/raid1/www/Hosts/bankrupt/CAR_Public/130729.mbx
C L A S S A C T I O N R E P O R T E R
Monday, July 29, 2013, Vol. 15, No. 147
Headlines
ADT SECURITY: Court Approves Robocall Class Action Settlement
AETNA INC: Coventry Continues to Defend ERISA Suit in Maryland
AETNA INC: Parties in Merger-Related Suits Yet to File Settlement
AETNA INC: Parties in Securities Suit vs. Coventry to File Deal
AGNICO EAGLE: Appeal From New York Suit Dismissal Remains Pending
AGNICO EAGLE: Bid to Commence Securities Suit Pending in Quebec
AGNICO EAGLE: Continues to Defend Class Suit Pending in Ontario
B456 SYSTEMS: Consolidated Securities Suit Dismissed in April
BED BATH & BEYOND: Hearing on Final OK of Settlement on Dec. 5
CAL-MAINE FOODS: Settles Egg Antitrust Class Action for $28-Mil.
CANADA: Woman Mulls Class Action Over Citizenship Laws
CANADA: Seeks Dismissal of Disabled Veterans' Class Action
CANON USA: Has Ceased Providing Replacement Parts, Suit Claims
CRIMSON EXPLORATION: Shareholders Sue Over Proposed Contango Sale
DEL MONTE: Awaits Ruling on Bid to Dismiss 2 of 3 Related Suits
DEL MONTE: Awaits Ruling on Motion to Transfer "Harmon" Suit
DEL MONTE: Consumer Suit Plaintiffs Filed Amended Complaint
DEL MONTE: Faces "Montgomery" Wage and Hour Suit in California
DEL MONTE: Parties in "Webster" Suit Currently in Discovery
DEL MONTE: Bid to Dismiss "Mazur" Class Suit Denied in June
DR PEPPER SNAPPLE: Settles Class Action Over 7UP Drinks
FIRST NATIONAL: Judge Okays Re-Sequencing Class Action Settlement
FLEETMATICS GROUP: Still Awaits Decision in "Prisoner" Suit
GEORGE BROWN: Court Ruling May Prompt More Consumer Class Actions
GERBER CHILDRENSWEAR: Sept. 16 Settlement Opt-Out Deadline Set
GOOGLE INC: Settles Privacy Class Action for $8.5 Million
HOMESTAKE MINING: Residents Say Uranium Mill Clean-up Too Slow
INDIANA: BMV Halts Vanity Plates Amid Free-Speech Class Action
INTEGRATED HEALTHCARE: Discovery in Consolidated Suit Ongoing
KIDCO INC: Recalls Safeway Expansion Gates
KIDS II: Recalls Baby Einstein Activity Jumpers Due Impact Hazard
KIT DIGITAL: Signs MOU to Settle Consolidated Securities Suit
JOHNSON & JOHNSON: Settles Securities Class Action Over Recall
LEHMAN BROTHERS: LBI Trustee Objects to Countrywide Class Claims
MEDICIS PHARMACEUTICAL: Faces Antitrust Suit Over Solodyn Drug
MIRVAC GROUP: Waverley Park Residents Can't Afford Legal Counsel
MORGAN COUNTY, MO: ACLU Files Class Action v. County Jail
NAN FAR: Recalls Rockland Furniture Cribs Due to Choking Hazard
NAT'L COLLEGIATE: Ex-UGA Trainer Clarifies Suit-Linked E-mail
NAT'L COLLEGIATE: Aware of Concussion Issues, Documents Reveal
NEW SOUTH WALES: Ex-Camden Students Mull Chemical Exposure Suit
NOVO NORDISK: Prandin(R)-Related Antitrust Suit Remains Stayed
OMNIVISION TECHNOLOGIES: Securities Litigation Remains Pending
PACIFIC GAS: Hinkley Residents File New Class Action
PDC ENERGY: Continues to Defend "Schulein" Suit in California
PILOT FLYING J: Revises Fuel Rebate Class Action Settlement
RENAISSANCE IMPORTS: Recalls Girls Boots Due to Laceration Hazard
RESIDENTIAL CAPITAL: Objects to $713-MM Calif. Litigation Claims
ROBIN AMERICA: Recalls Portable Generator Due to Fire Hazard
ROYAL INTERNATIONAL: Recalls 10,890 Tool Tech Glue Guns
SAC CAPITAL: Scott+Scott Files Amended Class Action in New York
SEARS ROEBUCK: Faces Class Action in Calif. Over Unpaid Wages
SERVISAIR LLC: JaffeGlenn Law Group Files Overtime Class Action
SHAUN TERRY BREEN: Faces Class Action Over Ballarat Blaze
SINO-FOREST CORP: Lerners Discusses Ontario Court Ruling
SPARK NETWORKS: Accused of Discriminating Gay Individuals
SRO ENTERTAINMENT: 157 People Express Interest in Legal Action
STORK CRAFT: Court Says Recall Class Action Abuse of Process
SUCCESSFULMATCH.COM: Posts Customers' HIV/STD Statuses, Suit Says
SUN INT'L: Disputes Secret Videotaping Allegations
UBS AG: Settles Suit Over Mis-selling of Mortgage-Backed Bonds
VISA INC: Tribunal Ruling May Provide Guide for Class Actions
VITA HEALTH: Recalls Extra Strength Cold & Flu-In-One
VOLKSWAGEN AG: Law Firm Won't Proceed With Class Action
WASHINGTON, DC: DC Cops Target Black Motorcyclists, Suit Claims
WISDOM ELECTRONICS: Recalls Wellson Glue Guns
YOUR HEALTHY: Recalls Spicy Carrots Over Undeclared Allergens
ZYNGA INC: Accused of Not Paying Overtime Wages in California
* Australia Likely Jurisdiction of Choice for Class Actions
* Courts Disagree on Primary Jurisdiction in Food Class Actions
* Creditors May Also Face Actions Over Debt-Collection Practices
* Food Misbranding Class Actions Lawyer-Driven
* Securities Class Action Filings Remain Depressed in First Half
*********
ADT SECURITY: Court Approves Robocall Class Action Settlement
-------------------------------------------------------------
MySettlementClaims News reports that on June 21, 2013, the Court
in Vishva Desai and Philip J. Charvat, v. ADT Security Services
finally approved the ADT Robocall class action settlement
In the Final Order of Judgment and Dismissal, the Court dismissed
all claims against ADT and approved the settlement.
In this case, plaintiffs alleged that certain ADT Authorized
Dealers or lead generators, seeking to sell ADT's products and
services, made numerous calls that violate the federal Telephone
Consumer Protection Act ("TCPA").
Eligible class members who filled out a valid claim form should
receive up to $500.00 in cash payments, depending on how many
calls they received.
The Court also approved payment of $5,090,895.99 to class counsel
for attorneys' fees, costs and expenses. In addition, the lead
plaintiffs will receive incentive awards of $30,000 each.
The Court did not set a schedule for payment.
AETNA INC: Coventry Continues to Defend ERISA Suit in Maryland
--------------------------------------------------------------
Coventry Health Care, Inc., continues to defend itself against a
consolidated class action lawsuit alleging violations of the
Employee Retirement Income Security Act of 1974, according to
Aetna Inc.'s June 28, 2013, Form 8-K/A filing with the U.S.
Securities and Exchange Commission.
On August 19, 2012, Aetna Inc. entered into a definitive agreement
(as amended, and as may be further amended, the "Merger
Agreement") to acquire Coventry Health Care, Inc. ("Coventry") in
a transaction valued at approximately $7.3 billion, based on the
closing price of Aetna common shares on August 17, 2012, including
the assumption of Coventry debt. Coventry is a diversified
managed health care company that offers a full portfolio of risk
and fee-based products, including Medicare Advantage and Medicare
Part D programs, Medicaid managed care plans, group and individual
health insurance, coverage for specialty services such as workers'
compensation administrative services, and network rental services.
Under the terms of the Merger Agreement, Coventry stockholders
will receive $27.30 in cash and 0.3885 Aetna common shares for
each Coventry share.
On October 13, 2009, two former employees and participants in
Coventry Health Care Retirement Savings Plan filed a putative
ERISA class action lawsuit against Coventry and several of its
current and former officers, directors and employees in the U.S.
District Court for the District of Maryland. The Plaintiffs
allege that defendants breached their fiduciary duties under ERISA
by offering and maintaining Coventry stock in the Plan after it
allegedly became imprudent to do so and by allegedly failing to
provide complete and accurate information about Coventry's
financial condition to plan participants in SEC filings and public
statements. Three similar actions by different plaintiffs were
later filed in the same court and were consolidated on December 9,
2009. An amended consolidated complaint has been filed. Coventry
filed a motion to dismiss the complaint. By Order, dated
March 31, 2011, the court denied Coventry's motion to dismiss the
amended complaint. Coventry filed a motion for reconsideration of
the court's March 31, 2011 Order and filed an Alternative Motion
to Certify the Court's March 31, 2011 Order For Interlocutory
Appeal to the Fourth Circuit Court of Appeals. Both of those
motions were denied.
Coventry will vigorously defend against the allegations in the
consolidated lawsuit. Coventry believes this lawsuit will not
have a material adverse effect on its financial position or
results of operations.
Where available information indicates that it is probable that a
loss has been incurred and Coventry can reasonably estimate the
amount of that loss, Coventry accrues a liability of an estimated
amount. In many proceedings, however, Coventry says it is
difficult to determine whether any loss is probable or reasonably
possible. In addition, even where a loss is reasonably possible
or an exposure to a loss exists in excess of the liability already
accrued with respect to a previously identified loss contingency,
it is not always possible to reasonably estimate the amount of the
possible loss or range of loss.
Headquartered in Hartford, Connecticut, Aetna Inc. is one of the
nation's leading diversified health care benefits companies,
serving approximately 38.3 million people with information and
resources to help them in consultation with their health care
professionals make better informed decisions about their health
care. The Company offers a broad range of traditional, voluntary
and consumer-directed health insurance products and related
services, including medical, pharmacy, dental, behavioral health,
group life and disability plans and medical management
capabilities, Medicaid health care management services, workers'
compensation administrative services and health information
technology products and services, including emerging businesses
products and services, such as Accountable Care Solutions.
AETNA INC: Parties in Merger-Related Suits Yet to File Settlement
-----------------------------------------------------------------
The parties in a consolidated merger-related class action lawsuit
are yet to file their settlement documents for court approval,
according to Aetna Inc.'s June 28, 2013, Form 8-K/A filing with
the U.S. Securities and Exchange Commission.
On August 19, 2012, Aetna Inc. entered into a definitive agreement
(as amended, and as may be further amended, the "Merger
Agreement") to acquire Coventry Health Care, Inc. ("Coventry") in
a transaction valued at approximately $7.3 billion, based on the
closing price of Aetna common shares on August 17, 2012, including
the assumption of Coventry debt. Coventry is a diversified
managed health care company that offers a full portfolio of risk
and fee-based products, including Medicare Advantage and Medicare
Part D programs, Medicaid managed care plans, group and individual
health insurance, coverage for specialty services such as workers'
compensation administrative services, and network rental services.
Under the terms of the Merger Agreement, Coventry stockholders
will receive $27.30 in cash and 0.3885 Aetna common shares for
each Coventry share.
On August 31, 2012, a putative stockholder class action lawsuit
captioned Brennan v. Coventry Health Care, Inc. et al., C.A. No.
7826-CS, was filed in the Court of Chancery of the State of
Delaware against Coventry Board of Directors, Coventry, Aetna and
Jaguar Merger Subsidiary, Inc. ("Merger Sub"). On September 14,
2012, a second putative stockholder class action lawsuit captioned
Nashelsky v. Coventry Health Care, Inc. et al., C.A. No. 7868-CS,
was filed in the Court of Chancery of the State of Delaware
against Coventry Board of Directors, Coventry, Aetna and Merger
Sub. On September 27, 2012, and September 28, 2012, putative
stockholder class action lawsuits captioned Employees' Retirement
System of the Government of the Virgin Islands v. Coventry Health
Care, Inc. et al., C.A. No. 7905-CS and Farina v. Coventry Health
Care, Inc. et al., C.A. No. 7909-CS, were filed in the Court of
Chancery of the State of Delaware against Coventry Board of
Directors, Coventry, Aetna and Merger Sub. On October 1, 2012, an
amended complaint was filed in the Brennan v. Coventry Health
Care, Inc. action. The complaints generally allege that, among
other things, the individual defendants breached their fiduciary
duties owed to the public stockholders of Coventry in connection
with the Merger because the merger consideration and certain other
terms in the merger agreement are unfair. The complaints further
allege that Aetna and Merger Sub aided and abetted these alleged
breaches of fiduciary duty. In addition, the complaints generally
allege that certain provisions of the Merger Agreement unduly
restrict Coventry's ability to negotiate with other potential
bidders and that the Merger Agreement lacks adequate safeguards on
behalf of Coventry's stockholders against the decline in the value
of the stock component of the merger consideration. The
complaints in the Employees' Retirement System of the Government
of the Virgin Islands, and Farina actions and the amended
complaint in the Brennan action also generally allege that Aetna's
Registration Statement on Form S-4 filed on September 21, 2012,
contained various deficiencies. Among other remedies, the
complaints generally seek injunctive relief prohibiting the
defendants from completing the proposed Merger, rescissionary and
other types of damages and costs and attorneys' fees.
On October 4, 2012, the Court of Chancery of the State of Delaware
entered an order consolidating the four Delaware actions under the
caption In re Coventry Health Care, Inc. Shareholder Litigation,
Consolidated C.A. No. 7905-CS, appointing the Employees'
Retirement System of the Government of the Virgin Islands, the
General Retirement System of the City of Detroit, and the Police
and Fire Retirement System of the City of Detroit as Co-Lead
Plaintiffs. On October 5, 2012, the plaintiffs in the
consolidated Delaware action filed a motion for expedited
proceedings, and on October 10, 2012, the plaintiffs in the
consolidated Delaware action filed a motion to preliminarily
enjoin the defendants from taking any action to consummate the
Merger. The parties have since reached agreement on the schedule
for those proceedings, which was entered by order of the Court on
October 12, 2012. Pursuant to that scheduling order, a hearing on
plaintiffs' preliminary injunction motion was scheduled for
November 20, 2012.
On November 12, 2012, Coventry and all named defendants entered
into a Memorandum of Understanding ("MOU") with the plaintiffs and
their respective counsel which set forth an agreement in principle
providing for the settlement of the In re Coventry Health Care,
Inc. Shareholder Litigation. In consideration for the full
settlement and dismissal with prejudice of the Shareholder
Litigation and releases, the defendants agreed to (1) include
additional disclosures in the definitive prospectus/proxy
statement; (2) amend the Merger Agreement to reduce the
Termination Fee payable by Coventry upon termination of the Merger
Agreement from $167,500,000 to $100,000,000; (3) amend the Merger
Agreement to reduce the period during which Coventry is required
to discuss and negotiate with Aetna before making an Adverse
Recommendation Change relating to a Superior Proposal from five
calendar days to two calendar days; and (4) pay any attorneys'
fees and expenses awarded by the court. The MOU requires the
parties to negotiate and execute a Stipulation of Settlement for
submission to the court to obtain final court approval of the
settlement and dismissal of the Shareholder Litigation.
Where available information indicates that it is probable that a
loss has been incurred and Coventry can reasonably estimate the
amount of that loss, Coventry accrues a liability of an estimated
amount. In many proceedings, however, Coventry says it is
difficult to determine whether any loss is probable or reasonably
possible. In addition, even where a loss is reasonably possible
or an exposure to a loss exists in excess of the liability already
accrued with respect to a previously identified loss contingency,
it is not always possible to reasonably estimate the amount of the
possible loss or range of loss.
Headquartered in Hartford, Connecticut, Aetna Inc. is one of the
nation's leading diversified health care benefits companies,
serving approximately 38.3 million people with information and
resources to help them in consultation with their health care
professionals make better informed decisions about their health
care. The Company offers a broad range of traditional, voluntary
and consumer-directed health insurance products and related
services, including medical, pharmacy, dental, behavioral health,
group life and disability plans and medical management
capabilities, Medicaid health care management services, workers'
compensation administrative services and health information
technology products and services, including emerging businesses
products and services, such as Accountable Care Solutions.
AETNA INC: Parties in Securities Suit vs. Coventry to File Deal
---------------------------------------------------------------
The parties in a consolidated securities lawsuit against Coventry
Health Care, Inc. will be submitting a formal written settlement
agreement to the court for preliminary approval, according to
Aetna Inc.'s June 28, 2013, Form 8-K/A filing with the U.S.
Securities and Exchange Commission.
On August 19, 2012, Aetna Inc. entered into a definitive agreement
(as amended, and as may be further amended, the "Merger
Agreement") to acquire Coventry Health Care, Inc. ("Coventry") in
a transaction valued at approximately $7.3 billion, based on the
closing price of Aetna common shares on August 17, 2012, including
the assumption of Coventry debt. Coventry is a diversified
managed health care company that offers a full portfolio of risk
and fee-based products, including Medicare Advantage and Medicare
Part D programs, Medicaid managed care plans, group and individual
health insurance, coverage for specialty services such as workers'
compensation administrative services, and network rental services.
Under the terms of the Merger Agreement, Coventry stockholders
will receive $27.30 in cash and 0.3885 Aetna common shares for
each Coventry share.
On September 3, 2009, a shareholder filed a putative securities
class action against Coventry and three of its current and former
officers in the U.S. District Court for the District of Maryland.
Subsequent to the filing of the complaint, three other
shareholders and/or investor groups filed motions with the court
for appointment as lead plaintiff and approval of selection of
lead and liaison counsel. By agreement, the four shareholders
submitted a stipulation to the court regarding appointment of lead
plaintiff and approval of selection of lead and liaison counsel.
In December 2009, the court approved the stipulation and ordered
the lead plaintiff to file a consolidated and amended complaint.
The purported class period was February 9, 2007, to October 22,
2008. The consolidated and amended complaint alleges that
Coventry's public statements contained false, misleading and
incomplete information regarding Coventry's profitability,
particularly with respect to the profit margins for its Medicare
Advantage Private-Fee-For-Service products. Coventry filed a
motion to dismiss the complaint. By Order, dated March 31, 2011,
the court granted in part, and denied in part, Coventry's motion
to dismiss the complaint. Coventry filed a motion for
reconsideration with respect to that part of the court's March 31,
2011 Order which denied Coventry's motion to dismiss the
complaint. The motion for reconsideration was denied but the
court did rule that the class period was further restricted to
April 25, 2008, to June 18, 2008.
As a result of a court ordered mediation, Coventry has entered
into a settlement agreement with counsel for the plaintiffs and
the class. The parties will be submitting a formal written
settlement agreement to the court for preliminary approval. These
lawsuits are a covered claim under Coventry's Directors and
Officers Liability Policy ("D&O Policy"), and therefore, after
exhaustion of Coventry's self-insured retention of $2.5 million,
the settlement amount will be fully funded and paid under the D&O
Policy. Coventry has accrued an immaterial settlement amount in
"accounts payable and other accrued liabilities" and an associated
recovery amount from the D&O Policy in "other receivables, net" in
the accompanying balance sheet.
Where available information indicates that it is probable that a
loss has been incurred and Coventry can reasonably estimate the
amount of that loss, Coventry accrues a liability of an estimated
amount. In many proceedings, however, Coventry says it is
difficult to determine whether any loss is probable or reasonably
possible. In addition, even where a loss is reasonably possible
or an exposure to a loss exists in excess of the liability already
accrued with respect to a previously identified loss contingency,
it is not always possible to reasonably estimate the amount of the
possible loss or range of loss.
Headquartered in Hartford, Connecticut, Aetna Inc. is one of the
nation's leading diversified health care benefits companies,
serving approximately 38.3 million people with information and
resources to help them in consultation with their health care
professionals make better informed decisions about their health
care. The Company offers a broad range of traditional, voluntary
and consumer-directed health insurance products and related
services, including medical, pharmacy, dental, behavioral health,
group life and disability plans and medical management
capabilities, Medicaid health care management services, workers'
compensation administrative services and health information
technology products and services, including emerging businesses
products and services, such as Accountable Care Solutions.
AGNICO EAGLE: Appeal From New York Suit Dismissal Remains Pending
-----------------------------------------------------------------
An appeal from the dismissal of a consolidated class action
lawsuit commenced in New York remains pending, according to Agnico
Eagle Mines Limited's June 28, 2013, Form F-10 filing with the
U.S. Securities and Exchange Commission.
On April 26, 2013, the shareholders of the Company approved the
removal of the hyphen from the Company's name and the Company
effected the name change under the Business Corporations Act
(Ontario). The Company believes that the new name aligns with its
re-branding initiative.
On November 7, 2011, and November 22, 2011, the Company and
certain current and former senior officers or directors were named
as defendants in two putative class action lawsuits, styled Jerome
Stone v. Agnico-Eagle Mines Ltd., et al., and Chris Hastings v.
Agnico-Eagle Mines Limited, et al., respectively, which were filed
in the United States District Court for the Southern District of
New York. On February 6, 2012, the Court ordered that the two
complaints be consolidated under the caption In re Agnico-Eagle
Mines Ltd. Securities Litigation, and lead counsel was appointed.
On April 6, 2012, a Consolidated Complaint was issued against the
Company and certain of its current and former senior officers and
directors. The Consolidated Complaint alleges that the Company
had violated federal securities law in connection with its
disclosure related to the Goldex mine. The Consolidated Complaint
seeks, among other things, damages on behalf of persons who
purchased or acquired securities of the Company during the period
July 28, 2010, to October 19, 2011. The Consolidated Complaint
has not been certified as a class action, and the Company intends
to vigorously defend it.
On January 14, 2013, Judge Oetken granted the Company's motion to
dismiss the Consolidated Complaint and all claims therein and
denied the plaintiffs' request for leave to amend the Consolidated
Complaint. On February 12, 2013, the plaintiffs filed a Notice of
Appeal to the United States Court for Appeals for the Second
Circuit. No date has been set for the appeal.
Agnico Eagle Mines Limited -- http://www.agnicoeagle.com/-- is an
established Canadian-based international gold producer with mining
operations in northwestern Quebec, northern Mexico, northern
Finland and Nunavut and exploration activities in Canada, Europe,
Latin America and the United States. The Company's operating
history includes over three decades of continuous gold production
primarily from underground operations. The Company is
headquartered in Ontario, Canada.
AGNICO EAGLE: Bid to Commence Securities Suit Pending in Quebec
---------------------------------------------------------------
The Plaintiffs' motion seeking leave to commence an action under
the Securities Act (Quebec) remains pending, according to Agnico
Eagle Mines Limited's June 28, 2013, Form F-10 filing with the
U.S. Securities and Exchange Commission.
On April 26, 2013, the shareholders of the Company approved the
removal of the hyphen from the Company's name and the Company
effected the name change under the Business Corporations Act
(Ontario). The Company believes that the new name aligns with its
re-branding initiative.
On April 12, 2012, two senior officers of the Company were served
with a Motion for Leave to Institute a Class Action and for the
Appointment of a Representative Plaintiff (the "Quebec Motion").
The action is on behalf of all persons and entities with fewer
than 50 employees resident in Quebec who acquired securities of
the Company between March 26, 2010, and October 19, 2011. The
proposed class action is for damages of CAD100 million arising as
a result of allegedly misleading disclosure by the Company
concerning its operations at the Goldex mine. On October 15,
2012, the plaintiffs served an amended Quebec Motion seeking leave
to commence an action under the Securities Act (Quebec) in
addition to seeking authorization to institute a class action. No
date has been set for the hearing to argue the Quebec Motion. The
Company intends to vigorously contest the Quebec Motion and defend
the claim.
Agnico Eagle Mines Limited -- http://www.agnicoeagle.com/-- is an
established Canadian-based international gold producer with mining
operations in northwestern Quebec, northern Mexico, northern
Finland and Nunavut and exploration activities in Canada, Europe,
Latin America and the United States. The Company's operating
history includes over three decades of continuous gold production
primarily from underground operations. The Company is
headquartered in Ontario, Canada.
AGNICO EAGLE: Continues to Defend Class Suit Pending in Ontario
---------------------------------------------------------------
Agnico Eagle Mines Limited continues to defend itself against a
class action lawsuit pending in Ontario, Canada, according to the
Company's June 28, 2013, Form F-10 filing with the U.S. Securities
and Exchange Commission.
On April 26, 2013, the shareholders of the Company approved the
removal of the hyphen from the Company's name and the Company
effected the name change under the Business Corporations Act
(Ontario). The Company believes that the new name aligns with its
re-branding initiative.
On March 8, 2012, and April 10, 2012, a Notice of Action and
Statement of Claim (collectively, the "Ontario Claim") were issued
by William Leslie, AFA Livforsakringsaktiebolag and certain other
entities against the Company and certain of its current and former
officers and directors. On September 27, 2012, the plaintiffs
issued a Fresh as Amended Statement of Claim. The Fresh as
Amended Statement of Claim alleges that the Company's public
disclosure concerning water flow issues at its Goldex mine was
misleading. The Ontario Claim was issued by the plaintiffs on
behalf of all persons and entities who acquired securities of the
Company during the period March 26, 2010, to October 19, 2011,
excluding persons resident or domiciled in the Province of Quebec
at the time they purchased or acquired such securities. The
plaintiffs seek, among other things, damages of CAD250 million and
to certify the Ontario Claim as a class action. On April 17,
2013, an Order was granted on consent certifying a class action
proceeding and granting leave for the claims under Section 138 of
the Securities Act (Ontario) to proceed. The Company intends to
vigorously defend the action on the merits.
Agnico Eagle Mines Limited -- http://www.agnicoeagle.com/-- is an
established Canadian-based international gold producer with mining
operations in northwestern Quebec, northern Mexico, northern
Finland and Nunavut and exploration activities in Canada, Europe,
Latin America and the United States. The Company's operating
history includes over three decades of continuous gold production
primarily from underground operations. The Company is
headquartered in Ontario, Canada.
B456 SYSTEMS: Consolidated Securities Suit Dismissed in April
-------------------------------------------------------------
The consolidated securities class action lawsuit against B456
Systems, Inc., was voluntarily dismissed in April 2013, according
to the Company's June 28, 2013, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended
September 30, 2012.
On April 2, 2012, a class action complaint was filed in the United
States District Court for the District of Massachusetts by Scott
Heiss, purportedly acting individually and on behalf of other
similarly situated persons, against the Company and its chief
executive officer, David Vieau, its chief financial officer, David
Prystash, and its former Interim CFO, John Granara. The complaint
followed the Company's disclosure in March 2012 of potentially
defective prismatic cells used in battery packs and a replacement
program for such cells. The complaint attempted to allege that
certain of the Company's disclosures were inaccurate because the
potentially defective cells and their replacement were not
disclosed earlier. The complaint asserted a claim under Section
10(b) of the Securities Exchange Act of 1934 against the Company
and claims under Sections 10(b) and 20(a) of that statute against
the individuals. It asserted a purported class period from
February 28, 2011, through March 23, 2012.
On April 12, 2012, a similar class action complaint was filed in
the United States District Court for the District of Massachusetts
by Terry Leon Fike, purportedly acting individually and on behalf
of other similarly situated persons, against the same defendants.
The complaint made similar allegations and also asserted claims
under Sections 10(b) and 20(a) of the Securities Exchange Act of
1934 and a purported class period from February 28, 2011, through
March 23, 2012.
On June 7, 2012, the Court consolidated the two cases and
appointed a lead plaintiff and lead counsel for the asserted
class. On August 31, 2012, the plaintiffs filed a consolidated
amended complaint. On October 1, 2012, the Company filed a motion
to dismiss the consolidated amended complaint. On October 22,
2012, the Company notified the Court of the bankruptcy filing, and
on October 23, 2012, the Company filed a Notice of Motion Filed in
Bankruptcy Court to Stay Litigations as to Non-Debtor Defendants.
In response, the plaintiffs requested an extension of time for the
filing of briefing related to the pending motion to dismiss as to
the non-debtor defendants. The Court granted the extension. On
January 25, 2013, the plaintiffs filed an opposition to the motion
to dismiss as to the non-debtor defendants. The Company filed a
reply on February 8, 2013. On March 14, 2013, the Court granted
the Company's motion to dismiss but gave the plaintiffs leave to
file a second amended complaint with twenty-one days. The
Plaintiffs opted not to file an amended complaint but to dismiss
the case instead. On April 4, 2013, the parties filed a
Stipulation of Voluntarily Dismissal with Prejudice.
Prior to the sale of substantially all of its assets in January
2013, B456 Systems, Inc. designed, developed, manufactured and
sold advanced, rechargeable lithium-ion batteries and battery
systems. The Company's target markets were the transportation,
electric grid services, commercial and government markets. The
Company is headquartered in Waltham, Massachusetts.
BED BATH & BEYOND: Hearing on Final OK of Settlement on Dec. 5
--------------------------------------------------------------
William Dotinga, writing for Courthouse News Service, reports that
Bed, Bath & Beyond can settle claims that it paid too little to
acquire Cost Plus World Market, a federal judge ruled.
Cost Plus shareholders sued the Company and its new owner in 2012,
claiming that Cost Plus sold itself for way below its market value
at $22 per share, or $494 million.
Oakland-based Cost Plus operates 263 stores in 30 states and had
posted year-over-year revenue gains for the two years prior to the
merger. Shareholders led by Irene Dixon accused the companies of
intentionally undervaluing Cost Plus, withholding key information
that prevented shareholders from making an informed vote on the
merger, and failing to look at the bids of other prospective
buyers.
Finding it unlikely that the shareholders would prevail on their
federal securities and state fiduciary duty claims, U.S. District
Judge Lucy Koh declined to block the merger in June 2012.
Settlement talks ensued, with the parties announcing they had
reached a tentative agreement earlier this year.
Aside from class certification, a stipulation of the settlement
dated February 2013 notes an incentive award of $2,800 for
intervenor plaintiff Gary Ogurkiewicz as the only other relief.
The defendants will also pay $375,000 to the plaintiffs' counsel:
Pomerantz Grossman Hufford Dahlstrom & Gross; Berman De Valerio;
Brower Piven; and Brodsky & Smith.
Koh granted the settlement preliminary approval on Thursday,
July 18, 2013.
Cost Plus must begin mailing class action settlement notices
immediately to all shareholders that held its 22.4 million shares
of stock between May 9, 2012, and June 29, 2012, according to the
eight-page scheduling order.
Koh will hold a final approval hearing on December 5 to determine
the "fairness, reasonableness and adequacy" of the settlement and
whether to unconditionally certify the class without opt-out
rights for settlement purposes.
Any shareholders objecting to the settlement must file their
written objections by November 27, 2013, or appear at the hearing.
Otherwise, they forfeit the right to take future action in the
matter, Koh said.
The Plaintiff is represented by:
David Eldridge Bower, Esq.
Christopher B. Hayes, Esq.
FARUQI & FARUQI, LLP
10866 Wilshire Boulevard, Suite 1470
Los Angeles, CA 90024
Telephone: (424) 256-2884
Facsimile: (424) 256-2885
E-mail: dbower@faruqilaw.com
chayes@faruqilaw.com
- and -
Brian T. Moon, Esq.
369 Lexington Avenue, 10th Floor
New York, NY 10017
Telephone: (212) 983-9330
The Defendants are represented by:
Eric Steven Waxman, Esq.
SKADDEN ARPS SLATE MEAGHER & FLOM LLP
300 South Grand Avenue, Suite 3400
Los Angeles, CA 90071
Telephone: (213) 687-5000
Facsimile: (213) 687-5600
E-mail: ewaxman@skadden.com
- and -
Michael Allen Firestein, Esq.
PROSKAUER ROSE LLP
2049 Century Park East, 32nd Floor
Los Angeles, CA 90067-3206
Telephone: (310) 557-2900
Facsimile: (310) 557-2193
E-mail: mfirestein@proskauer.com
- and -
Todd Anthony Seaver, Esq.
BERMAN DEVALERIO
One California Street, Suite 900
San Francisco, CA 94111
Telephone: (415) 433-3200
E-mail: tseaver@bermandevalerio.com
- and -
Gustavo Bruckner, Esq.
POMERANTZ GROSSMAN HUFFORD DAHLSTROM & GROSS LLP
600 Third Avenue, 20th Floor
New York, NY 10016
Telephone: (212) 661-1100
Facsimile: (212) 661-8665
E-mail: gfbruckner@pomlaw.com
- and -
Nicole Catherine Lavallee, Esq.
BERMAN DEVALERIO
One California Street, Suite 900
San Francisco, CA 94111
Telephone: (415) 433-3200
Facsimile: (415) 433-6382
E-mail: nlavallee@bermandevalerio.com
The case is Dixon v. Cost Plus, Inc. et al., Case No. 5:12-cv-
02721-LHK, in the U.S. District Court for the Northern District of
California (San Jose).
CAL-MAINE FOODS: Settles Egg Antitrust Class Action for $28-Mil.
----------------------------------------------------------------
Cal-Maine Foods, Inc. on July 23 disclosed that it has reached an
agreement in principle to settle all direct purchaser class claims
against the Company. Pursuant to the agreement, reached in the In
re Processed Egg Products Antitrust Litigation matter pending in
Pennsylvania federal court, Cal-Maine will settle all direct
purchaser class claims with a single $28 million payment.
"We remain confident that our conduct has at all times been
lawful, appropriate and fair to our customers. The largest
retailers and egg buyers in the country, including many of our
customers, in fact, were fully aware of, and explicitly supported,
the industry-wide animal welfare guidelines challenged in this
litigation. And, the USDA was fully aware of, and explicitly
supported, these animal welfare guidelines as well as all the
other conduct the plaintiffs challenged," said Dolph Baker,
chairman, president and chief executive officer of Cal-Maine
Foods, Inc. "We were able to negotiate a settlement which would
eliminate most of our exposure in the antitrust litigation against
the Company for an amount that we believe is in the best interest
of the shareholders, employees, customers and consumers. It
significantly reduces the distraction, expense, exposure and
inconvenience of protracted litigation and potentially multiple
appeals, and allows us to focus on executing the long-term
strategy of our business."
The terms of the settlement must be formally documented and are
subject to approval by the court following notice to all class
members. The Company will record a pre-tax charge in the fourth
quarter of fiscal 2013 of approximately $28 million with respect
to the settlement, which amounts to $17 million, $0.71 per basic
share, after tax. Cal-Maine does not expect other provisions
associated with the settlement to have a material impact on its
results of operations. While the Company expects the settlement
will receive the needed approval, there can be no assurance that
the court will approve the agreement as proposed by the parties.
The plaintiffs in the non-class cases that direct purchasers have
filed against the Company may elect to participate in the
settlement or to opt out and pursue their individual claims. The
settlement does not affect the class actions filed on behalf of
indirect purchasers. These non-class cases and the indirect
purchaser class actions also allege that the Company and certain
other large domestic egg producers conspired to reduce the
domestic supply of eggs in an effort to raise egg prices.
Cal-Maine intends to continue to vigorously defend the remaining
cases and believes it has strong defenses.
Cal-Maine Foods, Inc. is primarily engaged in the production,
grading, packing and sale of fresh shell eggs, including
conventional, cage-free, organic and nutritionally-enhanced eggs.
The Company, which is headquartered in Jackson, Mississippi, is
the largest producer and distributor of fresh shell eggs in the
United States and sells the majority of its shell eggs in
approximately 29 states across the southwestern, southeastern,
mid-western and mid-Atlantic regions of the United States.
CANADA: Woman Mulls Class Action Over Citizenship Laws
------------------------------------------------------
Kim Nursall, writing for The Canadian Press, reports that
thousands of so-called "Lost Canadians" may have their day in
court if a woman who has waited years to establish her own
Canadian citizenship decides to pursue a class-action lawsuit.
Jackie Scott, 68, went to court after she was refused citizenship
despite having come to Canada with her British mother and her
Canadian father at the age of two and spending most of her life
here. A judicial review of that denial was to have started on
July 22, but as the proceedings got underway, Ms. Scott chose to
put the review on hold so she and her lawyers could expand the
court action.
Ms. Scott had initially asked the court to determine whether she
was a citizen. But "it's not just about me," Ms. Scott told
reporters afterward, saying she could not in good conscience
become a Canadian without doing everything she can to help other
"lost" individuals.
Ms. Scott was born in England in 1945 to a Canadian serviceman
father and a British mother and later migrated to Canada.
The government claims Ms. Scott's father was legally considered a
British subject at the time because Canada's first citizenship act
did not come into effect until 1947.
"What happened [Tues]day is quite interesting and it's going to
result in a historic decision as to what a Canadian is and when
Canadians actually came into being," one of Ms. Scott's lawyers,
James Straith, said outside the court.
"What we hope to do now is come back and get a final order from
the court where the court finds not just in Jackie Scott's case,
but in every one of these cases of Lost Canadians," Mr. Straith
said.
The government argued in a written response to Ms. Scott's
application for judicial review that "Canadian citizenship is a
creation of federal statute. In order to become a Canadian
citizen, a person must satisfy the applicable statutory
requirements." But Mr. Straith said he finds that claim very
troubling.
If the government is "able to maintain that citizenship is only
something that is defined by Parliament, and not simply defined by
the law and Constitution of Canada, then they have a lot more
flexibility on what they can do with citizenship and where they
can allow and deny citizenship," said Mr. Straith.
Ms. Scott's decision to expand the court action came after
Judge Luc Martineau refused to allow a government document to be
brought before the court.
The document -- a 1943 pamphlet issued to Canadian soldiers --
deals "with the historic rights of Canadians as they were going
overseas," said Mr. Straith.
It states that the soldiers "were fighting as citizens of Canada,
not as merely British subjects," he said. But due to the nature
of a judicial review, such a document is not permitted. Ms. Scott
and her lawyers decided a trial setting could lead to a better
ruling.
"Then the court can make a finding, binding on everyone, that as a
matter of fact Canadian citizens did or did not exist prior to
January 1, 1947," said Mr. Straith. "It's an opportunity to get
this dealt with once and for all."
Ms. Scott's judicial review has been adjourned in the meantime.
Over the next few weeks, she and her lawyers will determine
whether to pursue a class-action lawsuit, or petition the court
for a declaratory statement.
Although the timeline is still uncertain, Ms. Scott should be back
in front of a judge sometime in September. Her new action may
still be denied, in which case the judicial review will go
forward.
"I would guess that there are probably several thousand people
that are affected like Jackie," said Don Chapman, the founder of
the Lost Canadians.
But "the problem is you don't know," he said.
CANADA: Seeks Dismissal of Disabled Veterans' Class Action
----------------------------------------------------------
Kevin Berry, writing for CTV News, reports that the federal
government is asking a BC Supreme Court judge to strike down a
class-action lawsuit filed by six war veterans over disability
compensation.
The disabled veterans are challenging a pension program introduced
in 2006, which the soldiers say violates their human rights with
insufficient and arbitrary disability payments.
Veteran pensions previously fell under the Pension Act, before the
New Veterans Charter was signed off seven years ago to establish
more veteran-specific regulations.
Kevin Berry, one of the plaintiffs named in the lawsuit, contends
that the benefits are 40 to 90 per cent worse under the new rules,
and are weaker than provincial compensation plans.
The federal government argues the soldiers' concerns should not be
dealt with by the courts. They say the veterans should lobby MPs
instead to change the legislation.
"They're telling us that you can't sue us because you're veterans,
you're not entitled to equal compensation because you're
veterans," said Berry.
"We're not going to stand for that."
Jim Scott, whose son Daniel is another one of the six disabled
soldiers in the class-action suit, said the court case will
determine what power soldiers have to negotiate their pensions.
"What we're here to do [Mon]day is to establish whether soldiers
have fundamental rights under the Charter . . . and whether the
government owes them a duty of care," said Mr. Scott.
The court hearing was set to continue on July 23 and July 24.
CANON USA: Has Ceased Providing Replacement Parts, Suit Claims
--------------------------------------------------------------
Sherman Bahr, d/b/a Video One Repair, On Behalf of Itself And All
Others Similarly Situated v. Canon U.S.A., Inc., Case No. 2:13-cv-
05259 (C.D. Cal., July 22, 2013) is brought for the benefit and
protection of all independent service and repair facilities that
service and repair camcorders manufactured by Canon's parent
corporation Canon, Inc., for consumers in California and consumers
who have purchased the Camcorders in California.
In the past two years, Canon has ceased providing certain
necessary replacement parts and severely restricted the
availability of other necessary replacement parts for the
Camcorders to independent service and repair facilities, such as
the Plaintiff, the Plaintiff alleges. The Plaintiff contends that
the action is brought to remedy violations of California's
consumer protection statutes in connection with Canon's willful
misconduct, specifically Canon's conscious effort to prevent or
severely limit independent service and repair facilities from
securing the necessary parts to service and repair the Camcorders,
in order to force consumers to have their Camcorders serviced and
repaired at Canon's own service and repair facilities.
Video One is an independent service repair facility located in
Newbury Park, California. Sherman Bahr is a resident of
California, and operates as a sole proprietor of Video One. Video
One has been servicing and repairing camcorders, such as Canon's
Camcorders, since 1994, and is licensed by the California Bureau
of Electronic and Appliance Repair.
Canon is the wholly-owned U.S. sales and marketing arm of Canon,
Inc., a Japanese corporation. Canon oversees sales and other
operations throughout the United States. Canon exclusively sells
and distributes imaging and optical products manufactured by
Canon, Inc., including the Camcorders, directly or through its
network of dealers.
The Plaintiff is represented by:
Thomas D. Mauriello, Esq.
MAURIELLO LAW FIRM, APC
1181 Puerta Del Sol, Suite 120
San Clemente, CA 82673
Telephone: (949) 543-3555
Facstmile: (949) 606-9690
E-mail: tomm@.maurlaw.com
- and -
Rosemary F. Luzon, Esq.
Kolin C. Tang, Esq.
SHEPHERD, FINKELMAN, MILLER & SHAH, LLP
401 West A Street, Suite 2350
San Diego, CA 9210 1
Telephone: (619) 235-2416
Facsimile: (619) 234-7334
E-mail: rluzon@sfmslaw.com
ktang@sfmslaw.com
- and -
James C. Shah, Esq.
SHEPHERD, FINKELMAN, MILLER & SHAH, LLP
35 East State Street
Media, PA 19063
Telephone: (610) 891-9880
Facsimile: (610) 891-9883
E-mail: jshah@sfmslaw.com
- and -
Steven N. Berk, Esq.
BERK LAW PLLC
2002 Massachusetts Ave., NW
Washington, DC 20036
Telephone: (206) 232-7550
Facstmile: (206) 232-7556
E-mail: steven@berklawdc.com
CRIMSON EXPLORATION: Shareholders Sue Over Proposed Contango Sale
-----------------------------------------------------------------
Jeremy Heallen and Natalie Rodriguez, writing for Law360, report
that a Crimson Exploration Inc. shareholder launched a proposed
class action in Texas state court on July 19, alleging that a deal
to sell the energy developer to Contango Oil & Gas Co. for $390
million significantly undervalues the company while lining board
members' pockets.
Putative lead plaintiff Fisichella Family Trust says the merger,
announced in April, is "marred by conflicts of interest" caused by
Crimson's largest shareholder, Oaktree Capital Management, which
pushed the deal that guarantees it exclusive financial benefits.
"In sum, defendants failed to maximize shareholder value and to
protect the interests of Crimson's shareholders," the suit said.
"Instead, defendants engaged in a process that was designed to
benefit Oaktree and secure material personal benefits for
themselves."
Representatives for Crimson and Contango did not immediately
respond to a request for comment July 22.
Per the stock and debt deal announced April 30, each Crimson share
will be converted into a .082 share of Contango stock, and
Contango will assume about $244 million of existing debt.
Merging Contango's offshore drilling activities in the Gulf of
Mexico with Houston-based Crimson's onshore crude oil and natural
gas exploration projects is expected to create a company valued at
$900 million and provide a capital base that will accelerate
development for both companies' projects. Crimson shareholders
will walk away with about 20.3 percent of the newly formed
company, according to investor documents.
Although the share conversion represents an 8 percent premium on
Crimson's closing stock price of $3.19 per share as of April 29,
the shareholders say mergers in the oil and gas industry exceeding
$100 million typically come with a 25 percent premium.
The shareholders say global asset management firm Oaktree, which
controls four out of seven Crimson board positions and two of the
company's five executive offices, helped shape the deal to its
benefit and that of company leaders. Oaktree is named in the suit
for allegedly exercising "undue influence" over the merger
process.
Among other things, Contango will pay off a large debt owed to
Oaktree by Crimson, along with a $1.7 million early payment fee,
the suit says. And Oaktree has secured the right to liquidate its
interests in the new company and has ensured that the board
members and executives it controls will stay on with the new
company while receiving significant pay raises, the suit says.
"In light of such extreme conflicts of interest, it should come as
little surprise that the process that culminated in the merger
agreement was not the result of a formal sale process," the suit
said.
And the shareholders say Contango knew the deal was too good to be
true and aided and abetted Crimson's breach of fiduciary duty.
"If defendants are able to consummate the proposed transaction,
Crimson's public shareholders will not receive the true value of
their investment," the suit said. "The $3.19 per share amount
does not reflect Crimson's intrinsic value, nor does it reflect
the value of the company as the target of a full and fair sales
process."
The suit alleges breach of fiduciary duty and aiding and abetting.
The shareholders are seeking injunctive relief.
The shareholders are represented by Thomas R. Ajamie --
tajamie@ajamie.com -- Dona Szak -- dszak@ajamie.com -- and Jason
A. Braum of Ajamie LLP and Albert M. Myers, Melinda A. Nicholson
and Michael J. Palestina of Kahn Swick & Foti LLC.
Counsel information for the companies and executives was not
immediately available.
The case is Fisichella Family Trust et. al. v. Crimson Exploration
Inc. et. al., case number 2013-42330, in the 157th Judicial
District Court of Harris County, Texas.
DEL MONTE: Awaits Ruling on Bid to Dismiss 2 of 3 Related Suits
---------------------------------------------------------------
Del Monte Corporation is awaiting a court decision on its motion
to dismiss two of the three related class action lawsuits pending
in California, according to the Company's June 28, 2013, Form 10-K
filing with the U.S. Securities and Exchange Commission for the
year ended April 28, 2013.
On September 6, 2012, October 12, 2012, and October 16, 2012,
three separate putative class action complaints were filed against
the Company in U.S. District Court for the Northern District of
California (Langone v. Del Monte, Ruff v. Del Monte, and Funke v.
Del Monte, respectively) alleging product liability claims
relating to Chicken Jerky Treats. Specifically, the complaints
allege that the Plaintiffs' dogs became ill as a result of
consumption of Chicken Jerky Treats. The complaints also allege
that the Company breached its warranties and California's consumer
protection laws. Each of the complaints seeks certification as a
class action and damages in excess of $5.0 million. The Company
denies these allegations and intends to vigorously defend itself.
On December 18, 2012, the Plaintiffs filed a motion to relate and
consolidate the Langone, Ruff and Funke matters. The Company
agreed that the cases are related but argued in its response that
they should not be consolidated. The Court ordered the cases are
related in an Order on January 24, 2013. In the Langone case, the
Company filed a Motion to Transfer/Dismiss on February 1, 2013.
The Plaintiff in the Langone matter voluntarily dismissed his
Complaint without prejudice on February 21, 2013, and re-filed in
the U.S. District Court for the Western District of Pennsylvania
on May 21, 2013. On April 9, 2013, the Court transferred Ruff and
Funke to the U.S. District Court for the Western District of
Pennsylvania but denied without prejudice the Defendant's motions
to consolidate and dismiss. On April 23, 2013, the Company filed
its Motion to Dismiss in Ruff and Funke with the U.S. District
Court for the Western District of Pennsylvania and its Reply in
Support of its Motion to Dismiss in both cases on June 3, 2013.
The Company cannot at this time reasonably estimate a range of
exposure, if any, of the potential liability.
The Company has product contamination and recall insurance which
may be available to cover losses, if any, related to the Chicken
Jerky Treats cases with the exception of Harmon; however, the
ultimate amount of losses related to these cases as well as other
recall costs may exceed the amount of any recovery.
Del Monte Corporation -- http://www.delmontefoods.com/-- was
incorporated in Delaware and is headquartered in San Francisco,
California. Del Monte is one of the country's largest producers,
distributors and marketers of premium quality, branded pet
products and food products for the U.S. retail market.
DEL MONTE: Awaits Ruling on Motion to Transfer "Harmon" Suit
------------------------------------------------------------
Del Monte Corporation is awaiting a court decision on its motion
to transfer a class action lawsuit captioned Harmon v. Del Monte,
according to the Company's June 28, 2013, Form 10-K filing with
the U.S. Securities and Exchange Commission for the year ended
April 28, 2013.
On January 31, 2013, a putative class action complaint was filed
against the Company in the Circuit Court of Jackson County,
Missouri (Harmon v. Del Monte) alleging that Milo's Kitchen
chicken jerky treats ("Chicken Jerky Treats") and Milo's Kitchen
Chicken Grillers Recipe home-style dog treats contain "poisonous
antibiotics and other potentially lethal substances." The
Plaintiff seeks restitution and damages not to exceed $75,000 per
class member and the aggregated claim for damages of the class not
to exceed $5.0 million under the Missouri Merchandising Practices
Act. The complaint also alleges the Company continued to sell its
Chicken Jerky Treats in Jackson County, Missouri, after it
announced its recall of the product on January 9, 2013. The
complaint seeks certification as a class action. The Company
successfully removed this case to federal court on March 12, 2013.
On April 9, 2013, the Plaintiff filed its Second Amended Class
Action Petition against the Company. The Company filed its Motion
to Transfer to the Western District of Pennsylvania on April 19,
2013, and its Motion to Stay Pending the Motion to Transfer on
April 25, 2013. The Motion to Stay was granted the same day it
was filed. On May 6, 2013, the Plaintiffs filed their Opposition
to Defendant's Motion to Transfer. The Company filed its Reply in
Support of its Motion to Transfer on May 23, 2013. The Company
denies these allegations and intends to vigorously defend itself.
The Company cannot at this time reasonably estimate a range of
exposure, if any, of the potential liability.
The Company says it has product contamination and recall insurance
which may be available to cover losses, if any, related to the
Chicken Jerky Treats cases with the exception of the Harmon
lawsuit; however, the ultimate amount of losses related to these
cases as well as other recall costs may exceed the amount of any
recovery.
Del Monte Corporation -- http://www.delmontefoods.com/-- was
incorporated in Delaware and is headquartered in San Francisco,
California. Del Monte is one of the country's largest producers,
distributors and marketers of premium quality, branded pet
products and food products for the U.S. retail market.
DEL MONTE: Consumer Suit Plaintiffs Filed Amended Complaint
-----------------------------------------------------------
The Plaintiffs in a consolidated class action lawsuit alleging
violations of California's consumer protection laws filed an
amended complaint in June 2013, according to Del Monte
Corporation's June 28, 2013, Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended April 28,
2013.
Kosta Class Suit
On April 5, 2012, a complaint was filed against the Company in
U.S. District Court for the Northern District of California (Kosta
v. Del Monte) alleging false and misleading advertising under
California's consumer protection laws. The complaint seeks
certification as a class action and damages in excess of $5.0
million. On June 15, 2012, the Company filed a Motion to Dismiss
Plaintiff's complaint. The Plaintiff filed an amended complaint
on July 6, 2012, negating the Company's Motion to Dismiss. In its
amended complaint, the Plaintiff alleges the Company made a
variety of false and misleading advertising claims including, but
not limited to, its lycopene and antioxidant claims for tomato
products; implying that its refrigerated products are fresh and
all natural; implying that Fresh Cut vegetables are fresh; and
making misleading claims regarding sugar, nutrient content,
preservatives and serving size. The Company denies these
allegations and intends to vigorously defend itself. The Company
filed a new Motion to Dismiss the Plaintiff's complaint on
July 31, 2012. The Motion to Dismiss was denied on May 15, 2013.
The Plaintiff moved on November 5, 2012, to seek application of
the doctrine of collateral estoppel in this matter based on the
jury's finding in the Fresh Del Monte Inc. v. Del Monte case. The
Company's Response to Plaintiff's Motion for Application of
Collateral Estoppel was filed on January 17, 2013. The
Plaintiff's Reply was filed on February 21, 2013. The Court
denied the Plaintiff's Motion on May 17, 2013. The Court in
Langille ordered these two matters related in an Order on May 15,
2013. The parties filed a joint stipulation to consolidate these
cases on June 3, 2013, and the Judge granted this Order on June 5,
2013. The Kosta and Langille plaintiffs filed their Consolidated
Class Action Complaint on June 11, 2013.
Langille Class Suit
On April 22, 2013, the Plaintiffs filed a complaint in the U.S.
District Court for the Northern District of California (Langille,
et al. v. Del Monte) alleging false and misleading advertising
under California's consumer protection laws. The Plaintiffs
allege the Company made a variety of false and misleading
advertising claims including, but not limited to, implying that
its refrigerated fruit products are "fresh" and "natural." The
complaint seeks certification as a class action and damages in
excess of $5.0 million. The Company denies these allegations and
intends to vigorously defend itself. On May 1, 2013, the
Plaintiffs filed a motion to relate this case to the Kosta v. Del
Monte matter. The Company filed a Joinder in support of
Plaintiffs' Motion on May 6, 2013. The Court ordered the cases
related in an Order on May 15, 2013. The parties filed a Joint
Stipulation to consolidate these cases on June 3, 2013, and the
Judge granted this Order on June 5, 2013. The Kosta and Langille
plaintiffs filed their Consolidated Class Action Complaint on
June 11, 2013.
The Company says it cannot at this time reasonably estimate a
range of exposure, if any, of the potential liability.
Del Monte Corporation -- http://www.delmontefoods.com/-- was
incorporated in Delaware and is headquartered in San Francisco,
California. Del Monte is one of the country's largest producers,
distributors and marketers of premium quality, branded pet
products and food products for the U.S. retail market.
DEL MONTE: Faces "Montgomery" Wage and Hour Suit in California
--------------------------------------------------------------
Del Monte Corporation is facing a wage and hour class action
lawsuit in California, according to the Company's June 28, 2013,
Form 10-K filing with the U.S. Securities and Exchange Commission
for the year ended April 28, 2013.
On April 19, 2013, the Plaintiff filed a complaint on behalf of
himself and all other similarly situated employees in Superior
Court of California, Alameda County (Montgomery v. Del Monte)
alleging, inter alia, failure to provide meal and rest periods and
pay wages properly in violation of various California wage and
hour statutes. The Company denies these allegations and intends
to vigorously defend itself. The Company cannot at this time
reasonably estimate a range of exposure, if any, of the potential
liability.
Del Monte Corporation -- http://www.delmontefoods.com/-- was
incorporated in Delaware and is headquartered in San Francisco,
California. Del Monte is one of the country's largest producers,
distributors and marketers of premium quality, branded pet
products and food products for the U.S. retail market.
DEL MONTE: Parties in "Webster" Suit Currently in Discovery
-----------------------------------------------------------
The parties in the class action lawsuit styled Webster v. Del
Monte Corporation are currently in discovery, according to the
Company's June 28, 2013, Form 10-K filing with the U.S. Securities
and Exchange Commission for the year ended April 28, 2013.
On June 22, 2012, a putative class action complaint was filed
against the Company in Los Angeles Superior Court (Webster v. Del
Monte) alleging false advertising under California's consumer
protection laws, negligence, breach of warranty and strict
liability. Specifically, the complaint alleges that the Company
engaged in false advertising by representing that the Chicken
Jerky Treats are healthy, wholesome, and safe for consumption by
dogs, and alleges that the Plaintiff's pet became ill after
consuming Chicken Jerky Treats. The allegations apply to all
other putative class members similarly situated. The complaint
seeks certification as a class action and unspecified damages,
disgorgement of profits, punitive damages, attorneys' fees and
injunctive relief. The Company denies these allegations and
intends to vigorously defend itself. On September 6, 2012, the
Company filed a Notice of Removal to remove the case to the U.S.
District Court for the Central District of California. The
Plaintiff subsequently filed a motion to amend its complaint to
remove the federal class action claims and remand the case back to
Los Angeles County Superior Court. The Company subsequently
stipulated to the Plaintiff's motion, and the case has been
remanded to Los Angeles County Superior Court. The parties are
currently in discovery. A status conference was set for July 19,
2013. The Company cannot, at this time, reasonably estimate a
range of exposure, if any, of the potential liability.
The Company says it has product contamination and recall insurance
which may be available to cover losses, if any, related to the
Chicken Jerky Treats cases with the exception of the Harmon
lawsuit; however, the ultimate amount of losses related to these
cases as well as other recall costs may exceed the amount of any
recovery.
Del Monte Corporation -- http://www.delmontefoods.com/-- was
incorporated in Delaware and is headquartered in San Francisco,
California. Del Monte is one of the country's largest producers,
distributors and marketers of premium quality, branded pet
products and food products for the U.S. retail market.
DEL MONTE: Bid to Dismiss "Mazur" Class Suit Denied in June
-----------------------------------------------------------
Del Monte Corporation's motion to dismiss a class action lawsuit
titled Mazur v. Del Monte was denied in June 2013, according to
the Company's June 28, 2013, Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended April 28,
2013.
On July 19, 2012, a putative class action complaint was filed
against the Company in U.S. District Court for the Western
District of Pennsylvania (Mazur v. Del Monte) alleging product
liability claims relating to Chicken Jerky Treats. Specifically,
the complaint alleges that Plaintiff's dog became ill and had to
be euthanized as a result of consumption of Chicken Jerky Treats.
The complaint also alleges that the Company breached its
warranties and Pennsylvania's consumer protection laws. The
complaint seeks certification as a class action and damages in
excess of $5.0 million. The Company denies these allegations and
intends to vigorously defend itself. On August 3, 2012, the
Plaintiff's counsel filed a Motion to Consolidate the previously
filed two similar class actions against Nestle Purina Petcare
Company, owner of the Waggin' Train brand of chicken jerky treats,
in U.S. District Court for the Northern District of Illinois under
the federal rules for multi-district litigation ("MDL"). The
Plaintiff's Motion also sought to include the case against the
Company in the proposed MDL consolidation as a "related case." On
September 28, 2012, the Court denied the MDL Motion. The case
will now proceed in the jurisdiction in which it was originally
filed. The Plaintiff filed a Motion for Leave to Commence Limited
Discovery on the subject of the voluntary recall of Chicken Jerky
Treats on January 25, 2013. The Company filed its response
opposing the Motion on February 8, 2013. The Court denied the
Plaintiff's Motion on March 12, 2013; thus, discovery is stayed
until the Court rules on the Company's Motion to Dismiss, which
was filed on September 24, 2012.
On May 24, 2013, the Judge in the matter issued a Report and
Recommendation stating that the Motion to Dismiss be granted as to
the Plaintiff's claim for unjust enrichment and denied in all
other respects. The Company filed its Objections to the Report
and Recommendation on June 7, 2013. The Court issued an Order
adopting the Magistrate Judge's Report and Recommendation on
June 25, 2013. The Company cannot at this time reasonably
estimate a range of exposure, if any, of the potential liability.
The Company says it has product contamination and recall insurance
which may be available to cover losses, if any, related to the
Chicken Jerky Treats cases with the exception of Harmon; however,
the ultimate amount of losses related to these cases as well as
other recall costs may exceed the amount of any recovery.
Del Monte Corporation -- http://www.delmontefoods.com/-- was
incorporated in Delaware and is headquartered in San Francisco,
California. Del Monte is one of the country's largest producers,
distributors and marketers of premium quality, branded pet
products and food products for the U.S. retail market.
DR PEPPER SNAPPLE: Settles Class Action Over 7UP Drinks
-------------------------------------------------------
Food Product Design reports that Dr Pepper Snapple Group, Inc.
(DPS) agreed to remove Vitamin E from certain 7UP drinks to settle
a proposed class action lawsuit that was filed in California.
Under the settlement agreement that took effect July 15, the
beverage behemoth also agreed to remove references to antioxidants
on labels of certain products and pay $237,500 in attorney's fees
plus $5,000 to the named plaintiff, David Green.
The eight-month-old lawsuit alleged DPS mislead consumers over the
benefits of its 7UP Cherry Antioxidant, 7UP Mixed Berry
Antioxidant and 7UP Pomegranate Antioxidant sodas.
The Center for Science in the Public Interest and the law firm
Reese Richman LLP filed the lawsuit on behalf of Green and the
proposed class.
"Soda is not a health food, and should not be marketed as a
healthy source of antioxidants or other nutrients," Stephen
Gardner, litigation director for the Center for Science in the
Public Interest, said in a statement. "It's to the credit of the
Dr Pepper Snapple Group that it carefully considered these
concerns, and worked collaboratively to resolve the dispute
without further litigation. The end result is a big plus for
consumers."
Chris Barnes, a spokesman for DPS, said the lawsuit was filed
after the company had already started remaking Cherry 7UP.
"The company removed the antioxidants to make the formula and
label consistent with the rest of the 7UP line. The reformulated
Cherry 7UP hit the market in early 2013 and will continue to be
sold in regular and diet versions," he stated in an email. "As a
result, claims brought by CSPI have been withdrawn. While we
disagree with CSPI on the merit and substance of their claim, we
both agreed this resolved the matter."
FIRST NATIONAL: Judge Okays Re-Sequencing Class Action Settlement
-----------------------------------------------------------------
Joe Pinchot, writing for The Herald, reports that a federal judge
last month approved a class action settlement of two lawsuits
filed over the resequencing of debit card transactions at
Hermitage-based First National Bank.
While resequencing -- processing transactions out of chronological
order to generate more overdraft fees -- is legal and FNB denied
any wrongdoing or liability, the bank agreed to the settlement and
to change its disclosure and customer reporting practices to avoid
the costs of fighting the suits.
The bank set aside $3 million for the settlement, of which
$1 million will go for legal fees, $103,353 for reimbursement of
legal expenses and $3,000 each in "case contribution awards" to
the plaintiffs, Kimberly and Kevin Ord and Joan Clarey.
That leaves an average of almost $30 each for the 63,319 customers
eligible to receive settlement benefits through checks or credits
to their accounts. That amount could be lower as settlement
administration costs also are to be pulled from the settlement
pool.
The class is defined as FNB customers who incurred overdraft fees
as a result of resequencing from June 1, 2006, through Feb. 8.
The bank agreed to modify its disclosures on how it processes
overdraft transactions and change its paper account statements to
show the actual order in which the bank posts transactions.
Resequencing has been the subject of lawsuits against larger
financial institutions that resulted in settlements in the
hundreds of millions of dollars.
FLEETMATICS GROUP: Still Awaits Decision in "Prisoner" Suit
-----------------------------------------------------------
Fleetmatics Group PLC is still awaiting a court decision on its
motion to dismiss a class action lawsuit originally filed by U.S.
Prisoner Transport, et al., according to the Company's June 28,
2013, Form F-1 filing with the U.S. Securities and Exchange
Commission.
On August 14, 2012, a putative class action complaint was filed in
the Sixth Judicial Circuit in Pinellas County, Florida, entitled
U.S. Prisoner Transport, et al. v. Fleetmatics USA, LLC, et al.,
Case No. 1200-9933 CI-20. The Company removed the case to the
United States District Court for the Middle District of Florida on
September 13, 2012, U.S. Prisoner Transport, et al. v. Fleetmatics
USA, LLC, et al., Case No. 8:12-CV-2079. The Company moved to
dismiss the complaint on September 20, 2012. The Plaintiffs filed
an amended complaint on October 4, 2012, and changed the case
caption to Brevard Extraditions, Inc., d/b/a U.S. Prisoner
Transport, et al. v. Fleetmatics USA, LLC, et al. The amended
complaint alleges that the Company intercepted, recorded,
disclosed, and used thousands of telephone calls in violation of
Florida Statutes Section 934.03. The amended complaint seeks
certification of a putative class of all individuals and
businesses residing in Florida who spoke with any representatives
of the Company's offices in Florida on the telephone and had their
telephone conversations recorded without their consent or advance
notice, from the date of the earliest recording by the Company
through the present. The amended complaint seeks statutory
damages, injunctive relief, attorney fees, costs and interest.
Florida Statutes Section 934.10 permits an aggrieved person to
recover "liquidated damages computed at the rate of $100 a day for
each day of violation or $1,000, whichever is higher."
The Company moved to dismiss the amended complaint on October 18,
2012; the plaintiffs filed an opposition on November 1, 2012; and
the Company filed a reply on June 4, 2013, after the court granted
leave to do so. The Company's motion to dismiss is pending before
the court.
The Company says this matter is in its early stages, but there can
be no assurance that the matter will not have a material adverse
effect on the Company's business, financial condition, operating
results and cash flows.
Fleetmatics Group PLC -- http://www.fleetmatics.com/-- is a
global provider of fleet management solutions delivered as
software-as-a-service. The Company's mobile software platform
enables businesses to meet the challenges associated with managing
their local fleets of commercial vehicles and improve productivity
by extracting actionable business intelligence from vehicle and
driver behavioral data. The Company is headquartered in Dublin,
Ireland.
GEORGE BROWN: Court Ruling May Prompt More Consumer Class Actions
-----------------------------------------------------------------
Jennifer Brown, writing for Canadian Lawyer Magazine, reports that
the Ontario Court of Appeal says consumers don't have to establish
reliance on a false, misleading, or deceptive representation when
claiming a breach under the Consumer Protection Act section that
prohibits "unfair practices" in consumer transactions.
In Ramdath v. George Brown College, students who had enrolled in
the school's international business management program in 2007 and
2008 started a class action against the college for
representations it made in its course calendar. It described the
program as giving students the "opportunity to complete three
industry designations/certifications."
There were about 120 students taking the classes. Two-thirds were
foreign students -- from India, China, Japan, Turkey, Brazil,
Russia, South Korea, Syria, Thailand, and Mexico. The domestic
students paid about $3,000 in tuition fees for the eight-month
program; the foreign students paid just under $11,000.
However, upon graduating the students did not automatically
receive the designations they felt they had earned and were not
automatically eligible to write the industry exams necessary to
obtain the designations. That's because George Brown had no
agreements in place with the industry associations that awarded
the designations.
The students learned they would have had to apply separately to
each industry association and, in addition to writing the exam and
paying a sometimes hefty fee, would be required to take additional
courses and/or submit proof of work experience.
The students claimed they would not have enrolled in the program
but for the college's "representation" that, upon completion, the
students would obtain the three designations.
They claimed against George Brown as consumers defined in the
Consumer Protection Act as individuals "acting for personal,
family, or household purposes" and not including persons "acting
for business purposes."
The student class members claimed for breach of Part III of the
CPA, which creates civil liability for unfair practices, being "a
false, misleading or deceptive representation" in a consumer
transaction.
The Superior Court found in favor of the students but George Brown
appealed, arguing the students weren't consumers as defined in the
CPA, and each student would have to prove reliance on the
college's misrepresentation before being entitled to any remedy.
The appeal court decision in the student's favor "gives hope to
persons who do plaintiffs work," says Alan Farrer, managing
partner with Thomson Rogers. "Certainly they took a broad and
reasonable interpretation of the statute. It's a remedial statute
and they decided to look at it with that in mind. The argument
wasn't that strong that they wouldn't have been consumers."
The students were asked by the college to prove reasonable
reliance on the misrepresentation and Mr. Farrer says the court
"gave a more liberal interpretation of the statute" simply saying
once someone finds there has been an unfair practice the person
aggrieved is entitled to a remedy including damages.
The question of individual damages will be determined when each
member of the class individually proves their own damages.
In a bulletin issued, Blake Cassels & Graydon LLP noted: "We can
expect to see more consumer protection class actions as a result
of this action."
Mr. Farrer says he's not sure the decision will lead to more
Consumer Protection Act cases, but if the defendant's arguments
prevailed it would have created a notion not everyone can be a
consumer and there is a hurdle that has to be passed before
considering entitlement to damages and they didn't do that.
"I guess it's a simpler path now to recovery for people against
whom there have been unfair business practices," he says.
Ramdath is a significant case says Michael Rosenberg, of McCarthy
T‚trault LLP, because it "turns the tide on misrepresentation
class actions."
He says a "chill had descended" following Justice Warren Winkler's
decision in Mouhteros v. DeVry Canada Inc., which suggested these
kind of claims would give rise to insurmountable individual
issues.
"The thaw began in 2006 with the Court of Appeal's decision in
Hickey-Button v. Loyalist College of Applied Arts and Technology,
and it culminated in Ramdath," he says.
The conclusion that damages will lie without proof of reliance
demonstrates the power of the statutory cause of action, says
Rosenberg.
At trial, Justice Edward Belobaba found the students were entitled
to the amount by which their tuition fees exceeded the value of
the educational program they received.
"It's worthwhile to note that the common issues trial in Ramdath
did not produce an award of damages for the plaintiffs, which
underscores the fact that the claim in misrepresentation may still
give rise to lingering individual issues. This is particularly
true of the common law claim. Where the auspices of the Consumer
Protection Act cannot be invoked, there's still no easy pot of
gold in misrepresentation," he said.
GERBER CHILDRENSWEAR: Sept. 16 Settlement Opt-Out Deadline Set
--------------------------------------------------------------
The purpose of this notice is to inform you that your rights may
be affected by a settlement of the lawsuit Montanez v. Gerber
Childrenswear,LLC [Case No. 2:09-CV-07420-DSF (DTBx)] pending
before the Honorable Dale S. Fischer of the United States District
Court for the Central District of California. The lawsuit asserts
that Gerber(R) Childrenswear, LLC sold certain children's clothing
with tagless labels which allegedly contained excessive amounts of
chemicals that could possibly cause skin irritation. Gerber(R)
Childrenswear denies those allegations.
The Court has not ruled on the merits of those allegations. For
settlement purposes, by Order dated April 5, 2013, the class
definition was defined as:
All Persons who purchased at retail new Gerber(R) apparel products
in the United States containing tagless labels on garments
manufactured by: (1) Jay Jay Mills (India) with "M/S Gokul" labels
from October 1, 2005 to August 2008; (2) Jay Jay Mills (India)
with redesigned "phthalate free" Gokul labels from August
2008 through September 30, 2009; and (3) Kitex from October 1,
2005 through May 20, 2009.
The parties have reached a settlement of this action, which is
described in the detailed class settlement notice that can be
downloaded at www.GCWSettlement.com. The Court has
preliminarily approved this settlement, which provides for
replacement garments, cash payments and payment of attorneys' fees
and expenses in an amount not to exceed $2 million and a $5,000
Class representative fee, all subject to the Court's approval in
its discretion. The final approval hearing has been set for 1:30
p.m. on October 7, 2013 at 255 East Temple Street, Courtroom 840,
Los Angeles, California 90012. If you are able to determine, from
review of information on your Gerber(R) garment showing where and
when it was made, that you may be a member of the Class, you have
until September 16, 2013 to file a claim form, object to the
settlement or exclude yourself from ("opt out" of) the Class.
Opting out means you do not want to be part of the Class. If you
do not opt out, you will be bound by any judgment entered in the
lawsuit and will not be able to separately assert any claims
arising from the allegations in the lawsuit. You can opt out of
the Class by sending a letter to: Montanez v. Gerber Childrenswear
Class Litigation Administrator, c/o KCC Class Action Services,
2335 Alaska Ave., El Segundo, CA 90245, postmarked on or before
September 16, 2013. If you timely opt out, the Court will exclude
you from the Class. If you do not opt out, you may have your own
lawyer appear in the lawsuit for you at your own expense. Any
objections must be filed with the Clerk of the Court and received
by counsel for the parties no later than September 16, 2013.
This notice is only a summary. A more detailed notice with
additional information (including who to contact with any
questions, or how to obtain a claim form) is available at
http://www.GCWSettlement.com or you may contact Class counsel or
1-877-520-8552 for more information.
GOOGLE INC: Settles Privacy Class Action for $8.5 Million
---------------------------------------------------------
Wendy Davis, writing for MediaPost, reports that Google has agreed
to settle a class-action lawsuit alleging that it leaked the names
of search users via referrer headers, according to court papers
filed on July 19 in San Jose, Calif.
The settlement agreement calls for Google to donate $8.5 million
to schools and nonprofit organizations, including Harvard Law's
Berkman Center for Internet and Society, Stanford Law's Center for
Internet and Society, the MacArthur Foundation, and AARP.
Google also agreed to revise its privacy policy. The settlement
agreement does not appear to require Google to change any of its
practices.
If accepted by the judge, the deal will resolve allegations that
Google violated its privacy policy by including search queries in
"referrer headers" -- information that is automatically
transmitted to sites that users click on when they leave Google.
Some queries, like users' vanity searches on their own names, can
provide clues to their identities -- although it's not always
apparent whether users are searching their own names or the names
of others.
The litigation against Google on this issue dates to 2010, when
Paloma Gaos filed suit against the company. Ms. Gaos alleged that
she conducted searches for her own name, as well as her family
members' names, and clicked on links on the Google search results.
Therefore, she argued, Google disclosed her "sensitive personal
information" to third parties by transmitting her queries in the
referrer headers.
HOMESTAKE MINING: Residents Say Uranium Mill Clean-up Too Slow
--------------------------------------------------------------
The Associated Press reports that the effort to clean up
contaminants from a tailings pile at the abandoned Homestake
uranium mill in northern New Mexico is moving too slowly, say
homeowners living near the Superfund site.
The site's owner says it expects to have the site near Milan
cleaned up by 2020, the Albuquerque Journal reported.
Sixty-two area landowners who filed a class-action lawsuit in 1983
alleged that Homestake had known for years that uranium and other
toxins were leaching into groundwater. State officials warned
residents in 1975 not to use well water for drinking or other
purposes.
Homestake settled the lawsuit in 1983 under a consent decree with
the U.S. Environmental Protection Agency. Homestake agreed to
extend Milan's water system to homes near the tailings pile and to
pay for their water until 1995. By then, Homestake assured
residents, the groundwater would be cleaned up and the wells safe
to use.
"Everybody worked for the uranium industry, so everybody assumed
the company would take care of you," said Mark Head, who bought a
house in the neighborhood in 1987.
An official for site owner Barrick Gold Corp. said the company is
using established techniques to remove uranium and other
contaminants from the tailings pile under the supervision of
federal agencies.
Meanwhile, another concern has cropped up: An EPA report released
in June showed that airborne radon from the site puts residents at
some heightened risk of cancer. But the report also notes that
radon levels should improve after the groundwater remediation
efforts are complete and a permanent covering is placed over the
tailings pile.
Homeowners say they don't want to wait. Earlier this month, they
told a top EPA official that decades of remediation efforts have
failed and that the federal agency should buy out homeowners or
relocate the tailings pile.
Homestake Mining Co. milled uranium ore at the site from 1958 to
1990. Barrick, of Toronto, Canada, acquired Homestake in 2001 as
a wholly owned subsidiary.
Today, the site contains two unlined tailings piles that cover a
combined 255 acres and contain an estimated 22 million tons of
processed uranium ore tailings, according to the EPA.
A variety of techniques have been used to remediate the site since
the 1980s. Chief among them are "injection-extraction" techniques
that inject fresh water into and around the pile, then extract the
water for treatment, according to Barrick officials and EPA
records.
Once extracted, some contaminated water is treated at a reverse-
osmosis plant and reinjected into the ground to create a hydraulic
barrier. Untreated water is put into a lined evaporation pond
designed to concentrate harmful materials, said Alan Cox, manager
of the Homestake reclamation project and a Barrick employee.
Ultimately, the evaporation pond will be capped.
The EPA estimated in 2011 that some 3 billion gallons of
contaminated water had been extracted at the site since 1977.
"We have removed quite a mass of uranium from the tailings pile,"
Cox said. Once the contaminants are removed, he said, "it is
taken out of the equation as far as providing a long-term source
of contaminant migration to the groundwater."
Barrick expects to finish groundwater remediation by 2020, Cox
said, subject to approval by federal agencies.
Homeowners say they no longer believe flushing and injection-
extraction techniques will protect their groundwater.
INDIANA: BMV Halts Vanity Plates Amid Free-Speech Class Action
--------------------------------------------------------------
The Associated Press reports that Indiana will stop offering
vanity plates until the outcome of a class-action lawsuit
challenging the constitutionality of the agency's restrictions on
tags' wording.
Bureau of Motor Vehicles Commissioner R. Scott Waddell announced
the move on July 19.
A Greenfield police officer sued the BMV in May, saying its
decision to revoke his vanity license plate "0INK" violated his
free-speech rights. The agency revoked his plate after three
years, saying its content was "offensive or misleading."
Similar lawsuits have been filed in several states over plates
endorsing religion, marijuana and gay rights.
Last month, Georgia announced new rules banning references to
guns, drugs, sex and variations of the word "hate" on personalized
plates as a result of a settlement with a motorist who was denied
a tag spelling out GAYGUY.
INTEGRATED HEALTHCARE: Discovery in Consolidated Suit Ongoing
-------------------------------------------------------------
Discovery is ongoing in the consolidated class action lawsuit
against Integrated Healthcare Holdings, Inc., according to the
Company's June 28, 2013, Form 10-K filing with the U.S. Securities
and Exchange Commission for the year ended March 31, 2013.
On June 5, 2009, a potential class action lawsuit was filed
against the Company by Alexandra Avery. Ms. Avery purports to
represent all 12-hourly employees and the complaint alleges causes
of action for restitution of unpaid wages as a result of unfair
business practices, injunctive relief for unfair business
practices, failure to pay overtime wages, and penalties associated
therewith. On December 23, 2009, the Company filed an answer to
the complaint, generally denying all of the plaintiff's
allegations. On January 25, 2010, a potential class action
lawsuit was filed against the Company by Julie Ross. Ms. Ross
purports to represent all similarly-situated employees and the
complaint alleges causes of action for violation of the California
Labor Code and unfair competition law. On September 3, 2010, the
plaintiffs in both the Avery and Ross actions filed a consolidated
complaint (the "Consolidated Complaint") that alleges the causes
of action found in the initial Ross complaint. On October 12,
2010, the Company filed an answer to the Consolidated Complaint,
which generally denied all allegations. On July 18, 2011, the
Company filed a motion to compel arbitration of the matter, which
was denied on October 21, 2011. The Company appealed this
decision and the Court of Appeal decided against the Company on
June 26, 2013.
The Company says it intends to vigorously defend itself in
connection with the claims in the Consolidated Complaint.
Discovery is ongoing and at this stage in the proceedings, the
Company is unable to determine the cost of defending this lawsuit
or the impact, if any, this action may have on its results of
operations.
Integrated Healthcare Holdings, Inc. -- http://www.ihhioc.com/--
is a predominantly physician owned company that, on March 8, 2005,
acquired and began operating four hospital facilities in Orange
County, California: 282-bed Western Medical Center in Santa Ana,
188-bed Western Medical Center in Anaheim, 178-bed Coastal
Communities Hospital in Santa Ana and 114-bed Chapman Medical
Center in Orange. The Company was incorporated in Nevada and is
headquartered in Santa Ana, California.
KIDCO INC: Recalls Safeway Expansion Gates
------------------------------------------
Starting date: July 23, 2013
Posting date: July 23, 2013
Type of communication: Consumer Product Recall
Subcategory: Children's Products, Household Items
Source of recall: Health Canada
Issue: Product Safety
Audience: General Public
Identification number: RA-34703
Affected products: Safeway Expansion Gates by KidCo Inc.
The recall involves 2012 and 2013 KidCo Safeway Expansion Gates.
Health Canada's sampling and evaluation program has determined
that these products do not meet the requirements for expansion
gates under Canadian law.
The plastic end caps located on the upper and lower horizontal
bars may separate, and these small components may pose a choking
hazard to young children.
Pictures of the recalled products are available at:
http://is.gd/jzSqx4
Health Canada has not received any reports of incidents or
injuries to Canadians related to the use of these expansion gates.
Since January 2012, approximately 11,900 expansion gates were
distributed in Canada, of which there were 9200 of the G2001
model, and 2700 of the G2000 model.
The recalled gates were manufactured in China and sold in Canada
from January 1, 2012 to May 28, 2013.
Companies
Distributor KidCo Inc.
Libertyville
Illinois
United States
Consumers should stop using the recalled expansion gates
immediately and contact KidCo for a retrofit repair kit. For more
information, consumers may contact KidCo at 1-855-847-8600, or
visit firm's website.
KIDS II: Recalls Baby Einstein Activity Jumpers Due Impact Hazard
-----------------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
Kids II Inc., of Atlanta, Ga., announced a voluntary recall of
about 400,000 and 8,500 in Canada Baby Einstein Musical Motion
Activity Jumpers.
The "sun" toy attachment on the activity jumper can rebound with
force and injure the infant, posing an impact hazard.
The firm has received 100 reports of incidents including 61
injuries. Reported injuries include bruises, lacerations to the
face, a 7-month-old boy who sustained a lineal skull fracture and
a chipped tooth to an adult.
The recall includes Baby Einstein Musical Motion Activity Jumpers
with model number 90564. The model number can be found on a tag
attached to the underside of the seat. These stationary activity
centers have a support seat covered in blue fabric attached to a
large white metal frame and include a variety of brightly colored
toys surrounding the seat. The yellow sun toy is attached to the
seat frame on a flexible stalk with either three or five brightly
colored rings. A date code is located in the lower right corner
of the sewn in label on the back of the blue seat pad. The
following date codes, indicating a manufacture date prior to
November 2011, are included in the recall: OD0, OE0, OF0, OG0,
OH0, OI0, OJ0, OK0, OL0, OA1, OB1, OC1, OD1, OE1, OF1, OG1, OH1,
OI1, OJ1 and OK1.
Pictures of the recalled products are available at:
http://is.gd/sWdo9x
The recalled products were manufactured in China and sold at
Target, Toys R Us and other retails stores nationwide and online
at Amazon.com between May 2010 and May 2013 for about $90.
Consumers should immediately stop using the product and contact
Kids II for a replacement toy attachment.
KIT DIGITAL: Signs MOU to Settle Consolidated Securities Suit
-------------------------------------------------------------
KIT Digital, Inc., a global provider of digital television and
media solutions disclosed in its June 28, 2013, Form 8-K filing
with the U.S. Securities and Exchange Commission that it recently
signed a memorandum of understanding to settle a series of federal
securities lawsuits filed against it and certain of its current
and former officers and directors.
The lawsuits concerned conduct that was alleged to have occurred
between 2008 and 2011. The Company said the MOU is an important
milestone as it continues to build momentum for a successful
future.
The settlement embodied in the MOU will fully resolve four
putative class actions that were filed in the United States
District Court for the Southern District of New York (the "Court")
and subsequently combined by the Court into a consolidated action
with the caption In re KIT Digital, Inc. Securities Litigation, 12
Civ. 4199 (the "Consolidated Action"). The Consolidated Action,
which was brought on behalf of all persons who purchased or
otherwise acquired KIT stock during the period between May 19,
2009, and November 21, 2012 (the "Class"), alleged violations of
federal securities law arising from, among other things, alleged
accounting issues, material weaknesses in the internal controls
and financial reporting at KIT, certain acquisition transactions
that KIT consummated during 2008-2011, and other events from that
time period. As contemplated in the MOU, KIT's insurers will pay
approximately $6 million (the "Settlement Amount") to settle all
claims of the Class, and all parties will execute mutual releases.
KIT and the other defendants will have no obligation to fund any
part of the Settlement Amount and any fee award to plaintiffs'
counsel would be paid from the Settlement Amount.
KIT digital Interim CEO, Peter Heiland said: "The federal
securities lawsuits, which concerned conduct under KIT's prior
management, have been a significant distraction to the business,
hindering its ability to attract capital and grow according to its
real capability. Resolving these lawsuits signifies the Company's
continued progress towards putting the company back on its feet
and freeing the company to focus solely on delivering the best in
cutting-edge video software and services.
Along with the chapter 11 Plan of Reorganization that's
progressing in a way that we're confident will satisfy creditors
-- as well as shareholders keen to invest in the reorganized KIT
business, Piksel -- the signing of this MOU is yet a further
indication that I think we're finally seeing blue sky ahead."
KIT's entry into the MOU is not an admission of any fault,
wrongdoing, or liability for the claims and damages asserted in
the Consolidated Action. The settlement embodied in the MOU is
subject to execution of all necessary documents, including a
formal stipulation of settlement, as well as all necessary court
approvals.
About KIT Digital Inc.
KIT Digital, Inc., -- http://www.kitd.com/-- is a leading video
management software and services company. With its proprietary
OVP and OTT platform products, Cloud and Cosmos, as well as
systems integration and solutions design expertise, KIT delivers
complete video solutions to clients, helping to power the
transformation from traditional broadcast to multiscreen broadband
TV. KIT digital services nearly 2,500 clients in 50+ countries
including some of the world's biggest brands, such as Airbus, The
Associated Press, AT&T, BBC, BSkyB, Disney-ABC, Google, HP, MTV,
News Corp, Sky Deutschland, Sky Italia, Telecom Argentina, Telecom
Italia, Telefonica, Universal Studios, Verizon, Vodafone VRT and
Volkswagen. KIT digital maintains headquarters in New York City
with offices around the world.
JOHNSON & JOHNSON: Settles Securities Class Action Over Recall
--------------------------------------------------------------
Lucy Campbell, writing for LawyersandSettlements.com, reports that
a proposed settlement has been reached in the securities class
action pending against Johnson & Johnson Inc. The lawsuit stems
from the 2010 recalls of over 40 nonprescription drugs from the
market by J&J, during what has been described as by the Food and
Drug Administration (FDA) as the largest recall of children's
medicine in the history of the agency.
The 40 nonprescription drugs for children included Tylenol and
Motrin, and Benadryl. The recalls were prompted by FDA
inspections at J&J subsidiary McNeil Consumer Healthcare's Fort
Washington, Pennsylvania, plant, which found several problems
including bacterial contamination of ingredients and filthy
equipment. The facility was later shut down, and J&J was facing
possible criminal charges.
According to a report on CNN.com, a 17-page document chronicled 20
violations uncovered at the Fort Washington, PA plant.
David Lebo, professor of pharmaceutical manufacturing at Temple
University, told CNN in an earlier interview that the report is
"absolutely shocking" and "pretty close to being the worst I've
seen. It suggests that basically the FDA found an issue with
almost every system at the plant." One of the most frightening
findings listed in the report is that the plant didn't appear to
maintain adequate facilities on-site for testing and approval or
rejection of the components used in the medicines it manufactured.
Following the recall, J&J closed the Fort Washington plant.
The report also noted that McNeil had not followed up on 46
consumer complaints it had received between June 2009 and April
2010, complaints that mentioned the presence of foreign materials
and black or dark specks in the medicines.
A securities class action was subsequently filed by J&J
shareholders alleging the company had cut back on quality-control
measures prior to the recalls, and took steps to conceal that from
investors and the public. Once the extent of the recalls came to
light, share prices fell, investors said.
The proposed settlement was filed on July 22 and must be approved
by the judge overseeing the case. Johnson & Johnson did not admit
any liability or wrongdoing in the settlement, court filings said.
LEHMAN BROTHERS: LBI Trustee Objects to Countrywide Class Claims
----------------------------------------------------------------
James W. Giddens, the trustee for the SIPA liquidation of Lehman
Brothers Inc. ask the U.S. Bankruptcy Court for the Southern
District of New York to disallow and expunge the general creditor
claim filed by Thomas DiNapoli and others as "Lead Plaintiffs" on
behalf of a putative class represented by Claim No. 5528.
The Claimant filed a general creditor proof of claim against the
LBI estate on behalf of a putative class "of all persons who
purchased or otherwise acquired the publicly traded securities of
Countrywide Financial Corporation between March 12, 2004 and
March 7, 2008." The Claim seeks an unliquidated amount, "for
damages resulting from violations of certain federal securities
laws" arising from LBI's role in the purchase of certain CFC
securities.
The LBI Trustee has determined that there is no legal or factual
justification for the Claim, pointing out that the Claimant has
settled its claims in the CFC Litigation through the June 29,
2010, settlement agreement. The purpose of the settlement
agreement is stated to be "to fully and finally compromise,
resolve, discharge, release and settle," all claims alleged in the
CFC Litigation for $624 million. LBI was dropped from the CFC
Litigation due to the automatic stay and the Lead Plaintiffs and
all class members (except for 41 who opted out) released their CFC
claims.
The CFC Litigation is In re: Countrywide Financial Corp. Sec.
Litig., Lead Case No. CV-07-CIV-05295-MRP (MANx) (C.D. Cal.) Mr.
DiNapoli is the New York State Comptroller.
A hearing on the objection will be held on Aug. 21, 2013, at 10:00
a.m. (Prevailing Eastern Time). Responses are due July 24.
About Lehman Brothers
Lehman Brothers Holdings Inc. -- http://www.lehman.com/-- was the
fourth largest investment bank in the United States. For more
than 150 years, Lehman Brothers has been a leader in the global
financial markets by serving the financial needs of corporations,
governmental units, institutional clients and individuals
worldwide.
Lehman Brothers filed for Chapter 11 bankruptcy on September 15,
2008, the largest in U.S. history. Several other affiliates
followed thereafter. On March 6, 2012, Lehman Brothers emerged
from bankruptcy protection.
MEDICIS PHARMACEUTICAL: Faces Antitrust Suit Over Solodyn Drug
--------------------------------------------------------------
United Food and Commercial Workers Local 1776 & Participating
Employers Health and Welfare Fund, on behalf of itself and all
others similarly situated v. Medicis Pharmaceutical Corp., Impax
Laboratories, Inc., Lupin Limited, Lupin Pharmaceuticals Inc.,
Sandoz Inc., Mylan Inc., Matrix Laboratories Ltd., Teva
Pharmaceutical Industries, Ltd., Teva Pharmaceuticals USA, Inc.,
Barr Laboratories, Inc., Ranbaxy Pharmaceuticals, Inc., Ranbaxy
Inc., Ranbaxy Laboratories, Ltd., and Valeant Pharmaceuticals
International, Inc., Case No. 2:13-cv-04235-JCJ (E.D. Pa.,
July 22, 2013) is a civil antitrust action seeking treble damages
and other relief arising out of the Defendants' alleged
overarching anticompetitive scheme to exclude competition from the
market for minocycline hydrochloride extended release tablets, a
prescription drug for the treatment of acne marketed by Medicis
under the brand name Solodyn.
The Plaintiff brings the class action lawsuit on behalf of all
consumers and third party payors (collectively the "End-Payor
Class") in the United States and the District of Columbia and
Puerto Rico, who purchased or paid for branded and generic Solodyn
products, other than for re-sale, since December 2008. The
Plaintiff alleges that Medicis orchestrated a multi-faceted
scheme, undertaken alone and with, between, and among the Generic
Defendants, to improperly restrain trade, and maintain, extend,
and abuse Medicis's monopoly power in the market for minocycline
hydrochloride extended release tablets to the detriment of the
Plaintiff and the class of end-payor purchasers it seeks to
represent, causing them to pay overcharges.
UFCW maintains its principal place of business in Plymouth
Meeting, Pennsylvania. The Plaintiff has purchased and provided
reimbursement for some or all of the purchase price of Solodyn,
other than for re-sale, at supra-competitive prices during the
Class Period, and has thereby been injured.
Medicis is a brand drug manufacturer incorporated under the laws
of Delaware and headquartered in Scottsdale, Arizona. Medicis
develops, manufactures, and markets pharmaceuticals and related
products in the United States. Impax is a Delaware corporation
headquartered in Hayward, California. Impax is in the business of
developing, manufacturing, and marketing pharmaceutical products,
primarily generic products, in the United States. Teva USA is a
Delaware corporation headquartered in North Wales, Pennsylvania.
Teva USA is in the business of developing, manufacturing, and
marketing pharmaceutical products, primarily generic products, in
the United States. Teva USA is a wholly owned subsidiary of Teva
Pharmaceutical Industries Ltd., a corporation headquartered in
Petach Tikva, Israel. Teva Pharmaceutical is engaged in the
development, manufacturing, marketing, and distribution of
pharmaceuticals. Through its subsidiaries, a large portion of
Teva Pharmaceutical's sales are in the United States, and Teva
Pharmaceutical has major manufacturing operations in the United
States. Barr is a wholly owned subsidiary of Teva Pharmaceuticals
and is a Delaware corporation with offices located in Woodcliff
Lake, New Jersey. Barr is in the business of developing,
manufacturing, and marketing pharmaceutical products, primarily
generic products, in the United States.
Mylan Inc. is a generic drug manufacturer incorporated under the
laws of the Commonwealth of Pennsylvania, with its principal place
of business in Canonsburg, Pennsylvania. Mylan is in the business
of developing, manufacturing, and marketing pharmaceutical
products, primarily generic products, in the United States.
Matrix Laboratories is a majority owned subsidiary of Mylan Inc.
with its principal place in Secunderabad, India. Lupin Limited is
a business entity organized under the laws of India headquartered
in Mumbai, Maharashtra, India. Lupin Pharmaceuticals is a
Virginia corporation headquartered in Baltimore, Maryland. Lupin
Pharmaceuticals is in the business of developing, manufacturing,
and marketing pharmaceutical products, primarily generic products,
in the United States.
Ranbaxy Pharmaceuticals, Inc. is a company organized and existing
under the laws of Florida, with its principal place of business in
Jacksonville, Florida. Ranbaxy Pharmaceuticals is a wholly-owned
subsidiary of Ranbaxy Laboratories Limited, a public limited
liability company organized the laws of India, with its principal
place of business located in Gurgaon-122001 (Haryana), India.
Ranbaxy, Inc. is a Delaware corporation headquartered in
Princeton, New Jersey. Ranbaxy is engaged in the worldwide
production and distribution of pharmaceuticals, primarily generic
products, including in the United States.
Sandoz is a Colorado corporation headquartered in Princeton, New
Jersey. Sandoz is in the business of developing, manufacturing,
and marketing pharmaceutical products, primarily generic products,
in the United States. Valeant is a Canadian corporation
headquartered in Quebec, Canada. Valeant's United States
headquarters are located in Bridgewater, New Jersey. Valeant
acquired Medicis in an all-cash transaction in December 2012. The
combined company's commercial dermatology operations are located
in Scottsdale, Arizona, and operate under the name Medicis, a
division of Valeant, with its dermatology research and development
operations in Laval, QC, Scottsdale, AZ, and Petaluma, CA, and
corporate support functions primarily based in New Jersey.
The Plaintiff is represented by:
Natalie Finkelman Bennett, Esq.
James C. Shah, Esq.
Eric L. Young, Esq.
SHEPHERD, FINKELMAN, MILLER & SHAH, LLP
35 East State Street
Media, PA 19063
Telephone: (610) 891-9880
Facsimile: (610) 891-9883
E-mail: nfinkelman@sfmslaw.com
jshah@sfmslaw.com
eyoung@sfmslaw.com
- and -
Steve D. Shadowen, Esq.
HILLIARD & SHADOWEN LLC
39 West Main Street
Mechanicsburg, PA 17055
Telephone: 1-855-344-3298
E-mail: steve@hilliardshadowenlaw.com
- and -
Anne K. Fomecker, Esq.
Daniel Gonzales, Esq.
HILLIARD & SHADOWEN LLC
919 Congress Ave., Suite 1325
Austin, TX 78701
Telephone: 1-855-344-3298
E-mail: anne@hilliardshadowenlaw.com
daniel@hilliardshadowenlaw.com
- and -
David A. Balto, Esq.
Bradley A. Wasser, Esq.
LAW OFFICES OF DAVID A. BALTO
1350 I Street, N.W., Suite 850
Washington, DC 20005
Telephone: (202) 789-5424
E-mail: david.balto@dcantitrustlaw.com
- and -
Rose F. Luzon, Esq.
SHEPHERD, FINKELMAN, MILLER & SHAH, LLP
401 A Street, Suite 2350
San Diego, CA 92101
Telephone: (619) 235-2416
E-mail: rluzon@sfmslaw.com
MIRVAC GROUP: Waverley Park Residents Can't Afford Legal Counsel
----------------------------------------------------------------
Julia Rabar, writing for Waverley Leader, reports that the dispute
between real estate giant Mirvac and disgruntled Waverley Park
Estate residents has reached David and Goliath proportions,
according to the residents action group.
Waverley Park Residents Action Group spokesman John Lourens said
Mirvac's appointment of ex-Liberal MP Bill Forwood to the case had
driven him to despair.
"Everything seems to be loaded in their favor," Mr. Lourens said.
Mirvac was granted a planning permit for the Mulgrave site in
2002, on the condition that high-tension powerlines be moved
underground -- a permit Mirvac is now seeking to amend.
Residents had considered a class action, but Mr. Lourens said they
could not afford legal representation.
"What would fill the bill here is to engage a top-flight planning
barrister," he said.
"But the fact is we're just a bunch of Davids, if you like, with
our own families and jobs. We can't afford it."
Mirvac spokesman Gary Flowers said the application to amend the
planning permit would be advertised within weeks, giving residents
an opportunity to make submissions. He said Mirvac had been
"upfront and open" with residents and was "not seeking to have
this decision pushed through with undue haste".
"Mirvac is concerned some residents have been subject to
misinformation relating to its proposed amendment to the Waverley
Park Planning Permit," Mr. Flowers said. He said the appointment
of Mr. Forwood was in keeping with standard practice.
Mr. Flowers said Mirvac was prepared to take the proposed
amendment to the Victorian Civil and Administrative Tribunal.
Opposition Leader and Mulgrave state Labor MP Daniel Andrews said
he would work with Mayor Micaela Drieberg to organise a meeting
for residents.
"There seems to be no support for Waverley Park Estate residents
and without that support no alterations should be made to the
planning scheme," Mr. Andrews said.
Earlier this month, Monash Cr Robert Davies called for an
independent referee to manage the brewing showdown between Mirvac
and residents.
MORGAN COUNTY, MO: ACLU Files Class Action v. County Jail
---------------------------------------------------------
The Associated Press reports that the American Civil Liberties
Union alleges that Morgan County officials are violating people's
constitutional rights by confiscating mail sent to jail detainees.
The St. Louis-based ACLU of Eastern Missouri filed a federal
lawsuit and asked a judge to certify the case as a class action.
The ACLU also is seeking a preliminary injunction.
The five-page lawsuit says the main issue is that officials don't
inform the sender of confiscated mail or give them a chance to
fight the decision.
The ACLU said the lawsuit was filed on behalf of an Oregon
resident who has regularly sent letters, articles and books to a
Morgan County Adult Detention Center detainee. A phone message
The Associated Press left at the jail wasn't immediately returned.
NAN FAR: Recalls Rockland Furniture Cribs Due to Choking Hazard
---------------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
Nan Far Woodworking, of Taiwan, announced a voluntary recall of
about 3,900 Rockland Furniture round cribs. Consumers should stop
using this product unless otherwise instructed. It is illegal to
resell or attempt to resell a recalled consumer product.
The crib's drop-side rails can malfunction, detach or otherwise
fail. When this happens, the drop-side rail can fall out of
position and create a space where an infant or toddler can become
wedged or entrapped, posing a risk of strangulation or
suffocation. A child can also fall out of the crib. In addition,
drop-side related incidents can also occur due to incorrect
assembly and with age-related wear and tear.
There were no incidents that were reported.
The recall involves Rockland Furniture round cribs with model
number 343-8314. The model number is printed on a label located
on the inner-lower portion of the crib rail. The cribs are 44 1/2
inches in diameter and were sold in white, ebony and cherry
finishes.
Pictures of the recalled products are available at:
http://is.gd/lugqTX
The recalled products were manufactured in Taiwan and sold
exclusively at JCPENNEY stores and online at jcpenney.com from
January 2005 to December 2008 for about $400.
Consumers should immediately stop using the recalled cribs and
contact Rockland Furniture for a free repair kit that will
immobilize the drop-side rail. Until the crib is repaired,
consumers should find an alternate, safe sleep environment for the
child such as a bassinet, play yard or toddler bed, depending on
the child's age.
NAT'L COLLEGIATE: Ex-UGA Trainer Clarifies Suit-Linked E-mail
-------------------------------------------------------------
Marc Weiszer, writing for Online Athens, reports that a former
Georgia assistant football trainer who told the NCAA in an e-mail
that athletes returned to games after concussions said in an
interview he was referring to opposing teams during his career and
not anyone that played for Georgia.
Dean Crowell told the Athens Banner-Herald on July 21: "Let me be
clear about that. It was not one of my athletes and it was not
one of my athletes at UGA. It was just a personal observation I
had seen during my career. . . . It wasn't someone on a team at
an institution that I was working at. It was an opponent."
Mr. Crowell worked at Georgia during the 2007-09 football seasons.
He was also an athletic trainer at North Carolina (2003-07),
Rutgers (2001-03) and Dartmouth (2000-01).
Mr. Crowell's name first surfaced in a report by The Washington
Times as part of documents that raised questions about the NCAA's
handling of concussions. The newspaper obtained more than 1,000
pages of internal NCAA documents filed in federal court in Chicago
as part of a motion seeking class-action status in a lawsuit
against the governing body's handling of head injuries.
Mr. Crowell wrote about potential NCAA concussion legislation in a
2009 e-mail in which he wrote that "we all know that there are
times where athletes are returned to games with concussions. I
personally have seen an athlete knocked unconscious and return in
the same quarter in recent years."
Mr. Crowell is now in physician assistant school at the Emory
University School of Medicine.
"I don't want to get into where it was and who it was," he said.
"I'm concerned about violating (patient privacy under) HIPAA for
that athlete."
An internal NCAA survey from 2010 found that nearly half of
college trainers who responded to a survey indicated they put
athletes showing signs of a concussion back into the same game,
according to The Associated Press. Concussion authority Robert
Cantu said it's "well-settled in the scientific community that an
athlete must never be returned to play on the same day after a
concussion diagnosis," according to the AP.
Mr. Crowell said that Georgia, under director of sports medicine
Ron Courson "is one of the leaders in concussion management. We
had protocols and safeguards in place where that would never
occur. . . UGA is one of the leading research institutions for
concussions, and Ron is one of the leading figures in the health
and safety of student-athletes nationally."
Georgia's sports medicine department held a conference last year
on the management of sports-related concussions. Mr. Courson also
assembled a presentation to the media with head trauma experts who
work with the Athletic Association.
UGA athletes are educated on concussions at the start of each
school year.
The NCAA has taken steps to protect student-athletes from head
injuries and player safety is among its core principals, the NCAA
told the AP. The NCAA announced in on July 19 it has awarded a
$399,999 grant to leading concussion researchers to help pay for a
study in the long-term effects of head injuries in college
athletes.
SEC commissioner Mike Slive said that he has written to NCAA
president Mark Emmert to share the view of conference presidents
and chancellors that the NCAA must lead and organize a national
effort on concussions. He called for further scientific research,
determining and refining the best practices for care and
prevention of concussions, disseminating information to NCAA
members and continuing to review and revise playing rules.
NAT'L COLLEGIATE: Aware of Concussion Issues, Documents Reveal
--------------------------------------------------------------
Newly filed documents in a proposed class-action lawsuit brought
against the National Collegiate Athletic Association (NCAA) reveal
internal emails and other new evidence of the NCAA's knowledge of
and failure to mitigate concussions in college sports, according
to attorneys for the plaintiffs at Hagens Berman Sobol Shapiro
LLP.
The plaintiffs in the case, four former college athletes, claim
that the NCAA neglects its duty to protect athletes participating
in NCAA-sanctioned events from concussions. They are asking the
court to award damages to student-athletes who suffered
concussions as well as force the NCAA to adopt corrective
measures, including a medical monitoring program supervised by the
court, to mitigate concussions.
The documents, filed in U.S. District Court in Illinois, include a
motion asking the court to certify a class of thousands of college
athletes, the next step in moving the litigation forward to trial.
They also include new information detailing what the NCAA knew
regarding the incidence and severity of concussions and its
alleged failure to take action to solve the problem.
The filing details two studies that the NCAA conducted on
concussions beginning in 1997. The studies, published in 2003,
included the following information:
-- NCAA member institutions were allowing student-athletes to
return to play after an average of less than five days after a
diagnosed concussion, despite the fact that the impacts of a
concussion can take up to seven days to resolve.
-- Approximately 300,000 "sport-related concussions occur
annually in the United States."
-- According to the study, "players with a history of previous
concussions are more likely to have future concussive injuries
than those with no history."
The filing details data from the NCAA's Injury Surveillance
System. That system, according to court documents, showed nearly
30,000 estimated concussions at NCAA member institutions from
2004-2009.
It also explains the results of a survey the NCAA sent to its
member schools in 2010. According to documents filed by
attorneys, the survey results revealed that:
-- One-third of schools did not perform baseline testing for
some sports.
-- Less than half of schools confirmed that a physician is
required to see all student-athletes with a concussion.
-- 39 percent of schools reported that they do not have
established return-to-play guidelines.
-- Almost half reported that student-athletes were allowed to
return-to-play in the same game after a concussion diagnosis.
-- Only 13 percent of student-athletes were required to receive
education on the dangers of concussions in the past two years.
"The NCAA cannot say that they were caught off guard by a virtual
epidemic of concussions across a number of sports," said
Steve Berman, managing partner of Hagens Berman and an attorney
for the plaintiffs. "They knew the extent of the problem, but
dragged their feet in dealing with it, even as the evidence became
more and more clear."
The documents also include information about the NCAA's response
to the data. For instance, according to court documents, the NCAA
added a requirement that all member schools have a concussion
management plan on file, but then failed to enforce it.
An email from Chris Strobel, NCAA Director of Enforcement,
concluded that even if a coach forced a student to play after
having a concussion, the NCAA would not take action against the
coach for violating its concussion management plan, according to
attorneys.
"Despite all of this evidence, the NCAA has still not taken
serious action to prevent and treat concussions," said
Mr. Berman. "Education is lackluster and inconsistent; student-
athletes are often forced to pay medical bills for injuries
resulting from on-the-field concussions, and lose their
scholarships after they are injured. The bottom line is that
student-athletes are treated more like Roman gladiators than
students whose primary objectives ought to be academic, not
athletic."
More information about this case, including the documents filed in
court, can be found at http://is.gd/yy6LIy
About Hagens Berman
Seattle-based Hagens Berman Sobol Shapiro LLP --
http://www.hbsslaw.com-- represents consumers, whistleblowers,
investors, workers and others in complex and class-action
litigation.
NEW SOUTH WALES: Ex-Camden Students Mull Chemical Exposure Suit
---------------------------------------------------------------
Mitchell Nadin, writing for The Australian, reports that former
students who claim they were exposed to chemicals at their Sydney
high school, which was built on a gasworks, are threatening legal
action against the NSW Education Department.
The students told ABC's 7.30 last night they were exposed to toxic
chemicals at Camden High School, leading to chronic illnesses,
birth abnormalities, cancer and brain tumors. Built in the 1950s,
Camden High School was located on top of a former gas-works. The
school was moved more than 40 years later when chemicals were
discovered.
"We've actually had relatives of 16 per cent of the people in
touch with us come forward and suggest that those people have died
as a result of illnesses contracted at this site," lawyer Jim
Marsden, who is representing about 70 people in the class action,
told the ABC. "If ultimately we find that a department or a
number of departments are responsible and . . . there has been
illness caused as a result of these contaminations . . . whoever
was responsible must be held to account."
Rachel Dowling attended the school in the 80s and blamed chemicals
for her thyroid cancer: "There was always an egg smell, and I
always thought that the bunsen burner gas taps had been left on or
leaking."
NOVO NORDISK: Prandin(R)-Related Antitrust Suit Remains Stayed
--------------------------------------------------------------
An antitrust class action lawsuit brought by direct purchasers of
Novo Nordisk A/S's Prandin(R) product remains stayed, according to
the Company's June 28, 2013, Form 20-F/A filing with the U.S.
Securities and Exchange Commission for the year ended December 31,
2012.
In June 2005, Novo Nordisk filed a patent infringement lawsuit
against Caraco Pharmaceutical Laboratories, Ltd. ('Caraco'), a
generic pharmaceutical company, and its Indian parent, Sun
Pharmaceutical Industries, Ltd., in the U.S. District Court for
the Eastern District of Michigan regarding Caraco's abbreviated
new drug application ('ANDA') for a generic version of Prandin(R)
(repaglinide). In January 2011, the District Court ruled that
Novo Nordisk's U.S. Patent No. 6,677,358 (the '358 patent'), which
is directed toward the use of repaglinide in combination with
metformin for the treatment of type 2 diabetes, is invalid and
unenforceable. Novo Nordisk immediately appealed this decision on
the merits to the U.S. Court of Appeals for the Federal Circuit.
Briefing in the appeal is completed; oral argument is expected to
occur in Q1 2013, with a decision mid 2013.
Novo Nordisk is involved in patent infringement litigation with
three additional ANDA applicants for generic versions of
Prandin(R): Paddock Laboratories, Aurobindo Pharma Ltd. and Sandoz
Inc. The collateral estoppel decision in the Paddock case has
been appealed to the Federal Circuit and will be taken up by the
Federal Circuit as a companion case to the Caraco appeal, with
oral argument following the Caraco oral argument. The collateral
estoppel decision in the Aurobindo case has been appealed to the
Federal Circuit and is stayed pending the Federal Circuit appeal
of the decision on the merits in the Caraco case. Cases involving
Sandoz in the U.S. District Courts for the Eastern District of
Michigan and New Jersey are stayed pending the Federal Circuit
appeal of the decision on the merits in the Caraco case.
Additionally, Novo Nordisk is involved in a patent infringement
lawsuit with Lupin Ltd. in the U.S. District Court for the
Southern District of New York in which Novo Nordisk asserts that
Lupin's ANDA for a generic version of PrandiMet(R)
(repaglinide/metformin HCl) infringes Novo Nordisk's '358 patent.'
This case is stayed pending the Federal Circuit appeal of the
decision on the merits in the Caraco case.
Also pending before the District Court for the Eastern District of
Michigan is a consolidated class action where a putative class of
direct purchasers of Prandin(R) asserts that Novo Nordisk has
violated U.S. antitrust laws in delaying the entry of generic
versions of Prandin(R). This case is stayed pending the Federal
Circuit appeal of the decision on the merits in the Caraco case.
At present, the Company says it is unclear whether or when a
generic version of Prandin(R) or PrandiMet(R) will be available in
the U.S. market.
Novo Nordisk does not expect the pending claims related to
Prandin(R) to have a material impact on Novo Nordisk's financial
position, operating profit or cash flow.
Headquartered in Bagsvaerd, Denmark, Novo Nordisk A/S operates in
two business segments based on therapies: Diabetes care and
Biopharmaceuticals. The Diabetes care business segment includes
research, development, manufacturing and marketing of products
within the areas of insulin, GLP-1 and related delivery systems,
oral antidiabetic products and obesity. The Biopharmaceuticals
business segment includes research, development, manufacturing and
marketing of products within the areas of haemophilia, growth
hormone therapy, hormone replacement therapy, inflammation therapy
and other therapy areas.
OMNIVISION TECHNOLOGIES: Securities Litigation Remains Pending
--------------------------------------------------------------
The consolidated securities lawsuit titled In re OmniVision
Technologies, Inc. Litigation remains pending in California,
according to the Company's June 28, 2013, Form 10-K filing with
the U.S. Securities and Exchange Commission for the year ended
April 30, 2013.
On October 26, 2011, the first of several putative class action
complaints was filed in the United States District Court for the
Northern District of California against the Company and three of
its executives, one of whom is a director. All of the complaints
alleged that the defendants violated the federal securities laws
by making misleading statements or omissions regarding the
Company's business and financial results, in particular regarding
the use of its imaging sensors in Apple Inc.'s iPhone. These
actions have been consolidated as In re OmniVision Technologies,
Inc. Litigation, Case No. 11-CV-5235 (RMW) (the "Securities
Case"). On April 23, 2012, the plaintiffs filed a consolidated
complaint on behalf of a purported class of purchasers of the
Company's common stock between August 27, 2010, and November 6,
2011, seeking unspecified damages. On March 29, 2013, the court
denied the defendants' motion to dismiss. No trial date has been
set. The Company says it is currently unable to predict the
outcome of this action and therefore cannot determine the
likelihood of loss nor estimate the loss or a range of possible
loss.
OmniVision Technologies, Inc., -- http://www.ovt.com/-- designs,
develops and markets high-performance, highly integrated and cost-
efficient semiconductor image-sensor devices. The Company's main
products, image-sensing devices referred to as CameraChip(TM)
image sensors, capture an image electronically and are used in a
number of consumer and commercial mass-market applications. The
Company is headquartered in Santa Clara, California.
PACIFIC GAS: Hinkley Residents File New Class Action
----------------------------------------------------
Desert Dispatch reports that a new class action lawsuit
representing at least 100 Hinkley residents who were not apart of
the original litigation against Pacific Gas and Electric, was
recently filed in San Bernardino County Court, according to the
lead attorney on the case.
The plaintiffs represented by Santa Ana-based law firm Callahan &
Blaine are seeking compensation for the most recent impact to
Hinkley residents as a result of the expanding plume boundary and
existing groundwater contamination, attorney Javier van Oordt said
on July 22.
"There's different potential options for what they can recover,"
van Oordt said. "The idea is that they get more value than what
PG&E is paying (for homes). . . The value they've been paying has
been depressed."
Hinkley residents who have recently discovered harmful levels of
chromium 6 in their soil and water supply as a result of the plume
expansion are included in the plaintiff list, he said. Many who
have received buyout offers were paid out in amounts significantly
lower than what their homes were valued for in the past, he said.
PG&E spokesman Jeff Smith has said before that the company was
assessing the property values for homes included in the buyout
offers based on the value of a similar property in a community
outside of Hinkley.
Hinkley's groundwater was contaminated during the 1950s and 60s.
Hexavalent chromium was discovered to have leaked from the
company's compressor station into unlined ponds.
The small unincorporated community and PG&E's actions were
included in a class-action lawsuit filed in 1993 that resulted in
the largest settlement, $333 million, paid out in U.S. history for
a direct action lawsuit. The case and the community's water
problems gained international attention from the film Erin
Brockovich.
On July 22, Mr. Smith said the company could not say much
regarding the pending litigation.
"We obviously will continue to work with the appropriate legal
channels," he said. "There's not a whole lot we can offer for a
public comment right now."
PDC ENERGY: Continues to Defend "Schulein" Suit in California
-------------------------------------------------------------
PDC Energy, Inc. continues to defend itself against a class action
lawsuit styled Schulein v. Petroleum Development Corporation,
according to the Company's June 28, 2013, Form 8-K filing with the
U.S. Securities and Exchange Commission.
On December 21, 2011, the Company and its wholly-owned merger
subsidiary were served with an alleged class action on behalf of
certain former partnership unit holders, related to its
partnership repurchases completed by mergers in 2010 and 2011.
The action was filed in U.S. District Court for the Central
District of California, and is titled Schulein v. Petroleum
Development Corp. The complaint primarily alleges a claim that
the proxy statements issued in connection with the mergers were
inadequate, and a state law breach of fiduciary duty. On
February 10, 2012, the Company filed a motion to dismiss or in the
alternative to stay. On June 15, 2012, the Court denied the
motion. The Court has approved a litigation schedule including a
jury trial in May 2014.
The Company says it has not recorded a liability for claims
pending because it believes it has good legal defenses to the
asserted claims and because the plaintiffs have not specified
damages and it is not possible for management to estimate what, if
any, monetary damages could result from this claim.
Headquartered in Denver, Colorado, PDC Energy, Inc., is a domestic
independent natural gas and crude oil company engaged in the
exploration for and the acquisition, development, production and
marketing of natural gas, natural gas liquids and crude oil. The
Company is engaged in two business segments: (1) Oil and Gas
Exploration and Production and (2) Gas Marketing.
PILOT FLYING J: Revises Fuel Rebate Class Action Settlement
-----------------------------------------------------------
Travis Loller, writing for The Associated Press, reports that the
truck-stop company owned by Cleveland Browns owner Jimmy Haslam
and Tennessee Gov. Bill Haslam has revised a class action
settlement that some trucking companies had criticized as a bad
deal.
The original settlement, which was given preliminary approval,
required Pilot Flying J to reimburse trucking companies cheated
out of fuel rebates for all the money they are owed with interest.
But it only covered overcharging that occurred between Jan. 1,
2008, and July 15, 2013. The revised settlement covers
overcharging as far back as Jan. 1, 2005.
The revision addresses one of the concerns raised by several
trucking companies that did not participate in the settlement
negotiations. In court papers, they called the settlement a rush
job that doesn't provide plaintiffs with much more than what they
have already received. They have asked the federal courts for
permission to continue pursuing their own lawsuits.
Meanwhile, Pilot and the eight companies that negotiated the
settlement have asked the federal courts to halt the other
lawsuits while the settlement process plays out. On July 25, a
panel of federal judges was set to hear arguments for both sides
of the issue.
Mike Roberts, attorney for National Trucking Financial Reclamation
Services, which was part of the settlement negotiations, said the
revision had nothing to do with the July 25 hearing.
"We have negotiated for that time period from the very beginning,"
Mr. Roberts said. "Through continued negotiations we were able to
achieve these results."
The revised settlement was granted preliminary approval on
July 24. Any company that participated in either Pilot's rebate
program or its discount program is automatically included in the
settlement unless that company chooses to opt out and pursue its
own claims.
Mr. Roberts and other attorneys involved in the negotiations have
praised the settlement. Attorney Don Barrett called it the most
complete relief for customers he has seen in more than 40 years of
practicing law.
But attorneys for several other trucking companies don't see it
that way. They have said it was negotiated in haste, without
their input. They said the timeframe was inadequate, as was the
relief offered to plaintiffs.
The settlement came just three months after federal agents raided
the Knoxville headquarters of Pilot Flying J. The FBI began
investigating Pilot Flying J after an employee claimed the
nation's largest diesel retailer, with annual revenues of around
$30 billion, was systematically cheating its clients. Five
employees have since pleaded guilty to federal charges.
In the meantime, the company has sent checks to its customers that
it says compensate them for any money owed plus interest -- the
same thing they are promised in the settlement, according to court
filings.
The main additional benefit from the settlement is the payment of
attorneys' fees, but plaintiffs would have to give up the
possibility of collecting damages.
Jimmy Halsam runs Pilot Flying J while Tennessee Gov. Haslam has
an undisclosed ownership share but says he has not been involved
in day-to-day operations since he left the company in 2003 to run
for Knoxville mayor. Pilot was founded by their father,
Jim Haslam, and is owned by the family. Both Jimmy and Bill
Haslam have denied any wrongdoing, and the company didn't
acknowledge wrongdoing in the settlement.
But trucking companies that want to pursue their own claims
against Pilot have argued in court papers that the FBI affidavit
implicates Jimmy Haslam. A wiretap recorded an employee saying
Mr. Haslam was aware of the scheme.
The accusations of widespread fraud, if proved, could allow
plaintiffs to collect punitive and triple damages, according to
the filings.
Pilot attorney Aubrey Harwell said the settlement does not prevent
anyone from pursuing damage claims.
"If they don't like it, they can opt out and can sue to their
heart's delight," he said.
RENAISSANCE IMPORTS: Recalls Girls Boots Due to Laceration Hazard
-----------------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
Renaissance Imports, of Matthews, N.C., announced a voluntary
recall of about 5,000 Autumn Run Girls Gemma II Boots. Consumers
should stop using this product unless otherwise instructed. It is
illegal to resell or attempt to resell a recalled consumer
product.
An exposed staple in the sole of the boot presents a laceration
hazard to the consumer.
Renaissance Imports has received one report of a consumer who was
punctured by an exposed staple in the sole.
The recall involves Autumn Run brand girls Gemma II style boots
with SKU number 0529-02613-1050. The SKU number can be found on a
tag which is located inside the shoe, on the inner side of the
collar. The brown roper style boots were sold in girls sizes 5 to
11. A paisley-print fabric sash and a leather beaded strap are
tied around the boot.
Pictures of the recalled products are available at:
http://is.gd/FuJmiH
The recalled products were manufactured in China and sold
exclusively at Academy Sports + Outdoors stores nationwide and
online at Academy.com between July 2012 and October 2012 for about
$23.
Consumers should immediately take the recalled boots from children
and inspect the boots for exposed staples. Instructions for
inspecting the boots can be found online at http://www.renimp.com.
Boots that are stamped "INSPECTED" on the reverse side of the
inside label have been inspected for staples and are not included
in this recall. Consumers can return recalled boots to any
Academy Sports + Outdoors store for a full refund.
RESIDENTIAL CAPITAL: Objects to $713-MM Calif. Litigation Claims
----------------------------------------------------------------
Residential Capital LLC and its affiliates object to, and ask the
U.S. Bankruptcy Court for the Southern District of New York to
disallow and expunge, claims filed by 61 individuals who are
plaintiffs in a litigation pending in a California court on the
grounds that the claimants fail to state a claim against the
Debtors.
Each of the 61 individual claimants, through purported counsel
Brookstone Law, P.C., filed against the Debtors' estates identical
claims, each in the amount of $1.3 million, totaling $713.7
million. According to the Debtors, each of these claims should be
disallowed and expunged pursuant to Section 502(b) of the
Bankruptcy Code on, among others, the ground that they fail to
state a single, colorable claim against any of the Debtors under
applicable law. Moreover, the Debtors assert that the California
Litigation fail to: (1) adequately allege any wrongdoing by a
specific Debtor entity; and (2) provide any objective basis to
substantiate such purported damages.
The California Litigation was filed days before the Petition Date.
The Claimants filed a complaint against a multitude of Debtors and
non-debtor defendants, which sought monetary damages because a
group of California homeowners believe they were allegedly harmed
by the defendants' home lending practices in California between
2003 and 2008 when the individuals obtained loans from one or more
of the named defendants.
A hearing on the objection will be held on August 28, 2013, at
10:00 a.m. (ET). Objections are due August 9.
Gary S. Lee, Esq., Norman S. Rosenbaum, Esq., and Jordan A.
Wishnew, Esq., at MORRISON & FOERSTER LLP, in New York; and Regina
J. McClendon, Esq., at LOCKE LORD LLP, in San Francisco,
California, represent the Debtors.
About Residential Capital
Residential Capital LLC is one of the country's largest mortgage
originators and servicers. The Company, a subsidiary of Ally
Financial Inc., filed for bankruptcy protection on May 14, 2012,
in New York.
ROBIN AMERICA: Recalls Portable Generator Due to Fire Hazard
------------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
Robin America Inc., of Lake Zurich, Ill., announced a voluntary
recall of about 4,100 units in the United States and 490 units in
Canada Subaru Portable Gasoline Generators. Consumers should stop
using this product unless otherwise instructed. It is illegal to
resell or attempt to resell a recalled consumer product.
The fuel tank can leak, posing a fire or burn hazard.
Robin America has received four reports of fuel leakage. No
injuries or property damage have been reported.
The recalled portable gasoline generators are Subaru models
SGX3500, SGX5000 and SGX7500. They have yellow fuel tanks and
black frames with collapsible handles. The word "Subaru" is on
the fuel tank and is on the control panel under the Subaru logo.
The Product, or Spec, number and serial number are on the end of
the fuel tank above the wheels.
Pictures of the recalled products are available at:
http://is.gd/TxRjMn
The recalled products were manufactured in China and sold at
authorized Subaru Power Equipment dealers nationwide, including
authorized internet dealers, between September 2011 and January
2013 for approximately $920 to $1800.
Consumers should immediately stop using the generators and contact
Robin America to schedule a free repair.
ROYAL INTERNATIONAL: Recalls 10,890 Tool Tech Glue Guns
-------------------------------------------------------
Starting date: July 23, 2013
Posting date: July 23, 2013
Type of communication: Consumer Product Recall
Subcategory: Hobby/Craft Items
Source of recall: Health Canada
Issue: Product Safety
Audience: General Public
Identification number: RA-34657
Affected products: Tool Tech Glue Guns
The recall involves the Tool Tech Glue Gun imported by Royal
International. The product is available in black with a red
trigger and tip.
The recalled product has not been evaluated for safety against any
Canadian standards and bears an unauthorized cUL (Canadian
Underwriters Laboratories Inc.) certification mark. The product
may pose a safety hazard to consumers. Pictures of the recalled
products are available at: http://is.gd/DRgTlR
Neither Health Canada nor Royal International Corp has received
any reports of incidents or injuries to Canadians related to the
use of these glue guns.
Approximately 10,890 units of the affected glue guns were sold at
dollar and discount stores across Canada.
The affected glue guns were manufactured in China and sold from
January 2010 to June 2013.
Companies:
Manufacturer Jiande Tongyu Electrical Appliance Tools Plant
Sanhe Town
China
Importer Royal International Corp.
St. Laurent
Quebec
Canada
Consumers should stop using the recalled glue guns and return them
to the place of purchase or dispose of them. Consumers may
contact their municipality for instructions on disposing glue
guns.
For more information, consumers may contact Royal International
Corp. Customer Service by telephone at 1-800-465-4566 or
1-514-735-4566 extension 221 between 9:00 a.m. and 5:00 p.m. EST,
Monday through Friday.
SAC CAPITAL: Scott+Scott Files Amended Class Action in New York
---------------------------------------------------------------
Scott+Scott, Attorneys at Law, LLP has filed an amended class
action complaint in the United States District Court for the
Southern District of New York on behalf of investors in the common
stock of Wyeth who traded contemporaneously with and opposite
Defendants' unlawful trades during the periods: (a) from July 1,
2006 through and including July 18, 2008; and (b) July 21, 2008
through and including July 29, 2008. Previously, it was announced
that a class action complaint had been filed in the United States
District Court for the Southern District of New York on behalf of
a class of all persons who purchased or otherwise acquired the
common stock of Wyeth between July 21, 2008 and July 29, 2008,
inclusive.
If you traded Wyeth common stock during the Class Period, and wish
to serve as a lead plaintiff in the action, you must move the
Court no later than September 20, 2013. Any member of the
investor class may move the Court to serve as lead plaintiff
through counsel of its choice or may choose to do nothing and
remain an absent class member. If you wish to discuss this action
or have questions concerning this notice or your rights, please
contact Scott+Scott -- scottlaw@scott-scott.com -- (800) 404-7770,
(860) 537-5537) or visit the Scott+Scott website for more
information. There is no cost or charge to you for contacting
Scott+Scott.
The securities class action complaint alleges that CR Intrinsic
Investors, LLC, together with its affiliates, including but not
limited to, SAC Capital Associates, LLC and SAC Capital Advisors,
L.P., violated the securities laws by trading Wyeth shares based
on material, non-public information ahead of a July 29, 2008
announcement disclosing disappointing clinical trial results for
the drug bapineuzumab (AAB-001) ("bapi"). Bapi was an Alzheimer's
disease treatment that was being jointly developed by Wyeth and
Elan Corporation, plc.
Specifically, the complaint charges that, during the Class Period,
defendants established substantial long positions in Wyeth
securities while in possession of material non-public information
concerning the bapi Phase II clinical trial, acquiring over 3
million shares. As of June 30, 2008, Defendants held over $373
million in Wyeth stock.
On June 17, 2008, Wyeth released top-line summary results from the
Phase II clinical trial of bapi. The market's reaction was
favorable and Wyeth's common stock rose 10.7% after the
announcement. Detailed trial results were to be released at a
conference on July 29, 2008.
Shortly before the July 29, 2008 conference, Defendants obtained
additional non-public final Phase II clinical results from the
bapi trial, which were strongly and unexpectedly negative.
Defendants aggressively sold their Wyeth shares ahead of the
public announcement of the bapi results, completely liquidating
their positions. In addition, Defendants opened large short
positions in Wyeth.
On July 29, 2008, after the close of the U.S. securities markets,
the disappointing Phase II clinical results of bapi were announced
to the public. On July 30, 2008, the next trading day, Wyeth's
share price fell 41.8% from its prior close on July 29th.
Scott+Scott has significant experience prosecuting major
securities, antitrust, and employee retirement plan actions
throughout the United States. The firm represents pension funds,
foundations, individuals, and other entities worldwide.
CONTACT: If you have any questions regarding this matter,
please contact:
Michael Burnett
Scott+Scott, Attorneys at Law, LLP
Telephone: (800) 404-7770
(860) 537-5537
E-mail: scottlaw@scott-scott.com
mburnett@scott-scott.com
SEARS ROEBUCK: Faces Class Action in Calif. Over Unpaid Wages
-------------------------------------------------------------
Drew Singer, writing for Law360, reports that Sears Roebuck & Co.
was hit with a proposed class action in California state court on
July 18 alleging the department store doesn't compensate employees
for work performed while stores are closed to customers.
A putative class of current and former employees from Sears' 150
California stores never received minimum wage for their work
before and after stores were open, according to Antoantea
Vatraleva's lawsuit, which was filed in Los Angeles County
Superior Court. The suit also says Sears failed to compensate for
commissions lost due to mandatory meetings.
"During the class period, defendant's practices, as alleged above,
have been and continue to be unfair, fraudulent and illegal, and
harmful to plaintiff, the rest of the class and the general
public," the complaint says.
If the action succeeds, Sears could have to pay up to $4,000 per
employee for allegedly failing to provide regular, itemized
statements on how it calculated paychecks. The plaintiffs have
also asked for the allegedly owed minimum-wage salaries, plus
interest, from 2006 through the present, as well as punitive
damages and court costs.
Plaintiff Vatraleva, who has worked for Sears in a Glendale,
Calif., store since 2006, also asked the judge for a permanent
injunction barring Sears from this type of behavior in the future.
Sears dodged another salary-related class action lawsuit in March,
when a California appeals court ruled that a group of Sears Auto
Center managers couldn't bring class action accusations that the
retailer misclassified them as exempt from overtime.
Agreeing with a trial court, California's Court of Appeal for the
Fourth District ruled that former Sears manager William Dailey
hadn't shown how issues of common, companywide policies
predominated over those involving individual, worker-to-worker
facts -- a key requirement for class status.
"The record before us contains substantial evidence that Dailey's
theory of liability -- i.e., that Sears acted in a uniform manner
toward the proposed class members, resulting in their widespread
misclassification as exempt employees -- is not amenable to proof
on a classwide basis," the appeals court wrote.
With that ruling, Daily will have to pursue his allegations
against Sears by himself, rather than as the leader of a class
that could have included anyone who worked as an Auto Center
manager or assistant manager in California over a four-year span.
Sears did not respond to a request for comment on July 22.
Attorneys for the proposed class could not be reached for comment.
Attorney information for Sears was not immediately available.
Vatraleva is represented by Marshall Caskey, Daniel Holzman and
Thomas Dorogi of Caskey & Holzman.
The case is Antoantea Vatraleva v. Sears Roebuck and Co., case
number BC515650 in the Superior Court for the State of California
for the County of Los Angeles.
SERVISAIR LLC: JaffeGlenn Law Group Files Overtime Class Action
---------------------------------------------------------------
JaffeGlenn Law Group filed a class-action lawsuit on behalf of
workers at several of the nation's largest airports who contend
Servisair, LLC, deliberately denied them overtime pay, docked them
for lunches they never took, and even implemented a timekeeping
system that automatically reduced the time they worked each day.
The more than 170 initial plaintiffs include ramp workers, cargo
handlers, refuelers, cleaners and plane deicers who are employed
by Servisair at New York's LaGuardia and JFK airports, Miami
International Airport, Boston Logan International Airport and
Chicago O'Hare International Airport. In all, Servisair employs
more than 5,000 such workers at 30 airports across the United
States.
"Servisair willingly refuses to pay its employees when they work
more than 40 hours a week and keeps inventing new ways to rob them
of the time they worked," said Andrew Glenn, a partner at Miami-
based JaffeGlenn Law Group, which is representing the workers.
"The same workers who sweat each day to insure the flying public
has a safe, clean, pleasurable experience are having their hard-
earned wages stolen by their employer."
The class-action lawsuit alleges that Servisair and Matt
Ellingson, an executive vice president with oversight of all U.S.
operations, have engaged in a nationwide, systemic practice of
violating the federal Fair Labor Standards Act. Under FLSA, non-
exempt employees like those at Servisair are entitled to overtime
pay after working more than 40 hours per week.
Servisair cheated workers out of tens of millions of dollars in
wages over the past three years, Glenn stated, by:
Deducting 30 minutes each day from worker timecards for lunches
that were never taken;
Using a timekeeping software system that automatically shortens a
workday by rounding up start times and rounding down stop times.
For example, a worker who clocks in at 10:02 a.m. would be
credited for starting at 10:30 a.m.; a worker who clocks out at
11:28 p.m. would be credited for stopping work at 11:00 p.m.
On average, Servisair airport workers are being shortchanged by 5
hours of overtime each week, according to Glenn.
"Servisair and its parent company, Paris-based Derichebourg, have
made millions of dollars in profit each year at the expense of the
workers who have made the company successful," Glenn said. "This
is corporate greed at its very worst, and we intend to
aggressively fight on behalf of the workers to recover the money
owed to them."
The class action was filed in U.S. District Court in the Eastern
District of New York.
About JaffeGlenn
With more than 40 years combined experience, JaffeGlenn Law Group,
P.A. -- http://www.jaffeglenn.com-- has been helping those
workers that were not paid their wages properly throughout the
country. The firm specializes in overtime cases and has developed
a national reputation for successfully litigating cases dealing
with employees that were not paid their overtime.
SHAUN TERRY BREEN: Faces Class Action Over Ballarat Blaze
---------------------------------------------------------
Emily Portelli, writing for Herald Sun, reports that the man
allegedly responsible for sparking a blaze near Ballarat (in
Victoria, Australia) that burned across 1300 hectares earlier this
year is the subject of a class action.
Shaun Terry Breen acted negligently when he drove his Toyota Hilux
UTE in a paddock of dry grain stubble on his property in Snake
Valley on a day of high fire risk, the writ lodged in the Supreme
Court on July 23 claims.
It is alleged Mr. Breen left his still hot ute parked over dry
vegetation on January 8, sparking the fire that destroyed nine
houses, including the 120-year-old historic homestead Carngham
Station.
Lead plaintiff Valerie Ellen Jackson claims the fire caused
extensive damage to her land and property -- including fences,
buildings and personal effects. The writ states there are at
least seven other people who have claims against the defendant.
It claims nearby residents were vulnerable because they had no
ability to prevent the fire and relied on Mr. Breen to safely
operate his ute.
Authorities said between 600 and 1000 livestock were lost in the
fire, as well as hay sheds and farm machinery. Six people taken
to hospital with minor injuries and smoke inhalation.
The matter will be heard in the Supreme Court at Ballarat before a
judge.
SINO-FOREST CORP: Lerners Discusses Ontario Court Ruling
--------------------------------------------------------
Jason Squire, Esq. and Brandon Stewart, student-at-law, at Lerners
report that in Labourers' Pension Fund of Central and Eastern
Canada v Sino-Forest Corporation, 2013 ONCA 456, the Ontario Court
of Appeal recently dismissed a motion by a group of institutional
investors that challenged the approval of a C$117 million
settlement releasing Ernst and Young LLP from any claims arising
from its alleged negligent auditing of the forestry firm Sino-
Forest ("SFC").
As a member of Lerners' Class Action Group has previously
discussed, the lower court's decision in this matter suggests that
institutional investors may want to take a more active role in
securities class actions in Canada, by exercising their opt-out
rights and pursuing individual claims. The Ernst and Young
settlement, however, made it more difficult for activist investors
in that case to do just that.
Ernst & Young was named as a co-defendant in a C$9.18 billion
class action lawsuit filed by investors in Ontario, after a report
released in 2011 alleged that SFC was a Ponzi scheme. As Lerners
has previously reported, this action was stayed after SFC sought
and obtained protection under the Companies' Creditors Arrangement
Act ("CCAA").
The Ernst and Young settlement was publicly announced in 2012 and
is part of SFC's plan of compromise and reorganization under the
CCAA. Both received widespread support, except from Invesco, a
group of institutional investors holding 1.6% of SFC's outstanding
shares.
The settlement was initially approved by Justice Morawetz of the
Ontario Superior Court despite objections from Invesco that the
release was unnecessary to the success of SFC's restructuring.
The settlement included a comprehensive release (or "bar order")
in favor of Ernst & Young, which would prevent class plaintiffs
from opting out of the class proceeding, and pursuing their own
claims against Ernst and Young. Justice Morawetz held that the
settlement was fair and reasonable, provided substantial benefits
to other stakeholders, and was consistent with the purpose and
spirit of the CCCA.
The Ontario Court of Appeal upheld the decision. The Court agreed
with Justice Morawetz's conclusion that there was a reasonable
connection between Invesco's compromised claim and the
restructuring achieved by including the release, as indicated by
the following factors from ATB Financial:
-- The release was rationally related to the purpose of the
Plan since Invesco's claims against Ernst & Young could not be
separated from those made against SFC.
-- The release was necessary to fulfill the objectives of the
Plan, since, without settlement approval, the settlement proceeds
would not be distributed.
-- Ernst and Young was contributing to the Plan in a tangible
and realistic way in the amount of C$117 million and;
-- The creditors would benefit from the tangible distribution of
those monies.
Normally, class members can opt-out of a class action "in the
manner and within the time specified in the certification order."
However, the Ontario Court of Appeal makes clear that there is no
right to opt-out of a CCAA proceeding. If, as in this case, a
claim class proceeding is linked to a CCAA proceeding, and the
above factors are met, courts are willing to approve settlements
over the objections of activist investors.
SPARK NETWORKS: Accused of Discriminating Gay Individuals
---------------------------------------------------------
Aaron Werner, individually, and on behalf of all other members of
the general public similarly situated v. Spark Networks Inc., a
Delaware corporation, Spark Networks USA, LLC, a Delaware limited
liability company; and Does 1-10, Case No. BC515761 (Cal. Super.
Ct., Los Angeles Cty., July 19, 2013) is brought on behalf of all
individuals, who have been denied the services of
http://www.christianmingle.com/on account of their sexual
orientation.
The Plaintiff asserts that in June 2013, he attempted to use the
dating services of www.christianmingle.com, but was denied the
ability to do so based on sexual orientation. He contends that
the Defendants' deliberate policy of excluding gays, lesbians, and
bisexuals from its business services is pure discrimination,
Mr. Werner is a gay man.
Spark Networks, Inc., a Delaware corporation, and Spark Networks
USA, LLC, a Delaware limited liability company, are the owners and
operators, licensors, joint venturers, agents and lessors, of the
Web site known as www.christianmingle.com. The Plaintiff is
ignorant of the true names and capacities of the Doe Defendants.
The Plaintiff is represented by:
Miguel A. Custodio, Jr., Esq.
Vineet Dubey, Esq.
CUSTODIO & DUBEY LLP
766 E. Colorado Blvd., Ste 108
Pasadena, CA 91101
Telephone: (213) 785-2909
Facsimile: (213) 785-2899
E-mail: custodio@cd-lawyers.com
dubey@cd-lawyers.com
SRO ENTERTAINMENT: 157 People Express Interest in Legal Action
--------------------------------------------------------------
VOCOM reports that over 150 Salmon Festival concertgoers have
already expressed interest in taking legal action against
organizers. Since the concert, dozens have gone public with their
less than satisfactory VIP experience, noting displeasure with
overcrowding, long line-ups, and a shortage of water, despite
having paid extra for close access and improved service during the
mega-concert.
On Twitter, St. John's based lawyer Ches Crosbie says 157 people,
many who bought multiple tickets, have been in contact with his
office. Mr. Crosbie said that a class action would be a means for
patrons to seek an appropriate form of amends, but said it was too
early to determine whether a class-action would be launched.
STORK CRAFT: Court Says Recall Class Action Abuse of Process
------------------------------------------------------------
Koskie Minsky LLP's Kirk Baert, writing for Canadian Lawyer
Magazine, reports that the Supreme Court of British Columbia was
faced with parallel claims that were practically a mirror image of
each other. The facts alleged and the principal defendants were
essentially the same. The plaintiffs, though nominally different,
were clearly associated and were represented by the same legal
counsel.
What happens when duplicative class proceedings are filed in the
same jurisdiction on behalf of plaintiffs working in concert to
advance overlapping claims?
In a June 21 decision, the B.C. Supreme Court in Dixon v. Stork
Craft Manufacturing Inc. looked beyond the identity of the
proposed representative plaintiffs and instead focused on the
maneuverings of class counsel, ultimately finding the action was
totally vexatious and an abuse of the court's process.
On Nov. 24, 2009, a nation-wide recall of baby cribs by Stork
Craft sparked the commencement of six very similar proposed class
actions against Stork Craft and various retailers in six different
provinces across Canada. Each proposed class action was launched
by plaintiffs represented by the same law firm, Merchant Law Group
LLP.
Merchant agreed to discontinue the class proceedings commenced in
all provinces other than British Columbia, and to proceed with
case management and certification of the British Columbia action
(the Dodd action). However, the firm failed to fully consider all
of the implications of such a move, and in particular, its impact
on potential limitation periods applying to Ontario class members.
Before the solicitors for the plaintiffs brought the motion to
discontinue in Ontario, they discovered there would be prejudice
to the Ontario class members if the action was discontinued, since
the limitation period would resume running.
Class proceeding legislation is mainly procedural. Limitation
periods are matters governed by the jurisdiction in which each
class member resides. British Columbia is an opt-in jurisdiction
for class proceedings, and limitation periods are suspended in
that province only upon the making of a motion for certification.
Merchant discovered there would be prejudice to the Ontario class
members if the Ontario action was discontinued as their limitation
periods might expire in Ontario before certification of the
British Columbia proceedings occurred and before those plaintiffs
could opt into the British Columbia action.
Nevertheless, counsel to the defendants in the Ontario action
sought an order to enforce the agreement to discontinue the
Ontario action. Ontario Superior Court Justice Robert J. Smith
declined to grant the motion approving the discontinuance of the
Ontario class proceeding without notice to the class members
because of the substantial prejudice that would result to all
Ontario class members who would be deprived of having the
limitation period remain suspended in Ontario. And thus they
would potentially lose their ability to participate as an "opt-in"
class member in the British Columbia Class proceeding.
On March 7, 2011, the proposed representative plaintiff in the
Dodd action in B.C. filed an amended claim purporting to remove
himself as the representative plaintiff and substituting Jane
Dixon, a new representative plaintiff for the B.C. resident class,
and Loretta McFadzean, representing a non-resident class. The
defendants in the Dodd action filed an application seeking an
order striking the plaintiffs' amended claim that purported to
substitute the representative plaintiffs. B.C. Supreme Court
Justice Geoffrey Gaul allowed the defendants' application and
denied the amendments.
In response to the order denying their request to amend their
claim, Merchant commenced on Nov. 4, 2011 yet another action in
B.C. (the Dixon action). This time with Ms. Dixon and
Ms. McFadzean as proposed representative plaintiffs, the same
individuals who were not permitted to become the named plaintiffs
in the Dodd action. The Dixon action alleged facts and advanced
claims basically identical to those in the Dodd action. The
plaintiffs' stated intention was to consolidate the Dodd and Dixon
actions.
In turn, the defendants filed an application seeking a stay of the
Dixon action, or in the alternative, an order striking out the
entirety of the plaintiffs' pleadings in the action. The
defendants asserted the Dixon action was an improper second
attempt to have Dixon and McFadzean added as plaintiffs in the
Dodd action.
In Dixon v. Stork Craft, Justice Gaul found that to allow the
Dixon action to stand and be consolidated with the Dodd action
would unfairly and improperly allow Ms. Dixon and Ms. McFadzean to
obtain the result they initially sought and were denied in the
Dodd action. In these circumstances, consolidation would
impermissibly and improperly permit the plaintiffs to circumvent
the rules governing the adding of parties to an action and the
amendment of pleadings, and as a result, it was found to be
vexatious and an abuse of the court's process.
The court's approach in Dixon v. Stork Craft demonstrates an
increasing trend in class proceedings to look beyond the identity
of the representative plaintiffs. An abuse of process has
traditionally only been found where two actions are brought by the
same plaintiff against the same defendant seeking the same relief.
Here, although the plaintiffs were nominally different, they were
being directed by the same legal counsel and were clearly
associated.
Appropriate case management in class proceedings can and should
take into account these considerations. In the circumstances,
Justice Gaul came to the correct conclusion in staying in the
Dixon action.
SUCCESSFULMATCH.COM: Posts Customers' HIV/STD Statuses, Suit Says
-----------------------------------------------------------------
Writing for Courthouse News Service, William Dotinga reports that
dating Web site conglomerate SuccessfulMatch.com posts its
customers' HIV and STD statuses on thousands of its other Web
sites, in violation of law and its own promises of
confidentiality, a class action claims in Federal Court.
Jane Does 1 and 2, of Canada and Washington state, claim there are
hundreds of thousands in the class, citing a June 2013 press
release in which press release in which SuccessfulMatch boasted of
having 732,700 members.
The Does claim that SuccessfulMatch preys on the vulnerability of
people who have tested positive for HIV and sexually transmitted
diseases, which led both of them to join its PositiveSingles.com
dating site.
"On the home page of PositiveSingles.com, defendant lured them in
with empathetic sounding statements like 'You feel like you're
alone in the world. Do you wish there was a place where you
didn't have to worry about being rejected or discriminated? This
is a warm-hearted and exclusive community for singles and friends
with STDS.' The home page went on to recognize the sensitivity of
this information, claiming that 'We care about your privacy more
than other sites,' with the word 'privacy' emphasized in the
original," the women say in the lawsuit.
The PositiveSingles site promised a free -- and "fully anonymous"
-- profile in a "100 percent confidential and comfortable
community," according to the complaint. And the registration page
assured that it would not disclose, rent or sell personally
identifiable information to third parties.
But unbeknownst to the plaintiffs, PositiveSingles.com is one of
thousands of Web sites operated by SuccessfulMatch.com. The women
claim that SuccessfulMatch allows people to start their own online
dating sites and then links members from the other sites in its
stable to each other.
"The SuccessfulMatch.com site offers zero set-up cost: 'If you
don't have a dating website, we can set it up for you at no cost.
You can pick the name for the site, and domain and brand. We take
care of dating software, membership database, payment processing,
hosting, customer support and much more,'" the complaint states,
citing information gleaned from the SuccessfulMatch.com Web site.
The complaint continues: "It [SuccessfulMatch.com] also offers
pre-populated member databases: 'Your dating site will share
hundreds of thousands of profiles with other similar sites we have
already set up. Your users can immediately contact hundreds of
thousands of other users with the same interests once they
register.'
"The result of this process is that hundreds or thousands of
websites have been established that all point to the same database
of profiles. Consequently, the personal profile, picture and
other information of those who have one condition or
characteristic are displayed on hundreds or thousands of websites
addressed to conditions and characteristics they do not know of,
such as being HIV positive, kinky, black or of other ethnic
groups, Christian or affiliated with other religions, gay, or
otherwise."
As a result, users of PositiveSingles.com share confidential
information about their health, including HIV status, thinking it
will be available only to other PositiveSingle.com users, not
blasted on thousands of other SuccessfulMatch dating Web sites
across the Web, the complaint states.
"Each of these websites were set up by SuccessfulMatch.com using
virtually identical formats that emphasize they are unique and
exclusive locations without anywhere disclosing the names of any
of the other websites that the person's profile and private
information will be shown on. Each of these websites states that
it is totally safe and secure and that it does not disclose, sell
or rent any personally identifiable information to any third party
organizations. These statements are false and misleading as made
in that the websites disclose the information to anyone who can
create a domain name and that making one's private health
information and dating profile appear on hundreds or thousands of
undisclosed websites that portray the individual as something they
are not is not conduct that one would consider as 'totally safe
and secure,'" the women say in the complaint.
SuccessfulMatch obscures its Web sites' terms of service pages so
that most users never even see them, the Does claim.
"Defendant's websites utilize a common form of Terms of Service
that are presented on a take it or leave it basis. No member is
required to review the Term of Service before registering on
defendant's websites and most members never see the terms. The
websites are designed so that the Terms of Service cannot be
printed out, so that if any person wants to have a paper copy they
are required to personally contact SuccessfulMatch.com and request
it. Included in the Terms of Service are three provisions that
are so extreme as to shock the conscience. These provisions are
quoted from the Terms of Service as follows:
"'a. To expand the availability of profiles on SuccessfulMatch
sites, profiles may be shared with other sites within the
SuccessfulMatch network. By posting or maintaining a profile on
this or any other SuccessfulMatch network site, you agree and
consent that said profile shall be subject to placement on other
SuccessfulMatch network sites, at the discretion of
SuccessfulMatch, without further notice.
"'b. Anytime you as a member and/or standard member upload files,
messages, enter data or engage in any other form of communication,
individually or collectively, within the site, you grant to SM.com
a perpetual, world wide, irrevocable, unrestricted, non-
restricted, non-exclusive, royalty-free license to use, including
but not limited to promotional and advertising purposes, copy,
license, sublicense, adapt, distribute, display, publicly perform,
reproduce, transmit, modify, edit and otherwise exploit such
communications and any ideas or original materials contained in
such communications, in all media now known or hereafter
developed. This grant shall include the right to exploit any and
all proprietary rights in such communications including, without
limitations, any and all rights under copyright, trademark,
service mark or patent laws under any relevant jurisdiction.
"'c. You agree that regardless of any statute or law to the
contrary, any claim or cause of action arising out of or related
to use of the Service or the Agreement must be filed within one
(1) year after such claim or cause of action arose, or be forever
barred," according to the complaint.
The Does seek class certification, restitution, declaratory
judgment, a permanent injunction against defendant's current
business plan and collection activities against class members, and
compensatory and punitive damages.
The Plaintiffs are represented by:
Robert S. Green, Esq.
James Robert Noblin, Esq.
Lesley Elizabeth Weaver, Esq.
GREEN & NOBLIN, P.C.
700 Larkspur Landing Circle, Suite 275
Larkspur, CA 94939
Telephone: (415) 477-6700
Facsimile: (415) 477-6710
E-mail: gn@classcounsel.com
gnecf@classcounsel.com
The case is Doe 1, et al. v. Successfulmatch.com, Case No. 5:13-
cv-03376-HRL, in the U.S. District Court for the Northern District
of California (San Jose).
SUN INT'L: Disputes Secret Videotaping Allegations
--------------------------------------------------
Nick Hedley, writing for iafrica.com, reports that claims that
staff at Sun International secretly recorded videos of visitors to
its hotels over a six-year period have been rebuffed by the listed
hotel and gaming group as part of an extortion attempt by scam
artists.
Sun International was responding to media reports which cited a
blog claiming to represent 517 unsuspecting couples who were
formulating an alleged $517 million class-action lawsuit against
the company.
The blog claims that visitors to the Sun City resort between 2005
and 2011 were filmed by staff members, and 52 videos had been sold
"to an international porn club".
The blog also says an "aggressive" media and social media campaign
would be launched against Sun International, in order to make
contact with 200 of these couples who had not yet been identified
and to include them in the lawsuit.
Attempts on July 22 to contact the "Sun International Action
Group", which claims to be leading the lawsuit and a campaign to
boycott the company were unsuccessful.
Sun International spokesperson Tamra Veley said the company had
received a number of e-mails since October last year "purportedly
from a Tim Dailey or a Nayan Naidoo, which the company has reason
to believe is the same person".
Ms. Veley said the e-mails claimed Sun International staff had
illegally videotaped the intimate moments of visitors to its Sun
City complex, "which videos would be destroyed against payment of
some $5 million".
"Mr. Naidoo's legal representatives had initially provided their
address in New York, which upon investigation turned out to be an
office suite operated by a business center which rents out office
space.
"In addition, the contact details of Mr. Dailey-Mr Naidoo are all
gmail.com addresses and are untraceable," Ms. Veley said. She
said that the company was not aware of any such videotaping at Sun
City.
Sun International had appointed both local and international
lawyers to advise the company and investigate the accusations.
Ms. Veley said despite repeated attempts to contact Mr. Dailey-
Mr. Naidoo, and to request a meeting to provide evidence of the
recordings, no response had been received.
But the company had been informed via e-mail that a class action
lawsuit would be instituted with a damages claim of more than
$500m.
Following discussions with the South African Police Service, the
police had advised that as the complainant had not come forward,
"they have nothing to investigate".
Sun International viewed the allegations as "spurious", Ms. Veley
said, adding that the company "is the target of an extortion
attempt".
"The company continues to be advised by its professional
advisers," she said.
UBS AG: Settles Suit Over Mis-selling of Mortgage-Backed Bonds
--------------------------------------------------------------
Katharina Bart, writing for Reuters, reports that UBS's second-
quarter profit beat forecasts even though it agreed to settle a
lawsuit with the U.S. housing regulator over the mis-selling of
mortgage-backed bonds, boosting shares in Switzerland's largest
bank to two-year highs.
A number of European banks -- including Deutsche Bank, Barclays,
Credit Suisse, HSBC and Royal Bank of Scotland -- collectively
face possible multi-billion dollar bills arising from U.S. cases
involving mortgages, which lay at the heart of the 2008 financial
crisis.
UBS said on July 22 it had reached an agreement in principle with
the Federal Housing Finance Agency (FHFA), prompting it to release
its headline second-quarter results more than a week early,
showing net profit had jumped by nearly two thirds.
The Zurich-based bank did not say how much the FHFA settlement
would cost but it took a charge of about CHF865 million (US$920
million) to cover litigation costs, provisions and writedowns
related to the deal and a Swiss tax agreement with Britain.
The FHFA sued 18 banks, accusing them of misleading U.S.
government-sponsored mortgage companies Fannie Mae and Freddie Mac
about US$200 billion in mortgage-backed bonds they purchased.
UBS did not reveal on July 22 whether it would admit to mis-
selling the bonds, although it said the settlement cost would be
covered by charges taken in the second quarter and previous
periods. Citigroup and General Electric have already settled with
the FHFA for undisclosed sums.
A total of 14 banks, including UBS, lost an attempt to have a U.S.
appeals court intervene in their cases with the FHFA amid
complaints by the banks about the judge hearing their cases.
Analysts at Credit Suisse had previously estimated UBS faced a
possible $1.2 billion litigation loss from the FHFA lawsuit and a
further $2.3 billion in U.S. mortgage-related legal costs
including class action suits by investors.
They also estimated a total $11 billion hit for European banks
from U.S. mortgage-related litigation. UBS and Deutsche Bank,
with a possible bill of $2.1 billion, would account for just over
half that.
Deutsche had set aside EUR2.4 billion at the end of the first
quarter to cover litigation, with sources telling Reuters the
biggest outlay was for U.S. mortgage-related costs.
Despite the uncertainty over lingering U.S. litigation, shares in
UBS jumped by more than four percent to CHF18.35 -- levels not
seen since March 2011 -- after the bank said its second-quarter
net profit rose to CHF690 million from CHF425 million in the same
period last year. This beat analysts' forecasts that were closer
to CHF560 million.
"The earnings are quite a bit a better than expected, capital also
looks good, and net new money at the private banks surpassed our
estimates," Zuercher Kantonalbank analyst Andreas Venditti said.
He has an "overweight" rating on the stock.
Tax & Mortgages
UBS did not give a break-down of its second-quarter profit, with
detailed results due on July 30, but analysts said they suggested
strong performances from both the investment bank and its wealth
management arm.
UBS said its wealth management arm attracted CH10.1 billion of new
money and its U.S.-based brokerage attracted CHF2.7 billion,
although its asset management division suffered CHF 2 billion in
outflows.
The private bank, which attracted the most customer money in six
years in the first quarter, is the centerpiece of UBS's drive to
recover from the financial crisis, after selling large parts of
its fixed income business and cutting 10,000 jobs.
Activist investor Knight Vinke, which is calling for UBS to hive
off its investment bank, said possible losses at the investment
division remained a threat and it would seek a meeting with the
bank's board after meeting fellow investors.
So far, New York-based Knight Vinke has met shareholders
representing over 30% of UBS's shares to drum up support for its
campaign. Meetings will continue through most of the third
quarter, it said in a statement.
Smaller domestic rival Julius Baer also beat profit expectations
on July 22 due to increased trading by clients, propelling its
shares to two year peaks.
Unlike UBS's strong private banking performance, however, Julius
Baer missed new money targets and raised the cost of integrating
Bank of America Merrill Lynch's overseas private bank, a flagship
acquisition last year, by around CHF55 million.
At 1320 GMT, Julius Baer stock was up 5.68% at CHF42, its highest
level since February 2011, making it the second-fastest riser on
the European banking index. UBS shares were up 2.67% at CHF18.08.
Swiss banks are also under threat from attacks on strict banking
secrecy in the country by cash-strapped foreign governments fed up
with tax evasion by rich citizens.
Julius Baer is negotiating with U.S. officials to settle
allegations it helped its wealthy U.S. customers to evade tax.
Chief Executive Boris Collardi told reporters the bank will make a
provision in its accounts for a settlement once it has an
indication of the cost. Negotiations over costs should begin
before the end of the year, he said, adding that he expected it to
be affordable.
Part of UBS's CHF865 million charge in the second quarter includes
CHF100 million it had already disclosed as part of a withholding
tax agreement between Switzerland and Britain, which came into
force this year. They signed the agreement to settle a dispute
over tax evasion by wealthy Britons holding accounts with Swiss
private banks.
Private banks such as UBS and Julius Baer are spending far more to
vet new clients as regulators get tough on firms that harbor tax
cheats and money launderers, which eats into their profit margins.
VISA INC: Tribunal Ruling May Provide Guide for Class Actions
-------------------------------------------------------------
Armina Ligaya, writing for Financial Post, reports that the
Competition Tribunal may have dismissed a complaint against Visa
and MasterCard over card fees charged to merchants, but other
conclusions in its ruling on July 23 could lay out a "road map"
for retailers in the next stage of battle with the financial
giants: class-action lawsuits.
There are at least five proposed class-action lawsuits, filed in
five provinces, alleging that several banks and credit card
companies were involved in a multi-billion-dollar price-fixing
conspiracy to charge excessive fees when processing credit card
transactions.
As part of this, the lawsuits allege, credit card companies and
banks, including CIBC and Royal Bank, restricted merchants from
imposing a surcharge on customers who pay with credit cards, and
forced retailers to accept all types of cards issued under the
Visa or MasterCard brand.
In its ruling on July 23, the tribunal threw out the application
by the Competition Bureau to strike down rules affecting how
credit card companies charge retailers, but in an alternative
analysis it concluded that by implementing a no-surcharge rule
"there had been an adverse effect on competition."
Vancouver-based Branch MacMaster, one of two firms handling the
class-actions, said the ruling was "disappointing", but was
"encouraged" by the Tribunal's alternate conclusion regarding the
impact on competition.
"What we're arguing is that, but for the rules, there would be
competition in the market and the fees that merchants pay would be
lower because of the effect of competition," said Luciana Brasil,
an attorney at Branch MacMaster. "So when they find . . . that
the no-surcharge rule has a negative effect on competition, it
dovetails with what we're seeking in our case."
A class-action case filed in British Columbia had its
certification hearing in April, and is awaiting a decision that
will shed light on how the other cases will proceed, Ms. Brasil
added.
Michael Osborne, a Toronto-based litigator at Affleck Greene
McMurtry LLP who has worked on a number of competition cases, said
the tribunal's conclusion holds no formal weight for the class-
action suits, which involve a separate provision under the
Competition Act.
But the ruling does provide somewhat of "a road map for the
plaintiffs to prove this [class-action] case."
"It's an encouraging sign, for the plaintiffs, potentially, but on
one aspect of the case that they will have to show," he said.
However, he wasn't sure how much it would help.
"They see now what potentially works and doesn't work," he said.
"It's like a dry run."
Jasminka Kalajdzic, an associate professor of law at the
University of Windsor, said class-action cases involving the
marketplace are difficult to handle in the court system.
A similar US$7.25-billion class-action case filed in the United
States against Visa, MasterCard and several banks was given
preliminary approval last year, but 10 of the 19 merchants
objected, Ms. Kalajdzic said.
Although the courts are the next stage for this dispute between
retailers and credit card companies over fees, they may not be the
best place to resolve the issue. She cited the tribunal's
conclusion that the "proper solution to the concerns raised by the
Commissioner is a regulatory framework."
"At the end of the day, what's needed is sound regulatory policy
to ensure that the credit card companies aren't harming consumers
and the merchants," Ms. Kalajdzic said. "And it may be that the
court decides that the best place to do that regulatory policy
making is in the legislative branch of government, not the
courts."
VITA HEALTH: Recalls Extra Strength Cold & Flu-In-One
-----------------------------------------------------
Starting date: July 22, 2013
Posting date: July 23, 2013
Type of communication: Drug Recall
Subcategory: Drugs
Hazard classification: Type II
Source of recall: Health Canada
Issue: Product Safety
Audience: General Public, Healthcare
Professionals, Hospitals
Identification number: RA-34733
Recalled products: Extra Strength Cold & Flu-In-One
DIN, NPN, DIN-HIM, DIN 02368528, Dosage form - Caplet
The caution statement: "CAUTION: KEEP OUT OF THE REACH OF
CHILDREN. This package contains enough drug to seriously harm a
child." This statement is missing in both French and English. As
this is a blister pack there is no child resistant packaging for
this product.
Recalling Firm Vita Health Products Inc.
150 Beghin Ave.
Winnipeg
R2J 3W2
Manitoba
Canada
Marketing Authorization Vita Health Products Inc.
Holder
150 Beghin Ave.
Winnipeg
R2J 3W2
Manitoba
Canada
VOLKSWAGEN AG: Law Firm Won't Proceed With Class Action
-------------------------------------------------------
Amy Bainbridge, writing for ABC News, reports that a Sydney law
firm says it will not press ahead with a class action against
German car-maker Volkswagen.
Scores of Volkswagen drivers contacted the ABC after a coronial
inquest into the death of a Melbourne woman heard her Volkswagen
suddenly lost power.
Melissa Ryan's car was hit from behind by a truck on a freeway two
years ago.
The inquest sparked complaints from owners whose cars have also
cut out or stopped on busy roads, allegedly due to a faulty
gearbox in a number of models.
Volkswagen has recalled about 30,000 cars in Australia following
similar recalls in China, Japan, Malaysia and Singapore.
Its Australian recall covers Jetta, Golf, Polo, Passat and Caddy
models manufactured between June 2008 and September 2011.
Saunders and Saunders Legal had been assessing a possible class
action for drivers in Australia.
Lawyer Brett Saunders has supplied the ABC with a statement on the
firm's decision not to proceed with the class action.
"Without commenting on the merits of any possible claim by any
class of owners against Volkswagen, our firm has determined not to
act for owners in a class action at this stage," the statement
said.
"Many owners have expressed the hope that the current recall will
address the issues experienced with their vehicles. The firm will
continue to monitor the implementation of the recall."
It is understood more than 100 drivers had raised concerns with
the firm.
It is unclear whether drivers are still pursuing a separate class
action through another legal firm.
The Victorian coroner will hand down the finding into Ms. Ryan's
death this week.
WASHINGTON, DC: DC Cops Target Black Motorcyclists, Suit Claims
---------------------------------------------------------------
Iulia Filip at Courthouse News Service reports that District of
Columbia police officers intentionally run their squad cars into
black motorcyclists, then confiscate the bikes and sell them,
eight African Americans claim in a federal class action.
Lead plaintiff Terry Thedale Cain claims Metropolitan Police
Department officers intentionally hit young, mostly male, black
bikers in poor areas of the city with their cruisers, without
regard for their constitutional rights, safety or lives.
The class claims the District of Columbia and MPD supervisors
condone and tacitly encourage the practice to make money off the
confiscated bikes.
Cain and his co-plaintiffs seek to represent all young black
motorcyclists driving small motorbikes or all-terrain vehicles of
250 cubic centimeters or less. They estimate the class to be in
the hundreds, based on declarations submitted by victims.
"The MPD has engaged in a practice of targeting young black bikers
with deadly force by intentionally striking motorbikes driven by
young black bikers, predominantly males, with MPD cruisers," the
complaint states.
"The young black bikers invariably run from the scene after they
have been hit by MPD cruisers if they can't get away on their
bikes, and leave their bikes at the scene of the collision.
"The MPD officers take these motorbikes into custody. Ultimately
these motorbikes are either confiscated by individual police
officers or sold by the MPD and/or by D.C.'s Department of Public
Works, thus creating a revenue stream for the District of
Columbia. Most bikers would not give up their bikes voluntarily
to the police so that it is a fair conclusion that the vast
majority of motorbikes confiscated by the MPD or claimed as
abandoned property are motorbikes that come from bikers that have
been hit off their bikes by MPD cruisers.
"This unconstitutional act of targeting an insular minority of
young black motorbike drivers with deadly force is a
discriminatory act of racial and class profiling that is
inherently unconstitutional and is exacerbated by the fact that
the respective bikers are being targeted intentionally with deadly
force that can result in serious injury or death."
Cain claims the police department should have known about the
practice since at least 2009 because of a lawsuit filed then.
"The MPD and DC knew or should have known that such a practice is
going on by the large accumulation of abandoned motorbikes that
occur after the police attempt to apprehend the said bikers," the
complaint states.
"One of the motivations that the police had to continue this
practice of targeting said bikers is that DC and its officers sell
these bikes, which benefits DC, the MPD and the individual
officers where there is little to no accountability regarding the
sale of these bikes."
Cain claims the police department and the District of Columbia
failed to train or sanction officers, and covered up their
misconduct.
"While this dangerous practice of targeting young black males
continues unabated, none of the MPD officers are sanctioned for
their violations of civil rights and are often promoted to higher
levels of the MPD," the lawsuit states. "Furthermore, whenever
infractions of police misconduct regarding knocking a biker off a
bike with a cruiser are exposed to public scrutiny, the MPD close
ranks and place the errant officer behind the veil of the blue
wall of silence and said MPD officers cover for their errant
officers by covering up their misdeeds."
The class claims the officers caused them bodily injuries, pain
and suffering, disability, emotional distress and damaged their
bikes, among other things.
They seek class certification and $100 million in compensatory and
punitive damages for constitutional violations, negligence,
assault, battery and intentional infliction of emotional distress.
The Plaintiffs are represented by:
David L. Shurtz, Esq.
3001 Earl Place, NE
Washington, DC 20018
Telephone: (202) 617-9142
E-mail: dshurtz103@gmail.com
The case is Cain v. District of Columbia, et al., Case No. 1:13-
cv-01103, in the U.S. District Court for the District of Columbia.
WISDOM ELECTRONICS: Recalls Wellson Glue Guns
---------------------------------------------
Starting date: July 23, 2013
Posting date: July 23, 2013
Type of communication: Consumer Product Recall
Subcategory: Hobby/Craft Items
Source of recall: Health Canada
Issue: Product Safety
Audience: General Public
Identification number: RA-34655
Affected products: Wellson Glue Guns
The recall involves the Wellson Glue Gun imported by Wisdom
Electronics Inc. The product comes in black with an orange
trigger and tip.
The recalled products have not been evaluated for safety against
any Canadian standards and bear an unauthorized cUL (Canadian
Underwriters Laboratories Inc.) certification mark. The product
may pose a safety hazard to consumers. Pictures of the recalled
products are available at: http://is.gd/X9r758
Neither Health Canada nor Wisdom Electronics Inc. has received
reports of incidents or injuries related to the use of these glue
guns.
Approximately 28,500 units of model TY-G1001 glue guns and 6,450
units of model TY-G4001 glue guns were sold at dollar stores,
hardware stores, and electronics stores across Canada.
The affected glue guns were manufactured in China and sold from
January 2011 to June 2013.
Companies:
Manufacturer Jiande Tongyu Electrical Appliance Tools Plant
Sanhe Town
China
Importer Wisdom Electronics Inc.
Scarborough
Ontario
Canada
Consumers should stop using the recalled glue guns and contact
Wisdom Electronics Inc. for a refund or credit.
For more information, consumers may contact Wisdom Electronics
Inc. by telephone at +1 (416) 321 3609, between 9 a.m. and 5 p.m.
EST, Monday through Friday.
YOUR HEALTHY: Recalls Spicy Carrots Over Undeclared Allergens
-------------------------------------------------------------
Starting date: July 23, 2013
Starting date: July 23, 2013
Type of communication: Recall
Alert sub-type: Allergy Alert
Subcategory: Allergen - Sesame Seeds
Hazard classification: Class 2
Source of recall: Canadian Food Inspection
Agency
Recalling firm: Your Healthy Choice Inc.
Distribution: Ontario
Extent of the product distribution: Retail
The Canadian Food Inspection Agency (CFIA) and Your Healthy Choice
Inc. are warning people with allergies to sesame not to consume
the Your Healthy Choice brand Spicy Carrots. The affected product
contains sesame which is not declared on the label.
There has been one reported reaction associated with the
consumption of this product.
Consumption of this product may cause a serious or life-
threatening reaction in persons with allergies to sesame.
The manufacturer, Your Healthy Choice Inc., Vaughan, ON, is
voluntarily recalling the affected product from the marketplace.
The CFIA is monitoring the effectiveness of the recall.
ZYNGA INC: Accused of Not Paying Overtime Wages in California
-------------------------------------------------------------
K. Jing, on behalf of himself and all those similarly situated v.
Zynga, Inc., a Delaware corporation and Does 1 through 100,
inclusive, Case No. 1-13-CV-249833 (Cal. Super. Ct., Santa Clara
Cty., July 22, 2013) accuses the Defendants of failing to pay
overtime fees and all wages upon termination, among other
failures.
The Plaintiff contends that Zynga failed to pay all wages and
overtime fees due at the agreed upon hourly rate under California
law. He adds that Zynga failed to properly itemize wage and hour
statements for all wages due at termination.
K. Jing, also known as Kai Jing, is a resident of California and a
former Zynga senior software engineer. He was employed by Zynga
from October 2010 to December 2012.
Zynga is a citizen of California. Although it is organized as a
Delaware corporation, Zynga's headquarters is in California and
major business decisions are made by executives in San Francisco,
California. Zynga is, among other things, a software game
producer in California.
The Plaintiff is represented by:
Christopher J. Hamner, Esq.
HAMNER LAW OFFICES, APC
555 W. Fifth Street, 31st Floor
Los Angeles, CA 90013
Telephone: (213) 533-4160
Facsimile: (213) 533-4167
E-mail: chamner@hamnerlaw.com
awooton@hamnerlaw.com
- and -
Glenn C. Nunes, Esq.
Anthony J. Nunes, Esq.
THE NUNES LAW GROUP
1 Sansome Street, Suit 3500
Telephone: (415) 946-8894
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E-mail: glenn@nuneslawgroup.com
tony@nuneslawgroup.com
* Australia Likely Jurisdiction of Choice for Class Actions
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Stuart Clark, Esq. -- sclark@claytonutz.com -- at Clayton Utz
reports that Australian courts could become the jurisdiction of
choice outside the US for plaintiffs, lawyers and funders
promoting class actions.
Since its introduction in 1992, the Australian class action regime
has become a key feature of the legal landscape. Barely a day
goes by without the threat of a new class action.
Australia has also made its mark on the class action stage
internationally, its plaintiff-friendly regime and a thriving
class action industry driven by an active litigation funding
sector. As a result, Australia is the place outside North America
where a corporation is most likely to find itself defending a
class action.
The class action regime in this country comprises essentially
identical rules in the federal court system and the courts of the
two most populous states, NSW and Victoria.
On any view, it is a more plaintiff-friendly procedure than the
class action rules found in the US.
First, the Australian class action procedure has no certification
requirement -- that is, there is no threshold requirement that the
proceedings be judicially certified as appropriate to be brought
as a class action.
Once a class action has been commenced, it continues until finally
resolved by judgment or settlement unless the defendant can
convince the court to terminate the proceedings on certain limited
grounds. Second, there is no requirement that common issues
predominate over the individual issues.
In reality it is sufficient for the representative plaintiff to
show there is at least one substantial common issue of fact or
law.
It does not matter that the common issue or issues are
insignificant when compared with the individual issues.
Third, the Australian rules, unlike those in the US, expressly
allow for the determination of "sub-group" or even individual
issues as part of a class action.
This means Australian courts have generally declined to
discontinue a class action simply because it is more properly
described as a mass of individual claims with some common
connections.
The classic example of this type of action is one involving a drug
or medical device. In the US, courts have been reluctant to allow
such actions to proceed as class actions, given the unique issues
of causation usually raised by individual class members.
As a consequence, an Australian representative plaintiff can
commence a class action claiming damages for injuries allegedly
suffered as a result of their use or exposure to an allegedly
defective product -- for example, a drug or medical device.
This is despite the fact that there will be myriad individual
facts and circumstances that must be taken into account before any
individual group member can be found to be entitled to recover
damages -- let alone determining the quantum of those damages.
Fourth, a representative plaintiff can define the class members by
description.
This means that a person who meets the criteria set out in the
class definition will be a class member unless they "opt out" of
the proceedings.
Thus, a person may be a class member, and thus bound by the
outcome of the proceedings, without their knowledge or consent
simply on the basis that they fall within a class definition.
Australian courts have tried a number of class actions involving
product liability claims to final judgment over the past few
years.
These include class actions involving medical devices and
pharmaceuticals.
In each case the trial proceeded by way of a trial of the
representative plaintiff's claims by a judge sitting alone.
However, each of these trials only finally resolved the claims of
the representative plaintiff.
In Courtney v Medtel Pty Limited & Others, for example, the court
found in favor of the representative plaintiff and made an award
of damages in his favor.
The parties where then faced with the prospect of either
negotiating a "global settlement" or resolving each subsequent
claim by way of a hearing or other method of adjudication.
Not surprisingly, a negotiated "global settlement" was achieved.
Two uniquely Australian initiatives have driven the growth of what
is best described as the Australian "class action industry".
These are the plaintiff law firms styled on their US counterparts
-- a number of which now operate as publicly listed corporations
-- and the recent emergence of the litigation funding enterprises.
Australian lawyers are prohibited from entering into contingency
fee arrangements with their clients under which their professional
fees are calculated by reference to the amount of any judgment or
settlement received by the client.
However, the prohibition only applies to lawyers. Litigation
funders are not so constrained, and have found a very profitable
role in the class-action market.
Litigation funding agreements are commercial arrangements under
which the funder agrees to pay the fees and out-of-pocket expenses
of the lawyer representing the plaintiffs.
The funder will also agree to satisfy any adverse costs orders
that may be made against an unsuccessful class plaintiff as a
consequence of Australia's "loser pays" rule.
In return for accepting this risk, the funder will take a portion
of any judgment or settlement, usually 30% to 40%, calculated
after the cost of the proceedings have been reimbursed.
It has proved a popular enterprise -- particularly in light of the
financial success of a series of shareholder-based class actions
which delivered very significant profits to the litigation
funders.
Australia is now home to a number of publicly listed litigation
funders, as well as numerous private enterprises.
A number of overseas funders have also entered the domestic
market.
Australian plaintiff law firms have combined with funders from the
US and other jurisdictions to pursue claims, and principals
associated with some of Australia's leading plaintiff lawyers have
ventured into the litigation-funding business themselves as
shareholders.
The impact of litigation funding on the class action industry has
been profound, and the class-action landscape has moved well
beyond anything imagined when the regime was introduced in 1992.
During the past 20 years, the subject matter of class actions has
varied.
Although traditionally a forum for settling mass tort or product
liability disputes, the start of the new millennium saw a trend
towards class actions being commenced to settle shareholder and
financial services disputes.
Some predicted that interest in product liability class actions
would wane.
However, in the past few years Australia has seen a renaissance of
product liability claims with recent filings focusing on medical
devices and prescription medications. There are two potential
reasons for this.
First, the major plaintiff firms and litigation funders have
focused their attention on the shareholder and financial services
claims and became the dominate players in that field. This has
left a gap in the market for emerging firms to pursue product
liability claims.
The upskilling of a greater number of firms in class action
litigation has resulted in more claims being commenced by
different plaintiff law firms.
Second, ongoing tort reform in Australia has continued to reduce
the availability of personal injury, motor vehicle and industrial
claims.
As a consequence, an increasing number of plaintiff lawyers,
particularly the larger firms, have turned their attention to
exploring product-based class actions.
The Australian class action industry is ever-expanding, some of
its key players extending their interests to overseas
jurisdictions.
For example, the leading litigation funder, IMF (Australia), is
funding litigation commenced in a number of other jurisdictions.
It has also established a wholly owned subsidiary, Bentham
Capital, in New York.
Slater & Gordon, one of Australia's leading plaintiff law firms in
the class action industry, and a publicly listed corporation, has
also extended its reach in the international arena, purchasing a
large plaintiff law firm in Britain.
As members of the Australian class action industry expand their
international reach, there has been a corresponding increase in
the presence of international participants in the local industry.
This may be due to the plaintiff-friendly regime.
It could also be attributed to developments in other
jurisdictions, for example, the recent ruling of the Supreme Court
of the US which limited the ability of non-US investors to pursue
claims for compensation from foreign companies through the
American legal system.
This has resulted in Goal Group, a London-based class action
consultancy firm which recently opened an Australian office, to
estimate that the income from class action settlements in
Australia will reach $US3.4 billion ($3.7bn) annually by 2020.
There can be little doubt that the Australian class action
industry will look to extend this new found foreign interest to
products claims.
Class actions are still a (relatively) new feature of the
Australian legal landscape, and are yet to see their full
potential.
That said, the class action industry has matured rapidly over the
past 20 years, and is now a significant feature on the Australian
legal landscape. As class actions come of age in Australia, the
country's courts have the potential to become the jurisdiction of
choice outside the US for plaintiffs, lawyers and funders
promoting class actions.
The potential implications of this for the global business
community led to the US Chamber of Commerce's Institute for Legal
Reform entering the debate in Australia earlier this year, arguing
in favor of greater regulation of Australia's litigation funders
as one way to curb the growth of the class action industry.
This is not something that will be resolved in the short term and
manufacturers and distributors would be wise to follow
developments in Australia closely.
* Courts Disagree on Primary Jurisdiction in Food Class Actions
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Rich Samp, Chief Counsel (Litigation) at Washington Legal
Foundation, in an article for Forbes, says that on July 12, two
different Northern District of California federal judges in two
separate food "mislabeling" class actions issued conflicting
decisions on an issue that arises routinely in such cases -- when
should courts decline to resolve disputes which fall under the
primary jurisdiction of a federal agency?
While the timing of the rulings may be coincidental, the
similarities between the suits are not. There are two of over
thirty suits filed in the last year in the Northern District of
California by a consortium of class action lawyers, some of whom
cut their teeth on tobacco litigation. All allege violations of
federal food labeling rules, which, they argue, can be enforced
through litigation under California consumer protection laws.
Hood v. Wholesoy & Co. Hood claimed that Wholesoy's use of the
term "evaporated cane juice" instead of "sugar" on the ingredient
list violates federal labeling rules, and that Wholesoy cannot
lawfully call its product "yogurt" because it contains soy.
Wholesoy argued in its motion to dismiss that Congress had
committed these issues to the Food and Drug Administration's (FDA)
purview, and that because FDA has not clearly stated a firm
position on the issues, the court should defer to FDA's regulatory
authority. Judge Rogers, who on July 11 ordered a stay in another
food labeling suit (Cox v. Gruma) based on this primary
jurisdiction doctrine, ruled the same way in Hood v. Wholesoy. On
the use of evaporated cane juice, Judge Rogers wrote that "FDA's
position is not yet settled" and that the draft guidance and
several warning letters plaintiffs cited as reflecting FDA's view
on cane juice don't constitute legally enforceable standards. On
whether defendant can use the term "soy yogurt," Judge Rogers
noted "FDA does not appear to have spoken at all." She granted
defendant's motion to dismiss without prejudice.
Kane v. Chobani, Inc. Kane alleged that Chobani's use of the terms
"evaporated cane juice" and "all natural" on its label, and its
promotional claims that its products had "no sugar added,"
violated federal labeling rules and were thus unlawfully
misleading under California law. In her July 12 order, Judge Koh
first analyzed whether Kane had standing to advance her three
claims. She found that Kane reasonably relied on Chobani's
evaporated cane juice labeling when purchasing yogurt. However,
Kane could not prove reliance on the "no sugar added" claim, Judge
Koh ruled, because she didn't allege she had ever viewed Chobani's
website. Finally, "because the labels clearly disclose the
presence of fruit or vegetable juice concentrates," Judge Koh
found Kane's reliance on "all natural" to be unreasonable.
Judge Koh next assessed whether federal rules preempted Kane's
remaining evaporated cane juice claim. She disagreed with
Chobani's implied preemption arguments. As to express preemption,
she "somewhat reluctantly" agreed with Kane's argument that FDA's
draft guidance on cane juice (mentioned above in the discussion of
Hood) stated FDA's position on the issue, and thus Kane's lawsuit
enforces that standard in a way that does not conflict with
federal rules.
The court finally turned to Chobani's argument that FDA had
primary jurisdiction over matters involving evaporated cane juice
labeling. Contrary to Judge Rogers' opinion on that issue in
Hood, Judge Koh decided that FDA's position on cane juice was
stated clearly in its draft guidance and warning letters, and thus
Kane's claims would not usurp the agency's authority.
Judge Koh did, however, invoke the primary jurisdiction doctrine
to dismiss Kane's claims that Chobani's use of cane juice violated
a federal Standard of Identity for "yogurt." FDA, she wrote, is
in the process of developing a new yogurt Standard of Identity, so
the court would defer to its process on that.
Three days later, on July 15, Judge Koh denied Kane's motion for a
preliminary injunction against Chobani's sale of products with
"evaporated cane juice" on the label.
Disqualification for Kane's Lawyers? Activity in Kane continues on
July 25, when Judge Koh will consider Chobani's motion to
disqualify the consortium of lawyers representing Kane. Chobani
argues that Kane's lawyers hired a federal labeling law expert
whom Chobani had previously retained and who had participated in
discussions with Chobani's legal team about litigation strategy.
The expert allegedly informed Kane's lawyers that she could not
consult on the Kane v. Chobani case, but, as Chobani argued, her
work on the lawyers' other similar or identical lawsuits would
clearly assist Kane in her suit against Chobani. In their
response to the disqualification motion, Kane's lawyers
predictably paint a different picture of the expert's hiring and
argue that neither the facts nor the legal standards justify their
removal from the case.
Implications of Hood and Kane. Defendants in the ongoing wave of
food mislabeling class actions have found little success when
deploying the primary jurisdiction doctrine. It is unclear
whether Judge Rogers's Cox and Hood rulings, as well as Judge
Koh's dismissal of the yogurt Standard of Identity claim in Kane,
signal increased recognition of the doctrine in the Northern
District of California (a.k.a. "The Food Court"). But with that
court issuing conflicting rulings on the same day and on the same
issue, the time may be drawing near when the Ninth Circuit, for
better or worse, will weigh in on the primary jurisdiction
doctrine.
* Creditors May Also Face Actions Over Debt-Collection Practices
----------------------------------------------------------------
Kevin S. Ranlett, Esq. -- kranlett@mayerbrown.com -- at Mayer
Brown reports that companies that provide credit to their
customers are well aware that the Fair Debt Collection Practices
Act (FDCPA), which authorizes suits against violators for
statutory damages of up to $1,000, applies only to "debt
collectors" -- not creditors. 15 U.S.C. Sec. 1692k.
But a recent bulletin by the CFPB -- whose commissioner Richard
Cordray was just confirmed by the Senate -- may open the door to
actions against creditors (albeit under the Dodd-Frank Act rather
than the FDCPA). That bulletin states that entities covered by
the Dodd-Frank Act must "refrain from committing unfair,
deceptive, or abusive acts or practices" in "collecting consumer
debts."
The bulletin makes clear that the CFPB will be using the Dodd-
Frank Act to apply the FDCPA to creditors. The bulletin then sets
forth a "non-exhaustive list" of debt-collection practices that it
says could violate Dodd-Frank and that the CFPB "will be watching
. . . closely." The list is essentially a compilation of alleged
misrepresentations and coercive tactics that have gotten debt
collectors sued under the FDCPA:
"Collecting or assessing a debt and/or any additional amounts
in connection with a debt (including interest, fees, and charges)
not expressly authorized by the agreement creating the debt or
permitted by law."
"Failing to post payments timely or properly or to credit a
consumer's account with payments that the consumer submitted on
time and then charging late fees to that consumer."
"Taking possession of property without the legal right to do
so."
"Revealing the consumer's debt, without the consumer's
consent, to the consumer's employer and/or co-workers."
"Falsely representing the character, amount, or legal status
of the debt."
"Misrepresenting that a debt collection communication is from
an attorney."
"Misrepresenting that a communication is from a government
source or that the source of the communication is affiliated with
the government."
"Misrepresenting whether information about a payment or
nonpayment would be furnished to a credit reporting agency."
"Misrepresenting to consumers that their debts would be waived
or forgiven if they accepted a settlement offer, when the company
does not, in fact, forgive or waive the debt."
"Threatening any action that is not intended or the covered
person or service provider does not have the authorization to
pursue, including false threats of lawsuits, arrest, prosecution,
or imprisonment for non-payment of a debt."
In a separate bulletin issued the same day, the CFPB suggested
that statements that repaying a debt will improve the debtor's
"credit report," "credit score," "creditworthiness," or
"likelihood" of getting more credit or credit on "more favorable
terms" may also be actionable under the Dodd-Frank Act.
What's not on the list in these bulletins? They omit the various
affirmative duties that the FDCPA imposes on debt collectors to
inform debtors of particular facts, such as that the purpose of
the communication is to collect a debt and that the debtor has the
right to insist upon verification of a debt. See 15 U.S.C.
Sections 1692e(11), 1692g.
The implicit warning of these bulletins, of course, is that
violators may face enforcement actions brought by the CFPB. And
one of the bulletins hints that even entities not covered by the
Act may be named defendants; a footnote observes that the Act
prohibits anyone from "knowingly or recklessly" providing
"substantial assistance" to a violation of the Act.
But the threat of new litigation against businesses does not end
there. Thankfully, the Dodd-Frank Act doesn't create a private
right of action. But it's only a matter of time before the
plaintiffs' bar files lawsuits alleging that the conduct discussed
by the bulletin violates state consumer-protection laws that do
authorize private suits. For example, it is inevitable that
plaintiffs will argue that California's notorious Unfair
Competition Law (UCL), Cal. Bus. & Prof. Code Secs. 17200 et seq.,
allows them to "borrow" violations of the CFPB's interpretation of
Dodd-Frank and recast them as violations of the UCL.
* Food Misbranding Class Actions Lawyer-Driven
----------------------------------------------
Glenn G. Lammi, Chief Counsel for Washington Legal Foundation's
Legal Studies Division, in an article for Forbes, says that public
health activists and their allies in the plaintiffs' bar want us
to believe that consumers are fed up with food and beverage
company misinformation and are marching into lawyers' offices
seeking help to redress their grievances.
This is an appealing, Erin Brockovich-like conception of
litigation, but is quite far from reality with regards to why
scores of class action lawsuits are pending in federal courts
against companies like Kraft, Dole Foods, and even Costco. Such
litigation, like the 1990s lawsuit crusade against tobacco
companies, is lawyer-driven and industry-targeted. An article
last March from American Lawyer Media's Recorder related:
"The latest push in food cases are so-called misbranding claims
based on allegations that food labels are not simply misleading to
consumers but explicitly violate federal standards.
"That has been the primary legal weapon of the consortium led by
Don Barrett, a Mississippi lawyer who made millions suing Big
Tobacco, and Robert Clifford, a Chicago lawyer whose practice
previously focused on commercial airline accidents.
"Advised by a former director of the FDA's Office of Food
Labeling, the group spent two years poring over FDA regulations.
Also on board as a consultant is UCSF professor Robert Lustig,
author of a new book linking sugar and processed foods to obesity
and disease.
"Last year the group filed 24 suits in less than two months
against companies like Procter & Gamble Co., Unilever and ConAgra
Foods. More recent suits target smaller brands in the natural
food market, like Wallaby Yogurt Co., WholeSoy & Co. and Green
Valley Organics."
A motion filed by Chobani to disqualify this consortium of lawyers
from a lawsuit against the company in the U.S. District Court for
the Northern District of California offers a more detailed view of
the lawyers' tactics and indiscriminate targeting. Chobani argues
that the lawyers should be disqualified because they hired a
federal labeling law expert whom Chobani had previously retained
and who had participated in discussions with Chobani's legal team
about litigation strategy.
Chobani is one of over 30 food-related companies sued by the same
lawyers in the same court, the Northern District of California.
The disqualification motion notes that "the cases substantially
overlap," to the point that "in the initial paragraph of the
Factual Allegations, the Complaints all contain nearly identical
language about the FDA."
Why the Northern District of California? The plaintiff's lawyer
targeted by Chobani's motion told The Recorder, "The law is more
favorable here than in any other jurisdictions that we've looked
at." Arnold & Porter partner William Stern, a recent author of a
WLF Legal Opinion Letter, said pointedly, "It's like having a
welcome mat on the front door."
The companies this consortium of lawyers has sued include:
7-Eleven, Inc.
Blue Diamond Growers
The Bromley Tea Company
Bumble Bee Foods, LLC
Chobani, Inc.
ConAgra Foods, Inc.
Costco Wholesale Corporation
Del Monte Corporation
Dole Foods Company, Inc.
Frito-Lay Food Company, Inc.
Gerber Products Company
The Hain Celestial Group, Inc.
The Hershey Company
Kraft Foods Global, Inc.
Nature's Path Foods, Inc.
Nestle USA, Inc.
Ocean Spray Cranberries, Inc.
Odwalla, Inc.
Proctor and Gamble Company
R.C. Bigelow, Inc.
Green Valley Organics, L.P.
Sunsweet Growers, Inc.
Tetley USA, Inc.
Turtle Mountain, LLC
Twinings North America, Inc.
Unilever United States, Inc.
Wallaby Yogurt Company, Inc.
Whole Foods Market, Inc.
Wholesoy & Co.
Wrigley Sales Company
* Securities Class Action Filings Remain Depressed in First Half
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Cornerstone Research on July 24 disclosed that federal securities
class action filing activity remains at depressed levels in the
first half of 2013, according to Securities Class Action Filings -
2013 Mid-Year Assessment, a report prepared by Cornerstone
Research and the Stanford Law School Securities Class Action
Clearinghouse. There were 74 filings in the first six months of
2013, compared with 88 in the first half of 2012 and 64 in the
second half of 2012. If the number of filings in the second half
of 2013 is the same as in the first half, the total number of
filings in 2013 will be the second-lowest number of annual filings
since 1997.
The slight increase in filings compared with the second half of
2012 is primarily due to an increase in filings against technology
and energy companies. There were 10 such filings each against
technology and energy companies in the first half of 2013,
compared with four and three, respectively, in the second half of
2012.
The loss of market capitalization associated with filings
decreases in 2013 and remains far below the historical averages
observed between 1997 and 2012. The total disclosure dollar loss
of $25 billion in the first six months of 2013 was less than half
of the semiannual average of $63 billion from 1997 to 2012. The
total maximum dollar loss of $113 billion in the first half of
2013 was 65 percent below the average of $326 billion in the six-
month periods between 1997 and 2012.
In addition, a new analysis finds that filings with an
institutional investor as a lead plaintiff were less likely to be
dismissed and more likely to reach a ruling on summary judgment
than filings without an institutional investor as a lead
plaintiff. For filings from 1996 through 2010, 35 percent of
cases with an institutional investor as a lead or co-lead
plaintiff were dismissed, compared with 42 percent without an
institutional investor.
Commentary
Dr. John Gould, Senior Vice President of Cornerstone Research:
"In prior research, we have found that the presence of an
institutional investor as the lead or co-lead plaintiff matters
when it comes to settlements. Settlements for cases with an
institutional investor plaintiff are higher, even after
controlling for 'hard' factors such as an estimate of shareholder
losses and 'soft' factors such as an accompanying SEC
investigation or accounting allegations. The current finding that
cases with an institutional investor plaintiff are less likely to
be dismissed provides support that part of this effect may be due
to the fact that institutions tend to be involved in 'stronger'
cases."
Professor Joseph Grundfest, Director of the Stanford Law School
Securities Class Action Clearinghouse in cooperation with
Cornerstone Research: "On a going-forward basis, a change in
defense litigation strategy is likely to be the most significant
development in the securities fraud litigation market. In Amgen,
four justices of the Supreme Court invited arguments over the
continued vitality of the 'fraud on the market' doctrine -- a
legal rule that allows plaintiffs to prosecute class actions
without having to demonstrate that they actually relied on the
alleged misrepresentation. The defense bar is rising to the
invitation. We are observing class certification challenges on
the grounds that the fraud on the market doctrine should not
apply. If this defense strategy is successful, and if the Supreme
Court eventually backs away from the fraud on the market doctrine,
then the class action securities fraud litigation market will
likely shrink significantly. This potential evolution in legal
doctrine likely represents the largest 'risk factor' for anyone
trying to predict the future course of the securities fraud
litigation market."
Key Findings
During the last 18 months, at least 8 percent of all filings were
against companies listed on the Over-the-Counter Bulletin Board
and Pink Sheets, twice the average historical rate. In contrast,
filings against companies in the S&P 500 -- those with larger
market capitalizations -- have declined in recent years,
culminating in the first half of 2013 with the least amount of
filing activity Cornerstone Research have observed in the 13 years
for which it has collected data.
Seven federal filings associated with mergers and acquisitions
took place during the first half of 2013, compared with eight and
five in the first and second halves of 2012, respectively. These
actions are now being pursued primarily in state courts after the
unusual jump in federal M&A filings in 2010 and 2011.
The rush of filings against Chinese issuers listed on U.S.
exchanges through reverse mergers has essentially ended. Two new
cases have been filed in 2013 -- a substantial decline from the
peak of 31 filings in 2011.
A larger percentage of cases are being dismissed compared with
prior years. For filings in the 2008 cohort, 50 percent have
already been dismissed. For the 2009 and 2010 filing cohorts,
dismissal rates increased to 53 and 56 percent, respectively. It
is premature to determine if dismissal rates have continued to
increase for more recent filing cohorts after 2010.
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania,
USA, and Beard Group, Inc., Washington, D.C., USA. Noemi Irene
A. Adala, Joy A. Agravante, Valerie Udtuhan, Julie Anne L. Toledo,
Christopher Patalinghug, Frauline Abangan and Peter A. Chapman,
Editors.
Copyright 2013. All rights reserved. ISSN 1525-2272.
This material is copyrighted and any commercial use, resale or
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Information contained herein is obtained from sources believed to
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