/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/121203.mbx C L A S S A C T I O N R E P O R T E R Monday, December 3, 2012, Vol. 14, No. 239 Headlines ABERCROMBIE & FITCH: Faces Overtime Class Action in Pennsylvania AUDIENCE INC: Faces Class Action in California Over IPO BRICK LTD: Settles Class Action Over Misleading Advertising BRIDGEPOINT EDUCATION: Awaits Decision in "Guzman" Class Suit BRIDGEPOINT EDUCATION: Defends Consolidated Securities Class Suit BRIDGEPOINT EDUCATION: Faces Suits Alleging WARN Act Violations BRIDGEPOINT EDUCATION: Wage and Hour Suit Deal Paid Out in Sept. COAL INDIA: Deadline Set for Shareholders to Join Class Suit Set CREDIT SUISSE: Seeks Dismissal of Class Action Over Trade Loss CREEKSTONE FARMS: $195,000 Class Action Settlement Awaits Approval DENDREON CORP: Still Awaits Ruling on Bid to Dismiss Wash. Suit G-U HARDWARE: Recalls 5,000 Window Fittings Due to Injury Hazard HSBC BANK: Settles Bankers' Overtime Class Action for $15.6-Mil. JPMORGAN CHASE: Shareholders File Revised Class Action LIVE NATION: Canadian Courts OK Resale Market Claims Settlement LIVE NATION: Ticketing Fees Suit Parties in Talks to Modify Deal LUCKY BRAND: Text-Spam Suit Settlement Gets Preliminary Court Nod MEYER MARKETING: Recalls 12,900 Kirkland Signature Saute Pans NEW YORK: Scheindlin to Decide on Stop-and-Frisk Class Action NEXTWAVE WIRELESS: Awaits Final OK of Securities Suit Settlement NEXTWAVE WIRELESS: Signs MOU to Settle Merger-Related Suits NUFARM: Settles Shareholder Class Action for AUD46.6 Million PACIFIC RETIREMENT: Rogue Valley Manor Residents to File Suit PARKLANE FINANCIAL: Edwin Harris Among Defendants in Class Action PEPPERIDGE FARM: Sued Over Cheddar Goldfish Crackers Advertising REGIONS FINANCIAL: Securities Suit in Ala. Stayed Pending Review REGIONS FINANCIAL: Funds-Related Class Suit Deal Not Yet Approved REGIONS FINANCIAL: Suit Over Overdraft Fees Remain Pending SKILLED HEALTHCARE: Units to Seek to End Humboldt Suit Injunction SPIRIT AEROSYSTEMS: Class Cert. Denial in Discrim. Suit Affirmed SPIRIT AEROSYSTEMS: Awaits Dismissal From "Harkness" Class Suit SPORTSPOWER LTD: Recalls 1,500 Children's Waterslides SPORTSPOWER LTD: Recalls 23,400 Trampolines Due to Injury Hazard SUKHI'S GOURMET: Recalls Red Curry Veggies Over Undeclared Shrimp TIME WARNER: Appeal From "Fink" Suit Dismissal Remains Pending TIME WARNER: Appeal in Set-Top Cable Antitrust MDL Pending TIME WARNER: Sup. Ct. Review of "Brantley" Suit Dismissal Sought TIME WARNER: Continues to Defend "Downs" Suit vs. Insight VISA: Majority of Class Plaintiffs to Appeal Settlement Ruling ZEEK REEWARDS: Former CEO Denies Ponzi Scheme Allegations ********* ABERCROMBIE & FITCH: Faces Overtime Class Action in Pennsylvania ---------------------------------------------------------------- Dan Packel, writing for Law360, reports that a Pennsylvania man on Nov. 26 filed a putative class action against retailer Abercrombie & Fitch Co. in Philadelphia's Court of Common Pleas, alleging the company's policies for calculating overtime wages violate the Pennsylvania Minimum Wage Act. Paul Oliver alleges that Abercrombie, which operates at least 44 stores in the state, relies on an overtime calculation that violates state law. The state law requires that employees receive overtime wages which are at least one-and-a-half times the regular rate. AUDIENCE INC: Faces Class Action in California Over IPO ------------------------------------------------------- Courthouse News Service reports that Audience Inc. raised $91.5 million in an IPO at $17 per share, a price inflated by false and misleading statements in its registration statement and prospectus, a class action claims in Santa Clara County Court. BRICK LTD: Settles Class Action Over Misleading Advertising ----------------------------------------------------------- Mail Tribune reports that The Brick Ltd. has agreed to pay C$2 million to settle a class-action lawsuit filed three years ago over claims the retailer's advertising erroneously suggested that customers pay no additional costs if they purchase goods on credit. The Quebec Superior Court approved the settlement on Nov. 27 in a suit launched by Option consommateurs, a Quebec consumer rights group. The Brick's "Do not pay for 15 months" program in fact required a C$35 annual membership fee. The furniture chain has agreed to reimburse customers who used this program before May 1, 2010. Customers who made purchases before May 1, 2009, will receive funds directly by mail in January. Other qualified customers must first complete a form on the Web site http://www.brickrecourscollectif.comas of the new year. The Edmonton-based company earned C$18.7 million in profits in its latest quarter on C$368.5 million of revenues. It operates 162 corporate stores, down from 173 a year ago. Toronto-based Leon's Furniture Ltd. announced earlier this month that it would purchase The Brick for C$700 million. Leon's said the deal would enhance the competitiveness of both chains in an increasingly gritty retail environment even though both banners will continue to fly separately. BRIDGEPOINT EDUCATION: Awaits Decision in "Guzman" Class Suit ------------------------------------------------------------- Bridgepoint Education, Inc. is awaiting a court decision on its motion to dismiss a class action lawsuit initiated by Betty Guzman, according to the Company's November 5, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2012. In January 2011, Betty Guzman filed a class action lawsuit against the Company, Ashford University and University of the Rockies in the U.S. District Court for the Southern District of California. The complaint is entitled Guzman v. Bridgepoint Education, Inc., et al, and alleges that the defendants engaged in misrepresentation and other unlawful behavior in their efforts to recruit and retain students. The complaint asserts a putative class period of March 1, 2005, through the present. In March 2011, the defendants filed a motion to dismiss the complaint, which was granted by the Court with leave to amend in October 2011. In January 2012, the plaintiff filed a first amended complaint asserting similar claims and the same class period, and the defendants filed another motion to dismiss. In May 2012, the Court granted the University of the Rockies' motion to dismiss and granted in part and denied in part the motion to dismiss filed by the Company and Ashford University. The Court also granted the plaintiff leave to file a second amended complaint. In August 2012, the plaintiff filed a second amended complaint asserting similar claims and the same class period. The second amended complaint seeks unspecified monetary relief, disgorgement of all profits, various other equitable relief, and attorneys' fees. The defendants filed a motion to strike portions of the second amended complaint, which is currently pending with the court. The Company believes the lawsuit is without merit and intends to vigorously defend against it. However, because of the many questions of fact and law that may arise, the outcome of this legal proceeding is uncertain at this point. Based on the information available to the Company at present, it cannot reasonably estimate a range of loss for this action and accordingly has not accrued any liability associated with this action. BRIDGEPOINT EDUCATION: Defends Consolidated Securities Class Suit ----------------------------------------------------------------- Bridgepoint Education, Inc. is defending itself from a consolidated securities class action lawsuit in California, according to the Company's November 5, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2012. On July 13, 2012, a securities class action complaint was filed in the U.S. District Court for the Southern District of California by Donald K. Franke naming the Company, Andrew Clark, Daniel Devine and Jane McAuliffe as defendants for allegedly making false and materially misleading statements regarding the Company's business and financial results, specifically the concealment of accreditation problems at Ashford University. The complaint asserts a putative class period stemming from May 3, 2011, to July 6, 2012. A substantially similar complaint was also filed in the same court by Luke Sacharczyk on July 17, 2012, making similar allegations against the Company, Andrew Clark and Daniel Devine. The Sacharczyk complaint asserts a putative class period stemming from May 3, 2011, to July 12, 2012. Finally, on July 26, 2012, another purported securities class action complaint was filed in the same court by David Stein against the same defendants based upon the same general set of allegations and class period. The complaints allege violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder and seek unspecified monetary relief, interest, and attorneys' fees. On October 22, 2012, the Sacharczyk and Stein actions were consolidated with the Franke action and the Court appointed the City of Atlanta General Employees Pension Fund and the Teamsters Local 677 Health Services & Insurance Plan as lead plaintiffs. The Company has not yet responded to these complaints and anticipates that a consolidated amended complaint will be filed in December 2012. The Company says it intends to vigorously defend against the consolidated action. However, because of the many questions of fact and law that may arise, the outcome of these legal proceedings is uncertain at this point. Based on information available to the Company at present, it cannot reasonably estimate a range of loss and accordingly has not accrued any liability associated with these actions. BRIDGEPOINT EDUCATION: Faces Suits Alleging WARN Act Violations --------------------------------------------------------------- Bridgepoint Education, Inc. is facing class action lawsuits alleging violations of the California Worker Adjustment and Retraining Notification Act, according to the Company's November 5, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2012. On October 24, 2012, a class action complaint was filed in California Superior Court by former employee Marlo Montano naming the Company and Ashford University as defendants. The complaint asserts a putative class consisting of former employees who were terminated in January 2012 and July 2012 as a result of a mass layoff, relocation or termination and alleges that the defendants failed to comply with the notice and payment provisions of the California WARN Act. A substantially similar complaint was also filed in the same court on the same day by Austin Dilts making similar allegations and asserting the same putative class. The complaints seek back pay, the cost of benefits, penalties and interest on behalf of the putative class members, as well as other equitable relief and attorneys' fees. The Company and Ashford University are currently evaluating these actions and intend to vigorously defend against them. Because of the many questions of fact and law that may arise, the outcome of these legal proceedings is uncertain at this point. Based on information available to the Company at present, it cannot reasonably estimate a range of loss and accordingly has not accrued any liability associated with these actions. BRIDGEPOINT EDUCATION: Wage and Hour Suit Deal Paid Out in Sept. ---------------------------------------------------------------- Bridgepoint Education, Inc.'s court-approved settlement of a consolidated wage and hour lawsuit was paid out during the three months ended September 30, 2012, according to the Company's November 5, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2012. In February 2011, the Company received a copy of a complaint filed as a class action lawsuit naming the Company, Ashford University, LLC, and certain employees as defendants. The complaint was filed in the Superior Court of the State of California in San Diego and was captioned Stevens v. Bridgepoint Education, Inc. The complaint generally alleged that the plaintiffs and similarly situated employees were improperly denied certain wage and hour protections under California law. In April 2011, the Company received a copy of a complaint filed as a class action lawsuit naming the Company and Ashford University, LLC, as defendants. The complaint was filed in the Superior Court of the State of California in San Diego, and was captioned Moore v. Ashford University, LLC. The complaint generally alleged that the plaintiff and similarly situated employees were improperly denied certain wage and hour protections under California law. In May 2011, the Company received a copy of a complaint filed as a class action lawsuit naming the Company as a defendant. The complaint was filed in the Superior Court of the State of California in San Diego on May 6, 2011, and was captioned Sanchez v. Bridgepoint Education, Inc. The complaint generally alleged that the plaintiff and similarly situated employees were improperly denied certain wage and hour protections under California law. In October 2011, the cases were consolidated because they involved common questions of fact and law, with Stevens v. Bridgepoint Education, Inc. designated as the lead case. In April 2012, the Company entered into a settlement agreement with the plaintiffs of the cases to settle the claims on a class- wide basis. Under the terms of the settlement agreement, the Company agreed to pay an amount to settle the plaintiffs' claims, plus any related payroll taxes. The Company accrued a $10.8 million expense in connection with the settlement agreement during the nine months ended September 30, 2012. On August 24, 2012, the Court granted final approval of the class action settlement and entered a final judgment in accordance with the terms of the settlement agreement. This settlement was paid out during the three months ended September 30, 2012. COAL INDIA: Deadline Set for Shareholders to Join Class Suit Set ---------------------------------------------------------------- Sumit Moitra, writing for Daily News & Analysis, reports that shareholders of Coal India Limited have 15 days to join the country's first class action suit filed by TCI Cyprus Holding in the Calcutta High Court against Coal India. There is no precedence to this kind of suits in the country, which in this case has been technically termed as a "representative action". "This is a class action suit and any shareholder interested in it can apply to the court within the next 15 days with their own claims," a lawyer with Luthra & Luthra, the legal firm representing TCI, told DNA. Besides Coal India as an entity, all its 17 directors, its largest shareholder (the Indian government) and its seven mining subsidiaries have been made party to the suit. TCI, which owns 1.007% of Coal India as at September-end, is the second largest investor in the mining major. If you don't have an idea how much to claim from Coal India, here's a clue: TCI has held Coal India and the others responsible for an estimated INR2,15,250 crore of losses suffered by the company by not selling coal at market rates to linkage customers since it went public. "Additionally, in our plaint, we have sought a decree for a sum of Rs 9,942.18 crore for the loss in the value of holdings of TCI and perpetual injunction restraining the government from interfering with the administration of the company," the lawyer said. TCI has also prayed for attachment of Coal India's properties if the judgment goes in its favor. The Companies Bill 2011 approved by the Union Cabinet in November provides for class-action lawsuits under Section 245 and 246, allowing a large number of people with common grievances to sue or be sued as a group. "The foundation of this representative action is these allegations. The government of India is making an undue interference in the fixing and regulation of price of coal. The fact is that the price of coal fixed by them is much below its market value, as a result of which the first defendant (Coal India) is suffering loss. This price fixing or regulation is made mostly in case of fuel supply agreements. "Secondly, there is a large-scale theft or misappropriation of this resource, which is also a cause of loss to the company, it is alleged. The above allegations are denied by Sudipto Sarkar, learned senior advocate appearing for the first defendant," Judge IP Mukerji had said while ordering the institution of the class action suit in October. While no interim order was given, the court directed filing of affidavit-in-opposition by November 30. The next hearing of the case is on December 12. CREDIT SUISSE: Seeks Dismissal of Class Action Over Trade Loss -------------------------------------------------------------- Nathan Hale, writing for Law360, reports that Credit Suisse AG demanded on Nov. 26 that a New York federal court throw out a class action accusing the bank of understating the risks of an exchange-traded note it issued that led to $340 million in rapid losses earlier this year. In its motion to dismiss, the financial services giant tried to refute investors' claims, stressing that it had provided explicit warnings of the inherent risks in the security's offering documents, particularly explaining that it was not designed for long-term investment. CREEKSTONE FARMS: $195,000 Class Action Settlement Awaits Approval ------------------------------------------------------------------ The Associated Press reports that a settlement agreement in a lawsuit brought by workers against the Creekstone Farms slaughterhouse in Arkansas City is awaiting approval by the federal judge overseeing the class action litigation. U.S. District Judge Eric Melgren will decide whether to approve a settlement reached in August. A joint request by the parties that included details of the deal was filed earlier this month. Workers alleged Creekstone wasn't paying them for all the time they worked. Creekstone said it paid for all time worked, including overtime. Under the proposed $195,000 settlement, about $110,000 would be split among the 144 class members. The amount paid each worker would be based on how often the employee worked during the three- year claim period. Most of the rest of the settlement would go to workers' attorneys. DENDREON CORP: Still Awaits Ruling on Bid to Dismiss Wash. Suit --------------------------------------------------------------- Dendreon Corporation is still awaiting a court decision on its motion to dismiss a consolidated securities suit pending in Washington, according to the Company's November 2, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2012. The Company and three current and former officers are named defendants in a consolidated putative securities class action proceeding filed in August 2011 with the United States District Court for the Western District of Washington (the "District Court") under the caption In re Dendreon Corporation Class Action Litigation, Master Docket No. C 11-1291 JLR. Lead Plaintiff, San Mateo County Employees Retirement Association, purports to state claims for violations of federal securities laws on behalf of a class of persons who purchased the Company's common stock between April 29, 2010, and August 3, 2011. A consolidated amended complaint was filed on February 24, 2012. In general, the complaints allege that the defendants issued materially false or misleading statements concerning the Company, its finances, business operations and prospects with a focus on the market launch of PROVENGE and related forecasts concerning physician adoption, and revenue from sales of PROVENGE as reflected in the Company's August 3, 2011 release of its financial results for the quarter ended June 30, 2011. The Company and other defendants filed a motion to dismiss the consolidated amended complaint on April 27, 2012, and that motion is fully briefed and awaiting further action by the Court. No further updates were reported in the Company's latest SEC filing. The Company says it cannot predict the outcome of that motion or of these lawsuits; however, the Company believes the claims lack merit and intends to defend the claims vigorously. Dendreon Corporation -- http://www.dendreon.com/-- is a biotechnology company that engages in the discovery, development, and commercialization of novel therapeutics to enhance cancer treatment options for patients. The Company's product portfolio includes active cellular immunotherapy and small molecule product candidates to treat a range of cancers. The Company offers PROVENGE (sipuleucel-T), an autologous cellular immunotherapy for the treatment of asymptomatic or minimally symptomatic, metastatic, castrate-resistant (hormone-refractory), and prostate cancer. The Company was founded in 1992 and is headquartered in Seattle, Washington. G-U HARDWARE: Recalls 5,000 Window Fittings Due to Injury Hazard ---------------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with distributor, G-U Hardware, Inc., of Newport News, Virginia, and manufacturer, G-U Yapi of Turkey, announced a voluntary recall of about 5,000 Window Fittings: Tilt-turn Stay Arms and Side-hung Sash Hinges. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The window fittings can break. This can cause the window to fall, posing an injury hazard to consumers. G-U Hardware has received two reports of windows falling, including one report of a broken thumb. This recall involves tilt-turn stay arm and side-hung sash hinge adjustable window fittings. They are used to attach a window to a frame and primarily sold for use in commercial buildings. The fittings have clamps, locking pins and stainless steel springs. "G-U" and the component number are stamped at the ends of the fitting. The recalled G-U Hardware window fittings have the following model names, and model and component numbers: Window Fitting Model Name Model Number Component # -------------- ---------- ------------ ----------- Side-hung sash hinge Jet AK8 6-31064-00-0-1 9-31209 Tilt-turn stay arm Jet AK8 30 K-15805-00-0-1 9-31209 Tilt-turn stay arm Jet AK8 50 K-15806-00-0-1 9-31208 Tilt-turn stay arm Jet AK8 90 K-15807-00-0-1 9-31208 A picture of the recalled products is available at: http://www.cpsc.gov/cpscpub/prerel/prhtml13/13050.html The recalled products were manufactured in Turkey and sold by G-U Hardware directly to hardware wholesalers and window manufacturers nationwide from October 2002 to December 2011 for between $7 and $26. Contact G-U Hardware to arrange for the free replacement and installation of new window fittings. For additional information, contact GU Hardware toll-free at (855) 355-8810 from 7:30 a.m. to 12:00 p.m. and from 1:00 p.m. to 4:30 p.m. Eastern Time Monday through Thursday; and from 7:30 a.m. to 12:00 p.m. and from 1:00 p.m. to 2:00 p.m. Eastern Time Friday, or visit the firm's Web site at http://www.ak-warning.com/ HSBC BANK: Settles Bankers' Overtime Class Action for $15.6-Mil. ---------------------------------------------------------------- Ama Sarfo, writing for Law360, reports that HSBC Bank USA NA has agreed to pay $15.6 million to resolve a putative class action alleging the company withheld overtime wages from some of its bankers, managers and specialists, according to a proposed settlement filed on Nov. 26 in New York federal court. The plaintiffs' class representatives asked the court for preliminary approval of their settlement, as well as conditional certification for four subclasses of employees who worked for HSBC in New York, California, Connecticut and New Jersey, saying efficiency weighed in favor of a settlement. JPMORGAN CHASE: Shareholders File Revised Class Action ------------------------------------------------------ FINalternatives reports that JPMorgan Chase shareholders have trotted out the dreaded epithet -- "hedge fund" -- in a revised class-action lawsuit against the bank. The shareholders, led by several public pension funds, accuse the bank of turning its chief investment office into a "secret hedge fund." The move blew up in the bank's face when a trader known as the "London whale" cost it some $6 billion on bad credit-default swap index trades. JPMorgan CEO Jamie Dimon "secretly transformed the CIO from a risk management unit into a proprietary trading desk whose principal purpose was to engage in speculative, high-risk bets designed to generate profits," the revised class-action complaint, filed in New York federal court, alleges. The JPMorgan investors, led by the Arkansas Teacher Retirement System, Ohio Public Employees Retirement System and the state of Oregon, also named former chief investment officer Ina Drew, chief financial officer Douglas Braunstein and corporate and investment banking co-CEO Michael Cavanagh in the complaint, alleging that "JPMorgan senior management made a conscious, strategic decision to use the CIO for proprietary trading in pursuit of short-term profits." The lawsuit covers investors who bought JPMorgan stock between Feb. 24, 2010 and May 21, 2012. The complaint takes particular aim at JPMorgan's decision not to create a liquidity reserve to backstop the Bruno Iksil -- the whale -- portfolio. "Because the company never took the liquidity reserve it was required to have taken, the company's net income was overstated by at least $2 billion each quarter during the class period, rendering JPMorgan's financial statements materially false." LIVE NATION: Canadian Courts OK Resale Market Claims Settlement --------------------------------------------------------------- Live Nation Entertainment, Inc. received final approvals from all provinces of its settlement of resale market claims in class action lawsuits filed in Canada, according to the Company's November 5, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2012. In February 2009, five putative consumer class action complaints were filed in various provinces of Canada against TicketsNow, Ticketmaster, Ticketmaster Canada Ltd. and Premium Inventory, Inc. All of the cases allege essentially the same set of facts and causes of action. Each plaintiff purports to represent a class consisting of all persons who purchased a ticket from Ticketmaster, Ticketmaster Canada Ltd. or TicketsNow from February 2007 to present and alleges that Ticketmaster conspired to divert a large number of tickets for resale through the TicketsNow Web site at prices higher than face value. The plaintiffs characterize these actions as being in violation of Ontario's Ticket Speculation Act, the Amusement Act of Manitoba, the Amusement Act of Alberta or the Quebec Consumer Protection Act. The Ontario case contains the additional allegation that Ticketmaster's and TicketsNow's service fees violate anti-scalping laws. Each lawsuit seeks compensatory and punitive damages on behalf of the class. In February 2012, the parties entered into a settlement agreement that will resolve all of the resale market claims. The court approval process for the settlement has been completed, with final approvals given in all provinces. As of September 30, 2012, the Company has accrued its best estimate of the probable costs associated with the resale market claims of this matter, the full amount of which was funded by an escrow established in connection with Ticketmaster's 2008 acquisition of TicketsNow. While it is reasonably possible that a loss related to the primary market claims of this matter could be incurred by the Company in a future period, the Company does not believe that a loss is probable of occurring at this time. Considerable uncertainty remains regarding the validity of the claims and damages asserted against the Company. As a result, the Company is currently unable to estimate the possible loss or range of loss for the primary market claims of this matter. The Company says it intends to continue to vigorously defend all claims in all of the actions. LIVE NATION: Ticketing Fees Suit Parties in Talks to Modify Deal ---------------------------------------------------------------- Parties to the class action lawsuit over ticketing fees continue to discuss potential modifications to their settlement agreement, according to Live Nation Entertainment, Inc.'s November 5, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2012. In October 2003, a putative representative action was filed in the Superior Court of California challenging Ticketmaster's charges to online customers for shipping fees and alleging that its failure to disclose on its Web site that the charges contain a profit component is unlawful. The complaint asserted a claim for violation of California's Unfair Competition Law ("UCL") and sought restitution or disgorgement of the difference between (i) the total shipping fees charged by Ticketmaster in connection with online ticket sales during the applicable period, and (ii) the amount that Ticketmaster actually paid to the shipper for delivery of those tickets. In August 2005, the plaintiffs filed a first amended complaint, then pleading the case as a putative class action and adding the claim that Ticketmaster's website disclosures in respect of its ticket order processing fees constitute false advertising in violation of California's False Advertising Law. On this new claim, the amended complaint seeks restitution or disgorgement of the entire amount of order processing fees charged by Ticketmaster during the applicable period. In April 2009, the Court granted the plaintiffs' motion for leave to file a second amended complaint adding new claims that (a) Ticketmaster's order processing fees are unconscionable under the UCL, and (b) Ticketmaster's alleged business practices further violate the California Consumer Legal Remedies Act. Plaintiffs later filed a third amended complaint, to which Ticketmaster filed a demurrer in July 2009. The Court overruled Ticketmaster's demurrer in October 2009. The plaintiffs filed a class certification motion in August 2009, which Ticketmaster opposed. In February 2010, the Court granted certification of a class on the first and second causes of action, which alleges that Ticketmaster misrepresents/omits the fact of a profit component in Ticketmaster's shipping and order processing fees. The class would consist of California consumers who purchased tickets through Ticketmaster's Web site from 1999 to present. The Court denied certification of a class on the third and fourth causes of action, which allege that Ticketmaster's shipping and order processing fees are unconscionably high. In March 2010, Ticketmaster filed a Petition for Writ of Mandate with the California Court of Appeal, and plaintiffs also filed a motion for reconsideration of the Superior Court's class certification order. In April 2010, the Superior Court denied plaintiffs' Motion for Reconsideration of the Court's class certification order, and the Court of Appeal denied Ticketmaster's Petition for Writ of Mandate. In June 2010, the Court of Appeal granted the plaintiffs' Petition for Writ of Mandate and ordered the Superior Court to vacate its February 2010 order denying plaintiffs' motion to certify a national class and enter a new order granting plaintiffs' motion to certify a nationwide class on the first and second claims. In September 2010, Ticketmaster filed its Motion for Summary Judgment on all causes of action in the Superior Court, and that same month plaintiffs filed their Motion for Summary Adjudication of various affirmative defenses asserted by Ticketmaster. In November 2010, Ticketmaster filed its Motion to Decertify Class. In December 2010, the parties entered into a binding agreement providing for the settlement of the litigation and the resolution of all claims therein. In September 2011, the Court declined to approve the settlement in its then-current form. Litigation continued, and in September 2011, the Court granted in part and denied in part Ticketmaster's Motion for Summary Judgment. The parties reached a new settlement in September 2011, which was approved preliminarily, but in September 2012 the Court declined to grant final approval. In doing so, the court identified potential modifications to the settlement, and the parties continue to discuss such potential modifications and the possibility of a revised settlement agreement. Ticketmaster and its parent, Live Nation, have not acknowledged any violations of law or liability in connection with the matter. As of September 30, 2012, the Company has accrued $35.4 million, its best estimate of the probable costs associated with the settlement. This liability includes an estimated redemption rate. Any difference between the Company's estimated redemption rate and the actual redemption rate it experiences will impact the final settlement amount; however, the Company does not expect this difference to be material. LUCKY BRAND: Text-Spam Suit Settlement Gets Preliminary Court Nod ----------------------------------------------------------------- Gavin Broady, writing for Law360, reports that a California judge on Nov. 26 gave a preliminary nod to a nearly $10 million class action settlement between Lucky Brand Dungarees Inc., its marketing subcontractors and a nationwide class of consumers who accused them of text-spamming them as part of a 2008 back-to- school promotion. All persons who received promotional texts advertising discounted Lucky Jeans between Aug. 24 and Sept. 15, 2008, will be entitled to up to $100 under the deal. MEYER MARKETING: Recalls 12,900 Kirkland Signature Saute Pans ------------------------------------------------------------- About 12,900 Kirkland Signature Six-Quart Saute Pans with glass lids were voluntarily recalled by Meyer Marketing Co. Ltd, of Macau, 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 pan's tempered glass lid can crack, break or shatter, posing a laceration hazard to consumers. Meyer has received 97 reports of the pan's glass lids breaking or shattering. No injuries have been reported. This recall involves Kirkland Signature six-quart, black, hard- anodized aluminum saute pans with glass lids. The tempered glass lids have a stainless steel rim and handle. The pan is about 3 inches deep and the pan and lid each measure about 12 inches in diameter. "Kirkland Signature," "6 QT/5.6 L" and "Made in Thailand" are printed on the bottom of the saute pan. Pictures of the recalled products are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml13/13708.html The recalled products were manufactured in Thailand and sold exclusively at Costco Wholesale stores in the San Francisco Bay area and in the Northeast from May 2012 through October 2012 for about $35. Consumers should immediately stop using the recalled pans and glass lids and return them to any Costco store for a full refund. Costco is contacting its customers directly. Costco may be reached toll-free at (877) 782-8242 from 7:00 a.m. to 5:00 p.m. Pacific Time Monday through Friday, or online at http://www.costco.com/and click on Recalls for more information. NEW YORK: Scheindlin to Decide on Stop-and-Frisk Class Action ------------------------------------------------------------- Robert Gearty, writing for New York Daily News, reports that a federal judge was not happy to learn on Nov. 27 she would be the one to decide the legality of the NYPD's hugely controversial stop-and-frisk program, as opposed to a jury. "Either way the judge is going to be attacked," said Manhattan Federal Judge Shira Scheindlin. "It's not a verdict of the community and I thought that would have been helpful for a case like this." Last May, Judge Scheindlin said there was "overwhelming evidence" thousands of stop-and-frisks were unlawful when she decided to grant the lawsuit class action status. The case is one of three ongoing lawsuits challenging aspects of the NYPD's stop-and-frisk program -- this one focusing on street stops. More than 80% of the 2.8 million people subjected to stop-and- frisks from 2004 to 2009 were black or Latino, according to Judge Scheindlin's ruling. The city denies the stops are improper. One of the plaintiff's lawyers, Darius Charney, said the sole issue in the case is the constitutionality of the stop-and-frisk program, so a federal judge was in the best position to decide that. "We want this case decided as expeditiously as possible," he said. The trial is set to begin March 2013. NEXTWAVE WIRELESS: Awaits Final OK of Securities Suit Settlement ---------------------------------------------------------------- NextWave Wireless Inc. is awaiting final approval of its settlement of a consolidated securities class action lawsuit, according to the Company's November 5, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 29, 2012. On September 16, 2008, a putative class action lawsuit, captioned "Sandra Lifschitz, On Behalf of Herself and All Others Similarly Situated, Plaintiff, v. NextWave Wireless Inc. et al., Defendants," was filed in the U.S. District Court for the Southern District of California against the Company and certain of its officers. The lawsuit alleges that the defendants made false and misleading statements and/or omissions in violation of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder. The lawsuit seeks unspecified damages, interest, costs, attorneys' fees, and injunctive, equitable or other relief on behalf of a purported class of purchasers of the Company's common stock during the period from March 30, 2007, to August 7, 2008. A second putative class action lawsuit captioned "Benjamin et al. v. NextWave Wireless Inc. et al." was filed on October 21, 2008, alleging the same claims on behalf of purchasers of the Company's common stock during an extended class period, from November 27, 2006, through August 7, 2008. On February 24, 2009, the Court issued an Order consolidating the two cases and appointing a lead plaintiff pursuant to the Private Securities Litigation Reform Act. On May 15, 2009, the lead plaintiff filed an Amended Complaint, and on June 29, 2009, the Company filed a Motion to Dismiss that Amended Complaint. On March 5, 2010, the Court granted the Company's Motion to Dismiss without prejudice, permitting the lead plaintiff to file an Amended Complaint. On March 26, 2010, the lead plaintiff filed a Second Amended Consolidated Complaint, and the Company subsequently filed a Motion to Dismiss. On March 16, 2011, the Court granted the Company's Motion and dismissed the complaint without prejudice. On May 5, 2011, the lead plaintiff filed a Third Amended Complaint, and the Company again filed a Motion to Dismiss. On November 21, 2011, the Court granted the Company's Motion and dismissed the case with prejudice. On December 19, 2011, the lead plaintiff filed a Notice of Appeal with the Ninth Circuit Court of Appeals. The Company and its insurance carrier have agreed with the lead plaintiff on the final terms of a settlement. The settlement provides for a full release and dismissal of all claims asserted against all defendants in the litigation and the appeal, in exchange for payment of $1.4 million by the Company's insurance carrier. The settlement is subject to court approval following notice to the potential class members. The Court of Appeals dismissed the appeal on June 25, 2012, and the case has been returned to the district court for the approval process. The district court has approved the application for preliminary approval of the settlement and the final approval hearing was scheduled for November 9, 2012. The Company continues to maintain the D&O and corporate liability insurance covering certain risks associated with securities claims filed against the Company or its directors and officers, with insurance from multiple carriers, each insuring a different layer of exposure, up to a total of $50 million. The Company has accrued for liabilities equal to the financial deductible of the Company's D&O policy for the period covering the time the class action lawsuit for this matter was filed. Other than accruing for the Company's financial deductible, the Company has not recorded any significant accruals for contingent liabilities associated with this matter based on its belief that a liability in excess of its insurance coverage, while possible, is not probable. NextWave Wireless Inc. is a holding company for a significant wireless spectrum portfolio. Its continuing operations are focused on the management of its wireless spectrum interests. The Company's total domestic spectrum holdings consist of approximately 3.9 billion MHz POPs. The term "MHz-POPs" is defined as the product derived from multiplying the number of megahertz associated with a license by the population of the license's service area. The Company is headquartered in San Diego, California. NEXTWAVE WIRELESS: Signs MOU to Settle Merger-Related Suits ----------------------------------------------------------- NextWave Wireless Inc. entered into a memorandum of understanding to settle merger-related class action lawsuits, according to the Company's November 5, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 29, 2012. On August 1, 2012, the Company entered into an Agreement and Plan of Merger (the "Merger Agreement") with AT&T Inc., a Delaware corporation ("AT&T") and Rodeo Acquisition Sub Inc., a Delaware corporation and a direct wholly-owned subsidiary of AT&T ("Merger Sub"). Under the terms and subject to the conditions set forth in the Merger Agreement, Merger Sub will be merged with and into the Company, with the Company continuing as the surviving corporation and a direct wholly-owned subsidiary of AT&T (the "Merger"). On August 31, 2012, a putative class action lawsuit was filed in the Court of Chancery of the State of Delaware against the Company, AT&T, Merger Sub, Allen Salmasi, Douglas F. Manchester, Jack Rosen, Nadar Tavakoli, Carl E. Vogel and William H. Webster alleging, among other things, that the Company's board of directors and certain of its executive officers breached various fiduciary duties in connection with the board of directors' approval of the proposed Merger and that the Company, AT&T and Merger Sub aided and abetted such alleged breaches of fiduciary duties. The plaintiff seeks injunctive relief preventing the Merger, an order rescinding the proposed Merger in the event it is not enjoined, and damages as a result of the alleged actions of the defendants, including attorneys' and experts' fees (the "Weiss Action"). Subsequently, on September 6, 2012, two additional complaints were filed in the Superior Court of California, County of San Diego by Thomas Juzwik and Elias Rodriguez against the Company, AT&T, Merger Sub, Allen Salmasi, Jack Rosen, William Webster, Douglas F. Manchester, Robert Symington, Frank Cassou and Francis Harding, containing substantially similar allegations to those set forth in the Weiss Action. The Juzwik, Rodriquez and Weiss actions are collectively referred to as the actions. In order to avoid the costs, risks and uncertainties inherent in litigation and to allow stockholders to vote on the proposal to adopt the Merger Agreement at the scheduled special meeting, the Company and the other defendants entered into a memorandum of understanding (the "Memorandum of Understanding") with plaintiffs' counsel on September 20, 2012, in connection with the actions, pursuant to which the Company, the other named defendants and the plaintiffs have agreed to settle the actions subject to court approval. If the Delaware court approves the settlement, the Weiss action will be dismissed with prejudice and the plaintiffs in the Juzwik and Rodriquez actions will dismiss their complaints based on the settlement of the Weiss action. The Company continues to maintain the directors and officers and corporate liability insurance covering certain risks associated with securities claims filed against the Company or its directors and officers with insurance from multiple carriers, each insuring a different layer of exposure, up to a total of $50 million. The Company has accrued for liabilities equal to the financial deductible of the Company's D&O policy for the period covering the time the class action lawsuit for this matter was filed. Other than accruing for the Company's financial deductible, the Company has not recorded any significant accruals for contingent liabilities associated with this matter based on its belief that a liability in excess of its insurance coverage, while possible, is not probable. NextWave Wireless Inc. is a holding company for a significant wireless spectrum portfolio. Its continuing operations are focused on the management of its wireless spectrum interests. The Company's total domestic spectrum holdings consist of approximately 3.9 billion MHz POPs. The term "MHz-POPs" is defined as the product derived from multiplying the number of megahertz associated with a license by the population of the license's service area. The Company is headquartered in San Diego, California. NUFARM: Settles Shareholder Class Action for AUD46.6 Million ------------------------------------------------------------ Lucy Battersby, writing for Knox Weekly, reports that Nufarm will avoid a lengthy trial next year after settling a shareholder class action for AUD46.6 million. The shareholders alleged that Nufarm's 2010 profit forecast was excessively positive and misleading. By settling the matter Nufarm avoids drawn-out legal action and does not admit any fault. The money will be split among shareholders. Justice John Middleton of the Federal Court in Melbourne approved the settlement on Nov. 28. The law firms Maurice Blackburn and Slater & Gordon started the class action in 2011 on behalf of more than 700 shareholders, including mum and dad investors. Shareholders alleged Nufarm's profit forecast of between AUD110 million and AUD130 million for 2009-10 was misleading and deceptive. Shares dropped from AUD5.35 to AUD3.25 in one week after the company halved the profit guidance to between AUD55 million and AUD65 million. The Slater & Gordon lawyer Odette McDonald said the outcome was a "great result for shareholders". "It really means a significant reduction in legal costs and a bigger return for those investors seeking to recoup lost funds", she said. In August the Nufarm chairman, Donald McGauchie, said the board had "carefully considered risks and costs associated with a protracted litigation, and demand on management's time as the company implements its strategic growth plans". It originally agreed to settle for AUD43.5 million but this increased to AUD46.6 million after more shareholders joined the action. A trial was scheduled to start in September 2013. The AUD43.5 million was booked as a material item in Nufarm's 2011-12 accounts. The extra AUD3.1 million will be reported in the current financial year. PACIFIC RETIREMENT: Rogue Valley Manor Residents to File Suit ------------------------------------------------------------- Greg Stiles, writing for Mail Tribune, reports that Rogue Valley Manor residents say they are through talking with Pacific Retirement Services. After two months of mediation, the Manor residents' steering committee broke off negotiations and has served notice it will file a class-action suit in Jackson County Circuit Court asking for $30 million because of what it claims are excessive management charges by PRS. Residents of the retirement community have been at odds with the Manor's corporate parent for months, saying that PRS and its board have exceeded their authority and removed virtually all decision- making power from the Rogue Valley Manor's own board. Manor residents, who overwhelmingly endorsed the legal action, rapidly raised a legal war chest of hundreds of thousands of dollars late last summer. In a 50-page draft complaint, residents seek removal of PRS control over the Manor; rescission of an Aug. 24 bylaws amendment that reduced the Rogue Valley Manor board from nine to three members; and reinstatement of dismissed Manor board members or appointment of an independent board that cannot be appointed or removed by PRS. They also are asking the court to give the Rogue Valley Manor board the right to select the community's executive director and for the return of Kevin McLoughlin to that role. Further, the residents request an accounting of "excessive management and related fees collected by PRS" and action to prevent PRS from transferring or dissipating the Manor's assets. In August, after a judge declined to intervene on residents' behalf, Mr. McLoughlin was fired from his post and PRS dismissed seven of nine Manor board members. PRS Chief Operating Officer Mike Morris assumed Mr. McLoughlin's duties on an interim basis. The dispute first arose over concerns by Manor residents that they were being charged excessive fees to cover expenses related to PRS properties beyond the Manor. PRS operates 10 retirement facilities in five states as well as other operations, including a hotel and two golf courses in Medford. The Manor residents say that when PRS was established, it was agreed that management services would be charged at a break-even rate, with no profits to PRS. During an hour-plus session with several hundred Manor residents, Portland attorney David Markowitz said the concerns over excessive fees were justified. "The prior board's investigation, and the investigation by my law office and our forensic accountant, all demonstrate that there are significant profits being made by PRS on its management fees for its governance over the Rogue Valley Manor," Mr. Markowitz said in a video of the meeting that was made available to the Mail Tribune. "We have alleged . . . it is an amount in excess of $1 million a year that has continued for years and years and years. Some years, in excess of $1.5 million of profit that has been used by PRS not for the benefit of Rogue Valley Manor but in order to fund its ventures elsewhere, including its losses that it has sustained in its for-profit failed activities or failing activities elsewhere." Residents raised five issues as they began a series of mediation efforts with PRS officers that ended Nov. 16. The issues have been boiled down to three: PRS' governance, its fees and how it handles the money, and Mr. McLoughlin's future. "I'm disappointed that no agreement has been met," Mr. Markowitz said. Mike Morris, who was in attendance for at least part of the meeting, told residents PRS intended to present its side of the matter within two weeks. "There will be additional information beyond what is discussed here," Mr. Morris said. "We look forward to very open discussion and being able to hear both sides." After PRS dismissed dissident Manor board members this summer, residents are seeking assurances that their board would have some authority. But Mr. Markowitz said that is not acceptable to PRS. "Most importantly they want to retain absolute control of the board," Mr. Markowitz said. "Not only selection of the nine (board members), but in the ability to terminate." While Manor residents are pressing PRS on several issues, they seem most upset over the dismissal of Mr. McLoughlin, who was summarily fired in August and told not to set foot on PRS property after he cleaned out his office. "You would think that if we could get a truly independent board that wouldn't be subject to termination then that board could rehire whoever they wanted for an executive director," Mr. Markowitz said. "But PRS so far has said no, which is why so many of our group is pessimistic of the governance issue ever being resolved. Because they (PRS) want to maintain that ultimate control over decision making." The biggest issue leading to the lawsuit, Mr. Markowitz said, was whether Mr. McLoughlin would be returned to his position. "What we've been told repeatedly is that Kevin will not be returned voluntarily," Mr. Markowitz said. "The way we put it in the last meeting, if you had to choose between a lawsuit between the Rogue Valley Manor residents and (rehiring) Kevin, which would you choose, PRS? They chose the lawsuit. This issue is the one we can find no compromise, no give, no change in PRS' position." It remains unclear why Mr. McLoughlin was removed, but Mr. Markowitz told the residents that the PRS board was not involved in the dismissal. "The PRS board continues, we believe, to not know why Kevin's supervisor fired him and they refuse to talk to Kevin," Mr. Markowitz said. Asked point-blank by residents about the circumstances surrounding Mr. McLoughlin's departure, Mr. Morris declined to offer specifics. "Those of you who have been involved in business in your life understand that personnel decisions are very confidential in nature," said Mr. Morris, who is the son-in-law of former PRS Chief Executive Officer Tom Becker. "The likelihood of having full disclosure of the details of an employee's termination would need to come from the employee directly and not from the employer." Pressed by a noticeably hostile crowd, he defended the firing without revealing details. He did say the termination was not solely the decision of PRS Chief Executive Officer Brian McLemore. "The decision to make personnel changes is never a unilateral decision in our organization, it's never made by one individual," Mr. Morris said. "It is reviewed by our human resources department and our legal department. In this case it is reviewed by a team of professionals to make that decision." Ultimately, the Manor residents were told by their attorneys, the only way Rogue Valley Manor residents will get their way is if they prevail in court. "We recognize litigation is difficult and not their first choice, but it's their only choice for the independence they are entitled to at this point," said Shannon Armstrong, also an attorney with Markowitz, Herbold, Glade & Mehlhaf. PARKLANE FINANCIAL: Edwin Harris Among Defendants in Class Action ----------------------------------------------------------------- Bruce Erskine, writing for Herald Business, reports that McInnes Cooper tax lawyer Edwin Harris has been named in a C$144-million class action certified by the Ontario Superior Court of Justice. Launched in 2008, the lawsuit names as defendants: ParkLane Financial Group Ltd., Trafalgar Associates Ltd., Trafalgar Trading Ltd., Funds for Canada Foundation, Appleby Services (Bermuda) Ltd. as trustee for the Bermuda Longtail Trust, McInnes Cooper, Patterson Palmer (also known as Patterson Palmer Law), Patterson Kitz (Halifax), Patterson Kitz (Truro), Gleeson Management Associates Inc., Matt Gleeson and Mary-Lou Gleeson. Mr. Harris was cited for alleged negligent misrepresentation for endorsing ParkLane's Donations for Canada Charitable Gift Program, which generated C$144 million in contributions from 10,000 participants between 2005 and 2009, the class action's lead lawyer, Margaret Waddell -- john.kulik@mcinnescooper.com -- of Toronto law firm Paliare Roland Rosenberg Rothstein LLP, said on Nov. 27. She also alleged that Mr. Harris was "engaged by ParkLane to assist in documentation for the program" and provided the company with legal opinions. The class action alleges the gift program was a fraud and/or it was in breach of provincial consumer protection legislation. The lawsuit also says class action members are entitled to rescind their agreements and have the money they paid to participate in the program refunded. None of the allegations have been proven in court and all of the defendants have denied liability in the case. Mr. Harris, a former Dalhousie University law teacher and former chair of the Canadian Tax Foundation, worked at Patterson Kitz (Halifax) in 2005 before it merged with McInnes Cooper in 2006. He was not available for comment on Nov. 27. But McInnes Cooper general counsel John Kulik -- john.kulik@mcinnescooper.com -- said the firm will continue to fight the class action, which has already withstood appeal motions by the defendants. According to Paliare Roland and co-class action counsel, Landy Marr Kats LLP, ParkLane offered the gift program as a charitable tax shelter opportunity sold to Canadians through financial advisers. Program participants were allegedly told that for every $2,500 donation they made, a Canadian charity would receive $10,000 and the donor would receive a charitable tax receipt for $10,000. Class action counsel said Canada Revenue Agency disallowed the ParkLane charitable deductions. The action alleges the charities kept one per cent or less of the amount for which they issued receipts. It also alleges the rest was used to pay the program's promoters and to purchase a royalty agreement that enabled the charity to receive an interest in a possible revenue stream to be generated by a computer software program trading futures contracts on a highly leveraged basis. Ms. Waddell, who suggested it will be next summer before it will be determined if the case is ready to go to trial, said most of the money paid into the program is offshore. The class action includes any person who participated in ParkLane's Donations for Canada Charitable Gift Program while residing in Canada between Jan. 1, 2005, and Dec. 31, 2009, excluding persons immediately associated with or related to the defendants. Information on the class action, including a copy of the notice of certification, is available at http://www.parklaneclassaction.com PEPPERIDGE FARM: Sued Over Cheddar Goldfish Crackers Advertising ---------------------------------------------------------------- Patricia Calhoun, writing for Denver Westword, reports that Aspen resident Sonya Bolerjack had filed a class-action complaint against Pepperidge Farm, Inc., in United States District Court, District of Colorado, charging that its Cheddar Goldfish Baked Snack Crackers are not "natural," as advertised on the package. Here's the start of that suit, on view below in its entirety: 1. Defendant has made false, misleading statements that are likely to deceive reasonable consumers. Defendant has mistakenly or misleadingly represented that its Cheddar Goldfish crackers (the "Product") are "Natural," when, in fact, they are not, because they contain Genetically Modified Organisms (GMOs) in the form of soy and/or soy derivatives. 2. Defendant's "Natural" statement prominently displayed on the Product's packaging and/or labeling is false, misleading, and likely to deceive reasonable consumers, such as Plaintiff and members of the Class, because the Product is not "Natural," due to the presence of soybean oil in the Product." 3. GMOs are plants that grow from seeds in which DNA splicing has been used to place genes from another source into a plant. Contrary to Defendants's express or implied representations, the Product uses plants or plant derivatives grown or created from GMOs." There's more, of course, but it all adds up to the fact that Ms. Bolerjack believes she, and any other plaintiffs who sign on to this action, deserve $5 million in compensation from Pepperidge Farm. REGIONS FINANCIAL: Securities Suit in Ala. Stayed Pending Review ---------------------------------------------------------------- A purported class-action lawsuit in Alabama has been stayed pending an appellate court review of the order granting class certification, according to the Company's November 5, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2012. In October 2010, a purported class-action lawsuit was filed by Regions' stockholders in the U.S. District Court for the Northern District of Alabama against Regions and certain former officers of Regions. The lawsuit alleges violations of the federal securities laws, including allegations that statements that were materially false and misleading were included in filings made with the SEC. The plaintiffs have requested equitable relief and unspecified monetary damages. On June 7, 2011, the trial court denied Regions' motion to dismiss this lawsuit. On June 14, 2012, the trial court granted class certification. The Eleventh Circuit Court of Appeals is reviewing the trial court's grant of class action certification. The case is now stayed pending that review. REGIONS FINANCIAL: Funds-Related Class Suit Deal Not Yet Approved ----------------------------------------------------------------- Beginning in December 2007, Regions Financial Corporation and certain of its affiliates have been named in class-action lawsuits filed in federal and state courts on behalf of investors who purchased shares of certain Regions Morgan Keegan Select Funds (the "Funds") and shareholders of Regions. These cases have been consolidated into class-actions and shareholder derivative actions for the open-end and closed-end Funds. The Funds were formerly managed by Regions Investment Management, Inc. ("Regions Investment Management"). Regions Investment Management no longer manages these Funds, which were transferred to Hyperion Brookfield Asset Management ("Hyperion") in 2008. Certain of the Funds have since been terminated by Hyperion. The complaints contain various allegations, including claims that the Funds and the defendants misrepresented or failed to disclose material facts relating to the activities of the Funds. Plaintiffs have requested equitable relief and unspecified monetary damages. These cases are in various stages and no classes have been certified. Settlement discussions are ongoing in certain cases, and the parties have reached a preliminary settlement in the closed-end Funds class- action and the shareholder derivative case. Certain of the shareholders in these Funds and other interested parties have entered into arbitration proceedings and individual civil claims, in lieu of participating in the class actions. The lawsuits and proceedings related to the Funds are subject to the indemnification agreement with Raymond James Financial Inc. No further updates were reported in the Company's November 5, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2012. REGIONS FINANCIAL: Suit Over Overdraft Fees Remain Pending ---------------------------------------------------------- A class action lawsuit related to overdraft fees remain pending, according to Regions Financial Corporation's November 5, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2012. In September 2009, Regions was named as a defendant in a purported class-action lawsuit filed by customers of Regions Bank in the U.S. District Court for the Northern District of Georgia challenging the manner in which non-sufficient funds and overdraft fees were charged and the policies related to posting order. The case was transferred to multidistrict litigation in the U.S. District Court for the Southern District of Florida, and in May 2010 an order to compel arbitration was denied. Regions appealed the denial and on April 29, 2011, the Eleventh Circuit Court of Appeals vacated the denial and remanded the case to the district court for reconsideration of Regions' motion to compel arbitration. On September 1, 2011, the trial court again denied Regions' motion to compel arbitration. Regions again appealed the denial to the Eleventh Circuit, which on March 5, 2012, granted the motion and ordered that the case be dismissed. Plaintiffs filed a motion for rehearing by the full court of appeals, which was denied on April 30, 2012. Plaintiffs petitioned for certiorari with the U.S. Supreme Court, but their petition was denied on October 9, 2012. Another purported class-action alleging these claims was filed in the U.S. District Court for the Northern District of Georgia in January 2012. The case is still early in its development and no class has been certified. Plaintiffs in these cases have requested equitable relief and unspecified monetary damages. SKILLED HEALTHCARE: Units to Seek to End Humboldt Suit Injunction ----------------------------------------------------------------- Subsidiary defendants anticipate petitioning to end their agreed- upon injunction in the Humboldt County Action, according to the Company's November 5, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2012. In connection with the September 2010 settlement of certain class action litigation against Skilled Healthcare Group, Inc. and certain of its subsidiaries related to, among other matters, alleged understaffing at certain California skilled nursing facilities operated by Skilled's subsidiaries (the "Humboldt County Action"), Skilled and its defendant subsidiaries (collectively, the "Defendants") entered into settlement agreements with the applicable plaintiffs and agreed to an injunction. The settlement was approved by the Superior Court of California, Humboldt County, on November 30, 2010. Under the terms of the settlement agreements, the defendant entities deposited a total of $50.0 million into escrow accounts to cover settlement payments to class members, notice and claims administration costs, reasonable attorneys' fees and costs and certain other payments, including $5.0 million to settle certain government agency claims and potential government claims that may arise. Of the $5.0 million provided for such government claims, $1.0 million has been released by the court to the Humboldt County Treasurer-Tax Collector on behalf of the People of the State of California for their release of the Defendants. The remaining $4.0 million is available for the settlement and releases by the California Attorney General and certain other District Attorneys. However, in the event that any of these government authorities instead file certain actions against the Defendants by the second anniversary of the effective date of the settlement agreement, which will occur in February 2013, the entire $4.0 million will revert to the Defendants upon their request to the Settlement Administrator. In addition to the $1.0 million paid to the Humboldt County Treasurer-Tax Collector on behalf of the People of the State of California, the court also approved payments from the escrow of up to approximately $24.8 million for attorneys' fees and costs and $10,000 to each of the three named plaintiffs. In addition, approximately $9.3 million of settlement proceeds have been distributed from the escrow to approximately 3,900 of an estimated 43,000 class members. Pursuant to the injunction, the twenty-two Defendants that operate California nursing facilities must provide specified nurse staffing levels, comply with specified state and federal laws governing staffing levels and posting requirements, and provide reports and information to a court-appointed auditor. The injunction will remain in effect for a period of twenty-four months unless extended for additional three-month periods as to those Defendants that may be found in violation. Defendants demonstrating compliance for an eighteen-month period that ended September 30, 2012, may petition for early termination of the injunction. The Defendants are required to demonstrate over the term of the injunction that the costs of the injunction meet a minimum threshold level pursuant to the settlement agreement, which level, initially $9.6 million, is reduced by the portion attributable to any Defendant in the case that no longer operates a skilled nursing facility during the injunction period. The injunction costs include, among other things, costs attributable to (i) enhanced reporting requirements; (ii) implementing advanced staffing tracking systems; (iii) fees and expenses paid to an auditor and special master; (iv) increased labor and labor related expenses; and (v) lost revenues attributable to admission decisions based on compliance with the terms and conditions of the injunction. To the extent the costs of complying with the injunction are less than the agreed upon threshold amount, the Defendants will be required to remit any shortfall to the settlement fund. In April 2011, five of the subsidiary Defendants transferred their operations to an unaffiliated third party skilled nursing facility operator. The remaining subsidiary Defendants continue to monitor their compliance with the terms of the injunction and to provide the applicable reports and information to the court-appointed auditor. Based upon compliance with the injunction through the requisite eighteen-month period ended September 30, 2012, and expenditures exceeding the threshold injunction-related spend requirement, the subsidiary Defendants anticipate petitioning to end the injunction as of September 30, 2012. In the course of ongoing communications with the California Attorney General's Bureau of Medi-Cal Fraud & Elder Abuse ("BMFEA") related to the BMFEA matter, representatives of the California Attorney General and the U.S. Department of Justice have indicated their present interest in pursuing an action under the False Claims Act and certain other legal theories based upon the jury findings of understaffing in the Humboldt County Action. While the Company continues to cooperate with the government's evaluation of the matter, the Company views the government's apparent legal theories, including the False Claims Act theories, as lacking support in the established case law and intends to vigorously defend any such action if brought. SPIRIT AEROSYSTEMS: Class Cert. Denial in Discrim. Suit Affirmed ----------------------------------------------------------------- The U.S. Court of Appeals for the Tenth Circuit affirmed in August 2012 the denial of class certification in the lawsuit alleging age discrimination, according to Spirit AeroSystems Holdings, Inc.'s November 5, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 27, 2012. In December 2005, a lawsuit was filed against Spirit AeroSystems, Inc. ("Spirit"), Onex Corporation ("Onex") and The Boeing Company alleging age discrimination in the hiring of employees by Spirit when Boeing sold its Wichita commercial division to Onex. The complaint was filed in U.S. District Court in Wichita, Kansas and seeks class-action status, an unspecified amount of compensatory damages and more than 1.5 billion dollars in punitive damages. The asset purchase agreement from the Boeing Acquisition requires Spirit to indemnify Boeing for damages resulting from the employment decisions that were made by the Company with respect to former employees of Boeing Wichita, which relate or allegedly relate to the involvement of, or consultation with, employees of Boeing in such employment decisions. On June 30, 2010, the U.S. District Court granted defendants' dispositive motions, finding that the case should not be allowed to proceed as a class action. Following plaintiffs' appeal, on August 27, 2012, the Tenth Circuit Court of Appeals affirmed the District Court's ruling in all respects. In the event this litigation continues, the Company says it intends to continue to vigorously defend itself. Management believes the resolution of this matter will not materially affect the Company's financial position, results of operations or liquidity. SPIRIT AEROSYSTEMS: Awaits Dismissal From "Harkness" Class Suit --------------------------------------------------------------- Spirit AeroSystems Holdings, Inc. is awaiting a court ruling on a motion seeking dismissal of the Company from the class action lawsuit styled Harkness et al. v. The Boeing Company et al., according to Spirit's November 5, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 27, 2012. On February 16, 2007, an action entitled Harkness et al. v. The Boeing Company et al. was filed in the U.S. District Court for the District of Kansas. The defendants were served in early July 2007. The defendants include Spirit AeroSystems Holdings, Inc., Spirit AeroSystems, Inc., the Spirit AeroSystems Holdings Inc. Retirement Plan for the International Brotherhood of Electrical Workers (IBEW), Wichita Engineering Unit (SPEEA WEU) and Wichita Technical and Professional Unit (SPEEA WTPU) Employees, and the Spirit AeroSystems Retirement Plan for International Association of Machinists and Aerospace Workers (IAM) Employees, along with Boeing and Boeing retirement and health plan entities. The named plaintiffs are twelve former Boeing employees, eight of whom were or are employees of Spirit. The plaintiffs assert several claims under the Employee Retirement Income Security Act and general contract law and brought the case as a class action on behalf of similarly situated individuals. The putative class consists of approximately 2,500 current or former employees of Spirit. The parties agreed to class certification. The sub-class members who have asserted claims against the Spirit entities are those individuals who, as of June 2005, were employed by Boeing in Wichita, Kansas, were participants in the Boeing pension plan, had at least 10 years of vesting service in the Boeing plan, were in jobs represented by a union, were between the ages of 49 and 55, and who went to work for Spirit on or about June 17, 2005. Although there are many claims in the lawsuit, the plaintiffs' claims against the Spirit entities, asserted under various theories, are (1) that the Spirit plans wrongfully failed to determine that certain plaintiffs are entitled to early retirement "bridging rights" to pension and retiree medical benefits that were allegedly triggered by their separation from employment by Boeing and (2) that the plaintiffs' pension benefits were unlawfully transferred from Boeing to Spirit in that their claimed early retirement "bridging rights" are not being afforded these individuals as a result of their separation from Boeing, thereby decreasing their benefits. The plaintiffs initially sought a declaration that they are entitled to the early retirement pension benefits and retiree medical benefits, an injunction ordering that the defendants provide the benefits, damages pursuant to breach of contract claims and attorney fees. Discovery is now complete and currently pending is a motion filed jointly by plaintiffs and Spirit on September 25, 2012, to dismiss all claims against Spirit with prejudice. Plaintiffs' claims against Boeing entities are not subject to the motion and will remain pending in the litigation. Boeing has notified Spirit that it believes it is entitled to indemnification from Spirit for any "indemnifiable damages" it may incur in the Harkness litigation, under the terms of the asset purchase agreement from the Boeing Acquisition between Boeing and Spirit. Spirit disputes Boeing's position on indemnity. Management believes the resolution of this matter will not materially affect the Company's financial position, results of operations or liquidity. SPORTSPOWER LTD: Recalls 1,500 Children's Waterslides ----------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Sportspower Ltd., of Hong Kong, announced a voluntary recall of about 1,500 Liquid Motion waterslides. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The warning labels on the children's waterslide are inadequate for weight limit and fail to tell consumers never to slide head first. This poses a risk of serious injuries to consumers, including neck injuries. Sportspower has received one report of a man who received a neck injury after sliding down the waterslide head first. This recall involves Sportspower Liquid Motion waterslides. Consumers inflate the waterslide with air and spray it with water for sliding. They are used on the ground, not at the pool. The waterslides are blue and yellow and measure about 18 feet long by 9 feet high by 5 feet wide. A "Liquid Motion by Sportspower" logo is printed on the side. Recalled waterslides have item number INF-1375 and UPC 687064031340 located on the packaging. Pictures of the recalled products are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml13/13052.html The recalled products were manufactured in China and sold exclusively at Menards Inc. from April 2010 through July 2010 for about $300. Consumers should immediately stop using the recalled waterslides and contact Sportspower to receive new labels to affix to the waterslide. The labels warn consumers not to use the waterslide if they are older than 13 years of age and/or weigh more than 100 lbs. The labels also warn consumers never to slide head first. Sportspower may be reached toll-free at (888) 965-0565, from 9:00 a.m. to 5:00 p.m. Eastern Time Monday through Friday, online at http://www.sportspowerltd.net/or e-mail customerservice@sportspowerltd.net for more information. SPORTSPOWER LTD: Recalls 23,400 Trampolines Due to Injury Hazard ---------------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Sportspower Ltd., of Hong Kong, announced a voluntary recall of about 23,400 trampolines. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The trampoline's metal legs can move out of position and puncture the jumping area, posing a risk of injury, including deep, penetrating puncture wounds, cuts and bruises to children and adults on the trampoline. Sportspower is aware of one incident of the trampoline leg separating from the frame while in use, causing the leg to puncture through the jumping surface. No injuries have been reported. This recall involves Sportspower Parkside model TR-14FT-COM trampolines. The trampolines are 14 feet in diameter and were sold with an enclosure net. The trampolines have blue or light blue fabric on the safety matting and enclosure pole sleeves. The model number is marked on the packaging and instruction manual. "Parkside" is printed on the enclosure net. A picture of the recalled products is available at: http://www.cpsc.gov/cpscpub/prerel/prhtml13/13051.html The recalled products were manufactured in China and sold exclusively at Sports Authority stores nationwide from April 2007 through May 2012 for about $540. Consumers should immediately stop using the recalled trampolines and contact Sportspower to receive a free repair kit. Sportspower may be reached toll-free at (888) 965-0565, from 9:00 a.m. to 5:00 p.m. Eastern Time Monday through Friday, online at http://www.sportspowerltd.net/or e-mail customerservice@sportspowerltd.net for more information. SUKHI'S GOURMET: Recalls Red Curry Veggies Over Undeclared Shrimp ----------------------------------------------------------------- Sukhi's Gourmet Indian Foods is alerting customers that because of a label error, a single lot code of Red Curry with Vegetables contains undeclared shrimp. Consumers who have an allergy or severe sensitivity to shrimp, run the risk of serious or life- threatening allergic reactions if they consume this product. No illnesses have been reported in connection to this product. No other products from Sukhi's have been impacted. Sukhi's is voluntarily recalling Lot code 3390113612 with a Use-By Date of 5/14/2013 with a UPC code: 7-67226-02901-6 The product was shipped to distributers in California, Texas, Minnesota and Georgia, between the dates of 5/21/2012 and 10/15/2013. A picture of the recalled products is available at: http://www.fda.gov/Safety/Recalls/ucm329970.htm Sukhi's became aware of the error, after receiving a customer complaint. Investigation into the complaint confirmed that some boxes of a single lot of Red Curry and Vegetables inadvertently contained Yellow Curry with Shrimp. No illnesses have been reported in connection with this product. Consumers who have purchased product with this lot code should return the product to the store where it was purchased to receive a replacement or a refund. For questions, consumers can call Sukhi's Gourmet Indian Foods at 1-888-4SUKHIS from 8:30 a.m. to 5:00 p.m. Pacific Standard Time, Monday thru Friday. TIME WARNER: Appeal From "Fink" Suit Dismissal Remains Pending -------------------------------------------------------------- On August 7, 2009, the plaintiffs in Jessica Fink and Brett Noia, et al. v. Time Warner Cable Inc., filed an amended complaint in a purported class action in the U.S. District Court for the Southern District of New York alleging that the Company uses a throttling technique which intentionally delays and/or blocks a user's high- speed data service. The plaintiffs are seeking unspecified monetary damages, injunctive relief and attorneys' fees. On December 23, 2011, the district court granted with prejudice the Company's motion to dismiss the plaintiffs' second amended complaint. On January 23, 2012, the plaintiffs appealed this decision to the U.S. Court of Appeals for the Second Circuit. The Company says it intends to defend against this lawsuit vigorously, but is unable to predict the outcome of this lawsuit or reasonably estimate a range of possible loss. No further updates were reported in the Company's November 5, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2012. TIME WARNER: Appeal in Set-Top Cable Antitrust MDL Pending ---------------------------------------------------------- Time Warner Cable Inc. is the defendant in In re: Set-Top Cable Television Box Antitrust Litigation, ten purported class actions filed in federal district courts throughout the U.S. These actions are subject to a Multidistrict Litigation ("MDL") Order transferring the cases for pretrial proceedings to the U.S. District Court for the Southern District of New York. On July 26, 2010, the plaintiffs filed a third amended consolidated class action complaint (the "Third Amended Complaint"), alleging that the Company violated Section 1 of the Sherman Antitrust Act, various state antitrust laws and state unfair/deceptive trade practices statutes by tying the sales of premium cable television services to the leasing of set-top converter boxes. The plaintiffs are seeking, among other things, unspecified treble monetary damages and an injunction to cease such alleged practices. On September 30, 2010, the Company filed a motion to dismiss the Third Amended Complaint, which the court granted on April 8, 2011. On June 17, 2011, the plaintiffs appealed this decision to the U.S. Court of Appeals for the Second Circuit. No further updates were reported in the Company's November 5, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2012. The Company says it intends to defend against this lawsuit vigorously, but is unable to predict the outcome of this lawsuit or reasonably estimate a range of possible loss. TIME WARNER: Sup. Ct. Review of "Brantley" Suit Dismissal Sought ---------------------------------------------------------------- Plaintiffs in the lawsuit captioned Brantley, et al. v. NBC Universal, Inc., et al., have filed a petition for review with the U.S. Supreme Court of the dismissal of their class action lawsuit, according to Time Warner Cable Inc.'s November 5, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2012. On September 20, 2007, Brantley, et al. v. NBC Universal, Inc., et al. was filed in the U.S. District Court for the Central District of California against the Company. The complaint, which also named as defendants several other cable and satellite providers (collectively, the "distributor defendants") as well as programming content providers (collectively, the "programmer defendants"), alleged violations of Sections 1 and 2 of the Sherman Antitrust Act. Among other things, the complaint alleged coordination between and among the programmer defendants to sell and/or license programming on a "bundled" basis to the distributor defendants, who in turn purportedly offer that programming to subscribers in packaged tiers, rather than on a per channel (or "a la carte") basis. The plaintiffs, who seek to represent a purported nationwide class of cable and satellite subscribers, are seeking, among other things, unspecified treble monetary damages and an injunction to compel the offering of channels to subscribers on an "a la carte" basis. In an order dated October 15, 2009, the district court dismissed the plaintiffs' third amended complaint with prejudice. On October 30, 2009, the plaintiffs filed a notice of appeal with the U.S. Court of Appeals for the Ninth Circuit. On March 30, 2012, the U.S. Court of Appeals for the Ninth Circuit affirmed the district court's dismissal of the plaintiffs' lawsuit and, on May 4, 2012, denied the plaintiffs' petition for a rehearing en banc. On August 2, 2012, the plaintiffs filed a petition for review with the U.S. Supreme Court. The Company says it intends to defend against this lawsuit vigorously, but is unable to predict the outcome of this lawsuit or reasonably estimate a range of possible loss. TIME WARNER: Continues to Defend "Downs" Suit vs. Insight --------------------------------------------------------- On August 9, 2010, the plaintiffs in Michelle Downs and Laurie Jarrett, et al. v. Insight Communications Company, L.P. filed a second amended complaint in the U.S. District Court for the Western District of Kentucky, as a purported class action, alleging that Insight Communications Company, L.P., a subsidiary of Time Warner Cable Inc., violated Section 1 of the Sherman Antitrust Act by tying the sales of premium cable television services to the leasing of set-top converter boxes, which is similar to the federal claim against the Company in In re: Set-Top Cable Television Box Antitrust Litigation. The plaintiffs are seeking, among other things, unspecified treble monetary damages and an injunction to cease such alleged practices. The Company says it intends to defend against this lawsuit vigorously, but is unable to predict the outcome of this lawsuit or reasonably estimate a range of possible loss. No further updates were reported in the Company's November 5, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2012. VISA: Majority of Class Plaintiffs to Appeal Settlement Ruling -------------------------------------------------------------- National Cooperative Grocers Association disclosed that on Nov. 27, 2012, a majority of named class plaintiffs filed a notice of appeal to challenge a ruling from the U.S. District Court for the Eastern District of New York granting preliminary approval to a proposed settlement of a long-standing antitrust class action filed by merchants against Visa, MasterCard and the largest banks. The merchant group will ask the U.S. Court of Appeals for the Second Circuit to deny preliminary approval due to the legal defects in the proposed settlement. More than 1,200 merchants have weighed in with the courts in opposition to the settlement on the grounds that it locks in the broken interchange system, deprives merchants of their right to fight the anticompetitive practices of the Visa, MasterCard duopoly in court, and constrains innovations that could bring competition to the marketplace, such as mobile technology. "This settlement has fatal legal defects and should not get preliminary approval. We look forward to presenting the problems we see in this proposal to the Second Circuit Court of Appeals," said Jeffrey Shinder, managing partner at Constantine Cannon, LLC, counsel to the merchants objecting to the proposed settlement. The named class plaintiffs opposing the proposed settlement of the case, which is known as "In Re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation," are Affiliated Foods Midwest, Coborn's, Inc., D'Agostino Supermarkets, Jetro Holdings LLC, National Association of Convenience Stores (NACS), NATSO, National Community Pharmacists Association (NCPA), National Cooperative Grocers Association (NCGA), National Grocers Association (NGA), and National Restaurant Association (NRA). "The merchant community is deeply committed to reforms that bring transparency and competition to the broken electronic payments market. The volume and diversity of those objecting to this flawed proposal is remarkable and continues to grow," said Mr. Shinder. The named class plaintiffs were joined in multiple briefs filed with the court from a growing chorus of members of the merchant class, including nearly 1200 small businesses and recognized brands, such as 7-Eleven, Abercrombie & Fitch Co., Alon, American Signature, Inc., Ascena Retail Group, Inc., AutoZone, Best Buy, Big Lots Stores, Inc., Boscov's Department Store, LLC, Chico's FAS, Inc., CKE Restaurants, Inc., Costco Wholesale Corp., Crate & Barrel, Cumberland Farms, Dick's Sporting Goods, Dillard's, Inc., Dollar General, Expedia, The Gap, Inc., Giant Eagle, The Home Depot, IKEA, J.C. Penney Corporation, Inc., Jo-Ann Stores, Kum and Go, Kwik Trip, Limited Brands, Inc., Lowe's, Macy's, Inc., Michaels, The Neiman Marcus Group, Inc., Papa John's International, Inc., Petco, REI (Recreational Equipment, Inc.), RaceTrac Petroleum, Inc., Saks Incorporated, ShopKo, Sports Authority, Starbucks, Target Corporation, Wal-Mart Stores, Inc., Wawa, Wendy's, and a variety of associations including the American Booksellers Association, and National Association of College Stores, National Retail Federation, and Retail Industry Leaders Association. According to Dow Jones Newswires' Andrew R. Johnson, the objecting plaintiffs specifically said in their notice they take issue with a portion of the order that enjoins merchants "from challenging in any action or proceeding any matter covered by" the settlement agreement, which has been a sticking point for critics who say the deal gives overly broad releases from future litigation to the payments networks. Critics including Home Depot Inc. (HD) and the National Association of Convenience Stores, one of the objecting plaintiffs, have also taken issue with a provision that doesn't allow merchants to opt out of rule changes that Visa and MasterCard agreed to make two months after the settlement gained preliminary approval. "We are 100% attacking through this appeal what we feel to be the heart and soul of this settlement, and that is the way the settlement improperly deprives merchants of their due process rights through the injunction and the mandatory class," Mr. Shinder said in an interview. Mr. Shinder's clients include D'Agostino Supermarkets Inc., the National Association of Convenience Stores and National Grocers Association. Bob Stolebarger, a partner with Bryan Cave LLP and antitrust counsel to the Electronic Payments Coalition, which represents payments networks and banks, said the objecting plaintiffs are limited in their ability to appeal all of Judge Gleeson's preliminary approval order, citing case law. The move also should not "hinder or delay proceedings at the district court level," Mr. Stolebarger said. The settlement would allow Visa, MasterCard and several card- issuing banks including Bank of America Corp. and J.P. Morgan Chase & Co. to put to bed litigation brought against them by merchants in 2005, accusing the companies of conspiring over fees retailers pay to accept credit cards, called interchange or swipe fees. Visa and MasterCard set the fees, which are collected as revenue by the banks that issue the payments networks' cards. The deal has reignited a long-standing battle between merchants and the payments industry, with some retailers arguing that the deal will solidify practices by Visa and MasterCard that have led to rising interchange fees over the years rather than helping merchants control their costs. Judge Gleeson said he was granting preliminary approval to the deal at a court hearing on Nov. 9, and on Nov. 27 signed a formal order doing so. A spokesman for Visa declined to comment about the objectors' appeal plans on Nov. 27. A spokesman for MasterCard referred to a Nov. 9 statement from General Counsel Noah Hanft, who said the settlement "represents a solution reached after years of litigation and months of negotiation." Under the deal, merchants who opt in to the settlement stand to receive payments totaling $6.05 billion. Visa and MasterCard have also agreed to temporarily reduce interchange fees by an amount equal to $1.2 billion, and alter certain rules that merchants have complained about. Those rule changes, including the elimination of a ban against surcharging customers who pay with credit cards, are set to take effect in two months. Proponents of the deal have accused critics of embarking on a smear campaign against the settlement in hopes of drumming up political support on Capitol Hill for potential legislation that would permanently limit credit-card swipe fees. Similar rules that lowered debit-card swipe fees took effect in October 2011 per a provision of 2010's Dodd-Frank Act called the Durbin amendment. The rules didn't affect credit-card swipe fees. "If they were party to a settlement agreement . . . it would be very, very hard for them to go up on the Hill" and garner support for legislation addressing the "interchange issue on the credit side in the same way that they did on the debit side with the Durbin amendment," Mr. Stolebarger said. ZEEK REEWARDS: Former CEO Denies Ponzi Scheme Allegations --------------------------------------------------------- Nash Dunn, writing for The Dispatch, reports that former Zeek Chief Executive Officer Paul Burks said he denies allegations that his company was a large Ponzi and pyramid scheme. In a formal response filed on Nov. 26 in North Carolina Business Court, Mr. Burks addressed a class-action lawsuit filed against him and his company in Davidson County in August. Going through the complaint paragraph by paragraph, Mr. Burks largely denied allegations that he defrauded millions throughout the world through unregistered offers and sales of securities through Zeek Rewards and penny auction site Zeekler.com. This is the first time Mr. Burks has directly addressed accusations against his former company since mid-August, when he quickly settled securities fraud charges filed by the U.S. Securities and Exchange Commission, without admitting or denying anything. Mr. Burks, a Lexington resident, was forced to pay a $4 million penalty and relinquish his reigns to the company. The case has since gone into receivership, and Charlotte attorney Kenneth Bell is actively pursuing what he estimates is hundreds of millions of dollars to eventually return to nearly 1 million people who lost money in the alleged scheme. The complaint Mr. Burks is now responding to is a separate class- action lawsuit filed by about 82 local Zeek Rewards affiliates on Aug. 22. The lawsuit, targeted at Burks, Zeek Rewards, the program's parent company, Rex Venture Group, and profiting investors, seeks damages for all affiliates and demands a jury trial. The lawsuit was originally filed in Davidson County Superior Court but was transferred to North Carolina Business Court in October. In his response filed Nov. 26, Mr. Burks denied nearly the entire original complaint. The only things he admitted to included that he is a citizen of Davidson County, that his former company was shut down by the SEC, that Zeekler.com started in 2010 and allowed participants to purchase "bids," and that Zeek Rewards was created in 2011 and that affiliates were able to join, among other things. Mr. Burks requested to the court that the affiliates "have and recover nothing," and that their complaint and claims be "dismissed with prejudice," according to the response. He also requested to the court that he recover his costs incurred in the lawsuit and that those costs and attorney's fees be taxed to the affiliate claimants. Mr. Burks also argued that the class-action suit be stayed. In the SEC case against Zeek Rewards, the original order appointing Mr. Bell receiver imposed a "stay of litigation" for any litigation related to the federal case. Mr. Burks, who filed a motion to stay the class-action lawsuit Oct. 4, reiterated in his filing Monday that the affiliates' lawsuit falls under the category of related litigation. "Mr. Burks' response to the lawsuit against him is to hide behind the receiver and blame the victims," said Lexington attorney Cal Cunningham, who represents the affiliates who filed the class- action lawsuit. "We are prepared to prove our case and have proposed a cooperative arrangement with the receiver to do so. We look forward to a lift of the stay that allows us to go forward." Mr. Cunningham said if his party is able to work out an arrangement with the receiver in federal court, there won't be a need to enter an order staying the lawsuit in state court. While he could not discuss specifics of the arrangement, he said both parties plan to target multiple categories of defendants. Neither Mr. Burks nor his attorneys could be reached for comment this week. Zeek Rewards was one of the first penny auction-based companies to present profit-sharing opportunities to its customers. Its users, or affiliates, essentially invested in the program by purchasing large quantities of bids for the penny auction site Zeekler.com, which was also operated by Rex Venture Group. To earn a profit, affiliates were required to give those bids away to new customers and post a daily advertisement for the site online. For buying bids, giving them away and placing an ad, affiliates shared in the company's daily net profits through "rewards" -- bonuses they could compile over time and eventually turn into cash. Affiliates could also earn commissions with every friend, family member or average Joe they signed up. The longer an affiliate's "downline," the more money there was to be made, something the SEC called classic pyramid style. The SEC, which issued a civil enforcement action against the company Aug. 17, alleges that the money from new Zeek Rewards investors was simply financing the payouts for higher-up affiliates. About 98 percent of Zeek Rewards' total revenues, and subsequent payouts to its affiliates, were comprised of funds received from new investors, according to the SEC's complaint. The SEC also alleged that affiliates' contributions required little or no effort, adding that they merely copy and pasted fake ads and used automated programs to give out bids. Mr. Burks denied that allegation. So far, Mr. Bell's investigation has identified about 2.2 million unique Zeek Rewards users, and he says about 1 million of those users invested money in the program. While the majority of Zeek Rewards affiliates lost money, including some who sent in cashier's checks just hours before the SEC's action, others profited heavily. Mr. Bell estimates that more than 100,000 affiliates made money on the program. Mr. Bell sent out more than 1,200 subpoenas to affiliates who "took out more than they put in" in November, asking the profiteers to surrender their gains or face legal action. Mr. Bell also filed a motion to intervene in a federal class- action lawsuit filed in Louisiana on Aug. 24, seeking to stay the lawsuit and have it transferred to federal court in Charlotte. That lawsuit also targeted Zeek Rewards, Burks and Rex Venture Group. ********* 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 * * *