/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/130513.mbx C L A S S A C T I O N R E P O R T E R Monday, May 13, 2013, Vol. 15, No. 93 Headlines ACADIAN FINE: Recalls 17,037 Lbs. of Pork & Chicken Stew Products AMERICAN AIRLINES: New Class Action Over Rewards Program Rejected APPLE INC: Judge Grants Preliminary Approval of Settlement ASTA FUNDING: Faces Suit Over Fraudulent Affidavits BANK OF AMERICA: Appeals Still Pending in ARS-Related Suits BANK OF AMERICA: Final Approval Hearing of Settlement on Sept. 12 BANK OF AMERICA: Continues to Defend Interchange Suits in Canada BANK OF AMERICA: Awaits Final Okay of Securities Suit Settlement BANK OF AMERICA: Continues to Defend Policemen's Annuity Suit BUCKEYE TECHNOLOGIES: Being Sold to for too Little, Suit Claims BUDGET RENT: Judge Rejects Bid to Dismiss Suit Over Rewards CABLEVISION SYSTEMS: Discovery Still Proceeding in Class Suit CASH AMERICA: Continues to Defend Short-Term Loans Suit in Ga. CIGNA CORP: Continues to Defend Amara Pension Plan Suit CIGNA CORP: Appeal From Certification Denial Pending in Ingenix CITIBANK: Bid to Dismiss Homeowners' RICO Claims Denied CONCEPTUS INC: Being Sold to Bayer for Too Little, Suit Claims CONSOLIDATED EDISON: Faces Suit Over Incomplete Proxy Statement CONTINENTAL RESOURCES: Continues to Defend Royalties Class Suit COREL CORP: Faces Class Action Over Alleged Bogus Software CYPRESS SEMICONDUCTOR: Seeks Dismissal of Ramtron-Related Suits DAIRY FRESH: Recalls IGA Brand "Vanilla & Chocolate" Ice Cream DENNY'S CORP: Faces Class Action Over "Claw Machine" DIAMOND FOODS: Consolidated Securities Suit Granted Class Status EBIX INC: Being Sold For Too Little to Goldman, Suit Claims ENTRUST GROUP: Faces Suit Over Helping Bogus "Investing Guru" FAMILY DOLLAR: Recalls 19,640 Optimus Tower Quartz Heaters FOREST LABORATORIES: Faces Class Action Over Lexapro GOOGLE INC: Faces Class Action Over Using Information From Gmail HALLIBURTON CO: Must Face Class Action Over Defrauding Customers HAWAII: 32 Judges Foster "Flipping" of Properties, Suit Claims KAISER FOUNDATION: Faces Suit Over Paying Exempt-Status Salary JPMORGAN CHASE: Allowed Traders to Lose Billions, Suit Claims L'OREAL: Faces Class Action Over Falsely Advertising 24H Makeup MARISSA TEVES: Faces Class Action Over RICO Violations MCGRAW-HILL COS: 2nd Cir. Affirmed Dismissal of "Reese" Suit MCGRAW-HILL COS: Dismissal of "Gearren" & "Sullivan" Suits Final MICHIGAN: Grand Rapids Police Sued for Routinely Arresting People MICROSOFT CORP: Sued for Selling Subscribers' Personal Info NEW YORK: Police Sued Over "Manufactured Misdemeanors" NUCOR CORP: Continues to Defend Class Suits by Steel Purchasers NY METHODIST HOSPITAL: Faces Overtime Class Action PACKAGING CORP: Consolidated Price-Fixing Suit Still in Discovery PENGUIN GROUP: Faces Class Action for Cheating Writers PHILIP MORRIS: Judge Calls for Guidance on Medical Monitoring POWER-ONE: Being Sold to ABB for Too Little, Suit Claims PROLOR BIOTECH: Being Sold to Opko for Too Little, Suit Claims PROVIDE COMMERCE: Judge Approves Settlement on 2 Class Actions SAFETY-KLEEN: Contract Breach Suit Remanded to State Court SEACOR HOLDINGS: 5th Cir. Affirmed Judgment in "Robin" Suit SEACOR HOLDINGS: Continues to Defend "Wunstell" Suit in Louisiana SEACOR HOLDINGS: Still Awaits Ruling on Summary Judgment Motions SEACOR HOLDINGS: Expects Suit Settlements to Reduce Unit Exposure SEACOR HOLDINGS: Continues to Defend Deepwater Horizon FLSA Suits SOTHEBY'S INC: Appeal From "Graham" Suit Dismissal Still Pending SPECTRUM PHARMA: Allos Unit Settled Merger Class Suits in Feb. TELULAR CORP: Being Sold to Avista for Too Little, Suit Claims UNITED AIRLINES: Faces Class Action Over Charging "YQ" UNITED BANKSHARES: Accrued $3.3MM in Settlement of Class Suits VOLVO AG: Faces Action Over Misrepresenting Side-Impact System WHITEWAVE FOODS: Faces Class Action Over Misbranding Product YANKEE CANDLE: Faces Overtime Class Action ********* ACADIAN FINE: Recalls 17,037 Lbs. of Pork & Chicken Stew Products ----------------------------------------------------------------- Acadian Fine Foods, LLC, a Church Point, Louisiana establishment, is recalling approximately 17,037 pounds of pork stew and chicken stew products because of misbranding and undeclared allergens. The products contain whey and soy, known allergens which are not declared on the product label. The following products are subject to recall: * 12-oz. single-serve bowls of "Savoie's Cajun Singles Louisiana Pork Stew" bearing the establishment number "Est. 13587" inside the USDA mark of inspection. The products were produced on various dates from May 24, 2012, through March 21, 2013. The product packages bear "Use By" dates from May 24, 2013, through March 21, 2014. * 12-oz. single-serve bowls of "Savoie's Cajun Singles Louisiana Chicken Stew" bearing the establishment number "P-13587" inside the USDA mark of inspection. The products were produced on various dates from June 6, 2012, through February 25, 2013. The product packages bear "Use By" dates from June 6, 2013, through February 25, 2014. Pictures of the recalled products' labels are available at: http://is.gd/F3aEja The products were distributed for retail sale in Louisiana, Mississippi and Texas. The problem was discovered by FSIS during a routine label review. Whey and soy are subingredients in the chicken base used to make the product. The Company changed chicken bases and the labels did not reflect the change in ingredients. FSIS and the Company have received no reports of adverse reactions associated with consumption of these products. Anyone concerned about an adverse reaction should see a health care professional. FSIS routinely conducts recall effectiveness checks to verify that recalling firms notify their customers of the recall and that steps are taken to make certain that the product is no longer available to consumers. When available, the retail distribution list(s) will be posted on the FSIS Web site at: http://is.gd/Mxp5ng Consumers and the media with questions about the recall should contact Jim Miller, Acadian Fine Foods' Plant Manager, at (337) 684-6933. Consumers with food safety questions can "Ask Karen," the FSIS virtual representative available 24 hours a day at http://www.AskKaren.gov/or via smartphone at m.askkaren.gov. "Ask Karen" live chat services are available Monday through Friday from 10:00 a.m. to 4:00 p.m. Eastern Time. The toll-free USDA Meat and Poultry Hotline 1-888-MPHotline (1-888-674-6854) is available in English and Spanish and can be reached from 10:00 a.m. to 4:00 p.m. Eastern Time Monday through Friday. Recorded food safety messages are available 24 hours a day. For information on how to report a problem with a meat, poultry or processed egg product to FSIS at any time, visit http://is.gd/vlfH9I FSIS Lists Stores That Received Recalled Products The U.S. Department of Agriculture's Food Safety and Inspection Service disclosed that Wal-mart stores in Louisiana, Mississippi and Texas received Stew Products that have been recalled by Acadian Fine Foods, LLC. The FSIS says the list of store locations may not include all retail locations that have received the recalled product or may include retail locations that did not actually receive the recalled product. Therefore, the FSIS says, it is important that consumers use the product-specific identification information available at http://is.gd/F3aEja,in addition to the list of retail stores, to check meat or poultry products in the consumers' possession to see if they have been recalled. AMERICAN AIRLINES: New Class Action Over Rewards Program Rejected ----------------------------------------------------------------- Adam Klasfeld at Courthouse News Services reports American Airlines cannot face a class action over its new miles rewards program because it previously settled claims over the policy change, a federal bankruptcy judge ruled. American Airlines introduced its AAdvantage program in 1981, promising air miles that had no expiration date. Seven years later, the airline changed the rewards system so that "New Miles" earned from July 1, 1989, on would have an expiration date. It also started enforcing "capacity controls" on old miles, limiting the number of seats on each flight that could be redeemed. Customers immediately opposed the policy change with a class action lawsuit filed in Illinois, which eventually reached the Supreme Court before it was settled. Under the terms of the settlement in that case, American Airlines, Inc. v. Wolens, the class gave the company wide latitude to "change the AAdvantage Program rules, regulations, travel awards, and special offers at any time with or without notice." American Airlines filed for Chapter 11 bankruptcy protection in November 2011, and told their customers that the company would convert all remaining old miles into new miles, subjecting them to an expiration date. Frequent fliers Karen Ross and Steve Edelman, who were both members of the Wolens case, filed a new class action protesting this change on Sept. 14, 2012. U.S. Bankruptcy Judge Sean Lane threw out the new suit under the doctrine of res judicata, Latin for "a matter [already] judged." "If plaintiffs did not consider the claims they now bring to be part of the Wolens settlement, then they should have balked at the injunction language contained in the settlement agreement and final order -- language to which they agreed -- that released all claims the parties had 'known or unknown' or 'in any way related to' the claims being released therein," the April 22 decision states. "This language is extremely broad and unforgiving for the plaintiffs' arguments. Short of drafting an infinite list of every specific claim they could possibly imagine, American could not have bargained for a more sweeping release." APPLE INC: Judge Grants Preliminary Approval of Settlement ---------------------------------------------------------- Chris Marshall at Courthouse News Service reports that Apple can settle claims that it failed to get parental consent before letting minors buy game currency for so-called free apps, a federal judge ruled. The settlement provides all class members with a minimum $5 iTunes store credit or cash payment for those who no longer have an iTunes account, according to court documents. Several consumers had brought federal class actions, which were consolidated in the Northern District of California, after they received iTunes bills for purchases their children had made while using applications on their Apple devices. Garn Meguerian filed the first of the complaints in April 2011, claiming that Apple made "millions of dollars of ill-gotten gains" by selling game currency to children via so-called "free" apps. Apple requires a password to download applications and buy game currency through its devices and retail outlets, but a user has 15 minutes to buy stuff once the password is entered before being prompted again, according to Meguerian's complaint . "This practice enabled minors to buy Game Currency, in one click sums of $99.99 or more, without entering a password, causing Apple to pocket millions of dollars from such Game Currency transactions with minors and without the authorization of their parents, whose credit cards or PayPal accounts are automatically charged for the purchases," according to the complaint. U.S. District Judge Edward Davila granted the proposed settlement preliminary approval, calling it fair, and saying the minimum $5 payout was "adequate, if not exceptional." Consumers who want a refund are required under the settlement to submit a claim form attesting that they paid for game currency without authorizing the charges, and that they have not already received a refund. Alternatively class members can elect to receive an iTunes store credit or a cash refund in an amount equal to the aggregate total of all qualified game currency charges within a single 45-day period for which they did not already receive a refund, according to court documents. The settlement also allows class members to request funds for qualified charges that occurred after the 45-day period in a claim for aggregate relief if they can explain how a minor made the purchases in question. Under the terms of the settlement, Apple agreed to post settlement documents in English and Spanish on a website maintained exclusively for the settlement. It will also send the documents by email or regular mail at no charge to class members who call a toll-free number set up for the settlement. Apple will additionally email settlement documents to every person who paid for one or more game currency purchase during the relevant period. The company will send the documents by regular mail to any such person whose email address is no longer valid, according to court documents. Davila ordered any class members seeking to be excluded from the settlement to send a request saying so by July 31. The judge set a hearing for final approval of the settlement for Oct. 18. ASTA FUNDING: Faces Suit Over Fraudulent Affidavits --------------------------------------------------- Courthouse News Service reports that Asta Funding et al. used fraudulent affidavits and "sewer service" to seek millions of dollars in judgments for charged-off consumer debts to (nonparty) AT&T Wireless, a class action claims in Federal Court. BANK OF AMERICA: Appeals Still Pending in ARS-Related Suits ----------------------------------------------------------- On September 4, 2008, two putative antitrust class actions were filed against Bank of America Corporation, Merrill Lynch and other financial institutions in the U.S. District Court for the Southern District of New York. Plaintiffs in both actions assert federal antitrust claims under Section 1 of the Sherman Act based on allegations that defendants conspired to restrain trade in ARS by placing support bids in ARS auctions, only to collectively withdraw those bids in February 2008, which allegedly caused ARS auctions to fail. In the first action, Mayor and City Council of Baltimore, Maryland v. Citigroup, Inc., et al., plaintiff seeks to represent a class of issuers of ARS that defendants underwrote between May 12, 2003 and February 13, 2008. This issuer action seeks to recover, among other relief, the alleged above-market interest payments that ARS issuers allegedly have had to make after defendants allegedly stopped placing "support bids" in ARS auctions. In the second action, Mayfield, et al. v. Citigroup, Inc., et al., plaintiff seeks to represent a class of investors that purchased ARS from defendants and held those securities when ARS auctions failed on February 13, 2008. Plaintiff seeks to recover, among other relief, unspecified damages for losses in the ARS' market value, and rescission of the investors' ARS purchases. Both actions also seek treble damages and attorneys' fees under the Sherman Act's private civil remedy. On January 25, 2010, the court dismissed both actions with prejudice and plaintiffs' respective appeals are currently pending in the U.S. Court of Appeals for the Second Circuit, according to Bank of America Corporation's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2012. BANK OF AMERICA: Final Approval Hearing of Settlement on Sept. 12 ----------------------------------------------------------------- The final approval hearing of a class settlement agreement in In Re Payment Card Interchange Fee and Merchant Discount Anti-Trust Litigation is scheduled for September 12, 2013, according to Bank of America Corporation's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2012. In 2005, a group of merchants filed a series of putative class actions and individual actions directed at interchange fees associated with Visa and MasterCard payment card transactions. These actions, which were consolidated in the U.S. District Court for the Eastern District of New York under the caption In Re Payment Card Interchange Fee and Merchant Discount Anti-Trust Litigation (Interchange), named Visa, MasterCard and several banks and BHCs, including the Corporation, as defendants. Plaintiffs allege that defendants conspired to fix the level of default interchange rates, which represent the fee an issuing bank charges an acquiring bank on every transaction. Plaintiffs also challenged as unreasonable restraints of trade under Section 1 of the Sherman Act certain rules of Visa and MasterCard related to merchant acceptance of payment cards at the point of sale. Plaintiffs sought unspecified damages and injunctive relief based on their assertion that interchange would be lower or eliminated absent the alleged conduct. In addition, plaintiffs filed supplemental complaints against certain defendants, including the Corporation, relating to initial public offerings (the IPOs) of MasterCard and Visa. Plaintiffs alleged that the IPOs violated Section 7 of the Clayton Act and Section 1 of the Sherman Act. Plaintiffs also asserted that the MasterCard IPO was a fraudulent conveyance. Plaintiffs sought unspecified damages and to undo the IPOs. On October 19, 2012, defendants entered an agreement to settle the class plaintiffs' claims. The defendants also separately agreed to resolve the claims brought by a group of individual retailers that opted out of the class to pursue independent litigation. The settlement agreements provide for, among other things, (i) payments by defendants to the class and individual plaintiffs totaling approximately $6.6 billion; (ii) distribution to class merchants of an amount equal to 10 bps of default interchange across all Visa and MasterCard credit card transactions for a period of eight consecutive months, to begin by July 29, 2013, which otherwise would have been paid to issuers and which effectively reduces credit interchange for that period of time; and (iii) modifications to Visa and MasterCard rules regarding merchant point of sale practices. Subject to the loss-sharing agreements the Corporation and certain affiliates previously entered with Visa, MasterCard and other financial institutions, the Corporation will contribute a total of $738 million to the settlement of the class and individual actions. Of that amount, $539 million will be paid from the proceeds that Visa previously placed into an escrow fund pursuant to Visa's Retrospective Responsibility Plan (the RRP) to cover the Corporation's share of Visa-related claims. The court granted preliminary approval of the class settlement agreement on November 9, 2012, over the objections of several class members. The objecting class members appealed to the U.S. Court of Appeals for the Second Circuit, which denied appellants' motion for expedited appeal and deferred briefing until after final approval of the settlement. The final approval hearing is scheduled for September 12, 2013. BANK OF AMERICA: Continues to Defend Interchange Suits in Canada ---------------------------------------------------------------- Bank of America Corporation continues to defend itself from interchange-related class action lawsuits filed in Canada, according to the Corporation's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2012. On March 28, 2011, an action entitled Watson v. Bank of America Corp. (Watson) was filed on in the Supreme Court of British Columbia, Canada, by a purported nationwide class of merchants that accept Visa and/or MasterCard credit cards in Canada. The action names as defendants Visa, MasterCard, and a number of other banks and BHCs, including the Corporation. The action alleges that defendants conspired to fix the merchant discount fees that merchants pay to acquiring banks on credit card transactions. It also alleges that defendants conspired to impose certain rules relating to merchant acceptance of credit cards at the point of sale. The action asserts claims under section 45 of the Competition Act and other common law claims, and seeks unspecified damages and injunctive relief based on the assertion that merchant discount fees would be lower absent the challenged conduct. The action is not covered by the RRP or loss-sharing agreements previously entered in connection with certain antitrust litigation, including Interchange. In addition to Watson, the Corporation has been named as a defendant in similar putative class action claims filed in other jurisdictions in Canada. BANK OF AMERICA: Awaits Final Okay of Securities Suit Settlement ---------------------------------------------------------------- Bank of America Corporation awaits final approval of settlement in Consolidated Securities Class Action, according to the Corporation's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2012. Plaintiffs (Securities Plaintiffs) in the securities class action in the Consolidated Action (Consolidated Securities Class Action) asserted claims under Sections 14(a), 10(b) and 20(a) of the Securities Exchange Act of 1934 (the Exchange Act), and Sections 11, 12(a)(2) and 15 of the Securities Act of 1933 (the Securities Act) and asserted damages based on the drop in the stock price upon subsequent disclosures. In February 2012, the court granted a motion for class certification. On November 30, 2012, the parties entered into a settlement agreement. The agreement, which is subject to court approval, provides for a payment by the Corporation of $2.4 billion, an amount that was fully accrued as of September 30, 2012, and the institution and/or continuation of certain corporate governance enhancements until the later of January 1, 2015 or 18 months following the court's final approval of the settlement. In exchange, Securities Plaintiffs released their claims against all defendants and certain other persons or entities affiliated with defendants. On December 4, 2012, the court issued an order granting preliminary approval of the settlement and scheduling a final settlement hearing for April 5, 2013. BANK OF AMERICA: Continues to Defend Policemen's Annuity Suit ------------------------------------------------------------- Bank of America Corporation continues to defend Policemen's Annuity Litigation, according to the Corporation's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2012. On April 11, 2012, the Policemen's Annuity & Benefit Fund of the City of Chicago, on its own behalf and on behalf of a proposed class of purchasers of 41 RMBS trusts collateralized by Washington Mutual-originated (WaMu) mortgages, filed a proposed class action complaint in the United States District Court for the Southern District of New York, entitled Policemen's Annuity and Benefit Fund of the City of Chicago v. Bank of America, NA and U.S. Bank National Association. BANA and U.S. Bank are named as defendants in their capacities as trustees, with BANA (formerly LaSalle Bank National Association) having served as the original trustee and U.S. Bank having replaced BANA as trustee. Plaintiff asserts claims under the federal Trust Indenture Act as well as state common law claims. Plaintiff alleges that, in light of the performance of the RMBS at issue, and in the wake of publicly- available information about the quality of loans originated by WaMu, the trustees were required to take certain steps to protect plaintiff's interest in the value of the securities, and that plaintiff was damaged by defendants' failures to notify it of deficiencies in the loans and of defaults under the relevant agreements, to ensure that the underlying mortgages could properly be foreclosed, and to enforce remedies available for loans that contained breaches of representations and warranties. Plaintiff seeks unspecified compensatory damages and/or equitable relief, and costs and expenses. On December 7, 2012, the court granted in part and denied in part defendants' motion to dismiss, and granted plaintiff leave to replead some of the dismissed claims. The court ruled, among other things, that plaintiff has standing to pursue claims on behalf of purchasers of certificates in certain tranches of five trusts. Plaintiffs filed a second amended complaint on January 13, 2013, which added plaintiffs and asserted claims concerning 19 trusts. BUCKEYE TECHNOLOGIES: Being Sold to for too Little, Suit Claims --------------------------------------------------------------- Courthouse News Service reports that directors of Buckeye Technologies are selling the company too cheaply to Georgia- Pacific, for $37.50 a share or $1.5 billion, shareholders claim in Chancery Court. BUDGET RENT: Judge Rejects Bid to Dismiss Suit Over Rewards ----------------------------------------------------------- Rose Bouboushian at Courthouse News Service reports that the car rental company Budget cannot dismiss claims that its rewards program came at a secret charge of 75 cents per rental day, a federal judge ruled. While making an online reservation with Budget Rent a Car for Stephanie Klein on July 14, 2012, Daniel Klein says he was prompted to enter her United Mileage Plus number for the "perk" of earning frequent flyer miles at no additional cost. Days later, however, Stephanie found in the car an itemized rental agreement, which -- unlike her confirmation screen and email confirmation -- included a 75-cent "FTP SUR" charge. The surcharge was also listed on receipts Stephanie received upon returning the car. The Kleins filed a federal class action in New Jersey against Budget and its corporate stock holder, Avis Budget Car Rental LLC, on Nov. 27, claiming their website is designed to "bury" the surcharge. They assert claims for violation of the New Jersey Consumer Fraud Act, breach of contract and bad faith. U.S. District Judge Jose Linares dismissed the claims against Avis, but said the Kleins can carry on suing Budget. "Plaintiffs' unsupported claim that '[Avis Budget Car Rental] ABCR controls the Budget website' is, at best, a legal conclusion draped in the guise of a factual allegation," Linares wrote. "Fed. R. Civ. P. 12(b)(6) does not require the court to credit such a conclusion. Consequently, the court grants defendants' motion to dismiss all claims against ABCR without prejudice." He preserved the claims against Budge by citing precedent from the 2012 decisions Mendez v. Avis Budget Group and Schwartz v. Avis Rent a Car System. These cases show that a complaint must "support[] the plausible inference that defendant intentionally concealed information about a 75-cent per rental day surcharge for frequent-flyer miles and reward points," Linares wrote. "In the instant matter this court also relies on Mendez and concludes that plaintiffs have made a sufficient factual showing to support the plausible inference that Budget intentionally failed to disclose the surcharge." Budget must also face a claim under the New Jersey Consumer Fraud Act. "The complaint alleges Budget 'advertised' frequent-flyer miles and reward points at no additional charge to plaintiffs, the 'bait,' and then subsequently charged them, the 'switch,'" Linares wrote. "In light of these allegations, the court holds that plaintiffs have adequately pleaded a 'bait-and-switch' scheme." Ambiguity will meanwhile keep the Kleins' contract and bad faith claims alive. "The complaint raises a plausible inference that whether the contract in fact included the surcharge terms disclosed in the 'pop-up' window is ambiguous," Linares wrote. "The existence of such alleged ambiguity raises an issue of fact and, consequently, the court declines to dismiss plaintiffs' breach of contract claim at this time." Headquartered in Parsippany-Troy Hills Township, N.J., Budget has more than 3,000 locations in more than 120 countries. CABLEVISION SYSTEMS: Discovery Still Proceeding in Class Suit ------------------------------------------------------------- Discovery is still proceeding in In re Cablevision Consumer Litigation, according to the Form 10-K filed by Cablevision Systems Corporation and CSC Holdings, LLC, with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2012. Following expiration of the affiliation agreements for carriage of certain Fox broadcast stations and cable networks on October 16, 2010, News Corporation terminated delivery of the programming feeds to the Company, and as a result, those stations and networks were unavailable on the Company's cable television systems. On October 30, 2010, the Company and Fox reached an agreement on new affiliation agreements for these stations and networks, and carriage was restored. Several purported class action lawsuits were subsequently filed on behalf of the Company's customers seeking recovery for the lack of Fox programming. Those lawsuits were consolidated in an action before the U. S. District Court for the Eastern District of New York, and a consolidated complaint was filed in that court on February 22, 2011. Plaintiffs asserted claims for breach of contract, unjust enrichment, and consumer fraud, seeking unspecified compensatory damages, punitive damages and attorneys' fees. On March 28, 2012, the Court ruled on the Company's motion to dismiss, denying the motion with regard to plaintiffs' breach of contract claim, but granting it with regard to the remaining claims which were dismissed. On April 16, 2012, plaintiffs filed a second consolidated amended complaint, which asserts a claim only for breach of contract. The Company's answer was filed on May 2, 2012. On October 10, 2012, plaintiffs filed a motion for class certification. The Company's brief in opposition to the motion was filed on January 17, 2013. On December 13, 2012, plaintiffs filed a motion for partial summary judgment. The Company's brief in opposition was filed on January 31, 2013. Discovery is also proceeding. The Company believes that this claim is without merit and intends to defend these lawsuits vigorously, but is unable to predict the outcome of these lawsuits or reasonably estimate a range of possible loss. CASH AMERICA: Continues to Defend Short-Term Loans Suit in Ga. -------------------------------------------------------------- Cash America International, Inc., continues to defend a class action lawsuit in Georgia over alleged illegal short-term loans, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2012. On August 6, 2004, James E. Strong filed a purported class action lawsuit in the State Court of Cobb County, Georgia against Georgia Cash America, Inc., Cash America International, Inc. (together with Georgia Cash America, Inc., "Cash America"), Daniel R. Feehan, and several unnamed officers, directors, owners and "stakeholders" of Cash America. The lawsuit alleges many different causes of action, among the most significant of which is that Cash America made illegal short-term loans in Georgia in violation of Georgia's usury law, the Georgia Industrial Loan Act and Georgia's Racketeer Influenced and Corrupt Organizations Act ("RICO"). First National Bank of Brookings, South Dakota ("FNB") and Community State Bank of Milbank, South Dakota ("CSB") for some time made loans to Georgia residents through Cash America's Georgia operating locations. The complaint in this lawsuit claims that Cash America was the true lender with respect to the loans made to Georgia borrowers and that FNB and CSB's involvement in the process is "a mere subterfuge." Based on this claim, the suit alleges that Cash America was the "de facto" lender and was illegally operating in Georgia. The complaint seeks unspecified compensatory damages, attorney's fees, punitive damages and the trebling of any compensatory damages. In November 2009 the case was certified as a class action lawsuit. In August 2011, Cash America filed a motion for summary judgment, and in October 2011, the plaintiffs filed a cross-motion for partial summary judgment. Hearings on the motions were held in October and November 2011, and the trial court entered an order granting summary judgment in favor of Cash America on one of the plaintiff's claims, denying the remainder of Cash America's motion and granting the plaintiff's cross-motion for partial summary judgment. Cash America filed a notice of appeal with the Georgia Court of Appeals in December 2011 on the grant of plaintiff's partial summary judgment, and on November 6, 2012, the Georgia Court of Appeals reversed the trial court's grant of partial summary judgment to plaintiffs and affirmed the trial court's denial of Cash America's motion for summary judgment. Cash America filed a Petition for Certiorari with the Supreme Court of Georgia to appeal the decision of the Georgia Court of Appeals regarding Cash America's motion for summary judgment on November 26, 2012, which was denied on February 18, 2013. The Company is currently unable to estimate a range of reasonably possible losses for this litigation. Cash America believes that the Plaintiffs' claims in this suit are without merit and is vigorously defending this lawsuit. CIGNA CORP: Continues to Defend Amara Pension Plan Suit ------------------------------------------------------- Cigna Corporation continues to defend Amara Cash Balance Pension Plan Litigation, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2012. On December 18, 2001, Janice Amara filed a class action lawsuit, captioned Janice C. Amara, Gisela R. Broderick, Annette S. Glanz, individually and on behalf of all others similarly situated v. Cigna Corporation and Cigna Pension Plan, in the United States District Court for the District of Connecticut against Cigna Corporation and the Cigna Pension Plan on behalf of herself and other similarly situated participants in the Cigna Pension Plan affected by the 1998 conversion to a cash balance formula. The plaintiffs allege various ERISA violations including, among other things, that the Plan's cash balance formula discriminates against older employees; the conversion resulted in a wear away period (when the pre-conversion accrued benefit exceeded the post- conversion benefit); and these conditions are not adequately disclosed in the Plan. In 2008, the court issued a decision finding in favor of Cigna Corporation and the Cigna Pension Plan on the age discrimination and wear away claims. However, the court found in favor of the plaintiffs on many aspects of the disclosure claims and ordered an enhanced level of benefits from the existing cash balance formula for the majority of the class, requiring class members to receive their frozen benefits under the pre-conversion Cigna Pension Plan and their post-1997 accrued benefits under the post-conversion Cigna Pension Plan. The court also ordered, among other things, pre-judgment and post-judgment interest. Both parties appealed the court's decisions to the United States Court of Appeals for the Second Circuit that issued a decision on October 6, 2009 affirming the District Court's judgment and order on all issues. On January 4, 2010, both parties filed separate petitions for a writ of certiorari to the United States Supreme Court. Cigna's petition was granted, and on May 16, 2011, the Supreme Court issued its Opinion in which it reversed the lower courts' decisions and remanded the case to the trial judge for reconsideration of the remedy. The Court unanimously agreed with the Company's position that the lower courts erred in granting a remedy for an inaccurate plan description under an ERISA provision that allows only recovery of plan benefits. However, the decision identified possible avenues of "appropriate equitable relief" that plaintiffs may pursue as an alternative remedy. The case was returned to the trial court and hearings took place on December 9, 2011 and March 29-30, 2012. Over the summer, the trial judge passed away after a long illness and the case was re-assigned. On December 20, 2012, the new trial judge issued a decision awarding equitable relief to the class. The court's order requires the Company to reform the pension plan to provide a substantially identical remedy to that ordered by the first trial judge in 2008. Both parties appealed the order and the judge stayed implementation of the order pending resolution of the appeals. In light of the re-affirmed remedy ordered by the District Court, the Company was required to re-evaluate its reserve for this case. Due to the current economic environment of low interest rates that have a significant impact on the valuation of potential future pension benefits, the Company was required to increase its reserve for this matter in the fourth quarter of 2012. The Company will continue to vigorously defend its position in this case. CIGNA CORP: Appeal From Certification Denial Pending in Ingenix --------------------------------------------------------------- Cigna Corporation is opposing an appeal from the denial of a motion to certify a nationwide class of subscriber plaintiffs related to Ingenix, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2012. On February 13, 2008, State of New York Attorney General Andrew M. Cuomo announced an industry-wide investigation into the use of data provided by Ingenix, Inc., a subsidiary of UnitedHealthcare, used to calculate payments for services provided by out-of-network providers. The Company received four subpoenas from the New York Attorney General's office in connection with this investigation and responded appropriately. On February 17, 2009, the Company entered into an Assurance of Discontinuance resolving the investigation. In connection with the industry-wide resolution, the Company contributed $10 million to the establishment of a new non-profit company that now compiles and provides the data formerly provided by Ingenix. The Company was named as a defendant in a number of putative nationwide class actions asserting that due to the use of data from Ingenix, Inc., the Company improperly underpaid claims, an industry-wide issue. All of the class actions were consolidated into Franco v. Connecticut General Life Insurance Company et al., that is pending in the United States District Court for the District of New Jersey. The consolidated amended complaint, filed on August 7, 2009, asserts claims under ERISA, the RICO statute, the Sherman Antitrust Act and New Jersey state law on behalf of subscribers, health care providers and various medical associations. On September 23, 2011, the court granted in part and denied in part the Company's motion to dismiss the consolidated amended complaint. The court dismissed all claims by the health care provider and medical association plaintiffs for lack of standing to sue, and as a result the case will proceed only on behalf of subscribers. In addition, the court dismissed all of the antitrust claims, the ERISA claims based on disclosure and the New Jersey state law claims. The court did not dismiss the ERISA claims for benefits and claims under the RICO statute. Plaintiffs filed a motion to certify a nationwide class of subscriber plaintiffs on December 19, 2011, which was denied on January 16, 2013. Plaintiffs petitioned for an immediate appeal of the order denying class certification, that the Company opposed. It is reasonably possible that others could initiate additional litigation or additional regulatory action against the Company with respect to use of data provided by Ingenix, Inc. The Company denies the allegations asserted in the investigations and litigation and will vigorously defend itself in these matters. CITIBANK: Bid to Dismiss Homeowners' RICO Claims Denied ------------------------------------------------------- Angela Watkins at Courthouse News Service reports that Citibank must face claims that it defrauded homeowners by padding the fees they charge on the delinquent accounts, a federal judge ruled. Gloria Stitt is the lead named plaintiff in a class action against Citibank and Citimortgage for violations of federal anti- racketeering law, conspiracy to violate RICO, unjust enrichment, and fraud. They say Citi colluded with subsidiaries, affiliates and vendors on a profit-making scheme to "unlawfully mark up default-related fees." The vendors allegedly padded fees "often by 100% or more," but never informed borrowers of the markups or profits. The borrowers also claim Citi routinely assessed fees that were unnecessary, such as ordering monthly property inspections although inspections were not needed. One class member's home was allegedly inspected more than 30 times in three years. Citi moved to dismiss the complaint, but U.S. District Judge Yvonne Gonzalez Rogers pruned only the RICO claims. She gave the prospective class 21 days to try again with an amended complaint. The bank argued that its actions followed the terms of the mortgage agreements and represented normal business practices. In preserving the borrowers' fraud claim, the court pointed to several authorities that imposed a duty to disclose material information, such as mark-ups, on lenders. Jurors could find that Citi's failure to itemize "delinquency expenses" and mark-ups on mortgage statements could be characterized as fraud, according to the ruling. The court declined to determine if the mortgage agreements protected Citibank from the unjust enrichment claim, stating a decision on the issue was "premature for the court." There were no "specific factual allegations," however, to demonstrate that Citibank's actions were the conduct of an enterprise and racketeering activity, as defined by RICO, Rogers said. The borrowers offered vague allegations regarding the possible structure of an enterprise but no explanation of how the various groups worked together to defraud borrowers in default, according to the ruling. CONCEPTUS INC: Being Sold to Bayer for Too Little, Suit Claims -------------------------------------------------------------- Courthouse News Service reports that Conceptus is selling itself too cheaply through an unfair process to Bayer, for $1.1 billion or $31 a share, shareholders claim in Santa Clara County Court. CONSOLIDATED EDISON: Faces Suit Over Incomplete Proxy Statement --------------------------------------------------------------- Courthouse News Service reports that Consolidated Edison's proxy statement for the May 20 shareholders meeting fails to disclose the effect upon stockholders of its plan to grant 5 million shares to its directors, shareholders say in a class action in New York County Supreme Court. CONTINENTAL RESOURCES: Continues to Defend Royalties Class Suit --------------------------------------------------------------- Continental Resources, Inc., continues to defend an alleged class action filed by royalty interest owners in Oklahoma, according to its Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2012. In November 2010, an alleged class action was filed against the Company alleging the Company improperly deducted post-production costs from royalties paid to plaintiffs and other royalty interest owners as categorized in the petition from crude oil and natural gas wells located in Oklahoma. The plaintiffs have alleged a number of claims, including breach of contract, fraud, breach of fiduciary duty, unjust enrichment, and other claims and seek recovery of compensatory damages, interest, punitive damages and attorney fees on behalf of the alleged class. The Company has responded to the petition, denied the allegations and raised a number of affirmative defenses. Discovery is ongoing and information and documents continue to be exchanged. The Company is not currently able to estimate a reasonably possible loss or range of loss or what impact, if any, the action will have on its financial condition, results of operations or cash flows due to the preliminary status of the matter, the complexity and number of legal and factual issues presented by the matter and uncertainties with respect to, among other things, the nature of the claims and defenses, the potential size of the class, the scope and types of the properties and agreements involved, the production years involved, and the ultimate potential outcome of the matter. The class has not been certified. Plaintiffs have indicated that if the class is certified they may seek damages in excess of $145 million, a majority of which would be comprised of interest. The Company disputes plaintiffs' claims, disputes that the case meets the requirements for a class action and is vigorously defending the case. COREL CORP: Faces Class Action Over Alleged Bogus Software ---------------------------------------------------------- Courthouse News Service reports that a federal class action claims that Corel and WinZip sell bogus software that claims to detect "damage" on personal computers that needs to be fixed. CYPRESS SEMICONDUCTOR: Seeks Dismissal of Ramtron-Related Suits --------------------------------------------------------------- Cypress Semiconductor Corporation seeks dismissal of class action lawsuits related to its acquisition of Ramtron International Corporation, according to its Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 30, 2012. The Company states: "As a result of our acquisition of Ramtron, we have assumed control of certain ongoing litigation involving Ramtron, including certain shareholder litigation related to the Ramtron acquisition. On October 15, 2012, Paul Dent ("Plaintiff Dent"), a stockholder of Ramtron, filed a complaint in the Court of Chancery in the State of Delaware, as a class action on behalf of himself and other similarly situated Ramtron stockholders. Plaintiff Dent alleges that Ramtron and certain of its directors and officers breached their fiduciary duties in connection with the merger agreement pursuant to which we agreed to acquire all of the outstanding shares of Ramtron for $3.10 a share in cash. Specifically, the complaint alleges that Ramtron and certain of its directors and officers failed to engage in a competitive process and disclose fully all material information relating to the Board's recommendation to Ramtron's stockholders to tender shares to Cypress. On October 22, 2012, Plaintiff Dent added us and Cypress's wholly-owned subsidiary Rain Acquisition Corporation as defendants to the case and petitioned the court for expedited proceedings and a preliminary injunction. On November 19, 2012, the Delaware Chancery Court ruled in our favor, denying plaintiff's request for injunctive relief and finding there was no material information withheld from the shareholders of Ramtron. The case was effectively dismissed following the ruling. However, on January 11, 2013, Plaintiff Dent filed an amended complaint on similar grounds, with allegations also directed towards Cypress for aiding and abetting Ramtron's directors and officers. The relief sought by the amended complaint includes an order declaring the action to be properly maintainable as a class action, an award of the fair value of the Ramtron shares plus interest, damages including rescissory damages plus interest, and an award of attorneys' fees and costs. We believe strongly that this case is without merit and we intend to defend it vigorously and plan to promptly file a motion to dismiss. Because the case is at a very early stage and no specific monetary demand has been made, it is not possible for us to estimate the potential loss or range of potential losses. "On October 3, 2012, Allan P. Weber ("Plaintiff Weber"), a purported Ramtron stockholder, also filed a putative class action complaint against Ramtron, certain of its officers and directors, and Cypress and its wholly-owned subsidiary Rain Acquisition Corporation in Colorado state district court in El Paso County, Colorado. Plaintiff Webber alleges that the directors and officers of Ramtron breached their fiduciary duties in connection with the merger agreement, pursuant to which Cypress agreed to acquire all of the outstanding shares of Ramtron for $3.10 per share in cash. Specifically, the complaint alleges that the officer and directors of Ramtron violated their fiduciary duties by failing to take steps to maximize the value of Ramtron to its public stockholders and took steps to avoid competitive bidding, failed to properly value Ramtron, and ignored or did not protect against conflicts of interest. The complaint accuses Cypress of aiding and abetting the Ramtron directors and officers. The relief sought by Plaintiff Webber includes an order declaring the lawsuit as a class action and certifying Plaintiff Weber as class representative and his counsel as class counsel, an injunction to prevent the merger, an order rescinding the merger or awarding Plaintiff rescissory damages in the event the merger is consummated prior to entry of the court's final judgment, damages, profits and any special benefits obtained by defendants as a result of the alleged wrongdoing, and an award of attorneys' fees and costs. Plaintiff Webber has taken no action since the complaint was filed and we have petitioned the court to have the case dismissed. We believe this the lawsuit is without merit and intend to defend it vigorously. Because the case is at a very early stage and no specific monetary demand has been made, it is not possible for us to estimate the potential loss or range of potential losses." DAIRY FRESH: Recalls IGA Brand "Vanilla & Chocolate" Ice Cream -------------------------------------------------------------- Dairy Fresh is voluntarily recalling a specific batch of IGA Brand "Vanilla & Chocolate" Ice Cream (1.75 quart, 1.66 L) with the plant code "3783" and a SELL BY date of 08-13-13 because it incorrectly contains Heavenly Hash ice cream, which contains almonds, coconut, and soy, which are allergens not declared on the carton. People who have an allergy or severe sensitivity to almonds, coconut, or soy run the risk of serious or life- threatening allergic reaction if they consume this product. The Company is aware of one consumer who experienced an allergic reaction after consuming the product manufactured with the "SELL BY" date of 08-13-13. The Company is not aware of any other complaint or illness to date related to this issue. In an abundance of caution, the Company is also recalling Vanilla & Chocolate ice cream dated between 06-08-13 and 08-27-13. The specific dates are listed below. A small number of Vanilla & Chocolate packages were inadvertently used when the company was producing Heavenly Hash ice cream. As a result, a consumer may purchase a Vanilla & Chocolate package that contains Heavenly Hash ice cream. This product is produced by the Dairy Fresh processing facility in Winston Salem, North Carolina, and is sold at IGA stores. Sell by Plant Size Name Flavor UPC # Dates code ---- ---- ------ ----- ------- ---- 1.75 qt IGA Vanilla & 4127046131 06-08-13 3783 (1.66 L) Brand Chocolate 07-19-13 08-02-13 08-13-13 08-27-13 This product is produced by the Dairy Fresh processing facility in Winston Salem, North Carolina, and is sold at IGA stores. All Vanilla & Chocolate cartons carry the above referenced Universal Product Code (UPC) and plant code "3783." Pictures of the recalled products' labels are available at: http://www.fda.gov/Safety/Recalls/ucm351600.htm Consumers who purchased the product may discard it and return the product package to the place of purchase for a full refund or exchange. Consumers with questions can contact Dairy Fresh 1-800- 587-2259 between 8:00 a.m. to 5:00 p.m., Central Time, Monday through Friday, excluding holidays. The U.S. Food and Drug Administration has been notified of this voluntary recall. DENNY'S CORP: Faces Class Action Over "Claw Machine" ---------------------------------------------------- Rebekah Kearn at Courthouse News Service reports that the "claw machine," in which kids try to drop a claw onto a stuffed animal, is an illegal gambling operation and should be shut down, a woman claims in a class action against Denny's. Ashley Cheesbrough sued Denny's in Superior Court. Cheesbrough claims that Denny's "engaged in unlawful business acts to earn higher profits by exposing its patrons to illegal gambling devices and providing them with opportunities to gamble. Denny's conduct violates public policies tethered to laws that are designed to protect the public against the deleterious effects of gambling." She claims that Denny's encourages illegal gambling by offering "games of chance" in the arcade sections of its restaurants. "Within these arcade sections are games that require the player to insert money (usually quarters) into the machine and offer the player a chance to win stuffed dolls, toys, or other prizes. Such machines include, but are not limited to, claw machines. However, these machines are illegal gambling devices that require little or no skill and are predominantly games of chance. The Bureau of Gambling Control has declared that machines including but not limited to claw machines are 'common types of illegal devices' under California Penal Code sections 330a, 330b, and 330.1," the complaint states. A claw machine player uses a joystick to drop a claw one time onto a stuffed animal or another prize. Courthouse News conducted in-house interviews to determine whether anyone ever wins an animal at the claw game. One highly placed source claimed he never saw anyone win. Another source, however, said the trick was to watch others lose first, and see which animals are loosely packed. When the losers leave, the trick is to go after the loosely packed animal. Cheesbrough states: "If the claw fails to retrieve a prize, the player loses. If the claw grips a prize, it lifts the prize up and ascends to the top of the machine and rattles, often knocking the prize out of the claw and the player loses. On occasion, the prize does not get rattled out of the claw, and the claw moves to the corner of the machine and releases its content. The prize is dropped into the opening and dispensed into a hatch for collection." Cheesbrough claims the claw machines are illegal gambling devices because they are games of chance, not games of skill. "Unlike many other arcade games (e.g. Pac-Man, Skeeball, pinball, etc.) which require hand-eye coordination, concentration, and physical skill, the outcome of operation of claw machines is based entirely or predominantly on chance or hazard. In other words, the player has no ability to control the outcome. The Bureau of Gaming Control clarified that a lawful device is one that is predominantly a game of skill 'on which what can be won is limited to additional chances or free plays. If, however, the player has paid to play and can win something other than additional plays, such as food, toys or other prizes, the machines does [sic] not qualify for the amusement device exception and is an illegal gambling device." Cheesbrough claims that even if claw machines were games of skill, the fact that users play to win physical prizes makes them illegal. By having claw machines in its restaurants, Cheesbrough says, Denny's is contributing to the problem of gambling addiction in kids and adults. "Gambling addiction is a serious and devastating problem for many adults and a growing problem among children. The Royal College of Psychiatrists concluded that 'all gaming machines, regardless of the size of the stake or the amount of prize money, are unsuitable for children and young people.' The Royal College of Psychiatrists strongly recommends that they should cease to be made legally available to them," the complaint states. Cheesbrough says she personally lost money trying to win prizes out of claw machines at Denny's, and never would have played them had she "known that the machine was an illegal gambling device." The complaint does not say how much money she lost playing the game. But she claims that she and other class members will continue to lose money and Denny's will "retain proceeds of its ill-gotten gains" unless the court orders Denny's to remove the claw machines and other games of chance from its restaurants. She seeks a preliminary and permanent injunction, disgorgement and restitution for unfair competition and business law violations. She is represented by Gene J. Stonebarger of Folsom and counsel James R. Patterson of San Diego. DIAMOND FOODS: Consolidated Securities Suit Granted Class Status ---------------------------------------------------------------- District Judge William Alsup issued an order granting a motion to certify a class in IN RE: DIAMOND FOODS, INC., SECURITIES LITIGATION, No. C 11-05386 WHA, (N.D. Cal.). A number of putative class actions were filed on behalf of investors who purchased securities of Diamond Foods, Inc. The actions were consolidated and the Mississippi Public Employees' Retirement System was appointed as lead plaintiff. The Defendants include Diamond, Deloitte & Touche LLP (Diamond's outside auditor), and individual defendants Michael J. Mendes (former Chairman of the Board and President and Chief Executive Officer of Diamond) and Steven M. Neil (former Chief Financial Officer of Diamond). The consolidated complaint alleges that the Defendants deliberately understated commodity costs -- specifically, the costs of walnuts -- and improperly accounted for payments made to walnut growers to increase apparent profits and maintain high share prices. The Plaintiff alleges that the Defendants were motivated to inflate share prices during a period in which Diamond was seeking to use its stock to acquire Pringles, a snack chip brand owned by Proctor & Gamble Co. When the truth became known, Diamond's stock price declined dramatically, resulting in financial losses to those who purchased the stock at the inflated price. The consolidated complaint asserts claims under Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 against all defendants and asserts claims under Section 20(a) of the Exchange Act against the two individual defendants, CEO Mendes and CFO Neil. The complaint also alleges false and misleading statements relating to payments made to walnut growers. Upon motion by lead plaintiff MSPERS, attorneys from the law firms of Chitwood Harley Harnes LLP and Lieff Cabraser Heimann & Bernstein LLP were appointed as class counsel. The Defendants moved to dismiss the consolidated complaint, which was granted as to Deloitte and denied as to the remaining defendants. The Plaintiff has moved for class certification. Defendant Diamond filed an opposition to the motion, to which the remaining defendants filed motions for joinder. On May 6, 2013, Judge Alsup ruled that short sellers should be excluded from the class definition, and certified the class defined as: All persons and entities who purchased publicly traded securities of Diamond Foods, Inc. ("Diamond" or the "Company") during the period from October 5, 2010 through and including February 8, 2012, and who suffered damages as a result. Excluded from the Class are (1) Diamond, Michael J. Mendes ("Mendes"), Steven M. Neil ("Neil") (collectively, the "Defendants"); (2) any person who was an officer or director of the Company during the Class Period; (3) members of the immediate families of any Defendants; (4) any firm, trust, corporation, officer or other entity in which any defendant has a controlling interest; and (5) the legal representatives, heirs, successors or assigns and any such excluded party. The Class also excludes short sales of Diamond securities and subsequent purchases of Diamond securities to cover short sales. The Court directed the parties to jointly submit, within 21 calendar days of the date of entry of the order, an agreed-upon form of notice, a joint proposal for dissemination of the notice, and the timeline for opting out of the action. The Plaintiff must bear the costs of the notice, which will include mailing by first-class mail, Judge Aslup said. A copy of the District Court's May 6, 2013 Order is available at http://is.gd/RmCkXJfrom Leagle.com. EBIX INC: Being Sold For Too Little to Goldman, Suit Claims ----------------------------------------------------------- Courthouse News Service reports that Ebix is selling itself too cheaply through an unfair process to Goldman Sachs et al., for $20 a share or $820 million, shareholders claim in Chancery Court. ENTRUST GROUP: Faces Suit Over Helping Bogus "Investing Guru" ------------------------------------------------------------- Kevin Koeninger at Courthouse News Service reports that the Entrust Group helped a bogus "investing guru" roll people for $27 million in a self-directed IRA Ponzi scam, a woman who says she lost $199,000 claims in a federal class action. Judith Sams sued Entrust Arizona LLC nka Vantage Retirement Plans, the Entrust Group Inc., Entrust Administration Inc. and Hugh Bromma All the defendants except Entrust Arizona work out of the same address in Oakland, Calif., according to the complaint. Entrust Arizona nka Vantage Retirement Plans is based in Phoenix. "Defendant Bromma, a self-described SDIRA 'industry luminary,' is an individual and believed to be a resident of San Raphael, California. At all times material hereto, Bromma was the CEO and owner of both TEG and ENTRUST ADMIN," the complaint states. Sams claims she was roped into Entrust's scam by Mike Watson, who is not a party to the case. Watson, of Provo, Utah, "was a self-described 'real estate investing guru,' author, and real estate investment seminar promoter," Sams says in the complaint. "Watson charged attendees thousands of dollars to participate in his seminars, [and] solicited potential investors from 2004 until 2009 across the United States," the complaint states in a footnote. "He used his real estate investment seminars to entice investors into his real estate deals. Watson told seminar participants he would compensate them for bringing in new investors into his 'system.' He also told potential investors that those who invested over $100,000 would receive a trust deed on a piece of one of Watson's real estate ventures as security on the investment." In the next footnote, the complaint states: "Watson convinced investors, including plaintiff and the other class members, to invest in fraudulent investment schemes which he controlled, bilking over 120 investors in 21 states of more than $27.5 million through issuance of promissory notes. Although Watson claimed his investments were backed by substantial real estate holdings and cash flow from his company properties, in fact, Watson never generated sufficient income to cover his investors' interest payments or the redemption of investments. As with all Ponzi schemes, Watson relied on new investors' funds to repay his prior investors because his investments were never profitable." Watson was never licensed to sell securities, and "the purported investments that Watson sold to the plaintiff and other class members were either failing real estate or business ventures secured by worthless promissory notes or did not even actually exist," Sams says in the complaint. "To 'sell' the victims, Watson frequently touted and emphasized Entrust's size and experience as evidence of the credibility and stability of the investment. The affiliation between the defendants and Watson enticed inexperienced and unsophisticated investors (who might otherwise be more cautious) into an investment scam because the investors believed they were protected by large, purportedly well-funded and experienced companies with trustworthy names like 'Entrust.'" Sams claims the defendants sent account statements that "reported the same value year after year unless, of course, Watson provided a greater value to the custodian. The custodian would then record the amount provided by the fraud promoter as the actual updated value of the SDIRA. This practice only further deceived plaintiff and the class members into believing their investments were increasing in value and secure." After suckering the class members into investing, "Entrust created the illusion that the Watson investments were providing substantial returns and/or that the value of the SDIRAs was stable," the complaint states. "In fact, Watson had absconded with the investment monies within days or weeks after the SDIRA funds were wired to bank accounts Watson controlled and then diverted to other accounts, never to be seen again, at least not by the rightful owner." Sams says she invested $199,000 after attending one of Watson's real estate seminars and was promised that the money was secured by promissory notes. However, she says, "there is no real estate or property identified as being held by Sams' Entrust SDIRA, there are no stock certificates referenced, and the Entrust SDIRA statements do not identify any actual asset but simply list the name 'Mike Watson Capital.' "From 2008 until the present, Entrust was the SDIRA custodian of nothing and Sams had to pay for the privilege of Entrust's Service for administering her worthless Entrust SDIRA with no assets." The complaint adds: "While defendants may object to being grouped together, their own documents and practices demonstrate that they were inextricably intertwined with one another as part of a national SDIRA custodial network. Some examples of the intertwined nature of their acts and omissions include: "a. TEG and its franchisees and licensees referred to themselves collectively as 'ENTRUST' in their marketing and advertising documents, corporate email solicitations and newsletters to clients and prospective clients, their websites, their webinars and seminars, their SDIRA forms and documents, and their correspondence to SDIRA clients, including Plaintiff and the other Class Members; . . . "e. TEG and ENTRUST ADMIN maintained, housed, and controlled the information systems for all ENTRUST administrative and custodial functions; in order to access information about their own clients, licensees and franchisees had to access the TEG information system, input client account information there, and access forms and documents. These forms and documents were necessary for the licensees and franchisees to perform their functions as an ENTRUST SDIRA record keeper. ENTRUST'S internal policies required that each franchisee and licensee upload all SDIRA client information to the ENTRUST ADMIN/TEG information system; . . ." Sams seeks compensatory and punitive damages for conversion, fraudulent concealment and aiding and abetting. She is represented by Louis Leibowitz of Rockville, Md. FAMILY DOLLAR: Recalls 19,640 Optimus Tower Quartz Heaters ---------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Family Dollar Services Inc., of Matthews, North Carolina, announced a voluntary recall of about 19,640 Portable Heaters. Consumers should stop using this product unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The heaters can overheat posing a fire hazard. Family Dollar Stores has received 10 reports of overheating, including some reports of temperature knobs melting. The firm has not received reports of injury, fire or property damage. Optimus Tower Quartz Heaters are portable electric tower heaters that are about 10 inches wide, 25 inches tall and 9 inches deep. The heaters have a white metal casing with a white plastic top, a wire cage protecting the heating elements and vent slits at the bottom. The front section of the top has the brand name Optimus, a power light, a caution light and two dials. One dial turns the heater on or off and selects the power of either 750 watts or 1500 watts. The other control knob selects the heat range between high and low. The rear section of the top has fire, high temperature and shock warnings and diagrams of the heater being used in 750 watt mode and 1500 watt mode. Model number "H-5232" is on a silver sticker on the bottom of the heater below the words "Optimus" and "Quartz Heater." Pictures of the recalled products are available at: http://is.gd/xjuyz9 The recalled products were manufactured in China and sold at Family Dollar Stores from September 2012 through December 2012 for about $35. Consumers should immediately unplug and stop using the heaters and return the product to any Family Dollar Stores location for a full refund. Family Dollar Stores may be reached at (800) 547-0359 from 8:30 a.m. to 5:00 p.m. Monday through Friday, or online at http://www.familydollar.com/,then click on Product Recalls in the Help section at the bottom of the page. FOREST LABORATORIES: Faces Class Action Over Lexapro ---------------------------------------------------- Courthouse News Service reports that Forest Laboratories illegally pushes its antidepressant Lexapro for minors, for whom it is not effective, a class action claims in Federal Court. GOOGLE INC: Faces Class Action Over Using Information From Gmail ---------------------------------------------------------------- Courthouse News Service reports that Google intercepts, reads and swipes information from gmail "Google Apps for Education" and uses it for profit, a class action claims in Federal Court. HALLIBURTON CO: Must Face Class Action Over Defrauding Customers ---------------------------------------------------------------- David Lee at Courthouse News Service reports that Halliburton must face a class action from investors who say it defrauded them by lying about possible asbestos liability, the 5th Circuit ruled. The oil giant had hoped to avert class certification in the Northern District of Texas with evidence that would purportedly show its alleged fraud did not affect the market price of the stock -- that is, its alleged misrepresentation did not cause "price impact" or "price distortion." Heeding direction from the Supreme Court, however, a federal judge in Dallas said such evidence was immaterial to the issue of commonality and certified the class. A three-judge panel with the New Orleans-based appeals court affirmed. The investors had moved for certification in September 2007 for all persons who purchased common stock between June 3, 1999, and December 7, 2001. Led by the Erica P. John Fund Inc., the investors claimed that Halliburton had understated its projected liability for asbestos claims, overstated revenues by including billings that were unlikely to be collected, and exaggerated the cost savings and efficiencies from a merger in 1998 with Dresser Industries. After their first attempt at class certification failed, the U.S. Supreme Court concluded in 2011 that appeals court "erred by requiring EPJ Fund to show loss causation as a condition of obtaining class certification." It is a prerequisite of class certification for the plaintiffs to show that a company's untrue statements created a presumption of reliance. The fraud-on-the-market presumption involves misrepresentation publicity, misrepresentation materiality, market efficiency, and evidence that the plaintiff traded shares between the time the misrepresentations were made and when the truth was revealed. Unlike the other prerequisites, however, a failure to prove materiality will likewise kill the individual claims of all plaintiffs, the Supreme Court found. "A plaintiff can fail to establish publicity, market efficiency, or trade timing, and therefore lose the class-wide presumption of reliance, but still establish individual reliance and prove fraud," the Supreme Court stated. "Thus, only those issues which bear directly on the pivotal inquiry of common question predominance and the propriety of class resolution should be addressed at class certification." On remand, the 5th Circuit said Halliburton had failed to show that the investors could still pursue fraud claims without proving price impact. "Although the 10b-5 fraud action does not expressly require proof of price impact as an element of the claim, a plaintiff must nevertheless prevail on this fact in order to establish another element on which the plaintiff does bear the burden of proof: loss causation," Judge W. Eugene Davis wrote for the panel. "Price impact can be shown either by an increase in price following a fraudulent public statement or a decrease in price following a revelation of the fraud. To successfully prove a lack of price impact, Halliburton would thus be required to demonstrate both that the stock price did not increase when the misrepresentation was announced, and that the price did not decrease when the truth was revealed. If Halliburton were to successfully show that the price did not drop when the truth was revealed, then no plaintiff could establish loss causation." If Halliburton successfully rebutted the fraud-on-the-market presumption by proving no price impact, the individual plaintiff claims would fail as well because they could not establish an essential element of their fraud claim. Therefore, price impact evidence should not be addressed at class certification. HAWAII: 32 Judges Foster "Flipping" of Properties, Suit Claims -------------------------------------------------------------- Purna Nemani at Courthouse News Services reports that a Hawaii family and a developer filed a federal class action against every Circuit Court judge in Hawaii, accusing them of using "ancient judge-made procedures" to enforce foreclosure judgments. Jerry Agbannaoag, Ke Kailani Development et al. claim the judges' practice fostered the "flipping" of properties and unjustly enriched lenders. Michael J. Fuchs, the founder of Home Box Office, is also a plaintiff. They sued the honorable judges of the First, Second, Third and Fifth Circuits of Hawaii - all 32 judges. "Hawaii courts matter-of-factly merely assume routinely when determining and enforcing foreclosure deficiency judgments that the confirmed sale price minus the net proceeds of sale controls and mathematically determines by subtraction the monetary deficiency amount," the complaint states. "This procedure completely ignores reality," the plaintiffs say. They call it an "arbitrary and mechanical method" that fails to protect borrowers. The plaintiffs claim other states have passed laws against the practice. "Today, many state legislatures have passed anti- deficiency statutes, requiring that after a foreclosure auction, state courts must hold a separate, evidentiary hearing to determine the 'fair value' of the foreclosed property, which is not necessarily the 'auction price,'" they say in the complaint. The Agbannaoags say they got a $710,000 loan in 2007 to build a home on Maui. Their lender, nonparty Finance Factors, got signatures from the Agbannaoag's parents as co-signers, even though they could not speak English, and extended the maturity date of the loan three times, according to the complaint. The Agbannaoags say they lost the home and had to file for bankruptcy after a state court-appointed "Foreclosure Commissioner" auctioned the property back to Finance Factors for $618,600, though it was appraised at over $1.2 million. (60) Michael J. Fuchs and his development company, Ke Kailani Development say they were similarly duped. Fuchs claims that in 2005 and 2006 he borrowed more than $70 million to develop a 65- acre, luxury subdivision on the South Kohala coast of the Big Island. By 2009, Fuchs says, due to the "worldwide recession" and loan modifications, it was impossible to repay the loans on the unsold lots, which had lost value. That set off a bitter fight between Fuch's company and its borrowers. First Circuit Judge Bert I. Ayabe dismissed Fuchs's complaints and entered deficiency judgments against him in 2012, for "a pitiful $16,601," without allowing Fuchs to do any discovery, he says in the complaint. Fuchs claims that Judge Ayabe's wife did legal work for three of Fuchs's adversaries in the foreclosure case. The plaintiffs seek declaratory judgment for violations of due process -- but not monetary damages. They are represented by Gary Victor Dubin. KAISER FOUNDATION: Faces Suit Over Paying Exempt-Status Salary -------------------------------------------------------------- Philip A. Janquart at Courthouse News Service reports that certain Kaiser Foundation Hospital Inc. employees were paid an exempt- status salary, but performed non-exempt tasks, according to a San Diego Superior Court class action lawsuit. Lead plaintiff Adam Hardesty was employed at a San Diego County Kaiser hospital as a "project manager" from August 2012 to February 2013. Hardesty states in his complaint that despite the title, employees had little to no authority, never served in a supervisory role and were otherwise "engaged in a type of work that required no exercise of independent judgment or discretion as to any matter of significance." Instead, Kaiser project managers performed a "finite" set of non- exempt tasks that included transcribing written and electronic prescriptions, completing patient profile entries and notes, sending requests to doctors for medication refills and were even expected to troubleshoot the pharmacy computer system, all on top of "daily debriefing" conference calls. "As a matter of company policy, practice and procedure, Kaiser unlawfully, unfairly and/or deceptively classified every project manager as exempt based on job title alone, failed to pay the required overtime compensation and otherwise failed to comply with all labor laws with respect to these project managers," the complaint states. Hardesty alleges Kaiser operates the scheme to save money and be more competitive in the health care industry. "To successfully compete against the other health care service providers, Kaiser substantially reduced its labor costs by placing the burden of overtime work on a smaller number of salaried employees that Kaiser classified as exempt from overtime wages and other related benefits . . . the requirement to pay overtime wages extends beyond the benefits individual workers receive because overtime wages discourage employers from concentrating work in a few overburdened hands and encourages employers to instead hire additional employees," the complaint states. In addition, the complaint alleges Kaiser did not provide the class compensation for missed meal and rest breaks, and did not provide accurate and itemized wage statements showing gross and net wages, hourly rates for regular and overtime hours or the corresponding hours worked at each hourly rate. Hardesty is suing for violations of California's Unfair Competition Laws under California's Business and Professions code. He wants the court to enjoin Kaiser from continuing its practice of labeling employees as exempt by title only, to order Kaiser to correctly calculate and pay all wages due, and to disgorge "ill- gotten gains into a fluid fund for restitution" according to proof. Norman B. Blumenthal, Kyle R. Nordrehaug and Aparajit Bhowmik, of La Jolla, Calif., represent the plaintiff. Plaintiffs' counsel may be reached at: BLUMENTHAL, NORDREHAUG & BHOWMIK Norman B. Blumenthal Kyle R. Nordrehaug Aparajit Bhowmik 2255 Calle Clara La Jolla, CA 92037 Telephone: (858) 551-1223 Facsimile: (858) 551-1232 Email: Norm@bamlawlj.com JPMORGAN CHASE: Allowed Traders to Lose Billions, Suit Claims ------------------------------------------------------------- Courthouse News Service reports that lax executives and directors of JPMorgan Chase allowed proprietary traders in derivatives to lose billions of dollars, shareholders claim in a class action in New York County Supreme Court. L'OREAL: Faces Class Action Over Falsely Advertising 24H Makeup --------------------------------------------------------------- Courthouse News Service reports that in a federal class action, an Orthodox Jew accuses L'Oreal and Lancome of falsely advertising their "24-hour makeup;" she can't apply makeup on the Sabbath and it would look lousy for her son's Bar Mitzvah, she says in the complaint. Lead plaintiff Rorie Weisberg sued the two companies, saying their "precise corporate structure . . . is unclear." They claim that their Teint Idole Ultra 24H foundation makeup lasts for 24 hours, Weisberg says, but it ain't so. Because she cannot apply makeup from sundown Friday until sundown Saturday, Weisberg says, she spent $45 for a 1-oz. bottle of the makeup. "Specifically, plaintiff's eldest son is having his Bar Mitzva celebration in June and plaintiff was looking for a long-lasting foundation that would achieve the foregoing dual objectives over the Bar Mitzva Sabbath." The dual objectives refer to defendants' claims -- actually, three of them -- that the stuff would be "retouch free," "perfectly flawless," and provide "24 hour lasting perfection and comfort." Not willing to leave it to chance, Weisberg says, she "decided to test it from sundown Thursday to sundown Friday to see if she liked it and if the product worked. Plaintiff did so because she did not want to be stuck wearing the product over the weekend if it did not work." Alas! From the moment it went on at 5 p.m. Thursday, "Plaintiff felt that the product made her skin look very cakey. By Friday morning, plaintiff's skin was shiny, particularly around her nose. Moreover, the product that had been applied had faded significantly, making plaintiff's face look uneven. It looked like very little of the product was remaining on plaintiff's face, which was confirmed when she removed the remainder of the product at 3 p.m. with a white cotton ball, where very little of the product was found on the pad. Based on her experience, plaintiff did not receive the benefit of longwearing efficacy as claimed by Lancome in its advertising and on the product packaging." Weisberg seeks class damages for breach of express warranty, unjust enrichment, and business law violations. She is represented by Jeffrey Feinberg. The Jewish Daily Forward, which broke the story in a feature article, interviewed a biochemist who started her own cosmetics company for people who can't apply makeup on the Sabbath. Shaindy Kelman "scoffed at Weisberg's lawsuit," the Daily Forward reported. "'I hope a judge will look at it and throw it in the garbage,'" she told the Forward." 'I can't believe she even has the chutzpah' to file it. 'There's no way you can guarantee things on everyone's skin. All we can do is let you try the product. Everybody's skin is different, and who knows if she put it on right?'" MARISSA TEVES: Faces Class Action Over RICO Violations ------------------------------------------------------ Adam Klasfeld at Courthouse News Service reports that a recidivist labor recruiter who bilked immigrants of millions of dollars flouted a court order, with help from her wealthy husband, by holding a Filipino in "indentured servitude," the man claims in court. Lester Lee Javier, a physical therapy aide, sued Marissa Teves Beck, her husband Henry Beck and six of their companies in Federal Court. Javier accuses them of RICO violations, human trafficking, labor law violations and other charges. "Marissa Teves Beck is a recruiter with an ugly track record of illegally abusing and mistreating non-immigrant workers," the complaint states. "In 2008, the U.S. Department of Labor issued a determination letter finding that she and a company she controlled had cheated employees out of almost $3 million in wages. The Department of Labor also determined that Mrs. Beck had threatened employees with lawsuits and loss of their legal status -- and actually commenced lawsuits against them -- when they complained of her illegal conduct. "In 2009, this court entered a permanent injunction against Mrs. Beck prohibiting her and her company from future violations of the FLSA's overtime and recordkeeping provisions. She was also ordered to advise employees of their rights under the FLSA, in particular their right to engage in protected activity without fear of retaliation." "Non-immigrant worker" does not mean that a worker is not an immigrant; it means he or she does not seek to immigrate permanently to the United States. The Department of Labor announced in April 2009 that Beck had agreed to pay 247 current and former employees $211,120 in back wages and interest to resolve the lawsuit. But Javier says in his complaint: "Despite having been caught by the government in 2008 and enjoined by this Court in 2009, Mrs. Beck has continued her illegal activity and willfully violated this court's permanent injunction. She has done this by hiding behind the perceived legitimacy of her husband, Henry R. Beck -- a Vice President with The Corcoran Group -- and by using a web of corporate entities purportedly run by her husband, but actually managed and controlled by Mrs. Beck herself." Those entities are defendants Oasis Professional Management Group Inc., Advanced Professional Marketing Inc., Grill 211 LLC, Pan De Sal LLC and Gramercy Group Four LLC, according to the complaint. Javier claims he is "one of the victims of the Becks' illegal and abusive treatment of non-immigrant workers." Called for comment at Advanced Professional Marketing, Marissa Beck bristled at the allegations. "This is totally wrong," she told Courthouse News. "I am not that kind of person." Beck told Courthouse News she had not yet been served with the complaint. She said she had treated Javier well -- giving him a place to stay when he met her, and all of his vacation and sick days when he left. In his complaint, Javier claims the Becks paid him less than half the prevailing wage, refused to pay him overtime, illegally charged him thousands of dollars in fees for an H-1B visa application and kept him from asserting his rights by threatening to withdraw that application. Though he is not filing as a class action, Javier claims that his "mistreatment . . . is not an isolated incident, but part of a much larger and continuous illegal enterprise." "For years, the Becks have engaged in an illegal scheme involving immigration fraud, perjury, extortion, willful violations of this court's permanent injunction, mail fraud, wire fraud, and violations of the Fair Labor Standards Act (FLSA) and the Trafficking Victims Protection Act (TVPA) affecting hundreds of non-immigrant employees," the complaint states. The Becks and their companies have filed "more than 750 applications for H-1B visas since 2001, and many of those applications have been based on the Becks' willfully false and fraudulent submissions to the government," Javier says in the complaint. "Treating employees like their personal property, the Becks use employees at different companies depending on their personal wishes and needs. For example, when the Becks did not have enough work for plaintiff as a Physical Therapy Rehab Manager or Physical Therapy Aide, they refused to pay him. To earn a living, he had no choice but to work as a dishwasher, delivery boy, and cook at one the Becks' restaurants, defendant Grill 21, for only $9 per hour. Plaintiff also worked as a Physical Therapy Aide for defendant Advanced Professional Marketing, Inc., also for only $9 per hour," according to the complaint. Indignant at that charge, Marissa Beck told Courthouse News that Javier did not pass his physical therapy exam, did not have a license, and "begged me to be a dishwasher in my restaurant!" Javier's complaint continues: "Disregarding corporate forms and formalities, the Becks dominate the corporate defendants to cheat non-immigrant workers out of their wages, overtime payments, and contractual rights to legitimate immigration assistance. The Becks' continuous fraudulent and illegal conduct includes creating and maintaining false hours and wages records, making false representations under oath to the federal government, demanding and concealing illegal payments from non-immigrant workers, and employing non-immigrant workers in positions inconsistent with their immigration status and at wages below the prevailing wages for their job positions." Beck said in the interview: "I've had enough of this labor thing! If I don't give him work, I'm benching him. If I place him and he doesn't work, I have to pull him out. . . . I gave him five warnings to pull him out. I have the emails to prove it. I have the right to pull him out." She added: "He will not win. He will never win. He's a lazy person, and he took advantage of me. " Javier seeks treble damages on eight claims, including those mentions above, and breach of contract, unjust enrichment, quantum meruit and fraud. He is represented by John Howley. MCGRAW-HILL COS: 2nd Cir. Affirmed Dismissal of "Reese" Suit ------------------------------------------------------------ The United States Court of Appeals for the Second Circuit in December affirmed the dismissal of a class action lawsuit titled Reese v. Bahash, against the McGraw-Hill Companies, Inc., according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2012. On August 28, 2007, a putative shareholder class action titled Reese v. Bahash was filed in the District Court for the District of Columbia, and was subsequently transferred to the Southern District of New York. The Company and its CEO and former CFO were named as defendants in the suit, which alleged claims under the federal securities laws in connection with alleged misrepresentations and omissions made by the defendants relating to the Company's earnings and S&P's business practices. On November 3, 2008, the District Court denied Lead Plaintiff's motion to lift the discovery stay imposed by the Private Securities Litigation Reform Act in order to obtain documents S&P submitted to the SEC during the SEC's examination. The Company filed a motion to dismiss the Second Amended Complaint which was fully briefed and submitted as of May 2009. The Court granted a motion by plaintiffs permitting the plaintiffs to amend the complaint on June 29, 2010 and the Third Amended Complaint was filed on July 1, 2010. Defendants' motion to dismiss the Third Amended Complaint was fully briefed. On April 2, 2012, the District Court entered judgment granting the Defendants' motion to dismiss, and dismissing all claims asserted against the Defendants in their entirety. The Lead Plaintiff appealed the dismissal order. On December 20, 2012, the United States Court of Appeals for the Second Circuit affirmed the dismissal in its entirety. MCGRAW-HILL COS: Dismissal of "Gearren" & "Sullivan" Suits Final ---------------------------------------------------------------- On September 10, 2008, a putative shareholder class action titled Patrick Gearren, et al. v. The McGraw-Hill Companies, Inc., et al. was filed in the District Court for the Southern District of New York against the Company, its Board of Directors, its Pension Investment Committee and the administrator of its pension plans. The Complaint alleged that the defendants breached fiduciary duties to participants in the Company's ERISA plans by allowing participants to continue to invest in Company stock as an investment option under the plans during a period when plaintiffs allege the Company's stock price to have been artificially inflated. The Complaint also asserted that defendants breached fiduciary duties under ERISA by making certain material misrepresentations and non-disclosures concerning the ratings business in plan communications and the Company's SEC filings. A virtually identical complaint was filed on June 12, 2009 in an action titled Sullivan v. The McGraw-Hill Companies, Inc. et al., Case No. 09-CV-5450 in the Southern District of New York. On February 10, 2010 both actions were dismissed in their entirety for failure to state a claim under applicable law. Both plaintiffs appealed and on October 19, 2011, the Court of Appeals for the Second Circuit affirmed the dismissals in their entirety. On February 23, 2012, the Court of Appeals denied the plaintiffs' petition for reconsideration by the full Court. Plaintiffs filed a petition with the United States Supreme Court asking it to review the decision. The Supreme Court has denied plaintiffs' request and the dismissals are now final, according to The McGraw-Hill Companies, Inc.'s Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2012. MICHIGAN: Grand Rapids Police Sued for Routinely Arresting People ----------------------------------------------------------------- Courthouse News Service reports that Grand Rapids police routinely arrest people and charge them with criminal trespass at businesses, though no one told them they were unwelcome or asked them to leave, a class action claims in Federal Court. MICROSOFT CORP: Sued for Selling Subscribers' Personal Info ----------------------------------------------------------- Courthouse News Service reports that a federal class action accuses Microsoft of retaining and selling personal information about X-Box Live subscribers for more than a year after they cancel, without their consent. NEW YORK: Police Sued Over "Manufactured Misdemeanors" ------------------------------------------------------ Adam Klasfeld at Courthouse News Service reports that New York City police racially profile blacks and Latinos to "manufacture" marijuana offenses against them, five Bronx residents claim in Federal Court. Lead plaintiff Maurosol Felix sued New York City, NYPD Commissioner Ray Kelly, two deputy inspectors, a captain, nine officers and 14 Officer Does, claiming the NYPD trumped up minor marijuana violations as misdemeanors, charging them with crimes the "men did not commit and which, shockingly, the charging police officers knew they did not commit." The lawsuit comes after a widely publicized trial on the NYPD's "stop and frisk" policy, which allegedly targets black people. The plaintiffs in this case, as in the stop and frisk case, claim that the NYPD holds officers to an illegal quota system for such arrests. Under New York law, a person who carries less than 25 grams of marijuana cannot serve jail time on a first offense and faces a maximum fine of $100 for a violation. But the plaintiffs claim that police "manufactured misdemeanors" against them by writing up the violations under a statute that punishes possession of marijuana that is "burning or open to public view," which can lead to pre-arraignment and post-trial incarceration and inclusion in a criminal database. Felix, 42, claims he used the drug medicinally to relieve "a host of illnesses." As he walked out of a convenience store, defendant Officer Cintron spotted something suspicious in his hand, which was just food, Felix says in the complaint. Cintron's partner, defendant Officer Edwin Jerez, got out of the car and snuck up from behind him, Felix says. "Without provocation or justification, defendant Jerez used his body to forcefully and painfully pin Mr. Felix down on the NYPD vehicle," the complaint states. During a "warrantless, illegal and unjustified search," Cintron found a small amount of marijuana in the inside of his coat pocket, Felix says. Defendant Officers Guagliardi and Concepcion arrived and put him into a van, according to the complaint. Felix claims that Guagliardi turned to him during the ride to the 46th Precinct and said, "Don't take this personally. I have a quota to make." He claims that several Bronx police officers testified about pressure to meet stop-and-frisk arrest quotas in the Floyd v. City of New York class action. NYPD data submitted as evidence in that case showed that 87 percent of street stops targeted blacks and Latinos. The Felix plaintiffs claim statistics for marijuana possession "burning or open to public view" arrests are even more racially lopsided. "From 2003 through 2011, 87.0 percent of people arrested and charged under Sec. 221.10 for possessing marijuana 'burning or open to public view' in New York City were either black or Latino," the complaint states. "Conversely, only 10.2 percent were white. The disparity is even more acute in the Bronx, where the DCJS records show that 95.4 percent of all persons arrested and charged under Sec. 221.10 were either black or Latino. Meanwhile, studies show that between 2002 and 2009, among persons between the ages of 18 and 25, a greater percentage of whites used marijuana than either blacks or Latinos." As in the Floyd case, all of the plaintiffs are black and Latino men who claim police racially profiled them because of pressure to meet quotas. "As a result of this quota system, and the perverse incentives it imposes, some NYPD officers have developed a policy, practice and custom of lying on criminal complaints -- including plaintiffs' -- so as to 'justify' charging a misdemeanor rather than a violation," the complaint states. Plaintiff Angel Sanchez claims his marijuana was so far away from public view that police had to strip him nearly naked to find it. Sanchez claims he was walking home with a friend when defendant Officer Brian Flynn and two unidentified colleagues approached them. The officers told his friend to "keep walking," then Flynn slammed Sanchez against a gate, according to the complaint. Sanchez says that Flynn kept asking, "Where is it?" Finding nothing, they handcuffed him anyway, drove him down the road and started a strip search, according to the complaint. "Defendant Flynn kicked Mr. Sanchez's legs apart, opened Mr. Sanchez's pants, and pulled his underwear below his genitals. "Passersby on the street were able to see Mr. Sanchez's genitals, causing him extreme embarrassment. "While Mr. Sanchez was standing in the street with his genitals exposed, defendant Flynn touched Mr. Sanchez's testicles for an extended period of time. "In the midst of defendant Flynn's invasive and illegal search, a bag containing a small amount of marijuana fell from the bottom of Mr. Sanchez's pants onto the street," the complaint states. Flynn wrote that he saw Sanchez stuff a Ziploc bag with marijuana "into his waistband with his left hand in public view," the complaint states. Charges against all of the plaintiffs were dismissed after lengthy delays, according to the complaint. (The New York Times this week has run a lengthy series on multi-year delays of trials even for trivial offenses in Bronx courts.) The five plaintiffs demand punitive damages for constitutional violations and negligence. They are represented by Sam Shapiro and Katherine Rosenfeld with Emery Celli Brinkerhoff & Abady. Their co-counsel, Scott Levy of the Bronx Defenders, wrote in a statement: "By lying and needlessly placing people in the criminal justice system, the NYPD is losing the trust of Bronx residents. They feel like the NYPD is out to get them, not to protect them. Ultimately, this makes the community feel less safe." A New York City Law Department spokesperson played down the claims in an email. "We have not been served yet, but it's important to keep in mind that these are merely allegations at this point -- and nothing more," the spokesperson said. NUCOR CORP: Continues to Defend Class Suits by Steel Purchasers --------------------------------------------------------------- Nucor Corporation has been named, along with other major steel producers, as a co-defendant in several related antitrust class- action complaints filed by Standard Iron Works and other steel purchasers in the United States District Court for the Northern District of Illinois. The majority of these complaints were filed in September and October of 2008, with two additional complaints being filed in July and December of 2010. Two of these complaints have been voluntarily dismissed and are no longer pending. The plaintiffs allege that from April 1, 2005 through December 31, 2007, eight steel manufacturers, including Nucor, engaged in anticompetitive activities with respect to the production and sale of steel. The plaintiffs seek monetary and other relief. Although the Company believes the plaintiffs' claims are without merit and will vigorously defend against them, the Company cannot at this time predict the outcome of this litigation or estimate the range of Nucor's potential exposure, according to its Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2012. NY METHODIST HOSPITAL: Faces Overtime Class Action -------------------------------------------------- Courthouse News Service reports that New York Methodist Hospital stiffs assistant nurse managers for overtime, a class action claims in Federal Court. PACKAGING CORP: Consolidated Price-Fixing Suit Still in Discovery ----------------------------------------------------------------- During September and October 2010, Packaging Corporation of America and eight other U.S. and Canadian containerboard producers were named as defendants in five purported class action lawsuits filed in the United States District Court for the Northern District of Illinois, alleging violations of the Sherman Act. The lawsuits have been consolidated in a single complaint under the caption Kleen Products LLC v Packaging Corp. of America et al. The consolidated complaint alleges that the defendants conspired to limit the supply of containerboard, and that the purpose and effect of the alleged conspiracy was to artificially increase prices of containerboard products during the period from August 2005 to the time of filing of the complaint. The complaint was filed as a purported class action suit on behalf of all purchasers of containerboard products during such period. The complaint seeks treble damages and costs, including attorney's fees. The defendants' motions to dismiss the complaint were denied by the court in April 2011. PCA believes the allegations are without merit and will defend this lawsuit vigorously. However, as the lawsuit is in the document production phase of discovery, PCA is unable to predict the ultimate outcome or estimate a range of reasonably possible losses, according to its Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2012. PENGUIN GROUP: Faces Class Action for Cheating Writers ------------------------------------------------------ Adam Klasfeld at Courthouse News Service reports that Penguin Group's self-publishing branch, Author Solutions, cheats writers of royalties and charges them to correct typos in manuscripts that the company itself inserted, three unhappy authors claim in a federal class action. Kelvin James, Jodi Foster and Terry Hardy sued Penguin Group (USA) and Author Solutions, a Penguin company. Author Solutions claims to have worked with 160,000 writers and created 200,000 books, according to the complaint. (Plaintiff Jodi Foster has no relation to movie star Jodie Foster.) Pearson PLC, a nonparty media and education company that owns Penguin, acquired Author Solutions on July 19, 2012. "Author Solutions' revenues are estimated at $100 million per year," the complaint states. "Of the $100 million Author Solutions earns as revenue, approximately one third of that amount, or millions annually, comes from book sales. The rest of its revenue is derived from the services it offers, such as editorial services, formatting and design services, production services, and marketing services ('services'). "Despite its impressive profits from book sales, Author Solutions fails at the most basic task of a publisher: paying its authors their earned royalties and providing its authors with accurate sales statements. "Author Solutions also fails to take diligent care of its authors' works, making numerous and egregious publisher errors - errors made by the publisher, not the author. These errors include errors on book covers, in addition to various typographical and formatting errors. In fact, Author Solutions profits from its own mistakes. Aggressive sales techniques ensure that these errors are corrected only for a fee of several hundred dollars. Even though, as a matter of policy, Author Solutions promises to correct publisher errors for free, it rarely does. "Most of Author Solutions' earnings are derived from its publishing and marketing services. These services, which can cost authors tens of thousands of dollars, likewise fail to deliver what they promise: more book sales and more opportunities for authors. "Therefore, even while Defendant Author Solutions prominently markets itself on its website as '[t]he leading indie publishing company in the world,' authors often discover, once it is too late, that Author Solutions it is not an 'indie publisher' at all. It is a printing service that fails to maintain even the most rudimentary standards of book publishing, profiting not for its authors but from them." The writers say Authors Solutions also operates under the names AuthorHouse, iUniverse, Palibrio, Trafford, and Xlibris, to give customers a deceptive impression of variety. "Many authors, in an effort to avoid republishing a second book with the same imprint, move onto another without realizing that it is simply the same Author Solutions operation under a different name," the complaint states. The class includes New York and California residents who bought a package or services from Author Solutions, in the past three to four years, respectively. The writers want $5 million in punitive damages for breach of contract, unjust enrichment, California unfair competition law, and New York general business law. They are represented by Oren Giskan. PHILIP MORRIS: Judge Calls for Guidance on Medical Monitoring ------------------------------------------------------------- Santi Suthinithet at Courthouse News Service reports that the 2nd Circuit called for guidance as to whether longtime Marlboro smokers can force Philip Morris to cover medical-monitoring costs they face. Affirming a judge's decision to grant the tobacconist summary judgment, the federal appeals court said that Marcia Caronia, Linda McAuley and Arlene Feldman could not sustain claims for negligence, strict liability and breach-of-warranty claims. The New York Court of Appeals, the state's highest court, should determine whether the trio has a "free-standing equitable claim for medical monitoring," according to the ruling. Caronia, McAuley and Feldman had sued Philip Morris in January 2006, initially seeking to pursue it as a class action. They are all over 50 years old and either still smoke Marlboros or quit in the year before filing suit. Each smoked Marlboros for at least 20 "pack-years," a term that is calculated by multiplying the number of packs of cigarettes smoked per day with the number of years. A 20 pack-year smoker, for example, likely smoked two packs a day for 10 years. Although none of the plaintiffs have been diagnosed with lung cancer or are being investigated for suspected lung cancer, their fourth amended complaint asserted that they "are at significantly increased risk for developing lung cancer as a consequence of their use of Marlboro cigarettes . . . specifically as a consequence of the excess quantities of carcinogens delivered by Marlboro cigarettes." They said Philip Morris knew all along that it was possible to lower the amount of carcinogens in its cigarettes, but that it "purposely designed all of its Marlboro cigarettes to deliver an excessive amount of carcinogens when smoked by humans." Instead of compensatory or punitive damages for their claims, the trio wanted Philip Morris to fund a medical-monitoring program for individuals who are risk of lung cancer from smoking the company's cigarettes. They noted that lung cancer is often curable when found at an early stage. They also alleged that a recently developed medical screening procedure known as Low Dose CT Scanning of the chest (LDCT), has become available, though it is not a benefit in many, if any, insurance plans. It is "a modest annual expense [of] less than five hundred ($500) dollars per patient per year," according to their third amended complaint, and involves "a lower dose of radiation than is associated with an annual mammogram." A three-judge panel of the 2nd Circuit said it is unsure after looking at state-law precedent whether a plaintiff may maintain an independent cause of action for medical monitoring. In the Massachusetts case, Donovan v. Philip Morris USA, for example, a court allowed a group of 20 pack-year smokers to sue for LDCT medical monitoring, rejecting claims that "medical monitoring could not be ordered without a showing by the plaintiffs of 'physical harm manifested by objective symptomology.'" That court also noted how the roots of tort law lie in the 19th and 20th century, when such lawsuits mostly involved cases of "blunt trauma and mechanical forces." It said tort law had to "adapt to the growing recognition that exposure to toxic substances and radiation may cause substantial injury which should be compensable even if the full effects are not immediately apparent." Looking at cases across the United States, "most of the courts that have concluded that a plaintiff who has not suffered physical injury from tortious exposure to hazardous substances may maintain a cause of action for medical monitoring have elaborated on the elements necessary to prevail on such a claim," Judge Amalya Kearse wrote for a three-member panel. "The lists of elements are similar, but not identical." Though the 2nd Circuit can surmise the state-law intent where "the governing principles are uncertain or ambiguous," Kearse said no New York court has directly addressed the medical-monitoring question under New York State law. The task now falls to the Court of Appeals to decide whether state law allows an independent cause for medical action, and when the statute of limitations begins -- at the time of exposure or when new screening becomes available. "We do not intend this articulation of the above specified questions to limit the scope of the analysis by the Court of Appeals, and we invite the Court of Appeals to expand upon or alter these questions as it deems appropriate," Kearse added. The answer, the 2nd Circuit court stated, "reflects value judgments and important public policy choices that the New York Court of Appeals is better situated than we are to make." POWER-ONE: Being Sold to ABB for Too Little, Suit Claims -------------------------------------------------------- Courthouse News Service reports that Power-One is selling itself too cheaply through an unfair process to ABB Ltd., for $1 billion, or $6.35 a share, shareholders claim in Superior Court PROLOR BIOTECH: Being Sold to Opko for Too Little, Suit Claims -------------------------------------------------------------- Courthouse News Service reports that Prolor Biotech is selling itself too cheaply to Opko Health, in a 1-for-.995 share stock swap valued at $480 million, shareholders claim in Clark County Court. PROVIDE COMMERCE: Judge Approves Settlement on 2 Class Actions -------------------------------------------------------------- William Dotinga at Courthouse News Service reports that online marketers can settle claims that their "free shipping" offer was a ruse to enroll customers automatically in a paid membership program, a federal judge ruled. The class -- made up of named plaintiffs Daniel Cox, Joseph Lynch and Nicole Hall -- claimed that they encountered a pop-up ad offering free shipping on their purchases while shopping on ProFlowers.com, a website operated by Provide Commerce Inc. When the customers clicked on the pop-up, they were allegedly directed to another website operated by Clarus Marketing Group. Directed to that site, the class said Clarus offered free shipping on the present transaction, plus free-shipping rebates on 12 future ProFlowers.com purchases. To accept the offer, they allegedly entered only their email addresses and zip codes-but no payment information. Neither Clarus nor Provide Commerce warned customers that accepting the "free shipping" offer authorized Clarus to enroll them in its FreeShipping.com membership programs, according to the complaint. Those programs cost the plaintiffs between $9 and $20 monthly, paid through payment information apparently shared by Provide Commerce. The lead plaintiffs filed two class actions in 2011, accusing Provide Commerce and Clarus of violating federal anti-racketeering law, the Electronic Funds Transfer Act, and a number of violations of state consumer-protection and business laws, as well claims for negligence and invasion of privacy. After consolidating the two actions, the parties met with a mediator in May 2012 and reached a proposed settlement last October. U.S. District Court Judge Marilyn Huff both certified the class and approved the settlement, noting that only 62 of the more than 1 million class members had chosen to opt out of the settlement. Provide Commerce agreed to offer class members either 20 percent off a future purchase or a combination of a $15 credit and a portion of the $500,000 settlement fund. Huff also approved attorneys' fees and costs of $640,000, and handed each of the lead plaintiffs a $5,000 incentive award. Any remaining money in the settlement fund will be given to California Western School of Law and used to promote internet security and data privacy, Huff said. SAFETY-KLEEN: Contract Breach Suit Remanded to State Court ---------------------------------------------------------- Otay Hydraulics, Inc., filed a putative class action against Safety-Kleen Systems, Inc., in California state court on June 25, 2012. Otay Hydraulics alleged that Safety-Kleen breached contracts with Safety-Kleen's California customers by allegedly charging unauthorized fuel surcharges and excessive late-payment fees. The Defendants removed the action to the United States District Court for the Central District of California, and the Court remanded the action on its own motion for lack of jurisdiction. But on appeal, the Ninth Circuit vacated the order. On April 15, 2013, Otay Hydraulics moved to remand the case, arguing that Safety-Kleen failed to establish that the amount in controversy exceeds $5,000,000 as required by 28 U.S.C. Section 1332(d)(2) -- an issue the Ninth Circuit declined to address on appeal. After carefully considering the Notice of Removal and supporting declarations, District Judge Otis D. Wright II agreed with Otay Hydraulics and remanded the case to Los Angeles County Superior Court. The Court held that Safety-Kleen has not proved by a preponderance of the evidence that the amount in controversy exceeds $5,000,000 as mandated by 28 U.S.C. Section 1332(d)(2). The case is OTAY HYDRAULICS, INC., Plaintiff, v. SAFETY-KLEEN SYSTEMS, INC., Defendant, Case No. 2:12-cv-07357-ODW(VBKx), (C.D. Cal.). A copy of the District Court's May 6, 2013 order is available at http://is.gd/4NhTKBfrom Leagle.com. SEACOR HOLDINGS: 5th Cir. Affirmed Judgment in "Robin" Suit ----------------------------------------------------------- On July 14, 2010, a group of individuals and entities purporting to represent a class commenced a civil action in the U.S. District Court for the Eastern District of Louisiana, Terry G. Robin, et al. v. Seacor Marine, L.L.C., et al., No. 2:10-cv-01986 (E.D. La.) (the "Robin Case"), in which they asserted that support vessels, including vessels owned by SEACOR Holdings Inc., responding to the explosion and resulting fire that occurred aboard the semi- submersible drilling rig, the Deepwater Horizon, were negligent in their efforts to save lives and put out the fire and contributed to the sinking of the Deepwater Horizon and subsequent oil spill. The action was part of the overall multi-district litigation, In re Oil Spill by the Oil Rig "Deepwater Horizon", MDL No. 2179 ("MDL"). The complaint sought compensatory, punitive, exemplary, and other damages. In response to this lawsuit, the Company filed petitions seeking exoneration from, or limitation of liability in relation to, any actions that may have been taken by vessels owned by the Company to extinguish the fire. On June 8, 2011, the Company moved to dismiss these claims (with the exception of one claim filed by a Company employee) on various legal grounds. On October 12, 2011, the Court granted the Company's motion to dismiss in its entirety, dismissing with prejudice all claims that had been filed against the Company in the limitation actions (with the exception of one claim filed by a Company employee that was not subject to the motion to dismiss). The Court entered final judgments in favor of the Company in the Robin Case and each of the limitation actions on November 21, 2011. On December 12, 2011, the claimants appealed each of those judgments to the Unites States Court of Appeals for the Fifth Circuit. The claimants' opening brief was submitted on May 7, 2012, and the claimants filed a reply brief on June 1, 2012. Oral argument was not requested by the Fifth Circuit. On December 13, 2012, the Fifth Circuit affirmed the judgment of the district court, according to SEACOR Holdings Inc.'s Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2012. SEACOR HOLDINGS: Continues to Defend "Wunstell" Suit in Louisiana ----------------------------------------------------------------- SEACOR Holdings Inc.'s subsidiary continues to defend a class action lawsuit captioned John Wunstell, Jr. and Kelly Blanchard v. BP, et al., No. 2010-7437 (Division K), according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2012. On July 20, 2010, two individuals purporting to represent a class commenced a civil action in the Civil District Court for the Parish of Orleans in the State of Louisiana, John Wunstell, Jr. and Kelly Blanchard v. BP, et al., No. 2010-7437 (Division K) (the "Wunstell Action"), in which they assert, among other theories, that Mr. Wunstell suffered injuries as a result of his exposure to certain noxious fumes and chemicals in connection with the provision of remediation, containment and response services by O'Brien's Response Management Inc. ("ORM"), a subsidiary of the Company prior to the ORM Transaction. The action now is part of the overall MDL. The complaint also seeks to establish a "class- wide court-supervised medical monitoring program" for all individuals "participating in BP's Deepwater Horizon Vessels of Opportunity Program and/or Horizon Response Program" who allegedly experienced injuries similar to those of Mr. Wunstell. The Company believes this lawsuit has no merit and will continue to vigorously defend the action. Pursuant to contractual agreements with the responsible party, the responsible party has agreed, subject to certain potential limitations, to indemnify and defend ORM in connection with the Wunstell Action and claims asserted in the MDL. SEACOR HOLDINGS: Still Awaits Ruling on Summary Judgment Motions ---------------------------------------------------------------- SEACOR Holdings Inc.'s subsidiaries are awaiting court rulings on their motions for summary judgment re-asserting their derivative immunity and implied preemption arguments in one of the master complaints over clean-up activities generally, and the use of dispersants specifically, filed in In re Oil Spill by the Oil Rig "Deepwater Horizon", MDL No. 2179, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2012. On December 15, 2010, O'Brien's Response Management Inc. ("ORM") and National Response Corporation ("NRC"), subsidiaries of the Company prior to the ORM Transaction and SES Business Transaction, respectively, were named as defendants in one of the several consolidated "master complaints" that have been filed in the overall MDL. The master complaint naming ORM and NRC asserts various claims on behalf of a putative class against multiple defendants concerning the clean-up activities generally, and the use of dispersants specifically. By court order, the Wunstell Action has been stayed as a result of the filing of the referenced master complaint. The Company believes that the claims asserted against ORM and NRC in the master complaint have no merit and on February 28, 2011, ORM and NRC moved to dismiss all claims against them in the master complaint on legal grounds. On September 30, 2011, the Court granted in part and denied in part the motion to dismiss that ORM and NRC had filed (an amended decision was issued on October 4, 2011 that corrected several grammatical errors and non-substantive oversights in the original order). Although the Court refused to dismiss the referenced master complaint in its entirety at that time, the Court did recognize the validity of the "derivative immunity" and "implied preemption" arguments that ORM and NRC advanced and directed ORM and NRC to (i) conduct limited discovery to develop evidence to support those arguments and (ii) then re-assert the arguments. The Court did, however, dismiss all state-law claims and certain other claims that had been asserted in the referenced master complaint, and dismissed the claims of all plaintiffs that have failed to allege a legally-sufficient injury. A schedule for limited discovery and motion practice was established by the Court and, in accordance with that schedule, ORM and NRC filed for summary judgment re-asserting their derivative immunity and implied preemption arguments on May 18, 2012. Those motions were argued on July 13, 2012 and are still pending decision. In addition to the indemnity provided to ORM, pursuant to contractual agreements with the responsible party, the responsible party has agreed, subject to certain potential limitations, to indemnify and defend ORM and NRC in connection with these claims in the MDL. SEACOR HOLDINGS: Expects Suit Settlements to Reduce Unit Exposure ----------------------------------------------------------------- SEACOR Holdings Inc. expects the Economic and Property Damages Class Action Settlement and the Medical Benefits Class Action Settlement to reduce potential exposure of its subsidiaries, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2012. On March 2, 2012, BP Exploration & Production Inc. and BP America Production Company (collectively "BP") and the plaintiffs had reached an agreement on the terms of two proposed class action settlements that will resolve, among other things, plaintiffs' economic loss claims and clean-up related claims against BP. The parties filed their proposed settlement agreements on April 18, 2012 along with motions seeking preliminary approval of the settlements. The Court held a hearing on April 25, 2012 to consider those motions and preliminarily approved both settlements on May 2, 2012. A final fairness hearing took place on November 8, 2012. The Court granted final approval to the Economic and Property Damages Class Action Settlement on December 21, 2012, and granted final approval to the Medical Benefits Class Action Settlement on January 11, 2013. Notices of Appeal to the Fifth Circuit with respect to both class action settlements have been filed by various objectors. Although neither the Company, O'Brien's Response Management Inc. ("ORM"), or National Response Corporation ("NRC") are parties to the settlement agreements, the Company, ORM, and NRC are listed as released parties on the releases accompanying both settlement agreements. As the releases for both settlements have been deemed valid and enforceable by the district court, if the Fifth Circuit affirms these decisions, class members who did not file timely requests for exclusion will be barred from pursuing economic loss, property damage, personal injury, medical monitoring, and/or other released claims against the Company, ORM, and NRC. At this time, the Company expects these settlements to reduce ORM's potential exposure, if any, from some of the pending actions, but is currently still evaluating the settlements' impacts on these cases. SEACOR HOLDINGS: Continues to Defend Deepwater Horizon FLSA Suits ----------------------------------------------------------------- A subsidiary of SEACOR Holdings Inc. continues to defend collective action lawsuits alleging failure to pay overtime, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2012. O'Brien's Response Management Inc. ("ORM") is defending against four collective action lawsuits, each asserting failure to pay overtime with respect to individuals who provided service on the Deepwater Horizon spill response (the "DPH FLSA Actions") under the Fair Labor Standards Act ("FLSA"). These cases -- Dennis Prejean v. O'Brien's Response Management Inc. (E.D. La., Case No.: 2:12-cv-01045) (the "Prejean Action"); Baylor Singleton et. al. v. O'Brien's Response Management Inc. et. al. (E.D. La., Case No.: 2:12-cv-01716) (the "Singleton Action"); Himmerite et al. v. O'Brien's Response Management Inc. et al. (E.D. La., Case No.: 2:12-cv-01533) (the "Himmerite Action"); and Chann Chavis v. O'Brien's Response Management Inc. et al. (S.D. Tx., Case No.: 4:12-cv-02045) (the "Chavis Action") -- were each brought on behalf of certain individuals who worked on the Deepwater Horizon oil spill response and who were classified as independent contractors. The Prejean, Himmerite and Singleton Actions were each filed in the United States District Court for the Eastern District of Louisiana and then subsequently consolidated with the overall MDL. The Himmerite and Singleton Actions have since been automatically stayed pending further scheduling by the Court, pursuant to the procedures in the MDL. In the Prejean Action, ORM has answered the complaint, a scheduling order has been issued, and plaintiffs have, among other things, filed a Motion for Conditional Certification, which has been stayed pending further scheduling by the Court in accordance with the procedures of the MDL. The limitations periods for potential plaintiffs to opt-in to the Prejean, Himmerite and Singleton actions have all been tolled pending further action by the Court. ORM has filed a Motion for Reconsideration of the Court's order tolling the limitations periods in these actions. The Chavis Action was filed on July 7, 2012 in the United States District Court for the Southern District of Texas, and ORM answered the complaint in that matter. On December 20, 2012, the parties in the Chavis Action entered into a full and final settlement agreement with respect to all of the Plaintiff's individual and class claims, pending approval of the Court. The Company is unable to estimate the potential exposure, if any, resulting from any of these DPH FLSA Actions, but believes they are without merit and will continue to vigorously defend against them. SOTHEBY'S INC: Appeal From "Graham" Suit Dismissal Still Pending ---------------------------------------------------------------- Estate of Robert Graham, et al. v. Sotheby's, Inc. is a purported class action commenced in the U.S. District Court for the Central District of California in October 2011 on behalf of U.S. artists (and their estates) whose artworks were sold by Sotheby's in the State of California or at auction by California sellers and for which a royalty was allegedly due under the California Resale Royalties Act (the "Resale Royalties Act"). Plaintiffs seek unspecified damages, punitive damages and injunctive relief for alleged violations of the Resale Royalties Act and the California Unfair Competition Law. In January 2012, Sotheby's filed a motion to dismiss the action on the grounds, among others, that the Resale Royalties Act violates the U.S. Constitution and is preempted by the U.S. Copyright Act of 1976. In February 2012, the plaintiffs filed their response to Sotheby's motion to dismiss. The court heard oral arguments on the motion to dismiss on March 12, 2012. On May 17, 2012, the court issued an order dismissing the action on the ground that the Resale Royalties Act violated the Commerce Clause of the U.S. Constitution. The plaintiffs have appealed this ruling. Sotheby's believes that there are meritorious defenses to the appeal. It is currently not possible to make an estimate of the amount or range of loss that could result from an unfavorable outcome of this matter, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2012. SPECTRUM PHARMA: Allos Unit Settled Merger Class Suits in Feb. -------------------------------------------------------------- Spectrum Pharmaceuticals, Inc.'s subsidiary settled in February AMAG merger transaction class action lawsuits and Allos transaction class action lawsuits, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2012. On July 19, 2011, Allos Therapeutics, Inc., entered into an Agreement and Plan of Merger and Reorganization, or AMAG Merger Agreement, with AMAG Pharmaceuticals, Inc., or AMAG, and Alamo Acquisition Sub, Inc., as amended on August 8, 2011. On October 21, 2011, the AMAG Merger Agreement was terminated. In July 2011, two lawsuits were filed in the Delaware Court of Chancery relating to the proposed merger between Allos and AMAG, which two cases were later consolidated as In Re Allos Therapeutics, Inc. Shareholders Litigation, Consolidated C.A. No. 6714-VCN. Following announcement of the proposed merger between Allos and Spectrum, the consolidated case became one of the Allos Transaction Class Action Lawsuits and part of the settlement memorialized in the memorandum of understanding dated May 7, 2012. On February 11, 2013, as part of the consolidated settlement of the cases, the AMAG litigation was settled and dismissed. On April 9, 2012, a putative class action lawsuit captioned Radmore, et al. v. Allos Therapeutics, Inc., et al., No. 1:12-cv- 00948-PAB, was filed in the United States District Court for the District of Colorado, or the Radmore Complaint. The Radmore Complaint named as defendants Allos Therapeutics, the members of the Allos board of directors, as well as Spectrum. The plaintiffs alleged that Allos directors breached their fiduciary duties to their stockholders in connection with the proposed merger between Allos and Spectrum, and were aided and abetted by Allos and Spectrum. The Radmore Complaint alleged that the merger involves an unfair price, an inadequate sales process, unreasonable deal protection devices, and that the defendants entered into the transaction to benefit themselves personally. The Radmore Complaint sought injunctive relief, including to enjoin the merger, attorneys' and other fees and costs, and other relief. On April 12, 2012, a putative class action lawsuit captioned Keucher v. Berns, et al., C.A. No. 7419, was filed in the Delaware Court of Chancery, alleging similar violations. On April 20, 2012, an Amended Class Action Complaint was filed in the Delaware Court of Chancery in the matter captioned Keucher v. Berns, et al., C.A. No. 7419-VCN, adding allegations that the Solicitation/ Recommendation Statement on Schedule 14D-9, or the Schedule 14D-9, filed by us with the SEC on April 13, 2012, contains inadequate, incomplete and/or misleading disclosures. On May 7, 2012, the parties to all three actions executed a memorandum of understanding, or MOU, containing the terms for an agreement-in-principle to resolve all litigation. The MOU provided that the defendants would agree to make certain supplemental disclosures in an amended Schedule 14D-9 and that the parties would use their best efforts to agree upon, enter, and present to the Delaware Chancery court a formal stipulation of settlement. The MOU provides for an award to plaintiffs' counsel of $850,000 for their fees and expenses but did not include any payment to stockholders. The parties completed confirmatory discovery on July 18, 2012 and filed a stipulation and agreement of compromise and settlement in the Delaware court on November 8, 2012. On February 11, 2013, the Delaware court approved the settlement, including the payment of $850,000 to counsel for the stockholders, entered final judgment and dismissed the cases. TELULAR CORP: Being Sold to Avista for Too Little, Suit Claims -------------------------------------------------------------- Courthouse News Service reports that insiders are selling Telular too cheaply through an unfair process to Avista, for $12.61 a share or $253 million, shareholders claim in Cook County Chancery Court. UNITED AIRLINES: Faces Class Action Over Charging "YQ" ------------------------------------------------------ Courthouse News Service reports that United Airlines charges a fraudulent "tax" it calls "YQ" on its electronic tickets, but pockets the money itself, a class action claims in British Columbia Supreme Court. UNITED BANKSHARES: Accrued $3.3MM in Settlement of Class Suits -------------------------------------------------------------- On October 24, 2012, United Bankshares, Inc. and its wholly owned subsidiary, United Bank, Inc. of West Virginia, agreed to settle two class actions. The class actions alleged that United Bank improperly posted, processed, and paid consumer checking account debit card transactions, which allegedly resulted in the assessment of improper overdraft fees. These cases are virtually identical to cases filed against more than 70 other United States banks over the last three years. The first case has been consolidated, with similar cases against a myriad of other banks, into a federal multidistrict litigation pending in the United States District Court for the Southern District of Florida that is known as In re Checking Account Overdraft Litigation, Case No. 1:09-md-02036-JLK. The second case is pending in the Circuit Court of Jackson County, West Virginia. Without admitting liability or any wrongdoing and to avoid further litigation expense, United Bankshares, Inc. and United Bank, Inc. of West Virginia agreed to settle these cases in exchange for a payment of $3.3 million and an agreement to pay certain settlement-related expenses. The settlement is subject to court approval. As of December 31, 2012, the $3.3 million settlement amount was fully accrued by the Company, according to United Bankshares, Inc.'s Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2012. VOLVO AG: Faces Action Over Misrepresenting Side-Impact System -------------------------------------------------------------- Courthouse News Service reports that Volvo misrepresents the side- impact system in its Volvo 850, and a baby died in a crash because of it, the parents claim in a federal class action. WHITEWAVE FOODS: Faces Class Action Over Misbranding Product ------------------------------------------------------------ Courthouse News Services reports that the defendants misbrand their Silk line of plant-based beverages and Horizon line of dairy products as containing "evaporated cane juice," which is really just sugar or and dried cane syrup, a class claims. YANKEE CANDLE: Faces Overtime Class Action ------------------------------------------ Courthouse News Service reports that Yankee Candle stiffs workers for overtime, a class action claims in Superior Court. ********* 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. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000 or Nina Novak at 202-241-8200. * * * End of Transmission * * *