/raid1/www/Hosts/bankrupt/CAR_Public/130702.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, July 2, 2013, Vol. 15, No. 129
Headlines
ALIMENTATION NOUVELLE: Recalls Products Over Undeclared Allergens
AMERICAN EXPRESS: May Settle Claims Individually, Judge Rules
BAYER INC: Falmouth Woman Joins Birth Control Pill Class Action
CALIFORNIA: Ordered to Release 10,000 Prisoners by End of 2013
CANADA: 4 New Brunswick Women Join Harassment Class Action v. RCMP
CBIZ INC: Continues to Defend Suits Over Mortgages Ltd Bankruptcy
CENTURY ALUMINUM: Parties Yet to File Retiree Benefits Suit Deal
CENTURY ALUMINUM: Stockholders' Bid for Rehearing En Banc Denied
CHEESECAKE FACTORY: Continues to Face Class Suits Over Uniforms
CHESAPEAKE ENERGY: Awaits Ruling on Bid to Dismiss ERISA Suit
CHESAPEAKE ENERGY: Bid to Dismiss Suit Over 2008 Offering Granted
CHESAPEAKE ENERGY: Securities Class Suit Dismissed in April
CLARKS SUMMIT: Faces Class Action Over Payroll Card "Scheme"
COMSCORE INC: Mintz Levin Discusses Class Action Ruling
CONDE NAST: Two Former InternsSue Over Labor Law Violations
COOPER TIRE: Being Sold to Apollo for Too Little, Suit Claims
DECKERS OUTDOOR: Continues to Defend Securities Suit in Delaware
DIGITAL GENERATION: Faces Securities Class Action Suit in Texas
DIVERSICARE HEALTHCARE: Awaits Ruling on Class Certification Bid
DIVERSICARE HEALTHCARE: Continues to Defend Suit in Arkansas
DIVERSICARE HEALTHCARE: Defends Suit Over Covington Transaction
DOLPHIN INTERTRADE: Recalls JaDera & Xiyouji Qingzhi Supplements
DOREL: Recalls 26,558 Child Car Seats in Multiple Models
FRED & FRIENDS: Recalls 56,800 Baby Rattles Due to Choking Hazard
GENVEC INC: Awaits Ruling on Bid to Dismiss "Shah" Class Suit
GLAXOSMITHKLINE: To Pay $150MM Settlement, Judge Rules
HARMONY CHAI: Recalls Black Spiced and Decaffeinated Rooibos Chai
JP MORGAN: To Face Fraud Claims for Charging Unnecessary Fees
KBC AMERICA: Recalls Harley-Davidson Half Motorcycle Helmets
KFORCE INC: Appeal From California Suit Settlement Dismissed
KINDRED HEALTHCARE: Judge Trims FLSA Class Action Claims
MEDIFAST INC: Consolidated Securities Suit Dismissed in March
MRV COMMUNICATIONS: Awaits OK of Settlement of Derivative Suits
MTI GROUPS: Recalls Cic Brand Jams Due to Undeclared Sulfites
NAT'L COLLEGIATE: Seeks Special Consideration for O'Bannon Hearing
NEWCREST MINING: Class Suit Lawyers Circle Over Production Misses
NOVA SCOTIA HOME: Class Action Last Chance for Abuse Victims
NOVOPAY: Second Ministry of Education Manager Resigns
OPKO HEALTH: Faces Suits Over Proposed Acquisition of PROLOR
OXFORD HEALTH: Fisher & Phillips Discusses Court Ruling
PRICEWATERHOUSECOOPERS: Faces Overtime Class Action
RADIAN GROUP: Continues to Defend Suits Alleging RESPA Violations
SEXOFFENDERIN.COM: Sued for Charging Requests to Remove False Info
SMART & FINAL: Faces Overtime Class Action
STANDARD FIRE: Baker & Hostetler Discusses CAFA Removal Standard
STILE PRODUCTS Recalls 175 Tern Folding Bicycles Due to Fall Risk
SWAN CREEK: Recalls 715K Loose Votive Candles Due to Fire Hazard
TELULAR CORP: Faces Suits Over Proposed Acquisition by Avista
TIME WARNER: Faces Class Action Over Unfair Business Practices
TITEFLEX CORP: Faces Class Action Over Defective Piping
TOWNSEND FARMS: Recalls Frozen Organic Antioxidant Blends
TOWNSEND FARMS: Faces Class Action in Nevada Over Tainted Berries
TOYOTA MOTOR: Antioch Dealership Sued for Overcharging Customer
UNITED STATES: Immigration & Customs Enforcement Faces Class Suit
UNITED STATES: NSA Says Plaintiffs Overreacted to Notice
UNITED STATES: 250,000 People Sign Up for Class Action v. NSA
UNITED STATES: Committee Probes Seizure of IRS Medical Records
UNITED STATES: Sen. Paul Takes Steps Toward Surveillance Suit
UNITED STATES: To Grant $150,000 to 6 Judges for COL Adjustments
US POSTAL: Settles Discrimination Class Action for $17.3 Million
VALLEY HOSPITAL: Faces Suit in New Jersey Over Patient's Death
VISA INC: Sues Wal-Mart Over Rejection of Class Action Settlement
WARNER CHAPPELL: Sued Over Happy Birthday Song Copyright
WELLS FARGO: To Pay $500,000 Legal Fees, Judge Rules
WMI HOLDINGS: Distributions to RESPA Suit Class Members Ongoing
WONDER BERRY: Recalls UMNITZA Brand Baby Cereal Products
* COMPAT Rulings May Spur Class Actions in India
* Miami Class Action Attorney Reaches Settlement With Raponi
*********
ALIMENTATION NOUVELLE: Recalls Products Over Undeclared Allergens
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Starting date: June 20, 2013
Type of communication: Recall
Alert sub-type: Allergy Alert
Subcategory: Allergen - Egg, Allergen - Fish,
Allergen - Mustard, Allergen - Soy,
Allergen - Sulphites, Allergen - Wheat
Hazard classification: Class 2
Source of recall: Canadian Food Inspection Agency
Recalling firm: Alimentation Nouvelle Orleans
Distribution: Quebec
Extent of the product
distribution: Hotel/Restaurant/Institutional
CFIA reference number: 8113
Affected products:
Brand name Common name Size Code
---------- ----------- ---- ----
Nouvelle Orleans Bread Crumbs for Fry Chicken 20 kg All
UPC: 6 20066 10927 3
Nouvelle Orleans Epices a Cotes de Boeuf 5 kg All
(French Only)
UPC: 6 20066 71082 0
Nouvelle Orleans Barbecue Sauce - 292 4 L All
UPC: 6 20066 10503 9
Nouvelle Orleans Barbecue Sauce - 292 2x4 L All
UPC: 6 20066 10505 3
Nouvelle Orleans Grill Seasoning - 227 1.5 kg All
UPC: 6 20066 70771 4
Nouvelle Orleans Grill Seasoning - 227 20 kg All
UPC: 6 20066 70773 4
Nouvelle Orleans Mixed Spices 1 kg All
UPC: 6 20066 71112 4
Nouvelle Orleans Dehydrated Vegetables 1 kg All
UPC: 6 20066 70992 3
Nouvelle Orleans Dehydrated Vegetables 5 kg All
UPC: 6 20066 70993 0
Nouvelle Orleans Chocolate Cake Mix 2 kg All
UPC: 6 20066 90785 5
Nouvelle Orleans White Cake Mix 2 kg All
UPC: 6 20066 90775 6
AMERICAN EXPRESS: May Settle Claims Individually, Judge Rules
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Annie Youderian at Courthouse News Service reports that American
Express can force merchants to arbitrate their claims
individually, the Supreme Court ruled June 20, 2013, even if they
cannot recoup their expenses without a class action.
The justices reversed a 2nd Circuit decision invalidating the
credit card company's class-arbitration waiver in favor of
merchants.
Writing for the 8-3 majority, Justice Antonin Scalia explained
that arbitration "is a matter of contract," and "courts must
'rigorously enforce' arbitration agreements according to their
terms" absent instructions from Congress to do otherwise.
"No contrary congressional command requires us to reject the
waiver of class arbitration here," Scalia wrote.
The ruling is a victory for American Express, which faced an
antitrust class action despite the class-arbitration waiver in its
contract.
Merchants claimed the company used its monopoly power to extract
fees that were 30 percent higher than the rates charged by
competing credit card companies.
American Express tried to compel individual arbitration under the
Federal Arbitration Act, but the merchants refused, saying the
cost of proving the antitrust claims would be "at least several
hundred thousand dollars, and might exceed $1 million." The most
an individual merchant could recover was just shy of $40,000,
according to the merchants.
A federal judge sided with American Express and dismissed the
lawsuit, but the 2nd Circuit reversed. The federal appeals court
stood by that decision even after the Supreme Court vacated and
remanded in light of its 2010 decision in Stolt-Nielsen S.A. v.
AnimalFeeds Int'l Corp., which made it harder for consumers to
band together in arbitration proceedings with businesses.
The high court on June 20 rejected the merchants' claim that
courts may invalidate agreements that prevent the "effective
vindication" of a party's legal rights -- the so-called "effective
vindication" exception to the Federal Arbitration Act.
Scalia said this exception applies to a party's "right to pursue
statutory remedies," and doesn't guarantee the right to arbitrate
a class action.
"The fact that it is not worth the expense involved in proving a
statutory remedy does not constitute the elimination of the right
to pursue that remedy," Scalia wrote (original emphasis).
"The regime established by the Court of Appeals' decision would
require -- before a plaintiff can be held to contractually agreed
bilateral arbitration -- that a federal court determine (and the
parties litigate) the legal requirements for success on the merits
claim-by-claim and theory-by-theory, the evidence necessary to
meet those requirements, the cost of developing that evidence, and
the damages that would be recovered in the event of success. Such
a preliminary litigating hurdle would undoubtedly destroy the
prospect of speedy resolution that arbitration in general and
bilateral arbitration in particular was meant to secure," Scalia
concluded.
Voting with Scalia were Chief Justice John Roberts and Justices
Clarence Thomas, Samuel Alito and Anthony Kennedy.
In her dissenting opinion, Justice Elena Kagan said American
Express's contract "imposes a variety of procedural bars that
would make pursuit of the antitrust claim a fool's errand."
"So if the arbitration clause is enforceable, Amex has insulated
itself from antitrust liability -- even if it has in fact violated
the law. The monopolist gets to use its monopoly power to insist
on a contract effectively depriving its victims of all legal
recourse," she wrote.
Justices Ruth Bader Ginsburg and Stephen Breyer joined Kagan in
dissent.
Justice Clarence Thomas wrote a concurring opinion, and Justice
Sonia Sotomayor did not participate in the decision.
BAYER INC: Falmouth Woman Joins Birth Control Pill Class Action
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Michael Lightstone, writing for The Chronicle Herald, reports that
a Falmouth woman whose 18-year-old daughter died after taking a
birth control pill suspected to have contributed to the deaths of
Canadian women has joined a class-action lawsuit against the
popular pill's manufacturer.
Leah Fisher confirmed on June 13 she's part of a suit against drug
giant Bayer Inc.
Her daughter Katelynne died in 2011 after a stroke caused by a
blood clot, CBC News previously reported. The teen had been
taking the prescribed birth control pill Yaz for one month, her
mother said.
At least 23 Canadian women who were taking Yaz or Yasmin have
died, Fisher said.
According to documents CBC obtained from Health Canada, medical
professionals have said Yaz and Yasmin are suspected in the deaths
of these women, most of whom died suddenly after sustaining blood
clots.
"The girls that are suffering either fatal or life-threatening
blood clots are having them in the very early stages of taking
this medication," Ms. Fisher told The Chronicle Herald. "These
are not the people who are on it long term."
Katelynne was a physically fit young woman who'd worked for the
Town of Windsor's recreation department and planned to pursue a
sign-language career. She had been a student at Avon View High
School in Windsor.
"She was only on (Yaz) for a month (and) didn't smoke, didn't
drink. She was very healthy," Ms. Fisher told CBC. "I was in a
state of shock for a long time. I still am on some days."
Ms. Fisher said she wants to see Yaz recalled.
"I would like to see that particular pill pulled off the market,"
she said in an interview. "We have many different kinds of birth
control pills, so why would we use one that has a greater risk?"
Yaz and Yasmin are newer versions of oral contraceptives. The
older pills on the market don't have an increased risk of causing
blood clots, media reports have said.
Bayer launched Yaz in 2006 and Yasmin in 2001. The company has
said the products are safe and pose no greater risk than other
birth control pills.
"Bayer's oral contraceptives have been and continue to be
extensively studied worldwide and for most healthy women of
reproductive age, the benefits . . . will outweigh the risks when
used as directed," says a company statement.
The firm has paid more than $1 billion to settle thousands of
lawsuits in the United States. Ms. Fisher said "there are
different amounts of money being paid out for different things."
In Canada, the class action was launched by a law firm in London,
Ont., and alleges "women were kept in the dark about the increased
risk of blood clots, stroke, heart attack, gallbladder disease and
other medical conditions, compared to women taking other birth
control pills," according to Global News.
Ms. Fisher said she got involved in the suit in the late spring or
early summer of 2011. She said the class action has been
certified and the case should hit the courts in September.
In the meantime, "they have changed the warning label on that
pill," she said. "I think in November 2011 (Bayer) changed it.
"But if we had been aware, and you were given the risk and you're
given the benefits, you get to make an informed decision. We
didn't get that opportunity."
CALIFORNIA: Ordered to Release 10,000 Prisoners by End of 2013
--------------------------------------------------------------
William Dotinga at Courthouse News Service reports that in a
sternly worded rebuke, a panel of federal judges ordered
California to release 10,000 prisoners by the end of 2013 or face
contempt charges.
The battle over California prison overcrowding has spanned five
governors and 23 years since prisoners Ralph Coleman and Marciano
Plata charged that cramped conditions degraded medical and mental
health care. Coleman filed a federal class action in 1990 on
behalf of seriously mentally ill inmates, while Plata filed his
2001 action to improve conditions for prisons with serious medical
conditions.
A three-judge panel for California's Eastern and Northern
Districts first ordered California to reduce its prison population
to 137.5 percent of capacity in 2009, but left state officials to
come up with a specific plan. California appealed the order,
arguing that the panel was convened prematurely and that the
substance of the order was improper.
Though a five-justice majority of the U.S. Supreme Court affirmed
the order in 2011, Justice Antonin Scalia decried the entire
proceedings as "a judicial travesty," and Justice Samuel Alito
wrote that "the Constitution does not give federal judges the
authority to run state penal systems."
California has reduced its inmate population by more than 46,000
since 2006. The 2011 Prison Realignment Act, which sentences
nonviolent, nonserious felons to county jails rather than state
prison, accounts for more than half of that number. Still, the
population remains 9,400 over the capacity mandate.
After the District Courts panel refused to modify its order in
April, state officials submitted an inmate-reduction plan last
month.
The panel concluded June 20, 2013, however, that this plan is
inadequate. It set a Dec. 31 deadline to comply and offered its
own suggestions to relieve overcrowding.
"Because defendants' plan does not comply with our order, this
court hereby orders defendants to implement an additional measure
along with its plan that will bring defendants into compliance:
the expansion of good time credits," the panel wrote. "This
measure, in conjunction with the measures included in the plan
submitted by defendants, will constitute an amended plan-a plan
that will, unlike defendants' plan, reduce the overall prison
population to 137.5 percent design capacity by Dec. 31, 2013.
Defendants are ordered to take all steps necessary to implement
all measures in the amended plan, commencing forthwith,
notwithstanding any state or local laws or regulations to the
contrary."
"All such state and local laws or regulations are hereby waived,
effective immediately," the panel added.
The panel also encouraged prison officials to identify low-risk
inmates and ones unlikely to reoffend and release them first. But
the judges stressed again and again in the 54-page ruling that any
inmates over the 137.5 percent ceiling on Dec. 31 must be released
on that day.
Gov. Jerry Brown also drew sharp criticism from the panel for
terminating his emergency powers earlier this year, in a
proclamation that said "prison overcrowding no longer poses safety
risks to prison staff or inmates, nor does it inhibit the delivery
of timely and effective health care services to inmates."
Doing so eliminated California's ability to ship inmates to out-
of-state prisons and will actually increase the prison population
by 9,500 inmates in coming years, the panel found.
"The governor's declaration that the constitutional crisis in the
prisons had ended and that overcrowding no longer posed health
risks to prisoners or safety risks to prisoners or staff was
contrary to the fact and served no legal purpose other than, by
terminating his own authority with regard to out-of-state prisoner
housing, to make it more difficult for defendants to comply with
this court's orders while publicly proclaiming 'Victory' or
'Mission accomplished,'" the opinion states.
"Defendants have consistently sought to frustrate every attempt by
this court to achieve a resolution to the overcrowding problem,"
the judges added.
The panel ordered state officials to send progress reports
biweekly, rather than monthly as previously ordered. A benchmark
report due on Dec. 15 must include the number of inmates in
California prisons as of Dec. 1, the number permitted by the 137.5
percent capacity cap, and the number of inmates the state expects
to release between Dec. 1 and Dec. 31.
State and local laws requiring felons to be housed in state
prisons are waived by the order effectively immediately, allowing
the prison officials to use fire camps, lease county jail space,
expand parole, use good time credits and keep out-of-state inmates
where they are, the panel ordered. The judges also issued a
blanket waiver for any other regulations that may stand in the way
of officials carrying out the order - staving off any potential
fights in the Legislature.
"We recognize that defendants have stated that they are seeking
legislative approval of the measures in their plan and that
therefore we should delay our issuance of this order, or more
specifically our waiver of contrary state laws and regulations,
until such efforts have been exhausted," the panel wrote.
"However, as of the date of this order there is nothing to suggest
that defendants have made any progress beyond preliminarily
drafting proposed legislation, and it is entirely unrealistic to
believe that the drafted legislation, once submitted, will be
approved. Gov. Brown has stated that he will prepare the necessary
legislation but will not urge its adoption. The leader of the
state Senate has announced that defendants' plan will be DOA,
'dead on arrival.'"
The panel continued: "Much like defendants' argument that a
prisoner release order is unnecessary as the Legislature might
fund additional construction, any notion that the California
Legislature will authorize the measures in the plan is
'chimerical.' The Supreme Court refused to 'ignore the political
and fiscal reality behind this case,' and we will follow that
lead. Waiting months for what is unlikely legislative
authorization will simply amount to yet another unnecessary delay
in the resolution of the ongoing constitutional violations in the
California prison system. This court will not accept such
needless delay."
The plaintiff prisoners wanted the court to hold Gov. Brown in
contempt, but the judges decided to defer resolving on this issue.
Brown's plan for compliance was actually "a plan for non-
compliance," but "we leave that problem for another time," the
panel wrote.
"We order defendants to immediately take all steps necessary to
implement the measures in the amended plan, notwithstanding any
state or local laws or regulations to the contrary and, in any
event, to reduce the prison population to 137.5 percent design
capacity by Dec. 31, 2013," they added.
"Failure to take such steps or to report on such steps every two
weeks shall constitute an act of contempt."
In his own tersely worded statement, Brown -- who has already
lodged an appeal of the order with the Supreme Court -- said he
will fight the panel's decision.
"The state will seek an immediate stay of this unprecedented order
to release almost 10,000 inmates by the end of this year," Brown
said.
CANADA: 4 New Brunswick Women Join Harassment Class Action v. RCMP
------------------------------------------------------------------
CBC News reports that a lawyer representing women who are suing
the RCMP says New Brunswick is not immune to systemic harassment
and gender-based discrimination in the force.
Four women who are or were officers with the Fredericton-based
J Division have joined a class-action lawsuit of nearly 300
people, said Sandy Zaitzeff.
He said he doesn't have permission from the New Brunswick women to
discuss their personal cases.
But he said bullying, sexual innuendo, and in some cases assaults
have occurred.
"We have women, actually, I can think of cases directly in the
Maritimes, where women have moved from detachment to detachment,"
said Mr. Zaitzeff.
"And phone calls are made and the second place they go to becomes
worse than the first place. The third place that they're sent
becomes worse than the second."
Documents earlier filed in B.C. Supreme Court in support of class-
action certification say the lawsuit now includes 282 women from
all territories and provinces across Canada, with the exception of
P.E.I.
The lawyers arguing the case say 100 of the complainants are still
with the force, either as officers, civilian members, or public
service employees.
None of the claims have been proven in court.
The RCMP has declined an offer to mediate, according to Vancouver
class action lawyer David Klein.
The civil suit was filed last year by Janet Merlo, a former RCMP
officer who was based in Nanaimo. Ms. Merlo, who alleges she
suffered bullying and verbal abuse throughout a career that began
in March 1991 and ended in March 2010.
CBIZ INC: Continues to Defend Suits Over Mortgages Ltd Bankruptcy
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CBIZ, Inc., continues to defend itself against lawsuits arising
from the bankruptcy of Mortgages Ltd., according to the Company's
May 10, 2013, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended March 31, 2013.
In 2010, CBIZ, Inc. and its subsidiary, CBIZ MHM, LLC (fka CBIZ
Accounting, Tax & Advisory Services, LLC) (the "CBIZ Parties"),
were named as defendants in lawsuits filed in the U.S. District
Court for the District of Arizona and the Superior Court for
Maricopa County Arizona. The federal court case is captioned
Robert Facciola, et al v. Greenberg Traurig LLP, et al., and the
state court cases are captioned Victims Recovery, LLC v. Greenberg
Traurig LLP, et al, Roger Ashkenazi, et al v. Greenberg Traurig
LLP, et al, Mary Marsh, et al v. Greenberg Traurig LLP, et al.;
and ML Liquidating Trust v. Mayer Hoffman McCann PC, et al. Prior
to these lawsuits CBIZ MHM, LLC was named as a defendant in
Jeffery C. Stone v. Greenberg Traurig LLP, et al. The Stone case
was subsequently voluntarily dismissed by the plaintiff.
These lawsuits arose out of the bankruptcy of Mortgages Ltd., a
mortgage lender to developers in the Phoenix, Arizona area.
Various other professional firms not related to the Company were
also named defendants in these lawsuits.
Mortgages Ltd. had been audited by Mayer Hoffman McCann PC ("Mayer
Hoffman"), a CPA firm that has an administrative services
agreement with CBIZ. The lawsuits assert claims against Mayer
Hoffman for, among others things, violations of the Arizona
Securities Act, common law fraud, and negligent misrepresentation,
and seek to hold CBIZ vicariously liable for Mayer Hoffman's
conduct as either a statutory control person under the Arizona
Securities Act or a joint venturer under Arizona common law. CBIZ
is not a CPA firm, does not provide audits, and did not audit any
of the entities at issue in these lawsuits, nor is CBIZ a control
person of, or a joint venture with, Mayer Hoffman.
In June 2011, the Facciola court, in which the plaintiffs were
seeking to certify a class of all Mortgages Ltd. investors,
granted the motions to dismiss filed by the CBIZ Parties and Mayer
Hoffman. After that dismissal order, the plaintiffs' moved the
court to amend their complaint in an attempt to state a claim
against the CBIZ Parties and Mayer Hoffman. In November 2011, the
Facciola court denied the plaintiffs request to amend the
complaint as to the CBIZ Parties and Mayer Hoffman. In June 2012,
the remaining defendants in the Facciola case reached a class
action settlement, which the court approved in October 2012.
Eighteen class members, however, opted out of the settlement
before it was finalized and, in September 2012, filed a new case
against all of the defendants in the Facciola case, including the
CBIZ Parties (Rader et al. v. Greenberg Traurig, LLC, et al.). In
December 2012, the Facciola plaintiffs filed an appeal to the U.S.
Court of Appeals for the Ninth Circuit of the dismissal of their
case against the CBIZ Parties and Mayer Hoffman. That appeal is
currently pending.
The plaintiffs, except for the ML Liquidating Trust, are all
alleged to have directly or indirectly invested in real estate
mortgages through Mortgages Ltd. The Victims Recovery, Ashkenazi
and Marsh plaintiffs seek monetary damages equivalent to their
alleged losses on those investments. The ML Liquidating Trust
asserts errors and omissions and breach of contract claims and is
seeking monetary damages. The Ashkenazi complaint alleges damages
of approximately $92 million; the Victims Recovery complaint
alleges damages of approximately $53 million; the Marsh, Facciola,
Rader, and ML Liquidating Trust complaints allege damages in
excess of approximately $200 million. The plaintiffs in these
lawsuits also seek pre- and post-judgment interest, punitive
damages and attorneys' fees.
The CBIZ Parties filed motions to dismiss in all remaining cases.
On March 11, 2013, the court issued a ruling dismissing the
securities fraud and aiding and abetting securities fraud claims
against the CBIZ Parties and Mayer Hoffman in the Marsh, Victims
Recovery and Ashkenazi lawsuits, and also dismissed certain other
claims in the Ashkenazi and Victims Recovery cases.
Subsequently, the CBIZ Parties and Mayer Hoffman, without
admitting any liability, reached a settlement in the Victims
Recovery lawsuit. As part of the settlement, the CBIZ Parties did
not pay any monetary amounts. The Victims Recovery complaint had
alleged damages of approximately $53 million.
On April 12, 2013, the court denied the CBIZ Parties' motion to
dismiss the remaining claims in the Ashkenazi lawsuit. On May 7,
2013, the court in the ML Liquidating Trust lawsuit issued a
ruling dismissing claims for deepening insolvency damages,
negligence and breach of contract and holding that any claims
related to the 2004 and 2005 Mayer Hoffman audits were barred by
the statute of limitations. The court denied the motion as the
negligent misrepresentation claim. The court is still considering
the CBIZ Parties' motions to dismiss regarding the remaining
claims in the Marsh lawsuit as well as its motions in the Rader
lawsuit.
The CBIZ Parties deny all allegations of wrongdoing made against
them in these actions and are vigorously defending the remaining
proceedings. In particular, the CBIZ Parties are not control
persons under the Arizona Securities Act of, or a joint venture
with Mayer Hoffman. The CBIZ Parties do not have, in any
respects, the legal right to control Mayer Hoffman's audits or any
say in how the audits are conducted. The Company has been advised
by Mayer Hoffman that it denies all allegations of wrongdoing made
against it and that it intends to continue vigorously defending
the matters.
CBIZ, Inc., a Delaware corporation headquartered in Cleveland,
Ohio, provides professional business services, products and
solutions that help its clients grow and succeed by better
managing their finances and employees. These services are
provided to businesses of various sizes, as well as individuals,
governmental entities and not-for-profit enterprises throughout
the United States and parts of Canada.
CENTURY ALUMINUM: Parties Yet to File Retiree Benefits Suit Deal
----------------------------------------------------------------
The parties in a class action lawsuit filed by a subsidiary of
Century Aluminum Company have yet to file with the court their
final settlement, according to the Company's May 10, 2013, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended March 31, 2013.
Century Aluminum of West Virginia, Inc. ("CAWV") amended its
postretirement medical benefit plan, effective January 1, 2010,
for all current and former CAWV salaried employees, their
dependents and all bargaining unit employees who retired before
June 1, 2006, and their dependents. Effective January 1, 2011,
CAWV no longer provided retiree medical benefits to active
salaried CAWV personnel or any other personnel who retired prior
to November 1, 2010.
In November 2009, CAWV filed a class action complaint for
declaratory judgment against the United Steel, Paper and Forestry,
Rubber, Manufacturing, Energy, Allied Industrial and Service
Workers International Union ("USWA"), the USWA's local union, and
four CAWV retirees, individually and as class representatives,
seeking a declaration of CAWV's rights to modify/terminate retiree
medical benefits. Later in November 2009, the USWA and
representatives of a retiree class filed a separate lawsuit
against CAWV, Century Aluminum Company, Century Aluminum Master
Welfare Benefit Plan, and various John Does with respect to the
foregoing. These actions, entitled Dewhurst, et al. v. Century
Aluminum Co., et al., and Century Aluminum of West Virginia, Inc.
v. United Steel, Paper and Forestry, Rubber Manufacturing, Energy,
Allied Industrial & Service Workers International Union, AFL-
CIO/CLC, et al., have been consolidated and venue has been set in
the District Court for the Southern District of West Virginia.
In January 2010, the USWA filed a motion for preliminary
injunction to prevent the Company from implementing the changes
while these lawsuits are pending, which was dismissed by the trial
court. In August 2011, the Fourth Circuit Court of Appeals upheld
the District Court's dismissal of the USWA's motion for
preliminary injunction. The case is currently in the discovery
stage. The parties have agreed in principle to settle the lawsuit
upon a successful restart of the Company's facility in Ravenswood,
West Virginia.
Century Aluminum Company -- http://www.centuryaluminum.com/--
through its subsidiaries, produces primary aluminum in the United
States, China, and Iceland. The Company also holds a 40% joint
venture interest in a carbon anode and cathode facility located in
the Guangxi Zhuang Autonomous Region of south China. The Company
was founded in 1981 and is headquartered in Monterey, California.
CENTURY ALUMINUM: Stockholders' Bid for Rehearing En Banc Denied
----------------------------------------------------------------
The Stockholder Plaintiffs' motion for rehearing or hearing en
banc was denied in April 2013, according to Century Aluminum
Company's May 10, 2013, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended March 31, 2013.
In March 2011, the purported stockholder class actions pending
against the Company consolidated as In re: Century Aluminum
Company Securities Litigation were dismissed with prejudice by the
United States District Court for the Northern District of
California. The plaintiffs in the class actions allege that the
Company improperly accounted for cash flows associated with the
termination of certain forward financial sales contracts which
accounting allegedly resulted in artificial inflation of the
Company's stock price and investor losses. The Plaintiffs are
seeking rescission of the Company's February 2009 common stock
offering, unspecified compensatory damages, including interest
thereon, costs and expenses and attorneys' fees. In March 2011,
plaintiffs filed a notice of appeal to the order and judgment
entered by the trial court. In January 2013, the U.S. Court of
Appeals for the Ninth Circuit (the "Ninth Circuit") affirmed the
trial court's decision. The Plaintiffs filed a motion for
rehearing or hearing en banc, which the Ninth Circuit denied in
April 2013.
Century Aluminum Company -- http://www.centuryaluminum.com/--
through its subsidiaries, produces primary aluminum in the United
States, China, and Iceland. The Company also holds a 40% joint
venture interest in a carbon anode and cathode facility located in
the Guangxi Zhuang Autonomous Region of south China. The Company
was founded in 1981 and is headquartered in Monterey, California.
CHEESECAKE FACTORY: Continues to Face Class Suits Over Uniforms
---------------------------------------------------------------
The Cheesecake Factory Incorporated continues to face class action
lawsuits over the purchase of uniforms for work, according to the
Company's May 10, 2013, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended April 2, 2013.
On April 11, 2013, a current restaurant hourly employee filed a
class action lawsuit in the California Superior Court, Placer
County, alleging that the Company violated the California Labor
Code and California Business and Professions Code, by requiring
employees to purchase uniforms for work, (Sikora v. The Cheesecake
Factory Restaurants, Inc., et al; Case No SCV0032820). A similar
lawsuit covering a different period of time is also pending in
Placer County, Reed v. The Cheesecake Factory Restaurants, Inc. et
al; Case No. S CV 27073). The Company is also arbitrating similar
uniform and related issues under federal law in separate
collective actions in Alabama, Colorado, Ohio, Tennessee, and
Texas, Smith v. The Cheesecake Factory Restaurants, Inc. et al;
Case No. 3 06 0829). These lawsuits and arbitrations seek
unspecified amounts of penalties and other monetary payments on
behalf of the respective plaintiffs and other purported class
members. The plaintiffs also seek attorneys' fees. The Company
says it intends to vigorously defend these actions. Based on the
current status of these matters, the Company has not reserved for
any potential future payments.
The Cheesecake Factory Incorporated operates 174 upscale, casual,
full-service dining restaurants: 162 under The Cheesecake
Factory(R) mark; 11 under the Grand Lux Cafe(R) mark; and one
under the RockSugar Pan Asian Kitchen(R) mark. The Cheesecake
Factory is an upscale, casual dining concept offering menu items,
including appetizers, pizza, seafood, steaks, chicken, burgers,
pasta, specialty items, salads, sandwiches, omelettes and
desserts. Grand Lux Cafe and RockSugar Pan Asian Kitchen are also
upscale, casual dining concepts. The Calabasas Hills, California-
based Company also operates two bakery production facilities.
CHESAPEAKE ENERGY: Awaits Ruling on Bid to Dismiss ERISA Suit
-------------------------------------------------------------
Chesapeake Energy Corporation is awaiting a court decision on its
motion to dismiss a class action lawsuit alleging violations of
the Employee Retirement Income Security Act, according to the
Company's May 10, 2013, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended March 31, 2013.
On June 19, July 17, and July 20, 2012, putative class actions
were filed in the U.S. District Court for the Western District of
Oklahoma against the Company, Chesapeake Energy Savings and
Incentive Stock Bonus Plan (the Plan), and certain of the
Company's officers and directors alleging breaches of fiduciary
duties under the Employee Retirement Income Security Act (ERISA).
The actions are brought on behalf of participants and
beneficiaries of the Plan, and allege that as fiduciaries of the
Plan, defendants owed fiduciary duties, which they purportedly
breached by, among other things, failing to manage and administer
the Plan's assets with appropriate skill and care, and engaging in
activities that were in conflict with the best interest of the
Plan. The plaintiffs seek class certification, damages of an
unspecified amount, equitable relief, and attorneys' fees and
other costs. The three cases have been consolidated and a
consolidated amended complaint was filed on February 21, 2013.
The defendants filed a motion to dismiss on April 22, 2013. The
Company is currently unable to assess the probability of loss or
estimate a range of potential loss associated with this matter.
Chesapeake Energy Corporation -- http://www.chk.com/-- is a
producer of natural gas, a producer of oil and natural gas liquids
and an active driller of new wells in the United States of
America. Headquartered in Oklahoma City, Oklahoma, the Company's
operations are focused on discovering and developing
unconventional natural gas and oil fields onshore in the U.S.
CHESAPEAKE ENERGY: Bid to Dismiss Suit Over 2008 Offering Granted
-----------------------------------------------------------------
Chesapeake Energy Corporation and other defendants' motion to
dismiss a class action lawsuit over its July 2008 common stock
offering was granted in March, according to the Company's May 10,
2013, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended March 31, 2013.
On February 25, 2009, a putative class action was filed in the
U.S. District Court for the Southern District of New York against
the Company and certain of its officers and directors along with
certain underwriters of the Company's July 2008 common stock
offering. Following the appointment of a lead plaintiff and
counsel, the plaintiff filed an amended complaint on September 11,
2009, alleging that the registration statement for the offering
contained material misstatements and omissions and seeking damages
under Sections 11, 12 and 15 of the Securities Act of 1933 of an
unspecified amount and rescission. The action was transferred to
the U.S. District Court for the Western District of Oklahoma on
October 13, 2009. On September 2, 2010, the court denied the
defendants' motion to dismiss, and the court certified the class
on March 30, 2012. The Defendants moved for summary judgment on
grounds of loss causation and materiality on December 16, 2011,
and the motion was granted as to all claims as a matter of law on
March 29, 2013.
Chesapeake Energy Corporation -- http://www.chk.com/-- is a
producer of natural gas, a producer of oil and natural gas liquids
and an active driller of new wells in the United States of
America. Headquartered in Oklahoma City, Oklahoma, the Company's
operations are focused on discovering and developing
unconventional natural gas and oil fields onshore in the U.S.
CHESAPEAKE ENERGY: Securities Class Suit Dismissed in April
-----------------------------------------------------------
A securities class action lawsuit against Chesapeake Energy
Corporation was dismissed in April 2013, according to the
Company's May 10, 2013, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended March 31, 2013.
A putative class action was filed in the U.S. District Court for
the Western District of Oklahoma on April 26, 2012, against the
Company and Aubrey K. McClendon, the Company's president and chief
executive officer, alleging violations of Sections 10(b) (and Rule
10b-5 promulgated thereunder) and 20(a) of the Securities Exchange
Act of 1934. On July 20, 2012, the court appointed a lead
plaintiff, which filed an amended complaint on October 19, 2012,
against the Company, Mr. McClendon and certain other officers.
The amended complaint asserted claims under Sections 10(b) (and
Rule 10b-5) and 20(a) of the Securities Exchange Act of 1934 based
on alleged misrepresentations regarding the Company's asset
monetization strategy, including liabilities associated with its
volumetric production payment (VPP) transactions, as well as Mr.
McClendon's personal loans and the Company's internal controls.
The action sought class certification, damages of an unspecified
amount and attorneys' fees and other costs. On December 6, 2012,
the Company and other defendants filed a motion to dismiss the
action. The Court granted the motion and dismissed the complaint
with prejudice on April 10, 2013.
Chesapeake Energy Corporation -- http://www.chk.com/-- is a
producer of natural gas, a producer of oil and natural gas liquids
and an active driller of new wells in the United States of
America. Headquartered in Oklahoma City, Oklahoma, the Company's
operations are focused on discovering and developing
unconventional natural gas and oil fields onshore in the U.S.
CLARKS SUMMIT: Faces Class Action Over Payroll Card "Scheme"
------------------------------------------------------------
Bob Kalinowski and Michael R. Sisak, writing for Citizen's Voice,
report that Natalie Gunshannon filed a class-action lawsuit on
June 13 in Luzerne County court against a local McDonald's
franchisee.
She spent her days serving up Happy Meals, but when it came time
to get paid, Ms. Gunshannon says a local McDonald's franchisee
gave her an unhappy deal.
The Shavertown McDonald's forces workers to be paid only one way:
with a payroll debit card that burdens workers with hefty fees to
obtain their hard-earned cash, according to a lawsuit filed on
June 13 on behalf of Ms. Gunshannon and other McDonald's workers.
Ms. Gunshannon and an untold number of current and former
employees had no option to receive a traditional paycheck or get
paid by direct deposit, she and her attorneys said in the class-
action against franchise owners Albert and Carol Mueller of Clarks
Summit.
"I'm looking for the pay I am owed and for them to understand
there has to be an option," Ms. Gunshannon, 27, said on June 13
outside her Dallas Township residence.
Ms. Gunshannon, who worked at the Shavertown McDonald's for a
month after being hired April 24, refused to activate the payroll
card after reviewing the fee structure, quit the job and reached
out to an attorney to see if the practice was legal.
Attorney Michael J. Cefalo of West Pittston and his law firm then
drafted a class-action lawsuit against the Muellers, who own 15
other McDonald's locations throughout Northeastern Pennsylvania.
Filed in Luzerne County Court, the suit accused the Muellers and
their limited partnership of violating the Pennsylvania Wage
Payment and Collection Act and unlawfully boosting profits with
the payroll card "scheme."
The suit seeks an unspecified amount of monetary damages on behalf
of employees and asks a judge to award punitive damages against
the company for its "ill-gotten gains contrary to justice, equity,
good conscience and Pennsylvania law."
Beth Dal Santo, a spokeswoman for an association of McDonald's
franchisees in the region, said the Muellers had not been served
with the lawsuit Thursday and would not comment.
The couple, who immigrated to the U.S. from Germany separately in
the 1950s, were honored by the Salvation Army in 2011 for their
support of that organization and the Ronald McDonald House in
Scranton. Their business practices, Ms. Gunshannon said, were much
less charitable.
Ms. Gunshannon said the manager of the Muellers' Shavertown
location refused to issue her a paper paycheck or pay via direct
deposit, saying, "We only pay on the card." An executive working
for the Muellers, she said, gave her an ultimatum: "If you don't
activate the card, there is no way for us to pay you. You can
activate the card or we can't pay you."
The J.P. Morgan Chase payroll card carries fees for nearly every
type of transaction, according to the lawsuit, including a $1.50
charge for ATM withdrawals, $5 for over-the-counter cash
withdrawals, $1 to check the balance, 75 cents per online bill
payment and $10 per month if the card is left inactive for more
than three months.
A spokeswoman for the McDonald's Corp., which is not named as a
defendant in the lawsuit, did not respond to a telephone message
and emailed questions on June 13 about the company's guidelines
for how its franchisees should pay employees.
Mr. Cefalo said they filed the lawsuit on behalf of all current
and former employees who were paid with payroll cards without
being given the option of receiving their wages in cash or via a
check. State law, he said, requires wages be paid in "lawful
money" or with a check.
The definition of "lawful money" is unclear, but the state
Department of Labor and Industry and state banking regulators have
endorsed payroll cards as a legal form of wage payment, according
to the American Payroll Association, an industry trade
association.
In a 2008 letter to the association, Labor and Industry officials
advised employers to obtain employee authorization before paying
wages with payroll cards or through direct deposit. In 2005, the
state Department of Banking concluded the use of payroll cards did
not violate any laws within its jurisdiction.
The association, in a 2009 letter to state regulators, said it was
not clear whether employers in the state could "implement purely
electronic wage payment programs" without offering employees the
option of a paper paycheck, but courts in the state have held that
employers could make electronic wage payment a condition of
employment.
A spokeswoman for the state Department of Labor and Industry said
Thursday the department was researching the matter.
The use of payroll cards as a method of wage payment exploded over
the last decade, after credit card giants Visa and MasterCard said
in 2001 they would invest heavily in paperless pay systems,
according to Office of the Comptroller of the Currency, a federal
bank regulator. Electronic pay systems eliminate the need for
printing paper checks and the processing fees associated with
traditional payroll methods, cutting wage-related costs by as much
as 50 percent, according to Automatic Data Processing Inc., the
payroll processing firm.
The Federal Deposit Insurance Corporation estimated that $60
billion in wages will be distributed through payroll cards next
year.
Walmart, the largest private employer in the U.S., switched to
paperless pay in 2009, with about half its 1.4 million employees
receiving direct deposit and half receiving paycheck cards. The
Home Depot, Lowes, United Parcel Service, FedEx and hundreds of
other large employers use payroll cards. The Chicago Public
Schools system uses them to pay more than 4,000 student employees.
A memorandum posted on ADP's website described payroll cards as "a
more convenient and cost effective way to access your pay than
checks." The benefits, the memorandum said, included convenience
-- wages are added automatically each payday -- and the
flexibility of accessing pay without having a bank account or
paying check-cashing fees.
The memorandum, however, did not address the ATM withdrawal,
balance inquiry and other fees associated with the payroll cards
Ms. Gunshannon said she received in lieu of cash or a paper
paycheck.
Ms. Gunshannon noted the ATM withdrawal fee would be $1.50 if she
used a Chase ATM.
The problem, she noted, is there isn't a Chase ATM for more than
60 miles of her home, the nearest being in Phillipsburg, N.J. If
she used the card to withdraw money at a non-Chase ATM, the fee
with be an additional several dollars, she said.
Ms. Gunshannon, who estimated the company owes her about $200,
said she pursued the lawsuit because she thinks workers should
have a choice in how they are paid to avoid such fees.
"I tried to work with the company. They refused. I tried the
main office in Clarks Summit. They refused," Ms. Gunshannon said.
"I never activated the card. I refused the fees. I just want it
to be fair."
COMSCORE INC: Mintz Levin Discusses Class Action Ruling
-------------------------------------------------------
Kevin M. McGinty, Esq. -- KMcGinty@mintz.com -- and Evan Nadel,
Esq. -- ENadel@mintz.com -- at Mintz, Levin, Cohn, Ferris, Glovsky
and Popeo, P.C., report that in its recent decision in Harris v.
comScore, Inc., the Seventh Circuit declined to review a trial
court order certifying a plaintiff class consisting of hundreds of
thousands of computer owners who downloaded software that
permitted comScore, Inc. to track internet traffic and usage. The
comScore software was not supposed to load onto a computer unless
the user affirmatively accepted a click wrap agreement that
disclosed how comScore tracked and utilized the users' data.
Plaintiffs allege that the software sometimes loaded onto
computers without giving users the opportunity to read and accept
the click wrap agreement, but primarily claim that comScore
accesses and uses data in ways that violate its agreement.
Plaintiffs seek damages for unjust enrichment and allege
violations of the Stored Communications Act ("SCA"), 18 U.S.C.
Sec. 2701(a)(1), the Electronic Communications Privacy Act
("ECPA"), 18 U.S.C. Sec. 2511(1)(a), (d), and the Computer Fraud
and Abuse Act ("CFAA"), 18 U.S.C. Sec. 1030(a)(2)(C).
Plaintiffs moved to certify a class consisting of all persons in
every state in the U.S. who downloaded the comScore software.
Plaintiffs argued that the alleged policy of accessing and using
their data in a manner contrary to the express terms of the
comScore click wrap agreement meant that common issues of law and
fact predominated with respect to the claimed violations of state
and federal law. In opposition, comScore raised a host of issues,
including questions about whether both named plaintiffs actually
downloaded the software, whether the identity of class members was
ascertainable through objective criteria, whether certain class
claims were timely, and whether the injury or loss could be
established through proof common to the class as a whole.
The trial court declined to certify a class to pursue the unjust
enrichment claims, concluding that substantial variations in
applicable state laws made it impossible to adjudicate the unjust
enrichment claims of the multistate class in a single action. The
court did, however, certify a class to pursue the federal
statutory claims. The court conceded that proof of some issues
might vary for some class members, but ultimately found that the
core issue in the case -- whether comScore's use of data violated
the terms of its own agreement -- could be addressed by proof
common to the class as a whole. Reinforcing this conclusion was
the availability of mandatory statutory damages under the SCA and
ECPA, which avoided individual questions about loss or injury that
often preclude certification of classes alleging misuse of data
under state common law and consumer protection causes of action.
A petition to the Seventh Circuit seeking review of the class
certification decision under Rule 23(f) promptly followed. Under
that rule, appellate courts have the discretion to review class
certification decisions directly where there is a likely error of
law or close question of first impression. The Seventh Circuit
denied the petition without opinion, making it impossible to know
the precise ground for denial.
The objections to class certification identify strong arguments
for comScore on the merits. Most significantly, comScore raises
serious questions about the validity of plaintiffs' claim that
comScore violates the terms of its own agreements. That
particular question, however, is plainly common to the class as a
whole. Most of the arguments that comScore makes -- particularly
with respect to statute of limitations, the specific types of
violations committed, and whether it is possible to identify class
members whose downloads are not recorded in comScore's records --
provide better grounds for narrowing the class than for doing away
with it altogether. Finally, because the SCA and ECPA permit
recovery of statutory damages without proof of financial loss, the
claims advanced in Harris do not pose the types of individualized
issues concerning fact of injury that often block certification of
other types of data privacy claims.
These considerations demonstrate why companies that track and
utilize consumer data need to be mindful of class action exposure
that could result from any alleged failure to obtain consumer
consent to use of data, or claimed uses that exceed the scope of
that consent. A company accessing or using data pursuant to the
terms of a click wrap agreement needs to exercise particular care
to ensure (i) that data is not used or accessed unless the user
has entered into an agreement (proof of which the company
retains); (ii) that the agreement clearly discloses how the
company accesses the data and what it does with that data; and
(iii) that the company does not use or access the data in any
manner that is inconsistent with its agreement.
CONDE NAST: Two Former InternsSue Over Labor Law Violations
-----------------------------------------------------------
Conde Nast, the worldwide publisher of fashion, culture, food and
home magazines, illegally employs interns in violation of federal
and state labor laws, Outten & Golden LLP alleged on June 13 in
New York federal court.
The class action complaint, filed on behalf of two former interns
who worked at W Magazine and The New Yorker, accuses Advance
Magazine Publishers, Inc., which does business as Conde Nast
Publications, of failing to pay interns proper wages for the work
they perform in violation of the federal Fair Labor Standards Act
(FLSA) and the New York Labor Law (NYLL).
The lawsuit contends the interns are covered by the FLSA and NYLL,
which require that interns engaged in the operations of the
employer or performing productive work benefit the employer and
must be paid the minimum wage even if they receive some benefits
in the form of a new skill or improved work habits.
As an intern at Conde Nast, Ms. Ballinger worked in W Magazine's
accessories and fine jewelry departments in 2009, packing and
unpacking accessories and jewelry, sorting through and organizing
accessories and jewelry, running errands, filling out insurance
forms, and doing other productive work. Mr. Leib worked for Conde
Nast at The New Yorker in 2009 and 2010, reviewing submissions and
passing on those that he recommended to his supervisors,
responding to readers' emails, proofreading, line editing, and
relaying pieces between writers, cartoonists, and editors.
The interns are represented by Adam T. Klein, Rachel Bien, and
Juno Turner of Outten & Golden's New York office.
Mr. Klein said, "Our complaint explains that instead of following
the law, Conde Nast relies on a steady stream of interns to
perform entry-level work that contributes to its magazines'
operations and reduces its labor costs."
Ms. Bien said, "Our clients and other interns contend that they
were as integral to Conde Nast's business as other employees, but
with one major difference: the interns didn't even make minimum
wage.
Ms. Turner said, "This case is about the fundamental principle
that if you work, you must be paid. Our clients seek to end the
wage theft endemic in the media industry."
Outten & Golden will seek to have the lawsuit certified as a class
action to recover unpaid wages, interest, and attorneys' fees and
costs for interns who worked for the fashion, accessories, and
fine jewelry departments at Conde Nast magazines between June 13,
2007 and the date of a final judgment.
This case is "Lauren Ballinger and Matthew Leib, et al., v.
Advance Magazine Publishers, Inc. d/b/a Conde Nast Publications,"
No 13 Civ. 4036, in the U.S. District Court, Southern District of
New York.
Interns seeking more information should contact Juno Turner at
jturner@outtengolden.com or 1-877-4OUTTEN or visit
http://www.outtengolden.comor
http://www.unpaidinternslawsuit.com
Outten & Golden -- http://www.outtengolden.com-- represents
interns in three other lawsuits. In "Glatt v. Fox Searchlight
Pictures Inc.," No. 11 Civ. 6784, a U.S. District Court in the
Southern District of New York concluded that Fox illegally failed
to pay wages to its interns, and granted class action status. The
others are "Wang v. The Hearst Corporation," No. 12 Civ. 0793, in
the Southern District of New York, and "Bickerton v. Charles Rose
and Charlie Rose, Inc.," No. 650780/2012 in the New York Supreme
Court.
COOPER TIRE: Being Sold to Apollo for Too Little, Suit Claims
-------------------------------------------------------------
Directors are selling Cooper Tire & Rubber Co. too cheaply through
an unfair process to Apollo Tyres, for $35 a share or $2.5
billion, shareholder claim in Chancery Court.
DECKERS OUTDOOR: Continues to Defend Securities Suit in Delaware
----------------------------------------------------------------
Deckers Outdoor Corporation continues to defend a securities class
action lawsuit pending in Delaware, according to the Company's
May 10, 2013, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended March 31, 2013.
On May 31, 2012, a purported shareholder class action lawsuit was
filed in the United States District Court for the Central District
of California against the Company and certain of its officers. On
August 1, 2012, a similar purported shareholder class action
lawsuit was filed in the United States District Court for the
District of Delaware against the Company and certain of its
officers. These actions are purportedly brought on behalf of
purchasers of the Company's publicly traded securities between
October 27, 2011, and April 26, 2012. The Plaintiffs in both
complaints allege that defendants made false and misleading
statements, purport to assert claims for violations of the federal
securities laws, and seek unspecified compensatory damages and
other relief. The California case has been dismissed with
prejudice; the Delaware action remains pending. The Company
believes the claim in the Delaware complaint is without merit and
intends to defend the action vigorously. While the Company
believes there is no legal basis for liability, due to the
uncertainty surrounding the litigation process, the Company is
unable to reasonably estimate a range of loss, if any, at this
time.
Goleta, California-based Deckers Outdoor Corporation --
http://www.deckers.com/-- was incorporated in 1975 in California
and, in 1993, reincorporated in Delaware. The Company designs and
markets innovative, functional and fashion-oriented footwear
developed for both high performance outdoor activities and
everyday casual lifestyle use.
DIGITAL GENERATION: Faces Securities Class Action Suit in Texas
---------------------------------------------------------------
Digital Generation, Inc., is facing a securities class action
lawsuit in Texas, according to the Company's May 10, 2013, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended March 31, 2013.
On May 2, 2013, a purported securities class action complaint was
filed in the U.S. District Court for the Northern District of
Texas, entitled Anastacia Shaffer v. Digital Generation, Inc., et
al., No. 3:13-cv-1684, alleging civil violations of Sections 10(b)
and 20(a) of the Securities Exchange Act of 1934, as amended, and
Rule 10b-5 thereunder. The complaint names as defendants the
Company and certain of its current and former officers. The
purported class period is alleged to be June 20, 2011, through
February 19, 2013.
The Company believes the outcome of this case is not likely to
have a material adverse effect on its operating results and the
Company intends to defend it vigorously. The Company believes the
purported claims and its defense costs will qualify under its
insurance coverage, less the applicable deductible.
Digital Generation, Inc., operates an ad management and
distribution platform. The Irving, Texas-based Company helps
advertisers engage with consumers across television and online
media, while delivering timely and impactful ad campaigns.
DIVERSICARE HEALTHCARE: Awaits Ruling on Class Certification Bid
----------------------------------------------------------------
Diversicare Healthcare Services, Inc., is awaiting a court
decision on a motion for conditional certification of a nationwide
class of all of its hourly employees, according to the Company's
May 10, 2013, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended March 31, 2013.
In December 2011 and June 2012, two purported collective action
complaints were filed in the U.S. District Court for the Middle
District of Tennessee and the U.S. District Court for the Western
District of Arkansas, respectively, against the Company and
certain of its subsidiaries. The complaints allege that the
defendants violated the Fair Labor Standards Act (FLSA) and seek
unpaid overtime wages. The Middle Tennessee action was resolved
by settlement and dismissed in 2012. The Plaintiffs in the
Arkansas action have moved for conditional certification of a
nationwide class of all of the Company's hourly employees. The
Company will defend the lawsuit vigorously.
The Company says it cannot currently predict with certainty the
ultimate impact of the case on its financial condition, cash flows
or results of operations. The Company's reserve for professional
liability expenses does not include any amounts for collective
actions, purported class action against Garland Nursing &
Rehabilitation Center (the "Facility") or the lawsuit filed
against the Company's directors. An unfavorable outcome in any of
these lawsuits or any of the Company's professional liability
actions, any regulatory action, any investigation or lawsuit
alleging violations of fraud and abuse laws or of elderly abuse
laws or any state or Federal False Claims Act case could subject
the Company to fines, penalties and damages, including exclusion
from the Medicare or Medicaid programs, and could have a material
adverse impact on the Company's financial condition, cash flows or
results of operations.
Brentwood, Tennessee-based Diversicare Healthcare Services, Inc.,
provides long-term care services to nursing center patients in
eight states, primarily in the Southeast and Southwest (Alabama,
Arkansas, Florida, Kentucky, Ohio, Tennessee, Texas and West
Virginia). The Company's centers provide a range of health care
services to their patients and residents that include nursing,
personal care, and social services.
DIVERSICARE HEALTHCARE: Continues to Defend Suit in Arkansas
------------------------------------------------------------
Diversicare Healthcare Services, Inc., continues to defend itself
and its subsidiaries against a class action lawsuit pending in
Arkansas, according to the Company's May 10, 2013, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended March 31, 2013.
In January 2009, a purported class action complaint was filed in
the Circuit Court of Garland County, Arkansas, against the Company
and certain of its subsidiaries and Garland Nursing &
Rehabilitation Center (the "Facility"). The complaint alleges
that the defendants breached their statutory and contractual
obligations to the patients of the Facility over the past five
years. The lawsuit remains in its early stages and has not yet
been certified by the court as a class action. The Company
intends to defend the lawsuit vigorously.
The Company says it cannot currently predict with certainty the
ultimate impact of the case on its financial condition, cash flows
or results of operations. The Company's reserve for professional
liability expenses does not include any amounts for collective
actions, purported class action against Garland Nursing &
Rehabilitation Center (the "Facility") or the lawsuit filed
against the Company's directors. An unfavorable outcome in any of
these lawsuits or any of the Company's professional liability
actions, any regulatory action, any investigation or lawsuit
alleging violations of fraud and abuse laws or of elderly abuse
laws or any state or Federal False Claims Act case could subject
the Company to fines, penalties and damages, including exclusion
from the Medicare or Medicaid programs, and could have a material
adverse impact on the Company's financial condition, cash flows or
results of operations.
Brentwood, Tennessee-based Diversicare Healthcare Services, Inc.,
provides long-term care services to nursing center patients in
eight states, primarily in the Southeast and Southwest (Alabama,
Arkansas, Florida, Kentucky, Ohio, Tennessee, Texas and West
Virginia). The Company's centers provide a range of health care
services to their patients and residents that include nursing,
personal care, and social services.
DIVERSICARE HEALTHCARE: Defends Suit Over Covington Transaction
---------------------------------------------------------------
Diversicare Healthcare Services, Inc., is defending a class action
lawsuit arising from Covington Investments, LLC's expressions of
interest in a potential strategic transaction, according to the
Company's May 10, 2013, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended March 31, 2013.
On May 16, 2012, a purported stockholder class action complaint
was filed in the U.S. District Court for the Middle District of
Tennessee, against the Company's Board of Directors. This action
alleges that the Board of Directors breached its fiduciary duties
to stockholders related to its response to certain expressions of
interest in a potential strategic transaction from Covington
Investments, LLC ("Covington"). The complaint asserts that the
Board failed to negotiate or otherwise appropriately consider
Covington's proposals. In November 2012, the lawsuit was
dismissed without prejudice for lack of subject matter
jurisdiction. The action was refiled in the Chancery Court for
Williamson County, Tennessee (21st Judicial District), on
November 30, 2012. The lawsuit remains in its early stages and
has not yet been certified by the court as a class action. The
Company says it intends to defend the matter vigorously.
The Company says it cannot currently predict with certainty the
ultimate impact of the case on its financial condition, cash flows
or results of operations. The Company's reserve for professional
liability expenses does not include any amounts for collective
actions, purported class action against Garland Nursing &
Rehabilitation Center (the "Facility") or the lawsuit filed
against the Company's directors. An unfavorable outcome in any of
these lawsuits or any of the Company's professional liability
actions, any regulatory action, any investigation or lawsuit
alleging violations of fraud and abuse laws or of elderly abuse
laws or any state or Federal False Claims Act case could subject
the Company to fines, penalties and damages, including exclusion
from the Medicare or Medicaid programs, and could have a material
adverse impact on the Company's financial condition, cash flows or
results of operations.
Brentwood, Tennessee-based Diversicare Healthcare Services, Inc.,
provides long-term care services to nursing center patients in
eight states, primarily in the Southeast and Southwest (Alabama,
Arkansas, Florida, Kentucky, Ohio, Tennessee, Texas and West
Virginia). The Company's centers provide a range of health care
services to their patients and residents that include nursing,
personal care, and social services.
DOLPHIN INTERTRADE: Recalls JaDera & Xiyouji Qingzhi Supplements
----------------------------------------------------------------
Dolphin Intertrade Corp. is voluntary recalling "JaDera" and
"Xiyouji Qingzhi" Weight Loss Supplement. These products have
been found to contain undeclared Sibutramine. Sibutramine was a
previously approved controlled substance for the treatment of
obesity that was removed from the U.S. market in October 2010 for
safety reasons, making this product an unapproved new drug.
Products containing Sibutramine pose a threat to consumers because
Sibutramine is known to substantially increase blood pressure
and/or pulse rate in some patients and may present a significant
risk for patients with a history of coronary artery disease,
congestive heart failure, arrhythmias or stroke. These products
may also interact in life threatening ways with other medications
a consumer may be taking. The company has not received any
reports of adverse events related to this recall. The recall was
initiated after discovering that Sibutramine was included as an
ingredient by the manufacturer.
JaDera Weight Loss Supplement is marketed as a dietary supplement
used as a weight loss aid and is packaged in bottles of # 30
capsules. The affected JaDera Weight Loss Supplement, includes
manufactured lot 10.06.2011 with Expiration Date: 09.06.2013.
JaDera Weight Loss Supplement was distributed Nationwide to
consumers and distributors. The products were distributed from
May 2011 to May 2013.
Xiyouji Qingzhi Weight Loss Supplement is marketed as a dietary
supplement used as a weight loss aid and is packaged in bottles of
# 30 capsules of 300mg. The affected Xiyouji Qingzhi Weight Loss
Supplement, includes all lots. The products were distributed from
May 2011 to May 2013. Pictures of the recalled products and label
are available at:
http://www.fda.gov/Safety/Recalls/ucm359065.htm
Dolphin Intertrade Corp. is notifying its distributors and
customers by letter and is arranging for return of all recalled
products. Consumers and distributors that have product which is
being recalled should stop using the products and return the
product to Dolphin Intertrade Corp.
Consumers with questions regarding this recall can contact Dolphin
Intertrade Corp. at 305-383-7600 Monday - Friday from 9:00 a.m. -
5:00 p.m. Eastern Standard Time. Consumers should contact their
physician or healthcare provider if they have experienced any
problems that may be related to taking or using this drug product.
Adverse reactions or quality problems experienced with the use of
this product may be reported to the FDA's MedWatch Adverse Event
Reporting program either online, by regular mail or by fax.
* Online: http://www.fda.gov/medwatch/report.htm11
* Regular Mail: use postage-paid, pre-addressed Form FDA 3500
available at: http://www.fda.gov/MedWatch/getforms.htm22.
Mail to address on the pre-addressed form.
* Fax: 1-800-FDA-0178
This recall is being conducted with the knowledge of the U.S. Food
and Drug Administration.
DOREL: Recalls 26,558 Child Car Seats in Multiple Models
--------------------------------------------------------
Starting date: June 25, 2013
Type of communication: Recall
Subcategory: Child Car Seat
Notification type: Compliance TC
System: Seats And Restraints
Units affected: 26,558
Source of recall: Transport Canada
Identification number: 2013218
TC ID number: 2013218
Certain car seats may not comply with Canada Motor Vehicle Safety
Standard (CMVSS) 213 -- Child Restraint Systems. During
manufacturer testing, the plastic seat shell cracked, allowing the
seat back to recline excessively and increase the risk of injury
from impact forces being transferred to the child during a crash.
For the Enspira 65 model specifically, this crack also exposed
sharp edges which could increase the risk of injury to a child
occupant, or a parent/caregiver manipulating the car seat.
Correction: All registered owners will receive a replacement seat
shell kit and installation instructions. Non-registered owners of
affected car seats, or owners who have moved, should contact Dorel
Juvenile Group at 1-877-416-9335. Car seats should not be
returned to the retailer.
Affected products:
Makes and models affected
------------------------------------------
Model year
Make Model affected
---- ----- --------
SAFETY 1ST ENSPIRA 65 2012
SAFETY 1ST GUIDE 65 2012
SAFETY 1ST CRUISE AIR 65 2012
SAFETY 1ST CRUISE AIR LX 65 2012
EDDIE BAUER XRS 65 2012
EDDIE BAUER ENSPIRA 65 2012
FRED & FRIENDS: Recalls 56,800 Baby Rattles Due to Choking Hazard
-----------------------------------------------------------------
The U.S. Consumer Product Safety Commission, in conjunction with
Health Canada and in cooperation with Easy Aces, Inc. d/b/a Fred &
Friends, of Cumberland, Rhode Island, announced a voluntary recall
of about 47,500 "Buff Baby" baby rattles in the United States of
America and 9,300 in Canada. Consumers should stop using this
product unless otherwise instructed. It is illegal to resell or
attempt to resell a recalled consumer product.
The rattle's end cap can separate, releasing small parts, posing a
choking hazard to small children.
Fred & Friends has received two reports of rattle caps separating.
No injuries have been reported.
This recall involves the "Buff Baby" baby rattle. The gray
plastic rattle is shaped like a dumbbell and has plastic pellets
inside. The rattle measures about 5.5-inches long and 2-inches
wide and "0.2" is embossed on both pentagon-shaped ends of the
rattle. The rattles were packaged in clear cylindrical packages
featuring a picture of a young girl lifting the rattle. The UPC
code 728987019098 can be found on the bottom of the package.
Pictures of the recalled products are available at:
http://is.gd/4fsdSS
The recalled products were manufactured in China and sold at
specialty toy and baby stores nationwide, in Canada, and online at
www.amazon.com and various other websites from October 2011
through June 2013 for between $7 and $10.
Consumers should immediately take these rattles away from young
children and contact Fred & Friends to receive a full refund.
Fred & Friends may be reached toll-free at (877) 647-8644 from
8:00 a.m. to 5:00 p.m. Eastern Time Monday through Friday or
online at http://www.fredandfriends.com/and click on Product
Recall Information at the bottom of the page for more information.
Consumers can also send an e-mail to
Buffbabyrattle@fredandfriends.com.
GENVEC INC: Awaits Ruling on Bid to Dismiss "Shah" Class Suit
-------------------------------------------------------------
GenVec, Inc., is awaiting a court decision on its motion to
dismiss a securities class action lawsuit initiated by Satish
Shah, according to the Company's May 10, 2013, Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended March 31, 2013.
On February 3, 2012, a putative class action lawsuit captioned
Satish Shah v. GenVec, Inc., et al. Civil Action. No. 8:12 CV-
00341-DKC was commenced in the United States District Court for
the District of Maryland against the Company, Paul H. Fischer,
Douglas J. Swirsky, and Mark O. Thornton. Following appointment
of a Lead Plaintiff group in April 2012, the Lead Plaintiffs filed
a pleading titled Amended Class Action Complaint for Violations of
the Federal Securities Laws on July 6, 2012 (the Amended
Complaint). In the Amended Complaint, the Lead Plaintiffs assert
claims, purportedly on behalf of a class of persons who purchased
or acquired Company common stock between March 12, 2009, and
March 30, 2010 (the Class Period), that the Company and the
individual defendants violated Section 10(b) of the Securities
Exchange Act of 1934 (the Exchange Act), Rule 10b-5 promulgated
thereunder, and Section 20(a) of the Exchange Act. The Lead
Plaintiffs allege generally that defendants made materially false
or misleading statements or omissions concerning the prospects for
the Company's leading product candidate at the time, TNFerade, and
the outcome of the then-ongoing clinical trial for TNFerade. The
Lead Plaintiffs allege that these misrepresentations resulted in
the Company's common stock trading at artificially inflated prices
throughout the Class Period. The Lead Plaintiffs seek unspecified
damages. On September 4, 2012, the Company and the individual
defendants moved to dismiss the Amended Complaint in its entirety
for failure to state a claim upon which relief can be granted.
Briefing on that motion is complete and the parties are awaiting a
decision by the Court. The Company cannot predict the outcome of
the motion to dismiss, or of the securities litigation should the
motion to dismiss be denied. The Company denies the material
allegations of the Shah action and intend to vigorously defend the
case.
GenVec, Inc. -- http://www.genvec.com/-- operates as a
biopharmaceutical company that uses differentiated, proprietary
technologies to create therapeutics and vaccines. GenVec is
working with various companies and organizations, such as
Novartis, Merial, and the U.S. Government to support a portfolio
of product programs that address the prevention and treatment of
human and animal health concerns. Founded in 1992, the Company is
based in Gaithersburg, Maryland.
GLAXOSMITHKLINE: To Pay $150MM Settlement, Judge Rules
------------------------------------------------------
Rose Bouboushian at Courthouse News Service reports that
GlaxoSmithKline can pay $150 million to settle claims that it
inflated the Flonase prices and delayed the release of a generic
nasal spray, a federal judge ruled.
American Sales Co. Inc., a Lancaster, N.Y.-based distributor of
health and beauty items and general merchandise for U.S.
supermarkets, had filed the suit with regional hypermarket chain
Meijer Inc. and its distribution company, headquartered in Walker,
Mich.
Their 2008 class action sought to represent 33 companies that
purchase Flonase and its generic counterpart directly from the
manufacturers: SmithKline Beecham dba GlaxoSmithKline and Roxane
Laboratories.
They claimed that GSK improperly delayed the entry of the less
expensive, generic fluticasone propionate to rake in multimillion-
dollar profits.
The delay allegedly let GSK maintain the price of the brand-name
drug at above-competitive levels and block unrestricted
competition.
Extensive discovery, which lasted from late 2008 through mid-2010,
included 30 depositions of current and former GSK and Roxane
employees and millions of pages of documents, including at least a
dozen expert reports and rebuttals.
U.S. District Judge Anita Brody had certified a class of 33 direct
purchasers in November 2010, and twice refused to grant GSK
summary judgment in 2011.
Heading off a trial set for early 2013, the parties reached a
settlement agreement in November 2012 that set aside $150 for
direct purchasers.
Brody preliminarily approved the settlement on Jan. 14, and the
direct purchasers moved for final approval, attorneys' fees,
reimbursement of expenses and payment of incentive awards to class
representatives.
The judge approved the final settlement agreement and allocation
plan on June 14, 2013, citing the 3rd Circuit's decision in 1998,
In re Prudential Ins. Co. of Am. Sales Practice Litig.
"Here, the relevant Prudential factors counsel in favor of
approving the settlement," Brody wrote. "First, as has been
explained above, the case was settled only after extensive
discovery and trial preparation. The underlying substantive
issues were therefore well-developed, supporting approval of the
settlement. Second, as to the results achieved for the individual
class members compared to those achieved for other claimants,
there are no direct purchaser class members who have filed a
separate lawsuit against GSK. Therefore, the settlement creates
the only award for class members. Third, class members were given
the chance to opt out when I originally certified the class in
2010. No class member requested exclusion. While I declined to
allow class members an additional opportunity to opt out of the
class after receiving notice of the settlement, not a single class
member objected to the settlement for any reason, including on the
basis that no opt-out right was given. Therefore, the absence of
a second opt-out right was of no consequence here. As to
attorneys' fees, as I will discuss in the next section, the
provisions for attorneys' fees are reasonable. Sixth, the
procedure for processing individual claims under the settlement is
fair and reasonable."
The judge awarded $50 million in attorneys' fees, as well as
nearly $2.1 million in litigation costs and expenses. American
Sales will collect a $50,000 incentive award, and Meijer will
collect $40,000.
GlaxoSmithKline, a U.K. company, reported a total operating profit
of 7.4 billion pounds in 2012.
HARMONY CHAI: Recalls Black Spiced and Decaffeinated Rooibos Chai
-----------------------------------------------------------------
Harmony Chai of Eastsound, Washington, is voluntarily recalling
its Concentrated Black Spiced Chai and Decaffeinated Rooibos Chai
because it may not be properly processed. Although Harmony Chai
has received no complaints of illness related to the consumption
of the recalled product, there is a potential hazard that can
occur when tea beverages are inadequately processed. These
batches have the potential to be contaminated with Clostridium
Botulinum, a bacterium which can cause life-threatening illness or
death. Consumers are warned not to use the product even if it
does not look or smell spoiled. Illness due to foodborne botulism
is extremely rare. According to Washington State Department of
Health, during the last 10 years, Communicable Disease
Epidemiology (CDE) has received 0-2 reports of foodborne botulism
each year.
Botulism, a potentially fatal form of food poisoning, can cause
the following symptoms: general weakness, dizziness, double-vision
and trouble with speaking or swallowing. Difficulty in breathing,
weakness of muscles, abdominal distension and constipation may
also be common symptoms. People experiencing these problems
should seek immediate medical attention. For more information on
Clostridium Botulinum or other foodborne illnesses please contact
the U.S. Food and Drug Administration Center for Food Safety and
Applied Nutrition Food Information Line at 1-888-SAFEFOOD (toll
free), 10:00 a.m. to 4:00 p.m. Eastern Time, Monday through Friday
or visit http://www.fda.gov/Food/default.htm/. All lots of these
products have been recalled:
* Concentrated Black Spiced Chai bottled in 22 oz (650 ml)
amber glass UPC 0510501311 and 64 oz (1892.7 ml) amber glass
jugs UPC 0510501301
* Decaffeinated Roobios Chai bottled in 22 oz (624.25 ml)
amber glass UPC 9450402431 and 64 oz (1892.7 ml) amber glass
jugs UPC 0510501301
Concentrated Black Spiced Chai and Decaffeinated Rooibos Chai were
distributed through farmers markets, grocery stores and cafes in
Western Washington. Areas of distribution include the San Juan,
Skagit, Snohomish and King Counties.
It was discovered through WSDA testing of routine samples that the
tea was not properly processed. Harmony Chai and the Washington
State Department of Agriculture (WSDA) are working together to
determine the cause of this problem. Harmony Chai has not had any
reported illnesses to date but consumers who have purchased
Harmony Chai Concentrated Black Spiced Chai or Decaffeinated
Roobios Chai recently are urged to return it to the place of
purchase for a full refund. Consumers with questions may contact
the Company at this address:
Harmony Chai
P.O. Box 792
Attn: Recall Division
Eastsound, WA 98245
E-mail: HarmonyChaiRecall@gmail.com
The Company says it is dedicated to its customer's satisfaction
with its trusted brand are taking extra precautionary measures at
this time to assure the complete safety of its product. The
Company thanks its customers in advance for their immediate
response to this press release and sincerely apologizes for any
inconveniences this may have caused.
JP MORGAN: To Face Fraud Claims for Charging Unnecessary Fees
-------------------------------------------------------------
Philip A. Janquart at Courthouse News Service reports that J.P.
Morgan Chase & Co. must face fraud claims related to the fees it
charges on delinquent home mortgages, but the RICO claims will not
advance, a federal judge ruled.
The bank and two of its subsidiaries had moved in August 2012 to
dismiss the putative class action led by Diana Ellis, James
Schillinger and Ronald Lazar.
These borrowers said Chases used special software to fraudulently
mark up, or charge unnecessary fees, in connection to its serving
of home mortgage loans.
"Defendants allegedly adopted a uniform practice designed to
maximize fees assessed on delinquent borrowers' accounts," U.S.
District Judge Yvonne Gonzalez Rogers said last month.
The scheme allegedly involves J.P. Morgan subsidiaries, affiliates
and third parties that marked up fees, often times, by over 100
percent and failed to disclose the fact to borrowers.
Though Rogers blocked the class from asserting claims under the
Racketeer Influenced and Corrupt Organizations Act (RICO), she
refused to dismiss the remaining allegations that Chase violated
the California Business and Professions Code.
The class failed to show that J.P. Morgan's alleged fraud relied
on "enterprise conduct" that consisted of the use of the mail and
wires, according to the ruling.
"Plaintiffs have not sufficiently identified the structure of the
enterprise, nor that defendants have engaged in enterprise conduct
distinct from their own affairs," Rogers wrote. "Plaintiffs
vaguely allege that unidentified subsidiaries, affiliated
companies and/or intercompany divisions order default-related
services from third-party vendors and brokers. No specific
factual allegations explain how this occurs, and without this
information, the court cannot ascertain the structure of the
alleged enterprise. Nor can the court determine whether
defendants have engaged in conduct of the enterprise, as opposed
to their own affairs."
The class can nevertheless amend the RICO claim and they can
pursue claims of unjust enrichment and fraud, according to the
ruling.
"Defendants' failure to advise plaintiffs of the actual costs for
services is linked to the inflated costs that Chase expressly
demanded as due in monthly mortgage and other documents," Rogers
wrote. "Using the mortgage agreements as justification,
defendants allegedly demanded payment for fees that, in some
cases, were never actually incurred."
KBC AMERICA: Recalls Harley-Davidson Half Motorcycle Helmets
------------------------------------------------------------
Starting date: June 28, 2013
Posting date: June 28, 2013
Type of communication: Consumer Product Recall
Subcategory: Miscellaneous
Source of recall: Health Canada
Issue: Product Safety
Audience: General Public
Identification number: RA-34337
Affected products: KBC Harley-Davidson Hybrid Classic Cruiser
Half Motorcycle Helmets
This recall involves the Harley-Davidson Hybrid Classic Cruiser
Half motorcycle helmet, part numbers are 98336-09VM/000L, 98336-
09VM/002L and 98336-09VM/022L. The helmets come in black with
black interior padding. The helmet covers the top of the head and
ends over the ears. It has a small visor and a Harley-Davidson
logo on both sides above the ear. The affected products were
manufactured in March 2011.
The recalled helmets were sold in Large, X-Large and 2X-Large can
be identified by the GM code GM00032205 or have a manufactured
date label of XX Mar 2011, located on the helmet's interior shell
under the snap-in liner.
KBC America, Inc. was advised by the National Highway Traffic
Safety Administration in the United States that four Harley-
Davidson Hybrid C/C Half Motorcycle Helmets, size Large, were
tested as part of their Motorcycle Helmet Compliance Program. It
was determined that one helmet ("Helmet A") was non-compliant with
S5.2 of the United States Federal Motor Vehicle Safety Standards
(FMVSS) 218, one helmet ("Helmet B") was non-compliance with S5.1
of FMVSS 218, and one helmet ("Helmet C") was non-compliant with
S5.1 and S5.2 of FMVSS 218. By wearing a non-compliant helmet,
the user may not be adequately protected in the event of a crash,
increasing the risk of personal injury.
Neither Health Canada nor Deeley Harley-Davidson Canada has
received any reports of incidents or injuries to Canadians related
to the use of this helmet.
Of the total shipments of Large, XL and 2XL, a total of 270
helmets were imported into Canada and were sold at authorized
Harley-Davidson retailers across Canada, with the approximate
number of affected helmets being 31.
The affected helmets were manufactured in Korea and sold from
March 2011 to May 2013.
Companies:
Manufacturer KBC American
Burbank
California, UNITED STATES
Importer Deeley Harley-Davidson Canada
Concord
Ontario, CANADA
Consumers should stop using the affected helmets immediately and
contact their local authorized Harley-Davidson retailer for a
replacement of their affected helmet.
For more information, consumers may contact their local authorized
Harley-Davidson retailer. For retail locations, please consult
the firm's Web site [http://is.gd/isUvDh].
KFORCE INC: Appeal From California Suit Settlement Dismissed
------------------------------------------------------------
An appeal from the approval of Kforce Inc.'s settlement of a
California class action lawsuit was dismissed in April 2013,
according to the Company's May 10, 2013, Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended
March 31, 2013.
Kforce was a defendant in a California class action lawsuit
alleging misclassification of California Account Managers and
seeking unspecified damages. The tentative settlement referred to
in the Company's Annual Report on Form 10-K for the year ended
December 31, 2010, was approved by the California court during the
three months ended June 30, 2011, in the amount of $2,526,000,
which is recorded within accounts payable and other accrued
liabilities in the accompanying consolidated balance sheet as of
March 31, 2013, and December 31, 2012. An appeal of the
settlement was dismissed in April 2013, and the Company now
expects the settlement to be consummated during the three months
ended June 30, 2013.
Kforce Inc. and subsidiaries provide professional staffing
services and technology, finance and accounting, health and life
sciences and government solutions. The Company is based in Tampa,
Florida.
KINDRED HEALTHCARE: Judge Trims FLSA Class Action Claims
--------------------------------------------------------
Erica Teichert, writing for Law360, reports that an Illinois
federal judge on June 11 refused to toss an employee class action
challenging Kindred Healthcare Inc.'s automatic 30-minute meal
break deduction policy but pared down the massive suit to apply
only to nurses and other patient-caring personnel.
U.S. District Judge William T. Hart conditionally certified the
suit's Fair Labor Standards Act class in order to notify nurses
and other current and former Kindred employees directly engaged in
patient care that they can opt into the suit. Although the
plaintiffs asked the judge to conditionally certify a larger class
that would also include administrative and custodial staff, Judge
Hart declined, saying his current ruling was appropriate.
"The showing made by the plaintiffs is essentially limited to the
meal-break rule as experienced by nurses and hospital employees
who are engaged in the direct care of patients," the opinion said.
"The nature of their interrupted meal breaks was affected by the
demands of patient care."
The plaintiffs initially filed their cases in 2010, claiming
Kindred automatically deducted 30-minute meal breaks from their
paychecks although employees often worked through those required
breaks. Lead plaintiffs Peter Bergman, a registered nurse who
worked for the company from 2007 to 2009, noted that the company
supplied missed meal break report forms but he never used them and
believed his supervisors knew the situation.
Judge Hart noted that none of the named plaintiffs have records or
other evidence that corroborates their missed meal break claims,
but that conditionally certifying the FLSA class was appropriate.
He declined to rule on whether related Illinois state law classes
should be certified as well.
Kindred is the largest diversified provider of post-acute care
services in the United States, with approximately 55,000
employees. Only employees of hospital division facilities can opt
into the suit, according to Judge Hart, excluding nursing center
and rehabilitation division employees.
Judge Hart also decided that the statute of limitations for opt-in
class members would be paused between June 30, 2011, and June 11,
as it had taken an extraordinarily long time to rule on the class
certification motions. The judge didn't elaborate on what caused
the pause, but noted that it wasn't due to any action on the part
of current or possible plaintiffs.
"The long delay in issuing a ruling is an extraordinary
circumstance that should not cause the opt-ins to lose out on the
potential benefits of this lawsuit," he said.
The plaintiffs are represented by Stacy M. Bardo of Consumer
Advocacy Center PC, Gerald D. Wells III -- jwells@faruqilaw.com --
of Faruqi & Faruqi LLP, Gary Lynch -- glynch@carlsonlynch.com --
of Carlson Lynch Ltd., Seth R. Lesser, Fran L. Rudich and Michael
J. Palitz of Klafter Olsen & Lesser LLP and Marvin Miller of
Miller Law LLC.
Kindred is represented by Camille A. Olson, Richard B. Lapp and
Timothy F. Haley of Seyfarth Shaw LLP.
The case is Peter Bergman et al. v. Kindred Healthcare Inc. et
al., case number 1:10-cv-00191, in the U.S. District Court for the
Northern District of Illinois.
MEDIFAST INC: Consolidated Securities Suit Dismissed in March
-------------------------------------------------------------
The consolidated securities lawsuit against Medifast, Inc., was
dismissed in March 2013, according to the Company's May 10, 2013,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended March 31, 2013.
On March 17, 2011, a putative class action complaint titled Oren
Proter et al. v. Medifast, Inc. et al. (Civil Action 2011-CV-
720[BEL]), alleging violations of Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and Rule 10b-5 promulgated under the Exchange Act, was filed for
an unspecified amount of damages in the U.S. District Court,
District of Maryland. The complaint alleges that the defendants
made false and/or misleading statements and failed to disclose
material adverse facts regarding the Company's business,
operations and prospects. On March 24, 2011, a putative class
action complaint titled Fred Greenberg v. Medifast, Inc., et al
(Civil Action 2011-CV776 [BEL], alleging violations of Sections
10(b) and 20(a) of the Exchange Act and Rule 10b-5 promulgated
under the Exchange Act, was filed for an unspecified amount of
damages in the U.S. District Court, District of Maryland. The
complaint alleges that the defendants made false and/or misleading
statements and failed to disclose material adverse facts regarding
the Company's business, operations and prospects. On July 19,
2011, the U.S. District Judge ordered the consolidation of the
cases and appointment of co-lead counsel among other matters. The
Greenberg case was dismissed without prejudice. The Plaintiffs
subsequently filed an Amended Complaint. The Company filed a
Motion to Dismiss, which was granted by the Court as to all claims
on March 28, 2013.
Medifast, Inc. -- http://www.medifast1.com/-- produces,
distributes and sells weight management products and other
consumable health and diet products, including meal replacements
and supplements. The Company is headquartered in Owings Mills,
Maryland.
MRV COMMUNICATIONS: Awaits OK of Settlement of Derivative Suits
---------------------------------------------------------------
MRV Communications, Inc., is awaiting court approval of a
settlement between derivative plaintiffs, individual defendants
and the Company, according to the Company's May 10, 2013, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended March 31, 2013.
From June to August 2008, five purported stockholder derivative
and securities class action lawsuits were filed in the U.S.
District Court in the Central District of California and one
derivative lawsuit was filed in the Superior Court of the State of
California against the Company and certain of its former officers
and directors. The five lawsuits filed in the Central District of
California were consolidated. Claims were asserted under Section
10(b) and 20(a) of the Exchange Act, and Rule 10b-5 promulgated
thereunder. In November 2010, the judge overseeing the securities
class action lawsuits gave final approval to a stipulated $10
million settlement agreement, which was covered by the Company's
director and officer insurance policies. The federal and state
derivative lawsuits were not settled and continued to be
litigated.
As of January 4, 2013, all pending litigation in the federal and
state derivative actions was stayed by agreement of the parties
pending final Federal Court approval of a settlement between
derivative plaintiffs, individual defendants and the Company. On
April 8, 2013, the Federal Court preliminarily approved a
Stipulation of Settlement, which includes, among other things, (a)
a release of all claims relating to the derivative lawsuits for
the Company, the individual defendants and the plaintiffs; (b) a
provision that $2.5 million in cash be paid to the Company by the
Company's insurance carriers; (c) a payment of attorney's fees to
plaintiffs' counsel of up to $500,000 in cash and 250,000 five-
year term warrants to purchase the Company's Common Stock at a
strike price equal to the closing price of the Company's Common
Stock on the day the Court's judgment approving the settlement
becomes final (as defined in the Stipulation); and (d) continued
payment by the Company of applicable reasonable attorneys' fees
for the individual defendants.
A settlement hearing to determine final approval of the
Stipulation in the federal derivative action was set on June 18,
2013. Pursuant to the Stipulation, if the Federal Court finally
approves the Stipulation in the federal derivative action, the
plaintiff in the state derivative action will apply for an order
dismissing the state derivative action with prejudice. Within 120
days following the later of the issuance of an order finally
approving the Stipulation by the Federal Court, or the end of the
period available for appeal, the Company would be required to take
certain corporate governance reform actions, many of which have
already been implemented.
MRV Communications, Inc. -- http://www.mrv.com/-- is a global
provider of optical communications network infrastructure
equipment and services to a broad range of telecom concerns,
including multinational telecommunications operators, local
municipalities, cable multiple system operators, corporate and
consumer high speed Internet service providers, content delivery
network operators, and data storage and cloud computing providers.
The Company is headquartered in Chatsworth, California.
MTI GROUPS: Recalls Cic Brand Jams Due to Undeclared Sulfites
-------------------------------------------------------------
Starting date: June 20, 2013
Type of communication: Recall
Alert sub-type: Allergy Alert
Subcategory: Allergen - Sulphites, Chemical
Hazard classification: Class 3
Source of recall: Canadian Food Inspection Agency
Recalling firm: MTI Groups Inc.
Distribution: Ontario
Extent of the product
distribution: Retail
CFIA reference number: 8074
Affected products:
Brand Codes on
name Common name Size product UPC
---- ----------- ---- ------- ---------------
Cic Woodapple Jam 450 g BATCH NO. 2.2 4 792137 800375
27.02. 2013
26. 02. 2015
Cic Mango Jam 450 g BATCH NO. 2.1 4 792137 800313
27.02. 2013
26. 02. 2015
Cic Pineapple Jam 450 g BATCH NO. 3.2 4 792137 800344
27.02. 2013
26. 02. 2015
Cic Mixed Fruit Jam 450 g BATCH NO. 3.1 4 792137 800320
28.02. 2013
27. 02. 2015
Cic Strawberry 450 g BATCH NO. 3.2 4 792137 800351
Flavoured 27.02. 2013
Melon Jam 26. 02. 2015
NAT'L COLLEGIATE: Seeks Special Consideration for O'Bannon Hearing
------------------------------------------------------------------
Steve Berkowitz, writing for USA TODAY Sports, reports that an
anti-trust lawsuit pertaining to the use of college athletes' name
and likenesses took several twists on June 13, raising the
prospects of a federal judge giving special handling to a
scheduled hearing, documents now under seal being openly
referenced during that hearing and, or the public being barred
from part of the session.
Lawyers for the NCAA and its co-defendants asked U.S. District
Judge Claudia Wilken to grant special, stand-alone scheduling
consideration to the hearing on whether the case should be
certified as a class action, and to set an entirely new schedule
for the case following the hearing.
Meanwhile, lawyers for the plaintiffs indicated that during the
hearing, they are likely to refer to documents submitted by the
defendants that so far have remained sealed. Recognizing the
defendants' opposition to that prospect, they proposed that a
portion of the normally open hearing be closed to the public.
At present, the case's overall schedule lists a sequence of events
that would culminate in a trial beginning early in June 2014.
But in a case management statement comprising requests and
arguments from both sides about the ground rules for a scheduled
hearing and a handful of other pending matters, the defendants
asked that either a revised schedule be negotiated or that Judge
Wilken make a series of adjustments that would delay the trial's
start by nearly three months, to late in August 2014.
The defendants -- the NCAA; video-game maker Electronic Arts and
the nation's leading collegiate trademark licensing and marketing
firm, Collegiate Licensing Co. -- also asked that the hearing be
held separately from other cases scheduled to go before the judge
at the same time. As of June 13, Judge Wilken was scheduled to
hear matters in a total of six cases beginning at
2:00 p.m. PT on June 20; nine cases were on Judge Wilken's
schedule for that date and time.
The NCAA and its co-defendants on June 13 asked for what they
termed a "special setting" for their hearing, perhaps on the
morning of June 20, "in light of the complexity of the issues."
The plaintiffs took no position on that request. However, in a
separate part of the case management statement, they wrote that
during the hearing it is likely they will refer to documents
currently under seal and that because the defendants oppose this,
"one way to to deal with the issue is to have argument on class
certification in this case go last at the June 20, 2013 2pm (sic)
session and clear the courtroom of all persons not involved in
this litigation before that argument occurs."
As for the case's future direction, the defendants' lawyers said
they will need time added to schedule so they can respond to what
they contend are improper and unfair changes in the plaintiffs'
legal strategy -- especially if Judge Wilken certifies the case as
a class action.
If the case is certified as a class action, it likely would bring
thousands of current and former college football and men's
basketball players into the case and potentially place billions of
dollars in damages at stake.
In its present form, the case is lawsuit on behalf of roughly a
dozen former athletes, including former UCLA basketball star
Ed O'Bannon. At issue in the case overall is whether the
defendants have illegally used the names and likenesses of college
football and men's basketball players in products and various
media forms, including video games.
"One of the consequences of [the plaintiffs'] attempted change is
that defendants currently do not know, and cannot know until after
the Court resolves the class certification motion, the precise
scope of Antitrust Plaintiffs' claims," the defendants' lawyers
wrote.
NEWCREST MINING: Class Suit Lawyers Circle Over Production Misses
-----------------------------------------------------------------
Barry Fitzgerald and Matt Chambers, writing for The Australian,
report that reputational damage on two fronts is cutting deep at
Newcrest, Australia's biggest gold producer.
First there is the ignominy of having the Australian Securities &
Investments Commission and class action lawyers circling it over
its botched attempt, through analyst and investor briefings, to
defuse the shock from a bombshell it was to drop on Friday, June 7
about its production shortcomings, balance-sheet pressures and $6
billion in asset writedowns.
Then there is the damage done to the market's confidence that the
board and management can overcome the challenge thrown down by the
plunge in gold prices.
A recent history of production misses -- and another delay in the
golden harvest that has long been promised to shareholders from
the group's heavy investment program during the now clapped-out
10-year bull run in gold prices -- has the market full of disdain
for what was once the bluest of blue-chip gold stocks.
Digital Pass $1 for first 28 Days
Local fund managers report that pressure is building, particularly
from Newcrest's London investor base, for the company to show
contrition and a resolve to win back its blue-chip status by
offering up some board and management scalps. But the company's
two biggest shareholders, both based in London, have declined to
back that call, or endorse the incumbents for that matter.
Evy Hambro, who manages the world's biggest resources mining fund
and 10.4 per cent Newcrest shareholder BlackRock, declined to
comment to The Weekend Australian because he had not yet been
briefed by management on the events.
And Angus Tulloch, who runs the Asia-Pacific investments for First
State, Newcrest's second biggest shareholder with 8.2 per cent,
also declined to comment. But Mr. Tulloch did say that First
State had "obviously been following recent developments closely".
Little wonder, given First State topped up its holding in April in
the wake of the meltdown in the gold price.
What might have looked like a bargain price in April has turned
sour. In May, Newcrest shares have plunged 30 per cent. For the
year to date, it has been a 48 per cent slide. More demonstrably,
Newcrest's market value has plunged from $40bn to less than $9
billion in less than two years.
It is now worth less than the $9.5 billion it paid for PNG gold
producer Lihir in 2010. While Lihir has been the root cause of
Newcrest's current operational woes, much of the group's drastic
decline is rightly sheeted home to the end of gold's bull run,
with the price for the yellow metal now 18 per cent or $US292 an
ounce below its average for last year. For a company with more
than 2 million ounces in annual production, such a fall is bound
to hurt.
That was the message Newcrest wanted to get out in to the broader
market ahead of June 7 bombshell. It backfired horribly.
In a classic display of the black art that is investor relations,
Newcrest's investor team hit the phones and met face-to-face with
analysts and investors in the days preceding the release of the
bombshell.
The analysts contacted came to the party, alerting their clients
in research reports that began to flow on Tuesday, June 4, that
all was not well at Newcrest, flagging that production in the 2014
financial year was set to come in as much as 15 per cent below
their (own) expectations, that writedowns were on the cards and
that the final dividend payment was under threat.
Newcrest's already battered share price began to slide, falling
from $15.12 on Monday June 3 to $13.36 a share by the close of
trade on Thursday, June 6 -- a fall of close to 12 per cent.
Come the morning of Friday, June 7, Newcrest's board, led by
former ANZ stalwart Don Mercer, signed off on an action plan
prepared by Newcrest management, led by former geologist and
investment banker Greg Robinson, which was released on the ASX
platform. "Newcrest completes business review -- update on
outcomes, impacts and outlook" it was titled. For the
sophisticated end of the market, there was nothing new in the
announcement that their morning serve of analyst reports had not
already alerted them to.
One seasoned investor relations specialist told The Weekend
Australian that such company dealings with analysts and investors
was more art than science. "It is all about ensuring consensus is
where it should be without having to make an announcement. That's
what IR people do all the time. And there are all sorts of
legitimate ways that you can -- without breaking any disclosure
laws -- point things out to analysts, reiterate what is public or
discuss why they have got it wrong.
"In the case of Newcrest, it looked to me like they knew that they
had a problem with consensus, that they had a board that was
getting edgy, and that they figured that they had one shot at it
before they would have to come out and say something publicly
about it, and they tried in a very short period of time to try to
talk analysts down," the specialist said.
"There are funny little games you play and you can highlight
things that can be talked about without anyone breaking the law.
Sometimes the simple act of ringing them and simply asking them
why they have got this or that number is enough," the specialist
said, highlighting the murky nature of managing consensus.
Newcrest is not saying who its investor relations team met with
and what was said ahead of its June 7 statement.
What is known is that the talks with analysts and investors led to
more than half a dozen negative analyst reports that appeared in a
rush, sending Newcrest's share down a slippery slope ahead of its
ASX announcement.
But what of the mum-and-dad investors, those without access to
high-level research, who, having seen the share price fall on June
3 through to June 6, might have thought here was a chance to buy
Australia's leading gold stock at a knockdown price, not knowing
that there were good reasons to suspect that bad news was on the
way?
That is something ASIC is now grappling with amid accusations of
continuous disclosure shortcomings by Newcrest, in that it had
"selectively" briefed analysts and investors ahead of the June 7
statement to the ASX.
Newcrest denies the claims, saying in its statement to the ASX
that it "treats its disclosure obligations seriously and engages
with the investment community in a manner consistent with these
obligations".
It falls to ASIC to give continuous disclosure obligations some
bite, be it through penalty orders and enforceable undertakings,
or court action.
While it has confirmed it was aware of the Newcrest situation and
the firm's response to the ASX query on the timing of its June 7
statement, ASIC will not talk about the status of its
investigation, or if in fact if it is proceeding with one.
ASIC does not have sole rights to action, with class action
specialists quick last week to flag their interest in the Newcrest
situation. Law firm Maurice Blackburn was the first to put its
hand up, saying it was investigating a class action against
Newcrest for "potential breaches of continuous disclosure laws".
The firm's head of class actions, Andrew Watson, said the "nature
and extent of the writedowns raises real issues regarding the
adequacy of Newcrest's disclosure to the market".
"It beggars belief that Newcrest knew nothing of the catastrophic
impact that the gold price slump would have on the value of its
assets until the day it announced the writedown," Mr. Watson said.
Maurice Blackburn, with funding from litigation funder IMF
(Australia), won a $35.9 million plus costs settlement from OZ
Minerals in 2011 in which 1600 shareholders claimed losses alleged
to have been caused by continuous disclosure breaches. Salter &
Gordon won a $19.2 million settlement plus costs in a similar
class action against OZ Minerals, with the proceeds picked up by
class action members who claimed they had suffered a loss as a
result of buying shares at an inflated price due to allegedly
undisclosed information.
While the wait to see if anything comes from the current interest
of ASIC and the class action warriors in the recent events
continues, Newcrest knows it faces a long haul to repair the
second front of reputational damage -- that of its operational
credibility with the market.
After gaining a reputation under previous chief Ian Smith (now
chief executive of Orica) as a company that issued reliable
production guidance, in the past two years Newcrest has slipped
back into a pattern of operational problems and guidance misses.
In April 2011, delivering his last quarterly production report,
Smith presided over a then rare production downgrade, but assured
investors it was "a position you won't expect to see again in the
profile of the company".
He was wrong.
Since then, Newcrest has cut production guidance another five
times, mostly because of problems at the Lihir Island mine,
acquired under Smith's tenure.
Then there was the June 7 revelation the firm expected to produce
between 2 and 2.3 million ounces of gold in 2013-14.
This was the first time the guidance had been issued and it was 15
to 25 per cent lower than market's expectations -- that is before
the flood of analyst downgrades leading into the June 7
announcement.
Many of the disappointments at Lihir, where big and unexpected
capital injections have also been needed, have come from what
inside Newcrest is seen as severe underinvestment in the plant
from the previous owners.
This had led to unreliability and required a big plant overhaul,
including the entire electrical system.
It has also raised questions about the level of due diligence
undertaken by Newcrest, whose market value is now less than the
price paid for Lihir.
Robinson says the Lihir acquisition has not necessarily left
Newcrest in a better position.
"I think it would be a smaller company, probably in a similar
position (if the acquisition was not made)," Mr Robinson told The
Australian after the June 7 update.
"The beauty of Lihir and really long-dated assets is you have a
long time to get them right and through the price cycle, providing
you're there for the peak and the trough, they can give you very
good returns. We feel it has a lot of opportunity -- we're two
years into what we feel is a 30-year ownership."
When the takeover bid was made, one of the advantages touted was
that it would bring scale to put Newcrest on the international
radar and let it compete for investment with the likes of gold
giants Newmont Mining and Barrick Gold.
But since then, investors have been clear the only things that
matter are cash generation, returns and low-risk growth --
something Newcrest executives believe the company has, despite its
recent travails.
The stream of downgrades goes some way to explaining why Newcrest
shares were hit so hard in the wake of the June update.
Newcrest, with the luxury of gold prices that held up longer than
many other minerals, made similar, but later, announcements to
those from BHP Billiton and Rio Tinto over the past year.
Savings measures and a focus on cash generation over expansion
have been demanded by investors in a worsening market environment.
So for Newcrest management, it would not have been surprising had
shares shown support for the move.
But the handling of the announcement, along with Newcrest's track
record of disappointing updates, has eroded a lot of investor
faith. Newcrest appears to have stemmed potential bleeding from
falls in the gold price to date, but continued falls will require
more action.
In the wash-up from the update, analysts have raised concerns over
whether equity raisings or asset sales may be needed.
At board level, asset sales are seen as an option if gold prices
decline, along with further capital and exploration cuts.
An equity raising, while not being ruled out, is seen as a last
resort and, for now, gearing levels and debt maturity dates show
no immediate signs the company is close to being pushed in that
direction.
NOVA SCOTIA HOME: Class Action Last Chance for Abuse Victims
------------------------------------------------------------
Selena Ross and Eva Hoare, writing for The Chronicle Herald,
report that a class action could be the last chance for dozens of
former residents of the Nova Scotia Home for Colored Children who
have tried everything, their lawyer argued on June 13.
People who grew up in the Dartmouth orphanage have spent years
telling their stories to the authorities, with low returns,
Ray Wagner said in Nova Scotia Supreme Court.
When 38 of them went to the RCMP with complaints of sexual abuse
at the orphanage as children, many naming a single individual,
"not one charge resulted," Mr. Wagner said, arguing for the
proposed class action to be certified.
Meanwhile, the complainants have seen other cases prosecuted in
which the victims were white, he said.
And therein lies a key element of the case, one the justice system
has one last shot at correcting, Mr. Wagner argued before Justice
Arthur LeBlanc.
The province is fighting the action, claiming the residents'
arguments do not meet legal criteria, but Mr. Wagner said the case
qualifies on every front.
"I've listened to a lot of people from the home, and I try to
understand. But I truly don't appreciate fully what it is to
suffer injustice based on race in this province," said Mr. Wagner,
who is white.
"Try as I may, I don't live it day to day. It places a heavy
burden upon us to advance this case as best we can."
Racism is the "elephant in the room," something that "hangs over
all aspects of the case" and helps give roughly 140 former
residents a common cause to launch such an action, Mr. Wagner
said.
"So this is a historic opportunity, my lord. It's a great faith
that the residents place in this honorable court to hear their
cases, to review the historical record and to judge -- judge the
abuse, did it happen and was it systemic, and what (role), if any,
race played in it."
The home near Dartmouth also housed smaller numbers of First
Nations and white children, though it was set up as a Children's
Aid Society for African-Nova Scotian children, Wagner said.
The lawyer read from archived reports of provincial employees who
had gone to inspect the home several years ago and noted troubling
details, particularly a lack of food for the children.
A senior orphanage staffer didn't know how many children lived
there, noted one of the report's authors, and didn't know their
last names, referring to them as "poor trash."
Wagner also read out a series of allegations from former
residents, including graphic details of forced sex parties, rapes,
severe beatings, mandatory birth control and forced labor, all at
the hands of staffers.
Those allegations have a common thread, no matter which years
residents lived at the home, he said.
"When you look at all the evidence over all the years, you see the
commonality. Overall, there is physical, sexual and mental
abuse."
Mr. Wagner also read from old correspondence in which the home's
board members pleaded repeatedly with the province for increased
funding.
Former Nova Scotia Premier John Savage, a board member, included
the Human Rights Commission in one of the letters, said Wagner.
That shows the level of "desperation that's going on," he said.
Mr. Wagner also noted previously published passages from former
government officials who refused to grant more money for a study
on the home's alleged weak points -- low wages and poorly
qualified staffers -- as it would just provide "a stick to beat
ourselves."
Bureaucrats also worried such a study would amount to a "witch
hunt," a document shows.
The province has argued in the first days of the certification
hearing that it is not legally responsible for all who lived at
the home since some were wards of a Children's Aid Society.
But the province clearly had responsibility, Mr. Wagner said.
Those societies were simply precursors to the Community Services
Department, which Mr. Wagner said provided him with the
documentation. He said evidence shows the province didn't fill
merely a policy role regarding the home.
"They've gone out and exercised duties. They did it terribly and
horribly."
He said that when individual Children's Aid societies were
dissolved, the employees' pensions and contributions were rolled
into those of the province.
Mike Dull, Mr. Wagner's fellow lawyer, was expected to finish the
argument in favor of certification by mid-morning on June 14,
clearing the way for the province's lawyers to begin their
counter-argument.
NOVOPAY: Second Ministry of Education Manager Resigns
-----------------------------------------------------
Radio New Zealand reports that a second Ministry of Education
manager has resigned over their role in the Novopay school payroll
system.
The Ministry announced the resignation on June 14, just three days
after it revealed one of its deputy secretaries had resigned
because of the fiasco.
The ministry is refusing to identify the person, but says they are
a senior member of staff who was involved in the Novopay project.
The staff member was one of two facing an employment investigation
for their actions during the development and introduction of the
system.
The system has been plagued by errors since it was introduced in
August 2012, with underpayments, overpayments or no payments at
all to some school staff.
The investigation followed a ministerial inquiry that criticized
poor decision-making by ministry staff and said the ministry had
misrepresented the Novopay project to government ministers.
Acting Secretary for Education Peter Hughes says employment
matters related to the ministerial inquiry have been resolved and
the focus is firmly on moving forward.
A computer industry professional say Novopay's botched roll-out
was a failure of management, not technology.
Mark Neild says Novopay is a classic project failure, but it was
not the IT parts which failed. Mr. Neild says the government
wanted large changes in the school payroll system, including
simpler national pay structures and for school staff to input
their own data, and it was wrong to expect the software to achieve
that.
Ministry will 'fight' action
The Ministry also says it will vigorously defend itself against a
class action brought by the Post Primary Teachers Association over
the payroll system.
The union said it filed papers in the High Court in Wellington on
Thursday for the class action against Mr. Hughes.
In a statement, the Ministry of Education says it fully recognizes
and respects the right of the PPTA to take this action but will be
defending it in court.
PPTA president Angela Roberts says the aim is to ensure someone is
held accountable for the Novopay debacle.
Ms. Roberts says the union contends the acting secretary failed in
the duty to pay teachers as set out in the Education Act, and that
the law has been broken.
"It's getting better, absolutely, and Peter Hughes has done a
signficant job of making sure it has gotten better, but it should
never have happened, and need never have happened in the first
place," she told Radio New Zealand's Morning Report program.
OPKO HEALTH: Faces Suits Over Proposed Acquisition of PROLOR
------------------------------------------------------------
OPKO Health, Inc., is facing class action lawsuits in connection
with its proposed acquisition of PROLOR Biotech, Inc., according
to the Company's May 10, 2013, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended March 31,
2013.
In April 2013, the Company entered into an Agreement and Plan of
Merger (the "PROLOR Merger Agreement") pursuant to which the
Company will acquire PROLOR Biotech, Inc. ("PROLOR"), a
biopharmaceutical company focused on developing and
commercializing longer-acting proprietary versions of already
approved therapeutic proteins, in an all-stock transaction. Under
the terms of the agreement, holders of PROLOR common stock will
receive 0.9951 shares of the Company's Common Stock for each share
of PROLOR common stock. Based on a price of $7.03 per share of
the Company's Common Stock, the transaction is valued at
approximately $480 million, or $7.00 per share of PROLOR common
stock. The companies expect the transaction to be completed
during the second half of 2013. Closing of the transaction is
subject to certain conditions including, the approval of PROLOR's
and the Company's stockholders and other customary closing
conditions. Dr. Phillip Frost, the Company's Chairman and Chief
Executive Officer is PROLOR's Chairman of the Board and a greater
than 5% stockholder of PROLOR. Dr. Jane H. Hsiao, the Company's
Vice Chairman and Chief Technology Officer, and Steven Rubin are
both directors of PROLOR and less than 5% stockholders of PROLOR.
The Board of Directors of each of OPKO and PROLOR (with certain
directors abstaining) have approved the Merger and the Merger
Agreement. In addition, the transaction was also approved by
PROLOR's Strategic Alternatives Committee.
On April 29, 2013, a putative class action was filed in the Eighth
Judicial District Court in and for Clark County, Nevada, by Peter
Turkell against PROLOR Biotech, Inc. ("PROLOR"), the members of
the PROLOR Board of Directors, individually (including Drs. Frost
and Hsiao and Steven Rubin), and the Company (styled Peter Turkell
v. PROLOR Biotech, Inc. et al., No: A-13-680860-B). On May 1,
2013, a second putative class action was filed in the Eighth
Judicial District Court in and for Clark County, Nevada by Floyd
A. Fried against PROLOR, the members of the PROLOR Board,
individually (including Drs. Frost and Hsiao and Steven Rubin),
the Company and its wholly-owned subsidiary, POM Acquisition, Inc.
(styled Floyd A Fried v. PROLOR Biotech, Inc. et al., No: A-13-
681060). A third putative class action was filed in the Eighth
Judicial District Court in and for Clark County, Nevada by Marc
Henzel against PROLOR, the members of the PROLOR Board,
individually (including Drs. Frost and Hsiao and Steven Rubin),
and the Company (styled Marc Henzel vs. PROLOR Biotech, Inc. et
al., No: A-13-681020-C). On May 3, 2013, a fourth putative class
action lawsuit was filed in the Eighth Judicial District Court in
and for Clark County, Nevada, by Bradford W. Baer, Trustee of the
B.W. Baer & P. Shapiro-Baer Revocable Trust and Pamela Shapiro-
Baer against PROLOR, the members of the PROLOR Board individually
(including Drs. Frost and Hsiao and Steven Rubin), and the Company
(styled Bradford W. Baer, Trustee of the B.W. Baer & P. Shapiro-
Baer Revocable Trust and Pamela Shapiro-Baer v. PROLOR Biotech,
Inc. et al., No: A-13-681218-B). On May 6, 2013, a fifth putative
class action lawsuit was filed in the Eighth Judicial District
Court in and for Clark County, Nevada, by James Hegarty against
PROLOR, the members of the PROLOR Board individually (including
Drs. Frost and Hsiao and Steven Rubin), and the Company (styled
James Hegarty v. PROLOR Biotech, Inc. et al., No: A-13-681250-C).
On May 6, 2013, a sixth putative class action lawsuit was filed in
the Eighth Judicial District Court in and for Clark County, Nevada
by Jorge L. Salas, Michael Cardello, Ariel Heimann, Jorge Salas,
Israel Kuperman, Ido Greenberg, Gideon Schurr, and Yoav Poles
against PROLOR, the members of the PROLOR Board individually
(including Drs. Frost and Hsiao and Steven Rubin), and the Company
(styled Jorge Salas, et al. v. PROLOR Biotech, Inc. et al., No: A-
13-681279-C).
Each of these lawsuits alleges a claim against the members of the
PROLOR Board for breach of fiduciary duty and a claim against the
Company for aiding and abetting the individual defendants' alleged
breach of fiduciary duty. Each lawsuit seeks to enjoin the
pending transaction between the Company and PROLOR, as well as
attorneys' fees. The Fried lawsuit, the Henzel lawsuit, the Baer
lawsuit, the Hegarty lawsuit, and the Salas lawsuit also seek
rescission and money damages. The Turkell lawsuit seeks
imposition of a constructive trust for any benefits improperly
received by the defendants. The Company denies the allegations
and intends to vigorously defend the actions.
Incorporated in Delaware and headquartered in Miami, Florida, OPKO
Health, Inc., is a multi-national biopharmaceutical and
diagnostics company that seeks to establish industry-leading
positions in large and rapidly growing medical markets by
leveraging the Company's discovery, development and
commercialization expertise and its novel and proprietary
technologies. The Company is developing a range of solutions to
diagnose, treat and prevent various conditions, including
molecular diagnostics tests, laboratory developed tests, point-of-
care tests and proprietary pharmaceuticals and vaccines.
OXFORD HEALTH: Fisher & Phillips Discusses Court Ruling
-------------------------------------------------------
Matthew Korn, Esq. -- mkorn@laborlawyers.com -- at Fisher &
Phillips LLP reports that on June 10, a unanimous decision of the
U.S. Supreme Court clarified the standard of review federal courts
will use when reviewing an arbitrator's decision about whether
parties contemplated class arbitration when they entered into a
broadly worded mandatory-arbitration provision. Though the case
involved an arbitration provision outside the employment context,
this decision has implications for employers using mandatory
arbitration agreements in employment contracts and other
agreements with employees.
Based on the Court's holding in this case, which essentially
eliminates federal court review of an arbitrator's decision
regarding whether an arbitration clause permits class arbitration,
employers should reevaluate their current mandatory arbitration
language to ensure that the company's intent is explicit. (Oxford
Health Plans LLC v. Sutter.)
Background
In this case, Oxford Health Plans included a mandatory arbitration
clause in its Primary Care Physician Agreement governing the
reimbursement of medical fees to doctors under the system. The
arbitration clause provided that: No civil action concerning any
dispute arising under this Agreement shall be instituted before
any court, and all such disputes shall be submitted to final and
binding arbitration in New Jersey, pursuant to the Rules of the
American Arbitration Association with one arbitrator.
In 2002, Dr. John Sutter filed a class action lawsuit against
Oxford, alleging that the company engaged in a practice of
improperly denying, underpaying and delaying reimbursement of
physicians' claims for the provision of medical services. Oxford
successfully argued that this dispute should be decided by an
arbitrator, rather than a state court.
The arbitrator's first task was to determine whether the
arbitration clause in the agreement allowed for class arbitration.
Despite the fact that the arbitration clause did not explicitly
say so, the arbitrator found that the broad language contained in
the agreement included all conceivable court actions, including
class actions.
Oxford challenged the arbitrator's decision in federal court,
arguing that the arbitrator exceeded the scope of his authority by
allowing class arbitration. While the parties were litigating this
issue, the Supreme Court issued two important decisions.
Supreme Court's prior arbitration decisions
In Stolt-Nielsen S.A. v. AnimalFeeds International Corp, the Court
clarified that parties must explicitly agree to class arbitration
and held that "a party may not be compelled under the FAA to
submit to class arbitration unless there is a contractual basis
for concluding that the party agreed to do so." But in Stolt-
Nielsen, unlike Oxford Health Plans, the parties stipulated that
they did not contemplate class arbitration. The Court correctly
noted that arbitration "is a matter of consent, not coercion."
One year later, in AT&T Mobility v. Concepcion, the Court
recognized that companies generally would not benefit from class
arbitration and noted that "the differences between bilateral and
class-action arbitration are too great for arbitrators to presume
. . . that the parties' mere silence on the issue of class-action
arbitration constitutes consent to resolve their disputes in class
proceedings."
Supreme Court's clarified standard
Despite the Supreme Court's decisions holding that parties must
agree to class action arbitration, the U.S. Court of Appeals for
the 3rd Circuit upheld the arbitrator's decision that the
arbitration clause drafted by Oxford permitted class arbitration.
Oxford petitioned the Supreme Court, arguing that 1) the 3rd
Circuit used an improper legal standard to review the arbitrator's
decision; and 2) the arbitrator exceeded the scope of his
authority by deciding that the arbitration agreement allowed for
class arbitration.
In this case, a unanimous Supreme Court affirmed the 3th Circuit's
decision, holding that the federal court's review of an
arbitrator's decision is extremely limited ? the federal court may
only review "whether the arbitrator (even arguably) interpreted
the parties' contract, not whether he got its meaning right or
wrong." According to the Court, the arbitrator's decision
regarding whether the parties contemplated class arbitration,
however "good, bad, or ugly," is binding on the federal court, so
long as the arbitrator was "arguably construing" the contract.
The Court indicated that there is still an open question as to
whether the availability of class arbitration is a "question of
arbitrability," meaning whether the federal courts should decide
this issue, rather than the arbitrator. The Court found, however,
that Oxford waived this argument by asking the arbitrator to
decide whether the contract permitted class arbitration. Justices
Alito and Thomas concurred in the unanimous decision, but
indicated that had Oxford not waived the issue of arbitrability,
they would have found that the contract did not authorize the
arbitrator to decide whether to conduct class arbitration.
What this decision means for employers
The arbitration agreement in this case was drafted in 1998 at a
time when class action arbitration was not a widely-used practice
and therefore was not specifically considered. Today, employees
often pursue class arbitration for a variety of employment-related
claims including wage and hour issues. Therefore, many employers
have adjusted by drafting mandatory arbitration provisions to
explicitly exclude class arbitration and avoid any uncertainty.
If your company's mandatory arbitration agreement does not address
class actions or class arbitration, you should consider revising
your agreement to explicitly prohibit employees from bringing such
actions in either forum. Allowing an arbitrator to decide whether
your agreement encompasses class arbitration, especially under the
Supreme Court's clarified standard providing limited or no
judicial review, is not advisable.
But drafting such agreements can be tricky. The National Labor
Relations Board has found that class waivers in arbitration
agreements may violate Section 7 of the National Labor Relations
Act because employees have a substantive right to litigate
employment disputes collectively.
Although federal courts have been reluctant to adopt the NLRB's
reasoning, you should carefully review your mandatory arbitration
agreement to ensure that your company's interest in avoiding class
action litigation is protected, while also minimizing the risk
that the agreement will be found unlawful by the Board.
PRICEWATERHOUSECOOPERS: Faces Overtime Class Action
---------------------------------------------------
Courthouse News Service reports that PriceWaterhouseCoopers
stiffed "attest associates" for overtime, a class action claims in
Federal Court.
RADIAN GROUP: Continues to Defend Suits Alleging RESPA Violations
-----------------------------------------------------------------
Radian Group Inc. continues to defend itself against class action
lawsuits alleging violations of the Real Estate Settlement
Procedures Act, according to the Company's May 10, 2013, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended March 31, 2013.
The Company has been named as a defendant in a number of putative
class action lawsuits alleging, among other things, that the
Company's captive reinsurance agreements violate the Real Estate
Settlement Practices Act of 1974 ("RESPA"). On December 9, 2011,
an action titled Samp v. JPMorgan Chase Bank, N.A. (the "Samp
case"), was filed in the U.S. District Court for the Central
District of California. The defendants are JPMorgan Chase Bank,
N.A., its affiliates (collectively, "JPMorgan"), and several
mortgage insurers, including Radian Guaranty. The plaintiffs
purport to represent a class of borrowers whose loans allegedly
were referred to mortgage insurers by JPMorgan in exchange for
reinsurance agreements between the mortgage insurers and
JPMorgan's captive reinsurer. The Plaintiffs assert violations of
RESPA. Radian Guaranty and some of the other mortgage insurer
defendants moved to dismiss this lawsuit for lack of standing
because they did not insure any of the plaintiffs' loans. The
court denied that motion on May 7, 2012, and on October 4, 2012,
Radian Guaranty filed a new motion to dismiss on a number of
grounds. On December 21, 2012, the plaintiffs filed an opposition
to that motion. On May 7, 2013, the court granted Radian
Guaranty's motion and dismissed the plaintiffs' claims with
prejudice. The court ruled that the plaintiffs could not state a
claim against Radian Guaranty because it did not insure their
loans, and, in addition, ruled that their claims were barred by
the statute of limitations.
Each of the cases are putative class actions (with alleged facts
substantially similar to the facts alleged in the Samp case) in
which Radian Guaranty has been named as a defendant:
* On December 30, 2011, a putative class action under RESPA
titled White v. PNC Financial Services Group was filed in
the U.S. District Court for the Eastern District of
Pennsylvania. On September 29, 2012, the plaintiffs filed
an amended complaint. In this case, Radian Guaranty has
insured the loan of one of the plaintiffs. On November 26,
2012, Radian Guaranty filed a motion to dismiss the
plaintiffs' claims as barred by the statute of limitations.
The Plaintiff has filed an opposition to the motion to
dismiss.
* On January 13, 2012, a putative class action under RESPA
titled Menichino, et al. v. Citibank, N.A., et al., was
filed in the U.S. District Court for the Western District of
Pennsylvania. Radian Guaranty was not named as a defendant
in the original complaint. On December 4, 2012, the
plaintiffs amended their complaint to add Radian Guaranty as
an additional defendant. On February 4, 2013, Radian
Guaranty filed a motion to dismiss the claims against it as
barred by the statute of limitations. On April 5, 2013,
plaintiffs filed an opposition to the motion to dismiss.
* On April 5, 2012, a putative class action under RESPA titled
Riddle v. Bank of America Corporation, et al. was filed in
the U.S. District Court for the Eastern District of
Pennsylvania. On January 4, 2013, Radian Guaranty moved to
dismiss the plaintiffs' claims as barred by the statute of
limitations. The court denied that motion on April 11,
2013, and ordered a brief period of discovery limited to the
statute of limitations issue. The discovery period is
scheduled to end on June 14, 2013.
* On April 5, 2012, a putative class action under RESPA titled
Manners, et al. v. Fifth Third Bank, et al. was filed in the
U.S. District Court for the Western District of
Pennsylvania. On September 28, 2012, the plaintiffs filed
an amended complaint adding three borrowers whose loans were
insured by Radian Guaranty. On November 28, 2012, Radian
Guaranty moved to dismiss plaintiffs' claims as barred by
the statute of limitations, and on January 28, 2013, the
plaintiffs filed an opposition to the motion to dismiss.
* On May 18, 2012, a putative class action under RESPA titled
Hill, et al. v. Flagstar Bank FSB, et al. was filed in the
U.S. District Court for the Eastern District of
Pennsylvania. In this case, Radian Guaranty has insured the
loan of one of the plaintiffs. On January 28, 2013, the
plaintiffs filed an amended complaint. On March 28, 2013,
Radian Guaranty filed a motion to dismiss plaintiffs' claims
as barred by the statute of limitations.
* On May 31, 2012, a putative class action under RESPA titled
Barlee, et al. v. First Horizon National Corporation, et al.
was filed in the U.S. District Court for the Eastern
District of Pennsylvania. On October 9, 2012, the
plaintiffs filed an amended complaint, and on November 5,
2012, Radian Guaranty filed a motion to dismiss the amended
complaint for lack of standing because it did not insure any
of the plaintiffs' loans. The Plaintiffs filed an
opposition to the motion to dismiss, and on January 16,
2013, Radian Guaranty filed a reply in further support of
its motion to dismiss. On February 27, 2013, the court
granted Radian Guaranty's motion to dismiss and Radian
Guaranty has been dismissed from this lawsuit.
* On June 28, 2012, a putative class action under RESPA titled
Cunningham, et al. v. M&T Bank Corporation, et al. was filed
in the U.S. District Court for the Middle District of
Pennsylvania. On October 9, 2012, the plaintiffs filed an
amended complaint in which they added one borrower whose
loan was insured by Radian Guaranty. On December 10, 2012,
Radian Guaranty moved to dismiss plaintiffs' claims as
barred by the statute of limitations, and on February 11,
2013, the plaintiffs filed an opposition to the motion to
dismiss.
* On January 4, 2013, a putative class action under RESPA
titled Ba, et al. v. HSBC USA, Inc., et al., was filed in
the U.S. District Court for the Eastern District of
Pennsylvania. On February 26, 2013, Radian Guaranty moved
to dismiss this lawsuit for lack of standing because it did
not insure any of the plaintiffs' loans. On March 25, 2013,
the plaintiffs voluntarily dismissed Radian Guaranty from
this lawsuit.
With respect to the Samp case and the other similar putative class
actions, Radian Guaranty believes that the claims are without
merit and intends to vigorously defend itself against these
claims. The Company is not able to estimate the reasonably
possible loss or range of loss for these matters because the
proceedings are in a very preliminary stage and there is
uncertainty as to the likelihood of a class being certified or the
ultimate size of a class.
Based in Philadelphia, Pennsylvania, Radian Group Inc. is a credit
enhancement company with a primary strategic focus on domestic
residential mortgage insurance on first-lien loans. The Company
currently has two operating business segments -- mortgage
insurance and financial guaranty.
SEXOFFENDERIN.COM: Sued for Charging Requests to Remove False Info
------------------------------------------------------------------
Joe Harris at Courthouse News Service reports that operators of
the website Sexoffenderin.com charge people to remove false
information about them from its Internet postings, a class action
claims in Missouri.
Lead plaintiff Terracazeno Talbert sued the John or Jane Doe owner
of Sexoffenderin.com, in Jackson County Circuit Court.
Talbert says in the complaint that Sexoffenderin.com is a self-
proclaimed national sex offender registry, though it is not
affiliated with federal government or any other agency.
Users can search by name or by state and see photos and profile
pages which publish alleged sex offenders' addresses, birth date
and offenses, Talbert says.
"The website encourages viewers to report 'erroneous information'
that may be contained on the website," the complaint states.
But he says: "Defendant Doe refuses to remove unsubstantiated,
erroneous information from the website or profile pages contained
in the directory unless a user pays for such removal."
Talbert claims the website has a link to request removal of
information, but to do so costs $79 to $299. For $79 the
information will be removed within 45 days; for $99 within 25
days; for $199 within six days; and for $299 within 24 hours,
according to the complaint.
Talbert claim he never has been convicted of a sex offense, but
Sexoffenderin.com has a "profile" of him Talbert, containing his
address, birthday, a map from Google Maps pinpointing his home,
and a picture of him with the words "sex offender in" posted
across it.
Talbert claims family members have seen the profile and he had to
tell his employer about the false information.
"Plaintiff has suffered emotional damages in the form of
humiliation, sadness, increased stress, anxiety, sleeping
problems, and a lack of focus as a result of defendants' actions,"
the complaint states.
Talbert claims he paid $199 to have his name removed from the
website. But even after paying the fee, Talbert says, his name
continues to be associated with the website and can be found
listed under hyperlinks in search results using his name.
The class consists of all Missourians who have had false
information posted on Sexoffenderin.com and who have been forced
to pay for the removal of that information within the past five
years.
Defendants include Special Domain Services, Go Daddy Operating
Co., Domains by Proxy and its president and manager. Talbert
claims the co-defendants allow defendant Doe to register websites
through them anonymously.
He seeks an injunction requiring them to release Doe's
information, and punitive damages for violations of the Missouri
Merchandising Practices Act, unjust enrichment, conspiracy, and
punitive damages from Doe for false light invasion of privacy,
intentional infliction of emotional distress and defamation.
He is represented by Anne Schiavone with Holman Schiavone of
Kansas City, Mo.
SMART & FINAL: Faces Overtime Class Action
------------------------------------------
Courthouse News Service reports that Smart & Final Stores stiff
workers for overtime, a class action claims in Superior Court.
STANDARD FIRE: Baker & Hostetler Discusses CAFA Removal Standard
----------------------------------------------------------------
Dustin M. Dow, Esq. -- ddow@bakerlaw.com -- at Baker & Hostetler
LLP reports that of all the recent landscape-shifting opinions the
Supreme Court has issued in the class-action arena, perhaps none
appear as straightforward as Standard Fire Insurance Co. v.
Knowles, 133 S.Ct. 1345 (2013). Recall that in Standard Fire the
Court laid down an explicit rule that a putative class-action
plaintiff's stipulation to seek damages of less than $5 million
could not be used to defeat federal removal jurisdiction under the
Class Action Fairness Act ("CAFA"). The rule was clear: because
CAFA was enacted to ease class-action removal whenever $5 million
or more was in dispute (along with minimal diversity), named
plaintiffs could not get around CAFA by artificially stipulating
to seek damages below the $5 million threshold.
Yet, as the Court's term comes to close in June, it is becoming
apparent that life after Standard Fire might not be as easy to
apply as once thought. What the opinion left unaddressed?and what
remains subject to a circuit split?is the standard of proof by
which a defendant must prove more than $5 million is in dispute.
Must a defendant prove with legal certainty that CAFA jurisdiction
exists? Or need a defendant just establish the jurisdictional
threshold by a preponderance of the evidence?
It is a question that Standard Fire did not directly decide,
although the implication of the decision points toward a
preponderance of the evidence standard. After all, the driving
force behind the Standard Fire decision was the evident
Congressional purpose in CAFA to thwart manipulative tactics at
blocking federal jurisdiction through artificial means. If a
defendant had to prove CAFA jurisdiction with legal certainty,
then a damages stipulation would appear to remain a viable path
for plaintiffs to artificially avoid federal jurisdiction in
exchange for the friendlier confines of particular state venues.
Currently, some Circuits apply a preponderance of the evidence
standard for defendants attempting to remove under CAFA. See Bell
v. Hershey Co., 557 F.3d 953 (8th Cir. 2009); Smith v. Nationwide
Property & Cas. Ins. Co., 505 F.3d 401 (6th Cir. 2007). Others
require a legal certainty standard. See Lowdermilk v. United
States Bank Nat'l Ass'n, 479 F.3d 994 (9th Cir. 2007); Frederico
v. Home Depot, 507 F.3d 188 (3d Cir. 2007). Standard Fire does
not say for sure which should apply. In the absence of clarity,
district courts appear to be filling in gaps.
The Northern District of California recently held, for instance,
that the Ninth Circuit's legal certainty standard still applies
when a class complaint is silent as to damages as opposed to
stipulating an artificially low amount of damages below the $5
million threshold. Deaver v. BBVA Compass Consulting & Benefits,
Inc., 2013 WL 2156280 (N.D. Cal. May 17, 2013). In slight
contrast, the Central District of California noted in June that
when a class complaint alleges less than $5 million in dispute, it
is an open question whether the Ninth Circuit's legal certainty
standard will continue to apply after Standard Fire. But because
the defendant in that case could not show by a preponderance of
the evidence that more than $5 million was in dispute, the court
did not have to answer the question. Ornelas v. Children's Place
Retail Stores, Inc., 2013 WL 2468388 (C.D. Cal. June 5, 2013).
As clear-cut as Standard Fire appeared to be, the post-decision
battleground most likely will not fade away. Instead, in legal
certainty jurisdictions, defendants may still have to fight for a
preponderance of the evidence standard to remove under CAFA.
STILE PRODUCTS Recalls 175 Tern Folding Bicycles Due to Fall Risk
-----------------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
Stile Products and manufacturer, Alu Maga Industrial Co., Ltd., of
Taiwan, announced a voluntary recall of about 175 Tern folding
bicycles. Consumers should stop using this product unless
otherwise instructed. It is illegal to resell or attempt to
resell a recalled consumer product.
The bike's frame can crack at the hinge on the top tube, posing a
fall hazard.
Stile Products has received two reports of incidents of the frame
hinge cracking, resulting in minor scrapes and bruises.
The recall involves Eclipse S11i and Verge S11i, X10, X20 and X30h
models of Tern brand folding bikes. The 24-inch wheel Eclipse
model was sold in a silver/black color combination. The 20-inch
wheel Verge models were sold in silver/black, orange/white,
red/black and yellow/grey color combinations. "Tern" is printed
on the front end of the top tube and on portion of the frame. The
model name is printed on the middle of the top tube. The frame
has a 10-character alphanumeric serial number that begins with
AM1A or from AM1102 through AM1207. The serial number is stamped
on the bottom bracket shell of the bike. An alphanumeric service
tag number located on the front of the seat tube will be
requested. The bicycles' service tag numbers included on this
recall are listed on the firm's Web site. Pictures of the
recalled products are available at: http://is.gd/2TZgkR
The recalled products were manufactured in Taiwan and sold at
authorized Stile/Tern dealers nationwide from January 2012 to May
2013 for between $1,800 and $3,000.
Consumers should immediately stop riding the bicycle and contact
Stile Products or take the bike to an authorized dealer.
Consumers will receive a free frame and have it installed at no
cost. Stile Products may be reached toll-free at (888) 570-8376
from 9:00 a.m. to 4:00 p.m. Pacific Time Monday through Friday or
online at http://www.ternbicycles.com/and click on Product Recall
Information for more information.
SWAN CREEK: Recalls 715K Loose Votive Candles Due to Fire Hazard
----------------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
Swan Creek Candle Co., of Swanton, Ohio, announced a voluntary
recall of about 715,000 Loose Votive Candles. Consumers should
stop using this product unless otherwise instructed. It is
illegal to resell or attempt to resell a recalled consumer
product.
The candles can burn with a high flame, posing a fire and burn
hazard.
Swan Creek Candle has received about 89 reports of the loose
votive candles with high or erratic flames including four reports
of minor burns. The firm has not received any reports of fire or
property damage.
The recalled votive candles were sold loose, not in any container,
and were displayed in open trays or bins. The candles are 2-inches
high and are wider at the top measuring 1.75- inch diameter on top
and 1.5-inch at the base. The candles were sold in dozens of
fragrance varieties and colors. The votive candles were not
individually labeled with any prices, model numbers, names, date
codes or fragrance descriptions. Picture of the recalled products
is available at: http://is.gd/3Xl68d
The recalled products were manufactured in the United States of
America and sold at Swan Creek Candle company stores in Florida,
Michigan and Ohio, other small candle shops nationwide and on-line
at www.swancreekcandle.com from January 2012 through November 2012
for about $2.
Consumers should immediately stop using the recalled votive
candles and return them to any Swan Creek Candle company stores
for a full refund or a replacement poured votive candle in a
votive glass. Consumers who purchased online at
www.swancreekcandle.com can contact Swan Creek Candle Co. to
arrange a refund or replacement candle. Consumers who purchased
at other candle shops can return to the store where purchased for
a full refund. Swan Creek Candle Co. may be reached toll-free at
(888) 804-8492 from 9:00 a.m. to 4:00 p.m. Eastern Time Monday
through Friday or online at http://www.swancreeekcandle.com/and
click on "Candle Recall" at the bottom of the home page or e-mail
at scc.votiveissue@gmail.com for more information.
TELULAR CORP: Faces Suits Over Proposed Acquisition by Avista
-------------------------------------------------------------
Telular Corporation is facing stockholder class action lawsuits
arising from its proposed acquisition by Avista Capital Partners,
according to the Company's May 10, 2013, Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended
March 31, 2013.
On April 29, 2013, Telular and Avista Capital Partners jointly
announced that they have entered into a definitive agreement
providing for the acquisition of Telular for $12.61 per share in
cash and approximately $18.5 million in assumed net debt, or
approximately $253 million in total consideration. The purchase
price represents a 31% premium to the closing share price on
April 26, 2013, the last full trading day before the proposed
acquisition was announced, and a 27% premium to the 60-day average
share price. The proposed acquisition has fully committed
financing and is expected to close within 50-75 days of the
signing of the definitive agreement.
On May 2, 2013, a putative stockholder class action complaint was
filed in the Chancery Division of the Circuit Court of Cook
County, Illinois, captioned Nicholas v. Telular Corp. et al., Case
No. 2013-CH-11752 (the "Nicholas Complaint"). The Nicholas
Complaint names as defendants Telular and certain officers and
directors of the Telular Board (the "Nicholas Complaint
Defendants"). The Nicholas Complaint asserts two causes of
action: breach of fiduciary duty against the Nicholas Complaint
Defendants and aiding and abetting a breach of fiduciary duty
against Telular. The Nicholas Complaint alleges that the Nicholas
Complaint Defendants breached their fiduciary duties by causing
Telular to enter into the Merger Agreement, by agreeing to sell
Telular at an inadequate price, by failing to maximize the value
of Telular, and by agreeing to preclusive deal protection devices
that unduly restrict the ability of other potential acquirers to
bid successfully for Telular. The plaintiff in the Nicholas
Complaint seeks an injunction prohibiting consummation of the
proposed transaction, rescission, to the extent already
implemented, of the Merger Agreement, and fees and costs
associated with prosecuting the action.
On May 6, 2013, a putative stockholder class action complaint was
filed in the Chancery Court of the State of Delaware, captioned
Eichenbaum v. Telular Corp. et al., Case No. 8527 (the "Eichenbaum
Complaint"). The Eichenbaum Complaint names as defendants,
Telular, certain officers and directors of the Telular Board (the
"Eichenbaum Complaint Defendants"), Avista Capital Partners,
Parent and Purchaser. The complaint asserts two causes of action:
breach of fiduciary duty against the Eichenbaum Complaint
Defendants and aiding and abetting a breach of fiduciary duty
against Telular, Avista Capital Partners, Parent and Purchaser.
The Eichenbaum Complaint alleges that the Eichenbaum Complaint
Defendants breached their fiduciary duties by causing Telular to
enter into the Merger Agreement, by agreeing to sell Telular at
an inadequate price, by failing to maximize the value of Telular,
and by agreeing to preclusive deal protection devices that unduly
restrict the ability of other potential acquirers to bid
successfully for Telular. The plaintiff in the Eichenbaum
Complaint seeks an injunction prohibiting consummation of the
proposed transaction, rescission and rescissory damages (to the
extent the proposed transaction has already been consummated), an
accounting by the Eichenbaum Complaint Defendants to the class for
all damages suffered as a result of the alleged wrongdoing, and
fees and costs associated with prosecuting the action.
On May 6, 2013, a putative stockholder class action complaint was
filed in the Chancery Division of the Circuit Court of Cook
County, Illinois, captioned Levin v. Barker et al., Case No.
22013-CH-11977 (the "Levin Complaint"). The Levin Complaint names
as defendants Telular, certain officers and directors of the
Telular Board (the "Levin Complaint Defendants"), Sponsors, Parent
and Purchaser. The Levin Complaint asserts two causes of action:
breach of fiduciary duty against the Levin Complaint Defendants
and aiding and abetting a breach of fiduciary duty against
Telular, Sponsors, Parent and Purchaser. The Levin Complaint
alleges that the Levin Complaint Defendants breached their
fiduciary duties by causing Telular to enter into the Merger
Agreement, by agreeing to sell Telular at an inadequate price, by
failing to maximize the value of Telular, and by agreeing to
preclusive deal protection devices that unduly restrict the
ability of other potential acquirers to bid successfully for
Telular. The plaintiff in the Levin Complaint seeks an injunction
prohibiting consummation of the proposed transaction, rescission
and rescissory damages (to the extent the proposed transaction has
already been consummated), an accounting by the Levin Complaint
Defendants to the class for all damages suffered as a result of
the alleged wrongdoing, and fees and costs associated with
prosecuting the action.
Telular Corporation develops products and services that utilize
wireless networks to provide data connectivity among people and
machines. The Company is a Delaware corporation headquartered in
Chicago, Illinois.
TIME WARNER: Faces Class Action Over Unfair Business Practices
--------------------------------------------------------------
Matt Reynolds at Courthouse News Service reports that costs of
Time Warner Cable's $11 billion deal to broadcast Dodgers and
Lakers games are unlawfully passed on to subscribers -- whether
they're interested in sports or not, customers claim in a class
action.
Sherry Fischer and three other named plaintiffs sued Time Warner
Cable, the Lakers and the Dodgers, in Superior Court.
The class takes aim at two deals. In 2011, Timer Warner agreed to
a $3 billion, 20-year deal to televise Lakers games. The class
claims the direct and indirect costs to subscribers are an extra
$4 per month.
Time Warner cut an $8 billion deal in January to broadcast Dodgers
games. The class claims that 25-year agreement adds an extra $4
to $5 per month to cable bills -- $50 to $60 per year.
The programming is bundled into "enhanced" basic cable service,
according to the complaint.
Time Warner "will extract from its customer base primarily in
Southern California at least $11 billion to recoup its investment,
and approximately 60 percent of this amount, or $6.6 billion, is
extracted from individuals who do not want and do not watch and do
not want to pay for Lakers and Dodgers telecasts and who, if given
the option to do so, would opt out of such telecasts," the
complaint states.
Time Warner will broadcast Lakers games on two channels owned by
the basketball team, TWC SportsNet and TWC Deportes [Sports].
Dodgers games are broadcast on the SportsNet LA network, owned by
the team, the class says.
"There is no legitimate business, legal, technological, or
economic reason why TWC [Time Warner Cable] cannot offer these
Lakers and Dodgers games on a standalone channel basis so that
only those subscribers who want and are willing to pay for them
would do so and those who did not want these channels could 'opt
out,'" the complaint states.
Time Warner "sold the rights to televise the Lakers channels TWC
SportsNet and TWC Deportes to other multichannel video programming
distributors (MVPDs) including Cox, Charter, DirecTV, AT&T U-
Verse, and Verizon FiOS, requiring that these MVPDs include the
Lakers channels on their enhanced basic cable packages.
Subscribers do not have the choice opt out," the complaint states.
The class claims a similar deal is in the works for Dodgers games.
Proponents of an a la carte pricing structure for cable and
satellite television will likely welcome the lawsuit. The class
calls the practice of bundling channels "invidious."
In May, Sen. John McCain, R-Ariz. introduced a bill in Congress to
encourage cable providers to unbundle channels so customers can
subscribe to only the channels they want.
The plaintiffs seek an injunction against unlawful and/or unfair
business practices under the California Business and Professions
Code.
They are represented by Maxwell Blecher with Blecher Collins
Pepperman & Joye.
Time Warner did not immediately respond to a request for comment
after business hours June 18, 2013.
TITEFLEX CORP: Faces Class Action Over Defective Piping
-------------------------------------------------------
Kevin Koeninger at Courthouse News Service reports that a popular
"ultrathin, flexible piping" for natural gas lines can rupture and
cause fires during lightning storms, a property owner claims in a
class action.
Lead plaintiff David Klein sued the Titeflex Corp. in Federal
Court.
Titeflex, based in Springfield, Mass., makes Gastite corrugated
stainless steel tubing (CSST). Klein claims the company developed
it "as an alternative to the much thicker, more durable black iron
pipe that has been used to transport gas within residential and
commercial structures for more than a century."
Klein claims: "Titeflex improperly designed and manufactured
Gastite and failed to properly test its resistance to lightning
strikes. Gastite's thin walls are susceptible to perforation from
electrical arcs generated by lightning strikes, which can cause
and has caused devastating fires to residential structures that
put the structures' occupants at substantial and unreasonable risk
of death or personal injury.
"For instance, in Lubbock, Texas in August 2012, one person was
killed and another seriously injured when a lightning strike
punctured the CSST in a house, instigating a natural gas-fueled
fire. Fire and smoke damage affected the entire structure."
The number of properties at risk for similar fires is growing,
according to the complaint.
"As of March 2013, CSST commands slightly over one-half of the
market for fuel gas piping in new and remodeled residential
construction in the United States," the complaint states.
"According to CSST manufacturer Omega Flex, to date, over
750 million feet of CSST has been installed in over 5 million
homes across the United States."
Klein claims that "Titeflex has known since at least 2004 that
Gastite is prone to damage or perforation when subjected to an
electrical charge from an indirect or direct lightning strike."
He claims the product is under review by the National Fire
Protection Association.
Several other lawsuits against CSST manufacturers, including
Titeflex, have been filed in recent years, and one jury awarded
more than $1 million to homeowners whose house was destroyed when
CSST made by Omega Flex ruptured and ignited the natural gas in
the building, Klein says in the complaint.
He seeks class certification and compensatory and punitive damages
for breach of warranty and product liability.
He is represented by Jeffrey Goldenberg with Goldenberg Schneider
in Cincinnati.
TOWNSEND FARMS: Recalls Frozen Organic Antioxidant Blends
---------------------------------------------------------
Townsend Farms, Inc. of Fairview, Oregon, out of an abundance of
caution and in cooperation with the FDA is expanding its voluntary
recall efforts and is now recalling Townsend Farms Organic
Antioxidant Blend, 3 lb. bag with UPC 0 78414 40444 8. The recall
codes are located on the back of the package with the words "BEST
BY" followed by the code T122114 sequentially through T053115,
followed by a letter. All letter designations are included in the
voluntary recall. The voluntary recall is occurring because of a
potential hepatitis A contamination. The voluntary recall efforts
are based on epidemiological and trace-back evidence resulting
from an ongoing outbreak investigation conducted by the FDA and
the CDC. Photos of the package labels are available at:
http://www.fda.gov/Safety/Recalls/ucm359141.htm
Hepatitis A is a contagious liver disease that results from
exposure to the hepatitis A virus, including from food. It can
range from a mild illness lasting a few weeks to a serious illness
lasting several months. Illness generally occurs within 15 to 50
days of exposure and includes fatigue, abdominal pain, jaundice,
abnormal liver tests, dark urine and pale stool. Hepatitis A
vaccination can prevent illness if given within two weeks of
exposure to a contaminated food. In rare cases, particularly
consumers who have a pre-existing severe illness or are immune-
compromised, hepatitis A infection can progress to liver failure.
Persons who may have consumed affected product should consult with
their health care professional or local health department to
determine if a vaccination is appropriate, and consumers with
symptoms of hepatitis A should contact their health care
professionals or the local health department immediately.
Consumers with the product should not consume the product. The
product should be disposed of immediately. Please keep proof of
product purchase.
Townsend Farms is providing this Update #3 after the FDA and the
CDC confirmed that the epidemiological evidence supports a clear
association between the hepatitis A illness outbreak and one lot
of organic pomegranate seeds used in the Frozen Organic
Antioxidant blend subject to the voluntary recall. The implicated
lot of pomegranate seeds were imported from Turkey through Goknur
and Purely Pomegranate, Inc. The FDA has tested the recalled
product and the results to date have not detected hepatitis A.
The FDA has also reported that the epidemiological evidence does
not support an association between the illness outbreak and the
four other berry products (raspberry, blueberry, strawberry and
dark cherry) in the Frozen Organic Antioxidant blend (and which
have also been used in other Townsend Farms, Inc. Frozen Organic
products) or any other Fresh or Frozen berry products produced by
Townsend Farms, Inc.
Finally, as part of the ongoing investigation, the FDA, in
cooperation with Townsend Farms, Inc. has completed a directed
inspection of the company's frozen fruit repacking operations.
The FDA found no evidence linking either the Townsend Farms,
Inc.'s repacking facility or any food handler who had possible
contact with the product to the source of the illness outbreak.
This expansion does NOT AFFECT the previous voluntary recall
information regarding Harris Teeter Organic Antioxidant Berry
Blend, 10 oz. bag UPC 0 72036 70463 4. For additional information
regarding the voluntarily recalled Harris Teeter product visit the
FDA Web site at http://www.fda.gov/Safety/Recalls/ucm355166.htm.
TOWNSEND FARMS, INC. is committed to producing the highest quality
products, and is a certified Safety Quality Food facility.
Townsend Farms, Inc. follows industry Good Manufacturing Practices
(GMP) and sanitation procedures to ensure that its food products
are safely handled and processed.
For questions or more information, contact a Townsend Farms
Customer Service Representative by phone or e-mail at 1-800-875-
5291; townsendfarms5148@stericycle.com.
Customer service representatives will be available Monday through
Friday, 7:00 a.m. to 4:00 p.m. Pacific Daylight Time to respond to
inquiries.
TOWNSEND FARMS: Faces Class Action in Nevada Over Tainted Berries
-----------------------------------------------------------------
Joyce Lupiani, writing for KTNV, reports that a class action
lawsuit was filed on June 13 in Nevada against Townsend Farms
because of the frozen berry and pomegranate seed mix that has been
linked to a hepatitis A outbreak in several western states.
The lawsuit was filed on behalf of Thomas Fiore and all other
Nevada residents who received a hep A vaccination or immune
globulin injection after eaten the frozen berry blend, which was
sold at Costco.
According to the complaint, Fiore purchased the blend in May and
received the vaccine after learning about the outbreak.
The class action lawsuit asks that all class members being
compensated for the cost of receiving the vaccine or immune
globulin injection and for any time missed from work or other
expenses.
The lawsuit was filed in Clark County Superior Court by Seattle-
based Marler Clark and Las Vegas attorney Craig Murphy.
Close to 90 people in eight states were sickened after eating the
frozen berries. Six cases have been reported in Nevada.
TOYOTA MOTOR: Antioch Dealership Sued for Overcharging Customer
---------------------------------------------------------------
Courthouse News Service reports that an Antioch dealership charged
the disabled plaintiff more than advertised for a used 2009 Toyota
Tacoma, a class claims.
UNITED STATES: Immigration & Customs Enforcement Faces Class Suit
-----------------------------------------------------------------
Matt Reynolds at Courthouse News Service reports that Immigration
and Customs Enforcement used baseless and unconstitutional
"immigration holds" to detain thousands of U.S. citizens and legal
residents, a class action claims in Federal Court.
Lead plaintiff Gerardo Gonzalez sued ICE and its officials John
Morton, David Marin, and David Palmatier, alleging unlawful
seizure and unreasonable detention.
Gonzalez claims that since 2008 ICE has issued immigration
detainers, or "holds," to local authorities to "detain an
individual for 48 hours, excluding weekends and holidays, beyond
the time he or she would otherwise be released from criminal
custody."
The program gives ICE time to check whether detainees are subject
to removal, and take them into custody.
Gonzalez, 23, is in Los Angeles County jail awaiting trial on drug
charges. He says ICE issued an immigration detainer against him,
though FBI records of his prior arrests make it clear that he was
born in Pacoima, Calif., and is a native-born U.S. citizen. He
says those records were available to ICE.
"Because immigration holds purport to authorize two to five days
of imprisonment unrelated to the initial criminal custody, they
effectively cause a new seizure, and must be supported by probable
cause to believe the individual so detained is subject to
detention and removal," the complaint states. "And yet, in
practice, ICE has a pattern of not requiring its agents to
establish probable cause before issuing immigration holds. On the
contrary, ICE routinely begins to investigate whether an
individual is subject to removal only after he or she has been
subjected to additional detention under the immigration hold, or
after he or she is in ICE's physical custody. When it comes to
immigration holds, ICE's mantra is: Detain first, investigate
later.'"
Gonzalez claims that immigration officers, rather than courts or
judicial officials, issue the immigration detainer form, the I-
247.
ICE last year issued 1 million detainers to local authorities
nationwide. Of those, 28,489 were against permanent residents.
Almost two-thirds of those permanent residents do not have
criminal records, Gonzalez says in the complaint.
That year ICE issued 834 detainers against U.S. citizens, the
complaint states, citing the federal agency's own data.
"ICE's issuance of immigration holds without probable cause to
believe that a person is subject to removal has restrained and
deprived of their liberty thousands of people who are not actually
removable, including American citizens and lawful permanent
residents without criminal convictions that would render them
removable," the complaint states.
Gonzalez claims ICE "routinely treats inconclusive or ambiguous
evidence of removability as sufficient reason to issue a
detainer," even when "a database query fails to return affirmative
evidence of the person's immigration status."
Gonzalez claims that ICE detained him after a police officer
mistakenly reported that he is from Mexico. He claims that
prisoners with immigration detainers spend an average of 20 extra
days in jail. The holds prevent them from posting bail, accepting
plea agreements, and affect their eligibility for work programs in
jail, Gonzalez says.
"There is a consensus that our immigration system is broken, and
ICE's practice of issuing immigration holds without probable cause
is very much part of the problem," Jessica Karp of the National
Day Labor Organizing Network Soros said in statement June 19,
2013.
"While our immigration laws are outdated and in desperate need of
repair by Congress, the Constitution is enduring and must be
defended by all of us. Whatever pressure ICE feels to ramp up
deportation numbers is no excuse to trample basic constitutional
rights. June 21, 2013, our clients seek refuge in the courts to
defend those rights."
Gonzalez wants ICE enjoined from issuing the holds without
probable cause, a court order to withdraw existing holds, and
attorney fees and costs.
He is represented by Jennifer Pasquarella, Esq. ?
jpasquarella@aclu-sc.org -- with the ACLU Foundation of Southern
California.
Pasquarella represented a class that sued Los Angeles County and
Sheriff Lee Baca last year, claiming the county used the detainers
to deny bail to thousands of people.
The U.S. Department of Justice did not immediately respond to a
request for comment on the new complaint.
The Obama Administration has deported record numbers of people.
Late last year, ICE said it had deported 409,849 immigrants in the
2012 fiscal year.
Between July 2010 and September 2012, ICE deported more than
200,000 undocumented immigrants who have children who are U.S.
citizens, according to ICE data obtained by online magazine
Colorlines.
UNITED STATES: NSA Says Plaintiffs Overreacted to Notice
--------------------------------------------------------
Jack Bouboushian at Courthouse News Service reports that citizens
challenging the government's massive surveillance operation "have
very much overreacted" to the National Security Agency's request
to stay a 7-year-old case over its wiretapping program, the
government claims in a legal response.
Earlier in June, the NSA asked a federal judge to defer ruling on
the 2006 challenge to an NSA wiretapping program, citing media
coverage of the government's surveillance activities.
"In recent days there have been several media reports concerning
alleged surveillance activities, including in particular
concerning an Order of the Foreign Intelligence Surveillance
Court," the government stated in its motion. "In response to
these reports, the Director of National Intelligence directed that
certain information related to the 'business records' provision of
the Foreign Intelligence Surveillance Act be declassified and
immediately released to the public."
The government is referring to The Guardian's revelation that the
NSA forced Verizon to turn over its call data for all U.S.
customers. But a class of citizens seeking judicial review of the
NSA's massive spying operation denounced the request, calling it
the "latest attempt to delay public scrutiny, judicial oversight,
and justice."
On June 19, 2013, the NSA filed a reply claiming that "plaintiffs
have very much overreacted to the government's notice."
"They erroneously accuse the government of seeking to delay
proceedings and propose an order for further proceedings that we
believe would be inappropriate at this stage," the NSA says.
It says the motion was prompted by "a government contractor's
unauthorized disclosure of a top secret U.S. court document, not
by any desire by the government to delay this litigation,"
referring to former CIA contractor Edward Snowden's high-profile
leak.
The government says it did not request an indefinite stay, as the
plaintiffs allege, but simply asked for an additional 30 days "to
give it time to sort out the impact of recent events on the
pending state secrets assertion and file a status report."
The NSA also urged the court not to rule prematurely, as the
plaintiffs have urged, on its assertion of the state-secrets
privilege.
"Plaintiffs do not know the details of the government's privilege
assertion, as set forth in its classified declarations," the NSA
says. "Rather than accept plaintiffs' speculation about how
recent developments have impacted the state secrets privilege
assertion, the court should permit the government an opportunity
to address the matter in a status report."
UNITED STATES: 250,000 People Sign Up for Class Action v. NSA
-------------------------------------------------------------
Elizabeth Dwoskin, writing for Bloomberg, reports that it's been
weeks since the Guardian newspaper revealed, through documents
leaked by a whistleblower, that the National Security Agency was
sweeping up records of phone calls between U.S. citizens.
Already, the lawyers are pouncing.
Senator Rand Paul (R-Ky.) wants the customers of cell carriers
Verizon Wireless, AT&T (T), and Sprint Nextel (S) to bring a class
action against the NSA. On June 12, the American Civil Liberties
Union sued the Obama Administration, demanding that a judge stop
the NSA's surveillance program and purge the call logs caught up
in the sweep. The U.S. has also launched a criminal probe into
the leaks by Edward Snowden, the former NSA contractor who
disclosed details about the secret programs.
The ACLU case charges that the surveillance program violates the
First Amendment, which protects freedom of speech, and the Fourth
Amendment, which safeguards Americans against unreasonable
invasions of privacy. Specifically, the case challenges Section
215 of the Patriot Act, which says the government, to fight
terrorism, can compel third-party holders of your data, such as a
cell phone company, to hand your data over without your knowledge
or consent.
At a press conference in Washington on June 12, Sen. Paul said
that 250,000 people have already signed up, through a portal on
the website of his political action committee, RandPAC, to say
they want to join a class action. Sen. Paul said he wasn't sure
yet whether that meant signing on to the ACLU's case or bringing
his own, as he weighed the right legal strategy with his lawyers.
"To marry 250,000 and, I hope, millions of people to a lawsuit
will take some work," Sen. Paul said. He also encouraged
companies such as Verizon and Google (GOOG) to sign on to the suit
"to let their customers know they will stand up in defense of
privacy." Sen. Paul was flanked by representatives from privacy
groups, including the ACLU and the Electronic Frontier Foundation,
as well as the Tea Party group FreedomWorks and his father Ron
Paul's advocacy organization, the Campaign for Liberty.
FreedomWorks President Matt Kibbe told me his group has also set
up a petition site to channel people toward a class action and is
considering signing on to the ACLU suit.
The ACLU has raised this issue before and lost in court. The
Supreme Court dismissed a similar case earlier this year on
grounds that the ACLU and other parties to the lawsuit, including
journalists, didn't have proof that their calls and e-mails had
actually been nabbed. The court said that a reasonable suspicion
wasn't enough. The ACLU now believes its case is stronger because
it has actual records: the FISA court order leaked by Snowden.
Woodrow Hartzog, an affiliate scholar the Center for Internet &
Society at Stanford Law School, says demonstrating that cell
carrier customers were actually harmed as a result of their
communications being intercepted by the NSA will be the trickiest
part to prove in court. As he explained in an e-mail:
"[The ACLU will] likely have to demonstrate legitimate First
Amendment harms (such as chilling effects) or Fourth Amendment
harms (perhaps a violation of a reasonable expectation of
privacy). The question of ?harm' is one that is central in the
privacy debate right now with no clear resolution. Is it a harm
to merely know with certainty that you are being monitored by the
government? There's certainly an argument that it is. People
under surveillance act differently, experience a loss of autonomy,
are less likely to engage in self-exploration and reflection, and
are less willing to engage in core expressive political activities
such as dissenting speech and government criticism. Such
interests are what First and Fourth Amendment seek to protect, so
if they don't count as harm in this context, what would?"
UNITED STATES: Committee Probes Seizure of IRS Medical Records
--------------------------------------------------------------
Elizabeth MacDonald, writing for Fox Business, reports that the
House Energy & Commerce committee sent a letter to Internal
Revenue Service principal deputy commissioner Danny Werfel
demanding information about a class-action lawsuit against the IRS
that alleged 15 IRS agents improperly seized more than 60 million
medical records from 10 million taxpayers while investigating the
former employee of a health-care provider.
That provider was not named. Courthouse News Service first
reported the lawsuit, filed in March in state Superior Court in
San Diego, calling it a "lurid but vague class action."
The letter to Mr. Werfel requires a response by June 21. The IRS
didn't return a call for comment.
The suit claims the information allegedly seized includes
"information about treatment for any kind of medical concern,
including psychological counseling, gynecological counseling,
sexual or drug treatment."
"In light of these allegations and in anticipation of the IRS's
increased role in implementing healthcare under the Patient
Protection and Affordable Care Act, we are writing to request
information regarding your agency's ability to protect the
confidential medical information of millions of Americans and
respect the safeguards imposed by HIPAA."
No search warrant or subpoena authorized the seizure of these
records, the complaint reads.
The class-action suit was brought by Robert E. Barnes, a Malibu,
Calif., based lawyer who represented actor Wesley Snipes in his
tax fraud, conspiracy and tax evasion case, in which Mr. Snipes
allegedly failed to report more than $58 million in income from
1999 through 2004.
The suit alleges the IRS raided an unnamed medical provider, "John
Doe Company" located in the southern district of California in
March 2011. No other identifying information is provided.
Purportedly, according to the suit, 15 IRS agents "seized personal
mobile phones" at the company, as well as computer servers,
without screening to protect private medical care information.
Specifically, the suit alleges the IRS ordered the company's
information technology workers "to transfer several servers of the
medical records and patient records to the IRS for search and
seizure, otherwise they would 'rip' the servers out of the
building entirely."
The suit claims that the information IRS agents allegedly seized
also included records for at least "one million" residents of
California, adding the IRS allegedly seized medical records for
"prominent celebrities, sports personalities," and CEOs, and
potentially "the intimate medical records of every state judge in
California, every state court employee in California, leading and
politically controversial members of the Screen Actors Guild and
the Directors Guild, and prominent citizens in the world of
entertainment, business and government."
UNITED STATES: Sen. Paul Takes Steps Toward Surveillance Suit
-------------------------------------------------------------
Sean Sullivan, writing for The Washington Post, reports that
Sen. Rand Paul (R-Ky.) announced on June 13 that he is taking
steps toward bringing legal action against the government over its
sweeping surveillance efforts.
"The president said he want a debate. It starts [Thurs]day,"
Sen. Paul said at a Capitol Hill news conference, where he was
joined by a handful of lawmakers as well as representatives from
the American Civil Liberties Union and the conservative group
FreedomWorks, among others.
Sweeping telephone record and Internet surveillance efforts by the
National Security Agency were recently revealed by The Washington
Post and Britain's Guardian newspaper.
Sen. Paul announced on June 9 that he planned to file a class
action lawsuit and discussed his intention in a subsequent
interview on June 12, so the June 13 announcement was not a
surprise.
"Well, we are asking people who have been affected by this spying
if they want to sue the government and say, you know what, this is
unconstitutional," Sen. Paul told Fox News Channel on June 13.
"And since everyone's phone records were spied upon, I would guess
that that includes millions and millions of people. . . . So what
we're saying is, is that the government has no right through a
single warrant to search everyone's records."
Sen. Paul said on June 13 that more than 250,000 people have
signed on to a petition indicating an intent to be part of a
lawsuit.
The ACLU filed a lawsuit on June 11 that challenges the
constitutionality of the surveillance effort that collects the
telephone records of millions of Americans.
Sen. Paul is still exploring the specific avenues through which he
can file a lawsuit. For example, Sen. Paul said he is still
working to determine whether he can join other lawsuits. For now,
he said, the goal is to provide Americans who share his concerns
with a gathering point.
"Right now we are a portal for people to come and collect and say
we are unhappy with what the government's doing with our privacy,"
he said.
The senator said that discourse about the government's
surveillance efforts is a good thing, not a harmful development.
"What would be wrong is if someone released the computer
programming code about how we are doing this -- that's a secret,"
he said.
Sen. Paul Seeks Donations for Class Action
Matthew Hay Brown, writing for The Baltimore Sun, reports that
Sen. Rand Paul is recruiting plaintiffs -- and seeking donations
-- for a class-action lawsuit against the National Security
Agency.
"Dear Patriot," the Kentucky Republican wrote on June 13 in an
e-mail to supporters. "I'm looking for ten million Americans to
stand with me and sue the federal government and TAKE BACK our
rights.
"Can I count on your help?
"Without it, I truly fear where our fragile Republic could be
headed . . ."
Sen. Paul, who is expected to run for the Republican presidential
nomination in 2016, told a Fox News interviewer that he would be
asking Internet providers and telephone companies to join him in a
lawsuit against the electronic eavesdropping agency based at Fort
Meade.
His announcement follows revelations that the NSA was collecting
"telephony metadata" -- details of telephone communications,
including numbers dialed and length of calls -- and gathering
information from Internet providers including Facebook, Yahoo!,
Skype and YouTube.
The details were revealed by Edward Snowden, a contractor to the
NSA who lived in Maryland and attended Anne Arundel Community
College.
The Obama administration says the NSA programs were conducted
under the law, with approval from a secret federal court and the
full knowledge of Congress.
Sen. Paul, the son of former congressman and recurring
presidential candidate Ron Paul, sent out his solicitation through
his RandPAC USA political action committee.
In the e-mail, he links the NSA eavesdropping to a trio of
controversies that have beset the administration: IRS scrutiny of
tea party organizations, Justice Department monitoring of
telephones used by AP and Fox News reporters and the deaths of
U.S. diplomats and security personnel in Benghazi, Libya.
"I believe this is an absolutely critical and defining moment," he
writes. "My hope is, it will be remembered for decades as the
moment the American people stood up to their government and
demanded our liberties be respected.
"But I fear, without your help, it could be the moment the
American people quietly shrank from a fight and gave their last
bit of approval over for government-run lives."
UNITED STATES: To Grant $150,000 to 6 Judges for COL Adjustments
----------------------------------------------------------------
Lorraine Bailey at Courthouse News Service reports that six
federal judges who were denied cost-of living salary raises in six
different years can each recover about $150,000 from the
government, the claims court ruled.
In 2009, six judges led by Peter Beer filed a class action against
the United States for failing to pay certain cost-of-living
adjustments in violation of the Ethics Reform Act of 1989 and the
compensation clause of the U.S. Constitution.
The act requires automatic adjustment of judicial salaries each
year based on the Employment Cost Index. The raise can be
withheld only if severe economic conditions make the salary
adjustment "inappropriate."
Congress withheld the salary adjustments for federal judges from
1995 to 1999, in 2007, and in 2010, citing a lack of funds, but
other federal employees received the cost-of-living adjustment.
Last year, the en banc Federal Circuit overturned 11-year-old
precedent by ruling that Congress illegally withheld cost-of-
living salary raises from the judges.
"The judicial officer should enjoy the freedom to render decisions
-- sometimes unpopular decisions -- without fear that his or her
livelihood will be subject to political forces or reprisal from
other branches of government," the opinion stated.
Though Congress is authorized to set up a new scheme for paying
judges and managing cost-of-living increases, those changes cannot
affect sitting judges, the court found.
On remand, the Court of Federal Claims had to calculate the
appropriate compensation to which the judges were entitled since
January 2003, the statute of limitations limit.
Judge Eric Bruggink found last month that each judge deserves back
pay of between $147,900 and $163,000, for a total damages award of
$940,000.
The judges are not entitled, however, to prejudgment interest on
the 2007 and 2010 cost-of-living adjustments because such an award
would exceed the circuit court's mandate, according to the ruling.
"The Federal Circuit presumably could have found that failure to
pay the 2007 and 2010 COLAs [cost-of-living adjustments] amounted
to an unconstitutional diminishment of compensation, [but] the
court made clear that it was unnecessary to do so," Bruggink
wrote.
During the years at issue, all the plaintiff judges participated
in the federal life insurance program, and chose plans with
premiums directly correlated to salary. The government argued
that this meant the judges should now have to pay the higher
premiums they would have paid if they had earned their proper
salary.
Bruggink nevertheless declined to "time travel into the past to
reconstruct a 'but for' world in which the correct salaries were
received and then model how plaintiffs would have behaved."
"The insurance at issue is term coverage, and the relevant term is
over," he added. "None of these plaintiffs have died, so forcing
them to pay additional premiums neither reimburses the government
(or the private underwriter) for an expense incurred nor extracts
from plaintiffs a payment for additional coverage from which they
benefitted."
The judge also ordered the government to pay interest on the pre-
tax amount of the judgment, rather than impose a uniform 28
percent withholding rate before calculating interest.
"The court has no way of knowing how much income tax plaintiffs
would have paid," the 22-page opinion concludes. "Defendant
offers no proof of its own, despite its admonition that we should
put plaintiffs in the same position they would have been in absent
the violation. There is therefore even less justification here to
apply an arbitrary 28 percent on the fictional rationale that this
would recreate an actual 'but for' world."
US POSTAL: Settles Discrimination Class Action for $17.3 Million
----------------------------------------------------------------
Sean Reilly, writing for Federal Times, reports that the U.S.
Postal Service will pay almost $17.3 million to settle allegations
of discrimination against employees with disabilities.
The class-action complaint covers some 41,000 past and current
Postal Service workers whose work hours may have been restricted
from 2000 through last year because of permanent disabilities. The
complaint charged that the practice violated the 1973
Rehabilitation Act, which bars federal agencies from
discriminating against disabled employees.
In the settlement, which received preliminary approval from an
Equal Employment Opportunity Commission administrative judge last
month, the agency denied wrongdoing, but said it wanted to avoid
the expense of continued litigation.
Out of the total settlement amount, John Mosby, lead attorney for
the plaintiffs, and other lawyers representing the class will
split about $4.3 million and could also recoup up to another
$750,000 in expenses, subject to approval by the judge and the
Postal Service.
While the remainder averages out to about $300 per employee, it is
unclear how much each will actually receive. The final amount
will hinge on several factors, including how many people file
claims, according to a "frequently asked questions" section on the
website detailing the settlement.
Mr. Mosby could not be reached for comment.
Although the settlement still needs final approval from the EEOC,
members of the class were supposed to get formal notification of
the agreement.
VALLEY HOSPITAL: Faces Suit in New Jersey Over Patient's Death
--------------------------------------------------------------
The Estate of Gregory Polvere, by His Adminstratrix Angela
Polvere, and Angela Polvere, Individually v. The Valley Hospital,
The Valley Health System, The Valley Heart & Vascular Institute,
Jason Sperling, M.D., and Anatoly Volkov, M.D., and John Does,
M.D. 1-5 (a class of fictitiously named defendants), Jane Doe,
R.N., 1-5 (a class of fictitiously named defendants) and Doe
Physician Group, PA, or Doe Physician Group, PC or Doe Managed
Care Company, (a fictitious designation representing the class of
as yet unknown corporate entities affiliated or connected in any
manner with the individual defendants in this matter or with
plaintiff's care and vicariously, directly or administratively
responsible for the other medical providers actions or failures or
plaintiff's injury), Case No. L-004576-13 (N.J. Super. Ct., Bergen
Cty., June 24, 2013), alleges that the Defendants were negligent
and careless in their diagnosis of Gregory Polvere's condition.
Angela Polvere alleges that the Defendants deviate from accepted
medical standards in treating Mr. Polvere's illness and, as a
result, he sustained painful, disabling and permanent injuries
ultimately resulting in his death. Prior to his death, Mr.
Polvere sustained serious, painful, permanent and disabling
injuries, experienced great pain, suffering, and medical and
physical disabilities, was unable to work and lost large sums of
money for income he would have earned but for his injuries and
disabilities, and, suffered a loss of enjoyment of life, Ms.
Polvere contends.
Angela Polvere, of Monroe, New York, is the administratrix of
Gregory Polvere's estate. In June 2011, Gregory Polvere was a
patient at The Valley Health System, The Valley Hospital, and The
Valley Heart & Vascular Institute, where he was treated by
Defendants Jason Sperling, M.D., Anatoly Volkov, M.D., and John
Does, M.D. 1-5.
The Plaintiffs are represented by:
Michael B. Zerres, Esq.
BLUME, GOLDFADEN, BERKOWITZ, DONNELLY, FRIED &
FORTE, P.C.
1 Main Street
Chatham, NJ 07928
Telephone: (973) 635-5400
Facsimile: (973) 635-9339
E-mail: mzerres@njatty.com
VISA INC: Sues Wal-Mart Over Rejection of Class Action Settlement
-----------------------------------------------------------------
Finextra reports that the ongoing battle between card schemes and
US merchants over interchange fees has escalated, with news that
Visa is to sue the nation's largest retailer Wal-Mart over its
rejection of a previously negotiated $7.2 billion class action
interchange settlement.
The settlement, agreed by law firms acting on behalf of class
action plaintiffs in July last year, has since been rejected by a
host of top retailers and trade groups, who have counter-sued the
card schemes in search of heftier fines and deeper reforms.
Nearly 8000 merchants out of a proposed class of 8 million have so
far opted out of the preliminary agreement.
In May, Visa, MasterCard and several banks filed suit against the
National Association of Convenience Stores, the National Grocers
Association, the National Restaurant Association, Affiliated Foods
Midwest Cooperative and D'Agostino Supermarkets Inc.
For Wal-Mart, Visa has reiterated its earlier position that it
seeks finality in its dealings with retailers and wants to
"prevent the continuation of endless, wasteful litigation".
A Wal-Mart spokesman, Randy Hargrove, told Bloomberg that the
chain is still considering whether to pursue its own suit.
"We are disappointed that Visa chose to file this unwarranted and
unsupportable lawsuit in retaliation for our decision to opt out
and object to an unfair settlement agreement," Mr. Hargrove said
in a statement. "The proposed settlement would allow credit card
companies and big banks to perpetuate a broken system that costs
consumers billions of dollars each year."
WARNER CHAPPELL: Sued Over Happy Birthday Song Copyright
--------------------------------------------------------
Rich Schapiro, writing for New York Daily News, reports that a new
federal lawsuit seeks to end the party for the owners of the
"Happy Birthday" song.
A production company has filed a class action suit in Manhattan
Federal Court aimed at striking down Warner/Chappell Music's
copyright claim to the iconic tune.
Good Morning to You Productions claims that Warner/Chappell has no
right to demand payment every time the song appears on stage, on
TV or in a film.
"We think there's no reliable evidence at all that "Happy Birthday
to You" is anything other than a public adaptation of a nursery
rhyme that was written in the 1890s," said lawyer Mark Rifkin,
who's representing the plaintiffs.
"This lawsuit is about returning the song back to the public."
Warner/Chappell Music's copyright of the tune has borne quite a
gift: Each year the song brings an estimated $2 million in
royalties.
Warner splits the proceeds with the Hill Foundation, which
represents the Kentucky sisters credited with composing the 19th-
century nursery rhyme that spawned the song.
Reps for Warner did not immediately return a call for comment.
The popular song was composed in 1893 as "Good Morning to All" by
kindergarten teachers Patty and Mildred Hill.
The "Happy Birthday" lyrics were first published in a songbook in
1911 -- and the jingle, sung to the tune of "Good Morning to All,"
quickly became a hit.
It was originally copyrighted in 1935. Warner purchased the
rights to the song in 1988.
But the suit says the work originally registered with the
copyright office was "not eligible for federal copyright
protection."
"It consisted entirely of information that was common property and
contained no original authorship, except as to the sheet music
arrangement itself," the suit says.
Good Morning to You Productions, which is making a documentary
about the song, paid Warner $1,500 for use of the jingle in March.
The lawsuit is seeking class action status on behalf of all
parties who have paid a royalty to use the tune during the past
four years, which is the length of the statute period.
This is not the first legal fight over the song.
In 2005, the Maryland-based Association for Childhood Education
International sued claiming that the Hills' nephew bequeathed it
his share of the royalties before he died in 1992.
In a separate legal challenge decades earlier, another Hill
sister, Jessica, filed a suit claiming her sisters wrote the
melody -- but not the lyrics -- to "Happy Birthday."
The lawsuit was dismissed in June 1938.
WELLS FARGO: To Pay $500,000 Legal Fees, Judge Rules
----------------------------------------------------
Philip A. Janquart at Courthouse News Service reports that Wells
Fargo shareholders whose lawsuits spurred certain corporate
governance reforms deserve only about a quarter of their demand
for attorneys' fees, a federal judge ruled.
The separate, but otherwise "indistinguishable," derivative class
actions accused Wells Fargo and Wachovia of corporate
mismanagement, breach of fiduciary duty, waste of corporate
assets, indemnification and unjust enrichment.
In Feuer v. Thompson, in January 2010, J.N. Feuer and other
shareholders claimed that former Wachovia officers and directors
breached their fiduciary duty by purchasing Golden West Bank, and
"disregarded the risks undertaken by Wachovia with respect to the
packaging of subprime mortgages into collateralized debt
obligations and other securities," according to the ruling.
W.M. Rogers led the second action, Rogers v. Thompson, in January
2012.
"The claims against Wells Fargo directors arise out of their
failure to pursue these claims against the former officers and
director of Wachovia, and for approving a no-consideration
settlement in Arace v. Thompson et al., which purported to release
virtually any and all claims against the former officers and
directors of Wachovia (including many of the claims brought in the
Feuer and Rogers actions)," the ruling states.
U.S. District Judge Yvonne Gonzalez Rogers noted June 14, 2013,
that Richard Greenfield and Ilene Freier Brookler, of Greenfield
Goodman in Manhattan, and Rose Luzon, of Shephard Finkelman Miller
& Shah in San Diego, represented the plaintiffs in both federal
actions, which were consolidated in California's Northern
District.
After the parties reach a nonmonetary settlement that required
Wells Fargo to implement certain corporate governance reforms,
lawyers for the shareholders demanded $1.8 million in attorneys'
fees.
Rogers called this request too high, however, and awarded them
just $500,000.
"Counsel portray the case as highly complex and extremely
difficult, their labors as extensive and the results achieved by
the settlement outstanding," she wrote. "Despite this portrayal,
they have provided scant support for their assertions and
inapposite cases to show that the requested fee award is
reasonable. While the benefits conferred upon Wells Fargo and its
shareholders from these remedial measures form an adequate basis
to warrant an award of attorneys' fees, the fees requested are way
out of proportion to the benefit conferred upon Wells Fargo and
its shareholders."
The promised reform from the settlement requires Wells Fargo to
adopt an Acquisition Oversight Policy. In addition, the Wells
Fargo board's Risk Committee will retain an outside consultant
each year, for three years, to advise it on risk concerns.
Rogers remarked that "the benefit achieved by the litigation here
was modest and of limited duration." She also found that "the
records show excessive billing," and that there was "very little
substantive work" in both actions.
"The only substantive work in the Feuer action was the pre-suit
demand, drafting two complaints, and drafting an opposition to the
defendants' motions to dismiss," she said. "The only substantive
activity in the Rogers action was the filing of the initial
complaint."
As such, $500,000 is more than enough consideration, according to
the ruling.
"The court considers this award generous in the circumstances,"
she said.
WMI HOLDINGS: Distributions to RESPA Suit Class Members Ongoing
---------------------------------------------------------------
WMI Holdings Corp. disclosed in its May 10, 2013, Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended March 31, 2013, that distributions to eligible class members
are in process with respect to the Company's settlement of a class
action lawsuit.
With respect to the Company's sole operating subsidiary, of WM
Mortgage Reinsurance Company, Inc. ("WMMRC"), on October 22, 2007,
lead plaintiffs Robert Alexander and James Reed filed a putative
Class Action Complaint (the "Class Action Complaint") in the
United States District Court, Eastern District of Pennsylvania
(the "Pennsylvania Action") against WMMRC, Washington Mutual, Inc.
("WMI"), Washington Mutual Bank ("WMB") and Washington Mutual Bank
fsb ("FSB", and collectively, the "Defendants") alleging that the
Defendants violated Section 8 of the Real Estate Settlement
Procedures Act ("RESPA"), 12 U.S.C. Section 2607, by collecting
referral payments or unearned fees in the form of reinsurance
premiums. Specifically, plaintiffs allege that the private
mortgage insurance policies procured in connection with their
loans are subject to captive reinsurance arrangements between
private mortgage insurers and WMMRC. The Plaintiffs have alleged
that a percentage of the mortgage insurance premiums paid by
borrowers are ceded to WMMRC, but that the risk assumed by WMMRC
is not commensurate with the premiums that it receives. According
to plaintiffs, these allegedly excessive reinsurance premiums were
disguised kickbacks paid to WMI through the captive reinsurance
arrangements in exchange for the placement of its primary mortgage
business. The complaint seeks treble damages, attorney's fees and
defense costs.
On December 21, 2007, the Defendants filed a Motion to Dismiss
Plaintiffs' Complaint. That motion was denied. The Defendants
subsequently filed an interlocutory appeal of the denial with the
Third Circuit Court of Appeals.
Following the Third Circuit's October 2009 decision in Alston v.
Countrywide Financial Corp., 585 F.3d 753 (3d Cir. 2009), which
raised similar issues, the petition for appeal in the Pennsylvania
Action was denied and the matter was returned to the district
court. On January 11, 2010, the Pennsylvania Action was removed
from the Civil Suspense File and re-opened for final disposition
by the district court. A joint discovery plan was approved by the
district court on February 2, 2010. The Pennsylvania Action
remained stayed as to WMI due to its bankruptcy filing.
On March 1, 2010, WMMRC filed an Amended Answer to the Class
Action Complaint. In addition, pursuant to the parties' joint
discovery plan, three additional motions were filed on March 1,
2010. The Federal Deposit Insurance Corporation ("FDIC"), in its
capacity as receiver for WMB, and JPMorgan Chase Bank, National
Association ("JPMC"), as successor to FSB, filed motions to
dismiss the complaint for lack of subject matter jurisdiction.
Additionally, the FDIC, as receiver, filed a motion to strike
plaintiffs' class allegations against the FDIC for failure to
comply with procedural requirements of the Financial Institutions
Reform, Recovery and Enforcement Act ("FIRREA"). The FDIC's
motion to dismiss was granted on June 28, 2011.
In 2011, the parties reached a preliminary compromise and
settlement in the Class Action Complaint. That compromise was
subsequently memorialized in a written settlement agreement.
Pursuant to the Federal Rules of Civil Procedure, the settlement
must be approved by the United States District Court, Eastern
District of Pennsylvania (the "District Court"). On June 4, 2012,
Plaintiffs filed a motion for preliminary approval of the
settlement and on June 25, 2012, the District Court entered an
order preliminarily approving such settlement. In accordance with
GAAP guidance on Loss Contingencies, in 2010 management recorded
an accrual for estimated anticipated settlements of $4 million as
a component of other liabilities on the balance sheet and as a
component of general and administrative expenses on the statement
of operations. On or about July 16, 2012, the settlement amount
was deposited into a settlement distribution escrow account from
which the settlement amount will be distributed to plaintiffs in
accordance with the terms of the settlement agreement.
Accordingly, the amount of the accrual relating to the settlement
amount was zero as of December 31, 2012. A final hearing to
approve the settlement of the Class Action Complaint was held on
November 27, 2012, and the District Court issued an order finally
approving the settlement on December 4, 2012.
Distributions to eligible class members are in process.
WMI Holdings Corp. is a holding company organized in Washington
and based in Seattle. WMIHC, formerly known as Washington Mutual,
Inc., is the direct parent of WM Mortgage Reinsurance Company,
Inc., a Hawaiian corporation, and WMI Investment Corp., a Delaware
corporation. Upon emergence from bankruptcy on March 19, 2012,
the Company had limited operations other than WMMRC's legacy
reinsurance business, which is being operated in runoff and has
not written any new business since September 26, 2008.
WONDER BERRY: Recalls UMNITZA Brand Baby Cereal Products
--------------------------------------------------------
Starting date: June 27, 2013
Type of communication: Recall
Alert sub-type: Health Hazard Alert
Subcategory: Chemical
Hazard classification: Class 2
Source of recall: Canadian Food Inspection Agency
Recalling firm: Wonder Berry North America
Distribution: Alberta, Ontario, Quebec
Extent of the product
distribution: Retail
CFIA reference number: 8130
The Canadian Food Inspection Agency (CFIA) and Wonder Berry North
America are warning the public not to consume certain baby cereal
products because they may contain mycotoxin HT-2.
There has been one reported illness associated with the
consumption of these products.
The affected products have been distributed in Alberta, Ontario,
and Quebec.
The importer, Wonder Berry North America, Toronto, Ontario, is
voluntarily recalling the affected products from the marketplace.
The CFIA is monitoring the effectiveness of the recall.
All lot codes of the following UMNITZA (in Russian language) brand
baby cereal products, imported from the Russian Federation, are
affected by this alert:
Affected products:
Brand name Common name Size Code on product
---------- ----------- ---- ---------------
UMNITZA Buckwheat Pear & Milk 250 g All lot codes
flavour (in Russian
language only)
UPC: 4 680002 470580
UMNITZA 7 Grains flavour (in 250 g All lot codes
Russian language only)
UPC: 4 680002 470634
UMNITZA 5 Grains flavour (in 250 g All lot codes
Russian language only)
UPC: 4 680002 470542
UMNITZA Buckwheat & Pear 250 g All lot codes
flavour (in Russian
language only)
UPC: 4 680002 470641
UMNITZA Buckwheat & Milk 250 g All lot codes
flavour (in Russian
language only)
UPC: 4 680002 470535
UMNITZA Corn flavour (in 250 g All lot codes
Russian language only)
UPC: 4 680002 470665
UMNITZA Rice flavour (in 250 g All lot codes
Russian language only)
UPC: 4 680002 470672
UMNITZA Wheat Cereal, Milk & 250 g All lot codes
Pumpkin flavour (in
Russian language only)
UPC: 4 680002 474175
Pictures of the recalled products' labels are available at:
http://is.gd/F0t6SH
* COMPAT Rulings May Spur Class Actions in India
------------------------------------------------
Freny Patel, writing for Lawyer Monthly, reports that Indian
competition lawyers anticipate a series of class action lawsuits
once the Competition Appellate Tribunal (COMPAT) gives its
decision on appeals filed against orders of the Competition
Commission of India (CCI) in the DLF abuse of dominance case and
over an alleged cement cartel case.
India's Competition Act 2002 has always allowed for class action
suits, but to date not a single case of this type has been filed
in the country.
The Indian Builders Association filed with the CCI against cement
manufacturers in the country for allegedly forming a cartel, which
was investigated by the antitrust agency, following which the
watchdog penalized the cement producers INR63.07 billion.
In its quarterly newsletter (July-September 2012), the CCI said
that the Builders Association can also take class action by filing
an application with the COMPAT for the award of compensation to
offset loss/damages caused to its members. This is provided that
the tribunal upholds CCI's order. Trade associations can benefit
and take advantage of opportunities offered by the Competition Act
and help the industry, the CCI pointed out in the newsletter.
Section 53 N(4) of the Competition Act, 2002 (as amended) allows
parties to file compensation claims before the COMPAT as a class
of similarly aggrieved persons once there has been a final
decision, said Arshad (Paku) Khan, executive director
(competition/antitrust), Khaitan & Co.
If class action suits start getting used, "the stakes in India,
which are already high because of the large fines imposed by the
CCI, become even higher, especially for cases involving price-
fixing for commodity goods or other situations where multiple
persons have suffered harm from the same competition breach by the
same company," Mr. Khan told PaRR.
The Lok Sabha [the lower house of the India's legislature]
approved the Companies Bill, 2011 in December 2012. This bill
includes a provision for class action lawsuits, allowing a group
of investors with common interest in a matter to sue the
management of a firm, its auditors or a section of shareholders in
case of suspected wrong. This option is not available under the
current Companies Bill.
Under Section 245 and 246 of the new Bill, class action suits may
be filed by investors in a court of law if they believe that the
affairs of the company are being conducted in a manner detrimental
to the interest of the company and its shareholders. The aim of
this amendment to introduce class action suits is to help improve
the quality of financial reporting and corporate governance.
The Satyam Computer Services scandal of January 2009 saw US
investors who owned American Depositary Receipts (ADRs) demand a
settlement to the tune of USD125 million by mounting a class
action suit. Indian investors, however, failed to get any
compensation from the INR80 billion fraud committed by the founder
shareholders of Satyam.
However, unless there is an evolution in the legal profession
compelling the Bar Council of India to revise the Rules of
Professional Conduct, it is difficult to see a surge of class
action suits in the country, K K Sharma, founder of KK Sharma Law
Offices and the former director general and head of the CCI's
Antitrust and Merger divisions, told PaRR.
Section 49(1)(c) of the Advocates Act, 1961, the Bar Council of
India Rules, in Part IV, Chapter II, direct that an advocate
should not act or plead in any matter in which he has a financial
interest, Mr. Sharma said.
Even the draft Code of Ethics of the Bar Council of India does not
permit Conditional Fee Agreements. "We, as a law firm, have to
decline a number of matters, from abroad, because of these
professional standards," Mr. Sharma told PaRR.
Many law firms might be happy to litigate on behalf of small
groups and individuals who do not have the capacity to pay
immediately, if the rules permitted the law firms to do so,
Mr. Sharma said.
Overseas, there are numerous cases in which lawyers collect a
number of petitioners and fight different cases and claim the fee
in the end from the outcome of the judgment. In India, however,
this would amount to professional misconduct, Sharma noted.
Section 53 N of the Competition Act, 2002 deals with award/
compensation arising out of the findings of the Commission or the
orders of the Appellate Tribunal in an appeal against any findings
of the Commission or under section 42 A or under section 53 Q of
the Act, Sharma said. Incorporating this section in the
Competition Act does not take away the rigors of the existing
professional conduct rules, he noted.
By invoking this provision (section 53 N), the central government
or a state government or a local authority or any enterprise or
any person may make an application, if they can show that they
have suffered damage. That does not exclude the possibility of
some of the big customers/parties of a given entity, either singly
or in a group, engaging lawyers on a fee basis for taking such
cases and filing for damages, Mr. Sharma said.
Mr. Sharma added that provisions of the Companies Bill 2011, under
section 245 and 246, may in due course, also allow for the
initiation of class action suits.
* Miami Class Action Attorney Reaches Settlement With Raponi
------------------------------------------------------------
Julie Kay, writing for Daily Business Review, reports that Miami
class action attorney Jeremy Alters has reached a $1 million
settlement with an Argentinian law firm that claimed it was the
one to have originated the theory behind a billion-dollar class
action lawsuit against the nation's banks.
The settlement reached with Raponi & Hunter Abogados on June 6
came one week before a two-week trial was to begin before Miami-
Dade Circuit Judge Jennifer Bailey.
Raponi & Hunter, represented by Miami attorneys Stuart Ratzan and
Herman Russomanno, was seeking 25 percent of Mr. Alters' attorney
fees in the massive lawsuit, which could have totaled in the tens
of millions of dollars.
Mr. Alters' lawyer, Miami attorney Andrew Hall, said the Raponi
lawyers settled the case because they felt they were going to
lose.
"Jeremy was more than generous," Mr. Hall said. "He really wanted
to avoid a drawn-out trial and put this case behind him."
"Mr. Osvaldo Raponi and Mr. Jaime Hunter have amicably resolved
all legal issues with Jeremy Alters and his law firm," Mr.
Russomanno said. "Messrs. Raponi and Hunter were delighted to
have contributed to the outstanding settlement of the overdraft
litigation and send their congratulations to all the excellent
plaintiffs' law firm who achieved this fantastic result for the
consumers of this country."
"We also believe this is vindication for the fact that Mr.
Raponi's and Mr. Hunter's efforts from Argentina helped redress a
wrong done to millions of American consumers," Mr. Ratzan said.
In October 2012, Mr. Alters settled a lawsuit brought by another
Argentinian firm that claimed it was partially responsible for the
lucrative bank overdraft case. That settlement with Campos y
Asociados was for $600,000.
The Campos firm also sought a 25 percent cut of Mr. Alters' fees
in the case. The action was a consolidation of cases from around
the country that ultimately landed in Miami before Senior U.S.
District Judge James Lawrence King. The plaintiffs accused more
than 30 banks of systematically overcharging customers on
overdraft fees.
So far, Bank of America is the largest bank to have settled,
agreeing to pay $410 million. By the time the case is concluded,
settlements are expected to reach $1 billion with attorney fees
reaching into the hundreds of millions of dollars, making it one
of the largest class action cases in Florida history.
The Campos firm said it had a $30,000-a-month contract with
Mr. Alters to find cases, make introductions and act as
consultants for Alters in South America. The firm alleged it
introduced Mr. Alters to Raponi, which claimed it developed the
idea of suing banks for allegedly rearranging transactions to
boost their overdraft collections.
Mr. Alters and U.S. co-counsel wound up filing the massive class
action in Miami in 2008. Eventually, they partnered with Miami
lawyers Aaron Podhurst, Bobby Gilbert and Stuart Grossman, Fort
Lauderdale lawyer Bruce Rogow and several out-of-state counsel.
Mr. Alters denied he got the idea for the litigation strategy from
the Raponi lawyers. He said they made an unrelated suggestion
about a bank class action, but he got the idea for the overdraft
case after finding three similar cases that had been filed in
California. He said he offered Raponi a 6 percent cut of his fees
in February 2011 and was refused.
Mr. Alters argued that both firms did not have the proper visa to
conduct business in the United States and did not have permission
from The Florida Bar to provide assistance.
However, Mr. Alters' defense theory was rejected June 6 by Judge
Bailey, who granted the plaintiffs partial summary judgment. She
ruled Mr. Alters could not use the Argentinian lawyers'
immigration status as an affirmative defense.
The Raponi settlement ends Mr. Alters' disputes related to the
bank overdraft case. Scott Schlesinger of the Schlesinger Law
Firm in Fort Lauderdale had filed a charging lien against Alters
in the case, noting he had loaned Mr. Alters $2.1 million to help
fund the overdraft case and was Mr. Alters' co-counsel.
Mr. Schlesinger later withdrew the lien.
In November 2012, Mr. Alters merged his law firm with a New York
class action firm to create Morelli Alters & Ratner.
*********
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
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Information contained herein is obtained from sources believed to
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e-mail. Additional e-mail subscriptions for members of the same
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are $25 each. For subscription information, contact
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