to appoint them as additional lead plaintiffs. In July 2007, the
Court denied plaintiffs' renewed motion for class certification,
without prejudice to renewal after the Court holds a pre-filing
conference to identify factual disputes the Court will be required
to resolve in ruling on the motion. After that conference and
Agius's withdrawal as lead plaintiff and proposed class
representative, in February 2008 plaintiffs filed a second renewed
motion for class certification. In April 2008, defendants filed
their response and motion to disqualify Milberg LLP as a lead
counsel. On September 30, 2008, the Court entered an order
certifying the class and denying the appointment of Milberg LLP as
class counsel. Subsequently, on April 9, 2009, the Court denied
defendants' motion to disqualify Milberg LLP. On November 6,
2008, the defendants filed a motion for summary judgment.
Briefing with respect to the motion is complete. The Court has
not yet rendered a decision. The parties also filed motions to
exclude the testimony of certain expert witnesses. On April 22,
2009, the Court denied plaintiffs' motions to exclude the
testimony of two of defendants' expert witnesses. On September
30, 2010, the Court denied plaintiffs' motion to exclude the
testimony of another of defendants' expert witnesses. The Court
also granted defendants' motion to exclude the testimony of one of
plaintiffs' expert witnesses, and granted in part and denied in
part defendants' motion to exclude the testimony of plaintiffs'
two remaining expert witnesses.
The individual defendants and the Company deny any wrongdoing and
are vigorously defending the action. At this time, the Company
does not believe it is reasonably possible that it will incur
additional material losses in excess of the amount it has already
accrued for this matter. In the course of litigation, the Company
periodically engages in discussions with plaintiffs' counsel for
possible resolution of this matter. Should developments cause a
change in the Company's determination as to an unfavorable
outcome, or result in a final adverse judgment or a settlement for
a significant amount, there could be a material adverse effect on
the Company's results of operations, cash flows and financial
position in the period in which such change in determination,
judgment or settlement occurs.
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania,
USA, and Beard Group, Inc., Frederick, Maryland USA. Noemi Irene
A. Adala, Joy A. Agravante, Ivy B. Magdadaro, Psyche A. Castillon,
Julie Anne L. Toledo, Christopher Patalinghug, Frauline Abangan
and Peter A. Chapman, Editors.
Copyright 2012. All rights reserved. ISSN 1525-2272.
This material is copyrighted and any commercial use, resale or
publication in any form (including e-mail forwarding, electronic
re-mailing and photocopying) is strictly prohibited without prior
written permission of the publishers.
Information contained herein is obtained from sources believed to
be reliable, but is not guaranteed.
The CAR subscription rate is $575 for six months delivered via
e-mail. Additional e-mail subscriptions for members of the same
firm for the term of the initial subscription or balance thereof
are $25 each. For subscription information, contact Peter Chapman
at 240/629-3300.
* * * End of Transmission * * *