/raid1/www/Hosts/bankrupt/CAR_Public/131205.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, December 5, 2013, Vol. 15, No. 241
Headlines
AC ROOSEVELT: 2nd Cir. Upholds Atty. Fee Award in "Perez" Suit
AMARIN CORP: Kantrowitz Goldhamer Files Class Action in New Jersey
APPLE INC: Judge Grants Summary Judgment Motion in Privacy Suit
APPLE INC: Judge Tosses iPhone Antitrust Class Action
BANK OF AMERICA: KERS Obtains Favorable Ruling in ERISA Suit
BANK OF AMERICA: AIG Disclosure Securities Litigation Dismissed
BIGHORN CAPITAL: Lawyers Get TRO in Transvaginal Mesh Lawsuits
BOEING COMPANY: ERISA Class May Include 2,000 Wichita Ex-Workers
BOEING COMPANY: Seeks Review of Certification in VIP Lawsuit
BP PLC: Engineer Faces Obstruction-of-Justice Charges
BRISTOL-MYERS: Moves to Block Filing of Amended Abilify* Suit
BRISTOL-MYERS: Continues to Face Average Wholesale Prices Suits
CAPITAL ONE: New Mexico Court Dismisses Consumer Relief Claims
CHRYSLER LLC: TRW Bid to Enforce Prior Orders in "Masquat" Denied
CR BARD: Vaginal Mesh Lawsuits Consolidated Into MDLs
DEEPWATER HORIZON: Ted Frank Withdraws Appeal of Settlements
DH CAPITAL: District Court Ruling in "Tyler" Partially Affirmed
EMERALD GRAIN: WA Grain Growers Get Financing for Class Action
FAB UNIVERSAL: Robbins Geller Commences Securities Class Action
FOX ENTERTAINMENT: Request to Appeal Class Action Ruling Granted
FRESENIUS SE: Heart Attack Patient Joins Granuflo Class Action
GERALD S. KAUFMAN: Ruling in Suit vs. Barbiero Reversed
HEALTH CANADA: Two Law Firms Combine Marijuana Data Breach Suit
HEALTH CANADA: Sutts Strosberg Launches Privacy Class Action
HEBEI WELCOME: Judge Refuses to Toss Vitamin C Class Action
JOHNSON & JOHNSON: May Pay $1 Bil. to Insurers Under Settlement
LUMBER LIQUIDATORS: Pomerantz Grossman Files Class Action
LUMBER LIQUIDATORS: Motions Filed in Suit Over FACTA "Violation"
MGP INGREDIENTS: Enters Into Settlement Deal With Shareholders
MONSANTO COMPANY: Litigation Over Glyphosate Still Dormant
MONSANTO COMPANY: Suit by Wheat Farmers Consolidated, Transferred
MONSANTO COMPANY: Settlement of Suit Over Dioxins Under Appeal
MONSTER PAINTING: Default Judgment Ruling Entered in "Lagos" Suit
MOTOROLA SOLUTIONS: $200MM Settlement of Securities Suit Upheld
NATIONAL HOCKEY: Bob Bourne Joins Concussion Class Action
NATIONAL HOCKEY: 200+ Ex-Players to Join Class Action
NOVARTIS PHARMA: Zometa Plaintiffs Can Seek Punitive Damages
OMNICARE INC: Dismissal of Securities Lawsuit Under Appeal
OMNICARE INC: Petition for Writ of Certiorari Filed in Ky. Suit
OVERHILL FARMS: Class Cert. Denial in Ex-Employees' Suit Upheld
PEPPERIDGE FARM: "BolerJack" Plaintiffs May Amend Complaint
PONTIAC CORRECTIONAL: Merit Review Entered in Suit vs. Officers
PVR PARTNERS: Investor Files Class Action Over Regency Merger
SENTRY INSURANCE: Ordered to Produce Docs in "Soseeah" Class Suit
SEQWATER: Queenslanders to Launch Class Action Early Next Year
SOUTHWESTERN & PACIFIC: Bid to Strike Class Allegations Tossed
SPECRTE PERFORMANCE: "Avery" Suit Settlement Gets Final Approval
TESLA MOTORS: California Workers File Wage-and-Hour Class Action
TOYS "R" US: Settles Consumer Protection Lawsuit
TREASURY WINE: Seeks Injunction Against Class Action Specialist
U.S. CITIZENSHIP: A.B.T. Suit Settlement Wins Final Court Approval
U.S. CITIZENSHIP: Deadlines in A.B.T. Accord Extended to Dec.
UNITED STATES: Class Allegations Stricken in "Askins" Suit
VIOLIN MEMORY: Glancy Binkow & Goldberg Files Class Action
WEST PUBLISHING: Judge Strikes Down Baker's Legal Fee Request
WESTWARD HOSPITALITY: "Romanov" Suit Returns to State Court
* Big Securities Class Action Settlement May Spur Opt-Outs
*********
AC ROOSEVELT: 2nd Cir. Upholds Atty. Fee Award in "Perez" Suit
--------------------------------------------------------------
In PEREZ v. AC ROOSEVELT FOOD CORPORATION, AC Roosevelt and
Antonio Collado appealed from an August 13, 2012 order of the
United States District Court for the Eastern District of New York,
as memorialized in a January 7, 2013 judgment, granting Miguel
Perez's motion for attorneys' fees. Mr. Perez commenced this
action for overtime wages on October 20, 2010.
The United States Court of Appeals for the Second Circuit
dismissed the appeal as untimely, and affirmed the District Court
ruling.
The Second Circuit said entry of judgment did not restart the time
to appeal. It added that the District Court reviewed the parties'
submissions and contemporaneous lawyer time records; acknowledged
the work involved in litigating what was originally a class
action, notifying class members, and engaging with a defendant who
did not appear in the case for almost a year; and concluded that
the request for attorney's fees was "reasonable in all respects."
There was no abuse of discretion, ruled the Second Circuit.
The case is MIGUEL G. PEREZ, individually and on behalf of other
persons similarly situated who were employed by AC Roosevelt Food
Corp., d/b/a/ Champion Food Supermarket or any other entities
affiliated with or controlled by AC Roosevelt Food Corp. and
Antonio Collado, Plaintiff-Appellee, v. AC ROOSEVELT FOOD
CORPORATION, or any other entities affiliated with or controlled
by AC Roosevelt Food Corp. doing business as Champion Food
Supermarket, and ANTONIO COLLADO, Defendants-Appellants, DOCKET
NO. 13-497.
A copy of the Second Circuit's November 6, 2013 Opinion is
available at http://is.gd/3tPSORfrom Leagle.com.
For Appellants:
ANDREW SQUIRE, Esq.
379 Decatur St
Brooklyn, NY 11233
Telephone: (718) 771-2221
Facsimile: (718) 771-2243
For Appellee:
LADONNA M. LUSHER, Esq.
VIRGINIA & AMBINDER, LLP
111 Broadway, Suite 1403
New York, NY 10006
Telephone: (212) 943-9080
Facsimile: (212) 943-9082
E-mail: llusher@vandallp.com
AMARIN CORP: Kantrowitz Goldhamer Files Class Action in New Jersey
------------------------------------------------------------------
Kantrowitz, Goldhamer & Graifman, P.C. on Nov. 27 disclosed that
it has filed a class action lawsuit against Amarin Corporation
plc, Joseph S. Zakrzewski (Amarin's Chief Executive Officer) and
John F. Thero (Amarin's Principal Financial and Accounting
Officer), in the United States District Court for the District of
New Jersey, on behalf of all purchasers of American Depository
Shares ("ADSs") of Amarin on the open market, or pursuant to
Registration Statements filed with the SEC, between July 9, 2009
through October 15, 2013 seeking to pursue remedies under the
Securities Exchange Act of 1934.
American Depositary Shares are frequently referred to as "ADSs"
and is a vehicle for a foreign corporation to list their ordinary
equity on an American stock exchange. ADSs may be represented by
certificates that are commonly known as "American Depositary
Receipts," or "ADRs."
If you are a member of the Class described above and you wish to
serve as a lead plaintiff you may move the Court no later than
January 3, 2014; however, you must meet certain legal
requirements. If you wish to discuss this action or have any
questions concerning this notice or your rights or interests,
please contact plaintiff's counsel Gary S. Graifman, Esq. at
Kantrowitz, Goldhamer & Graifman, P.C., at 800-660-7843 or via
email to ggraifman@kgglaw.com or Melissa Emert, Esq. at Stull,
Stull & Brody at (954)-341-5561, or via e-mail to
memert@bellsouth.net
Any member of the putative class may move the Court to serve as
lead plaintiff through counsel of their choice, or may choose to
do nothing and remain an absent class member.
NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS
IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN
ONE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO NOTHING AT
THIS POINT. YOU MAY RETAIN COUNSEL OF YOUR CHOICE.
According to the lawsuit, defendants issued materially false and
misleading statements about Amarin's true business and financial
condition in violation of the federal securities laws.
Specifically, the complaint alleges that: (i) defendants
misrepresented the prospects for U.S. Food and Drug Administration
("FDA") approval of Amarin's lead product Vascepa, which reduces
triglycerides levels in adult patients; and (ii) defendants failed
to disclose that the FDA had informed Amarin that there was a lack
of prospective, controlled clinical trial data indicating that
pharmaceutical reduction of triglycerides significantly reduces
residual cardiovascular risk. The complaint alleges that
investors who purchased the Company's ADSs at artificially
inflated prices during the Class Period suffered damages when the
truth about the Company's financial condition was revealed to the
market at certain times during the Class Period and the price of
the Company's ADSs declined.
Kantrowitz, Goldhamer & Graifman, P.C. has been retained by a
purchaser of Amarin common stock seeking to recover damages on his
own behalf and on behalf of a class of purchasers of Amarin ADSs.
Kantrowitz, Goldhamer & Graifman, P.C. -- http://www.kgglaw.com--
has litigated many class actions for violations of securities laws
on behalf of defrauded investors over the past 20 years and has
obtained court approval of substantial settlements on numerous
occasions. Kantrowitz, Goldhamer & Graifman, P.C. has offices in
New York and New Jersey.
APPLE INC: Judge Grants Summary Judgment Motion in Privacy Suit
---------------------------------------------------------------
Julia Love, writing for The Recorder, reports that a federal judge
has disposed of one of the most mature privacy class actions filed
against a Silicon Valley company, concluding that plaintiffs'
claims against Apple Inc. were doomed by their ignorance of its
policies.
In an order issued on Nov. 25, U.S. District Judge Lucy Koh
granted Apple's motion for summary judgment that plaintiffs lack
standing and failed to turn up facts to support claims they filed
under California's Unfair Competition Law and Consumer Legal
Remedies Act. Represented by New York-based KamberLaw, the
plaintiffs accused Apple of allowing apps to harvest personal
information from iPhone, iPad and iPod Touch users and tracking
their locations. They claimed they would not have paid so much
for their Apple products if they had known how much information
the company was collecting.
But Apple's lawyers at Gibson Dunn & Crutcher challenged whether
consumers take privacy concerns into account as they decide which
products to buy. Judge Koh stressed that plaintiffs could not
have been harmed by Apple's statements about privacy unless they
relied on them.
"Critically, none of the plaintiffs presents evidence that he or
she even saw, let alone read and relied upon, the alleged
misrepresentations contained in the Apple Privacy Policies,"
Judge Koh wrote. "The Court questions how one can act in reliance
on a statement one does not see, read, or hear."
As most of the data privacy suits levied against Valley companies
have been thwarted with a motion to dismiss or settled soon after,
In re iPhone Application, 11-2250 was among the first to reach the
juncture of class certification, lawyers said. But Judge Koh
hobbled the case at that hurdle, denying the plaintiffs' motion
for class certification as moot in light of her other ruling in
Apple's favor.
The case raised eyebrows among groups monitoring privacy
litigation, including the U.S. Chamber Institute for Legal Reform,
which flagged it as an "extreme example" of the suits targeting
Valley companies. Former Gibson Dunn partner Ashlie Beringer
argued the motion for class certification before joining Facebook
as a vice president and deputy general counsel.
Scott Kamber of KamberLaw suggested that Judge Koh's decision not
to address the merits of the underlying claims might create an
opening for plaintiffs.
"While we are disappointed in the decision and working with our
clients to evaluate their options, it is worth noting that
Judge Koh denied Apple's motion in so far as Apple claimed there
was no injury," he wrote in an email.
The case seemed to turn for Judge Koh on the plaintiffs'
depositions. She noted in her order that plaintiffs either
conceded that they had not reviewed Apple's policies before
purchasing their devices or could not remember doing so. The
plaintiffs later attempted to retreat from those depositions in
declarations, but even in those documents they alleged only that
they had a "vague understanding" of Apple's policies, Judge Koh
wrote.
"A vague 'understanding' about Apple's privacy policies is not
enough," she wrote. "To survive summary judgment, plaintiffs are
required to set forth 'specific facts' in support of standing."
That may be a difficult hurdle for plaintiffs to clear, said
Eric Goldman, director of the High Tech Law Institute at Santa
Clara University.
"It's very hard for consumers to prove that they have read any
particular item in the marketplace," he said. "If future
plaintiffs have to make the same showing, they have no chance of
winning."
Judge Koh noted in the order that she had put plaintiffs on notice
about the holes in their case. This ruling underscores that she
will not allow sputtering suits to remain on her docket for long,
Goldman said.
"This opinion is dripping with frustration that the plaintiffs
didn't deliver what she asked for," Mr. Goldman said. "She's
going to wield the ax on cases that aren't making progress, and I
think this is a good example of how aggressively she'll swing that
ax."
APPLE INC: Judge Tosses iPhone Antitrust Class Action
-----------------------------------------------------
Julia Love, writing for The Recorder, reports that a federal judge
has tossed an antitrust class action accusing Apple Inc. of
illegally driving up the price of applications sold for use on its
signature iPhone.
Represented by Wolf Haldenstein Adler Freeman & Herz, a would-be
class of consumers claimed that Apple corners the market for
iPhone apps and thus enjoys monopoly pricing. Apple charges
developers a 30% fee for the apps they sell, forcing consumers to
fork over much more than they would in a free market, the
plaintiffs alleged.
In an 11-page order issued Dec. 2, U.S. District Judge Yvonne
Gonzalez Rogers of the Northern District of California granted
Apple's motion to dismiss In re Apple iPhone Antitrust Litigation,
11-6714. She concluded that consumers do not have standing to
challenge Apple's 30% fee because the cost is passed on to them by
developers.
"As such, any injury to plaintiffs is an indirect effect resulting
from the software developers' own costs," Judge Gonzalez Rogers
wrote.
Per antitrust laws, plaintiffs must show that they are direct
purchasers to challenge Apple's practices. Plaintiffs argued that
they fit that description because Apple sells the apps directly to
consumers. But Latham & Watkins partners Christopher Yates --
chris.yates@lw.com -- Daniel Wall -- dan.wall@lw.com -- and
Sadik Huseny -- sadik.huseny@lw.com -- argued that the 30% fee is
nothing more than a distribution cost imposed on consumers, which
renders them indirect purchasers.
Judge Gonzalez Rogers sided with Apple on that point and also
found that the plaintiffs failed to allege a conspiracy. She
added that the lack of evidence supplied by plaintiffs meant she
could not conclude that Apple's surcharge had driven up the price
of the apps without speculating about developers' pricing
structures.
"The court cannot assume, as plaintiffs do, that developers
charging 99 cents for an app would necessarily have charged 70%,
or 69 cents, if not for the agreement with Apple to pay them 30%
of the purchase price," she wrote.
BANK OF AMERICA: KERS Obtains Favorable Ruling in ERISA Suit
------------------------------------------------------------
KERS & Co. is one of several individual plaintiffs who brought
claims in the action KERS & Co., et al. v. Bank of America Corp.,
et al., 10 Civ. 2284. The Individual Action alleges that Bank of
America Corp., its officers and directors violated the federal
securities laws when they made alleged material misstatements and
omissions related to BofA's acquisition of Merrill Lynch & Co. in
2008. The Individual Action, along with several related actions,
has proceeded before District Judge P. Kevin Castel for pretrial
coordination pursuant to the multidistrict litigation statute, 28
U.S.C. Section 1407 in IN RE: BANK OF AMERICA CORP. SECURITIES,
DERIVATIVE, AND EMPLOYEE RETIREMENT INCOME SECURITY ACT (ERISA)
LITIGATION.
In order to pursue an expedited appeal from an order of the Court,
KERS moved to be severed from this action and for final judgment
to be entered against it pursuant to Rule 54(b), Fed. R. Civ. P.
Defendants take no position on KERS's motion.
Because KERS's proposed appeal is limited only to whether it
timely sought exclusion from the class, and, if not, whether its
failure to do so constituted excusable neglect, the motion is
granted, ruled Judge Castel.
The Clerk was directed to enter judgment for the Defendants solely
as to the claims brought by plaintiff KERS & Co.
A copy of the District Court's November 4, 2013 Memorandum and
Order is available at http://is.gd/RcSHPxfrom Leagle.com.
BANK OF AMERICA: AIG Disclosure Securities Litigation Dismissed
---------------------------------------------------------------
District Judge John G. Koeltl granted a motion to dismiss the case
captioned IN RE BANK OF AMERICA AIG DISCLOSURE SECURITIES
LITIGATION, NO. 11 CIV. 6678 (JGK), (S.D. N.Y.).
This action is another in the series of cases arising out of the
collapse of the market for mortgage backed securities(MBS). In
this case, the plaintiffs are purchasers of Bank of America stock.
BofA and its subsidiaries sold a substantial amount of MBS to
American International Group, Inc. (AIG). BofA made extensive
public disclosures about the amount of MBS that it and its
subsidiaries had sold, as well as the increasing risks of material
litigation against it, together with disclosures of actual
litigation that had been filed against it. In this lawsuit, the
plaintiffs allege that BofA and four of its officers defrauded
investors by failing to disclose the imminence and amount of a
potential MBS lawsuit by AIG against BofA.
The plaintiffs assert violations of Section 10(b) of the
Securities Exchange Act of 1934, 15 U.S.C. Section 78j(b), and
Rule 10b-5 promulgated thereunder, 17 C.F.R. Section 240.10b-5.
The plaintiffs also assert control person liability under Section
20(a) of the Securities Exchange Act, 15 U.S.C. Section 78t(a),
against four BofA officers: Chief Executive Officer Brian
Moynihan, Chief Financial Officer and Vice Chairman Charles Noski,
Chief and Principal Accounting Officer Neil Cotty, and Chief Risk
Officer Bruce Thompson (the individual defendants).
The defendants moved to dismiss the Second Amended Complaint for
failure to state a claim under Federal Rule of Civil Procedure
12(b)(6).
A copy of the District Court's November 1, 2013 Opinion and Order
is available at http://is.gd/iOwLvTfrom Leagle.com.
BIGHORN CAPITAL: Lawyers Get TRO in Transvaginal Mesh Lawsuits
--------------------------------------------------------------
Brenda Sapino Jeffreys, writing for Texas Lawyer, reports that
Houston plaintiffs lawyer F. Kenneth Bailey Jr. --
kbailey@bpblaw.com -- secured a temporary restraining order on
Nov. 18 to prevent a Las Vegas financing company from placing
liens and foreclosing on collateral he provided for a financing
commitment for transvaginal mesh lawsuits.
Judge Michael Landrum of the 113th District Court in Harris County
signed the TRO after Mr. Bailey and F. Kenneth Bailey PC filed a
lawsuit on Nov. 18 seeking declaratory relief and the TRO.
In Bailey v. Entler, Mr. Bailey and the PC allege Robert Entler of
Las Vegas and Bighorn Capital Inc. have threatened to file
"fraudulent liens" and to tortiously interfere with their
contracts with clients if the plaintiffs failed by Nov. 18 to pay
more than $7 million for loans -- loans the plaintiffs allege were
never funded.
"Irreparable injury to Plaintiffs and their businesses is
threatened, irrespective of any remedy at law, due to Defendants'
plan to notify Plaintiffs' lenders, clients and the Courts of the
alleged default and impending liens," Mr. Bailey and the PC allege
in the original petition, request for a temporary restraining
order and request for disclosure.
Neither Mr. Bailey, a founding partner in Bailey Peavy Bailey in
Houston, nor his attorney, Timothy McClosky --
tmccloskey@cmrllp.com -- a partner in Carrigan, McCloskey &
Roberson of Houston, returned a message seeking comment.
Mr. Entler, president of Bighorn Capital, also did not return a
message.
As alleged in the petition, Mr. Bailey's PC entered into a
financing commitment with Bighorn on Aug. 22, with terms calling
for Bighorn to make two loans to the PC, guaranteed by Mr. Bailey,
for financing of Bailey's caseload of several thousand
transvaginal mesh cases.
The plaintiffs allege the loans were subject to negotiation,
execution and delivery of agreements and other documents, and the
loans would be secured by fees and reimbursed expenses paid to the
firm from the transvaginal mesh cases.
They also allege the commitment would become null and void if the
loans were not funded within 30 days, unless both parties mutually
extended the deadline.
The plaintiffs allege the commitment expired on Sept. 22 because
neither loan was funded and the commitment was not extended.
"Incredibly, on November 11, 2013, Bighorn declared Bailey in
default on the Financing Commitment and threatened to lien and
foreclose on all of the collateral listed in the financing
Commitment, including the Transvaginal Mesh product liability
cases," the plaintiffs allege in the petition.
The plaintiffs also allege the defendants threatened to notify all
of plaintiffs' lenders associated with the collateral, courts and
all of Mr. Bailey's transvaginal mesh clients about the alleged
default and impending lien.
Bighorn also demanded payment of $7,523,000 "for money that was
never loaned on a Financing Commitment that is void on its face,"
the plaintiffs allege. The plaintiffs allege Mr. Entler told
Harris Junell, one of Bailey's partners in Bailey Peavy, that he
would take action if that money was not paid by Nov. 18.
In a Nov. 11 letter to Mr. Bailey from Mr. Entler, which is
attached as an exhibit to the petition, Mr. Entler alleges Bailey
breached the commitment because Bailey "blatantly violated the
exclusivity provisions" of the commitment and because he
"intentionally failed to provide our firm with accurate financial
information."
"We plan on seeking every available remedy at this time against
either the law firm and/or the guarantor and are exploring all
avenues available to us to address a variety of sins committed
here," Mr. Entler wrote in the letter, in which he demanded
payment of $7,523,000 for full payment of the financial
commitment.
In addition to injunctive relief, the plaintiffs seek a
declaratory judgment that the financial commitment is null and
void.
The TRO Landrum signed on Nov. 18 prevents Mr. Entler and Bighorn
from contacting any of the plaintiffs' lenders, contacting any of
plaintiffs' clients or courts in which the plaintiffs have pending
cases, or transmitting or filing any documents that "purports to
create a lien or record of any debt" against Mr. Bailey, his firm
and Bailey Peavy.
BOEING COMPANY: ERISA Class May Include 2,000 Wichita Ex-Workers
----------------------------------------------------------------
The Boeing Company estimates that the putative class in the suit
Harkness et al. v. filed in the U.S. District Court for the
District of Kansas includes 2,000 former Wichita employees,
according to the company's Oct. 23, 2013, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
Sept. 30, 2013.
In connection with the 2005 sale of the company's former Wichita
facility to Spirit AeroSystems, Inc. (Spirit), certain individuals
not hired by Spirit alleged that Spirit's hiring decisions
following the sale were tainted by age discrimination, violated
ERISA, violated the company's collective bargaining agreements,
and constituted retaliation. The case was brought in 2006 as a
class action on behalf of individuals not hired by Spirit. In
2012, the Tenth Circuit Court of Appeals affirmed the district
court's 2010 summary judgment in favor of Boeing and Spirit on all
class action claims, but the parties were not precluded from
making claims on an individual basis. As of September 30, 2013,
eighty-eight individual claims related to this matter were
pending.
Spirit has agreed to indemnify Boeing for any and all losses.
Also related to the 2005 sale of the former Wichita facility, on
February 16, 2007, an action entitled Harkness et al. v. The
Boeing Company et al. was filed in the U.S. District Court for the
District of Kansas, alleging collective bargaining agreement
breaches and ERISA violations in connection with alleged failures
to provide benefits to certain former employees of the Wichita
facility. On December 11, 2012 the court denied plaintiffs' motion
for summary judgment and granted Boeing's motion for summary
judgment on plaintiffs' claim that amendment of The Boeing Company
Employee Retirement Plan violated the IAM collective bargaining
agreement, as well as individual ERISA Section510 claims for
interference with benefits. The court denied Boeing's motion for
all other claims. The parties are conducting additional discovery
in anticipation of further court proceedings, which have not yet
been scheduled. The company believes that Spirit is obligated to
indemnify Boeing for any and all losses in this matter, although
to date Spirit has acknowledged a limited indemnification
obligation. The company currently estimates that the putative
class includes 2,000 former Wichita employees. The company cannot
reasonably estimate the range of loss, if any, that may result
from both these matters given the current procedural status of the
litigation.
BOEING COMPANY: Seeks Review of Certification in VIP Lawsuit
------------------------------------------------------------
The Boeing Company filed a petition with the Seventh Circuit Court
of Appeals for review of the class certification order in a suit
filed on behalf of participants and beneficiaries in The Boeing
Company Voluntary Investment Plan (the VIP), according to the
company's Oct. 23, 2013, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended Sept. 30, 2013.
On October 13, 2006, the company was named as a defendant in a
lawsuit filed in the U.S. District Court for the Southern District
of Illinois. Plaintiffs, seeking to represent a class of similarly
situated participants and beneficiaries in The Boeing Company
Voluntary Investment Plan (the VIP), alleged that fees and
expenses incurred by the VIP were and are unreasonable and
excessive, not incurred solely for the benefit of the VIP and its
participants, and were undisclosed to participants.
The plaintiffs further alleged that defendants breached their
fiduciary duties in violation of Section502(a)(2) of ERISA, and
sought injunctive and equitable relief pursuant to Section
502(a)(3) of ERISA. During the first quarter of 2010, the Seventh
Circuit Court of Appeals granted a stay of trial proceedings in
the district court pending resolution of an appeal made by Boeing
in 2008 to the case's class certification order.
On January 21, 2011, the Seventh Circuit reversed the district
court's class certification order and decertified the class. The
Seventh Circuit remanded the case to the district court for
further proceedings. On March 2, 2011, plaintiffs filed an
amended motion for class certification and a supplemental motion
on August 7, 2011. Boeing's opposition to class certification was
filed on September 6, 2011. Plaintiffs' reply brief in support of
class certification was filed on September 27, 2011. The court has
stated its intent to issue rulings on the amended motion for class
certification and the alternative motion to proceed as a direct
action for breach of fiduciary duty and then stay the case until
it is determined if an appeal of the class certification order is
filed. As a result, on September 19, 2012 the district court
issued an order denying Boeing's motions for summary judgment as
premature pending class determination. On September 19, 2013, the
district court granted plaintiffs' motion for class certification.
On October 3, 2013, Boeing filed a petition for review of the
class certification order with the Seventh Circuit Court of
Appeals. The company cannot reasonably estimate the range of loss,
if any, that may result from this matter given the current
procedural status of the litigation.
BP PLC: Engineer Faces Obstruction-of-Justice Charges
-----------------------------------------------------
Paul M. Barrett, writing for Bloomberg News, reports that a former
BP engineer faces obstruction-of-justice charges on Dec. 2 in the
first criminal trial stemming from the 2010 Gulf of Mexico oil
spill. The prosecution in New Orleans serves as a reminder of the
human consequences of the disaster, even as the British oil giant
tries to limit its multibillion-dollar civil liability in a
rancorous feud with plaintiffs' attorneys and a federal judge.
Bloomberg News provides an excellent curtain-raiser for the
criminal trial of the former BP (BP) senior engineer:
"U.S. prosecutors charged Kurt Mix with two counts of obstruction
of justice last year, alleging he deleted from his mobile phone
text messages and voice mails related to the company's effort to
estimate the size of the spill. Mix has pleaded not guilty. His
trial in federal court in New Orleans was scheduled to start
Dec. 2 with jury selection. The blowout of BP's deep-water
Macondo well off the coast of Louisiana in April 2010 killed 11
people and set off the largest offshore oil spill in U.S. history.
Prosecutors allege Mix destroyed material sought for a federal
probe of the disaster. Mix denies any intentional destruction of
evidence.
"'The government has a solid case but it may be difficult to show
he acted corruptly,' said David Uhlmann, professor at the
University of Michigan Law School in Ann Arbor and former head of
the environmental crimes section of the U.S. Justice Department.
'Mix's lawyer will argue that any destruction of evidence made no
difference in the government's investigation,' he said in a phone
interview. 'It may not be a valid legal argument, but it may
affect how a jury views Mix's conduct.'"
Various corporate players have already admitted criminal liability
in the disaster. BP agreed last year to pay $4 billion as part of
a plea deal involving 14 criminal counts -- 11 of them for felony
manslaughter. BP contractor Transocean (RIG), which operated the
doomed Deepwater Horizon oil rig, pleaded guilty in February to
one misdemeanor count of violating the federal Clean Water Act and
agreed to pay a $400 million fine. Another contractor,
Halliburton (HAL), agreed in July to plead guilty to a misdemeanor
for failing to preserve computer models of the final cement job
for the well. More criminal prosecutions of individual former BP
employees are scheduled for next year.
Apart from questions of the culpability of ex-BP managers and
executives, there's the dollars-and-cents matter of the company's
civil liability. After initially trying to resolve its courtroom
exposure by means of settlements and conciliation, BP has lately
taken a more aggressive stance, accusing plaintiffs' attorneys and
a federal trial judge in New Orleans of encouraging inflated and
"fictions" claims against the company.
BRISTOL-MYERS: Moves to Block Filing of Amended Abilify* Suit
-------------------------------------------------------------
Bristol-Myers Squibb Company is opposing a motion by plaintiffs in
the Abilify* Co-Pay Assistance Litigation for leave to file an
amended complaint, according to the company's Oct. 23, 2013, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended Sept. 30, 2013.
In March 2012, the Company and its partner Otsuka were named as
co-defendants in a putative class action lawsuit filed by union
health and welfare funds in the SDNY. Plaintiffs are challenging
the legality of the Abilify* co-pay assistance program under the
Federal Antitrust and the Racketeer Influenced and Corrupt
Organizations (RICO) laws, and seeking damages. The Company and
Otsuka filed a motion to dismiss the complaint. In June 2013, the
Court granted the Company's motion, dismissing all claims but
allowing plaintiffs to re-plead the RICO claim. In August 2013,
the plaintiffs moved for leave to file an amended complaint, and
the Company has opposed the motion on various grounds. It is not
possible at this time to reasonably assess the outcome of this
litigation or its potential impact on the Company.
BRISTOL-MYERS: Continues to Face Average Wholesale Prices Suits
---------------------------------------------------------------
Bristol-Myers Squibb Company faces private class actions as well
as suits brought by the attorneys general of various states
alleging inflation of the Average Wholesale Prices (AWPs),
according to the company's Oct. 23, 2013, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
Sept. 30, 2013.
The Company, together with a number of other pharmaceutical
manufacturers, has been a defendant in a number of private class
actions as well as suits brought by the attorneys general of
various states. In these actions, plaintiffs allege that
defendants caused the Average Wholesale Prices (AWPs) of their
products to be inflated, thereby injuring government programs,
entities and persons who reimbursed prescription drugs based on
AWPs. The Company remains a defendant in two state attorneys
general suits pending in state courts in Pennsylvania and
Wisconsin. Beginning in August 2010, the Company was the defendant
in a trial in the Commonwealth Court of Pennsylvania (Commonwealth
Court), brought by the Commonwealth of Pennsylvania. In September
2010, the jury issued a verdict for the Company, finding that the
Company was not liable for fraudulent or negligent
misrepresentation; however, the Commonwealth Court judge issued a
decision on a Pennsylvania consumer protection claim that did not
go to the jury, finding the Company liable for $28 million and
enjoining the Company from contributing to the provision of
inflated AWPs. The Company appealed the decision to the
Pennsylvania Supreme Court and oral argument took place in May
2013.
CAPITAL ONE: New Mexico Court Dismisses Consumer Relief Claims
--------------------------------------------------------------
STATE OF NEW MEXICO EX REL. GARY KING, ATTORNEY GENERAL,
Plaintiff, v. CAPITAL ONE BANK (USA) N.A. and CAPITAL ONE
SERVICES, LLC, Defendants, CASE NO. 13CV00513 WJ/RHS, (D. N. M.)
is before the Court upon defendants' motion to dismiss consumer
relief claims pursuant to prior class action settlement filed
August 8, 2013.
The Defendants claim that the class action lawsuit Spinelli v.
Capital One Bank (USA) N.A., No. 8:08-cv-132-T33EAJ (M.D. Fla)
which involved a settlement of claims brought by consumers
regarding the Defendants' payment protection plans bars
Plaintiff's claims for restitution on behalf of individual
consumers.
District Judge William P. Johnson granted the request saying the
all of the elements for res judicata are satisfied and the
Plaintiff is barred from bringing a claim for compensation on
behalf of consumers who were class members in the Spinelli action.
Therefore, Plaintiff's consumer relief claim under Count II
(Regulation Z) of its Complaint is dismissed with prejudice.
A copy of the District Court's November 4, 2013 Memorandum Opinion
and Order is available at http://is.gd/16lVREfrom Leagle.com.
CHRYSLER LLC: TRW Bid to Enforce Prior Orders in "Masquat" Denied
-----------------------------------------------------------------
Chrysler LLC, n/k/a Old Carco LLC filed a Chapter 11 petition on
April 30, 2009. Prior to bankruptcy, Rhonda Masquat commenced a
class action against Chrysler relating to a defect in its
vehicles. Chrysler and Masquat subsequently entered into a
stipulation pursuant to which Chrysler agreed to relief from the
stay, Masquat agreed to limit any recovery to insurance coverage
and Masquat otherwise waived the class's claims against the
estate. Discovering that there is no insurance, Masquat intends
to use any judgment against Chrysler as a predicate to sue the
manufacturer of the defective component, TRW Automotive US, LLC
and TRW Automotive Holdings, Corp.
TRW has moved to prevent Masquat from using the judgment as the
predicate to sue TRW, and seeks a declaration that the use of the
judgment for that purpose is void as violative of the parties'
Stipulation and the order confirming Chrysler's Second Amended
Joint Plan of Liquidation.
Bankruptcy Judge Stuart M. Bernstein denied the motion but with
certain limitations.
Judge Bernstein held that Masquat may pursue any claims against
TRW based on TRW's direct liability to the class under state law,
presumably Michigan law. The Court offers no view on those claims
except to reiterate that TRW was not a third-party beneficiary
under the Stipulation, a conclusion necessary to the determination
that TRW lacked prudential standing. However, the claims arising
in Chrysler's favor by virtue of TRW's alleged breach of the TRW
Insurance Obligations and its duties under the TRW Indemnity
Obligation vested in the Liquidating Trust free and clear of any
claims. Masquat cannot assert the Liquidating Trust's claims
against TRW; it can only assert its own claims. This does not mean
that Masquat is precluded from arguing that TRW owed contractual
duties to Chrysler, or breach them. If those duties (or breaches)
gave rise to independent obligations owed by TRW directly to
Masquat under non-bankruptcy law, Masquat is free to pursue them.
"Finally, the Litigation Order exceeds the relief granted to
Masquat in the Stipulation," held Judge Bernstein. It impliedly
requires Chrysler to set up a notice and claims administration and
expressly directs Chrysler to undertake the "identification of all
current owners as set forth in the class definition." The
imposition of these duties and obligations on Chrysler is directly
contrary to the Stipulation and the Confirmation Order, and is not
enforceable against Chrysler," he said.
The case is In re: OLD CARCO LLC, (f/k/a CHRYSLER LLC), et al.,
Chapter 11, Debtors, CASE NO. 09-50002 (SMB), (S.D.N.Y.).
A copy of the District Court's November 8, 2013 Memorandum
Decision is available at http://is.gd/zneVIqfrom Leagle.com.
KLESTADT & WINTERS, LLP, Sean C. Southard, Esq. --
ssouthard@klestadt.com -- Maeghan J. McLoughlin, Esq. --
mmcloughlin@klestadt.com -- New York, New York, Of Counsel, and
BROOKS WILKINS SHARKEY & TURCO, PLLC, Herbert C. Donovan, Esq. --
donovan@bwst-law.com -- Michael R. Turco, Esq. --
turco@bwst-law.com -- Birmingham, Michigan, Of Counsel Attorneys
for TRW Automotive US, LLC and TRW Automotive Holdings Corp.
OLSHAN FROME WOLOSKY LLP Michael S. Fox, Esq. --
mfox@olshanlaw.com -- Fredrick J. Levy, Esq. --
flevy@olshanlaw.com -- Nicole C. Barna, Esq. --
nbarna@olshanlaw.com -- New York, New York, Of Counsel
Attorneys for Rhonda Masquat.
CR BARD: Vaginal Mesh Lawsuits Consolidated Into MDLs
-----------------------------------------------------
Cliff Rieders, Esq., at Rieders, Travis, Humphrey, Harris Waters &
Waffenschmidt reports that so far approximately 35,000
transvaginal mesh lawsuits have been filed against six different
device manufacturers alleging that the mesh products are defective
and resulted in severe injuries due to erosion of the mesh.
Vaginal mesh products are surgically implanted for treatment or
pelvic organ prolapse (POP) or urinary stress incontinence (SUI).
Many women have undergone surgery to have both mesh types removed.
In federal court, the vaginal mesh lawsuits have been consolidated
into six different multidistrict litigations (MDLs) organized by
manufacturer. All of the MDLs are in the federal court for the
Southern District of West Virginia. The MDLs are presided over by
district court Judge Robert Goodwin.
US District Judge Robert Goodwin, who is overseeing the MDLs, had
originally suggested individual trials of bellwether cases, which
would be those most representative of all the lawsuits against the
four manufacturers with the oldest and largest number of cases.
This year, CR Bard, the manufacturer of Avaulta, Faslata, Pelvicol
and PelviSoft Products was the first to have trials heard as
bellwethers. On August 15, a jury awarded $2 million including
punitive damages in the first bellwether case against CR Bard.
Bard settled the second bellwether case out of court. The third
lawsuit was withdrawn by plaintiffs. The fourth bellwether case
against CR Bard is scheduled to go to trial on December 3, 2013.
Bellwether trials in the MDLs against American Medical Systems,
Inc., Ethicon Inc. (a division of Johnson & Johnson) and Boston
Scientific Corp. are scheduled to be tried next year.
On June 14, American Medical Systems agreed to pay $54.5 million
to settle some cases. However, the settlement didn't resolve the
majority of the more than 10,000 pending against American
Medical's subsidiary Endo Health Solutions Inc. Because a broad
settlement of outstanding cases could take a long time, Judge
Goodwin has indicated he wishes to speed up the process, and has
asked attorneys to suggest a way to consolidate the remaining
cases for trial.
Additional lawsuits continued to be filed against the defendants,
with as many as 60,000 lawsuits expected to be filed.
DEEPWATER HORIZON: Ted Frank Withdraws Appeal of Settlements
------------------------------------------------------------
The National Law Journal reports that attorneys Ted Frank and
Darrell Palmer have withdrawn their appeals of two settlements
with BP over the Deepwater Horizon oil spill after several of
their former clients accused them of misconduct.
Mr. Frank, a Washington attorney and founder of the Center for
Class Action Fairness, and Mr. Palmer, a solo practitioner in
Carlsbad, Calif., were fired by three of their clients on Nov. 22.
Those objectors, Florida property owners now represented by
Ronnie Penton, a solo practitioner in Bogalusa, La., voluntarily
withdrew their appeals of both the $9.6 billion settlement
resolving economic damages claims and a smaller deal over medical
claims associated with the 2010 spill's cleanup, citing their
prior counsel's "unauthorized and unapproved actions and conduct."
In filings made on Nov. 26 before the U.S. Court of Appeals for
the Fifth Circuit, Messrs. Frank and Palmer voluntarily dismissed
their remaining clients -- a father and son -- citing the risk of
potential sanctions threatened against their clients by lead
plaintiffs counsel in both settlements. They denied accusations
from plaintiffs counsel that their clients weren't legitimate
class members.
Neither Messrs. Frank nor Palmer responded to requests for
comment.
Messrs. Frank and Palmer in court papers also responded on Nov. 26
to the accusations made by their former clients. In a Fifth
Circuit filing, they maintained that they regularly informed their
former clients of all court documents and other materials,
including a pending sanctions motion against Palmer in the medical
claims case. "Given the abusive depositions they underwent, and
the threat of further abusive depositions, it is understandable
that the [three objectors] have decided they no longer wish to
pursue their appeals and objections," they wrote. Their new
attorney, however, is "not entitled to make gratuitous and
reckless allegations" against them.
Also on Nov. 26, lead plaintiffs attorneys dropped their sanctions
motion filed in district court against Palmer and his former
clients.
DH CAPITAL: District Court Ruling in "Tyler" Partially Affirmed
---------------------------------------------------------------
Dionte Tyler brought an action under the Fair Debt Collection
Practices Act (FDCPA) and Kentucky's usury laws, alleging that the
debt-collection action instituted by DH Capital Management (DHC)
sought to collect an amount to which DHC was not legally entitled.
The district court dismissed the suit, because it was procedurally
barred as not having been raised previously as a counterclaim, and
because Tyler's bankruptcy trustee, not Tyler, was the proper
party-in-interest. An appeal was filed raising various issues of
procedural timing, which arise out of an unusual order of events
caused by the interaction between DHC's collection suit and
Tyler's declaration of bankruptcy. In particular, the appeal
sought answers for these questions: 1) whether Tyler's suit is
barred for failure to raise his claims as counterclaims in the
original debt-collection action, during the brief period before it
was voluntarily dismissed and 2) whether Tyler's suit is a pre-
petition cause of action that only his bankruptcy trustee has
authority to pursue.
In an amended opinion, the United States Court of Appeals, Sixth
Circuit affirmed in part and reversed in part the judgment of the
district court.
The Sixth Circuit found that the district court erred in holding
that Tyler's claim was barred under res judicata principles, but
agree that Tyler's claim is based on a pre-petition violation and
thus is property of the bankruptcy estate.
Only if Tyler schedules his claims and the trustee declines to
pursue them will he be able to reinitiate his suit, the Sixth
Circuit added.
The case is DIONTE TYLER, Plaintiff-Appellant, v. DH CAPITAL
MANAGEMENT, INC., Defendant-Appellee, NO. 13-5021.
A copy of the Appeals Court's November 7, 2013 Amended Opinion is
available at http://is.gd/rANGTWfrom Leagle.com.
ARGUED for Appellant:
James McKenzie, Esq.
PEDLEY & GORDINIER, PLLC
4055 Shelbyville Rd
Louisville, KY
Telephone: (502) 286-4636.
For Appellee:
John R. Tarter, Esq.
MAPOTHER & MAPOTHER, P.S.C.
815 West Market Street, Suite 500
Louisville, KY 40202-2654
Telephone: (502) 587-5400
Facsimile: (502) 587-5444
ON BRIEF: James McKenzie, PEDLEY & GORDINIER, PLLC, Louisville,
Kentucky, for Appellant.
John R. Tarter, MAPOTHER & MAPOTHER, P.S.C., Louisville, Kentucky,
for Appellee.
EMERALD GRAIN: WA Grain Growers Get Financing for Class Action
--------------------------------------------------------------
Belinda Varischetti, writing for ABC Rural, reports that the legal
firm representing a group of WA grain growers in a class action
against Emerald Grain over the performance of the company's
2011/2012 grain pool says it has secured an extra AUD135,000 to
progress the case.
Breaking that down, that's an extra AUD90,000 from WA grain
growers, and AUD45,000 from a benevolent financial donor.
Earlier this year Tom Howard the General Manager of distribution
at Emerald Grain admitted the pool had underperformed and the
losses ran into millions of dollars.
A grain pool is basically a collection of growers grain which
captures value in price through a period of time and then gives
the grower an average price over that period of time.
Nathan Draper is a lawyer with Granich Partners.
"We have been endeavoring to get financing for the action that we
propose bringing shortly. We have requested that those farmers
that contributed initially to the matter to make a further
contribution of AUD1,500. To date of the 75 farmers that had
joined up we've received in excess of 60 farmers joining us and
making payment of that AUD1,500," he said.
"We weren't expecting to get as many as 75 farmers make further
contributions of AUD1,500 each given the dire financial
circumstances most of the farmers especially those that have been
effected by the Emerald Pool. We thought given those
circumstances that far less than 60 farmers would be prepared to
contribute a further AUD1,500 to the matter, so were quite
surprised."
"We actually, in anticipation that we wouldn't get that many we've
managed to secure a benevolent financial donor who has agreed at
this early stage to stand if you like as a guarantee for the
shortfall in the difference between the farmers who do contribute
for the future funding."
"Lawyers are notoriously not in the business of giving guarantees,
but this is one matter where I'm more confident than usual that we
will get a result for the growers."
Emerald Grain provided a statement response to the Country Hour.
It reads "Emerald Grain has been communicating directly with
growers since the 2011/2012 pool closed. Our grain merchants in
Geraldton, Kwinana and Albany are always available to assist our
customers. Pools don't guarantee a return and an EPR is only ever
an estimate; this is made very clear in the terms and conditions.
Our advice to growers has been to seek independent legal advice
before spending money on legal costs. We are focused on working
with growers on current marketing programs and have had a very
good response this season to structured cash products to give
growers greater flexibility."
FAB UNIVERSAL: Robbins Geller Commences Securities Class Action
---------------------------------------------------------------
Robbins Geller Rudman & Dowd LLP on Nov. 27 disclosed that a class
action has been commenced in the United States District Court for
the Southern District of New York on behalf of purchasers of
FAB Universal Corp. publicly traded securities during the period
between June 15, 2012 and November 18, 2013.
If you wish to serve as lead plaintiff, you must move the Court no
later than 60 days from November 18, 2013. If you wish to discuss
this action or have any questions concerning this notice or your
rights or interests, please contact plaintiff's counsel,
Darren Robbins of Robbins Geller at 800-449-4900 or 619-231-1058,
or via e-mail at djr@rgrdlaw.com
If you are a member of this class, you can view a copy of the
complaint as filed or join this class action online at
http://www.rgrdlaw.com/cases/fab/
Any member of the putative class may move the Court to serve as
lead plaintiff through counsel of their choice, or may choose to
do nothing and remain an absent class member.
The complaint charges FAB and certain of its officers and
directors with violations of the Securities Exchange Act of 1934.
FAB, through its subsidiaries, conducts its business primarily in
China. The Company specializes in the distribution of
entertainment and audio visual products through its two flagship
stores in Beijing, as well as its online stores. It derives
substantially all of its revenue and profit from its Chinese
subsidiary, whose core business is its "Intelligent Media Kiosks",
which allow consumers to download supposedly copyrighted movies
and music to their portable storage devices.
The complaint alleges that during the Class Period, defendants
issued materially false and misleading statements regarding FAB's
financial performance and business. Specifically, the Company
failed to disclose that it had overstated the number of Kiosks it
had deployed in the People's Republic of China, that its Kiosks
contained pirated digital entertainment content, and that its
Chinese subsidiary had issued RMB 100 million ($16.4 million) in
bonds to Chinese investors in April 2013. As a result of
defendants' false and misleading statements, the Company's stock
traded at artificially inflated prices during the Class Period,
reaching a high of $9.70 per share on September 25, 2013.
On November 14, 2013, AlfredLittle.com, an analyst firm, published
a report asserting that FAB was a "fraud" and that the Company's
financial performance, business prospects and true financial
condition had been overstated. As a result of this report, the
Company's stock price fell $0.21 per share, to close at $5.25 per
share on November 14, 2013, a one-day decline of 4%. Then, on
November 18, 2013, GeoInvesting.com issued a report revealing that
FAB's April 2013 RMB 100 million ($16.4 million) bond offering was
never disclosed in the Company's 2013 second and third quarter
Form 10-Qs. On this news, the Company's stock price dropped $0.89
per share to close at $4.40 per share on November 18, 2013, a one-
day decline of nearly 17%, and a decline of nearly 55% from the
stock's Class Period high.
Plaintiff seeks to recover damages on behalf of all purchasers of
FAB publicly traded securities during the Class Period. The
plaintiff is represented by Robbins Geller, which has expertise in
prosecuting investor class actions and extensive experience in
actions involving financial fraud.
Robbins Geller -- http://www.rgrdlaw.com-- represents U.S. and
international institutional investors in contingency-based
securities and corporate litigation. With nearly 200 lawyers in
ten offices, the firm represents hundreds of public and multi-
employer pension funds with combined assets under management in
excess of $2 trillion. The firm has obtained many of the largest
recoveries in history and has been ranked number one in the number
of shareholder class action recoveries in MSCI's Top SCAS 50 every
year since 2003.
FOX ENTERTAINMENT: Request to Appeal Class Action Ruling Granted
----------------------------------------------------------------
Dominic Patten, writing for Deadline.com, reports that over six
months after the potentially industry game changing June 11 ruling
that unpaid interns on the Darren Aronofsky-directed Black Swan
were really employees, Fox Searchlight on Nov. 26 were handed an
opportunity to turn things around. The Second Circuit Court of
Appeals granted the label and the Fox Entertainment Group their
request to appeal vital aspects of District Judge William Paley
III's ruling from earlier this summer. The Appeal court gave Fox
Searchlight the right to appeal the class certification of former
interns Alex Footman and Eric Glatt's case. The court also
granted the Foxes an appeal on the summary judgment in the former
interns' favor that they were treated as Fox employees in their
internship under the definitions of the Fair Labor Standards Act
and New York Labor Law. Needless to say, even with a couple of
other legal wins under its belt in this case since June, Fox
Searchlight felt Thanksgiving came a little early this year. "We
believe the District Court's rulings are erroneous. We are
pleased that the Second Circuit has granted our petitions to
review those rulings at this time," a studio spokesperson told me
on Nov. 26. Fox first sought the Second Circuit's involvement in
Judge Paley's order back in late August. The Nov. 26 ruling also
links the appeals with an intern case moving through the courts
involving the Hearst Corporation. Fox opposed consolidating the
Hearst case with their appeal and were granted that too but both
appeals will proceed in tandem.
Messrs. Footman and Glatt began their case back in September 2011
on behalf of themselves and more than 100 Fox Searchlight interns.
They sought back pay from the Fox specialty label for work they
believe they should have been paid for. Their suit sought to stop
what the plaintiffs said was the studio's incorrect use of
students for what is supposed to be training similar to that
provided by an educational institution -- not getting coffee and
other grunt work. The studio eventually fired back that the two
were never actually Fox Searchlight interns. Fox Searchlight
argued that the duo was actually working for Aronofsky's
production company on the 2010 film. In August 2012, the
plaintiffs attempted to expand the scope of their suit to include
all interns who participated in Fox Entertainment Group's
internship program. With the Nov. 26 ruling, the calm that had
descended on this case has now dissipated. While it might take a
couple of months, expect Fox Searchlight to move aggressively on
those now granted appeals.
FRESENIUS SE: Heart Attack Patient Joins Granuflo Class Action
--------------------------------------------------------------
Jane Mundy, writing for LawyersandSettlements.com, reports that
Ron says his heart attack started right after dialysis treatment
with Granuflo at a DaVita Dialysis Center. He is lucky: a number
of negligence lawsuits have been filed against DaVita and
Fresenius Medical Care by members of families whose loved ones
died of a heart attack as a result of using Granuflo and
NaturaLyte.
"Even though I have filed a negligence and malpractice complaint
against DaVita, I am still going back for dialysis treatment and
I've been going to this same center for seven years," says Ron,
who has been on dialysis for the past 17 years. Ron is 47 years
old and was diagnosed with diabetes when he was a young boy. On
top of that he was diagnosed 10 years ago with high blood pressure
but says his health issues were under control until he was
administered doses of the recalled Granuflo.
Ron suffered a heart attack in June 2012, just a few months after
the FDA issued a recall of Fresenius Medical Care North America,
Naturalyte and Granuflo Acid Concentrate.
"I was driving home from DaVita when I actually had the heart
attack but the symptoms started at the center," Ron explains. "I
was feeling really weird; I was sweating and panting and couldn't
catch my breath, so a nurse at DaVita put me on oxygen and put my
feet up. I was hooked up to the dialysis machine at the time and
was just given a dose of Granuflo." (Ron has the paperwork from
DaVita saying that he was given Granuflo but he doesn't have the
serial numbers, which is an important piece of information his
attorney can obtain.)
"My blood pressure was elevated and I got off the machine early,"
Ron adds. "They wanted to call an ambulance but I insisted on
driving home for some reason, maybe because I have had bad
treatments in the past where I needed to be on oxygen and felt OK
by the time I got home. And keep in mind I have never had a heart
attack -- sometimes you don't know it's happening.
"And I only live about 10 minutes away from DaVita. I was driving
home and praying that I would make it, holding onto the steering
wheel and pouring sweat, definitely in distress. I figured if
there was anything wrong the ambulance could pick me up at home;
obviously, I wasn't thinking right. As soon as I walked through
the door, my mother saw me and called 911. I still didn't know
what happened until my cardiologist told me in the hospital that I
had a heart attack and had a stent put in."
On his attorney's advice, Ron joined a Fresenius class-action
lawsuit alleging that Fresenius knew about Granuflo heart issues
back in 2010, but chose not to disclose the information to the FDA
or the public until a memo was leaked to the FDA in 2012. Ron
considers himself lucky to be alive -- many Fresenius wrongful
death lawsuits have been filed. For instance, in September 2012,
a wrongful death lawsuit was filed against Fresenius on behalf of
an Alabama man who died from a heart attack after being treated
with the company's GranuFlo product. According to the lawsuit,
GranuFlo side effects caused the man's heart attack because
inadequate warnings were provided about the risks associated with
the dialysis treatment.
"My attorney told me that Fresenius is hoping to settle out of
court but it seems to change by the week as more information is
being discovered," says Ron. "Fresenius failed to warn the public
and the medical community of the Granuflo side effects and DaVita
pretty much ignored the problem too. So I intend to file another
claim against DaVita because they knew about Granuflo. They have
been charged with dosing errors and I should never have been given
a dose. As far as I know you can file two separate lawsuits
because they are two different companies.
"I have three kids, ages five and two, and one just six months
old, and I am worried about them because who knows what will
happen to me five years from now -- I might not be there for them.
I want DaVita and Fresnius to pay for my heart attack, I want my
share. They did something wrong and they need to pay everyone who
suffered because of their negligence."
GERALD S. KAUFMAN: Ruling in Suit vs. Barbiero Reversed
-------------------------------------------------------
The Circuit Court of Cook County dismissed KAUFMAN v. BARBIERO
solely against defendant Anthony V. Barbiero on the ground that it
lacked personal jurisdiction over him. An appeal was filed based
on three facts, that: (1) defendant is the beneficiary of a land
trust; (2) the trust is administered in Illinois; and (3)
defendant has no other contacts with the State of Illinois other
than his ownership interest in a trust administered here. The
issue on the appeal is solely a legal question. It is whether, by
itself, an interest in a trust administered in Illinois may
qualify as "minimum contacts" with the State of Illinois, such
that the due process clause is not offended by haling a
nonresident defendant into court here concerning that trust.
In this complaint, the plaintiff trustee sought to reform the
trust agreement executed in 1959. The trust agreement denies the
trustee the power to mortgage or sell the property without the
written approval of all 600 beneficiaries. It is this provision
which the trustee sought to reform through his present action. The
suit was brought as a class action, with the 600 beneficiaries
compromising the class. There are three named class
representatives: defendants Nanette Appel-Bloom, Alan S. Jacobs
and Anthony V. Barbiero. All three named representatives have
previously objected to the proposed reformation of the trust
agreement. Of the three representatives, only defendant Barbiero
has raised a jurisdictional challenge.
The Appellate Court of Illinois, Fifth Division concludes that the
nonresident defendant beneficiaries had sufficient minimum
contacts with the State of Illinois, such that this State's
exercise of personal jurisdiction over them did not offend federal
due process. Accordingly, the trial court order to the contrary
is reversed, and the case is remanded to the trial court for
further proceedings.
The case is Gerald S. Kaufman and Gerald S. Kaufman Corporation, a
Delaware Corporation, Plaintiffs-Appellants, v. ANTHONY V.
BARBIERO, Defendant-Appellee, (Nanette Appel-Bloom and Alan S.
Jacobs, Defendants), NO. 1-13-2068.
A copy of the District Court's November 1, 2013 Opinion is
available at http://is.gd/KbMwvEfrom Leagle.com.
HEALTH CANADA: Two Law Firms Combine Marijuana Data Breach Suit
---------------------------------------------------------------
McInnes Cooper on Nov. 26 disclosed that Canadian law firms
McInnes Cooper and Branch MacMaster LLP have combined their
respective class action teams to represent a proposed national
class action against the Government of Canada. Separate claims
were filed independently on Nov. 25 in Federal Court. The
consolidated claim will seek damages arising from a breach of
privacy that occurred when, earlier this month, Health Canada sent
letters to approximately 40,000 patients via Canada Post, in
envelopes that clearly indicated the named patient participated in
the "Marihuana Medical Access Program".
Health Canada's disclosure of the patients' private medical
information has raised serious employment and security concerns,
and caused the patients to suffer considerable stress and anxiety.
"As a result of Health Canada's error, we have already spoken with
a number of people whose lives have been affected by this breach,"
said David Fraser, a leading Canadian privacy lawyer, and McInnes
Cooper's lead lawyer on this case.
"This privacy breach is unlike most. It not only compromises the
confidentiality of participants' personal and health information,
but it also compromises participants' physical safety and
security," said Kate Saunders of Branch MacMaster LLP.
McInnes Cooper and Branch MacMaster most recently worked together
on the historic Manuge veterans' pension class action against the
Federal Government, which benefited approximately 8,000 disabled
veterans.
About the Marihuana Medical Access Program
In July 2001, the Federal Government enacted the Marihuana Medical
Access Regulations. The Regulations, among other things, empower
the Minister of Health to issue authorizations and licenses to
individuals with certain symptoms associated with particular
medical conditions, permitting those individuals to possess and,
in some cases, produce marihuana for medical purposes. The
Minister of Health is responsible for administering the
Regulations and does so through Canada Health's Marihuana Medical
Access Program (MMAP).
Prior to November 2013, all correspondence from Health Canada to
holders of medical marihuana authorizations and licenses in
relation to MMAP was conveyed by a private courier in envelopes
that did not include the word "marihuana". However, in November
2013, the Federal Government conveyed letters to participants in
the Medical Marihuana Access Program with "Marihuana Medical
Access Program" stamped on the outside of the envelope.
About the Members of the Class
Anyone who received or expects to receive, a letter from Health
Canada with "Marihuana Medical Access Program" printed on the
outside of the envelope is automatically a member of this class.
These individuals are encouraged to go to
http://www.branchmacmaster.com/medical-marihuana/OR
http://www.mcinnescooper.com/privacyclassactionfor further
information regarding this proposed class action. Individuals
also may send a confidential email to uherlev@branmac.com OR
privacyclassaction@mcinnescooper.com to be added to a list of
class members wishing to receive electronic updates from counsel
with respect to this action. McInnes Cooper also has a telephone
line dedicated to proposed class members: 1 (902) 454-8929.
HEALTH CANADA: Sutts Strosberg Launches Privacy Class Action
------------------------------------------------------------
Dave Battagello, writing for The Windsor Star, reports that a
Windsor law firm has launched a C$240-million class-action lawsuit
against the federal government alleging Health Canada violated the
privacy of medical marijuana users.
Earlier in November, the federal agency sent a letter to 40,000
users with a return address containing the words Marijuana Medical
Access Program in bold print on the front.
"These people did nothing wrong and they are entitled to have the
government keeping this information private," said lawyer
Sharon Strosberg of the firm Sutts Strosberg, which has filed the
lawsuit in Ontario Superior Court.
Ms. Strosberg is so far representing two clients -- a man in his
50s who resides in Essex County and a young professional woman in
her late 20s who lives in Ottawa. The court filing identifies
them as John Doe and Jane Doe.
The man's letter was delivered by a family member who had no idea
he was a user, Ms. Strosberg said.
"A person who works with (the mail carrier) is also a neighbor,"
she said. "Everybody who works at the post office where mail is
sorted also knows him.
"He is mortified by what's going on here."
The female is a young professional who is concerned her employer
will frown upon her or think differently in regards to her
reputation should they learn of her medical marijuana use,
Ms. Strosberg said.
"She has worked so hard to get where she is and is now very
worried about anybody else knowing about this."
The privacy violation is also a security concern because it
publicly reveals that there is marijuana inside the residence.
"They sent out a letter to the world advertising who has marijuana
inside their home," Ms. Strosberg said. "These people through no
fault of their own are now at a greater risk of a home invasion."
The government has issued an apology and described it as an
administrative error.
"But there are far-reaching implications of the letter that went
out," Ms. Strosberg said. "Our clients are saying to the
government 'this isn't right, this can't happen' and they are
entitled to some compensation.
"These people feel stigmatized, ashamed, violated and concerned
for their personal security."
Health Canada declined comment on Nov. 27.
The letter indicated to medical marijuana users they will no
longer be allowed to grow their own supply at home under new
legislation. It cites safety risks that include possible home
invasion and toxic mould associated with its growth indoors.
As of March 31, users will only be allowed to have their supply
provided by licensed growers approved by the government.
The Windsor lawsuit is one of a number that have been filed
alleging privacy breach.
HEBEI WELCOME: Judge Refuses to Toss Vitamin C Class Action
-----------------------------------------------------------
Kurt Orzeck and Gavin Broady, writing for Law360, report that a
New York federal judge on Nov. 26 refused to toss a $153.3 million
award against Hebei Welcome Pharmaceutical Co. Ltd. and North
China Pharmaceutical Group Corp. in a class action over vitamin C
price-fixing claims, finding a jury wasn't improperly blocked from
evidence.
U.S. District Judge Brian M. Cogan decided that Chinese law didn't
compel the defendants to engage in the alleged antitrust
violations, and thus he wasn't obligated to allow the jury to
consider copies of Chinese laws and regulations describing the
meaning of related Chinese laws.
Hebei and North China claimed Chinese government rules forced them
to increase wholesale vitamin C prices or face stiff penalties,
and that Judge Cogan's exclusion of documents and witness
testimony about the meaning and content of the laws caused a fatal
flaw with the jury.
But the judge said on Nov. 26 that it would have been
inappropriate for the companies to present evidence about the
meaning of Chinese laws to the jury.
"It is for the court, not for the jury, to decide questions of
law, and the court did so when it ruled that, as a matter of law,
Chinese law did not compel defendants' conduct," the Nov. 26
decision said.
The litigation dates back to 2005 and 2006, when vitamin C
purchasers began accusing Chinese manufacturers and their
affiliates of taking part in an illegal cartel to fix prices and
limit supply for exports.
Under the deal, the settling defendants escaped claims brought by
a direct-purchaser damages class and agreed to comply with any
injunction entered against any nonsettling defendant to settle the
claims of an injunction class.
The vitamin C purchasers in May claimed that evidence showed the
China Chamber of Commerce for Medicine and Health Products
Importers & Exporters lacked authority to compel the companies'
collusive conduct as it is not a government agency.
In October, Judge Cogan gave the final nod to the hefty fee and
expense payout in a bargain struck in March, under which CPG and
subsidiary Weisheng Pharmaceutical Company Ltd. exited the suit.
The order also applied to a deal through which Northeast
Pharmaceutical Group Co. Ltd. likewise settled claims in the suit.
The settlements allowed the defendants to drop out of sprawling
litigation in which remaining defendants North China and its
vitamin C unit, Hebei, were ultimately slammed with a $54 million
verdict that Judge Cogan later trebled to push the companies'
liability to $153.3 million.
The judge said on Nov. 26 that the jury had access to plenty of
evidence that could have indicated the Chinese government didn't
force the defendants to fix vitamin C prices, and that the
"Chinese laws themselves were not placed on trial."
Judge Cogan added that, while the evidence the plaintiffs
presented to the jury was "hardly overpowering," he couldn't
determine that the jury's findings were only the result of surmise
and conjecture.
He also ordered injunctive relief requiring the defendants to obey
U.S. antitrust laws for their products sold in the country.
William A. Isaacson of Boies Schiller & Flexner LLP, which is
representing the plaintiffs, told Law360 on Nov. 26 that they
considered Judge Cogan's decision to be a victory for private
antitrust enforcement.
"The [injunction marks] the first time in history that such an
order has been entered against Chinese companies," he said. "We
also appreciate how the court has carefully explained that the
jury verdict rests on credibility issues."
Attorneys for the defendants didn't immediately respond to
requests for comment on Nov. 26.
The plaintiffs are represented by Boies Schiller & Flexner LLP,
Hausfeld LLP and Susman Godfrey LLP.
Weisheng and CPG are represented by Jiangxiao Hou --
ahou@zelle.com -- Daniel S. Mason -- dmason@zelle.com -- and
Eric W. Buetzow -- ebuetzow@zelle.com -- of Zelle Hofmann Voelbel
& Mason LLP.
The case is In re: Vitamin C Antitrust Litigation, case number
1:06-md-01738, in the U.S. District Court for the Eastern District
of New York.
JOHNSON & JOHNSON: May Pay $1 Bil. to Insurers Under Settlement
---------------------------------------------------------------
Jef Feeley & David Voreacos, writing for Bloomberg News, report
that Johnson & Johnson may pay as much as $1 billion to insurers
who covered the medical costs of removing its recalled hip
implants under a settlement, according to a lawyer involved in the
accord.
J&J, the world's largest seller of health-care products, said
Nov. 19 it would pay patients at least $2.47 billion to settle
about 8,000 lawsuits against its DePuy unit. J&J will also
reimburse insurers for some costs of hip-removal surgeries known
as revisions, Michael Kelly, a San Francisco-based lawyer who
represents hip patients, told other plaintiffs' lawyers in a
Nov. 22 letter.
"The amount being paid by DePuy across the United States to
satisfy medical-lien claims under this proposed program has been
estimated to be between $500 million and $1 billion," Mr. Kelly
said in the letter, obtained by Bloomberg News. The letter was
marked as "confidential communication for plaintiffs' attorneys
only."
Paying $1 billion for hip surgeries, along with other expenses
related to J&J's push to resolve cases over DePuy's ASR implants,
will drive the cost of the accord to more than $4 billion, said
Carl Tobias, who teaches product-liability law at the University
of Richmond in Virginia.
"When everything is all said and done, J&J may wind up paying
double that $4 billion to resolve all current and future
litigation over those devices," he said.
Second Accord
The ASR settlement, which doesn't require the judge's approval,
was the second multibillion-dollar accord this month for J&J. The
company, based in New Brunswick, New Jersey, agreed Nov. 4 to pay
$2.2 billion to resolve criminal and civil probes into the
marketing of Risperdal and other medicines.
Lorie Gawreluk, a J&J spokeswoman, declined to comment on the lien
estimate in Kelly's letter. "We don't comment on speculation,"
she said in an e-mailed statement on Nov. 28.
J&J has spent about $1 billion on medical costs and informing
patients and surgeons about the hip recall, Ms. Gawreluk said
earlier in November. J&J set aside an undisclosed amount for
litigation, which it increased before June 30, she said.
The company recalled 93,000 ASR hip implants worldwide in August
2010, saying 12 percent failed within five years. Internal J&J
documents show 37 percent of ASR hips failed after 4.6 years.
Last year, the failure rate in Australia climbed to 44 percent
within seven years.
Eligible Patients
Under the terms of the accord, only plaintiffs who had an ASR hip
implanted in the U.S. and had it removed by Aug. 31 are eligible
for this settlement. The patients must have had the implant for
at least 180 days before its removal, according to the terms.
J&J's lawyers have said the average payment under the settlement
for a hip removal will be $250,000. Those who suffered
extraordinary injuries as a result of the procedures will be
entitled to more.
The settlement doesn't bar patients whose hips fail in the future
from seeking compensation, which may add billions of dollars to
the accord's ultimate cost.
The company faces a total of about 12,000 hip suits filed or
consolidated in federal and state courts in Ohio, California,
Illinois and New Jersey. The settlement covers about 8,000
patients who've already had DePuy hips removed. The remaining
claims were filed by patients who haven't yet had such surgeries.
The consolidated federal case is In re DePuy Orthopedics Inc., ASR
Hip Implant Products Liability Litigation, 10-MD-2197, U.S.
District Court, Northern District of Ohio (Toledo).
LUMBER LIQUIDATORS: Pomerantz Grossman Files Class Action
---------------------------------------------------------
Pomerantz Grossman Hufford Dahlstrom & Gross LLP on Nov. 26
disclosed that it has filed a class action lawsuit against
Lumber Liquidators, Inc. and certain of its officers. The class
action, filed in United States District Court, Eastern District of
Virginia, is on behalf of a class consisting of all persons or
entities who purchased or otherwise acquired Lumber Liquidators
securities between February 22, 2012 and November 21, 2013 both
dates inclusive. This class action seeks to recover damages
against Defendants for alleged violations of the federal
securities laws pursuant to Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934 and Rule 10b-5 promulgated
thereunder.
If you are a shareholder who purchased Lumber Liquidators
securities during the Class Period, you have until January 27,
2013 to ask the Court to appoint you as Lead Plaintiff for the
class. A copy of the Complaint can be obtained at
http://www.pomerantzlaw.com
To discuss this action, contact Robert S. Willoughby at
rswilloughby@pomlaw.com or 888-476-6529 (or 888-4-POMLAW), toll
free, x237. Those who inquire by e-mail are encouraged to include
their mailing address, telephone number, and number of shares
purchased.
Lumber Liquidators is a multi-channel specialty retailer of
hardwood flooring, and hardwood flooring enhancements and
accessories, operating as a single business segment.
The Complaint alleges that throughout the Class Period, Defendants
made false and/or misleading statements, as well as failed to
disclose material adverse facts about the Company's business,
operations, and prospects. Specifically, Defendants made false
and/or misleading statements and/or failed to disclose that: (1)
certain of the Company's products failed to comply with applicable
laws and regulations governing formaldehyde emissions from
composite wood products; (2) the Company imported flooring
products sourced from illegally logged wood in the Russian Far
East in violation of the Lacey Act; (3) as a result of the
foregoing violations, the Company faces the risk of large fines,
penalties, forfeitures, judgments and/or settlements in connection
with government regulatory actions and/or consumer class actions;
and (4) as a result of the foregoing, the Company's statements
were materially false and misleading at all relevant times.
On June 20, 2013, an article published on SeekingAlpha.com alleged
that, among other things, testing of one of Lumber Liquidators'
branded wood flooring products (imported from China and sold in
California) at two accredited independent laboratories found that
formaldehyde emissions from the tested product were over 3.5x the
maximum legal limit even though the product was labeled as being
California Air Resources Board-compliant. On this news, Lumber
Liquidators shares declined, over the course of two trading
sessions, by $9.40 per share or nearly 11%, to close at $76.63 per
share on June 21, 2013.
On September 26, 2013, agents from the Department of Homeland
Security, the U.S Fish and Wild Life Service, and the Department
of Justice executed sealed search warrants at Lumber Liquidators'
corporate offices in Toano and Richmond, Virginia, related to the
importation of certain wood products. On this news, Lumber
Liquidators shares declined $5.83 per share or more than 5%, to
close at $107.13 per share on September 27, 2013.
On November 21, 2013, well known hedge fund manager Whitney Tilson
criticized the Company for importing illegally sourced timber from
Russia in direct violation of U.S. laws. Mr. Tilson explained
that the Company was only able to maintain its unbelievably high
margins, and thus inflate its revenues, as a result of importing
illegal timber. On this news the Company's shares fell over
$16.07 per share, or over 13%, to $99.29 per share over two
trading sessions.
With offices in New York, Chicago, Florida, and San Diego, The
Pomerantz Firm -- http://www.pomerantzlaw.com-- concentrates its
practice in the areas of corporate, securities, and antitrust
class litigation.
LUMBER LIQUIDATORS: Motions Filed in Suit Over FACTA "Violation"
----------------------------------------------------------------
Jaroslaw Prusak, a purported customer of Lumber Liquidators
Holdings, Inc., has filed a motion seeking certification of a
putative class in a suit alleging violation of the Fair and
Accurate Credit Transactions Act and the parties have each filed
motions seeking summary judgment, according to the company's Oct.
23, 2013, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended Sept. 30, 2013.
On August 30, 2012, Jaroslaw Prusak, a purported customer
("Prusak"), filed a putative class action lawsuit, which was
subsequently amended, against the Company in the United States
District Court for the Northern District of Illinois. Prusak
alleges that the Company willfully violated the Fair and Accurate
Credit Transactions Act ("FACTA") amendments to the Fair Credit
Reporting Act in connection with electronically printed credit
card receipts provided to certain of its customers. Prusak, for
himself and the putative class, seeks statutory damages of no less
than $100 and no more than $1,000 per violation, punitive damages,
attorney's fees and costs, and other relief. Prusak has filed a
motion seeking certification of the putative class and the parties
have each filed motions seeking summary judgment with regard to
matters at issue in the case. Those motions are currently pending
before the Court. Although the Company believes it has defenses
to the claims asserted and has opposed the motion to certify the
class, no assurances can be given of any particular result. Given
the uncertainty inherent in any litigation, the current stage of
the case and the legal standards that must be met for, among other
things, class certification and success on the merits, the Company
cannot reasonably estimate the possible loss or range of loss that
may result from this action.
MGP INGREDIENTS: Enters Into Settlement Deal With Shareholders
--------------------------------------------------------------
Mark Davis for, writing for The Kansas City Star, reports that the
corporate battle that has engulfed MGP Ingredients Inc. for most
of the year has ended with the departure of its chief executive
officer.
Tim Newkirk "has been terminated without cause," a statement from
the Atchison, Kan.-based distilled products company said on
Nov. 26. His exit was part of an agreement between the company's
board of directors and MGP's founding Cray family, which still has
a substantial ownership stake in the publicly traded business.
The deal requires both sides to drop lawsuits they had brought and
contains language that limits potential sales or purchases of
corporate assets.
"Finally, after almost seven months, the board is all in agreement
that this is the direction, and we're really glad it's done," said
Karen Seaberg, a director and Cray family member.
The company named two other executives to serve as co-chief
executive officer while a search for Newkirk's replacement takes
place. They are Don Tracy, chief financial officer, and
Randy Schrick, vice president of engineering.
MGP said the settlement set Dec. 17 to reconvene the company's
shareholders meeting, which originally had been set in late
May but was twice suspended during the dispute. MGP shareholders
as of April 3 will be eligible to vote at the December meeting,
the company said.
Shareholders will vote on two candidates for the board seat
currently held by chairman John Speirs, whom the company had
renominated. The Cray family had nominated beverage alcohol
industry veteran John Bridendall, whom early tallies showed would
win the seat.
John Byom, a director elected directly by shares controlled by the
Cray family, has withdrawn his name for re-election. The family
had nominated Kansas City businesswoman Jeannine Strandjord for
the seat.
The battle pitted the Cray family, led by Ms. Seaberg and her
father Cloud L. "Bud" Cray Jr. who also is a board member, against
Newkirk and other members of the company's board.
Ms. Seaberg had raised concerns that Newkirk and other directors
had plans to sell the company or key parts of its operations.
"Pursuant to the settlement agreement, the company and the board
have also agreed that the company will not sell any assets, will
not make any acquisitions of other companies or assets, and will
not enter into any joint venture relationships of a material
nature or outside of the ordinary course of business in the next
12 months without the approval of at least six members of the
board," the announcement said.
MONSANTO COMPANY: Litigation Over Glyphosate Still Dormant
----------------------------------------------------------
A lawsuit seeking a certification of a national class of all
direct purchasers of glyphosate from Monsanto Company remained
dormant since the case was denied certification, according to the
company's Oct. 23, 2013, Form 10-K filing with the U.S. Securities
and Exchange Commission for the year ended Aug. 31, 2013.
Two purported class action suits were filed against the company on
Sept. 26, 2006, supposedly on behalf of all farmers who purchased
the company's Roundup brand herbicides in the United States for
commercial agricultural purposes since Sept. 26, 2002. Plaintiffs
essentially allege that the company has monopolized the market for
glyphosate for commercial agricultural purposes. Plaintiffs seek
an unspecified amount of damages and injunctive relief. In late
February 2007, three additional suits were filed, alleging similar
claims. All of these suits were filed in the U.S. District Court
for the District of Delaware. On July 18, 2007, the court ruled
that any such suit had to be filed in federal or state court in
Missouri; the court granted the company's motion to dismiss the
two original cases. On Aug. 8, 2007, plaintiffs in the remaining
three cases voluntarily dismissed their complaints, which have not
been re-filed. On Aug. 10, 2007, the same set of counsel filed a
parallel action in federal court in San Antonio, Texas, on behalf
of a retailer of glyphosate named Texas Grain. Plaintiffs seek to
certify a national class of all entities that purchased glyphosate
directly from the company since August 2003. The magistrate judge
issued his recommendation to the District Court on Aug. 7, 2009,
denying class certification and the litigation has remained
dormant since that event. The company believes it have meritorious
legal positions and will continue to represent the company's
interests vigorously in this matter.
MONSANTO COMPANY: Suit by Wheat Farmers Consolidated, Transferred
-----------------------------------------------------------------
The Panel on Multi-District Litigation ordered multiple lawsuits
alleging damages to wheat farmers due to wheat trade price
reduction and export contract impacts to be consolidated and
transferred for case management to the Federal District Court of
Kansas, according to Monsanto Company's Oct. 23, 2013, Form 10-K
filing with the U.S. Securities and Exchange Commission for the
year ended Aug. 31, 2013.
In May 2013, the USDA announced an investigation into alleged
glyphosate-resistant volunteer wheat reported on an Oregon farm,
and the company is cooperating in the investigation. The USDA
noted that glyphosate tolerant wheat does not present a public
health or food safety concern as the FDA completed its assessment
of the product in 2004. The consultative process at the FDA was
completed and the agency concluded that this product is as safe as
non-GM wheat currently on the market. Initial development of
glyphosate tolerant wheat was discontinued in 2005 under stringent
stewardship procedures which were in compliance with USDA
regulations. The USDA has recently reported that there is no
indication that the genetically modified wheat product is found in
U.S. wheat supplied to domestic or export markets. The USDA's
investigation remains ongoing and the agency indicated that civil
and criminal penalties could be imposed if circumstances
warranted. Monsanto and the USDA have not determined the basis for
the alleged detection of glyphosate-resistant wheat and are
considering all possible scenarios.
Multiple lawsuits, including putative class action lawsuits, have
been filed against the company asserting numerous legal claims
including negligence and strict liability, seeking punitive
damages and alleging economic loss and damages to wheat farmers
allegedly due to wheat trade price reduction and export contract
impacts.
On October 16, 2013, the Panel on Multi-District Litigation
ordered the multiple lawsuits consolidated and transferred for
case management to the Federal District Court of Kansas. Monsanto
properly discontinued the development of the glyphosate tolerant
wheat event in 2005, has meritorious legal arguments against
liability and will vigorously represent its interests in the
ongoing investigation and legal proceedings.
MONSANTO COMPANY: Settlement of Suit Over Dioxins Under Appeal
--------------------------------------------------------------
The final approval of a settlement of a suit over dioxins against
Monsanto Company has been appealed by two objectors and is pending
before the West Virginia Supreme Court of Appeals, according to
Monsanto Company's Oct. 23, 2013, Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended Aug. 31,
2013.
On Dec. 17, 2004, 15 plaintiffs filed a purported class action
lawsuit, styled Virdie Allen, et al. v. Monsanto, et al., in the
Putnam County, West Virginia, state court against Monsanto,
Pharmacia and seven other defendants. Monsanto is named as the
successor in interest to the liabilities of Pharmacia. The alleged
class consists of all current and former residents, workers, and
students who, between 1949 and the present, were allegedly exposed
to dioxins/furans contamination in counties surrounding Nitro,
West Virginia. The complaint alleges that the source of the
contamination is a chemical plant in Nitro, formerly owned and
operated by Pharmacia and later by Flexsys, a joint venture
between Solutia and Akzo Nobel Chemicals, Inc. (Akzo Nobel). Akzo
Nobel and Flexsys were named defendants in the case but Solutia
was not, due to its then pending bankruptcy proceeding. The suit
seeks damages for property cleanup costs, loss of real estate
value, funds to test property for contamination levels, funds to
test for human exposure, and future medical monitoring costs. The
complaint also seeks an injunction against further contamination
and punitive damages. Monsanto has agreed to indemnify and defend
Akzo Nobel and the Flexsys defendant group, but on May 27, 2011,
the judge dismissed both Akzo Nobel and Flexsys from the case. The
class action certification hearing was held on Oct. 29, 2007. On
Jan. 8, 2008, the trial court issued an order certifying the Allen
(now Zina G. Bibb et al. v. Monsanto et al., because Bibb replaced
Allen as class representative) case as a class action for property
damage and for medical monitoring. On Nov. 2, 2011, the court, in
response to defense motions, entered an order decertifying the
property class. After the trial for the Bibb medical monitoring
class action began on Jan. 3, 2012, the parties reached a
settlement in principle as to both the medical monitoring and the
property class claims. The proposed settlement provides for a 30
year medical monitoring program consisting of a primary fund of up
to $21 million and an additional fund of up to $63 million over
the life of the program, and a three year property remediation
plan with funding up to $9 million. On Feb. 24, 2012, the court
preliminarily approved the parties' proposed settlement. A
fairness hearing was held June 18, 2012, resulting in the trial
court's final approval of the settlement, however, that final
approval has been appealed by two objectors and is pending before
the West Virginia Supreme Court of Appeals.
In October 2007 and November 2009, a total of approximately 200
separate, single plaintiff civil actions were filed in Putnam
County, West Virginia, against Monsanto, Pharmacia, Akzo Nobel
(and several of its affiliates), Flexsys America Co. (and several
of its affiliates), Solutia, and Apogee Coal Company, LLC. These
cases allege personal injury occasioned by exposure to dioxin
generated by the Nitro Plant during production of 2,4,5T (1949-
1969) and thereafter. Monsanto has agreed to accept the tenders of
defense in the matters by Pharmacia, Solutia, Akzo Nobel, Flexsys
America, and Apogee Coal under a reservation of rights. During the
discovery phase of these several claims, the parties reached an
agreement in principle to resolve all pending personal injury
claims which is reflected in the above liability.
MONSTER PAINTING: Default Judgment Ruling Entered in "Lagos" Suit
-----------------------------------------------------------------
ANTONIO LAGOS, ARTURO CARRENO, ROSA RODRIGUEZ, and LUPE URIBE,
Plaintiffs, v. MONSTER PAINTING, INC.; TREVOR PHILLIP SCHAUS; and
BRENDA LINGLE, Defendants, NO. 2:11-CV-00331-LRH-GWF, (D. Nev.)
is a putative class action originally brought by two former
employees of Monster Painting, Inc., involving allegations of
unlawful and fraudulent activities in the payment and reporting of
wages and overtime. All proceedings against Monster Painting,
Inc. have been stayed pending resolution of its petition for
bankruptcy.
The Plaintiffs filed a motion for default judgment against
individual Defendants Trevor Phillip Schaus and Brenda Lingle.
District Judge Larry R. Hicks granted in part and denied in part
the Plaintiffs' Motion for Default Judgment saying Messrs. Lagos
and Carreno may resubmit FLSA damages calculations reflecting only
those damages that correspond to the well-pleaded claims set forth
in their Third Amended Complaint.
Judge Hicks further directed Messrs. Lagos and Carreno to prepare
an appropriate proposed judgment against Defendants Schaus and
Lingle, and submit the same for approval and signature by the
Court.
A copy of the District Court's November 4, 2013 Order is available
at http://is.gd/DRPOaMfrom Leagle.com.
MOTOROLA SOLUTIONS: $200MM Settlement of Securities Suit Upheld
---------------------------------------------------------------
The appeals court rejected appeals and upheld a $200 million
settlement of the Silverman Federal Securities Class Action Case
against Motorola Solutions, Inc., according to the company's Oct.
23, 2013, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended Sept. 28, 2013.
A purported class action lawsuit on behalf of the purchasers of
Motorola securities between July 19, 2006 and January 5, 2007,
Silverman v. Motorola, Inc., et al., was filed against the Company
and certain current and former officers and directors of the
Company on August 9, 2007, in the United States District Court for
the Northern District of Illinois. The complaint alleges
violations of Section 10(b) and Rule 10b-5 of the Securities
Exchange Act of 1934, as well as, in the case of the individual
defendants, the control person provisions of the Securities
Exchange Act. The operative amended complaint primarily alleges
that the defendants knowingly made incorrect statements concerning
Motorola's projected revenues for the third and fourth quarter of
2006. The complaint also challenges Motorola's accounting and
disclosures for certain transactions entered into in the third
quarter of 2006. The complaint seeks unspecified damages and other
relief relating to the purported inflation in the price of
Motorola shares during the class period.
On August 25, 2009, the district court granted plaintiff's motion
for class certification. On February 1, 2012, the parties in the
Silverman litigation signed a settlement agreement to resolve all
claims in that case for $200 million, $150 million of which is
being paid by the Company's insurance carriers. The district court
approved the settlement agreement on May 9, 2012. Two appeals were
filed from the judgment entered pursuant to the settlement, one
challenging the court's approval of certain terms of the
settlement, and the other challenging the fee award to the
attorneys for the class. The appeals court rejected both appeals
in the third quarter of 2013, upholding the settlement approved by
the district court. Accordingly, the company will no longer be
reporting on this matter.
NATIONAL HOCKEY: Bob Bourne Joins Concussion Class Action
---------------------------------------------------------
According to ProHockeyTalk's James O'Brien, the Sports Business
Journal and Daily's Chris Botta reported on Nov. 26 that former
New York Islanders great Bob Bourne decided to join the class-
action lawsuit regarding concussions in the NHL, the 59-year-old
retired player told Mr. Botta that he thought about it for a long
time. He admits that he's reluctant regarding the decision, "but
feels it's important."
Mr. Bourne won four Stanley Cups with the Islanders during their
dynasty era. Overall, he played 814 of his 964 NHL games with the
Isles, spending the final two seasons of his career with the Los
Angeles Kings. He played from the 1974-75 season through the
1987-88 campaign. Mr. Bourne might say that his lengthy career
came at a significant cost.
NATIONAL HOCKEY: 200+ Ex-Players to Join Class Action
-----------------------------------------------------
Chris Johnston, writing for Sportsnet.ca, reports that the number
of former NHL players involved a class-action concussion lawsuit
against the league is growing at a rapid rate. Within 48 hours of
the suit being filed in a Washington federal court, the original
group of 10 plaintiffs had inflated to more than 200, according to
one of the lawyers working on the case.
Steven Silverman told Sportsnet on Nov. 27 that he expected the
total to climb even further by the end of the day.
That revelation came a few hours after Mel Owens, another lawyer
representing the players, told Sportsnet in a separate interview
that some big names might eventually join in. He also pointed out
that the relatively low profile of the 10 initial players named as
plaintiffs shouldn't in any way diminish its importance.
"You don't have to be famous to be hurt," said Mr. Owens, a former
NFL linebacker turned disability lawyer. "You don't need big
names to splash across the lawsuit. These guys have moms, these
guys have wives and kids, and so they're just as important as
anybody else."
The original group of 10 included Gary Leeman and Rick Vaive, both
former 50-goal scorers during their NHL careers, and a handful of
journeyman: Curt Bennett, Richie Dunn, Bob Manno and Blair
Stewart. The remaining four players enjoyed little more than a
cup of coffee in the NHL -- Brad Aitken (14 games), Morris Titanic
(19 games), Darren Banks (20 games) and Warren Holmes
(45 games) -- and some have questioned the motives behind their
involvement.
For Mr. Owens, the fact that those men have suffered with
everything from memory loss to depression to severe headaches
related to concussions they say they received during their playing
careers is proof of how serious the issue is.
"You don't need five head-on collisions on a freeway to say, 'OK,
now I'm really hurt,"' he said. "You need to have your head
punched in or have your head slammed on the ice or slammed into
the boards once and it could alter your career forever and your
life."
The lawsuit alleges that the NHL failed to do enough to protect
and educate its players from the dangers of head injuries and,
according to Owens, seeks to find out the answer to three
important questions: What did the NHL know about concussions and
the effects of subconcussive hits? When did it know it? And what
did it tell the players?
There are obvious parallels to a class-action suit filed by
thousands of former NFL players that was settled earlier this year
for $765-million. The NHL players are seeking financial damages
along with medical monitoring for the players' injuries.
Reaction throughout the tight-knit hockey world has been mixed
since the lawsuit was filed. While a number of players were busy
joining the class, Jeremy Roenick told The Associated Press on
Tuesday that he always knew his health and life "could be altered
in a split second" during his playing days.
Word about the lawsuit has spread quickly last week -- Mr. Owens
even reached out directly to a number of former players on
Twitter.
"Some guys don't want to be in it at the beginning," said Owens.
"Like in the NFL, one, there were players that came on later that
were Hall of Famers but they didn't want to take the initial leap.
That's OK. We're not going for the superstars and saying 'Oh,
here's (Eric) Lindros or Pat LaFontaine or someone who got knocked
out early in his career' because that's not the point.
"The point is helping the thousands of guys that have suffered
these types of injuries. They are very valuable in their
communities."
The NHL now has the option to answer the complaint in court or
make a motion to dismiss the case. It will be restricting public
comment until one of those things occurs, although commissioner
Gary Bettman told reporters on Nov. 26 that he believes the
lawsuit is "without merit."
Meanwhile, Mr. Owens applauded the 10 men that launched it. While
that opened them up to some public scrutiny, he thinks they did it
with their former colleagues in mind.
"It takes a lot of courage to be the first believer," said
Mr. Owens. "Nobody wants to be first. These guys are former
professionals and you don't play in professional sports, and in
particular hockey, if you don't have courage.
"When you have the problems and you're actually speaking out for
others, that's when you show your true best."
NOVARTIS PHARMA: Zometa Plaintiffs Can Seek Punitive Damages
------------------------------------------------------------
Saranac Hale, writing for The Legal Intelligencer, reports that
punitive damages are fair game for plaintiffs bringing claims
against Novartis Pharmaceuticals for a drug made to manage
metastatic bone cancer that they claim caused permanent
disfigurement, a federal judge has ruled.
U.S. District Judge Mark R. Hornak of the Western District of
Pennsylvania applied choice of law analyses from two other
jurisdictions to determine that Pennsylvania law would apply to
the issue of punitive damages rather than New Jersey law.
Pennsylvania law would allow for the plaintiffs to seek punitives
while New Jersey law wouldn't.
"New Jersey caps punitive damages at the greater of $350,000 or
five times the compensatory damages award," Judge Hornak said.
"In addition, under the New Jersey Products Liability Act,
punitive damages are not available if a product was approved by
the [Food and Drug Administration]. . . . Pennsylvania has no such
limitations on the recovery of punitive damages," he said.
Because the two cases Judge Hornak ruled on were transferred to
his court by the panel on multidistrict litigation for
consolidated pretrial proceedings, he had to apply the choice-of-
law analysis from the state in which each case was filed. One was
filed in the District of Columbia and the other was filed in New
York.
The plaintiffs, who were either prescribed the Novartis drug
called Zometa or married to someone who was given the drug, all
live in Pennsylvania. They allege that Zometa, which has been
approved by the Food and Drug Administration, caused the
development of osteonecrosis of the jaw. Judge Hornak described
the affliction, called ONJ for short, as "a permanently
disfiguring and painful condition that may result in complete loss
of the jaw bone."
Novartis is a Swiss pharmaceutical company with its American
operations incorporated in Delaware, but its primary place of
business in New Jersey, according to the opinion.
Novartis Pharmaceuticals Corp., called NPC for short, argued that
the judge "should apply New Jersey law to the plaintiffs' punitive
damages claims because NPC maintains its principal place of
business in New Jersey, and the conduct that it maintains is most
relevant to the punitive damages claims -- NPC's corporate
decisions regarding Zometa labeling, clinical trials, adverse
event reporting, and marketing -- occurred in New Jersey,"
Judge Hornak said.
However, the "plaintiffs contend that because they are
Pennsylvania residents, were prescribed Zometa and treated in
Pennsylvania by Pennsylvania doctors, purchased Zometa in
Pennsylvania, were infused with Zometa in Pennsylvania, and
suffered the effects of ONJ here, allegedly as a result of taking
Zometa, Pennsylvania law should also apply to their claims for
punitive damages," he said.
The plaintiffs also noted that Novartis is a Swiss company and
many of the decisions it made about the labeling of its drug were
made in Switzerland, not New Jersey.
The District of Columbia and New York have different tests for
determining what law to apply in a given case, but Judge Hornak's
application of each test pointed to Pennsylvania law.
Both tests start with the threshold question of establishing that
there is a genuine conflict between the competing states' laws.
That standard was quickly met for each test.
The District of Columbia then looks to the Restatement (Second) of
Conflict of Laws and New York considers the significance of each
states' contacts with the case, "almost exclusively, the parties'
domiciles and the locus of the tort," Judge Hornak said.
The great weight of the points in the District of Columbia's test
tip toward Pennsylvania law, Judge Hornak found.
"Although the court respects New Jersey's interest in punishing
and deterring the conduct of corporations domiciled there on its
own terms, the conduct far more relevant to the issue of punitive
damages here occurred in Pennsylvania," Judge Hornak said.
Similarly, he found that Pennsylvania law would apply under New
York's choice-of-law analysis, which considers the place where the
"last event necessary" to make the defendant liable occurred.
"The last event necessary to make NPC liable plainly occurred in
Pennsylvania," Judge Hornak said.
"While NPC may have made corporate decisions regarding Zometa in
New Jersey, its liability to these plaintiffs would not be in
dispute had it not marketed Zometa to them and their doctors in
Pennsylvania, sold Zometa to them in Pennsylvania, and allegedly
failed to warn them in Pennsylvania of Zometa's possible
connection to ONJ. Therefore, under New York's interests
analysis, Pennsylvania is the place where the tort occurred."
OMNICARE INC: Dismissal of Securities Lawsuit Under Appeal
----------------------------------------------------------
Plaintiffs in a consolidated securities against Omnicare, Inc.
filed a notice of appeal to the U.S. Court of Appeals for the
Sixth Circuit appealing a District Court's order dismissing the
complaint with prejudice, according to the company's Oct. 23,
2013, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended Sept. 30, 2013.
On August 24, 2011, a class action complaint entitled Ansfield v.
Omnicare, Inc., et al. was filed on behalf of a putative class of
all purchasers of the Company's common stock from January 10, 2007
through August 5, 2010 against the Company and certain of its
current and former officers in the U.S. District Court for the
Eastern District of Kentucky, alleging violations of federal
securities laws in connection with alleged false and misleading
statements with respect to the Company's compliance with federal
and state Medicare and Medicaid laws and regulations. On October
21, 2011, a class action complaint entitled Jacksonville Police &
Fire Pension Fund v. Omnicare, Inc. et al. was filed on behalf of
the same putative class of purchasers as is referenced in the
Ansfield complaint, against the Company and certain of its current
and former officers, in the U.S. District Court for the Eastern
District of Kentucky. Plaintiffs allege substantially the same
violations of federal securities law as are alleged in the
Ansfield complaint. Both complaints seek unspecified money
damages. The Court has appointed lead counsel and a consolidated
amended complaint was filed on May 11, 2012. The Company filed a
motion to dismiss on July 16, 2012. On March 27, 2013, the Court
granted the Company's motion to dismiss and dismissed all claims
with prejudice. On April 26, 2013 the plaintiffs filed a notice of
appeal to the U.S. Court of Appeals for the Sixth Circuit
appealing the District Court's order dismissing the complaint with
prejudice.
OMNICARE INC: Petition for Writ of Certiorari Filed in Ky. Suit
---------------------------------------------------------------
Omnicare, Inc. filed a petition for writ of certiorari in the
United States Supreme Court in relation to its motion to dismiss a
securities suit pending against it in the U.S. District Court for
the Eastern District of Kentucky, according to the company's Oct.
23, 2013, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended Sept. 30, 2013.
In February 2006, two substantially similar putative class action
lawsuits were filed in the U.S. District Court for the Eastern
District of Kentucky, and were consolidated and entitled Indiana
State Dist. Council of Laborers & HOD Carriers Pension & Welfare
Fund v. Omnicare, Inc., et al., No. 2:06cv26. The amended
consolidated complaint was filed against Omnicare, three of its
officers and two of its directors and purported to be brought on
behalf of all open-market purchasers of Omnicare common stock from
August 3, 2005 through July 27, 2006, as well as all purchasers
who bought their shares in the Company's public offering in
December 2005. The complaint contained claims under Sections 10(b)
and 20(a) of the Securities Exchange Act of 1934 (and Rule 10b-5)
and Section 11 of the Securities Act of 1933 and sought, among
other things, compensatory damages and injunctive relief.
Plaintiffs alleged that Omnicare (i) artificially inflated its
earnings (and failed to file GAAP-compliant financial statements)
by engaging in improper generic drug substitution, improper
revenue recognition and overvaluation of receivables and
inventories; (ii) failed to timely disclose its contractual
dispute with UnitedHealth Group Inc.; (iii) failed to timely
record certain special litigation reserves; and (iv) made other
allegedly false and misleading statements about the Company's
business, prospects and compliance with applicable laws and
regulations. The defendants filed a motion to dismiss the amended
complaint on March 12, 2007, and on October 12, 2007, the district
court dismissed the case.
On November 9, 2007, plaintiffs appealed the dismissal to the U.S.
Court of Appeals for the Sixth Circuit.
On October 21, 2009, the Sixth Circuit Court of Appeals generally
affirmed the district court's dismissal, dismissing plaintiff's
claims for violation of Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934 and Rule 10b-5. However, the appellate court
reversed the dismissal for the claim brought for violation of
Section 11 of the Securities Act of 1933, and returned the case to
the district court for further proceedings.
On July 14, 2011, the district court granted plaintiffs' motion to
file a third amended complaint. This complaint asserts a claim
under Section 11 of the Securities Act of 1933 on behalf of all
purchasers of Omnicare common stock in the December 2005 public
offering. The new complaint alleges that the 2005 registration
statement contained false and misleading statements regarding
Omnicare's policy of compliance with all applicable laws and
regulations with particular emphasis on allegations of violation
of the federal Anti-Kickback Statute in connection with three of
Omnicare's acquisitions, Omnicare's contracts with two of its
suppliers and its provision of pharmacist consultant services. On
August 19, 2011, the defendants filed a motion to dismiss
plaintiffs' most recent complaint and on February 13, 2012 the
district court dismissed the case and struck the case from the
docket.
On March 12, 2012, plaintiffs filed a notice of appeal in the U.S.
Court of Appeals for the Sixth Circuit.
On May 23, 2013, the U.S. Court of Appeals affirmed in part and
reversed and remanded in part the dismissal of Plaintiff's
complaint.
On June 6, 2013, the Company petitioned the Court of Appeals for a
rehearing en banc. The petition for rehearing en banc was denied
on July 23, 2013. On October 4, 2013 the Company filed a petition
for writ of certiorari in the United States Supreme Court.
OVERHILL FARMS: Class Cert. Denial in Ex-Employees' Suit Upheld
---------------------------------------------------------------
Former employees of Overhill Farms, Inc., a company that
manufactures frozen food products for sale to distributors and
wholesalers, asserted wage and hour claims against Overhill on
behalf of a purported class made up of Overhill's nonexempt
(hourly) employees who worked in identified departments between
July 1, 2005, and the present. The trial court denied plaintiffs'
motion for class certification, concluding that the named
plaintiffs were not adequate class representatives and individual
issues predominated over common ones. Plaintiffs appealed,
contending that the trial court applied incorrect legal standards
and substantial evidence did not support its conclusions.
The Court of Appeals of California, Second District, Division
Four, affirmed the trial court's ruling saying the trial court did
not abuse its discretion in declining to certify a class with
regard to plaintiffs' "donning and doffing" claim.
According to the Calif. Appeals Court, in light of the trial
court's credibility determinations, substantial evidence supported
the trial court's conclusion that individual issues predominated
over common ones.
The case is ISELA HERNANDEZ et al., Plaintiffs and Appellants, v.
OVERHILL FARMS, INC., Defendant and Respondent, NO. B243844.
A copy of the Appeals Court's November 6, 2013 Opinion is
available at http://is.gd/EHxyXFfrom Leagle.com.
For Plaintiffs and Appellants, Righetti Law Firm, Matthew
Righetti, John Glugoski, and Michael Righetti, and:
David P. Myers, Esq.
Ann Hendrix, Esq.
Vanessa Godinez-Elisarraraz, Esq.
THE MYERS LAW GROUP
3424 Wilshire Blvd, Suite 941
Los Angeles, CA 90010
Telephone: (213) 223-7616
Rutan & Tucker, Mark J. Payne -- MPayne@rutan.com -- and Brandon
L. Sylvia -- BSylvia@rutan.com -- for Defendant and Respondent.
PEPPERIDGE FARM: "BolerJack" Plaintiffs May Amend Complaint
-----------------------------------------------------------
Magistrate Judge Boyd N. Boland granted a Motion for Leave to
Modify Scheduling Order to File First Amended Complaint in SONYA
BOLERJACK, as an individual, and on behalf of all others similarly
situated, Plaintiff, v. PEPPERIDGE FARM, INC., a Connecticut
corporation, Defendants. GARETT KOEHLER, Plaintiff, v. PEPPERIDGE
FARM, INC., Defendant. LISA LEO, Plaintiff, v. PEPPERIDGE FARM,
INC., Defendant, CIVIL ACTION NO. 12-CV-02918-PAB-BNB, NO. 13-CV-
02607-PAB-BNB., 13-CV-02866-PAB-BNB, (D. Col.)
Actions pending in other courts have been transferred in the U.S.
District Court for the District of Colorado and consolidated, and
Judge Boland has ordered a supplemental scheduling conference for
the purpose of entering a consolidated schedule.
Judge Boland directed the Clerk of the Court to accept for filing
the First Amended Class Action Complaint.
A copy of the District Court's November 4, 2013 Order is available
at http://is.gd/xwKrm8from Leagle.com.
PONTIAC CORRECTIONAL: Merit Review Entered in Suit vs. Officers
---------------------------------------------------------------
Chief District Judge James E. Shadid entered a merit review
opinion in the case captioned WINFRED OLIVER, Plaintiff, v. RANDY
PFISTER, JEFFREY GABOR, DONALD GISH, ANGELICA JOYNER, PATRICK
HASTINGS, LIEUTENANT BLACKARD, LIEUTENANT SCROGUM, SHERRY BENTON,
SALVADOR A. GODINEZ, and SERGEANT JOHN DOE, Defendants, NO. 13-
1457-JES-JAG, (C.D. Ill.).
Mr. Oliver averred that, on April 5, 2011, during a "shakedown" of
all of the protective custody units at the Pontiac Correctional
Center, correctional officers confiscated certain items from his
cell -- a brown photo album, and a catalogue sheet of thumb-nailed
sized images of nude, adult male models. The officials believed
that the catalogue contained images of child pornography because
they had been altered by placing children's faces on the adult
nude bodies, and therefore, they immediately took Oliver to the
North Cell House segregation unit (NCH). According to Mr. Oliver,
Pontiac is divided into three cell houses: East, West, and NCH.
Mr. Oliver claims that NCH is where IDOC sends the "worst-of-the-
worst" in the Illinois penal system.
Under his merit review of the Complaint, Judge Shadid held, among
other things, that:
* Plaintiff's Complaint states a claim against Defendants Pfister,
Gabor, Gish, Joyner, Hastings, Benton, and Godinez for violating
his liberty interest protected by the Fourteenth Amendment by
placing him in disciplinary segregation for a year's time and a
claim against Defendant Pfister for excessive noise in violation
of his Eighth Amendment rights. Any additional claims will not
be included in the case except at the Court's discretion on a
motion by a party for good cause shown or pursuant to Federal
Rule of Civil Procedure 15.
* the Plaintiff's Equal Protection claim is dismissed.
* Defendants Blackard, Gabor, Scrogum, and Doe are dismissed as
party Defendants as they are not alleged by Plaintiff to have
been involved in the decision to place him in disciplinary
segregation or have any control over the excessive noise at NCH.
* the clerk of court is directed to: 1) attempt service on
Defendants pursuant to the standard procedures; 2) set an
internal court deadline 60 days from the entry of the order for
the court to check on the status of service and enter scheduling
deadlines; 3) dismiss Plaintiff's equal protection claim; 4)
dismiss Defendants Blackard, Gabor, Scrogum, and John Doe as
party defendants; and 5) show Plaintiff's motion for class
certification and appointment of counsel and motion for leave to
supplement pleadings as denied.
* if a Defendant fails to sign and return a waiver of service to
the clerk within 30 days after the waiver is sent, the Court
will take appropriate steps to effect formal service through the
U.S. Marshal's service on that Defendant and will require that
defendant to pay the full costs of formal service pursuant to
Federal Rule of Civil Procedure 4(d)(2).
A copy of the District Court's November 5, 2013 Opinion is
available at http://is.gd/ALhDZVfrom Leagle.com.
PVR PARTNERS: Investor Files Class Action Over Regency Merger
-------------------------------------------------------------
Benjamin Horney, Jake Simpson and Matt Chiappardi, writing for
Law360, report that a PVR Partners LP investor filed a class
action in Pennsylvania federal court on Nov. 26, alleging that
PVR's proposed $5.6 billion merger with competitor Regency Energy
Partners LP is inadequate and unfair, and that the companies
intentionally misled shareholders to get their approval for the
deal.
Stephen Bushansky's complaint nearly mirrors a class action filed
by an investor in October, which accused oil and gas company PVR
of effectively scaring off other potential bidders with several
deal-protection devices -- such as a no-solicitation provision, a
matching right for Regency and a $134.5 million termination fee.
But Mr. Bushansky's complaint adds an extra accusation against
Regency.
According to Mr. Bushansky, Regency filed a registration statement
for the deal with the U.S. Securities and Exchange Commission on
Nov. 8, and the statement was distributed to PVR's public unit-
holders in an attempt to convince them to vote in favor of the
deal. The complaint alleges that the registration statement
failed to provide important information concerning the financial
and procedural fairness of the merger, arguing that without such
information, PVR unit-holders are unable to make fully informed
decisions on whether to approve or deny the transaction.
"Defendants failed to disclose a fair summary of all projections
of the partnership prepared by PVR's management," the complaint
said. "The summary of the management-prepared projections of PVR
included in the registration statement is materially incomplete."
The registration statement didn't include integral information,
such as PVR's predicted cash flow before interested payments are
taken into account for the years 2014 to 2018; the company's
forecasted earnings per unit, tax rates and adjusted net income;
and a summary of projections for each of PVR's business
segments -- which include Eastern Midstream, Midcontinent
Midstream and Coal and Natural Resource Management -- according to
the complaint.
"The registration statement fails to disclose certain key data and
inputs underlying the financial analyses relied upon by Evercore,
PVR's financial advisor, in rendering its fairness opinion," the
complaint says.
The suit stems from the merger, announced Oct. 10, in which
Regency would acquire PVR in a stock-for-stock deal valued at $5.6
billion, including the assumption of $1.8 billion in debt.
As part of the proposed deal, PVR stockholders would receive 1.02
common units of Regency -- valued at $28.68 each -- for each PVR
share they own, in addition to a onetime cash payout of $40
million to PVR investors upon the closing of the transaction.
But the complaint argues that PVR is already currently positioned
for future growth and that the deal will harm its current
investors because, as part of the merger, PVR unit-holders are
expected to hold only 38 percent of the combined entity. The
complaint alleges that the proposed merger violates PVR's May 2012
partnership agreement with its unit-holders.
"Given PVR's recent solid performance as well as its strong future
growth prospects, the proposed consideration unit-holders will
receive is inadequate and undervalues the partnership," the
complaint says. "The individual defendants . . . have acted to
put their personal interests ahead of PVR's public unit-holders."
The suit seeks to stop the allegedly unfair deal, and the
complaint states that if the deal is to go through as is, the
class requests rescissory damages, in addition to litigation
costs, attorneys' fees and further relief as the court deems
proper.
Representatives from both sides were not immediately available for
comment on Nov. 26.
The class is represented by Evan J. Smith and Marc L. Ackerman of
Brodsky & Smith LLC, and Richard A. Acocelli --
racocelli@weisslawllp.com -- Michael A. Rogovin --
mrogovin@weisslawllp.com -- and Kelly C. Keenan of WeissLaw LLP.
Counsel information for the defendants was not immediately
available on Nov. 26.
The case is Bushansky v. PVR Partners LP et al., case number 2:13-
cv-06829, in the U.S. District Court for the Eastern District of
Pennsylvania.
SENTRY INSURANCE: Ordered to Produce Docs in "Soseeah" Class Suit
-----------------------------------------------------------------
Magistrate Judge Alan C. Torgerson granted, in part, and denied,
in part, a motion to compel discovery filed by plaintiffs in the
case captioned DELBERT SOSEEAH, for himself and others similarly
situated, MAXINE SOSEEAH, for herself and others similarly
situated, DAVID ARELLANES, for himself and others similarly
situated, DANIEL ARELLANES, for himself and others similarly
situated, and JOHN BORREGO, for himself and others similarly
situated, Plaintiffs, v. SENTRY INSURANCE, a mutual company, and
any other related business entities including parent companies,
consolidated tax filers and subsidiaries including DAIRYLAND
INSURANCE COMPANY, PEAK PROPERTY AND CASUALTY INSURANCE COMPANY,
and VIKING INSURANCE COMPANY OF WISCONSIN, Defendants, CIV. NO.
12-1091 RB/ACT, (D. N.M.).
The Court found that the Plaintiffs' request as stated is overly
broad; therefore, the Court modified the request to state that
Sentry is ordered to produce any non-privileged documents in its
possession, custody or control that define, describe, or
articulate Sentry's general and/or specific authority as the
parent company to determine, establish and mandate policies and
procedures to be followed and adhered to by the subsidiary
Defendants with respect to the substance and form of its insurance
policies.
A copy of the District Court's November 4, 2013 Memorandum Opinion
and Order is available at http://is.gd/LfGw23from Leagle.com.
SEQWATER: Queenslanders to Launch Class Action Early Next Year
--------------------------------------------------------------
Kim Agius and Tony Moore, writing for Brisbane Times, report that
thousands of southeast Queenslanders whose homes were damaged in
the 2011 floods will launch class action early next year.
And if residents had received money from charities to help them
recover from the 2011 flood including money from the 2011
Premier's Flood Appeal, they would not have to pay that money back
if they won a payout under their proposed class action, according
to the lawyers.
Litigation funder IMF Australia and Maurice Blackburn say
extensive modelling of the disaster has revealed the extent of
unnecessary flooding caused by the negligent operation of Wivenhoe
and Somerset Dams.
The modelling gives IMF the certainty it needs to commit the
millions of dollars required for the claim to proceed against the
state government, Sunwater, and SEQWater.
So far, 5000 people have signed up, with claims totalling more
than AUD1 billion.
Maurice Blackburn Principal Damian Scattini says anyone who was
inundated and suffered loss in the Brisbane and Bremer River
floods may have a claim.
"For most people, this was a flood that should not have happened
if Wivenhoe and Somerset Dams had been operated properly," he
said.
Mr. Scattini moved to allay concerns that flood-affected residents
who need to repay charitable donations if the class action
succeeded.
"There were a lot of charities which donated obviously, but the
ordinary rule is that charitable donations are not refundable,"
Mr. Scattini said. He said the Premier's Flood Appeal was classed
as a charitable donation. He said it was a different situation
with insurance payouts that had already been received by flood-
affected residents.
"Now with insurance, you don't get the double dip with your
insurance," he said.
"So if you recover 100 per cent of your loss (under the class
action) and you have been compensated by the insurer for 70
per cent of it, then you have to pay back to the insurer for the
bit that you have recovered.
"So you don't end up recovering 170 per cent of your loss so to
speak."
The statement of claim for the class action is now expected to be
filed in early 2014 with a February 28 deadline set for people to
sign up.
Mr. Scattini said they proposed a "closed" class action, meaning
it will only represent people who sign up to the class action.
It means people have to sign a retainer and a funding agreement.
Flood victim Jen Robusto blames the dam operators for damage to
her Kenmore home.
She says they "freaked out" and released too much water at once,
when flood waters were too high.
Moggill Creek rose metres up a steep hill to inundate her home to
its second floor.
She estimates she's out of pocket up to AUD100,000 because damage
to the pool and carpets haven't been covered by insurance.
"I'm still having drama," she said.
"We've spent a fortune to put things back where it was.
"I haven't been holding my breath for this class action, because
disappointment is worse."
IMF Australia Executive Director John Walker says the dam
operators weren't investigated thoroughly in the flood inquiry.
He says they will also focus on why the flood centre was closed
between January 2-6, when it was required to open.
"There was an ongoing flood event. Under the manual they were
required to be operating from a flood centre," Mr. Walker said.
"Basically the allegation, the engineers permitted the level of
the dam to get to a level that they ought not to have and they
should have commenced water through the gates before they did and
at greater levels than they did."
The flood inquiry had found that the engineers -- John Tibaldi,
Rob Ayre and Terry Malone -- had breached the dam manual and
referred them to the Crime and Misconduct Commission (CMC) to
examine whether they lied under oath and covered their tracks
about which strategies they adopted.
After a five-month review, the CMC said in August 2012 there was
no evidence the engineers colluded to mislead the floods inquiry
about how the dam was managed before Brisbane and Ipswich flooded
in January 2011.
In line with the flood inquiry's recommendations, the CMC's probe
was limited to documents the engineers prepared about their
actions and their oral testimony to the inquiry.
It did not look at whether their management of the dam's gates
during the flood crisis could amount to a criminal offence or
official misconduct.
More than 78 per cent of Queensland was declared a disaster zone
during the floods from December 2010 to January 2011, affecting
more than 2.5 million people.
Meetings will be held at the Greek Club in South Brisbane on
Sunday, December 15 from 1:00 p.m. and at Ipswich on December 16
at the Metro Hotel from 7:00 p.m. to discuss the class action.
"We will be giving people to chance to ask questions and have them
answered them on the spot," Mr. Scattini said.
"It's like a town hall meeting, a relaxed question and answer type
of format on the evening."
SOUTHWESTERN & PACIFIC: Bid to Strike Class Allegations Tossed
--------------------------------------------------------------
BILL GRAVES and MINERVA LOPEZ, on behalf of themselves and all
persons similarly situated, Plaintiffs, v. SOUTHWESTERN & PACIFIC
SPECIALTY FINANCE, INC. DBA CHECK 'N GO and Does 1 through 100
inclusive, Defendants, CASE NO. C 13-1159 SBA, (N.D. Cal.),
alleges that Southwestern Pacific made consumer loans in violation
of California Financial Code Section 22000 et seq. and California
Business and Professions Code Section 17200 et seq.
The parties appeared before the Court on the Defendant's (a)
motion to dismiss the Plaintiffs' first claim for relief, and (b)
motion to strike the class actions.
The Plaintiffs' first claim for relief alleged that the Defendant
violated the California Finance Lenders Law by offering loans that
are procedurally unconscionable and that contain substantively
unconscionable terms, including the amount of the finance charges
and the annual percentage rate. The Defendant contended that
dismissal of Plaintiffs' first claim for relief is appropriate
because there is no private right of action under Section 22302.
Because there is no private right of action under the California
Finance Lenders Law, the Defendant's motion to dismiss Plaintiffs'
first claim for relief is granted without leave to amend, ruled
District Judge Saundra Brown Armstrong.
Though the Defendant points out potential difficulties for
Plaintiffs in certifying the proposed class, Judge Armstrong found
that the Defendant has not shown that these concerns justify
striking the class allegations at this early stage of the
proceedings. The Defendant's arguments regarding the class
allegations are essentially arguments in opposition to a class
certification motion that has yet to be filed, she said. These
arguments are best addressed at the class certification stage
after the parties have had an opportunity to conduct discovery and
Plaintiffs have filed a motion for class certification, Judge
Armstrong added.
Accordingly, the Defendant's motion to strike the class
allegations is denied without prejudice. The Defendant may move
to strike the class allegations at the close of discovery or after
a motion for class certification has been filed, ruled the Court.
A copy of the District Court's November 4, 2013 Order is
http://is.gd/lM70MWavailable at from Leagle.com.
SPECRTE PERFORMANCE: "Avery" Suit Settlement Gets Final Approval
----------------------------------------------------------------
Chief District Judge George H. King granted final approval of a
class action settlement in ANTHONY AVERY and ZINA AVERY,
Plaintiffs, v. SPECRTE PERFORMANCE and AUTOZONE PARTS, INC. (sued
erroneously as AUTOZONE, INC.), Defendants, NO. CV 10-9802-GHK
(RZX), (C.D. Cal.).
The Court appointed the law firms of Lee Tran & Liang APLC and
Wiggins, Childs, Quinn & Pantazis LLC as Class Counsel, and
Plaintiffs Anthony Avery and Zina Avery as Class Representatives.
Class Counsel were awarded costs, expenses, and attorneys' fees in
the amount of $95,000 as fair and reasonable compensation for
their work in connection with the Litigation.
Class Representatives Anthony Avery and Zina Avery were awarded
incentive awards in the amount of $2000 each, as fair and
reasonable compensation for their services as class
representatives.
Following the entry of the Judgment and Final Approval Order, the
First Amended Complaint in this Action will be dismissed in its
entirety on the merits and with prejudice. This dismissal will be
without costs to any party, ruled Judge King.
A copy of the District Court's November 4, 2013 Judgment and Order
is available at http://is.gd/AGQ5h8from Leagle.com.
TESLA MOTORS: California Workers File Wage-and-Hour Class Action
----------------------------------------------------------------
Max Taves, writing for The Recorder, reports that Tesla Motors
Inc. skimps on overtime wages and denies meal and rest breaks to
its California workers, according to a proposed employment class
action filed in Oakland on Nov. 22.
"Defendants have a uniform and unlawful policy of failing to pay
overtime wages for hours worked in excess of eight hours per work
day," wrote plaintiffs attorney Hernaldo Baltodano of Baltodano &
Baltodano.
Tesla Motors, whose outside counsel is not yet known, did not
return a request for comment on Nov. 25.
Brought in Alameda County Superior Court on behalf of two workers
at its Fremont-based manufacturing site, Villahermosa v. Tesla
accuses the electric car maker of practices that routinely violate
state wage-and-hour laws.
Among their allegations, plaintiff employees say the company
systematically miscalculates overtime pay because it rounds up
workers' start times and rounds down their end times.
"Because the rounding mechanism utilized by [Tesla] is not even-
handed over time, it has unfairly benefitted defendants and
deprived plaintiffs of all wages which they are owed," plaintiffs
asserted in their 20-page complaint.
Also, the plaintiffs say, the company fails to provide a second
meal period for employees whose shifts exceed 10 hours per day.
Villahermosa is the latest in a series of suits pending against
Elon Musk's Palo Alto-based, publicly traded car maker. The same
day the employment class action was filed, Tesla shareholders
filed suit in the Northern District of California, alleging that
the company's executives misled investors about the safety of its
electric vehicles. Earlier this month, another securities suit
made similar allegations after three of Tesla's battery-powered
luxury cars burst into flames in different incidents.
TOYS "R" US: Settles Consumer Protection Lawsuit
------------------------------------------------
The Associated Press reports that Toys"R"Us has agreed to pay
nearly $180,000 to settle a consumer protection lawsuit alleging
that the retailer overcharged customers in Los Angeles and San
Diego counties.
Los Angeles County prosecutors said on Dec. 3 that Toys"R"Us, Inc.
agreed to the settlement without admitting liability.
The lawsuit grew out of a 2 1/2-year investigation by weights and
measures officials in Los Angeles, San Diego and Ventura counties.
The probe found a pattern of pricing errors at the checkout at
many Toys"R''Us and Babies"R''Us stores. Five percent of 4,167
items purchased were overcharged. Higher percentages of
overcharges occurred in selected areas and stores, despite the
company instituting a pricing compliance program.
Toys"R''Us is headquartered in Wayne, NJ. A call to a company
spokesperson was not immediately returned.
TREASURY WINE: Seeks Injunction Against Class Action Specialist
---------------------------------------------------------------
Eli Greenblat, writing for BusinessDay, reports that Treasury Wine
Estates, the world's biggest winemaker, has sought an injunction
in the Supreme Court of Victoria against lawyer-turned-class
action specialist Mark Elliott to stop him gaining access to its
shareholder register.
The owner of iconic brands such as Penfolds, Wolf Blass and
Lindemans believes Mr. Elliott, a former partner with Minter
Ellison who has set up his own business pitching shareholder class
actions, will use its shareholder register for improper purposes
and to communicate with its shareholders to help build his
lawsuit.
Treasury Wine has taken action against Mr. Elliott personally,
BusinessDay can reveal, rather than his class action investment
vehicle Melbourne City Investments which is also engaged in other
shareholder class actions against Leighton Holdings and collapsed
financial services group Banksia.
Treasury Wine is facing two class action lawsuits flowing from the
surprise AUD160 million write-down and profit warning in July
linked to its troubled US wine business. Mr. Elliott is running
his own action, while litigation funder IMF and its partner law
firm Maurice Blackburn are erecting their own shareholder class
action.
Both will argue Treasury Wine failed to meet its continuous
disclosure obligations around the US writedown.
The battle between Mr. Elliott and the wine group is set to play
out in court on Nov. 22 where Treasury Wine will push the court to
keep its shareholder register and the details of its 73,000
investors confidential.
A Treasury Wine company spokesperson told BusinessDay on Nov. 27:
"Treasury Wine wants to ensure that any private information
regarding its shareholder details is only provided for an
appropriate and lawful purpose.
"Treasury Wine strongly denies any allegations it has breached its
disclosure obligations and intends to fight any litigation to that
effect".
In court documents obtained by BusinessDay, a lawyer acting for
Treasury Wine said in an affidavit that Mr. Elliott had indicated
he wished to communicate with Treasury Wine shareholders.
"The purpose for which I seek access to copies of register is in
order to enable me to ascertain the names and addresses of the
shareholders so that I can make proper arrangements to communicate
with them in respect of the class action," the affidavit reports
Mr. Elliott said in a letter this month seeking a copy of the
register.
Elliott hits back
Mr. Elliott has hit back at Treasury Wine's injunction against him
on Nov. 27, telling BusinessDay in an exclusive interview that the
winemaker's action was an attempt by the company to frustrate his
legitimate and lawful access to the share register.
He warned that if Treasury Wine believed they could persuade him
to drop his case by flooding him with court actions they didn't
know him very well.
"Treasury Wine are doing everything they can to frustrate me, to
obfuscate, and at the outset they sent silly letters and their
lawyers are working around the clock thinking attrition is going
to stop me -- they haven't done their homework."
He said he had a right to view the register.
"My access is innocuous and hypothetical, because all I said was
I'd like to have access to the register just to look at it in case
I want to do something with it in the future within the prescribed
purpose, " Mr. Elliott told BusinessDay.
"Tell me why a company acting properly wouldn't say to me,
'Mr. Elliott you are a lawyer of 30 years standing, a good citizen
and fellow shareholder, if you enter into some undertaking with us
to use the register for a proper purpose then we will grant you
access' ,. . so why won't the company allow me to communicate
with fellow shareholders for a proper purpose?"
"Whether or not I ever write to the shareholders in respect of the
class action is hypothetical, at the moment I want access to the
register and my primary purpose at the moment is to look at it
because I want to understand how many shareholders there are,
where they are, where they are located, are they rural, overseas,
domestic, I just want to know the profile of the open class."
Mr. Elliott's lawsuit is an "open" class action meaning all
Treasury Wine shareholder are automatically covered by his case,
this is different to the IMF action which is "closed" and requires
investors to opt in to the case by signing up and joining the
action.
Mr. Elliott said because all shareholders are covered by his class
action there was no real need for him to immediately communicate
with Treasury Wine investors.
"I'm an 'opt out' class action and they are the only classes that
I run, Banksia, Leighton and Treasury Wine are all opt out in
other words I don't need to talk to you, I wouldn't actually need
to talk to Treasury Wine shareholders for the forseeable future
and certainly not this side of Christmas."
Mr. Elliott also lashed out at Treasury Wine boss Warwick
Every-Burns who in BusinessDay complained about out of control
shareholder class actions that he said were distracting companies
and usurping the role of regulators.
"The CEO of Treasury, Warwick Every-Burns, has been complaining
about how unfair class actions are and I was surprised because I
thought it's very unusual for a CEO to be complaining about
somebody who is trying to ensure compliance with the law and I
think to suggest ASX and ASIC have got that job and everybody else
should just sit idle didn't make a lot of sense to me.
"And the irony struck me because Mr. Every-Burns is complaining
about litigation and is complaining about the waste of time and
resources of litigation and obviously instructed his law firm
Herbert Smith Freehills who have issued proceedings against me in
the Supreme Court personally, against me, because I made an
application to the share registry."
Mr. Elliott said he was personally funding his case including the
hiring of QCs and other court costs.
"Nobody cares if my intentions are righteous, all they [Treasury
Wine] care is that we have got to stop this bloke and let's use
litigation, and the irony of that just smacked me in the face
because I'm a shareholder to start, I'm running a class action on
a no-win no-fee basis . . . for something I say the company has
done.
"I'm spending money hand over fist to right the wrong."
U.S. CITIZENSHIP: A.B.T. Suit Settlement Wins Final Court Approval
------------------------------------------------------------------
A.B.T., et al., Plaintiffs, v. U.S. CITIZENSHIP AND IMMIGRATION
SERVICES, et al., Defendants, CASE NO. C11-2108 RAJ, (W.D. Wash.)
is before the court on the parties' request for final approval of
a settlement of a class action, payment of attorney's fees and
costs, and motion to amend certain deadlines in the parties'
settlement agreement until December 3, 2013.
The class action challenges the Defendants' alleged policies and
practices that deprive Plaintiffs and other similarly situated of
(1) effective, timely notice of determinations relating to the
180-day statutory waiting period before an asylum applicant is
eligible to apply for employment authorization; (2) a meaningful
opportunity to correct errors in such determination; and (3) the
opportunity to obtain a work permit, known as an Employment
Authorization Document (EAD).
In a final order, District Judge Richard A. Jones granted the
motion to amend certain deadlines in the settlement agreement; the
motion for attorney's fees; and approved settlement of the class
action.
The court granted final approval of the settlement holding that
the settlement is "fair, reasonable, and adequate."
A copy of the District Court's November 4, 2013 Order is available
at http://is.gd/tpMSCBfrom Leagle.com.
U.S. CITIZENSHIP: Deadlines in A.B.T. Accord Extended to Dec.
-------------------------------------------------------------
District Judge Richard A. Jones approved the class action
settlement in A.B.T., et al., Plaintiffs, v. U.S. CITIZENSHIP AND
IMMIGRATION SERVICES, et al., Defendants, CASE NO. C11-2108 RAJ,
(W.D. Wash.).
In its order, the Court reaffirmed its appointment of class
counsel: Matt Adams and Christopher Strawn, Northwest Immigrant
Rights Project (NWIRP); Melissa Crow, Mary Kenney, and Emily
Creighton, American Immigration Council (AIC); Robert H. Gibbs and
Robert Pauw, Gibbs Houston Pauw; and Iris Gomez, Massachusetts Law
Reform Institute (MLRI). The Court granted the parties' request
that Defendants pay class counsel attorneys' fees and costs in the
amount of $425,000.
Because the lapse in appropriations and the resulting Government
shutdown has caused Defendants to require additional time to
complete the necessary tasks to implement various provisions of
the proposed settlement agreement, and because the parties have
agreed that a brief extension neither frustrates the purpose of
the agreement, nor is unfair to Class members, the court extended
all deadlines which otherwise would have occurred on November 8,
2013 (i.e., six (6) months after the date the court granted
preliminary approval), until December 3, 2013.
A copy of the District Court's November 4, 2013 Order is available
at http://is.gd/MDuuzffrom Leagle.com.
UNITED STATES: Class Allegations Stricken in "Askins" Suit
----------------------------------------------------------
Judge Victor J. Wolski of the United States Court of Federal
Claims granted a motion to strike class allegations in the case
Captioned THOMAS H. ASKINS, JR., et al., Plaintiffs, v. THE UNITED
STATES, Defendant, NO. 07-650L.
This case has been brought as a class action by five couples who
own property in Virginia Beach or Chesapeake, Virginia, in the
vicinity of Naval Air Station Oceana or Naval Auxiliary Landing
Field Fentress. Plaintiffs allege that on July 1, 1999, the
increased operation of F/A-18 C/D fighter jets at these naval
facilities resulted in the taking of their property without
payment of just compensation. The Court has previously ruled that
the individual claims of the plaintiffs in this case, and in a
companion case that was not brought as a class action, were timely
filed due to class action tolling of the statute of limitations
period.
The government has moved to strike, or alternatively to dismiss,
the class allegations due to a lack of subject-matter
jurisdiction, under Rules 12(f) and 12(b)(1) of the Rules of the
United States Court of Federal Claims. The government argued that
the tolling of the statute of limitations due to the filing of a
prior class action lawsuit in which class certification was denied
does not allow new class claims to be brought by putative members
of the previously-rejected class.
According to Judge Wolski, class action tolling cannot be used to
extend the statute of limitations for the class claims that the
plaintiffs seek to litigate. The government's motion in the
alternative, to dismiss the class claims, is moot and is denied
accordingly, added Judge Wolski.
A copy of the Federal Claims Court's November 5, 2013 Memorandum
Opinion and Order is available at http://is.gd/6TzWCvfrom
Leagle.com.
For plaintiffs:
Martin E. Wolf, Esq.
Richard S. Gordon, Esq.
Gordon & Wolf, Chtd.
102 W. Pennsylvania Avenue, Suite 402
Towson, MD 2120
Phone: 410-825-2300
- and -
Charles R. Hofheimer, Esq.
Jack E. Ferrebee, Esq.
Kristen D. Hofheimer, Esq.
Hofheimer/Ferrebee, P.C.
1060 Laskin Road Suite 12B
Virginia Beach, VA 23451
Telephone: (757) 425-5200/ (757) 425-2234
Facsimile: (757) 425-6100
- and -
Thomas Shuttleworth, Esq.
Stephen C. Swain, Esq.
Charles Lustig, Esq.
Shuttleworth, Ruloff, Swain, Haddad & Morecock, P.C.,
4525 South Boulevard, Suite 300
Virginia Beach, VA 23452
Telephone: (757) 671-6000
Facsimile: (757) 671-6004
- and -
Kieron F. Quinn, Of counsel
2809 Elliott St.
Baltimore, MD 21224
Joshua A. Doan, Environment & Natural Resources Division,
Department of Justice, with whom was Ignacia S. Moreno, Assistant
Attorney General, and Alison D. Garner, all of Washington, D.C.,
for defendant. Robert J. Smith, Naval Litigation Office,
Washington, D.C., of counsel.
VIOLIN MEMORY: Glancy Binkow & Goldberg Files Class Action
----------------------------------------------------------
Glancy Binkow & Goldberg LLP, representing investors of Violin
Memory, Inc., on Nov. 26 disclosed that it has filed a class
action lawsuit in the United States District Court for the
Northern District of California on behalf of a class consisting of
all persons or entities who purchased the common stock of Violin
pursuant and/or traceable to the Company's September 26, 2013,
initial public offering.
A COPY OF THE COMPLAINT IS AVAILABLE FROM THE COURT OR FROM GLANCY
BINKOW & GOLDBERG LLP. PLEASE CONTACT US TOLL-FREE AT (888) 773-
9224, OR AT (212) 682-5340, OR BY EMAIL TO
SHAREHOLDERS@GLANCYLAW.COM TO DISCUSS THIS MATTER. IF YOU INQUIRE
BY EMAIL PLEASE INCLUDE YOUR MAILING ADDRESS, TELEPHONE NUMBER AND
NUMBER OF SHARES PURCHASED.
The Complaint charges Violin, certain of the Company's executive
officers and directors, and the underwriters of the IPO with
violations of federal securities laws. Violin develops and
supplies memory-based storage systems to bring storage performance
in line with high-speed applications, servers and networks in the
Americas, Europe and the Asia Pacific. The Complaint alleges that
the prospectus and registration statement issued in connection
with the Company's IPO were false and misleading because they
failed to disclose that the Company was being negatively impacted
by known trends affecting its sales and revenues. Specifically,
the Complaint alleges that the Company failed to disclose that,
prior to the IPO, the Company's sales and revenues were being
negatively impacted by the reprioritization of federal agencies'
budgets due to the uncertainty surrounding the negotiations over
the federal budget and the possibility of a shutdown of the
federal government.
On November 21, 2013, the Company reported its 2014 fiscal third
quarter financial results and disclosed that it had been
negatively impacted by the slowdown in spending by the federal
government in its first quarter as a public company. On this
news, the Company's stock price declined $2.89 per share, or
48.17%, to close on November 22, 2013, at $3.11 per share, on
unusually high volume.
Plaintiff seeks to recover damages on behalf of class members and
is represented by Glancy Binkow & Goldberg LLP, a law firm with
significant experience in prosecuting class actions and
substantial expertise in actions involving corporate fraud.
If you are a member of the class described above, you may move the
Court, no later than 60 days from the date of this Notice, to
serve as lead plaintiff; however, you must meet certain legal
requirements. If you wish to learn more about this action or have
any questions concerning this announcement or your rights or
interests with respect to these matters, please contact Michael
Goldberg, Esquire, of Glancy Binkow & Goldberg LLP, 1925 Century
Park East, Suite 2100, Los Angeles, California 90067, Toll Free at
(888) 773-9224, or contact Gregory Linkh, Esquire, of Glancy
Binkow & Goldberg LLP at 122 E. 42nd Street, Suite 2920, New York,
New York 10168, at (212) 682-5340, by e-mail to
shareholders@glancylaw.com or visit our website at
http://www.glancylaw.com
If you inquire by email please include your mailing address,
telephone number and number of shares purchased.
WEST PUBLISHING: Judge Strikes Down Baker's Legal Fee Request
-------------------------------------------------------------
Amanda Bronstad, writing for The National Law Journal, reports
that a federal judge has struck down an attorney's request for
legal fees in a $9.5 million class action settlement resolving
antitrust claims against the publisher of the Barbri bar exam
review course.
U.S. District Judge Manuel Real in Los Angeles rejected
George Richard Baker's argument that he is entitled to $578,750 in
fees for his role in raising red flags about the coupons in a
settlement with West Publishing Corp. and Kaplan Inc. Baker
represents six objectors to the deal.
On Sept. 20, Judge Real approved a new deal -- this time, an
all-cash settlement -- and reduced plaintiffs counsel's fee
request from $1.9 million to $585,000, most of it going to class
counsel Harris & Ruble.
But the judge awarded no fees to Mr. Baker, crediting the changes
in the settlement to his own "independent analysis," rather than
the work of objectors' counsel, according to court documents.
In an Oct. 18 motion, Mr. Baker called on Judge Real to amend or
vacate his ruling in light of a parallel case pending before the
U.S. Court of Appeals for the Ninth Circuit brought by objectors
to a $49 million Barbri settlement. That appeal, Baker wrote,
"raises issues indistinguishable" from his case, Stephen Stetson
v. West Publishing Corp.
"Basically, it's the same argument in our view: What the judge is
saying is he would have already ruled that way anyway and,
therefore, we don't get a fee," Mr. Baker told The National Law
Journal. "I don't think that's the proper standard, and it would
have a horrible chilling effect on meritorious objections."
Both cases alleged that about 500,000 law school students paid too
much for Barbri review materials after West and Kaplan conspired
to establish a monopoly in violation of the Sherman Act. The
larger settlement involves those who paid for the Barbri course
during the nine years after Aug. 1, 1997, while the smaller one is
for people who purchased the materials from Aug. 1, 2006, through
March 21, 2011.
On Nov. 25, Judge Real rejected Mr. Baker's motion. He also
granted $4,000 in incentive awards to each of the five
representative plaintiffs.
Mr. Baker, a solo practitioner with offices in San Francisco and
Birmingham, Ala., said he planned to appeal the decision to the
Ninth Circuit, possibly consolidating his arguments with the
Barbri case now before the Ninth Circuit, Ryan Rodriguez v. West
Publishing Corp.
In that case, lawyers at Pasadena's Kendrick & Nutley, who
represent five objectors, have sought to reverse Real's January 14
ruling awarding them $236,000 in fees. They had requested $1.8
million after dismantling the original deal by flagging conflicts
over the incentive awards and, later, successfully reducing fees
to McGuireWoods, class counsel in the case.
In an Aug. 19 appeal, Kendrick & Nutley argued that Judge Real,
who cited his own independent analysis in approving changes to the
settlement, failed to consider the firm's work, which saved $8.9
million for the class. Briefing on that appeal was completed on
Nov. 21, but the Ninth Circuit hasn't scheduled oral argument.
WESTWARD HOSPITALITY: "Romanov" Suit Returns to State Court
-----------------------------------------------------------
District Judge Troy L. Nunley signed a stipulation and order
remanding the action captioned, ANATOLI ROMANOV, an individual, on
behalf of himself and all others similarly situated, Plaintiff, v.
WESTWARD HOSPITALITY MANAGEMENT LLC, a Delaware corporation;
WESTMONT HOSPITALITY GROUP, INC., a Texas corporation; and DOES 1
through 100, inclusive, Defendants, CASE NO. 2:12-CV-02036-TLN-
CKD, (E.D. Cal.), to the Superior Court of the State of California
for the County of Sacramento.
Mr. Romanov commenced this action as a putative class action in
the Superior Court of the State of California, County of
Sacramento, on June 22, 2012. The Defendants removed the action to
United States District Court, E.D. California, Sacramento Division
on August 3, 2012, pursuant to the Class Action Fairness Act.
Mr. Romanov did not seek remand of the action at the time because
the evidence submitted by defendants in support of their removal
suggested that there was in excess of $5 million at stake, thereby
investing the E.D. Cal. with jurisdiction under the Class Action
Fairness Act. After formal and informal discovery related to
certain financial information, Mr. Romanov determined that there
was likely significantly less than $5 million at stake. The
parties recently engaged in a successful mediation on the basis of
this financial information and agreed on a settlement figure that
is well below the minimum jurisdictional amount for non-
discretionary jurisdiction in the Court under the Class Action
Fairness Act. As part of that settlement, the parties agreed that
the case, which asserts only state law claims, properly belongs
back in state court for settlement and eventual administration.
A copy of the November 4, 2013 Stipulation And Order is available
at http://is.gd/mPmqLQfrom Leagle.com.
MAJORS & FOX LLP, Frank J. Fox -- fjfox@majorfox.com --
SBN139147(Ca.), Lawrence J. Salisbury -- lsalisbu@majorfox.com --
SBN179748(Ca.), Andrew M. Greene -- agreene@majorfox.com --
SBN167386(Ca.), San Diego, California.
ATTORNEYS AGAINST ABUSE OF ELDERS, Mark A. Redmond --
mr@markredmondlaw.com -- SBN161520(Ca.), Sacramento, California,
Attorneys for Plaintiff, Anatoli Romanov, and all others similarly
situated.
JEFFER MANGELS BUTLER & MITCHELL LLP, Travis M. Gemoets --
TGemoets@JMBM.com -- Attorneys for Defendants Westward Hospitality
Management LLC and Westmont Hospitality Group, Inc.
* Big Securities Class Action Settlement May Spur Opt-Outs
----------------------------------------------------------
According to Corporate Counsel's Rebekah Mintzer, a new report
from Cornerstone Research and Latham & Watkins indicates that the
larger the securities class action settlement, the more likely it
is that at least some class members will jump ship and go it
alone. "Opt-Out Cases in Securities Class Action Settlements"
examines 15 years' worth of publicly available documentation, and
is believed by its authors to be the first systematic study on the
topic.
Amir Rozen, a principal at Cornerstone Research, a firm providing
economic and financial analysis as well as expert testimony,
teamed with Latham partner Christopher Harris --
christopher.harris@lw.com -- and Cornerstone's Joshua Schaeffer to
write the report. Mr. Rozen told CorpCounsel.com that one impetus
for putting the report together was a demand from clients to
better understand opt-outs in these types of settlements.
"Recently this topic has become more and more important," he said.
Mr. Rozen added that he believes on the defense side of these
securities cases, the document can be a tool "to evaluate the
occurrence of opt-out through time, size, and evidence in specific
cases."
In writing the report, the authors studied the 1,272 securities
class action settlements reached in the U.S. between Jan. 1, 1996
and Dec. 31, 2011. Of the settlements studied, 38 had at least
one plaintiff that opted-out. For 21 of these 38, opt-out
settlement amount information was available.
In the settlements studied, size mattered. The report revealed
that in 53 percent of securities class action settlements with at
least $500 million in value, there was at least one plaintiff
opting out. For those settlements below $20 million, the
probability of an opt-out was much smaller -- only 0.9 percent.
One of the potential advantages to opting out of a securities
class action is the possibility of bringing home more cash. In
the average case with an opt-out settlement, the plaintiff leaving
ended up making an average of 12.5 percent, or a median of 3.8
percent of the original settlement value. In six of the cases
studied, the plaintiff opting out did even better -- obtaining a
new settlement that added up to more than 20 percent of the
original.
Most of the plaintiffs opting out were groups or institutions, not
individuals, according to the report. Of the 34 opt-out
settlements in which the plaintiff's identity was available, 16
involved pension funds and 14 involved mutual funds, hedge funds,
or other investment companies.
Christopher Harris of Latham & Watkins told CorpCounsel.com that
this pattern is very much in line with his own experiences.
"We've seen that in the cases that we handle so we weren't
surprised that it came up in the data as well," he said.
As a result, Mr. Harris explained, defendants should be wary of
who or what they are facing off against when negotiating a
settlement. "Consider who's in your class," he said. "Are they
large institutional investors, particularly pension funds?" He
added that it's also important to know which plaintiffs have filed
to be lead plaintiff in the case and failed, because these class
members will already have attorneys on the case primed to work on
a potential opt-out down the road.
If these factors are present, and the settlement is large, said
Mr. Harris, "you may have to set aside some funds to do deal with
an opt-out case down the road."
Sometimes, the report explained, if there are enough opt-outs, the
"blow-out provision" in a settlement might get triggered, bringing
the parties back to square one. Mr. Harris said that since these
blow-out provisions haven't been litigated much, it's best for
attorneys to draft them with "as much clarity and careful wording"
as possible to avoid ambiguity.
The blow-out provision can also be part of a strategy for defense
attorneys concerned that opt-outs from a securities class action
settlement are likely. "You want to make sure the trigger is
sufficiently low so if the economics no longer make sense to you
can get started again in your negotiations," Mr. Harris advised.
*********
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.
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