/raid1/www/Hosts/bankrupt/CAR_Public/130226.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, February 26, 2013, Vol. 15, No. 40
Headlines
AMERICAN HONDA: Calif. Judge Trims Power Window Defect Claims
AMERICAN TRAFFIC: Settles Red Light Camera Class Action for $4.2MM
AUSTRALIA: Great Lakes Council May Face Suit Over Shop Closures
BABYS 'R' US: 3rd Circuit Rejects Class Action Settlement
BANK OF AMERICA: Skadden Opposes Filing of 2nd Amended Complaint
CHINA ADVANCED: Consolidated Stockholder Litigation Concluded
CHINA-BIOTICS: Continues to Defend Consolidated Securities Suit
CLEARWIRE CORP: Approval of "Dennings" Suit Settlement Appealed
CLEARWIRE CORP: Defends "Wuest" Class Action Suit in California
CLEARWIRE CORP: Faces Numerous Suits Over Acquisition by Sprint
CLEARWIRE CORP: Has Prelim. Approval of "Kwan" Suit Settlement
CLEARWIRE CORP: Approval of "Newton" Suit Deal on Appeal
CLEARWIRE CORP: Settlement Approval in "Minnick" Suit Appealed
CONRAIL: Offers Money to Paulsboro Residents to Avert Class Action
CONTINENTAL AIRLINES: Judge Dismisses 9/11 WTC Damage Class Action
DANIEL RESER: ERISA Suit Settlement Gets Court Approval
DIRECTSAT USA: Court Ruling Favorable for Class Action Defendants
DYNEGY INC: Bankr. Court Won't Enforce Plan Order on Class Suit
FORD MOTOR: Faces Suit Over Defects on 2011-2012 F150 Pickups
INTEGRATED ELECTRICAL: Defends Two Wage and Hour Class Suits
KASEL ASSOCIATED: Recalls All Products From Denver, CO Facility
KELLOGG CO: Recalls Special K Red Berries Cereal Packages
LG CHEM: Faces Another Lithium Ion Battery Price-Fixing Suit
MASTERCARD INC: April Hearing Set on Consumer Suits' Revised Deal
MASTERCARD INC: Defends Various Suits by Canadian Merchants
MASTERCARD INC: April Hearing Set in "Attridge" Related Suit
MASTERCARD INC: Sept. Hearing on U.S. Merchant Suits' Deals
MASTERCARD INC: Wins Dismissal of ATM Surcharges Suits
MERRILL LYNCH: Agrees to Create $12-Mil. Overtime Settlement Fund
MINNESOTA: Suit Says Natural Resources Dept. Chief Hid Files
MKG PROVISIONS: Recalls Atlantic Smoked Salmon Due to Health Risk
MKG PROVISIONS: Recalls Various Brands of Atlantic Smoked Salmon
MYTRAVEL CANADA: Ontario Court Approves Class Counsel Fees
NAVILLUS TILE: Failed to Pay Prevailing Wage Rates, Suit Says
NEW YORK LAW SCHOOL: Seeks Review of Fraud Class Action Dismissal
PELEPHONE COMMUNICATIONS: Class Action Over Monthly Fees Withdrawn
PROJECT FAIR: Accused of Running Illegal Gambling Enterprise
RALPHS GROCERY: Judge Tosses Class Action Over Rewards Program
RHYTHM AND HUES: Ex-Employee Capizzi Files Class Suit
RHYTHM AND HUES: Former Employee Barcelo Commences Class Suit
SOUNDBITE COMMUNICATIONS: "Karayan" Suit vs. Clients Dismissed
SYNGENTA AG: Suit Over Atrazine Contamination Dismissed in Jan.
US AIRWAYS: Court Dismisses Bulk of Claims in Wage & Hour Suit
WARNER MUSIC: Discovery in Digital Download Prices Suit Ongoing
WARNER MUSIC: In Discussions to Resolve Suits Over Royalties
*********
AMERICAN HONDA: Calif. Judge Trims Power Window Defect Claims
-------------------------------------------------------------
Matthew Heller, writing for Law360, reports that American Honda
Motor Co. Inc. on Feb. 19 escaped the core fraud claims in a
putative class action over an alleged power window defect as a
California judge ruled two consumers had not shown Honda was aware
of the problem when they bought their vehicles.
U.S. District Judge Stephen G. Wilson said the named plaintiffs'
allegations that, among other things, Honda had received online
complaints from consumers about power window failure were
insufficient to support fraud claims under California, New Jersey
or Iowa consumer protection laws.
AMERICAN TRAFFIC: Settles Red Light Camera Class Action for $4.2MM
------------------------------------------------------------------
Jim Walsh, writing for the Courier Post, reports a red-light
camera operator has agreed to pay up to $4.2 million to settle a
class-action lawsuit brought by motorists in 18 towns across the
state, including four in South Jersey.
Under a proposed settlement, eligible motorists would receive a
minimum of $8.50 per violation, or 10 percent of the traffic fine
imposed by local authorities, according to papers filed in federal
court Thursday.
Locally, the agreement would cover drivers or registered owners of
vehicles ticketed before August 2012 by red-light cameras in
Deptford, Glassboro, Gloucester Township and Monroe. The citations
carry an $85 fine, with $73.50 going to the municipality.
The cameras' operator, American Traffic Solutions of Scottsdale,
Ariz., would pay for the partial refunds. The municipalities are
not contributing to the settlement.
The settlement does not cover red-light camera tickets issued in
Cherry Hill and Stratford, which are the subject of a separate
lawsuit. Red-light cameras in Cherry Hill are operated by Redflex
Traffic Systems of Phoenix.
ATS admits no liability under the proposed settlement, but says it
is offering the payment in order to avoid "protracted and
expensive litigation."
The agreement is pending before U.S. District Judge Peter Sheridan
in Trenton.
"We have every hope and expectation that the judge will approve
the settlement," Charles Territo, an ATS spokesman, said Friday.
A Marlton law firm, Shabel & DeNittis, filed the lawsuits in
August, several weeks after a controversy erupted over the
statewide pilot program.
The state Department of Transportation in June told 21 towns to
stop writing tickets based on red-light cameras due to a concern
over the timing of yellow lights. The DOT lifted that suspension
in July, clearing the way for thousands of motorists to receive
delayed summonses.
The class-action lawsuit alleged the cameras had been operated
illegally since the program began in December 2009, because
townships failed to conduct required inspections. Territo noted
ATS had no role in timing the traffic lights, but only operated
the camera system.
"We were brought into this as the vendor," he said, noting
motorists will share in funds that remain after the payment of
legal fees and operating costs.
Eighteen motorists who brought the suit are to receive $200 each,
according to a letter submitted by Evesham attorney Joseph
Osefchen to Sheridan in Trenton. An earlier agreement in
principle, which was announced in late December, called for a
$1,000 payment.
The two sides began talks about a potential settlement in October,
including mediation with a retired federal judge.
AUSTRALIA: Great Lakes Council May Face Suit Over Shop Closures
---------------------------------------------------------------
Great Lakes Advocate reports the news that Bi-Lo Tuncurry will
close its doors permanently on June 30 has sparked anger from
business owners and long-term shoppers alike, and cast doubt over
the future of Bi-Lo's adjoining businesses in the Tuncurry Plaza.
Coles (Bi-Lo's corporate manager) corporate affairs spokesman Jim
Cooper confirmed the long-held rumors about Bi-Lo's closure
following a meeting with the store's 43 staff members on Thursday
morning (Feb. 21).
"Decisions of this kind are not taken lightly or made overnight,
but after careful consideration we have made the difficult
decision to cease trading in our Tuncurry Bi-Lo store when the
lease expires on June 30," Mr. Cooper said.
"The decision was made based on several factors, including overall
trading performance, the size of the store and it's fit in our
wider strategic plan for the region. It is in no way a reflection
on our team members in that store, they are a great team with a
very loyal customer base and we understand this decision will
cause a lot of disappointment in Tuncurry but it just wasn't
feasible to continue operating there."
Rumors about the possible closure of Bi-Lo have been rife since
the opening of the Tuncurry Woolworths on October 11 and the
confirmation that the store will close has sparked anger amongst
business owners and long-term shoppers, many of whom blame Great
Lakes Council for their role in bringing Woolworths to Tuncurry.
Council applied to the NSW department of planning to rezone the
land on which Woolworths sits and financed the construction of the
building which it currently owns and leases to the supermarket
franchise.
Kate Dixon, who closed the doors of Great Lakes Bookshop for the
last time on Friday (Feb. 15), says the closure of her business is
a direct result of Woolworths being opened.
"I put the blame squarely at the feet of council, they built the
supermarket and are the landlord," Ms Dixon said.
"They did an impact statement, at ratepayers expense, two years
ago and that statement said it would take 60 per cent of business
away from Bi-Lo. They knew this would happen. These are family
businesses that support families and we've been ruined."
Dennis Valentine from Forster Tuncurry Shoe Repairs agrees.
"Every single business in this arcade is doomed. They (council)
knew two years ago that Woolworths would destroy this arcade and
they did it anyway and now more than 100 hardworking people will
be out of a job. I think if enough businesses got on board we'd
have grounds for a class action against council."
It was a sentiment echoed by Shane Honness from the Plaza Cafe
when asked about his future.
"We won't have a future, we're looking at either closure or
relocation if they can't get a new big tenant in there (Bi-Lo)
quickly. Council's 20-year plan for Tuncurry has had a pretty
immediate effect on us."
Ian Hodges from Tuncurry Fresh Chickens agrees.
"They're (council) the only ones to blame, they knew this would
happen and they went ahead and did it anyway. It's been very quiet
for us since Woolworths went in and now that we've lost our
biggest drawcard (Bi-Lo) everyone will go elsewhere."
BABYS 'R' US: 3rd Circuit Rejects Class Action Settlement
---------------------------------------------------------
Daniel Fisher, writing for Forbes, reports that the Third Circuit
Court of Appeals on Feb. 19 threw out a class-action settlement
that would have paid the lawyers who negotiated it more than four
times as much as their clients.
The 34-page decision also addresses the practice of cy pres, in
which lawyers arrange to give money to charities when they can't
distribute enough of the settlement proceeds to the class.
The practice is of dubious legal provenance and can exacerbate the
already serious conflicts between class-action lawyers and their
ostensible clients. As the Third Circuit noted, including gifts
to charities unrelated to the litigation "may increase a
settlement fund, and with it attorneys' fees, without increasing
the direct benefit to the class."
In this case, law firms including class-action specialists Hagens
Berman and Wolf Haldenstein sued Babys 'R' Us and and
manufacturers like Baby Bjorn AB for allegedly setting "price
floors" for certain products. In the settlement, the defendants
agreed to pay 20% refunds to customers who could provide a receipt
and $5 to customers who couldn't. The judge approved $14 million
in fees and expenses based on the $35.5 million settlement --
already a hefty 39% of the pie -- but soon it became clear only $3
million in claims would be paid. No problem, the lawyers said:
The rest can go to charity.
Attorneys with Ted Frank's Center for Class Action Fairness sued
to block the settlement, saying the fee was excessive given the
small amount of money going to the lawyers' clients.
The Third Circuit agreed in a decision that appears to set
stricter new rules for class actions in its district even while
upholding the utility of the mechanism. It acknowledged the
"potential for conflict" between lawyers primarily interested in a
fee and their clients, who are primarily interested in winning
money.
"We confirm that courts need to consider the level of direct
benefit provided to the class in calculating attorneys' fees," the
appeals court said.
The court also seemed to be calling on judges to demand more
information about settlement procedures before approving fees, or
even withholding approval of fees until the claims have been
administered. Cy pres is an acceptable alternative to paying
money to people actually involved in the case, the court said, but
the amount given to unrelated charities should serve to reduce the
pot used to calculate fees.
In this case, the appeals judges said, the lower court approved
the fees without knowing the relatively tiny payout to class
members. Plaintiff lawyers "did not provide this information to
the Court, preventing it from properly assessing whether the
settlement was in the best interest of the class as a whole."
But the appeals court avoided attacking the class-action process
directly, celebrating its "deterrent effect" -- don't judges
understand that most settlements are paid out of insurance? -- and
rejecting the idea that judges should reject settlements where the
lawyers earn more than their clients.
Courts shouldn't "discourage counsel from filing class actions in
cases where few claims are likely to be made but the deterrent
effect of the class action is equally valuable," the court said.
The court didn't address the biggest question in cy pres, which is
whether it is constitutional for judges to give money to an entity
that never had a "case or controversy" before the court. Neither
did it address the potential for mischief as lawyers decide who to
give the money to -- a university their children are applying to,
perhaps? Or a charity that just happens to hold the most exclusive
holiday ball in town?
In this case we may never know since the Third Circuit sent it
back for review before the recipients were named.
BANK OF AMERICA: Skadden Opposes Filing of 2nd Amended Complaint
----------------------------------------------------------------
Skadden, Arps, Slate, Meagher & Flom LLP, representing a syndicate
of underwriters, opposed a motion seeking to file a second amended
complaint of a previously dismissed federal securities class
action (also handled by the firm) brought on behalf of purchasers
of certain securities issued by Bank of America Corporation. On
February 15, Magistrate Judge Henry Pitman of the U.S. District
Court of the Southern District of New York denied the plaintiff's
motion, ruling that the plaintiff's proposed amended allegations
were time-barred and did not sufficiently allege any actionable
misstatements or omissions.
CHINA ADVANCED: Consolidated Stockholder Litigation Concluded
-------------------------------------------------------------
A consolidated stockholder litigation against China Advanced
Construction Materials Group, Inc., has been concluded, according
to the Company's February 14, 2013, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended December
31, 2012.
On July 26 2011, the Company issued a press release announcing
that its board of directors received a preliminary, non-binding
offer from its Chairman and Chief Executive Officer, Mr. Xianfu
Han, and its Vice Chairman and Chief Operating Officer, Mr. Weili
He, to acquire all of the outstanding shares of the Company's
common stock not currently owned by them in a going private
transaction at a proposed price of $2.65 per share in cash
("Proposed Transaction").
Since July 29, 2011, multiple class action complaints (the
"Stockholder Actions") have been filed against the Company and its
Board of Directors in the Court of Chancery of the State of
Delaware, generally alleging that the Company and all of the
Company's directors breached their fiduciary duties in connection
with the receipt by the Company of a preliminary, non-binding
offer from Xianfu Han, the Company's Chairman and Chief Executive
Officer, and Weili He, the Company's Vice Chairman and Chief
Operating Officer, to acquire all of the outstanding shares of the
Company's common stock not currently owned by them in a going
private transaction at a proposed price of $2.65 per share in cash
(the "Proposed Transaction"). The Stockholder Actions have been
consolidated under the caption In re China Advanced Construction
Materials Group Litigation, Consolidated C.A. No. 6729-CS. The
Stockholder Actions seek, among other things, to declare that the
Proposed Transaction is unfair, unjust and inequitable, to enjoin
the Company from taking any steps necessary to accomplish or
implement the Proposed Transaction, and damages in the event the
Proposed Transaction is consummated.
On August 14, 2012, the plaintiffs in the Stockholder Actions
requested that the case be dismissed and the court approved the
dismissal. The Company considers the matter to be concluded.
China Advanced Construction Materials Group, Inc. --
http://www.china-acm.com-- through its subsidiaries, produces and
supplies ready mix concrete materials and related technical
services for large scale, high-speed rail, and other complex
infrastructure projects primarily in the People's Republic of
China. The Company was founded in 2002 and is headquartered in
Beijing, China.
CHINA-BIOTICS: Continues to Defend Consolidated Securities Suit
---------------------------------------------------------------
China-Biotics, Inc. continues to defend itself against a
consolidated securities pending in New York, according to the
Company's February 14, 2013, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended
December 31, 2012.
The Company and certain of its current and former officers and
directors have been named as defendants in three putative
shareholder class action lawsuits, one in the United States
District Court for the Central District of California (Mohapatra
v. China-Biotics, Inc., et al., No. 10-cv-6954 (C.D. Cal.), the
"Mohapatra case"), and two in the United States District Court for
the Southern District of New York (Hill v. China-Biotics, Inc., et
al., No. 10-cv-7838 (S.D.N.Y.), the "Hill case", and Casper v.
Jinan, et al, No. 12-cv-4202 (S.D.N.Y), the "Casper case"). After
certain shareholders filed motions for appointment as lead
plaintiff, the plaintiff in the Mohapatra case voluntarily
dismissed its case and the plaintiff in the Hill case, together
with another shareholder, were appointed as lead plaintiffs. The
lead plaintiffs filed an amended complaint in which they allege
that the defendants violated Sections 11, 12(a)(2), and 15 of the
Securities Act of 1933, and Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934 by making material misstatements
or failing to disclose certain material information regarding,
among other things, the Company's financial condition, operations,
and future business prospects, and the quality, nature, and
quantity of the Company's retail outlets. The lead plaintiffs
seek to represent a class of shareholders who bought the Company's
securities between July 10, 2008, and August 27, 2010.
On August 18, 2011, the Company filed a motion to dismiss the lead
plaintiffs' amended complaint. The court dismissed the lead
plaintiffs' Section 11 claim, but gave them leave to replead. The
court did not rule on the motion to dismiss the Section 10(b)
claim. On January 9, 2012, the lead plaintiffs filed a second
amended complaint that included a new named plaintiff and new
allegations for the Section 11 claim. On February 27, 2012, the
Company filed a motion to dismiss the amended Section 11 claim.
Both that motion and the original motion to dismiss the Section
10(b) and Section 20(a) claims are currently pending before the
court. The Company intends to defend this action vigorously.
In the Casper case, the plaintiff alleges that the defendants
violated Sections 10(b) and 20(a) of the Securities Exchange Act
of 1934 by making material misstatements and seeks to represent a
class of stockholders who bought the Company's securities between
February 9, 2011, and July 1, 2011. On October 18, 2012, the Hill
case and the Casper case were consolidated, but no consolidated
amended complaint has yet been filed. The Company intends to
defend this action vigorously.
CLEARWIRE CORP: Approval of "Dennings" Suit Settlement Appealed
---------------------------------------------------------------
Objectors appealed the final judgment and order approving
Clearwire Corporation's settlement of a class action lawsuit filed
by Angelo Dennings, according to the Company's February 14, 2013,
Form 10-K filing with the U.S. Securities and Exchange Commission
for the year ended December 31, 2012.
In November 2010, a purported class action lawsuit was filed
against Clearwire by Angelo Dennings in the U.S. District Court
for the Western District of Washington. The complaint generally
alleges the Company slows network speeds when network demand is
highest and that such network management violates the Company's
agreements with subscribers and is contrary to the Company's
advertising and marketing claims. Plaintiffs also allege that
subscribers do not review the Terms of Service prior to
subscribing, and when subscribers cancel service due to network
management, the Company charges an early termination fee (ETF) or
restocking fee that they claim is unconscionable under the
circumstances. The claims asserted include breach of contract,
breach of the covenant of good faith and fair dealing and unjust
enrichment. Plaintiffs seek class certification; unspecified
damages and restitution; a declaratory judgment that Clearwire's
ETF and restocking fee are unconscionable under the alleged
circumstances; an injunction prohibiting Clearwire from engaging
in alleged deceptive marketing and from charging ETFs; interest;
and attorneys' fees and costs. On January 13, 2011, the Company
filed concurrent motions to compel arbitration and in the
alternative, to dismiss the complaint for failure to state a claim
upon which relief may be granted. In response to Clearwire's
motions, plaintiff abandoned its fraud claim and amended its
complaint with fourteen additional plaintiffs in eight separate
jurisdictions. Plaintiff further added new claims of violation of
Consumer Protection statutes under various state laws.
On March 31, 2011, Clearwire filed concurrent motions to (1)
compel the newly-added plaintiffs to arbitrate their individual
claims, (2) alternatively, to stay this case pending the United
States Supreme Court's decision in AT&T Mobility LLC v.
Concepcion, No. 09-893 (Concepcion), and (3) to dismiss the
complaint for failure to state a claim upon which relief may be
granted. Plaintiffs did not oppose Clearwire's motion to stay the
litigation pending Concepcion, and the parties stipulated to stay
the litigation.
The parties agreed to settle the lawsuit. On December 19, 2012,
the Court granted final approval of the settlement and entered
final judgment. On January 18, 2013, objectors appealed the
Court's final judgment and settlement order to the Ninth Circuit
Court of Appeals.
The Company has accrued an estimated amount it anticipates to pay
for the settlement in Other current liabilities. The amount
accrued is considered immaterial to the financial statements.
Kirkland, Washington-based Clearwire Corporation (NASDAQ: CLWR)
-- http://www.clearwire.com/-- through its operating
subsidiaries, is a provider of 4G mobile broadband network
services in 68 markets, including New York City, Los Angeles,
Chicago, Dallas, Philadelphia, Houston, Miami, Washington, D.C.,
Atlanta and Boston.
CLEARWIRE CORP: Defends "Wuest" Class Action Suit in California
---------------------------------------------------------------
Clearwire Corporation is defending a class action lawsuit
commenced by Richard Wuest in California, according to the
Company's February 14, 2013, Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended
December 31, 2012.
In August 2012, Richard Wuest filed a purported class action
against Clearwire in the California Superior Court, San Francisco
County. Plaintiff alleges that Clearwire violated California's
Invasion of Privacy Act, Penal Code 630, notably Section 632.7,
which prohibits the recording of communications made from a
cellular or cordless telephone without the consent of all parties
to the communication. Plaintiff seeks statutory damages and
injunctive relief, costs, attorney fees, pre and post judgment
interest. Clearwire removed the matter to federal court. On
November 2, 2012, Clearwire filed an answer to the complaint. The
litigation is in the early stages, its outcome is unknown and an
estimate of any potential loss cannot be made at this time.
Kirkland, Washington-based Clearwire Corporation (NASDAQ: CLWR)
-- http://www.clearwire.com/-- through its operating
subsidiaries, is a provider of 4G mobile broadband network
services in 68 markets, including New York City, Los Angeles,
Chicago, Dallas, Philadelphia, Houston, Miami, Washington, D.C.,
Atlanta and Boston.
CLEARWIRE CORP: Faces Numerous Suits Over Acquisition by Sprint
---------------------------------------------------------------
Clearwire Corporation is facing class action lawsuits in Delaware
and Washington arising from its proposed acquisition by Sprint
Nextel Corporation, according to the Company's February 14, 2013,
Form 10-K filing with the U.S. Securities and Exchange Commission
for the year ended December 31, 2012.
On December 17, 2012, the Company an Agreement and Plan of Merger
(Merger Agreement) with Sprint Nextel Corporation and Collie
Acquisition Corp., a Delaware corporation and a wholly owned
subsidiary of Sprint (the Merger Sub), pursuant to which Sprint
agreed to acquire all of the outstanding shares of the Company's
Clearwire Corporation Class A common stock that is not currently
owned by Sprint, SOFTBANK CORP., or any of their respective
affiliates. The transactions under the Merger Agreement are
subject to a number of conditions, including approval by the
Company's stockholders and the closing of the pending merger
between Sprint and SoftBank and certain affiliates thereof. If
all of the conditions under the Merger Agreement are satisfied by
the parties, following the consummation of the Proposed Merger,
the Company will become a wholly-owned subsidiary of Sprint.
Delaware Actions
On December 12, 2012, stockholder Crest Financial Limited,
(Crest), filed a putative class action lawsuit in Delaware Court
of Chancery against the Company, its directors, Sprint, Sprint
Holdco LLC and Eagle River Holdings, LLC, purportedly brought on
behalf of the public stockholders of the Company. On December 14,
2012, plaintiff filed an amended complaint, and on January 2,
2013, plaintiff filed a second amended complaint. Also, on
December 12, 2012, the plaintiff filed a motion seeking an
expedited trial. Following a hearing on January 10, 2013, the
Court denied the motion to expedite without prejudice. The Court
also directed the parties to consolidate this lawsuit with the
other Delaware actions, and the parties have agreed to extend
Clearwire's time to respond to the complaints and discovery
requests in connection with this action, as well as the Delaware
actions, pending the filing of a consolidated complaint.
The lawsuit alleges that the directors of the Company breached
their fiduciary duties in connection with the proposed transaction
between Sprint and the Company, that Sprint and Eagle River
breached duties owed to the Company's public stockholders by
virtue of their alleged status as controlling stockholders,
including with respect to the SoftBank Transaction, and that the
Company aided and abetted the alleged breaches of fiduciary duty
by Sprint and Eagle River. The lawsuit also alleges that the
Merger Consideration undervalues the Company, and that the
controlling stockholders acted to enrich themselves at the expense
of the minority stockholders. The lawsuit seeks to permanently
enjoin the SoftBank Transaction, permanently enjoin the Proposed
Merger, permanently enjoin Sprint from allegedly interfering with
the Company's plans to raise capital or sell its spectrum and to
recover compensatory damages. This litigation is in the early
stages, its outcome is unknown and an estimate of any potential
losses cannot be made at this time.
On December 20, 2012, stockholder Abraham Katsman filed a putative
class action lawsuit in Delaware Court of Chancery against the
Company, its directors, Sprint and SoftBank, purportedly bought on
behalf of the public stockholders of the Company. The lawsuit
alleges that the directors of the Company breached their fiduciary
duties in connection with the Proposed Merger, that Sprint
breached duties owed to the Company's public stockholders by
virtue of its alleged status as controlling stockholder, and that
SoftBank aided and abetted the alleged breaches of fiduciary duty
by Sprint and the directors of the Company. The lawsuit also
alleges that the Proposed Merger Consideration undervalues the
Company and that the Proposed Merger was negotiated pursuant to an
unfair process. The lawsuit seeks to enjoin the Proposed Merger
and, should the Proposed Merger be consummated, rescission of the
Proposed Merger, and to recover unspecified rescissory and
compensatory damages. This litigation is in the early stages, its
outcome is unknown and an estimate of any potential losses cannot
be made at this time.
On December 28, 2012, stockholder Kenneth L. Feigeles filed a
putative class action lawsuit in Delaware Court of Chancery
against the Company, its directors, Sprint, Merger Sub and Eagle
River, purportedly brought on behalf of the public stockholders of
the Company. The lawsuit alleges that the directors of the
Company breached their fiduciary duties in connection with the
Proposed Merger, that Sprint breached duties owed to the Company's
public stockholders by virtue of its alleged status as controlling
stockholder, and that the Company, Sprint, Merger Sub and Eagle
River aided and abetted the alleged breaches of fiduciary duty by
Sprint and the directors of the Company. The lawsuit also alleges
that the Merger Consideration undervalues the Company, and that
the Proposed Merger was negotiated pursuant to an unfair process.
The lawsuit seeks to enjoin the Proposed Merger and, should the
Proposed Merger be consummated, to rescind the Proposed Merger,
and it seeks unspecified rescissory and compensatory damages.
This litigation is in the early stages, its outcome is unknown and
an estimate of any potential losses cannot be made at this time.
On December 28, 2012, stockholder Joan Litwin filed a putative
class action lawsuit in Delaware Court of Chancery against the
Company, its directors, Sprint, Sprint Holdco and Eagle River,
purportedly brought on behalf of the public stockholders of the
Company. The lawsuit alleges that the directors of the Company
breached their fiduciary duties in connection with the Proposed
Merger, that Sprint and Eagle River breached duties owed to the
Company's public stockholders by virtue of their alleged status as
controlling stockholders, and that the Company aided and abetted
the alleged breaches of fiduciary duty by Sprint, Eagle River and
the directors of the Company. The lawsuit also alleges that the
Merger Consideration undervalues the Company, that Sprint is using
its position as controlling stockholder to obtain the Company's
spectrum for itself to the detriment of the public stockholders,
and that the directors of the Company allowed the Company to
stagnate to benefit Sprint and Eagle River. The lawsuit seeks to
enjoin the Proposed Merger and, should the Proposed Merger be
consummated, to rescind the Proposed Merger. The lawsuit also
seeks to enjoin Sprint from interfering with the Company's build-
out plans or any future sale of spectrum, and seeks unspecified
compensatory damages. This litigation is in the early stages, its
outcome is unknown and an estimate of any potential losses cannot
be made at this time.
On or about January 3, 2013, stockholder David DeLeo filed a
putative class action lawsuit in Delaware Court of Chancery
against the Company, its directors, Sprint and Merger Sub,
purportedly brought on behalf of the public stockholders of the
Company. The lawsuit alleges that the directors of the Company
breached their fiduciary duties in connection with the Proposed
Merger, that Sprint breached duties owed to the Company's public
stockholders by virtue of its alleged status as controlling
stockholder, and that the Company and Merger Sub aided and abetted
the alleged breaches of fiduciary duty by Sprint and the directors
of the Company. The lawsuit also alleges that the Merger
Consideration undervalues the Company, that Sprint and the
directors of the Company misappropriated non-public information
that was not disclosed to the plaintiffs, and that the Proposed
Merger was negotiated pursuant to an unfair process. The lawsuit
seeks a declaratory judgment that the proposed transaction between
Sprint and the Company was entered into in breach of Sprint's
fiduciary duties, an injunction preventing the proposed
transaction between Sprint and the Company and, should the
Proposed Merger be consummated, to rescind the Proposed Merger,
and it seeks unspecified rescissory and compensatory damages.
This litigation is in the early stages, its outcome is unknown and
an estimate of any potential losses cannot be made at this time.
Washington Actions
On December 20, 2012 stockholder Joe Kuhnle filed a putative class
action lawsuit in the Superior Court of Washington, King County,
against the Company and its directors, purportedly brought on
behalf of the public stockholders of the Company, the Kuhnle
Action. The Kuhnle Action alleges that the directors of the
Company breached their fiduciary duties in connection with the
Proposed Merger, and that the Company aided and abetted the
alleged breaches of fiduciary duty by the directors of the
Company. The Kuhnle Action also alleges that the Merger
Consideration undervalues the Company, that the Proposed Merger
was negotiated pursuant to an unfair process, that the deal
protection devices favor Sprint to the detriment of the public
stockholders, and that the directors of the Company failed to make
necessary disclosures in their public filings. The Kuhnle Action
seeks a declaratory judgment that the Proposed Merger was entered
into in breach of defendants' fiduciary duties, a preliminary
injunction preventing the Proposed Merger and, should the Proposed
Merger be consummated, rescission of the Proposed Merger, and to
recover unspecified rescissory and compensatory damages.
On January 18, 2013, the Company and the other defendants
collectively filed a motion to dismiss or stay the Kuhnle Action
in favor of the prior-filed Delaware Actions. On January 11,
2013, plaintiff filed a motion for Limited Expedited Discovery
along with an amended complaint. On January 18, 2013, the Company
filed an opposition to plaintiff's motion for Limited Expedited
Discovery. The Court denied plaintiff's motion for Limited
Expedited Discovery on January 28, 2013, and ordered discovery to
proceed in the ordinary course. On January 18, the Company filed
a motion to Stay the Kuhnle Action in favor of the prior-filed
Delaware actions. On January 25, 2013, plaintiff filed its
opposition to the motion to Stay. The Company filed a reply in
support of the motion to Stay on January 31, 2013, and the Court
held a hearing on the motion to Stay on February 8, 2013. On
February 11, 2013, the court granted the motion to stay. On
January 22, 2013, the parties stipulated to consolidate the three
King County lawsuits -- the Kuhnle Action, along with both the
Millen Action and the Rowe Action -- into one matter: In Re
Clearwire Corporation Shareholder Litigation. This litigation is
in the early stages, its outcome is unknown and an estimate of any
potential losses cannot be made at this time.
On December 20, 2012, stockholder Doug Millen filed a putative
class action lawsuit in the Superior Court of Washington, King
County against the Company and its directors, purportedly brought
on behalf of the public stockholders of the Company, the Millen
Action. The lawsuit alleges that the directors of the Company
breached their fiduciary duties owed to the Company's public
stockholders in connection with the Proposed Merger, and that the
Company aided and abetted the alleged breaches of fiduciary duty
by the directors of the Company. The lawsuit also alleges that
the Merger Consideration undervalues the Company, that the
Proposed Merger was negotiated pursuant to an unfair process, that
the deal protection devices favor Sprint to the detriment of the
public stockholders, and that the directors of the Company failed
to make necessary disclosures in connection with the announcement
of the transaction. The lawsuit seeks a declaratory judgment that
the Proposed Merger was entered into in breach of defendants'
fiduciary duties, an injunction preventing the Proposed Merger,
and rescission of the Proposed Merger to the extent it has already
been consummated. This litigation is in the early stages, its
outcome is unknown and an estimate of any potential losses cannot
be made at this time.
On December 31, 2012, stockholder Clinton Rowe filed a putative
class action lawsuit in the Superior Court of Washington, King
County against the Company, its directors, Sprint and Merger Sub,
purportedly brought on behalf of the public stockholders of the
Company, the Rowe Action. The lawsuit alleges that Sprint and the
directors of the Company breached their fiduciary duties in
connection with the Proposed Merger, and that the Company, Sprint
and Merger Sub aided and abetted the alleged breaches of fiduciary
duty by the directors of the Company. The lawsuit also alleges
that the Merger Consideration undervalues the Company, that the
Proposed Merger was negotiated pursuant to an unfair process, and
that the directors of the Company did not protect the Company
against numerous conflicts of interest. The lawsuit seeks a
declaratory judgment that the Proposed Merger was entered into in
breach of defendants' fiduciary duties, an injunction preventing
the Proposed Merger, rescission of the transaction to the extent
it has already been implemented, and the imposition of a
constructive trust in favor of the plaintiff class upon any
benefits improperly received by defendants. This litigation is in
the early stages, its outcome is unknown and an estimate of any
potential losses cannot be made at this time.
Kirkland, Washington-based Clearwire Corporation (NASDAQ: CLWR)
-- http://www.clearwire.com/-- through its operating
subsidiaries, is a provider of 4G mobile broadband network
services in 68 markets, including New York City, Los Angeles,
Chicago, Dallas, Philadelphia, Houston, Miami, Washington, D.C.,
Atlanta and Boston.
CLEARWIRE CORP: Has Prelim. Approval of "Kwan" Suit Settlement
--------------------------------------------------------------
Clearwire Corporation received in December 2012 preliminary
approval of its settlement of a class action lawsuit brought by
Rosa Kwan, according to the Company's February 14, 2013, Form
10-K filing with the U.S. Securities and Exchange Commission for
the year ended December 31, 2012.
In September 2009, a purported class action lawsuit was filed
against Clearwire in King County Superior Court, brought by
representative plaintiff Rosa Kwan. The complaint alleges the
Company placed unlawful telephone calls using automatic dialing
and announcing devices and engaged in unlawful collection
practices. It seeks declaratory, injunctive, and/or equitable
relief and actual and statutory damages under federal and state
law. On October 1, 2009, the Company removed the case to the
United States District Court for the Western District of
Washington. The parties stipulated to allow a Second Amended
Complaint, which plaintiffs filed on December 23, 2009. The
Company then filed a motion to dismiss the amended complaint. On
February 22, 2010, the Court granted the Company's motion to
dismiss in part, dismissing certain claims with prejudice and
granting plaintiff leave to further amend the complaint.
Plaintiff filed a Third Amended Complaint adding additional state
law claims and joining Bureau of Recovery, a purported collection
agency, as a co-defendant. On January 27, 2011, the court granted
the parties' stipulation allowing plaintiff to file a Fourth
Amended Complaint adding two new class representatives. The
Company then filed motions to compel the newly-added customer
plaintiffs to arbitrate their individual claims.
On January 3, 2012, the Court denied without prejudice the
Company's motions to compel arbitration because of factual issues
to be resolved at an evidentiary hearing. The parties stipulated
to allow a Fifth Amended Complaint.
The parties agreed to settle the lawsuit. On December 27, 2012,
the Court granted preliminary approval of the settlement.
The Company has accrued an estimated amount it anticipates to pay
for the settlement in Other current liabilities. The amount
accrued is considered immaterial to the financial statements. If
the Court does not grant final approval of the settlement, this
case will remain in the early stages of litigation and its outcome
is unknown.
Kirkland, Washington-based Clearwire Corporation (NASDAQ: CLWR)
-- http://www.clearwire.com/-- through its operating
subsidiaries, is a provider of 4G mobile broadband network
services in 68 markets, including New York City, Los Angeles,
Chicago, Dallas, Philadelphia, Houston, Miami, Washington, D.C.,
Atlanta and Boston.
CLEARWIRE CORP: Approval of "Newton" Suit Deal on Appeal
--------------------------------------------------------
Objectors appealed the final approval of Clearwire Corporation's
settlement of a class action lawsuit filed in California,
according to the Company's February 14, 2013, Form 10-K filing
with the U.S. Securities and Exchange Commission for the year
ended December 31, 2012.
In March 2011, a purported class action was filed against
Clearwire in the U.S. District Court for the Eastern District of
California. The case, Newton v. Clearwire, Inc. [sic], alleges
Clearwire's network management and advertising practices
constitute breach of contract, unjust enrichment, unfair
competition under California's Business and Professions Code
Sections 17200 et seq., and violation of California's Consumers'
Legal Remedies Act. Plaintiff contends Clearwire's advertisements
of "no speed cap" and "unlimited data" are false and misleading.
Plaintiff alleges Clearwire has breached its contracts with
customers by not delivering the Internet service as advertised.
Plaintiff also claims slow data speeds are due to Clearwire's
network management practices. Plaintiff seeks class
certification; declaratory and injunctive relief; unspecified
restitution and/or disgorgement of fees paid for Clearwire
service; and unspecified damages, interest, fees and costs. On
June 9, 2011, Clearwire filed a motion to compel arbitration.
The parties agreed to settle the lawsuit. On December 19, 2012,
the Court granted final approval of the settlement and entered
final judgment. On January 18, 2013, objectors appealed the
Court's final judgment and settlement order to the Ninth Circuit
Court of Appeals.
The Company has accrued an estimated amount it anticipates to pay
for the settlement in Other current liabilities. The amount
accrued is considered immaterial to the financial statements.
Kirkland, Washington-based Clearwire Corporation (NASDAQ: CLWR)
-- http://www.clearwire.com/-- through its operating
subsidiaries, is a provider of 4G mobile broadband network
services in 68 markets, including New York City, Los Angeles,
Chicago, Dallas, Philadelphia, Houston, Miami, Washington, D.C.,
Atlanta and Boston.
CLEARWIRE CORP: Settlement Approval in "Minnick" Suit Appealed
--------------------------------------------------------------
Objectors appealed the final judgment and order approving
Clearwire Corporation's settlement of the class action lawsuit
initiated by Chad Minnick, et al., according to the Company's
February 14, 2013, Form 10-K filing with the U.S. Securities and
Exchange Commission for the year ended December 31, 2012.
In April 2009, a purported class action lawsuit was filed against
Clearwire U.S. LLC in Superior Court in King County, Washington by
a group of five plaintiffs (Chad Minnick, et al.). The lawsuit
generally alleges that the Company disseminated false advertising
about the quality and reliability of the Company's services;
imposed an unlawful early termination fee (ETF); and invoked
allegedly unconscionable provisions of the Company's Terms of
Service to the detriment of subscribers. Among other things, the
lawsuit seeks a determination that the alleged claims may be
asserted on a class-wide basis; an order declaring certain
provisions of the Company's Terms of Service, including the ETF
provision, void and unenforceable; an injunction prohibiting the
Company from collecting ETFs and further false advertising;
restitution of any ETFs paid by the Company's subscribers;
equitable relief; and an award of unspecified damages and
attorneys' fees. Plaintiffs subsequently amended their complaint
adding seven additional plaintiffs. The Company removed the case
to the United States District Court for the Western District of
Washington. On July 23, 2009, the Company filed a motion to
dismiss the amended complaint. The Court stayed discovery pending
its ruling on the motion, and on February 2, 2010, granted the
Company's motion to dismiss in its entirety. Plaintiffs appealed
to the Ninth Circuit Court of Appeals. On March 29, 2011, the
Court of Appeals entered an Order Certifying Question to the
Supreme Court of Washington requesting guidance on a question of
Washington state law. On May 23, 2012, the Washington Supreme
Court issued a decision holding that an ETF is a permissible
alternative performance provision. The Court of Appeals has
stayed the matter.
The parties have agreed to settle the lawsuit. On December 19,
2012, the Court granted final approval of the settlement and
entered final judgment. On January 18, 2013, objectors appealed
the Court's final judgment and settlement order to the Ninth
Circuit Court of Appeals.
The Company has accrued an estimated amount it anticipates to pay
for the settlement in Other current liabilities. The amount
accrued is considered immaterial to the financial statements.
Kirkland, Washington-based Clearwire Corporation (NASDAQ: CLWR)
-- http://www.clearwire.com/-- through its operating
subsidiaries, is a provider of 4G mobile broadband network
services in 68 markets, including New York City, Los Angeles,
Chicago, Dallas, Philadelphia, Houston, Miami, Washington, D.C.,
Atlanta and Boston.
CONRAIL: Offers Money to Paulsboro Residents to Avert Class Action
------------------------------------------------------------------
Wendy Saltzman, writing for WPVI, reports that Conrail is offering
Paulsboro residents various amounts of money in exchange for
giving the right to be a part of a class action lawsuit against
the company over the derailment of its tanker cars.
On November 30, 2012, four Conrail tanker cars derailed in Mantua
Creek. One of those cars held 180,000 pounds of vinyl chloride,
that seeped into the air and into the water.
Emergency responders evacuated parts of Paulsboro. But other
residents were left behind, told to close their windows and take
shelter inside.
"I had a funny feeling about the stuff in the air. I knew it was
stuff that could kill you," said resident Charles Ward, who lives
about 12 blocks away from the crash site.
"It sounds kind of strange that they are going to give everybody
$500 to be quiet, I guess," Mr. Ward said.
Like dozens of other residents WPVI observed, Mr. Ward went to the
Family Assistance Center to file a claim and listened as a Conrail
representative promised him cash to sign papers.
"By signing this release you are forever barred from bringing a
lawsuit or any claim against any of the companies or individuals
listed on the release for any reason," a Conrail representative
can be heard saying in an undercover video, after a concerned
resident agreed to take WPVI's hidden camera inside to document
the process on tape.
"Giving up the right to be a part of the class action lawsuit
means that you're giving up the potential to receive more money
than your offered settlement payment," the representative said.
They were offered various amounts of money.
"The railroad is offering you $650," the representative told the
resident.
Those affected were told they could sign the papers now or they
could risk losing a chance at money in the future.
"If I sign this and I was to get cancer, what would happen?" the
resident said.
The Conrail representative responded by saying, "Well first of
all, they would have to prove it was caused by the derailment, and
how are they going to prove that?"
Residents were told they couldn't have a copy of the confidential
agreement, but Action News got one. The contract releases the
company of any liability for the incident, including unknown
injuries spanning from brain damage, dementia, cancer, and even
death.
Action News spoke with Dr. Ray Panettieri, a toxicologist at the
University of Pennsylvania.
"We find extensive studies showing that [vinyl chloride] affects
the liver and it affects the liver in inducing cancer, a very
particular cancer called angiosarcoma," Dr. Panettieri said.
Resident Kristi Kidd and Dawn Emerson both refused the money,
concerned about any illnesses they could suffer in the weeks,
months, and years to come.
"I am not willing to give away my life for $500," Ms. Emerson
said.
WPVI approached Conrail representatives about the contract, but
they would not comment -- only saying, "Would you leave, please?"
and "I'm going to call the police."
Charles Ward says he tried to return the checks, but says the
company refused.
"I called them back the next day and asked if I brought the two
checks back can I get the paperwork, and they just hung up on me
again. They said they won't accept the checks back," Mr. Ward
said.
Once residents sign that paperwork, Conrail says they're bound to
that agreement.
The company did contact Action News later and sent a written
statement saying: The claims process is designed to address claims
fairly and promptly and with finality . . . We will continue to
assist Paulsboro residents and businesses through this process.
This is an important step in Conrail's commitment to the Paulsboro
community.
CONTINENTAL AIRLINES: Judge Dismisses 9/11 WTC Damage Class Action
------------------------------------------------------------------
David McAfee, writing for Law360, reports that a New York federal
judge on Feb. 19 dismissed Continental Airlines Inc. from a
property damage and business loss class action over the 9/11
attacks on the World Trade Center, saying the airline had no
responsibility for the security or screening of passengers on
Flight 11.
The decision comes less than three months after United Air Lines
Inc. was dismissed from the lawsuit filed by the owner of 7 World
Trade Center.
DANIEL RESER: ERISA Suit Settlement Gets Court Approval
-------------------------------------------------------
Before District Judge Charles R. Breyer are three motions relating
to a Proposed Settlement Agreement that resolves the putative
class action brought by Albert John Vincent and Raymond Tormaschy
against Daniel Reser, Fiduciary Services, Inc., Linda Spear, the
Estate of Joel Spear, the Joel and Linda Spear Family Trust,
Southern California Pipeline Construction, Inc., and First Bankers
Trust Services, Inc., for alleged breaches of fiduciary duties of
prudence and loyalty under the Employee Retirement Income Security
Act of 1974:
(1) Plaintiffs' Motion for Final Approval of Class Action
Settlement;
(2) Class Counsel's Motion for Award of Attorneys Fees and
Costs and Named Plaintiffs Incentive Award; and
(3) Defendants' Motion for Good Faith Settlement Approval and
Indemnity and Contribution Bar Order.
The Spears' former financial advisors, BCC Capital Partners, LLC,
Diane Bixler, Michael Harden, Phillip Choo, Glenn M. Gelman, and
Gelman & Associates oppose the Defendants' Good Faith Motion.
On February 19, 2013, Judge Breyer found the Proposed Settlement
as fair, reasonable, and adequate to Class Members pursuant to
Rule 23 of the Federal Rules of Civil Procedure, and granted the
Plaintiffs' Motion for Final Approval. The Court also granted the
Class Counsel's request for $1,281,250 in attorneys' fees,
$103,063.96 in litigation costs, and named plaintiffs incentive
awards of $5,000 each, to be deducted from the Settlement Amount.
Because the Opposition has failed to carry its burden of
demonstrating a lack of good faith, the Court granted the
Defendants' Good Faith Motion.
The case is ALBERT JOHN VINCENT, et al., Plaintiffs, v. DANIEL M.
RESER, et al., Defendants, No. C 11-03572 CRB, (N.D. Cal.).
A copy of the District Court's February 19, 2013 Order is
available at http://is.gd/OU2fIjfrom Leagle.com.
DIRECTSAT USA: Court Ruling Favorable for Class Action Defendants
-----------------------------------------------------------------
Kevin S. Ranlett, Esq., at Mayer Brown reports that the Seventh
Circuit's recent decision in Espenscheid v. DirectSat USA, LLC
authored by Judge Posneris full of good news for employers and
other class-action defendants.
The case is a hybrid collective action under the Fair Labor
Standards Act and opt-out Rule 23(b)(3) class action asserting
state-law wage-and-hour claims. The plaintiffs a group of home
satellite-dish installers who were paid by the job rather than by
the hour sued their employer for allegedly failing to ensure that
they were paid the federal minimum wage and time-and-a-half for
overtime work. The district court initially certified the
collective and class actions, but decertified them after seeing
the plaintiffs' trial plan. The Seventh Circuit affirmed.
There's a lot to like about the decision:
The court holds that the standard for certifying an opt-in
collective actions is the same as the standard for certifying an
opt-out class action under Rule 23. That's great news for
employers. Other courts have held that the standard for
certifying collective actions is more lenientin our view, more
loosey-gooseythan the requirements of Rules 23(a) and (b)(3). See,
e.g., O'Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567, 584-85
(6th Cir. 2009).
The Seventh Circuit approved of the district court's decision
requiring the plaintiffs to submit a "specific plan for litigating
the case" as it had been initially certified. Such a request is
"reasonable," the court explained, "given the difficulty of trying
a class action." The court's approval of this growing trend of
requiring plaintiffs to submit detailed trial plans benefits
defendants in all types of class actions; such plans often smoke
out individualized issues and make clear that the proposed class
would be hopelessly unmanageable at trial.
Because the trial plan submitted by class counsel confirmed that
calculating damages would require individualized inquiries, the
Seventh Circuit held that the class was properly decertified.
That's great news: Many courts have disregarded individualized
issues as to damages by invoking the mantra that they pose no
obstacle to class certification. These courts, of course,
virtually never have to try these cases, which almost invariably
settle after certification. But the Seventh Circuit recognized
that "2341 separate evidentiary hearings" on damages one for every
technician "might swamp the Western District of Wisconsin with its
two district judges." And although it's "realistic" to assume
that the defendant "would settle" rather than try the class
action, "class counsel cannot be permitted to force settlement by
refusing to agree to a reasonable method of trial should
settlement negotiations fail."
The Seventh Circuit rejected the plaintiffs' proposal to prove
damages by presenting testimony from 42 "representative" class
members a practice permitted by a few other courts (such as the
Sixth Circuit in O'Brien). The Seventh Circuit explained that the
sample was not randomly selected in a statistically sound way.
And the court added that even if the sample had been random, "this
[approach] would not enable the damages of any members of the
class other than the 42 to be calculated." Extrapolating from
these class members' experiences would result in under
compensating some workers and overcompensating others. At bottom,
the Seventh Circuit explained, the plaintiffs were "ask[ing] the
district judge to embark on a shapeless, free-wheeling trial that
would combine liability and damages and would be virtually
evidence-free so far as damages were concerned."
Finally, the Seventh Circuit reminded plaintiffs that they must
explain why their proposed collective or class action is superior
to an enforcement action by the Department of Labor. Defendants
in other types of class actions can cite this language when
faulting plaintiffs for failing to seek other types of regulatory
or administrative relief.
Mayer Brown's Mr. Ranlett has one quibble with the decision. The
Seventh Circuit noted in dicta that the class might have been
certified had the plaintiffs been seeking declaratory or
injunctive relief instead of damages. That doesn't make sense to
me. In explaining the thorny individualized questions that must
be answered to determine damages, the Seventh Circuit makes clear
that a number of them in fact go to injury. For example,
converting an employee's per-job rate into an hourly wage might
demonstrate that he or she is being paid above the federal minimum
wage. Some efficient workers might not have worked overtime. And
some workers may have underreported their hours not because of any
pressure from their employer, but because they wanted to appear
especially efficient and thus worthy of promotion. These workers
not only have suffered no damages, they are not injured which
negates liability. Individualized issues as to liability should
preclude certification regardless of the type of relief the
plaintiffs seek.
Nonetheless, Espenscheid is a great win for employers and class-
action defendants in general.
Mayer Brown is a global legal services provider comprising legal
practices that are separate entities (the "Mayer Brown
Practices"). The Mayer Brown Practices are: Mayer Brown LLP and
Mayer Brown Europe - Brussels LLP, both limited liability
partnerships established in Illinois USA; Mayer Brown
International LLP, a limited liability partnership incorporated in
England and Wales (authorized and regulated by the Solicitors
Regulation Authority and registered in England and Wales number OC
303359); Mayer Brown, a SELAS established in France; Mayer Brown
JSM, a Hong Kong partnership and its associated entities in Asia;
and Tauil & Chequer Advogados, a Brazilian law partnership with
which Mayer Brown is associated. "Mayer Brown" and the Mayer
Brown logo are the trademarks of the Mayer Brown Practices in
their respective jurisdictions.
DYNEGY INC: Bankr. Court Won't Enforce Plan Order on Class Suit
---------------------------------------------------------------
Bankruptcy Judge Cecelia G. Morris denied the motion of Dynegy
Inc. to enforce the Bankruptcy Court's Order Confirming the Joint
Chapter 11 Plan of Reorganization for Dynegy Holdings, LLC and
Dynegy, Inc. The Debtor argues that the amended complaint filed
by Steven Lucas, the Lead plaintiff in a securities litigation
pending in the United States District Court for the Southern
District of New York violates paragraph 55(D) of the Confirmation
Order. Because the Court finds that the Confirmation Order does
not prohibit the Lead Plaintiff from filing an amended complaint,
the Debtor's motion is denied. The Court abstains from
considering whether the individual causes of action violate the
Confirmation Order in favor of District Court.
A copy of the Court's Feb. 15 Memorandum Decision is available at
http://is.gd/XPzTiIfrom Leagle.com.
Lowenstein Sandler PC's John Sherwood -- jsherwood@lowenstein.com
-- in Roseland, New Jersey; and Levi Korinsky, LLP's Nicolas I.
Porritt -- nporritt@zlk.com -- in Washington, DC, represent Steven
Lucas, Lead Plaintiff.
About Dynegy
Through its subsidiaries, Houston, Texas-based Dynegy Inc.
(NYSE: DYN) -- http://www.dynegy.com/-- produces and sells
electric energy, capacity and ancillary services in key U.S.
markets. The power generation portfolio consists of approximately
12,200 megawatts of baseload, intermediate and peaking power
plants fueled by a mix of natural gas, coal and fuel oil.
Dynegy Holdings LLC and four other affiliates of Dynegy Inc.
sought Chapter 11 bankruptcy protection (Bankr. S.D.N.Y. Lead Case
No. 11-38111) on Nov. 7, 2011, to implement an agreement with a
group of investors holding more than $1.4 billion of senior notes
issued by Dynegy's direct wholly-owned subsidiary, Dynegy
Holdings, regarding a framework for the consensual restructuring
of more than $4.0 billion of obligations owed by DH. If this
restructuring support agreement is successfully implemented, it
will significantly reduce the amount of debt on the Company's
consolidated balance sheet. Dynegy Holdings disclosed assets of
$13.77 billion and debt of $6.18 billion.
Dynegy Inc. on July 6, 2012, filed a voluntary petition to
reorganize under Chapter 11 (Bankr. S.D.N.Y. Case No. 12-36728) to
effectuate a merger with Dynegy Holdings, pursuant to Holdings'
Chapter 11 plan.
A settlement, which has already been approved by the bankruptcy
court, provides for Dynegy Inc. and Holdings to merge and for the
administrative claim granted to Dynegy Inc. in the Holdings
Chapter 11 case to be transferred out of Dynegy Inc. for the
benefit of its shareholders.
Dynegy Holdings and its affiliated debtor-entities are represented
in the Chapter 11 proceedings by Sidley Austin LLP as their
reorganization counsel. Dynegy and its other subsidiaries are
represented by White & Case LLP, who is also special counsel to
the Debtor Entities with respect to the Roseton and Danskammer
lease rejection issues. The financial advisor is FTI Consulting.
The Official Committee of Unsecured Creditors in Holdings' cases
has tapped Akin Gump Strauss Hauer & Feld LLP as counsel.
Dynegy Inc. is represented by White & Case LLP and advised by
Lazard Freres & Co. LLC.
Dynegy Inc. completed its Chapter 11 reorganization and emerged
from bankruptcy October 1.
Dynegy Northeast Generation, Inc., Hudson Power, L.L.C., Dynegy
Danskammer, L.L.C. and Dynegy Roseton, L.L.C., remain under
Chapter 11 protection.
As of July 31, 2012, Dynegy Inc. had total assets of
$3.15 billion, total liabilities of $3.14 billion, and total
stockholders' equity of $6.68 million.
FORD MOTOR: Faces Suit Over Defects on 2011-2012 F150 Pickups
-------------------------------------------------------------
Courthouse News Service reports that Ford's 2011-2012 F 150
pickups have numerous design and manufacturing defects that make
them misfire and lose power, a class action claims in Federal
Court.
INTEGRATED ELECTRICAL: Defends Two Wage and Hour Class Suits
------------------------------------------------------------
Integrated Electrical Services, Inc. is defending two class action
lawsuits alleging violations of wage and hour laws, according to
the Company's February 14, 2013, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended December
31, 2012.
On August 29, 2012, the Company was served with a wage and hour
lawsuit seeking class action certification. On December 4, 2012,
the Company was served with a second lawsuit, which included the
same allegations but different named plaintiffs. These two cases
are almost identical to several others filed by Plaintiffs'
attorney against contractors working in the Port Arthur Motiva
plant on various projects over the last few years. The claims are
based on alleged failure to compensate for time spent bussing to
and from the plant, donning safety wear and other activities. It
does not appear the Company will face significant exposure for any
unpaid wages. In a separate earlier case based on the same
allegations, a federal district court ruled that the time spent
traveling on the busses is not compensable. In early January
2013, the U.S. Court of Appeals for the Fifth Circuit upheld the
district court's ruling finding no liability for wages for time
spent on bussing into the facility. The Company's investigation
indicates that all other activities alleged either were
inapplicable to the Company's employees or took place during times
for which the Company's employees were compensated. The Company
has filed responsive pleadings and, following initial discovery,
will seek dismissal of the case through summary judgment.
As of December 31, 2012, the Company has not recorded a reserve
for this matter, as it believes the likelihood of its
responsibility for damages is not probable and a potential range
of exposure is not estimable.
Houston, Texas-based Integrated Electrical Services Inc. provides
services in the design, installation, and maintenance of
electrical wiring and data communication systems in offices, high-
rise apartments, hospitals, factories, and airports. In 2006 it
declared bankruptcy, emerging after three months.
KASEL ASSOCIATED: Recalls All Products From Denver, CO Facility
---------------------------------------------------------------
Kasel Associated Industries of Denver, Colorado, is voluntarily
recalling ALL PRODUCTS MANUFACTURED AT ITS DENVER, COLORADO
FACILITY FROM APRIL 20, 2012, THRU SEPTEMBER 19, 2012, due to
possible Salmonella contamination. Salmonella can sicken animals
that eat these products and humans are at risk for Salmonella
poisoning from handling contaminated pet products, especially if
they have not thoroughly washed their hands after having contact
with the pet products or any surfaces exposed to these products.
Healthy people infected with Salmonella should monitor themselves
for some or all of the following symptoms: nausea, vomiting,
diarrhea or bloody diarrhea, abdominal cramping and fever.
Rarely, Salmonella can result in more serious ailments, including
arterial infections, endocarditis, arthritis, muscle pain, eye
irritation, and urinary tract symptoms. Consumers exhibiting
these symptoms after having contact with this product should
contact their healthcare providers.
Pets with Salmonella infections may be lethargic and have diarrhea
or bloody diarrhea, fever, and vomiting. Some pets will have only
decreased appetite, fever and abdominal pain. Infected but
otherwise healthy pets can be carriers and infect other animals or
humans. If your pet has consumed the recalled product and has any
of these signs, please contact your veterinarian.
The recalled Products of Dog Treats were distributed nationwide
through various retailers from April 20th to September 19th.
Kasel Industries is recalling Boots & Barkley, BIXBI, Nature's
Deli, Colorado Naturals, Petco, and Best Bully Stick items. Lot
numbers as shown in 1 Year Best By Date Table and 2 Year Best By
Date Table, which are attached.
Kasel Industries has not received any reports of illnesses to date
in connection with these products.
No other products made by Kasel Associated Industries are included
in the recall. Specifically no products with best by dates after
the specified ranges are included in the recall.
Consumers who have purchased any listed products are urged to
return them to the place of purchase for a full refund. Consumers
with questions may contact Kasel Associated Industries at (800)
218-4417 Monday thru Friday from 7:00 a.m. to 5:00 p.m. Mountain
Daylight Time.
2 Year Best By Date
-----------------------------------------------------------
UPC Product Name/Size Lot/Best By Date
--- ----------------- ----------------
085239043165 Boots&Barkley American 20APR2014 DEN -
Beef Bully Stick 12" 03OCT2014 DEN
085239403495 Boots&Barkley American 20APR2014 DEN -
Smoked Beef Femur Bone 3" 03OCT2014 DEN
085239043103 Boots&Barkley 20APR2014 DEN -
American Flossie 6-8" 03OCT2014 DEN
085239403440 Boots&Barkley American 20APR2014 DEN -
Pig Ear Strips 8 oz 03OCT2014 DEN
085239043202 Boots&Barkley American 20APR2014 DEN -
Chicken Stuffed Beef 03OCT2014 DEN
Femur Bone 6"
085239043110 Boots&Barkley American 20APR2014 DEN -
Braided Bully Stick 5" 03OCT2014 DEN
085239043325 Boots&Barkley American 20APR2014 DEN -
Chicken Jerky 16 oz 03OCT2014 DEN
085239043400 Boots&Barkley American 20APR2014 DEN -
Chicken Jerky 8 oz 03OCT2014 DEN
490830400086 Boots&Barkley American 20APR2014 DEN -
Variety Pack 32 oz 03OCT2014 DEN
647263899196 Boots&Barkley American 20APR2014 DEN -
Beef Ribs 2 ct 03OCT2014 DEN
647263899172 Boots&Barkley American 20APR2014 DEN -
Beef Knuckle 03OCT2014 DEN
647263899158 Boots&Barkley American 20APR2014 DEN -
Pig Ears 12 ct 03OCT2014 DEN
647263899189 Boots&Barkley American 20APR2014 DEN -
Beef Bully Sticks 6 ct 03OCT2014 DEN
647263899165 Boots&Barkley American 20APR2014 DEN -
Pork Femur 03OCT2014 DEN
681131857246 Roasted Pig Ear Dog Treats 04202014 DEN -
28 oz 10032014 DEN
800443092903 25 PK Natural Pig Ears 04202014 DEN -
10032014 DEN
800443092910 12 PK Natural Pig Ears 04202014 DEN -
10032014 DEN
800443092927 12 PK Smoked Pig Ears 04202014 DEN -
10032014 DEN
800443092934 7 PK Natural Pig Ears 04202014 DEN -
10032014 DEN
800443092941 7 PK Smoked Pig Ears 04202014 DEN -
10032014 DEN
647263800291 16 oz Chicken Chips 04202014 DEN -
10032014 DEN
647263900151 16 oz Salmon Jerky 04202014 DEN -
10032014 DEN
647263800178 4 oz Chicken Jerky 04202014 DEN -
10032014 DEN
647263510176 4 oz Lamb Jerky 04202014 DEN -
10032014 DEN
647263900175 4 oz Salmon Jerky 04202014 DEN -
10032014 DEN
647263801175 4 oz Beef Jerky 04202014 DEN -
10032014 DEN
647263800291 16 oz Chicken Jerky 04202014 DEN -
10032014 DEN
647263700157 16 oz Pork Jerky 04202014 DEN -
10032014 DEN
091037018021 BIXBI Skin & Coat Beef 04202014 DEN -
Liver Jerky 5 oz 10032014 DEN
091037018045 BIXBI Skin & Coat Lamb 04202014 DEN -
Jerky 5 oz 10032014 DEN
091037018007 BIXBI Skin & Coat Chicken 04202014 DEN -
Breast Jerky Treats 5 oz 10032014 DEN
091037018069 BIXBI Skin & Coat Pork 04202014 DEN -
Jerky 5 oz 10032014 DEN
091037018144 BIXBI Hip And Joint Pork 04202014 DEN -
Jerky 5 oz 10032014 DEN
091037018120 BIXBI Hip And Joint Lamb 04202014 DEN -
Jerky 5 oz 10032014 DEN
091037018083 BIXBI Hip And Joint 04202014 DEN -
Chicken Breast Jerky 5 oz 10032014 DEN
091037018106 BIXBI Hip And Joint Beef 04202014 DEN -
Liver Jerky 5 oz 10032014 DEN
Bulk TDBBS, Inc Buffalo Hearts 04202014 DEN -
Sliced 3 lbs 10032014 DEN
Bulk TDBBS, Inc Knee Caps 25 Ct 04202014 DEN -
10032014 DEN
Unknown TDBBS, Inc Pork Jerky 04202014 DEN -
Strips 16 oz 10032014 DEN
Unknown TDBBS, Inc Chicken Jerky 04202014 DEN -
16 oz 10032014 DEN
Unknown TDBBS, Inc Turkey Cubes 04202014 DEN -
4.5 oz 10032014 DEN
Bulk TDBBS, Inc Pig Snouts 25 ct 04202014 DEN -
10032014 DEN
Bulk TDBBS, Inc Beef Lobster 04202014 DEN -
Tails 1 ct 10032014 DEN
Unknown TDBBS, Inc Turkey Jerky 04202014 DEN -
Sticks 6 ct 10032014 DEN
Unknown TDBBS, Inc Hearts of Lamb 04202014 DEN -
4 oz 10032014 DEN
Unknown TDBBS, Inc Lamb Jerky 4 oz 04202014 DEN -
10032014 DEN
1 Year Best By Date
-----------------------------------------------------------
UPC Product Name/Size Lot/Best By Date
--- ----------------- ----------------
647263800215 Nature's Deli Chicken 04202013 DEN -
Jerky 3 lbs 10032013 DEN
647263800208 Nature's Deli Chicken 04202013 DEN -
Jerky 2.5 lbs 10032013 DEN
KELLOGG CO: Recalls Special K Red Berries Cereal Packages
---------------------------------------------------------
Nathalie Tadena of The Wall Street Journal reports that Kellogg
Co. is voluntarily recalling three sizes of its Special K Red
Berries cereal packages due to the possible presence of glass
fragments.
There have been no reports of injuries associated with the
recalled product, Kellogg said on its Web site. The packages in
question were sold at various retailers across the U.S.
Kellogg is trying to get its business back after having to pour
money into improving its supply chain following two major product
recalls in recent years. Late last year, Kellogg recalled 2.8
million boxes of Mini-Wheats cereal due to the possible presence
of metal mesh fragments.
Two weeks ago, the Company -- known for such brands as Pop-Tarts,
Rice Krispies and Nutri-Grain -- reported its fourth-quarter sales
rose 18.2%, helped by its recent acquisitions of Pringles, growth
in Latin America and improving results in North America.
In the latest recall, Kellogg said it is recalling the 11.2 ounce
packages with UPC code 3800059923 and a "better if used before"
date of Dec. 2, 2013, followed by KNC 105 with a time stamp of
00:13-2:30; the 22.4 ounce twin pack with UPC code 3800078356 and
"better if used before" date of Nov. 30, 2013, followed by KNA 105
with a time stamp of 07:00-08:51 or a time stamp of 15:00-17:05;
and the 37 ounce package with UPC code 3800020940 and a "better if
used before" date of Nov. 30 followed by KNB 107 with a time stamp
of 17:31-20:05.
Consumers affected by the recall should contact the Company for a
replacement coupon.
LG CHEM: Faces Another Lithium Ion Battery Price-Fixing Suit
------------------------------------------------------------
Polly Cohen, On Behalf of Herself and All Others Similarly
Situated v. LG Chem, Ltd., LG Chem America, Inc., Panasonic
Corporation, Panasonic Corporation of North America, Sanyo
Electric Co., Ltd., Sanyo North America Corporation, Sony
Corporation, Sony Energy Devices Corporation, Sony Electronics,
Inc., Samsung SDI Co. Ltd., Samsung SDI America, Inc., Hitachi,
Ltd., Hitachi Maxell, Ltd., Maxell Corporation of America, Case
No. 3:13-cv-00761 (N.D. Cal., February 20, 2013) is a proposed
class action lawsuit against the world's largest manufacturers of
Lithium Ion Rechargeable Batteries, who allegedly combined or
conspired to fix, at supra-competitive prices, the prices of those
batteries.
The Defendants and other unknown conspirators agreed, combined and
conspired to inflate, fix, raise, maintain, or artificially
stabilize prices of Lithium Ion Rechargeable Batteries, as well as
implemented practices to facilitate such activities, Ms. Cohen
alleges. She asserts that the proposed class consists of (i)
consumers, who indirectly purchased a stand-alone Lithium Ion
Rechargeable Battery, or (ii) consumers of electronics product
containing a Lithium Ion Rechargeable Battery manufactured by the
Defendants during the period from January 1, 2002, through the
present.
Ms. Cohen is a resident of Sharon, Massachusetts. In February
2008, she bought a Nintendo Wii at a Wal-Mart store in Walpole,
Massachusetts. The Wii system contained a Lithium Ion
Rechargeable Battery, bearing the identifier CR2032 3V
manufactured by the Hitachi Defendants.
LG Chem is a Korean corporation based in Seoul, South Korea. LG
Chem is an affiliate of Seoul-based conglomerate LG Electronics.
LG Chem America is a New Jersey corporation based in Englewood
Cliffs, New Jersey, and a wholly owned subsidiary of LG Chem.
Panasonic Corp. is a Japanese corporation based in Osaka, Japan.
Panasonic Corp. was formerly known as Matsushita Electric
Industrial Co. Panasonic manufactures and sells Lithium Ion
Rechargeable Batteries under the Panasonic name and also under the
name of Defendant and wholly owned subsidiary Sanyo Electric Co.,
Ltd. Panasonic Corporation of North America, formerly known as
Matsushita Electric Corporation of America, is a Delaware
Corporation based in Secaucus, New Jersey, and a wholly owned and
controlled subsidiary of Panasonic Corporation. Sanyo is a
Japanese corporation based in Osaka, Japan. Sanyo North America
Corporation is a Delaware corporation based in San Diego,
California, and a wholly owned subsidiary of Sanyo Electric Co.,
Ltd.
Sony Corporation is a Japanese corporation based in Tokyo, Japan.
Sony Energy is a Japanese corporation based in Fukushima, Japan.
Sony Energy Devices Corporation is a wholly owned subsidiary of
Sony Corporation. Sony Electronics is a Delaware corporation
based in San Diego, California, and a wholly owned subsidiary of
Sony Corporation.
Samsung SDI is a Korean corporation based in Gyeonggi, South
Korea, and 20% owned by the Korean conglomerate Samsung
Electronics, Inc. Samsung SDI America is a California corporation
based in San Jose, California, and a wholly owned subsidiary of
Samsung SDI.
Hitachi Ltd. is a Japanese company based in Tokyo, Japan. Hitachi
Maxell is a Japanese corporation based in Tokyo, Japan, and a
wholly owned subsidiary of Hitachi, Ltd. Maxell is a New Jersey
corporation based in Woodland Park, New Jersey.
The Defendants manufacture, market, and sell Lithium Ion
Rechargeable Batteries throughout the United States and the world.
The Defendants collectively controlled approximately two-thirds or
more of the worldwide market for Lithium Ion Rechargeable
Batteries throughout this period, and over 80 percent of the
market in the early part of this period.
The Plaintiff is represented by:
Robert S. Green, Esq.
James Robert Noblin, Esq.
Lesley E. Weaver, Esq.
GREEN & NOBLIN, P.C.
700 Larkspur Landing Circle, Suite 275
Larkspur, CA 94939
Telephone: (415)477-6700
Facsimile: (415)477-6710
E-mail: gnecf@classcounsel.com
cand.uscourts@classcounsel.com
gn@classcounsel.com
- and -
Louise H. Renne, Esq.
RENNE, SLOAN, HOLTZMAN & SAKAI LLP
350 Sansome Street, Suite 300
San Francisco, CA 94104
Telephone: (415) 678-3800
Facsimile: (415) 678-3838
E-mail: lrenne@publiclawgroup.com
- and -
Jeffrey C. Block, Esq.
Mark A. Delaney, Esq.
Whitney E. Street, Esq.
BLOCK & LEVITON LLP
155 Federal Street, Suite 1303
Boston, MA 02110
Telephone: (617) 398-5600
Facsimile: (617) 507-6020
E-mail: Jeff@blockesq.com
Mark@blockesq.com
Whitney@blockesq.com
MASTERCARD INC: April Hearing Set on Consumer Suits' Revised Deal
-----------------------------------------------------------------
A hearing will be held in April 2013 on the final approval of
MasterCard Incorporated's revised settlement of consumer class
action lawsuits commenced in California, according to the
Company's February 14, 2013, Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended
December 31, 2012.
Commencing in October 1996, several class action lawsuits were
brought by a number of U.S. merchants against MasterCard
International and Visa U.S.A., Inc. challenging certain aspects of
the payment card industry under U.S. federal antitrust law. The
plaintiffs claimed that MasterCard's "Honor All Cards" rule (and a
similar Visa rule), which required merchants who accept MasterCard
cards to accept for payment every validly presented MasterCard
card, constituted an illegal tying arrangement in violation of
Section 1 of the Sherman Act. In June 2003, MasterCard
International signed a settlement agreement to settle the claims
brought by the plaintiffs in this matter, which the Court approved
in December 2003. Pursuant to the settlement, MasterCard agreed,
among other things, to create two separate "Honor All Cards" rules
in the United States -- one for debit cards and one for credit
cards.
In addition, individual or multiple complaints have been brought
in 19 states and the District of Columbia alleging state unfair
competition, consumer protection and common law claims against
MasterCard International (and Visa) on behalf of putative classes
of consumers. The claims in these actions largely mirror the
allegations made in the U.S. merchant lawsuit and assert that
merchants, faced with excessive interchange fees, have passed
these overhead charges to consumers in the form of higher prices
on goods and services sold. MasterCard has successfully resolved
the cases in all of the jurisdictions except California, where
there continues to be outstanding cases. In September 2009, the
parties to the California state court actions executed a
settlement agreement which required a payment by MasterCard of $6
million, subject to approval by the California state court. In
August 2010, the court granted final approval of the settlement,
subsequent to which MasterCard made the payment required by the
settlement agreement. The plaintiff from the "Attridge" action
and three other objectors filed appeals of the settlement approval
order. In January 2012, the Appellate Court reversed the trial
court's settlement approval and remanded the matter to the trial
court for further proceedings. In August 2012, the parties in the
California consumer actions filed a motion seeking approval of a
revised settlement agreement.
In November 2012, the trial court granted preliminary approval of
the settlement and scheduled a hearing on the final approval of
the settlement for April 2013.
MASTERCARD INC: Defends Various Suits by Canadian Merchants
-----------------------------------------------------------
MasterCard Incorporated is defending lawsuits in various Canadian
courts filed by merchants, according to the Company's
February 14, 2013, Form 10-K filing with the U.S. Securities and
Exchange Commission for the year ended December 31, 2012.
In December 2010, the Canadian Competition Bureau filed an
application with the Canadian Competition Tribunal to strike down
certain MasterCard rules related to point-of-sale acceptance,
including the "honor all cards" and "no surcharge" rules. The
hearing on the matter was held before the Canadian Competition
Tribunal and was completed in June 2012. The parties are awaiting
a decision from the Canadian Competition Tribunal.
In December 2010, a complaint styled as a class action lawsuit was
commenced against MasterCard in Quebec on behalf of Canadian
merchants. That lawsuit essentially repeated the allegations and
arguments of the CCB application to the Canadian Competition
Tribunal and sought compensatory and punitive damages in
unspecified amounts, as well as injunctive relief. In March 2011,
a second purported class action lawsuit was commenced in British
Columbia against MasterCard, Visa and a number of large Canadian
financial institutions, and in May 2011 a third purported class
action lawsuit was commenced in Ontario against the same
defendants. These lawsuits allege that MasterCard, Visa and the
financial institutions have engaged in a conspiracy to increase or
maintain the fees paid by merchants on credit card transactions
and establish rules which force merchants to accept all MasterCard
and Visa credit cards and prevent merchants from charging more for
payments with MasterCard and Visa premium cards. The British
Columbia lawsuit seeks compensatory damages in unspecified
amounts, and the Ontario lawsuit seeks compensatory damages of $5
billion. The British Columbia and Ontario lawsuits also seek
punitive damages in unspecified amounts, as well as injunctive
relief, interest and legal costs.
In April 2012, the Quebec lawsuit was amended to include the same
defendants and similar claims as in the British Columbia and
Ontario lawsuits. With respect to status of the proceedings: (1)
the Quebec lawsuit was stayed in June 2012 until June 2013,
subject to an ongoing obligation to report to the case management
judge, (2) the Ontario lawsuit is being temporarily suspended
while the British Columbia lawsuit proceeds, and (3) the British
Columbia court has scheduled a class certification hearing for
April 2013.
Additional complaints styled as class actions have been filed in
Saskatchewan and Alberta. The claims in these complaints largely
mirror the claims in the British Columbia and Ontario lawsuits.
If the CCB's challenges and/or the class action lawsuits are
ultimately successful, the Company says the negative decisions
could have a significant adverse impact on the revenues of
MasterCard's Canadian customers and on MasterCard's overall
business in Canada and, in the case of the private lawsuits, could
result in substantial damage awards.
MASTERCARD INC: April Hearing Set in "Attridge" Related Suit
------------------------------------------------------------
A hearing on the final approval of a settlement agreement, which
includes a release that the parties believe encompasses the claims
asserted in the Attridge action is scheduled for April 2013,
according to MasterCard Incorporated's February 14, 2013, Form 10-
K filing with the U.S. Securities and Exchange Commission for the
year ended December 31, 2012.
In October 1998, the U.S. Department of Justice ("DOJ") filed a
lawsuit against MasterCard International, Visa U.S.A., Inc. and
Visa International Corp. in the U.S. District Court for the
Southern District of New York alleging that both MasterCard's and
Visa's governance structure and policies violated U.S. federal
antitrust laws. The DOJ challenged (1) "dual governance", where a
financial institution has a representative on the Board of
Directors of MasterCard or Visa while a portion of its card
portfolio is issued under the brand of the other association, and
(2) both MasterCard's Competitive Programs Policy ("CPP") and a
Visa bylaw provision that prohibited financial institutions
participating in the respective associations from issuing
competing proprietary payment cards (such as American Express or
Discover). In October 2001, the judge issued an opinion upholding
the legality and pro-competitive nature of dual governance.
However, the judge also held that MasterCard's CPP and the Visa
bylaw constituted unlawful restraints of trade under the federal
antitrust laws. The judge subsequently issued a final judgment
that ordered MasterCard to repeal the CPP and enjoined MasterCard
from enacting or enforcing any bylaw, rule, policy or practice
that prohibits its issuers from issuing general purpose credit or
debit cards in the United States on any other general purpose card
network.
In April 2005, a complaint was filed in California state court on
behalf of a putative class of consumers under California unfair
competition law (Section 17200) and the Cartwright Act (the
"Attridge action"). The claims in this action seek to piggyback
on the portion of the DOJ antitrust litigation with regard to the
District Court's findings concerning MasterCard's CPP and Visa's
related bylaw. The Court granted the defendants' motion to
dismiss the plaintiffs' Cartwright Act claims but denied the
defendants' motion to dismiss the plaintiffs' Section 17200 unfair
competition claims. The parties have proceeded with discovery.
In September 2009, MasterCard executed a settlement agreement that
is subject to court approval in the separate California consumer
litigations (see "U.S. Merchant and Consumer Litigations"). The
agreement includes a release that the parties believe encompasses
the claims asserted in the Attridge action. In August 2010, the
Court in the California consumer actions granted final approval to
the settlement. The plaintiff from the Attridge action and three
other objectors filed appeals of the settlement approval. In
January 2012, the Appellate Court reversed the trial court's
settlement approval and remanded the matter to the trial court for
further proceedings. In August 2012, the parties in the
California consumer actions filed a motion seeking approval of a
revised settlement agreement. In November 2012, the trial court
granted preliminary approval of the settlement and scheduled a
hearing on the final approval of the settlement for April 2013.
MASTERCARD INC: Sept. Hearing on U.S. Merchant Suits' Deals
-----------------------------------------------------------
A hearing for the final approval of MasterCard Incorporated's
settlements in the U.S. merchant litigation is scheduled for
September 2013, according to the Company's February 14, 2013, Form
10-K filing with the U.S. Securities and Exchange Commission for
the year ended December 31, 2012.
In June 2005, the first of a series of complaints were filed on
behalf of merchants (the majority of the complaints are styled as
class actions, although a few complaints are filed on behalf of
individual merchant plaintiffs) against MasterCard International
Incorporated, Visa U.S.A., Inc., Visa International Service
Association and a number of customer financial institutions. Taken
together, the claims in the complaints are generally brought under
both Sections 1 and 2 of the Sherman Act, which prohibit
monopolization and attempts or conspiracies to monopolize a
particular industry, and some of these complaints contain unfair
competition law claims under state law. The complaints allege,
among other things, that MasterCard, Visa, and certain of their
customer financial institutions conspired to set the price of
interchange fees, enacted point of sale acceptance rules
(including the no surcharge rule) in violation of antitrust laws
and engaged in unlawful tying and bundling of certain products and
services. The cases have been consolidated for pre-trial
proceedings in the U.S. District Court for the Eastern District of
New York in MDL No. 1720. The plaintiffs have filed a
consolidated class action complaint that seeks treble damages, as
well as attorneys' fees and injunctive relief.
In July 2006, the group of purported merchant class plaintiffs
filed a supplemental complaint alleging that MasterCard's initial
public offering of its Class A Common Stock in May 2006 (the
"IPO") and certain purported agreements entered into between
MasterCard and its customer financial institutions in connection
with the IPO: (1) violate U.S. antitrust laws and (2) constitute a
fraudulent conveyance because the customer financial institutions
are allegedly attempting to release, without adequate
consideration, MasterCard's right to assess them for MasterCard's
litigation liabilities. In November 2008, the district court
granted MasterCard's motion to dismiss the plaintiffs'
supplemental complaint in its entirety with leave to file an
amended complaint. The class plaintiffs repled their complaint.
The causes of action and claims for relief in the complaint
generally mirror those in the plaintiffs' original IPO-related
complaint although the plaintiffs have attempted to expand their
factual allegations based upon discovery that has been garnered in
the case. The class plaintiffs seek treble damages and injunctive
relief including, but not limited to, an order reversing and
unwinding the IPO. In July 2009, the class plaintiffs and
individual plaintiffs served confidential expert reports detailing
the plaintiffs' theories of liability and alleging damages in the
tens of billions of dollars. The defendants served their expert
reports in December 2009 rebutting the plaintiffs' assertions both
with respect to liability and damages.
In February 2011, MasterCard and MasterCard International
Incorporated entered into each of: (1) an omnibus judgment sharing
and settlement sharing agreement with Visa Inc., Visa U.S.A. Inc.
and Visa International Service Association and a number of
customer financial institutions; and (2) a MasterCard settlement
and judgment sharing agreement with a number of customer financial
institutions. The agreements provide for the apportionment of
certain costs and liabilities which MasterCard, the Visa parties
and the customer financial institutions may incur, jointly and/or
severally, in the event of an adverse judgment or settlement of
one or all of the cases in the interchange merchant litigations.
Among a number of scenarios addressed by the agreements, in the
event of a global settlement involving the Visa parties, the
customer financial institutions and MasterCard, MasterCard would
pay 12% of the monetary portion of the settlement. In the event
of a settlement involving only MasterCard and the customer
financial institutions with respect to their issuance of
MasterCard cards, MasterCard would pay 36% of the monetary portion
of such settlement.
On July 13, 2012, MasterCard entered into a Memorandum of
Understanding ("MOU") to settle the merchant class litigation, and
separately agreed in principle to settle all claims brought by the
individual merchant plaintiffs. The MOU sets out a binding
obligation to enter into a settlement agreement, and is subject
to: (1) the successful completion of certain appendices, (2) the
successful negotiation of a settlement agreement with the
individual merchant plaintiffs, (3) final court approval of the
class settlement, and (4) any necessary internal approvals for the
parties. MasterCard's financial portion of the settlements is
estimated to total $790 million on a pre-tax basis. Of that
total, MasterCard recorded a pre-tax charge of $770 million in the
fourth quarter of 2011 and an additional $20 million pre-tax
charge in the second quarter of 2012. In addition to the
financial portion of the settlement, U.S. merchant class members
would also receive a 10 basis point reduction in default credit
interchange fees for a period of eight months, funded by a
corresponding reduction in the default credit interchange fees
paid by acquirers to issuers. MasterCard would also be required
to modify its No Surcharge Rule to permit U.S. merchants to
surcharge MasterCard credit cards, subject to certain limitations
set forth in the class settlement agreement.
On October 19, 2012, the parties entered into a definitive
settlement agreement with respect to the merchant class litigation
(consistent with the terms of the MOU), and separately also
entered into a settlement agreement with the individual merchant
plaintiffs. The merchant class litigation settlement agreement is
subject to court approval. The parties to the merchant class
litigation filed a motion seeking preliminary approval of the
settlement on October 19, 2012, and the court granted preliminary
approval of the settlement on November 27, 2012, and scheduled a
final approval hearing for September 2013.
In 2012, the Company paid $790 million with respect to the
settlements, of which $726 million was paid into a qualified
settlement fund related to the merchant class litigations. Rule
practice changes required by the settlement were implemented in
late January 2013. In the event that the merchant class
litigation settlement agreement is not approved by the court, or
if the class settlement agreement is otherwise terminated by the
defendants pursuant to the conditions in the settlement agreement
and the litigations are not settled, a negative outcome in the
litigation could have a material adverse effect on MasterCard's
results of operations, financial position and cash flows.
MASTERCARD INC: Wins Dismissal of ATM Surcharges Suits
------------------------------------------------------
MasterCard Incorporated's motion to dismiss complaints over ATM
rule surcharges was granted without prejudice, according to the
Company's February 14, 2013, Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended
December 31, 2012.
In October 2011, a trade association of independent Automated
Teller Machine ("ATM") operators and 13 independent ATM operators
filed a complaint styled as a class action lawsuit in the U.S.
District Court for the District of Columbia against both
MasterCard and Visa (the "ATM Operators Complaint"). Plaintiffs
seek to represent a class of non-bank operators of ATM terminals
that operate ATM terminals in the United States with the
discretion to determine the price of the ATM access fee for the
terminals they operate. Plaintiffs allege that MasterCard and
Visa have violated Section 1 of the Sherman Act by imposing rules
that require ATM operators to charge non-discriminatory ATM
surcharges for transactions processed over MasterCard's and Visa's
respective networks that are not greater than the surcharge
charged for transactions over other networks accepted at the same
ATM. Plaintiffs seek both injunctive and monetary relief equal to
treble the damages they claim to have sustained as a result of the
alleged violations and their costs of lawsuit, including
attorneys' fees. Plaintiffs have not quantified their damages
although they allege that they expect damages to be in the tens of
millions of dollars.
Subsequently, multiple related complaints were filed in the U.S.
District Court for the District of Columbia alleging both federal
antitrust and multiple state unfair competition, consumer
protection and common law claims against MasterCard and Visa on
behalf of putative classes of users of ATM services (the "ATM
Consumer Complaints"). The claims in these actions largely mirror
the allegations made in the ATM Operators Complaint described
above, although these complaints seek damages on behalf of
consumers of ATM services who pay allegedly inflated ATM fees at
both bank and non-bank ATM operators as a result of the
defendants' ATM rules. Plaintiffs seek both injunctive and
monetary relief equal to treble the damages they claim to have
sustained as a result of the alleged violations and their costs of
lawsuit, including attorneys' fees. Plaintiffs have not
quantified their damages although they allege that they expect
damages to be in the tens of millions of dollars.
In January 2012, the plaintiffs in the ATM Operators Complaint and
the ATM Consumer Complaints filed amended class action complaints
that largely mirror their prior complaints. MasterCard has moved
to dismiss the complaints for failure to state a claim. Oral
argument on the motion was heard by the court in September 2012.
On February 13, 2013, the district court granted MasterCard's
motion to dismiss the complaints without prejudice. The
plaintiffs can attempt to re-plead their complaints.
MERRILL LYNCH: Agrees to Create $12-Mil. Overtime Settlement Fund
-----------------------------------------------------------------
Corrie Driebusch, writing for Dow Jones Newswires, reports that
Merrill Lynch has agreed to create a $12 million fund to settle a
class-action lawsuit alleging it didn't properly pay overtime to
employees who provide support services for brokers.
The court for the Southern District of New York must still approve
the settlement, which was announced in a filing on Feb. 15.
Merrill Lynch is the retail brokerage unit of Bank of America
Corp.
The lawsuit, which was filed in June 2011, alleged that Merrill
Lynch client associates were paid overtime based on an incorrect
and low regular rate of pay and that Merrill failed to properly
record and account for all overtime hours they worked. Client
associates typically handle paperwork for brokers, and some can
assist with order entries.
The $12 million fund will provide financial recovery for client
associates who worked for Merrill Lynch between 2010 and 2012.
The time period is longer for client associates who were employed
in California, New York, Maryland and Washington.
A spokesman for Merrill Lynch declined to comment.
MINNESOTA: Suit Says Natural Resources Dept. Chief Hid Files
------------------------------------------------------------
Courthouse News Service reports that a federal class action claims
Minnesota Department of Natural Resources Capt. John Hunt kept
secret, illegally obtained computer files with driver's license
photos of about 200 women, for which he has been criminally
charged.
MKG PROVISIONS: Recalls Atlantic Smoked Salmon Due to Health Risk
-----------------------------------------------------------------
MKG Provisions of Miami, Florida, is recalling Atlantic Smoked
Salmon Batch# 1768 consisting of several brands of products listed
below which have the potential to be contaminated with Listeria
monocytogenes, an organism which can cause serious and sometimes
fatal infections in young children, frail or elderly people, and
others with weakened immune systems. Although healthy individuals
may suffer only short-term symptoms such as high fever, severe
headache, stiffness, nausea, abdominal pain and diarrhea, listeria
infection can cause miscarriages and stillbirths among pregnant
women.
The product batch # 1768 was distributed during the time period
from January 23, 2013, through February 1, 2013, to Gold Kosher of
North Miami Beach, FL, Sally Sherman Salads of Ft. Lauderdale, FL,
Boca Raton Resort & Club, In Boca FL. US Foodservice South
Florida, US Foodservice Baltimore, Deer Run of Longwood, FL,
L'Chaim of Delray Beach, FL, Prestige Smokehouse of Riviera Beach,
FL, and Best Value of Miami, FL. There is a square sticker placed
on the bag of each product which reads the lot# 1768. Product and
packaging details are listed below.
(1) UpRiver Brand Norwegian presliced sides In Upriver vacuum
pouch bags
(2) Prestige Brand Scottish presliced sides in clear vacuum
pouch bags
(3) Legendary Brand Norwegian pre-sliced sides in legendary
vacuum pouch bags
(4) Prestige Brand Pastrami pre-sliced sides in clear vacuum
pouch bags
(5) UpRiver Brand Scottish pre-sliced sides in UpRiver vacuum
pouch bags
(6) UpRiver Brand Trimmings in clear bags in clear vacuum
pouch bags
(7) UpRiver Brand Pastrami pre-sliced sides in UpRiver vacuum
pouch bags
(8) UpRiver Brand Peppered pre-sliced sides in Up River
vacuum pouch bags
(9) UpRiver Brand Tequila/Cilantro pre-sliced sides in
UpRiver vacuum pouch bags
(10) Prestige Brand 16 oz. retail packs in clear vacuum pouch
bags
(11) UpRiver Brand 4 oz. Nwgn retail packs in UpRiver vacuum
pouch bags
(12) Prestige Brand 4 oz. Irish retail packs in clear vacuum
pouch bags
(13) Prestige Brand 4 oz. Nwgn retail packs in clear vacuum
pouch bags
(14) Prestige Brand 4 oz. Nova retail packs clear vacuum pouch
bags
(15) UpRiver Brand 4 oz. Gravalax retail packs UpRiver vacuum
pouch bags
(16) UpRiver Brand Norwegian Presliced sides UpRiver vacuum
pouch bags
The recall was the result of an audit by the Florida Department of
Agriculture where finished product lab testing contained bacteria.
MKG is voluntarily recalling this product. No illnesses have been
reported to date.
Consumers should return any of the products purchased mentioned
above.
Consumers with questions may contact:
Michael Gibson
MKG Provisions Inc.
Telephone: (305) 835-0171
Facsimile: (305) 835-0198
From 9:00 a.m. to 5:00 p.m. Eastern Time
MKG PROVISIONS: Recalls Various Brands of Atlantic Smoked Salmon
----------------------------------------------------------------
MKG Provisions of Miami, Florida, is recalling Atlantic Smoked
Salmon Batch# 911 and Batch# 1478-69441 that has the potential to
be contaminated with Listeria monocytogenes, an organism which can
cause serious and sometimes fatal infections in young children,
frail or elderly people, pregnant women and others with weakened
immune system. Although healthy individuals may suffer only short
term symptoms as high fever, severe headache, stiffness, nausea,
abdominal pain and diarrhea.
The product batch # 911 was distributed to Merry Seafood, Corp.,
in Hialeah, Florida, Michael's Seafood, of Miami, Florida, Boca
Raton Resort & Club, in Boca Florida, US Foodservice Manassas,
Kora Food Group, in St. Petersburg, Florida, and Aunt Mary's
Bagels, in Pembroke, Florida, Rogelio Quintero, of Miami, Florida,
during the time period from September 15, 2011, through December
8, 2011, and Batch# 1478-69441 sold to St. James Smokehouse, in
Miami, Florida, on June 15, 2012.
* Cold smoke Atlantic salmon trimmings Batch # 911
* UpRiver Brand Cold Smoke Atlantic Salmon Pre-sliced sides
Vacuum Packed Batch # 911
* UpRiver Brand Cold Smoke Atlantic salmon Balik Cut Sides
Vacuum Packed Batch # 911
* UpRiver Brand Cold Smoke Atlantic Salmon Pre-sliced 4 OZ
Vacuum Packed retail packages Batch # 911
* Cold smoke Atlantic salmon Nordic Choice Pre-sliced sides
Batch # 1478-69441
* Cold smoke Atlantic salmon trimmings Batch # 1478-69441
The recall was the result of an audit by the Florida Department of
Agriculture that revealed that previous lab testing in raw product
contained bacteria. MKG is voluntarily recalling this product.
No illnesses have been reported to date.
Consumers should discard or return any of the products purchased
mentioned above.
Consumers with questions may contact:
Michael Gibson
MKG Provisions Inc.
Telephone: (305) 835-0171
Facsimile: (305) 835-0198
From 9:00 a.m. to 5:00 p.m. Eastern Time
MYTRAVEL CANADA: Ontario Court Approves Class Counsel Fees
----------------------------------------------------------
Eric R. Hoaken, Esq. -- hoakene@bennettjones.com -- and Christiaan
A. Jordaan, Esq. -- jordaanc@bennettjones.com -- at Bennett Jones
LLP report that on February 14, 2013, the Ontario Court of Appeal
released its decision in Lavier v MyTravel Canada Holidays Inc,
which deals with the approval of class counsel fees in a settled
class proceeding. The decision provides some useful guidance
regarding the structuring of class action settlements.
Furthermore, the court's analysis indicates that where few class
members participate in the settlement, the objective of
incentivizing class counsel to achieve access to justice for
wronged persons who would not otherwise obtain redress is
diminished. Accordingly, a lesser fee award may be appropriate.
The claim in Lavier alleged that the defendant had knowingly sent
travellers to resorts in the Dominican Republic that were
experiencing an outbreak of norovirus. The court-approved
settlement required the defendant to make a fund of $2.25 million
available to compensate class members who could demonstrate they
had been affected by the outbreak. However, any amount remaining
in the fund after all eligible claims had been processed would
revert to the defendant.
At the settlement approval hearing, the court awarded an initial
class counsel fee of $600,000. When the settlement had been fully
administered, class counsel requested approval of an additional
$395,000. At that time, however, the actual value of the
settlement achieved for the class had become apparent: only 354
class members had submitted eligible claims, for a total value of
$333,306.79. If the additional requested fees were approved, the
total counsel fees would be three times the benefit achieved for
the class.
Class counsel argued that the requested fees were appropriate for
the following reasons: (i) the total would be approximately twice
the actual value of hours worked, which was at the low end of the
range typically approved by the courts in class action
settlements; and (ii) the quantum should be assessed in relation
to the $2.25 million potential settlement that was achieved rather
than the actual take-up.
While class counsel were initially successful in obtaining
approval of the requested additional fee, the Court of Appeal
overturned the approval order, holding that the total amount of
fees would be "grossly disproportionate to the results achieved
and the risks undertaken."
The Court of Appeal was influenced by the speculative extent of
the harm that was alleged to have been caused. It was doubtful
that all class members had been affected, and possible that the
354 individuals who received compensation were the vast majority
of those actually harmed. Furthermore, the court found that the
reversionary interest in the settlement fund diminished the
"access to justice" value achieved by class counsel, "unlike the
obvious value in a settlement where the residue is distributed by
way of a cy pres distribution to a charity".
The Court of Appeal concluded as follows: What this suggests is
that when it is uncertain how many class members will make claims
under a settlement, it is when the take-up rate is known that the
information relevant to assessing the results achieved is present,
and one can assess the connection between the efforts of counsel
and what was achieved for the class. Otherwise, there is a real
risk that a disproportionate fee might result.
The Court of Appeal's decision is consistent with other recent
cases that have emphasized the need to measure class counsel fees
in relation to the practical benefit actually achieved for class
members. From the perspective of defendants, the decision
demonstrates the advantage, in cases where the scope of injury or
the extent of individual harms are doubtful, of including in the
settlement a reversionary interest in favor of the defendant after
the settlement is fully administered. The reversionary interest
not only provides the defendant with standing to contest a final
award of class counsel fees, if the take-up from the settlement is
low, it also affords the basis to argue that the "access to
justice" objective of class proceedings legislation does not
justify a significant fee multiplier as a means of appropriately
incentivizing class counsel. As the Court of Appeal noted, "[i]f
the objective is to compensate class members who have been
injured, through the judicial economy of the class proceeding,
courts should ensure that it is they and not class counsel who are
benefitting."
NAVILLUS TILE: Failed to Pay Prevailing Wage Rates, Suit Says
-------------------------------------------------------------
Jorge Lopez and Reinaldo Jimenez, individually and on behalf of
all other persons similarly situated who were employed by Navillus
Tile Inc. d/b/a Navillus Contracting, along with other entities
affiliated of controlled by Navillus Tile Inc. d/b/a Navillus
Contracting with respect to certain Public Works Projects awarded
by The City of New York, The New York City Housing Authority v.
Navillus Tile Inc. d/b/a Navillus Contracting, Case No.
650572/2013 (N.Y. Sup. Ct., February 21, 2013), is brought on
behalf of a putative class consisting of persons, who performed
construction trade work for the Defendant on the sites of the
Public Works Project, in trades like roofing, sheet metal and
other related construction trades.
The Plaintiffs allege that Navillus failed to pay, and to ensure
that they were paid the prevailing rates of wages and supplements
to which they were entitled. By this action, the Plaintiffs
assert that they seek to recover unpaid prevailing wages and
supplemental benefits, which they are statutorily and
contractually entitled to receive for their services performed at
the Public Works Projects.
The Plaintiffs are resident of the state of New York, who worked
as roofers, sheetmetal workers and in other related construction
trades for Navillus at the Public Works Projects.
Navillus is a New York corporation based in Walden, New York.
Navillus is engaged in the general construction business.
The Plaintiffs are represented by:
Lloyd Ambinder, Esq.
VIRGINIA & AMBINDER, LLP
111 Broadway, 14th Floor
New York, NY 10006
Telephone: (212) 943-9080
E-mail: lambinder@vandallp.com
NEW YORK LAW SCHOOL: Seeks Review of Fraud Class Action Dismissal
-----------------------------------------------------------------
Karen Sloan, writing for The National Law Journal, reports that
the New York courts haven't been friendly to a spate of fraud
class actions targeting law schools, but the attorneys behind the
suits aren't throwing in the towel just yet. They have asked the
New York State Court of Appeals to review an intermediate
appellate panel's December dismissal of a suit brought by nine
former students who allege New York Law School inflated its
postgraduate employment statistics to trick them into enrolling.
The plaintiff's legal team -- led by Jesse Strauss, Frank Raimond
and David Anziska -- argued in a motion for leave to appeal filed
on February 19 that the Court of Appeal -- New York's highest
court -- should weigh in on the case, given that several lower
court judges have cited differing grounds for dismissing nearly
identical cases. The New York dismissals also are out of sync
with rulings in California that have been more favorable to
similar fraud suits, they argued.
"There is really no guidance right now for other litigants and for
law schools," Mr. Strauss said. "It's difficult for us to advise
them on the law, and the schools need to know what they can and
cannot do in terms of marketing in New York."
That clarity is particularly important right now, as law schools
facing a shortage of applicants grow more aggressive in their
recruitment efforts, he added.
The New York Law School case was among the first of the 15 fraud
actions against law schools around the country. Different
attorneys are handling the very first case, against Thomas
Jefferson School of Law.
New York County, N.Y., Supreme Court Justice Melvin Schweitzer
dismissed the New York Law School case in March 2012 -- the first
in a set of legal roadblocks the law school litigants have faced.
Schweitzer ruled that the school's employment statistics were not
deceptive and that the plaintiffs' disappointment in their careers
was the result of the sputtering economy, not fraud. The state
Appellate Division, First Department, affirmed the dismissal on
December 20, while criticizing New York Law School for being "less
than candid" about postgraduate job and salary data.
"The prior appellate court found that my clients alleged a wrong,
alleged they incurred crippling debt because of the wrong, but
then stifled their remedy by improperly dismissing the complaint
without allowing my clients to develop a factual record," Strauss
said.
A trial judge dismissed a nearly identical case against Albany Law
School in early January, and Mr. Strauss said he was preparing an
appeal. The parties were still awaiting a decision on the motion
to dismiss their case against Brooklyn Law School, which Kings
County, N.Y., Supreme Court Justice David Schmidt heard last
August. A motion to dismiss their case against the Hofstra
University Maurice A. Deane School of Law was also pending.
Similar suits have also faced an uphill climb in Illinois, where
cases against DePaul University College of Law, Chicago-Kent
College of Law and The John Marshall Law School have been
dismissed. There is likely to be a consolidated appeal in those
cases, Mr. Strauss said.
Their fraud suit against the Thomas M. Cooley Law School also was
dismissed, and is under appeal before the U.S. Court of Appeals
for the Sixth Circuit.
California has been the one bright spot for plaintiffs in law
school litigation, with suits against California Western School of
Law; Golden Gate University School of Law; the University of San
Francisco School of Law; Southwestern Law School and Thomas
Jefferson School of Law surviving initial motions to dismiss.
PELEPHONE COMMUNICATIONS: Class Action Over Monthly Fees Withdrawn
------------------------------------------------------------------
According to an article at 4-traders.com, on February 18, 2013,
Bezeq the Israeli Telecomunictn [sic] Corp Ltd. received notice
from its subsidiary, Pelephone Communications Ltd. regarding a
decision by the Central District Court to approve the withdrawal
of a claim for approximately NIS160 million together with a motion
to certify the claim as a class action, which were filed against
Pelephone in August 2012, on grounds that Pelephone was charging a
monthly fee for payments made via standing orders, presumably in
contravention of its license and the law. This is in light of the
fact that another class action is pending against Pelephone in the
same matter.
Another class action is pending against Pelephone, and one of the
causes of action of such claim is similar to the cause of action
alleged in the claim described above.
PROJECT FAIR: Accused of Running Illegal Gambling Enterprise
------------------------------------------------------------
John Doe, individually and on behalf of all the members of the
Class of persons similarly situated v. Project Fair Bid, Inc.,
Mayfield XIII, Foundation Capital VI, L.P., First Round Capital,
II, L.P., Nicolas Darveau-Garneau, Brandon Ramsey, Rajil Kapoor,
Charles Moldow and Josh Kopelman, Case No. 3:13-cv-00759 (N.D.
Cal., February 20, 2013) alleges that the Defendants were engaged
in an illegal gambling enterprise because Project Fair Bid
distributed prizes by chance to persons, who paid consideration
for the chance to purchase prizes at a discount.
The rest of the Defendants knowingly participated in the operation
of the illegal gambling enterprise -- The BigDeal.com Enterprise
-- by providing management support, technical support, ownership
interest and financial support, Mr. Doe contends. He adds that
the Defendants were engaged in an illegal enterprise in violation
of state and federal gambling statutes and federal wire and bank
fraud statutes, including the Racketeer Influenced and Corrupt
Organizations Act.
Mr. Doe is a resident and citizen of the state of Washington. In
November 2010, he used a credit card to transact business with
BigDeal.com over the Internet and lost money because of the
Defendants' illegal gambling enterprise. He asserts that he
should be allowed to proceed anonymously since the threat of
prosecution for illegal gambling outweighs the need to have his
name revealed.
Project Fair Bid is the corporation through which the Defendants
conducted their illegal gambling enterprise. Project Fair Bid was
incorporated in Delaware and is headquartered in San Francisco,
California. The Company conducted Internet auctions under the
name BigDeal.com. Mayfield XIII, Foundation Capital and First
Round Capital are venture capital funds run by venture capital
firms with offices in San Francisco and Menlo Park, California.
In July 2009, these venture capital funds provided BigDeal.com
with $4.5 million.
Mr. Kapoor is a Venture Partner at Mayfield Fund, and in July
2009, he began serving as a director on the board of BigDeal.com.
Mr. Moldow is a General Partner of Foundation Capital, and in July
2009, he began serving as a director on the board of BigDeal.com.
Mr. Kopelman is a Partner at First Round Capital, and in July
2009, he began serving as a director on the board of BigDeal.com.
Messrs. Darveau-Garneau and Ramsey were the founding partners of
BigDeal.com, and they helped manage, operate and finance
BigDeal.com. They also helped BigDeal.com obtain financing from
the other Defendants. Mr. Darveau-Garneau was the chief executive
officer of BigDeal.com and had ownership and control over the
gambling enterprise. Mr. Ramsey had ownership and control over
the gambling enterprise.
The Plaintiff is represented by:
Robert S. Green, Esq.
James Robert Noblin, Esq.
Lesley Elizabeth Weaver, Esq.
GREEN & NOBLIN, P.C.
700 Larkspur Landing Circle, Suite 275
Larkspur, CA 94939
Telephone: (415) 477-6700
Facsimile: (415) 477-6710
E-mail: cand.uscourts@classcounsel.com
gn@classcounsel.com
gnecf@classcounsel.com
- and -
William Houck, Esq.
HOUCK LAW FIRM, P.S.
4045 262nd Avenue, SE
Issaquah, WA 98029
Telephone: (425) 392-7118
E-mail: houcklaw@gmail.com
RALPHS GROCERY: Judge Tosses Class Action Over Rewards Program
--------------------------------------------------------------
Matthew Heller, writing for Law360, reports that a California
judge on Feb. 19 tossed a putative class action alleging Ralphs
Grocery Co. wrongly shared personal information from applications
for its customer rewards program with third parties, finding the
shoppers could not show Ralphs' alleged misconduct had caused them
economic injury.
Los Angeles Superior Court Judge Jane L. Johnson said named
plaintiff Jacob Heller had no standing to make a claim for
restitution under California's unfair competition law because he
couldn't tie Ralphs' alleged breach of his privacy to the money he
spent buying groceries.
RHYTHM AND HUES: Ex-Employee Capizzi Files Class Suit
-----------------------------------------------------
Thomas C. Capizzi, on behalf of himself and all other persons
similarly situated, launched a class action on behalf of Rhythm
and Hues, Inc., employees, seeking damages in the amount of 60
days' pay and ERISA benefits by reason of the Debtor's violation
of the WARN Act.
Mr. Capizzi was terminated as part of, or as a result of, a mass
layoff ordered by the Debtor on or about Feb. 10, 2013. The
Debtor violated the Worker Adjustment and Retraining Notification
Act, 29 U.S.C. Sec. 2101 - 2109. and its California counterpart
California Labor Code Sec. 1400 - 1408 by failing to give the
employees at least 60 days' advance notice of termination.
Capizzi is represented by:
David M. Reeder, Esq.
REEDER LAW CORPORATION
1880 Century Park East, Suite 1200
Los Angeles, CA 90067
Tel: (310) 557-8911
Fax: (310) 557-0380
E-mail: david@reederlaw.com
- and -
Stuart J. Miller, Esq.
LANKENAU & MILLER, LLP
132 Nassau Street, Suite 423
New York, NY 10038
Tel: (212) 581-5005 F: (212) 581-2122
- and -
Mary E. Olsen, Esq.
M. Vance McCrary, Esq.
David C. Tufts, Esq.
THE GARDNER FIRM, P.C.
210 South Washington Avenue
Mobile, AL 36602
Tel: (251) 433-8100
Fax: (251) 433-8181
About Rhythm and Hues
Rhythm and Hues, Inc., aka Rhythm and Hues Studios Inc., filed its
Chapter 11 petition (Bankr. C.D. Cal. Case No. 13-13775) in Los
Angeles on Feb. 13, 2013, estimating assets ranging from $10
million to $50 million and liabilities ranging from $50 million to
$100 million. Judge Neil W. Bason oversees the case.
R&H has provided visual effects and animation for more than 150
feature films and has received Academy Awards for Babe and the
Golden Compass, an Academy Award nomination for The Chronicles of
Narnia and Life of Pi. R&H has a 135,000 square-foot facility in
El Segundo, California. It has more than 460 employees.
The Debtor is represented by Brian L. Davidoff, Esq., C. John M
Melissinos, Esq., and Claire E. Shin, Esq., at Greenberg Glusker,
in Los Angeles, California. The petition was signed by John
Patrick Hughes, president and CFO.
Key clients Universal City Studios LLC and Twentieth Century Fox,
a division of Twentieth Century Fox Film Corporation, are
providing DIP financing. They are represented by Jones Day's
Richard L. Wynne, Esq., and Lori Sinanyan, Esq.
RHYTHM AND HUES: Former Employee Barcelo Commences Class Suit
-------------------------------------------------------------
Anthony Barcelo, one of 250 individuals laid off from Hollywood
visual effects company Rhythm and Hues, Inc., has commenced a
class-action lawsuit via an adversary proceeding filed in
Bankruptcy Court alleging WARN Act violations.
According to the lawsuit, Barcelo, et al., were terminated without
cause, as part of, or as the result of, mass layoffs or plant
closings ordered by the Debtor on or about Feb. 11, 2013, and
within 30 days of that date, and who were not provided 60 days
advance written notice of their terminations, as required by the
Worker Adjustment and Retraining Notification Act ("WARN Act"), 29
U.S.C. Sec. 2101 et seq., and the California Labor Code Sec. 1400
et seq. ("CAL WARN Act"). They were not paid their full accrued
paid time off under California Labor Code Sec. 201 et seq.
The plaintiffs are represented by:
Scott E. Blakeley, Esq.
Ronald A. Clifford, Esq.
BLAKELEY & BLAKELEY LLP
2 Park Plaza, Suite 400
Irvine, CA 92614
Telephone: (949) 260-0611
Facsimile: (949) 260-0613
E-mail: seb@blakeleyllp.com
RClifford@blakeleyllp.com
- and -
Jack A. Raisner, Esq.
Rene S. Roupinian, Esq.
OUTTEN & GOLDEN LLP
3 Park Avenue, 29th Floor
New York, NY 10016
Telephone: (212) 245-1000
E-mail: jar@outtengolden.com
rsr@outtengolden.com
About Rhythm and Hues
Rhythm and Hues, Inc., aka Rhythm and Hues Studios Inc., filed its
Chapter 11 petition (Bankr. C.D. Cal. Case No. 13-13775) in Los
Angeles on Feb. 13, 2013, estimating assets ranging from $10
million to $50 million and liabilities ranging from $50 million to
$100 million. Judge Neil W. Bason oversees the case.
R&H has provided visual effects and animation for more than 150
feature films and has received Academy Awards for Babe and the
Golden Compass, an Academy Award nomination for The Chronicles of
Narnia and Life of Pi. R&H has a 135,000 square-foot facility in
El Segundo, California. It has more than 460 employees.
The Debtor is represented by Brian L. Davidoff, Esq., C. John M
Melissinos, Esq., and Claire E. Shin, Esq., at Greenberg Glusker,
in Los Angeles, California. The petition was signed by John
Patrick Hughes, president and CFO.
Key clients Universal City Studios LLC and Twentieth Century Fox,
a division of Twentieth Century Fox Film Corporation, are
providing DIP financing. They are represented by Jones Day's
Richard L. Wynne, Esq., and Lori Sinanyan, Esq.
SOUNDBITE COMMUNICATIONS: "Karayan" Suit vs. Clients Dismissed
--------------------------------------------------------------
The class action lawsuit styled Karayan v. GameStop Corp. and
GameStop Inc. was dismissed, according to SoundBite
Communications, Inc.'s February 14, 2013, Form 8-K filing with the
U.S. Securities and Exchange Commission.
On February 12, 2013, the U.S. District Court of the Northern
District of Texas dismissed the claims initiated against GameStop
Corp. and GameStop Inc. (together GameStop), in the class action
litigation entitled Karayan v. GameStop Corp. and GameStop Inc.,
the Karayan Litigation.
The Karayan Litigation was filed against GameStop on October 21,
2011, based in part on mobile termination text messages. The
Company was not a named defendant or other party in the Karayan
Litigation. As also disclosed previously, on October 21, 2011,
the Company received a notice from GameStop requesting
indemnification in connection with the Karayan Litigation, and on
January 6, 2012, the Company delivered a letter agreement to
GameStop in which the Company agreed to indemnify GameStop in
relation to certain aspects of the Karayan Litigation.
Following the filing of a Notice of Dismissal by the plaintiff,
the court dismissed the Karayan Litigation with prejudice on
February 12, 2013. For the purpose of avoiding additional
litigation costs, the Company agreed to pay to the plaintiff, on
behalf of GameStop, an immaterial amount, and the Company
effectively has been relieved of any further indemnification
obligations to GameStop relating to the Karayan Litigation.
SoundBite Communications, Inc. -- http://soundbite.com/-- is a
global provider of cloud-based, multi-channel proactive customer
communications solutions designed to transform the way
organizations communicate throughout the customer lifecycle to
build trusted, lifelong and profitable relationships.
SYNGENTA AG: Suit Over Atrazine Contamination Dismissed in Jan.
---------------------------------------------------------------
The class action lawsuit initiated by Holiday Shores Sanitary
District over atrazine contamination was dismissed in January
2013, according to Syngenta AG's February 14, 2013, Form 20-F
filing with the U.S. Securities and Exchange Commission for the
year ended December 31, 2012.
The Holiday Shores Sanitary District filed a class action
complaint in the Circuit Court for the Third Judicial Circuit,
Madison County, Illinois, against Syngenta Crop Protection, Inc.
("SCPI") and its distributor Growmark, Inc. in July 2004
purportedly on behalf of a class consisting of all Illinois
community water systems ("CWS") who had, allegedly, suffered
contamination of their water sources on account of the presence at
any measurable level of the product atrazine, a herbicide
manufactured since the late 1950s by SCPI and its predecessors in
interest, Novartis Crop Protection, Inc., Ciba-Geigy and Geigy
Chemical Corporation. The name of SCPI is now Syngenta Crop
Protection, LLC, but the former name of the company continued to
be used in this litigation and in other proceedings.
The claims asserted in this lawsuit were released under the terms
of a Settlement Agreement entered into on May 23, 2012, with
respect to the City of Greenville lawsuit and the lawsuit was
dismissed with prejudice on January 11, 2013.
City of Greenville Lawsuit
In March 2010 plaintiffs' counsel in Holiday Shores filed a new
federal lawsuit in the U.S. District Court for the Southern
District of Illinois (City of Greenville et al. v. Syngenta Crop
Protection, Inc. and Syngenta AG) on behalf of seventeen CWS
located in six mid-Western states; an Amended Complaint filed late
in March 2010 added seven new plaintiffs, five of which are
subsidiaries of American Water Company, a large private utility,
in five of the six states implicated in the litigation. The
claims in this lawsuit were dismissed also under the terms of the
Settlement Agreement entered into on May 23, 2012, referred to in
Holiday Shores lawsuit, and the lawsuit was dismissed with
prejudice on October 23, 2012, by an Order Granting Final Approval
of the settlement issued by the federal court.
US AIRWAYS: Court Dismisses Bulk of Claims in Wage & Hour Suit
--------------------------------------------------------------
District Judge Charles R. Breyer entered a ruling on February 19,
2013, granting in part and denying in part a motion to dismiss the
claims in the class action lawsuit captioned JOSEPH TIMBANG
ANGELES, NOE LASTIMOSA, on behalf of themselves and on behalf of
others similarly situated, and the general public, Plaintiffs v.
US AIRWAYS, INC., and DOES 1 through 50, Defendants, No. C 12-
05860 CRB, (N.D. Cal.).
Joseph Timbang Angeles and Noe Lastimosa brought a putative class
action suit against US Airways, Inc. and Does 1-50 in the Superior
Court of the State of California, County of San Francisco,
alleging wage and hour violations in connection with their
previous employment as Fleet Service Agents, specifically ramp
agents, for the Defendant. The Plaintiffs bring eight claims
against the Defendant. The thrust of the Plaintiffs' case is that
the Defendant failed to provide proper compensation for all hours
worked, failed to provide meal periods and rest breaks, failed to
provide accurate wage statements, and failed to reimburse the
Plaintiffs for work related expenses. The Plaintiffs also request
penalties based on these alleged wage and hour violations,
claiming they constitute unlawful business practices.
US Airways argues that it is exempt from California wage and hour
laws due to its collective bargaining agreement with the
Plaintiffs, that the Plaintiffs' claims are preempted by the
Railway Labor Act, the Airline Deregulation Act, or both, and that
the Plaintiffs' inaccurate wage statements and unlawful business
practices claims are dependent on deficient claims.
In his ruling, Judge Charles R. Breyer grants the Defendant's
Motion to Dismiss claim one with respect to IWC Wage Order 9-2001
and dismisses that claim with prejudice. However, the Court
denies the Defendant's Motion to Dismiss claim one with respect to
California Labor Code section 510. The Court grants the
Defendant's Motion to Dismiss claims two and three and dismisses
those claims with prejudice. The Court grants the Defendant's
Motion to Dismiss claim four and dismisses that claim without
prejudice. Finally, the Court denies in part and grants in part
the Defendant's Motion to Dismiss claims six through eight insofar
as those claims are predicated on viable claims.
A copy of the District Court's February 19, 2013 Order is
available at http://is.gd/K26pYxfrom Leagle.com.
WARNER MUSIC: Discovery in Digital Download Prices Suit Ongoing
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The consolidated lawsuit over pricing of digital music downloads
is currently in discovery, according to Warner Music Group Corp.'s
February 14, 2013, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended
December 31, 2012.
On December 20, 2005, and February 3, 2006, the Attorney General
of the State of New York served the Company with requests for
information in connection with an industry-wide investigation as
to the pricing of digital music downloads. On February 28, 2006,
the Antitrust Division of the U.S. Department of Justice served
the Company with a Civil Investigative Demand, also seeking
information relating to the pricing of digitally downloaded music.
Both investigations were ultimately closed, but subsequent to the
announcements of the investigations, more than thirty putative
class action lawsuits were filed concerning the pricing of digital
music downloads. The lawsuits were consolidated in the Southern
District of New York. The consolidated amended complaint, filed
on April 13, 2007, alleges conspiracy among record companies to
delay the release of their content for digital distribution,
inflate their pricing of CDs and fix prices for digital downloads.
The complaint seeks unspecified compensatory, statutory and treble
damages. On October 9, 2008, the District Court issued an order
dismissing the case as to all defendants, including the Company.
However, on January 12, 2010, the Second Circuit vacated the
judgment of the District Court and remanded the case for further
proceedings and on January 10, 2011, the Supreme Court denied the
defendants' petition for Certiorari.
Upon remand to the District Court, all defendants, including the
Company, filed a renewed motion to dismiss challenging, among
other things, plaintiffs' state law claims and standing to bring
certain claims. The renewed motion was based mainly on arguments
made in defendants' original motion to dismiss, but not addressed
by the District Court. On July 18, 2011, the District Court
granted defendants' motion in part, and denied it in part.
Notably, all claims on behalf of the CD-purchaser class were
dismissed with prejudice. However, a wide variety of state and
federal claims remain, for the class of Internet Music purchasers.
The parties have filed amended pleadings complying with the
court's order, and the case is currently in discovery.
The Company says it intends to defend against these lawsuits
vigorously, but is unable to predict the outcome of these
lawsuits. Regardless of the merits of the claims, this and any
related litigation could continue to be costly, and divert the
time and resources of management.
WARNER MUSIC: In Discussions to Resolve Suits Over Royalties
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Discussions are ongoing to resolve a consolidated class action
lawsuit alleging Warner Music Group Corp. improperly calculated
royalties from sales of digital music, according to the Company's
February 14, 2013, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended December 31, 2012.
Five putative class action lawsuits have been filed against the
Company in Federal Court in the Northern District of California
between February 2, 2012, and March 10, 2012. The lawsuits, which
were brought by various recording artists, all allege that the
Company has improperly calculated the royalties due to them for
certain digital music sales under the terms of their recording
contracts. The named plaintiffs purport to raise these claims on
their own behalf and, as a putative class action, on behalf of
other similarly situated artists. Plaintiffs base their claims on
a previous ruling that held another recorded music company had
breached the specific recording contracts at issue in that case
through its payment of royalties for music downloads and
ringtones. In the wake of that ruling, a number of recording
artists have initiated lawsuits seeking similar relief against all
of the major record companies, including the Company. Plaintiffs
seek to have the interpretation of the contracts in that prior
case applied to their different and separate contracts.
On April 10, 2012, the Company filed a motion to dismiss various
claims in one of the lawsuits, with the intention of filing
similar motions in the remaining lawsuits, on the various
applicable response dates. Meanwhile, certain plaintiffs' counsel
moved to be appointed as interim lead counsel, and other
plaintiffs' counsel moved to consolidate the various actions. In
a June 1, 2012 Order, the Court consolidated the cases and
appointed interim co-lead class counsel. Plaintiffs filed a
consolidated, master complaint on August 21, 2012.
All deadlines have been stayed until February 28, 2013, to allow
for mediation of this dispute. If a settlement has not been
reached by that date and if the parties agree that further
settlement discussions would be fruitful, the parties can file a
joint statement/stipulation seeking additional time for further
settlement negotiations. In the alternative, the parties would
file a joint statement/stipulation with the Court alerting the
Court to the fact that settlement could not be reached and
resetting a litigation schedule. The parties participated in a
mediation on January 3, 2013, and discussions are ongoing.
The Company says it intends to defend against these lawsuits
vigorously, but is unable to predict the outcome of these
lawsuits. Regardless of the merits of the claims, this and any
related litigation could continue to be costly, and divert the
time and resources of management.
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S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
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Editors.
Copyright 2013. All rights reserved. ISSN 1525-2272.
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