/raid1/www/Hosts/bankrupt/CAR_Public/121219.mbx
C L A S S A C T I O N R E P O R T E R
Wednesday, December 19, 2012, Vol. 14, No. 251
Headlines
ALIGN TECHNOLOGY: Faces Class Suit Brought by Dearborn Heights
APPLE INC: Seeks Dismissal of Download Class Action v. ITunes
ASPENBIO PHARMA: Appeal From AppyScore Suit Dismissal Pending
BON-TON STORES: Agrees to Pay $450,000 Penalty Over Drawstrings
CENTERPOINT ENERGY: Awaits Resolution of Two Gas Market Lawsuits
CHELSEA THERAPEUTICS: Consolidated Northera-Related Suit Pending
FIBRIA CELULOSE: Deal Under Judicial Mediation Session Ratified
FIDELITY NATIONAL: "Searcy" Suit Deal Became Effective Oct. 29
FIORUCCI FOODS: Recalls 2,650 Lbs. of Mortadella
GEORGIA-PACIFIC: Faces Class Action Over Drywall Price-Fixing
HOSPIRA INC: Continues to Defend Securities Suit in Illinois
HOSPIRA INC: ERISA Violation Class Suit Dismissed in October
LEBEAU INC: Workers File Class Action Over Unpaid Wages
LOCAL SERVICE: Colo. Court Rules on Elbert County Zoning Dispute
MONSTER BEVERAGE: Sued in Calif. Over Mislabeling of Energy Drink
NASDAQ OMX: Defends Class Action Suits Over Facebook IPO
NOKIA: New York Securities Class Action Withdrawn
OCEAN BEAUTY: Recalls Nathan's/LASCCO Cold Smoked Atlantic Salmon
PHILIP MORRIS: Judge Refuses to Reopen $10-Bil. Class Action
PORTFOLIO RECOVERY: Awaits Court Rulings in TCPA Violations MDL
SALT LAKE CITY, UT: ACLU Files Class Action Over "Gang Sweep"
SOUNDBITE COMMS: Class Action Over TCPA Violations Dismissed
SOUTHERN CO: Appeal From Amended "Comer" Suit Dismissal Pending
TRIPLE-S MANAGEMENT: Awaits Ruling in Puerto Rican Dentists' Suit
TRIPLE-S MANAGEMENT: TSP Still Defends Two Vehicle Owner Suits
UNITED STATES: Justice Dept. Has Not Yet Appealed "Beer" Ruling
VENOCO INC: Defends Consolidated Merger-Related Suit in Delaware
VIRGINIA: Loses Bid to Dismiss Medical Care Suit v. FCCW
VOLKSWAGEN GROUP: Stueve Siegel Hanson's Legal Fees Challenged
WALT DISNEY: Settles Class Action; Awaits Court Approval
WELLPOINT INC: "ADA" Suit Summary Judgment Affirmed by 11th Cir.
WELLPOINT INC: Review of "Mell" Suit Dismissal Not Sought
WELLPOINT INC: Plaintiffs Amend Out-of-Network MDL Complaint
WELLS FARGO: Accused of Contacting Class Without Prior Consent
WILLIS GROUP: Appeal in Contingent Compensation Suit Withdrawn
WILLIS GROUP: Continues to Defend Suits Over Stanford Collapse
*********
ALIGN TECHNOLOGY: Faces Class Suit Brought by Dearborn Heights
--------------------------------------------------------------
City of Dearborn Heights Act 345 Police and Fire Retirement
System, Individually and on Behalf of All Others Similarly
Situated v. Align Technology, Inc., Thomas M. Prescott and Kenneth
B. Arola, Case No. 5:12-cv-06039 (N.D. Calif.,
November 28, 2012) is brought on behalf of purchasers of
Align common stock between April 23, 2012, and October 17, 2012,
inclusive, under the Securities Exchange Act of 1934.
The Plaintiff alleges that the Defendants violated the securities
laws by disseminating materially false and misleading statements
and concealing material adverse facts regarding Align's current
financial condition and growth prospects. As a result of these
misrepresentations and omissions, Align's stock traded at
artificially inflated prices during the Class Period, reaching a
high of $39.17 per share on September 13, 2012, the Plaintiff
explains.
The Plaintiff purchased the common stock of Align at artificially
inflated prices during the Class Period and has been damaged by
the alleged illegal conduct.
Align is incorporated in Delaware and maintains its headquarters
in San Jose, California. Align designs, manufactures and markets
Invisalign, a proprietary method for treating malocclusion, or the
misalignment of teeth, using a series of clear, removable
appliances that gently and incrementally move teeth to a desired
final position. Mr. Prescott is Align's president and chief
executive officer. Mr. Arola is Align's chief financial officer
and vice president of finance.
The Plaintiff is represented by:
Shawn A. Williams, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
Post Montgomery Center
One Montgomery Street, Suite 1800
San Francisco, CA 94104
Telephone: (415) 288-4545
Facsimile: (415) 288-4534
E-mail: shawnw@rgrdlaw.com
- and -
Darren Jay Robbins, Esq.
David C. Walton, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
655 West Broadway, Suite 1900
San Diego, CA 92101
Telephone: (619) 231-1058
Facsimile: (619) 231-7423
E-mail: darrenr@rgrdlaw.com
davew@rgrdlaw.com
- and -
Thomas C. Michaud, Esq.
VANOVERBEKE MICHAUD & TIMMONY, P.C.
79 Alfred Street
Detroit, MI 48201
Telephone: (313) 578-1200
Facsimile: (313) 578-1201
E-mail: tmichaud@vmtlaw.com
APPLE INC: Seeks Dismissal of Download Class Action v. ITunes
-------------------------------------------------------------
Chris Marshall at Courthouse News Service reports that ITunes
clearly discloses that multiple charges accompany multiple
downloads of the same song, Apple said, urging a federal judge to
toss a class action.
Robert Herskowitz and Phoebe Juel purport to represent a class of
customers who made repeated downloads of the same song from
iTunes, only to discover that Apple charged them every time.
Ms. Juel says Apple charged her when she downloaded a song from
Apple that she had already downloaded but could not locate on her
computer. Mr. Herskowitz alleges he was charged more than once
for the same product.
A federal judge consolidated their cases, which allege breach of
contract, bad faith, violations of the Consumers Legal Remedies
Act, fraud and unjust enrichment.
Apple moved to dismiss on Dec. 11, saying that the plaintiffs "do
not and cannot point to any legal obligation requiring Apple to
provide them with a second download of the same song free of
charge. To the contrary, their agreement with Apple expressly
bars that claim, and provided an express and exclusive remedy that
plaintiffs ignore."
While the plaintiffs admit that the iTunes agreements governed
their purchases, they "ignore the provisions of the agreement that
make clear that their claims are without merit," according to the
Apple motion, authored by Morrison & Foerster attorney Penelope
Preovolos. "The agreement expressly states that iTunes songs 'may
be downloaded only once and cannot be replaced if lost for any
reason.'"
If a song is not delivered or is unreasonably delayed, the
agreement says that a consumer's "exclusive and sole remedy is
either replacement or refund of the price paid, as determined by
Apple," Ms. Preovolos added.
But rather than contacting Apple, each plaintiff allegedly
downloaded the song again and then complained that they were
charged again.
Apple says Ms. Juel's inability to find the song on her computer
"was almost certainly due to user error and not any fault of
Apple's." Ms. Juel "never contacted Apple or attempted to take
advantage of her contractual remedy," according to the motion.
Mr. Herskowitz meanwhile "seeks to avoid the agreement's terms by
ambiguous pleading, alleging that he was "charged more than once
for the same [iTunes song]," Apple says. But he too simply
downloaded "the same song a second time without first contacting
Apple to take advantage of the exclusive contractual remedy," the
motion states.
The bad faith claims are also "contrary to the express terms of
the contract," Apple says, quoting precedent that says "the
implied covenant of good faith and fair dealing cannot, as a
matter of law, extend to 'conduct expressly disclaimed by the
express terms of the contract.'"
Apple says the bad faith claims are also "an inappropriate
reiteration of their breach of contract claims and are
superfluous."
As for the claim under the Consumers Legal Remedies Act, Apple
says this law does not apply to software such as iTunes. The CLRA
provides civil remedies for conduct in the sale of "goods" or
"services," but Apple says software is neither a "good" nor a
"service" within the meaning of the CLRA.
This law also requires the allegations to establish "either
procedural or substantive unconscionability," but Mr. Herskowitz
does not adequately allege that he suffered "surprise" or
"oppression" in his dealings with Apple, according to the motion.
Apple says Mr. Herskowitz could not be surprised at the terms of
the contract because "the provision that songs could be downloaded
only once was prominently disclosed in the first section of the
agreement as well as set forth in all upper case letters in the
section limiting liabilities. The provision that all sales are
final and no refunds are available was also prominently disclosed
on the first page of the agreement."
Mr. Herskowitz was also not oppressed because he could have simply
chosen to buy digital music from a different source, according to
the brief.
His unfair competition claims, which also rely on Apple's alleged
"unconscionability," Apple says, noting that "there is nothing
'unfair' about Apple's clear and contractual provision that
purchasers may download an iTunes song only once."
Ms. Juel "does not come close to meeting Rule 9(b)'s heightened
pleading requirement that she allege facts establishing the 'who,
what, when and where' of the alleged fraud," according to the
motion. "Juel does not allege any representation regarding the
supposed right to redownload a song onto the device for free.
Rather, Juel purports to rely on alleged representations that
iTunes purchasers could 'burn' iTunes songs to multiple CDs, play
songs, on multiple devices or store songs from multiple accounts.
But none of these representations in any way suggests that a song
can be downloaded multiple times to a single device, as Juel did,
without additional payment."
Ms. Juel also never alleges that she ever tried to burn a song to
multiple CDs, play a song on more than one device, or store songs
from multiple accounts, let alone that she was unable to do so,
Apple says.
"She offers only conclusory assertions, not facts, regarding the
required elements of reliance, knowledge and falsity, and intent
to defraud," the motion states.
Mr. Herskowitz is represented by:
Joseph Tabacco Jr., Esq.
BERMAN DEVALERIO
One California Street, Suite 900
San Francisco, CA 94111
Telephone: (415) 433-3200
E-mail: jtabacco@bermandevalerio.com
Ms. Juel is represented by Christopher Land of San Francisco's Law
Offices of John A. Kithas.
A copy of the Defendant Apple Inc.'s Notice of Motion and Motion
to Dismiss First Amended Consolidated Class Action Complaint;
Memorandum of Points and Authorities in Support Thereof in
Herskowitz, et al. v. Apple Inc., Case No. 12-cv-02131 (N.D.
Calif.), and in Juel, et al. v. Apple Inc., Case No. 12-cv-03124
(N.D. Calif.), is available at:
http://www.courthousenews.com/2012/12/14/herskapp.pdf
Apple Inc. is represented by:
Penelope a. Preovolos, Esq.
Tiffany Cheung, Esq.
Suzanna p. Brickman, Esq.
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, CA 94105-2482
Telephone: (415) 268-7000
E-mail: ppreovolos@mofo.com
tcheung@mofo.com
sbrickman@mofo.com
ASPENBIO PHARMA: Appeal From AppyScore Suit Dismissal Pending
-------------------------------------------------------------
An appeal from the dismissal of a class action lawsuit relating to
AspenBio Pharma, Inc.'s test kit product, AppyScore, remains
pending, according to the Company's November 7, 2012, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended September 30, 2012.
On October 1, 2010, the Company received a complaint, captioned
John Wolfe, individually and on behalf of all others similarly
situated v. AspenBio Pharma, Inc. et al., Case No. CV10 7365 (the
"Wolfe Lawsuit"). This federal securities purported class action
was filed in the U.S. District Court in the Central District of
California on behalf of all persons, other than the defendants,
who purchased common stock of the Company during the period
between February 22, 2007, and July 19, 2010, inclusive. The
complaint named as defendants certain officers and directors of
the Company during such period. The complaint included
allegations of violations of Section 10(b) of the Exchange Act and
SEC Rule 10b-5 against all defendants, and of Section 20(a) of the
Exchange Act against the individual defendants, all related to the
Company's blood-based acute appendicitis test in development known
as AppyScore. On the Company's motion, this action was also
transferred to the U.S. District Court for the District of
Colorado by order dated January 21, 2011. The action has been
assigned a District of Colorado Civil Case No. 11-cv-00165-REB-
KMT. On July 11, 2011, the court appointed a lead plaintiff and
approved lead counsel. On August 23, 2011, the lead plaintiff
filed an amended putative class action complaint, alleging the
same class period. Based on a review of the amended complaint,
the Company and the individual defendants believe that the
plaintiffs' allegations are without merit, has vigorously defend
against these claims, and intends to continue to do so.
On October 7, 2011, the Company filed a motion to dismiss the
amended complaint, and the plaintiff's response and the Company's
reply thereto were subsequently filed.
On September 13, 2012, the United States District Court for
Colorado granted the Company's motion to dismiss, dismissing the
plaintiffs' claims against all defendants without prejudice. On
September 14, 2012, the court entered Final Judgment without
prejudice on behalf of all defendants and against all plaintiffs
in the Wolfe Lawsuit. The Order to dismiss the action found in
favor of the Company and all of the individual defendants.
On October 12, 2012, the plaintiffs filed a Notice of Appeal of
the Order granting the motion to dismiss and of the Final Judgment
in the Wolfe Lawsuit.
BON-TON STORES: Agrees to Pay $450,000 Penalty Over Drawstrings
---------------------------------------------------------------
The U.S. Consumer Product Safety Commission (CPSC) announced that
The Bon-Ton Stores, Inc. of York, Pennsylvania, has agreed to pay
a civil penalty in the amount of $450,000. The penalty agreement
[http://www.cpsc.gov/cpscpub/prerel/prhtml13/13070.pdf]has been
provisionally accepted by the Commission in a 3-0 vote.
The settlement resolves CPSC staff allegations that the firm
knowingly failed to report to CPSC immediately, as required by
federal law, that its children's hooded jackets and sweatshirts
were sold with drawstrings through the hood.
Children's upper outerwear with drawstrings, including jackets and
sweatshirts, pose a strangulation hazard to children. CPSC and
three U.S. importers announced recalls of children's jackets and
sweatshirts with drawstrings through the hood on February 18,
March 10 and May 27, 2010. Bon-Ton was a retailer of about 800
total jackets and sweatshirts in all three recalls.
CPSC began warning about drawstring dangers in the early 1990s.
The agency issued guidelines in 1996 about drawstrings in
children's upper outerwear. Those guidelines were incorporated
into an industry voluntary standard in 1997. In 2006, CPSC's
Office of Compliance announced (pdf) that children's upper
outerwear with drawstrings at the hood or neck would be regarded
as defective and presenting a substantial risk of injury to young
children. Then, in July 2011, based on the guidelines and
voluntary standard, CPSC issued a federal regulation that
designated as substantial product hazards children's upper
outerwear in sizes 2T to 12 (or extra-small to large) with neck or
hood drawstrings, and children's upper outerwear in sizes 2T to 16
(or extra-small to extra-large) with certain waist or bottom
drawstrings.
Federal law requires manufacturers, distributors, and retailers to
report to CPSC immediately (within 24 hours) after obtaining
information reasonably supporting the conclusion that a product
contains a defect that could create a substantial product hazard,
creates an unreasonable risk of serious injury or death, or fails
to comply with any consumer product safety rule or any other rule,
regulation, standard or ban enforced by CPSC. Federal law also
bars selling products that have been subject to a voluntary recall
by a manufacturer or a mandatory recall ordered by the Commission.
In agreeing to the settlement, Bon-Ton denies CPSC staff
allegations that it knowingly violated the law.
CENTERPOINT ENERGY: Awaits Resolution of Two Gas Market Lawsuits
----------------------------------------------------------------
CenterPoint Energy, Inc., is awaiting resolution of two lawsuits
filed against numerous gas market participants including the
Company, according to CenterPoint Energy, Inc.'s November 7, 2012,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended September 30, 2012.
A large number of lawsuits were filed against numerous gas market
participants in a number of federal and western state courts in
connection with the operation of the natural gas markets in 2000-
2002. CenterPoint Energy's former affiliate, Reliant Resources,
Inc. (RRI), was a participant in gas trading in the California and
Western markets. These lawsuits, many of which were filed as
class actions, allege violations of state and federal antitrust
laws. Plaintiffs in these lawsuits are seeking a variety of forms
of relief, including, among others, recovery of compensatory
damages (in some cases in excess of $1 billion), a trebling of
compensatory damages, full consideration damages and attorneys'
fees. CenterPoint Energy and/or Reliant Energy were named in
approximately 30 of these lawsuits, which were instituted between
2003 and 2009. CenterPoint Energy and its affiliates have since
been released or dismissed from all but two of such cases.
CenterPoint Energy Services, Inc. (CES), a subsidiary of
CenterPoint Energy Resources Corp. (CERC Corp. and, together with
its subsidiaries, CERC), is a defendant in a case now pending in
federal court in Nevada alleging a conspiracy to inflate Wisconsin
natural gas prices in 2000-2002. In July 2011, the court issued
an order dismissing the plaintiffs' claims against the other
defendants in the case, each of whom had demonstrated Federal
Energy Regulatory Commission ("FERC") jurisdictional sales for
resale during the relevant period, based on federal preemption.
The plaintiffs have appealed this ruling to the United States
Court of Appeals for the Ninth Circuit.
Additionally, CenterPoint Energy was a defendant in a lawsuit
filed in state court in Nevada that was dismissed in 2007, but in
March 2010 the plaintiffs appealed the dismissal to the Nevada
Supreme Court. In September 2012, the Nevada Supreme Court
affirmed the dismissal. In October 2012, the Nevada Supreme Court
granted the plaintiffs' motion to stay the dismissal of this case
pending the filing and final disposition of their petition for a
writ of certiorari to the Supreme Court of the United States.
CenterPoint Energy believes that neither it nor CES is a proper
defendant in these remaining cases and will continue to pursue
dismissal from those cases. CenterPoint Energy does not expect
the ultimate outcome of these remaining matters to have a material
impact on its financial condition, results of operations or cash
flows.
CHELSEA THERAPEUTICS: Consolidated Northera-Related Suit Pending
----------------------------------------------------------------
A consolidated class action lawsuit relating to Chelsea
Therapeutics International, Ltd.'s Northera product remains
pending, according to the Company's November 7, 2012, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended September 30, 2012.
During late 2011 and early 2012, the Company was focused on
preparations for the potential commercial launch of Northera(TM)
(droxidopa) in the United States in anticipation of U.S. Food and
Drug Administration ("FDA") approval. In November 2011, the FDA
accepted for filing the Company's New Drug Application, or NDA,
seeking approval to market Northera for the treatment of
Neurogenic OH in patients with primary autonomic failure
(including Parkinson's disease, or PD, multiple systems atrophy,
or MSA, and pure autonomic failure, or PAF), dopamine-Beta-
hydroxylase, or DBH, deficiency and non-diabetic autonomic
neuropathy that the Company had submitted in September 2011. The
clinical portion of the NDA included combined safety and efficacy
data from the Company's two completed Phase III studies in
Neurogenic OH, Study 301 and Study 302, two long-term open-label
extension studies, Study 303 and Study 304, a dedicated thorough
QTc study and a 24-hour ambulatory blood pressure monitoring
study, Study 305.
In February 2012, a meeting of the Cardiovascular and Renal Drugs
Advisory Committee, or CRDAC, was held, at the request of the FDA,
to review and discuss the Northera NDA. The CRDAC recommended, in
a 7 to 4 vote, that the FDA approve the Company's NDA to market
Northera in the United States.
However, on March 28, 2012, the Company announced that the FDA had
issued a Complete Response Letter, or a CRL, regarding the
Company's Northera NDA that included a request by the FDA that the
Company submit data from an additional positive study to support
efficacy. It was recommended that such a study be designed to
demonstrate durability of effect over a 2- to 3-month period.
Notably, the CRL did not identify any outstanding safety concerns.
In addition, the FDA provided comments on the draft labeling
submitted for Northera, including a preliminary recommendation to
include a black box warning due to the lack of available data on
patients in a fully supine position. However, the letter
indicated that such a boxed warning could be reconsidered if
suitable data demonstrating a lack of severe hypertension in a
fully supine position were provided.
In May 2012, the Company completed an End-of-Review Meeting, or
EOR, with the FDA to review the CRL and more fully understand the
FDA's concerns regarding the Northera NDA. In preparation for
this meeting, the Company prepared an information package,
including a proposal for utilizing data from the Company's then
ongoing Study 306B to support the Northera NDA that called for a
change in the primary endpoint of Study 306B to the orthostatic
hypotension symptom assessment, or OHSA, item #1 score (dizziness,
lightheadedness, feeling faint or "feeling like you might black
out") at visit 4 (one-week post titration) and a recommendation to
increase the number of patients targeted for enrollment in the
study to approximately 200. Based on feedback received during the
EOR, the Company submitted a revised protocol for Study 306B,
proposing a change in the primary endpoint of Study 306B to OHSA,
item #1 at visit 5 (two-weeks post titration) and supporting
blinding documentation regarding the study for FDA review.
Following the receipt of the CRL in March 2012 and the subsequent
decline of the market price of the Company's common stock, two
purported class action lawsuits were filed on April 4, 2012, and
another purported class action lawsuit was filed on May 1, 2012,
in the U.S. District Court for the Western District of North
Carolina against the Company and certain of its executive
officers.
The complaints generally allege that, during differing class
periods, all of the defendants violated Sections 10(b) of the
Securities Exchange Act of 1934, or the Exchange Act, and SEC Rule
10b-5 and the individual defendants violated Section 20(a) of the
Exchange Act in making various statements related to the Company's
development of Northera for the treatment of neurogenic OH and the
likelihood of FDA approval. The complaints seek unspecified
damages, interest, attorneys' fees, and other costs. Following
consolidation of the three lawsuits and the appointment of a lead
plaintiff, a consolidated complaint was filed on October 5, 2012,
on behalf of purchasers of the Company's common stock from
November 3, 2008, through March 28, 2012. The Company and its
officers intend to vigorously defend against this lawsuit but are
unable to predict the outcome or reasonably estimate a range of
possible loss at this time.
FIBRIA CELULOSE: Deal Under Judicial Mediation Session Ratified
---------------------------------------------------------------
Fibria Celulose SA disclosed that the agreement under judicial
mediation session class action number 08-23317 - CIV - Lenard /
O'SULLIVAN, driven Firefighters' Pension Fund and Police Officers
District of Florida - Miami Beach, against the company and its
former CEO and CFO was ratified on Dec. 13 in the meeting of the
company's Board of Directors. In that agreement, the company and
the other co- defendants agreed to pay the full amount of
US$37,500,000.00 (thirty seven million five hundred thousand
American dollars) to all holders of ADRs (American depositary
receipt) of former Aracruz Celulose SA, from April 7 to October 2,
2008.
Fibria informs the market that has Directors and Officers
insurance, with coverage extended to the company for reimbursement
of the disbursement.
FIDELITY NATIONAL: "Searcy" Suit Deal Became Effective Oct. 29
--------------------------------------------------------------
Fidelity National Information Services, Inc.'s settlement of a
class action lawsuit initiated by Gladys Searcy became effective
on October 29, 2012, according to the Company's November 7, 2012,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended September 30, 2012.
Searcy, Gladys v. eFunds Corporation is a nationwide putative
class action that was filed against the Company's subsidiary
eFunds Corporation and its affiliate Deposit Payment Protection
Services, Inc. in the U.S. District Court for the Northern
District of Illinois during the first quarter of 2008. The
complaint seeks damages for an alleged willful violation of the
Fair Credit Reporting Act ("FCRA") in connection with the
operation of the Shared Check Authorization Network. Plaintiff's
principal allegation is that consumers did not receive appropriate
disclosures pursuant to Section 1681g of the FCRA because the
disclosures did not include: (i) all information in the consumer's
file at the time of the request; (ii) the source of the
information in the consumer's file; and/or (iii) the names of any
persons who requested information related to the consumer's check
writing history during the prior year. Plaintiff filed a motion
for class certification, which was granted with respect to two
subclasses during the first quarter of 2010. The motion was
denied with respect to all other subclasses. The Company filed a
motion for reconsideration. The motion was granted and the two
subclasses were decertified. The plaintiff also filed motions to
amend her complaint to add two additional plaintiffs to the
lawsuit. The court granted the motions.
During the second quarter of 2010, the Company filed a motion for
summary judgment as to the original plaintiff and a motion for
sanctions against the plaintiff and her counsel based on
plaintiff's alleged false statements that were filed in support of
the motion for class certification. In the third quarter of 2010,
the court denied the motion for summary judgment and granted in
part and denied in part the motion for sanctions. The Company
filed a motion requesting the court to allow it to file an
interlocutory appeal on the order denying the motion for summary
judgment. The court granted the motion; however, in the first
quarter of 2011, the Seventh Circuit Court of Appeals denied the
Company's petition for interlocutory appeal. Discovery regarding
the new plaintiffs and other matters has been completed.
In the first quarter of 2012, plaintiffs filed a renewed motion
for class certification. The parties attended mediation and, in
the second quarter of 2012, reached an agreement on the material
terms of a settlement. The parties entered into a settlement
agreement and received preliminary approval from the Court in the
second quarter of 2012. The court entered a judgment and a final
approval order on September 25, 2012. The effective date of the
settlement agreement was October 29, 2012. The estimated
liability recorded based on the terms of the settlement agreement
did not have a material effect on the consolidated results of the
Company.
FIORUCCI FOODS: Recalls 2,650 Lbs. of Mortadella
------------------------------------------------
Fiorucci Foods, Inc., a South Chesterfield, Virginia
establishment, is recalling approximately 2,650 pounds of
mortadella because the product contains pistachio nuts, a known
allergen, that are not declared on the label, the U.S. Department
of Agriculture's Food Safety and Inspection Service (FSIS)
announced.
The products subject to recall include:
* Cases containing two (2), 6-8 lb. bulk deli packages of
"BLACK BEAR OF THE BLACK FOREST MORTADELLA" with an
identifying case code of "510411." These products were
shipped to retailers in New Jersey and New York.
* Cases containing two (2), 5-7 lb. bulk deli packages of
"COLOSSEUM MORTADELLA" with an identifying case code of
"50405." These products were shipped to distributors in
Miami, Florida, and Chicago, Illinois.
Both products subject to recall were produced on November 10,
2012, and bear the establishment number "EST. 4058" inside the
USDA mark of inspection with a sell by date of February 10, 2013.
Pictures of the recalled products' labels are available at:
http://www.fsis.usda.gov/News_&_Events/Recall_080_2012_Release/index.asp
The problem was discovered by the Company, who notified FSIS. The
Company produces mortadella with and without pistachios, and has
correct labels for both products. This problem occurred when the
label for the product without pistachios was incorrectly placed on
product containing pistachios. FSIS and the Company have received
no reports of adverse reactions this time. Anyone concerned about
an injury or illness from consumption of these products should
contact a healthcare provider.
FSIS routinely conducts recall effectiveness checks to verify
recalling firms notify their customers of the recall and that
steps are taken to make certain that the product is no longer
available to consumers. When available, the retail distribution
list will be posted on FSIS' Web site at:
http://www.fsis.usda.gov/FSIS_Recalls/>Open_Federal_Cases/index.asp
Consumers and news reporters with questions should contact the
company's recall hotline at (804) 876-0584.
Consumers with food safety questions can "Ask Karen," the FSIS
virtual representative available 24 hours a day at
www.AskKaren.gov. "Ask Karen" live chat services are available
Monday through Friday from 10:00 a.m. to 4:00 p.m. Eastern Time.
The toll-free USDA Meat and Poultry Hotline 1-888-MPHotline (1-
888-674-6854) is available in English and Spanish and can be
reached from 10:00 a.m. to 4:00 p.m. Eastern Time Monday through
Friday. Recorded food safety messages are available 24 hours a
day.
GEORGIA-PACIFIC: Faces Class Action Over Drywall Price-Fixing
------------------------------------------------------------
Ben James, writing for Law360, reports that Drywall installer
Sierra Drywall Systems Inc. hit Georgia-Pacific LLC, American
Gypsum Company LLC, and seven other defendants with a putative
class action in Chicago on Dec. 13, accusing them of conspiring to
jack up drywall prices.
Arizona-based Sierra Drywall said the nine defendants colluded to
fix and raise prices for gypsum board -- also called drywall or
sheetrock -- starting with large, coordinated price hikes that
took effect in January, allegedly resulting in the plaintiff and
other direct purchasers paying inflated prices.
HOSPIRA INC: Continues to Defend Securities Suit in Illinois
------------------------------------------------------------
Hospira, Inc. continues to defend itself from a securities class
action lawsuit pending in Illinois, according to the Company's
November 7, 2012, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended September 30, 2012.
Hospira and certain of its corporate officers and former corporate
officers are defendants in a lawsuit alleging violations of the
Securities and Exchange Act of 1934: City of Sterling Heights
General Employees' Retirement System, Individually and on behalf
of all others similarly situated vs. Hospira, Inc., F. Michael
Ball, Thomas E. Werner, James H. Hardy, Jr., and Christopher B.
Begley, amended complaint filed June 25, 2012, and pending in the
United States District Court for the Northern District of
Illinois. The lawsuit alleges, generally, that the defendants
issued materially false and misleading statements regarding
Hospira's financials and business prospects and failed to disclose
material facts affecting Hospira's financial condition. The
lawsuit alleges a class period from February 4, 2010 (announcement
of Q4, 2009 financial results) through October 17, 2011 (Hospira
announced preliminary financial results for Q3, 2011 on October
18, 2011). The lawsuit seeks class action status and damages
including interest, attorneys' fees and costs.
HOSPIRA INC: ERISA Violation Class Suit Dismissed in October
------------------------------------------------------------
The class action lawsuit against Hospira, Inc. alleging violation
of the Employee Retirement Income Security Act of 1974 was
dismissed in October 2012, according to the Company's November 7,
2012, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended September 30, 2012.
Hospira, certain members of Hospira's Board of Directors and other
current or former Hospira employees were named as defendants in a
lawsuit alleging violation of the Employee Retirement Income
Security Act of 1974 ("ERISA"). The lawsuit, Veronica Lynch,
Individually and on behalf of all others similarly situated and on
behalf of the Hospira 401(k) Retirement Savings Plan v. Hospira,
Inc., Pamela Hannon, Henry A. Weishaar, Lori O. Carlson, Richard
J. Hoffman, the Compensation Committee of the Board of Directors
of Hospira, Inc., Roger W. Hale, Connie R. Curran, Jacque J.
Sokolov and Heino von Prondzynski, was filed June 11, 2012, in the
United States District Court for the Northern District of Illinois
and alleged breaches of fiduciary duties, generally alleging that
Hospira stock was not a prudent investment for 401(k)
participants. The lawsuit sought class action status, equitable
relief and monetary damages.
On October 2, 2012, the case was dismissed in its entirety.
LEBEAU INC: Workers File Class Action Over Unpaid Wages
-------------------------------------------------------
Will Astor, writing for Rochester Business Journal, reports that
James LeBeau shorted them on pay, a group of the local promoter's
current and former workers claim in a class-action complaint filed
last week in federal court.
Mr. Lebeau heads LeBeau Inc. and does business as Beau
Productions. His company manages Frontier Field and LeBeau is the
stadium director. His company also mounts the Lilac Festival and
other events.
A seven-member group, including six ex-LeBeau Inc. employees and
one current Frontier Field worker, claims in a class-action suit
filed on Dec. 11 in U.S. District Court in Rochester that LeBeau
failed to pay full wages due them.
The suit names LeBeau Inc., Mr. LeBeau as the firm's president and
LeBeau Inc. vice president Susan LeBeau as defendants.
In all, a minimum of 50 individuals could join the class action,
the complaint states.
The wage-and-hour claim comes three months after the state
Department of Labor launched a probe of LeBeau Inc. over alleged
violations of the state's prevailing wage law at Frontier Field.
The prevailing wage statute states contractors and subcontractors
working under a public works project must pay certain minimum
hourly wage rates known as prevailing wages. The state-set rates
vary for workers in various job categories and vary by county.
The basic prevailing hourly rate for a Monroe County floor
mechanic, for example, is $24.12. The same job's prevailing rate
in Chemung County is $25 an hour.
Some wage-and-hour suits plaintiffs are also complainants in the
prevailing wage investigation, said the class-action plaintiffs'
attorney, Robert Mullin of Ferr & Mullin in Fishers. The two sets
of claims cover some of the same ground but are not directly
related, he said.
The class-action alleges two types of violation: Festival and air
show workers say they were paid for all the hours they worked but
did not get overtime pay for weeks when they put in more than 40
hours. Frontier Field workers claim that under state and federal
labor laws they were supposed to be paid by the hour but were
wrongly treated as salaried workers.
LOCAL SERVICE: Colo. Court Rules on Elbert County Zoning Dispute
----------------------------------------------------------------
Colorado District Judge Lewis T. Babcock granted a motion for
summary judgment filed by the Board of County Commissioners of
Elbert County on claims asserted by Kenneth G. Rohrbach, Karen L.
Rohrbach, Paul K. Rohrbach, and Compost Express, Inc., in a zoning
dispute. The Court, however, denied the BOCC's motion for summary
judgment on the claims asserted by Onyx Properties LLC, Emerald
Properties LLC, Valley Bank and Trust, Paul and Shauna Naftel, and
the Estate of Local Service Corporation.
The dispute follows a decision in which the Colorado Court of
Appeals reversed a trial court ruling that the BOCC proved that
the Rohrbachs' property -- located in Elbert County -- was zoned
"A-Agriculture" in a zoning enforcement action brought by the BOCC
seeking to enjoin the Rohrbachs from operating a commercial
composting business on that property. A panel of the Court of
Appeals determined that the relevant zoning regulation, which
purported to establish the zoning areas in Elbert County, could
not be used to ascertain the applicable zoning of the Rohrbachs'
property.
Following the ruling by the Colorado Court of Appeals, Onyx et al.
filed a lawsuit against the BOCC in June 2010. Onyx et al. owned
large tracts of property in Elbert County that they sought to
divide into 35-acre parcels for development and sale in 2004-2006.
The property known as Kiowa Creek Estates was owned by Onyx
Properties, Emerald Properties, and Paul & Shauna Naftel. The
property known as Wolf Creek Ranches & Wolf Creek Estates was
owned by Local Service Corporation and, later, by Valley Bank and
Trust. The BOCC required both developments to proceed through a
re-zoning process. Ultimately, in two separate applications, Wolf
Creek Ranches & Wolf Creek Estates were re-zoned from "A-
Agriculture" to an "A-1" designation in October 2004 and November
2004. Kiowa Creek Estates was subsequently re-zoned from "A-
Agriculture" to an "A-1" designation in September 2006.
In their lawsuit, Onyx et al. assert individual claims under 42
U.S.C. Sec. 1983 for the loss of their individual property rights,
without due process of law, by the BOCC's alleged illegal
enforcement of its invalid zoning regulations and related map in
the re-zoning process. They also asserted class claims, for
violations of the class' constitutional rights, on behalf "of all
persons who have on or after Aug. 28, 1997 (1) submitted an
application for an A-1 rezone; and (2) all persons who have had
the A-1 provisions of the Zoning Regulations . . . enforced
against them regarding the A-1 zone."
The Rohrbachs also filed a federal lawsuit in September 2011
seeking damages under 42 U.S.C. Sec. 1983 for violation of due
process, against the BOCC for enforcement of its alleged
unconstitutional and non-existent zoning regulations. Their
federal lawsuit was subsequently consolidated into the Onyx case.
The cases before the District Court are, ONYX PROPERTIES LLC, a
Colorado Limited Liability Company; EMERALD PROPERTIES, LLC, a
Colorado Limited Liability Company; VALLEY BANK AND TRUST, a
Colorado State Bank; PAUL NAFTEL, an individual; SHAUNA NAFTEL, an
individual; and The Estate of LOCAL SERVICE CORPORATION by and
through its Chapter 11 Bankruptcy Trustee, SIMON E. RODRIGUEZ,
Plaintiffs, v. BOARD OF COUNTY COMMISSIONERS OF ELBERT COUNTY,
Defendant; and KENNETH G. ROHRBACH, KAREN L. ROHRBACH, PAUL K.
ROHRBACH, and COMPOST EXPRESS, INC., a Colorado corporation,
Plaintiffs, v. BOARD OF COUNTY COMMISSIONERS OF ELBERT COUNTY, in
its official capacity, Defendant, Civil Case No. 10-cv-01482-LTB-
KLM, Consolidated w/11-cv-02321-RPM-MJW (D. Colo.).
A copy of Judge Babcock's Dec. 12, 2012 Order is available at
http://is.gd/1ue7zTfrom Leagle.com
Local Service Corporation filed for Chapter 11 bankruptcy (Bankr.
D. Colo. Case No. 08-15543) on April 25, 2008. In June 2010, the
U.S. Trustee's Office appointed Simon Rodriguez as the Chapter 11
trustee for the LSC estate.
John D. Watson, who held stock interests in LSC, is a debtor in a
separate Chapter 7 case. Jeffrey A. Weinman was appointed as the
Chapter 7 trustee for Mr. Watson's bankruptcy estate (Bankr. D.
Colo. Case No. 07-21077) in February 2008. Mr. Weinman became the
sole board member of LSC, elected himself President, and was
authorized to make decisions for LSC.
MONSTER BEVERAGE: Sued in Calif. Over Mislabeling of Energy Drink
-----------------------------------------------------------------
Greg Ryan, writing for Law360, reports that the beleaguered
Monster Beverage Corp. was slapped with a proposed class action in
California on Dec. 12 that accuses the company of labeling its
energy drinks as supplements in order to escape federal safety
regulations for beverages.
The ingredients in conventional beverages are subject to U.S. Food
and Drug Administration food additive programs before they hit the
market, according to a complaint filed in federal court by
plaintiff Alec Fisher. But even though Monster labels its drinks
as supplements, the company never refers to the products as
supplements.
NASDAQ OMX: Defends Class Action Suits Over Facebook IPO
--------------------------------------------------------
The NASDAQ OMX Group, Inc. is defending lawsuits arising from
Facebook Inc.'s initial public offering, according to the
Company's November 7, 2012, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended September
30, 2012.
In the second quarter of 2012, the Company became a party to
several legal and regulatory proceedings relating to the initial
public offering of Facebook that occurred on May 18, 2012. The
Company is defendants in the following putative class actions in
the United States District Court for the Southern District of New
York: Goldberg, et al. v. The NASDAQ OMX Group, Inc. and The
NASDAQ Stock Market LLC, Yan v. The NASDAQ OMX Group, Inc. and The
NASDAQ Stock Market LLC, Alfonso, et al. v. The NASDAQ Stock
Market LLC and The NASDAQ OMX Group, Inc., Levy v. The NASDAQ
Stock Market LLC and The NASDAQ OMX Group, Inc., Amin v. The
NASDAQ Stock Market LLC and The OMX Group, Inc., Steinman v. The
NASDAQ OMX Group, Inc. and The NASDAQ Stock Market LLC, Roderick
v. The NASDAQ OMX Group, Inc. and The NASDAQ Stock Market LLC,
McGinty v. NASDAQ OMX Group, Inc. and The NASDAQ Stock Market LLC,
Zack v. The NASDAQ OMX Group, Inc. and The NASDAQ Stock Market
LLC, Eagan v. The NASDAQ OMX Group, Inc. and The NASDAQ Stock
Market LLC, and First New York Securities LLC, et al. v. NASDAQ
OMX Group, Inc. and The NASDAQ Stock Market LLC. Ten of these
lawsuits have been brought by retail investors seeking damages for
alleged negligence by the Company in connection with the Facebook
IPO. The eleventh lawsuit was brought by professional proprietary
trading firms for alleged violations of Rule 10b-5, promulgated
under the Securities Exchange Act of 1934, in connection with the
Facebook IPO.
The Company is a defendant in three other lawsuits brought by
individual investors, seeking damages for alleged negligence and
fraud by the Company in connection with the Facebook IPO.
The Company also received a demand letter from a member
organization, seeking indemnification for alleged losses
associated with the Facebook IPO. No complaint has been filed in
this matter.
The Company believes that these lawsuits and the demand are
without merit and intends to defend them vigorously. As such, the
Company has not recorded a reserve as it is not probable that a
liability has been incurred and the amount of loss cannot be
reasonably estimated as of the date of these condensed
consolidated financial statements.
NOKIA: New York Securities Class Action Withdrawn
-------------------------------------------------
Telecompaper reports that a class action complaint filed by the
firm Robbins Geller Rudman & Dowd against Nokia in the US District
Court of New York on May 3 has been withdrawn. The lawsuit on
behalf of Nokia shareholders accused certain of the company's
officers and directors with violations of the Securities Exchange
Act of 1934 during the period October 26, 2011 to April 10, 2012.
The company allegedly told investors that Nokia's conversion to
the Windows platform would halt its deteriorating position in the
smartphone market. However, it became clear this was not the case
when on April 11 Nokia disclosed that its first-quarter
performance would be worse than expected, the lawsuit claimed.
After further investigation, the plaintiffs have agreed to dismiss
the case against all defendants without any compensation being
paid to any plaintiff or their counsel by any defendant, Nokia
said.
OCEAN BEAUTY: Recalls Nathan's/LASCCO Cold Smoked Atlantic Salmon
-----------------------------------------------------------------
Ocean Beauty Seafoods LLC is voluntarily recalling 371 cases of
ready-to-eat cold smoked salmon products because of possible
contamination by Listeria monocytogenes.
The recalled products, "Nathan's Brand 3oz Cold Smoked Atlantic
Salmon" (Product of Chile) and "LASCCO Cold Smoked Nova Atlantic
Salmon 4 oz" (Product of Chile) were distributed to various
retailers and distribution centers in WA, OR, CA, AZ, TX, CO, MA,
NH, CT, RI, NJ, and NY from 11/20/2012 through 12/12/2012.
Potentially affected product is limited to packages bearing the
following codes:
PACK
BRAND ITEM UPC CODE VOLUME
----- ---------------- --------------- ---- ------
Lascco 4 oz Nova Salmon 0 72840 01751 7 285 96 cases
Nathan's 3 oz Nova Salmon 0 73030 80368 2 285 275 cases
Pictures of the recalled products' labels are available at:
http://www.fda.gov/Safety/Recalls/ucm332355.htm
Ocean Beauty Seafoods has notified the retailers and distributors
who may have received the listed affected product, and is taking
this action as a precautionary measure in cooperation with the
U.S. Food and Drug Administration. No other Ocean Beauty products
are included in this action. There have been no complaints or
illnesses reported in association with this recall.
The potential for contamination was noted after internal testing
by the company revealed the presence of Listeria monocytogenes in
samples of the specific code dates identified above. Nathan's and
Lascco brand products that do not have the specific package code
identified above are not affected.
Consumers can identify if they have purchased an impacted product
by looking at the package code date located in the back, top left
corner of the package. Consumers who have affected product with
the package codes identified above should not eat the product.
Consumers should discard any open packages of affected product and
should return unopened packages to the place of purchase for a
refund.
Listeria monocytogenes is an organism which can cause serious and
sometimes fatal infections in young children, frail or elderly
people, and others with weakened immune systems. Although healthy
individuals may suffer only short-term symptoms such as high
fever, severe headache, stiffness, nausea, abdominal pain and
diarrhea, Listeria infection can cause miscarriages and
stillbirths among pregnant women. Anyone who is concerned about a
possible health problem or illness should contact a healthcare
provider immediately.
PHILIP MORRIS: Judge Refuses to Reopen $10-Bil. Class Action
------------------------------------------------------------
Joe Harris at Courthouse News Service reports that a multibillion-
dollar class action against tobacco giant Philip Morris cannot be
reopened, a Madison County judge said.
Judge Dennis Ruth found that the plaintiffs failed to show that
information revealed in subsequent cases would not have changed
the outcome.
Plaintiffs' attorneys in August asked the judge to reopen the
case.
The case, which claimed that Philip Morris violated Illinois law
by marketing "light" and "lowered tar and nicotine" cigarettes as
healthier options, was originally filed in 2000. It made national
headlines in 2003 when now-retired Judge Nicholas Byron ordered
$10.1 billion in compensatory and punitive damages.
It was the first time a tobacco company lost a consumer fraud
case, according to the St. Louis Post-Dispatch.
The Illinois Supreme Court reversed the judgment in 2005. The
court agreed with defense arguments that the Federal Trade
Commission had authorized the wording for cigarette descriptions.
The U.S. Supreme Court refused to review the verdict in 2006,
causing the case to be dismissed.
PORTFOLIO RECOVERY: Awaits Court Rulings in TCPA Violations MDL
---------------------------------------------------------------
Portfolio Recovery Associates, Inc. is awaiting court decisions on
pending motions in the multidistrict litigation pending in
California alleging violations of the Telephone Consumer
Protection Act, according to the Company's November 7, 2012, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended September 30, 2012.
The Company has been named as defendant in a number of putative
class action cases, each alleging that the Company violated the
Telephone Consumer Protection Act ("TCPA") by calling consumers'
cellular telephones without their prior express consent. On
December 21, 2011, the United States Judicial Panel on Multi-
District Litigation entered an order transferring these matters
into one consolidated proceeding in the United States District
Court for the Southern District of California. On June 22, 2012,
the putative class plaintiffs filed their consolidated complaint
in the matter, now styled as In re Portfolio Recovery Associates,
LLC Telephone Consumer Protection Act Litigation, case No. 11-md-
02295 ("MDL action"). The Company filed a motion to dismiss the
consolidated complaint. On October 9, 2012, the plaintiffs filed
a motion requesting leave to file an amended consolidated
complaint. A hearing on both motions was scheduled for
November 26, 2012.
On October 12, 2012, the United States Court of Appeals for the
Ninth Circuit, affirmed the decision of the United States District
Court for the Southern District of California in the matter of
Meyer v. Portfolio Recovery Associates, LLC, Case No. 11-cv-01008,
which imposed a preliminary injunction prohibiting the Company
from using its Avaya Proactive Contact Dialer to place calls to
cellular telephones with California area codes that were obtained
through skip-tracing. On October 26, 2012, the Company filed a
petition seeking a rehearing en banc before the United States
Court of Appeals for the Ninth Circuit. Meyer is one of the cases
included in the MDL action. Both Meyer and the MDL action are
ongoing and no final determination on the merits in either has
been made.
SALT LAKE CITY, UT: ACLU Files Class Action Over "Gang Sweep"
-------------------------------------------------------------
Brooke Adams, writing for The Salt Lake Tribune, reports that the
American Civil Liberties Union filed a proposed class-action
lawsuit on Dec. 13 over a "gang sweep" two years ago at West High
School in Salt Lake City, during which between 14 and 40 students
of color were detained, questioned and falsely accused of being
gang members.
Defendants in the complaint filed in U.S. District Court are the
police departments for Salt Lake City, West Jordan and West Valley
cities; the Unified Police Department's Metro Gang Unit, Salt Lake
County and Salt Lake City School District officials.
The lawsuit alleges the action violated state and federal
constitutional rights. It was filed by the local and national
offices of the ACLU, who are representing the father of one boy
detained in the sweep.
Jason Olsen, spokesman for the Salt Lake City School District,
said the district doesn't comment on lawsuits or litigation.
Detective Mike Hamideh, spokesman for the Salt Lake City Police
Department, also declined comment.
According to the complaint, a gang task force of 16 officers
interrogated students at West High School in December 2010 and put
information about them in a gang database that potentially could
subject them to additional police scrutiny. The complaint says
police denied students' requests to call their parents or leave
the room. It also alleges the district's anti-gang policy is
unconstitutionally vague.
Kaleb Winston, then 14 and a freshman at West High, was among the
students questioned. Two plain-clothed officers approached him in
the cafeteria and asked to speak to him; the teenager thought they
were teachers. The officers took Mr. Winston to a nearby room and
accused him of graffiti vandalism, which the teen denied.
As the questioning continued, Mr. Winston got upset and tried to
leave but an officer told him to "quit acting tough" and grabbed
his arm, leaving a small red bruise. He was then taken to a
detention room, where officers searched his graffiti-patterned
backpack and questioned him about drawings on a sketch pad he used
in an art class, claiming the images resembled gang insignia.
Mr. Winston, who is bi-racial, denied any gang affiliation, but
the officers accused him of tagging sites around the school. They
made the boy hold a plate like those used when offenders are
booked into jail that read, "My name is Kaleb Winston and I am a
gang tagger." Officers then told the teen they would keep a file
on him.
The boy's parents said he was in tears when he arrived home after
school and felt bullied by police.
A police spokesman said at the time that the school had asked the
city's gang unit for help because of an increase of graffiti and
"gang attire" at the campus, and the officers' goal was to make
contact with students and steer them in the right direction.
When Kevin Winston and his wife Lisa objected to how their son was
treated, they were told his blue clothing and style of dressing --
baggy basketball shirts and basketball shoes -- signaled he was
the "type" to be a gang member. The complaint says officers told
Kaleb's mother that the purpose of the raid was address a "problem
with the Mexicans" at West High and that she had "her head up her
ass" if she did not know her son was a gang tagger. They
suggested he changed clothes when not home to fool them.
At the time, Kaleb worked in the school cafeteria, was a referee
for the county's recreational Junior Jazz basketball program and
had won an academic award for improving his grades. He has no
juvenile record.
But the experience affected him. His grades have fallen and he
had given up drawing. Kaleb temporarily transferred out of West
High, but has since returned and is now a junior at the school.
He fears police and struggles with his racial identity now, the
complaint states.
"I am bringing this case because I want to help make sure that
what happened to me doesn't happen to any other student," Kaleb
Winston said in a press release.
All of the students questioned in 2010 were of Latino, African-
American or Pacific Island descent, the complaint states.
"Schools should be a place where everyone can learn and grow, not
a location where students of color are targeted and harassed,"
said Courtney Bowie, senior staff attorney with the ACLU Racial
Justice Program, in a statement announcing the lawsuit.
SOUNDBITE COMMS: Class Action Over TCPA Violations Dismissed
------------------------------------------------------------
SoundBite Communications, a provider of customer experience
management solutions, announced that they received notification
that the class action suit filed January 11, 2012 in the United
States District Court for the Northern District of California
against Bank of America and SoundBite as co-defendants has been
dismissed. The class action lawsuit was aimed at the ambiguity in
the Telephone Consumer Protection Act (TCPA) related to text
messaging.
The announcement followed another major, and related, win for the
Company with the favorable ruling received from the Federal
Communications Commission (FCC) on November 29, 2012 on
SoundBite's February 2012 Petition for Declaratory Ruling. The
ruling clarifies that sending a single opt-out confirmation after
a consumer opts out of receiving text messages from a company does
not violate the TCPA. The ambiguity surrounding the TCPA before
the ruling in November was the crux of the class action suit.
"SoundBite championed the cause of consumers and businesses alike
by filing the petition for Declaratory Ruling with the FCC. It's
a common sense best practice to let consumers know that their opt-
out message requests are properly recorded, confirmed, and
executed," stated Jim Milton, president and CEO of SoundBite
Communications. "We are pleased that the recent FCC ruling
removes not only the ambiguity many companies faced, enabling us
to provide the best consumer experience possible, but it also
clarifies the TCPA interpretation thus removing an important basis
for lawsuits such as these."
Bob Leahy, COO and CFO of SoundBite, added, "SoundBite dedicated
significant resources including incurring litigation and
associated costs during 2012 to fight this battle on behalf of
consumers, our clients, the industry, and of course our
shareholders. SoundBite has taken a leadership position in
fighting this litigation and intends to continue to champion for
consumer best practices. This effort was successfully completed
on two fronts -- with superb assistance from both our attorneys at
Patton Boggs LLP who helped navigate our FCC petition, and our
attorneys at Cooley LLP who led our defense against the
litigation. By having the lawsuit dismissed we are in an improved
position of closing the year on a high note with some of our
regulatory headwinds and legal expenses behind us."
SOUTHERN CO: Appeal From Amended "Comer" Suit Dismissal Pending
---------------------------------------------------------------
An appeal from the dismissal of a class action lawsuit arising
from Hurricane Katrina remains pending, according to The Southern
Company's November 7, 2012, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended September
30, 2012.
In 2005, immediately following Hurricane Katrina, a lawsuit was
filed in the U.S. District Court for the Southern District of
Mississippi by Ned Comer on behalf of Mississippi residents
seeking recovery for property damage and personal injuries caused
by Hurricane Katrina. In 2006, the plaintiffs amended the
complaint to include Southern Company and many other electric
utilities, oil companies, chemical companies, and coal producers.
The plaintiffs allege that the defendants contributed to climate
change, which contributed to the intensity of Hurricane Katrina.
In 2007, the U.S. District Court for the Southern District of
Mississippi dismissed the case. On appeal to the U.S. Court of
Appeals for the Fifth Circuit, a three-judge panel reversed the
U.S. District Court for the Southern District of Mississippi,
holding that the case could proceed, but, on rehearing, the full
U.S. Court of Appeals for the Fifth Circuit dismissed the
plaintiffs' appeal, resulting in reinstatement of the decision of
the U.S. District Court for the Southern District of Mississippi
in favor of the defendants. In May 2011, the plaintiffs filed an
amended version of their class action complaint, arguing that the
earlier dismissal was on procedural grounds and under Mississippi
law the plaintiffs have a right to re-file. The amended complaint
was also filed against numerous chemical, coal, oil, and utility
companies, including Alabama Power Company, Georgia Power Company,
Gulf Power Company and Southern Power Company.
On March 20, 2012, the U.S. District Court for the Southern
District of Mississippi dismissed the plaintiffs' amended
complaint. On April 16, 2012, the plaintiffs appealed the case to
the U.S. Court of Appeals for the Fifth Circuit.
Each Southern Company entity named in the lawsuit believes that
these claims are without merit. While each Southern Company
entity named in the lawsuit believes the likelihood of loss is
remote based on existing case law, it is not possible to predict
with certainty whether any Southern Company entity named in the
lawsuit will incur any liability in connection with this matter.
The ultimate outcome of this matter cannot be determined at this
time.
Atlanta-based The Southern Company --
http://www.southerncompany.com/-- is an energy company serving
the Southeast. A leading U.S. producer of electricity, Southern
Company businesses include electric utilities in four states and a
growing competitive generation company, as well as fiber optics
and wireless communications.
TRIPLE-S MANAGEMENT: Awaits Ruling in Puerto Rican Dentists' Suit
-----------------------------------------------------------------
Triple-S Management Corporation is awaiting a court decision on a
motion for class certification in the lawsuit commenced by the
Puerto Rico Dentists Association, according to the Company's
November 7, 2012, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended September 30, 2012.
On February 11, 2009, the Puerto Rico Dentists Association
(Colegio de Cirujanos Dentistas de Puerto Rico) filed a complaint
in the Court of First Instance against 24 health plans operating
in Puerto Rico that offer dental health coverage. The Company and
two of its subsidiaries, Triple-S Salud, Inc. ("TSS") and Triple-
C, Inc. ("TCI"), were included as defendants. This litigation
purports to be a class action filed on behalf of Puerto Rico
dentists who are similarly situated.
The complaint alleges that the defendants, on their own and as
part of a common scheme, systematically deny, delay and diminish
the payments due to dentists so that they are not paid in a timely
and complete manner for the covered medically necessary services
they render. The complaint also alleges, among other things,
violations to the Puerto Rico Insurance Code, antitrust laws, the
Puerto Rico racketeering statute, unfair business practices,
breach of contract with providers, and damages in the amount of
$150 million. In addition, the complaint claims that the Puerto
Rico Insurance Companies Association is the hub of an alleged
conspiracy concocted by the member plans to defraud dentists.
There are numerous available defenses to oppose both the request
for class certification and the merits. The Company intends to
vigorously defend this claim.
Two codefendant plans, whose main operations are outside Puerto
Rico, removed the case to federal court in Florida, which the
plaintiffs and the other codefendants, including the Company,
opposed. Following months of jurisdictional proceedings in the
federal court system, the federal district court in Puerto Rico
decided to retain jurisdiction on February 8, 2011. The
defendants filed a joint motion to dismiss the case on the merits,
because the complaint fails to state a claim upon which relief can
be granted. On August 31, 2011, the District Court dismissed all
of plaintiffs' claims except for its breach of contract claim, and
ordered the parties to brief the issue of whether the court still
has federal jurisdiction under the Class Action Fairness Act of
2005. Plaintiffs moved the court to reconsider its August 31,
2011 decision and the defendants did the same, arguing that the
breach of contract claim failed to state a claim upon which relief
can be granted. On May 2, 2012, the court denied the plaintiffs'
motion. On May 31, 2012, plaintiffs appealed the District Court's
dismissal of their complaint and the denial of plaintiffs' motion
for reconsideration. The Court of Appeals for the First Circuit
dismissed the appeal for lack of jurisdiction. On September 25,
2012 the District Court denied without prejudice the defendants'
motion for reconsideration. On October 10, 2012 the parties filed
their briefs with respect to class certification and are waiting
for the court's decision.
Triple-S Management Corporation --
http://www.triplesmanagement.com/triples-- is an independent
licensee of the Blue Cross Blue Shield Association. It is a
player in the managed care industry in Puerto Rico. Triple-S
Management also has the exclusive right to use the Blue Cross Blue
Shield name and mark throughout Puerto Rico and the U.S. Virgin
Islands. With more than 50 years of experience in the industry,
Triple-S Management offers a broad portfolio of managed care and
related products in the Commercial and Medicare Advantage markets
under the Blue Cross Blue Shield brand through its subsidiary
Triple-S Salud, Inc. and effective February 2011, also offers non-
branded Medicare products through American Health Inc. In
addition to its managed care business, Triple-S Management
provides non-Blue Cross Blue Shield branded life and property and
casualty insurance in Puerto Rico.
TRIPLE-S MANAGEMENT: TSP Still Defends Two Vehicle Owner Suits
--------------------------------------------------------------
A subsidiary of Triple-S Management Corporation continues to
defend itself against two class action lawsuits brought by motor
vehicle owners in Puerto Rico, according to the Company's November
7, 2012, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended September 30, 2012.
On August 19, 2011, plaintiffs, purportedly a class of motor
vehicle owners, filed an action in the United States District
Court for the District of Puerto Rico against the Puerto Rico
Joint Underwriting Association ("JUA") and 18 other defendants,
including Triple-S Propiedad, Inc. ("TSP"), alleging violations
under the Puerto Rico Insurance Code, the Puerto Rico Civil Code,
the Racketeer Influenced and Corrupt Organizations Act ("RICO")
and the local statute against organized crime and money
laundering. JUA is a private association created by law to
administer a compulsory public liability insurance program for
motor vehicles in Puerto Rico ("CLI"). As required by its
enabling act, JUA is composed of all the insurers that underwrite
private motor vehicle insurance in Puerto Rico and exceed the
minimum underwriting percentage established in such act. TSP is a
member of JUA.
In this lawsuit, entitled Noemi Torres Ronda, et al v. Joint
Underwriting Association, et al., plaintiffs allege that the
defendants illegally charged and misappropriated a portion of the
CLI premiums paid by motor vehicle owners in violation of the
Puerto Rico Insurance Code. Specifically, they claim that because
the defendants did not incur acquisition or administration costs
allegedly totaling 12% of the premium dollar, charging for such
costs constitutes the illegal traffic of premiums. Plaintiffs
also claim that the defendants, as members of JUA, violated RICO
through various inappropriate actions designed to defraud motor
vehicle owners located in Puerto Rico and embezzle a portion of
the CLI premiums for their benefit.
Plaintiffs seek the reimbursement of funds for the class amounting
to $406.6 million, treble damages under RICO, and equitable
relief, including a permanent injunction and declaratory judgment
barring defendants from their alleged conduct and practices, along
with costs and attorneys' fees.
On December 30, 2011, TSP and other insurance companies filed a
joint motion to dismiss, arguing that plaintiffs' claims are
barred by the filed rate doctrine, inasmuch a lawsuit cannot be
brought, even under RICO, to amend the compulsory liability
insurance rates that were approved by the Puerto Rico Legislature
and the Commissioner of Insurance. The motion also argues that
since RICO is not a federal statute that specifically relates to
the business of insurance, and its application in the claims at
issue would frustrate state policy and interfere with Puerto
Rico's insurance administrative regime, the McCarran-Ferguson Act
precludes plaintiffs' claims. Finally, TSP argued that plaintiffs
failed to allege the necessary elements of an actionable RICO
claim, or, in the alternative, their damages claim is time barred.
On February 17, 2012, plaintiffs filed their opposition. On April
4, 2012, TSP filed a reply in support of the Company's motion to
dismiss. The court denied the Company's motion to dismiss. On
October 2, 2012, the court issued an order certifying the class.
On October 12, 2012, several defendants, including TSP, filed an
appeal before the U.S. Court of Appeals for the First District,
requesting the court to vacate the District Court's certification
order.
A similar case entitled Maria Margarita Collazo Burgos, et al. v.
La Asociacion de Suscripcion Conjunta del Seguro de
Responsabilidad Obligatorio ("JUA"), et al., was filed against JUA
and its members, including TSP, in the Puerto Rico Court of First
Instance, San Juan Part on January 28, 2010. This litigation is a
putative class action lawsuit brought on behalf of motor vehicle
owners in Puerto Rico. Plaintiffs in this lawsuit allege that
each of the defendants engaged in similar activities and conduct
as those alleged in the Torres Ronda litigation and claim the
recovery of $225 million for the class pertaining to the
acquisition and administration costs of the CLI, allegedly charged
in violation of the Puerto Rico Insurance Code's provisions
prohibiting the illegal traffic of premiums. TSP is vigorously
contesting this action.
Given the early stage of these cases, the Company says it cannot
assess the probability of an adverse outcome, or the reasonable
financial impact that any such outcome may have on the Company.
The Company intends to vigorously defend these lawsuits.
Triple-S Management Corporation --
http://www.triplesmanagement.com/triples-- is an independent
licensee of the Blue Cross Blue Shield Association. It is a
player in the managed care industry in Puerto Rico. Triple-S
Management also has the exclusive right to use the Blue Cross Blue
Shield name and mark throughout Puerto Rico and the U.S. Virgin
Islands. With more than 50 years of experience in the industry,
Triple-S Management offers a broad portfolio of managed care and
related products in the Commercial and Medicare Advantage markets
under the Blue Cross Blue Shield brand through its subsidiary
Triple-S Salud, Inc. and effective February 2011, also offers non-
branded Medicare products through American Health Inc. In
addition to its managed care business, Triple-S Management
provides non-Blue Cross Blue Shield branded life and property and
casualty insurance in Puerto Rico.
UNITED STATES: Justice Dept. Has Not Yet Appealed "Beer" Ruling
---------------------------------------------------------------
Jesse J. Holland, writing for The Associated Press, reports that
with the nation teetering on an economic "fiscal cliff," federal
judges may soon force Congress to dedicate possibly millions of
dollars to what some of those same judges must consider a worthy
cause: their own salaries.
The U.S. Court of Appeals for the Federal Circuit in October
ordered Congress to pay six federal judges years of back pay. Now
a group of federal judges is pushing a class-action lawsuit to
ensure all of the rest of the federal judges who also missed out
on their cost-of-living increases get what they feel is their due.
It's a touchy subject: One set of federal judges asking another
set to essentially approve salary increases for everyone. Though,
of course, Congress also ultimately controls its own salaries.
Congress in 1989 limited federal judges' ability to earn money
outside of their work on the bench and in exchange provided what
was supposed to be automatic cost-of-living increases to judicial
salaries to ensure inflation wouldn't erode the value of those
salaries over time.
U.S. District Judge Royal Furgeson Jr. of Texas, one of the judges
seeking class-action status, called that a "binding commitment"
made by the legislative branch for the judicial branch to "receive
the same yearly COLAs awarded to all other federal employees, to
keep us even with inflation."
But instead of following through, Congress withheld those cost-of-
living increases in 1995, 1996, 1997, 1999, 2007 and 2010, while
giving other federal employees their promised increases. "In our
view, the exclusion is contrary to the commitment to us, so we
have sued to enforce it," said Judge Furgeson, a senior judge who
also serves as the president of the Federal Judges Association.
The Constitution, the judges say, is on their side. The
Constitution says compensation for federal judges "shall not be
diminished during their continuance in office," so the judges say
denying them a promised cost-of-living increase violates the
Constitution's Compensation Clause.
And now a federal appeals court is on their side.
"Congress' acts in 1995, 1996, 1997 and 1999 constitute
unconstitutional diminishments of judicial compensation," the
appeals court said in its October order, adding that money also
was due that had been withheld in 2007 and 2010. "As relief,
appellants are entitled to monetary damages for the diminished
amounts they would have been paid if Congress had not withheld the
salary adjustments."
However, the appeals court's decision only applied to those judges
who sued in the Beer v. United States case, so Judge Furgeson and
another group of judges are trying to get a class-action lawsuit
approved so they can get the missed salary adjustments for more
than 1,000 other current and former federal judges who court
papers say would have been eligible.
Their success will depend on whether the Beer decision holds up if
challenged at the Supreme Court. So far, the Justice Department
has not yet decided whether to appeal the federal circuit court's
ruling to the Supreme Court, a spokeswoman said.
The entire federal bench would benefit from the success of a
class-action lawsuit, which would include "all persons who are
serving or who served as United States judges under Article III of
the Constitution."
VENOCO INC: Defends Consolidated Merger-Related Suit in Delaware
----------------------------------------------------------------
Venoco, Inc. is defending a consolidated merger-related lawsuit in
Delaware, according to the Company's November 7, 2012, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended September 30, 2012.
In August 2011, Timothy Marquez, the then-chairman and chief
executive officer of the Company, submitted a nonbinding proposal
to the board of directors of the Company to acquire all of the
shares of the Company he does not beneficially own for $12.50 per
share in cash (the "Marquez Proposal"). As a result of that
proposal, four lawsuits were filed in the Delaware Court of
Chancery in 2011 against the Company and each of its directors by
shareholders alleging that the Company and its directors had
breached their fiduciary duties to the shareholders in connection
with the Marquez Proposal. A fifth lawsuit filed in 2011, also in
the Delaware Court of Chancery, named only Mr. Marquez as a
defendant. On January 16, 2012, the Company announced it had
entered into a merger agreement with Mr. Marquez and certain of
his affiliates pursuant to which, at closing, each of the
shareholders other than Mr. Marquez and his affiliates would
receive $12.50 for each share of Company stock (the "Merger").
Following announcement of the merger agreement, four additional
lawsuits were filed in Delaware and three lawsuits were filed in
federal court in Colorado naming as defendants the Company and
each of its directors. Each action seeks certification as a class
action. Plaintiffs in both the Delaware and Colorado actions
challenge the Merger and allege, among other things, that the
consideration paid was inadequate. The complaints filed in
Delaware were consolidated. The Colorado actions have been
administratively closed pending resolution of the Delaware case.
The Company has reviewed the allegations contained in the
complaints and believes they are without merit.
VIRGINIA: Loses Bid to Dismiss Medical Care Suit v. FCCW
--------------------------------------------------------
Lorraine Bailey at Courthouse News Service reports that a federal
judge refused to dismiss a class action alleging that a women's
prison in Virginia fails to treat medical conditions as a way to
cut costs.
Five prisoners at Fluvanna Correction Center for Women (FCCW) in
Troy, Va., are leading the charge against the Virginia Department
of Corrections (VDOC), which they say routinely violates Eighth
Amendment rights and shows deliberate indifference to medical
needs.
U.S. District Judge Norman Moon denied the state's motion to
dismiss on Dec. 11.
"Plaintiffs allege that, as a result of cost-saving concerns,
medical personnel at FCCW 'have failed, or refused, to invest the
time or effort required to acknowledge, examine, diagnose and
treat them with respect to existing or potentially serious medical
problems and concerns,'" he wrote. "Indeed, the complaint is
replete with specific examples of how Plaintiffs have been
adversely affected as a result of this concern."
Officials with the Virginia Department of Corrections allegedly
received hundreds of grievances, which should have notified them
of a continuing problem at the prison facility, the decision
states.
"Given that plaintiffs have alleged that the VDOC defendants
remained inactive despite personal knowledge of information
disclosing alleged ongoing deficiencies in medical care,
plaintiffs' Eighth Amendment claim may proceed against them
directly," Judge Moon wrote.
The complaint describes how the prison failed to give the proper
dosage of medication prescribed to Cynthia Scott after she was
diagnosed with sarcoidosis, a disease that formed nodules in her
lungs, spleen and liver. Ms. Scott also allegedly developed a
blood clot in her leg that was left untreated until it traveled to
her lungs.
Bobinette Fearce, a second named plaintiff, says she has
degenerative disc disease, causing her chronic pain. The prison
doctors allegedly refused to give her enough Tylenol to alleviate
her pain. She also claims to suffer from incontinence and must
wear a diaper at all times, but an FCCW doctor said she is "'too
old' to be afforded the surgery that would correct her bladder
condition."
Patricia Knight says that a stroke caused her to lose grip
strength and made walking difficult. Because her conditions
allegedly prevent her from performing any prison job, Ms. Knight
says she cannot afford the $5 "co-pay" for prison medical visits
and therefore gets little medical care.
Marguerite Richardson says she visited the medical staff when she
developed a number of boils on her leg. A test found that she had
a highly contagious antibiotic-resistant infection, but the prison
waited five months to give her medication to treat the infection,
the complaint states.
Rebecca Scott, the fifth plaintiff, allegedly suffers from
recurring tonsillitis. She says an FCCW doctor told her he "'does
not believe in' removal of tonsils by surgery," that the prison
has rejected her requests to see an outside specialist.
A copy of the Memorandum Opinion in Scott, et al. v. Clarke, et
al., Case No. 12-cv-00036 (W.D. Va.), is available at:
http://www.courthousenews.com/2012/12/14/prisoners.pdf
VOLKSWAGEN GROUP: Stueve Siegel Hanson's Legal Fees Challenged
--------------------------------------------------------------
Paul Koepp, writing for Kansas City Business Journal, reports that
a case before the Missouri Supreme Court addresses whether it is
reasonable for a Kansas City plaintiff law firm to receive as much
as $6 million in compensation for negotiating a settlement that
has paid its clients only about $125,000.
The state Supreme Court heard arguments on Dec. 10 in a case
challenging fees awarded to Stueve Siegel Hanson LLP for a class-
action case against Volkswagen Group of America Inc. The case --
and another in Kansas -- has forced the firm to defend what it is
paid to take on risky cases.
WALT DISNEY: Settles Class Action; Awaits Court Approval
--------------------------------------------------------
Alex Ben Block, writing for The Hollywood Reporter, reports that a
claim against the Walt Disney Co. for intentionally failing to pay
about 30 current and former employees overtime wages and provide
breaks they were entitled to has been settled out of court, but a
class action suit was still filed on Dec. 13 so that a L.A.
Superior Court judge can certify the settlement, according to
Dennis Moss, an attorney in the case.
The Walt Disney Co. will not admit any liability, according to
Mr. Moss, but will pay a settlement and penalties that he would
not specify. The case is expected to go before the judge to be
certified sometime in 2013.
A Disney corporate spokesman did not respond to a request for
comment prior to publication.
Mr. Moss represents Katherine Clay, who in the suit says she was a
senior financial analyst for Disney. She and all of those
involved work or worked in various business-related non-managerial
jobs such as contract and rights analyst, legal rights residuals
analyst, production library analyst in participation and other
jobs in the department that processes participation, royalties and
residual payments.
Mr. Moss describes the class action suit as a follow-up to another
class action suit filed by Joseph Peralta and Pamela Ventura in
late 2010 on behalf of 36 salaried employees who worked in a
related department, who argued they had been incorrectly
classified as managers or "exempt employees" between July 2004 and
August 2010. That suit was filed in 2011.
The latest case involves higher-level workers and covers the
period of Dec. 1, 2006, through July 20, 2012.
Ms. Clay's suit says most of the employees were actually non-
exempt. In her case, Ms. Clay says that she was "misclassified"
as "exempt," which was Disney's excuse to not pay her overtime and
for giving her deadlines that made it impossible for her to take
lunch and other breaks to which she was entitled under California
labor law.
"The failure to pay those class members all overtime sums owing to
them upon termination of their employment was willful, and
therefore those class members are also entitled to relief," says
the suit.
In addition to whatever they are owed in unpaid wages, California
labor law also requires the payment of penalties that range from
$50 to $200 for each incident and for each employee. The law says
that 75 percent of the penalties should be paid to the Labor and
Work Force Development Agency, which is part of the state's
Department of Industrial Relations.
The other 25 percent of the penalties and all of the unpaid wages
will be split among those who sued and their lawyers.
In the earlier case, all of the employees' names were listed, and
that led to some of them having problems at work. So in the
latest case, the only name listed is that of Ms. Clay, who no
longer works for Disney.
WELLPOINT INC: "ADA" Suit Summary Judgment Affirmed by 11th Cir.
----------------------------------------------------------------
The United States Court of Appeals for the Eleventh Circuit
affirmed in October 2012 the entry of summary judgment against
American Dental Association in favor of WellPoint, Inc.,
dismissing the Association's putative class action relating to
out-of-network reimbursement of dental claims, according to
WellPoint's November 7, 2012, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended September
30, 2012.
The Company is currently a defendant in a putative class action
relating to out-of-network, or OON, reimbursement of dental claims
called American Dental Association v. WellPoint Health Networks,
Inc. and Blue Cross of California. The lawsuit was filed in March
2002 by the American Dental Association, and three dentists who
are suing on behalf of themselves and are seeking to sue on behalf
of a nationwide class of all non-participating dental providers
who were paid less than their actual charges for dental services
provided to members of some of the Company's affiliates' and
subsidiaries' dental plans. The dentists sue as purported
assignees of their patients' rights to benefits under the
Company's dental plans. The complaint alleges that the Company
breached its contractual obligations in violation of the Employee
Retirement Income Security Act of 1974 ("ERISA") by paying usual,
customary and reasonable, or UCR, rates, rather than the dentists'
actual charges, allegedly relying on undisclosed, non-existent or
flawed UCR data. The plaintiffs claim, among other things, that
the data failed to account for differences in geography, provider
specialty, outlier (high) charges, and complexity of procedure.
The complaint further alleges that the Company was aware that the
data was inappropriate to set UCR rates and that the Company
routinely paid OON dentists less than their actual charges,
representing that the Company's OON payments were properly
determined usual, customary and reasonable rates. The lawsuit was
pending in the United States District Court for the Southern
District of Florida. On December 23, 2011, the District Court
granted the Company's motion for summary judgment and dismissed
the case. The plaintiffs filed a notice of appeal with the United
States Court of Appeals for the Eleventh Circuit.
On October 23, 2012, the Court affirmed the entry of summary
judgment in the Company's favor.
WELLPOINT INC: Review of "Mell" Suit Dismissal Not Sought
---------------------------------------------------------
Plaintiffs in the lawsuit captioned Ronald E. Mell, Sr., et al. v.
Anthem, Inc., et al. did not seek further review of the dismissal
of their lawsuit, which arises from the demutualization of Anthem
Insurance Companies, Inc., according to WellPoint, Inc.'s November
7, 2012, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended September 30, 2012.
The Company is currently defending two certified class actions
filed as a result of the 2001 demutualization of Anthem Insurance
Companies, Inc., or AICI, and the initial public offering of
common stock, or IPO, for its holding company, Anthem, Inc. (n/k/a
WellPoint, Inc.). The lawsuits name AICI as well as Anthem, Inc.,
or Anthem, n/k/a WellPoint, Inc. The lawsuits are captioned as
Ronald Gold, et al. v. Anthem, Inc. et al. and Mary E. Ormond, et
al. v. Anthem, Inc., et al. AICI's 2001 Plan of Conversion, or the
Plan, provided for the conversion of AICI from a mutual insurance
company into a stock insurance company pursuant to Indiana law.
Under the Plan, AICI distributed the fair value of the company at
the time of conversion to its Eligible Statutory Members, or ESMs,
in the form of cash or Anthem common stock in exchange for their
membership interests in the mutual company. The lawsuits
generally allege that AICI distributed value to the wrong ESMs or
distributed insufficient value to the ESMs. In Gold, cross
motions for summary judgment were granted in part and denied in
part on July 26, 2006, with regard to the issue of sovereign
immunity asserted by co-defendant, the State of Connecticut, or
the State. The court also denied the Company's motion for summary
judgment as to plaintiffs' claims on January 10, 2005. The State
appealed the denial of its motion to the Connecticut Supreme
Court. The Company filed a cross-appeal on the sovereign immunity
issue. On May 11, 2010, the Court reversed the judgment of the
trial court denying the State's motion to dismiss the plaintiff's
claims under sovereign immunity and dismissed the Company's cross-
appeal. The case was remanded to the trial court for further
proceedings. Plaintiffs' motion for class certification was
granted on December 15, 2011. The Company intends to vigorously
defend the Gold lawsuit; however, its ultimate outcome cannot be
presently determined.
In the Ormond lawsuit, the Company's motion to dismiss was granted
in part and denied in part on March 31, 2008. The Court dismissed
the claims for violation of federal and state securities laws, for
violation of the Indiana Demutualization Law, for unjust
enrichment, and for negligent misrepresentation with respect to
ESMs residing in Indiana. On September 29, 2009, a class was
certified with respect to some but not all claims asserted in the
plaintiffs' Fourth Amended Complaint. The class consists of all
ESMs residing in Ohio, Indiana, Kentucky or Connecticut who
received cash compensation in connection with the demutualization.
The class does not include employers located in Ohio and
Connecticut that received cash distributions pursuant to the Plan.
On July 1, 2011, the Court issued an Order granting in part and
denying in part the Company's motion for summary judgment. The
Court held that the Company was entitled to judgment on all of
plaintiffs' claims except those tort claims in connection with the
pricing and sizing of the Anthem, Inc. IPO. The parties have
reached an agreement to resolve the Ormond lawsuit.
On June 15, 2012, plaintiffs filed an unopposed motion for
preliminary approval of a $90.0 million cash settlement, including
any amounts to be awarded for attorneys' fees and expenses and
other costs to administer the settlement. As a result, during the
six months ended June 30, 2012, the Company recorded selling,
general and administrative expense of $90.0 million, or $0.27 per
diluted share, associated with this settlement, which was non-
deductible for tax purposes. The Court granted plaintiffs' motion
and entered preliminary approval of the settlement on June 18,
2012. As a result, the trial that had been set for June 18, 2012,
was vacated. The cash settlement was paid on July 3, 2012, into
an escrow account. A final fairness hearing on the settlement was
held on October 25, 2012. The Court approved the settlement
agreement and dismissed the matter with prejudice but took the
issue of attorneys' fees under advisement.
On November 4, 2009, a class was certified in the Ronald E. Mell,
Sr., et al. v. Anthem, Inc., et al. lawsuit. That class consisted
of persons who were continuously enrolled in the health benefit
plan sponsored by the City of Cincinnati between June 18, 2001,
and November 2, 2001. On March 3, 2010, the Court issued an order
granting the Company's motion for summary judgment. As a result,
the Mell lawsuit was dismissed. The plaintiffs filed an appeal
with the United States Court of Appeals for the Sixth Circuit
Court. Argument on the appeal was held on January 20, 2012. The
United States Court of Appeals for the Sixth Circuit Court upheld
the district court's dismissal of the lawsuit on July 25, 2012.
The plaintiff's did not file a petition for a writ of certiori
with the United States Supreme Court.
WELLPOINT INC: Plaintiffs Amend Out-of-Network MDL Complaint
------------------------------------------------------------
Plaintiffs in the multidistrict litigation captioned In re
WellPoint, Inc. Out-of-Network "UCR" Rates Litigation filed a
fourth amended consolidated complaint in November 2012, according
to the Company's November 7, 2012, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended September
30, 2012.
The Company is currently a defendant in eleven putative class
actions relating to out-of-network, or OON, reimbursement that
were consolidated into a single multi-district lawsuit called In
re WellPoint, Inc. Out-of-Network "UCR" Rates Litigation that is
pending in the United States District Court for the Central
District of California. The lawsuits were filed in 2009. The
plaintiffs include current and former members on behalf of a
putative class of members who received OON services for which the
defendants paid less than billed charges, the American Medical
Association, four state medical associations, OON physicians,
chiropractors, clinical psychologists, podiatrists,
psychotherapists, the American Podiatric Association, California
Chiropractic Association and the California Psychological
Association on behalf of a putative class of all physicians and
all non-physician health care providers, and an OON surgical
center. In the consolidated complaint, the plaintiffs allege that
the defendants violated the Racketeer Influenced and Corrupt
Organizations Act, or RICO, the Sherman Antitrust Act, ERISA,
federal regulations, and state law by relying on databases
provided by Ingenix in determining OON reimbursement. A
consolidated amended complaint was filed to add allegations in the
lawsuit that OON reimbursement was calculated improperly by
methodologies other than the Ingenix databases. The Company filed
a motion to dismiss the amended consolidated complaint. The
motion was granted in part and denied in part. The court gave the
plaintiffs permission to replead many of those claims that were
dismissed. The plaintiffs then filed a third amended consolidated
complaint repleading some of the claims that had been dismissed
without prejudice and adding additional statements in an attempt
to bolster other claims. The Company filed a motion to dismiss
the third amended consolidated complaint, which was granted in
part and denied in part. The plaintiffs filed a fourth amended
consolidated complaint on November 5, 2012. The OON surgical
center voluntarily dismissed their claims. Fact discovery is
complete.
At the end of 2009, the Company filed a motion in the United
States District Court for the Southern District of Florida, or the
Florida Court, to enjoin the claims brought by the medical doctors
and doctors of osteopathy and certain medical associations based
on prior litigation releases, which was granted in 2011, and that
court ordered the plaintiffs to dismiss their claims that are
barred by the release. The plaintiffs then filed a petition for
declaratory judgment asking the court to find that these claims
are not barred by the releases from the prior litigation. The
Company filed a motion to dismiss the declaratory judgment action,
which was granted. The plaintiffs appealed the dismissal of the
declaratory judgment to the United States Court of Appeals for the
Eleventh Circuit, but the dismissal was upheld. The enjoined
physicians have not yet dismissed their claims. The Florida Court
found the enjoined physicians in contempt and sanctioned them on
July 25, 2012. The barred physicians are paying the sanctions.
The Company intends to vigorously defend these lawsuits; however,
their ultimate outcome cannot be presently determined.
WELLS FARGO: Accused of Contacting Class Without Prior Consent
--------------------------------------------------------------
Madeline Martin, on behalf of herself and all others similarly
situated v. Wells Fargo Bank, N.A., Case No. 3:12-cv-06030 (N.D.
Calif., November 28, 2012) accuses Wells Fargo of perpetrating
illegal actions in negligently, knowingly, and willfully
contacting the Plaintiff and Class Members on their cellular
telephones without their prior express consent within the meaning
of the Telephone Consumer Protection Act.
Notwithstanding its prior violations of the TCPA and the Federal
Communication Commission's 2008 citation, Wells Fargo has
continued to violate the TCPA by contacting her and others
similarly situated on their cellular telephones via an "automatic
telephone dialing system," without their prior express consent,
Ms. Martin alleges. She contends that she brings this action for
injunctive relief and statutory damages resulting from Wells
Fargo's illegal actions.
Ms. Martin is a resident of Calabasas, California.
Wells Fargo is a diversified financial services company
headquartered in San Francisco, California. Wells Fargo provides
financial services to individuals, businesses, and institutions in
all counties within the state of California as well as in most
other states. The financial services offered by Wells Fargo to
consumers include credit card and checking accounts.
The Plaintiff is represented by:
Jonathan David Selbin, Esq.
Douglas I. Cuthbertson, Esq.
LIEFF CABRASER HEIMANN & BERNSTEIN LLP
250 Hudson Street, 8th Floor
New York, NY 10013
Telephone: (212) 355-9500
Facsimile: (212) 355-9592
E-mail: jselbin@lchb.com
dcuthbertson@lchb.com
- and -
Daniel M. Hutchinson, Esq.
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
Embarcadero Center West
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
Telephone: (415) 956-1000
Facsimile: (415) 956-1008
E-mail: dhutchinson@lchb.com
- and -
Matthew R. Wilson, Esq.
MEYER WILSON CO., LPA
1320 Dublin Road, Suite 100
Columbus, OH 43215
Telephone: (614) 224-6000
Facsimile: (614) 224-6066
E-mail: mwilson@meyerwilson.com
- and -
Robert L. Hyde, Esq.
Joshua B. Swigart, Esq.
HYDE & SWIGART
411 Camino Del Rio South, Suite 301
San Diego, CA 92108-3551
Telephone: (619) 233-7770
Facsimile: (619) 297-1022
E-mail: bob@westcostlitigation.com
josh@westcoastlitigation.com
- and -
Abbas Kazerounian, Esq.
S. Mohammad Kazerouni, Esq.
Assal Assassi, Esq.
KAZEROUNIAN LAW GROUP
2700 North Main Street, Suite 1000
Santa Ana, CA 92866
Telephone: (800) 400-6806
Facsimile: (800) 520-5523
E-mail: ak@kazlg.com
mike@kazlg.com
assal@kazlg.com
WILLIS GROUP: Appeal in Contingent Compensation Suit Withdrawn
--------------------------------------------------------------
A class member withdrew its appeal from the final approval of
Willis Group Holdings Public Limited Company's settlement of a
lawsuit over contingent compensation agreements, according to the
Company's November 7, 2012, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended September
30, 2012.
Since August 2004, the Company and its subsidiary Hills Rogal &
Hobbs Company ('HRH') (along with various other brokers and
insurers) have been named as defendants in purported class actions
in various courts across the United States. All of these actions
have been consolidated into a single action in the U.S. District
Court for the District of New Jersey ('MDL'). These actions
allege that the brokers breached their duties to their clients by
entering into contingent compensation agreements with either no
disclosure or limited disclosure to clients and participated in
other improper activities. Plaintiffs seek monetary damages,
including punitive damages, and certain equitable relief. In May
2011, the majority of defendants, including the Company and HRH,
entered into a written settlement agreement with plaintiffs. On
June 28, 2011, the Judge entered an Order granting preliminary
approval to the settlement agreement. A total of 84 members of
the class have opted out of the settlement. The Court approved
the settlement on March 30, 2012. The amount of the settlement
paid by the Company and HRH is immaterial and was previously
reserved. On April 12, 2012, one member of the settlement class
filed an appeal to the United States Court of Appeals for the
Third Circuit from the District Court's Final Order Approving
Settlement. On October 1, 2012, the class member withdrew its
appeal.
Additional actions could be brought in the future by individual
policyholders. The Company disputes the allegations in all of
these lawsuits and has been and intends to continue to defend
itself vigorously against these actions. The outcomes of these
lawsuits, however, including any losses or other payments that may
occur as a result, cannot be predicted at this time.
Willis Group Holdings Public Limited Company --
http://www.willis.com/-- provides a range of insurance brokerage,
reinsurance, and risk management consulting services to its
clients worldwide. The Company offers various insurance brokerage
services, including property damage, offshore construction,
liability, and control of well and pollution insurance to the
energy industry; and marine insurance and reinsurance brokerage
services consisting of hull, cargo, and general marine
liabilities. The Company was founded in 1828 and is headquartered
in London, the United Kingdom.
WILLIS GROUP: Continues to Defend Suits Over Stanford Collapse
--------------------------------------------------------------
Willis Group Holdings Public Limited Company continues to defend
itself and its subsidiaries against lawsuits arising from the
collapse of The Stanford Financial Group, according to the
Company's November 7, 2012, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended September
30, 2012.
The Company has been named as a defendant in six similar lawsuits
relating to the collapse of The Stanford Financial Group
('Stanford'), for which Willis of Colorado, Inc. acted as broker
of record on certain lines of insurance. The complaints in these
actions generally allege that the defendants actively and
materially aided Stanford's alleged fraud by providing Stanford
with certain letters regarding coverage that they knew would be
used to help retain or attract actual or prospective Stanford
client investors. The complaints further allege that these
letters, which contain statements about Stanford and the insurance
policies that the defendants placed for Stanford, contained
untruths and omitted material facts and were drafted in this
manner to help Stanford promote and sell its allegedly fraudulent
certificates of deposit.
The six actions are as follows:
(1) Troice, et al. v. Willis of Colorado, Inc., et al., C.A.
No. 3:09-CV-01274-N, was filed on July 2, 2009, in the
U.S. District Court for the Northern District of Texas
against Willis Group Holdings plc, Willis of Colorado,
Inc. and a Willis associate, among others. On April 1,
2011, plaintiffs filed the operative Third Amended Class
Action Complaint individually and on behalf of a putative,
worldwide class of Stanford investors, adding Willis
Limited as a defendant and alleging claims under Texas
statutory and common law and seeking damages in excess of
$1 billion, punitive damages and costs. On May 2, 2011,
the defendants filed motions to dismiss the Third Amended
Class Action Complaint, arguing, inter alia, that the
plaintiffs' claims are precluded by the Securities
Litigation Uniform Standards Act of 1998 ('SLUSA').
(2) Ranni v. Willis of Colorado, Inc., et al., C.A. No.
09-22085, was filed on July 17, 2009, against Willis Group
Holdings plc and Willis of Colorado, Inc. in the U.S.
District Court for the Southern District of Florida. The
complaint was filed on behalf of a putative class of
Venezuelan and other South American Stanford investors and
alleges claims under Section 10(b) of the Securities
Exchange Act of 1934 (and Rule 10b-5 thereunder) and
Florida statutory and common law and seeks damages in an
amount to be determined at trial. On October 6, 2009,
Ranni was transferred, for consolidation or coordination
with other Stanford-related actions (including Troice), to
the Northern District of Texas by the U.S. Judicial Panel
on Multidistrict Litigation (the 'JPML'). The defendants
have not yet responded to the complaint in Ranni.
(3) Canabal, et al. v. Willis of Colorado, Inc., et al., C.A.
No. 3:09-CV-01474-D, was filed on August 6, 2009, against
Willis Group Holdings plc, Willis of Colorado, Inc. and
the same Willis associate named as a defendant in Troice,
among others, also in the Northern District of Texas. The
complaint was filed individually and on behalf of a
putative class of Venezuelan Stanford investors, alleged
claims under Texas statutory and common law and sought
damages in excess of $1 billion, punitive damages,
attorneys' fees and costs. On December 18, 2009, the
parties in Troice and Canabal stipulated to the
consolidation of those actions (under the Troice civil
action number), and, on December 31, 2009, the plaintiffs
in Canabal filed a notice of dismissal, dismissing the
action without prejudice.
(4) Rupert, et al. v. Winter, et al., Case No. 2009C115137,
was filed on September 14, 2009, on behalf of 97 Stanford
investors against Willis Group Holdings plc, Willis of
Colorado, Inc. and the same Willis associate, among
others, in Texas state court (Bexar County). The
complaint alleges claims under the Securities Act of 1933,
Texas and Colorado statutory law and Texas common law and
seeks special, consequential and treble damages of more
than $300 million, attorneys' fees and costs. On
October 20, 2009, certain defendants, including Willis of
Colorado, Inc., (i) removed Rupert to the U.S. District
Court for the Western District of Texas, (ii) notified the
JPML of the pendency of this related action and (iii)
moved to stay the action pending a determination by the
JPML as to whether it should be transferred to the
Northern District of Texas for consolidation or
coordination with the other Stanford-related actions. On
April 1, 2010, the JPML issued a final transfer order for
the transfer of Rupert to the Northern District of Texas.
On January 24, 2012, the Court remanded Rupert to Texas
State Court (Bexar County), but stayed these cases until
further order of the court. The defendants have not yet
responded to the complaint in Rupert.
(5) Casanova, et al. v. Willis of Colorado, Inc., et al., C.A.
No. 3:10-CV-01862-O, was filed on September 16, 2010, on
behalf of seven Stanford investors against Willis Group
Holdings plc, Willis Limited, Willis of Colorado, Inc. and
the same Willis associate, among others, also in the
Northern District of Texas. The complaint alleges claims
under Texas statutory and common law and seeks actual
damages in excess of $5 million, punitive damages,
attorneys' fees and costs. The defendants have not yet
responded to the complaint in Casanova.
(6) Rishmague, et ano. v. Winter, et al., Case No.
2011CI02585, was filed on March 11, 2011 on behalf of two
Stanford investors, individually and as representatives of
certain trusts, against Willis Group Holdings plc, Willis
of Colorado, Inc., Willis of Texas, Inc. and the same
Willis associate, among others, in Texas state court
(Bexar County). The complaint alleges claims under Texas
and Colorado statutory law and Texas common law and seeks
special, consequential and treble damages of more than $37
million and attorneys' fees and costs. On April 11, 2011,
certain defendants, including Willis of Colorado, Inc.,
(i) removed Rishmague to the Western District of Texas,
(ii) notified the JPML of the pendency of this related
action and (iii) moved to stay the action pending a
determination by the JPML as to whether it should be
transferred to the Northern District of Texas for
consolidation or coordination with the other
Stanford-related actions. On August 8, 2011, the JPML
issued a final transfer order for the transfer of
Rishmague to the Northern District of Texas, where it is
currently pending. The defendants have not yet responded
to the complaint in Rishmague.
On May 10, 2011, the court presiding over the Stanford-related
actions in the Northern District of Texas entered an order
providing that it would consider the applicability of SLUSA to the
Stanford-related actions based on the decision in a separate
Stanford action not involving a Willis entity, Roland v. Green,
Civil Action No. 3:10-CV-0224-N. On August 31, 2011, the court
issued its decision in Roland, dismissing that action with
prejudice under SLUSA.
On October 27, 2011, the court in Troice entered an order (i)
dismissing with prejudice those claims asserted in the Third
Amended Class Action Complaint on a class basis on the grounds set
forth in the Roland decision and (ii) dismissing without prejudice
those claims asserted the Third Amended Class Action Complaint on
an individual basis. Also on October 27, 2011, the court entered
a final judgment in the action.
On October 28, 2011, the plaintiffs in Troice filed a notice of
appeal to the U.S. Court of Appeals for the Fifth Circuit.
Subsequently, Troice, Roland and a third action captioned Troice,
et al. v. Proskauer Rose LLP, Civil Action No. 3:09-CV-01600-N,
which also was dismissed on the grounds set forth in the Roland
decision and on appeal to the U.S. Court of Appeals for the Fifth
Circuit, were consolidated for purposes of briefing and oral
argument. Following the completion of briefing and oral argument,
on March 19, 2012, the Fifth Circuit reversed and remanded the
actions. On April 2, 2012, the defendants-appellees filed
petitions for rehearing en banc. On April 19, 2012, the petitions
for rehearing en banc were denied. On July 18, 2012, defendants-
appellees filed a petition for writ of certiorari with the United
States Supreme Court regarding the Fifth Circuit's reversal in
Troice. On October 1, 2012, the Supreme Court issued an order
inviting the Solicitor General to file a brief expressing the
views of the United States about whether or not certiorari should
be granted.
Additional actions could be brought in the future by other
investors in certificates of deposit issued by Stanford and its
affiliates. The Company disputes these allegations and intends to
defend itself vigorously against these actions. The outcomes of
these actions, however, including any losses or other payments
that may occur as a result, cannot be predicted at this time.
Willis Group Holdings Public Limited Company --
http://www.willis.com/-- provides a range of insurance brokerage,
reinsurance, and risk management consulting services to its
clients worldwide. The Company offers various insurance brokerage
services, including property damage, offshore construction,
liability, and control of well and pollution insurance to the
energy industry; and marine insurance and reinsurance brokerage
services consisting of hull, cargo, and general marine
liabilities. The Company was founded in 1828 and is headquartered
in London, the United Kingdom.
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
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A. Adala, Joy A. Agravante, Ivy B. Magdadaro, Psyche A. Castillon,
Julie Anne L. Toledo, Christopher Patalinghug, Frauline Abangan
and Peter A. Chapman, Editors.
Copyright 2012. All rights reserved. ISSN 1525-2272.
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