/raid1/www/Hosts/bankrupt/CAR_Public/130410.mbx
C L A S S A C T I O N R E P O R T E R
Wednesday, April 10, 2013, Vol. 15, No. 70
Headlines
AEROPOSTALE INC: City of Providence Suit Survives Dismissal Bid
AEROPOSTALE INC: Bell and Booth Actions Remain Stayed
AMGEN INC: Cadwalader Discusses U.S. Supreme Court Ruling
ARTSQUEST: Judge Has Yet to Decide on Musikfest Beer Stein Suit
ASUSTEK COMPUTER: Settles Suit Over Transformer Prime Tablets
AUTOINFO INC: Facing Shareholder Class Suit Over Merger
BB&T CORP: Appeal in Suit Over Checking Accounts Remains Pending
BENEFICIAL MUTUAL: Accused of Charging Wrong Loan Interest Rates
BURLINGTON NORTHERN: Appeal From Certification Decision Pending
BURLINGTON NORTHERN: Continues to Defend Ordinary Course Suits
BURLINGTON NORTHERN: Continues to Defend Personal Injury Suits
CARNIVAL CORP: Awaits Ruling on Bid to Dismiss Ill. Class Suit
CARNIVAL CORP: Facing Various Suits Over 2012 Shipping Accident
CHANTICLEER HOLDINGS: Answer in "Howard" Suit Due April 5
CIRRUS LOGIC: Faruqi & Faruqi Files Securities Class Action
COMCAST CORP: Ruling in "Behrend" to Impact 2 Other Suits
COMCAST CORP: McDermott Discusses High Court Ruling in "Behrend"
CONAGRA FOODS: Suit Over Ralcorp Buyout Settled for Minor Sums
CONAGRA FOODS: Ralcorp Settlement of Employee Suit Has Final OK
DAVITA HEALTHCARE: Appeal From Class Cert. Order Remains Pending
DOHENY GLATT: Faces Kosher Meat Class Action; USDA to Launch Probe
DRUMLUMMON GOLD: Judge Certifies Employees' Overtime Class Action
GREAT LAKES: Pomerantz Grossman Files Class Action in Illinois
HANNAFORD BROS: Mintz Levin Discusses Class Action Ruling
HARLEQUIN ENTERPRISES: Judge Dismisses Royalties Class Action
HARPERCOLLINS PUBLISHERS: Bookstores Sue Over e-Book Sales
HEALTH NET: Continues to Defend Suits Over Hard Disk Drive Loss
IOVATE HEALTH: Court Stays Hydroxycut Consumer Class Action
J&A SERVICES: Conditional Certification of FLSA Suit Approved
JOS. A. BANK: Settlement Talks Ongoing in "Holmes" Suit
JOS. A. BANK: N.J. Suit Over Deceptive Advertising Dismissed
JOS. A. BANK: Defending Illinois Suit Over Deceptive Advertising
KNIGHT TRANSPORTATION: Still Defends Wage and Hour Litigation
LA FUENTE: Servers File Class Action Over Labor Violations
LAFARGE NORTH AMERICA: Faces Class Action Over Gypsum Price-Fixing
MACY'S INC: Awaits Final OK of Accord in Suit Over 401(k) Plan
MEMC ELECTRONIC: Awaits Ruling in "Jones" Suit Over 401(k) Plan
MERCK FROSST: Judge Allows Prostate Drug Class Action to Proceed
METALS USA: Settles "Edwards" Lawsuit Over Reliance Merger
MONIER LLC: Mayer Brown Discusses False Ad Class Action Ruling
MONSANTO CO: Awaits Ruling in Appeal Over Settlement Approval
NEWS CORP: Bid to Dismiss Suit Over News of the World Pending
NORTHUMBERLAND COUNTY, PA: Inmate Files Suit v. Prison Guards
PERVASIVE SOFTWARE: Accord Reached in Merger-Related Suits
POOL CORP: Continues to Defend Antitrust Class Action Suits
ROYAL BANK: Investors File Class Action Over 2008 Rights Offering
RUE21 INC: $2.75MM Class Suit Settlement Wins Final Approval
SOUTH ISLAND AGGREGATES: Shawnigan Lake Group Mulls Class Action
STEVEN MADDEN: Awaits Final Approval of "Ellison" Suit Settlement
TILLY'S INC: "Christiansen" Class Suit in Sacramento Pending
TILLY'S INC: "Rebolledo" Class Suit in Orange County Pending
TILLY'S INC: "Lyddy" Class Suit in San Diego Still Ongoing
US LAW SCHOOLS: Face Class Action Over Misleading Job Statistics
ULTA SALON: Continues to Defend Employee Suit in California
VERIZON COMMUNICATIONS: Retirees' Suit Gets Class Action Status
VERMILLION INC: Class Suit vs. Board Member Remains Pending
* Kate Gosselin's Online Attackers May Face Class Action
*********
AEROPOSTALE INC: City of Providence Suit Survives Dismissal Bid
---------------------------------------------------------------
A motion to dismiss the class action lawsuit, City of Providence
v. Aeropostale, Inc., et al., No. 11-7132, was denied March 25,
2013, according to Aeropostale, Inc.'s Form 10-K Annual Report for
the fiscal year ended February 2, 2013, filed with the Securities
and Exchange Commission on April 3.
In October 2011, Aeropostale and senior executive officers Thomas
P. Johnson and Marc D. Miller were named as defendants in an
action amended in February 2012, City of Providence v.
Aeropostale, Inc., et al., No. 11-7132. The lawsuit alleges
violations of the federal securities laws. The lawsuit was filed
in New York federal court on behalf of purchasers of Aeropostale
securities between March 11, 2011 and August 18, 2011. The
lawsuit alleges that the defendants made materially false and
misleading statements regarding the Company's business and
prospects and failed to disclose that Aeropostale was experiencing
declining demand for its women's fashion division and increasing
inventory.
The motion to dismiss was denied on March 25, 2013.
"In the opinion of management, disposition of this matter is not
expected to have a material effect on the Company's financial
positions, results of operations or cash flows. We are vigorously
defending this matter," Aeropostale said.
Aeropostale, Inc. is a primarily mall-based, specialty retailer of
casual apparel and accessories, principally targeting 14 to 17
year-old young women and men through its Aeropostale stores and 4
to 12 year-old kids through its P.S. from Aeropostale stores. The
Company provides customers with a focused selection of high
quality fashion and fashion basics at compelling values in an
innovative and exciting store environment. Aeropostale maintains
control over its proprietary brands by designing, sourcing,
marketing and selling all of its own merchandise, other than in
licensed stores. Aeropostale products can only be purchased in
Aeropostale stores and online at http://www.aeropostale.com/ P.S.
from Aeropostale products can be purchased in P.S. from
Aeropostale stores, in certain Aeropostale stores and online at
http://www.ps4u.com/and http://www.aeropostale.com/ As of
February 2, 2013, the Company operated 984 Aeropostale stores,
consisting of 906 stores in all 50 states and Puerto Rico, 78
stores in Canada, as well as 100 P.S. from Aeropostale stores in
20 states. In addition, pursuant to various licensing agreements,
the Company's licensees operated 26 Aeropostale stores and one
Aeropostale and P.S. from Aeropostale combination store in the
Middle East, Asia and Europe as of February 2, 2013.
On November 13, 2012, the Company acquired substantially all of
the assets of online women's fashion footwear and apparel retailer
GoJane.com, Inc. Based in Ontario, California, GoJane focuses
primarily on fashion footwear, with a select offering of
contemporary apparel and other accessories.
AEROPOSTALE INC: Bell and Booth Actions Remain Stayed
-----------------------------------------------------
Aeropostale, Inc., said in its Form 10-K Annual Report for the
fiscal year ended February 2, 2013, filed with the Securities and
Exchange Commission on April 3, that two class action lawsuits
remain stayed pending resolution of the lawsuit, City of
Providence v. Aeropostale, Inc., et al., No. 11-7132.
In October 2011, Aeropostale directors and/or senior executive
officers Julian R. Geiger, Ronald R. Beegle, Robert B. Chavez,
Michael J. Cunningham, Evelyn Dilsaver, John Haugh, Karin Hirtler-
Garvey, John D. Howard, Thomas P. Johnson, and David B. Vermylen
were named as defendants in Bell v. Geiger, et al., No.
652931/2011, a shareholder derivative lawsuit filed in New York
state court seeking relief derivatively on behalf of Aeropostale.
The action alleges that the defendants breached their fiduciary
duties to Aeropostale between February 3, 2011 and August 3, 2011
by failing to establish and maintain internal controls that would
have prevented the Company from disseminating allegedly false and
misleading and inaccurate statements and other information to
shareholders, and to manage and oversee the Company. As a result,
plaintiff alleges that the defendants exposed the Company to
potential liability in the City of Providence federal securities
class action lawsuit.
In February 2012, current and former Aeropostale directors and/or
senior executive officers Mindy Meads, Bodil Arlander, Julian
Geiger, Karin Hirtler-Garvey, Ronald Beegle, Robert Chavez,
Michael Cunningham, Evelyn Dilsaver, John Haugh, John Howard,
Thomas Johnson, Arthur Rubinfeld, and David Vermylen were named as
defendants in The Booth Family Trust v. Meads, et al., No.
650594/2012, a shareholder derivative lawsuit filed in New York
state court, seeking relief derivatively on behalf of Aeropostale.
As in Bell, this action alleges that the defendants breached their
fiduciary duties to Aeropostale by failing to establish and
maintain internal controls that would have prevented the Company
from disseminating allegedly false and misleading and inaccurate
statements and other information to shareholders, and to manage
and oversee the Company. As a result, and as in Bell, plaintiff
alleges that the defendants have exposed the Company to losses and
damages, including civil liability from the City of Providence
securities class action suit.
On April 24, 2012, the New York Supreme Court, New York County,
issued an Order consolidating and staying the Bell and Booth
Actions pending a ruling on the motion to dismiss filed in the
City of Providence federal securities class action.
Aeropostale, Inc. is a primarily mall-based, specialty retailer of
casual apparel and accessories, principally targeting 14 to 17
year-old young women and men through its Aeropostale stores and 4
to 12 year-old kids through its P.S. from Aeropostale stores. The
Company provides customers with a focused selection of high
quality fashion and fashion basics at compelling values in an
innovative and exciting store environment. Aeropostale maintains
control over its proprietary brands by designing, sourcing,
marketing and selling all of its own merchandise, other than in
licensed stores. Aeropostale products can only be purchased in
Aeropostale stores and online at http://www.aeropostale.com/ P.S.
from Aeropostale products can be purchased in P.S. from
Aeropostale stores, in certain Aeropostale stores and online at
http://www.ps4u.com/and http://www.aeropostale.com/ As of
February 2, 2013, the Company operated 984 Aeropostale stores,
consisting of 906 stores in all 50 states and Puerto Rico, 78
stores in Canada, as well as 100 P.S. from Aeropostale stores in
20 states. In addition, pursuant to various licensing agreements,
the Company's licensees operated 26 Aeropostale stores and one
Aeropostale and P.S. from Aeropostale combination store in the
Middle East, Asia and Europe as of February 2, 2013.
On November 13, 2012, the Company acquired substantially all of
the assets of online women's fashion footwear and apparel retailer
GoJane.com, Inc. Based in Ontario, California, GoJane focuses
primarily on fashion footwear, with a select offering of
contemporary apparel and other accessories.
AMGEN INC: Cadwalader Discusses U.S. Supreme Court Ruling
---------------------------------------------------------
Jason M. Halper, Esq. -- jason.halper@cwt.com -- and Ryan J.
Andreoli, Esq. -- ryan.andreoli@cwt.com -- at Cadwalader,
Wickersham & Taft, in an article on the New York Law Journal,
relate that during the current term, the Supreme Court heard or
will hear a number of cases bearing on a plaintiff's ability to
successfully bring and maintain federal class action lawsuits. In
Oxford Health Plans v. Sutter, 133 S. Ct. 786 (2012), and American
Express v. Italian Colors Restaurant, 133 S. Ct. 594 (2012), the
parties have raised issues regarding the availability of class
procedures for parties to commercial and/or consumer contracts
that provide for mandatory arbitration.1 Amgen v. Connecticut
Retirement Plans & Trust Funds, 132 S. Ct. 2742 (2012), and
Comcast v. Behrend, 133 S. Ct. 24 (2012), raise issues regarding
the extent to which a district court must consider the merits of
class action plaintiffs' claims at the class certification stage.
As the authors have previously commented, the decisions in these
cases have the potential to continue a trend developed over the
past few years that has made it more difficult for plaintiffs to
commence or maintain class actions. On Feb. 27, 2013, the Supreme
Court issued the first of these anticipated opinions in Amgen v.
Connecticut Ret. Plan & Trust Funds, 133 S. Ct. 1184 (2013).
In Amgen, the court was presented with the question of whether a
federal securities class action plaintiff who invokes the fraud-
on-the-market theory of reliance must prove the "materiality" of
the defendant's alleged misrepresentations at the class
certification stage. In a 6-3 decision, the court held that proof
of materiality "is not a prerequisite to class certification" in
securities fraud cases. Id. at *4.3
While Amgen thus permitted the plaintiff class to be certified
without proof of materiality, the decision may not signal a
broader retreat from the court's recent jurisprudence in this
area. The decision appears to turn on issues unique to federal
securities class actions and may have little application to class
action issues outside that arena. Nonetheless, for the securities
plaintiffs' and defense bars, the decision is significant. It
permits plaintiffs, without proving an essential component
underlying the fraud-on-the-market theory, to obtain class
certification, and with it the ability to impose on the defendants
substantial discovery costs, the threat of a large judgment, and
consequent increased pressure to settle.
Background
In 2007, investor-plaintiffs brought suit against Amgen Inc. and
several of its officers alleging that the company made false and
misleading statements about two of its anti-anemia drugs in
violation of Section 10(b) of the Securities Exchange Act of 1934
(and Rule 10b-5 promulgated thereunder), which "artificially
inflated the price of Amgen's stock." Amgen, 2013 WL 691001, at
*6. At the class certification stage, the plaintiffs invoked the
fraud-on-the-market presumption of reliance established in Basic
v. Levinson, 485 U.S. 224 (1987). In Basic, the court found that,
in an efficient market, publicly available information is
reflected in a security's market price, and therefore an
investor's reliance on any "public material misrepresentations
. . . may be presumed . . ." Id. at 247 (emphasis added).
Relying heavily on the Supreme Court's recent opinion in Wal-Mart
Stores v. Dukes, 131 S. Ct. 2541 (2011), Amgen argued that the
plaintiffs had to prove the prerequisites to invoking the fraud-
on-the-market presumption (including materiality) at the class
certification stage, even though that inquiry required the court
to delve into the merits of the plaintiffs' Section 10(b) claims.
Amgen argued that plaintiffs could not demonstrate that the
company's alleged misstatements were material, and therefore, the
plaintiffs were not entitled to the fraud-on-the-market
presumption of reliance. See Amgen, 2013 WL 691001, at *10. As a
result, Amgen claimed that plaintiffs could not satisfy Federal
Rule of Civil Procedure (FRCP) 23(b)'s requirement that "questions
of law or fact common to class members predominate over any
questions affecting only individual members."
The district court rejected Amgen's argument that proof of
materiality was a prerequisite to class certification and
certified the proposed class. Connecticut Ret. Plans & Trust
Funds v. Amgen, 660 F.3d 1170, 1173-74 (9th Cir. 2011). On
interlocutory appeal, the U.S. Court of Appeals for the Ninth
Circuit affirmed, finding that "a plaintiff need not prove
materiality at the class certification stage to invoke the [fraud-
on-the-market] presumption; materiality is a merits issue to be
reached at trial or by summary judgment motion if the facts are
uncontested." Id. at 1177. Amgen petitioned the Supreme Court for
a writ of certiorari, which was granted "to resolve a conflict
among the Courts of Appeals over whether district courts must
require plaintiffs to prove, and must allow defendants to present
evidence rebutting, the element of materiality before certifying a
class action under Sec. 10(b) and Rule 10b-5." Amgen, 2013 WL
691001, at *7.
Supreme Court's Decision
Justice Ruth Bader Ginsburg's majority opinion identified "the
pivotal inquiry" to be "whether proof of materiality is needed to
ensure that the questions of law or fact common to the class will
'predominate over any questions affecting only individual members'
as the litigation progresses." Amgen, 2013 WL 691001, at *8
(quoting Fed. R. Civ. P. 23(b)(3)) (emphasis in original). The
court stated that "the answer to this question is clearly 'no'"
and provided two justifications. Id. at *8.
First, the court reasoned that because the materiality
determination is "'an objective one, involving the significance of
an omitted or misrepresented fact to a reasonable investor . . .
[it] can be proved through evidence common to the class.'" Id.
(citation omitted). In other words, since any plaintiff's
subjective view of the importance of the information in question
is irrelevant, the court's determination of whether the alleged
statements are material will by necessity apply to the entire
class. Thus, the materiality of the statements at issue is a
"common question" for the purposes of FRCP 23(b)(3). Id.
Second, the court found that there was no risk that a failure of
proof on the question of materiality would result in individual
questions predominating over those affecting the class. Rather,
if the plaintiffs ultimately failed to prove materiality, their
claims would fail in their entirety and there would be no issues
remaining, let alone issues regarding individual reliance. See
id. ("A failure of proof on the common question of materiality
ends the litigation and thus will never cause individual questions
of reliance or anything else to overwhelm questions common to the
class").
The court also considered and rejected the public policy concerns
raised by Amgen regarding the "substantial pressure" that the
grant of class certification imposes on defendants in securities
class actions that could cause "a defendant 'to settle rather than
. . . run the risk of potentially ruinous liability.'" Id. at *12.
First, the court noted that an argument requiring proof of
materiality at class certification to avoid the risk of in
terrorem settlements could equally apply to other essential
elements of a Rule 10b-5 claim (e.g., that plaintiffs' claims must
be based on false or misleading statements or that alleged
misstatements caused economic loss), but the court had previously
held that those elements need not be adjudicated before a class is
certified. See id.
Next, the court found that Congress had considered the issue of
extortionate settlements in advance of the enactment and amendment
of the Private Securities Litigation Reform Act of 1995, Pub. L.
No. 104-67, 109 Stat. 737 (1995), but did not include in that
legislation a requirement that materiality be proved as a
prerequisite to class certification.
The Dissents
Amgen is accompanied by two dissenting opinions. Justice Clarence
Thomas' principal dissent, which Justice Anthony Kennedy joined
and Justice Antonin Scalia joined in part, asserts, relying on
Dukes, that "if a plaintiff wishes to use Basic's presumption to
prove that reliance is a common question, he must establish the
entire presumption, including materiality, at the class
certification stage." Amgen, 2013 WL 691001, at *22 (Thomas, J.,
dissenting). Scalia's separate dissent similarly asserts that:
"[a]ll of the elements of [the fraud-on-the-market] rule,
including materiality, must be established if and when it is
relied upon to justify certification." Id. at *16 (Scalia, J.,
dissenting).
Scalia's dissent also observed the enormous implications that a
decision granting class certification can have on a class action,
noting that "[c]ertification of the class is often, if not
usually, the prelude to a substantial settlement by the defendant
because the costs and risks of litigating are so high." Id. at
*17. In light of these implications, Scalia criticized the
majority for expanding the consequences of the Basic decision
"from the arguably regrettable to the unquestionably disastrous."
Id. at *18.6
Conclusion
While corporate defendants are unlikely to be pleased by Amgen's
holding that securities fraud plaintiffs are not required to prove
the materiality of alleged misrepresentations at the class
certification stage, there is reason to believe that Amgen does
not presage a reversal of the court's recent tightening of class
certification standards. As the court held, the materiality
required to invoke the fraud-on-the-market presumption of reliance
in securities fraud cases is an "objective" determination; if it
cannot be proved, all plaintiffs' claims will fail. Thus, there
is no prospect that individual questions of materiality could
predominate over those affecting the class. This distinguishes
Amgen from the other recently decided class certification case,
Comcast v. Behrend, where the Supreme Court determined that
plaintiffs had failed to establish a common methodology for
awarding damages on a classwide basis.
Additionally, the fact that at least four justices (the dissenting
justices and Justice Samuel Alito) are questioning the continued
viability of Basic's 25 year-old fraud-on-the-market presumption
is very significant. Without that presumption, it would be
substantially more difficult for securities fraud plaintiffs to
establish that "common questions" predominate on the issue of
reliance, and therefore much more difficult (if not impossible)
for plaintiffs to obtain class certification in securities cases.
Jason M. Halper is a partner and Ryan J. Andreoli is special
counsel in the litigation department of Cadwalader, Wickersham &
Taft. William J. Foley and Joseph P. Mueller, litigation
associates at the firm, assisted with the preparation of this
article.
ARTSQUEST: Judge Has Yet to Decide on Musikfest Beer Stein Suit
---------------------------------------------------------------
Patrick Lester, writing for Of The Morning Call, reports that
a judge must decide whether all customers who bought the 'hand-
crafted in Germany' mugs from 2006 to 2011 can join a class-action
suit.
A New Jersey lawyer argued in federal court in Allentown on
April 2 that hundreds of Musikfest-goers who bought $70 beer
steins at the annual Bethlehem festival were victims of a fraud
carried out by ArtsQuest, which should be forced to pay back those
customers.
An ArtsQuest attorney countered that while blank steins were
manufactured in China, they were decorated in Germany, where they
went through a "substantial transformation," which qualifies them
as products made in Germany. He argues that class-action status
isn't warranted.
It will be up to U.S. District Judge James Knoll Gardner to decide
whether all customers who purchased those beer steins between 2006
and 2011 can join a class-action lawsuit filed last year by former
ArtsQuest employee Rebecca Stoneback, who claims she found the
ceramic steins in original shipping boxes that showed they came
from China.
Ms. Stoneback, who also filed a wrongful termination lawsuit, has
accused ArtsQuest and her superiors of violations of the Racketeer
Influenced and Corrupt Organizations Act (RICO) and of unfair
trade practices. She said Muskifest had marketed the mugs as
"hand-crafted in Germany."
Mr. Gardner declined to make an immediate decision on the class-
action request after a more than three-hour hearing, during which
he closely scrutinized the design, logo and lids on the ceramic
steins.
"It looks like a flea market in here," Mr. Gardner said after
seeing the steins lined up on a courtroom table. Mr. Gardner, who
noted that German steins are the "Mercedes Benz" of steins, said
he would rule on the request at a later date.
During the court proceeding, Justin L. Swidler, the New Jersey
attorney representing Stoneback, said he had an email to a vendor
from ArtsQuest employee Tonya Doddy, who is named as a defendant
in the lawsuit, requesting that a "Made in China" label not be
used on the steins.
Meanwhile, it was also revealed during the hearing that Swidler,
before filing the lawsuit in June 2012, emailed ArtsQuest
President Jeff Parks proposing a settlement under which Stoneback
would not file a lawsuit if given a $250,000 severance.
ArtsQuest attorney Patrick Reilly mentioned that settlement
request as part of his argument that Ms. Stoneback is not an
adequate representative of those who purchased beer steins. He
argued that Ms. Stoneback has a grudge against ArtsQuest.
Ms. Stoneback, in her suit, claims her concerns about the origin
of the steins were dismissed and that she was told a day after she
raised the concerns that she was no longer needed at ArtsQuest.
Mr. Reilly argued that "mini trials" would be needed to determine
whether any additional plaintiffs can be added to the case. He
said not everyone purchased steins or mugs at Musikfest based on
the belief that the items were made in Germany. Some, he said,
purchased them as souvenirs or collectible items, or just based on
impulse.
"To this day, no one has requested a refund for this so-called
Chinese junk," Mr. Reilly told the judge. He further argued that
the festival is "not about German heritage, not about German
people, it's about music."
A commercial invoice referenced in the suit shows 156 steins that
cost $3 each.
Mr. Swidler estimated that a "few hundred" people could
potentially join the lawsuit after purchasing steins between 2006
and 2011. Mr. Reilly said an average of 147 steins sold for
$69.99 and 250 mugs sold for $19.99 are purchased.
The lawsuit targets ArtsQuest, Parks, Doddy and Walter Keiper Jr.,
senior vice president of finance and administration. None of the
ArtsQuest employees attended the hearing.
Michael Grube is listed as a plaintiff along with Ms. Stoneback.
Musikfest began in 1984 with six "platzes" attracting about
100,000 people over 10 days to a festival spanning the area under
the Hill-to-Hill Bridge and downtown Bethlehem.
It now boasts 15 stages on both sides of the Lehigh River,
including ArtsQuest's new SteelStacks campus. Attendance has
sometimes exceeded 1 million in recent years, and the festival's
studies have shown Musikfest packs a $39 million economic punch
for the region.
ASUSTEK COMPUTER: Settles Suit Over Transformer Prime Tablets
-------------------------------------------------------------
Droid Life reports that on March 31, ASUSTeK Computer Inc. posted
to their official North American Facebook page that the company
has agreed to settle a class action lawsuit, resulting in the
payout of $17 and a free GPS extension kit to every U.S. buyer of
a Transformer Prime TF201 tablet. Previously, ASUS was handing
out free dongles to affected customers, but for some folks out
there, that must not have been enough and they decided to take
legal action.
To file a claim, go ahead and follow the site link that is posted
in their release and claim your $17 plus free dongle.
IMPORTANT LEGAL NOTICE FROM ASUS
Asus has agreed to settle a class action lawsuit concerning your
Asus Eee Pad TF201 Transformer Prime tablet. If you own or owned
a TF201, you may be entitled to $17 and a free GPS extension kit.
This Notice is approved by a Federal Court, and is not a
solicitation.
Please visit http://www.AsusTF201Settlement.comor call 1-877-211-
8361 for more information.
You are eligible to participate in the settlement if you are a
United States resident who bought a TF201, and experienced lost or
reduced GPS functionality or weak/intermittent WiFi performance.
To claim a cash payment and a Dongle, you must submit a Claim Form
on the Web site, by email or by regular mail by May 31, 2013. If
you do not submit a timely claim, your rights will not be
affected.
The Court has not yet approved the settlement. It will have a
hearing to decide whether to do so. If you choose to, you may
object to this settlement by June 20, 2013 and ask the Court not
to approve the proposed settlement. Please remember that if you
choose not to participate in the settlement, your rights will not
be affected. Please visit the website or call the toll-free
number for more information.
AUTOINFO INC: Facing Shareholder Class Suit Over Merger
-------------------------------------------------------
A purported class action on behalf of AutoInfo Inc.'s stockholders
was filed on March 25, 2013, in the Circuit Court of the 15th
Judicial Circuit in and for Palm Beach County, Florida, Case No:
50 2013 CA 005344, captioned Douglas Neumann, Individually and on
behalf of all other similarly situated, as Plaintiff, v. AutoInfo,
Inc., Harry M. Wachtel, Mark Weiss, Mark K. Patterson, Peter C.
Einselen, Thomas C. Robertson, Comvest Partners, Comvest
Investment Partners Holdings, LLC, Comvest Investment Partners IV,
L.P., AutoInfo Holdings, LLC and AutoInfo Acquisition Corp.,
Defendants. The Company received service of process in the Action
on April 3, 2013.
The Action relates to the Agreement and Plan of Merger, dated as
of February 28, 2013, by and among the Company, AutoInfo Holdings,
LLC., a Delaware limited liability company ("Parent"), and
AutoInfo Acquisition Corp., a Delaware corporation and wholly
owned subsidiary of Parent ("Merger Sub"), pursuant to which
Merger Sub shall be merged with and into the Company, and the
separate corporate existence of Merger Sub shall thereupon cease,
and the Company shall continue as the surviving corporation (the
"Surviving Corporation") and a wholly owned subsidiary of Parent
(the "Proposed Merger Transaction").
The Action alleges that the Board of Directors of the Company (the
"Board") breached their fiduciary duties owed to the stockholders
of the Company. It further alleges that Comvest Partners, Comvest
Investment Partners Holdings, LLC, Comvest Investment Partners IV,
L.P., AutoInfo Holdings, LLC and AutoInfo Acquisition Corp. aided
and abetted the Board in their breach of their fiduciary duties to
the stockholders of the Company.
The Action seeks relief (i) declaring that the Action is properly
maintainable as a Class action and certifying Plaintiff as Class
representative; (ii) enjoining Defendants, their agents, counsel,
employees and all persons acting in concert with them from
soliciting stockholder votes relating to the Proposed Merger
Transaction, unless and until the Company adopts and implements a
procedure or process to obtain a merger agreement providing the
best available terms for stockholders; (iii) rescinding, to the
extent already implemented, the Proposed Merger Transaction or any
of the terms thereof, or granting Plaintiff and the Class
rescissory damages; (iv) awarding Plaintiff the costs and
disbursements of the Action, including reasonable attorneys' and
experts' fees; and (v) granting such other and further equitable
relief as the Court may deem just and proper.
BB&T CORP: Appeal in Suit Over Checking Accounts Remains Pending
----------------------------------------------------------------
An appeal in the remaining lawsuit over BB&T Corporation's
ordering of debit transactions posted to customer checking
accounts remains pending, according to the Company's March 1,
2013, Form 10-K filing with the U.S. Securities and Exchange
Commission for the year ended December 31, 2012.
The Company was a defendant in three separate cases primarily
challenging the Company's daily ordering of debit transactions
posted to customer checking accounts for the period from 2003 to
2010. The plaintiffs requested class action treatment; however,
no class was certified. The court initially denied motions by the
Company to dismiss these cases and compel them to be submitted to
individual arbitration. The Company then filed appeals in all
three matters. There were numerous subsequent procedural
developments. These included an appeal to the U.S. Supreme Court
in one matter which resulted in a November 2011 decision that
benefited the Company and two decisions in July 2012 in two other
matters by the U.S. Court of Appeals for the Eleventh Circuit
ordering arbitration. Those latter two matters are now concluded.
The first remains pending and therefore, the issues raised by the
motions and appeal in this one matter have not been finally
decided. If the motions or any appeals are ultimately granted,
they would preclude class action treatment. Even if such an
appeal is denied, the Company believes it has meritorious defenses
against this matter, including class certification. In addition,
no damages have been specified by the plaintiffs. Because of
these circumstances, no specific loss or range of loss can
currently be determined.
BB&T Corporation -- http://www.bbandt.com/-- operates as a
financial holding company for Branch Banking and Trust Company
that provides various banking and trust services for retail and
commercial clients. BB&T was founded in 1872 and is headquartered
in Winston-Salem, North Carolina.
BENEFICIAL MUTUAL: Accused of Charging Wrong Loan Interest Rates
----------------------------------------------------------------
A & T Enterprises; George M. Diemer; and All others similarly
situated v. Beneficial Mutual Savings Bank, Case No. L-001424-13
(N.J. Super. Ct., Camden Cty., April 1, 2013), alleges the
Defendant has wrongly charged interest to A&T.
The Plaintiffs allege that according to the terms of certain loan
documents, the interest rate to be paid by A&T to the Defendant on
the mortgage loan to A&T was 275 basis points greater than the
Federal Home Loan Bank of Pittsburgh three year Amortizing MidTerm
Repurchase Rate or the Federal Home Loan Bank of Pittsburgh five
year Amortizing Repurchase Rate.
A&T is a New Jersey limited partnership and the owner of a
shopping center, which has as its principal place of business in
Philadelphia, Pennsylvania. Mr. Diemer is an individual whose
principal place of business is in Mt. Laurel, New Jersey. He is a
principal of A&T, and he is the guarantor of its obligations to
the Defendant.
Beneficial is a chartered bank headquartered in Camden County, New
Jersey.
The Plaintiffs are represented by:
Mark S. Kancher, Esq.
THE KANCHER LAW FIRM, L.L.C.
Grove Professional Center
100 Grove Street
Haddonfield, NJ 08033
Telephone: (856) 795-2440
Facsimile: (856) 795-4824
E-mail: MKANCHER@KANCHERLAWFIRM.COM
BURLINGTON NORTHERN: Appeal From Certification Decision Pending
---------------------------------------------------------------
Beginning May 14, 2007, some 30 similar class action complaints
were filed in six federal district courts around the country by
rail shippers against BNSF Railway Company, a subsidiary of
Burlington Northern Santa Fe, LLC, and other Class I railroads
alleging that they have conspired to fix fuel surcharges with
respect to unregulated freight transportation services in
violation of the antitrust laws. The complaints seek injunctive
relief and unspecified treble damages. These cases were
consolidated and are currently pending in the federal district
court of the District of Columbia for coordinated or consolidated
pretrial proceedings, (In re: Rail Freight Fuel Surcharge
Antitrust Litigation, MDL No. 1869). Consolidated amended class
action complaints were filed against BNSF Railway and three other
Class I railroads in April 2008. On June 21, 2012, the court
certified the class sought by the plaintiffs. As a result, with
some exceptions, rail customers who paid a fuel surcharge on non-
Surface Transportation Board regulated traffic between July 2003
and December 2008, are part of a class that, subject to appeal,
can be tried jointly in a single case. BNSF Railway and the other
three Class I railroads have appealed the class-certification
decision.
No further updates were reported in the Company's March 1, 2013,
Form 10-K filing with the U.S. Securities and Exchange Commission
for the year ended December 31, 2012.
The Company believes that these claims are without merit and
continues to defend against the allegations vigorously. The
Company does not believe that the outcome of these proceedings
will have a material effect on its financial condition, results of
operations or liquidity.
Burlington Northern Santa Fe, LLC -- http://www.bnsf.com/-- is
headquartered in Fort Worth, Texas, and a wholly-owned subsidiary
of Berkshire Hathaway Inc. BNSF is a holding company that
conducts no operating activities and owns no significant assets
other than through its interests in its subsidiaries. Through its
subsidiaries, BNSF is engaged primarily in the freight rail
transportation business.
BURLINGTON NORTHERN: Continues to Defend Ordinary Course Suits
--------------------------------------------------------------
Burlington Northern Santa Fe LLC continues to defend itself
against class action lawsuits arising in the ordinary course of
business, according to the Company's March 1, 2013, Form 10-K
filing with the U.S. Securities and Exchange Commission for the
year ended December 31, 2012.
In addition to asbestos, other personal injury and environmental
matters, BNSF and its subsidiaries are also parties to a number of
other legal actions and claims, governmental proceedings and
private civil lawsuits arising in the ordinary course of business,
including those related to disputes and complaints involving
certain transportation rates and charges. Some of the legal
proceedings include claims for punitive as well as compensatory
damages, and a few proceedings purport to be class actions.
Although the final outcome of these matters cannot be predicted
with certainty, considering among other things the meritorious
legal defenses available and liabilities that have been recorded
along with applicable insurance, BNSF currently believes that none
of these items, when finally resolved, will have a material
adverse effect on the Company's financial position or liquidity.
However, an unexpected adverse resolution of one or more of these
items could have a material adverse effect on the results of
operations in a particular quarter or fiscal year.
Burlington Northern Santa Fe, LLC -- http://www.bnsf.com/-- is
headquartered in Fort Worth, Texas, and a wholly-owned subsidiary
of Berkshire Hathaway Inc. BNSF is a holding company that
conducts no operating activities and owns no significant assets
other than through its interests in its subsidiaries. Through its
subsidiaries, BNSF is engaged primarily in the freight rail
transportation business.
BURLINGTON NORTHERN: Continues to Defend Personal Injury Suits
--------------------------------------------------------------
Burlington Northern Santa Fe LLC continues to defend its
subsidiary from lawsuits alleging personal injury claims,
according to the Company's March 1, 2013, Form 10-K filing with
the U.S. Securities and Exchange Commission for the year ended
December 31, 2012.
Personal injury claims, including asbestos claims and employee
work-related injuries and third-party injuries (collectively,
other personal injury), are a significant expense for the railroad
industry. Personal injury claims by BNSF Railway Company
employees are subject to the provisions of the Federal Employers'
Liability Act (FELA) rather than state workers' compensation laws.
FELA's system of requiring the finding of fault, coupled with
unscheduled awards and reliance on the jury system, contributed to
increased expenses in past years. Other proceedings include
claims by non-employees for punitive as well as compensatory
damages. A few proceedings purport to be class actions. The
variability present in settling these claims, including non-
employee personal injury and matters in which punitive damages are
alleged, could result in increased expenses in future years. BNSF
has implemented a number of safety programs designed to reduce the
number of personal injuries as well as the associated claims and
personal injury expense.
Burlington Northern Santa Fe, LLC -- http://www.bnsf.com/-- is
headquartered in Fort Worth, Texas, and a wholly-owned subsidiary
of Berkshire Hathaway Inc. BNSF is a holding company that
conducts no operating activities and owns no significant assets
other than through its interests in its subsidiaries. Through its
subsidiaries, BNSF is engaged primarily in the freight rail
transportation business.
CARNIVAL CORP: Awaits Ruling on Bid to Dismiss Ill. Class Suit
--------------------------------------------------------------
A motion seeking dismissal of a class action lawsuit filed in the
United States District Court for the Northern District of Illinois
(Eastern Division) arising from the sinking of the Costa Concordia
cruise ship off the coast of Italy in January 2012 remains
pending, according to Carnival Corporation and Carnival plc's Form
10-Q report for the quarterly period ended February 28, 2013,
filed with the Securities and Exchange Commission on April 3.
The purported class action was filed January 26, 2012, and named
as defendants Costa Crociere S.p.A., Carnival Corporation and
Carnival plc (Gary Lobaton v. Carnival Corporation, Carnival plc
and Costa Crociere S.p.A.). The plaintiff purports to represent an
alleged class of the passengers and crew of Costa Concordia who
were on board the ship during the 2012 Ship Incident. The
plaintiffs allege claims for violation of the Athens Convention
Relating to the Carriage of Passengers and their Luggage by Sea,
breach of contract, unjust enrichment and negligence. The
complaint seeks unspecified monetary and punitive damages,
interest and costs, among other things.
On January 11, 2013, the defendants filed a motion to dismiss the
plaintiffs' claims to Italy based on the forum non conveniens
doctrine. The motion has not yet been ruled upon.
CARNIVAL CORP: Facing Various Suits Over 2012 Shipping Accident
---------------------------------------------------------------
Carnival Corporation and Carnival plc continue to face lawsuits
arising from the sinking of the Costa Concordia cruise ship off
the coast of Italy in January 2012, according to Carnival's Form
10-Q report for the quarterly period ended February 28, 2013,
filed with the Securities and Exchange Commission on April 3.
Scimone v. Carnival Corp.
On July 5, 2012, an action was filed in the Circuit Court serving
Miami-Dade County, Florida naming as defendants Carnival
Corporation, Carnival plc, Costa Cruise Lines, Inc., Costa
Crociere S.p.A. and Joseph Farcus Architect, P.A. (Scimone v.
Carnival Corp.). The plaintiffs filed the action in connection
with the 2012 Ship Incident. The plaintiffs allege claims for
negligence, product liability, professional negligence and
intentional tort. The complaint seeks economic and compensatory
damages, attorneys' fees, costs and interest. The plaintiffs state
they will amend their complaint to state a claim for punitive
damages. The defendants removed the case to the United States
District Court for the Southern District of Florida and moved to
dismiss the plaintiffs' claims to Italy based on the forum non
conveniens doctrine and the forum selection clauses in Passage
Ticket Contracts. The plaintiffs filed a motion to remand the case
back to state court.
On February 15, 2013, the court granted the motion to remand. On
February 25, 2013, the defendants filed a petition for leave to
appeal the remand order with the U.S. Court of Appeals for the
Eleventh Circuit, which is pending. During the appeal, the case
will proceed in the state court.
Abeid-Saba v. Carnival Corp.
On July 5, 2012, an action was filed in the Circuit Court serving
Miami-Dade County, Florida naming as defendants Carnival
Corporation, Carnival Corporation & plc, Costa Cruise Lines, Inc.,
Costa Crociere S.p.A. and Joseph Farcus Architect, P.A. (Abeid-
Saba v. Carnival Corp.). The plaintiffs filed the action in
connection with the 2012 Ship Incident. The plaintiffs allege
claims for maritime negligence, gross negligence, negligence-
product defect as to Carnival Corporation, professional negligence
in ship design, intentional failure to warn, intentional failure
to abandon ship, intentional failure to notify authorities,
corporate policies and practice, intentional infliction of
emotional distress, negligent retention, fraudulent
misrepresentation and fraud in the inducement. The complaint seeks
economic and compensatory damages, attorneys' fees, costs and
interest. The plaintiffs state they will amend their complaint to
state a claim for punitive damages. The defendants removed the
case to the United States District Court for the Southern District
of Florida and moved to dismiss to Italy based on the forum non
conveniens doctrine and the forum selection clauses in Passage
Ticket Contracts. The plaintiffs filed a motion to remand the case
back to state court.
On February 15, 2013, the court granted the motion to remand. On
February 25, 2013, the defendants filed a petition for leave to
appeal the remand order with the U.S. Court of Appeals for the
Eleventh Circuit, which is pending. During the appeal, the case
will proceed in the state court.
Warrick v. Carnival Corp.
On July 13, 2012, an action was filed in the United States
District Court for the Southern District of Florida naming as
defendants Carnival Corporation, Carnival Corporation & plc, Costa
Cruise Lines, Inc., and Costa Crociere S.p.A (Warrick v. Carnival
Corp.). The plaintiffs, consisting of five U.S. citizens, filed
the action in connection with the 2012 Ship Incident. Three of the
plaintiffs were passengers on the ship. The plaintiffs assert
claims for fraudulent misrepresentation, maritime negligence,
gross negligence, intentional infliction of emotional distress,
negligent hiring, fraudulent inducement and deceptive trade
practices arising out of the incident, as well as vicarious
liability and actual and apparent agency. The remaining two
plaintiffs did not sail because one did not have the required visa
and the other opted to also stay behind. These two plaintiffs
assert claims for breach of contract, fraudulent misrepresentation
and unjust enrichment. The complaint seeks economic and
compensatory damages, punitive damages, attorneys' fees, costs and
interest. The defendants moved to dismiss the plaintiffs' claims
to Italy based on the forum non conveniens doctrine and the forum
selection clauses in the plaintiffs' Passage Ticket Contracts.
On February 4, 2013, the court dismissed all claims to Italy based
on the forum non conveniens doctrine. The court closed the case on
February 6, 2013.
Perez v. Carnival Corp.
On September 4, 2012, an action was filed in the United States
District Court for the Southern District of Florida naming as
defendants Carnival Corporation, Costa Cruise Lines Inc., and
Costa Crociere S.p.A. (Perez v. Carnival Corp.). The plaintiffs,
consisting of 154 individuals, filed the action in connection with
the 2012 Ship Incident. The plaintiffs allege claims for
negligence, negligent retention, and negligent training (against
Carnival only). The defendants moved to dismiss the plaintiffs'
claims to Italy based on the forum non conveniens doctrine and the
forum selection clauses in Passage Ticket Contracts. On February
22, 2013, the court dismissed all claims to Italy based on the
forum non conveniens doctrine. The court closed the case on
February 25, 2013.
Gual v. Carnival Corp.
On January 9, 2013, an action was filed in the Circuit Court
serving Miami-Dade County naming as defendants Carnival
Corporation, Carnival plc, Costa Crociere S.p.A. and Costa Cruise
Lines, Inc. (Gual v. Carnival Corp.). The defendants have not yet
been served with the action. The plaintiffs, consisting of ten
Spanish citizens, filed the action in connection with the 2012
Ship Incident. The plaintiffs' allege claims for maritime
negligence, negligent hiring, supervision and retention, negligent
training, gross negligence, intentional tortious conduct,
intentional infliction of emotional distress, wrongful death under
Florida law and breach of contract.
Ankhimova v. Carnival Corp.
On January 11, 2013, an action was filed in the United States
District Court for the Southern District of Florida naming as
defendants Carnival Corporation, Carnival plc, Costa Cruise Lines,
Inc., and Costa Crociere S.p.A. (Ankhimova v. Carnival Corp.). The
defendants have not yet been served with the action. The action
was filed by two plaintiffs in connection with the 2012 Ship
Incident. The plaintiffs allege claims for negligence, negligent
retention, negligent training, gross negligence, maritime
negligence, intentional infliction of emotional distress,
negligent infliction of emotional distress, and loss of services.
The court of its own accord issued an order stating that in light
of the dismissals granted in the Giglio Sub and Warrick cases, the
case should be administratively closed without prejudice to the
plaintiffs to re-file should the dismissals be overturned on
appeal.
Lynch v. Carnival Corp.
On January 11, 2013, an action was filed in the United States
District Court for the Eastern District of California naming as
defendants Carnival Corporation, Carnival plc, Costa Crociere
S.p.A. and Costa Cruise Lines, Inc. (Lynch v. Carnival Corp.). The
defendants have not yet been served with the action. The action
was filed by two plaintiffs in connection with the 2012 Ship
Incident. The plaintiffs allege claims for maritime tort,
deceptive trade practice under California Civil Code, intentional
tort, fraud in the inducement and punitive conduct, breach of
contract, gross negligence and false advertising and deceptive
trade practices under California's Business and Professions Code.
King v. Carnival Corp.
On January 14, 2013, an action was filed in the United States
District Court for the Southern District of Florida naming as
defendants Carnival Corporation, Carnival plc, Costa Crociere
S.p.A. and John Does 1-10 (King v. Carnival Corp.). The defendants
have not yet been served with the action. The action was filed by
two plaintiffs in connection with the 2012 Ship Incident. The
plaintiffs allege claims for violation of the Athens Convention
Relating to the Carriage of Passengers and their Luggage by Sea,
breach of contract, negligence, unjust enrichment, punitive
damages, negligent infliction of emotional distress, negligent
supervision and gross negligence.
Law 231 Claims
On January 24, 2013, Costa was notified by the Chief Prosecutor of
Grosseto, Italy of his intention to seek to charge Costa pursuant
to Section 25 of Legislative Decree No. 231/2001 ("Law 231") for
acts committed by its employees in connection with the 2012 Ship
Incident. If the prosecutor proceeds, he will be required to
present his evidence against Costa to a court in a preliminary
hearing to be held in the spring of 2013. If the court finds
sufficient evidence to support a claim against Costa, the court
will order a formal trial that would be expected to commence in
the fall of 2013. Carnival believes Costa has meritorious
defenses to the claims under Law 231 and that any liability that
may arise as a result of these proceedings will not have a
material adverse effect on Carnival's financial results.
CHANTICLEER HOLDINGS: Answer in "Howard" Suit Due April 5
---------------------------------------------------------
An answer was due April 5 from the defendants in a class action
lawsuit commenced by Francis Howard, according to Chanticleer
Holdings, Inc.'s Form 10-K Annual Report for the fiscal year ended
December 31, 2012, filed with the U.S. Securities and Exchange
Commission on April 3.
On October 12, 2012, Francis Howard, individually and on behalf of
all others similarly situated, filed a lawsuit against Chanticleer
Holdings, Inc., Michael D. Pruitt, Eric S. Lederer, Michael
Carroll, Paul I. Moskowitz, Keith Johnson (The "Individual
Defendants"), Merriman Capital, Inc., Dawson James Securities,
Inc. (The "Underwriter Defendants"), and Creason & Associates
P.L.L.C. (The "Auditor Defendant"), in the U.S. District Court for
the Southern District of Florida. The class action lawsuit
alleges violations of Section 11 of the Securities Act against all
Defendants, violations of Section 12(a)(2) of the Securities Act
against only the Underwriter Defendants, and violations of Section
15 against the Individual Defendants. Howard seeks unspecified
damages, reasonable costs and expenses incurred in this action,
and such other and further relief as the Court deems just and
proper.
On October 15, 2012, the Honorable Judge James I. Cohn filed an
Order setting the Calendar Call for the case for June 13th, 2013,
and the Trial Date for the trial period commencing on June 17th,
2013. On October 31st, 2012, the Company and the Individual
Defendants retained Stanley Wakshlag at Kenny Nachwalter, P.A. to
represent them in this litigation. Requests by the Underwriting
Defendants for indemnification were denied. On November 2nd,
2012, Chanticleer Holdings filed a Joint Motion to Extend Deadline
to Respond to Class Action Complaint, requesting that its
responsive pleading deadline be delayed until after a lead
Plaintiff is named. That Motion was approved, and on December
12th, 2012, Howard filed a Motion to Appoint himself Lead
Plaintiff and to Approve his selection of The Rosen Law Firm, P.A.
as his Counsel. An Order appointing Francis Howard and the Rosen
Law Firm as lead Plaintiff and lead Plaintiff's Counsel was
entered on January 4, 2013. Therein, Judge Cohn also reset
Calendar Call for October 10, 2013; trial was reset for the two-
week period commencing October 15, 2013. On February 19, 2013,
Plaintiff filed an Amended Complaint, to which an Answer from
Defendants is due within 45 days.
Given that the outcome of litigation is inherently uncertain, and
the early stage of this class action, the Company can neither
comment on the probability of potential liabilities, nor provide
an estimate of such, Chanticleer Holdings said. As of December
31, 2012, no amounts have been accrued for related to this matter,
the Company added.
Charlotte, North Carolina-based Chanticleer Holdings, Inc., owns
and operates Hooters franchises internationally. Hooters
restaurants are casual beach-themed establishments with sports on
television, jukebox music, and the "nearly world famous" Hooters
Girls.
CIRRUS LOGIC: Faruqi & Faruqi Files Securities Class Action
-----------------------------------------------------------
Faruqi & Faruqi, LLP on April 2 disclosed that it has filed a
class action lawsuit in the United States District Court for the
Southern District of New York (Dovellos v. Cirrus Logic, Inc. et
al, No.13 CIV 2174), on behalf of all persons who purchased or
otherwise acquired Cirrus Logic, Inc. stock and/or call options
between July 31, 2012 and October 31, 2012, inclusive and suffered
damages as a result.
A copy of the complaint can be viewed on the firm's Web site at
http://www.faruqilaw.com/CRUS
Cirrus and its executives are charged with violations of Section
10(b) and/or 20(a) of the Securities Exchange Act of 1934 and Rule
10b-5 promulgated thereunder. Specifically, the complaint alleges
that defendants knew or recklessly failed to inform investors
that: (1) Cirrus's dependence on revenues from Apple was
increasing rather than decreasing; (2) Cirrus's sales growth was
decreasing rather than increasing; (3) Cirrus was experiencing
rising costs and difficulties with regards to its supply chain and
its vendors; (4) the launch of certain models of new LED lights
had been delayed; and (5) as a result thereof, Cirrus's increased
fiscal year 2013 guidance was not feasible.
On October 31, 2012, Cirrus disclosed that the Company's
dependence on Apple was increasing, rather than decreasing as
their previous guidance had indicated. On this news, Cirrus's
stock declined 10% from the class period high to close at $40.78
per share on October 31, 2012.
On November 1, 2012, independent securities brokerage and
investment banking firm Feltl and Company issued an analyst report
detailing the substantial negative consequences of Cirrus's
increasing reliance on Apple. On this news, Cirrus's stock
declined another 11% to close at $36.14 per share on November 1,
2012.
Plaintiff now seeks to recover damages on behalf of himself and
all other individual and institutional investors who purchased or
otherwise acquired Cirrus stock and/or call options between July
31, 2012 and October 31, 2012, excluding defendants and their
affiliates, and who were damaged thereby. Plaintiff is
represented by Faruqi & Faruqi, LLP, a national securities law
firm with extensive experience in prosecuting class actions and
actions involving corporate fraud.
If you wish to serve as lead plaintiff for the proposed class in
this action, you must file a motion with the Court no later than
April 5, 2013.
If you purchased Cirrus securities during the Class Period and
wish to obtain information concerning joining this action, you can
do so under the "Join Lawsuit" section of our Web site or by
clicking: http://www.faruqilaw.com/CRUS
If you wish to discuss this action or have any questions
concerning this notice or your rights or interests, you can also
contact us by calling Richard Gonnello or Francis McConville toll
free at 877-247-4292 or at 212-983-9330 or by sending an e-mail to
rgonnello@faruqilaw.com or fmcconville@faruqilaw.com
COMCAST CORP: Ruling in "Behrend" to Impact 2 Other Suits
---------------------------------------------------------
Alison Frankel, writing for Thomson Reuters, reports that after
the U.S. Supreme Court issued its deeply divided 5-to-4 ruling in
Comcast v. Behrend, the antitrust class action bar breathed a sigh
of relief. Lawyers had been worried the court would rule broadly
that in order to be certified, classes must show that they are
"susceptible to awarding damages on a classwide basis," which was
the question the Supreme Court had asked Comcast counsel to
address. The majority, in an opinion written by Justice Antonin
Scalia, seemed to answer the somewhat different question of
whether trial and appellate courts may delve into the merits of
the plaintiffs' damages theory before certifying the class.
Antitrust plaintiffs' lawyers told Reuters' Andrew Longstreth that
the Comcast decision would have little impact on class
certification because they could tailor damages allegations to
match their theories of liability.
But on April 1 the Supreme Court signaled that, at the very least,
class action lawyers -- and not just those in the antitrust bar --
will have to address the Comcast opinion if they're going to win
certification rulings. In two different cases, one involving
consumer product defect claims against Whirlpool, the other over
alleged wage-and-hour violations by Charter One bank, the justices
granted certioriari, vacated class certification rulings by the
federal circuits and sent the cases back to the appellate courts
for reconsideration in light of Comcast. The dissent in Comcast,
written jointly by Justices Ruth Ginsburg and Stephen Breyer, said
that the majority's holding "should not be read to require, as a
prerequisite to certification, that damages attributable to a
classwide injury be measurable 'on a class-wide basis,' (since)
recognition that individual damages calculations do not preclude
class certification under Rule 23(b)(3) is well nigh universal."
Nevertheless, it's now going to be up to the federal circuits to
confirm the Comcast dissenters' reading of the majority opinion.
The Whirlpool case, which comes out of the 6th Circuit Court of
Appeals, is precisely the sort of class action the dissent was
concerned about. The trial court, and then the appeals court,
certified a statewide class of about 200,000 Ohio consumers who
purchased front-loading Whirlpool washing machines that are
allegedly prone to develop mold or emit a moldy smell. (The
litigation is part of a much broader consumer offensive against
makers and sellers of supposedly defective washing machines, as
Whirlpool discusses in its petition requesting Supreme Court
review.) The class contains some members who claim that their
machines developed mold or a moldy smell and others whose machines
are still fine, so obviously there are disparities in the damages
class members may ultimately be entitled to. The trial judge
dealt with that issue by certifying the class only for the purpose
of determining whether Whirlpool's machines are defective.
Damages, he said, would be determined individually after any
finding of Whirlpool's classwide liability. The class affirmed by
the 6th Circuit, in other words, is a liability-only class, though
the appeals court said that all Whirlpool buyers could show
injury, and thus standing to sue, if they paid a premium price for
a defect-prone product.
Whirlpool's lawyers at Mayer Brown and Wheeler Trigg O'Donnell
argued in the company's cert petition that the class was wrongly
certified since plaintiffs who have not suffered any injury do not
have standing. And in a supplemental brief submitted after the
Supreme Court's ruling in Comcast, the company said that the 6th
Circuit, like the 3rd Circuit in the Comcast case, erred because
it did not require plaintiffs to show that common evidence would
resolve questions of injury and damages. Whirlpool urged the
justices to grant review in order to extend Comcast's reasoning on
damages to their theory of standing.
Class counsel at Lieff Cabraser Heimann & Bernstein, along with
Supreme Court counsel of record Samuel Issacharoff of New York
University Law School, countered in their opposition brief that
Whirlpool washing machine buyers were injured even if their
machines didn't develop mold because they didn't get what they
paid for, a routine interpretation of standing, according to the
class. Nor is there anything unusual, according to the brief, in
the certification of a liability class that includes members with
different damages. The class's supplemental brief on Comcast
argued that damages calculations weren't part of the record at the
6th Circuit, though class counsel also said that the 6th Circuit
plainly believes all class members have been damaged if they've
purchased a defective washing machine.
Jonathan Selbin of Lieff Cabraser told Thomson Reuters'
Ms. Frankel on April 2 that he's not at all concerned that the
Supreme Court sent the case back to the 6th Circuit in light of
Comcast. "Maybe Comcast says we have to go back down and explain
it again, but we just don't see it as a problem here," he said.
"We're going to say that Comcast doesn't have anything to do with
our case."
Similarly, Scott Michelman of Public Citizen Litigation Group, who
is counsel to Charter One employees with overtime claims against
the bank, said that Comcast shouldn't affect the 7th Circuit's
certification of his clients' wage-and-hour class. In that case,
as in the Whirlpool case, lower courts distinguished between a
classwide determination of liability and individual damages. (The
bank is represented by Proskauer.)
In fact, Mr. Michelman said we shouldn't read too much into the
Supreme Court's remands of the Charter One and Whirlpool cases,
since the court frequently sends cases back to the federal
circuits for reconsideration in light of new rulings, even when
it's not clear that those new rulings will affect the underlying
appeals court decisions. So there's a chance that the justices
were simply clearing their docket of class actions and don't
expect Comcast to remake class certification considerations.
"But we'll have to see how the 6th and 7th Circuits take their new
assignments, to be sure," Ms. Frankel said.
COMCAST CORP: McDermott Discusses High Court Ruling in "Behrend"
----------------------------------------------------------------
David L. Hanselman, Jr., Esq., Stefan M. Meisner, Esq., and Daniel
Powers, Esq., at McDermott Will & Emery, report that on March 27,
2013, the Supreme Court of the United States issued an opinion in
an antitrust case that will make it more difficult for plaintiffs
to obtain certification of antitrust class actions. In future
cases, plaintiffs seeking class certification must present a
method for proving damages on a class-wide basis, and that method
must be tied to the plaintiffs' theory of liability. Failure to
do that can preclude class certification.
Decision a Decade in the Making
The case, Comcast Corporation v. Behrend, has been closely watched
by the defense and plaintiffs' bar as well as the business
community. In 2003, a group of cable subscribers filed a
complaint alleging that Comcast's "clustering" of its
Philadelphia-area operations deterred entry and increased cable
subscription prices. Years of struggle ensued as the cable
provider fought class certification. In 2010, the U.S. District
Court for the Eastern District of Pennsylvania certified a class
of more than two million current and former cable television
subscribers in the Philadelphia area. Significantly, the district
court rejected three of plaintiffs' four theories of antitrust
impact, but it accepted a fourth. Comcast appealed, contending
that the class was improperly certified because the damages model
developed by the plaintiffs' expert failed to isolate the damages
that could be attributed to the only remaining theory of antitrust
impact.
In 2011, a divided panel of the U.S. Court of Appeals for the
Third Circuit, relying on dicta from the Supreme Court's 1974
Eisen v. Carlisle & Jacquelin decision, ruled that Comcast's
challenge to the expert testimony prematurely reached the merits
of the case. The Third Circuit panel expressly rejected Comcast's
argument that more recent Supreme Court jurisprudence permitted
the court to disregard the expert report. On appeal to the
Supreme Court, Comcast highlighted the conflict between the Third
Circuit's opinion and the more recent Supreme Court cases.
Comcast asked the Supreme Court to decide whether a class could be
certified without resolving "merits arguments" that bear on Rule
23's prerequisites for certification.
The Supreme Court accepted Comcast's appeal but reformulated the
question to focus on whether the admissibility standard
established in Daubert v. Merrell Dow Pharmaceuticals should apply
to expert testimony at the class certification stage. The Supreme
Court's opinion, however, did not ultimately answer that question.
Rather, the Supreme Court addressed the merits of the district
court's class certification decision and broader issues relating
to the proper standard to be applied by district courts under Rule
23. The Supreme Court has long held that district courts must
conduct a "rigorous analysis" of the requirements of Rule 23
before certifying a class. Comcast reaffirmed that principle.
Breaking New Ground
But the Supreme Court went further. In three major respects, it
raised the bar for plaintiffs to obtain class certification in
antitrust class actions. First, plaintiffs must satisfy "by
evidentiary proof" that they meet one of the prerequisites of Rule
23(b)(3). Second, district courts may not decline to resolve
issues bearing on Rule 23 even if those issues overlap with the
merits of the plaintiffs' underlying claims. Third, and perhaps
most important, individualized questions of damages can defeat
class certification.
This last point represents the key innovation and the most far-
reaching aspect of the Supreme Court's opinion. Recognizing this,
the dissent tries to minimize the impact of the holding by
claiming that the majority's opinion "breaks no new ground." The
decision, however, does just that.
The elements of a class action antitrust claim are (1) a violation
of the antitrust laws, (2) individual injury (also known as
antitrust impact) resulting from that violation and (3) measurable
damages. Prior to the Supreme Court's opinion in Comcast,
challenges to class certification generally focused on (2), the
antitrust impact prong, and some cases held that issues regarding
the amount of damages suffered by individual members of the class
were not sufficient to defeat class certification. Indeed, as the
dissenting opinion claimed, "[r]ecognition that individual damages
calculations do not preclude class certification under Rule
23(b)(3) is well nigh universal." Comcast calls that "universal"
recognition into question. Now, failure of plaintiffs to
demonstrate a way to prove damages on a class-wide basis alone can
defeat class certification.
In this case, the Supreme Court ultimately held that the district
court should not have certified the class because the expert's
model failed to measure damages resulting from the particular
antitrust injury on which liability was premised.
The reach of Comcast will be heavily litigated in the lower
courts. Plaintiffs will argue, like the dissent, that the Supreme
Court's ruling "breaks no new ground" or "is good for this day and
case only." For defendants trying to defeat class certification,
however, the language of Comcast is broad and potentially
applicable to a broad array of class actions. The Supreme Court
held that "under the proper standard for evaluating
certification," plaintiffs must "establish[] that damages are
capable of measurement on a classwide basis." If a plaintiff does
not present such a methodology, then "[q]uestions of individual
damage calculations will inevitably overwhelm questions common to
the class." The Supreme Court left no doubt as to its holding
when it wrote in footnote 4, "[Comcast] argued below, and
continue[s] to argue here, that certification was improper because
[the plaintiffs] had failed to establish that damages could be
measured on a classwide basis. That is the question we address
here."
In the last several years, federal courts have required greater
scrutiny of expert opinion at the class certification stage.
Comcast represents an important continuation of this trend. While
the Supreme Court did not address whether district courts must
conduct a full-fledged Daubert analysis, it held that plaintiffs
must put forward a methodology for proving damages on a class-wide
basis that is tied to the plaintiffs' theory of liability. Prior
to Comcast, some courts held that individualized questions
regarding the amount of damages suffered by members of the class
should not preclude certification. After Comcast, individualized
proof of damages can, in appropriate cases, preclude class
certification. In this regard, Comcast provides defendants with a
new line of argument in existing and future class certification
battles.
CONAGRA FOODS: Suit Over Ralcorp Buyout Settled for Minor Sums
--------------------------------------------------------------
ConAgra Foods Inc., disclosed in a Form 10-Q report for the fiscal
third quarter ended February 24, 2013, filed with the Securities
and Exchange Commission on April 3, that during the third quarter
of fiscal 2013, ConAgra was named an additional defendant in
several shareholder class action lawsuits brought in the Circuit
Court of the City of St. Louis against directors of Ralcorp
Holdings Inc. alleging breaches of fiduciary obligations by them
in connection with their approval of ConAgra's acquisition of
Ralcorp.
ConAgra was alleged to be an aider and abettor of those breaches.
The suits sought injunctive relief, damages, attorney's fees, and
other relief.
There were other cases pending in the same Court, which
consolidated and made similar allegations against directors of
Ralcorp to which ConAgra was not named a defendant.
ConAgra said all of these cases were settled during the third
quarter of fiscal 2013 for immaterial amounts. The settlement of
these lawsuits is subject to Court approval.
On January 29, 2013, ConAgra acquired Ralcorp pursuant to a
Agreement and Plan of Merger dated as of November 26, 2012, among
Ralcorp, ConAgra Foods, and Phoenix Acquisition Sub Inc., a wholly
owned subsidiary of ConAgra Foods. Each outstanding share of
Ralcorp common stock was converted into the right to receive
$90.00 in cash, without interest. The total amount of
consideration paid in connection with the acquisition was
approximately $4.75 billion, net of cash acquired, plus assumed
liabilities. ConAgra funded the merger consideration with
existing cash on hand, borrowings under a new term loan facility,
and proceeds from the issuance of new senior notes and common
stock. The Ralcorp business is reflected in two new reporting
segments: the Ralcorp Food Group and the Ralcorp Frozen Bakery
Products segment.
CONAGRA FOODS: Ralcorp Settlement of Employee Suit Has Final OK
---------------------------------------------------------------
ConAgra Foods Inc., disclosed in a Form 10-Q report for the fiscal
third quarter ended February 24, 2013, filed with the Securities
and Exchange Commission on April 3, that prior to the Company's
acquisition of Ralcorp Holdings Inc., three lawsuits were brought
by former employees of two of Ralcorp's subsidiaries in separate
California state Courts alleging, among other things, that
employees did not receive statutorily mandated meal breaks
resulting in incorrect payment of wages, inaccurate wage
statements, unpaid overtime, and incorrect payments to terminated
employees. Each of these suits was filed as a class action and
seeks to include in the class certain current and former employees
of the respective subsidiary involved. In each case, the
plaintiffs are seeking unpaid wages, interest, attorneys' fees,
compensatory and other monetary damages, statutory penalties, and
injunctive relief. No determination has been made by any Court
regarding class certification. Ralcorp agreed with the plaintiffs
and a third party staffing agency formerly used by Ralcorp to the
terms of a proposed settlement with respect to these suits, and
the parties entered into a global settlement with respect to these
claims.
On March 26, 2013, the Court granted final approval of the
settlement.
On January 29, 2013, ConAgra acquired Ralcorp pursuant to a
Agreement and Plan of Merger dated as of November 26, 2012, among
Ralcorp, ConAgra Foods, and Phoenix Acquisition Sub Inc., a wholly
owned subsidiary of ConAgra Foods. Each outstanding share of
Ralcorp common stock was converted into the right to receive
$90.00 in cash, without interest. The total amount of
consideration paid in connection with the acquisition was
approximately $4.75 billion, net of cash acquired, plus assumed
liabilities. ConAgra funded the merger consideration with
existing cash on hand, borrowings under a new term loan facility,
and proceeds from the issuance of new senior notes and common
stock. The Ralcorp business is reflected in two new reporting
segments: the Ralcorp Food Group and the Ralcorp Frozen Bakery
Products segment.
DAVITA HEALTHCARE: Appeal From Class Cert. Order Remains Pending
----------------------------------------------------------------
An appeal from the denial of a motion for class certification
remains pending, according to DaVita HealthCare Partners Inc.'s
March 1, 2013, Form 10-K filing with the U.S. Securities and
Exchange Commission for the year ended December 31, 2012.
A wage and hour claim, which has been styled as a class action, is
pending against the Company in the Superior Court of California.
The Company was served with the complaint in this lawsuit in April
2008, and it has been amended since that time. The lawsuit, as
amended, alleges that the Company failed to provide meal periods,
failed to pay compensation in lieu of providing rest or meal
periods, failed to pay overtime, and failed to comply with certain
other California Labor Code requirements. In September 2011, the
court denied the plaintiffs' motion for class certification. The
Plaintiffs have appealed that decision. The Company says it
intends to continue to vigorously defend against these claims.
Any potential settlement of these claims is not anticipated to be
material to the Company's consolidated financial statements.
DaVita HealthCare Partners Inc. -- http://www.davita.com/-- was
incorporated as a Delaware corporation in 1994 and is
headquartered in Denver, Colorado. The Company primarily operates
two major lines of business -- its U.S. dialysis and related lab
services business and HCP, a patient- and physician-focused
integrated health care delivery and management.
DOHENY GLATT: Faces Kosher Meat Class Action; USDA to Launch Probe
------------------------------------------------------------------
Matt Stevens, writing for Los Angeles Times, reports that the U.S.
Department of Agriculture has launched an investigation into the
Doheny Glatt Kosher meat market as the controversy entered the
court system.
The owner of Doheny, Michael Engelman, faces accusations of
selling meat that was not properly certified under kosher rules.
A council of rabbis pulled Doheny's kosher certification and, in a
statement on March 29, raised the possibility of legal action.
A Los Angeles man filed a class-action lawsuit against the market
and its owner on April 2, seeking unspecified damages and alleging
fraud, false advertising and other charges.
Joshua Fard, 30, of Beverly Hills has three children and said he
and his family bought meat from Doheny on a quarterly basis.
"This is a deeply held religious belief that he has," Mr. Fard's
attorney said.
On April 2, the USDA's Food Safety and Inspection Service
confirmed that the Doheny market is under investigation, adding
yet another item to its mounting pile of problems. Officials
declined to provide additional details because the investigation
is ongoing.
Eric Agaki, a private investigator whose video recordings ignited
the kosher meat controversy, said he met with USDA investigators
March 25 and gave them materials he had collected during his own
investigation. Though the exact nature of the USDA's
investigation was not clear, Mr. Agaki said investigators told him
that USDA boxes are not supposed to be repacked.
This not the first time a secular agency has stepped in during a
kosher meat crisis in Los Angeles.
In 1990, Emes Kosher Meats had its kosher certificate suspended by
the same council of rabbis that yanked Doheny's. At the time,
Emes was the biggest kosher retailer in Los Angeles.
The scandal forced the market to close for months, before
reopening, and then closing again. In the wake of the scandal,
the Rabbinical Council of California adopted toughened rules
governing the eligibility of butchers for kosher certification and
expanded their inspections.
County officials also stepped up their monitoring of records kept
by kosher butcher shops and investigated whether the practice of
mixing kosher and non-kosher meat was widespread.
Like Doheny, Emes Kosher attracted many customers because of its
wide variety and low prices. In an advertisement in a Jewish
weekly, Emes owner Semyon Rachshtut blamed closure of his market
on "suppression received from the Rabbinical Council of
California."
More than two decades later, the current allegations have roiled
Los Angeles' Jewish community again. Some alarmed passersby
ripped into the store and its owner as they walked past the
reopened store on March 29. Other longtime Doheny customers
returned after hearing that the market got a new kosher
certification from local rabbis.
Some supporters said they believed Mr. Engelman had been set up by
other distributors who grew frustrated by his success. They
labeled the RCC as politically motivated.
April 2 was the last day of Passover, and phone calls to the RCC
were not immediately returned. But in an interview with The
Times, Mr. Agaki flatly denied those rumors, saying his probe of
Doheny Glatt Kosher meat market "felt like the right thing to do."
"How can anybody set them up?" Mr. Agaki said of Mr. Engelman and
his associates. "They did what they did. Nobody made them do it.
"Nobody hired me, nobody paid me," he continued. "If anybody
wants to pay me and send me donations, I'm glad to accept them."
Mr. Agaki said his investigation into Doheny began about seven
months ago when he was approached by a local rabbi. The rabbi
told him some community members were frustrated because Doheny was
selling meat "way too cheap" and "putting a lot of people out of
business."
The video recordings released to KTLA-TV Channel 5 purport to show
one of Mr. Engelman's associates loading his car with repacked
glatt kosher boxes at an unsupervised warehouse in Reseda in early
March. The associate transfers them to Mr. Engelman at a
McDonald's, Mr. Agaki said, and Mr. Engelman unloads the boxes at
his market when the overseer is absent.
Mr. Agaki, who is Jewish, said he had no relationship with
Mr. Engelman prior to the start of the investigation. But he said
that during his investigation, it became clear that "a lot of
distributors had problems with Doheny."
Kosher meat is considerably more expensive than meat found in a
regular supermarket because of the extra supervision and
inspections required. Mixing glatt kosher meat with non-kosher
meat, or even kosher meat of a lesser quality could help drive
down prices if it was falsely advertised.
"A lot of people wanted to see Doheny go down," Mr. Agaki said.
Mr. Fard's attorney, Raymond Zolekhian, said: "He and his family
keep a strictly kosher home."
Mr. Engelman could not be reached for comment on March 29 when The
Times visited the market.
DRUMLUMMON GOLD: Judge Certifies Employees' Overtime Class Action
-----------------------------------------------------------------
The Associated Press reports that a judge has certified a
complaint by former Drumlummon Gold Corp. employees as a class-
action lawsuit.
The five former workers allege the company did not pay them the
proper overtime rate that took into account the discretionary
"production bonuses" they received.
They say the bonuses should be counted as regular pay when
calculating overtime at 1-1/2 times their hourly wages.
The company denies the allegations in a filing by its attorney.
In granting the request to certify the collective action, U.S.
District Judge Dana Christensen said on April 1 there were more
than 100 hourly paid employees at the mine near Helena for two
years prior to the complaint.
Judge Christensen says the former workers have met the burden to
show they were subject to a common policy that allegedly violated
the law.
GREAT LAKES: Pomerantz Grossman Files Class Action in Illinois
--------------------------------------------------------------
Dredging News Online reports that Pomerantz Grossman Hufford
Dahlstrom & Gross LLP has filed a class action lawsuit against
Great Lakes Dredge & Dock Corporation and certain of its officers.
The class action filed in United States District Court, Northern
District of Illinois, and docketed under 13 C 02450, is on behalf
of a class consisting of all persons or entities who purchased or
otherwise acquired securities of Great Lakes between August 7th
2012 and March 14th 2013.
The class action seeks to recover damages against the company and
certain of its officers and directors as a result of alleged
violations of the federal securities laws pursuant to Sections
10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule
10b-5 promulgated thereunder.
HANNAFORD BROS: Mintz Levin Discusses Class Action Ruling
---------------------------------------------------------
Kevin M. McGinty, Esq. at Mintz, Levin, Cohn, Ferris, Glovsky and
Popeo, P.C. reports that damages issues continue to bedevil would-
be data breach class action plaintiffs. A long and growing line
of cases holds that consumers cannot maintain claims arising from
theft of their personal or financial data without alleging that
the theft resulted in financial injury. One notable exception to
this trend was the First Circuit's 2011 ruling in Anderson v.
Hannaford Bros. Co., Nos. 10-2384, 10-2450 (1st Cir. Oct. 20,
2011), which . . . held that where a breach resulted from targeted
efforts of hackers to access and steal credit card data, out-of-
pocket mitigation costs (such as credit insurance and fees
associated with new credit cards) were reasonably foreseeable
expenses and, therefore, were legally cognizable damages. In so
ruling, the First Circuit reversed an order dismissing the case
for lack of actionable injury, permitting the case to proceed to a
motion for class certification. It was at that stage, however,
that damages issues again surfaced to preclude certification of a
plaintiff class. In a March 20 decision, U.S. District Court
Judge Brock Hornby denied plaintiffs' motion to certify a class to
pursue recovery of amounts spent for credit monitoring and
associated expenses, holding that proving such damages for members
of the class required highly individualized determinations that
could not be tried through proof common to the class as a whole.
Under the Federal Rules of Civil Procedures, a class action to
seek money damages cannot be certified unless issues common to the
class as a whole predominate over issues affecting only individual
plaintiffs. After the First Circuit's ruling in Anderson, the
question of whether Hannaford had negligently breached data
security duties owed to its customers was common to the class as a
whole. The class also alleged a common injury -- the reasonable
costs of credit insurance and other actions to avoid or mitigate
credit risk. However, what actions each class member took and the
costs each incurred were not susceptible of common proof. There
were a range of costs incurred and actions taken, some of which
were arguably duplicative or unnecessary. Hannaford successfully
argued that the questions of whether individual consumer actions
were reasonable and what such actions reasonably should have costs
could not be determined without taking testimony from every member
of the class. Once individual trials are required it is no longer
appropriate to try a case as a class action. Judge Hornby agreed,
and ruled that the need to conduct individualized damages trials
prevented certification of the plaintiff class.
One noteworthy aspect of Judge Hornby's opinion is his rejection
of the argument that certification of a plaintiff class would not
be appropriate because a voluntary refund program offered by
Hannaford was superior to the proposal to seek substantially
duplicative relief at trial subject to set-off for class counsel
fees. As this writer previously noted in a 2011 article for
Law360, certain courts have declined to certify classes based on a
determination that voluntary settlement programs offered a
superior means of resolving the dispute. Judge Hornby declined to
follow these cases on the ground that the Federal Rules require
proof that the class action is a superior means of adjudication,
and that the voluntary refund programs concerned settlement, not
adjudication. In a similar vein, the Seventh Circuit's decision
in In re Aqua Dots Prods. Liability Litig., 654 F.3d 748, 752 (7th
Cir. 2011), rejected the argument that class certification could
be denied based on the superiority of a voluntary refund program.
The Seventh Circuit, however, affirmed denial of class
certification on the alternative ground that class counsel who
insisted on pursuing less efficient class remedies that would cost
more than the voluntary refund program did not adequately
represent the interests of the class. Judge Hornby rejected this
argument as well, focusing on the particular role of class counsel
in ensuring that class members had a remedy that might not
otherwise be available.
The Hannaford case illustrates how damages issues, even in cases
articulating a viable common damages theory, can still frustrate
class certification. Further, while Judge Hornby declined to find
that a fair and effective remediation program provides a defense
against class certification, such programs still provide a way to
mitigate class damages, reduce potential overall exposure and
retain customer goodwill.
HARLEQUIN ENTERPRISES: Judge Dismisses Royalties Class Action
-------------------------------------------------------------
Harlequin Enterprises Limited on April 2 disclosed that Federal
District Judge Harold Baer, Jr. of the U.S. District Court for the
Southern District of New York ruled in favor of Harlequin,
dismissing the class action complaint against it (Barbara Keiler
v. Harlequin Enterprises Limited, 12cv5558, U.S. District Court,
Southern District of New York).
Judge Baer dismissed the suit, which related to the payment to
certain authors of royalties on digital rights under contracts
entered into from 1990 to 2004. The suit was dismissed on grounds
that the plaintiffs failed to state a claim.
Throughout the case, Harlequin maintained that it properly
executed the terms of the publishing contracts signed with its
authors. Harlequin, one of the world's most respected publishers
of books for women, has always fairly compensated its authors. In
particular, as ebooks have become a more important source of
publishing revenue in recent years, Harlequin has voluntarily
changed the terms of its publishing contracts to offer authors a
greater share of ebook revenue.
"We are pleased with today's decision," said Donna Hayes,
Publisher and CEO, Harlequin. "Harlequin prides itself on being a
place where over 1,200 authors find opportunities to publish. As
the publishing industry evolves, we look forward to developing our
author agreements further in ways that serve both of our
interests."
Harlequin Harlequin -- http://www.Harlequin.com-- is a publisher
of books for women, with titles issued worldwide in 31 languages
and sold in 110 international markets. The company publishes more
than 110 titles monthly and more than 1,200 authors from around
the world. Harlequin is a wholly owned subsidiary of Torstar
Corporation -- http://www.torstar.com-- a broadly based media
company listed on the Toronto Stock Exchange (TS.B). Harlequin
has offices in 18 countries, including offices in Toronto, New
York and London.
HARPERCOLLINS PUBLISHERS: Bookstores Sue Over e-Book Sales
----------------------------------------------------------
A purported class of independent bricks-and-mortar bookstores
filed on February 15, 2013, an action in the U.S. District Court
for the Southern District of New York entitled The Book House of
Stuyvesant Plaza, Inc, et al. v. Amazon.com, Inc., et al., which
relates to the digital rights management protection ("DRM") of
certain publishers' -- including News Corp.'s HarperCollins
Publishers L.L.C. -- e-books being sold by Amazon.com Inc. The
case involves allegations that certain named defendants in the
book publishing and distribution industry, including
HarperCollins, violated the antitrust laws by virtue of requiring
DRM protection. The action seeks declaratory and injunctive
relief, reasonable costs and attorneys' fees.
While it is not possible to predict with any degree of certainty
the ultimate outcome of this class action, HarperCollins believes
it was compliant with applicable antitrust laws.
HarperCollins also has been named a defendant in various class
action lawsuits. Commencing on August 9, 2011, 29 purported
consumer class actions have been filed in the U.S. District Courts
for the Southern District of New York and for the Northern
District of California, which relate to the decisions by certain
publishers, including HarperCollins, to begin selling their eBooks
pursuant to an agency relationship. The Judicial Panel on
Multidistrict Litigation has transferred the various class actions
to the Honorable Denise L. Cote in the Southern District of New
York. The case is, In re MDL Electronic Books Antitrust
Litigation, Civil Action No. 11-md-02293 (DLC).
On January 20, 2012, plaintiffs filed a consolidated amended
complaint, again alleging that certain named defendants, including
HarperCollins, violated the antitrust and unfair competition laws
by virtue of the switch to the agency model for eBooks. The
actions seek as relief treble damages, injunctive relief and
attorney's fees.
On June 25, 2012, Judge Cote issued a scheduling order for the
multi-district litigation going forward.
While it is not possible to predict with any degree of certainty
the ultimate outcome of these class actions, HarperCollins
believes it was compliant with applicable antitrust and
competition laws.
Following an investigation, on April 11, 2012, the Department of
Justice filed an action in the U.S. District Court for the
Southern District of New York against certain publishers,
including HarperCollins, and Apple, Inc. The DOJ's complaint
alleges antitrust violations relating to defendants' decisions to
begin selling eBooks pursuant to an agency relationship. This case
was assigned to Judge Cote. Simultaneously, the DOJ announced
that it had reached a proposed settlement with three publishers,
including HarperCollins, and filed a Proposed Final Judgment and
related materials detailing that agreement.
Among other things, the Proposed Final Judgment requires that
HarperCollins terminate its agreements with certain eBook
retailers and places certain restrictions on any agreements
subsequently entered into with such retailers. On September 5,
2012, Judge Cote entered the Final Judgment.
A third party has filed a motion to intervene in the case for the
purpose of appealing Judge Cote's decision entering the Final
Judgment to the U.S. Court of Appeals for the Second Circuit.
Following an investigation, on April 11, 2012, 16 State Attorneys
General led by Texas and Connecticut -- AGs -- filed a similar
action against certain publishers and Apple, Inc. in the Western
District of Texas. On April 26, 2012, the AGs' action was
transferred to Judge Cote. On May 17, 2012, 33 AGs filed a second
amended complaint.
As a result of a memorandum of understanding agreed upon with the
AGs for Texas and Connecticut, HarperCollins was not named as a
defendant in this action. Pursuant to the terms of the memorandum
of understanding, HarperCollins entered into a settlement
agreement with the AGs for Texas, Connecticut and Ohio on June 11,
2012. By August 28, 2012, 49 states (all but Minnesota) and five
U.S. territories had signed on to that settlement agreement. On
August 29, 2012, the AGs simultaneously filed a complaint against
HarperCollins and two other publishers, a motion for preliminary
approval of that settlement agreement and a proposed distribution
plan. On September 14, 2012, Judge Cote granted the AGs' motion
for preliminary approval of the settlement agreement and approved
the AGs' proposed distribution plan. Notice was subsequently sent
to potential class members, and a fairness hearing took place on
February 8, 2013 at which Judge Cote gave final approval to the
settlement. The settlement was slated to become effective once
the March 11, 2013 deadline to appeal has passed and any potential
appeal has been finally resolved. Once the settlement becomes
effective, the final judgment will bar consumers from states and
territories covered by the settlement from participating in the
class actions.
While the settlement agreement with the AGs is still subject to
final approval by the court, New News Corporation believes that
the proposed settlement, as currently drafted, will not have a
material impact on the results of operations or the financial
position of New News Corporation. However, New News Corporation
can make no assurances that the proposed settlement will receive
final approval.
On October 12, 2012, HarperCollins received a Civil Investigative
Demand from the Attorney General from the State of Minnesota.
HarperCollins complied with the Demand on November 16, 2012 and is
cooperating with that investigation. While it is not possible to
predict with any degree of certainty the ultimate outcome of the
inquiry, HarperCollins believes it was compliant with applicable
antitrust laws.
The European Commission conducted an investigation into whether
certain companies in the book publishing and distribution
industry, including HarperCollins, violated the antitrust laws by
virtue of the switch to the agency model for eBooks. HarperCollins
settled the matter with the European Commission on terms
substantially similar to the settlement with the DOJ. On December
13, 2012, the European Commission formally adopted the settlement.
Commencing on February 24, 2012, five purported consumer class
actions were filed in the Canadian provinces of British Columbia,
Quebec and Ontario, which relate to the decisions by certain
publishers, including HarperCollins, to begin selling their eBooks
in Canada pursuant to an agency relationship. The actions seek as
relief special, general and punitive damages, injunctive relief
and the costs of the litigations. While it is not possible to
predict with any degree of certainty the ultimate outcome of these
class actions, especially given their early stages, HarperCollins
believes it was compliant with applicable antitrust and
competition laws and intends to defend itself vigorously.
In July 2012, HarperCollins Canada, a wholly-owned subsidiary of
HarperCollins, learned that the Canadian Competition Bureau
("CCB") had commenced an inquiry regarding the sale of eBooks in
Canada. HarperCollins currently is cooperating with the CCB with
respect to its inquiry. While it is not possible to predict with
any degree of certainty the ultimate outcome of the inquiry,
HarperCollins believes it was compliant with applicable antitrust
and competition laws.
"We are not able to predict the ultimate outcome or cost of the
HarperCollins matters. . . . During the six months ended December
31, 2012 and 2011, the legal and professional fees and settlements
incurred in connection with these matters were not material, and
as of December 31, 2012, we did not have a material accrual
related to these matters," News Corp. said in a regulatory filing
with the Securities and Exchange Commission on April 4.
HEALTH NET: Continues to Defend Suits Over Hard Disk Drive Loss
---------------------------------------------------------------
Health Net, Inc. continues to defend itself against class action
lawsuits arising from the loss of hard disk drives that had been
used in its data center, according to the Company's March 1, 2013,
Form 10-K filing with the U.S. Securities and Exchange Commission
for the year ended December 31, 2012.
The Company is a defendant in three related litigation matters
pending in California state and federal courts relating to
information security issues. On January 21, 2011, International
Business Machines Corp. ("IBM"), which handles the Company's data
center operations, notified the Company that it could not locate
several hard disk drives that had been used in the Company's data
center located in Rancho Cordova, California. The Company has
since determined that personal information of approximately two
million former and current Health Net members, employees and
health care providers is on the drives. Commencing on March 14,
2011, the Company provided written notification to the individuals
whose information is on the drives. To help protect the personal
information of affected individuals, the Company offered them two
years of free credit monitoring services, in addition to identity
theft insurance and fraud resolution and restoration of credit
files services, if needed.
On March 18, 2011, a putative class action relating to this
incident was filed against the Company in the U.S. District Court
for the Central District of California (the "Central District of
California"), and similar actions were later filed against the
Company in other federal and state courts in California. A number
of those actions were transferred to and consolidated in the U.S.
District Court for the Eastern District of California (the
"Eastern District of California"), and the two remaining actions
are currently pending in the Superior Court of California, County
of San Francisco ("San Francisco County Superior Court") and the
Superior Court of California, County of Sacramento ("Sacramento
County Superior Court"). The consolidated amended complaint in
the federal action pending in the Eastern District of California
was filed on behalf of a putative class of over 800,000 of the
Company's current or former members who received the written
notification, and also named IBM as a defendant. It sought to
state claims for violation of the California Confidentiality of
Medical Information Act and the California Customer Records Act,
and sought statutory damages of up to $1,000 for each class
member, as well as injunctive and declaratory relief, attorneys'
fees and other relief.
On January 20, 2012, the district court issued an order dismissing
the consolidated complaint on the grounds that the plaintiffs
lacked standing to bring their action in federal court. On April
20, 2012, an amended complaint with a new plaintiff was filed
against the Company, but no longer asserted claims against IBM.
The amended complaint asserted the same causes of action and
sought the same relief as the earlier complaint. On June 18,
2012, the Company filed a motion to dismiss the amended complaint,
which is currently pending.
The San Francisco County Superior Court proceeding was instituted
on March 28, 2011, and is brought on behalf of a putative class of
California residents who received the written notification, and
seeks to state similar claims against the Company, as well as
claims for violation of California's Unfair Competition Law, and
seeks similar relief. The Company moved to compel arbitration of
the two named plaintiffs' claims. The court granted the Company's
motion as to one of the named plaintiffs and denied it as to the
other. The Company is appealing the latter ruling. Thereafter,
the plaintiff as to whom the Company's motion to compel
arbitration was granted filed a petition for a writ of mandate
with the California Court of Appeal seeking review of that ruling.
On July 9, 2012, the Court of Appeal issued a peremptory writ of
mandate directing the Superior Court to vacate its order granting
the motion to compel arbitration and to enter an order denying the
motion to compel.
The Sacramento County Superior Court proceeding was instituted on
April 3, 2012, and is brought on behalf of a putative class of
California members whose information was contained on the
unaccounted for drives. The action contains the same claims and
seeks the same relief as the case pending in the Eastern District
of California. On June 18, 2012, the Company filed a demurrer
seeking dismissal of this complaint, which is currently pending.
The Company has also been informed that a number of regulatory
agencies are investigating the incident, including the California
Department of Managed Health Care ("DMHC"), the California
Department of Insurance, the California Attorney General, the
Massachusetts Office of Consumer Affairs and Business Regulation
and the Office of Civil Rights of the U.S. Department of Health
and Human Services.
The Company says it intends to vigorously defend itself against
these claims; however, these proceedings are subject to many
uncertainties.
Health Net, Inc. -- http://www.healthnet.com/-- through its
subsidiaries, provides managed health care services. The Company
offers commercial health care products, such as health maintenance
organization plans through contracts with participating network
physicians, hospitals, and other providers; preferred provider
organization plans that provide coverage for services received
from health care provider; and point of service plans. It also
provides Medicare products. The Company was founded in 1979 and
is headquartered in Woodland Hills, California.
IOVATE HEALTH: Court Stays Hydroxycut Consumer Class Action
-----------------------------------------------------------
KEVIN BRANCA, an individual, on behalf of himself and all others
similarly situated, Plaintiff, v. IOVATE HEALTH SCIENCES USA,
INC., et al., Defendants, Case No. 12cv01686-LAB (WMC), (S.D.
Cal.) is a consumer protection class action against the
manufacturer of the dietary supplement Hydroxycut, which is
supposed to help with weight loss. The basic claim is that it
doesn't work. The case was filed on July 6, 2012, and on September
12 Iovate filed two motions to dismiss that are now under
submission. On January 22, 2013, with the motions still under
submission, Iovate filed a motion to stay the case pending the
approval of a settlement in a substantively identical class action
in Santa Barbara Superior Court. That case, Garcia v. Iovate
Health Science s U.S.A., was filed just two weeks after this one,
on July 20, 2012. The spirit of the motion to stay is that
proceeding with this case would be a waste of the Court's
resources and potentially result in duplicative litigation. The
Court agrees, more or less, and the motion to stay is GRANTED.
In the interest of judicial economy, District Judge Larry Alan
Burns granted the motion to stay for a period of 90 days. "By no
later than July 1, 2013, the parties must jointly file a status
report that informs the Court of the outcome of the proposed
settlement in Garcia. The Court will evaluate then, if necessary,
whether to extend the stay," he added.
A copy of the District Court's April 2, 2013 Order is available at
http://is.gd/awtCVEfrom Leagle.com.
J&A SERVICES: Conditional Certification of FLSA Suit Approved
-------------------------------------------------------------
District Judge William J. Martinez on April 2, 2013, approved a
joint stipulation regarding conditional certification and notice
to putative class members in the lawsuit captioned BUCK HOWARD,
Individually and on behalf of all others similarly situated, and
PAT MARTIN, individually and on behalf of all others similarly
situated Plaintiffs, v. J&A SERVICES, INC., JAMES WHITELY, and ANN
MARIE WHITELY, Defendants, Civil Action No. 12-cv-2987-WJM-MJW,
(D. Col.).
Under the stipulation, the Parties agreed that the case should be
conditionally certified as a collective action under the Fair
Labor Standards Act, 29 U.S.C. Section 216(b). The Parties have
agreed that the conditional nationwide class will consist of, and
that notice will be sent to, all current and former workers of
Defendants that meet the following criteria:
All current and former workers who performed flow testing
services for oil and gas wells serviced by J&A Services, L.L.C.
and/or Texas J&A Service, L.L.C. from __________, 2010 (3 years
prior to the date of mailing) to ___________ 2013 (date of
mailing).
For conditional certification purposes only, Galvin Kennedy of
Kennedy Hodges, LLP will serve as class counsel and Buck Howard
and Pat Martin will serve as the representatives for the class.
The Parties stipulate that within 14 days of the Court approving
the stipulation and notice, the Defendants will provide to the
Plaintiffs' counsel the names, dates of work, location of work, e-
mail addresses, date of birth, the last known address and phone
number where such information is available for all current and
former J&A Services and Texas J&A Service workers who meet the
criteria.
The Plaintiffs' counsel will mail a copy of the agreed Notice of
Rights and agreed Consent Form via e-mail to the e-mail addresses
provided by the Defendants and first class mail to all persons
contained on the list within ten days of receiving the list from
the Defendants.
Individuals identified by the Defendants will have 60 days from
the date of the mailing of the Notice of Rights to return their
Consent Form to the Plaintiffs' counsel opting into this lawsuit
as Plaintiffs. The Notice of Rights will contain the appropriate
deadline for joining this lawsuit.
A copy of the District Court's April 2, 2013 Order is available at
http://is.gd/rHewm7from Leagle.com.
JOS. A. BANK: Settlement Talks Ongoing in "Holmes" Suit
-------------------------------------------------------
Settlement talks are ongoing in a class action lawsuit filed by a
former Jos. A. Bank Clothiers Inc. employee, the Company disclosed
in its Form 10-K Annual Report for the fiscal year ended February
2, 2013, filed with the Securities and Exchange Commission on
April 3.
On March 16, 2012, Neil Holmes, a former employee of the Company,
individually and on behalf of all those similarly situated, filed
a Complaint against the Company in the Superior Court of
California, County of Santa Clara, Case No. 112CV220780, alleging
various violations of California wage and labor laws. The Holmes
Complaint seeks, among other relief, certification of the case as
a class action, injunctive relief, monetary damages, penalties,
restitution, other equitable relief, interest, attorney's fees and
costs.
On December 21, 2012, the parties accepted a mediator's proposal
to settle this case. The proposed settlement has been recorded by
the Company. The parties are in the process of negotiating a
settlement agreement pursuant to the mediator's proposal. Any such
settlement agreement will be subject to the approval of the
Superior Court.
"Although we expect the parties to enter into a settlement
agreement and the Superior Court to approve the settlement
agreement, we cannot provide any assurance that such events will
occur," the Company said.
Hampstead, Maryland-based Jos. A. Bank Clothiers, Inc., is a
nationwide designer, manufacturer, retailer and direct marketer
(through stores, catalog call center and Internet) of men's
tailored and casual clothing and accessories and is a retailer of
tuxedo rental products. The Company sells substantially all of
its products exclusively under the Jos. A. Bank label through 602
retail stores (as of February 2, 2013, which includes 35 Outlet
and Factory stores and 15 Franchise stores) located throughout 44
states and the District of Columbia in the United States, as well
as through its nationwide catalog call center and Internet --
http://www.josbank.com/-- operations. The Company's products are
targeted at the male career professional and emphasize the Jos. A.
Bank brand of high quality tailored and casual clothing and
accessories. The products are offered at "Three Levels of
Luxury," which range from the original Jos. A. Bank Executive
collection to the more luxurious Jos. A. Bank Signature collection
to the exclusive Jos. A. Bank Signature Gold collection. The
Company also offers the Jos. A. Bank Classic collection designed
and offered in its Factory stores.
JOS. A. BANK: N.J. Suit Over Deceptive Advertising Dismissed
------------------------------------------------------------
Jos. A. Bank Clothiers Inc. disclosed in its Form 10-K Annual
Report for the fiscal year ended February 2, 2013, filed with the
Securities and Exchange Commission on April 3, that a class action
lawsuit over deceptive advertising has been dismissed.
On April 5, 2012, James Waldron and Matthew Villani, on their own
behalf and on behalf of all others similarly situated, filed a
putative class action against the Company in the United States
District Court for the District of New Jersey (Case 2:33- av-
00001). On August 6, 2012, the named plaintiffs filed an Amended
Class Action Complaint alleging, among other things, that the
Company's merchandise is perpetually on sale and the sale price is
actually the price at which the merchandise is regularly offered.
As a result, the Waldron Complaint alleges the Company's
advertising practices violate the New Jersey Consumer Fraud Act
and constitute unjust enrichment. The Waldron Complaint seeks,
among other relief, certification of the case as a national (or
New Jersey only) class action, injunctive relief, declaratory
relief, disgorgement of profits, monetary damages (including
treble damages), restitution, costs and attorneys' fees, statutory
pre-judgment interest and other legal and equitable relief.
On January 28, 2013, upon the motion of the Company, the U.S.
District Court issued an Order and Opinion dismissing the Waldron
Complaint in its entirety, without prejudice.
Hampstead, Maryland-based Jos. A. Bank Clothiers, Inc., is a
nationwide designer, manufacturer, retailer and direct marketer
(through stores, catalog call center and Internet) of men's
tailored and casual clothing and accessories and is a retailer of
tuxedo rental products. The Company sells substantially all of
its products exclusively under the Jos. A. Bank label through 602
retail stores (as of February 2, 2013, which includes 35 Outlet
and Factory stores and 15 Franchise stores) located throughout 44
states and the District of Columbia in the United States, as well
as through its nationwide catalog call center and Internet --
http://www.josbank.com/-- operations. The Company's products are
targeted at the male career professional and emphasize the Jos. A.
Bank brand of high quality tailored and casual clothing and
accessories. The products are offered at "Three Levels of
Luxury," which range from the original Jos. A. Bank Executive
collection to the more luxurious Jos. A. Bank Signature collection
to the exclusive Jos. A. Bank Signature Gold collection. The
Company also offers the Jos. A. Bank Classic collection designed
and offered in its Factory stores.
JOS. A. BANK: Defending Illinois Suit Over Deceptive Advertising
----------------------------------------------------------------
Jos. A. Bank Clothiers Inc. disclosed in its Form 10-K Annual
Report for the fiscal year ended February 2, 2013, filed with the
Securities and Exchange Commission on April 3, that it intends to
"vigorously defend" itself in an amended class action lawsuit over
deceptive advertising.
On August 29, 2012, Patrick Edward Camasta, individually and as
the representative of a class of similarly situated persons, filed
a putative class action complaint (the "Original Camasta
Complaint") against the Company in the Circuit Court of the
Nineteenth Judicial Circuit, Lake County, Illinois (Case No.
12CH4405). The Company removed the case to the United States
District Court for the Northern District of Illinois, Eastern
Division (Case No. 12 CV 7782). The Original Camasta Complaint
alleges, among other things, that the Company's pattern and
practice of advertising its normal retail prices as temporary
price reductions violate the Illinois Consumer Fraud and Deceptive
Business Practices Act and the Illinois Uniform Deceptive Trade
Practices Act. The Original Camasta Complaint seeks, among other
relief, certification of the case as a class action, actual and
punitive damages, attorney fees and costs and injunctive relief.
On February 7, 2013, upon the motion of the Company, the U.S.
District Court issued a Memorandum Opinion and Order dismissing
the Original Camasta Complaint in its entirety, without prejudice.
On March 1, 2013, Camasta filed a First Amended Class Action
Complaint in the United States District Court making substantially
the same allegations as in the Original Camasta Complaint.
Hampstead, Maryland-based Jos. A. Bank Clothiers, Inc., is a
nationwide designer, manufacturer, retailer and direct marketer
(through stores, catalog call center and Internet) of men's
tailored and casual clothing and accessories and is a retailer of
tuxedo rental products. The Company sells substantially all of
its products exclusively under the Jos. A. Bank label through 602
retail stores (as of February 2, 2013, which includes 35 Outlet
and Factory stores and 15 Franchise stores) located throughout 44
states and the District of Columbia in the United States, as well
as through its nationwide catalog call center and Internet --
http://www.josbank.com/-- operations. The Company's products are
targeted at the male career professional and emphasize the Jos. A.
Bank brand of high quality tailored and casual clothing and
accessories. The products are offered at "Three Levels of
Luxury," which range from the original Jos. A. Bank Executive
collection to the more luxurious Jos. A. Bank Signature collection
to the exclusive Jos. A. Bank Signature Gold collection. The
Company also offers the Jos. A. Bank Classic collection designed
and offered in its Factory stores.
KNIGHT TRANSPORTATION: Still Defends Wage and Hour Litigation
-------------------------------------------------------------
Knight Transportation, Inc., is involved in certain class action
litigation in which the plaintiffs allege claims for failure to
provide meal and rest breaks, unpaid wages, unauthorized
deductions and other items. Based on its knowledge of the facts
and advice of outside counsel, management does not believe the
outcome of the litigation is likely to have a materially adverse
effect on the Company's financial position or results of
operations. However, the final disposition of these matters and
the impact of such final dispositions cannot be determined at this
time.
No further updates were reported in the Company's March 1, 2013,
Form 10-K filing with the U.S. Securities and Exchange Commission
for the year ended December 31, 2012.
Phoenix, Arizona-based Knight Transportation, Inc. --
http://www.knighttrans.com/-- is a provider of multiple truckload
transportation services, which generally involve the movement of
full trailer or container loads of freight from origin to
destination for a single customer.
LA FUENTE: Servers File Class Action Over Labor Violations
----------------------------------------------------------
Tami Hughes, writing for WITI, reports that a group of servers at
La Fuente restaurant have filed a class action lawsuit against the
restaurant -- saying they are sick of footing the bill for food
sent back to the kitchen. The claim says servers were expected to
work and not get paid -- and that they were stuck with the bill
when customers would skip out.
Larry Johnson is a labor attorney representing servers at two La
Fuente locations. Mr. Johnson says it was written policy to have
the servers start shifts early and prepare the restaurant, but
they weren't allowed to clock in until customers arrived, and so
now, a server has served the owners with a class action lawsuit.
"Setting up tables, putting rolling silverware, filling salt
shakers, working, making coffee, all that kind of stuff to get the
restaurant ready," Mr. Johnson said.
Mr. Johnson says those kinds of violations aren't all that
uncommon, but what is rather uncommon is what the complaint says
servers were forced to pay for their uniforms, aprons, hot pads to
serve fajitas, order pads and name tags -- and that's not all.
"Anytime a customer walked out without paying the bill, the
servers had to pay. Anytime a customer said, this is not what I
ordered, food or alcohol drink, the server had to pay for that,"
Mr. Johnson said.
Mr. Johnson says the owners were essentially transferring the cost
of doing business on to the servers, who were only being paid
$2.33 an hour.
The suit now requests those unpaid wages and if they win the case,
the court could double it, along with attorneys' fees.
Mr. Johnson says it is too early to know how much money that could
be, but he says it's the price companies pay when they don't
follow the law.
"The employees have gone to management and complained about this.
Management has not taken those complaints into consideration, or
their practices have not changed since those complaints,"
Mr. Johnson said.
LAFARGE NORTH AMERICA: Faces Class Action Over Gypsum Price-Fixing
------------------------------------------------------------------
Jon Campisi, writing for The Pennsylvania Record, reports that a
suburban Philadelphia construction company has become the latest
plaintiff in a string of class actions that assert antitrust
violations involving alleged price fixing and monopolization of
gypsum board, better known as drywall or sheetrock.
Sulock Construction, which is based in Southampton, Bucks County,
filed suit on April 1 at the federal court in Philadelphia against
CertainTeed Corp., USG Corp., United States Gypsum Co., New NGC
Inc., LaFarge North America Inc., Georgia-Pacific LLC, American
Gypsum Co., TIN Inc., and PABCO Building Products LLC.
The complaint, which seeks class status, alleges that from at
least the fall of 2011 to the present, the defendants engaged in a
scheme to fix, raise, maintain and stabilize the price of gypsum
board and to abolish the industry's competitive and long-standing
practice of limiting price increases for the duration of a
construction project through a process known as "job quotes."
The defendants, who manufacture and sell most of the gypsum board
sold in the United States, not only announced the coordinated
price increases, the suit states, but they successfully maintained
much higher prices throughout 2012, despite the fact that it has
been a soft construction market.
"Defendants also maintained substantially higher prices in the
face of significant industry overcapacity that would have made it
virtually impossible for any Defendant independently to impose and
maintain a substantial price increases [sic] on its customers in
the absence of collusion," the complaint reads.
As for Sulock Construction, the plaintiff in this case, the
company claims that it and other class members were injured by the
defendants' alleged unlawful acts in that they have paid more for
the product than they would have paid absent the alleged
collusion.
The complaint states that the defendants' unlawful contract,
combination or conspiracy has caused price competition in the
markets for gypsum board to be artificially restrained and has
deprived buyers of gypsum board of the benefit of free and open
competition in the markets for the product.
The suit says that the actions of the defendants have violated the
federal Sherman Act, which has to do with anti-competitiveness.
In addition to declaratory judgment, the plaintiff seeks treble
damages, pre-and-post-judgment interest, attorneys' fees and other
court relief.
The complaint was filed by attorneys Howard J. Sedran --
hsedran@lfsblaw.com -- Austin B. Cohen -- acohen@lfsblaw.com --
and Keith J. Verrier -- Kverrier@lfsblaw.com -- of the
Philadelphia firm Levin Fishbein Sedran & Berman, as well as
Conshohocken, Pa. attorney David P. McLafferty of McLafferty &
Associates.
The federal case number is 2:13-cv-01676-MMB.
MACY'S INC: Awaits Final OK of Accord in Suit Over 401(k) Plan
--------------------------------------------------------------
Parties to a class action lawsuit involving Macy's 401(k) Plan
have reached an agreement to settle the matter, subject to final
court approval of the settlement terms, the department store
operator disclosed in its Form 10-K Annual Report for the fiscal
year ended February 2, 2013, filed with the Securities and
Exchange Commission on April 3.
On October 3, 2007, Ebrahim Shanehchian, an alleged participant in
the Macy's, Inc. Profit Sharing 401(k) Investment Plan, filed a
lawsuit in the United States District Court for the Southern
District of Ohio on behalf of persons who participated in the
401(k) Plan and The May Department Stores Company Profit Sharing
Plan between February 27, 2005 and the present. The lawsuit has
been conditionally certified as a class action. The complaint
alleges that the Company, as well as members of the Company's
board of directors and certain members of senior management,
breached various fiduciary duties owed under the Employee
Retirement Income Security Act ("ERISA") to participants in the
401(k) Plan and the May Plan, by making false and misleading
statements regarding the Company's business, operations and
prospects in relation to the integration of the acquired May
operations, resulting in supposed "artificial inflation" of the
Company's stock price and "imprudent investment" by the 401(k)
Plan and the May Plan in Macy's stock. The plaintiff seeks an
unspecified amount of compensatory damages and costs.
Macy's Inc. and its predecessors have been operating department
stores since 1830. As of February 2, 2013, the operations of the
Company included approximately 840 stores in 45 states, the
District of Columbia, Guam and Puerto Rico under the names
"Macy's" and "Bloomingdale's" as well as macys.com and
bloomingdales.com. The Company operates 12 Bloomingdale's Outlet
stores. Bloomingdale's in Dubai, United Arab Emirates is operated
under a license agreement with Al Tayer Insignia, a company of Al
Tayer Group, LLC.
MEMC ELECTRONIC: Awaits Ruling in "Jones" Suit Over 401(k) Plan
---------------------------------------------------------------
MEMC Electronic Materials, Inc., is awaiting a court decision on
its motion for oral argument in the class action lawsuit initiated
by Jerry Jones related to its 401(k) Savings Plan, according to
the Company's March 1, 2013, Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended December 31,
2012.
On December 26, 2008, a putative class action lawsuit, captioned
Jerry Jones v. MEMC Electronic Materials, Inc., et al., was filed
in the U.S. District Court for the Eastern District of Missouri by
plaintiff, Jerry Jones, purportedly on behalf of all participants
in and beneficiaries of MEMC's 401(k) Savings Plan (the "Plan")
between September 4, 2007, and December 26, 2008, inclusive. The
complaint asserted claims against MEMC and certain of its
directors, employees and/or other unnamed fiduciaries of the Plan.
The complaint alleges that the defendants breached certain
fiduciary duties owed under the Employee Retirement Income
Security Act, generally asserting that the defendants failed to
make full disclosure to the Plan's participants of the risks of
investing in MEMC's stock and that the company's stock should not
have been made available as an investment alternative in the Plan.
The complaint also alleges that MEMC failed to disclose certain
material facts regarding MEMC's operations and performance, which
had the effect of artificially inflating MEMC's stock price.
On June 1, 2009, an amended class action complaint was filed by
Mr. Jones and another purported participant of the Plan, Manuel
Acosta, which raises substantially the same claims and is based on
substantially the same allegations as the original complaint.
However, the amended complaint changes the period of time covered
by the action, purporting to be brought on behalf of beneficiaries
of and/or participants in the Plan from June 13, 2008, through the
present, inclusive. The amended complaint seeks unspecified
monetary damages, including losses the participants and
beneficiaries of the Plan allegedly experienced due to their
investment through the Plan in MEMC's stock, equitable relief and
an award of attorneys' fees. No class has been certified and
discovery has not begun.
The Company and the named directors and employees filed a motion
to dismiss the complaint, which was fully briefed by the parties
as of October 9, 2009. The parties each subsequently filed
notices of supplemental authority and corresponding responses. On
March 17, 2010, the court denied the motion to dismiss. The MEMC
defendants filed a motion for reconsideration or, in the
alternative, certification for interlocutory appeal, which was
fully briefed by the parties as of June 16, 2010. The parties
each subsequently filed notices of supplemental authority and
corresponding responses. On October 18, 2010, the court granted
the MEMC defendants' motion for reconsideration, vacated its order
denying the MEMC defendants' motion to dismiss, and stated that it
will revisit the issues raised in the motion to dismiss after the
parties supplement their arguments relating thereto. Both parties
filed briefs supplementing their arguments on November 1, 2010.
On June 28, 2011, plaintiff Jerry Jones filed a notice of
voluntary withdrawal from the action. On June 29, 2011, the Court
entered an order withdrawing Jones as one of the plaintiffs in
this action. The parties each have continued to file additional
notices of supplemental authority and responses thereto. On
September 27, 2012, the MEMC defendants moved for oral argument on
their pending motion to dismiss; plaintiff Manuel Acosta joined in
the MEMC defendants' motion for oral argument on October 9, 2012.
The Court has not ruled on this motion for oral argument.
MEMC believes the class action is without merit, and the Company
will assert a vigorous defense. Due to the inherent uncertainties
of litigation, the Company says it cannot predict the ultimate
outcome or resolution of the class action proceedings or estimate
the amounts of, or potential range of, loss with respect to these
proceedings. An unfavorable outcome could have a material adverse
impact on the Company's business, results of operations and
financial condition. The Company has indemnification agreements
with each of its present and former directors and officers, under
which the Company is generally required to indemnify each such
director or officer against expenses, including attorneys' fees,
judgments, fines and settlements, arising from actions such as the
lawsuits (subject to certain exceptions, as described in the
indemnification agreements).
MEMC Electronic Materials Inc. -- http://www.memc.com/--
develops, manufactures and sells silicon wafers, and with the
acquisition of SunEdison, a major developer and seller of
photovoltaic energy solutions. The Company is a Delaware
corporation headquartered in St. Peter, Missouri.
MERCK FROSST: Judge Allows Prostate Drug Class Action to Proceed
----------------------------------------------------------------
Dene Moore, writing for The Canadian Press, reports that men who
suffered ongoing erectile dysfunction after taking prescription
drugs to treat prostate problems and male pattern baldness will be
able to pursue a class-action lawsuit against the drug maker, a
B.C. judge has ruled.
The lawsuit was brought by Michael Miller against Merck Frosst
Canada, makers of Propecia and Proscar, two drugs that contain the
medication finasteride. Mr. Miller was 25 in 2008, when he said
he obtained a prescription for Proscar from his doctor, according
to a written court ruling. Although that drug is for the
treatment of prostate problems, it contains the same medication as
Propecia, used to treat male pattern baldness.
Mr. Miller said he was advised to cut the five milligram tablet
into four, making it roughly the same as the more expensive one-
milligram Propecia tablets.
"Approximately one month after using Proscar the plaintiff alleges
he experienced a diminished sex drive," said the March 28 written
decision by B.C. Supreme Court Justice Robert Punnett posted
Tuesday on the court website.
"Over the ensuing months, he became completely disinterested in
sexual activity and was unable to maintain an erection."
Mr. Miller came across a Web site where other men linked sexual
dysfunction to the drugs months after they had stopped taking
them, and he discontinued use at the end of January 2009,
"expecting that these alleged side effects would disappear."
They did not, the lawsuit claims, and Mr. Miller launched the
class-action.
"The plaintiff asserts that the defendants were aware of the long-
term side effects and that the warnings given in Canada were
inadequate," the judge noted in his ruling.
In Sweden, for example, officials asked Merck six years ago to
include in the warning the possibility of persistent erectile
dysfunction continuing after use discontinued, and Merck agreed in
2008 to do so.
While the warning labels in Canada for both products did note that
"so-called side effects," which were "uncommon and do not effect
most men," may include impotence, problems with ejaculation and
decreased semen, they were not enough, Miller claimed.
Justice Punnett ruled that the class-action lawsuit is
appropriate, but certification is pending. The judge asked
Mr. Miller's lawyers to provide an affidavit with information on
potential litigants and asked both parties to provide information
on expert reports they plan to submit.
Merck has argued in this case and others that the plaintiffs have
not provided scientific or medical evidence proving a link between
the medication and the condition.
Neither a company spokesperson nor David Lyons, Mr. Miller's
lawyer, were available for comment on April 2.
Mr. Miller's lawyers told the judge they have been contacted by
almost 300 men -- 55 of them from B.C. -- who want to join the
lawsuit.
A similar lawsuit was filed in 2011 in Ontario Superior Court by
Sean Ramsaran and Chris Asimakopoulos.
In its third quarter earnings report last November, Merck & Co.
announced it had been named in 265 lawsuits in New York and New
Jersey alone over the sexual side effects of Propecia.
According to The Province's Keith Fraser, Merck argued that the
allegations of negligence were not sustainable and that only a
"limited cause of action" for a failure to warn of persistent
sexual dysfunction had been made out.
It argued against having the case heard as a class-action lawsuit
but in a ruling released on April 2, B.C. Justice Punnett
dismissed those arguments.
The judge said that it was clear that the issues of what caused
the sexual dysfunction and whether there was negligence were
complex and would require extensive expert and scientific
evidence.
"Resolution of those issues would materially advance the
litigation as they are fundamental issues to each putative
plaintiff's claim . . . I conclude that a class action is the
preferable procedure with which to resolve the claims."
METALS USA: Settles "Edwards" Lawsuit Over Reliance Merger
----------------------------------------------------------
Metals USA Holdings Corp. and the other named defendants in the
class action lawsuit, Edwards v. Metals USA Holdings Corp. et al.,
No. CACE13003979 (Fla. Cir. Ct. Broward County), on April 3, 2013,
entered into a memorandum of understanding with the plaintiff in
the Edwards action to settle the case, and avoid the costs, risks,
and uncertainties inherent in litigation. The defendants did not
admit any liability or wrongdoing.
The lawsuit stemmed from the Agreement and Plan of Merger dated as
of February 6, 2013, by and among Reliance Steel & Aluminum Co., a
California corporation ("Reliance"), RSAC Acquisition Corp., a
Delaware corporation and a wholly owned subsidiary of Reliance
("Merger Sub") and Metals USA Holdings Corp., a Delaware
corporation ("Metals USA") providing for the merger (the "Merger")
of Merger Sub with and into Metals USA with Metals USA surviving
as a wholly-owned subsidiary of Reliance.
Putative class action lawsuits challenging the proposed
transaction have been filed on behalf of Metals USA stockholders
in Florida state court and federal court. The actions are
captioned Edwards v. Metals USA Holdings Corp. et al., No.
CACE13003979 (Fla. Cir. Ct. Broward County) and Savior Associates
v. Goncalves, et al., No. 0:13-cv-60492 (S.D. Fla.), respectively.
Metals USA has agreed, pursuant to the terms of the proposed
settlement, to make certain supplemental disclosures related to
the proposed Merger. The memorandum of understanding contemplates
that the parties will enter into a stipulation of settlement. The
stipulation of settlement will be subject to customary conditions,
including court approval following notice to Metals USA's
stockholders. In the event that the parties enter into a
stipulation of settlement, a hearing will be scheduled at which
the Circuit Court for the Seventeenth Judicial Circuit in and for
Broward County, Florida will consider the fairness,
reasonableness, and adequacy of the settlement. If the settlement
is finally approved by the court, it will resolve and release all
claims in all actions that were or could have been brought
challenging any aspect of the proposed Merger, the Merger
Agreement, and any disclosure made in connection therewith (but
excluding claims for appraisal under Section 262 of the Delaware
General Corporation Law), among other claims. In addition, in
connection with the settlement, the parties contemplate that
plaintiff's counsel will file a petition in the court for an award
of attorneys' fees and expenses to be paid by Metals USA or its
successor, which the defendants may oppose. Metals USA or its
successor will pay or cause to be paid any attorneys' fees and
expenses awarded by the court. There can be no assurance that the
parties will ultimately enter into a stipulation of settlement or
that the court will approve the settlement even if the parties
were to enter into such stipulation. In such event, the proposed
settlement as contemplated by the memorandum of understanding may
be terminated.
MONIER LLC: Mayer Brown Discusses False Ad Class Action Ruling
--------------------------------------------------------------
Kevin S. Ranlett, Esq., at Mayer Brown, reports that in state
courts, sometimes you lose even when you win. In a recent false-
advertising class action, a California Superior Court entered an
order concluding that the testimony of the plaintiffs' expert --
who was the linchpin of the case for class certification and on
the merits -- was inadmissible, which meant that the defendant was
entitled to judgment as a matter of law. (Wallace v. Monier, LLC,
No. S-CV-0016410 (Cal. Super. Ct. Placer Cty. Jan. 28, 2013).
Sounds great, right -- so what's the problem? The judge waited to
decide these issues until after a jury trial on the class claims
in which the plaintiffs were seeking damages in excess of $500
million, plus an additional amount in punitive damages. That's a
huge waste of the parties' and the court's resources. Many
businesses would have lacked the fortitude to endure that gauntlet
and agreed to a blackmail settlement in order to mitigate the
enormous risk presented by the inappropriate class-action jury
trial.
The case involved false-advertising claims under California law
against the maker of "slurry coated" roofing tiles, which the
plaintiffs alleged were prone to developing cosmetic defects
during their 50-year life. To support class certification and to
prove liability and damages, the plaintiffs relied on the
testimony of 22 homeowners, who were selected by a statistician
from the more than 100,000 who had purchased and installed the
roofing tiles. The plaintiffs proposed to extrapolate from the
sample homeowners' experiences to make findings regarding
liability and damages for the rest of the class.
The defendant raised numerous challenges to the admissibility of
the statistician's testimony and plaintiffs' proposed trial plan,
but these challenges were deferred until after trial. (The court
heard testimony about the challenges during breaks in the trial.)
Following an eight-week trial, the jury returned a verdict of
$7.41 million for the plaintiff.
The trial court then finally turned to the defendant's legal
challenges. Relying on an analogy to the U.S. Supreme Court's
rejection of "Trial by Formula" in Wal-Mart Stores, Inc. v. Dukes,
the trial court excluded the statistician's testimony on the
ground that his sampling techniques were neither reliable nor
generally accepted by recognized authorities in the field. Because
the plaintiffs' case for class certification and liability hinged
on that testimony, the court threw out the verdict and granted the
defendant judgment as a matter of law. The court then denied the
defendant's motion for decertification as moot (though it is
apparent from the court's reasoning that no class should have been
certified).
Although the end result was a defense victory, it was achieved at
a much higher cost than necessary. There is no reason that the
defendant's legal and evidentiary challenges were postponed until
post-trial motions. And although it is not categorically the case
that defendants are better off in federal court, it seems less
likely that a federal court would have deferred some of the key
evidentiary and legal issues until after a jury verdict. Here,
the defendants in Wallace had no choice; the case predated the
2005 enactment of the Class Action Fairness Act.
Mayer Brown is a global legal services provider comprising legal
practices that are separate entities. 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.
MONSANTO CO: Awaits Ruling in Appeal Over Settlement Approval
-------------------------------------------------------------
Resolution of an appeal from the final Court approval of a
settlement of a class action lawsuit over alleged exposure to
contaminants in counties surrounding Nitro, West Virginia, remains
pending, according to Monstanto Company's Form 10-Q report for the
quarterly period ended Feb. 28, 2013, filed with the Securities
and Exchange Commission on April 4.
On Dec. 17, 2004, 15 plaintiffs filed the purported class action
lawsuit, styled Virdie Allen, et al. v. Monsanto, et al., in the
Putnam County, West Virginia, state court against Monsanto,
Pharmacia and seven other defendants. Monsanto is named as the
successor in interest to the liabilities of Pharmacia LLC. The
alleged class consists of all current and former residents,
workers, and students who, between 1949 and the present, were
allegedly exposed to dioxins/furans contamination in counties
surrounding Nitro, West Virginia. The complaint alleges that the
source of the contamination is a chemical plant in Nitro, formerly
owned and operated by Pharmacia and later by Flexsys America Co.,
a joint venture between Solutia and Akzo Nobel Chemicals, Inc.
Akzo Nobel and Flexsys were named defendants in the case but
Solutia was not, due to its then pending bankruptcy proceeding.
The suit seeks damages for property cleanup costs, loss of real
estate value, funds to test property for contamination levels,
funds to test for human exposure, and future medical monitoring
costs. The complaint also seeks an injunction against further
contamination and punitive damages.
Monsanto has agreed to indemnify and defend Akzo Nobel and the
Flexsys defendant group, but on May 27, 2011, the judge dismissed
both Akzo Nobel and Flexsys from the case.
The class action certification hearing was held on Oct. 29, 2007.
On Jan. 8, 2008, the trial court issued an order certifying the
Allen (now Zina G. Bibb et al. v. Monsanto et al., because Bibb
replaced Allen as class representative) case as a class action for
property damage and for medical monitoring.
On Nov. 2, 2011, the court, in response to defense motions,
entered an order decertifying the property class. After the trial
for the Bibb medical monitoring class action began on Jan. 3,
2012, the parties reached a settlement in principle as to both the
medical monitoring and the property class claims. The proposed
settlement provides for a 30 year medical monitoring program
consisting of a primary fund of up to $21 million and an
additional fund of up to $63 million over the life of the program,
and a three year property remediation plan with funding up to $9
million.
On Feb. 24, 2012, the court preliminarily approved the parties'
proposed settlement. A fairness hearing was held June 18, 2012,
resulting in the trial court's final approval of the settlement,
however, that final approval has been appealed by two objectors to
the West Virginia Supreme Court of Appeals.
Monsanto, Pharmacia, Akzo Nobel (and several of its affiliates),
Flexsys America Co. (and several of its affiliates), Solutia, and
Apogee Coal Company, LLC, are also involved in approximately 200
separate, single plaintiff civil actions filed in Putnam County,
West Virginia, in October 2007 and November 2009. The cases
allege personal injury occasioned by exposure to dioxin generated
by the Nitro Plant during production of 2,4,5T (1949-1969) and
thereafter. Monsanto has agreed to accept the tenders of defense
in the matters by Pharmacia, Solutia, Akzo Nobel, Flexsys America,
and Apogee Coal under a reservation of rights. During the
discovery phase of these several claims, the parties reached an
agreement in principle to resolve all pending personal injury
claims.
St. Louis, Missouri-based Monsanto Company, along with its
subsidiaries, is a leading global provider of agricultural
products for farmers. Monsanto's seeds, biotechnology trait
products, and herbicides provide farmers with solutions that
improve productivity, reduce the costs of farming, and produce
better foods for consumers and better feed for animals.
NEWS CORP: Bid to Dismiss Suit Over News of the World Pending
-------------------------------------------------------------
A motion to dismiss filed by defendants in a purported class
action lawsuit involving News Corporation's U.K. newspaper, The
News of the World, remains pending, according to a regulatory
filing with the U.S. Securities and Exchange Commission.
The class action lawsuit captioned Wilder v. News Corp., et al.
was filed on July 19, 2011, on behalf of all purchasers of common
stock of News Corp. ("Parent") between March 3, 2011 and July 11,
2011, in the U.S. District Court for the Southern District of New
York. The plaintiff brought claims under Section 10(b) and
Section 20(a) of the Securities Exchange Act, alleging that false
and misleading statements were issued regarding alleged acts of
voicemail interception at The News of the World. The suit named
as defendants News Corp., Rupert Murdoch, James Murdoch and
Rebekah Brooks, and sought compensatory damages, rescission for
damages sustained, and costs.
The SEC filing, dated April 4, was made as part of News Corp.'s
planned spin-off its publishing business by June. According to
the regulatory papers, the new company is called "New News
Corporation."
According to the SEC filing, the litigation and certain other
Parent stockholder lawsuits are all now before the same judge. On
June 5, 2012, the court issued an order appointing the Avon
Pension Fund as lead plaintiff in the litigation and Robbins
Geller Rudman & Dowd as lead counsel. On July 3, 2012, the court
issued an order providing that an amended consolidated complaint
was to be filed by July 31, 2012.
Avon filed an amended consolidated complaint on July 31, 2012,
which among other things, added as defendants News Corp.
subsidiary, NI Group Limited, and Les Hinton, and expanded the
class period to include February 15, 2011 to July 18, 2011.
Defendants filed their motion to dismiss on September 25, 2012,
and the parties have completed briefing on the motion.
Parent and New News Corporation management believe the Parent
stockholder claims are entirely without merit and intend to
vigorously defend this action.
In addition, U.K. and U.S. regulators and governmental authorities
continue to conduct investigations initiated in 2011 with respect
to the U.K. Newspaper Matters. New News Corp., together with
Parent, is cooperating with these investigations.
According to New News Corp., "We have admitted liability in many
civil cases related to the phone hacking allegations and have
settled many cases. While additional civil lawsuits may be filed,
we have also announced a private compensation scheme under which
parties can pursue claims against us, and until April 8, 2013,
additional civil claims may be brought under the compensation
scheme.
"We are not able to predict the ultimate outcome or cost of the
civil claims or criminal matters. We incurred legal and
professional fees related to the U.K. Newspaper Matters and costs
for civil settlements totaling approximately $110 million and $90
million during the six months ended December 31, 2012 and 2011,
respectively. As of December 31, 2012, we have provided for our
best estimate of the liability for the claims that have been filed
and costs incurred and have accrued approximately $70 million. It
is not possible to estimate the liability for any additional
claims that may be filed given the information that is currently
available to us. If more claims are filed and additional
information becomes available, we will update the liability
provision for such matters.
"We and Parent will agree in the separation and distribution
agreement that Parent will indemnify us for payments made after
the distribution date arising out of civil claims and
investigations relating to the U.K. Newspaper Matters, subject to
our compliance with certain agreements regarding Parent's control
over the civil U.K. Newspaper Matters and our consenting to
settlements proposed by Parent, as well as legal and professional
fees and expenses paid in connection with the criminal matters.
The legal and professional fees and expenses and payments for
settlements that we have incurred to date were in connection with
the civil claims and investigations and criminal matters, and we
generally will be indemnified by Parent for such costs that are
paid after the distribution date. However, violations of law may
result in criminal fines or penalties for which we will not be
indemnified by Parent. It is possible that these proceedings and
any adverse resolution thereof, including any fines or other
penalties associated with any plea, judgment or similar result for
which we will not be indemnified, could damage our reputation,
impair our ability to conduct our business and adversely affect
our results of operations and financial condition."
NORTHUMBERLAND COUNTY, PA: Inmate Files Suit v. Prison Guards
-------------------------------------------------------------
Francis Scarcella and Rick Dandes, writing for The Daily Item,
report that a Northumberland County inmate involved in a $1.6
million class-action lawsuit against the county prison has filed a
complaint alleging that guards were opening his legal mail and
reading the documents.
Inmate Angel Espada alleges corrections officers told him a guard
identified only as "Lois" opened an envelope containing a document
related to the class-action lawsuit, court documents said. The
new claim was filed March 27 in U.S. Middle District Court in
Scranton.
Earlier, Mr. Espada and seven other inmates filed a lawsuit
claiming that prison inmates are subjected to inhumane conditions,
racial discrimination, retaliation and cruel and unusual
punishment by guards. In his complaint, Mr. Espada also claims
his legal document was given to Commander Brian Wheary, one of the
defendants in the class-action lawsuit.
Mr. Espada said because Mr. Wheary is named in the lawsuit he
should not be looking at the documents, court records state.
The eight inmates involved in the class-action lawsuit seek a
transfer to another prison, $200,000 each, release from
segregation and for the county to correct and improve prison
conditions.
Dave Sprout, a paralegal with the Lewisburg Prison Project, said:
"It is my understanding that if the mail is properly marked 'legal
mail,' then they should open it in front of the inmate. It
doesn't matter who is named in the lawsuit, it just can't be
read."
County Commissioner Vinny Clausi was furious to learn of the
latest court filing. Mr. Clausi has called for the construction
of a new prison.
'I warned everyone that these lawsuits were coming," he said. "It
is only a matter of time before we see more. We can't keep this
up. I am very afraid for the people of Northumberland County
right now because I have a feeling we are going to be paying a
severe price."
Mr. Clausi refused to talk about a series of visits he made to the
county prison.
"All I can say is I will be addressing some of these issues at the
prison board meeting," he said. Building a new prison is
something Mr. Clausi said can't be delayed.
"We must act and we must act now," he said. "No more delaying, no
more playing politics. There is a problem at this jail and we need
to find a permanent solution."
Mr. Clausi will be evaluating the staff at the jail after the
recent allegations, he said.
"This is one thing after another," he said. "Something must be
done with this prison. We need to look at all of these and we
need to find a solution."
Commissioner Steve Bridy, the prison board chairman, declined to
comment on the litigation.
Other inmates involved in the class-action lawsuit are Jason
Mercado, Hakeem Jefferson, Timothy Tyler, Tyrone Short, Katone
Walker, Matthew Romero and Robert Perez.
Defendants, in addition to Wheary, are Warden Roy Johnson; Lts.
Jim Smink, Jason Carl and Michael Walburn; and Sgts. Michael
Gibbs, Krista Brouse and Joshua Lehman.
The Northumberland County Prison Board was scheduled to meet at
11 a.m. on April 3 in the prison.
PERVASIVE SOFTWARE: Accord Reached in Merger-Related Suits
----------------------------------------------------------
Pervasive Software Inc. disclosed in a Form 8-K filing with the
Securities and Exchange Commission that an agreement-in-principle
has been reached in the various lawsuits launched over the
Company's planned merger with Actian Corporation.
On January 28, 2013, Pervasive Software entered into an Agreement
and Plan of Merger with Actian Corporation, a Delaware corporation
("Actian"), and Actian Sub II, Inc., a Delaware corporation and a
wholly owned subsidiary of Actian ("Merger Sub"), which provides
for the merger of Merger Sub with and into Pervasive Software,
with the Company surviving the Merger as a wholly owned subsidiary
of Actian.
On January 30, 2013, a purported stockholder class action was
filed in the Court of Chancery of the State of Delaware in
connection with the announcement of the proposed Merger entitled
The Joel Rosenfeld IRA. v. Pervasive, et al., Case No. 8265 (the
"Delaware Lawsuit"). Two substantially similar actions were also
filed in the District Court of Travis County, Texas. A class
action petition titled Arunachalam v. Pervasive et al., was filed
on January 30, 2013. A shareholder derivative petition titled
Roselo v. Pervasive et al., was filed on February 7, 2013.
Plaintiff in the Arunachalam and Roselo lawsuits (the "Texas
Lawsuits") each filed virtually identical amended class action
petitions on March 1, 2013. On March 21, 2013, the Texas court
entered an order consolidating the Texas Lawsuits as In re
Pervasive Software Inc. Shareholder Litigation, Lead Cause No.
D-1-GN-13-000352.
On April 3, 2013, the Company, Actian, Merger Sub, and plaintiffs
in the Delaware Lawsuit and Texas Lawsuits reached an agreement-
in-principle providing for the settlement of the outstanding
litigation on the terms and conditions set forth in a memorandum
of understanding. Pursuant to the terms of the MOU, without
agreeing that any of the claims in the Actions have merit or that
any supplemental disclosure was required under any applicable
statute, rule, regulation or law, Pervasive Software agreed to
make certain supplemental and amended disclosures. The MOU
further provides that, among other things, (a) the parties to the
MOU will enter into a definitive stipulation of settlement and
will submit the Stipulation to the District Court of Travis
County, Texas for review and approval; (b) the Stipulation will
provide for dismissal of the outstanding litigation on the merits;
(c) the Stipulation will include a general release of defendants
of claims relating to the transaction; and (d) the proposed
settlement is conditioned on final approval by the Travis County
Court after notice to Pervasive's shareholders. There can be no
assurance that the settlement will be finalized or that the Court
will approve the settlement.
On March 26, 2013, Pervasive Software filed with the Securities
and Exchange Commission a definitive proxy statement with respect
to the special meeting of Pervasive shareholders scheduled to be
held April 10.
Pervasive Software said the settlement will not affect the timing
of the Special Meeting or the amount of merger consideration to be
paid to shareholders of Pervasive in connection with the proposed
Merger.
Pervasive Software and the other defendants have vigorously
denied, and continue vigorously to deny, that they have committed
or aided and abetted in the commission of any violation of law or
engaged in any of the wrongful acts that were or could have been
alleged in the lawsuits, and expressly maintain that, to the
extent applicable, they diligently and scrupulously complied with
any applicable fiduciary and other legal duties and are entering
into the contemplated settlement solely to eliminate the burden
and expense of further litigation, to put the claims that were or
could have been asserted to rest, and to avoid any possible delay
to the closing of the Merger that might arise from further
litigation.
POOL CORP: Continues to Defend Antitrust Class Action Suits
-----------------------------------------------------------
Pool Corporation continues to defend itself against class action
lawsuits alleging antitrust law violations, according to the
Company's March 1, 2013, Form 10-K filing with the U.S. Securities
and Exchange Commission for the year ended
December 31, 2012.
A number of purported anti-trust class action lawsuits have been
filed against the Company in various United States District
Courts. The cases were transferred and consolidated before the
Judicial Panel for Multidistrict Litigation, MDL Docket No. 2328,
and are presently pending in the Eastern District of Louisiana.
On June 14, 2012, indirect purchaser plaintiffs, purporting to
represent indirect purchasers of swimming pool products in
Arizona, California, Florida and Missouri, filed a first amended
class action complaint. On September 5, 2012, they filed a second
amended complaint. On June 29, 2012, direct purchaser plaintiffs,
who are current or former customers, filed a consolidated amended
class action complaint, which added three defendants, Hayward
Industries Inc., Pentair Water Pool and Spa, Inc. and Zodiac Pool
Systems, Inc. The amended complaints seek unspecified
compensatory and enhanced damages, interest, costs and fees and
other equitable relief. The Company believes the amended
complaints are without merit and the Company intends to vigorously
defend itself.
Pool Corporation -- http://www.poolcorp.com/-- is a wholesale
distributor of swimming pool supplies, equipment and related
leisure products and is one of the top three distributors of
irrigation and landscape products in the United States of America.
The Company, headquartered in Covington, Louisiana, was
incorporated in Delaware in 1993 and has grown from a regional
distributor to a multi-national, multi-network distribution
company.
ROYAL BANK: Investors File Class Action Over 2008 Rights Offering
-----------------------------------------------------------------
Kit Chellel and Jeremy Hodges, writing for Bloomberg News, report
that Royal Bank of Scotland Group Plc and former Chief Executive
Officer Fred Goodwin were sued by about 12,000 shareholders who
said the lender misled them in 2008 when it issued new shares
months before a government bailout.
The investors may seek as much as GBP4 billion ($6 billion) in the
class-action suit filed in London, the RBOS Shareholder Action
Group said in a statement. It's the second complaint in less than
a week over the rights issue after pension funds and investment
firms sued on March 28.
RBS is 81 percent owned by British taxpayers after getting the
world's biggest bank bailout -- GBP45.5 billion -- in 2008 and
2009 at the height of the global financial crisis. The lender had
raised GBP12 billion from investors in the share sale before
collapsing under the weight of bad loans.
"This is one of the largest shareholder actions we have seen
brought against the U.K. banks," said Simon Hart, a London-based
trial lawyer specializing in financial disputes who isn't involved
in the suit. The RBS lawsuits are "borne directly out of the
unprecedented upheavals in the banking industry in 2008."
Former RBS Chairman Tom McKillop, ex-head of corporate markets
Johnny Cameron and former finance director Guy Whittaker were also
named in the suit filed today in London.
David Gaffney, a spokesman for Edinburgh-based RBS, declined to
comment and Cameron declined to comment.
New Century Media, a public relations firm that used to represent
Goodwin, said it no longer worked for him and wasn't able to
provide details for his current spokesman. Evolva SA, a Swiss
company where Mr. McKillop is chairman, declined to provide
contact details. An RBS spokesman said the bank didn't have
contact details for Whittaker. Numbers for the men couldn't be
located on directory assistance.
RBS in February posted a GBP5.97 billion loss after what Chief
Executive Officer Stephen Hester said was a "chastening year" in
2012. The lender was fined $612 million in February for rigging
benchmark interest rates such as Libor and has set aside more than
GBP2 billion to compensate customers wrongly sold so-called PPI
loan insurance.
FSA Report
The U.K. Financial Services Authority in 2011 cleared Mr. Goodwin
and other directors of wrongdoing over the near-collapse of RBS.
It acknowledged that regulators had been too lenient in not
challenging Mr. Goodwin's "dominant" management style.
The lead plaintiff in the case, John Greenwood, spent about 65,000
pounds investing in the 2008 share offering at 200 pence a share,
the shareholder group said in a court filing. He sold the stock
later at 68 pence and 37 pence, losing about 70 percent of his
investment. Among the other 12,000 claimants are retirees and 100
institutional investors.
RBS didn't give an accurate account of its capital strength,
holdings of packaged debt securities, and the damage caused by its
2007 takeover of ABN Amro Holding NV, according to the lawsuit.
"Directors sought to mislead shareholders by misrepresenting the
underlying strength of the bank and omitting critical information
from the 2008 rights issue prospectus," said Locksley Ryan, the
shareholder group's spokesman.
A similar class action brought by pension funds against RBS in New
York was dismissed in 2011 when U.S. Judge Deborah Batts ruled
the court wasn't the correct forum for the dispute. The investors
said they were misled about the risk from subprime debt and the
ABN Amro Bank NV acquisition.
RUE21 INC: $2.75MM Class Suit Settlement Wins Final Approval
------------------------------------------------------------
rue21 Inc., disclosed that a settlement of an employee class
action lawsuit won final Court approval in March, according to the
Company's Form 10-K Annual Report for the fiscal year ended
February 2, 2013, filed with the Securities and Exchange
Commission on April 3.
On June 11, 2010, Elva Perez, a former employee, on behalf of
herself and a purported class of all of rue21, inc.'s other
similarly situated California employees, filed a complaint in the
Superior Court of California, County of Santa Cruz. The complaint
alleges, among other things, that rue21 forced its in-store
employees to work off-the-clock without compensation; failed to
pay overtime wages; failed to provide in-store employees bona fide
meal and rest periods; failed to reimburse in-store employees for
business expenses they incur; and failed to provide accurate,
timely itemized wage statements, in violation of the California
Labor Code, the California Industrial Welfare Commission Wage
Orders and the California Business and Professions Code. The
complaint seeks, among other things, an order awarding
compensatory and liquidated damages, including unpaid wages; an
award of restitution; an order imposing civil penalties; an order
enjoining us from committing future violations of the laws
allegedly violated; and interest, attorney's fees and costs. The
Company denied the allegations made by the Plaintiff and asserted
various defenses. On June 6, 2012, the Court certified a class of
all individuals employed in the Company's California locations as
hourly store managers, assistant store managers and sales clerks
from June 11, 2006 to pursue claims related to meal breaks, meal
premium pay, work-related travel claims, travel expense claims,
bag check claims, and pay record claims.
On October 4, 2012, the parties to the litigation agreed to a
settlement under which the Company agreed to pay $2,750,000 as a
gross settlement amount, which will, among other things, be used
to provide payments to employees participating in the certified
class and to pay for fees and expenses of class counsel. The
plaintiff, on behalf of herself and the employees participating in
the certified class, will provide a general release, releasing us
from all claims, from June 11, 2006 until the date the Court
preliminarily approves the settlement agreement, that were pled or
could have been pled based on the factual allegations set forth in
the complaint. The Court granted final approval of the settlement
on March 22, 2013, and the Company has paid the full settlement
amount.
rue21, inc., based in Warrendale, Pennsylvania, is a specialty
apparel retailer offering the newest fashion trends at every day
great value. It offers a broad selection of merchandise for
"anyone who wants to look and feel 21." At the end of fiscal year
2012, rue21 operated 877 stores in 47 states. Many of the stores
are located in small and middle market communities.
SOUTH ISLAND AGGREGATES: Shawnigan Lake Group Mulls Class Action
----------------------------------------------------------------
Lexi Bainas, writing for Canada.com, reports that a Shawnigan Lake
group is moving closer towards a class action lawsuit in an effort
to stop South Island Aggregates.
Resident Ron Witherspoon, who is spearheading the project, said on
April 2 that he wants the action to include as many people as
possible because it has an excellent chance of success, according
to evidence he's uncovered.
"What I've found is both in the U.S. and in Britain they're saying
the probability of a landfill design like this leaking is
virtually 100 per cent," he said.
Winning a suit is highly likely, he said because "unfortunately
the literature I'm reading is showing a great deal of incompetence
in both the U.S. and British government and we shouldn't expect
that our government's going to be any different. I've got
examples of lawsuits won elsewhere."
Given the case histories and consequences of possible
contamination, "it shouldn't be difficult to convince a sensible
judge that they need to rule in our favor," Mr. Witherspoon said.
He also said that he wants to "make sure that the people who
aren't in a strong financial position have the ability to
participate in the class action lawsuit, if it comes to that.
I want to put all the parties that are going to be sued on notice
that if they continue towards putting these contaminants in our
watershed it will result in legal action."
Some residents have estimated the financial losses from property
devaluation and other problems could reach $2 billion, according
to Witherspoon. But, they don't want to focus their efforts too
narrowly. The group's plan is to not only stop SIA, but deal with
other polluters who are affecting Vancouver Island watersheds.
Mr. Witherspoon's group said that South Island Aggregates -- both
the corporation, and the directors of the corporation -- could be
named in the suit as well as the engineering firm that provided
the study to SIA and the financial institution providing the
financing for SIA to carry out their activities, and even the
source of the contaminants.
The provincial government could also be a target, once they have
provided the permit. However, all involved will be given the
chance to reconsider and back away from the soil dumping plan, Mr.
Witherspoon said, which means there are still a lot of possible
conclusions to any legal action.
STEVEN MADDEN: Awaits Final Approval of "Ellison" Suit Settlement
-----------------------------------------------------------------
Steven Madden, Ltd. is awaiting final approval of its settlement
of the class action lawsuit commenced by Samantha Ellison,
according to the Company's March 1, 2013, Form 10-K filing with
the U.S. Securities and Exchange Commission for the year ended
December 31, 2012.
On July 19, 2011, an individual purporting to act on behalf of a
class of similarly situated individuals commenced a civil action
in the United States District Court for the Central District of
California, Samantha Ellison, individually and on behalf of a
class of similarly situated individuals v. Steven Madden, Ltd.,
No. CV11-05935 (the "Ellison Action") asserting that the Company
made unsolicited commercial text calls to wireless telephone
numbers of the class in violation of the Telephone Consumers
Protection Act (the "TCPA"), and seeking, on behalf of the class,
an injunction requiring the Company to cease all wireless text
messages without prior written consent as required by the TCPA, as
well as the recovery of statutory damages to the class members,
together with costs and reasonable attorneys' fees. The Company
responded by challenging the lawsuit on several grounds.
Settlement discussions resulted in a settlement being reached on
July 30, 2012, subject to final court approval, for an aggregate
gross settlement fund amount of $10 million, including all
settlement costs and administration fees, as well as fees
recoverable by class counsel. As the settlement calls for the
reversion of all monies not paid to class claimants, it is
possible that the actual settlement amount paid will be
substantially less than $10 million. In addition, the Company's
insurance coverage will cover a portion of the settlement at the
rate of 45% of the initial settlement payment of $5 million and
30% of amounts over and above the initial settlement payment.
On September 25, 2012, the court certified the class for
settlement purposes only and approved the settlement on a
preliminary basis. The court further ordered all litigants to
make further submissions to the court concerning, among other
thing, the merits and value of the case and to deliver notice of
the proposed settlement to all class members prior to a fairness
hearing and final approval of the settlement. Based on the
settlement as contemplated and applying the insurance coverage as
applicable, the maximum exposure to the Company is approximately
$6.25 million; however, in light of historical "take rates" in
cases of this type, counsel estimates that the actual liability to
the Company will likely be $2.5 million or less. Accordingly, the
Company has recorded a liability in the amount of $2.5 million in
the fiscal year ended December 31, 2012, and paid this amount in
2012 pursuant to the preliminary settlement agreement.
New York-based Steven Madden, Ltd. -- http://www.stevemadden.com/
-- designs, sources, markets and sells footwear for women, men and
children. The Company also designs, sources, markets and retails
name brand and private label fashion handbags and accessories.
The Company distributes products through its retail stores, its e-
commerce Web site, department and specialty stores and through
distribution arrangements.
TILLY'S INC: "Christiansen" Class Suit in Sacramento Pending
------------------------------------------------------------
Tilly's, Inc., disclosed in a Form 10-K Annual Report for the
fiscal year ended February 2, 2013, filed with the Securities and
Exchange Commission on April 3, that the lawsuit, Kristin
Christiansen and Shellie Smith, on behalf of themselves and all
others similarly situated vs. World of Jeans & Tops, Superior
Court of California, County of Sacramento, Case No. 34-2013-
00139010, remains pending.
On January 29, 2013, the plaintiffs filed the lawsuit against the
Company alleging violations of California Civil Code Section
1747.08 which prohibits requesting or requiring personal
identification information from a customer paying for goods with a
credit card and recording the information. The complaint seeks
certification of a class, unspecified damages, injunctive relief
and attorneys' fees.
"We intend to defend this case vigorously," the Company said.
Irvine, California-based Tilly's is a specialty retailer of West
Coast-inspired apparel, footwear and accessories.
TILLY'S INC: "Rebolledo" Class Suit in Orange County Pending
------------------------------------------------------------
Tilly's, Inc., disclosed in a Form 10-K Annual Report for the
fiscal year ended February 2, 2013, filed with the Securities and
Exchange Commission on April 3, that the case, Maria Rebolledo,
individually and on behalf of all others similarly situated and on
behalf of the general public vs. Tilly's, Inc.; World of Jeans &
Tops, Superior Court of the State of California, County of Orange,
Case No. 30-2012-00616290-CU-OE-CXC, remains pending.
On December 5, 2012, the plaintiff filed the lawsuit against the
Company alleging violations of California's wage and hour, meal
break and rest break rules and regulations, and unfair competition
law, among other things. An amended complaint was filed on
February 28, 2013, to include enforcement of California's private
attorney general act. The complaint seeks an unspecified amount of
damages and penalties.
"We intend to defend this case vigorously," the Company said.
Irvine, California-based Tilly's is a specialty retailer of West
Coast-inspired apparel, footwear and accessories.
TILLY'S INC: "Lyddy" Class Suit in San Diego Still Ongoing
----------------------------------------------------------
Tilly's, Inc., disclosed in a Form 10-K Annual Report for the
fiscal year ended February 2, 2013, filed with the Securities and
Exchange Commission on April 3, that the case, Deborah Lyddy v.
World of Jeans & Tops and Tilly's, Inc., Superior Court of
California, County of San Diego (37-2011-00098812-CU-BT-CTL), is
ongoing.
In October 2011, the plaintiff filed a putative class action
against the Company alleging various causes of action based on our
California gift card redemption policies. The plaintiff seeks
unspecified damages, declaratory and injunctive relief and
attorneys' fees.
"The lawsuit is ongoing and we intend to defend this case
vigorously," the Company said.
Irvine, California-based Tilly's is a specialty retailer of West
Coast-inspired apparel, footwear and accessories.
US LAW SCHOOLS: Face Class Action Over Misleading Job Statistics
----------------------------------------------------------------
Maura Dolan, writing for Los Angeles Times, reports that dozens of
law graduates across the nation have joined class-action lawsuits
alleging that law schools lured them in with misleading reports of
their graduates' success.
Instead of working in the law, some of the graduates were toiling
at hourly jobs in department stores and restaurants and struggling
to pay back more than $100,000 in loans used to finance their
education. Others were in temporary or part-time legal positions.
Michael D. Lieberman decided to enroll at Southwestern Law School
after reading that 97% of its graduates were employed within nine
months. He graduated in 2009, passed the bar on his first try but
could not find a job as a lawyer. He worked for a while as a
software tester, then a technical writer, and now serves as a
field representative for an elected official.
Mr. Lieberman, who earned his undergraduate degree at UC San
Diego, believes his law degree may still be a "useful tool," but
he and other graduates said a suit they filed was intended to
combat "systemic, ongoing fraud prevalent in the legal education
industry" that could "leave a generation of law students in dire
financial straits," according to the complaint.
Nearly 20 lawsuits -- five of them against California schools --
are being litigated at a time of dim employment prospects for
lawyers. Much of the work once done by lawyers can now be done
more quickly by computers.
Online services have made law libraries largely unnecessary,
allowing corporations to do more work in-house. Software has sped
the hunt for information needed in discovery and other legal
tasks, and Web-based companies offer litigants legal documents and
help in filling them out. Even after the economy improves, some
experts believe the supply of lawyers will outstrip jobs for years
to come.
Although lawyer gluts come and go, "I don't think any of them
rival the situation we are seeing today," said Joseph Dunn, chief
executive of the State Bar of California, which regulates the
state's 230,000 attorneys. "The legal community in all 50 states
is being dramatically impacted."
New and inexperienced lawyers, unable to find jobs at law firms,
are opening private practices, potentially putting clients at
risk, according to a California bar report issued in February. To
confront "serious issues of public protection," a bar task force
has recommended requiring practical experience as a condition of a
license. The California Supreme Court would eventually have to
approve the new rules.
Besides Southwestern, alumni have sued San Francisco's Golden Gate
University, the University of San Francisco and San Diego's Thomas
Jefferson and California Western schools of law. Each school
charges about $40,000 a year in tuition.
But not everyone shares the dismal outlook. Erwin Chemerinsky,
dean of UC Irvine Law School, said his students are finding full-
time jobs as lawyers even during this slow economy.
"It is not the same across all law schools when you look at
employment prospects," he said.
Rudy Hasl, dean of the Thomas Jefferson School of Law, said the
retirement of baby boomers also would open up jobs.
Both deans said there was huge unmet demand for legal services for
the poor and middle class, and the next generation of
practitioners might be able to fill that demand. The state bar
agrees.
"Across the country, the need for legal services among those who
cannot pay or have limited ability to pay has never been higher,"
the bar report said.
ULTA SALON: Continues to Defend Employee Suit in California
-----------------------------------------------------------
Ulta Salon, Cosmetics & Fragrance, Inc., continues to defend an
employee class action lawsuit in California, according to the
Company's Form 10-K Annual Report for the fiscal year ended
February 2, 2013, filed with the Securities and Exchange
Commission on April 3.
On March 2, 2012, the putative employment class action lawsuit was
filed against the Company and certain unnamed defendants in state
court in Los Angeles County, California. On April 12, 2012, the
Company removed the case to the United States District Court for
the Central District of California. The plaintiff and members of
the proposed class are alleged to be (or to have been) non-exempt
hourly employees. The suit alleges that Ulta violated various
provisions of the California labor laws and failed to provide
plaintiff and members of the proposed class with full meal
periods, paid rest breaks, certain wages, overtime compensation
and premium pay. The suit seeks to recover damages and penalties
as a result of these alleged practices.
The Company denies plaintiff's allegations and is vigorously
defending the matter.
Bolingbrook, Illinois-based Ulta Salon, Cosmetics & Fragrance,
Inc., provides one-stop shopping for prestige, mass and salon
products and salon services in the United States.
VERIZON COMMUNICATIONS: Retirees' Suit Gets Class Action Status
---------------------------------------------------------------
Fierce Telecom reports that a United States District Court Judge
in Dallas has ordered class certification of claims by management
retirees of Verizon Communications Inc. in litigation regarding
the sell-off of 41,000 ERISA protected pensions to The Prudential
Insurance Company of America in exchange for providing Prudential
with billions in Verizon retirees' pension assets.
Attorneys Curtis L. Kennedy of Denver and Robert E. Goodman, Jr.,
of Dallas are representing the class of retirees in conjunction
with the support of the 128,000 member non-profit Association of
BellTel Retirees Inc. -- http://www.BellTelRetirees.org
The case is before Chief Judge Sidney A. Fitzwater (Case No: 3:12-
CV-04834-D).
Retirees counsel argue the transaction replaces retirees' pensions
with non-ERISA protected insurance annuities, thus stripping
participants of the protections of federal law and causing
irreparable harm. This case is being closely watched by the
employee benefits industry as a case of first impression, as no
other corporation has transferred already retired persons from an
ERISA protected and Pension Benefit Guaranty Corporation (PBGC)
guaranteed pension plan into a group insurance annuity while
keeping the pension plan on-going for others.
"This case is likely to be closely watched by employee benefits
leaders at thousands of companies across America, with the outcome
impacting the management of trillions of dollars in ERISA
protected pension assets, clarifying plan sponsor and plan
fiduciary obligations, and underscoring the rights of plan
participants." said Attorney Curtis Kennedy.
In October 2012, Verizon surprised 41,000 persons who retired
prior to January 1, 2010 when the corporation formally disclosed
it had agreed to the transaction which ends the retirees' uniform
PBGC protections and places retirement income at risk of
creditors' claims, bankruptcy claims and ends all of retirees'
federal rights they enjoyed since 1974. After the transfer, the
on-going Verizon Management Pension Plan currently has
approximately 50,000 participants, including about 6,000 other
retirees not transferred to Prudential.
The Judge class certified a claim made on behalf of the pension
plan's remaining 50,000 plan participants whose pensions were not
transferred to Prudential, which claim contends Verizon improperly
used plan assets to pay excessive costs and expenses that Verizon
should have paid with operating revenues, not pension plan monies.
Retiree association President C. William Jones said, "This
discriminatory asset transfer diminishes 41,000 retirees' pensions
by extracting not only ERISA and PBGC protections, but has given
retirees no choice or voice in the oversight of the pensions they
labored a lifetime to fund. We are pleased the court has
acknowledged the critical importance of this case."
Retirees note that should Prudential or a successor experience a
default or asset shortfall, the previous PBGC protections are
replaced only by a patchwork network of insurance industry
controlled state guaranty associations, many of which are under-
funded. Insurance annuities are backed only by insufficient and
varying coverage -- generally determined by state of residence at
the time of impairment -- from $100,000 - $500,000 (lifetime per
person cap). Guaranty associations in eight states and one U.S.
territory limit total lifetime coverage for annuity holders to a
maximum of $100,000; 28 states go up to $250,000 lifetime
coverage; 10 states and District of Columbia use a $300,000
ceiling; and just four offer a ceiling of $500,000;
Mr. Jones said, "Retirees and their spouses, especially for states
with the lowest protection levels, will be financially impaired
and left with as little as two years pension replacement in case
of default. Verizon's pension spin-off offers Ma-Bell's orphans
zero protection."
The case is: William Lee, Joanne McPartlin and Edward Pundt, as
Plan Participants and Beneficiaries of the Verizon Management
Pension Plan vs. Verizon Communications Inc., et al., in the
United States District Court, Northern District of Texas, Dallas
Division (Case No: 3:12-CV-04834-D).
VERMILLION INC: Class Suit vs. Board Member Remains Pending
-----------------------------------------------------------
A class action lawsuit against a member of Vermillion, Inc.'s
board of directors remains pending, according to the Company's
March 1, 2013, Form 10-K filing with the U.S. Securities and
Exchange Commission for the year ended December 31, 2012.
Peter S. Roddy was appointed to the Company's Board of Directors
and Audit Committee on February 18, 2010. He has served as Vice
President and Chief Financial Officer of Pain Therapeutics, Inc.
since July 2004, and as its Chief Financial Officer since November
2002.
On December 2, 2011, a class action complaint claiming violations
of certain securities laws was filed against Pain Therapeutics,
Inc. and its executive officers, including Mr. Roddy, in the U.S.
District Court for the Western District of Texas by a holder of
its securities and its executive officers. This complaint
alleged, among other things, violations of Section 10(b), Rule
10b-5, and Section 20(a) of the Exchange Act arising out of
allegedly untrue or misleading statements of material facts made
by Pain Therapeutics regarding REMOXY during the purported class
period from February 3, 2011, to June 23, 2011.
Vermillion, Inc. -- http://www.vermillion.com/-- is a Delaware
corporation based in Austin, Texas. Vermillion is dedicated to
the discovery, development and commercialization of novel high-
value diagnostic tests that help physicians diagnose, treat and
improve outcomes for patients. The Company's lead product, OVA1,
an ovarian cancer blood test, was cleared by the United States
Food and Drug Administration in September 2009.
* Kate Gosselin's Online Attackers May Face Class Action
--------------------------------------------------------
Radar Online reports that the battle between Kate Gosselin's fans
and foes is headed to a whole new level -- and possibly soon, a
judge's chambers.
James McGibney, who runs the BullyVille Web site, announced he's
heading up a class action lawsuit against a group of people he
claims have made death threats, bullied, stalked and harassed Kate
and her supporters online.
"After seeing death threats, pedophilia claims, theft & documented
stalking against @Kateplusmy8 & fans, we've decided to file a
class action lawsuit against the main offenders," Mr. McGibney
tweeted from the Bullyville handle on April 2. "The evidence is
overwhelming and the victims deserve justice."
It is not yet clear if Kate will be a plaintiff in the announced
lawsuit, though an insider told Radar that Mr. McGibney does
indeed have legal standing to bring this type of action without
her, as some in the anti-Kate consortium have threatened his life,
with one even accusing him of hiring someone to kill her.
It is not yet clear if Kate will be a plaintiff in the announced
lawsuit or if Mr. McGibney would have legal standing to bring this
type of action without her.
The TV mom, who re-tweeted Radar's story on the matter on April 2,
took the high road in a tweet indirectly addressing the uproar,
writing, "Thx 2 those of you who believe in and tweet goodness
positivity, support & love 2 ALL! You make me smile & I'm happy 2
call u my friends! GN!"
While many of the accused have fought back claiming freedom of
speech, McGibney says some of the messages he's seen constitute
death threats and have clearly crossed the line.
He previously told Radar that law enforcement has been
unsuccessful in dealing with the growing problem of dangerous
online bullying.
Kate has encouraged people who defend her on social media to go
after her attackers.
Mr. McGibney, who told Radar that he once served in the Marine
Corps., says he's dedicated to cracking down on cyber-bullying.
"We go after notorious bullies," he told Radar exclusively, saying
the principle offenders he's gone after are "absolutely vicious to
Kate.
"One person sent over 72,000 tweets to Kate and they are all
absolutely vicious," he said. "Sometimes you have to be a bully
to get a bully.
"Kids are driven to suicide by bullies, and we go after those
bullies every day."
Still, others are fighting back, claiming Kate is a public figure
who has put herself and her children in the spotlight. Some
people whose real identities have been revealed have told Radar
their comments were not threatening and others have continued to
accuse Kate of bad parenting and worse.
But Mr. McGibney says it is time to settle it all with the worst
offenders and a courtroom is the place to do it.
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania,
USA, and Beard Group, Inc., Washington, D.C., USA. Noemi Irene
A. Adala, Joy A. Agravante, Valerie Udtuhan, Julie Anne L. Toledo,
Christopher Patalinghug, Frauline Abangan and Peter A. Chapman,
Editors.
Copyright 2013. All rights reserved. ISSN 1525-2272.
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Information contained herein is obtained from sources believed to
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