/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/130115.mbx C L A S S A C T I O N R E P O R T E R Tuesday, January 15, 2013, Vol. 15, No. 10 Headlines A-PLUS MARINE: Recalls 40 High-Pressure Scuba Diving Air Hoses BRITISH COLUMBIA LOTTERY: Gamblers' Class Action Gets Green Light BRP MEXICO: Recalls 3,400 Can-Am(R) Commander Side-By-Side Cars CANADA: Settles SISIP Long-Term Disability Class Action CELERA CORP: Del. Supreme Court Addresses Class Action Settlement DEERE & CO: Recalls 4,650 Gator Utility Vehicles Due to Fire Risk GIANT FOOD: Recalls Varieties of Ocean Beauty Smoked Salmon HEWLETT-PACKARD CO: Judge Tosses Bid to Dismiss Suit Over Laptops PFIZER INC: Lawyers Lose Bids for Adverse Inference Rulings RITE AID: Judge Approves $20.9-Million Class Action Settlement TOYOTA MOTOR: Judge Dismisses Prius Brakes Class Action UNITED STATES: Still Fighting Veterans' "Guinea Pig" Class Action * Judicial Fact-Finding Increasing in Class Certification Hearings * Supreme Court Tackles Issue on Class Action Fairness Act ********* A-PLUS MARINE: Recalls 40 High-Pressure Scuba Diving Air Hoses -------------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with A-Plus Marine Supply, Inc., of Gulf Breeze, Florida, announced a voluntary recall of about 40 high-pressure scuba diving air hoses. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The diving hose that connects the regulator to the tank's pressure gauge can separate reducing the available air supply to the diver, posing a drowning hazard. A-Plus has received three reports of hoses separating. No injuries have been reported. The recalled air hoses are high-pressure scuba air hoses with a black, smooth rubber outer covering. They are about half a centimeter in diameter and 32 or 36 inches long. These hoses connect the regulator to the tank pressure gauge. The phrase "Scuba Diving High Pressure hose I.D. 3/16" (4.76 mm) W.P. 5000 PSI Exceeds SAE 100RT braid with Kevlar fiber from Dupont" is printed in white lettering on the hose's outer covering. The hoses have metal fittings on each end. "CE EN 250 230" is stamped on the female side of the fitting and "12Q1" on the male side. Pictures of the recalled products are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml13/13090.html The recalled products were manufactured in Taiwan and sold at scuba diving retailers nationwide from April 2012 through June 2012 for about $34. Consumers should immediately stop using the hoses and contact A- Plus Marine for a free replacement hose. A-Plus Marine may be reached at (800) 352-2360, from 9:00 a.m. to 5:00 p.m. Pacific Time Monday through Friday, or online at http://www.aplusmarine.com/and click on the recall notice on High Pressure Braided Hose Safety Recall. Consumers can also send an e-mail to eric@aplusmarine.com for more information. BRITISH COLUMBIA LOTTERY: Gamblers' Class Action Gets Green Light ----------------------------------------------------------------- Keven Drews, writing for The Canadian Press, reports that two problem gamblers who enrolled in a program that barred them from government-run casinos can go ahead with a class-action lawsuit to try to get their winnings back, says a B.C. Supreme Court judge. In a ruling released on Jan. 9, Judge John Savage said the proceedings could resolve common issues raised by Michael Lee and Hamidreza Haghdust who argue the British Columbia Lottery Corp. "wrongfully withheld" approximately C$42,000 and C$35,000 they won, respectively, while participating in the voluntary self- exclusion program. The program allows problem gamblers to register so they're barred from the corporation's facilities for a specific period of time. While he didn't rule on the substance of the lawsuits, Judge Savage also said an identifiable class of two or more people exists, and a plaintiff is available to represent the interests of the class. "A class proceedings is the preferable procedure for the fair and efficient resolution of these common issues," he said. According to the court document, the men have problems controlling their gambling urges, and each registered for the program, with the first one-year term beginning in 2006 and the second three- year term beginning in 2007. Both signed the voluntary-exclusion form, which at the time did not include any provisions that notified registrants they would forfeit any winnings, according to Judge Savage's ruling. Despite signing the forms, the men continued to gamble at corporation facilities, with Mr. Haghdust losing about C$200,000 and Lee losing about C$30,000. On Sept. 25, 2009, Mr. Haghdust won a C$15,000 jackpot at a Coquitlam, B.C., casino, and on June 15, 2010, he won C$20,028 at a casino in Vancouver. Meantime, Mr. Lee won a $42,484 jackpot at a casino in Duncan, B.C., on Jan. 10, 2010. Even before he won his first jackpot, Mr. Haghdust was excluded from corporation facilities nine separate times, states the court document, and between Aug. 6, 2010 and the expiry of his second exclusion term, he was removed from corporation facilities five more times. Mr. Lee was asked to leave a casino once before he won his jackpot. Their lawyer, Paul Bennett, said the exclusion program is flawed because it allowed his clients to lose, but never win. "That's why it's a penalty. People come into the casino, they gamble, they lose their money, but when they win they can't win." Mr. Bennett expects the corporation will likely appeal the certification decision. A date has yet to be set for the next court appearance, but Judge Savage has asked the plaintiffs to develop a case-management plan to move the action forward. The ruling noted that between June 4, 2010, and July 4, 2012, the corporation withheld 187 jackpot prizes from program participants. According to Vancouver Sun's Kim Bolan and Mike Hager, Judge Savage said in his reasons, released on Jan. 9: "The class definition is appropriate and includes only those who have a common interest in determining whether the defendant's withholding of Jackpot prizes was a breach of contract or an unconscionable trade act or practice." Lawyers for the two have said there are many more people in a similar situation as their two clients, having signed agreements under BCLC's VSE Program, but have entered casinos and spent large amounts of cash only to be deprived of subsequent prizes. And they say that the BCLC has kept the money spent by their clients and others in the program, yet then denies them their winnings. Winners must at BCLC casinos must produce government ID to receive payouts for transactions over C$9,000, regardless of which game they play. Between April 1, 2009, and June 3, 2010, jackpots were withheld from 105 VSE participants on 113 different occasions, according to BCLC data in the lawsuit. Between June 4, 2010, and July 4, 2012, a total of 187 jackpots were withheld from VSE participants, according to the same data. The lottery corporation's "jackpot disentitlement" rule was properly and lawfully enacted under the Gambling Control Act, according to spokeswoman Laura Piva-Babcock. "The jackpot disentitlement rule is intended as a deterrent for self-excluded people," Ms. Piva-Babcock stated in an e-mail. "External reviews of our VSE program have highlighted the need for disincentives such as these. "BCLC does not plan to appeal the certification decision." Irwin M. Cohen of the B.C. Centre for Social Responsibility at the University of the Fraser Valley said the VSE program doesn't promise to stop one's gambling or to always keep one out of a casino: "it's an agreement." He was lead author of a 2011 study of BCLC's VSE program that found one-third of the 169 study participants tried to gamble while excluded, and as many as 70 per cent of those attempts were successful. Getting into a casino when banned is not very difficult, Mr. Cohen said. Mr. Cohen's study found that detection methods such as facial-recognition software -- which BCLC is now testing -- are unreliable, and that banned gamblers are often only caught when they try to cash in their winnings. BCLC has been using license plate recognition software to help detect self-excluded people since 2009. "(There are) people who 10, 15, 20 times a day with disguises are trying to sneak into a casino," Mr. Cohen said. "Do we really think, given the current state of technology and the tools that are available, the BCLC (is) going to be successful 100 per cent of the time in detecting that person?" The only way to successfully stop all VSE participants from gambling at BCLC casinos would be to screen every patron at the door for ID Cohen said. While mandatory screening is the norm in countries like South Korea, Mr. Cohen said it is something "we probably wouldn't tolerate in our society." Mr. Cohen recommends using a sliding scale for the consequences imposed on banned gamblers who are caught in a casino and removing chronic offenders from the program altogether to seek addictions treatment. Last October a North Delta woman filed a lawsuit against the BCLC and two local casinos in the Supreme Court of Canada, claiming that due to the negligence of the BCLC and casino operators, she was able to enter casinos and gamble away C$331,000, despite putting herself in the VSE program. The voluntary program was implemented in 2009 and is generally used by problem gamblers. As of press time, BCLC did not respond to The Sun's request for the number of VSE participants. The BCLC has not yet responded to the ruling. BRP MEXICO: Recalls 3,400 Can-Am(R) Commander Side-By-Side Cars --------------------------------------------------------------- About 3,400 Can-Am(R) Commander side-by-side off-road vehicles were voluntarily recalled by BRP Mexico S.A. de C.V., of Juarez, Chihuahua, Mexico, in cooperation with the U.S. Consumer Product Safety Commission. Consumers should stop using the product immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. Improper assembly of the steering column to the rack and pinion can result in the loss of steering control, posing a risk of serious injury or death to the user, passenger or bystanders. The firm has received three reports of loss of steering. No injuries have been reported. This recall includes the following serial numbers of 2011 and 2012 Can-Am Commander side-by-side vehicles. The model name is printed on the vehicle's side panel. Models included in the recall are: Model Year 2011 Model Year 2012 --------------- --------------- Can-Am Commander Can-Am Commander 800 and 1000 800 and 1000 Can-Am Commander XT Can-Am Commander XT 800 and 1000 800R and 1000 Can-Am Commander X 1000 Can-Am Commander X 1000 Can-Am Commander Limited 1000 Picture of the recalled products is available at: http://www.cpsc.gov/cpscpub/prerel/prhtml13/13718.html The recalled products were manufactured in Mexico and sold at Can- Am dealers nationwide from April 2011 through December 2012 for between $11,700 and $21,000. Consumers should immediately stop using the recalled vehicles and contact a BRP dealer to schedule a free repair. BRP has notified registered consumers directly about this recall. BRP may be reached toll-free at (888) 638-5397 from 8:00 a.m. to 6:00 p.m. Eastern Time Monday through Friday, or online at http://www.canamoffroad.com/and click on "Recall Information" under the Owner Center for more information. CANADA: Settles SISIP Long-Term Disability Class Action ------------------------------------------------------- The Honourable Peter MacKay, Minister of National Defence, on Jan. 9 disclosed that, pending court approval, the Government of Canada, through the Department of Justice, and the counsel for members of the class action have concluded discussions to resolve the issues raised in the class action of Dennis Manuge v. Her Majesty The Queen. "The well-being of both our serving and retired members is very important for the Government of Canada," said Minister MacKay. "Acting quickly and fairly to resolve this matter is of the utmost importance, and I am pleased an agreement in principle has been reached." On Jan. 9, the Federal Court approved a notice to inform the class members that an agreement in principle had been reached regarding the reduction of Pension Act disability benefits from SISIP Long Term Disability benefits. A Federal Court hearing for approval of the agreement will be held on February 14, 2013 in Halifax. The Canadian Forces Long Term Disability Income Replacement program is a disability group insurance plan administered by SISIP Financial Services that provides Canadian Armed Forces members with replacement income protection and vocational rehabilitation if they are released from the Canadian Armed Forces for medical reasons or take a voluntary release but qualify as being totally disabled. Class Counsel with the SISIP Long Term Disability Class Action has reached a proposed agreement with the Government of Canada and is now available for review by class members. The proposed agreement still requires review and approval by the Court. The following overview is a summary only. For full details of the settlement, including the Court approved Notice to the Class, and the history of the litigation, please visit http://www.leavenovetbehind.ca Proposed Agreement The estimated total value of the proposed settlement is up to $887.8 million. This includes $424.3 million in retroactive payments, which in turn includes $82.6 million in interest. The proposed agreement includes: -- Full retroactive payments dating back to 1976, including interest; -- Future payments; and -- Access to a $10 million Scholarship Fund for Class Members or their family members. As well, Class Counsel will donate $1 million to a charity for support of access to justice initiatives for veterans, and $50,000 to lead plaintiff Dennis Manuge for all the work he has done in advancing this case on behalf of all veterans. History of the Class Action Under the terms of the SISIP LTD Plan, a disabled former Canadian Forces member's benefits were reduced by the amount of their Pension Act disability pension. The Plaintiff, Dennis Manuge, brought this class action to challenge the legality of the Offset. The Supreme Court of Canada approved the case going forward as a class action on December 23, 2010. The Federal Court ruled that the Offset was not permitted under the SISIP LTD Plan on May 1, 2012. The Defendant did not appeal. Since then, the Plaintiff and the Defendant have been in negotiations over how the Offset should end, how past Offset amounts should be refunded, and other key details. The Plaintiff and the Defendant have now reached an agreement on these points that are contained in a proposed draft order. Timeline June 1, 1976 - The Offset begins. The Offset will go to affect over 7,500 disabled CF veterans. October 30, 2003 - then DND and CF Ombudsman Andr� Marin issues his special report Unfair Deductions from SISIP Payments to Former CF Members. November 7, 2006 - the majority of House of Commons members voted in support of a non-binding motion to end the Offset. March 2007 - Dennis Manuge files his action. This is the first legal challenge to the Offset, which has been in effect for over 30 years. March 5, 2008 - the then-Minister of Veterans Affairs, the Honourable Greg Thompson testified "[i]f I attempted to make anyone believe we will be changing it, I would not be telling the truth." May 20, 2008 - Federal Court certifies Mr. Manuge's action as a class action holding that it was "ideally suited to certification as a class action". February 3, 2009 - Federal Court of Appeal allows the Government's appeal and de-certifies the class action. December 23, 2010 - Supreme Court of Canada unanimously allows Mr. Manuge's appeal and re-certifies the class action. May 1, 2012 - Federal Court rules that the SISIP LTD Policy does not permit the Offset. July-Dec. 2012 - The parties undertake comprehensive negotiations to resolve the remaining issues. October 1, 2012 - The New Veterans Charter Regulations no longer deduct the Pension Act disability pension from the Earnings Loss Benefit and Canadian Forces Support Benefits. This is known as the "Manuge Effect". November 2012 - The Department of Finance Canada amends its budget projections to account for an additional $1.9 billion in additional benefits as a result of this case. Proposed Fees Class Counsel is proposing a fee structure that is projected to be approximately 7.5% of the total value of the settlement. For full details on the fee mechanism, please review the court approved notice at http://www.leavenovetbehind.ca The Court has the final say on Class Counsel fees. What Happens Now Class Members have the right to file a formal letter of support or objection to the proposed agreement and/or fees, which will be considered by the Court at the hearing. A hearing for final approval of the Agreement will be held at 9:30 a.m., February 14, 2013, at the Law Courts at 1815 Upper Water Street, Halifax, Nova Scotia. The Court will be asked to find that the Agreement is fair, reasonable, and in the best interests of the Class Members, and to approve the percentage proposed to be paid for fees, expenses, and taxes. For further details and information please refer to http://www.leavenovetbehind.ca CELERA CORP: Del. Supreme Court Addresses Class Action Settlement ----------------------------------------------------------------- According to Wilson Sonsini Goodrich & Rosati, in the final days of 2012, the Delaware Supreme Court resolved an appeal arising out of class action litigation concerning the sale of Celera Corporation to Quest Diagnostics, Inc. The litigation was settled by agreement of the lead plaintiff and the defendants, and the settlement was approved by the Delaware Court of Chancery over the objection of Celera's largest single stockholder. In its en banc decision, the Delaware Supreme Court affirmed the Vice Chancellor's decision to approve the settlement and certify a non- opt-out class. But, because of "facts and circumstances" raising "due process concerns," the court held that the objector should have been allowed to opt out of the non-opt-out class. Though permitting a shareholder to opt out of a settlement resolving class action deal litigation is fundamentally at odds with the nature of a "non-opt-out" class -- and undermines the rationale behind settling this sort of litigation -- the law firm does not believe that the court intended to dramatically alter the state of Delaware law on class actions. Instead, the law firm believes that the court's decision was motivated by the extremely unusual facts in this case -- in particular, the misdeeds of the lead plaintiff prior to the approval of the settlement. Background In 2009, Celera, a healthcare business, began exploring its strategic options. With the help of its advisors, Celera identified and reached out to several potential bidders, including Quest. The process was lengthy and troubled, with one potential transaction falling apart, disputes with Celera's CEO, and a financial restatement all contributing to delays and difficulties. In 2011, BVF Partners LP, one of Celera's largest stockholders, made public its disagreement with the board's strategy for selling the company. Ultimately, however, Celera's board agreed to a transaction with Quest at $8.00 per share. Stockholder litigation, filed by the New Orleans Employees' Retirement System (NOERS), swiftly followed the announcement of the proposed transaction. Equally swift was BVF's public opposition to the deal. As NOERS conducted discovery, BVF bought more stock -- eventually acquiring more than 20 percent of the company -- and voiced concerns that the deal price was too low. In the litigation, NOERS also argued that the deal price was unreasonably low, but the bulk of its allegations -- like the allegations in most cases challenging mergers -- centered on the process that Celera's board employed and the terms to which it agreed. NOERS sought an injunction blocking the stockholder vote on the merger. Before the court heard the injunction motion, NOERS and the defendants signed a memorandum of understanding (MOU) settling the case. In exchange for a full release of all claims against them -- those asserted and those that could have been asserted, including potential claims for monetary damages -- the defendants agreed to modify the deal terms and to issue more disclosures to Celera's stockholders. With the MOU in place, the merger closed on May 17, 2011. Days before, however, with rumors in the market that BVF's efforts to push for a better deal might succeed, the stock price of Celera exceeded the merger price. NOERS took advantage of this arbitrage opportunity, and sold all of its stock. Thus, NOERS was not a stockholder at the time the merger closed. The Court of Chancery's Decision Roughly 10 months later, when the settlement came to the Delaware Court of Chancery for approval, BVF objected. In particular, BVF argued that the settlement was unfair and that, in any event, NOERS was an inadequate representative of the stockholders because it sold its stock before the merger closed and the settlement was approved. BVF asked that, if the court did approve the settlement, it be permitted to opt out of the settlement class so that it could pursue its own money damages action against the defendants. The Court of Chancery rejected BVF's arguments. It concluded that the settlement was fair to the stockholders, and it certified the class as defined in the settlement agreement: "[a]ny and all record holders and beneficial owners of share(s) of Celera common stock who held any such share(s) at any time [between February 3, 2010, and May 17, 2011, inclusive], but excluding the Defendants." As is customary in this sort of litigation, the Court of Chancery certified a non-opt-out class, meaning those within the class definition were not free to forego the settlement consideration in order to pursue individual claims. Correspondingly, the Court of Chancery refused to allow BVF to opt out of the non-opt-out class. The Vice Chancellor, however, criticized the "substandard behavior" of NOERS in its "careless and cavalier" sale of its stock before the merger. Despite this, the Court of Chancery concluded that "NOERS still satisfies, if only barely, the requirement for an appropriate class representative." The Delaware Supreme Court's Decision The Delaware Supreme Court largely affirmed the Vice Chancellor's decision. With respect to the adequacy of NOERS as the class representative, the court looked closely at the class definition and held that NOERS had standing because it met that definition -- it owned stock at the time of the alleged wrongdoing. The court determined that the Vice Chancellor did not abuse his discretion in determining that NOERS could adequately represent the class. The court also affirmed the Court of Chancery's certification of the class on a non-opt-out basis. Writing for the court, Justice Henry DuPont Ridgely reaffirmed the longstanding rule that "actions challenging the propriety of director conduct in carrying out corporate transactions are properly certifiable under both subdivisions (b)(1) and (b)(2)" of Rule 23 -- i.e., on a non-opt- out-basis -- and his opinion stressed that the mere "availability of potential damages alone does not automatically require certification under Rule 23(b)(3)" -- i.e., with an opt-out right. Nevertheless, the Delaware Supreme Court did conclude that the Court of Chancery abused its discretion by refusing to allow BVF to opt out of the non-opt-out class in order to pursue its own individual damages action. Despite the absence of any textual basis in the class certification rule or other statute, the Delaware Supreme Court concluded that "the Court of Chancery has the discretionary power to grant opt-out rights to members of a [non-opt-out] class when fairness and equity demand it." Here, though the defendants argued strenuously that they only agreed to settle the case in exchange for the "complete peace" afforded by a non-opt-out class settlement, the court held that this interest was "outweighed by the due process concerns." The Delaware Supreme Court seemed particularly troubled because by the time the settlement came to the Court of Chancery for approval, the only claims that remained to be released were those for monetary damages; the other claims -- those seeking to stop the merger -- were moot, as the merger already had been consummated. The court concluded that this, combined with other "facts and circumstances" such as a "barely adequate class representative" and an objector who was "a significant shareholder prepared independently to prosecute a clearly identified and supportable claim for substantial money damages," was enough to merit an exception to the non-opt-out class. Consequently, the court held that BVF must be permitted to pursue its individual claims. Implications The Delaware Supreme Court's decision to allow a stockholder to opt out of a non-opt-out class is deeply troubling. Delaware courts -- and federal and state courts throughout the country -- certify non-opt-out classes in situations where a case concerns conduct that affects all members of the class in precisely the same way. Where all plaintiffs are situated in exactly the same fashion, courts have reasoned that separate litigations would subject the defendants to the risk of different standards of conduct with respect to the same action and waste limited judicial resources. Non-opt-out classes prevent these risks from coming to fruition. Allowing opt-outs from non-opt-out classes quite obviously undermines the very point of the procedural device, rendering the path to settlements of litigation even more problematic. The law firm believes, however, that the Delaware Supreme Court's decision here will be limited to its unusual facts. For years, the Delaware Court of Chancery and the Delaware Supreme Court consistently and forcefully have held that litigation challenging the conduct of directors in connection with corporate mergers is properly certifiable on a non-opt-out class basis. The fact that stockholder plaintiffs may seek damages in addition to equitable relief does not change this conclusion, as the courts have held time and time again. As Chancellor Leo Strine previously has reasoned, unlike other types of tort class actions seeking damages, "[i]n challenges to corporate mergers brought on behalf of the stockholders not affiliated with the defendants, it is virtually never the case that there is any legitimate basis that a defendant might be found liable to some plaintiffs and not to others. Rather, the actions involve a challenge to a single course of conduct by the defendants that affects the stockholder class equally in proportion to their ownership interest in the enterprise." Nothing in the Delaware Supreme Court's decision in Celera challenges or disagrees with this well-established rule. To the contrary, the court expressly reaffirmed that challenges to corporate mergers should be litigated via non-opt-out classes. The law firm believes that the court's decision to allow BVF an exception here was motivated by (a) the unusually large size of BVF's position in Celera and (b) the unusually bad pre- certification conduct of NOERS, the class representative. Barring repetition of these unusual facts, the law firm expects the Court of Chancery and the Delaware Supreme Court to continue their venerable and established practice of certifying challenges to corporate mergers as non-opt-out class actions. DEERE & CO: Recalls 4,650 Gator Utility Vehicles Due to Fire Risk ----------------------------------------------------------------- About 4,650 Utility Vehicles were voluntarily recalled by Deere & Company of Moline, Illinois, in cooperation with the U.S. Consumer Product Safety Commission. Consumers should stop using the product immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The fuel line can separate, posing a fire hazard. John Deere has received three reports of separated fuel lines. No injuries have been reported. This recall involves John Deere Gator(TM) RSX850i Base, Sport and Trail model recreational utility vehicles manufactured between May 2012 and October 2012. They have side-by-side seating for two people and were available in Realtree(R) Hardwoods(TM) HD Camo, olive and black, or traditional green and yellow. RSX850i is located on the hood. The serial number is on the rear frame above the receiver hitch. Only utility vehicles with the following serial numbers are included in this recall: Serial Numbers: --------------- 1M0850TB++M010013 thru 1M0850TB++M010768 1M0850TS++M010001 thru 1M0850TS++M011932 1M0850TT++M010001 thru 1M0850TT++M012765 Pictures of the recalled products are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml13/13717.html The recalled products were manufactured in the United States of America and sold at John Deere dealers nationwide from August 2012 through October 2012 for between $12,900 and $15,500. Consumers should stop using the recalled utility vehicles and contact a John Deere dealer to schedule a free inspection and free repair. John Deere is contacting all registered owners of the recalled utility vehicles directly. Deere and Company may be reached at (800) 537-8233, from 8:00 a.m. to 6:00 p.m. Eastern Time Monday through Friday, and Saturdays from 9:00 a.m. to 3:00 p.m. Eastern Time or http://www.johndeere.com/and click on Services & Support for more information. GIANT FOOD: Recalls Varieties of Ocean Beauty Smoked Salmon ----------------------------------------------------------- GIANT Food Stores, LLC, and MARTIN'S Food Markets, following a recall by Ocean Beauty Seafoods LLC, announced it removed from sale several varieties of smoked salmon due to possible contamination by listeria monocytogenes. The following products are included in this recall: * Nathan's Nova Salmon, 3 oz., UPC 7303080368, all sell by dates * Nathan's Nova Salmon, 8 oz., UPC 7303080369, all sell by dates * Lascco Smoked Salmon, 3 oz., UPC 7284001703, all sell by dates The Company has received no reports of illnesses to date. Customers who have purchased the product should discard any unused portions and bring their purchase receipt to GIANT/MARTIN'S for a full refund. Listeria is a common organism found in nature. Consumption of food contaminated with Listeria monocytogenes can cause listeriosis, an uncommon but potentially fatal disease. Healthy people rarely contract listeriosis. However, listeriosis can cause high fever, severe headache, neck stiffness and nausea. Listeriosis can also cause miscarriages and stillbirths, as well as serious and sometimes fatal infections in those with weakened immune systems, such as infants, the elderly and persons with HIV infection or undergoing chemotherapy. Consumers looking for additional information on the recall may call Ocean Beauty Seafood customer service at 1-800-368-7699. In addition customers may call GIANT/MARTIN'S Customer Service at 1- 888-814-4268 for more information. Customers can also visit the GIANT/MARTIN'S Web site at http://www.giantfoodstores.com/or http://www.martinsfoods.com/ About GIANT/MARTIN'S Headquartered in Carlisle, Pennsylvania, GIANT/MARTIN'S operates nearly 200 grocery stores in Pennsylvania, Maryland, Virginia and West Virginia, under the names of GIANT Food Stores and MARTIN'S Food Markets. GIANT/MARTIN'S employs more than 31,000 associates. Founded in 1923, GIANT and MARTIN'S have a long-standing commitment to eradicate hunger and improve the quality of life for children in addition to working with hundreds of local organizations annually. The company was recognized for its leadership in the fight against hunger with the Golden Grocer Award by the U.S. Department of Agriculture. In addition, GIANT/MARTIN'S is one of the top ten fund-raisers in the country for local Children's Miracle Network hospitals. GIANT and MARTIN'S are Ahold companies. For more information visit http://www.GiantFoodStores.com/and http://www.MartinsFoods.com/. Find the Company on Facebook at http://www.facebook.com/giantfoodstores/and http://facebook.com/martinsfoods/ HEWLETT-PACKARD CO: Judge Tosses Bid to Dismiss Suit Over Laptops ----------------------------------------------------------------- Beth Winegarner, writing for Law360, reports that a California federal court judge on Jan. 9 shot down Hewlett-Packard Co.'s bid to dismiss a potential class action, saying the plaintiff had been specific enough in arguing a built-to-order laptop he bought online couldn't use a dual-band wireless card despite HP's claims that it could. Hewlett Packard had argued that Ned Karim's lawsuit failed to show that he had seen a statement on the company's Web site claiming the laptop would run dual-band wireless, or that he had relied on a statement like this when he purchased it. PFIZER INC: Lawyers Lose Bids for Adverse Inference Rulings ----------------------------------------------------------- Jan Wolfe, writing for The Litigation Daily, reports that with a long-running securities fraud class action against Pfizer over the drugs Celebrex and Bextra finally lurching toward trial, both Pfizer's lawyers at Simpson Thacher and DLA and their opposing counsel at Grant & Eisenhofer have lost bids for adverse inference rulings based on alleged misconduct. RITE AID: Judge Approves $20.9-Million Class Action Settlement -------------------------------------------------------------- The Legal Intelligencer reports that a federal judge in Pennsylvania has approved a $20.9 million settlement resolving 14 class and collective actions brought across the country against Rite Aid over allegations the drugstore chain improperly designated assistant store managers and co-managers as exempt employees not eligible for overtime pay. TOYOTA MOTOR: Judge Dismisses Prius Brakes Class Action ------------------------------------------------------- Edvard Pettersson, writing for Bloomberg News, reports that Toyota Motor Corp. won a judge's ruling blocking a class-action lawsuit by owners of Prius and Lexus models who sued over a 2010 recall to install a software update that fixed a concern with the cars' anti-lock braking system. U.S. District Judge Cormac Carney in Santa Ana, California, on Jan. 9 denied a request by four car owners to represent other owners of a 2010 Prius or a 2010 Lexus HS 250h in California, saying that three of the four plaintiffs as well as the substantial majority of the purported class never suffered any injury from the alleged defect. The judge also granted Toyota's request to throw out the claims of one of the four named plaintiffs, saying that he had not suffered any injury as the result of his anti-lock braking system "unreasonably extending the time and distance required to stop the vehicle" and that he had no problems with his Prius after the software update. "After nearly three years of litigating this matter, we are pleased the court agrees that that no class exists and that plaintiffs are not entitled to any classwide relief in light of Toyota's swift and effective market action to address its customers' concerns," Celeste Migliore, a spokeswoman for Torrance, California-based Toyota Motor Sales USA, said in an e-mailed statement. Carney said in a separate order that he had "seriously doubt" that two of the other three named plaintiffs could prevail on their claims because, he said, they suffered no injury. The judge said lawyers for the fourth named plaintiff, who blames a car accident on his Prius's brakes, should file a proposed trial date. Karin Fisch, a lead lawyer for the plaintiffs, didn't immediately return a call to her office after regular business hours on Jan. 9 seeking comment on the rulings. The case is In re Toyota Motor Corp. Hybrid Brake Marketing, Sales, Practices and Products Liability Litigation, 10-02172, U.S. District Court, Central District of California (Santa Ana.) UNITED STATES: Still Fighting Veterans' "Guinea Pig" Class Action ----------------------------------------------------------------- United Press International reports that the U.S. Defense Department continues to fight claims that it owes medical care to veterans who were used in Cold War-era drug experiments. According to UPI, Courthouse News Service reported that in a 77- page filing, the Departments of Defense and the Army said they oppose the defendants' request for a partial summary judgment in the case. Vietnam Veterans of American filed a class-action suit in 2009 charging that at least 7,800 soldiers were used as guinea pigs in an experiment known as Project Paperclip. The soldiers said they were administered hundreds of drugs ranging from deadly Sarin to LSD for a study of substances to control human behavior. Some soldiers died as a result and other suffered seizures and paranoia, the veterans said. In September, U.S. District Judge Claudia Wilken granted the plaintiffs class action status making thousands of veterans eligible for relief. "Although plaintiffs have styled much of this lawsuit as one challenging agency delay in the performance of a discrete legal obligation, it is undisputed that the government has engaged in decades-long efforts to reach out to test participants and assess their health," said attorney Joshua Gardner for the Justice Department. A ruling on the request for a partial summary judgment in the case is scheduled for March 14. * Judicial Fact-Finding Increasing in Class Certification Hearings ------------------------------------------------------------------ Peter S. Bauman, Esq., at Tharpe & Howell, LLP, wrote on Jan. 8, 2013, for California Business Law Report that class action certification under the Federal Rules of Civil Procedure ("FRCP") only permit a class action if, among other things, "there are questions of law or fact common to the class." (FRCP 23) This means that trial judges in US District courts are often called upon to determine whether common questions of law or fact exist. But examining these issues often means that judges are not only determining whether common questions exist for class certification purposes, but also determining important factual matters that should be resolved on the merits as part of a jury trial. The 1974 US Supreme Court decision in Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974) set what seemed to be a bright line regarding inappropriate overlap when it noted the following: "We find nothing in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action." But later cases have extended the boundaries, causing one commentator to recently note that "[t]he long-term effect has been to elevate a pre-trial procedure intended to help judges approximate the boundaries of a class action into a premature trial on the merits held in the absence of a jury." Defense counsel often use class certification to defeat the maintenance of a class action under the divide and conquer strategy, even if it means facing multiple lawsuits. If maintenance of a class action can be defeated, while simultaneously disposing of factual issues that could prove troublesome at trial, all the better. But the US Supreme Court on November 5, 2012 heard oral argument in two cases related to fact finding during class certification which might bring greater clarity as to where the line must be drawn. One of the cases, Amgen v. Connecticut Retirement Plans and Trust Funds, No. 11-1085 [Transcript of Oral Argument here], asks whether plaintiffs in certain securities fraud cases "must prove materiality before they can proceed with a class action, and whether the defendants are permitted to present evidence rebutting a fraud-onthe-market theory at the class certification stage." The trend of using class certification as a means of effectively resolving factual issues on the merits, as well as any limits imposed on this practice by the Supreme Court in its pending cases, will have an undeniable impact on class action litigation moving forward, and could spill over into consideration of other pre-trial issues in nonclass action litigation as well. * Supreme Court Tackles Issue on Class Action Fairness Act ---------------------------------------------------------- Michael Bobelian, writing for Forbes, reports that on Jan. 7, the Supreme Court tackled this thorny issue that lies at the heart of discerning Congressional intent, a practice the justices regularly engage in when interpreting federal legislation. The law in question is the Class Action Fairness Act (CAFA). Backed by the U.S. Chamber of Commerce and other corporate interests, a Republican-controlled Congress enacted CAFA in 2005 after years of legislative efforts. CAFA represented the latest attempt by lawmakers to limit abuses in class actions and provide an extra shield for defendants in these cases, which tended to be large corporations. The law's purpose was clear: to make it more difficult for plaintiffs to litigate class actions in state courts, which were thought to be hostile to corporate defendants in comparison to federal courts. The apparent dichotomy between state and federal courts fueled much of the justification for the law. From 1988 to 1998, state courts saw a tenfold increase in class action filings. Leading up to CAFA's enactment, critics of the system pointed to the Circuit Court in Madison County, Illinois, a rural area with a population of just 259,000 people, as the poster-child for abusive litigation tactics employed by plaintiffs' lawyers. By serving as the forum for a $10.1 billion verdict in 2004 against cigarette maker Philip Morris, the court granted legitimacy to claims of abuse, especially when an appeals court later overturned the verdict. The Court has imposed restrictions on class actions recently. In a pair of landmark rulings involving AT&T and Wal-Mart in 2011, the judicial body made it more difficult for consumers and employees to form a class. In the short run, at least, the rulings have been effective in curbing plaintiffs while companies like Microsoft have amended their service agreements to avoid consumer class actions. Earlier this term, the Court also heard cases involving Comcast and Amgen relating to another critical element of the litigation process, class certification. Historically, plaintiffs' lawyers have had a knack for circumventing legislative barriers. When CAFA went into effect in 2005, a prominent defense lawyer explained that the plaintiffs' class action bar has been "enormously inventive, resourceful and agile in response to legislative restrictions." Indeed, plaintiffs' lawyers have been looking for ways to abide to CAFA's parameters yet still evade its purpose by assiduously structuring cases. One of these lawsuits, Stanford Fire Insurance v. Knowles, landed at the Court on Jan. 7, giving the justices their first opportunity to review CAFA. The plaintiffs in the case charged the Stanford Fire Insurance Company with failing to adequately reimburse property damage claims. The unusual thing was when lawyers in the case stipulated that the total claims would remain under $5 million. Why would any lawyer representing a plaintiff set limits on potential claims up front? Under CAFA, once a lawsuit passes a $5 million threshold, it could be transferred from a state to a federal court. In order to remain in the state court, the lawyers in the case designed their case to stay under CAFA's $5 million baseline. Plaintiffs filed the case in Miller County, Arkansas, a destination the insurer's lawyer, Theodore Boutrous, Jr., argued employed the kinds of abusive practices CAFA intended to combat. Yet, the language in CAFA did not explicitly bar the kind of tactic employed by the plaintiffs' lawyers in the case. "You know, usually we look to the text" of the legislation, Justice Elena Kagan told the insurer's lawyer during oral arguments in explaining how the Court determines legislative intent. Half way through the oral arguments, Chief Justice John Roberts, Jr. introduced a scenario in which a plaintiffs' lawyer parsed a case a certain way to avoid the threshold. David Frederick, a lawyer for the plaintiff, found no objection to the strategy despite it coming off as a gimmick. "If so, this is just a loophole because it swallows up all of Congress's statute," Justice Stephen Breyer warned. He went on to describe another scenario in which plaintiffs' lawyers could circumvent CAFA's purpose by dividing cases into tiny smaller pieces. "Now, your words in the statute do favor that, in my opinion, at the moment," Justice Breyer told Mr. Frederick a few moments later. "But the purpose seems to strongly cut the other way." ********* 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 * * *