/raid1/www/Hosts/bankrupt/CAR_Public/130716.mbx              C L A S S   A C T I O N   R E P O R T E R

             Tuesday, July 16, 2013, Vol. 15, No. 138


ABC LEARNING: Eddy Groves Joins Class Action to Recoup Investment
AMERICAN EXPRESS: High Court Ruling Applies Basic Legal Principles
AMERICAN EXPRESS: Haynes & Boone Discusses Supreme Court Ruling
AMERICAN EXPRESS: McCarthy Tetrault Discusses Arbitration Ruling
AMERICAN EXPRESS: Michael Best Discusses Supreme Court Ruling

APPLE INC: Faces Class Action Over Older iPhones' HD Videos
ASSURED GUARANTY: Jefferson Cty.'s Sewer Debt Suit Remains Stayed
AURCANA CORP: Faces Securities Class Action in Ontario
BANK OF IRELAND: LawDepartment Provides Update on Class Action
BARNHARDT MANUFACTURING: Loses Bid to Nix Spray Foam Class Action

BP PLC: Appeals Court Hears Arguments in Oil Spill Class Action
BP PLC: Says Administrator Pays Fictitious, Excessive Awards
BP PLC: Plaintiffs' Lawyer Described as Renaissance Man
BP PLC: White Oaks Fund Files Class Action in New York
CANADA: Reserve Residents Sue MANFF Over 2011 Flood Response

CANADIAN RAILWAY: Affleck Greene Discusses Supreme Court Ruling
CHA HOLLYWOOD: Littler Mendelson Discusses Court Rulings
COSTCO WHOLESALE: Recalls 2,288 Mango Leaf 3-pc Bamboo Salad Set
DECKERS OUTDOOR: Judge Tosses Class Action Over Stock Plunge
ELECTRONIC ARTS: Lawyers' Fees in Madden Class Action Challenged

EXPEDIA: 13 Suburbs File Class Action Over Local Hotel Taxes
FACEBOOK INC: Accused in Minn. of Misappropriating People's Names
FEDERAL EXPRESS: Settles Class Action Over Surcharges for $5MM
FIDELITY NATIONAL: Motion to Compel Arbitration in OT Suit Denied
FRS CO: Seeks Dismissal of Deceptive Marketing Class Action

GEORGE BROWN: Class Action Over Management Program Can Proceed
GREEN TREE: Faces Class Action Over Bullying Tactics
H&R BLOCK: Wants Judge to Stay Class Action Over Tax Refunds
HONDA MOTOR: Recalls 36 ACCORD Model
HONDA MOTOR: Recalls 8,871 FIT Model

HONDA MOTOR: Recalls 13 CTX700N, and CTX700T Models
HSBC USA: Pa. Court Refused to Junk Illegal Kickback Claims
IDEARC INC: Fifth Cir. Affirms Dismissal of ERISA Class Action
KIMBERLY-CLARK CORP: Faces Class Action Over Huggies Products
KOHL'S DEPARTMENT: Faces Class Action Over Cash Program

LIBERTY MEDIA: Appeals in Lawsuits v. Vivendi Consolidated
LIBERTY MEDIA: Seeks Dismissal of Sirius XM Shareholder Suit
LIBERTY MEDIA: Still Faces "Montero" Shareholder Suit in N.Y.
LINN ENERGY: Abraham Fruchter Retained to File Class Action
LOUISIANA CITIZENS: Oct. 30 Settlement Fairness Hearing Set

MADISON COUNTY, IL: Motions to Dismiss Tax Class Actions Filed
MADISON COUNTY, IL: Defends Class Actions Over Tax Auctions
MAPCO EXPRESS: Faces 3 Class Actions Over Malware Attack
MCCANN SCHOOL: Sued Over False Claims on Lab Tech Program
MERCK & CO: 30 Suits Remain in Vioxx Product Liability MDL

MERCK & CO: Oct. Claims Filing Deadline Set for Mo. "Vioxx" Class
MERCK & CO: Indiana "Vioxx" Plaintiff Fights to Keep Class
MERCK & CO: Oct. Trial Set in Ky. State Suit Over Safety of Vioxx
MERCK & CO: Discovery Proceeds in Motion to Amend Securities Suit
MERCK & CO: Facing Fosamax Product Liability Class Suit

MERCK & CO: Settles Vytorin Securities Lawsuit for $215 Million
MERCK & CO: Settles Schering-Plough/ENHANCE Stock Suit for $473M
MERCK & CO: Reinstated as Defendant in N.J. AWP Lawsuit
MERCK & CO: N.J. Suit Over Manufacturer Coupon Programs Dismissed
MERSCORP HOLDINGS: Judge Dismisses Recording Fee Class Action

NAT'L FOOTBALL: Judge Tosses Super Bowl XLV Seating Class Action
NOVA SCOTIA HOME: Lawyer Says Class Action "House of Straw"
OXFORD HEALTH: Morrison & Foerster Discusses Arbitration Ruling
PILOT FLYING J: Faces 3 More Class Actions Over Fuel Rebates

POSITIVESINGLES.COM: Judge Certifies Members' Class Action
RESTAURANT.COM: Online Purchases Subject to State Law, Court Rules
RONA INC: Recalls 2,060 UBERHAUS Hibachi Barbecues
SHAH BROTHERS: Recalls Shabros Brand Coriander Cumin Powders
STATE FARM: Seeks Dismissal of RICO Class Action

SYNOVUS FINANCIAL: Appeals Certification of Securities Lawsuit
TULSA COUNTY, OK: County Jail Faces Civil Rights Class Action
UNION PACIFIC: Latham Fights Disqualification Bid in Class Action
UNIPIXEL INC: Securities Class Action Voluntarily Dismissed
UNITED STATES: Oklahoma Indian Legal Services to Offer Help

WRIGHT MEDICAL: Awaits Order on Bid to Reconsider in Suit v. Unit
WRIGHT MEDICAL: Yet to File Settlement of Merger-Related Suits

* "Issues" Classes May Solve Problem of Certifying Damages
* Webber Wentzel Discusses Rulings on Two Class Actions


ABC LEARNING: Eddy Groves Joins Class Action to Recoup Investment
Liam Walsh, writing for The Courier-Mail, reports that Eddy
Groves, who ran a childcare empire that eventually collapsed owing
$2.7 billion, has joined a lawsuit to recoup his investment in a
failed forestry scheme.

The class action was run by DC Legal, a Sydney firm that also
tried to drum up business for a similar lawsuit against
Mr. Groves's old Brisbane-based firm ABC Learning Centres.

Mr. Groves was ABC's chief executive, overseeing almost 2300
outlets across four countries.  He was sacked in September 2008
and ABC collapsed months later.

Questions were raised about ABC's accounting, but Mr. Groves has
said ABC always acted with integrity for shareholders and the
accounts were honest.  But in a pitch to potential lawsuit
clients, DC Legal targeted ABC's accounts and argued shareholders
had been prejudiced about the business's true state.

Speaking from Canada, where he has relocated, Mr. Groves said he
did not think his participation in a class-action lawsuit was

"(There were) separate issues with each one," he told The Courier-
Mail.  He added any legal recompense would help pay off his

Mr. Groves, bankrupted this January, estimated he had invested
almost $6 million by 2006 in Great Southern timber plantations.
Great Southern was a managed investment scheme that collapsed in
2009.  His lawsuit participation was listed in separate bankruptcy
documents filed in Brisbane's Federal Court.

The documents also showed Mr. Groves, when asked to fill out main
reasons for the cause of bankruptcy, ticked "adverse legal action"
and wrote in the other reasons section: "Personal financial
pressure due to me being fired from ABC".

Other documents in court include emails and affidavits showing a
tussle between Mr. Groves and his bankruptcy trustees PPB

PPB at one stage questioned Mr. Groves compliance with his
obligations as a bankrupt.  One allegation was that the
entrepreneur made a $3.4 million gift to a trust fund in the past
five years, but he denied having done so, saying the money was
instead used to repay secured creditors

"My intention is to continue to cooperate and assist my trustees
(and) maximize the return to creditors," he said.

Both sides were entangled in a legal dispute that resulted in
Mr. Groves in May winning the right to travel to Canada.

Mr. Groves last week said the current relationship with PPB was
"very cooperative".  He plans to work at his wife's proposed
English language college in Vancouver; she successfully operates
such centers in Australia.

The Canadian center had been scheduled to start in September, but
Mr. Groves said recent disputes had delayed that opening.

AMERICAN EXPRESS: High Court Ruling Applies Basic Legal Principles
Atty. Carl D. Rafoth, in an article for Vindy.com, says a group of
recent decisions by the U.S. Supreme Court emanate from applying
basic legal principles including, (1) an individual case and
controversy (between party litigants) must be shown to confer
jurisdiction upon a court: if not, no case, and (2) upholding the
enforceability of the terms of a contract.

In the individual "case and controversy" cases the court denied
class-action status (where plaintiff's try to pool their claims
into one big case) because even if they won, there is no
acceptable way to determine damages to millions who would have
been drawn into the class.  In these types of cases, even if
successful (usually settled) each member of the class typically
receives far less than $100.  One recent settlement paid out $8.35
to each plaintiff.  This is big business for the legal community.

The "contract case" involved a group of merchants who contracted
with American Express to use its credit and services.  The
contract contained an arbitration clause requiring any dispute be
decided out of court via the arbitration process.  The Supreme
Court upheld the arbitration requirement and disallowed
certification as a class action.

If every group of individuals who envision success in the
courtroom through a class action lawsuit was permitted to proceed,
not only the deep pocket targets would be unfairly damaged but
more and more businesses would relocate to friendlier countries.
Our highest corporate tax rates have already accelerated this

The U.S. Constitution protects the freedom of individuals and
others to enter into contracts.

It has been aptly said that the single most important reason the
United States of America has led the world with unprecedented
prosperity for the most people is the fact that the overwhelming
majority of transactions (voluntary entered into agreements)
proceed without coercion to completion.  A voluntary exchange of
money for goods and services yields a clearly moral result:
reduction and even elimination of poverty and increased overall
human well-being.

Critics of Supreme Court decisions are frequently justified,
however limiting the recent deluge of class action lawsuits and
requiring persons to adhere to their contractual agreements
prevent both unwanted lawsuits and promote legitimate commerce.

AMERICAN EXPRESS: Haynes & Boone Discusses Supreme Court Ruling
Thad Behrens, Esq., Mark Trachtenberg, Esq. and Polly Graham, Esq.
at Haynes and Boone LLP, report that recently, the United States
Supreme Court issued its decision in American Express Co. v.
Italian Colors Restaurant, a third opinion in what is now a
trilogy of cases upholding the validity of class action waiver
clauses in contracts containing arbitration agreements.  In a 5-3
opinion authored by Justice Scalia1, the Court held that
arbitration agreements containing class action waivers are
enforceable even if the result is that it becomes economically
unfeasible for a plaintiff to assert a federal statutory claim
such as one under U.S. antitrust laws.

Background and Procedural History

The plaintiffs were merchants who accepted American Express cards.
According to plaintiffs, American Express used its alleged
monopoly power in the charge card market to force merchants to
accept credit cards at excessive rates in violation of the
antitrust laws.

The plaintiffs sued in federal district court and American Express
moved to compel arbitration pursuant to an arbitration clause in
its form merchant contract.  The contract contained a class action
waiver stating that the merchant would "not have the right to
participate in a representative capacity or as a member of any
class of claimants pertaining to any claim subject to
arbitration."  The plaintiffs presented evidence that the cost of
an economic study to prove an antitrust violation would vastly
exceed the recovery sought by any individual plaintiff.

After the district court granted the motion to compel, the Court
of Appeals for the Second Circuit reversed, concluding that "the
cost of plaintiffs' individually arbitrating their dispute with
Amex would be prohibitive, effectively depriving plaintiffs of the
statutory protections of the antitrust laws."  Accordingly, the
Second Circuit held that "as the class action waiver in this case
precludes plaintiffs from enforcing their statutory rights, we
find the arbitration provision unenforceable."

The Opinion

The Supreme Court reversed, holding that the arbitration agreement
was enforceable even if the cost of proving a claim in individual
arbitration exceeded its potential recovery.  The Court emphasized
that arbitration is a matter of contract and, therefore, that the
courts must "rigorously enforce" arbitration agreements according
to their terms.  Against this baseline, the Court's holding turned
on three rationales.

First, the Court concluded that "the antitrust laws do not
guarantee an affordable procedural path to the vindication of
every claim."  While Congress has facilitated antitrust lawsuits
by provisions such as treble damages, the Court reasoned that no
legislation "pursues its purpose at all costs" and noted that the
antitrust statutes were originally enacted before the advent of
the class device.

Second, the Court rejected the application of an "effective
vindication" exception to the enforceability of arbitration
agreements.  It noted that several of its prior decisions had
indicated a willingness, in dictum, to invalidate on public policy
grounds arbitration agreements that operate as a prospective
waiver of a party's right to pursue statutory remedies.  However,
the Court concluded that "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."

Finally, the Court concluded on a practical note, observing that
the process of weighing, on a case-by-case basis, the costs of
proving each claim against the damages recoverable would "destroy
the prospect of speedy resolution that arbitration in general and
bilateral arbitration in particular was meant to secure."  It
observed that the Federal Arbitration Act would not "sanction such
a judicially created superstructure."

Overall, the Court believed that its decision extended the law
only slightly from its recent decision in AT&T Mobility LLC v.
Concepcion, 131 S.Ct. 1740 (2011).  The Court admonished that it
had already "specifically rejected the argument that class
arbitration was necessary to prosecute claims 'that might
otherwise slip through the legal system.'"

Implications of the Decision

The decision in Italian Colors confirms that companies may avoid
class arbitration through waiver provisions -- even if the cost of
proving a claim in individual arbitration exceeds its potential
recovery.  It gives companies that include class action waiver
clauses in their standard arbitration agreement additional
assurance that those agreements will be strictly enforced.

AMERICAN EXPRESS: McCarthy Tetrault Discusses Arbitration Ruling
Marie-Helene Beaudoin, Esq. at McCarthy Tetrault LLP, reports that
what happens when the parties to an arbitration agreement
expressly contract out of the possibility of proceeding to a class
arbitration, and this means that plaintiffs will have to incur
great expense to each make proof of their claim individually, well
above the amounts they may obtain as a result of their
proceedings? Should a court not interfere and decide to hear the
dispute because "effective vindication" could not be attained
through arbitration? This was the question put to the Supreme
Court of the United States in American Express Co. v. Italian
Colors Restaurant (June 20, 2013).  The six justices forming the
majority held that the Court could not invalidate the class
arbitration waiver and that the claims should thus be continued by
arbitration, while the three remaining justices handed down a very
strong dissent.


Italian Colors Restaurant, as many other merchants, has entered
into an agreement with American Express for the use of the
American Express credit card.  These merchants, however, claim
that American Express used its monopoly power in the market for
charge cards to force merchants to accept credit cards at rates
approximately 30% higher than the fees for competing cards, and
that this allegedly constitutes a violation of antitrust law.

An agreement between the parties require that all of their
disputes be resolved by arbitration.  It provides that "there
shall be no right or authority for any claims to be arbitrated on
a class action basis".

The petitioners sought to have this clause invalidated and have
their recourse proceed before the courts, rather than arbitration.
They invoked the "effective-vindication exception" rule set out in
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., (1985)
473 U.S. 614, claiming that the case should not be referred to
arbitration because the costs of individually arbitrating a
federal statutory claim would exceed the potential recovery, and
would therefore be prohibitive of the assertion of their statutory

"[. . .] respondents submitted a declaration from an economist who
estimated that the cost of an expert analysis necessary to prove
the antitrust claims would be "at least several hundred thousand
dollars, and might exceed $1 million," while the maximum recovery
for an individual plaintiff would be $12,850 or $38,549 when

The Decision

The majority, under the pen of Justice Scalia, held as follows:

"No contrary congressional command requires us to reject the
waiver of class arbitration here.  Respondents argue that
requiring them to litigate their claims individually -- as they
contracted to do -- would contravene the policies of the antitrust
laws.  But the antitrust laws do not guarantee an affordable
procedural path to the vindication of every claim."

[. . .]

[. . .] [T]he 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. [. . .] The class-action waiver
merely limits arbitration to the two contracting parties. It no
more eliminates those parties' right to pursue their statutory
remedy than did federal law before its adoption of the class
action for legal relief in 1938 [. . .].  Or, to put it
differently, the individual suit that was considered adequate to
assure "effective vindication" of a federal right before adoption
of class-action procedures did not suddenly become "ineffective
vindication" upon their adoption."

The Dissent

The dissenting justices, under the pen of Justice Kagan, were not
kind to the majority in stating the following:

"And here is the nutshell version of the opinion, admirably
flaunted rather than camouflaged: Too darn bad."

They held, in short, that:

"[. . .] the expense involved in proving the claim in arbitration
is ten times what Italian Colors could hope to gain, even in a
best-case scenario.  That counts as a "prohibitive" cost, in
Randolph's terminology, if anything does.  No rational actor would
bring a claim worth tens of thousands of dollars if doing so meant
incurring costs in the hundreds of thousands.

[. . .]

When an arbitration agreement prevents the effective vindication
of federal rights, a party may go to court."
Potential Significance

The virtues of commercial arbitration have been recognized and
welcomed by the Supreme Court of Canada, such that courts have
gone from avoiding arbitration, and seeing it as contrary to
public order and the proper administration of justice, to
embracing it as a legitimate vehicle for fostering access to
justice (except in a consumer protection context, where many
legislators -- Quebec, Ontario, Alberta, and British Columbia --
have intervened to prohibit arbitration and waiver of class action

The majority decision in American Express Co. is in line with the
conclusion achieved a decade ago by the Supreme Court of Canada in
Desputeaux v. Editions Chouette (1987) inc., 2003 SCC 17, where
the Court decided that there was no violation of "public order" to
refer a copyright claim to arbitration, despite the fact that the
Supreme Court had previously stressed the importance placed on the
economic aspects of copyright in Canada.  The importance of
copyright, or antitrust law, in the case of American Express Co.,
does not mean it should be removed from arbitral jurisdiction.

What about class arbitration?

"It has been said that class arbitration -- also known as "class
action arbitration" -- is a "'uniquely American' device."1

Very little Canadian authorities have touched the subject, it's

The American Express Co. decision is still very relevant in the
Canadian context in that it reaffirms the principle of the
autonomy of contracting parties who choose to submit a dispute to
arbitration.  It confirms that any authority guiding the conduct
of the arbitration must be sought in the arbitration agreement,
first and foremost.

Considering this, although class proceedings are statutorily
available before the Courts, parties must have explicitly or
implicitly allowed them in their arbitration agreements for an
arbitrator to be entitled to order that the arbitration proceed on
a class basis.  As stated by the Supreme Court of the United
States in Oxford Health Plans LLC v. Sutter:

"Class arbitration is a matter of consent: An arbitrator may
employ class procedures only if the parties have authorized them."

Without consent of the parties, it seems that a number of
obstacles could stand in the way of class arbitrations in Canada.

This is particularly true in Quebec, where the "arbitration
agreement" is a "nominate contract" defined at sections 2638 and
ff. of the Civil Code of Quebec, ruled by the principle of privity
of contract provided for at section 1440 of the Civil Code of
Quebec, which states that "A contract has effect only between the
contracting parties; it does not affect third persons, except
where provided by law."  In this context, it is hard to envision
how an arbitrator could chose to reunite claims made under
separate contracts to hear them on a class basis, without express
authority from the parties.

In fact, in Telus Mobilite c. Comtois, 2012 QCCA 170, the Court of
Appeal of Quebec gave effect to a waiver of class action clause,
and referred the claim of corporate customers for "private,
confidential and binding arbitration" as per the arbitration
agreement -- the whole, without ever giving any thought to the
possibility of class arbitration.  The Court simply stated that it
was for the arbitrator to decide whether the waiver of the right
to institute a class action before the common law courts was
abusive or not (thereby applying the principles stated in Seidel
c. TELUS Communications Inc., 2011 CSC 15).  This, even after the
plaintiffs had pleaded that the costs associated with the
arbitration would be too expensive.

"[35] The class representative submits, as an alternative argument
for denying Telus' application, that the arbitration clause is
abusive and should be declared null under art. 1437 C.C.Q. and
arts 4.1 and 4.2 C.C.P.  In her view, such an arbitration clause,
by denying the possibility of participation in a class action and
by exposing the losing party to the costs of arbitration, deters
claims against Telus when the amount at stake is small.

[36] Absent legislated exception, any challenge to an arbitrator's
jurisdiction over a claim against Telus should first be determined
by the arbitrator [. . .]".

As my Toronto colleagues Brandon Kain and Larissa Moscu have
stated earlier on this Blog:

"The Telus case confirms that arbitration clauses remain a potent
defence to proposed class actions after Seidel v. TELUS
Communications Inc., [2011] 1 S.C.R. 531."

That said, in light of the decisions rendered by the Supreme Court
of the United States in American Express Co. and Oxford Health
Plans LLC, one would be well advised to consider the opportunity
of including a proper waiver of class arbitration in their
arbitration agreements, if seeking to protect themselves of the
possibility of an arbitrator ultimately deciding that claims may
proceed on a class basis.

Case Information

American Express Co. v. Italian Colors Restaurant, U.S.S.C., No.

Date of Decision: June 20, 2013

AMERICAN EXPRESS: Michael Best Discusses Supreme Court Ruling
Eric H. Rumbaugh -- ehrumbaugh@michaelbest.com -- and Steven A.
Nigh, Esq. -- sanigh@michaelbest.com -- at Michael Best &
Friedrich LLP report that after AT&T Mobility v. Concepcion,
arbitration came back into style for many employers.  While
arbitration is far from perfect, the thought that employers could
institute mandatory arbitration programs that greatly reduce the
threat of class actions helps general counsel and Human Resources
managers sleep better at night.  A pair of recent U.S. Supreme
Court decisions suggests that arbitration agreements are here to
stay, but that careful drafting of those agreements is a must for
employers that want to get the benefit of their bargains.

Mandatory Arbitration of Federal Statutory Claims Upheld

In American Express Co. v. Italian Colors Restaurant, the U.S.
Supreme Court held that a class action waiver in arbitration
agreements between the credit card company and several small
businesses was enforceable and barred a proposed class action
antitrust suit.  The small businesses successfully argued in the
court below that the class action waiver shouldn't be enforced
because the cost of litigating an antitrust suit against American
Express, hundreds of thousands of dollars or more, far outweighed
the $38,549 each business might recover if it won.  The Supreme
Court, however, disagreed, stating that neither the federal
antitrust laws nor the Federal Rules of Civil Procedure prevented
parties from agreeing to arbitrate all of their disputes on an
individual basis, even if individual suits were not affordable.

The take-home lesson for employers? Federal statutory claims
aren't special.  The Court's landmark decision in Concepcion did
not deal with a federal statute, leading some commentators to
think that the Court might strike down class action waivers of
federal statutory claims because federal statutes reflect
important public policy objectives, such as the maintenance of
minimum wages and the elimination of discrimination in employment.
But because the Court declined to create such a carve-out for
federal antitrust statutes, the Court likely won't create one for
federal employment statutes either.

The Arbitrator Messed Up -- Now What?

Employers that want to funnel potential employment claims into
arbitration, however, should be careful.  In Oxford Health Plans
LLC v. Sutter, the employer's arbitration agreement did not
specify whether class actions were prohibited, it merely said that
the parties agreed to arbitrate all their disputes.  The
arbitrator concluded that that language allowed class action
arbitration.  The employer ultimately appealed to the U.S. Supreme
Court, which hinted that it thought the arbitrator was dead wrong.
Regardless, the Court refused to overturn the arbitrator's
decision because under the Federal Arbitration Act, as long as the
arbitrator makes a good faith effort to interpret the parties'
contract, his interpretation is subject to very limited court

What's an Employer to Do?

Employers should consider whether mandatory arbitration agreements
are the right move for them.  For many employers, eliminating the
specter of class actions is worth it.  But if a business' exposure
to a class action is low, it may not benefit much from a mandatory
arbitration agreement.  Additionally, employers should consider
whether they are comfortable with a decision that's worth all the
marbles.  Arbitration decisions are virtually unappealable, so
employers need to be prepared to be stuck with bad decisions
before rushing into arbitration.

Fortunately, employers have options in this area of the law.  They
don't have to institute a mandatory arbitration program, and if
they do, they have some flexibility when structuring it.
Accordingly, employers should talk to their counsel to determine
whether arbitration agreements might fit their business' needs.

APPLE INC: Faces Class Action Over Older iPhones' HD Videos
Jeff John Roberts, writing for Gigaom, reports that Apple
encouraged consumers to pay more for HD versions of movies and TV
shows for their mobile devices -- even if those devices did not
support HD, says a new lawsuit.

A Florida lawyer who rented "Big Daddy" from iTunes has filed a
class action suit against Apple, claiming the company deceived him
into paying $1 more for a high-definition version of the film --
even though his phone did not support the HD format.

In a complaint filed in June in San Francisco federal court,
Scott Weiselberg says Apple violated consumer protection laws and
should compensate him and everyone else who paid $4.99 to download
HD versions of movies and TV shows to older Apple devices.

According to the complaint, the first three versions of the iPhone
and the iPod touch do not support HD video but Apple nonetheless
made HD the default option for these devices when it released
iTunes 8.0 in 2010.  As a result, consumers like Mr. Weiselberg
paid extra for an HD version even though, the complaint says, they
only received a Standard Definition version of the show since that
is all their device was capable of playing.  The filing adds that
iTunes was able to recognize that a device was SD-only but sold
the HD version anyways to make more money.

The complaint says that Apple sold over 49 million of the older
devices.  It does not seek a specific dollar amount but says that
"millions" of consumers downloaded HD videos to SD devices, and
accuses Apple of fraud, unjust enrichment and violating consumer
protection laws.

ASSURED GUARANTY: Jefferson Cty.'s Sewer Debt Suit Remains Stayed
In August 2008, a number of financial institutions and other
parties, including Assured Guaranty Municipal Corp. ("AGM"), an
affiliate of Assured Guaranty Re Ltd. ("AG Re), and other bond
insurers, were named as defendants in a civil action brought in
the circuit court of Jefferson County, Alabama, relating to the
County's problems meeting its sewer debt obligations: Charles E.
Wilson vs. JPMorgan Chase & Co et al. (filed the Circuit Court of
Jefferson County, Alabama), Case No. 01-CV-2008-901907.00, a
putative class action.  AG Re is a wholly-owned Subsidiary of
Assured Guaranty Ltd.  The action was brought on behalf of rate
payers, tax payers and citizens residing in Jefferson County, and
alleges conspiracy and fraud in connection with the issuance of
the County's debt.  The complaint in this lawsuit seeks equitable
relief, unspecified monetary damages, interest, attorneys' fees
and other costs.  On January, 13, 2011, the circuit court issued
an order denying a motion by the bond insurers and other
defendants to dismiss the action.  The Defendants, including the
bond insurers, have petitioned the Alabama Supreme Court for a
writ of mandamus to the circuit court vacating such order and
directing the dismissal with prejudice of the plaintiffs' claims
for lack of standing.  On January 23, 2012, the Alabama Supreme
Court entered a stay pending the resolution of the Jefferson
County bankruptcy.  AG Re says it cannot reasonably estimate the
possible loss or range of loss, if any, that may arise from this

No further updates were reported in the Company's May 17, 2013,
Form 8-K filing with the U.S. Securities and Exchange Commission.

Assured Guaranty Ltd. -- http://www.assuredguaranty.com/-- is a
Bermuda-based holding company incorporated in 2003 that provides,
through its subsidiaries, credit protection products to the United
States and international public finance, infrastructure and
structured finance markets.  The Company applies its credit
underwriting judgment, risk management skills and capital markets
experience to offer insurance that protects holders of debt
instruments and other monetary obligations from defaults in
scheduled payments, including scheduled interest and principal

AURCANA CORP: Faces Securities Class Action in Ontario
Sutts, Strosberg LLP on July 10 disclosed that a proposed class
action has been commenced in the Ontario Superior Court of Justice
against Aurcana Corporation.  The plaintiff has retained Sutts,
Strosberg LLP, a law firm that represents investors in securities
class actions, to prosecute the action.

The proposed class action concerns the circumstances surrounding
Aurcana Corporation's April 12, 2013 announcement that its Shafter
Mine had not reached its initial production target of 600 tons per
day on a continuous basis.  Since the announcement, the company's
share price has declined significantly.

Shareholders may visit the website www.aurcanaclassaction.com to
learn more about the proposed class action.  Shareholders who wish
to discuss the matter should contact:

         Jay Strosberg, Esq.
         251 Goyeau Street, Suite 600
         Windsor, ON N9A 6V4
         Telephone: 519-561-6296
         E-mail: jay@strosbergco.com

Sutts, Strosberg LLP is a class action law firm that has recovered
over $1.5 billion for its clients.

BANK OF IRELAND: LawDepartment Provides Update on Class Action
Justin Selig -- justin@lawdepartment.co.uk -- principal at
LawDepartment, disclosed that on July 8, the Treasury Committee
published a letter sent to Andrew Tyrie MP from Martin Wheatley,
Chairman of the Financial Conduct Authority dated May 20, 2013,
regarding the Bank of Ireland's recent move to increase the margin
differential on its lifetime tracker mortgages.

The letter looks at various aspects of the banks conduct and the
FCA broadly came to the conclusion that in some instances, the
bank was legally entitled to increase the differential.

However, the FCA's conclusion was based on numerous assumptions,
based on information provided to it by the bank, some of which is
not correct in the case of the borrowers represented by this firm.
These are as follows:

The bank assured the FCA that it would only proceed with the
increase where its ability to do so was clear from the
documentation, and where the relevant clauses were included in
both the mortgage contracts and mortgage offer documentation.

Mr. Selig said "We have received over 300 complaints from people
who were not aware that the bank was entitled to make this

"We have carefully reviewed the documentation provided by the bank
and have concluded that, whilst in most cases, there is mention in
the offer documentation of the bank's ability to increase the
differential, there is insufficient information provided as to
what this means or in what circumstances the bank is able to do
this.  Further, in many cases, the offer documentation does not
contain the relevant terms, but instead the bank seeks to
incorporate them by reference to the current general mortgage
terms and conditions.  These general terms and conditions were not
provided to the borrower with the offer letter, but with the
mortgage deed, after the offer letter had been signed and
contracts exchanged for the purchase of the property.  In some
cases, our clients do not recall ever having received a copy of
the relevant mortgage terms and conditions.

"The FCA seemed satisfied that the bank had waived its requirement
to pay an exit fee if borrowers chose to re-mortgage and that it
had therefore complied with one of the requirements of the Unfair
Terms in Consumer Contract Regulations 1999.

"In fact, the bank still requires those who are remortgaging to
pay an administrative fee.  Further, the assumption is made that
borrowers can actually re-mortgage.  In fact, it is likely that in
a large number of instances, borrowers would not be able to re-
mortgage with another lender.

"The bank has stated that customers would be exempt from the
increase if there was evidence to show that they had received
communications from the bank which led them to believe that the
differential would remain constant for the mortgage term.

"We have seen marketing material issued by both Bristol & West and
Bank of Ireland which in our view would lead borrowers to believe
that the differential was fixed for the term. Indeed some offer
letters describe the interest rate as being 'base plus x% for
term'.  However in none of these cases have the bank agreed to
reverse the increase.

"On a positive note, this letter was sent before the FCA would
have received our detailed submission based on our test case.  The
FCA communicated with us that it is considering our submission.
We expect a response by next month.

"In addition, we have still to hear from the Financial Ombudsman
Service who is also looking into this.

"Finally, none of the above rule out the ability of borrowers to
take legal action in their own names, against the bank.  Obviously
this action will be more costly, but given the large number of
borrowers who have committed to fighting the increase, the costs
can be brought down significantly.  Indeed, the FCA in its letter
did suggest that this might be an option for borrowers to take,"
Mr. Selig said.

LawDepartment is currently representing borrowers who may have
been affected by increases in lifetime tracker mortgage rates by
the Bank of Ireland.  If you would like to join the action please
contact Justin Selig at justin@lawdepartment.co.uk

BARNHARDT MANUFACTURING: Loses Bid to Nix Spray Foam Class Action
Andrew Scurria and Gavin Broady, writing for Law360, report that a
Pennsylvania federal judge on July 8 rejected Barnhardt
Manufacturing Co.'s attempt to scuttle a nationwide class action
tied to allegedly toxic home insulation, finding allegations that
its spray polyurethane foam can sicken residents to be credible.

U.S. District Judge Jan E. DuBois determined that Pennsylvania
homeowners Daniel and Paula Slemmer had adequately alleged that
the Sealite and InsulStar brands of spray polyurethane foam, or
SPF, made by Barnhardt are defective and can pose serious health
risks as certain chemicals evaporate from it.

Barnhardt and co-defendant McGlaughlin Spray Foam Insulation Inc.,
an installation company, moved to dismiss the suit in February,
arguing that the complaint lacked enough factual detail to
establish that they breached any duty of care.  The judge on
July 8 did toss claims for negligent supervision against Barnhardt
but declined to dismiss the bulk of the complaint, holding that
the suit had pled a breach of the insulation's implied warranties
with enough detail to justify discovery proceedings.

"The court concludes that plaintiffs have adequately pled a cause
of action for negligence against defendants," Judge DuBois ruled.

The Slemmers alleged in their November complaint that it is well
known in the home insulation industry that SPF is unstable and
prone to failure given the complexity and difficulty of proper
installation, which requires not only strict application
techniques but also a regular maintenance program.

The insulation, which Barnhardt markets as a safe, nontoxic
product, is in fact defectively designed, continuing to emit
chemicals under a process after installation known as "off-
gassing," in which dangerous chemicals are released into the air,
according to the complaint.

The U.S. Environmental Protection Agency has warned consumers of
the potential health risks of exposure to SPF chemicals, which
include headaches, respiratory issues, neurological issues, and
eye, nose and throat irritation.  The agency also says that
improperly applied SPF chemical contaminants may migrate to other
parts of the structure and cause damage as well as residual odors,
according to the complaint.

The Slemmers brought claims for negligence, strict liability,
warranty breaches and unjust enrichment stemming from sales of the
insulation, as well as negligent supervision from Barnhardt's
purported certification and training of McGlaughlin personnel to
install SPF.

The company failed to persuade Judge DuBois that it could not be
held liable under the Pennsylvania Unfair Trade Practices and
Consumer Protection Law after the homeowners admitted that they
purchased the insulation from McGlaughlin rather than from
Barnhardt directly.

"Plaintiffs' alleged use of Barnhardt's SPF for its intended
purpose was 'specially foreseeable,' as plaintiffs were consumers
of the product manufactured and marketed by Barnhardt," the judge
ruled on July 8, saying that the company fell within the "ambit of
liability" set out in a 1990 state court ruling that addressed how
far back liability can extend in a defective product's supply

"While plaintiffs did not purchase SPF directly from Barnhardt
. . . the lack of direct privity between consumer and manufacturer
is not a barrier to liability under the UTPCPL," the judge said.

The judge deferred ruling on the plaintiffs' claim for strict
liability pending the outcome of a closely watched case in the
state Supreme Court that will determine if the state adopts a
nationally accepted body of tort law that would force judges to
consider whether a product was negligently designed as part of
product liability analyses.

Barnhardt did win the dismissal of a claim for negligent
supervision, after Judge DuBois held that existing case law does
not support a contention that Barnhardt's training and
certification created a legal duty to supervise SPF installers.

Counsel for both parties were not immediately available for
comment on July 8.

Barnhardt is represented by Madeline M. Sherry --
msherry@gibbonslaw.com -- Stephen J. Imbriglia --
simbriglia@gibbonslaw.com -- and Stephen J. Finley of Gibbons PC.

McGlaughlin is represented by Stephen M. McManus --
smcmanus@mccormickpriore.com -- of McCormick & Priore PC.

The plaintiffs are represented by Jonathan Shub --
jshub@seegerweiss.com -- and Christopher A. Seeger --
cseeger@seegerweiss.com -- of Seeger Weiss LLP.

The case is Slemmer et al. v. NCFI Polyurethanes et al., case
number 2:12-cv-06542, in the U.S. District Court for the Eastern
District Court for the Eastern District of Pennsylvania.

BP PLC: Appeals Court Hears Arguments in Oil Spill Class Action
Kyle Barnett, writing for Legal Newsline, reports that a federal
appeals court on July 8 heard arguments involving the
administration of claims processing to individuals and businesses
negatively affected by the 2010 Gulf of Mexico oil spill.

The expedited appeal was taken up in the U.S. Court of Appeals for
the Fifth Circuit just a little over three months after defendant
BP filed it on April 5.

At issue are claims by BP that the settlement process it agreed to
in May 2012, which pays out settlements to businesses and
individuals affected by the explosion of the BP-owned Deepwater
Horizon oil rig, has been perverted to provide settlements over
and above what those affected deserve in addition to being applied
to businesses that were not affected by the spill.

BP originally estimated that the settlement to be worth $7.8
billion to the plaintiffs, but the claims process has no cap and
is expected to grow substantially if the current process is left
in place.

Theodore Olson, Esq. -- tolson@gibsondunn.com -- a partner with
Washington, D.C.-based Gibson, Dunn & Crutcher, represented BP at
the July 8 hearing.

Mr. Olson argued that BP had a right to appeal the settlement
process despite orders not to by U.S. District Judge Carl Barbier
who is overseeing the larger case on the oil spill in the U.S.
District Court for the Eastern District of Louisiana.  Judge
Barbier previously refused BP's motion to put an emergency stop on
the claims process until the issue could be straightened out.

"The district court has made it very clear that he does not want
to hear any more arguments with respect to these issues,"
Mr. Olson said.

"We had no choice.  We sought relief with this court in every
means available to us to stop the hemorrhaging of cash, which is
otherwise not going to be recoverable, potentially at least."

Mr. Olson claimed the interpretation of the settlement claims
process was changed after its inception without BP's knowledge.

"There was no evidence that my clients knew what was going on with
respect to this event," he said.  "In fact, this was an
interpretation of the settlement agreement that was not shared
with my clients at the time it was made for some reason.  Then we
found out about it."

The interpretation BP alleges the claims administrator approved
did not take into account inflated income due to variable profits
where businesses experience a greatly increased amount of business
in a short amount of time.

Mr. Olson claims that the calculations allowing the increased
income to be taken into account artificially inflated payments.

"There is no question about what the purpose was, to calculate
that amount of profits lost during a claim period versus a
benchmark period and the calculation between the difference
between a comparable period," he said.

Instead, Olson said claimants were allowed to report income over a
shortened period of time that would result in a larger payout.

Samuel Issacharoff, a New York University School of Law professor,
served as counsel for the class action plaintiffs at the July 8

In addition to defending the payment process, he also defended the
inclusion of businesses that may not have been directly impacted
by the oil spill.

"BP understood, to their credit, that they had destroyed the
business environment of the Gulf," Mr. Issacharoff said.  "It
wasn't just the toxic spill in the Gulf but it was the business
environment throughout this region.  So they decided they wanted
all these claims off the table."

Judge Edith Brown Clement asked Mr. Issacharoff if the plaintiff
class knew that businesses not directly impacted would be allowed
into the settlement.

"Did you anticipate this feeding frenzy where people would come
out of the woodwork not being able to prove oil spill related
claims and that they would be approved?" she said.  "I have a hard
time understanding why that would be contemplated as part of the
settlement why a person with no legal claim would get in line for
a legal recovery."

Mr. Issacharoff used an example he attributed to Halliburton, a
co-defendant in the U.S. District Court case who declined to
participate in the claims process, on Benton County, Miss. as why
BP should have known they were going to make payments to
businesses that may have not been directly affected by the oil

"Benton County has no tourism industry, no seafood industry that I
am aware of and says if you map this settlement on too, Benton
County would qualify even though it is far from the Gulf, even
though it is on the Tennessee border," he said.  "And BP said
'that is the settlement we want.'"

Judge Clement said it did not matter if BP agreed to the claims
process if its interpretation was flawed.

"It doesn't make it legally correct," she said.  "It doesn't make
it legally viable under the class action rules."

Attorney Rick Stanley represented claims administrator Patrick
Juneau in court.

Juneau previously claimed he should be immune from the appeals
process and that the case should not be heard by the court.

Mr. Stanley said that BP's claims of excessive payments did not
begin until Dec. 5, 2012 and that before that time they agreed
with the payments.

"At the fairness hearing on November, BP told the district court
that the settlement program was 'working as anticipated' and that
Mr. Juneau should be allowed to 'continue his excellent work,'" he

Mr. Stanley said although Mr. Juneau believes nothing had changed
since the inception of the program that his office questioned the
agreement in allowing businesses to use income over a short period
of time for their claims rather than over a longer time period.

"If you use such a short time period, especially with the cash
basis taxpayer, you were inevitably going to get that," he said.
"In fact, what the accountants suggested was just use the variable
profit margin instead of the expenses and revenues because I think
they foresaw what would happen."

However, Mr. Stanley said it was not Mr. Juneau's job to question
the agreement, but only to follow court orders.

"Our position is that we will do whatever the courts tell us to
do," he said.  "We did not negotiate this deal we have no stake in
the deal other than execute it as officially as possible."

At the end of the hearing Olson reiterated the importance of the
appeal to the court.

"What this has come down to from our opponents is that
jurisdictionally you can't do anything about this situation," he

"Your clients have been subject to a final interpretation that the
district court has decided is unreviewable that is costing immense
amounts of money, irreparable injury and you cannot do anything
about it.  That is inconsistent with what this court has decided
again and again."

BP PLC: Says Administrator Pays Fictitious, Excessive Awards
Richard Thompson, writing for NOLA.com|The Times-Picayune, reports
that an attorney for BP told an appellate court panel on July 8
that a court-appointed claims administrator of a multi-billion-
dollar settlement with Gulf Coast businesses that lost money in
the 2010 Deepwater Horizon disaster is paying out "fictitious,
exaggerated, and excessive awards."

Theodore Olson, who was solicitor general under President George
W. Bush, argued BP's case before the three-judge panel of the 5th
U.S. Circuit Court of Appeals.

The case centers on the administrator's interpretation of BP's
class-action settlement of damage claims for the Gulf oil spill.
Lawyers for the British oil giant brokered the deal with
plaintiffs' attorneys last year, and U.S. District Judge Carl
Barbier, who is overseeing the sprawling spill trial, approved it
in December.

Now, BP contends that the settlement's terms are being
misinterpreted.  And because of that, Mr. Olson argued on July 8,
"irreparable injustices are taking place, and money is being
dispensed to parties from whom it might not ever be recoverable."

As he presented his case, Mr. Olson fielded questions from the
three judges, contending that the appellate court was the right
jurisdiction to settle the dispute.

"My client is in a very difficult situation," he said, adding that
Judge Barbier had "made it very clear that he does not want to
hear any more arguments with respect to these issues."

Olson said the settlement's formula for determining lost profits
stemming from the spill followed "generally accepted and widely
accepted accounting terms."

"Aren't you just taking individual words out of this settlement
and constructing a purpose and a scheme that you would like based
on that?" Judge James L. Dennis, who seemed skeptical at times in
reacting to his arguments, asked Mr. Olson.

In March, BP sought a temporary injunction from Judge Barbier,
saying the claims administrator, Lafayette lawyer Patrick Juneau,
was misinterpreting the wording of the agreement involving large
business claimants, allowing attorneys throughout the Gulf to
advertise that businesses were eligible for payments even if they
were not directly damaged by the spill.

In a March 5 ruling, Judge Barbier acknowledged that the
settlement's terms may result in "absurd results" at times, but
said BP was aware of this when it agreed to the deal.  That was
part of the cost of settling a class action lawsuit, he said.

At issue is the timing used by companies to determine when losses
occurred during a period after the spill, compared with the
businesses' profits during a similar period before the spill.

Judge Barbier, in his earlier ruling, acknowledged that the
settlement "provides that if a claimant fails to select the period
that generates the greatest recovery, the program will choose that
period for him."

BP, in a court filing last month, called the approach "anything
but equal, fair, or rational; instead, by treating similarly
situated claimants differently based on pure happenstance, that
approach is arbitrary, illogical, and absurd."

Dennis seemed to agree with Judge Barbier's sentiment: that both
sides were involved in negotiating the settlement.  The appellate
court judge told Olson from the bench that "the parties have given
up things in order to gain things, and it seems to me something
that you gave up was the agreement that defines what is a lost
profit in a particular way."

"You had a chance to not agree to that, several chances, so how
can we go beyond the four corners of the agreement?" Dennis asked.

Olson responded that there was "no evidence and no reason why BP
would have allowed this to go on, the hemorrhaging of possibly
billions of dollars."

Samuel Issacharoff, representing private plaintiffs, said BP
agreed to settle the spill claims instead of litigating individual
lawsuits because the company wanted "global peace."

"I think they had an understanding of this that was pretty clear,"
said Mr. Issacharoff, a New York University law professor who
specializes in complex litigation.

The Deepwater Horizon was drilling BP's Macondo oil well in the
Gulf on April 20, 2010, when it caught fire and exploded. Eleven
workers were killed. The disaster caused one of the worst
environmental disasters in the nation's history.

In April, Judge Barbier, who is overseeing the massive Gulf oil
spill trial, rejected BP's attempt to block Mr. Juneau from paying
settlements under the deal.  BP immediately challenged Judge
Barbier's ruling in the appeals court.

Judge Barbier has previously upheld Juneau's interpretation of the
deal, saying from the bench during a March hearing that it was "at
least the third time that the court has had to review and look at
this issue."

Joining Dennis on the 5th U.S. Circuit Court of Appeals panel were
judges Edith Brown Clement and Leslie H. Southwick.  The group
gave no indication when they would rule.

In court filings last month, BP said attorneys for Louisiana,
Mississippi and Alabama had not explained "how the standard
financial accounting practices and economic tests mandated by the
agreement -- such as the matching of 'corresponding' expenses with
revenue -- constitute a subjective determination of lost profit."

The filing describes Mr. Juneau's interpretation of the deal as
"subjective and standard less," contending that he "has issued
inflated awards based on monthly financial data even where the
claimant has admitted that those data are inaccurate."

The company initially estimated the deal would cost about $7.8
billion.  That grew to $8.5 billion.  In March, BP said in a
regulatory filing that "no reliable estimate can be made of any
business economic loss claims."

Standing outside the courtroom after the hearing, Mr. Juneau said
in a brief interview that he's simply "here to do a job," and that
much work still lies ahead.  His office has offered payments to
nearly 8,000 businesses totaling $1.96 billion, according to a
June 11 status report filed in federal court.

BP PLC: Plaintiffs' Lawyer Described as Renaissance Man
Jessica Karmasek, writing for Louisiana Record, reports that
Samuel Issacharoff, the New York University School of Law
professor who is representing a group of class action plaintiffs
against oil giant BP, often is described as a Renaissance man.

Indeed, his list of accomplishments is long and he seems to be
constantly reinventing himself, delving into different fields and
more than willing to share his wide-ranging expertise with others
-- even the President.

In 2008, during the primaries and general election season, Mr.
Issacharoff, along with fellow professor Richard Pildes, worked as
part of Barack Obama's campaign legal team.

The pair's focus was to monitor voting issues around the country,
and respond to any problems that may require legal intervention.

Prior to the election, Mr. Issacharoff joined the NYU School of
Law as the Bonnie and Richard Reiss Professor of Constitutional

A 1983 graduate of the Yale Law School, Mr. Issacharoff spent the
early part of his career as a voting rights lawyer.

In particular, he served as the acting director of the Voting
Rights Project for the D.C.-based Lawyers' Committee for Civil
Rights Under Law, litigating issues like racist gerrymandering.

"These were great professional moments that gave me tremendous
satisfaction. You felt you were on the right side of history," he
told NYU's The Law School Magazine of the experience.

Mr. Issacharoff started his teaching career at the University of
Texas in 1989.  There, he held the Joseph D. Jamail Centennial
Chair in Law.

A few years later, in 1992, as a junior faculty member of Texas'
law school, he did a turn as an affirmative action lawyer and
helped represent the university in the high-profile Hopwood v.

In Hopwood, four white plaintiffs who had been rejected from the
university's law school challenged the institution's admissions
policy on equal protection grounds, and prevailed.

After seven years as a precedent in the U.S. Court of Appeals for
the Fifth Circuit, the decision was repealed by the U.S. Supreme
Court in 2003.

In 1999, Mr. Issacharoff headed to Columbia Law School, where he
was the Harold R. Medina Professor of Procedural Jurisprudence.

Then, in 2005, he was lured away to NYU.

As the Reiss Professor, Mr. Issacharoff's wide-ranging research
deals with issues in civil procedure (especially complex
litigation and class actions), law and economics, constitutional
law, particularly with regard to voting rights and electoral
systems, and employment law.

Many consider him to be one of the pioneers in the law of the
political process.

Over the years, his published articles have appeared in every
leading law review, as well as in leading journals in other

In fact, his Law of Democracy casebook, co-authored by Pildes and
Stanford law professor Pamela Karlan, was used by Obama when he
was a professor at the University of Chicago Law School.

"He's a lawyer hyphen scholar. He's able to bridge the gap between
high theory and a lawyer's sense of how judges are thinking about
issues.  His practice informs his scholarship, and his scholarship
informs his practice," Ms. Karlan said of Mr. Issacharoff in 2005.

Mr. Issacharoff also is considered a leading figure in the field
of procedure, both in the academy and outside.

He served as the reporter for the Principles of the Law of
Aggregate Litigation, released by the American Law Institute in
2010. The book provides an overview of mass disputes in modern
society and discusses key concepts in the field.

Also, in 2003, he was inducted into the prestigious American
Academy of Arts of Sciences for his expertise in employment law
and his empirical work in behavioral law and economics.

Mr. Issacharoff was born in Buenos Aires to father Amnon, a
psychoanalyst, and mother Dorah, who taught college comparative

When he was 5 years old, his family moved to the United States,
eventually settling in Manhattan.

He attended the competitive Bronx Science High School -- still
considered the premier science magnet school in the U.S. -- and
graduated from Binghamton University in New York, with an
undergraduate degree in history, in 1975.

He met his wife, Cynthia Estlund, while attending Yale. Estlund,
herself, is an accomplished labor and employment-law professor,
also at NYU's School of Law.

On July 8, Mr. Issacharoff served as counsel for a group of class
action plaintiffs at a hearing held in a federal appeals court
involving the administration of claims processing to individuals
and businesses negatively affected by the 2010 Gulf of Mexico oil

The expedited appeal was taken up in the U.S. Court of Appeals for
the Fifth Circuit just a little over three months after defendant
BP filed it on April 5.

At issue are claims by BP that the settlement process it agreed to
in May 2012, which pays out settlements to businesses and
individuals affected by the explosion of the BP-owned Deepwater
Horizon oil rig, has been perverted to provide settlements over
and above what those affected deserve in addition to being applied
to businesses that were not affected by the spill.

BP originally estimated that the settlement to be worth $7.8
billion to the plaintiffs, but the claims process has no cap and
is expected to grow substantially if the current process is left
in place.

BP PLC: White Oaks Fund Files Class Action in New York
Megan Morley, Esq. at McDermott Will & Emery reports that White
Oaks Fund LP, an Illinois private placement fund, filed a class
action suit against BP PLC, Royal Dutch Shell PLC and Statoil ASA
in the Southern District of New York.  White Oaks Fund v. BP PLC,
et al., case number 1:13-cv-04553.  The complaint alleges that the
energy companies colluded to distort the price of crude oil by
supplying false pricing information to Platts, a publisher of
benchmark prices in the energy industry, in violation of the
Sherman and Commodity Exchange Acts.  Plaintiffs claim that
defendant companies are sophisticated market participants who knew
that the incorrect information they provided to Platts would
impact crude oil futures and derivative contracts prices traded in
the U.S.

This action follows at least six civil litigations that have been
filed against BP, Shell and Statoil after the European Commission
(EC) and Norwegian Competition Authority raided the companies in
May.  The London offices of Platts were also searched.  After the
surprise raids, the EC has stated that it is investigating
concerns that the companies conspired to manipulate benchmark
rates for various oil and biofuel products and that the companies
excluded other energy firms from the benchmarking process as part
of the scheme.  In addition, at least one U.S. Senator has
requested that the U.S. Department of Justice look into whether
any of the alleged illegal behavior occurred in the U.S.

The private actions filed against these energy companies in the
U.S. on the heels of an investigation by the European Commission
are not uncommon.  Any company that transacts business in the U.S.
and undergoes a raid or investigation by a foreign competition
authority should prepare to face these civil litigations and
defend itself against similar allegations.

CANADA: Reserve Residents Sue MANFF Over 2011 Flood Response
Winnipeg Free Press reports that residents from four First Nation
communities affected by the 2011 flood have initiated a C$550-
million class-action lawsuit against the federal government and
Manitoba Association of Native Fire Fighters (MANFF) Inc.

The nine residents from the First Nation communities of
Pinaymootang (Fairford), Little Saskatchewan, Lake St. Martin, and
Dauphin River, are suing on behalf of all residents whose homes
were flooded, who were forced to evacuate their homes and who were
unable to work because of the spring 2011 flood.

In documents filed at Queen's Bench, the residents allege that
Ottawa failed to provide adequate accommodations, medical care,
schooling, recreational facilities, clothing allowance and
transportation, failed to properly supervise MANFF, and failed to
act on complaints about MANFF.

MANFF is the non-profit agency which was designated by Ottawa to
register and relocate the First Nation residents affected by the

The allegations against MANFF include failure to provide adequate
housing, failure to safeguard and protect the homes and personal
property on the reserve, and failure to properly spend the money
provided by Ottawa to look after the needs of the evacuated

The allegations have not been proven in court. Statements of
defence have not been filed.

There has not been hearing on the application for the suit to be
recognized as a class action.

The claim asks the court to award C$500 million in general damages
for negligence and breach of fiduciary duty; an additional C$50
million for punitive and aggravated damages; and all legal costs.

The federal government hired an outside agency first in February
to conduct a management review of MANFF spending and practices
after reports surfaced that the agency had run up bills of C$1
million in catering costs with a Winnipeg restaurant and owed two
rural hotels more than $2.3 million.

The agency was later replaced as the group responsible for looking
after the First Nation evacuees.

CANADIAN RAILWAY: Affleck Greene Discusses Supreme Court Ruling
According to Christopher Somerville, Esq., at Affleck Greene
McMurtry LLP, in an article posted at TheLitigator.ca, the Supreme
Court on July 5 upheld its strict test for preventing conflicts of
interest in the legal profession.[1] The appellant, Canadian
National Railway (CN), was a client of the respondent law firm,
McKercher LLP.  Then McKercher agreed to represent the plaintiff
in Wallace v. Canadian National Railway, a class action against CN
and other defendants for potentially $1.75 billion.  CN alleged a
conflict of interest and applied to remove McKercher as lawyers
for the proposed class. Writing for the Court, Chief Justice
McLachlin agreed that McKercher crossed the well-entrenched
"bright line rule" by acting against a current client without its
consent.  But she did not decide whether to remove McKercher,
since she recast the legal test for that remedy and sent the
question back to the court of first instance for reconsideration.

The bright line rule

The rule comes from the Supreme Court's 2002 decision in R. v.
Neil.[2] It prohibits a law firm from representing a client whose
legal interests directly conflict with the immediate legal
interests of an existing client, even if the law firm would
represent both clients in completely unrelated matters.  The
classic scenario concerns a firm who represents Client A in a
corporate transaction, a litigation proceeding, or otherwise, and
then gets asked by Client B to be their lawyers in a lawsuit
against Client A. The rule has three exceptions:

    When the law firm gets informed consent from both clients and
reasonably believes it can represent them at the same time without
impairing their interests;

    When Client A is a "professional litigant" such as a
government or, in certain cases, a chartered bank, whose
sophistication and routine involvement in litigation signify an
implied consent for its lawyers to act against it in unrelated
matters; and

    When Client A has intentionally retained multiple law firms as
a tactic to generate conflicts and make it difficult for opposing
litigants to retain lawyers.

Even if the bright line rule does not apply (e.g. the clients'
business interests conflict, but their legal interests do not), or
if an exception applies, the law firm must still avoid
representing Client B if that would substantially risk the quality
of its representation of Client A.  If the law firm can show that
this risk does not exist, it may be allowed to represent both

However, when the bright line rule does apply, the Supreme Court's
decision confirmed that the law firm cannot represent both
clients, even by showing there is no substantial risk of adversely
affecting their representation.  While this approach may seem
rigid, "It is clear," as McLachlin CJ wrote for the Court.[3]

The facts of CN v. McKercher demonstrate the stringency of this
rule.  McKercher is a large Saskatchewan law firm that represented
CN in various matters from 1999 to 2009.  However, from 2004 to
2008, McKercher's bills to CN added up to $68,462, about 0.1
percent of CN's annual outside legal fees, and less than a third
of the fees Saskatchewan firms received from CN during the same
five years.

By the end of 2008, McKercher was acting for CN in only four
matters: (1) a personal injury claim, (2) a real estate
transaction, (3) a receivership proceeding, and (4) as CN's power
of attorney.  None of these related to the class action.  CN had
no written retainer agreement with McKercher for any matter at
that time.  Furthermore, the personal injury claim was the only
evidence on the record of a true CN litigation matter being
handled by McKercher from 1999 to 2009.

Nonetheless, the Supreme Court accepted that CN used McKercher as
its "go to" firm for Saskatchewan. In the words of McLachlin CJ:
"it was reasonable for CN to be surprised and dismayed when its
primary legal counsel in the province of Saskatchewan sued it for
$1.75 billion."[4] Given these circumstances, the professional
litigant exception did not apply, even though, according to the
Saskatchewan Court of Appeal, "CN employs 23 in-house counsel plus
support staff and regularly consults approximately 50 to 60
outside law firms across Canada" who charge fees totalling "many
millions of dollars annually" for hundreds of litigation files.[5]
There was no evidence that CN was spreading its business between
law firms to generate conflicts, and McKercher certainly did not
get CN's permission before taking the class action brief.

As a result, representing both CN and the proposed plaintiff class
"fell squarely within the scope of the bright line rule",[6] and
McKercher found itself in a conflict of interest.

The duty of loyalty

The bright line rule fits into an overall duty of loyalty owed by
law firms to their clients. That duty has the following parts:

    avoiding conflicts of interest, which includes the bright line

    staying committed to clients;

    being candid with clients; and

    not misusing their confidential information, which intertwines
with part one.

As explained above, McKercher fell short on part one by virtue of
the bright line rule. But the Supreme Court found that McKercher's
conduct compromised parts two and three as well.

Part two, the duty of commitment, means that law firms cannot
terminate the solicitor-client relationship without adequate cause
and proper notice.  Lawyers have a professional obligation to stay
committed to clients barring exceptional circumstances.  Failure
to pay legal fees may give sufficient cause to end the retainer.
The possibility of acting on a major new file does not.

Part three, the duty of candor, means that law firms must promptly
inform clients about material circumstances that could impact the
retainer.  For example, if a law firm intends to represent a
potential client who wants to sue an existing client, the firm
must disclose this to the existing client, but the firm must also
get the potential client's consent to share this information.  If
the potential client does not consent, then the firm cannot
consider representing them.

McKercher served CN with a notice of withdrawal in its personal
injury file on December 5, 2008 and commenced the class action on
December 17, 2008, which alleged that CN and the Canadian Pacific
Railway had overcharged farmers in Western Canada for grain
shipping.  CN was unaware of the action before it was served with
the claim on January 9, 2009.  McKercher subsequently ended its
power of attorney for CN and withdrew from the receivership
matter, while CN terminated the retainer on the real estate file.

The Supreme Court found that McKercher breached its duty of
candour by failing to inform CN that it intended to act as class
counsel, given that CN discovered the class action well after
McKercher commenced the proceeding.  The Court also ruled that
McKercher terminated the personal injury and receivership
retainers without proper cause, suggesting that this was done to
avoid a conflict with the class action.  This breached the duty of

However, the Court rejected CN's argument that McKercher's
previous work for CN gave the firm confidential information about
the company that would impact the class action.  CN based this
argument on evidence that McKercher had developed an understanding
of CN's strategies and approach for litigation and risk
management. The Court disagreed, because CN failed to show that
McKercher received any confidential information that was relevant
to the class action and could tangibly be used to CN's detriment.
The removal of counsel

When considering the remedy sought by CN, the Supreme Court listed
three situations that could justify removing a law firm as counsel
for a conflict of interest:

    when confidential information could be misused,

    when clients could receive deficient representation, and

    when the administration of justice could be called into

The first two scenarios normally justify removing the law firm,
but neither applied in this case.  McKercher had no relevant
confidential information from CN, and the law firm no longer
represented the company at all, so deficient representation was
not an issue.

This left the third scenario, and the Supreme Court decided that
this could only justify removal after a contextual analysis of
"all relevant circumstances", which could include:

    the seriousness of breaching the bright line rule, which on
its own, would justify removal;

    whether the party seeking disqualification has not done so in
a timely manner;

    whether disqualification would prejudice the client being
deprived of counsel; and

    whether the conflicted firm acted in good faith and believed
that its conduct complied with the law and professional

The Supreme Court did not apply these factors but sent the matter
back to the Saskatchewan Court of Queen's Bench, which initially
granted the remedy.  This may give the parties a chance to make
fresh submissions on the Supreme Court's new test, so the question
of remedy can be decided with the benefit of the proper law and a
complete record.

The debate is over

The decision arrived in the midst of a debate between the Canadian
Bar Association and the Federation of Law Societies of Canada
regarding the proper scope of the bright line rule.  The CBA
argued the rule should allow firms to act against an existing
client in unrelated matters after demonstrating that this would
not compromise the representation of the existing client or their
confidential information.  The Law Societies argued the lawyers
should not be able to act against existing clients without their
consent.  The Supreme Court received intervener submissions from
both.  Its decision says that it does not "mediate the debate",
but the implications are clear. Clients and the courts expect
counsel to stay on one side of the line unless the clients give
permission in advance, whether the lawyers find that convenient or

CHA HOLLYWOOD: Littler Mendelson Discusses Court Rulings
Diane L. Kimberlin, Esq. -- dkimberlin@littler.com -- at Littler
Mendelson reports that defendants may remove an action from state
court to federal court on the basis of information learned from
their own investigations, outside of the 30-day removal periods
triggered by receipt of a pleading or other "paper" from the
plaintiffs, the Ninth Circuit held in Roth v. CHA Hollywood
Medical Center.  Roth was removed under the Class Action Fairness
Act ("CAFA"), but the Ninth Circuit explicitly noted that its
ruling applies to any diversity case.

The case was filed as a state law wage and hour class action in
California state court in 2011.  An amended complaint was filed on
May 24, 2012, naming CHA Hollywood Medical Center ("CHA") as a
defendant for the first time.  On September 4, 2012, CHA filed a
petition to remove the case to federal court, which it supported
with a declaration from a would-be class member stating she was
employed in California during the class period, but had moved to
Nevada and intended to live there for the foreseeable future.  CHA
also provided a declaration stating that the amount in controversy
exceeded $5 million.

The federal district court granted the plaintiff's motion to
remand, holding that removal must be based on information received
from plaintiffs establishing the case was removable under either
diversity or federal question jurisdiction.  The court cited 28
U.S.C. section 1446(b)(1) or (b)(3) as the basis for its decision.
Those two provisions require, respectively, that a case be removed
within 30 days after receipt by defendants of the initial pleading
or service of summons, or within 30 days of receipt of an "amended
pleading, motion, order or other paper, from which it may first be
ascertained that the case is one which is or has become
removable."  The court held the defendants could not remove based
on information they discovered from their own investigation
because neither of the 30-day periods for removal had been
triggered by information received from the plaintiffs.

On appeal, the Ninth Circuit agreed with defendant CHA, holding
that the two 30-day removal provisions are not the only basis for
removal.  Rather, 28 U.S.C. section 1441(a) allows removal to
federal court of any case that could have been filed there in the
first place.  Reading sections1441 and 1446 together, the court
held the statutes "permit a defendant to remove outside the two
thirty-day periods on the basis of its own information, provided
that it has not run afoul of either of the thirty-day deadlines."

CHA had not violated the 30-day time limits because the plaintiffs
had not provided any information from which CHA could determine
the case was removable.  It was not until CHA discovered the
potential class member in Nevada that it had information
establishing that the case was removable, and then it "promptly"
sought to remove the case to federal court.  Acknowledging there
is no outer time limit for removal in a CAFA case, the court
recognized the potential for defendants to wait to "remove only
when it becomes strategically advantageous to do so."  But, the
court continued, "neither should a plaintiff be able to prevent or
delay removal by failing to reveal information showing
removability and then objecting to removal when the defendant has
discovered that information on its own."  The court pointed out
that plaintiffs could protect themselves from strategically
delayed removals by disclosing information to trigger the 30-day
removal period.

A week after its decision in Roth, in Watkins v Vital
Pharmaceuticals, the Ninth Circuit reversed another trial court's
remand decision -- this time focusing on the evidence needed to
establish the $5 million amount in controversy required for
removal under CAFA.  Watkins was a consumer class action, but its
holding applies to employment cases as well.  The plaintiffs in
that case filed suit on behalf of a potential class of "thousands
of consumers throughout the United States" and alleged that "the
aggregate of damages sustained by the Class are likely in the
millions of dollars."  The company removed to federal court,
filing two declarations stating that the amount in controversy was
more than $5 million.  The trial court, acting on its own, decided
that the company did not have adequate evidence of the amount in
controversy.  Its notice of removal merely "averred" its sales
exceeded $5 million and a declaration by its counsel only "vaguely
and conclusorily" alleged that the required amount was in

On appeal, the Ninth Circuit explicitly confirmed that the right
to appellate review of decisions remanding CAFA cases applied to
remand decisions made on the court's own motion ("sua sponte") as
well as to rulings on motions made by one of the parties.  The
Ninth Circuit also agreed with the district court that a defendant
is required to prove the amount in controversy by a "preponderance
of the evidence."

Moving to the merits, the Ninth Circuit determined that the
controller's declaration that the company's total sales exceeded
$5 million over the class period, which the district court did not
reference, was sufficient to establish the amount in controversy.
Noting that the declaration was "undisputed in the district
court," the Ninth Circuit remanded the case to the district court
with instructions to exercise jurisdiction in the case.

The Watkins decision establishes a seemingly low bar for the
evidence needed to prove the amount in controversy to establish
removal jurisdiction.  Further litigation may reveal whether
similar proof will suffice in situations where plaintiffs
challenge the sufficiency of the evidence or attempt to dispute
its veracity in the district courts.

COSTCO WHOLESALE: Recalls 2,288 Mango Leaf 3-pc Bamboo Salad Set
Starting date:               July 10, 2013
Posting date:                July 10, 2013
Type of communication:       Consumer Product Recall
Subcategory:                 Household Items
Source of recall:            Health Canada
Issue:                       Product Safety, Microbial Hazard
Audience:                    General Public
Identification number:       RA-34515

Affected products: Mango Leaf 3-piece Bamboo Salad Set

The set includes a large bamboo bowl with a serving fork and spoon
that comes in green.  This bamboo salad set has been found to have
an unintended presence of mould on some of the salad bowls or
utensils.  Pictures of the recalled products are available at:

The recalled sets have the model number 336424 and UPC code

The affected products were manufactured in March 2013.

Neither Health Canada nor Costco Canada has received any reports
of incidents or injuries to Canadians related to the use of this

Approximately 2288 units of the affected product were sold in

The affected product was sold from June 7th, 2013 to June 26th,
2013 and manufactured in China.


   Manufacturer     Mango Leaf Inc.
                    Long Island City
                    New York
                    UNITED STATES

   Importer         Costco Wholesale Canada Ltd.

A refund is available to consumers who wish to return the product.
Consumers may contact the vendor at 1-888-661-8126 or Costco

DECKERS OUTDOOR: Judge Tosses Class Action Over Stock Plunge
Lance Duroni, writing for Law360, reports that a Delaware federal
judge on July 8 tossed a putative class action brought by an
options investor alleging that Deckers Outdoor Corp., the maker of
Ugg boots, and its top brass deceived investors about the
company's financial outlook.

In a 17-page opinion, U.S. District Judge Sue L. Robinson
dismissed the complaint without leave to amend, finding that
plaintiff Michael Percoco had not adequately pled that Deckers
executives had acted with scienter -- a state of mind where they
knowingly intended to mislead or defraud investors.

ELECTRONIC ARTS: Lawyers' Fees in Madden Class Action Challenged
Owen Good, writing for Kotaku, reports that now it could be
another year before some $27 million is distributed to gamers from
Electronic Arts' settlement of a class-action lawsuit brought
against the exclusive license its Madden NFL series held.  Why?
Someone's objecting to the lawyers' fees.

To recap, more than five years ago Electronic Arts was sued by a
man, Geoffrey Pecover, who argued that the infamous exclusive
license EA Sports has to make NFL video games was illegal under
antitrust law and amounted to a price-fixing scheme.  The case
became a class action in 2009, and almost a year ago EA settled
with the plaintiffs, establishing a $27 million pool of damages
while admitting no wrongdoing.

EA also agreed not to hold exclusive licenses for two types of
American football -- college football and arena football -- even
though no publisher other than EA Sports has made one of those
games in more than a decade.  The exclusive license EA Sports has
with the NFL was untouched.

Originally, the payout per claimant was something like $1.95 if
you bought current generation Madden, and seven bucks if you
bought last-gen.  That tripled in light of so few claimants
emerging.  Even if I think this case has been, essentially, the
world's most expensive gaming forum slapfight, hell yes, I filed a
claim.  I'm looking at $58.29 for two copies of past-gen NCAA and
some Maddens since then.  For sure there are gamers who will see
lots more.

But that's in limbo now thanks to an objector named Aaron Miller.
He objected to the size of the attorneys' fees awarded,
particularly in light of the original, meager payoff.  When his
objection was dismissed, appealed to the U.S. Court of Appeals for
the Ninth District (this case is out in San Francisco.) While that
appeal is ongoing, no distributions can be made from the
settlement pool.

Aaron Miller's lawyer, Steve A. Miller of Denver, appears to make
this sort of thing a specialty.  Steve A. Miller was called a
"professional objector" by at least one person familiar with the
case and his objection seems to hint at that reputation, too,
complaining of other lawyers' "unwarranted criticism of objector

Steve A. Miller appeared in the news three years ago representing
another objector to a class-action settlement involving Fisher-
Price toys and lead paint.  He lost.

On July 9 Kotaku called Mr. Miller's office, left a voice message
and sent him an email to ask him to expand upon his client's
interest in this case and his problem with the size of the
attorneys' fees.  Kotaku hasn't received a reply.

Meantime, a set of deadlines established by the appeals court
lists Oct. 7 as the day Mr. Miller's brief is due, and opposing
lawyers have a month to file their response.  This thing could
take another year to resolve.

EXPEDIA: 13 Suburbs File Class Action Over Local Hotel Taxes
Leeann Shelton, writing for Chicago Sun-Times, reports that 13
Chicago suburbs filed a class-action lawsuit on July 8 against
online travel giants Expedia, Priceline.com, Orbitz and
Travelocity, claiming the websites underpay local hotel taxes.

The suit centers on how the travel sites pay the local hotel taxes
set by each municipality as a percentage of the cost to book a
room -- between 4 and 10.5 percent in the suburbs participating in
the suit.

Under the "merchant model," online travel companies buy room
reservations at low, wholesale rates they negotiate with hotels,
then resell the rooms at a retail markup to consumers -- paying
only local hotel taxes on the lower, wholesale price.

The suit, filed in Cook County Circuit Court, argues that
companies should instead calculate taxes based on the higher
retail rate charged to consumers.

Other municipalities have filed similar lawsuits in courts across
the country, but most cases have found in favor of the online
travel companies, according to the Travel Technology Association,
a trade group that defends the merchant model.

The trade group claims all travel sites remit the full amount in
taxes, and it says the industry's current business model increases
the volume of hotel bookings, ultimately boosting the local
tourist industry.

"It is a huge waste of taxpayer dollars to invest in this
fruitless litigation, which even if successful, ends up hurting
tourism and thereby revenue," spokeswoman Robin Reck said.

Lawyers for the suburbs disagree, claiming in the suit that the
difference represents a loss of more than $100,000 in tax revenue
to the municipalities.

The July 8 class-action suit is filed against travel giants
Expedia, Priceline.com, Orbitz and Travelocity, as well as their
subsidiaries, Hotels.com, Hotwire, CheapTickets.com, Lodging.com,
Egencia and Travelweb.

Suburbs participating in the lawsuit include Bedford Park,
Warrenville, Oakbrook Terrace, Oak Lawn, Willowbrook, Orland
Hills, Arlington Heights, Burr Ridge, Des Plaines, Lombard, Tinley
Park, Orland Park and Schaumburg, in addition to far northwest

The suit claims unjust enrichment, conversion and civil conspiracy
and asks for restitution and punitive damages.

None of the online travel companies named in the lawsuit responded
to messages seeking comment.

FACEBOOK INC: Accused in Minn. of Misappropriating People's Names
Dionne Cordell-Whitney at Courthouse News Service reports that
Facebook Inc. misappropriates people's names, photos and
identities to profit from deceptive "Sponsored Stories," which are
neither sponsored nor stories, but paid advertisements, a man
claims in court.

Allan Mooney sued Facebook in Hennepin County Court, "for
appropriating the name, photograph, likeness and identity of
plaintiff to advertise products, services or brands for a
commercial purpose without plaintiff's consent and without

The complaint continues: "Plaintiff complains of wrongful conduct
by Facebook which arose from what Facebook calls 'Sponsored
Stories.'  The term 'Sponsored Stories' is deceptive; 'Sponsored
Stories' are neither sponsored in the sense that a benefit is
being conveyed free of charges, nor are they stories in the usual
and customary sense of the word.  'Sponsored Stories' are simply
paid advertisements.

"Facebook knowingly and intentionally created 'Sponsored Stories'
as a misleading advertising scheme which improperly used the name,
photograph, likeness and identity of plaintiff -- like millions of
other individuals -- to generate substantial profits for Facebook,
all without consent, to advertise or sell products or services or

Mooney claims he has common-law right of publicity to be
compensated for the use of his identity, and to be free of its

Facebook created ads using his identity and caused his Facebook
friends to view the ads with his profile photo, along with
statements he "never" made, such as "Allan Mooney likes
[advertiser]," Mooney says in the complaint.

"(E)ach advertisement portrays him as appearing to be endorsing
the respective advertiser when in fact, he does not."

Facebook began its deceptive Sponsored Stories in January 2011,
Mooney says.

When a member logs into the Facebook Web site and views a page,
Facebook determines whether if that member's Facebook friends have
"Liked" a certain product, and if so, a Sponsored Story ad
connects the Facebook friend and the product.

"This advertisement appears on the pages viewed by some or all of
the friends of that member," the complaint states.  "Members are
unaware their interaction with the website is being interpreted
and publicized by Facebook as an endorsement of those advertisers,
products, services or brands."

People whose identities are misappropriated have nothing to do
with it, Mooney says: "Facebook creates and develops the content
of those advertisements in whole or in part, as well as the entire
advertisement itself.

"The Sponsored Stories advertisement service is enabled for all
Members.  Members are unable to opt out of the service.

"A member cannot prevent Facebook from interpreting a Post, Like,
Check-in or application as an endorsement and publicizing a
member's name, photograph, likeness or identity in a Sponsored
Story advertisement. . . .

"Thus Facebook, through Sponsored Stories advertisements,
attempted to make the approximately 153 million Facebook members
in the United States into their marketers, but without any
compensation. In spite of the increased value of friend-endorsed
advertisements, the member is deprived of any payment whatsoever
for the use of his or her photo, name, likeness or any other
information used in the endorsed advertisement."

Mooney seeks disgorgement of profits, damages for
misappropriation, deceptive trade and emotional distress, and
wants Facebook enjoined from using his identity.

The Plaintiff is represented by:

          Paul R. Hansmeier, Esq.
          40 South 7th Street, Suite 212-313
          Minneapolis, MN 55402
          Telephone: (612) 234-5744
          E-mail: mail@classjustice.org

FEDERAL EXPRESS: Settles Class Action Over Surcharges for $5MM
Kurt Orzeck, writing for Law360, reports that Federal Express
Corp. has settled a class action in Tennessee federal court
alleging it committed mail and wire fraud and breached its
contract with customers by charging more than $5 million in bogus
residential delivery surcharges for packages sent to businesses
and government buildings, party representatives said on July 9.

The suit alleged that the shipping giant violated the federal
Racketeer Influenced and Corrupt Organizations Act and breached
its contract with customers by intentionally applying the charges
to locations that couriers knew were nonresidences.  The class
covers all persons who -- from Feb. 18, 2010, until the resolution
of the class action -- bought FedEx Express package delivery
services in the U.S. and were subjected to the surcharges.

A plaintiffs' attorney and a FedEx representative confirmed to
Law360 on July 9 that a tentative deal had been reached.

"The parties have reached a settlement and are finalizing the
documentation," said Steven J. Rosenwasser --
rosenwasser@bmelaw.com -- of Bondurant Mixson & Elmore LLP, which
is representing the plaintiffs in the case. "Details of the
settlement will be released when we move for a preliminary
approval in about a week."

Manjunath A. Gokare PC, a Georgia law firm that focuses on
immigration law, sued FedEx in February 2011.  The firm said it
discovered the fraud after a package it sent to an immigration
services processing center in Vermont was slapped with a $2.50
residential surcharge and a second delivery-area fee for the same

The firm alleged that FedEx Express, which offers express package
delivery services in the U.S., breached its contract with domestic
customers by claiming that it only applied a $2.75 surcharge for
deliveries to homes or private residences.  In fact, the company
applied the per-package fees on deliveries to government offices,
commercial office towers and other nonresidential buildings,
according to the class action.

The fraud suit further alleged that FedEx applied a second fee for
shipments sent to U.S. ZIP codes that FedEx Express deemed more
costly and inconvenient to service.  The delivery-area rates were
allegedly $2.75 for packages to residences and $1.85 to commercial
locations for regular delivery, and $3 and $1.85 for respective
extended delivery services.

FedEx applied both the residential delivery charge and the
delivery-area charge to packages sent to nonresidential
destinations, the suit said.  Gokare said FedEx refused to correct
any billing errors with that and subsequent transactions.

The suit also claimed that FedEx Express' database, which "is
riddled with errors," incorrectly identifies government offices
and other buildings as residences.  Meanwhile, company personnel
who knew the buildings weren't residences carried out the charges
anyway, plaintiffs alleged.

An amended version of the complaint added the RICO allegation and
new plaintiff Goldstein Demchak Baller Borgen & Dardarian PC, an
Oakland civil rights law firm that claimed similar fraud over the
delivery of documents to federal and state courthouses.

FedEx responded by saying that its invoices listed all delivery
charges and that the "fraud" claims at best amounted to breach of
contract, however the contract states that fees might apply in
certain circumstances, according to a motion to dismiss the RICO
claim.  The company further countered that Gokare might have
itself designated the addresses as residential when the firm had
the packages shipped.

U.S. District Court Judge John T. Fowlkes Jr. stayed the case in
April and subsequently set July 1 as the deadline for mediation.
A status conference was originally scheduled for that date but was
postponed until on July 9.

A hearing over approval of the preliminary settlement is set for
July 23, according to court documents.

The plaintiffs are represented by Jeffrey O. Bramlett --
bramlett@bmelaw.com -- Steven J. Rosenwasser and Naveen
Ramachandrappa -- ramachandrappa@bmelaw.com -- of Bondurant Mixson
& Elmore LLP; Frank L. Watson III and William F. Burns of Watson
Burns PLLC; and Salu K. Kunnatha -- skk@kunnathalaw.com --of
Kunnatha Law Firm PC.

FedEx is represented by in-house attorneys Richard R. Roberts,
Justin M. Ross and Colleen D. Hitch.

The case is Manjunath A. Gokare et al. v. Federal Express
Corporation et al., case No. 2:11-cv-02131, in the U.S. District
Court for the Western District of Tennessee.

FIDELITY NATIONAL: Motion to Compel Arbitration in OT Suit Denied
Blumenthal, Nordrehaug & Bhowmik on July 8 disclosed that on
June 27, 2013, Honorable John Mendez denied Fidelity National
Management Services' motion to compel arbitration in a class
action lawsuit alleging that Fidelity improperly classified Escrow
Officers and Escrow Managers as exempt vs. non-exempt from
California overtime requirements.  Bueche v. Fidelity National
Management Services, LLC is currently pending in the United States
District Court in the Eastern District of California, Case No.

The San Francisco labor lawyers at Blumenthal Nordrehaug & Bhowmik
filed a motion opposing Fidelity's motion to compel arbitration,
arguing that Plaintiff's claims arose from the California Labor
Code, not the employment agreement between the parties, and that
Plaintiff's claims were therefore outside the scope of the
arbitration clause.  The Honorable Judge Mendez agreed with
Plaintiff's argument and refused to compel arbitration of
Plaintiff's claims stating in its order that there was no evidence
in the case that Plaintiff's claims arose from her expired
employment contract.

Judge John Mendez said that "[p]laintiff's claims are limited to
the time period after the contract expired when she was an at-will
employee.  Her claims therefore do not arise from the expired
contract and its arbitration agreement does not apply to her
claims."  A copy of the Court's order can be read here.

When asked about the court's ruling, managing partner of
Blumenthal, Nordrehaug & Bhowmik, Norman Blumenthal, stated, "Per
the Court's Order we will proceed with litigating the class-wide
claims against Fidelity National as alleged in the Complaint."

Blumenthal, Nordrehaug & Bhowmik is an employment law firm with
offices located in San Diego, San Francisco and Los Angeles.  The
firm dedicates its practice to contingency fee employment law work
for issues involving overtime pay, wrongful termination,
discrimination and other California labor laws.

FRS CO: Seeks Dismissal of Deceptive Marketing Class Action
Juan Carlos Rodriguez and Gavin Broady, writing for Law360, report
that Lance Armstrong and sports supplement maker The FRS Co. hit
back on July 3 in California federal court against a proposed
class action alleging they deceptively marketed beverages, chews
and powdered drink mixes by linking Mr. Armstrong's cycling
success with the products, when in fact he was using performance-
enhancing drugs.

The plaintiffs alleged FRS centered its entire marketing strategy
on correlating its products' effects with Mr. Armstrong's
abilities and his now-revoked seven Tour de France wins in order
to trick consumers into purchasing FRS products with illusory
benefits not grounded in real science.  But Mr. Armstrong, in his
motion to dismiss, said the plaintiffs fail to assert a single
thing wrong with the products for which they seek refunds.

"There is no dispute that FRS' products are proven to provide
sustained energy, increased endurance, immune system support and
other health benefits," the motion said.  "Plaintiffs allege they
bought FRS products and now want their money back -- not because
there was anything wrong with the products themselves, but because
they recently learned that Armstrong used performance enhancing
drugs during his cycling career."

According to the motion, when Mr. Armstrong said he had won the
Tour de France seven times, he was in fact the official seven-time
winner of the Tour de France.

"That statement was true when made and is not actionable.
Similarly, the reference to FRS' products as his 'secret weapon'
is a well-traveled advertising cliche incapable of supporting any
of plaintiffs' claims as a matter of law," the motion said.

The motion said the plaintiffs have only alleged a false statement
about the products' spokesman, a "radical expansion" of false
advertising law.  It said the allegedly deceptive statements on
which all the plaintiff's claims are based on were either not
false or misleading, or nonactionable puffery as a matter of law.

"Plaintiffs' claims all sound in fraud, but they failed to plead
the requisite 'who, what, when, where and how' of any false
statement that allegedly induced them to buy FRS products," the
motion said.  "Claims without a remedy under California's False
Advertising Law or Unfair Competition Law are properly dismissed.
Those statutes permit injunctive relief and restitution only.
Armstrong is no longer a spokesperson for FRS, so there is no
Armstrong conduct to enjoin."

The motion also said the plaintiffs bought no products from
Armstrong, so he does not have any of their money or property to

"In short, plaintiffs have not asserted a single valid claim
against Armstrong; nor can they," the motion said.

FRS, in its own motion to dismiss, echoed Mr. Armstrong's
assertion that a false advertising case must allege false
advertising, and the plaintiffs do not.

"Instead, in an attempt to bury this fatal omission, plaintiffs'
40-page first amended complaint focuses on Armstrong's public
disgrace, not on the actual advertising for FRS' products or its
benefits.  And where plaintiffs actually do address FRS'
advertising, they either cite to statements that were demonstrably
true, grossly mischaracterize the advertising or rely on
quintessential 'puffing,' such as the language 'secret weapon,'"
FRS said.

Venture capital firm Oak Investment Partners, which is alleged to
be the majority owner of FRS, said in a separate motion to dismiss
that while it is a shareholder in the company, it has never made
or marketed any of the products at issue in the lawsuit.

Mr. Armstrong is represented by Zia F. Modabber --
zia.modabber@kattenlaw.com -- Gregory S. Korman --
greg.korman@kattenlaw.com -- and Andrew J. Demko --
andrew.demko@kattenlaw.com -- of Katten Muchin Rosenman LLP.

FRS is represented by Jordan D. Grotzinger --
grotzingerj@gtlaw.com -- Robert J. Herrington --
herringtonr@gtlaw.com -- and Adrienne J. Lawrence --
lawrencead@gtlaw.com  --of Greenberg Traurig LLP.

Oak Investment Partners is represented by Bryan King Sheldon, Lisa
J. Yang and George Busu of Lim Ruger & Kim LLP.

The plaintiffs are represented by Holly C. Blackwell --
holly@nps-law.com -- and Jonathan D. Miller
-- jonathan@nps-law.com -- of Nye Peabody Stirling Hale & Miller
LLP, Benjamin J. Sweet of Del Sole Cavanaugh Stroyd LLC and
Michael E. Berman of Michael E. Berman PC.

The case is Martin v. FRS Co. et al., case number 2:13-cv-01456,
in the U.S. District Court for the Central District of California.

GEORGE BROWN: Class Action Over Management Program Can Proceed
Colin Perkel, writing for The Canadian Press, reports that a group
of students from around the world who enrolled in an expensive
college graduate program in hopes of obtaining three industry
certifications were victims of a misleading course description,
Ontario's top court ruled on July 9.

In upholding a lower court ruling, the Appeal Court agreed with
the trial judge that George Brown College negligently
misrepresented the benefits of its graduate international business
management program.

"It is reasonable for students to rely on statements contained in
course calendars, because these calendars are published with the
intention that students read them and rely on the information
contained therein," the Appeal Court said.

At issue was a statement in the 2007 course calendar that said the
program provided students "with the opportunity to complete three
industry designations/certifications in addition to the George
Brown college graduate certificate."

The students, however, discovered that graduation did not give
them the designations they sought in international trade, customs
services and international freight forwarding.

Nor were they automatically eligible to write the industry exams
-- some with hefty fees -- necessary for the designations, which
also required additional courses in some cases.

Almost 120 students had enrolled in the eight-month program --
about two-thirds from countries such as India, China, Turkey,
Brazil, Russia and Syria -- and discovered just before final exams
the college had no ability to confer the coveted designations.

While George Brown later clarified its course description, the
foreign students were still out their nearly $11,000 tuition,
prompting a class action against the Toronto college.  The class
action was certified in April 2010.

Lawyers for George Brown tried to argue a "reasonable student" who
did some industry research would have known the designations
didn't automatically come with graduation.

In siding with the students at trial last fall, Ontario Superior
Court Justice Edward Belobaba ruled the course description "could
plausibly be interpreted as meaning exactly what it said.

"Having paid a substantial tuition fee and related travel and
living expenses, they could not afford the additional time or
money needed to pursue the three accreditations on their own,"
Justice Belobaba found.

Justice Belobaba said the well regarded college had made a
"careless" mistake in this instance and needed to be held

The Appeal Court agreed the college owed the students a "duty of
care."  It said the students were consumers whose rights were
breached under the Consumer Protection Act because the college had
engaged in an unfair practice and were entitled to a remedy.

The Appeal Court ruling now clears the way for an assessment of
the damages George Brown must pay the students.

GREEN TREE: Faces Class Action Over Bullying Tactics
Lacie Lowry, News On 6, reports that an Oklahoma homeowner says a
loan company is illegally harassing her, even though she's never
missed a mortgage payment.  Now, she says she wants to warn others
before they get bullied, too.

Cheryl Jackson, of Sapulpa, said Green Tree Servicing has called
her house numerous times, threatening foreclosure and demanding
her checking or credit card information over the phone.  And she's
not the only one complaining.

"Right up front he was aggressive with me -- the first call,"
Ms. Jackson said.  She said she's always paid the mortgage for her
rental property on time and has been making double payments to pay
it off early.

Ms. Jackson got the loan through Bank of America, but Bank of
America farmed out the collection process to Green Tree Servicing.
Her last payment to Bank of America was automatically drafted from
her account with no problem, but the first payment to Green Tree
didn't go through, because she forgot to switch to the new system.

That's when the company started calling.

"'We have to have payment right now, on the phone, or we have to
begin procedures, and you don't want to lose your home,'" she

Ms. Jackson said she mailed a check for June and July, but the
representative said he was starting the foreclosure process.

"I told him, I said, 'You know, I've been looking at your company,
and you should look at your company and frankly be ashamed of what
you're doing,'" she said.

A Boston consumer rights firm has filed a class action lawsuit
against Green Tree.  The suit says the company uses illegal
practices, like auto dialing the plaintiff's cell phone as many as
100 times without permission over bogus unpaid debts.

"You're harassing people, who are honest people, who are paying
the bills," Ms. Jackson said.  She said she doesn't want others to
be slammed with the same tactics.

"The average American doesn't know what they signed on their
mortgage and doesn't know their rights, and that's what I want to
make sure those people know: you have rights," Ms. Jackson said.
She said she wants to keep the house and lose the hassle, so she's
refinancing with a local bank.

News On 6 called and emailed the corporate office for Green Tree
Servicing on July 9 for comment.  News On 6 hasn't heard back from

H&R BLOCK: Wants Judge to Stay Class Action Over Tax Refunds
Bethany Krajelis, writing for The Madison-St. Clair Record,
reports that a federal lawsuit over delayed tax refunds appears to
be on track for a June 2015 jury trial.

Ursula Millett and Jeanine Sanlorenzo sued H&R Block Inc., HRB Tax
Group Inc. and HRB Technology LLC in late March, claiming the
provider's erroneous preparation of tax returns with forms for
education credits delayed their refunds by nearly two months.

Ms. Millett, an Illinois resident, and Ms. Sanlorenzo, a
Pennsylvania resident, brought the suit on behalf of themselves
and more than 100 potential class members who had federal income
tax returns including Form 8863 for the year 2012 prepared by the
defendants and filed before Feb. 22.

Form 8863, according to the complaint, "is a document that can be
completed by a taxpayer to claim 'education credits' based upon
eligible student expenses paid during the taxable year."

The lines determining eligibility for these credits previously
could be left blank and still indicate qualification, but the suit
states that the Internal Revenue Service (IRS) started to require
that certain information be entered into these lines at the start
of the 2012 tax season.

H&R Block's tax software, however, "continued to permit the lines
to be left blank, which has resulted in the delay of thousands of
refunds," according to the suit that goes on to note that the
provider's CEO issued a public statement that acknowledged the
mistake and apologized.

In June, the defendants filed a stipulation of dismissal that the
stated the court lacked personal jurisdiction over H&R Block and
that the plaintiffs agreed to dismiss it, leaving HRB Tax Group
Inc. and HRB Technology LLC as the remaining named defendants.

The defendants last month also filed a motion to compel
Ms. Sanlorenzo to arbitration and a motion to stay the case, as
well as an answer and affirmative defenses to the complaint as
they apply to Ms. Millett.

While they admit that the court has subject-matter jurisdiction
over Ms. Millett's claims, the defendants assert that Ms.
Sanlorenzo's claims are required to be heard in arbitration based
on a Client Service Agreement (CSA) she signed.

In their motion to compel, the defendants contend that when
Ms. Sanlorenzo met with an H&R Block tax professional to have her
2012 taxes prepared in January, she executed the CSA and agreed to
resolve any disputes through individual arbitration.

Among other explanations, the agreement notes that customers can
reject arbitration by opting out within 60 days of signing the

While Ms. Sanlorenzo claims she opted out, the defendants assert
in a memorandum supporting their motion to compel that she did not
do so under the terms of the agreement.

Ms. Sanlorenzo, the memo states, submitted an opt-out request on
April 3, a few days after the 60-day period expired.  If she
wanted to opt out, the defendants assert she would have had to do
so by March 31.

"Under this arbitration agreement, this Court is not the
appropriate forum for resolution of Plaintiff's claims," the
defendants assert.  "The Court therefore should stay this case and
compel individual arbitration."

In their recently-filed answer to the complaint, the defendants
assert that the suit is not appropriate for class action
treatment. They also took issue with the plaintiffs' proposed

The class definition, the defendants contend, improperly includes
taxpayers whose returns were prepared by independently owned and
operated businesses doing business as H&R Block franchises, as
well as those who used online or software services and then
prepared their own taxes.

In addition, the defendants offered 10 affirmative defenses in
their answer to the complaint.

Among others, they argue that the complaint fails to state a claim
upon which relief can be granted and that the plaintiffs' claims
are barred, in whole or part, because there is no cognizable legal

U.S. Chief Judge David Herndon in April stayed the plaintiffs'
motion to certify a class until the completion of relevant
discovery.  A scheduling and discovery conference has been set for
July 26 before U.S. Magistrate Judge Philip Frazier.

As of July 9, Judge Herndon had not issued orders on the
defendants' motion to compel Ms. Sanlorenzo to arbitration or to
stay the case.

W. Jason Rankin -- wjr@heplerbroom.com -- an attorney with
HeplerBroom in Edwardsville, represents the defendants.

Edward Wallace -- eaw@wexlerwallace.com -- Kenneth Wexler and Amy
Keller -- aek@wexlerwallace.com -- of Wexler Wallace LLP in
Chicago and Sherrie Savett -- ssavett@bm.net -- and Eric Lechtzin
-- elechtzin@bm.net -- of Berger & Montague in Philadelphia
represent the plaintiffs.

HONDA MOTOR: Recalls 36 ACCORD Model
Starting date:            July 5, 2013
Type of communication:    Recall
Subcategory:              Car
Notification type:        Safety Mfr
System:                   Fuel Supply
Units affected:           36
Source of recall:         Transport Canada
Identification number:    2013240
TC ID number:2013240

Affected products:

   Make     Model     Model year(s) affected
   ----     -----     ----------------------
   HONDA    ACCORD    2013

On certain vehicles, the fuel tank may have been manufactured
incorrectly and could leak.  Fuel leakage, in the presence of an
ignition source, could result in a fire causing property damage
and/or personal injury.

Dealers will replace the fuel tank.

HONDA MOTOR: Recalls 8,871 FIT Model
Starting date:            July 5, 2013
Starting date:            July 5, 2013
Type of communication:    Recall
Subcategory:              Car
Notification type:        Compliance Mfr
System:                   Other
Units affected:           8871
Source of recall:         Transport Canada
Identification number:    2013239
TC ID number:             2013239

On certain vehicles, the Vehicle Stability Assist (VSA) system may
not function as intended.  In some instances, this could allow the
tires to lose traction and the vehicle to skid without
intervention by the VSA system.  If the vehicle strikes a curb or
slides off the roadway, it could result in a crash causing
property damage and/or personal injury.

Dealers will reprogram the Vehicle Stability Assist software.

Affected products:

   Make     Model      Model year(s) affected
   ----     -----      ----------------------
   HONDA    FIT        2012, 2013

HONDA MOTOR: Recalls 13 CTX700N, and CTX700T Models
Starting date:                July 9, 2013
Type of communication:        Recall
Subcategory:                  Motorcycle
Notification type:            Safety Mfr
System:                       Brakes
Units affected:               13
Source of recall:             Transport Canada
Identification number:        2013242
TC ID number:                 2013242

Affected products:

   Make      Model      Model year(s) affected
   ----      -----      ----------------------
   HONDA                2014, 2014

On certain motorcycles, the Anti-Lock Brake System (ABS) modulator
may have been manufactured incorrectly and could fail.  Loss of
ABS function would allow the front and/or rear wheel to lock under
braking which, in conjunction with traffic and road conditions,
and the rider's reactions, could increase the risk of a crash
causing property damage and/or personal injury.

Dealers will replace the ABS modulator.

HSBC USA: Pa. Court Refused to Junk Illegal Kickback Claims
Rose Bouboushian, writing for the Courthouse News Service, reports
that HSBC USA, Inc. cannot dismiss claims that it got illegal
kickbacks for requiring clients to obtain illusory private
mortgage insurance from certain insurers, a federal judge ruled.

Headquartered in London, HSBC operates an international network of
some 6,600 offices in more than 80 countries and territories.

Moriba Ba leads a federal class action in Philadelphia against
HSBC USA, its affiliates and several private mortgage insurers,
alleging violations of the Real Estate Settlement Procedures Act
of 1974 (RESPA) and common law unjust enrichment.

The plaintiffs claim that, because they made down payments of less
than 20 percent on their HSBC home mortgage loans from January
2006 to April 2008, they had to obtain private mortgage insurance
from an HSBC-selected insurer -- United Guaranty Residential
Insurance, Genworth Mortgage Insurance, Republic Mortgage
Insurance or Mortgage Guaranty Insurance.

Though HSBC reinsured the private policies under a "captive
reinsurance agreement," those services were allegedly illusory in
that HSBC Reinsurance assumed no risk and could abandon its
purported duties at any time.

Rather, the private insurers paid HSBC a kickback -- that is, an
illegal "split" of the "reinsurance premiums" clients paid -- in
exchange for referring its mortgagees to them, according to the

The defendants filed three motions to dismiss, arguing that the
claims are time-barred.

U.S. District Judge Paul Diamond denied the motions June 26, 2013,
but held that Ba and three other plaintiffs -- Donald and Sherrica
Chipp and Eugene Murano -- lack standing against United Guaranty.

"Because the Chipps, Ba, and Murano do not allege that United
Guaranty provided them with mortgage insurance or conspired with
other private insurers to cause them harm, it appears that they
are without standing," Diamond wrote.

The plaintiffs' unjust enrichment claim survived.

"At this stage, I am unable to determine whether plaintiffs'
express contracts with defendants are 'on the same subject' as
their claim for unjust enrichment," Diamond wrote.

Although the plaintiffs' loans closed between four and seven years
before the complaint was filed -- well outside the one-year
limitations period -- they sufficiently pleaded equitable tolling,
the court found.

"Plaintiffs allege that defendants used form mortgage documents,
disclosures, and affiliated business arrangements actively to
mislead them," Diamond wrote.  "Plaintiffs further allege that
defendants' actions made it virtually impossible to uncover the
true nature of the reinsurance arrangements.  Finally, it is
alleged that each plaintiff was diligent because he or she fully
participated in the loan process and reviewed the documents

"In these circumstances," he added, "I will await summary judgment
to determine whether plaintiffs' RESPA claims are untimely."

HSBC had a reported $2.692 trillion in total assets in 2012.

The case is Moriba Ba, et al. v. HSBC USA, INC., et al, Case No.
2:13-cv-00072-PD, in U.S. District Court for the Eastern District
of Pennsylvania.

IDEARC INC: Fifth Cir. Affirms Dismissal of ERISA Class Action
David McAfee, writing for Law360, reports that the Fifth Circuit
on July 9 affirmed the dismissal of an Employee Retirement Income
Security Act class action brought by participants in now-defunct
Idearc Inc.'s management plan, who accused the company's board
members and officers of breaching fiduciary duty by failing to
divest company stock and to stop offering it as an investment

A Texas federal judge first dismissed the lawsuit in 2011, finding
that the plan's trust agreement mandated that company stock be an
option, but allowed the plaintiffs leave to file an amended

KIMBERLY-CLARK CORP: Faces Class Action Over Huggies Products
Gavin Broady, writing for Law360, reports that two California
consumers have mounted a putative nationwide class action against
Kimberly-Clark Corp. claiming that its Huggies "natural" baby
products are not only less environmentally friendly than
advertised but also contain dangerous toxins, according to a
complaint made available on July 8.

Plaintiffs Dianna Jou and Jaynry Young claim that Kimberly-Clark
has profited considerably from the sale of its Huggies baby wipes
and diapers by capitalizing on the consumer appeal of natural,
organic, environmentally sound products, despite the fact that the
products are materially no different from the company's standard

In addition to being less environmentally sound than advertised,
the diapers are made with potentially harmful ingredients and the
wipes contain two chemicals that are purportedly so hazardous that
they have been either banned or restricted in other countries,
according to the complaint.

"That the products are not natural, yet marketed and distinguished
primarily upon this characteristic, is sufficiently deceiving to
the customer," the plaintiffs said.  "The fact that evidence tends
to indicate that products' contents -- in current and past
iterations -- may be hazardous only highlights the defendant's

Ms. Jou and Ms. Young claim Huggies Natural Wipes are made with
the allegedly hazardous substance methylisothiazolinone, which
they say is associated with skin toxicity, immune disruption and
allergic reactions.  The substance, which may also act as a
neurotoxin, has been restricted for use in cosmetics in Japan and
Canada, according to the complaint.

The wipes also purportedly contain sodium methylparaben, a
substance which allegedly acts as an endocrine disruptor, immune
toxicant and allergen, and has been banned entirely in the
European Union, according to the complaint.

The U.S. Food and Drug Administration limits the use of parabens
in food and drinks, and an Environmental Working Group report
cited by the plaintiffs suggests the substance can "strip skin of
pigment," according to the complaint.

The plaintiffs say Kimberly-Clark also deceives consumers about
its Huggies Natural Diapers, claiming that the differences between
those products and the standard diapers are insignificant.

While the diapers are marketed as made of soft, organic cotton,
the plaintiffs claim that organic cotton is used only on the
outside of the diapers and therefore never actually comes into
contact with the baby.

Ms. Jou and Ms. Young also say that while Kimberly-Clark claims to
use an environmentally friendly liner in the Natural Diapers, that
liner nonetheless contains several of the same unnatural,
potentially harmful ingredients used in the company's standard
diapers, including polypropylene and sodium polyacrylate.

The "natural" marketing strategy means big money for Kimberly-
Clark, the plaintiffs say, noting that the premium diapers command
an approximately 30 percent higher price point than traditional

"Defendants's prominent representations on the packaging for the
products deceptively mislead consumers into believing that
Kimberly-Clark offers two natural, environmentally sound, and
relatively safer product alternatives to traditional offerings,"
the plaintiffs said.  "While superficial differences do exist,
these immaterial changes do not come close to matching a
consumer's reasonable expectation resulting from the company's
advertised benefits."

Ms. Jou and Ms. Young are suing on behalf of a class of consumers
across the country who bought Huggies Natural Wipes or Natural
Diapers since December 2006, asserting violations of the
California Consumer Legal Remedies Act, False Advertising Law, the
Environmental Marketing Claims Act, Unfair Competition Law and the
Wisconsin Deceptive Trade Practices Act.

Representatives for the parties were not immediately available for
comment on July 9.

The plaintiffs are represented by Michael R. Reese of Reese
Richman LLP.

Counsel information for Kimberly-Clark was not immediately

The case is Jou et al. v. Kimberly-Clark Corp., case number 1:13-
cv-03075, in the U.S. District Court for the Northern District of

KOHL'S DEPARTMENT: Faces Class Action Over Cash Program
Tracey Read, writing for The News-Herald, reports that a
Willoughby woman has filed a class action suit against Kohl's
Department Stores over the company's "Kohl's Cash" program.

Laura Henry is claiming she bought at least $350 worth of items at
Kohl's in Mentor on April 2, earning $70 in Kohl's Cash, a
promotion in which customers earn $10 to spend at the Wisconsin-
based store for every $50 in purchases.

According to the suit filed June 25 in Lake County Common Pleas
Court by attorney Nicole Fiorelli:

Ms. Henry returned to the store April 16 during a redemption
period with $80 worth of merchandise.  The cashier deducted $70 in
Kohl's Cash before applying a 20 percent off coupon.

"Due to Defendant applying Kohl's Cash before applying the coupon,
Plaintiff did not received (sic) the full value she was expecting
from her transaction," Ms. Fiorelli said in the suit.  "Instead of
Plaintiff getting 20 percent off of $80 in purchases (for $16 in
savings), she only received 20 percent off of $10 (for $2 in
savings); thus, Plaintiff was damaged, at a minimum, in the amount
of $14 in savings she did not receive."

Ms. Henry is arguing that percent-off coupons do not inform the
consumer that if a coupon is used with Kohl's Cash, it will only
apply to the price of the item after Kohl's Cash is used.

Ms. Henry -- who did not immediately return a message seeking
comment -- is suing the company on behalf of herself and
"thousands" of Ohio residents who made purchases with both Kohl's
Cash and a percent-off coupon during the last two years.

Ms. Henry's suit claims Kohl's has acted with deception by not
stating clearly any exclusions or limitations with Kohl's Cash
and/or the coupon offer.

A Mentor Kohl's manager named Donna who declined to give her last
name referred calls to Kohl's District Manager Bill Schute, who
was reportedly on vacation.

Henry is seeking unspecified damages, court costs and attorney

The case has been assigned to Judge Vincent A. Culotta.

LIBERTY MEDIA: Appeals in Lawsuits v. Vivendi Consolidated
An appeal in a case filed by Liberty Media Corporation against
Vivendi Universal S.A. has been consolidated with an expected
appeal of a class action brought against Vivendi by other
shareholders, according to Liberty Media's May 9, 2013, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended March 31, 2013.

In connection with a commercial transaction that closed during
2002 among Liberty, Vivendi Universal S.A. ("Vivendi") and the
former USA Holdings, Inc., Liberty brought suit against Vivendi
and Universal Studios, Inc. in the United States District Court
for the Southern District of New York, alleging, among other
things, breach of contract and fraud by Vivendi. On June 25, 2012,
a jury awarded Liberty damages in the amount of EUR765 million,
plus prejudgment interest, in connection with a finding of breach
of contract and fraud by the defendants. On January 17, 2013, the
court entered judgment in favor of Liberty in the amount of
approximately EUR945 million, including prejudgment interest.

Vivendi has filed notice of its appeal of the judgment to the
United States Court of Appeals for the Second Circuit, and, in
that court, Liberty intends to seek a higher rate of pre-judgment
interest than what the district court awarded. The case is stayed
pending the appeal and the appeal in this case has been
consolidated with the expected appeal of a class action brought
against Vivendi by other shareholders.

The amount that Liberty may ultimately recover in connection with
the final resolution of the action, if any, and the timing of the
resolution of the action is uncertain. Any recovery by Liberty
will not be reflected in the company's consolidated financial
statements until such time as the final disposition of this matter
has been reached.

LIBERTY MEDIA: Seeks Dismissal of Sirius XM Shareholder Suit
Defendants in the suit In re Sirius XM Shareholder Litigation
Consol. C.A. No. 7800-CS (Del. Ch.) have moved to dismiss a Second
Amended Complaint, according to Liberty Media Corporation's May 9,
2013, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended March 31, 2013.

On August 21, 2012, plaintiff City of Miami Police Relief and
Pension Fund (the "Fund") filed a complaint in the Court of
Chancery of the State of Delaware against Liberty, SIRIUS XM,
Liberty Radio LLC and certain Liberty designees on the board of
directors of SIRIUS XM (David J.A. Flowers, Gregory B. Maffei,
John C. Malone, Carl E. Vogel, and Vanessa A. Wittman (together,
the "Sirius Designees")).

On August 23, 2012, plaintiff Brian Cohen filed a complaint in the
Court of Chancery of the State of Delaware against the same
individuals and seeking substantially similar relief as set forth
in the complaint filed by the Fund. By Order of the Court dated
October 2, 2012, the two actions were consolidated under the
caption In re Sirius XM Shareholder Litigation. On January 28,
2013, Plaintiffs filed a Second Amended Verified Class Action and
Derivative Complaint (the "Second Amended Complaint") in the
consolidated action.

The Second Amended Complaint alleges that Liberty and the Sirius
Designees breached their alleged fiduciary duties to the SIRIUS XM
stockholders by exerting control over SIRIUS XM to facilitate a
takeover without providing stockholders with a fair price. The
defendants have moved to dismiss the Second Amended Complaint.

LIBERTY MEDIA: Still Faces "Montero" Shareholder Suit in N.Y.
Liberty Media Corporation remains a defendant in the suit Montero
v. Sirius XM Radio Inc., Index No. 653012/2012 (N.Y. Sup. Ct.
Cnty. of New York), according to Liberty Media's May 9, 2013, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended March 31, 2013.

On August 27, 2012, plaintiff Andrew Montero filed a shareholder
class action purportedly on behalf of the shareholders of the
common stock of SIRIUS XM against SIRIUS XM, the Sirius Designees,
Liberty and Liberty Radio LLC. The action was commenced in the
Supreme Court for the State of New York in New York County.

Mr. Montero alleges breaches of fiduciary duty, aiding and
abetting breach of fiduciary duty, and seeks a declaratory
judgment, with allegations and relief sought substantially similar
to those in the City of Miami litigation. Service of the complaint
has not been effected in this case.

LINN ENERGY: Abraham Fruchter Retained to File Class Action
Abraham, Fruchter & Twersky, LLP on July 8 disclosed that it has
been retained to file a class action lawsuit on behalf of
purchasers of Linn Energy LLC common stock concerning possible
violations of federal securities laws.  Linn is an independent oil
and natural gas company that engages in the acquisition and
development of oil and natural gas properties.

On July 1, 2013, Linn disclosed that the Securities and Exchange
Commission commenced an investigation in connection with the
Company's hedging strategies, use of non-GAAP financial measures,
and their proposed acquisition of Berry Petroleum Company.  Upon
this news, shares of Linn stock fell from a close of $33.29 per
share on July 1, 2013, to a close of $27.05 the following day, on
abnormally heavy trading volume.

If you own common shares of Linn and would like to discuss this
action, or if you have any questions concerning your legal rights
as a potential plaintiff, please contact: Jack Fruchter or Arthur
J. Chen of Abraham, Fruchter & Twersky, LLP toll free at (800)
440-8986, or via e-mail at info@aftlaw.com or achen@aftlaw.com

Abraham, Fruchter & Twersky, LLP has extensive experience in
securities class action cases, and the firm has been ranked among
the leading class action law firms in terms of recoveries achieved
by a survey of class action law firms conducted by Institutional
Shareholder Services.

LOUISIANA CITIZENS: Oct. 30 Settlement Fairness Hearing Set
Paul Purpura, writing for NOLA.com|The Times-Picayune, reports
that notices are appearing in about 80,000 mailboxes statewide and
in 14 newspapers in several states alerting current and former
policyholders with Louisiana's state-run property insurer of last
resort to a possible settlement of a class-action lawsuit stemming
from hurricanes Katrina and Rita.  The notices stem from the
Louisiana Citizens Property Insurance Corp.'s failure to send
adjusters in response to many claims within 30 days, as state law

After attorneys fees are deducted, eligible property owners could
get $3,200 each.  But one of the Gretna attorneys who filed the
suit, Geraldine R. Oubre and others versus Louisiana Citizens Fair
Plan, in Jefferson Parish's 24th Judicial District Court, said on
July 8 he does not know how many people will respond.  "It depends
on how many people send in their claims," attorney Wiley Beevers

In the first round of the litigation, Judge Henry Sullivan awarded
the plaintiffs $92.8 million, but some of 18,573 eligible
policyholders statewide threw away their checks, thinking they did
not want to be involved in a class-action lawsuit.  "Some people
don't read their mail," Mr. Beevers said.

Judge Sullivan's award, which was upheld all the way to the U.S.
Supreme Court, has grown to $106 million with legal interest.
After the high court weighed in, Citizens sought to settle the
remaining cases, Mr. Beevers said.

Judge Sullivan is scheduled to preside over a fairness hearing on
Oct. 30, during which he would consider the final approval for the

Citizens attorneys have said the agency had money to pay the
claims without raising rates.  But the agency battled releasing
the money, leading Judge Sullivan last year to order Citizens'
bank account to be seized.

Mr. Beevers said that the Jefferson Parish Sheriff's Office, which
carried out the court order, received 6 percent of the amount
seized, or almost $6 million.

MADISON COUNTY, IL: Motions to Dismiss Tax Class Actions Filed
Sanford J. Schmidt, writing for The Telegraph, reports that
Madison County and one of its former employees have filed motions
to dismiss three class action lawsuits filed in connection with
fraudulent tax sales under former treasurer Fred Bathon.

The motions were filed July 1 in Madison County Circuit Court in
three class action cases.  Each motion is slightly different
because of different defendants and different allegations in the
original suits.

However, one contention common to all the motions to dismiss is
that the class actions include claims without any facts to back up
those allegations.

"To pass muster, a complaint must plead facts which bring the
claim within the legally recognized cause of action alleged.
Conclusions of fact will not suffice to state a cause of action
regardless of whether they generally inform the defendant of the
nature of the claim against him," the county states, citing a
prior appellate court ruling.

The county's motion claims the plaintiffs in a case filed Feb. 1
by Scott Bueker and others fail to state any cause of action
against the county. The original class action makes claims against
Mr. Bathon.

"An employer is not liable for an employee's criminal acts unless
the acts are committed in the course of employment and furtherance
of the business of the employer," the county alleges, citing a
prior appellate court ruling.

Because Mr. Bathon has pleaded guilty to violating the Sherman
Antitrust Act, he was acting outside the scope of his employment,
the county argues.

Mr. Bathon's actions were for his own profit and did not benefit
the county in any way, the county argues.

"The taxpayers shouldn't have to pay for the crimes of Bathon and
his co-conspirator(s). The people who were harmed by the crimes
should be made whole, and those who profited should be the ones
who pay -- not the taxpayers of Madison County," Madison County
State's Attorney Tom Gibbons said.

Attorney John L. Gilbert is representing the county.

Attorney John Barberis, an unsuccessful Republican candidate for
circuit clerk, is representing Mr. Bueker.  If the case is
approved as a class action, all people affected by the bid-rigging
scheme may be included in the class.

The lawsuit covers much of the ground that has been laid out by
federal authorities in their criminal case against Mr. Bathon, a
Democrat who pleaded guilty in January in U.S. District Court in
East St. Louis to one count of violating the Sherman Antitrust

Both the federal government and the lawsuit state Mr. Bathon
conspired with certain tax buyers to rig bids in the county's
annual auction of tax deeds.

The auction allows the buyer to acquire the debt and collect it,
plus an interest penalty.  The low bidder gets the debts and pays
the county the amount of taxes owed.

The tax buyer can collect the debt, plus the penalty.  Under the
illegal scheme, the favored buyers could collect the statutory
maximum 18 percent interest, resulting in huge profits.  Even
greater returns were possible if the debtor were unable to pay,
including the chance to foreclose on the property.

Mr. Bathon pleaded guilty to rigging the auctions to favor those
who contributed to his campaign.  The tax auction has been
reformed significantly, and the average interest penalty at this
year's tax sale in February under the direction of Treasurer
Kurt Prenzler, a Republican, was 3.7 percent.

In another proposed class action suit filed under the name of
plaintiff Geralynn Lindow, the county claims that in order for the
plaintiffs to recover money from the county, the county would have
had to have received some of the money from the rigged bids, which
it did not.  The money went to the tax buyers.

The county also claims that the proposed class members have no
legal right to a certificate of error, as claimed in the suit.
The law outlines a procedure for the tax buyer to file for a
certificate of error.  The law does not provide for a procedure
for delinquent taxpayers to file for a certificate of error, the
county argues.

In a suit filed on behalf of Virgil Straeter, the county notes in
its motion to dismiss that former County Clerk Mark Von Nida is
named individually.  Both the county and Mr. Von Nida are immune
from anti-trust liability, lawyers for the county argue.

The county's motion states it is Mr. Bathon who operated the tax
sale with no input from Mr. Von Nida, then the county clerk.  The
county clerk is required, by law, the attend the sales, but his
duties are specifically limited, the county's motion states.

The county takes issue with a claim in the Straeter case than
Mr. Von Nida, who last year was elected Madison County circuit
clerk, "agreed to participate in an unlawful act."

The law states the plaintiffs must allege a concerted action by
two or more persons in order to avoid having the case dismissed.
The Straeter case merely makes an allegation without alleging any
facts to support it, the county argues.

Assistant State's Attorney John McGuire represents Jim Foley, who
served as auctioneer in the tax sales, as a former county

Mr. Gilbert argues on behalf of Mr. Foley in the Straeter and
Lindow cases that there are no facts alleged to back up the claims
against Mr. Foley.

The Lindow case also fails to allege two or more persons
participated with Mr. Foley in agreeing to participate in an
unlawful act.  The motion also claims that Mr. Foley, as
auctioneer, was acting on behalf of both buyer and seller.  He
received the same amount of money regardless of the outcome, so he
did not benefit from the bid-rigging as did Messrs. Bathon,
McGuire argues.

MADISON COUNTY, IL: Defends Class Actions Over Tax Auctions
BND.com reports that Madison County, known as the class-action
capital of America, now has to defend itself against several
class-action lawsuits.

The county is being sued by both tax buyers who profited
handsomely from the tax auctions run by former Treasurer
Fred Bathon, and the delinquent taxpayers who suffered financially
as a result of those auctions.

The taxpayer lawsuit names, among others, Madison County Chairman
Alan Dunstan and Circuit Clerk Mark Von Nida regarding
Mr. Bathon's tax auctions, which resulted in sky-high interest
rates for delinquent property taxpayers.  In response, State's
Attorney Tom Gibbons said the plaintiffs don't have any facts to
back up the allegations in the lawsuit, that other county
officials didn't have an obligation to stop Mr. Bathon, and
anyway, how could they because this conspiracy "took place under
cover of darkness."

The plaintiffs do have at least one major fact on their side:
Mr. Bathon pleaded guilty in federal court to bid rigging.

Maybe his fellow Democrats didn't have a legal obligation to stop
him, but they likely knew what was going on, and it's
disappointing that they didn't stop him.  This conspiracy didn't
take place in darkness; it was right out in the open.  When
Frank Miles took over after Mr. Bathon's retirement, he quickly
changed the tax sale procedures and tried to distance himself from
Mr. Bathon.

The tax buyers' lawsuits involve the post-Bathon 2012 tax auction,
which was invalidated because of a procedural mistake.  The tax
buyers are just looking to profit some more at the public's

MAPCO EXPRESS: Faces 3 Class Actions Over Malware Attack
Tracy Kitten, writing for BankInfoSecurity, reports that three
class action lawsuits have been filed against MAPCO Express, a
convenience store chain, in the wake of a malware attack the suits
allege exposed payment details on hundreds of debit and credit

Following discovery of the attack, MAPCO noted that all of the 377
convenience stores that connect to its corporate network may have
been affected.  Card data associated with transactions conducted
between March 14 and April 21 was likely impacted, the company

The suits seek unspecified damages for financial losses linked to
fraud and monetary compensation for the identity theft and credit
reporting burden the exposed cardholders now face.

On July 3, MAPCO filed a motion to have two of the suits
dismissed. MAPCO claims the suits filed on behalf of Brooke Davis
on June 14 and Ian Yeager on June 17 are identical to the first
suit, which was filed May 14 on behalf of Brian Burton.  "All
three actions seek the same relief on behalf of the same putative
class against MAPCO," the filing states. "The class definitions
are practically word-for-word identical."

MAPCO executives declined to offer further comment about the
pending litigation.

                  Breaches: Assessing the Loss

One of the lawsuits mentions the breach costs involved are in
excess of $5 million.  But experts say determining the actual
total cost of a retail network breach is extremely difficult.  No
one, including the card brands, has a good handle on exactly how
much is lost as a result of fraud and post-breach expenses after a
retail network attack, says Jim Butterworth, chief security
officer of HBGary, a forensics company that handles breach
investigations and analyzes malware attacks.

"I don't know that there is a hard-fast number on what the losses
actually are," Mr. Butterworth says.  "You've got the regulatory
costs, the expense of issuing new cards and providing credit
counseling to the victims, which in and of itself can cost between
$44 and $99 per person.  Then you have the legal loss and the
actual expense of the vendors or experts you're going to hire for
investigation.  That's all before you factor in the loss related
to fraud itself."

A similar suit filed in April against Schnuck Markets Inc.
following a malware attack estimates that 500,000 cards were
exposed, but it does not offer an estimate of total losses.

Schnucks has refuted the $80 million loss estimate cited in some
media reports about the lawsuit.  "In the past, you may have seen
me speak to the $80 million estimate," says Schnucks spokeswoman
Lori Willis. "The number was pulled from figures in our filing
that were based on the plaintiffs' lawyer's estimates. We believe
that the entire suit is without merit.  We have offered no damage

Attorney David Navetta, co-founder of the Information Law Group,
says the $80 million loss figure is likely exaggerated is to
garner attention for the case.

But Avivah Litan, a financial fraud expert and analyst for
consultancy Gartner, says that figure could be a good estimate,
depending on the number of cards actually compromised.  "Something
like 10 percent of breached cards are actually used for fraudulent
transactions after they are compromised," she says.  "And the
average amount of loss just for the fraud is about $700 per card."

When all of the other expenses are factored in, the loss total
adds up quickly, she says.

Mr. Butterworth estimates the amount lost to fraud per exposed
card is more like $300 -- but that's just one of many expenses.
"It's the things you have to do after the breach that's going to
drive the costs up," he says.  "How big is your breach? How much
public exposure did you get? Were there class action lawsuits and
international suits?"

Most retailers do not have a handle on how much all of that could
cost, and most are not well prepared to deal with the breach
aftermath, Mr. Butterworth adds.

                       Claims Against MAPCO

Two of the MAPCO lawsuit plaintiffs, Davis and Burton, claim
fraudulent transactions resulted from the compromise.  And all
three suits allege MAPCO and its parent, Delek US Holdings, also
named in the claims, failed to adequately protect customer
accounts and did not notify the public in a timely manner.

"The defendant had a duty to timely disclose the data compromise
to all customers whose credit and debit card information and other
nonpublic information was, or was reasonably believed to have
been, accessed by unauthorized persons," one of the filings
claims.  "Class members were harmed by [the] defendant's delay
because, among other things, fraudulent charges have been made to
class members' accounts."

MAPCO on May 6 issued a statement acknowledging a network breach
that likely affected purchases dating back to March.

"Upon discovering the issue, MAPCO took immediate steps to
investigate the incident and further strengthened the security of
its payment card processing systems to block future information
security attacks," the company explains in its FAQ.

In a July 8 statement provided to Information Security Media
Group, MAPCO says its internal investigation is complete.

"The investigation by law enforcement officials is ongoing, and we
intend to cooperate as needed, but defer any comment regarding the
criminal investigation to them," the company states.  "Since the
incident, MAPCO has worked with an external consultant to
recommend and implement additional security precautions to better
protect the integrity of our transactions."

Those precautions have included the implementation of new
monitoring software and a robust authentication system, MAPCO
says.  "Numerous other policy and procedure changes have been
implemented to fortify the IT network perimeter," the company

"While no system is impervious to determined criminal hackers, we
are confident that we have appropriate systems in place to guard
against data theft," MAPCO states.  "We will continue to be
vigilant about our security measures going forward and want to
reassure customers that we value their business and will continue
to act responsibly with the trust they place in us in the course
of everyday business."

MCCANN SCHOOL: Sued Over False Claims on Lab Tech Program
Dennis Owens, writing for abc27, reports that McCann School of
Business faces a class action.

Newville's Kelsi Weidner says she got an education.  Just not the
kind she hoped for.

She enrolled at Carlisle's McCann School of Business in February
2012 to become a medical lab technician.

"They said, 'You'll have a job, you'll be able to work anywhere as
an MLT in a lab and you'll have your license,'" Ms. Weidner, 19,

Ms. Weidner said a McCann staffer told her the school's two-year,
$25,000 program is accredited.

It is not.

And in the medical field, her attorney says, no accreditation
means no high-paying job.

"Therefore, this education that students are spending thousands
and thousands of dollars on, isn't worth the paper that it's
printed on," said Harrisburg attorney Ben Andreozzi, who has filed
a class action lawsuit against McCann.

Mr. Andreozzi says Ms. Weidner is one of 15 clients in the suit
and he insists that McCann employees verbally told the students
that the lab tech program was accredited.  The school's website
currently makes no such claim.

Ms. Weidner says in December 2011, a staffer named Daniel promised
she'd get a license and a high paying job upon graduation.

"I just assumed," she said, of the program being accredited.

abc27 went to the school's Carlisle campus but were not welcomed.
After being asked to wait outside, a manager came out and told the
TV station there would be no comment but to call a public
relations firm in Ohio.

That firm did issue a statement saying, "It is unfortunate that
Ms. Weidner did not approach us directly with her concerns but,
instead, has elected to file a lawsuit.  It is our strong belief
that her lawsuit, including its suggestion of class status, is
without merit and we will defend ourselves vigorously."

Ms. Weidner insists that long before there was a class action
lawsuit, there was action among her classmates.  She said rumors
were swirling that the program was not accredited and therefore
worthless and students collectively reacted with questions.

"As a class, we went to the director and talked to her and said
'This isn't really right, what's going on?' She went around it and
didn't want to answer the questions."

Ms. Weidner hopes her lawsuit will educate others.

"I want other people to be aware of what goes on there, and
reimbursement for my time that was lost. I pretty much have to
start all over again."

A similar lawsuit was filed in Schuylkill County in January by
four women who claim they were misled when they signed up for the
school's medical lab tech program.

"In a perfect world, I think the school would apologize," Mr.
Andreozzi said.  "Say, 'we made a mistake, what can we do to make
this right?'"

Mr. Andreozzi filed the class action lawsuit in Cumberland County
Court.  He says this suit pertains only to the medical lab tech
program and that other programs at the school may be accredited.

MERCK & CO: 30 Suits Remain in Vioxx Product Liability MDL
In the Vioxx Multidistrict Litigation proceeding, there remains
approximately 30 putative class actions purportedly brought on
behalf of individual purchasers or users of Vioxx, seeking
reimbursement for alleged economic loss, according to Merck & Co.,
Inc.'s May 9, 2013, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended March 31, 2013.

Merck is a defendant in approximately 90 federal and state
lawsuits (the "Vioxx Product Liability Lawsuits") alleging
personal injury or economic loss as a result of the purchase or
use of Vioxx.  Most of the remaining cases are coordinated in a
multidistrict litigation in the U.S. District Court for the
Eastern District of Louisiana (the "Vioxx MDL") before Judge Eldon
E. Fallon.

In June 2010, Merck moved to strike the class claims or for
judgment on the pleadings regarding the master complaint, and
briefing on that motion was completed in September 2010. The Vioxx
MDL court heard oral argument on Merck's motion in October 2010
and took it under advisement.

MERCK & CO: Oct. Claims Filing Deadline Set for Mo. "Vioxx" Class
Members of the certified class of Missouri plaintiffs seeking
reimbursement for out-of-pocket costs relating to Vioxx has until
October 7, 2013 to submit claims under a court-approved
settlement, according to Merck & Co., Inc.'s May 9, 2013, Form 10-
Q filing with the U.S. Securities and Exchange Commission for the
quarter ended March 31, 2013.

In 2008, a Missouri state court certified a class of Missouri
plaintiffs seeking reimbursement for out-of-pocket costs relating
to Vioxx. In October 2012, the parties executed a settlement
agreement to resolve the litigation. The Company established a
reserve of $39 million in the third quarter of 2012 in connection
with that settlement agreement, which is the minimum amount that
the Company is required to pay under the agreement.

The court-approved program to notify class members about the
settlement has been completed. The settlement was approved, and
final judgment in the action has been entered. The court-approved
process for class members to submit claims under the settlement is
ongoing and will continue until October 7, 2013.

MERCK & CO: Indiana "Vioxx" Plaintiff Fights to Keep Class
The plaintiff in the Indiana Vioxx suit is seeking a review of the
Kentucky Supreme Court of a Court of Appeals' order to vacate a
ruling certifying a class of purchasers, according to Merck & Co.,
Inc.'s May 9, 2013, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended March 31, 2013.

In Indiana, plaintiffs filed a motion to certify a class of
Indiana Vioxx purchasers in a case pending before the Circuit
Court of Marion County, Indiana. That case has been dormant for
several years.

In April 2010, a Kentucky state court denied Merck's motion for
summary judgment and certified a class of Kentucky plaintiffs
seeking reimbursement for out-of-pocket costs relating to Vioxx.
The trial court subsequently entered an amended class
certification order in January 2011.

Merck appealed that order to the Kentucky Court of Appeals and, in
February 2012, the Kentucky Court of Appeals reversed the trial
court's amended class certification order and remanded the case to
the trial court with instructions that the trial court vacate its
order certifying the class. The plaintiff petitioned the Kentucky
Supreme Court to review the Court of Appeals' order and, in
November 2012, the Kentucky Supreme Court granted review. Briefing
before the Kentucky Supreme Court is now complete and the court
had set oral argument for May 15, 2013.

MERCK & CO: Oct. Trial Set in Ky. State Suit Over Safety of Vioxx
A Kentucky action that alleges Merck & Co., Inc. misrepresented
the safety of Vioxx is currently scheduled to proceed to trial in
Kentucky state court in October 2013, according to the company's
May 9, 2013, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended March 31, 2013.

Merck has also been named as a defendant in lawsuits brought by
state Attorneys General in five states. All of these actions
except for the Kentucky action are in the Vioxx MDL proceeding.
These actions allege that Merck misrepresented the safety of
Vioxx. These suits seek recovery for expenditures on Vioxx by
government-funded health care programs, such as Medicaid, and/or
penalties for alleged Consumer Fraud Act violations.

The Kentucky action is currently scheduled to proceed to trial in
Kentucky state court in October 2013. On January 10, 2013, Merck
finalized a settlement in the action filed by the Pennsylvania
Attorney General under which Merck agreed to pay Pennsylvania
$8.25 million in exchange for the dismissal of its lawsuit.

MERCK & CO: Discovery Proceeds in Motion to Amend Securities Suit
Discovery is currently proceeding in plaintiffs' motion for leave
to amend a Vioxx securities complaint against Merck & Co., Inc.,
which are coordinated in a multidistrict litigation in the U.S.
District Court for the District of New Jersey, according to the
company's May 9, 2013, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended March 31, 2013.

In addition to the Vioxx Product Liability Lawsuits, various
putative class actions and individual lawsuits under federal
securities laws and state laws have been filed against Merck and
various current and former officers and directors (the "Vioxx
Securities Lawsuits").

The Vioxx Securities Lawsuits are coordinated in a multidistrict
litigation in the U.S. District Court for the District of New
Jersey before Judge Stanley R. Chesler, and have been consolidated
for all purposes. In August 2011, Judge Chesler granted in part
and denied in part Merck's motion to dismiss the Fifth Amended
Class Action Complaint in the consolidated securities action.

Among other things, the claims based on statements made on or
after the voluntary withdrawal of Vioxx on September 30, 2004 have
been dismissed. In October 2011, defendants answered the Fifth
Amended Class Action Complaint. In April 2012, plaintiffs filed a
motion for class certification and, on January 30, 2013, Judge
Chesler granted that motion.

On March 15, 2013, plaintiffs filed a motion for leave to amend
their complaint to add certain allegations to expand the class
period, which motion has been fully briefed. Discovery is
currently proceeding in accordance with the court's scheduling

MERCK & CO: Facing Fosamax Product Liability Class Suit
Merck & Co., Inc. is a defendant in product liability lawsuits in
the United States involving Fosamax (the "Fosamax Litigation"). As
of March 31, 2013, approximately 4,990 cases, which include
approximately 5,585 plaintiff groups, had been filed and were
pending against Merck in either federal or state court, including
one case which seeks class action certification, as well as
damages and/or medical monitoring, according to the company's
May 9, 2013, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended March 31, 2013.

In approximately 1,210 of these actions, plaintiffs allege, among
other things, that they have suffered osteonecrosis of the jaw
("ONJ"), generally subsequent to invasive dental procedures, such
as tooth extraction or dental implants and/or delayed healing, in
association with the use of Fosamax. In addition, plaintiffs in
approximately 3,780 of these actions generally allege that they
sustained femur fractures and/or other bone injuries ("Femur
Fractures") in association with the use of Fosamax.

MERCK & CO: Settles Vytorin Securities Lawsuit for $215 Million
Merck & Co. Inc reached an agreement in principle with plaintiffs
in In re Merck & Co., Inc. Vytorin Securities Litigation to settle
this matter for $215 million, according to the company's May 9,
2013, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended March 31, 2013.

In April 2008, a Merck shareholder filed a putative class action
lawsuit in federal court which has been consolidated in the
District of New Jersey with another federal securities lawsuit
under the caption In re Merck & Co., Inc. Vytorin Securities

An amended consolidated complaint was filed in October 2008. A
second amended consolidated complaint was filed in February 2012,
and named as defendants Merck; Merck/Schering-Plough
Pharmaceuticals; MSP Distribution Services (C) LLC; MSP Singapore
Company LLC; and certain of the Company's current and former
officers and directors.

The complaint alleges that Merck delayed releasing unfavorable
results of the ENHANCE clinical trial regarding the efficacy of
Vytorin and that Merck made false and misleading statements about
expected earnings, knowing that once the results of the ENHANCE
study were released, sales of Vytorin would decline and Merck's
earnings would suffer. In December 2008, Merck and the other
defendants moved to dismiss this lawsuit on the grounds that the
plaintiffs failed to state a claim for which relief can be
granted. In September 2009, the court denied defendants' motion to

In March 2012, defendants filed a motion for summary judgment. In
September 2012, the court denied defendants' motion for summary
judgment and granted lead plaintiffs' amended motion for class
certification. On February 13, 2013, Merck announced that it had
reached an agreement in principle with plaintiffs to settle this
matter for $215 million. On March 11, 2013, the court stayed all
proceedings pending submission of the agreement for court
approval. The proposed settlement was reflected in the Company's
2012 financial results.

MERCK & CO: Settles Schering-Plough/ENHANCE Stock Suit for $473M
Merck & Co. Inc. reached an agreement in principle with plaintiffs
to settle In re Schering-Plough Corporation/ENHANCE Securities
Litigation for $473 million, according to the company's May 9,
2013, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended March 31, 2013.

There is a consolidated, putative class action securities lawsuit
pending in the District of New Jersey, filed by a Schering-Plough
shareholder against Schering-Plough and its former Chairman,
President and Chief Executive Officer, Fred Hassan, under the
caption In re Schering-Plough Corporation/ENHANCE Securities

The amended consolidated complaint was filed in September 2008 and
names as defendants Schering-Plough; Merck/Schering-Plough
Pharmaceuticals; certain of Merck's current and former officers
and directors; and underwriters who participated in an August 2007
public offering of Schering-Plough's common and preferred stock.

In December 2008, Schering-Plough and the other defendants filed
motions to dismiss this lawsuit on the grounds that the plaintiffs
failed to state a claim for which relief can be granted. In
September 2009, the court denied defendants' motions to dismiss.
In March 2012, the Schering-Plough defendants filed a motion for
partial summary judgment and the underwriter defendants filed a
motion for summary judgment.

In September 2012, the court denied defendants' motions for
summary judgment and granted lead plaintiffs' amended motion for
class certification. On February 13, 2013, Merck announced that it
had reached an agreement in principle with plaintiffs to settle
this matter for $473 million. On March 11, 2013, the court stayed
all proceedings pending submission of the settlement agreement for
court approval.

If approved, this settlement will exhaust the remaining Directors
and Officers insurance coverage applicable to the Vytorin lawsuits
brought by the legacy Schering-Plough shareholders. The proposed
settlement was reflected in the Company's 2012 financial results
and, together with the [$215 million Vytorin Securities
Litigation] settlement, resulted in an aggregate charge of $493
million after taking into account anticipated insurance recoveries
of $195 million.

MERCK & CO: Reinstated as Defendant in N.J. AWP Lawsuit
Merck & Co. Inc. was reinstated as a defendant in a putative class
action in New Jersey Superior Court, which alleges on behalf of
third-party payers and individuals that manufacturers inflated
drug prices by manipulation of Average Wholesale Prices, according
to the company's May 9, 2013, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended March 31,

The Company and/or certain of its subsidiaries remain defendants
in cases brought by various states alleging manipulation by
pharmaceutical manufacturers of Average Wholesale Prices ("AWP"),
which are sometimes used by public and private payors in
calculating provider reimbursement levels. The outcome of these
lawsuits could include substantial damages, the imposition of
substantial fines and penalties and injunctive or administrative

Since the start of 2012, the Company has settled certain AWP cases
brought by the states of Alabama, Alaska, Kansas, Kentucky,
Louisiana, Oklahoma, and Mississippi. The Company and/or certain
of its subsidiaries continue to be defendants in cases brought by
five states.

The Company has also been reinstated as a defendant in a putative
class action in New Jersey Superior Court which alleges on behalf
of third-party payers and individuals that manufacturers inflated
drug prices by manipulation of AWPs and other means. This case was
originally dismissed against the Company without prejudice in
2007. The Company intends to defend against this lawsuit.

MERCK & CO: N.J. Suit Over Manufacturer Coupon Programs Dismissed
The U.S. District Court for the District of New Jersey dismissed
all manufacturer coupon programs actions against Merck Co. Inc.,
according to the company's May 9, 2013, Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended
March 31, 2013.

In 2012, as previously disclosed, a number of private health plans
filed separate putative class action lawsuits against the Company
alleging that Merck's coupon programs injured health insurers by
reducing beneficiary co-payment amounts, thereby allegedly causing
beneficiaries to purchase higher-priced drugs than they otherwise
would have purchased and increasing the insurers' reimbursement

The actions, which were assigned to a District Judge in the U.S.
District Court for the District of New Jersey, sought damages and
injunctive relief barring the Company from issuing coupons that
would reduce beneficiary co-pays on behalf of putative nationwide
classes of health insurers.

Similar actions relating to manufacturer coupon programs have been
filed against several other pharmaceutical manufacturers in a
variety of federal courts. On April 29, 2013, the District Court
dismissed all the actions against Merck without prejudice on the
ground that plaintiffs had failed to demonstrate their standing to
sue. Plaintiffs were given until June 3, 2013 to file amended

MERSCORP HOLDINGS: Judge Dismisses Recording Fee Class Action
Jessica M. Karmasek, writing for Legal Newsline, reports that a
federal judge last month dismissed a class action lawsuit filed
against the national mortgage registry known as MERS and various
banks over alleged violations of Rhode Island's recording

Judge John J. McConnell Jr. of the U.S. District Court for the
District of Rhode Island sided with MERSCORP Holdings Inc.,
Mortgage Electronic Registration Systems Inc. and other member
bank defendants in Town of Johnston v. MERSCORP Holdings Inc., et

The federal judge dismissed the class action lawsuit, filed by the
town of Johnston on its own behalf and the behalf of all other
similarly situated Rhode Island cities and towns.

Allegations included violations of the state's recording
requirements and unjust enrichment.

In particular, the class alleged that by "creating their own
private, electronic recording system" the defendants "maximize[d]
profits in the residential and commercial mortgage markets,"
"sought to avoid the inconvenience and cost of recording"
assignments, "effectively privatized land title transactions,"
"claimed . . . priority of their interests," "sought to shield
each holder's identity from public disclosure and simultaneously
lower securitization costs," and "left [Rhode Island's] public
land evidence records littered with broken chains of title."

Both counts were dismissed by McConnell.

"Rhode Island law does not require that all mortgages and mortgage
assignments be recorded," the judge wrote in the 11-page ruling,
filed June 21.

"Absent a statutory requirement to record, there are no damages
and therefore there is no cause of action."

Citing a previously established Rhode Island Supreme Court opinion
in Bucci v. Lehman Bros. Bank FSB, McConnell held that "[w]henever
a note is sold, assigned or otherwise transferred to another
MERSCORP member, MERS remains the mortgagee of record."

"As a result, there is no need to record an assignment of the
mortgage in the land evidence records," he wrote.  "It is only
when a loan is transferred to a nonmember that an assignment of
the mortgage must be executed and recorded."

MERSCORP says the ruling mirrors similarly dismissed recorder fee
lawsuits brought by counties in Arkansas, Florida, Illinois, Iowa,
Kentucky, Missouri and North Carolina.

"Rhode Island courts have consistently upheld MERS valid role and
authority," MERSCORP Holdings' Director of Corporate
Communications Jason Lobo said in a statement on July 8.

MERSCORP and Mortgage Electronic Registration Systems Inc. were
formed in 1995 to facilitate the growing mortgage finance market.

The privately-held electronic registry is designed to track
servicing rights and ownership of mortgage loans in the United

Starting date:                July 9, 2013
Type of communication:        Recall
Subcategory:                  SUV
Notification type:            Safety Mfr
System:                       Suspension
Units affected:               62
Source of recall:             Transport Canada
Identification number:        2013241TC
ID number     :               2013241
Manufacturer recall number:   SR13-008

Affected products:

   Make            Model        Model year(s) affected
   ----            -----        ----------------------
   MITSUBISHI      RVR          2013

On certain vehicles, the stabilizer link bracket on the left front
strut may have been improperly welded during the manufacturing
process.  As a result, the bracket may detach from the strut and
damage the tire and/or brake hose.  Tire failure could cause the
driver to lose vehicle control, whereas a damaged brake hose could
cause a loss of brake fluid, which may increase stopping
distances.  Both issues could result in a crash causing property
damage and/or personal injury.

Dealers will inspect and, if necessary, replace the left front
strut assembly.

NAT'L FOOTBALL: Judge Tosses Super Bowl XLV Seating Class Action
Susan Schrock, writing for Star-Telegram, reports that a federal
judge ruled on July 9 that hundreds of fans' complaints against
the National Football League for seating problems at Super Bowl
XLV in Arlington cannot move forward as a class-action lawsuit.

U.S. District Judge Barbara M.G. Lynn wrote in her order that
ticket holders who did not participate in the NFL's voluntary
settlement for those who were either denied seats, relocated to
other seats, delayed entry into the stadium or had obstructed
views during the Feb. 6, 2011, game at Cowboys Stadium would need
to file their suits individually to determine damages.

Judge Lynn wrote that she found "the burdens and costs associated
with proceeding as a class action outweigh potential benefits."

"The court is skeptical that a classwide approval or disapproval
of certain categories of damages would accurately compensate class
members for their losses.  What makes one person whole may not
make others whole," the order states.  "Mini-trials for every
class member will still be necessary to determine an individual's

Affected Super Bowl XLV ticket holders notified a federal court
last year of their plans to proceed with a class-action lawsuit
against the NFL after months of mediation attempts failed.  The
lawsuit says that the NFL breached its contract with ticket
holders and that the settlement offers made by the league after
the game failed to fully compensate them.

"We are pleased with the court's decision refusing to certify any
class in this case," the NFL said in a prepared statement on
July 9.

Plaintiffs attorney Michael Avenatti said he would move on with
individual breach-of-contract lawsuits.

"We are disappointed with the court's ruling but look forward to
representing hundreds of our clients this year in the trials
against the NFL," Mr. Avenatti said, according to The Associated
Press.  "During those trials, we will prove that the NFL defrauded
its fans."

To expand the stadium's normal 80,000 seating capacity for Super
Bowl XLV, the Cowboys contracted with Seating Solutions to install
13,000 temporary bleacher-style seats.  But hours before kickoff,
Arlington fire officials and building inspectors declared 1,250 of
those temporary seats unsafe because of numerous code violations,
including missing handrails and guardrails.

The city had told the Cowboys for weeks that the seat construction
contractor was behind schedule and had not provided adequate
documentation in areas such as structural engineering.  The
league, which the Cowboys had notified about the situation days
before the game, did not inform ticket holders until they had
cleared security and their tickets were scanned at the stadium.

About 3,200 fans were affected. Most were accommodated, but more
than 400 didn't get seats at all.

The NFL has said it satisfied its obligations to the displaced
fans by offering them the prices they paid for their tickets plus
all documented travel, lodging and meal expenses.  About 2,800
people who were delayed getting to their seats or were relocated
could receive the face value of their tickets or a ticket to a
future Super Bowl.  According to the July 9 order, most of those
affected ticket holders had accepted either offer, leaving between
880 and 1,423 potential class-action lawsuit members.

About 434 people who did not have a seat had more options: $2,400
plus a ticket to the 2012 Super Bowl; a trip to a future Super
Bowl with airfare and a four-night hotel stay; a check for $5,000;
or a check for more than $5,000 with documented expenses.

All but about 40 of those affected ticket holders have resolved
their claims, according to the order.

The suit was also seeking damages for another 4,746 people who
claim they were mislead by the league because they were never
informed that their seats had obstructed views of the field or the
scoreboard over the field.  The NFL offered no voluntary
reimbursement programs for fans claiming to have experienced
obstructed views, according to the order.

NOVA SCOTIA HOME: Lawyer Says Class Action "House of Straw"
Davene Jeffrey, writing for The Chronicle Herald, reports that a
proposed class action on behalf of a group of former residents of
the Nova Scotia Home for Colored Children "is a house of straw," a
lawyer for the province said on July 8.

"The province did not have the power to cause the harm or to avoid
the harm which is the central issue," Peter McVey said.

"The Nova Scotia government did have a role to play at the home,
but it was to encourage, advise and inspect."

Lawyers Ray Wagner and Mike Dull of the Halifax firm Wagners are
asking Justice Arthur LeBlanc of Nova Scotia Supreme Court to
certify the former residents' lawsuit.  They say it's the
complainants' only opportunity to right abuses they say they
endured at the Dartmouth orphanage.

But Mr. McVey said any power the province may have had to impose
standards and assess staff at the home was minimal.

"It doesn't make the province or the attorney general the big bad
wolf," he said.

Government lawyers spent much of July 8 outlining the development
of Children's Aid Societies in the province and the evolution of
the government's involvement with the societies.

From the earliest days, the care of orphaned or neglected children
was the responsibility of municipalities, Mr. McVey said.

In 1911, the province created the position of a superintendent,
whose job it was to assist and inspect the home and to keep track
of adoptions and delinquent children.

By 1976, when the province began licensing institutions such as
the Home for Colored Children, little had changed as far as
provincial oversight goes, Mr. McVey said.

Children's Aid Societies held all "parent-like powers" over
children in their care.

The government lawyers were set to continue their arguments on
July 9.

OXFORD HEALTH: Morrison & Foerster Discusses Arbitration Ruling
Sylvia Rivera, Esq. -- srivera@mofo.com -- and Johanna E. Sheehe,
Esq. -- jsheehe@mofo.com -- at Morrison & Foerster LLP, report
that in Oxford Health Plans LLC v Sutter(1) the Supreme Court
unanimously held that where the parties to an arbitration
agreement authorize the arbitrator to decide whether their
agreement allows class arbitration, a court cannot disturb the
arbitrator's decision to permit class arbitration, provided that
the arbitrator attempted to base his or her decision on an
interpretation of the contract, regardless of how erroneous that
interpretation may be. Sutter is a narrow ruling because it rests
on the parties' express agreement to allow the arbitrator --
rather than a court -- to decide whether the agreement permits
class arbitration.  The decision serves as a reminder to companies
to ensure that their arbitration agreements are clear and to
consider the possible risks before conferring on the arbitrator
the power to decide whether class arbitration is permitted.


A doctor brought a class action against Oxford, a health insurer,
for allegedly failing to pay for medical care rendered to Oxford's
members. The contract provided that:

"[N]o 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".

The state court granted Oxford's motion to compel arbitration and
the parties agreed that the arbitrator -- not the court -- should
decide whether their contract authorized class arbitration.  The
arbitrator concluded that the above-quoted language permitted
class arbitration.  A federal district court denied Oxford's
subsequent motion to vacate the arbitrator's decision and the
Third Circuit affirmed.


The Supreme Court affirmed the Third Circuit, finding dispositive
the parties' agreement that the arbitrator should decide whether
the contract approved class arbitration.  The court reasoned that
in light of that concession, under Section 10(a)(4) of the Federal
Arbitration Act, "the sole question for [the Court] is whether the
arbitrator (even arguably) interpreted the parties' contract, not
whether he got its meaning right or wrong".  As the arbitrator had
at least purported to interpret the parties' contract to conclude
that the parties had agreed to class arbitration, however
erroneous his interpretation may have been, the court could not
set aside his decision.

Many were expecting the Supreme Court to decide:

    what contractual language is required to support a finding
that the parties agreed to authorise class arbitration; and

    whether the availability of class arbitration is a question of
arbitrability, and therefore an issue for the court, rather than
an arbitrator, to decide.

Ultimately, the case did not create the opportunity to resolve
either question because the parties had specifically delegated the
decision making to the arbitrator, and this act precluded the
court from second-guessing the arbitrator's interpretation of the


Although Sutter is a narrow ruling, it underscores that companies
should think carefully before agreeing that an arbitrator, rather
than a court, should decide whether a contract permits class
arbitration.  If a company delegates that power to the arbitrator
and he or she gets it wrong, there is little to no recourse. To
avoid the problem altogether, companies should ensure that their
arbitration agreements clearly state whether class arbitration is
permitted.  The clearer the language, the less room there will be
for an arbitrator or judge to apply his or her own potentially
contrary interpretation.  The concurring opinion in Sutter, which
explains that absent class members may not be bound by an
arbitrator's erroneous conclusion that they agreed to class
arbitration, highlights the risks of failing to do so.

PILOT FLYING J: Faces 3 More Class Actions Over Fuel Rebates
James Jaillet, writing for Overdrive, reports that three more
class-action lawsuits have been filed against Pilot Flying J due
to the ongoing federal investigation into the company that it
knowingly and fraudulently withheld fuel rebates from fleet
customers over a seven-year period.

With these, the company has been sued at least 15 times since
federal agents raided the company April 15.  A federal affidavit
was released April 18 alleging that the company defrauded carriers
out of tens of millions in owed fuel rebates.

The first of the most recent lawsuits, filed June 21 by Industrial
& Crane Services based in Pascagoula, Miss., is suing the truck
stop chain and fuel provider for breach of contract, conversion,
unjust enrichment and violation of Tennessee's Consumer Protection
Act.  The company is seeking damages, restitution and
disgorgement.  Like the other lawsuits filed against the company,
this one seeks a jury trial.

The second suit, filed July 2, names not only Pilot Corporation as
a defendant, but also Pilot's senior leadership, including CEO
Jimmy Haslam.  The suit is being brought by Arka Logistics in
Markham, Ill., and uses the federal affidavit as evidence of its
claims, which include -- unlike most of the other lawsuits against
the company -- violations of the Racketeer Influenced Corrupt
Organizations Act and mail fraud.

Arka is suing both the company and management for counts of
violations of RICO, conspiring to violate RICO, breach of
contract, tortious interference with a contract, negligent
misrepresentation and unjust enrichment.  It's seeking actual,
consequential and incidental damages, along with punitive damages,
treble damages, injunctive relief, and attorneys' fees and court
costs.  It also seeks a jury trial.

The last of the three most recent was filed July 3 by R&R
Transportation in Minnesota and also names Pilot executives as
defendants.  It relies on the affidavit, too, for evidence.  R&R
is seeking damages, treble damages, restitution, equitable relief,
and attorneys' fees and court costs.  It's suing on counts of
violations of RICO, breach of contract, fraud, fraudulent
concealment, violations of deceptive trade practices laws and
consumer protection statutes, unjust enrichment and conversion.
It seeks a jury trial, too.

POSITIVESINGLES.COM: Judge Certifies Members' Class Action
Traverse Legal, PLC is reporting that the California Superior
Court, Case No: 1-11-CV-211205 granted class certification for
approximately 9,346 registered users of STD dating site
PositiveSingles.com and SuccessfulMatch.com.

In a victory for consumers and registered users of the websites
http://www.successfulmatch.com,the Superior Court of the State of
California, County of Santa Clara granted class certification in
the class action lawsuit filed by Plaintiff John Doe against the
STD-Dating site.  The John Doe Complaint filed against
positivesingles.com and successfulmatch.com alleges violations of
California's unfair competition laws, violation of California's
Consumer Legal Remedies Act, unfair competition and unlawful,
unfair and deceptive business practices.

As reflected in court documents, Plaintiffs allege that
Defendant's websites failed to disclose to members that their
photographs and profiles would be accessible on upwards of 1,000
websites other than the one they signed up on.  The software
operating the matchmaking website is alleged to push private
profiles for STD positive individuals looking for STD positive
mates across hundreds of other domain names.  Plaintiffs are
seeking injunctive relief as well as restitution of their
registration fees, compensatory, statutory and punitive damages.
The members of the class action are currently defined as
"residents of the State of California who registered for use of
the Positivesingles.com website or any other website indicating
that it was "powered by Positivesingles.com" during a four year
period ending October 1, 2011.

If you believe you are a member of this class action or that your
private personal information has been unlawfully used by
PositiveSingles or SuccessfulMatch, you should contact internet
class action attorney Enrico Schaefer at enrico@traverselegal.com

RESTAURANT.COM: Online Purchases Subject to State Law, Court Rules
Salvador Rizzo, writing for The Star-Ledger, reports that in a
decision that could clear the way for a nationwide class-action
lawsuit dealing with online gift certificates for restaurants, the
state Supreme Court on July 9 said such online purchases are
"written consumer contracts" subject to state law.

Two New Jersey residents -- Larissa Shelton of Lindenwold and
Gregory Bohus of Cherry Hill -- sued Illinois-based Restaurant.com
because they bought coupons for discount meals from 2007 to 2009
that included wording that they would expire after one year.
Under New Jersey law, gift certificates must be valid for two

While the company says its coupons never expire, the two
residents' attorney, Bruce Greenberg, said the court decision
prevents individual restaurants from denying them after one year.

"It makes clear that consumer protection extends to transactions
that occur in the 21st century in different ways perhaps than
before, which should give consumers comfort that merchants they
deal with can't take advantage of technology to wipe out statutory
protections," Mr. Greenberg said.

The federal Third Circuit Court of Appeals, which is considering
the lawsuit, asked the New Jersey justices to dig into the state's
laws on consumer fraud protection and gift certificates and decide
whether they extended to the online coupons, and whether those
gift certificates could be defined as "property."

In a 7-0 decision, the court said they are in fact property
governed by contracts, signaling that a few clicks on the Internet
are as valid as handwritten signatures in some cases.

"The transaction has all the basic features of a contract: offer,
acceptance, consideration, and performance by both parties," Judge
Mary Catherine Cuff, who is temporarily assigned to the Supreme
Court, wrote in the decision.  "We reject the argument advanced by
Restaurant.com that the transactions . . . cannot be considered
consumer contracts because they are not in writing."

The lawsuit now goes back to the Third Circuit, where Greenberg
said he will file a motion for a class action that could affect
potentially thousands of consumers who bought such online coupons
from Restaurant.com since 2006.

"We believe (the class) will consist of hundreds or even thousands
of people that we believe are in the same boat as these clients,"
Greenberg said.

Michael McDonald, the attorney for Restaurant.com, said the
company was disappointed by the decision and added that
"Restaurant.com certificates do not expire."

"We are confident that Restaurant.com will be completely
vindicated on the claims asserted in the lawsuit," he said in a
statement.  "Restaurant.com certificates do not expire, can be
used via our mobile app when dining at the restaurant, and can be
exchanged for another participating restaurant either online or by
calling customer service."

Judge Cuff said the relevant state laws were all written and
passed long before the advent of Internet coupons.  But she added
that the essence is the same as any other coupon or gift
certificate, and consumers who buy them are entitled to the same
protections they would get for other "tangible" or "intangible"

"We do not know whether the Legislature specifically envisioned
certificates or coupons like the ones Restaurant.com offers," she
wrote.  "The statute as drafted, however, covers the certificates
in question.  The Legislature remains free to change the law
should it so choose."

RONA INC: Recalls 2,060 UBERHAUS Hibachi Barbecues
Starting date:           July 9, 2013
Posting date:            July 9, 2013
Type of communication:   Consumer Product Recall
Subcategory:             Household Items
Source of recall:        Health Canada
Issue:                   Product Safety
Audience:                General Public
Identification number:   RA-34495

Affected products: UBERHAUS hibachi barbecues

RONA Inc. is issuing a voluntary recall on UBERHAUS hibachi
barbecues identified by item number 499#4-10/ALUM and CUP

The design of the barbecue may cause the handles to become very
hot or catch fire and fall off during use, which can pose an
injury hazard to the users.

Pictures of the recalled products are available at:


Approximately 2,060 of the recalled hibachis were sold and
merchandised at Reno-Depot stores in Quebec and RONA stores
throughout Canada, including RONA stores that were formerly under
the TOTEM banner in Alberta.

The recalled hibachis were sold from February to June 2013.

The recalled products were manufactured in China.

Health Canada has not received any reports of incidents of
injuries to Canadians related to the use of these hibachis.


   Rona Inc.

Customers who have these hibachis in their possession should stop
using them immediately and return them to a RONA or Reno-Depot
store, or call the customer service centre at 1-866-283-2239 toll-
free for further information.

SHAH BROTHERS: Recalls Shabros Brand Coriander Cumin Powders
Starting date:                        July 8, 2013
Type of communication:                Recall
Alert sub-type:                       Health Hazard Alert
Subcategory:                          Microbiological - Salmonella
Hazard classification:                Class 2
Source of recall:                     Canadian Food
                                      Inspection Agency
Recalling firm:                       Shah Brothers Imports
Distribution:                         Manitoba, Ontario
                                      Nova Scotia
Extent of the product distribution:   Retail

The Canadian Food Inspection Agency (CFIA) and Shah Brothers
Imports are warning the public not to consume the Shabros brand
Coriander Cumin Powders described below because they may be
contaminated with Salmonella.  Pictures of the available products
are available at:


There have been no reported illnesses associated with the
consumption of these products.

The importer, Shah Brothers Imports, Mississauga, ON, is
voluntarily recalling the affected products from the marketplace.
The CFIA is monitoring the effectiveness of the recall.

STATE FARM: Seeks Dismissal of RICO Class Action
Bethany Krajelis, writing for The Madison-St. Clair Record,
reports that the defendants in a lawsuit alleging fraudulent
activity in Avery v. State Farm have asked a federal judge to deny
class certification, saying the plaintiffs' claims would require
re-litigation of the underlying issues in an already resolved

State Farm made this argument in a memorandum of law filed on
July 8 in opposition to the plaintiffs' June request for class

The two other named defendants -- William Shepherd, an attorney at
the insurance company, and Ed Murnane, president of the Illinois
Civil Justice League (ICJL) -- on July 8 filed a joinder to State
Farm's memo.

The issue over class certification stems from a lawsuit that Mark
Hale, Todd Shale and Carly Vickers Morse brought in May 2012 in
southern Illinois' federal court.  All three plaintiffs were
plaintiffs in the 1997 nationwide class action Avery v. State

They accuse the defendants of violating the Racketeer Influenced
and Corruption Organizations (RICO) Act by creating an enterprise
"to enable State Farm to evade payment of a $1.05 billion judgment
affirmed in favor of approximately 4.7 million State Farm
policyholders" in Avery.

The plaintiffs contend the alleged scheme was implemented in two
phases, the first of which involved recruiting, financing and
electing a candidate to the Illinois Supreme Court who would vote
to overturn the judgment against State Farm once elected.  They
assert the first phase was completed when Lloyd Karmeier won the
2004 race for the Fifth District seat on the state high court and
nine months later, voted in favor of overturning the billion-
dollar judgment against State Farm.

The second phase, the suit contends, took place in 2005 and 2011,
when State Farm filed alleged misrepresentations to the Supreme
Court in response to the plaintiffs' requests for the justices to
vacate their decision overturning judgment.

In their the July 8 memo, the defendants claim the plaintiffs'
June request for class certification "is an improper attempt to
reopen class certification issues that were definitely decided
against plaintiffs in Avery v. State Farm."

They further argue that the plaintiffs' RICO theory would not only
"require re-litigation of the underlying issues decided in Avery,"
but "would necessitate individual evidence for each class member
that a non-OEM [Original Equipment Manufacturer] part was
installed on his or her car and that the use of that part resulted
in injury in damages."

In Avery, the plaintiffs claimed that "State Farm's specification
of non-OEM parts in its policyholders' car repair estimates
breached its policies and violated the Illinois Consumer Fraud Act
(ICFA)," according to the defendants' memo.

The Supreme Court in Avery, the memo notes, determined the
plaintiffs' claims "presented an overwhelming predominance of
individual issues because" the terms of each class members'
policies varied, as did the circumstances of their car repairs and

"The re-litigation of these issues, including issues of class
certification, is barred by the Rooker-Feldman doctrine,
collateral estoppel and res judicata, as well as principles of
comity that the U.S. Supreme Court has held are applicable in the
class certification context," the defendants assert.

Stressing that the plaintiffs have unsuccessfully argued four
times in the state high court and once in the U.S. Supreme Court
that "Karmeier's participation in Avery 'tainted' the
proceedings," the defendants contend "the same predominating
individual issues that existed in Avery render class certification
improper here."

And while the plaintiffs claim they don't challenge the Avery
decision, the defendants assert the plaintiffs' attempt to recover
the overturned award constitutes a challenge of the court's ruling
over class certification, as well as its conclusions on the merits
of the case.

"Plaintiffs' RICO theories do not change the fact that the same
transactions at issue in Avery are at issue here," the defendants
assert in their memo.  "Accordingly, State Farm respectfully
requests as a preliminary matter that the Court reexamine the
threshold issue of subject matter jurisdiction under" the Rooker-
Feldman doctrine.

They claim that this doctrine -- which basically says that federal
courts don't have jurisdiction to review state court decisions or
claims intertwined with previous state court rulings -- prevents
the federal court from reviewing Karmeier's participation in Avery
or the court's rulings in the case.

The defendants further argue that even if the Rooker-Feldman
doctrine doesn't apply, the plaintiffs' claims are barred by
collateral estoppel and res judicata.

"[D]espite being cloaked in the guise of RICO claims," the
defendants assert the class certification issues decided by the
court in Avery are identical to the ones made in this suit and
"involve the same underlying transactions and factual

As such, the defendants contend in their memo that the plaintiffs
are "precluded from re-litigation class certification and from
seeking to represent in federal court the identical class that
they purported to represent in Avery."

In addition to these arguments, the defendants claim that the
individual issues presented in the suit would make it impossible
to meet the class certification requirements under Rule 23 of the
Federal Rules of Civil Procedure.

"In order to satisfy RICO standing and injury, each individual
class member would need to show that he or she was entitled to a
'clear and definite' amount of damages," the defendants assert.

This, the defendants claim, "would require individual examination
of a class member's underlying claim in Avery, including the
policy terms, whether or not an OEM part was actually installed on
the class member's car, and whether the car was returned to its
pre-loss condition."

"Moreover," the defendants state in their memo, "given the
Illinois Supreme Court's unanimous substantive rulings rejecting
specification damages and the $600 million ICFA punitive award, an
unknown number of class members, who could only be identified on
an individual basis, will have no claim whatsoever."

The defendants also argue that the plaintiffs' ability to show
injury under the RICO Act "is dependent upon their ability to show
that they were entitled to recover in Avery."

And since the court in Avery did not resolve issues over liability
and damages, the defendants assert it is unknown how much each
class member might have been awarded if the billion-dollar
judgment was not overturned.

"Millions of individual hearings would be required to make those
determinations in this case, overwhelming any purported common
issues and rendering class certification improper," the defendants
claim.  They argue that "the need for such determinations not only
demonstrates the utter impropriety under Rooker-Feldman of the
task Plaintiffs ask the Court to undertake, but would multiply the
individual questions raised by Plaintiffs' claims."

State Farm's memo, which the two other defendants joined, was
submitted by Edwardsville attorney Patrick D. Cloud and Chicago
attorneys J. Timothy Eaton, Joseph A. Cancila, Jr. and James P.
Gaughan, along with three New York attorneys listed as of counsel.

Belleville attorneys Russell Scott and Laura Oberkfell represent
Shepherd.  Chicago attorneys Richard J. O'Brien, Scott M. Berliant
and David Gavin Jorgensen represent Murnane.

The plaintiffs are represented by more than 20 attorneys,
including Mississippi attorney Don Barrett, Tennessee attorneys W.
Gordon Ball and Charles Barrett, Louisiana attorneys Patrick
Pendley and Nicholas Rockforte and Alabama attorneys Tom Thrash,
Steven Martino, Richard Taylor and Lloyd Copeland.

SYNOVUS FINANCIAL: Appeals Certification of Securities Lawsuit
Defendants in a securities suit lodged against Synovus Financial
Corp. filed a motion for permission to appeal a class
certification ruling with the 11th Circuit Court of Appeals,
according to the company's May 9, 2013, Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended
March 31, 2013.

On July 7, 2009, the City of Pompano Beach General Employees'
Retirement System filed suit against Synovus, and certain of
Synovus' current and former officers, in the United States
District Court, Northern District of Georgia (Civil Action File
No. 1:09-CV-1811) (the "Securities Class Action"); and on June 11,
2010, Lead Plaintiffs, the Labourers' Pension Fund of Central and
Eastern Canada and the Sheet Metal Workers' National Pension Fund,
filed an amended complaint alleging that Synovus and the named
individual defendants misrepresented or failed to disclose
material facts that artificially inflated Synovus' stock price in
violation of the federal securities laws.

Lead Plaintiffs' allegations are based on purported exposure to
Synovus' lending relationship with the Sea Island Company and the
impact of such alleged exposure on Synovus' financial condition.

Lead Plaintiffs in the Securities Class Action seek damages in an
unspecified amount. On May 19, 2011, the Court ruled that the
amended complaint failed to satisfy the mandatory pleading
requirements of the Private Securities Litigation Reform Act. The
Court also ruled that Lead Plaintiffs would be allowed the
opportunity to submit a further amended complaint. Lead Plaintiffs
served their second amended complaint on June 27, 2011.
Defendants filed a Motion to Dismiss that complaint on July 27,

On March 22, 2012, the Court granted in part and denied in part
that Motion to Dismiss. On April 19, 2012, the Defendants filed a
motion requesting that the Court reconsider its March 22, 2012
order. On September 26, 2012, the Court issued a written order
denying the Motion for Reconsideration. Defendants filed their
answer to the second amended complaint on May 21, 2012.

On March 7, 2013, the Court granted Lead Plaintiffs' motion for
class certification. Defendants have filed a motion for permission
to appeal the class certification ruling with the 11th Circuit
Court of Appeals. Discovery in this case is ongoing.

There are significant uncertainties involved in any potential
class action. Synovus may seek to mediate the Securities Class
Action in order to determine whether a reasonable settlement can
be reached. In the event the Securities Class Action is not
settled, Synovus and the individually named defendants
collectively intend to vigorously defend themselves against the
Securities Class Action.

TULSA COUNTY, OK: County Jail Faces Civil Rights Class Action
Lacie Lowry, writing for News On 6, reports that one of the
families suing the Tulsa County jail over civil rights violations
is speaking publicly about the lawsuit for the first time.  The
families all have loved ones who died at the jail over the past
three years.

Gwendolyn Young was a single mother with three kids and 13
grandkids.  She had a history of medical problems and mental
illness, but the lawsuit says the jail failed her at every aspect
of basic healthcare.

"We miss her a lot and we're frustrated," said her daughter,
Deborah Young.  Deborah said she never imagined her mom's death
bed would be in jail.

"I just don't want to see this continue, I don't want to see
anyone else have to suffer the way my family has suffered," she

Deborah joined a civil rights lawsuit against the Tulsa County
Sheriff's Office over her mother's death.

Gwendolyn Young was arrested for threatening a public official.
The lawsuit says the jail knew she had a stroke and heart problems
and suffered from bipolar and anxiety disorders that required
prescriptions and routine check-ups.

"She, on several occasions, told us that she felt like they were
going to hurt her or kill her," Deborah said.

Deborah said she called the jail and was assured her mother was
getting good care.

Gwendolyn died from a heart attack in February 2013.  The lawsuit
claims the medical staff ignored her the day she died, when she
complained about lower back and stomach pain and nausea.

"They just didn't care. They didn't give her her medicine, they
didn't care about her complaints," Deborah said.

The lawsuit said jail medical staff lied by changing Gwendolyn's
records to say she died after the ambulance picked her up, instead
of in the jail.

It also states a doctor at the jail lied about how many times he
visited Gwendolyn.

"They're aware of the abuse, they're aware of the neglect, they're
aware of the poor care, the lack of care and, they have been
trying to cover it up," Deborah said.  She said she wants the jail
to start putting inmates first

"That we actually are caring for them as human beings and not as
inmates," she said.  "Just because they are in there doesn't mean
they don't have people out here who love them and care for them
and are waiting for them to come home."

The Tulsa County Sheriff's Office says, "Any death at the jail is
extremely unfortunate.  We are not in the business of seeing
people die, we want to see them live and go on to be productive
citizens outside of the jail."

The sheriff's office said it doesn't have a definitive Medical
Examiner's report about Young's cause of death. It also said it
has not been served yet in this case.

News On 6 never heard back from the jail's healthcare provider
about these lawsuits.

UNION PACIFIC: Latham Fights Disqualification Bid in Class Action
According to an article posted by Zoe Tillman at The Blog of Legal
Times, Latham & Watkins argued on July 9 against an effort that
would disqualify the firm from working on one of the largest
antitrust class actions in Washington federal district court.

Latham is representing Union Pacific Railroad Co., one of four top
freight rail companies in the United States accused of conspiring
to raise customer rates through fuel surcharges.  After Latham
entered the case last fall, several of Latham's now-ex-clients
moved to disqualify the firm, arguing there was a conflict of

The former Latham clients, petroleum byproducts distributor Oxbow
Carbon LLC and its subsidiaries, were unnamed members of the
class.  They were also pursuing what they maintained were closely
related claims against two of the defendants, including Union
Pacific, in another lawsuit.

U.S. District Senior Judge Paul Friedman heard arguments on
July 9.  Oxbow's attorney, John Gerstein --
jack.gerstein@troutmansanders.com -- of Troutman Sanders,
maintained that because Oxbow had brought related claims against
Union Pacific and had made its presence known in the multi-
district litigation, Latham had a duty to bow out.

Latham litigation partner Daniel Wall said the rules of
professional conduct didn't require firms to check unnamed class
members for conflicts and that Oxbow was asking the court to
create a new rule that would lead to chaos in class actions.

The Oxbow companies were among thousands of plaintiffs that
shipped products through Union Pacific and the three other freight
rail companies targeted in the litigation.  The plaintiffs accused
the companies of violating federal antitrust laws by working
together to increase rates through "aggressive" fuel surcharges.
The rail companies denied wrongdoing.  The companies are waiting
for a ruling from the U.S. Court of Appeals for the D.C. Circuit
on a challenge to the class certification.  According to Oxbow,
Latham represented its related companies beginning in 2004,
earning more than $4.6 million in fees.  Oxbow said the firm's
attorneys had access to "sensitive and confidential information."

Latham began representing Union Pacific -- another longtime
client, according to briefs -- in the multidistrict litigation in
October 2012, joining Covington & Burling and Jones Day as lead
counsel.  In February, Oxbow moved to disqualify Latham, arguing
the firm's representation of Union Pacific was "directly adverse"
to Oxbow.

During the July 9 arguments, Mr. Gerstein said the situation
represented an exception to the rules of professional conduct,
which "typically" wouldn't require lawyers to check all unnamed
class members for conflicts.  That the word "typically" was in the
text of the rules was important, Mr. Gerstein said, because it
implied there were exceptions.

Mr. Gerstein argued there was significant overlap between the
multi-district litigation and Oxbow's separate lawsuit, from
common allegations to how the parties would calculate potential
damages.  Even though Latham decided to not represent Union
Pacific in the Oxbow-specific case because of a possible conflict,
Mr. Gerstein said Latham was in a bind: to fully represent Union
Pacific, it would need to coordinate on the Oxbow litigation, but
to do so would mean the firm would be more directly going up
against Oxbow.

Mr. Gerstein said antitrust cases by nature can put a party's
business operations under a microscope.  He said Latham had access
to sensitive information about Oxbow and high-level
communications, and it wasn't clear what facts Latham may have
learned about Oxbow while the company was a client.

Latham's Mr. Wall argued Oxbow was asking the court to create a
new rule for disqualification.  He said siding with Oxbow would
create chaos in class actions and in antitrust litigation because
there weren't clear records lawyers could look to showing what
actions unnamed class members might be pursuing outside the class

Mr. Wall also disputed that the multi-district litigation and
Oxbow's lawsuit were as similar as Mr. Gerstein had argued.  He
noted that in filing its own lawsuit, Oxbow was distancing itself
from the class, and that its lawsuit included other claims not
found in the class action.  He added that the company had hired
litigation powerhouse David Boies of Boies, Schiller & Flexner,
another sign it planned to focus on the separate lawsuit and not
the multi-district litigation.

When Latham officially entered the case as Union Pacific's
counsel, Mr. Wall acknowledged that the firm could have handled
the situation better by notifying Oxbow in advance as a courtesy.
But, he said, that didn't mean the firm committed ethics

Judge Friedman didn't say when he would rule.  Mr. Wall said
Latham would continue working on the case until the firm was told
to stop.  As the case moved towards trial, though, he said the
potential harm to Union Pacific -- if Latham were knocked off --
would continue to grow.

UNIPIXEL INC: Securities Class Action Voluntarily Dismissed
UniPixel, Inc., a provider of Performance Engineered Films(TM) to
the touch screen, flexible printed electronics, and lighting and
display markets, has received notice of the voluntary dismissal of
a class action complaint that was filed on June 5, 2013 in the
Southern District of New York by Marco Meneghetti individually and
on behalf of all others similarly situated.

Plaintiff Marco Meneghetti, pursuant to Fed. R. Civ. P.
41(a)(1)(A)(i) of the Federal Rules of Civil Procedure, has given
notice of the dismissal of the defendants (comprised of UniPixel
and its CEO, CFO and chairman) from this proposed class action
without prejudice.  The plaintiff has moved that an order be
entered granting approval of the voluntary dismissal of the
defendants without prejudice and without notice in accordance with
the provisions of Fed. R. Civ. P. 23(e).

This complaint was one of two purported class action complaints
filed against UniPixel and its CEO, CFO and chairman that the
company reported in a legal update issued on June 19, 2013.  The
second complaint was filed with the United States District Court,
Southern District of Texas.  Both complaints alleged the company
and its officers and directors violated the federal securities
laws, specifically Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934, by making purportedly false and misleading
statements concerning its licensing agreements and product
development.  The complaints sought unspecified damages on behalf
of a purported class of purchasers of its common stock during the
period from December 7, 2012 to May 31, 2013.

Similar to the dismissed complaint filed in New York, UniPixel
believes the complaint filed in Texas is without merit and it will
vigorously defend against it.

UNITED STATES: Oklahoma Indian Legal Services to Offer Help
Scott Rains, writing for The Lawton Constitution, reports that
Oklahoma Indian Legal Services will provide "Cobell" affidavit
assistance clinics in the coming weeks.

There has been a great deal of confusion regarding the
distribution of the Cobell class action funds, said Mitchell G.
Stephens Sr., fiduciary trust officer for the U. S. Department of
the Interior's Office of the Special Trustee for American Indians.
One of the main challenges for the distribution of funds is the
estates of deceased members of the class action, he said, and
probate orders cannot be used to distribute the Cobell funds.

"This is because the funds are legally not 'held in trust' by the
(Department of the Interior), and because the intestate provisions
of the American Indian Probate Reform Act (AIPRA) do not treat all
the legal heirs in a fair manner," Mr. Stephens said.  "AIPRA
provides that in cases where the decedent died owning a less than
5 percent interest, the property goes to the oldest child or
possibly the tribe."

"This is not how the Cobell funds are to be distributed," he said.

Landmark case settled for $3.4 billion

Cobell v. Salazar is a class-action lawsuit brought by Native
American representatives against two departments of the U.S.
government claiming that the government has incorrectly accounted
for the income from Indian trust assets, which are legally owned
by the Department of the Interior, but held in trust for
individual Native Americans.

The case was settled for $3.4 billion in 2009, with $1.4 billion
going to the plaintiffs and $2 billion allocated to repurchase
land that was distributed under the Dawes Act and return it to
communal tribal ownership.

Recently, the judge in the case issued an order giving the Cobell
administrators the discretion to distribute settlement checks to
the heirs by using a "small estate affidavit," Mr. Stephens said.
This allows for distribution of the funds to the legal heirs
without the expense of another probate.

WRIGHT MEDICAL: Awaits Order on Bid to Reconsider in Suit v. Unit
Wright Medical Group, Inc., is awaiting a court decision on a
motion to reconsider the dismissal of a securities class action
lawsuit against a subsidiary, according to the Company's May 17,
2013, Form 8-K/A filing with the U.S. Securities and Exchange

Wright has completed the mergers contemplated by the Agreement and
Plan of Merger, dated as of November 19, 2012, by and among
BioMimetic Therapeutics, Inc., Wright, and Wright's wholly-owned
subsidiaries, Achilles Merger Subsidiary, Inc. ("Merger Sub"), and
Achilles Acquisition Subsidiary, LLC ("Sister Subsidiary" and
together with Merger Sub, the "Merger Subsidiaries").  Pursuant to
the Agreement and Plan of Merger, Merger Sub merged with and into
BioMimetic followed by BioMimetic merging with and into Sister
Subsidiary, with Sister Subsidiary continuing as the final
surviving entity and changing its name to BioMimetic Therapeutics,
LLC.  As a result of these transactions, BioMimetic Therapeutics,
LLC became Wright's wholly-owned subsidiary.

In July 2011, a complaint in a securities class action lawsuit
(the "Securities Litigation") was filed in the United States
District Court, Middle District of Tennessee, against BioMimetic
and certain of its officers on behalf of certain purchasers of its
common stock.  The complaint alleged that BioMimetic and certain
of its officers violated federal securities laws by making
materially false and misleading statements regarding its business,
operations, management, future business prospects and the
intrinsic value of its common stock, the safety and efficacy of
Augment, its prospects for U.S. Food and Drug Administration
("FDA") approval and inadequacies in Augment's clinical trials.
The plaintiffs seek unspecified monetary damages and other relief.
In January 2013, the Court granted the defendants' motion to
dismiss the complaint and dismissed the plaintiffs' claims without
leave to amend the complaint.  In February 2013, the plaintiffs
filed a Motion to Alter Judgment or Amend Order and Judgment of
Dismissal with Prejudice, seeking reconsideration of the Court's
decision granting defendants' motion to dismiss and denying
plaintiffs' leave to amend their complaint.  The Defendants'
response to that motion was due in March 2013.

If BioMimetic is not ultimately successful in its defense of the
Securities Litigation, BioMimetic could be forced to make
significant payments to, or enter into other settlements with, its
stockholders and their lawyers, and such payments or settlement
arrangements could have a material adverse effect on BioMimetic's
business, operating results and financial condition.  Additional
lawsuits with similar claims may be filed by other parties against
BioMimetic and its officers and directors.  Even if such claims
are not successful, these lawsuits or other future similar
actions, or other regulatory inquiries or investigations, may
result in substantial costs and have a significant adverse impact
on BioMimetic's reputation and divert management's attention and
resources, which could have a material adverse effect on
BioMimetic's business, operating results or financial condition.

BioMimetic continues to vigorously defend against the claims in
the Securities Action.  The outcome of these matters are
uncertain, however, and BioMimetic cannot currently predict the
manner and timing of the resolution of the lawsuits, or an
estimate of a meaningful range of possible losses or any minimum
loss that could result in the event of an adverse verdict in the
lawsuits.  In connection with these claims, as of December 31,
2012, BioMimetic has cumulatively recorded $1,262,500 for legal
defense expenses within the retention under its applicable
insurance policies.  However, there can be no assurance as to the
ultimate outcome of these claims or whether BioMimetic's
applicable insurance policies will provide sufficient coverage for
these claims.

Wright Medical Group, Inc., -- http://www.wmt.com/-- through
Wright Medical Technology, Inc. and other operating subsidiaries,
is a global orthopaedic medical device company specializing in the
design, manufacture and marketing of devices and biologic products
for extremity, hip and knee repair and reconstruction.  The
Arlington, Tennessee-based Company is a provider of surgical
solutions for the foot and ankle market.

WRIGHT MEDICAL: Yet to File Settlement of Merger-Related Suits
Wright Medical Group, Inc. has not yet filed for approval its
settlement of merger-related class action lawsuits, according to
the Company's May 17, 2013, Form 8-K/A filing with the U.S.
Securities and Exchange Commission.

Wright has completed the mergers contemplated by the Agreement and
Plan of Merger, dated as of November 19, 2012, by and among
BioMimetic Therapeutics, Inc., Wright, and Wright's wholly-owned
subsidiaries, Achilles Merger Subsidiary, Inc. ("Merger Sub"), and
Achilles Acquisition Subsidiary, LLC ("Sister Subsidiary" and
together with Merger Sub, the "Merger Subsidiaries").  Pursuant to
the Agreement and Plan of Merger, Merger Sub merged with and into
BioMimetic followed by BioMimetic merging with and into Sister
Subsidiary, with Sister Subsidiary continuing as the final
surviving entity and changing its name to BioMimetic Therapeutics,
LLC.  As a result of these transactions, BioMimetic Therapeutics,
LLC became Wright's wholly-owned subsidiary.

Between November and December 2012, five purported class action
complaints related to the business combination of BioMimetic and
Wright (the "Merger Litigation") were filed against all or some of
the following: BioMimetic, certain of BioMimetic's current
executive officers and directors, Wright and wholly-owned
subsidiaries of Wright that were party the merger agreement
between Wright and BioMimetic (together, the "Merger Subs").  In
November 2012, three stockholder actions, referred to as the
Tennessee actions, were filed in the Chancery Court for the State
of Tennessee in Williamson County.  The plaintiffs allege, among
other things: (a) that the executive officers and directors of
BioMimetic breached their fiduciary duties to its public
stockholders by authorizing the merger for inadequate
consideration and pursuant to an inadequate process, and (b) that
BioMimetic, Wright and Merger Subsidiaries aided and abetted the
executive officers' and directors' alleged breaches of fiduciary
duty.  The plaintiffs generally seek equitable relief, including
an injunction preventing the consummation of the merger until
BioMimetic adopts and implements a procedure to obtain the highest
possible price for its stockholders, and an award of attorneys'
and other fees and costs.  In December 2012, the plaintiffs and
defendants in the Tennessee actions filed a Joint Agreed Order
requesting, among other things, that the Chancery Court
consolidate the Tennessee actions.  The Court approved the Joint
Agreed Order in December 2012 consolidating the Tennessee actions.

In November and December 2012, two stockholder actions were filed
in the Court of Chancery of the State of Delaware, referred to as
the Delaware actions, making substantially the same allegations as
the Tennessee actions.  The plaintiffs generally seek enjoinment
of the merger, rescissory damages in the event the merger is
consummated prior to the entry of the court's final judgment, and
an award of attorneys' and other fees and costs.  In December
2012, the Delaware Court issued an order consolidating the
Delaware actions.

In February 2013, solely to avoid the costs, risks and
uncertainties inherent in litigation, and without admitting any
liability or wrongdoing, BioMimetic and the other named defendants
in the Merger Litigation executed a memorandum of understanding
with the plaintiffs to settle the Merger Litigation.  This
memorandum of understanding provides, among other things, that the
parties will seek to enter into a stipulation of settlement which
provides for the release of all asserted claims and dismissal with
prejudice of the Merger Litigation.  The asserted claims will not
be released, and the Merger Litigation dismissed, until such
stipulation of settlement is approved by the court.  There can be
no assurance that the parties will ultimately enter into a
stipulation of settlement or that the court will approve such
settlement even if the parties were to enter into such
stipulation. Additionally, as part of the memorandum of
understanding, BioMimetic agreed to make certain additional
disclosures related to the proposed transactions described in the
Merger Agreement, which were set forth in filings on Form 8-K and
Schedule 14A in February 2013.  The memorandum of understanding
did not settle or release potential claims for plaintiffs'
attorneys' fees in connection with the Merger Litigation.

If BioMimetic is not ultimately successful in its defense of the
Merger Litigation, BioMimetic could be forced to make significant
payments to, or enter into other settlements with, its
stockholders and their lawyers, and such payments or settlement
arrangements could have a material adverse effect on BioMimetic's
business, operating results and financial condition.  Additional
lawsuits with similar claims may be filed by other parties against
BioMimetic and its officers and directors.  Even if such claims
are not successful, these lawsuits or other future similar
actions, or other regulatory inquiries or investigations, may
result in substantial costs and have a significant adverse impact
on BioMimetic's reputation and divert management's attention and
resources, which could have a material adverse effect on
BioMimetic's business, operating results or financial condition.

BioMimetic continues to vigorously defend against the claims in
the Merger Action.  The outcome of these matters are uncertain,
however, and BioMimetic cannot currently predict the manner and
timing of the resolution of the lawsuits, or an estimate of a
meaningful range of possible losses or any minimum loss that could
result in the event of an adverse verdict in the lawsuits.  In
connection with these claims, as of December 31, 2012, BioMimetic
has cumulatively recorded $1,262,500 for legal defense expenses
within the retention under its applicable insurance policies.
However, there can be no assurance as to the ultimate outcome of
these claims or whether BioMimetic's applicable insurance policies
will provide sufficient coverage for these claims.

Wright Medical Group, Inc., -- http://www.wmt.com/-- through
Wright Medical Technology, Inc. and other operating subsidiaries,
is a global orthopaedic medical device company specializing in the
design, manufacture and marketing of devices and biologic products
for extremity, hip and knee repair and reconstruction.  The
Arlington, Tennessee-based Company is a provider of surgical
solutions for the foot and ankle market.

* "Issues" Classes May Solve Problem of Certifying Damages
J. Russell Jackson, writing for Daily Report, reports that class
action defendants frequently oppose class certification by arguing
that a class action may not be certified when damages cannot be
calculated on a classwide basis, citing recent U.S. Supreme Court
decisions in Wal-Mart Stores Inc. v. Dukes, 131 S. Ct. 2541
(2011), and Comcast v. Behrend, 133 S. Ct. 1426 (2013).  Recent
decisions suggest that one response to such arguments may be to
seek the certification of "issues" classes under Federal Rule of
Civil Procedure 23(c)(4).

What is an "issues" class? Lawyers typically think of class
certification as encompassing an entire case.  For example, a case
seeking equitable or declaratory relief might be certified under
Rule 23(b)(2), or a case for damages might be certified under Rule
23(b)(3).  Such certifications often are understood to encompass
everything: all causes of action, and all parts of the case, from
proof of liability through the award of relief.

But Rule 23, as it was conceived by the Civil Rules Advisory
Committee in 1966 and has been implemented thereafter, also allows
for the certification of something less than the entire case.
Rule 23(c)(4) provides that "[w]hen appropriate, an action may be
brought or maintained as a class action with respect to particular
issues."  Thus, a particular cause of action might be certified
for class treatment, or a particular part of the case -- such as
liability.  This is known as an "issues" class.  The remainder of
the case does not receive class treatment but might proceed
individually or subject to other case-management tools.

The circuits are split as to whether an issue class certified
under Rule 23(c)(4) also must meet the requirements of one of the
subsections of Rule 23(b).  The U.S. Court of Appeals for the
Fifth Circuit has held that it must, reasoning that "allowing a
court to sever issues until the remaining common issue
predominates over the remaining individual issues would eviscerate
the predominance requirement of Rule 23(b)(3)."  Castano v.
American Tobacco Co., 84 F.3d 734, 745 n.21 (5th Cir. 1996).  But
at least the Second, Seventh and Ninth circuits have rejected that
viewpoint, holding instead that even if common questions do not
predominate over individual questions so that the entire action
could be certified, an issues class may be certified to isolate
core common issues for class treatment.  See, e.g., In re Nassau
County Strip Search Cases, 461 F.3d 219, 226 (2d Cir. 2006).  And
the First, Third and Fourth circuits have suggested that they
might agree with this approach.

For example, in Gates v. Rohm & Haas Co., 655 F.3d 255, 272-73 (3d
Cir. 2011), the Third Circuit held that courts considering whether
to certify an issues class should consider the long list of
factors set forth in Sections 2.02 through 2.05 of the American
Law Institute's Principles of the Law of Aggregate Litigation
(2010), which basically allow for the certification of issues
classes when the issues are core issues that will materially
advance the resolution of the litigation.  The Third Circuit
instructed that courts "should clearly enumerate the issue(s) to
be tried as a class" and "should also explain how resolution of
the issue(s) will fairly and efficiently advance the resolution of
class members' claims, including resolution of remaining issues."
655 F.3d at 273.

                   'Issues' classes continue

Defendants have argued that Dukes and Comcast mean classes cannot
be certified when the issue of damages requires individualized
proof.  Recent decisions, however, have not been kind to these
arguments.  For example, in In re Motor Fuel Temperature Sales
Practices Litig., 2013 WL 1397125 (D. Kan. April 5, 2013),
plaintiffs alleged that the defendant engaged in consumer fraud by
selling gasoline in California without adjusting for the expansion
and contraction of the fuel at different temperatures or advising
customers that a warmer gallon of fuel contains less energy than a
cooler gallon of the same fuel.  They asserted four causes of
action: breach of the duty of good faith and fair dealing, unjust
enrichment, and violations of California's Unfair Competition Law
and its Consumer Legal Remedies Act.

The court certified a class for the liability portion of each of
these causes of action.  In doing so, it listed the substantive
elements of each cause of action, including causation and injury,
that were subject to its certification order, but noted that
certification would not include "questions of remedy," such as

The defendant, citing Dukes, argued that the Supreme Court's focus
on the text, structure and framers' intent of Rule 23 strongly
suggested that it would disfavor an expansive interpretation of
Rule 23(c)(4). 2013 WL 1397125, at *9.

The court disagreed, noting that "[c]ertifying a class to
determine the defendant's liability, while leaving the class
members to pursue their individual damages claims, is a common
example of partial [class] certification."  Id. Moreover, it
repeatedly noted that the fact that the underlying state statutes
used an objective "reasonable consumer" standard made the issue of
liability susceptible to classwide proof.  Id. at *10-*12.  And
the court observed that even as far back as 1966, the Advisory
Committee on Civil Rules made it clear that a consumer fraud
action could be certified "despite the need, if liability is
found, for separate determination of damages suffered by
individuals within the class."  Id. at *18 (citation omitted); see
also In re Motor Fuel Temperature Sales Practices Litig., 279
F.R.D. 598 (D. Kan. 2012) (certifying a similar issues class for
sales of gasoline in Kansas).

Another district court similarly rejected arguments about
individualized damages in Wallace v. Powell, 2013 WL 2042369 (M.D.
Pa. May 14, 2013).  There a class of people who had been detained
as juveniles sued various defendants for a conspiracy to deprive
them of their constitutional rights to an impartial tribunal,
counsel and a knowing and voluntary guilty plea.  The defendants
argued that the high court's recent decision in Comcast precluded
certification of an issues class for liability.  The district
court disagreed.  First, it noted that Comcast involved a unique
and distinguishable situation: It was an antitrust case in which
no party had contested the trial court's conclusion that Rule
23(b)(3)'s predominance requirement meant that the plaintiffs must
show that the damages for their antitrust injury were measurable
on a classwide basis using common methodology.  Second, it noted
that Comcast involved certification of the entire class under Rule
23(b)(3), not a liability-only issues class under Rule 23(c)(4).
Third, the district court pointed out what justices Ruth Bader
Ginsburg and Stephen Breyer had observed in their Comcast dissent:
that it was "well nigh universal" in both case law and
commentaries that Rule 23(b)(3)'s predominance requirement could
be satisfied even though the amount of damages in a case would
have to be calculated individually.  The majority in Comcast had
made no pretense of changing what Ginsburg and Breyer had called
"this 'black letter rule'" (id. at *18; citation omitted), even
for cases in which the entire case was certified, rather than only
an issue.

The district court also easily distinguished Dukes.  The Dukes
opinion focused on the differences among class members' claims to
determine only whether there was a single common issue at all.
When -- as in the case before it -- there were many, the question
then turned to whether resolution of the core issues would
materially advance the litigation.  Moreover, the court noted, the
Dukes opinion had said that there could have been a predominating
common issue if the class there had been limited to a single
supervisor.  The primary problem in Dukes was that the defendant's
conduct had differed supervisor by supervisor, but in Wallace the
same key players were alleged to have engaged in identical
conduct.  Thus, Dukes had no bearing on the issues class the
Wallace court ultimately certified.

* Webber Wentzel Discusses Rulings on Two Class Actions
According to Webber Wentzel, a law firm in Africa, class actions
are expressly and constitutionally recognized in South African
law.  Although the process of identifying and defining classes of
people has been laid down, two recent applications have failed
because the common characteristics were defined too broadly and
the applicable questions of law were not identified sufficiently.

Class actions in South Africa

Class action -- a device by which a single plaintiff can pursue an
action on behalf of all persons with a common interest in the
action, and with the ruling of the court being binding upon all
class members -- is a novel concept in South African law.

Section 7(4) of the Interim Constitution of 1993 and section 38 of
the Constitution of the Republic of South Africa, 1996 (the
Constitution) introduced the concept of class action into South
African law with the limitation that class actions could only be
used for the protection of Constitutional rights.

In Ngxuza & others v Permanent Secretary, Department of Welfare,
Eastern Cape Provincial Government 2001 (2) SA 609 (E) (Ngxuza v
Department of Welfare) and Firstrand Bank Ltd v Chaucer
Publications (Pty) Limited 2008 (2) SA 592 (C), however, the Court
held that class actions should not be limited only to the
protection of Constitutional rights, but should also be available
in cases when damages are sought as a result of the unlawful
conduct of private entities.

In 1996, the South African Law Commission (SALC) recommended that
various principles underlying class actions in other jurisdictions
should be introduced into South African law by way of an Act of

In particular, the SALC proposed that class actions should be
initiated by applying for a court to:

-- Certify that a specific group of people sharing identical or
similar characteristics constitutes a specific class of persons;

-- Grant the applicant(s) leave to institute an action on behalf
of all the members of the certified class (the Certification

The identical or similar characteristics would then function as
the requirements to be included as members of the certified class.
These requirements or characteristics would also form the
boundaries of the certified class.

The Certification Procedure as a requirement for class actions was
eventually confirmed by the Constitutional Court in Ngxuza v
Department of Welfare and by the SCA in the case of Trustees for
the Time Being of the Children's Resource Centre Trust & others v
Pioneer Foods (Pty) Limited & Others [2011] JOL 27549 (WCC)
(Children Resource Centre Trust).

The Certification Procedure was invoked for the first time in this
case, in terms of which two separate applications to certify two
classes of persons were brought before the High Court in the
Western Cape Division.  The applicants in both applications
(consumers of bread and distributors of bread) intended to
institute action proceedings by way of class actions against the
respondents (three of the four main bakeries in South Africa) for
damages allegedly suffered by members of the two classes as a
result of the respondents' involvement in the bread cartel

Both applications were dismissed by the High Court, which held,
inter alia, that the two classes which the applicants' requested
the Court to certify were defined too broadly; (ie the applicants
failed to sufficiently identify the class of persons they wish to
represent and the common questions of law or fact that exist among
the various class members).

The matter eventually went on appeal before the SCA.  The SCA
expressly recognized the need to protect and regulate class
actions and to develop the procedural requirements for class
actions.  The SCA, however, held that it was only willing to
determine the broad parameters within which class actions are to
be pursued.

The SCA further held that it was the legislature's role to make
the policy decisions in determining the structure of class actions
and as a result, the SCA is not in a position to make such
decisions for fear of encroaching upon the domain of the
legislature, which the doctrine of separation of powers,
fundamental to the Constitution, explicitly prohibits.


S U B S C R I P T I O N  I N F O R M A T I O N

Class Action Reporter is a daily newsletter, co-published by
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A. Adala, Joy A. Agravante, Valerie Udtuhan, Julie Anne L. Toledo,
Christopher Patalinghug, Frauline Abangan and Peter A. Chapman,

Copyright 2013. All rights reserved. ISSN 1525-2272.

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