/raid1/www/Hosts/bankrupt/CAR_Public/130515.mbx
C L A S S A C T I O N R E P O R T E R
Wednesday, May 15, 2013, Vol. 15, No. 95
Headlines
AUSTRALIA: Transport Dep't May Face Suit Over Toowoomba Range
BAYER INC: Osler, Hoskin & Harcourt Discusses Court Ruling
BC HYDRO: Two Anti-Smart Meter Groups File Class Action
BNSF RAILWAY: Freight Rail Cos. Seek to Undo Class Certification
CARROLL ELECTRIC: Plaintiffs' Attorneys Drop Class Action
CHRYSLER GROUP: Recalls 469,000 Jeep SUVs Worldwide
CHULA VISTA, CA: Settles Suit Over Wireless Phone Tax Refund
COMCAST CORP: Judge Sends Privacy Class Action to Arbitration
CREIG NORTHROP: Faces $11MM Class Action Over Alleged Kickbacks
DEUTSCHE BANK: Awaits Ruling on Cert. Bid in AIG-Related Suit
DEUTSCHE BANK: Bid to Reinstate TruPS Holders' Suit Still Pending
DEUTSCHE BANK: Continues to Defend GE-Related Suit vs. DBSI
DEUTSCHE BANK: Continues to Defend Interbank Offered Rates Suits
DEUTSCHE BANK: Discovery to Commence Shortly in Securities Suit
DEUTSCHE BANK: Lead Plaintiff Amends GM IPO-Related Complaint
DEUTSCHE BANK: RMBS-Related Suits & Investigations Remain Pending
DEUTSCHE BANK: Second Circuit Affirmed Dismissal of ARS Suits
EMPIRE STATE: Judge to Approve $55MM Empire State IPO Settlement
EXPERIAN: Juntikka Helps Persuade Court to Stop Settlement
FACEBOOK INC: Seeks Dismissal of N.C. IPO Class Action
FACEBOOK INC: Advocacy Group Opposes $20MM Class Action Settlement
GENESIS HEALTHCARE: Godfrey & Kahn Discusses Court Ruling
GENESIS HEALTHCARE: Rumberger Kirk Discusses Court Ruling
HANNAFORD SUPERMARKETS: Recalls Two Bakery Cookie Products
L'OREAL USA: Faces Class Action Over Misleading Advertising
LONG BEACH, CA: Calif. High Court Orders Return of Telephone Taxes
MACQUARIE BANK: Any Settlement Appeal May End Up in High Court
MADISON, CT: Court Dismisses Remaining Claim in 2004 Class Action
MAGNUM HUNTER: Saxena White Files Securities Fraud Class Action
MERCK & CO: More Cases Filed Over Nuvaring Side Effects
MIDLAND FUNDING: Class Action Over Robo-Signing Dismissed
NOVA SCOTIA HOME: Premier Defends Gov't Move in Class Action
PILOT FLYING J: Faces Fifth Class Action Over Rebate Skimming
VENOCO INC: Continues to Defend Merger-Related Class Suits
VISA INC: Judge Won't Hold Merchant Groups in Contempt
* Carlton Fields Survey Says Class Action Litigation Costs Down
* Palo Alto City Council Mulls Lithium Batter Price Fixing Suit
* U.S. Spending on High-Risk Class Actions Up More Than 50%
*********
AUSTRALIA: Transport Dep't May Face Suit Over Toowoomba Range
-------------------------------------------------------------
Chris Calcino, writing for Toowoomba Chronicle, reports that
transport companies that use the Toowoomba Range are working
towards filing a joint class action against the Department of
Transport and Main Roads.
The lawsuit, an attempt to recoup income losses caused by delays
and blockages, is still in its infant stages.
Transport Workers Union regional organizer Brendan Bogle said the
industry could not survive a year of haemorrhaged revenue.
"I can't confirm which companies are involved (in the class
action), but they are looking at it very seriously," he said.
"A medium-sized company running about 30 vehicles is already
losing AUD10,000s each week.
"The delays mean grain containers going to Brisbane Port can only
do one trip a day instead of two (due to driver hourly
restrictions).
"Companies can't remain profitable unless something changes."
Mr Bogle said the State Government's consultation process before
the roadworks began had been token at best.
"Most transport operators weren't aware it had a one-year
timeframe, or that delays would take any more than 30 minutes.
"They can cop 30 minutes if it means they get a better road.
"But companies can't sustain this over a one-year period."
Mr Bogle called for round-table discussions about making the
Toowoomba Range exclusively accessible by the transport industry
until a better solution could be found.
"The State Government urgently needs to convene crisis talks
between road transport operators, the tourism drive market and all
the stakeholders," he said.
"I'm not just talking about industry heads from Brisbane.
"They need to come to Toowoomba and sit down with local operators.
"We need to talk about encouraging cars to use alternative routes
and leaving the range for trucks.
"Trucks can't use the Murphys Creek or Flagstone Creek Rd route
because of load limits, so it's the only option.
"It's controversial, but it's what needs to be done."
BAYER INC: Osler, Hoskin & Harcourt Discusses Court Ruling
----------------------------------------------------------
Craig Lockwood, Esq. and Luiz Arthur Bihari, Esq. at Osler, Hoskin
& Harcourt LLP reports that on April 15, 2013, the Ontario
Superior Court of Justice certified a product liability class
action in respect of pharmaceutical products manufactured by Bayer
Inc. In so doing, the Court's reasoning highlighted the continued
uncertainty surrounding the requirements for class certification
in the product liability area, especially regarding the standard
for pleadings and the acceptability of the ubiquitous "waiver of
tort" allegations.
Ann Schwoob v. Bayer Inc.
In Ann Schwoob v. Bayer Inc., 2013 ONSC 2207, the plaintiffs
brought a claim in negligence and waiver of tort against a major
pharmaceutical company. They alleged that two brands of
contraceptives developed and commercialized by the defendant
contained a chemical component that made them unsuitable for use
due to certain health risks. Moreover, the plaintiffs claimed
that these risks were known only to the defendant at the time.
On certification, Justice Crane found that the plaintiffs had
satisfied all of the requirements for certification of the
proposed class under the Class Proceedings Act. In reaching this
conclusion, he noted that the plaintiffs' case shared many
similarities with the claim that gave rise to the ruling of the
Ontario Superior Court of Justice in Heward v. Eli Lilly & Co,1 in
terms of both the causes of action pleaded and the common issues
for the class. Notably, Justice Crane relied significantly on
these similarities in granting certification, notwithstanding the
Divisional Court's recent ruling in Martin v. Astrazenca
Pharmaceuticals Plc.2 (which seemingly signalled a departure from
Heward).
On the issue of waiver of tort, Justice Crane noted that the law
is still uncertain regarding the availability of this remedy.
However, he recognized that this cause of action has been
recognized in a number of certification motions in Ontario
(including Heward) and that, for this novel and developing area of
the law, he was prepared to approve the common issues involving
waiver of tort in this case. Again, this finding seemingly
deviates from some of the recent jurisprudence signalling a more
restrained approach to the waiver of tort doctrine.3
Although Justice Crane's reasons were brief, they represent an
apparent departure from some of the recent product liability
jurisprudence suggesting a tightening of the pleadings and
certification requirements. At the very least, the decision
indicates that the bar remains relatively low for certification of
pharmaceutical and medical device claims in Ontario.
1 (2006), 39 C.P.C. (6th) 153; aff'd [2008] O.J. No. 2610
2 2013 ONSC 1169
3 For instance, see the British Columbia Court of Appeal decision
in Koubi v. Mazda Canada Inc. that curtailed the ability of class
plaintiffs to rely on restitutionary doctrines such as "waiver of
tort" to obtain class certification in cases grounded in alleged
breaches of statute; see also the decision of the Ontario Superior
Court of Justice in Andersen v. St. Jude Medical, in which Justice
Lax declined to decide the issue of waiver of tort in a common
issues trial.
BC HYDRO: Two Anti-Smart Meter Groups File Class Action
-------------------------------------------------------
Natascia Lypny, writing for The Tyee, reports that two anti-smart
meter groups have filed a class action lawsuit against BC Hydro in
an effort to end the installation of the devices in the homes of
people who oppose them.
For two years, Sharon Noble of the Coalition to Stop Smart Meters
said she's received "hundreds" of emails from people who say they
were pressured by BC Hydro to replace their analog meters with the
new wireless model and are now suffering health problems.
An Okanagan Valley customer alleges that BC Hydro cut off her
power. According to a press release by the two groups, the woman,
who suffers from electro-sensitivity, had had a smart meter
installed against her will. In January, BC Hydro announced it
would not install smart meters against a customer's will.
The press release alleges that after repeated attempts to get the
corporation to remove it, the customer ordered a replacement
analog meter from the United States, but BC Hydro said it didn't
meet Canadian standards. The customer then found a Canadian meter
that met the requirements, but the corporation insisted on the
smart meter. Refusing, she had her power cut off, alleges the
release.
Ms. Noble said the groups are protecting the identity of the
woman, who is now seeking her own injunction against BC Hydro's
action.
The class action lawsuit is seeking participants who have
indicated to BC Hydro that they did not want a smart meter placed
in their homes, yet one was, or will soon be, installed
regardless.
"The way the smart meter program is being rolled out right now
should be stopped," said the director of Citizens for Safe
Technology, Una St. Clair. "It's not about the health of the
people, it's about the health of the industry's pocket."
A BC Hydro spokesperson in charge of spokesperson was not
available for a phone interview by press time, but a statement
from the power generator authority said that smart meters have
been proven safe and "are helping make substantial improvements to
our electrical grid.
"Smart meters communicate using radio frequency signals similar to
those used safely for decades in televisions, radios and other
common household devices," the statement reads.
Ms. Noble explained the lawsuit is based on two premises: that the
Open Access Transmission Tariff, which details how BC Hydro
interacts with its customers, describes the rules and regulations
around meters but not transmitters (a category under which the two
groups classify smart meters); and a violation of the recently
introduced intrusion upon seclusion law by the Ontario Supreme
Court, which protects people's personal privacy. Ms. Noble
claimed smart meters collect and transmit personal data in a way
that violates this law.
The two groups have announced the lawsuit, and Ms. Noble couldn't
say how many people had signed on yet.
"If a lawsuit does proceed, BC Hydro would work through the
judicial process to present the facts about the new metering
system," BC Hydro told The Tyee in a statement.
Nearly 30,000 people have signed Citizens for Safe Technology's
petition calling for a moratorium on the smart meter program until
the above conditions are met.
Ms. Noble wants a no-fee opt-out process introduced so that people
have the choice whether or not to have smart meters in their
homes, and those who have had them already installed may request
they be removed. She said the election influenced the timing of
the lawsuit: "I want a commitment from Adrian Dix that he will
change the Clean Energy Act so that no other family will face the
threat of having their electricity turned off because they don't
want radiation in their house."
Mr. Dix has said that, if elected, he will have the BC Utilities
Commission review the smart meter program. The BC Greens promised
in their platform to provide alternatives to those adversely
affected by the wireless devices and to call a public inquiry into
the smart meter program.
BNSF RAILWAY: Freight Rail Cos. Seek to Undo Class Certification
----------------------------------------------------------------
Zoe Tillman, writing for The Litigation Daily, reports that
freight rail companies who've been accused in a class action of
scheming to bump up rates through "aggressive" fuel surcharges are
trying to undo the certification of the class in the case. At a
May 3 hearing before a panel of the U.S. Court of Appeals for the
District of Columbia Circuit, rail company counsel Carter Phillips
of Sidley Austin argued that the certification conflicted with the
U.S. Supreme Court's March decision in Comcast Corp. v. Behrend.
Mr. Phillips added that certification was based on a faulty model
of injuries, and would unfairly force his clients to settle.
The defendants, the four largest freight railroad companies in the
United States, were sued for antitrust violations in 2007 in U.S.
district court in Washington D.C. Senior Judge Paul Friedman
certified the class -- thousands of businesses that shipped
products via freight rail -- last summer. Certification pushed up
the total possible damages into the billions, according to court
papers in the litigation.
At a May 3 hearing, lead plaintiffs' counsel Stephen Neuwirth of
Quinn Emanuel Urquhart & Sullivan argued that the defendants were
trying to get new review of factual questions already decided by
Judge Friedman by couching them as legal arguments. Judge
Friedman did a rigorous analysis of the expert's model,
Mr. Neuwirth said, and took into consideration the fact that some
entities faced fuel surcharges as the conspiracy was getting
started in the time leading up to the official start date of the
alleged conspiracy in 2003. He also disputed the relevance of the
Comcast decision.
The freight rail case is one of the latest to attempt to clarify
class certification standards following the U.S. Supreme Court's
2011 decision in Wal-Mart v. Dukes, which raised the bar for
plaintiffs seeking certification by requiring proof of common
questions of law or fact. The rail companies have also argued
that Judge Friedman's order ran afoul of Dukes, because
determining the injury to the plaintiffs would require
individualized analysis of plaintiffs' contracts and negotiations
with the rail companies.
Chief Judge Merrick Garland of the D.C. Circuit noted that there
was a difference between needing common questions of fact related
to the alleged injury as opposed to damages, which could differ
among the plaintiffs.
Mr. Neuwirth pointed to Judge Friedman's findings that any
evidence the rail companies gave discounts to shippers -- part of
the defendants' argument that there were negotiations specific to
different plaintiffs that would require individualized analysis --
was "anomalous."
D.C. Circuit Senior Judge David Sentelle pressed Mr. Phillips on
whether the court could even hear the appeal, which was taking
place as the underlying case proceedings moved forward. Mr.
Phillips said it could, because his clients were arguing that
Judge Friedman made a "manifest error." Furthermore, Mr. Phillips
said, the damages at stake were exceptional and would serve as a
"death knell" for his clients. (The panel also included Judge
Janice Rogers Brown.)
Judge Sentelle expressed concern that Mr. Phillips' "death knell"
argument would open the door to interlocutory appeals every time a
class was certified and defendants -- facing the prospect of
greater damages -- felt more pressure to settle. Mr. Phillips
said the damages at issue were extreme, but the issue wasn't
whether his clients felt they would be put out of business. The
problem, he said, was that the damages would pose such a risk that
the companies would be forced to settle unmeritorious claims.
Mr. Neuwirth said that Mr. Phillips' claims that the damages would
put his clients in a bind were belied by the rail companies'
public filings with the Securities and Exchange Commission. In
those filings, he said, the companies said that they didn't expect
the litigation to have a material effect on their bottom line.
Judge Garland noted that the defendants' response was that they
made those assertions because they thought they would win before
the D.C. Circuit. Mr. Neuwirth agreed it was a "theoretical
possibility" that the defendants could win, but added that was a
big assumption to make in filings to the commission. The rail
companies were responsible, he said, and would disclose if the
possible damages posed a risk.
Both lawyers were asked if the court would have to either reverse
or affirm Judge Friedman's ruling, or could remand and order the
judge to take another look in light of the recent Comcast
decision. Mr. Phillips said they should reverse, because although
the court hadn't decided Comcast at the time of Judge Friedman's
decision, he already had a chance to address the issues raised in
that ruling.
Mr. Neuwirth at first demurred to pick a side when asked what the
appeals court could do if they found Judge Friedman made a
"manifest error." When pressed by Judge Garland, however, he said
his clients "obviously" wouldn't advocate for a straight-out
reversal.
CARROLL ELECTRIC: Plaintiffs' Attorneys Drop Class Action
---------------------------------------------------------
Kathryn Lucariello, writing for Carroll County News, reports that
attorneys for plaintiffs Dane Schumacher and Gordon Watkins, who
had filed a complaint with the Arkansas Public Service Commission
against Carroll Electric Cooperative Corp., have dropped their
case, Mr. Watkins said in a recent email to supporters, citing
lack of funds.
The complaint was filed in July 2011 as a class action, accusing
Carroll Electric of concealment and withholding of patronage
capital; unjust enrichment of board members; incompatible
accounting practices; withholding of access to books, records,
meeting minutes and mailing lists; and use of herbicides without
member input and in violation of rights-of-way.
The APSC agreed in September 2012 with Carroll Electric attorneys
that the only jurisdiction it has is over patronage capital,
dismissing the rest of the complaint.
After APSC made its ruling, plaintiff attorney Bill Ikard of the
Austin, Texas, law firm Ikard Wynne said his firm would discuss it
and be "taking appropriate action within a short period of time."
"We set up an escrow account and solicited contributions based on
the assertion that if the APSC denied our claim, we would walk
across the street and file in District Court," said Mr. Watkins.
He and Mr. Schumacher were disappointed, however, "when our
attorneys changed their minds and dropped the suit altogether."
He said attorneys believed the case might eventually prevail if
tried in court, but "believe CE would nickel and dime us to death
with procedural wrangling, and such antics could prolong our day
in court by years."
He added that lack of a class action claim or capital credits as
the driving force to support the action essentially made it a lost
cause.
"We only raised a fraction of what it would cost to litigate in
District court," Mr. Watkins said.
He said any monies contributed to the escrow account will be
returned to those who signed an escrow agreement.
As for capital credits, Mr. Watkins said, "If dissatisfied with
CE's response, individual members may contact the APSC and file
either an informal or formal complaint."
Nancy Plagge, CECC spokewoman, said she was not aware the
plaintiffs' attorneys had dropped the case, so she could not
comment.
She said members can call to find out what has been allocated to
their capital credit account, what's been retired and what the
current balance is.
But it may be a long time before they will see any return in
dollars.
Ms. Plagge said revenues left over after the fiscal year are
allocated, using a certain formula, back to each member that used
electricity the prior year, but those are not actual dollars that
sit in an account; money is invested back into the infrastructure.
Biannually the board looks at CECC's financial position to see
whether it can retire any of this patronage back to members in the
form of payments.
"There are a lot of factors involved in their decision," Ms.
Plagge said. "Back in 2010 they made the decision to retire
capital credits for the next five years, every 18 months, until we
have fully retired everything up to 1990."
She said this August there will be a retirement of credits for the
years 1987 and 1988. During final 18-month period, which occurs
in February 2015, the board will retire credits for 1989 and 1990.
"And that is the entire retirement that has been approved at this
point in time," she said.
Patronage due to members who have passed away will go to their
heirs.
Continuing his email update to supporters, Mr. Watkins also
referenced the lawsuit of plaintiff Kathy Turner of Huntsville,
who filed an action against CECC over alleged herbicide spraying
that she said caused her to lose her organic farming
classification for three years.
Mr. Watkins said Ms. Turner's attorney had drafted a No Spray
notice as an alternative to CECC's No Spray Request form provided
after members protested against use of herbicides on their land
instead of manual vegetation clearing. The notice states that "CE
does not have permission to spray on easements where no such
language exists," said Watkins. "Of course, CE insists otherwise."
Complaints about CECC's practices, governance and other issues go
back several years and include member protests at annual meetings
against the cooperative's process of board member elections,
closed board meetings and frequent change of bylaws which,
opponents say, make it more difficult to get member-nominated
candidates on the ballot.
"It is our belief that CE will continue to stand its ground
against any attempt to change the status quo . . .," Mr. Watkins
said. "We believe that CE as a cooperative and 'self-regulating'
entity must be transparent. We believe it is time for a fair and
impartial body to determine the constitutionality of CE's bylaws
as well as CE's board of directors' nomination process and
elections."
CHRYSLER GROUP: Recalls 469,000 Jeep SUVs Worldwide
---------------------------------------------------
The Associated Press reports that Chrysler Group LLC is recalling
469,000 Jeep SUVs worldwide because they can shift into neutral
without warning on startup.
The recall affects 2005 to 2010 Grand Cherokees and 2006 to 2010
Commanders.
U.S. safety regulators say cracks in a circuit board can cause a
faulty signal as the SUVs are being started. If the vehicles
shift into neutral, they can roll away.
Chrysler, which is majority owned by Fiat SpA, says the problem
has caused 26 crashes and two injuries.
Chrysler will notify owners and dealers will update software to
take care of the problem. Chrysler found cracks in a circuit
board that turns the four-wheel-drive system on and off.
Repairs will be made at no cost to owners.
The recall covers 295,000 vehicles in the U.S., 28,500 in Canada,
and 4,200 in Mexico. The remaining 141,000 are outside North
America.
The Company says in documents filed with the National Highway
Traffic Administration that it began looking into the problem
after a customer complained that an SUV rolled away in January of
2012 after being started remotely.
CHULA VISTA, CA: Settles Suit Over Wireless Phone Tax Refund
------------------------------------------------------------
A San Diego court has preliminarily approved a class action
settlement between wireless phone users and the City of Chula
Vista that includes $8 million being made available for funding
for rebates and refunds of the city's telephone user's tax and
payment of litigation expenses and attorneys' fees. The lawsuit,
Carla Villa, et al. v. City of Chula Vista, was brought by two
Chula Vista residents on behalf of Chula Vista taxpayers and was
filed by the San Diego law offices of CaseyGerry and the Newport
Beach offices of Capretz & Associates. The City of Chula Vista
disagrees with the lawsuit's claim that certain aspects of the tax
are unlawful, but, because the issues are complex and continued
litigation would be expensive, the City believes it is in the best
interest of its citizens to settle the case.
Chula Vista Settles Class Action Lawsuit for Local Wireless Phone
Tax with Refund to Taxpayers and Rate ReductionThe settlement
makes cash rebates available to Chula Vista wireless phone users
who paid taxes on their wireless phone bills from April 2010
through April 2013. And, once the court has finally approved the
settlement, the tax rate will be reduced from 5% to 4.75%. The
City will also clarify how its telephone users tax ordinance
applies to wireless phone services.
Additional information about who is qualified to receive refunds
and the claims process are available at
http://www.ChulaVistaCellPhoneTaxSettlement.com
All Chula Vista residents should receive claim forms in the mail
soon. Anyone with a wireless phone service billing address in
Chula Vista may be eligible to make a claim. Claim forms will
also be available online and can be submitted electronically at:
http://www.ChulaVistaCellPhoneTaxSettlement.com
A valid claim must be filed to get payment. Eligible claimants
may receive a larger cash payment by including copies of wireless
phone bills or other documents. This is fully explained in the
claim form and at the website. Claims must be filed no later than
July 31, 2013.
Eligible taxpayers can choose one of three refund options:
-- Receive flat $35 rebate. Eligible taxpayers only need to
fill out, sign and submit the claim form to receive $35 cash
payment.
-- Receive $50 for each year of Telephone User's Tax ("TUT")
paid -- maximum three years, $150, over three yearly time periods:
April 2010-2011, April 2011-2012, and April 2012-2013. Eligible
taxpayers need to complete the claim form and submit one of the
following as instructed on the claim form: For each yearly time
period, submit a copy of a wireless phone service bill, or a copy
of a wireless telephone plan, or a copy of a cancelled check
showing payment of the wireless phone service plan.
-- Receive an estimated full refund for the tax paid from April
2010-April 2013.
Eligible taxpayers need to complete the claim form and submit two
wireless phone service bills or one bill and one other proof of
payment for the period claimed as instructed on the claim.
For information, claim forms and detailed instructions on how to
make a claim, go to http://www.ChulaVistaCellPhoneTaxSettlement.co
or call (1-888-270-0735). Additional help is available at:
http://www.caseygerry.com
http://www.capretz.com
http://www.chulavistaca.gov
Media inquiries should be directed to Jeremy Robinson at
CaseyGerry (619-238-1811) and James T. Capretz at Capretz &
Associates (949-724-3000) on behalf of the class, and Anne
Steinberger, Marketing and Communications Manager, Office of
Communications, City of Chula Vista (619-409-5446) on behalf of
the City of Chula Vista.
COMCAST CORP: Judge Sends Privacy Class Action to Arbitration
-------------------------------------------------------------
Wendy Davis, writing for Online Media Daily, reports that Comcast
won a significant victory in a potential class-action privacy
lawsuit, when a federal judge granted the company's request to
send the matter to arbitration.
U.S. District Court Judge Robert W. Gettleman in the Northern
District of Illinois upheld a clause in Comcast's subscriber
agreement, which provide that the company choose to go to
arbitration in any disputes with customers. Consumers who sue
corporations generally prefer litigating cases in court -- where
juries can issue large damage awards -- rather than taking cases
to arbitration.
The lawsuit was brought by two consumers -- California resident
Aaron Lloyd, who subscribed to Comcast's broadband service from
2008 through 2010, and Illinois resident Steve Bayer, who
subscribed to cable service from 2006 through 2007. They allege
that Comcast violates federal and state privacy laws by retaining
customers' personal information -- including names, social
security numbers and financial account information -- after they
have canceled service.
They argued that Comcast "no longer has any reason to retain the
sensitive personal information" after they stopped subscribing.
"On information and belief, Comcast has not taken a single step
toward shredding, erasing, encrypting, or otherwise modifying
. . . [customers'] personal information so as to make it
unreadable or undecipherable by others," they alleged in their
complaint, which sought class-action status.
Comcast filed legal papers arguing that the case should be sent to
arbitration. The company said that all customers receive a
"Welcome Kit," which contains a subscriber agreement providing
that the company can elect to have disputes decided by an
arbitrator. The subscriber agreement sent to Lloyd also had a
provision allowing him to opt out of arbitration, but only within
30 days of receiving the agreement. The subscriber agreement also
bans class-action lawsuits.
Lloyd and Bayer unsuccessfully argued that the arbitration
requirement shouldn't be enforced.
Comcast isn't the only company to face a lawsuit for allegedly
preserving consumers' personal information. Netflix was sued
several years ago for allegedly retaining users' names and their
movie-viewing history after they canceled their memberships. The
consumers who sued in that case argued that Netflix was violating
the federal Video Privacy Protection Act, which says that video
rental companies must destroy consumers' personal information
within one year of cancellation of membership.
Netflix settled that case by agreeing to decouple former
customers' names from their movie-viewing records. Netflix also
agreed to pay $6.75 million to various privacy organizations and
up to $2.25 million to the lawyers who sued the company.
Netflix since revised its terms of service to provide that
disputes with customers will be subject to mandatory arbitration.
CREIG NORTHROP: Faces $11MM Class Action Over Alleged Kickbacks
---------------------------------------------------------------
Steve Kilar, writing for The Baltimore Sun, reports that a Howard
County couple is suing one of the largest residential real estate
brokerages in the state and a Columbia title company for more than
$11 million, alleging that the firms had financial ties that
violated federal law.
The case is a proposed class action that could involve thousands
of plaintiffs, all home buyers who bought a home with the Creig
Northrop Team of Long & Foster Real Estate since 2000 and used a
settlement firm called Lakeview Title Company Inc.
Attorneys for Patrick and Christine Baehr of Glenwood allege in
the federal suit filed in March that Northrop received more than
$500,000 in kickbacks from Lakeview Title and its part owner,
Lindell Eagan, during the past 13 years. The suit, filed against
the companies and their principals, claims that the funds were
payment for Northrop's referral of buyers to Lakeview for
settlement services.
The defendants deny the allegations and will ask for the case to
be dismissed, said Quincy Crawford, who is representing Long &
Foster, the Creig Northrop Team and its executives, and Niccolo
Donzella, who is representing Lakeview and Eagan. They also will
request that the class certification be denied, Crawford said.
Neither Creig Northrop nor Eagan responded to messages seeking
comment.
The Baehrs used Northrop to buy a home in 2008. The Northrop
Team, which closed on transactions totaling $326 million in 2011,
has one of the largest annual sales volumes in the country,
according to Real Trends Inc., a real estate industry analytics
company.
The Baehrs allege that payments made to Northrop and its officers
-- including company president Creig Northrop and vice president
Carla Northrop -- by Lakeview violate settlement disclosure
requirements of the federal Real Estate Settlement Procedures Act.
The law prohibits people from giving or accepting referral fees or
kickbacks in relation to settlement services.
The undisclosed referral structure deprived home buyers "of an
impartial and fair competition between settlement service
providers," according to the suit.
From 2000 through 2007, the suit alleges that Northrop and
Lakeview "created a sham employment arrangement . . . to disguise
payments of illegal referral fees." Carla Northrop, the complaint
states, was receiving payments from Lakeview during those years
even though she "did not actually appear for work or maintain set
hours, nor did she process or conduct any real estate closings or
process any files for Lakeview."
In 2008, the payments to Carla Northrop stopped, replaced by what
the suit called a "sham 'Marketing Agreement.'" Under the
agreement, signed by Creig Northrop and Eagan, the Northrop Team
agreed to "designate Lakeview as their exclusive settlement and
title company" and provide marketing services on Lakeview's
behalf, the complaint says.
Lakeview agreed to pay Northrop $6,000 each month for marketing
services, according to the plaintiffs. But those payments reached
as high as $12,000 a month, they say, and the "excess and
fluctuation in the amounts paid each month" by Lakeview to
Northrop are evidence that the compensation was based on the
number of settlement referrals, not contracted marketing services.
The allegations in this case stem from information gathered during
the proceedings of another lawsuit against Northrop, pending in
Howard County Circuit Court, filed in December 2011.
Many of the claims in the 2011 case, which alleged that Northrop
and several mortgage companies encouraged clients to buy new homes
before their old homes were sold in order to generate additional
fees and commissions, were dismissed in March -- the judge decided
that they were filed too late -- and a request for class-action
status was denied. The plaintiffs' lawyers plan to appeal those
decisions.
An alleged violation of a Maryland false-advertising statute
remains in that case, and plaintiffs recently filed a new claim
under the federal settlement law, adding Eagan and Lakeview as
defendants. The defendants have moved to have these remaining
claims dismissed. A hearing is scheduled for mid-May.
Timothy G. Casey, an attorney representing the Northrop defendants
and Long & Foster in the Howard County case, declined to comment
on that litigation.
DEUTSCHE BANK: Awaits Ruling on Cert. Bid in AIG-Related Suit
-------------------------------------------------------------
Deutsche Bank Aktiengesellschaft is awaiting a court decision on a
motion for class certification in a consolidated lawsuit related
to American International Group, Inc., according to the Company's
April 15, 2013, Form 20-F filing with the U.S. Securities and
Exchange Commission for the year ended
December 31, 2012.
Deutsche Bank AG and Deutsche Bank Securities Inc. ("DBSI"), along
with numerous other financial institutions, have been sued in the
United States District Court for the Southern District of New York
in various actions in their capacity as underwriters and sales
agents for debt and equity securities issued by American
International Group, Inc. ("AIG") between 2006 and 2008. On
May 19, 2009, lead plaintiffs filed a consolidated putative
securities class action pursuant to Sections 11, 12(a)(2), and 15
of the Securities Act of 1933 and Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934 (the "Exchange Act"). The
underwriters and sales agents are not named in the Exchange Act
claims. The complaint alleges, among other things, that the
offering documents failed to reveal that AIG had substantial
exposure to losses due to credit default swaps, that AIG's real
estate assets were overvalued, and that AIG's financial statements
did not conform to generally accepted accounting principles
("GAAP"). The total amount of securities alleged to have been
sold by the underwriter and sales agent defendants pursuant to the
offerings at issue in the consolidated action is $27 billion.
Deutsche Bank AG underwrote approximately $550 million in AIG
securities. DBSI underwrote approximately $811 million in AIG
securities. On April 1, 2011, lead plaintiffs filed a motion for
class certification and defendants' oppositions were filed on May
24, 2012. The Lead plaintiffs filed their reply brief on June 22,
2012.
The Court scheduled oral argument on the class certification
motion on May 1, 2013. Fact discovery is also complete. Expert
discovery has been deferred pending the Court's ruling on class
certification. The underwriter and sales agent defendants,
including Deutsche Bank AG and DBSI, received a customary
agreement to indemnify from AIG as issuer in connection with the
offerings, upon which they have notified AIG that they are seeking
indemnity.
Deutsche Bank Aktiengesellschaft -- http://www.deutsche-bank.com/
-- is a stock corporation organized under the laws of the Federal
Republic of Germany headquartered in Frankfurt am Main. The
Company is a global provider of a full range of corporate and
investment banking, private clients and asset management products
and services.
DEUTSCHE BANK: Bid to Reinstate TruPS Holders' Suit Still Pending
-----------------------------------------------------------------
The Plaintiffs' motion for reconsideration of the dismissal of
their consolidated class action lawsuit brought on behalf of those
who purchased certain trust preferred securities issued by
Deutsche Bank Aktiengesellschaft remains pending, according to the
Company's April 15, 2013, Form 20-F filing with the U.S.
Securities and Exchange Commission for the year ended
December 31, 2012.
Deutsche Bank and certain of its affiliates and officers were the
subject of a consolidated putative class action, filed in the
United States District Court for the Southern District of New
York, asserting claims under the federal securities laws on behalf
of persons who purchased certain trust preferred securities issued
by Deutsche Bank and its affiliates between October 2006 and May
2008. Claims are asserted under Sections 11, 12(a)(2), and 15 of
the Securities Act of 1933 that registration statements and
prospectuses for such securities contained material misstatements
and omissions. An amended and consolidated class action complaint
was filed on January 25, 2010. On August 19, 2011, the court
granted in part and denied in part the defendants' motion to
dismiss. Following this, the plaintiffs filed a second amended
complaint, which did not include claims based on the October 2006
issuance of securities. On the defendants' motion for
reconsideration, the court on August 10, 2012, dismissed the
second amended complaint with prejudice. The Plaintiffs have
sought reconsideration of that dismissal.
Deutsche Bank Aktiengesellschaft -- http://www.deutsche-bank.com/
-- is a stock corporation organized under the laws of the Federal
Republic of Germany headquartered in Frankfurt am Main. The
Company is a global provider of a full range of corporate and
investment banking, private clients and asset management products
and services.
DEUTSCHE BANK: Continues to Defend GE-Related Suit vs. DBSI
-----------------------------------------------------------
Deutsche Bank Aktiengesellschaft continues to defend a subsidiary
against a class action lawsuit brought in connection with General
Electric Co.'s October 2008 common stock offering, according to
the Company's April 15, 2013, Form 20-F filing with the U.S.
Securities and Exchange Commission for the year ended
December 31, 2012.
Deutsche Bank Securities Inc. ("DBSI"), along with other financial
institutions, was named as a defendant in a putative class action
lawsuit pending in the United States District Court for the
Southern District of New York in April 2009 alleging material
misstatements and/or omissions in the offering documents of
General Electric Co.'s ("GE") October 2008 Common Stock Offering.
DBSI acted as an underwriter in the offering. On
July 29, 2009, the Court entered an order consolidating this
action with others generally arising out of the same facts against
GE and various company officers and directors. A consolidated
amended complaint was filed on October 2, 2009. The Defendants
moved to dismiss the consolidated amended complaint on November
24, 2009, and, on June 9, 2010, the plaintiff filed a second
amended complaint. The Defendants moved to dismiss the second
amended complaint on June 30, 2010, and the Court granted in part
and denied in part that motion on January 12, 2012. On January
26, 2012, the defendants moved for reconsideration regarding the
claims which were not dismissed, and, on April 18, 2012, the Court
granted reconsideration and dismissed the remaining claims against
DBSI and the other underwriter defendants. Some claims against
the GE-related defendants survived. The time for any appeal from
dismissal of the claims against the underwriters will not begin to
run until disposition of the remaining claims against the GE-
related defendants. The underwriters, including DBSI, received a
customary agreement to indemnify from GE as issuer in connection
with the offerings, upon which they have notified GE that they are
seeking indemnity.
Deutsche Bank Aktiengesellschaft -- http://www.deutsche-bank.com/
-- is a stock corporation organized under the laws of the Federal
Republic of Germany headquartered in Frankfurt am Main. The
Company is a global provider of a full range of corporate and
investment banking, private clients and asset management products
and services.
DEUTSCHE BANK: Continues to Defend Interbank Offered Rates Suits
----------------------------------------------------------------
Deutsche Bank Aktiengesellschaft continues to defend itself
against lawsuits and investigations related to interbank offered
rates, according to the Company's April 15, 2013, Form 20-F filing
with the U.S. Securities and Exchange Commission for the year
ended December 31, 2012.
Deutsche Bank has received subpoenas and requests for information
from various regulatory and law enforcement agencies in Europe,
North America and Asia Pacific in connection with industry-wide
investigations concerning the setting of London Interbank Offered
Rate (LIBOR), Euro Interbank Offered Rate (EURIBOR), Tokyo
Interbank Offered Rate (TIBOR), Singapore Interbank Offered Rate
(SIBOR) and other interbank offered rates. Deutsche Bank says it
is cooperating with these investigations.
In connection with these investigations, in the period from mid-
2012 to early 2013, three financial institutions entered into
settlements with the U.K. Financial Services Authority, U.S.
Commodity Futures Trading Commission and U.S. Department of
Justice (DOJ). While the terms of the various settlements
differed, they all involved significant financial penalties and
regulatory consequences. For example, one financial institution's
settlement included a Deferred Prosecution Agreement, pursuant to
which the DOJ agreed to defer prosecution of criminal charges
against that entity provided that the financial institution
satisfies the terms of the Deferred Prosecution Agreement. The
terms of the other financial institutions' settlements included
Non-Prosecution Agreements, pursuant to which the DOJ agreed not
to file criminal charges against the entities so long as certain
conditions are met. In addition, affiliates of two of the
financial institutions agreed to plead guilty to a crime in a
United States court for related conduct.
In addition, a number of civil actions, including putative class
actions, are pending in federal court in the United States
District Court for the Southern District of New York against
Deutsche Bank and numerous other banks. All but one of these
actions are filed on behalf of certain parties who allege that
they held or transacted in U.S. Dollar LIBOR-based derivatives or
other financial instruments and sustained losses as a result of
collusion or manipulation by the defendants regarding the setting
of U.S. Dollar LIBOR. These U.S. Dollar LIBOR civil actions have
been consolidated for pre-trial purposes, and Deutsche Bank and
the other bank defendants moved to dismiss the amended complaints
that had been filed by the end of April 2012. On March 29, 2013,
the Court dismissed a substantial portion of the plaintiffs'
claims, such as the federal and state antitrust claims. The Court
allowed some manipulation claims to proceed and granted
plaintiffs' motion to amend their complaints based on information
that emerged in regulatory settlements.
Additional complaints against Deutsche Bank and other banks
relating to the alleged manipulation of U.S. Dollar LIBOR have
been filed in or otherwise transferred to the Southern District of
New York by the Judicial Panel on Multidistrict Litigation but
have stayed pending the resolution of the motions to dismiss.
Other actions against Deutsche Bank and other banks concerning
U.S. Dollar LIBOR are currently pending in other federal district
courts, and defendants are seeking to have them transferred to the
Southern District of New York. One complaint relating to the
alleged manipulation of Yen LIBOR and Euroyen TIBOR has also been
filed in the Southern District of New York. Claims for damages
are asserted under various legal theories, including violations of
the Commodity Exchange Act, state and federal antitrust laws, the
Racketeer Influenced and Corrupt Organizations Act and other state
laws.
Deutsche Bank Aktiengesellschaft -- http://www.deutsche-bank.com/
-- is a stock corporation organized under the laws of the Federal
Republic of Germany headquartered in Frankfurt am Main. The
Company is a global provider of a full range of corporate and
investment banking, private clients and asset management products
and services.
DEUTSCHE BANK: Discovery to Commence Shortly in Securities Suit
---------------------------------------------------------------
Deutsche Bank Aktiengesellschaft said in its April 15, 2013, Form
20-F filing with the U.S. Securities and Exchange Commission for
the year ended December 31, 2012, that discovery is expected to
commence shortly in the securities class action lawsuit pending in
New York.
Deutsche Bank and certain of its officers have been named as
defendants in a putative class action pending in the United States
District Court for the Southern District of New York brought on
behalf of all persons who acquired Deutsche Bank ordinary shares
between January 3, 2007, and January 16, 2009 (the "class
period"). In an amended complaint, the plaintiff alleges that
during the class period, the value of Deutsche Bank's securities
was inflated due to alleged misstatements or omissions on Deutsche
Bank's part regarding the potential exposure to Deutsche Bank
arising out of the MortgageIT, Inc. acquisition, and regarding the
potential exposure arising from Deutsche Bank's RMBS (residential
mortgage-backed securities) and CDO (collateralized debt
obligations) portfolio during the class period. Claims are
asserted under Sections 10(b) and 20(a) of the Securities Exchange
Act of 1934, and Rule 10b-5 thereunder. The Defendants moved to
dismiss the amended complaint. By decision dated March 27, 2013,
the Court largely denied the motion to dismiss as to Deutsche Bank
and all but one of the individual defendants. The Court dismissed
all claims by class members who acquired shares outside the United
States. Discovery is expected to commence shortly.
Deutsche Bank Aktiengesellschaft -- http://www.deutsche-bank.com/
-- is a stock corporation organized under the laws of the Federal
Republic of Germany headquartered in Frankfurt am Main. The
Company is a global provider of a full range of corporate and
investment banking, private clients and asset management products
and services.
DEUTSCHE BANK: Lead Plaintiff Amends GM IPO-Related Complaint
-------------------------------------------------------------
The lead plaintiff in the class action lawsuit related to General
Motors Company's initial public offering filed an amended
complaint in February 2013, according to Deutsche Bank
Aktiengesellschaft's April 15, 2013, Form 20-F filing with the
U.S. Securities and Exchange Commission for the year ended
December 31, 2012.
Deutsche Bank Securities Inc. ("DBSI"), along with numerous other
financial institutions, was named as a defendant in a putative
class action lawsuit pending in the United States District Court
for the Southern District of New York relating to alleged
misstatements and omissions in the registration statement of
General Motors Company ("GM") in connection with its November 18,
2010 initial public offering ("IPO"). DBSI acted as an
underwriter for the offering. Specifically, the lead plaintiff
alleges that the registration statement issued in connection with
the IPO contained material misstatements and/or omissions. The
original complaint was filed on June 29, 2012. The Lead plaintiff
was appointed on November 21, 2012, and lead plaintiff filed an
amended complaint on February 1, 2013. The underwriters,
including DBSI, received a customary agreement to indemnify from
GM as issuer in connection with the offerings, upon which they
have notified GM that they are seeking indemnity.
Deutsche Bank Aktiengesellschaft -- http://www.deutsche-bank.com/
-- is a stock corporation organized under the laws of the Federal
Republic of Germany headquartered in Frankfurt am Main. The
Company is a global provider of a full range of corporate and
investment banking, private clients and asset management products
and services.
DEUTSCHE BANK: RMBS-Related Suits & Investigations Remain Pending
-----------------------------------------------------------------
Lawsuits and investigations against Deutsche Bank
Aktiengesellschaft and affiliates relating to residential
mortgage-backed securities remain pending, according to the
Company's April 15, 2013, Form 20-F filing with the U.S.
Securities and Exchange Commission for the year ended
December 31, 2012.
Deutsche Bank AG, along with certain affiliates (collectively
"Deutsche Bank"), have received subpoenas and requests for
information from certain regulators and government entities
concerning its activities regarding the origination, purchase,
securitization, sale and/or trading of mortgage loans, residential
mortgage-backed securities (RMBS), collateralized debt
obligations, other asset-backed securities, commercial paper and
credit derivatives. Deutsche Bank says it is cooperating fully in
response to those subpoenas and requests for information.
Deutsche Bank has been named as defendant in numerous civil
litigations in various roles as issuer or underwriter in offerings
of RMBS and other asset-backed securities. These cases include
putative class action lawsuits, actions by individual purchasers
of securities, actions by trustees on behalf of RMBS trusts, and
actions by insurance companies that guaranteed payments of
principal and interest for particular tranches of securities
offerings. Although the allegations vary by lawsuit, these cases
generally allege that the RMBS offering documents contained
material misrepresentations and omissions, including with regard
to the underwriting standards pursuant to which the underlying
mortgage loans were issued, or assert that various representations
or warranties relating to the loans were breached at the time of
origination.
Deutsche Bank and several current or former employees were named
as defendants in a putative class action commenced on June 27,
2008, relating to two Deutsche Bank-issued RMBS offerings.
Following a mediation, the court has approved a settlement of the
case.
Deutsche Bank is a defendant in putative class actions relating to
its role, along with other financial institutions, as underwriter
of RMBS issued by various third-parties and their affiliates
including Countrywide Financial Corporation, IndyMac MBS, Inc.,
Novastar Mortgage Corporation, and Residential Accredit Loans,
Inc. These cases are in various stages up through discovery. On
March 29, 2012, the United States District Court for the Southern
District of New York dismissed with prejudice and without leave to
replead the putative Novastar Mortgage Corporation class action,
which the plaintiffs appealed. On March 1, 2013, the United
States Court of Appeals for the Second Circuit reversed the
dismissal and remanded the case for further proceedings to the
District Court.
Deutsche Bank is a defendant in various non-class action lawsuits
by alleged purchasers of, and counterparties involved in
transactions relating to, RMBS, and their affiliates, including
Allstate Insurance Company, Asset Management Fund, Assured
Guaranty Municipal Corporation, Bayerische Landesbank, Cambridge
Place Investments Management Inc., the Federal Deposit Insurance
Corporation (as conservator for Colonial Bank, Franklin Bank
S.S.B., Guaranty Bank, Citizens National Bank and Strategica
Capital Bank), the Federal Home Loan Bank of Boston, the Federal
Home Loan Bank of San Francisco, the Federal Home Loan Bank of
Seattle, the Federal Housing Finance Agency (as conservator for
Fannie Mae and Freddie Mac), HSBC Bank USA, National Association
(as trustee for certain RMBS trusts), Freedom Trust 2011-2, John
Hancock, Landesbank Baden-Wrttemberg, Mass Mutual Life Insurance
Company, Moneygram Payment Systems, Inc., Phoenix Light SF Limited
(as purported assignee of claims of special purpose vehicles
created and/or managed by WestLB AG), Royal Park Investments (as
purported assignee of claims of a special-purpose vehicle created
to acquire certain assets of Fortis Bank), RMBS Recovery Holdings
4, LLC, VP Structured Products, LLC, Sealink Funding Ltd. (as
purported assignee of claims of special purpose vehicles created
and/or managed by Sachsen Landesbank and its subsidiaries),
Spencerview Asset Management Ltd., The Charles Schwab Corporation,
The Union Central Life Insurance Company, The Western and Southern
Life Insurance Co., and the West Virginia Investment Management
Board. These civil litigations are in various stages up through
discovery.
In the actions against Deutsche Bank solely as an underwriter of
other issuers' RMBS offerings, Deutsche Bank has contractual
rights to indemnification from the issuers, but those indemnity
rights may in whole or in part prove effectively unenforceable
where the issuers are now or may in the future be in bankruptcy or
otherwise defunct.
On February 6, 2012, the United States District Court for the
Southern District of New York issued an order dismissing claims
brought by Dexia SA/NV and Teachers Insurance and Annuity
Association of America and their affiliates, and on January 4,
2013, the court issued an opinion explaining the basis for this
order. The court dismissed some of the claims with prejudice and
granted the plaintiffs leave to replead other claims. The
plaintiffs repled the claims dismissed without prejudice by filing
a new complaint on February 4, 2013.
On July 16, 2012, the Minnesota District Court dismissed with
prejudice without leave to replead claims by Moneygram Payment
Systems, Inc., which the plaintiffs have appealed. On
January 13, 2013, Moneygram filed a summons with notice in New
York State Supreme Court seeking to assert claims similar to those
dismissed in Minnesota.
On February 4, 2013, pursuant to the terms of a settlement
agreement, Stichting Pensioenfonds ABP dismissed two lawsuits that
had been filed against Deutsche Bank. The financial terms of the
settlement are not material to Deutsche Bank.
A number of entities have threatened to assert claims against
Deutsche Bank in connection with various RMBS offerings and other
related products, and Deutsche Bank has entered into agreements
with a number of these entities to toll the relevant statutes of
limitations. It is possible that these potential claims may have
a material impact on Deutsche Bank. In addition, Deutsche Bank
has entered into settlement agreements with some of these
entities, the financial terms of which are not material to
Deutsche Bank.
On May 8, 2012, Deutsche Bank reached a settlement with Assured
Guaranty Municipal Corporation regarding claims on certain
residential mortgage-backed securities (RMBS) issued and
underwritten by Deutsche Bank that are covered by financial
guaranty insurance provided by Assured. Pursuant to this
settlement, Deutsche Bank made a payment of $166 million and
agreed to participate in a loss share arrangement to cover a
percentage of Assured's future losses on certain RMBS issued by
Deutsche Bank. This settlement resolves two litigations with
Assured relating to financial guaranty insurance and limits claims
in a third litigation where all the underlying mortgage collateral
was originated by Greenpoint Mortgage Funding, Inc. (a subsidiary
of Capital One), which is required to indemnify Deutsche Bank.
Deutsche Bank Aktiengesellschaft -- http://www.deutsche-bank.com/
-- is a stock corporation organized under the laws of the Federal
Republic of Germany headquartered in Frankfurt am Main. The
Company is a global provider of a full range of corporate and
investment banking, private clients and asset management products
and services.
DEUTSCHE BANK: Second Circuit Affirmed Dismissal of ARS Suits
-------------------------------------------------------------
The U.S. Court of Appeals for the Second Circuit affirmed in March
2013 the dismissal of two class action lawsuits arising out of the
sale of auction rate preferred securities and auction rate
securities, according to Deutsche Bank Aktiengesellschaft's
April 15, 2013, Form 20-F filing with the U.S. Securities and
Exchange Commission for the year ended December 31, 2012.
Deutsche Bank and Deutsche Bank Securities Inc. ("DBSI") have been
named as defendants in twenty-one actions asserting various claims
under the federal securities laws and state common law arising out
of the sale of auction rate preferred securities and auction rate
securities (together, "ARS"). Of those twenty-one actions, one is
pending and twenty have been resolved or dismissed with prejudice.
Deutsche Bank and DBSI were the subjects of a putative class
action, filed in the United States District Court for the Southern
District of New York, asserting various claims under the federal
securities laws on behalf of all persons or entities who purchased
and continue to hold ARS offered for sale by Deutsche Bank and
DBSI between March 17, 2003, and February 13, 2008. In December
2010, the court dismissed the putative class action with
prejudice. After initially filing a notice of appeal, the
plaintiff voluntarily withdrew and dismissed the appeal in
December 2011.
Deutsche Bank was also named as a defendant, along with ten other
financial institutions, in two putative class actions, filed in
the United States District Court for the Southern District of New
York, asserting violations of the antitrust laws. The putative
class actions allege that the defendants conspired to artificially
support and then, in February 2008, restrain the ARS market. On
or about January 26, 2010, the court dismissed the two putative
class actions. The plaintiffs filed appeals of the dismissals
with the Second Circuit Court of Appeals. On March 5, 2013, the
Second Circuit affirmed dismissal of the two putative class
actions.
Deutsche Bank Aktiengesellschaft -- http://www.deutsche-bank.com/
-- is a stock corporation organized under the laws of the Federal
Republic of Germany headquartered in Frankfurt am Main. The
Company is a global provider of a full range of corporate and
investment banking, private clients and asset management products
and services.
EMPIRE STATE: Judge to Approve $55MM Empire State IPO Settlement
----------------------------------------------------------------
Al Barbarino, writing for The Commercial Observer, reports that
Supreme Court Justice O. Peter Sherwood will approve the $55
million settlement between Anthony and Peter Malkin and a group of
investors opposed to the imminent launch of the Empire State
Building IPO.
Justice Sherwood reached the decision at the New York State
Supreme Court in Manhattan on May 2 after reviewing an agreement
reached by attorneys representing both sides of the lawsuit.
"It is the court's intention to approve the settlement," he said,
noting the diligence of the plaintiffs' attorneys in conducting a
thorough examination of the law, hiring third party forensic
accountants and real estate appraisers.
The settlement, valid only if the planned IPO goes through, says
that 80 percent of the payout must be made in cash, while the rest
can be paid in REIT securities. In addition, the plaintiffs will
be considered "operating partners" with regard to those shares,
meaning that they can defer taxes; and the IPO must be launched at
$600 million or more, among other conditions.
The decision was made on the same day that Stephen Meister, the
attorney representing the plaintiffs in a separate lawsuit opposed
to the Malkins' proposed buyout of investors for $100 per share,
appealed the April 30 decision in favor of the buyout.
Mr. Meister was on-hand at the May 2 hearing, providing Justice
Sherwood with his clients' objection to the class-action
settlement, arguing that the April 30 decision on the $100 buyout
"forces" his clients to vote in favor of the IPO, meaning that
they opt out of class-action settlement and virtually lose their
ability to claim further damages.
"I think his decision was wrong and I plan to appeal," he told The
Commercial Observer after the hearing.
As of April 3, the Malkins had received 94 percent of the total
votes needed to proceed with the IPO.
EXPERIAN: Juntikka Helps Persuade Court to Stop Settlement
----------------------------------------------------------
Charles Juntikka, a New York bankruptcy Attorney, and his co-
counsels, Boies, Schiller & Flexner and Dan Wolf, persuaded the
9th Circuit Court of Appeals to unanimously reject a class action
settlement against Experian, Equifax and Trans Union. They
alleged the deal contained an unethical provision. The lawsuit
potentially involves 15 million people who filed for bankruptcy
and allegedly had inaccuracies on their credit reports. The case
is entitled Radcliffe v. Experian, Court of Appeals, 9th Circuit
April 22, 2013.
Forbes magazine wrote a story on the unethical provision entitled:
"Court Chastises Lawyers Over Conflict." According to the April
25th Forbes article: "Plaintiff lawyers apparently inserted
language that made larger, $5,000 payments to the class
representatives (nine formerly bankrupt individuals with credit
report issues) conditional upon their supporting the deal. That
was an unethical conflict, the judge said, since that gave the
class reps, who are supposed to safeguard the interests of absent
class members, a financial disincentive to push their lawyers to
achieve a more lucrative settlement."
The pressure to approve the deal was intense because -- if class
representatives refused to endorse the settlement -- they would
have received as little as $26. They would have received $5000 if
they approved the deal.
Mr. Juntikka's co-counsel, George Carpinello of Boies, Schiller &
Flexner, told the legal publication Law 360 that the rejection of
the settlement vindicated Mr. Juntikka's opposition to an
improperly small settlement for the 15 million formerly bankrupt
people in the class. Mr. Carpinello said that: "Our position has
always been that the settlement agreement reached between the
settling counsel and the defendants was patently inadequate . . .
We believe that the settlement was procured through improper
conduct by these counsel."
As documented in the case record by The United States Court of
Appeals For The Ninth Circuit on April 22, 2013, all three
appellate judges rejected the settlement. One of the judges was
particularly disturbed by the actions of the settling attorneys.
In a blistering concurring opinion, Judge Sam Haddon . . . said
the attorneys should receive no fees because of their "adherence
to self-interest, coupled with the obvious fundamental disregard
of responsibilities to all class members . . . class counsel were
singularly committed to doing whatever was expedient to hold
together an offer of settlement that might yield, as it did, an
allowance of over $16 million in lawyers' fees."
Mr. Carpinello said, "My firm was brought in as co-counsel on the
case by attorneys Charles Juntikka of Charles Juntikka &
Associates in New York and Daniel Wolf, a solo practitioner in
Washington." Mr. Juntikka and Mr. Wolf contacted the Boies firm
after they split with class counsel over the settlement, taking
the objecting class representatives with them.
The class action case was reminded to the lower court for further
proceedings.
FACEBOOK INC: Seeks Dismissal of N.C. IPO Class Action
------------------------------------------------------
Lee Weisbecker, writing for Triangle Business Journal, reports
that Facebook and its bank IPO underwriters have asked a federal
judge to toss out the class action damage suit filed by the North
Carolina Pension system and other investors.
The North Carolina system became lead plaintiff in the case last
year, claiming it had lost $4.1 million on the Facebook IPO after
the social media company issued misleading revenue forecasts prior
to the stock sale.
Facebook went public in May of 2012 at $38 a share, but its stock
promptly dropped to $20. It closed at $28.92 on May 2.
Lawyers for Facebook and the banks involved in the sale, including
Morgan Stanley, filed a 61-page brief in federal court in
Manhattan on May 2 refuting the allegation. They claim Facebook
adequately warned potential investors that increased use of mobile
devices would likely erode revenue.
Judge Robert Sweet will formally hear the motion to dismiss in
September, according to The American Lawyer.
FACEBOOK INC: Advocacy Group Opposes $20MM Class Action Settlement
------------------------------------------------------------------
Wendy Davis, writing for MediaPost, reports that Facebook's
proposed $20 million settlement of a class-action lawsuit about
"sponsored stories" would result in continued violations of laws
protecting children's privacy, the advocacy group Public Citizen
says in new court papers.
"The proposed settlement fails to remedy one of the core problems
for which the plaintiff class is seeking relief: Facebook's use of
minors' likenesses without the parental consent that is required
by state law," Public Citizen argues in a motion seeking to
scuttle the settlement agreement.
"The proposed settlement itself would perpetuate and purport to
authorize ongoing violations of the laws of multiple states by
authorizing Facebook to continue using minors' likenesses without
parental consent."
If approved by U.S. District Court Judge Richard Seeborg in the
Northern District of California, the deal would resolve a class-
action lawsuit alleging that Facebook's sponsored stories violates
a California law about endorsements. That law says companies need
people's permission before using their names or images in ads. In
the case of minors, companies need parental consent. Facebook's
sponsored stories program shows users' names and photos in ads to
their friends.
The tentative deal requires Facebook to pay users up to $10 if
they were previously featured in a "sponsored stories" ad.
Facebook also will allow minors under 18 to opt out of appearing
in all sponsored stories ads, and will give adult users a
mechanism to control their appearance in future sponsored stories
-- but only for two years, and on an advertiser-by-advertiser
basis.
The agreement also calls for Facebook to revise its terms of
service so that users state they give permission for their names
and photos to be shown in ads. Users under 18 would have to
represent that at least one parent agrees.
Public Citizen argues that Facebook shouldn't be permitted to use
childrens' names in ads -- even if they can opt out -- without
more definitive proof that their parents have consented.
"Accepting a minor's representation that a parent has consented is
not the same as actually obtaining the parent's consent to those
terms; on the contrary, it effectively dispenses with parental
consent requirements by permitting a minor unilaterally to consent
to the use of his or her image," Public Citizen argues.
The group says that seven states, including California, prohibit
the use of minors' names or images in ads without parental
permission. "The agreement allows Facebook to create
advertisements with images of users it knows to be minors without
parental consent. Accordingly, the proposed settlement authorizes
Facebook to violate the law of at least seven states," the
advocacy organization argues.
Public Citizen also argues that the deal doesn't provide an
adequate remedy to adult users who were featured in sponsored
stories ads. As currently structured, the agreement provides that
Facebook will pay individual users up to $10 each if they were
used in an ad, and submit a claim. If there are too many claims
to pay people $10 each, they will receive a pro rata share.
But if the pro rata share drops to less than $5, the judge will
decide whether each user should receive a small award, or earmark
the entire amount for public interest organizations and law
schools.
"The size of the settlement fund is so disproportionately small
relative to the class size that it is unlikely that any class
member will receive any compensation at all," the group argues.
Public Citizen isn't the only organization to oppose the deal.
The Children's Advocacy Institute at the University of San Diego's
Center for Public Interest Law also says the deal should be nixed.
That group says that children aren't likely to ever see the
portion of the terms of use that requires parental permission, let
alone ask their parents for consent to appear in ads.
The group also takes issue with the portion of the settlement that
allows minors to opt out of appearing in sponsored stories. "The
child will likely not see any of the obscure 'notices' and,
therefore, virtually none will affirmatively 'opt out,'" it
argues.
The law firm Center for Class Action Fairness also filed
objections to the proposed deal. That organization says the
proposed attorneys' fees are too high. The tentative settlement
provides that class-action lawyers can apply for $7.5 million.
Judge Seeborg granted the deal preliminary approval last December.
He is expected to hold a hearing next month about whether to allow
the agreement to be finalized.
Facebook declined to comment for this article.
GENESIS HEALTHCARE: Godfrey & Kahn Discusses Court Ruling
---------------------------------------------------------
Rebeca M. Lopez, Esq., at Godfrey & Kahn S.C., reports that if you
have ever received a complaint alleging minimum wage or overtime
violations from one of your employees, the United States
Department of Labor's Wage and Hour Division, or a similar state
agency (in Wisconsin, the Labor Standards Bureau of the Equal
Rights Division), you have probably considered the possibility
that other employees might raise similar claims. Depending on the
size of your workforce, this single-employee headache could
quickly evolve into a class action or collective action migraine.
Under the Fair Labor Standards Act (FLSA), a single employee may
file a wage and hour lawsuit on behalf of himself and other
"similarly situated" employees. The FLSA's collective action
mechanism requires potential plaintiffs to opt into the lawsuit,
meaning that individuals must choose to participate in the case.
This mechanism differs from a class action lawsuit because
individuals covered by a class certified by the court must opt out
of the case. In other words, in a class action, an individual
covered by a certified class must choose to not participate in the
case.
Defense counsel have typically attempted to protect employers from
prolonged and costly collective action litigation by "picking off"
the named plaintiff(s) in lawsuits filed under the FLSA. This
"picking off" strategy refers to Rule 68 of the Federal Rules of
Civil Procedure, which allows a defendant to make an offer of
judgment to the plaintiff. An offer of judgment amounts to giving
the plaintiff the full relief requested in the complaint and costs
accrued by the plaintiff. A plaintiff's acceptance of a Rule 68
offer of judgment moots (i.e., a dispute no longer exists) the
case as to the plaintiff, thereby depriving the court of
jurisdiction.
In the collective action context, however, employers have had
mixed results on the issue of whether acceptance of a Rule 68
offer by the named plaintiff(s) also moots the claims of the
potential collective group of affected employees. The question
also remained: what happens when the named plaintiff(s) rejects
the Rule 68 offer of judgment?
On Tuesday, April 16, 2013, the United States Supreme Court issued
a decision, Genesis Healthcare Corp. v. Symczyk, that attempted to
answer this question. In this case, the employer, Genesis, made a
Rule 68 offer of judgment to the plaintiff, Symczyk, while
simultaneously answering the complaint and prior to Symczyk moving
for conditional certification. By its terms, the offer
automatically expired after ten days. Symczyk did not accept the
offer, and Genesis moved for judgment in its favor, arguing that
its offer of judgment mooted Symczyk's claim and the potential
collective action. Symczyk did not contest Genesis' argument that
the offer fully satisfied her claim. The district court agreed
with Genesis and dismissed the case for lack of subject-matter
jurisdiction.
The Court of Appeals for the Third Circuit agreed with the
district court that Genesis' Rule 68 offer mooted Symczyk's claim,
but it disagreed about the effect the offer had on the potential
collective action. The court of appeals held that allowing a
defendant to "pick off" named plaintiffs for the purpose of
avoiding the certification of a collective action would run
contrary to the purpose of the collective action mechanism
permitted by the FLSA.
On appeal, the Supreme Court held that a plaintiff "has no
personal interest in representing putative, unnamed claimants, nor
any other continuing interest that would preserve her suit from
mootness." According to the Supreme Court, a Rule 68 offer of
judgment that renders the claims of the named plaintiff(s) moot
also eliminates the plaintiff's interest in the collective action.
More importantly, the Supreme Court held that a collective action
under the FLSA, even if "conditionally certified" by a court, does
not give the "class" of potential plaintiffs "an independent legal
status." A "conditional certification" simply results in "the
sending of court-approved written notice to employees[.]" Thus,
the Supreme Court has given some legitimacy to the strategy of
"picking off" named plaintiffs by offering them full relief
through a Rule 68 offer of judgment.
Note, however, that the Supreme Court did not hold that an
unaccepted Rule 68 offer renders a claim (the named plaintiff's or
the collective action claim) moot. Because Symczyk waived these
arguments in the lower courts, the Supreme Court simply assumed,
without deciding, that the unaccepted Rule 68 offer rendered her
claim moot.
While, at first blush, the decision seems like a great win for
employers, it has potential limitations, many of which Justice
Elena Kagan points out in her dissent, including the following:
Symczyk waived several important arguments throughout the
litigation, including the argument that the unaccepted Rule 68
offer in fact did not moot her individual claim.
The Genesis case addresses a scenario in which no other plaintiffs
had yet joined the collective action (due in part to the timing of
Genesis' offer to Symczyk and her failure to move for
certification).
The Court simply ignored the limitations of a Rule 68 offer of
judgment, including that Rule 68 only gives courts authority to
enter judgment when the plaintiff accepts the offer and that
"[e]vidence of an unaccepted offer is not admissible except in a
proceeding to determine costs."
Despite the limitations of the Genesis decision, employers can
take comfort in the Court's indication of its leanings regarding
collective actions. In addition to the Court's holding regarding
the mootness issue, employers can also point to the Court's
statements calling into question the legitimacy of applying class
action rules and precedent to collective actions under the FLSA.
GENESIS HEALTHCARE: Rumberger Kirk Discusses Court Ruling
---------------------------------------------------------
Douglas Brown, Esq. at Rumberger Kirk & Caldwell reports that a
sharply divided United States Supreme Court voted 5 to 4 to affirm
a Federal District Court's ruling that there was no "case or
controversy" to provide federal jurisdiction when a class action
Plaintiff employee rejected an offer of judgment that would have
fully compensated her individual claim. In Genesis Healthcare
Corp. v. Symczyh, ___ U.S. ___, 2013 WL 1567370 (Apr. 16, 2013),
the Supreme Court held that a rejected Rule 68 offer of judgment
mooted the employee's individual claim and, therefore, precluded
her from continuing as a class representative. However, because
of the unique procedural posture of the case, and the fact that
the case was a class action under FLSA, it is unclear if this
"pick-off" strategy will be successful in future cases under Rule
23, or even FLSA cases.
The Plaintiff, Symczyh, filed a class action under the Fair Labor
Standards Act ("FLSA") alleging that her employer enforced a
uniform policy of deducting 30 minutes of "break time" for each
shift, even if employees performed work during these break
periods. The employer served an offer of judgment for $7,500, in
addition to "reasonable attorneys fees and costs and expenses as
the court may determine" on the class representative. The Rule 68
offer was apparently structured in such a manner so that it
included the maximum recovery that the Plaintiff could be awarded.
Significantly, the District Court had not conditionally certified
a class under the FLSA collective action provision, not Rule 23,
the Federal class action rule. The majority held that Section
216(b) of the FLSA "simply authorized court approval of written
notice to employees who most affirmatively file a written opt-in
consent." The majority emphasized that a provisional
certification did not "create a class action or independent
status."
The District Court conducted a hearing and determined that it was
undisputed that no other employee opted in, and that $7,500 and an
offer to pay fees and costs fully satisfied her claim. Despite
the fact that she had allowed the offer to lapse without
acceptance, the District Court held it had no jurisdiction since
there was no "case or controversy." The employee had
unsuccessfully argued that the employer's tactic was an
unreasonable "pick-off" offer, attempting to preclude the
collective action under the FLSA by picking off the only plaintiff
with a settlement offer which was intended to preclude class
relief.
On appeal, the Third Circuit agreed that the employer's offer of
judgment fully satisfied the Plaintiff's individual claim and no
other employee had opted in to the proposed class. Nevertheless,
the Third Circuit reversed the District Court's reasoning that the
Rule 68 pick-off strategy would violate the policy of Section 216
of the FLSA for "collective action." The Third Circuit remanded
the case to the District Court to allow the respondent to seek
conditional certification, which if successful, would allow a new
employee to press the collection claim and the new action would
relate back to the initial date that Symczyk filed her complaint,
preserving a putative class member's claim from a statute of
limitations defense, and ensures that a claim would reach the
class certification.
The employer petitioned for a writ of certiorari to the Supreme
Court based on a significant split among the courts of appeal on
the effects of a Rule 68 offer and federal court jurisdiction if
the offer of judgment provided complete relief to the named
plaintiff. The employee did not seek review of the decision that
her individual claim, as opposed to her claim as a representative
party, was moot. The Supreme Court, on a 5 to 4 vote, reversed
the Third Circuit and held that under the circumstances of this
case, the Rule 68 offer deprived the District Court of
jurisdiction because the employee failed to preserve her argument
that the Rule 68 offer that she did not accept, mooted her
individual claim. The decision was based on extraordinarily
narrow grounds.
Justice Thomas wrote for the five justice majority decision and
focused on the "case or controversy" constitutional predicate for
federal jurisdiction. The majority reasoned that the employee,
even though she rejected the offer, was no longer involved in a
dispute which would have direct consequences on her status. The
majority concluded that the employee had failed to preserve that
issue by filing a cross-petition for certiorari, and in any event,
the employee conceded the point before the District Court and in
her briefing to the Court of Appeal, and did not raise the issue
in her brief in opposition to the petition for writ of certiorari.
After concluding that her individual claim was not properly
preserved, the majority addressed the issue of whether the
employee's representative claim was moot. The majority
distinguished the Rule 23 cases that the employee relied upon as
"fundamentally" different from collective actions under FLSA,
since a "provisional certification" did not create the type of
protectable interest for putative class member's interest that a
Rule 23 certification created. Although not discussed by the
Court, Federal Rule of Civil Procedure 23(e) requires court
approval for any settlement of a putative class action after
certification and implicitly requires no court approval of
settlement before certification. Rule 23(g) and (h) impose a duty
of fairness on class counsel only at the time when he or she is
appointed. Because this principle does not generally apply to
pre-certification settlements, it is possible that defendants,
prior to certification, will routinely be able to moot-out federal
cases seeking monetary claims by using Rule 68 offers of judgment
in several of the federal circuits. The majority distinguished
other Rule 23 cases because a class had been improperly denied
class certification, which justified the application of the
relation-back principle. But the primary basis was "conditional
certification under the FLSA," even if granted, it would simply
authorize contact with potential plaintiffs and give employees the
opportunity to opt-in. Such a limited determination did not
create rights among putative "collective action" class members.
This language also suggests that pre-certification Rule 23 cases
would also be subject to Rule 68 offers that would deprive a court
of federal jurisdiction, at least when claims are exclusively
monetary.
The Court also distinguished class action mootness cases where the
class was "inherently transitory." Those cases were
distinguishable because any putative representative would not be
able to prosecute a claim because circumstances would inherently
remove her from the class. In such cases, the challenged conduct
would never be reviewable because no employee would retain its
standing. The majority also found it significant that the
employee did not seek any forward looking relief such as an
injunction.
The final policy driven argument by the employee, was that a
"pick-off" strategy would frustrate the entire policy for
"collection action" under the FLSA. The majority limited its
reasoning to distinguishing the cases that the employee relied
upon and the distinctions between Rule 23 class certification and
conditional certification under the FLSA. The primary policy
justification was the constitutional requirement of a "case or
controversy."
It is perhaps more important what the Supreme Court did not
decide. First, it never addressed the most fundamental issue --
whether a Rule 68 offer that was not accepted still could moot a
private plaintiff's individual claim. Because the employee waived
that argument, the Court only had to determine that the employee
had no personal interest in putative unnamed claimants or other
interest that would preserve her suit from mootness.
Justice Kagan's dissent, joined by three other justices, focused
on the limited effect of the majority holding which did not
resolve the issue of whether an unaccepted offer of judgment can
be a basis to moot a claim. Justice Kagan wrote that "this view
is wrong, wrong, and wrong again." Her rationale was "when a
Plaintiff rejects an offer, however good the terms -- her interest
in the lawsuit remains just what it is before." The dissent
focused on whether an unaccepted offer can moot a case. The
dissent rejected this argument on policy grounds, basic contract
law, and the text of Rule 68 that allows a judgment to be entered
only if the plaintiff accepts.
It is hard to discern a clear message from this highly contentious
and qualified opinion, especially as it applies to Rule 23 class
actions. Certainly, it is hard to justify an individual claim,
when a defendant has offered all or more than a plaintiff could
recover in its best case. Allowing an individual claim to proceed
under those circumstances makes transparent that class counsel,
not the client, is the real party of interest. The majority
opinion certainly encourages defense counsel to make early pre-
certification offers of judgment, especially in cases that have
fixed or limited damages and do not seek injunctive or possibly
declaratory relief.
HANNAFORD SUPERMARKETS: Recalls Two Bakery Cookie Products
----------------------------------------------------------
Hannaford Supermarkets is recalling two products sold in the
bakery section because they may contain nuts that are not listed
on the product packaging label. Individuals who have an allergy
or severe sensitivity to any nuts may run the risk of serious or
life-threatening allergic reaction should they consume these
items.
The affected items are:
* Hannaford Gourmet Oatmeal Raisin Cookies (9 oz. package,
UPC # 0004126872715)
* Hannaford Gourmet Cookie Platter (36 oz. package,
UPC # 04126874662)
Hannaford received a consumer report that the product may contain
nuts. Picture of the recalled products is available at:
http://www.fda.gov/Safety/Recalls/ucm351856.htm
Hannaford Supermarkets is based in Scarborough, Maine, and
operates 181 stores in Maine, New Hampshire, Vermont, New York and
Massachusetts.
All affected products have been removed from store shelves.
Consumers may return the product to any Hannaford store for a full
refund. Consumers with questions may contact the Company weekdays
from 8:00 a.m. to 5:00 p.m. at (800) 213-9040.
L'OREAL USA: Faces Class Action Over Misleading Advertising
-----------------------------------------------------------
Amy Langfield, writing for NBC News, reports that L'Oreal USA,
Inc., the maker of Lancome Teint-Idole Ultra 24H, is facing a suit
filed on behalf of Rorie Weisberg, of Monsey, N.Y., an orthodox
Jewish woman who said she was duped by misleading advertising into
spending $45 on long-lasting foundation that would get her through
the Sabbath. The class action is seeking more than $5 million.
"Lancome engaged in deceptive, unfair and unconscionable
commercial practices in failing to reveal material facts and
information," states the lawsuit filed April 30 in the U.S.
District Court in the Southern District of New York. The company
markets the product as "retouch-free" for the "velvety finish you
love for 24 hour lasting perfection and comfort," according to the
lawsuit.
"Under all of these circumstances, Lancome's conduct in employing
these unfair and deceptive trade practices was malicious, willful,
wanton and outrageous such as to shock the conscience of the
community and warrant the imposition of punitive damages," the
lawsuit states.
The makeup maker disagrees.
"Lancome strongly believes that this lawsuit has no merit and
stands proudly behind our products," company spokeswoman Rebecca
Caruso told NBC News in an email. "We will strenuously contest
these allegations in court. Consistent with our practice and
policy, however, as this matter is currently in litigation, we
cannot comment further."
The 24-hour claim was of particular interest to Ms. Weisberg, the
suit claims, because her religious beliefs sometimes prevent her
from reapplying make-up for that length of time.
"Plaintiff is an Orthodox Jew and abides by Jewish law by not
applying makeup from sundown on Friday until nighttime on
Saturday. As such, Plaintiff often wears the same makeup for at
least a 24 hour period between Friday and Saturday evening," the
suit states.
In April, the plaintiff tested the product prior to the Sabbath.
"She applied the Product at approximately 5:00 p.m. on a 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 skin 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 3:00 p.m. with a white cotton ball, where very little of the
Product was found on the pad," the suit states.
The lawsuit seeks class-action status to obtain refunds, with
interest, for everyone in the United States who purchased the
product. Jeffrey S. Feinberg of the Feinberg Law Firm, one of
four firms that filed suit, declined to comment on the litigation
until the matter was concluded. He told NBC News that his client
would not comment either.
In 2012, L'Oreal brands posted worldwide sales of 22.46 billion
euros, according to its annual report. Overall, 25 percent of
those sales were in North America. Lancome Teint-Idole Ultra 24H
was launched in March 2012.
LONG BEACH, CA: Calif. High Court Orders Return of Telephone Taxes
------------------------------------------------------------------
Steve Stanek, writing for Heartlander Magazine, reports that the
California Supreme Court has given a victory to taxpayers in its
unanimous ruling that the City of Long Beach must recognize class
claims to refund illegally collected telephone taxes.
McWilliams v. City of Long Beach revolved around the city's
refusal to refund the tax except to individual taxpayers who
demanded their money back. An earlier Court of Appeal ruling
sided with Long Beach resident and plaintiff John W. McWilliams.
In 2006 he filed a class action lawsuit on behalf of Long Beach
telephone users who had been illegally assessed taxes on their
telephone service. The State Supreme Court upheld the Court of
Appeal decision.
Mr. McWilliams's complaint arose out of Long Beach's telephone
users tax, which exempted from local taxation all amounts the
federal government exempted from taxation. The federal government
stopped collecting taxes on long distance and bundled services in
2003. For tax year 2006 the IRS offered a refund on long distance
and bundled services taxes paid after February 28, 2003 and before
August 1, 2006. The city kept collecting tax on those services
and amended its telephone users tax to remove any reference to
federal tax exemptions without consulting the city's voters, which
violated the California Constitution.
The lawsuit complained Long Beach had unlawfully collected and
continued to collect the TUT "on services that have been
conclusively determined to be non-taxable under the Federal Excise
Tax."
The city, for its part, argued class actions for tax refunds were
barred under its municipal code.
"In the case now before us, the defendant local government entity
asserts that its municipal code contains an 'applicable governing
claims statute' barring class action claims for a tax refund. We
find that a local ordinance is not a 'statute' within the meaning
of the Government Claims Act and therefore affirm the Court of
Appeal," the State Supreme Court wrote.
MACQUARIE BANK: Any Settlement Appeal May End Up in High Court
--------------------------------------------------------------
Rae Wilson, writing for Mackay Daily Mercury, reports that a
federal court justice has sanctioned an AU$82.5 million settlement
between Macquarie Bank and investors who took out margin loans to
buy indexed funds in Storm Financial.
About 1050 investors will share the money but those who
contributed more to the legal funding for the class action will
get a bigger slice of the pie. The people who funded the action
will get about 42% return of their equity contribution while
others will get about 17.6% return.
Justice John Logan ruled the settlement, which came after complex
negotiations and lengthy mediation, was "fair and reasonable" when
he ruled in Brisbane on May 3. He said another judge had reserved
his judgment in a trial between the two parties before mediation
took place. But Justice Logan said there was no doubt there would
have been an appeal no matter which way the judge ruled, with a
likely prospect it would end up in the High Court.
Justice Logan said if appeals did occur, there would not be a
likely conclusion for the case until 2016. Referring to an
Australian idiom used during submissions to him the day before, he
said there was a view "a bird in the hand was worth two in the
bush".
Justice Logan said if the bird was a sparrow and the prospect was
a plump quail, "then one might be prepared to see what will emerge
from the bush". But he said if nothing emerged at all, then in
hindsight people would have wished they had taken the sparrow.
Justice Logan made these analogies when the settlement was fair
and reasonable to the Storm investors who were already concerned
they had thrown good money after bad. He also allowed Macquarie
Bank the indemnity it sought to stop investors double claiming
against it other proceedings, after considering the agreement's
fairness towards it too.
Justice Logan said there was "no admission of liability on the
part of Macquarie" in making the settlement.
MADISON, CT: Court Dismisses Remaining Claim in 2004 Class Action
-----------------------------------------------------------------
Jay Stapleton, writing for The Connecticut Law Tribune, reports
that the Connecticut Appellate Court has dismissed the last
remaining claim in a class-action lawsuit against the Town of
Madison for charging excessively high building fees.
The lawsuit filed in 2004 by Neighborhood Builders Inc. claimed
that a 50 percent increase in building fees imposed by the town in
2003 violated the Connecticut Unfair Trade Practices Act. The
case has been watched closely by attorneys who represent builders
and other municipalities, because it could impact the way building
permit fees are set in other municipalities.
"I believe this case is of interest to any lawyer that defends or
prosecutes contract disputes with municipalities," said Gary
Sheldon, a partner at McElroy, Deutsch, Mulvaney & Carpenter in
Hartford. "CUTPA claims are commonly plead in contract disputes,
including construction disputes. And municipalities routinely
attempt to strike these claims. This decision should add strength
to that argument."
Previous decisions have rejected the idea of holding a
municipality liable for CUTPA violations, because towns and cities
are given direct authority under state law to collect fees. The
attorney for the homebuilders, Drew Lichtenfels, however, said he
will ask the Connecticut Supreme Court to consider the legal
issues behind his claim.
"The town has been hiding behind its municipality status to try
and wriggle out of its responsibility for what it did,"
Mr. Lichtenfels said. "It's been seven years since we filed this
lawsuit. It obviously has merit and it obviously has legal
importance. We believe the Supreme Court will take this up and we
will be heard on this issue."
The lawsuit was filed on behalf of 5,000 people who had acquired
building permits in Madison between 2003 and 2008. Mr.
Lichtenfels, a solo attorney in Guilford, said the CUTPA claim was
based on the fact that the $6 million in fees collected in that
time period exceeded the amount it costs the town to regulate
building activity. "The CUTPA claim exists because the town
illegally took money from the building permits and used it for
matters other than to cover the costs," Mr. Lichtenfels said.
Mr. Lichtenfels won a partial victory in 2008, when the
Connecticut Supreme Court ruled that the lawsuit should be able to
proceed with class action status. The merits of the case were
then reviewed by the trial court, which ruled in favor of the town
in all but the CUTPA claims. In a separate ruling, in December
2011, Waterbury Superior Court Judge Salvatore C. Agati found the
town was exempt from the CUTPA claim, which led to the latest
appeal by the homebuilders.
Robert M. Langer, a Wiggin and Dana partner who defended Madison
against the homebuilders' claim, argued to the Appellate Court
that CUTPA does not apply to municipalities in lawsuits over
excessive fees. The main reason, he said, is that a municipality
has the authority to set its own fees as a function of its
governance under state law. And so those who buy permits do not
have a "commercial" or "business" relationship, which is required
for CUTPA to apply.
Mr. Lichtenfels, however, argued there is no case law that
"provides municipalities with blanket immunity against CUTPA
claims."
While the Appellate Court decision wasn't the first ruling to
reject a CUTPA claim against a town or city, it was the first
since 1999, Mr. Langer said.
In arguing his case, Mr. Langer relied on two earlier decisions.
In the more relevant of the two, he pointed to a 1999 Supreme
Court ruling in favor of the City of Danbury. An investment
company had claimed the city violated CUTPA by bringing 111
foreclosure actions against the company for properties it owned,
instead of just one action. The result was higher costs and fees
for the investment company.
The court held that the city was exempt from a CUTPA claim because
"the process of real estate assessment by a municipality is
authorized and regulated by statute."
MAGNUM HUNTER: Saxena White Files Securities Fraud Class Action
---------------------------------------------------------------
Saxena White P.A. has filed a securities fraud class action
lawsuit in the United States District Court for the Southern
District of Texas against Magnum Hunter Resources Corporation and
certain of the Company's executive officers. The class action is
filed on behalf of investors who purchased or otherwise acquired
Magnum Hunter's common stock during the period from January 17,
2012 through April 22, 2013, inclusive. The complaint brings
claims for violations of the Securities Exchange Act of 1934.
Magnum Hunter is an independent oil and gas company that engages
in the acquisition, exploration, exploitation, development and
production of crude oil, natural gas and natural gas liquids
primarily in West Virginia, Ohio, Texas, Kentucky and North
Dakota, as well as in Saskatchewan, Canada.
During the Class Period, Magnum Hunter made materially false and
misleading statements and omissions regarding the Company's
financial condition and prospects as well as its internal
controls. Specifically, Defendants made false and/or misleading
statements and/or failed to disclose: (i) that the Company had
material weaknesses in its valuation of its oil and gas
properties, its calculation of oil and gas reserves, its position
with respect to certain tax matters, the Company's accounting of
its acquisition of NGAS Resources, Inc., and the Company's
compliance with certain debt covenants; (ii) that, as a result,
Magnum Hunter lacked adequate internal and financial controls; and
(iii) that as a result of the above, the Company's financial
statements were materially false and misleading at all relevant
times.
You may obtain a copy of the complaint and join the class action
at http://www.saxenawhite.com
If you purchased Magnum Hunter stock between January 17, 2012 and
April 22, 2013, inclusive, you may contact Joe White, Esq. --
jwhite@saxenawhite.com -- or Marc Grobler --
mgrobler@saxenawhite.com -- at Saxena White P.A. to discuss your
rights and interests.
If you purchased Magnum Hunter common stock during the Class
Period of January 17, 2012 through April 22, 2013, and wish to
apply to be the lead plaintiff in this action, a motion on your
behalf must be filed with the Court no later than June 24, 2013.
You may contact Saxena White P.A. to discuss your rights regarding
the appointment of lead plaintiff and your interest in the class
action. Please note that you may also retain counsel of your
choice and need not take any action at this time to be a class
member.
Saxena White P.A., located in Boca Raton, specializes in
prosecuting securities fraud and complex class actions on behalf
of institutions and individuals. Currently serving as lead
counsel in numerous securities fraud class actions nationwide, the
firm has recovered hundreds of millions of dollars on behalf of
injured investors and is active in major litigation pending in
federal and state courts throughout the United States.
Contact: Joseph E. White, III, Esq.
E-mail: jwhite@saxenawhite.com
Marc Grobler
E-mail: mgrobler@saxenawhite.com
Saxena White P.A.
2424 North Federal Highway, Suite 257
Boca Raton, FL 33431
Telephone: (561) 394-3399
Fax: (561) 394-3382
Web site: http://www.saxenawhite.com
MERCK & CO: More Cases Filed Over Nuvaring Side Effects
-------------------------------------------------------
Seedol.com reports that Nuvaring Lawsuit cases continue to be
filed on behalf of women who suffered side effects related to
blood clots as well as women who suffered internal injuries as a
result of migration of the Nuvaring device.
Motions are already being heard in the first Nuvaring Lawsuit
trials. The outcome of these first Nuvaring Lawsuit trials could
impact when and if the maker of Nuvaring decides to offer Nuvaring
Lawsuit settlements to women who have filed Nuvaring cases.
Is there a Nuvaring Class Action Lawsuit?
The question often arises, is there a Nuvaring Class Action
Lawsuit? To the best of our knowledge there is no Nuvaring Class
Action Lawsuit currently underway. There is, however, a Nuvaring
Multidistrict Litigation. Class Action Lawsuits and Multdistrict
Litigations are often confused as being the same thing. Although
there would be similarities in a Nuvaring Class Action Lawsuit and
a Nuvaring Multidistrict Litigation, the two types of mass
lawsuits are not identical.
The existence of a Nuvaring Class Action Lawsuit or a Nuvaring
Multidistrict Litigation does not effect any woman who has
suffered an injury from the Nuvaring Birth Controls right to file
an individual lawsuit. Women who wait to file their Nuvaring
Lawsuit could face time limits that exist for filing any lawsuit.
If you were injured by the Nuvaring Birth Control Device, the best
time to file your Nuvaring Lawsuit is now. The first step in
filing a Nuvaring Case is to speak with a lawyer accepting clients
for the Nuvaring Lawsuit case. You can speak with a lawyer that
is accepting clients for the Nuvaring Lawsuit case by calling the
toll free number on this page or by using the contact form above.
Nuvaring Lawsuit Settlements
If the maker of Nuvaring decides to offer settlements to women who
have been injured by Nuvaring we will report that information at
the time it is received. In all likelihood there are still many
women who suffered blood clot related injuries as well as injuries
due to the migration of the Nuvaring Device that have yet to speak
with a lawyer about their case, if you are among these women we
would encourage you not to wait to speak with a lawyer about your
case.
MIDLAND FUNDING: Class Action Over Robo-Signing Dismissed
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Patrick Lunsford, writing for insideARM.com, reports that a
district judge in Maryland last month dismissed a potential class
action lawsuit against a debt buyer due, in part, to a rejection
of the notion that a technical error constituted a violation of
the Fair Debt Collection Practices Act (FDCPA). Another claim
that tried to piggyback on the widely publicized "robo-signing"
issue with debt collection lawsuits was also rejected.
Judge Catherine Blake in the U.S. District Court of Maryland on
April 16 granted the defendant's motion to dismiss in Suzanne Hill
et al. v. Midland Funding et al. The case was filed in August
2012 and oral arguments were heard April 3. The filing sought
class action status and damages of around $5.5 million.
The three plaintiffs named as class representatives were each sued
by Midland. In the lawsuits, Midland apparently filed the cases
with the wrong address for the company, instead listing the
address of parent company Encore Capital Group. The suit alleged
that since Encore was not licensed to collect in Maryland, the
address error was a violation of the FDCPA. Midland, however, was
licensed to collect in the state.
Judge Blake disagreed that this violated the federal law, writing,
"Mere technical violations of state law in the filing of such
suits, however, are not automatically violations of the FDCPA."
She also wrote that "This technical error is not a 'false
representation' or the kind of 'abusive debt collection practice'
that the FDCPA was designed to prevent."
In another claim, the plaintiffs said that the affidavits used in
the debt collection lawsuits filed by Midland were "false" and
were "artfully and deceptively worded to falsely appear to be made
upon personal knowledge." The claim was attempting to piggyback
on issues Midland has had with their affidavits, most famously
litigated in its long-running Brent case.
The Hill case actually led with Midland/Encore's previous
problems, opening the filing by calling the company a "notorious"
debt buyer and referencing various other actions. The suit said
that because the affidavits were not sufficient for judgment
(Midland did, in fact, lose the cases against the plaintiffs that
went to trial based on insufficient affidavits), that they were
false and misleading.
But Judge Blake saw no "false" in the affidavits presented in the
case. She wrote, "The plaintiffs' claim is based entirely on the
argument that, because the affidavit may not be sufficient to
. . . warrant a judgment in favor of Midland, it violated Sec.
1692e. But the affidavits themselves, attached as exhibits to
Midland's motion, do not actually contain any 'false' statements.
For example, the affiant in the first Hill collection case states
only that she has personal knowledge of the records of the debt
that Chase conveyed to Midland. The plaintiffs do not allege that
this statement itself was false, and the court finds no reason to
believe it was."
Judge Blake noted that the plaintiffs' claim that the case was
similar to Brent was misplaced. Well before the Brent case was
settled, Midland/Encore changed its practices with relation to
collection lawsuit affidavits. Judge Blake, in effect, affirmed
those changes, by noting that the language in Brent affidavits was
different from the language in the affidavits in this case.
She wrote, "Filing wholly truthful affidavits that some state
courts may hold to be insufficient in an attempt to obtain default
judgments is not a misrepresentation or other falsehood violating
Sec. 1692e" of the FDCPA.
Judge Blake granted Midland's motion to dismiss all claims in the
suit.
NOVA SCOTIA HOME: Premier Defends Gov't Move in Class Action
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David Jackson and Eva Hoare, writing for Herald News, report that
Premier Darrell Dexter defended his government's latest move on
May 2 in the Nova Scotia Home for Colored Children case, calling
provincial lawyers' attempts to quash evidence in the court action
"routine."
But opposition leaders hammered the province's actions, saying it
is an "embarrassment" that Justice Department lawyers are trying
to strike out much of what former residents of the home have
submitted to the courts.
The evidence is contained inside multiple affidavits filed by the
residents, who are launching a class action against the province
for its handling of widespread alleged abuse spanning decades that
occurred at the orphanage outside Dartmouth. The proposed class
action goes to court for certification hearings next month.
Dexter said what the lawyers are doing in court is separate from
wanting those people to share their stories in a healing forum.
"One is the question of compensation, and the other is the
question of healing and reconciliation," he said at Province House
in Halifax.
"The lawsuit is about the question of compensation, and that's a
wholly different issue."
Wayne MacKay, a constitutional law expert at the Schulich School
of Law at Dalhousie University, called the government's move
extreme, while lawyer Ray Wagner, representing the former
residents, called the action unprecedented in Canadian class-
action law history.
Liberal Leader Stephen McNeil said the province's tack is
"unconscionable" and "a real embarrassment to our province."
"On the one hand (they're) telling us they're trying to give
victims a chance to express themselves, to have their stories
heard, and then, on the other hand, sending a team of lawyers in
to squash evidence, quite frankly, so that the courts will not be
able to look at this in the full view that it should," McNeil told
reporters.
The home itself has already agreed to a $5-million payout to the
former wards of the home. That deal is set to be approved in
court in June, at the same time the residents try to get their
class action against the province certified.
Mr. McNeil wondered how the province can adopt two different
stances in the case, and that is why a public inquiry is needed
more than ever. The province has said it is looking at
establishing an independent panel to look into what happened at
the orphanage.
They are "trying to be passionate and kind" but also crush the
alleged victims at the same time, Mr. McNeil said.
"It's one thing to go in and defend yourself and have
representation in the courtroom . . . but to go in and actually
squash stories that were put before the court by the victims, some
of which were 30 years old here, is unconscionable in my view."
Progressive Conservative Jamie Baillie also decried the province's
legal tactic.
"I cannot believe that the premier and an elected government would
say that they want healing . . . on the one hand, and then send
their legal team out to squelch those very stories and keep those
stories from being told. That is not right.
"It tells me this is all a game. . . . This is actually trying
to suppress testimony from the former residents themselves."
Mr. Baillie said the government's "primary duty" is to help the
former residents heal.
The two opposition leaders also questioned the government during
question period on May 2.
But the premier said helping residents and dealing with the court
case are two distinct issues, saying the province is merely
conducting a routine exercise in trying to strike out former
residents' affidavits.
"It's literally an everyday occurrence," said Mr. Dexter, adding
that he was surprised by Mr. Wagner's comments.
"(It's) my genuine desire, and I think the genuine desire of the
community, the genuine desire of most people in the province, to
want to have a complete, full, fair, open, transparent look at the
things that were going on around the Nova Scotia Home for Colored
Children."
Lawyers for the province have filed 35 pages in Nova Scotia
Supreme Court asking the court to throw out "all or portions" of
some affidavits that former residents of the home filed.
Mr. Dexter said he expects there will be news this month on who
will be establishing the terms of reference for a review of the
home's past.
That review is separate from the court action.
PILOT FLYING J: Faces Fifth Class Action Over Rebate Skimming
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Walter F. Roche Jr., writing for The Tennessean, reports that a
Wisconsin trucking firm on May 3 filed a class-action suit in
federal court in Illinois charging Pilot Flying J and its chief
executive, Jimmy Haslam III, with racketeering in the wake of a
federal probe of rebate skimming.
The suit is the fifth to be filed against the truck stop chain and
the first to name Mr. Haslam as a defendant. Also named in the
suit are Pilot's president and top sales executives, whose names
appeared in a 120-page affidavit recently filed in U.S. District
Court in Knoxville.
In the 36-page complaint, attorneys for Edis Trucking Inc. of
Franksville, Wis., charged Mr. Haslam and other top Pilot
executives conspired to reduce rebates that had been promised to
Edis and other trucking companies.
The suit is the latest filed in state and federal courts across
the U.S. after an April 15 raid on Pilot's Knoxville headquarters
by the FBI and IRS.
Mr. Haslam, the suit charges, engaged in or caused Flying J "to
participate in a scheme to defraud class members by false
promises."
The Illinois suit follows similar class actions filed in federal
courts in Arkansas, Alabama and Mississippi. A Georgia trucking
firm filed a suit in circuit court in Knoxville.
The Edis Trucking suit also names as defendants Pilot President
Mark Hazelwood, Chief Financial Officer Mitch Steenrod and sales
executives John Freeman and Brian Mosher.
Like the other suits, the Edis complaint cites allegations in the
FBI affidavit filed to justify the raid on Pilot's headquarters.
The complaint charges Pilot's sales staff made false promises "to
the financial benefit of Flying J" and engaged in mail and wire
fraud in carrying out their rebate scheme.
Pilot has hired Washington attorney Reid Weingarten to conduct an
internal investigation of the allegations.
VENOCO INC: Continues to Defend Merger-Related Class Suits
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Venoco, Inc., continues to defend itself against merger-related
class action lawsuits, according to the Company's April 15, 2013,
Form 10-K filing with the U.S. Securities and Exchange Commission
for the year ended December 31, 2012.
In August 2011, Timothy Marquez, the then-Chairman and chief
executive officer of the Company, submitted a nonbinding proposal
to the board of directors of the Company to acquire all of the
shares of the Company he did not beneficially own for $12.50 per
share in cash (the "Marquez Proposal"). As a result of that
proposal, four lawsuits were filed in the Delaware Court of
Chancery in 2011 against the Company and each of its directors by
shareholders alleging that the Company and its directors had
breached their fiduciary duties to the shareholders in connection
with the Marquez Proposal. On January 16, 2012, the Company
entered into a Merger Agreement with Mr. Marquez and certain of
his affiliates pursuant to which, the Company, Mr. Marquez and his
affiliates would effect the going private transaction. Following
announcement of the Merger Agreement, four additional lawsuits
were filed in Delaware and three lawsuits were filed in federal
court in Colorado naming as defendants the Company and each of its
directors.
In March 2013, the plaintiffs in Delaware filed a consolidated
amended class action complaint in which they requested that the
court determine among other things that (i) the merger
consideration is inadequate and the Merger Agreement was entered
into in breach of the fiduciary duties of the defendants and is
therefore unlawful and unenforceable and (ii) the merger should be
rescinded or in the alternative, the class should be awarded
damages to compensate them for the loss as a result of the breach
of fiduciary duties by the defendants. The Colorado actions have
been administratively closed pending resolution of the Delaware
case. The Company has reviewed the allegations contained in the
amended complaint and believes they are without merit.
Founded in 1992 and headquartered in Denver, Colorado, Venoco,
Inc. -- http://www.venocoinc.com/-- is an independent energy
company primarily engaged in the acquisition, exploration,
exploitation and development of oil and natural gas properties.
VISA INC: Judge Won't Hold Merchant Groups in Contempt
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Andrew R. Johnson, writing for the Wall Street Journal, reports
that a federal judge overseeing a $7.25 billion class-action
settlement involving Visa Inc. and MasterCard Inc. said on May 3
he will not hold merchant trade groups in contempt for websites
directed against the settlement.
Judge John Gleeson said during a hearing in U.S. District Court in
Brooklyn that while he felt information presented on the
opposition websites was misleading, he would not sanction them
because previous directions he gave the parties to confer with
class counsel "arguably blurred" his instructions for how they
should amend the sites. He also noted that class counsel, which
supports the settlement, were not advocating to have the trade
groups held in contempt.
Still, he said it appeared the trade groups used the time
following an April 11 hearing at which he ordered the associations
to correct the sites to "continue to obfuscate the different
between opting out and objecting" to the settlement. He also
stressed that the trade groups have a "powerful incentive" to
ensure the information they present is accurate because merchants
who have opted out of the deal based on incorrect information will
have a "remedy" if the settlement receives final approval.
"There will be a remedy for that and that remedy will be here in
this court," Judge Gleeson said.
Judge Gleeson granted preliminary approval to the deal in
November. A hearing on final approval is scheduled for Sept. 12.
Separately on May 3 Judge Gleeson also denied the trade groups'
request to correct information they alleged was incorrect in a
court-approved notice sent to merchants about the settlement.
Jeff Shinder, an attorney representing some of the trade groups
opposing the deal, said on May 3 that he and his clients conferred
with class counsel as instructed and posted a preliminary notice
on the website until both sides could iron out disagreements over
specific language.
"There was no intent . . . to detract from the message that this
was not a court-approved website," Mr. Shinder said.
The websites in question, including merchantsobject.com, were
developed by trade groups including the National Association of
Convenience Stores and National Grocers Association. They have
become the latest flashpoint in an ongoing battle over the pending
settlement, which has draw opposition from retail lobbyists and
large merchants including Wal-Mart Stores Inc., Target Corp. and
Home Depot Inc.
The settlement addresses litigation brought by merchants in 2005
against Visa, MasterCard and several banks, including Bank of
America Corp. and J.P. Morgan Chase & Co. over transaction fees
retailers pay to banks that issue credit cards. The retailers
argued that the defendants conspired to set the transaction fees
at arbitrarily high levels.
Under the settlement, the defendants have proposed paying $6.05
billion to a class of as many as eight million merchants and
temporarily reducing interchange fees by an amount equal to $1.2
billion. Visa and MasterCard also agreed to drop their bans on
surcharging customers who pay with credit cards, a change that
took effect in January.
Merchants can opt out of the financial portion of the settlement
but cannot opt out of the rule changes, which apply to all
retailers. The deadline to opt out is May 28.
Opponents to the deal argue the amount offered is a drop in the
bucket compared to the costs they pay to accept credit cards and
believe it will not prevent the fees from increasing in the
future. They also complain that the settlement gives Visa and
MasterCard overly broad releases from future litigation.
* Carlton Fields Survey Says Class Action Litigation Costs Down
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Across industries and practice areas, class action lawsuits
continue to affect companies, and corporate legal departments are
devising better and more innovative matter management and cost
control tools to combat them. According to the 2(nd) Annual
Carlton Fields Class Action Survey, corporate counsel report that
they are seeing more high-risk matters and fewer routine matters.
Overall, they reported that although class actions are on the rise
by 16 percent, spending per suit is down nearly 14 percent from
2011 to 2012.
Consistent with last year's survey findings, corporate counsel
calculating potential financial exposure based on a rigorous case
assessment and modeling reap the rewards of substantial cost
savings. Companies that employ this strategy spend 38 percent
less per class action and 42 percent less on outside counsel than
companies that do not conduct a rigorous assessment.
"This is a significant finding and it reveals an emerging trend,"
said Chris Coutroulis, chair of both Carlton Fields' Class Action
team and the firm's Litigation Council. "Corporate legal
departments are being more strategic with their class action suits
when they have delved into cases at the outset. Some companies do
this as a part of setting a reserve, but it's not the setting of a
reserve itself that makes the difference -- it's the process of
investigation to reach that number that has an impact. Corporate
counsel can better manage a case when they have evaluated risk and
exposure early on."
This annual class action survey from the law firm of Carlton
Fields, presents important opinions of more than 360 general
counsel, chief legal officers, and direct reports to general
counsel at major corporations (including many Fortune 100-1000)
with average annual revenues of $13.1 billion.
"This survey is a call-to-action for in-house counsel to learn
about successful ways their peers are managing class actions
effectively and better controlling their costs," added
Mr. Coutroulis.
The 2013 survey, which discusses findings on topics ranging from
risk mitigation tools, the impact of recent case law, cost control
approaches, and alternative fee arrangements, presents additional
key findings:
-- Corporate counsel report that "extent of exposure" is the
most important variable when evaluating risk, followed closely by
"probability of win/loss" and "cost of defense."
-- Alternative Fee Arrangements continue to rise. Nearly one-
third of companies rely on AFAs (a 35 percent increase from 2011).
Fixed fees remain the predominant AFA type.
-- Corporate counsel managed an average of 5.1 class actions in
2012, up 16 percent from 2011. They predict the average number of
class actions will dip slightly in 2013.
-- This growth (16 percent) in the number of class actions,
coupled with the number of new class actions remaining relatively
constant, indicates that class actions are taking longer to
resolve.
-- Wal-Mart v. Dukes and AT&T v. Concepcion continue to have an
impact on class action management, yet while 55 percent of
companies include arbitration clauses in contracts, only 21.4
percent of those address class actions.
-- In-house counsel are consolidating law firms used for class
actions from 4.6 in 2011 to 3 in 2012. This contrasts with the
general trend of expanding law firm rosters.
About Carlton Fields
Carlton Fields is a provider of legal and consultative services to
a broad spectrum of business clients ranging from multi-national
Fortune 100 companies to start-ups. With locations in major
business centers in the Southeast and in New York, Carlton Fields
offers to its clients more than 300 attorneys and government
consultants.
* Palo Alto City Council Mulls Lithium Batter Price Fixing Suit
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Eric Van Susteren, writing for Palo Alto Weekly, reports that the
council plans to have a closed session to discuss the construction
of the Mitchell Park Library and Community Center and potential
initiation of class-action litigation involving price fixing in
foreign manufacturing of lithium ion batteries.
* U.S. Spending on High-Risk Class Actions Up More Than 50%
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Ama Sarfo, writing for Law360, reports that U.S. spending on high-
risk class actions has jumped more than 50 percent since 2011 even
as corporations streamlined their class action budgets and dropped
national class action spending by 5 percent to $2.06 billion in
2012, law firm Carlton Fields said in a survey on May 3. An
onslaught of so called bet-the-company class actions, which are
class actions that could seriously impair a corporation's value,
take longer to resolve than other class actions, and are typically
more expensive.
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S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
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 * * *