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/raid1/www/Hosts/bankrupt/CAR_Public/130102.mbx C L A S S A C T I O N R E P O R T E R Wednesday, January 2, 2013, Vol. 15, No. 1 Headlines AMERICAN HONDA: Recalls 19,500 FourTrax ATVs Due to Crash Hazard ANGLOGOLD ASHANTI: Mine Workers Seek Class Certification APPLE INC: Wins Bid to Dismiss App Store Users' Privacy Claims BP PLC: Settles Economic/Property Damage Claims in Oil Spill Suit CITIGROUP INC: Continues to Face LIBOR-Related Class Suits COMMODITY ADVISORS: LIBOR-Related MDL Remains Pending in N.Y. COMMODITY ADVISORS: Claims Dismissal Bid Pending in N.Y. Suit COMMODITY ADVISORS: Citigroup Still Defends Discrimination Suits COMMODITY ADVISORS: Discovery in Securities Suit Still Underway COMMODITY ADVISORS: Global Crossing-Related Suits vs. CGM Pending FACEBOOK INC: Lawyers in Sponsored Stories Suit Seek $7.7MM Fees FAIRFIELD SENTRY: March 22 Settlement Fairness Hearing Set FORD MOTOR: Faces Suit in Calif. Over False Marketing Claims GKI BETHLEHEM: Recalls 15,500 Artificially Lit Christmas Trees GROUPON INC: Robins Geller Files Class Action in Illinois H&R BLOCK: Appeal Bid in "Barrett" Suit Decertification Pending H&R BLOCK: Appeal in "Drake" Lawsuit Still Pending H&R BLOCK: Two Settlements on Employee Suits Get Court's Final OK HEMISPHERX BIOPHARMA: Rosen Law Firm Files Securities Class Action HEMISPHERX BIOPHARMA: Pomerantz Law Firm Files Class Action HOULIHAN'S RESTAURANT: Price Discrimination Claims Can Proceed KMART CORP: Judge Rules For Kmart on Cashier Seating Class Action MORGAN STANLEY: Awaits Decision in New York Securities Suit MORGAN STANLEY: Calif. Court Refuses to Remand "Luther" Suit MORGAN STANLEY: Continues to Defend IndyMac Securities Suit PFIZER INC: Reached Settlement of Neurontin Suits in Canada PFIZER INC: Continues to Face Class Suits Over Co-Pay Programs PFIZER INC: Antitrust MDL Related to Neurontin Product Pending PFIZER INC: Protonix-Related Class Suits vs. Wyeth Remain Stayed PFIZER INC: Bapineuzumab-Related Securities Suits Pending PFIZER INC: Still Defends Hormone-Replacement Therapy Suits SPRINT COMMS: Judge OKs $1.4-Mil. Class Action Settlement in Ky. TOYOTA MOTORS: Settles Acceleration Class Action for $1.1 Bil. VOLKSWAGEN OF AMERICA: Settles Sunroof Class Actions in New Jersey WELLS FARGO: 9th Cir. Lifts Injunction, Vacates $203MM Restitution ********* AMERICAN HONDA: Recalls 19,500 FourTrax ATVs Due to Crash Hazard ---------------------------------------------------------------- About 19,500 All-Terrain Vehicles (ATVs)(about 2,900 were recalled in February 2012) were voluntarily recalled by American Honda Motor Co. Inc., of Torrance, California, in cooperation with the CPSC. Consumers should stop using the product immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. A weld on the ATV's front right and left upper suspension arms can separate, causing the driver to lose control of the vehicle, posing a crash hazard. Honda is aware of 10 incidents of suspension arm weld failures, including one in which a rider suffered a sprained wrist. The recalled vehicles are two-wheel drive and four-wheel drive 2012 Honda FourTrax Rancher ATV TRX420 FA, FE, FM, FPA, FPE, FPM, TE and TM models. The ATVs are red, green or camouflage and have the word "Honda" and the Honda wing logo on both sides of the fuel tank. The word "Rancher" is on the front cowl below the handlebars and on the left rear fender. Rancher models in the following Vehicle Identification Number (VIN) ranges are being recalled: Model VIN Ranges -------- ------------------------------- TRX420FA 1HFTE370*C4300541 thru C4301380 TRX420FA Camo 1HFTE374*C4300121 thru C4300240 TRX420FE 1HFTE354*C4501741 thru C4504380 TRX420FE Camo 1HFTE357*C4500301 thru C4500720 TRX420FM 1HFTE350*C4502342 thru C4506061 TRX420FM Camo 1HFTE359*C4500317 thru C4500840 TRX420FPA 1HFTE372*C4300482 thru C4302461 TRX420FPA Camo 1HFTE375*C4300061 thru C4300420 TRX420FPE 1HFTE35K*C4501202 thru C4502881 TRX420FPE Camo 1HFTE35M*C4500241 thru C4500360 TRX420FPM 1HFTE35F*C4501441 thru C4502760 TRX420FPM Camo 1HFTE35H*C4500301 thru C4500420 TRX420TE 1HFTE344* C4500841 thru C4504020 TRX420TM 1HFTE340* C4500542 thru C4503001 *Denotes a random alphanumeric identifier: "0-9" or "X" The model number is visible on the right front frame down pipe above the driver's right-hand side front wheel. The VIN is located on the top center front of the frame and is visible looking down between the bars of the gear rack and through the middle opening of the front fairing. Pictures of the recalled products are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml13/13713.html The recalled products were manufactured in the United States of America and sold at Honda ATV dealers nationwide from September 2011 to November 2012 for between $5,100 and $7,600. Consumers should immediately stop using these ATVs and contact their Honda ATV dealer to schedule a free repair. American Honda is contacting its customers directly. American Honda may be reached toll-free at (866) 784-1870, from 8:30 a.m. to 5:00 p.m. Pacific Time Monday through Friday, or online at http://powersports.honda.com/and click on "Product Recall Information" at the bottom of the page for more information. ANGLOGOLD ASHANTI: Mine Workers Seek Class Certification -------------------------------------------------------- Bloomberg News reports that thousands of mine workers who contracted silicosis, a lung disease, are seeking damages from 30 gold companies including AngloGold Ashanti Ltd., Harmony Gold Mining Co. and Anglo American South Africa Ltd. Richard Spoor, a human rights lawyer in South Africa, filed an application for class certification of an action for damages in Johannesburg's South Gauteng High Court "on behalf of tens of thousands of current and former gold mine workers, as well as dependents of deceased workers, who contracted silicosis" as a result of their work in gold mines, according to an e-mail on Dec. 21 from Mr. Spoor's office. The applicants are Bongani Nkala and 30 other former mine workers, who contracted silicosis while employed at the mines, according to Mr. Spoor's statement. South Africa's highest court in March 2011 cleared the way for damages to be sought from gold companies by ruling that former miner Thembekile Mankayi can pursue a claim against AngloGold. The court rejected the company's argument that Mr. Mankayi, who died a week before the ruling, wasn't entitled to seek damages because he had already received a state payout. An estimated 350,000 to 500,000 former mine workers may suffer from occupational lung diseases in southern Africa, in countries such as Lesotho, Mozambique, Botswana, Malawi and Swaziland, Cape Town-based law firm Abrahams Kiewitz Attorneys said in August, without giving a source of the estimates. In a separate case, Anglo American Plc was sued in 2004 by 18 former miners at its President Steyn mine in the Free State province. The case is set for arbitration in September next year. APPLE INC: Wins Bid to Dismiss App Store Users' Privacy Claims -------------------------------------------------------------- Philip A. Janquart at Courthouse News Service reports that a woman cannot sue Apple based on claims that the makers of "Angry Birds" and other Apple applications store users' personal information, a federal judge ruled. Lead plaintiff Maria Pirozzi claims Apple, headquartered in Cupertino, Calif., failed to properly screen third-party software applications, distributed through its online App Store, that upload user information from mobile devices such as the iPhone, iPod Touch and iPad. In her complaint, Ms. Pirozzi calls out apps such as Angry Birds, Twitter, Facebook, LinkedIn, Yelp, Instagram and Hipster for allegedly uploading the contact names, private photographs and other personal information of users without permission. Many third-party applications ask users for permission to use their "current location" before opening an application. The class said this permission gives the application developers unfettered access. Apple argued, however, that the Communications Decency Act bars the lawsuit. It also said Ms. Pirozzi lacks standing under Article III of the U.S. Constitution and that she failed to state a claim for relief. It said she did not demonstrate that the alleged privacy breach affected her financially, or that any third-party app uploaded personal information from her mobile device. U.S. District Judge Yvonne Gonzalez Rogers agreed on Dec. 20. Although Ms. Pirozzi identifies third-party apps that could have uploaded her information, no specific application has been positively identified as having done so, she found "At this juncture, plaintiff fails to identify which Apple devices she used; which Apps accessed or tracked her personal information, if any; or the resulting harm from the data collection," Judge Rogers said. "Should plaintiff choose to proceed on the theory that she has been harmed by actual collection of her personal information, she will need to identify which of the Apple devices she used, which Apps she downloaded that accessed or tracked her personal information, if any, and what harm, if any, resulted from the accessing or tracking of her personal information." Ms. Pirozzi has until Jan. 22, 2013, to file a second amended complaint. A copy of the Order Granting Motion of Apple Inc. to Dismiss with Leave to Amend in Pirozzi v. Apple, Inc., Case No. 12-cv-01529 (N.D. Calif.) (Rogers, J.), is available at: http://www.courthousenews.com/2012/12/24/app.pdf BP PLC: Settles Economic/Property Damage Claims in Oil Spill Suit ----------------------------------------------------------------- Terry Baynes, writing for Reuters, reports that a U.S. judge on Dec. 21 gave final approval to BP Plc's settlement with individuals and businesses who lost money and property in the 2010 Gulf of Mexico oil spill. The order only addressed the settlement of economic and property damage claims, not a separate medical benefits settlement for cleanup workers and others who say the spill made them sick. BP has estimated that it will pay $7.8 billion to settle more than 100,000 claims in the class action litigation. U.S. District Judge Carl Barbier initially approved the deal in May, but held a "fairness hearing" in November to weigh objections from about 13,000 claimants challenging the settlement to resolve some of BP's liability for the worst offshore oil spill in U.S. history. London-based BP's Macondo well spewed 4.9 million barrels of oil into the Gulf of Mexico over a period of 87 days. The torrent fouled shorelines from Texas to Alabama and eclipsed the 1989 Exxon Valdez spill in Alaska in severity. Lawyers for some affected parties had objected to the deal, reached in March between BP and lawyers representing plaintiffs ranging from restaurateurs, hoteliers, and oyster men who lost money from the spill. They argued that some claimants would be underpaid or unfairly excluded. But in a 125-page order approving the settlement, Judge Barbier called the deal "fair, reasonable and adequate," citing the low number of class members who objected or opted out. BP welcomed the approval order in a statement, adding that the settlement resolves the majority of economic and property damage claims stemming from the accident. "[Mon]day's decision by the Court is another important step forward for BP in meeting its commitment to economic and environmental restoration efforts in the Gulf and in eliminating legal risk facing the company," BP said. Separate from the class action claims, BP has been locked in a year-long legal battle with the U.S. government and Gulf Coast states to settle billions of dollars in civil and criminal liability from the explosion. In a settlement with the U.S. government announced in November, BP agreed to pay $4.5 billion in penalties and plead guilty to felony misconduct. The government also indicted the two highest-ranking BP supervisors aboard the Deepwater Horizon rig during the disaster, charging them with 23 criminal counts including manslaughter. The class action case is In Re: Oil Spill by the Oil Rig "Deepwater Horizon" in the Gulf of Mexico on April 20, 2010, U.S. District Court for the Eastern District of Louisiana, No. 10-2179. According to CNN, BP will pay $2.3 billion to commercial fishermen, seafood boat captains and crew, seafood vessel owners and oyster leaseholders. The money represents "approximately five times the annual average industry gross revenue for 2007 to 2009 of the seafood industry in the region covered by the settlement agreement." It also "represents 19.2 times lost industry revenue in 2010," the ruling said. The ruling notes that "the settlement program is processing claims in an "impressive fashion." By last month, 4,500 claims were processed per work. BP said it is pleased the court approved the settlement "resolving the substantial majority of legitimate economic loss and property damage claims stemming from the Deepwater Horizon accident." "We believe the settlement, which avoids years of lengthy litigation, is good for the people, businesses and communities of the Gulf and is in the best interests of BP's stakeholders," it said in a statement. Dean Blanchard, a shrimp processor in Grand Isle, Louisiana, said he opted out of the agreement. He said he wouldn't have gotten a fair amount of money and is planning his own lawsuit. "BP is trying to make a one size fits all," he said, saying some people and businesses were hit worse than others and deserve more money. "It's not right." The oil spill -- one of the worst in U.S. history -- began after a rig explosion aboard the Deepwater Horizon in the Gulf. Eleven workers died. Oil spewed into the sea for nearly three months before a cap was placed on the BP-owned Macondo well, nearly a mile beneath the surface. The spill damaged coral reef formations, according to researchers. Scientists have previously confirmed that a plume of hydrocarbons from the well settled in the deep Gulf. The National Oceanic and Atmospheric Administration said about 59,200 barrels of oil a day flowed from the well. Last month, Attorney General Eric Holder announced that BP will plead guilty to manslaughter charges stemming from the explosion and the spill. It agreed to pay $4.5 billion in government penalties. Of those penalties, $4 billion will resolve criminal charges. An additional $525 million will be paid to resolve claims brought by the Securities and Exchange Commission that BP lied to investors by understating the amount of oil flowing into the Gulf. Separate from the corporate manslaughter charges, a federal grand jury returned an indictment charging the two highest-ranking BP supervisors on board the Deepwater Horizon on the day of the explosion with 23 criminal counts. The two men were charged with seaman's manslaughter and involuntary manslaughter for each of the 11 men killed in the blast, as well as a criminal violation of the clean water act. The Justice Department in September also accused BP of gross negligence and a "culture of corporate recklessness" in a federal court filing, which expanded the company's liability. A major civil trial is set to take place in New Orleans in February. CITIGROUP INC: Continues to Face LIBOR-Related Class Suits ---------------------------------------------------------- Citigroup Inc. continues to face LIBOR-related class action lawsuits, according to the Company's November 6, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2012. In connection with the investigations and inquiries regarding submissions made by panel banks to bodies that publish various interbank offered rates, certain Citigroup subsidiaries have received additional requests for information and documents from various domestic and overseas regulators and enforcement agencies, including the Monetary Authority of Singapore and a consortium of state Attorneys General. Citigroup continues to cooperate with the inquiries and investigations and respond to the requests. Citigroup and Citibank, N.A., along with other U.S. Dollar (USD) LIBOR panel banks, are defendants in the multidistrict litigation (MDL) proceeding before Judge Buchwald in the United States District Court for the Southern District of New York captioned IN RE LIBOR-BASED FINANCIAL INSTRUMENTS ANTITRUST LITIGATION, appearing under docket number 1:11-md-2262 (S.D.N.Y.). Judge Buchwald has appointed interim lead class counsel for, and consolidated amended complaints have been filed on behalf of, three separate putative classes of plaintiffs: (1) over-the- counter (OTC) purchasers of derivative instruments tied to USD LIBOR; (2) purchasers of exchange-traded derivative instruments tied to USD LIBOR; and (3) indirect OTC purchasers of U.S. debt securities. Each of these putative classes alleges that the panel bank defendants conspired to suppress USD LIBOR in violation of the Sherman Act and/or the Commodity Exchange Act, thereby causing plaintiffs to suffer losses on the instruments they purchased. Also consolidated into the MDL proceeding are individual civil actions commenced by various Charles Schwab entities that allege that the panel bank defendants conspired to suppress the USD LIBOR rates in violation of the Sherman Act, the Racketeer Influenced and Corrupt Organizations Act (RICO), and California state law, causing the Schwab entities to suffer losses on USD LIBOR-linked financial instruments that they owned. Plaintiffs in these actions seek compensatory damages and restitution for losses caused by the alleged violations, as well as treble damages under the Sherman Act. The Schwab and OTC plaintiffs also seek injunctive relief. Citigroup and Citibank, N.A., along with other defendants, have moved to dismiss all of the actions that were consolidated into the MDL proceeding as of June 29, 2012. Briefing on the motion to dismiss was completed on September 27, 2012. Judge Buchwald has stayed all subsequently filed actions that fall within the scope of the MDL until she resolves the motion to dismiss. Citigroup and/or Citibank, N.A. are named in five such stayed actions. The stayed actions include two similar lawsuits filed on behalf of putative classes of community and other banks, savings and loans institutions and credit unions that allegedly suffered losses on loans they made at interest rates tied to USD LIBOR and a further lawsuit filed on behalf of a putative class of persons and entities who purchased derivative instruments tied to USD LIBOR from certain third party commercial banks and insurance companies. Additional information relating to these actions is publicly available in court filings under docket numbers 1:12-cv-4205 (S.D.N.Y.) (Buchwald, J.), 1:12-cv-5723 (S.D.N.Y.) (Buchwald, J.) and 1:12-cv-5822 (S.D.N.Y.) (Buchwald, J.). In addition, on August 8, 2012, a new putative class action captioned LIEBERMAN ET AL. V. CREDIT SUISSE GROUP AG was filed in the Southern District of New York against various USD LIBOR panel banks, including Citibank, on behalf of purchasers who owned a preferred equity security on which dividends were payable at a rate linked to USD LIBOR. Plaintiffs in this action assert unjust enrichment and antitrust claims under the laws of various states, alleging that the panel banks colluded to artificially suppress USD LIBOR, thereby lowering the dividends plaintiffs received on their securities. On October 4, 2012, another new putative class action captioned ADAMS ET AL. V. BANK OF AMERICA CORP. was filed in the Southern District of New York against various USD LIBOR panel banks and their affiliates, including Citigroup and Citibank, N.A., on behalf of a putative class of individual adjustable rate mortgage borrowers. Plaintiffs allege that the panel banks manipulated USD LIBOR to raise rates on certain dates in order to increase plaintiffs' payment obligations, in violation of federal and New York state antitrust law. The plaintiffs in these actions seek compensatory damages, treble damages, and injunctive relief. Judge Buchwald has consolidated these cases into the MDL proceeding. Additional information relating to these actions is publicly available in court filings under docket numbers 1:12-cv-6056 (S.D.N.Y.) (Buchwald, J.) and 1:12-cv-7461 (S.D.N.Y.) (Buchwald, J). In addition, on April 30, 2012, an action was filed in the same court on behalf of a putative class of persons and entities who transacted in exchange-traded Euroyen futures and option contracts between June 2006 and September 2010. This action, captioned LAYDON V. MIZUHO BANK LTD. ET AL., is not part of the MDL. The complaint names as defendants banks that are or were members of the panels making submissions used in the calculation of Japanese Yen LIBOR and the Tokyo Inter-Bank Offered Rate (TIBOR), and certain affiliates of some of those banks, including Citibank, N.A. and Citibank, Japan Ltd. The complaint alleges that the plaintiffs were injured as a result of purported manipulation of those reference interest rates, and asserts claims arising under the Commodity Exchange Act, the Sherman Act, and state consumer protection statutes. Plaintiffs seek compensatory damages, treble damages under the Sherman Act, and injunctive relief. Judge Daniels has issued an order directing the plaintiffs to file an amended complaint by November 30, 2012. Additional information relating to this action is publicly available in court filings under the docket number 12-cv-3419 (S.D.N.Y.) (Daniels, J.). COMMODITY ADVISORS: LIBOR-Related MDL Remains Pending in N.Y. ------------------------------------------------------------- The general partner and commodity pool operator of Commodity Advisors Fund L.P., formerly known as "Energy Advisors Portfolio L.P., (the "Partnership") is Ceres Managed Futures LLC, which is formerly known as Citigroup Managed Futures LLC. The commodity broker of the Partnership is Citigroup Global Markets Inc. ("CGM"), which is indirectly owned by Citigroup Inc. The General Partner is a wholly owned subsidiary of Morgan Stanley Smith Barney Holdings LLC. Morgan Stanley, indirectly through various subsidiaries, owns a majority equity interest in MSSB Holdings, and Citigroup indirectly owns a minority equity interest in MSSB Holdings. Beginning in March 2010, various regulators have made inquiries regarding the accounting treatment of certain repurchase transactions. Citigroup is cooperating fully with these inquiries. Additionally, beginning in April 2011, a number of purported class actions and other private civil lawsuits were filed in various courts against banks that served on the LIBOR panel and their affiliates, including certain Citigroup subsidiaries. The actions, which assert various federal and state law claims relating to the setting of LIBOR, have been consolidated into a multidistrict litigation proceeding before Judge Buchwald in the Southern District of New York. The Partnership says additional lawsuits containing claims similar to those described may be filed in the future. No further updates were reported in the Company's November 7, 2012, Form 10-12G/A filing with the U.S. Securities and Exchange Commission. The Partnership, the General Partner and its principals, directors and executive officers are not a party to, nor are any of their assets subject to, any of the actions and proceedings. COMMODITY ADVISORS: Claims Dismissal Bid Pending in N.Y. Suit ------------------------------------------------------------- The general partner and commodity pool operator of Commodity Advisors Fund L.P., formerly known as "Energy Advisors Portfolio L.P., (the "Partnership") is Ceres Managed Futures LLC, which is formerly known as Citigroup Managed Futures LLC. The commodity broker of the Partnership is Citigroup Global Markets Inc. ("CGM"), which is indirectly owned by Citigroup Inc. The General Partner is a wholly owned subsidiary of Morgan Stanley Smith Barney Holdings LLC. Morgan Stanley, indirectly through various subsidiaries, owns a majority equity interest in MSSB Holdings, and Citigroup indirectly owns a minority equity interest in MSSB Holdings. Citigroup and CGM have been named as defendants in two alleged class actions filed in the United States District Court for the Southern District of California, but since transferred by the Judicial Panel on Multidistrict Litigation to the United States District Court for the Southern District of New York. In the consolidated action, lead plaintiffs assert claims on behalf of an alleged class of participants in Citigroup's Voluntary Financial Advisor Capital Accumulation Plan from November 2006 through January 2009. On June 7, 2011, the district court granted defendants' motion to dismiss the complaint and subsequently entered judgment. On November 14, 2011, the district court granted in part plaintiffs' motion to alter or amend the judgment and granted plaintiffs leave to amend the complaint. On November 23, 2011, plaintiffs filed an amended complaint alleging violations of Section 12 of the Securities Act of 1933, as amended and Section 10(b) of the Securities Exchange Act of 1934. Defendants filed a motion to dismiss certain of plaintiffs' claims on December 21, 2011. No further updates were reported in the Company's November 7, 2012, Form 10-12G/A filing with the U.S. Securities and Exchange Commission. COMMODITY ADVISORS: Citigroup Still Defends Discrimination Suits ---------------------------------------------------------------- The general partner and commodity pool operator of Commodity Advisors Fund L.P., formerly known as "Energy Advisors Portfolio L.P., (the "Partnership") is Ceres Managed Futures LLC, which is formerly known as Citigroup Managed Futures LLC. The commodity broker of the Partnership is Citigroup Global Markets Inc. ("CGM"), which is indirectly owned by Citigroup Inc. The General Partner is a wholly owned subsidiary of Morgan Stanley Smith Barney Holdings LLC. Morgan Stanley, indirectly through various subsidiaries, owns a majority equity interest in MSSB Holdings, and Citigroup indirectly owns a minority equity interest in MSSB Holdings. Two alleged class actions have been filed alleging claims of racial discrimination in mortgage lending under the Equal Credit Opportunity Act, the Fair Housing Act, and/or the Civil Rights Act. The first action, PUELLO, ET AL. v. CITIFINANCIAL SERVICES, INC., ET AL., was filed against Citigroup and its affiliates in the United States District Court for the District of Massachusetts. The second action, NAACP v. AMERIQUEST MORTGAGE CO., ET AL., was filed against one of Citigroup's affiliates in the United States District Court for the Central District of California. In each action, defendants' motions to dismiss have been denied. On September 21, 2009, the United States District Court for the Central District of California denied defendant CitiMortgage's motion for summary judgment and granted its motion to strike the jury demand. No further updates were reported in the Company's November 7, 2012, Form 10-12G/A filing with the U.S. Securities and Exchange Commission. COMMODITY ADVISORS: Discovery in Securities Suit Still Underway --------------------------------------------------------------- Fact discovery is still underway in the consolidated securities class action lawsuit against Citigroup Inc., according to Commodity Advisors Fund L.P.'s November 7, 2012, Form 10-12G/A filing with the U.S. Securities and Exchange Commission. The general partner and commodity pool operator of Commodity Advisors Fund L.P., formerly known as "Energy Advisors Portfolio L.P., (the "Partnership") is Ceres Managed Futures LLC, which is formerly known as Citigroup Managed Futures LLC. The commodity broker of the Partnership is Citigroup Global Markets Inc. ("CGM"), which is indirectly owned by Citigroup Inc. The General Partner is a wholly owned subsidiary of Morgan Stanley Smith Barney Holdings LLC. Morgan Stanley, indirectly through various subsidiaries, owns a majority equity interest in MSSB Holdings, and Citigroup indirectly owns a minority equity interest in MSSB Holdings. Citigroup has been named as a defendant in four alleged class actions filed in the United States District Court for the Southern District of New York. On August 19, 2008, these actions were consolidated under the caption IN RE CITIGROUP INC. SECURITIES LITIGATION. The consolidated amended complaint asserts claims arising under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 on behalf of an alleged class of purchasers of Citigroup common stock from January 1, 2004, through January 15, 2009. On November 9, 2010, the district court issued an opinion and order dismissing all claims except those arising out of Citigroup's exposure to collateralized debt obligations ("CDOs") for the time period February 1, 2007, through April 18, 2008. Fact discovery is underway. Plaintiffs have not yet quantified the alleged class' alleged damages. During the alleged class period, as narrowed by the district court, the price of Citigroup's common stock declined from $54.73 at the beginning of the period to $25.11 at the end of the period. (These share prices represent Citigroup's common stock prices prior to its 1- for-10 reverse stock split, effective on May 6, 2011.) COMMODITY ADVISORS: Global Crossing-Related Suits vs. CGM Pending ----------------------------------------------------------------- Citigroup Global Markets Inc. continues to defend an adversary proceeding related to Global Crossing, Ltd., according to Commodity Advisors Fund L.P.'s commmNovember 7, 2012, Form 10- 12G/A filing with the U.S. Securities and Exchange Commission. The general partner and commodity pool operator of Commodity Advisors Fund L.P., formerly known as "Energy Advisors Portfolio L.P., (the "Partnership") is Ceres Managed Futures LLC, which is formerly known as Citigroup Managed Futures LLC. The commodity broker of the Partnership is Citigroup Global Markets Inc. ("CGM"), which is indirectly owned by Citigroup Inc. The General Partner is a wholly owned subsidiary of Morgan Stanley Smith Barney Holdings LLC. Morgan Stanley, indirectly through various subsidiaries, owns a majority equity interest in MSSB Holdings, and Citigroup indirectly owns a minority equity interest in MSSB Holdings. On or about January 28, 2003, lead plaintiff in a consolidated alleged class action in the United States District Court for the Southern District of New York (IN RE GLOBAL CROSSING, LTD. SECURITIES LITIGATION) filed a consolidated complaint on behalf of purcasers of the securities of Global Crossing and its subsidiaries, which named as defendants, among others, Citigroup, CGM and certain executive officers and current and former employees, asserting claims under the federal securities laws for allegedly issuing research reports without a reasonable basis in fact and for allegedly failing to disclose conflicts of interest with Global Crossing in connection with published investment research. On March 22, 2004, lead plaintiff amended its consolidated complaint to add claims on behalf of purchasers of the securities of Asia Global Crossing. The added claims asserted causes of action under the federal securities laws and common law in connection with CGM's research reports about Global Crossing and Asia Global Crossing and for CGM's roles as an investment banker for Global Crossing and as an underwriter in the Global Crossing and Asia Global Crossing offerings. The Citigroup- Related Defendants moved to dismiss all of the claims against them on July 2, 2004. The plaintiffs and the Citigroup-Related Defendants entered into a settlement agreement that was preliminarily approved by the Court on March 8, 2005, and was finally approved on June 30, 2005. The amount to be paid in settlement is covered by existing litigation reserves. In addition, on or about January 27, 2004, the Global Crossing Estate Representative filed in the United States Bankruptcy Court for the Southern District of New York an adversary proceeding against Citigroup and several other financial institutions seeking to rescind the payment of a $1 billion loan made to a subsidiary of Global Crossing. The Citigroup-Related Defendants moved to dismiss the latter action on May 28, 2004, which motion remains pending. In addition, actions asserting claims against Citigroup and certain of its affiliates relating to CGM Global Crossing research reports are pending in numerous arbitrations around the country. On August 20, 2008, Plaintiff filed an amended complaint that narrowed the pending claims. Citigroup has yet to respond to the amended complaint. FACEBOOK INC: Lawyers in Sponsored Stories Suit Seek $7.7MM Fees ---------------------------------------------------------------- Karen Gullo, writing for Bloomberg News, reports that lawyers for Facebook Inc. users who negotiated a $20 million settlement with the social network company over claims that it used subscribers' names without their permission are seeking $7.7 million in fees. California attorneys Robert Arns and Jonathan Jaffe, who represented five Facebook users suing over the free service's practice of using subscribers' names without their permission to advertise products in its "Sponsored Stories," said the fee was fair given relief provided in the settlement and the risks they undertook to achieve it, according to a court filing. Facebook users can claim a $10 payment and the company agreed to make changes allowing subscribers to opt out of sponsored stories, according to filings in federal court in San Francisco. Facebook, based in Menlo Park, California, also agreed to revise its terms of use so subscribers can more easily see when they're being shown as endorsers of products and games for which they clicked a "like" button. U.S. District Judge Richard Seeborg gave preliminary approval to the settlement. He refused to approve an earlier settlement that included no money for users and $10 million in fees for the attorneys. The case is Fraley v. Facebook Inc., 11-cv-01726, U.S. District Court, Northern District of California (San Jose). FAIRFIELD SENTRY: March 22 Settlement Fairness Hearing Set ---------------------------------------------------------- The following is being released pursuant to Order of the District Court for the Southern District of New York in Anwar v. Fairfield Greenwich Limited, 1:09-cv-00118 (VM). SUMMARY NOTICE TO: All beneficial owners of shares or limited partnership interests in Fairfield Sentry Limited, Fairfield Sigma Limited, Fairfield Lambda Limited, Greenwich Sentry, L.P. and Greenwich Sentry Partners, L.P. (collectively, the "Funds") as of December 10, 2008 (whether as holders of record or traceable to a shareholder or limited partner account of record) ("Beneficial Owners"), who suffered a Net Loss of principal invested in the Funds (collectively, the "Settlement Class"). If you meet the above class definition, you could get a payment from a class action settlement. A federal court authorized this Notice. This is not a solicitation from a lawyer. YOU ARE HEREBY NOTIFIED, pursuant to an Order of the United States District Court for the Southern District of New York, that a hearing will be held on March 22, 2013, at 11:00 a.m., before The Honorable Victor Marrero, at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, New York, New York (the "Court"), for the purpose of determining (1) whether the proposed partial settlement of claims in the above-captioned Action for consideration including the sum of $50,250,000 in cash, plus an additional $30,000,000 that may be distributed subject to certain conditions, should be approved by the Court as fair, reasonable and adequate; (2) whether this Action should be dismissed with prejudice as to the FG Defendants pursuant to the terms and conditions set forth in the Stipulation dated as of November 6, 2012, as amended by the Amendment to the Stipulation of Settlement dated as of December 12, 2012; (3) whether the proposed plan to distribute the settlement proceeds (the "Plan of Allocation") is fair, reasonable and adequate and therefore should be approved; and (4) whether the application of Plaintiffs' Lead Counsel for the payment of attorneys' fees and expenses incurred in connection with this Action and reimbursement of the Representative Plaintiffs' reasonable costs and expenses (including lost wages) directly related to their representation of the Settlement Class should be approved. If you were a Beneficial Owner of shares or limited partnership interests in one or more of the Funds as of December 10, 2008 and suffered a Net Loss in principal on your investment in those shares or limited partnership interests, your rights may be affected by this Settlement, including the release and extinguishment of claims you may possess relating to your ownership interest in the Funds. Net Loss means the total cash investment made by a Beneficial Owner in a Fund, directly or indirectly through one or more intermediaries, less the total amount of any redemptions or withdrawals or recoveries by that Beneficial Owner from or with respect to the same Fund. If you are a member of the Settlement Class, in order to share in the distribution of the Net Settlement Fund, you must submit a Proof of Claim and Release form that is received no later than April 17, 2013, establishing that you are entitled to recovery. If you desire to be excluded from the Settlement Class, you must submit a request for exclusion to Fairfield Greenwich Securities Litigation, c/o Rust Consulting, Inc., P.O. Box 2874, Faribault, MN 55021-8674 so that it is received by February 15, 2013. Any objection to any aspect of the Settlement must be filed with the Court, Plaintiffs' Counsel Designee and Settling Defendants' Counsel Designee, no later than February 15, 2013. If you wish to receive a detailed Notice concerning the terms of the Settlement or the Proof of Claim and Release form, you may obtain copies by writing to Fairfield Greenwich Securities Litigation, c/o Rust Consulting, Inc., P.O. Box 2874, Faribault, MN 55021-8674, or by visiting http://www.FairfieldGreenwichLitigation.com Do not telephone the Court, the Clerk's Office or any of the Defendants or Counsel for the Defendants regarding this notice. FORD MOTOR: Faces Suit in Calif. Over False Marketing Claims ------------------------------------------------------------ Karl Henkel, writing for The Detroit News, reports that a California-based law firm has filed a class-action lawsuit against Ford Motor Co., alleging the company has led a "false and misleading" marketing campaign for its 2013 C-Max and Fusion hybrid vehicles. Law firm McCuneWright alleges fraud and negligent misrepresentation, among others, by Ford, in U.S. District Court in the Eastern District of California. The suit seeks punitive damages, including reimbursement for the purchase price of Ford's new hybrid vehicles. "In its advertising and marketing campaign for the vehicles, Ford claimed that the C-Max Hybrid and Fusion Hybrid achieved a class leading 47 Miles Per Gallon," part of the 17-page suit read. "These materials helped Ford achieve record sales for the first two months of C-MAX Hybrid sales, outselling its rival, hybrid sales leader Toyota, but there was a problem. These ads were false." The plaintiff in the suit is Richard Pitkin of Roseville, Calif., who purchased a C-Max Hybrid in October and says he only averaged 37 miles per gallon, lower than the Environmental Protection Agency rated 47 miles per gallon. The EPA in December said it would review Ford's fuel efficiency claims after Consumer Reports found the C-Max Hybrid and Fusion Hybrid got significantly worse fuel efficiency than the EPA window sticker suggests. Consumer Reports said on Dec. 6 that in testing, the car's fuel efficiency fell 10 miles per gallon short: It got 37 mpg overall, with 35 mpg for city driving and 38 mpg highways. The Fusion Hybrid, certified for the same 47 mpg, got 39 mpg in testing overall, with 35 mpg city and 41 mpg highway. "These two vehicles have the largest discrepancy between our overall-mpg results and the estimates published by the EPA that we've seen among any current models," Consumer Reports said in a statement. One day later, McCuneWright, which has filed similar suits against General Motors Co. and Honda Motor Co., filed suit against Ford. The C-Max can travel at a top speed of 62 mph in electric-only mode. Above 62 mph, the car's four-cylinder gasoline engine starts and helps to recharge the battery. That top electric-only speed means that for the portion of the EPA's highway fuel-efficiency test, which maxes out at 60 mph, the car can travel in electric-only mode without the gasoline engine kicking on; essentially the C-Max Hybrid is optimized for the EPA test. Consumer Reports said Toyota Motor Corp.'s Prius falls short of mileage expectations by 6 mpg and the Prius c Two falls short of mileage expectations by 7 mpg. But Ford says its hybrid vehicles are built to give customers a choice: a driver can operate the vehicle conservatively and achieve EPA mileage claims, or drive the car for fun, because Ford's hybrids get significantly better horsepower than competitor vehicles. GKI BETHLEHEM: Recalls 15,500 Artificially Lit Christmas Trees -------------------------------------------------------------- About 15,500 Artificially Lit Christmas Trees were voluntarily recalled by distributor, GKI Bethlehem Lights of Taunton, Massachusetts, and retailer, QVC of West Chester, Pennsylvania, in cooperation with the CPSC. Consumers should stop using the product immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The Christmas tree base can overheat, posing a fire hazard. QVC has received 30 reports of the tree base overheating, melting or smoking. No injuries were reported. This recall involves the 6.5 foot and 7.5 foot Ready Shape Scottsdale Tree with Never Fail Lights. Model numbers H191953 and H191954 are included in this recall. The model number is on a label on the tree base and on the QVC box. "Bethlehem Lights" is on the box and the instruction sheets. Pictures of the recalled products are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml13/13714.html The recalled products were manufactured in China and sold exclusively at QVC from July 2011 through November 2011 for $320 for the 6.5-foot tree and $398 for the 7.5-foot tree. Consumers should immediately unplug and stop using the Christmas tree and contact QVC to receive a refund. QVC is contacting its customers directly by mail. GKI Bethlehem Lights may be reached at (800) 248-1434, from 8:00 a.m. to 5:00 p.m. Eastern Time Monday through Friday, or online at http://www.gkilights.com/,clicking on "Resources" and then click on "Recall Notice." GROUPON INC: Robins Geller Files Class Action in Illinois --------------------------------------------------------- Robbins Geller Rudman & Dowd LLP on Dec. 21 disclosed that a class action has been commenced in the United States District Court for the Northern District of Illinois on behalf of purchasers of Groupon, Inc. common stock during the period between May 14, 2012, and November 8, 2012. If you wish to serve as lead plaintiff, you must move the Court no later than 60 days from December 21, 2012. If you wish to discuss this action or have any questions concerning this notice or your rights or interests, please contact plaintiff's counsel, Darren Robbins of Robbins Geller at 800/449-4900 or 619/231-1058, or via e-mail at djr@rgrdlaw.com If you are a member of this class, you can view a copy of the complaint as filed or join this class action online at http://www.rgrdlaw.com/cases/grpn/ Any member of the putative class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. The complaint charges Groupon and certain of its officers and directors with violations of the Securities Exchange Act of 1934. Groupon is a local e-commerce marketplace that connects merchants to consumers by offering goods and services at a discount. The complaint alleges that during the Class Period, defendants issued materially false and misleading statements regarding the Company's business and prospects. As a result of defendants' false statements, Groupon stock traded at artificially inflated prices during the Class Period, reaching a high of $13.05 per share on May 16, 2012. On November 8, 2012, Groupon issued a press release announcing its third quarter 2012 earnings results, reporting disappointing revenue results for the third quarter and lowered revenue guidance for the fourth quarter of 2012 below analysts' expectations. In a conference call following the release of Groupon's third quarter results, defendants acknowledged that the Company's lower margin Groupon Goods business would be a more significant part of its revenues. As a result of this news, Groupon stock dropped $1.16 per share to close at $2.76 per share on November 9, 2012, a one- day decline of nearly 30% and a decline of 78% from the stock's Class Period high. According to the complaint, the true facts, which were known by the defendants but concealed from the investing public during the Class Period, were as follows: (a) much of Groupon's revenue growth was being derived from its non-core, lower-margin Groupon Goods business; (b) Groupon's business was not growing to the extent represented by defendants; and (c) Groupon's revenue mix was shifting in a manner which would lead to lower margins. Plaintiff seeks to recover damages on behalf of all purchasers of Groupon common stock during the Class Period. The plaintiff is represented by Robbins Geller, which has expertise in prosecuting investor class actions and extensive experience in actions involving financial fraud. Robbins Geller -- http://www.rgrdlaw.com-- represents U.S. and international institutional investors in contingency-based securities and corporate litigation. With nearly 200 lawyers in nine offices, the firm represents hundreds of public and multi- employer pension funds with combined assets under management in excess of $2 trillion. The firm has obtained many of the largest recoveries in history and has been ranked number one in the number of shareholder class action recoveries in MSCI's Top SCAS 50 every year since 2003. H&R BLOCK: Appeal Bid in "Barrett" Suit Decertification Pending ---------------------------------------------------------------- An appeal from a class decertification ruling in a lawsuit filed against H&R Block, Inc.'s subsidiary, Sand Canyon Corporation, previously known as Option One Mortgage Corporation, is pending, according to the Company's December 6, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended October 31, 2012. SCC ceased originating mortgage loans in December 2007 and, in April 2008, sold its servicing assets and discontinued its remaining operations. Mortgage loans purchased by H&R Block Bank (HRB Bank) from SCC represent 58% of total loans held for investment at July 31, 2012. On February 1, 2008, a class action lawsuit was filed in the U.S. District Court for the District of Massachusetts against SCC and other related entities styled Cecil Barrett, et al. v. Option One Mortgage Corp., et al. (Civil Action No. 08-10157-RWZ). Plaintiffs allege discriminatory practices relating to the origination of mortgage loans in violation of the Fair Housing Act and Equal Credit Opportunity Act, and seek declaratory and injunctive relief in addition to actual and punitive damages. The court dismissed H&R Block, Inc. from the lawsuit for lack of personal jurisdiction. In March 2011, the court issued an order certifying a class, which defendants sought to appeal. On August 24, 2011, the First Circuit Court of Appeals declined to hear the appeal, noting that the district court could reconsider its certification decision in light of a recent ruling by the United States Supreme Court in an unrelated matter. SCC subsequently filed a motion to decertify the class, which the court granted. Plaintiffs' petition for appeal is pending. A portion of the Company's loss contingency accrual is related to this lawsuit for the amount of loss that it considers probable and estimable. The Company believes that SCC has meritorious defenses to the claims in this case and it intends to defend the case vigorously, but there can be no assurances as to its outcome or its impact on the Company's consolidated financial position, results of operations and cash flows. H&R Block, Inc. and its subsidiaries provide tax preparation and banking services. Its Tax Services segment provides assisted income tax return preparation, digital tax solutions and other services and products related to income tax return preparation to the general public primarily in the United States (U.S.), and also in Canada and Australia. H&R BLOCK: Appeal in "Drake" Lawsuit Still Pending -------------------------------------------------- An appeal challenging a court order favoring H&R Block, Inc. and other defendants in a lawsuit commenced by Jeanne Drake, et al., remains pending, according to the Company's December 6, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended October 31, 2012. H&R Block's subsidiary, Sand Canyon Corporation, previously known as Option One Mortgage Corporation, ceased originating mortgage loans in December 2007 and, in April 2008, sold its servicing assets and discontinued its remaining operations. Mortgage loans purchased by H&R Block Bank (HRB Bank) from SCC represent 58% of total loans held for investment at July 31, 2012. On December 9, 2009, a putative class action lawsuit was filed in the United States District Court for the Central District of California against SCC and H&R Block, Inc. styled Jeanne Drake, et al. v. Option One Mortgage Corp., et al. (Case No. SACV09-1450 CJC). Plaintiffs allege breach of contract, promissory fraud, intentional interference with contractual relations, wrongful withholding of wages and unfair business practices in connection with not paying severance benefits to employees when their employment transitioned to American Home Mortgage Servicing, Inc. in connection with the sale of certain assets and operations of Option One. Plaintiffs seek to recover severance benefits of approximately $8 million, interest and attorney's fees, in addition to penalties and punitive damages on certain claims. On September 2, 2011, the court granted summary judgment in favor of the defendants on all claims. Plaintiffs have filed an appeal, which remains pending. The Company has not concluded that a loss related to this matter is probable, nor has it established a loss contingency related to this matter. The Company believes it has meritorious defenses to the claims in this case and intends to defend the case vigorously, but there can be no assurances as to its outcome or its impact on its consolidated financial position, results of operations and cash flows. No updates were reported in the Company's latest Form 10-Q SEC filing. H&R Block, Inc. and its subsidiaries provide tax preparation and banking services. Its Tax Services segment provides assisted income tax return preparation, digital tax solutions and other services and products related to income tax return preparation to the general public primarily in the United States (U.S.), and also in Canada and Australia. H&R BLOCK: Two Settlements on Employee Suits Get Court's Final OK ----------------------------------------------------------------- California courts have granted final approval of class settlements resolving two wage-and-hour lawsuits against H&R Block, Inc., according to the Company's December 6, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended October 31, 2012. The Company has been named in several wage and hour class action lawsuits throughout the country, which include: * Alice Williams v. H&R Block Enterprises LLC, Case No. RG08366506 (Superior Court of California, County of Alameda, filed January 17, 2008) (alleging improper classification and failure to compensate for all hours worked and to provide meal periods to office managers in California); * Arabella Lemus, et al. v. H&R Block Enterprises LLC, et al., Case No. CGC-09-489251 (United States District Court, Northern District of California, filed June 9, 2009) (alleging failure to timely pay compensation to tax professionals in California); * Delana Ugas, et al. v. H&R Block Enterprises LLC, et al., Case No. BC417700 (United States District Court, Central District of California, filed July 13, 2009) (alleging failure to compensate tax professionals in California for all hours worked and to provide meal periods); and * Barbara Petroski, et al. v. H&R Block Eastern Enterprises, Inc., et al., Case No. 10-CV-00075 (United States District Court, Western District of Missouri, filed January 25, 2010) (alleging failure to compensate tax professionals nationwide for off-season training). The plaintiffs in these lawsuits seek actual damages, pre-judgment interest, statutory penalties and attorneys' fees. A class was certified in the Lemus case in December 2010 (consisting of tax professionals who worked in company-owned offices in California from 2007 to 2010) and in the Williams case in March 2011 (consisting of office managers who worked in company-owned offices in California from 2004 to 2011). To avoid the cost and inherent risk associated with litigation, the Company reached agreements to settle the Lemus and Williams cases in January and February 2012, respectively, subject to approval by the courts in California in which the cases are pending. In Lemus, the settlement would require a maximum payment of $35 million, although the actual cost of the settlement would depend on the number of valid claims submitted by class members. The federal court granted preliminary approval of the settlement on February 10, 2012, and final approval on August 22, 2012, for an amount not materially different from the Company's liability recorded at July 31, 2012. In Williams, the settlement would require a maximum payment of $7.5 million, with the actual cost of the settlement would depend on the number of valid claims submitted by class members. The court granted preliminary approval of the settlement on June 7, 2012 and final approval of the settlement on November 8, 2012. The time for appeal has not yet expired. The Company has recorded a liability for its estimate of the expected loss with respect to these settlements. If for any reason the Williams settlement does not become final, the Company will continue to defend the case vigorously, but there can be no assurances as to the outcome or its impact on the Company's consolidated financial position, results of operations and cash flows. In the Ugas case, the court initially certified a class on the claim for failure to provide meal periods (consisting of tax professionals who worked in company-owned offices in California from 2006 to 2011), but subsequently decertified the class in a ruling dated July 9, 2012. The Ninth Circuit Court of Appeals declined to hear an appeal. The court also certified a class on the claim for failure to compensate tax professionals for all hours worked (consisting of tax professionals who worked in company-owned offices in one district in California from 2006- 2009). That class remains pending. In the Petroski case, a conditional class was certified under the Fair Labor Standards Act in March 2011 (consisting of tax professionals nationwide who worked in company-owned offices and who were not compensated for certain training courses occurring on or after April 15, 2007). Two classes were also certified under state laws in California and New York (consisting of tax professionals who worked in company- owned offices in those states). The Company filed motions to decertify the classes, along with motions for summary judgment, which remain pending. A trial date has been set for June 3, 2013. The Company has not concluded that a loss related to the Ugas or Petroski matters is probable, nor have it accrued a loss contingency related to these matters. The Company believes it has meritorious defenses to the claims in these cases and intends to defend them vigorously, but there can be no assurances as to the outcome of these cases or their impact on its consolidated financial position, results of operations and cash flows. H&R Block, Inc. and its subsidiaries provide tax preparation and banking services. Its Tax Services segment provides assisted income tax return preparation, digital tax solutions and other services and products related to income tax return preparation to the general public primarily in the United States (U.S.), and also in Canada and Australia. HEMISPHERX BIOPHARMA: Rosen Law Firm Files Securities Class Action ------------------------------------------------------------------ The Rosen Law Firm, P.A. on Dec. 24 disclosed that a class action lawsuit has been filed on behalf of investors who purchased the securities of Hemispherx Biopharma, Inc., from March 19, 2012, through December 17, 2012. To join the Hemispherx class action, visit the firm's Web site at http://rosenlegal.comor call Phillip Kim, Esq., toll-free, at 866-767-3653; you may also e-mail pkim@rosenlegal.com for information on the class action. The Complaint asserts violations of the federal securities laws against Hemispherx and its officers and directors for issuing false and misleading information about its lead drug candidate Ampligen. Specifically, that Hemispherx misstated the safety and efficacy of Ampligen, and touted purportedly positive results from Ampligen's clinical trials. On December 18, 2012, the FDA published a staff report concluding that the Company's studies were "ill-defined and invalid" with signals of efficacy that were inconsistent between clinical trials, and based on the limited quality of the data, "it is difficult to draw conclusions regarding potential safety signals," but the "review identified nine potential safety concerns associated with Ampligen." The Complaint alleges that as a result of this adverse information, Hemispherx stock price dropped and investors have been damaged. If you wish to serve as lead plaintiff, you must move the Court no later than February 22, 2013. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to join the litigation, or to discuss your rights or interests regarding this class action, please contact Phillip Kim, Esq. of The Rosen Law Firm, toll-free, at 866-767-3653, or via e-mail at pkim@rosenlegal.com You may also visit the firm's Web site at http://www.rosenlegal.com The Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Contact: Laurence Rosen, Esq. Phillip Kim, Esq. THE ROSEN LAW FIRM P.A. 275 Madison Avenue 34th Floor New York, NY 10016 Telephone: (212) 686-1060 Weekends Telephone: (917) 562-8616 Toll Free: 1-866-767-3653 Fax: (212) 202-3827 Web site: http://www.rosenlegal.com HEMISPHERX BIOPHARMA: Pomerantz Law Firm Files Class Action ----------------------------------------------------------- Pomerantz Grossman Hufford Dahlstrom & Gross LLP has filed a class action lawsuit against Hemispherx Biopharma, Inc. and certain of its officers. The class action filed in United States District Court, Eastern District of Pennsylvania, and docketed under 2:12- cv-07152-WY on behalf of a class consisting of all persons or entities who purchased or otherwise acquired securities of Hemispherx between March 19, 2012 and December 17, 2012, both dates inclusive. This class action seeks to recover damages against the Company and certain of its officers and directors as a result of alleged violations of the federal securities laws pursuant to Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder. If you are a shareholder who purchased Hemispherx securities during the Class Period, you have until February 19, 2013 to ask the Court to appoint you as Lead Plaintiff for the class. A copy of the Complaint can be obtained at http://www.pomerantzlaw.com To discuss this action, contact Robert S. Willoughby at rswilloughby@pomlaw.com or 888-476-6529 (or 888-4-POMLAW), toll free, x237. Those who inquire by e-mail are encouraged to include their mailing address and telephone number. Hemispherx is a biopharmaceutical company that focuses on the development of nucleic acids to enhance the natural anti-viral defense systems of the human body. The Company's lead product, Ampligen(R), is undergoing clinical trials for the treatment of Myalgic Encephalomylitis/Chronic Fatigue Syndrome. The Complaint alleges that throughout the Class Period, the Company made a host of materially false and misleading statements regarding the safety and efficacy of Ampligen, and touted purportedly positive results from Ampligen's clinical trials. As a result of the foregoing, the Company's statements were materially false and misleading at all relevant times. On December 18, 2012, the FDA published an FDA staff report concerning Ampligen's safety and efficacy. Specifically, the report concluded that the Company's studies were "ill-defined and invalid" with signals of efficacy that were inconsistent between clinical trials, and based on the limited quality of the data, "it is difficult to draw conclusions regarding potential safety signals," but the "review identified nine potential safety concerns associated with Ampligen." As a result of this disclosure, Hemispherx shares declined $0.276 per share or nearly 43%, to close at $0.368 per share on December 18, 2012. As a result of Company's wrongful acts and omissions, and the precipitous decline in the market value of the Company's securities, Class members have suffered significant damages. The Pomerantz Firm -- http://www.pomerantzlaw.com-- concentrates its practice in the areas of corporate, securities, and antitrust class litigation. The firm has offices in New York, Chicago, and San Diego. HOULIHAN'S RESTAURANT: Price Discrimination Claims Can Proceed -------------------------------------------------------------- Rose Bouboushian at Courthouse News Service reports that a man can pursue claims against the Houlihan's Restaurant chain for forcing him to pay more than other customers for his alcoholic drinks, a federal judge ruled. While at a Houlihan's restaurant in Brick, N.J., Ted Pauly ordered several beers and mixed drinks whose prices were not listed on the menu. Mr. Pauly says he did not discover the beverage prices until after he consumed them and received his bill. Although Mr. Pauly paid his bill in full, he now claims Houlihan's prices were unreasonable and that he was charged more than other customers for the same items. Mr. Pauly commenced a civil action against Houlihan's Restaurants, Inc. in New Jersey Superior Court, and Houlihan's then removed the action to the District of New Jersey. In his amended complaint, Mr. Pauly alleges unjust enrichment and breach of contract, and claims that the case is appropriate for certification as a class action. Instead of filing an answer, Houlihan's filed a motion to dismiss for failure to state a claim. U.S. District Judge Jerome Simandle denied the motion on late last week. In doing so, Judge Simandle brushed aside the claim of Houlihan's Vice President Cynthia Parres, who argued the corporation does not own, operate or control its franchisee in Brick. "The defendant's argument that it has no direct relationship to plaintiff is supported solely by the extraneous declaration of its vice president. The defendant's argument completely disregards the allegations in plaintiff's pleading and seeks to present an issue of fact which is inappropriate on a motion to dismiss," the judge wrote. The court also tossed aside Houlihan's claims that it had no contract with Mr. Pauly, that his complaint failed to present such facts as what he paid for the drinks, or even states what he believes reasonable prices to be. "Specifically, the amended complaint alleges that no price was listed on the menu for the alcoholic drinks plaintiff ordered and the defendant subsequently fulfilled plaintiff's order by delivering the beverages. These are sufficient grounds for a court to find that an agreement between Mr. Pauly and Houlihan's existed and that the plaintiff agreed to pay a reasonable price of the beverages," the 19-page opinion states. Judge Simandle found that by paying his bill in full, Mr. Pauly did not assent to overpricing. "Equitable reasons exist to find that the plaintiff did not necessarily waive his right to contest his bill by paying in full at the restaurant after he consumed his beverages. It would be unreasonable and inequitable to hold that a person must risk criminal exposure in order to challenge a restaurant's policy of omitting prices from their menus and ultimately charging unreasonable and discriminatory rates for their food and beverages," the judge wrote. The court also held Mr. Pauly's unjust enrichment claim was valid. "Plaintiff maintains that if he knew this price discrimination was occurring, he would not have ordered his drinks. Plaintiff then was charged an unreasonably high amount for the drinks he ordered and ultimately paid this unreasonable amount to the defendant. This sufficiently states a claim for unjust enrichment as it would be unjust for the defendant to retain the benefit of plaintiff's excess payment," Judge Simandle concluded. The judge refrained from addressing class certification at this time. A copy of the Opinion in Pauly v. Houlihan's Restaurants, Inc., Case No. 12-cv-00025 (D. N.J.) (Simandle, J.), is available at: http://www.courthousenews.com/2012/12/26/Houlihan%27s.pdf KMART CORP: Judge Rules For Kmart on Cashier Seating Class Action ----------------------------------------------------------------- Jonny Bonner at Courthouse News Service reports that Kmart is not liable for failing to provide its cashiers in central California with "suitable" seats, a federal judge ruled after a one-week bench trial. Lisa Garvey sued the store's owner, Sears Holding Management, in April 2011, and the case later morphed into a federal class action against Kmart. Ms. Garvey alleged the big-box store violated California's wage order since Labor Code Section 1198 and Section 14(A) of Industrial Welfare Commission Wage Order 7-2001 provide that: "All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats." A federal judge refused to order summary judgment against Kmart in April 2012, concluding that the wage order did not require employees to affirmatively request a seat. The decision also found that the wage order did apply to Kmart cashiers, and that there was a genuine issue as to whether Kmart cashier work reasonably permitted seats. Though Ms. Garvey had sought to represent 5,600 cashiers from 100 Kmart stores in California, the court narrowed that number to 71 cashiers from the Tulare location where Ms. Garvey worked. Tulare, with a population of 59,278 in 2010, is located in the heart of the state's central valley. This fall, the court found that Kmart failed to preserve and produce relevant evidence on cashiers' use of checkout registers. There was no sanction specified, however. Kmart competitors faced similar claims over the last year, but Ms. Garvey's was the first to go to trial in November. U.S. District Judge William Alsup ruled for Kmart on Dec. 25. "At issue in this class action are the seven 'front-end' cashier stands located at the front of the Tulare store," Judge Alsup wrote. "The checkout stands in question resemble checkout stands all of us have seen in modern times." Noting California's wage order, Judge Alsup said that neither the Industrial Welfare Commission nor the California Labor Commissioner "has previously interpreted Section 14 as it might apply to the case in hand." The proposed addition of stools to the stands could present an "obstacle course," "inevitably lead to stumbles" and "be unsafe," the decision states. Redesigning the stands as proposed by class counsel "would be an unhappy match" between a floor mat and the legs of the stool, Judge Alsup added. "In sum, this order rejects the proposed modification by class counsel as too unsafe, too inefficient, and too inconvenient to customers and cashiers," according to the 23-page findings of fact and conclusions of law. "Adoption of the proposed modifications would unreasonably interfere with Kmart's legitimate interest in providing quick and efficient customer service so as to compete with other big box stores." Though Judge Alsup said lean-stools "seem to be the only possible candidate for seating that plausibly would be consistent with the job requirements," he refused to approve or order them. "Before even requiring such seating, the court would insist on hearing the views of cashiers, the ergonomics experts, safety experts, and Kmart management," Judge Alsup wrote. "This would have to be in a trial involving a different class. The trial on this class at the Tulare store is over and finished." (g. 64) The judge also scolded Kmart for an abandoned policy over the use of seats. In the wake of a so-called "seating" lawsuit against one of its competitors, a Kmart human resources official adopted a "secret policy" that "any cashier in California Kmarts would be allowed to use a seat at the cashier stall if he or she asked for one," Judge Alsup said. But the policy "was never reduced to a memo or email, or if it was, those were destroyed," Judge Alsup said. "After all of Kmart's machinations, it would be poetic justice to hold Kmart to the full implications of its so-called policy, namely to hold that providing a seat in the existing configuration would be safe and practical," the ruling states. "This would, however, not be actual justice, nor actual safety. Even class counsel have conceded that a chair (or stool) cannot be safely used with the existing configuration." Though Ms. Garvey's case failed, Judge Alsup acknowledged that additional cases must be considered and tried "covering one or more other stores in California." "One obstacle to further certification will possibly be that the only named plaintiff has now had her case resolved," Judge Alsup said. "Arguably, she should not be a representative on behalf of cashiers at other stores. Assuming this could somehow be overcome, at follow-on trial(s), both sides are invited to present more complete evidence on a lean-stool alternative . . . (or variations thereon), in addition to any other evidence counsel wishes to present." Judge Alsup scheduled a case-management conference for Jan. 10. "Please do not ask to stay this case pending appeal," Judge Alsup warned. "Useful work can be done before the next trial even if the trial itself turns out to be after the decision by the court of appeals on the Tulare store." A copy of the Findings of Fact and Conclusions of Law After Bench Trial in Garvey v. Kmart Corporation, Case No. 11-cv-02575 (N.D. Calif.) (Alsup, J.), is available at: http://www.courthousenews.com/2012/12/24/kmartfof.pdf MORGAN STANLEY: Awaits Decision in New York Securities Suit ----------------------------------------------------------- Morgan Stanley is awaiting a court decision on plaintiffs' motion seeking to expand the offerings at issue in In re Morgan Stanley Mortgage Pass-Through Certificate Litigation, according to the Company's November 6, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2012. On May 7, 2009, the Company was named as a defendant in a purported class action lawsuit brought under Sections 11, 12 and 15 of the Securities Act of 1933, as amended (the "Securities Act"), alleging, among other things, that the registration statements and offering documents related to the offerings of approximately $17 billion of mortgage pass through certificates in 2006 and 2007 contained false and misleading information concerning the pools of residential loans that backed these securitizations. The plaintiffs sought, among other relief, class certification, unspecified compensatory and rescissionary damages, costs, interest and fees. This case, which was consolidated with an earlier lawsuit and is currently styled In re Morgan Stanley Mortgage Pass-Through Certificate Litigation, is pending in the United States District Court for the Southern District of New York ("SDNY"). On August 17, 2010, the court dismissed the claims brought by the lead plaintiff, but gave a different plaintiff leave to file a second amended complaint. On September 10, 2010, that plaintiff, together with several new plaintiffs, filed a second amended complaint which purported to assert claims against the Company and others on behalf of a class of investors who purchased approximately $4.7 billion of mortgage pass through certificates issued in 2006 by seven trusts collectively containing residential mortgage loans. The second amended complaint asserted claims under Sections 11, 12 and 15 of the Securities Act, and alleged, among other things, that the registration statements and offering documents related to the offerings contained false and misleading information concerning the pools of residential loans that backed these securitizations. The plaintiffs sought, among other relief, class certification, unspecified compensatory and rescissionary damages, costs, interest and fees. On September 15, 2011, the court granted in part and denied in part the defendants' motion to dismiss and granted the plaintiffs' request to file another amended complaint. On September 29, 2011, the defendants moved for reconsideration of a portion of the court's decision partially denying the motion to dismiss. On September 30, 2011, the plaintiffs filed a third amended complaint purporting to bring claims on behalf of a class of investors who purchased approximately $2.7 billion of mortgage pass through certificates issued in 2006 by five trusts. The defendants moved to dismiss the third amended complaint on October 17, 2011. On July 16, 2012, the court denied defendants' motion to dismiss the third amended complaint. On September 12, 2012, the Company filed its answer to the third amended complaint. On September 20, 2012, the plaintiffs filed a motion seeking to expand the offerings at issue in the litigation, relying on recent precedent from the United States Court of Appeals for the Second Circuit ("Second Circuit"). Defendants have opposed the motion. If the motion is granted, plaintiffs will be purporting to represent investors who purchased approximately $7.82 billion in mortgage pass through certificates issued in 2006 by thirteen trusts. MORGAN STANLEY: Calif. Court Refuses to Remand "Luther" Suit ------------------------------------------------------------ Morgan Stanley disclosed in its November 6, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2012, that a California court refused to remand the lawsuit styled Luther, et al. v. Countrywide Financial Corporation, et al. Luther, et al. v. Countrywide Financial Corporation, et al., pending in the Superior Court of the State of California, involves claims related to the Company's role as an underwriter of various residential mortgage backed securities offerings issued by affiliates of Countrywide Financial Corporation. The amended complaint includes allegations that the registration statements and the offering documents contained false and misleading statements about the residential mortgage loans backing the securities. The Company underwrote approximately $6.3 billion of the principal amount of the offerings at issue. On January 6, 2010, the Court dismissed the case for lack of subject matter jurisdiction. On May 18, 2011, a California court of appeals reversed the dismissal and reinstated the complaint. On December 19, 2011, defendants moved to dismiss the complaint. On February 3, 2012, defendants moved to stay the case pending resolution of a securities class action brought by the same plaintiffs, styled Maine State Retirement System v. Countrywide Financial Corporation, et al., in the United States District Court for the Central District of California. On August 31, 2012, the court in Luther lawsuit, which was removed to the United States District Court for the Central District of California in June 2012, denied the plaintiffs' motion to remand the matter. MORGAN STANLEY: Continues to Defend IndyMac Securities Suit ----------------------------------------------------------- Morgan Stanley continues to defend itself in In re IndyMac Mortgage-Backed Securities Litigation, according to the Company's November 6, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2012. Beginning in 2007, the Company was named as a defendant in several putative class action lawsuits brought under Sections 11 and 12 of the Securities Act, related to its role as a member of the syndicates that underwrote offerings of securities and mortgage pass through certificates for certain non-Morgan Stanley related entities that have been exposed to subprime and other mortgage- related losses. The plaintiffs in these actions allege, among other things, that the registration statements and offering documents for the offerings at issue contained material misstatements or omissions related to the extent to which the issuers were exposed to subprime and other mortgage-related risks and other matters and seek various forms of relief including class certification, unspecified compensatory and rescissionary damages, costs, interest and fees. The Company's exposure to potential losses in these cases may be impacted by various factors including, among other things, the financial condition of the entities that issued or sponsored the securities and mortgage pass through certificates at issue, the principal amount of the offerings underwritten by the Company, the financial condition of co-defendants and the willingness and ability of the issuers (or their affiliates) to indemnify the underwriter defendants. Some of these cases, including In Re Washington Mutual, Inc. Securities Litigation, In re: Lehman Brothers Equity/Debt Securities Litigation and In re IndyMac Mortgage-Backed Securities Litigation, relate to issuers or sponsors (or their affiliates) that have filed for bankruptcy or have been placed into receivership. In re IndyMac Mortgage-Backed Securities Litigation is pending in the United States District Court for the Southern District of New York ("SDNY") and relates to offerings of mortgage pass through certificates issued by seven trusts sponsored by affiliates of IndyMac Bancorp during 2006 and 2007. The Company underwrote over $1.4 billion of the principal amount of the offerings originally at issue. On June 21, 2010, the court granted in part and denied in part the underwriter defendants' motion to dismiss the amended consolidated class action complaint. The Company underwrote approximately $46 million of the principal amount of the offerings at issue following the court's June 21, 2010 decision. On May 17, 2010, certain putative plaintiffs filed a motion to intervene in the litigation in order to assert claims related to additional offerings. The principal amount of the additional offerings underwritten by the Company is approximately $1.2 billion. On June 21, 2011, the Company successfully opposed the motion to add the additional plaintiffs as to the Company. On July 20, 2011, and July 21, 2011, certain of the additional plaintiffs filed appeals in the United States Court of Appeals for the Second Circuit. The Company is opposing the appeals. On August 31, 2012, the Company and other defendants filed a petition seeking permission to appeal the August 17, 2012 class certification ruling in In re IndyMac Mortgage-Backed Securities Litigation. On October 12, 2012, the plaintiffs filed a motion seeking to expand the offerings at issue in the litigation, relying on recent precedent from the Second Circuit. Defendants have opposed the motion. If the motion is granted and the offerings are included in the class that is certified, the principal amount of the offerings underwritten by the Company at issue in the litigation will be approximately $1.68 billion. PFIZER INC: Reached Settlement of Neurontin Suits in Canada ----------------------------------------------------------- Pfizer Inc. entered into an agreement-in-principle to resolve lawsuits in Canada arising from its promotion, sale and labeling of Neurontin, according to the Company's November 9, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2012. A number of individual lawsuits have been filed against the Company in various U.S. federal and state courts and in certain other countries alleging suicide, attempted suicide and other personal injuries as a result of the purported ingestion of Neurontin. Certain of the U.S. federal actions have been transferred for consolidated pre-trial proceedings to a multidistrict litigation in Massachusetts. In addition, purported class actions have been filed against the Company in various Canadian provincial courts alleging claims arising from the promotion, sale and labeling of Neurontin and generic Neurontin. In February 2010, in a proceeding pending in Ontario, Canada, the court certified a class consisting of all persons in Canada, except in Quebec, who purchased and ingested Neurontin prior to August 2004. The plaintiffs claim that Pfizer failed to provide adequate warning of the alleged risks of personal injury associated with Neurontin. Two purported province-wide class actions filed in Quebec that raise substantially the same allegations have been included in the class action pending in Ontario by agreement of the parties and orders of both the Quebec and Ontario courts. In November 2012, the parties entered into an agreement-in-principle to resolve this matter that provides for the payment by Pfizer of C$4.8 million. The resolution is subject to the execution of a final settlement agreement by the parties and to court approval. New York-based Pfizer Inc. is a biopharmaceutical company that discovers, develops, manufactures and delivers quality, safe and effective prescription medicines to treat and help prevent disease for both people and animals. The Company also partners with healthcare providers, governments and local communities around the world to expand access to its medicines and to provide better quality health care and health system support. PFIZER INC: Continues to Face Class Suits Over Co-Pay Programs -------------------------------------------------------------- Pfizer Inc. continues to face class action lawsuits relating to co-pay programs, according to the Company's November 9, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2012. In March 2012, a purported class action was filed against Pfizer and Amgen Inc. in the U.S. District Court for the Southern District of New York. The plaintiffs seek to represent a class consisting of all entities in the U.S. and its territories that have reimbursed patients for the purchase of certain Pfizer drugs for which co-pay programs exist or have existed. The plaintiffs allege that these programs violate the federal Racketeer Influenced and Corrupt Organizations (RICO) Act and federal antitrust law by, among other things, providing an incentive for patients to use certain Pfizer drugs rather than less-expensive competitor products, thereby increasing the payers' reimbursement costs. The plaintiffs seek treble damages on behalf of the putative class for their excess reimbursement costs allegedly attributable to the co-pay programs as well as an injunction prohibiting the Company from offering such programs. In May and July 2012, respectively, substantially similar purported class actions were filed against Pfizer in the U.S. District Courts for the Eastern District of New York and the Southern District of Illinois. In August 2012, the action in the Eastern District of New York was voluntarily dismissed by the plaintiff. In October 2012, the action in the Southern District of Illinois was stayed pending the outcome of the action in the Southern District of New York. In October 2012, the plaintiffs in the action in the Southern District of New York voluntarily dismissed Amgen as a defendant. Similar purported class actions have been filed against several other pharmaceutical companies. New York-based Pfizer Inc. is a biopharmaceutical company that discovers, develops, manufactures and delivers quality, safe and effective prescription medicines to treat and help prevent disease for both people and animals. The Company also partners with healthcare providers, governments and local communities around the world to expand access to its medicines and to provide better quality health care and health system support. PFIZER INC: Antitrust MDL Related to Neurontin Product Pending -------------------------------------------------------------- Pfizer Inc. continues to defend itself in an antitrust multidistrict litigation related to Neurontin, according to the Company's November 9, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2012. In January 2011, in a Multi-District Litigation (In re Neurontin Antitrust Litigation MDL-1479) that consolidates four actions, the U.S. District Court for the District of New Jersey certified a nationwide class consisting of wholesalers and other entities who purchased Neurontin directly from Pfizer and Warner-Lambert during the period from December 11, 2002, to August 31, 2008, and who also purchased generic gabapentin after it became available. The complaints allege that Pfizer and Warner-Lambert engaged in anticompetitive conduct in violation of the Sherman Act that included, among other things, submitting patents for listing in the Orange Book and prosecuting and enforcing certain patents relating to Neurontin, as well as engaging in off-label marketing of Neurontin. Plaintiffs seek compensatory damages on behalf of the class, which may be subject to trebling. No further updates were reported in the Company's latest SEC filing. New York-based Pfizer Inc. is a biopharmaceutical company that discovers, develops, manufactures and delivers quality, safe and effective prescription medicines to treat and help prevent disease for both people and animals. The Company also partners with healthcare providers, governments and local communities around the world to expand access to its medicines and to provide better quality health care and health system support. PFIZER INC: Protonix-Related Class Suits vs. Wyeth Remain Stayed ---------------------------------------------------------------- Class action lawsuits over Protonix (pantoprazole sodium) involving a subsidiary of Pfizer Inc. remain stayed in New Jersey, according to the Company's November 9, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2012. Wyeth, a Company subsidiary, has a license to market Protonix (pantoprazole sodium) in the U.S. from Nycomed GmbH (Nycomed), which owns the patents relating to Protonix. The basic patent (including the six-month pediatric exclusivity period) for Protonix expired in January 2011. Following their respective filings of abbreviated new drug applications with the U.S. Food and Drug Administration (FDA), Teva Pharmaceuticals USA, Inc. (Teva USA) and Teva Pharmaceutical Industries Ltd. (Teva Pharmaceutical Industries), Sun Pharmaceutical Advanced Research Centre Ltd. and Sun Pharmaceutical Industries Ltd. (collectively, Sun) and KUDCO Ireland, Ltd. (KUDCO Ireland) received final FDA approval to market their generic versions of Protonix 20mg and 40mg delayed- release tablets. Wyeth and Nycomed filed actions against those generic manufacturers in the U.S. District Court for the District of New Jersey, which subsequently were consolidated into a single proceeding, alleging infringement of the basic patent and seeking declaratory and injunctive relief. Following the court's denial of a preliminary injunction sought by Wyeth and Nycomed, Teva USA and Teva Pharmaceutical Industries and Sun launched their generic versions of Protonix tablets at risk in December 2007 and January 2008, respectively. Wyeth launched its own generic version of Protonix tablets in January 2008, and Wyeth and Nycomed filed amended complaints in the pending patent-infringement action seeking compensation for damages resulting from Teva USA's, Teva Pharmaceutical Industries' and Sun's at-risk launches. In April 2010, the jury in the pending patent-infringement action upheld the validity of the basic patent for Protonix. In July 2010, the court upheld the jury verdict, but it did not issue a judgment against Teva USA, Teva Pharmaceutical Industries or Sun because of their other claims relating to the patent that still are pending. Wyeth and Nycomed will continue to pursue all available legal remedies against those generic manufacturers, including compensation for damages resulting from Teva USA's, Teva Pharmaceutical Industries' and Sun's at-risk launches. Separately, Wyeth and Nycomed are defendants in purported class actions brought by direct and indirect purchasers of Protonix in the U.S. District Court for the District of New Jersey. Plaintiffs seek damages, on behalf of the respective putative classes, for the alleged violation of antitrust laws in connection with the procurement and enforcement of the patents for Protonix. These purported class actions have been stayed pending resolution of the underlying patent litigation in the U.S. District Court for the District of New Jersey. No further updates were reported in the Company's latest SEC filing. New York-based Pfizer Inc. is a biopharmaceutical company that discovers, develops, manufactures and delivers quality, safe and effective prescription medicines to treat and help prevent disease for both people and animals. The Company also partners with healthcare providers, governments and local communities around the world to expand access to its medicines and to provide better quality health care and health system support. PFIZER INC: Bapineuzumab-Related Securities Suits Pending --------------------------------------------------------- Pfizer Inc. continues to defend lawsuits related to the clinical trial of its bapineuzumab product, according to the Company's November 9, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2012. In June 2010, a purported class action was filed in the U.S. District Court for the District of New Jersey against Pfizer, as successor to Wyeth, and several former officers of Wyeth. The complaint alleges that Wyeth and the individual defendants violated federal securities laws by making or causing Wyeth to make false and misleading statements, and by failing to disclose or causing Wyeth to fail to disclose material information, concerning the results of a clinical trial involving bapineuzumab, a product in development for the treatment of Alzheimer's disease. The plaintiff seeks to represent a class consisting of all persons who purchased Wyeth securities from May 21, 2007, through July 2008 and seeks damages in an unspecified amount on behalf of the putative class. In February 2012, the court granted the defendants' motion to dismiss the complaint. In March 2012, the plaintiff filed a motion seeking the court's permission to file an amended complaint. In July 2010, a related action was filed in the U.S. District Court for the Southern District of New York against Elan Corporation (Elan), certain directors and officers of Elan, and Pfizer, as successor to Wyeth. Elan participated in the development of bapineuzumab until September 2009. The complaint alleges that Elan, Wyeth and the individual defendants violated federal securities laws by making or causing Elan to make false and misleading statements, and by failing to disclose or causing Elan to fail to disclose material information, concerning the results of a clinical trial involving bapineuzumab. The plaintiff seeks to represent a class consisting of all persons who purchased Elan call options from June 17, 2008, through July 29, 2008, and seeks damages in an unspecified amount on behalf of the putative class. In June 2011, the court granted Pfizer's and Elan's motions to dismiss the complaint. In July 2011, the plaintiff filed a supplemental memorandum setting forth the bases that the plaintiff believed supported amendment of the complaint. In August 2011, the court dismissed the complaint with prejudice. In September 2011, the plaintiff appealed the District Court's decision to the U.S. Court of Appeals for the Second Circuit. No further updates were reported in the Company's latest SEC filing. New York-based Pfizer Inc. is a biopharmaceutical company that discovers, develops, manufactures and delivers quality, safe and effective prescription medicines to treat and help prevent disease for both people and animals. The Company also partners with healthcare providers, governments and local communities around the world to expand access to its medicines and to provide better quality health care and health system support. PFIZER INC: Still Defends Hormone-Replacement Therapy Suits ----------------------------------------------------------- Pfizer Inc. continues to defend itself and its subsidiaries from lawsuits relating to hormone-replacement therapy products, according to the Company's November 9, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2012. Pfizer and certain wholly owned subsidiaries and limited liability companies, including Wyeth and King Pharmaceuticals, Inc., along with several other pharmaceutical manufacturers, have been named as defendants in approximately 10,000 actions in various federal and state courts alleging personal injury or economic loss related to the use or purchase of certain estrogen and progestin medications prescribed for women to treat the symptoms of menopause. Although new actions are occasionally filed, the number of new actions was not significant in the second quarter of 2012, and the Company does not expect a substantial change in the rate of new actions being filed. Plaintiffs in these lawsuits allege a variety of personal injuries, including breast cancer, ovarian cancer, stroke and heart disease. Certain co-defendants in some of these actions have asserted indemnification rights against Pfizer and its affiliated companies. The cases against Pfizer and its affiliated companies involve one or more of the following products, all of which remain approved by the U.S. Food and Drug Administration (FDA): femhrt (which Pfizer divested in 2003); Activella and Vagifem (which are Novo Nordisk products that were marketed by a Pfizer affiliate from 2000 to 2004); Premarin, Prempro, Aygestin, Cycrin and Premphase (which are legacy Wyeth products); and Provera, Ogen, Depo-Estradiol, Estring and generic MPA (which are legacy Pharmacia & Upjohn Company products). The federal cases have been transferred for consolidated pre-trial proceedings to a Multi-District Litigation (In re Prempro Products Liability Litigation MDL-1507) in the U.S. District Court for the Eastern District of Arkansas. Certain of the federal cases have been remanded to their respective District Courts for further proceedings including, if necessary, trial. This litigation consists of individual actions, a few purported statewide class actions and a purported provincewide class action in Quebec, Canada, a statewide class action in California and a nationwide class action in Canada. In March 2011, in an action against Wyeth seeking the refund of the purchase price paid for Wyeth's hormone-replacement therapy products by individuals in the State of California during the period from January 1995 to January 2003, the U.S. District Court for the Southern District of California certified a class consisting of all individual purchasers of such products in California who actually heard or read Wyeth's alleged misrepresentations regarding such products. This is the only hormone-replacement therapy action to date against Pfizer and its affiliated companies in the U.S. in which a class has been certified. In addition, in August 2011, in an action against Wyeth seeking damages for personal injury, the Supreme Court of British Columbia certified a class consisting of all women who were prescribed Premplus and/or Premarin in combination with progestin in Canada between January 1, 1997, and December 1, 2003, and who thereafter were diagnosed with breast cancer. Pfizer and its affiliated companies have prevailed in many of the hormone-replacement therapy actions that have been resolved to date, whether by voluntary dismissal by the plaintiffs, summary judgment, defense verdict or judgment notwithstanding the verdict; a number of these cases have been appealed by the plaintiffs. Certain other hormone-replacement therapy actions have resulted in verdicts for the plaintiffs and have included the award of compensatory and, in some instances, punitive damages; each of these cases has been appealed by Pfizer and/or its affiliated companies. The decisions in a few of the cases that had been appealed by Pfizer and/or its affiliated companies or by the plaintiffs have been upheld by the appellate courts, while several other cases that had been appealed by Pfizer and/or its affiliated companies or by the plaintiffs have been remanded by the appellate courts to their respective trial courts for further proceedings. Trials of additional hormone-replacement therapy actions were underway or scheduled in 2012. The Company says most of the unresolved actions against Pfizer and/or its affiliated companies have been outstanding for more than five years and could take many more years to resolve. However, opportunistic settlements could occur at any time. The litigation process is time-consuming, as every hormone-replacement action being litigated involves contested issues of medical causation and knowledge of risk. Even though the vast majority of hormone-replacement therapy actions concern breast cancer, the underlying facts (e.g., medical causation, family history, reliance on warnings, physician/patient interaction, analysis of labels, actual, provable injury and other critical factors) can differ significantly from action to action, and the process of discovery has not yet begun for a majority of the unresolved actions. In addition, the hormone-replacement therapy litigation involves fundamental issues of science and medicine that often are uncertain and continue to evolve. Key scientific court rulings may have a significant impact on the litigation as a whole. An integral part of the litigation process involves understanding the evolving science, as well as seeking key scientific rulings. The Company does not know how the science may evolve, how the courts will rule on key motions or which unresolved actions will be impacted by these scientific matters. As of September 30, 2012, Pfizer and its affiliated companies had settled, or entered into definitive agreements or agreements-in- principle to settle, approximately 83% of the hormone-replacement therapy actions pending against the Company and its affiliated companies. Since the inception of this litigation, the Company has recorded aggregate charges with respect to those actions, as well as with respect to the actions that have resulted in verdicts against the Company or its affiliated companies, of approximately $1.1 billion. In addition, the Company has recorded aggregate charges of $535 million that provide for the expected costs to resolve all remaining hormone-replacement therapy actions against Pfizer and its affiliated companies, excluding the class actions and purported class actions. The $535 million charges are an estimate and, while the Company cannot reasonably estimate the range of reasonably possible loss in excess of the amounts accrued for these contingencies given the uncertainties inherent in this product liability litigation, additional charges may be required in the future. New York-based Pfizer Inc. is a biopharmaceutical company that discovers, develops, manufactures and delivers quality, safe and effective prescription medicines to treat and help prevent disease for both people and animals. The Company also partners with healthcare providers, governments and local communities around the world to expand access to its medicines and to provide better quality health care and health system support. SPRINT COMMS: Judge OKs $1.4-Mil. Class Action Settlement in Ky. ---------------------------------------------------------------- Brett Barrouquere, writing for The Associated Press, reports that a federal judge has approved a $1.4 million class-action settlement between Kentucky landowners and Sprint Communications, which laid fiber-optic cable on railroad rights of way on their property. U.S. District Judge Thomas B. Russell set a fairness hearing in the case for June 18 at the federal court in Louisville. Attorneys in the case will receive $565,000. The settlement stems from a lawsuit filed in June in federal court in Louisville by multiple landowners accusing Sprint and Qwest Communications of trespassing on their property, digging up the ground and putting the cables in without permission. The settlement, approved on Dec. 21, is similar to deals reached in 46 states where landowners sued Sprint over access to rights of way. Other settlements ranged from $3.1 million in Wisconsin to $5.4 million in Pennsylvania. The landowners accused Sprint of installing fiber-optic cable systems in railroad rights of way under agreements with the railroads possessing those rights. The landowners say Sprint did not notify them that the cables were being installed. The landowners in the Kentucky case and other similar lawsuits across the country alleged that the railroads did not have the right to authorize the installation of fiber-optic cable systems. As part of the settlement, landowners will receive compensation for both current and future damage to their property. In exchange, the telecommunications companies will get a release clearing them of any legal issues arising from the installation and operation of the cables. The landowners will also convey an easement that gives the companies the right to access the land in the future without dispute. The case started out as a national class-action lawsuit based in Illinois. But, after nine years of negotiations and failed settlement talks, the parties agreed to settle the cases on a state-by-state basis. A Sprint spokeswoman Stephanie Vinge said the company has been involved in multiple lawsuits over the right-of-way issue and has settled them state-by-state. "While Sprint continues to believe that the railroads have the right to authorize telecommunications companies to use their right-of-ways, we also are interested in bringing this long- pending litigation to an end," Ms. Vinge said. TOYOTA MOTORS: Settles Acceleration Class Action for $1.1 Bil. -------------------------------------------------------------- 10 News reports that Toyota Motors agreed to pay $1.1 billion to install new safety features and reimburse owners of up to 16 million cars to settle a class-action suit filed by drivers who had problems with unintended acceleration in its cars in 2009- 2010. This is one of the largest lawsuits of its kind, according to Steve Berman, one of the lead plaintiff lawyers. The company said that the settlement will lead to a one-time, $1.1 billion pre-tax charge against fourth quarter earnings to cover the costs. Under the agreement, Toyota will install a brake-override system in cars where floor mats got stuck, leading them to accelerate unintentionally. The company will also set up a fund of $250 million to be paid to former Toyota owners who sold their cars between Sept. 1, 2009, and Dec. 31, 2010, to compensate the owners for the reduced value of the cars from the negative publicity. A separate fund of $250 million will be established to compensate current owners whose vehicles are not eligible for a brake- override system. All 16 million current owners will be eligible for a customer care plan, that will provide a warranty on certain parts tied to unintended acceleration for between three and 10 years. Until these issues, Toyota held the top reputation for vehicle quality and safety. But it has been dogged by significant recall problems over the last three years. It has already announced recalls of more than 10 million vehicles worldwide for various problems so far in 2012. Earlier in December 2012, the car company agreed to pay a record $17.4 million to the National Highway Traffic Safety Administration for problems related to a 2012 recall in one of its Lexus models. That's the largest fine allowed by law for a single investigation. And in November 2012, it recalled 7.43 million cars due to a power window problem that poses a fire risk. Toyota's settlement over accelerator pedals that are sticking coincided with the ABC News and 10News investigations concerning sudden acceleration problems in certain Toyota models. A tragic 2009 crash in Santee off the 125 started the investigation into sudden acceleration. A passenger in the car called 911 saying, "Our accelerator is stuck. We're in trouble. We can't . . . there's no brakes." San Diegan Mark Saylor, an off duty California Highway Patrol officer and his family died after their loaner Lexus ES 350 sped out of control and crashed. After the Santee crash, Toyota issued a recall of 4.2 million cars, saying the floor mats were improperly installed, likely causing the accelerators to get stuck. Then in December 2009, four Texans drowned after their Toyota Avalon allegedly suddenly accelerated, causing the vehicle to drive through a metal fence, into a pond near Dallas. The Avalon's floor mats were in the car's trunk, indicating they couldn't have been the cause of the acceleration. "It's a huge problem that must get solved soon," said auto safety expert Sean Kane who reported seeing 56 incidents of runaway Toyota and Lexus vehicles since the floor mat recall. "It seemed like the more I hit the brake, the more it wanted to accelerate," explained Kevin Haggerty, a New Jersey man who experienced sudden acceleration in his 2007 Toyota Avalon. He shifted into neutral and drove to his Toyota dealership. "They replaced the throttle body and the accelerator pedal assembly," said Mr. Haggerty whose experience showing the Avalon to Toyota dealership staff was the first known sudden acceleration incident to be witnessed by Toyota representatives. In a statement on the acceleration issue in 2012, Toyota spokesman Brian Lyons said: "Toyota takes the issue of unwanted acceleration very seriously, as underscored by our ongoing recall. As part of our commitment to the safety of our customers and the public, Toyota constantly monitors product reports and customer complaints and works to identify any defect trends. We are confident that we're doing the right thing for our customers, and we will continue to do so. We will remain vigilant in thoroughly investigating incidents of unwanted acceleration, including those cited by ABC, and taking appropriate measures to address any defect trends that are identified." VOLKSWAGEN OF AMERICA: Settles Sunroof Class Actions in New Jersey ------------------------------------------------------------------ Rose Bouboushian at Courthouse News Service reports that drivers of Volkswagens and Audis will get $9.2 million as a settlement to their claims over defective pollen filter gasket areas and sunroof drains, a federal judge ruled. John Dewey and Jacqueline Delguercio each led federal class actions against Volkswagen of America Inc. in 2007 over the alleged defects in certain Volkswagen and Audi vehicles. After their claims were eventually consolidated in the District of New Jersey, the parties reached a tentative settlement covering a class of more than 1 million. Five objected to the deal, however, and the 3rd Circuit called for further proceedings to adequately represent all class members. The parties reached a new settlement this summer by adding a "residual group" of VW lessees to the class. After the trial court granted preliminary approval on Aug. 8, the plaintiffs moved for certification of the settlement class and approval of the new agreement, plus attorneys' fees, costs and awards to the class representatives. The objectors also moved for attorneys' fees, costs and an incentive award. U.S. Magistrate Judge Patty Shwartz granted the motions on Dec. 14. "By eliminating the distinction between the 'reimbursement group' and the 'residual group' and treating each class member similarly by allowing each to seek reimbursement for repairs, the new settlement agreement resolves the adequacy problem the third circuit identified," the 44-page ruling states. "The named plaintiffs are now in the same position as all other class members because each of them owned or leased the subject vehicles that contained the allegedly defective plenum or sunroof drain system, received allegedly inadequate maintenance recommendations and, as a result, suffered the same injury." Objectors cannot sustain claims that the new settlement does not compensate vehicle owners who have not yet had repairs performed. "To the extent the objector objects because he believes compensation should be provided even where the class member expended no money to repair damage, the objection does not require rejecting the settlement," Judge Shwartz wrote. "Allowing compensation for those who actually incur an expense is a reasonable remedy, but permitting those who expended no funds to obtain money would be tantamount to an impermissible windfall." Class members receive the required benefits under the deal, according to the ruling. "Under the settlement's terms, all class members receive educational preventative maintenance materials, including mailings that recommend inspections and cleaning of the sunroof and plenum drain systems," she wrote. "All class members are eligible to receive full reimbursement from a non-exhaustible $8 million fund for expenses incurred for '[r]eimbursable [r]epairs for cleaning, drying, or replacement of carpeting, including padding, and/or repair or replacement' of affected vehicle components." The court awarded more than $9.8 million in attorneys' fees and costs, $10,000 each to nine class representatives, $86,000 to the Center for Class Action Fairness, $25,000 to objector Gary Sibley, and $500 each to three other objectors. A copy of the Complaint in Dewey, et al. v. Volkswagen of America, et al., Case No. 07-cv-02249 (D. N.J.), and in Delguercio, et al. v. Volkswagen of America, et al., Case No. 07-cv-02361 (D. N.J.) (Shwartz, Mag.), is available at: http://www.courthousenews.com/2012/12/24/Volkswagen.pdf WELLS FARGO: 9th Cir. Lifts Injunction, Vacates $203MM Restitution ------------------------------------------------------------------ Tim Hull at Courthouse News Service reports that the United States Court of Appeals for the Ninth Circuit on Dec. 26 lifted an injunction against Wells Fargo's use of the "high-to-low" method of posting customers' debit card purchases, which a California class action claims brings billions of dollars in fees to the bank at the expense of regular customers. Finding that federal banking laws supersede the state unfair business practices statute under which the class sued, the federal appeals court in San Francisco unanimously vacated a lower court's injunction and let Wells Fargo off the hook for $203 million in restitution. After paying hundreds of dollars in fees on relatively small overdrafts, lead plaintiffs Veronica Gutierrez and Erin Walker sued the bank to get their money back and stop the "high-to-low" practice, which Wells Fargo started in California more than a decade ago. "Beginning in April of 2001, Wells Fargo did an about-face in California and began posting debit-card purchases in order of highest-to-lowest dollar amount," the ruling states. "This system had the immediate effect of maximizing the number of overdrafts. The customer's account was now depleted more rapidly than would be the case if the bank posted transactions in low-to-high order or, in some cases, chronological order." Wells Fargo Bank made about $1.4 billion in overdraft fees between 2005 and 2007, according to the court. After a bench trial in San Francisco, U.S. District Judge William Alsup ruled for the plaintiffs, essentially finding that the bank had instituted the method simply to get more of its customers' money. Judge Alsup enjoined the "high-to-low" method, but he did so without jurisdiction, according to the 9th Circuit. "The ability to choose a method of posting transactions is not only a useful, but also a necessary, component of a posting process that is integrally related to the receipt of deposits," wrote Judge M. Margaret McKeown for the panel. "Designation of a posting method falls within the type of overarching federal banking regulatory power that is 'not normally limited by, but rather ordinarily pre-empt[s], contrary state law.'" The plaintiffs may yet win something, however. Since federal law does not preempt "California consumer law with respect to fraudulent or misleading representations concerning posting," the panel remanded that portion of the case back to the District Court for another look. "Although the court cannot issue an injunction requiring the bank to use a particular system of posting or requiring the bank to make specific disclosures, it can enjoin the bank from making fraudulent or misleading representations about its system of posting in the future," Judge McKeown wrote, adding that "Restitution is available for past misleading representations." A copy of the Opinion in Gutierrez, et al. v. Wells Fargo Bank, NA, Nos. 10-16959, 10-17468 and 10-17689 (9th Cir.) (McKeown, J.), is available at http://is.gd/qA2Dui ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Noemi Irene A. Adala, Joy A. Agravante, Ivy B. Magdadaro, Julie Anne L. Toledo, Christopher Patalinghug, Frauline Abangan and Peter A. Chapman, Editors. Copyright 2013. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000 or Nina Novak at 202-241-8200. * * * End of Transmission * * *