/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/140310.mbx C L A S S A C T I O N R E P O R T E R Monday, March 10, 2014, Vol. 16, No. 48 Headlines ACT INC: Sued for Illegally Selling Personally Identifiable Info AMERICAN TRAFFIC: Removed "Hug" Class Suit to E.D. Missouri ARAYA INC: Recalled Choco & Marshmallow Products Over Allergens ASA LOGISTICS: Fails to Pay Employee's Wages, Illinois Suit Says ASCENA RETAIL: Accused of ADA Violations in W.D. Pennsylvania BLUE CROSS: Discriminates Against Poor People With HIV, Suit Says BP PLC: Lawyers Insist Deepwater Settlement Misinterpreted C & J CLARK: Faces "Jahoda" ADA Violations Suit in Pennsylvania CAC FINANCIAL: Accused of Violating Fair Debt Collection Act CANON BUSINESS: Faces More Discovery in Background Check Case CHARLESTON COUNTY, SC: Paramedics Sue Over Unpaid Overtime Wages CODMAN NEURO: Class I Recall for TRUFILL n-BCA ENDO PHARMACEUTICALS: Faces Antitrust Suit Over Lidoderm Product ESTATE INFORMATION: Accused of Violating Fair Debt Collection Act FISHER-PRICE: No Recall for Seahorse Toy Despite Safety Concerns FLAT CREEK: Heavenly Blue Cheese and Aztec Cheddar Cheese Recalled FORD MOTOR: Fiesta & Focus Have Faulty Transmissions, Suit Says GANNETT CO: Accused of Discriminating Against Black Workers GANO EXCEL: C'Real Spirulina Due to Undeclared Allergens Recalled GENERAL ELECTRIC: Class Seeks to Recover Unpaid Overtime Wages GENERAL MILLS: Sued by "Kellogg" Over False Claims on Kix Cereal GOYA FOODS: Malta Goya Drinks Contain Carcinogen, Suit Claims HALLIBURTON CO: Justices Reluctant to Overturn 1988 Ruling HERBASWAY LABORATORIES: Sued for Bogus Claims on Daily Detox Pill HUMAN SCIENCE: Pro ArthMax Recalled Due to Active Ingredients IC SYSTEM: Accused of Violating Fair Debt Collection Act in N.Y. ILLINOIS: Faces Fifth Lawsuit Over New Pension Law INTEGRITY STAFFING: Supreme Court to Review Unpaid Security Checks KENNETH KEYSER: Owner of Cottage Garden Faces OT Suit KIA MOTORS: "Patterson" Fraud Suit Transferred to California KINNIKINNICK FOODS: 5 Foods Products Recalled Due to Allergen KINNIKINNICK FOODS: Recall on Products With Milk Allergen Expanded LEHIGH VALLEY: Voluntarily Recalls Orange Juice Over Allergen LIVEDEAL INC: Lawsuit by GES Closed After Settlement Payments MARCHELLO'S GARDEN: Fails to Properly Overtime, Class Claims MARINA DISTRICT: Refused to Refund Buy-In Money, Suit Claims MOTLEY RICE: Sued by South Carolinians Over Worker's Comp Loss MT. GOX: Faces Suit Over Breach Resulting in 744K-Bitcoin Loss NUCOR CORP: Still Faces Suits Alleging Antitrust Law Violations OMNICARE INC: Supreme Court to Review Investors' Securities Suit PATHEON INC: Continues to Face Suit Over Product Recall PAYPAL INC: "Zepeda" Suit Settlement Needs Revision, Court Ruled PNC FINANCIAL: Allowed to Appeal CBNV Mortgage Suit Certification PRIDE MEDICAL: Doc Revealed HIV Status of 379 Patients, Suit Says SAFEWAY INC: Settles False Advertising Suit for $2.25 Million STANFORD GROUP: Investors May Recover via Class Suits, SC Ruled STATE AUTO: Faces Litigation Over Insurance to Value Program TEXAS INDUSTRIES: Being Sold to Martin for Too Little, Suit Says TEXAS INDUSTRIES: Several Suits Over Chrome 6 Emissions Stayed TEXAS INDUSTRIES: No Trial Date Yet in Suit Over Oro Grande Plant TOTAL SYSTEM: Awaits OK of Accord in Suit Over NetSpend Merger TRIQUINT SEMICONDUCTOR: Being Sold for Too Little, Class Claims VITACOST.COM INC: No Writ Filed v. Dismissal of Securities Suit WATTS WATER: "Trabakoolas" Suit Stayed for Possible Settlement WILLIAM OLEFINS: Sued by Louisiana Residents Over "Toxic Cloud" * Child Product Safety Recalls Have Dismal Response Rate of 10% ********* ACT INC: Sued for Illegally Selling Personally Identifiable Info ---------------------------------------------------------------- Cathlene Silha, Arie Wolf, Karoline Kamzic, and Elyse Stevens, on behalf of themselves and all others similarly situated v. ACT, Inc., an Iowa not-for-profit corporation, and The College Board, a New York not-for-profit corporation, Case No. 1:14-cv-00505 (N.D. Ill., January 23, 2014) is a consumer class action lawsuit brought on behalf of all persons similarly situated, whose private, nonpublic personally identifiable information was deliberately sold by the Defendants for monetary gain without the legal consent of the Plaintiffs and the Class. ACT is an Iowa not-for-profit corporation that conducts business throughout the United States with its principal place of business located in Iowa City, Johnson County, Iowa. TCB is a New York not-for-profit corporation that conducts business throughout the United States with its principal place of business located in New York City. ACT and TCB are national testing agencies that administer, for a fee, the ACT and SAT college entrance exams to more than 1,600,000 minor-aged high-school students annually. TCB also administers the PSATINMSQT, CLEP, and AP (Advanced Placement) tests to these same students. These tests are generally mandatory for students desiring to attend college after high-school or earn college credit while in high school. The Plaintiffs are represented by: Larry D. Drury, Esq. LARRY D. DRURY, LTD. 100 North LaSalle Street, Suite 1010 Chicago, IL 60602 Telephone: (312) 346-7950 E-mail: ldrurvlaw@aol.com - and - Jim Rowe, Esq. ROWE & ASSOCIATES One Dearborn Square, Suite 644 Kankakee, IL 60901 Telephone: (815) 929-3844 E-mail: jr@rowelegal.com - and - Evan J. Smith, Esq. BRODSKY & SMITH, LLC Two Bala Plaza, Suite 510 Bala Cynwyd, PA 19004 Telephone: (610) 667-6200 E-mail: esmith@brodsky-smith.com - and - John H. Alexander, Esq. JOHN H. ALEXANDER & ASSOCIATES 55 West Monroe, Suite 2455 Chicago, IL 60603 Telephone: (312) 263-7731 E-mail: john@jaalexanderlaw.com - and - Robert A. Langendorf, Esq. 134 North LaSalle Street, Suite 1515 Chicago, IL 60602 Telephone: (312) 782-5933 E-mail: rlangendorf@comcast.net Defendant The College Board is represented by: Theodore R. Scarborough, Jr., Esq. Robert Jason Burch, Esq. SIDLEY AUSTIN LLP (CHICAGO) One South Dearborn Street Chicago, IL 60603 Telephone: (312) 853-7000 E-mail: tscarborough@sidley.com rburch@sidley.com AMERICAN TRAFFIC: Removed "Hug" Class Suit to E.D. Missouri ----------------------------------------------------------- The purported class action lawsuit styled Hug v. American Traffic Solutions, Inc., Case No. 1322-CC-10189, was removed from the Circuit Court for the City of St. Louis, Missouri, to the U.S. District Court for the Eastern District of Missouri (St. Louis). The District Court Clerk assigned Case No. 4:14-cv-00138-ERW to the proceeding. The Plaintiff is represented by: James J. Rosemergy, Esq. CAREY AND DANIS 8235 Forsyth Boulevard, Suite 1100 Clayton, MO 63105 Telephone: (314) 725-7700 Facsimile: (314) 721-0905 E-mail: jrosemergy@careydanis.com The Defendant is represented by: James E. Crowe, III, Esq. Edward L. Dowd, Jr., Esq. DOWD BENNETT, LLP 7733 Forsyth Boulevard, Suite 1900 Clayton, MO 63105 Telephone: (314) 889-7300 Facsimile: (314) 863-2111 E-mail: jcrowe@dowdbennett.com edowd@dowdbennett.com ARAYA INC: Recalled Choco & Marshmallow Products Over Allergens --------------------------------------------------------------- Araya Inc of Katy, TX, in January issued a voluntarily recalling various types of products including Marshmallows, Chocolate gourmet bars, Dry Fruits covered in chocolate and assorted chocolate gift boxes because they may contain traces of allergens not declared on the label. People who have an allergy or severe sensitivity to Wheat, Tree Nuts, Soy and Milk Protein run the risk of serious or life-threatening allergic reaction if they consume these products. The Marshmallows, Chocolate gourmet bars, Dry Fruits covered in chocolate and chocolate gift boxes were distributed nationwide directly to customers via FedEx from internet sales and in the state of Texas through these retailers: CENTRAL MARKET - HOUSTON, CENTRAL MARKET - NORTH LAMAR, CENTRAL MARKET - PRESTON, CENTRAL MARKET - WESTGATE, HEB - FRY RD, HEB #99 Louetta, HOTEL MOKARA All products within "best buy" date are being recalled including: Product Name UPC Code Potential Undeclared Allergen GOURMET BAR - BACON 729440332044 Wheat GOURMET BAR - CAYENNE PEPPER 729440332006 GOURMET BAR - CRISPY ORANGE 729440332051 GOURMET BAR - CURRY 729440332037 MARSHMALLOW - CHOCOLATE 760921366004 Milk Protein, Soy, Wheat MARSHMALLOW - COCONUT 760921366011 MARSHMALLOW - COOKIES AND CREAM 760921366066 MARSHMALLOW - GINGERBREAD 760921366003 MARSHMALLOW - PEPPERMINT 760921366097 MARSHMALLOW - RED VELVET 760921366073 MARSHMALLOW - VANILLA 760921366028 GOURMET BAR - MENDIANT - DARK 729440332075 Tree Nuts and Wheat Soy and Milk GOURMET BAR - MENDIANT - MILK 729440332082 DRY FRUIT - ORANGE PEEL 729440332105 Tree Nuts, Wheat DRY FRUIT - MANGO CAYENNE 729440332136 DRY FRUIT - PEARS 729440332112 CHOCOLATE GIFT BOX - SC 6 OREOS 729440332167 Wheat Outside Label declares Soy and Milk as ingredients but does not identify them as allergens CHOCOLATE GIFT BOX - SC SMALL 12 CHOCOLATE 729440332488 CHOCOLATE GIFT BOX - SC SMALL 6 CHOCOLATE 729440332235 CHOCOLATE - S'MORES 729440332402 Wheat The voluntary recall was initiated by Araya after reviewing with the FDA the current product labels and determining that the allergen declaration was not complete since it did not state all the allergens present in the facility. The firm also uses peanuts in some products; however, peanuts are declared as an allergen on all product labels and are not part of this recall. Customers who purchased any of the recalled products listed above and are allergic or have a severe sensitivity to wheat, tree nuts, milk protein or soy, please do not consume the products. Please discard them. For a full refund, consumers may visit at any of stores with your proof of purchase receipt. Store locations are: 2013 W. Gray St., Houston TX 77019; 1141 Uptown Park Blvd., Houston TX 77056; and 1575 West Grand Pkwy S., Katy TX 77494. Consumers who purchased any of the recalled products through the internet or who have questions about this recall may contact the company at 281-395-1050 from 9:00 a.m. - 5:00 p.m. CST Monday- Friday. ASA LOGISTICS: Fails to Pay Employee's Wages, Illinois Suit Says ---------------------------------------------------------------- Maurice Cross v. ASA Logistics, Inc., Estes Express Lines, Inc., and PB & LB Delivery, Case No. 1:14-cv-00519 (N.D. Ill., January 23, 2014) arises under the Fair Labor Standards Act, the Portal to Portal Act, the Illinois Minimum Wage Law, and the Illinois Wage Payment and Collection Act, for the Defendants' alleged failure to pay wages to the Plaintiff. ASA Logistics, Inc. and Estes Express Lines, Inc. are trucking and delivery companies that maintain offices in Romeoville, Illinois. PB & LB Delivery is a trucking and delivery company that maintains an office in Chicago, Illinois. The Plaintiff is represented by: Marty Denis, Esq. Bethany Hilbert, Esq. BARLOW, KOBATA & DENIS LLP 525 West Monroe, Suite 2360 Chicago, IL 60661 Telephone: (312) 648-5570 E-mail: mdenis@bkd-law.com bhilbert@bkd-law.com ASCENA RETAIL: Accused of ADA Violations in W.D. Pennsylvania ------------------------------------------------------------- Robert Jahoda, individually and on behalf of all others similarly situated v. Ascena Retail Group, Inc., doing business as Catherines Plus Sizes, Case No. 2:14-cv-00102-LPL (W.D. Pa., January 23, 2014) is brought pursuant to the The Americans with Disabilities Act of 1990. The Plaintiff is represented by: R. Bruce Carlson, Esq. CARLSON LYNCH 115 Federal Street, Suite 210 Pittsburgh, PA 15212 Telephone: (412) 322-9243 E-mail: bcarlson@carlsonlynch.com BLUE CROSS: Discriminates Against Poor People With HIV, Suit Says ----------------------------------------------------------------- Jeremy Choate at Courthouse News Service reports that Blue Cross- Blue Shield and two other insurers discriminate against poor people with HIV, just in time to avoid having to cover them under the Affordable Care Act, a class action claims in Federal Court. Lead plaintiff John East sued Blue Cross and Blue Shield of Louisiana, the Louisiana Health Cooperative, and Vantage Health Plan in a 41-page lawsuit. East claims the defendants changed their policies to they can deny coverage to HIV patients. Blue Cross did this, East claims, by stating that it would no longer accept funds from the Ryan White HIV/AIDS Program. The federal program makes grants to states, cities and nonprofit organizations to provide people living with HIV access to health care by helping them pay of health insurance premiums. East claims that Blue Cross has accepted payments from the Ryan White program since at least 2009. Blue Cross's policy change came just as open enrollment began for the Affordable Care Act's insurance exchange marketplace, East says in the complaint. Blue Cross claimed it made the change under guidance from the Centers for Medicare & Medicaid Services, which advised not to accept third-party premium payments from hospitals, health care providers and other commercial entities. But that guidance did not discourage insurers from accepting payments from other sources, such as federal programs like the Ryan White program, East says. Despite receiving clarification that Blue Cross could receive payment from federal programs, on Feb. 13 it issued a statement that it would not accept payment from the Ryan White program. Defendants Louisiana Health Cooperative and Vantage Health Plan followed suit by informing enrollees that payments made by the Ryan White program would not be accepted beginning in March 2014, East says in the complaint. East says that a recently disclosed email makes it clear Blue Cross changed its rules in the pursuit of cold, hard cash. The complaint states: "Indeed, in an email that was recently made public, a congressional staffer in Senator Mary Landrieu's office wrote that BCBS LA told me their decision was not due to the CMS [Centers for Medicare & Medicaid Services] guidance or any confusion (as we thought before) but was in fact due to adverse selection concerns." Under Affordable Care Act, known as Obamacare, health insurers that receive federal funds are prohibited from discriminating against anyone on the basis of a disability or pre-existing condition. East claims the defendants' policy changes are clearly discriminatory, as they would deny coverage to hundreds, perhaps thousands, of low-income Louisiana residents with HIV -- which could hasten their deaths and increase their suffering. Residents of Jefferson Parish who are eligible for assistance through the Louisiana Health Insurance Program may be able to pay for a health insurance plan offered by Humana Medical Plan using the Ryan White Program. But With Blue Cross and other insurers refusing to accept funds from the Ryan White Program, Humana may have difficulty maintaining its position as the only insurer in Louisiana complying with the Affordable Care Act, East says. According to a study by the Centers for Disease Control and Prevention, Louisiana has the second highest rate of HIV infection in the United States. East seeks class certification, an injunction and damages for discrimination, violations of the Patient Protection and Affordable Care Act, disparate impact, unlawful marketing practices to discourage enrollment in health insurance plans, breach of contract, breach of faith and negligent misrepresentation. The Plaintiff is represented by: Jeffrey J. Bushofsky, Esq. ROPES & GRAY LLP 32nd Floor 191 North Wacker Drive Chicago, IL 60606 Telephone: (312) 845-1200 Facsimile: (312) 845-5500 E-mail: Jeffrey.Bushofsky@ropesgray.com BP PLC: Lawyers Insist Deepwater Settlement Misinterpreted ---------------------------------------------------------- Susan Beck, writing for The American Lawyer, reports that when BP reached a settlement to compensate people who were financially harmed by the Deepwater Horizon disaster in the Gulf of Mexico, the two sides could barely contain their glee. At a November 8, 2012, hearing before New Orleans U.S. District Judge Carl Barbier, lawyers for BP Exploration & Production Inc. and for the plaintiffs extolled the class action settlement as a shining landmark in mass torts resolutions. BP's lead lawyer, Richard Godfrey of Kirkland & Ellis, boasted how the parties were determined not to let this litigation turn into another Exxon Valdez quagmire, where the oil company is still fighting claims after two decades. Instead, he said, two years after the 2010 Deepwater disaster the two sides had crafted a creative solution that would streamline the processing of claims. James Roy, one of the lead plaintiffs lawyers, gushed over BP's generosity. "There is no cap on the amount BP will have to pay under this settlement," he said. BP had valued this deal at $7.8 billion, but would pay much more if it had to, he added. "The truth of the matter, Your Honor, is that if it ends up paying 20, 25, 30 billion, BP has agreed to do that." A year and a half later, no one is smiling. After paying $3.84 billion in claims so far, BP has declared war against plaintiffs, their lawyers, and Judge Barbier. It loudly insists that the settlement agreement has been misinterpreted to allow claims by people and businesses whose losses weren't caused by the Deepwater disaster. In a highly unusual move, it has even threatened to try to undo the settlement. The plaintiffs lawyers maintain that BP is twisting the facts and has turned its back on a deal it now regrets. The company says that it is simply determined to have the settlement agreement applied correctly. "BP and its counsel have consistently maintained that the settlement agreement was designed to fairly and adequately compensate those who were injured as a result of the spill, and we have consistently sought enforcement of this requirement for class membership," said BP group general counsel Rupert Bondy in a statement. BP, however, is in an awkward, if not dangerous, position. The controversy over the settlement raises two basic questions. Did the oil giant's top in-house attorneys and its outside counsel at Kirkland & Ellis -- one of the world's most sophisticated litigation firms -- draft an imprecise settlement agreement that exposed the company to claims it didn't intend to pay? Or, as Judge Barbier would later contend, have BP and its lawyers changed their story about this settlement? On April 20, 2010, an explosion on BP's Deepwater Horizon drilling rig off the coast of Louisiana killed 11 men and triggered a gusher of oil for 87 days that polluted the Gulf of Mexico and its coastline. Two months after the explosion, facing a furious public backlash and the threat of crippling litigation, BP agreed to fund the Gulf Coast Claims Facility, led by Kenneth Feinberg, to reimburse people and businesses who were financially harmed by the spill. In evaluating claims, the GCCF considered a range of financial data -- but also required claimants to show that the Deepwater spill was the proximate cause of their loss, which often involved some subjective analysis. If an ice cream stand 20 miles inland did poorly in the summer of 2010, how much could be attributed to a drop in tourism caused by the spill? C & J CLARK: Faces "Jahoda" ADA Violations Suit in Pennsylvania --------------------------------------------------------------- Robert Jahoda, individually and on behalf of all others similarly situated v. C & J Clark America, Inc., doing business as Clarks, Case No. 2:14-cv-00101-LPL (W.D. Pa., January 23, 2014) accuses the Company of violating The Americans with Disabilities Act of 1990. The Plaintiff is represented by: R. Bruce Carlson, Esq. CARLSON LYNCH 115 Federal Street, Suite 210 Pittsburgh, PA 15212 Telephone: (412) 322-9243 E-mail: bcarlson@carlsonlynch.com CAC FINANCIAL: Accused of Violating Fair Debt Collection Act ------------------------------------------------------------ Lissette Calderon, on behalf of herself and all other similarly situated consumers v. CAC Financial Corp., Case No. 1:14-cv-00515- NGG-RLM (E.D.N.Y., January 23, 2014) alleges violations of the Fair Debt Collection Practices Act. The Plaintiff is represented by: Adam Jon Fishbein, Esq. ADAM J. FISHBEIN, ATTORNEY AT LAW 483 Chestnut Street Cedarhurst, NY 11516 Telephone: (516) 791-4400 Facsimile: (516) 791-4411 E-mail: fishbeinadamj@gmail.com CANON BUSINESS: Faces More Discovery in Background Check Case ------------------------------------------------------------- Canon faces additional discovery into claims that it relies on criminal-background checks without letting employees or job applicants dispute the findings, reported Rose Bouboushian at Courthouse News Service, citing a federal court ruling. Anya McPherson leads the class action against Canon Business Solutions, now known as Canon Solutions America, in Camden, N.J. In a 2012 application for a permanent position, the temporary data entry employee in Burlington, N.J., allegedly told Canon that she had not been convicted of a crime within the last seven years. McPherson says she got the permanent job but human resources called her and fired her two weeks later because the background check had uncovered a more-than-decade-old felony conviction. The complaint alleges that McPherson had gotten the conviction expunged after applying for executive clemency. It also says Canon never gave McPherson a copy of the report, described her rights under the Fair Credit Reporting Act (FCRA), or gave her an opportunity to explain the conviction before firing her. McPherson claims Canon typically fires employees and denies jobs to applicants without properly disclosing or allowing them to dispute the accuracy of their criminal-background reports. She seeks to represent all those who suffered an adverse employment action based on consumer reports within five years before the complaint was filed until the date of trial. After a federal magistrate refused to limit discovery to the two- year limitations period of the FCRA, Canon moved for partial summary judgment or to strike the class definition. The company said that the FCRA allows 5-year-old claims to be brought only if they were unknown to the claimant for no more than two years before the complaint was filed. U.S. District Judge Jerome Simandle denied Canon's "premature" motion Feb. 20. "Here, claims arising within five years of the complaint are timely under the FCRA, except if the injured party had knowledge of the violation more than two years prior to the filing of the complaint," Simandle wrote. "In other words, all claims within the proposed five-year definition are potentially timely. At this stage, the record does not foreclose the possibility that evidence may demonstrate a corporate policy of concealment, or at least lack of notice to the affected individuals that negative criminal background information had surfaced in the [consumer reporting agency] CRA reports, and could permit an inference that the putative class members, or a subclass of members, did not have knowledge of alleged violations before Dec. 21, 2010. Further discovery may well shed light on a scheme to use and conceal CRA reports, or may buttress defendant's position that putative class members were aware of Canon's use of background checks before December 21, 2010. Because 'it is not clear that, as a matter of law,' plaintiff's class allegations must fail, the 'parties should have the opportunity to develop the record on this issue.'" Finding that limited discovery would not unreasonably burden Canon, the court ordered depositions of company representatives and database discovery for Dec. 21, 2007, to Dec. 21, 2010. As Canon has thus far provided discovery largely limited to reports related to claims arising after Dec. 21, 2010, McPherson has asked the magistrate judge to compel more discovery, according to the ruling. The case is Anya McPherson v. Canon Business Solutions, Inc., Case No. 1:12-cv-07761-JBS-AMD, in the United States District Court for the District of New Jersey. CHARLESTON COUNTY, SC: Paramedics Sue Over Unpaid Overtime Wages ---------------------------------------------------------------- Tracy Madden, Greg Carney, Frank Broccolo, Keith Poston, Jennifer Skipton, Grant Mizner, DeAnna Danley, Charlene Holbird, Michael Zofcak, Robin Stout, Erik VanDerHorst, Kenneth Atwell, David Shafer, Andrew Kilgore, Michelle Reid, Ryan Ellison, Casey Spirk Josh Sims, Jennifer McComiskey, Karol Hodge, Brian Evanger, Brian Stafford, Roy McGinnis, Beth Cook Buford Bost, Paul Stevens all individually and on behalf of all other similarly situated individuals v. Charleston County, South Carolina, Case No. 2:14- cv-00208-DCN (D.S.C., January 23, 2014) is brought individually and as a collective action for unpaid overtime compensation, for liquidated damages, and for other relief under the Fair Labor Standards Act of 1938. The Plaintiffs have been employed by Charleston County as paramedics, crew chiefs or emergency medical technicians. Charleston County is political subdivision of the state of South Carolina, with the power to sue and be sued in its own name. Charleston County operates an EMS Department to provide emergency medical services to the citizens and residents of Charleston County, as well as to other persons within the County in need of emergency medical attention or care. The Plaintiffs are represented by: Michael J. Jordan, Esq. STEINBERG LAW FIRM, LLP PO Box 1028 Goose Creek, SC 29445 Telephone: (843) 572-0700 Facsimile: (843) 572-1871 E-mail: mjordan@steinberglawfirm.com - and - Amy L. Gaffney, Esq. GAFFNEY, LEWIS & EDWARDS, LLC 3710 Landmark Drive, Suite 109 Columbia, SC 29204 Telephone: (803) 790-8838 Facsimile: (803) 790-8841 E-mail: agaffney@glelawfirm.com CODMAN NEURO: Class I Recall for TRUFILL n-BCA ---------------------------------------------- Codman Neuro in January said the U.S. Food and Drug Administration (FDA) has classified the recently initiated medical device correction notice related to the TRUFILL n-BCA Liquid Embolic System as a Class I recall. TRUFILL n-BCA is indicated for embolization of cerebral arteriovenous malformations (AVMs) when presurgical devascularization is desired. The use of incorrectly mixed product can result in the liquid mixture solidifying too slowly in unintended areas, which may lead to embolization or reflux into arteries and pulmonary vessels. This could result in significant impact to the patient, including neurological deficits, pulmonary emboli and possibly death. In Oct. 2013, Codman Neuro identified an incorrect statement in the product's Instructions For Use (IFU) that described suggested mixing ratios for use in certain treatment conditions, informed the U.S. Food and Drug Administration and other regulatory authorities, and issued a corresponding correction notice to inform customers in the U.S., Costa Rica, Puerto Rico and Russia. The error was identified through routine internal procedures. Product is not being removed from the market. The company is informing physicians of this incorrect statement and updating the product's IFU. The product's IFU incorrectly noted: "A 2:1 (67% Ethiodized Oil / 33% nBCA) for feeding pedicle injections close to the nidus at high flow rates where venous opacification occurs on contrast injections within 1/2 second." The correct information should have stated: "A 2:1 (67% Ethiodized Oil / 33% nBCA) for Intranidal injections without AV fistulae or high flow rates in order to more deeply penetrate the nidus." No corresponding patient deaths or permanent patient injuries have been reported to date. When the product is mixed correctly, it is expected to perform as intended. Thorough product training is required before purchasing the TRUFILL nBCA. The company has verified that all related physician training materials and promotional documents contain correct information. All customers who have purchased TRUFILL nBCA are reminded to review the correction notice and other product literature to ensure proper mixing procedures are followed. They may also call Codman Neuro with questions or to report any malfunction or adverse event on weekdays between the hours of 7:00am and 6:30pm Eastern Time at 1-866-491-0974, Option 2. TRUFILL nBCA products associated with the correction notice were manufactured between February 25, 2010 and Oct., 31, 2013, distributed to hospitals and surgical centers, and include the following codes (all lots): Product Code Description ------------ ----------- 631400 Two 1 gram tubes nBCA 631500 One 1 gram tube nBCA Adverse reactions or quality problems experienced with the use of these products may be reported to the FDA: Online: complete and submit the report available at: http://www.fda.gov/medwatch/report.htm Regular Mail or Fax: Download form at: http://www.fda.gov/MedWatch/getforms.htmor call 1-800-332-1088 to request a reporting form, then complete and return to the address on the pre-addressed form, or submit by fax to 1-800-FDA-0178. About Codman Neuro Codman Neuro is a global neurosurgery, neurovascular and neuromodulation company that offers a broad portfolio of devices for hydrocephalus management, neuro intensive care and cranial surgery as well as aneurysm coils, vascular reconstruction devices and other technologies used in the endovascular treatment of cerebral aneurysms and stroke. ENDO PHARMACEUTICALS: Faces Antitrust Suit Over Lidoderm Product ---------------------------------------------------------------- Endo Pharmaceuticals, Teikoku Pharma, Actavis, Watson Pharmaceuticals et al. conspired to keep generic forms of Lidoderm, an anesthetic patch for shingles, off the market, a union health plan claims in a Tennessee federal antitrust class action, reported Courthouse News Service. ESTATE INFORMATION: Accused of Violating Fair Debt Collection Act ----------------------------------------------------------------- William Caruso and Estate of Domenic J. Caruso, on behalf of themselves and all others similarly situated v. Estate Information Services, LLC, Case No. 1:14-cv-00477-JEI-KMW (D.N.J., January 23, 2014) alleges violations of the Fair Debt Collection Practices Act. The Plaintiffs are represented by: Daniel Adam Frischberg, Esq. LAW OFFICE OF DANIEL A. FRISCHBERG, LLC 3000 Atrium Way, Suite 212 Mount Laurel, NJ 08054 Telephone: (856) 273-6979 Facsimile: (856) 273-6982 E-mail: daniel@frischberglaw.com - and - Thomas Patrick Kelly, III, Esq. KELLY LAW OFFICES LLC 3000 Atrium Way, Suite 291 Mount Laurel, NJ 08054 Telephone: (609) 261-6100 Facsimile: (609) 261-6105 E-mail: Tom@TPKelly.com FISHER-PRICE: No Recall for Seahorse Toy Despite Safety Concerns ---------------------------------------------------------------- An investigation from Scripps Denver station KMGH has revealed serious safety concerns about one of the most popular children's toys on the market that is still being sold in stores despite consumer calls for a recall. The Fisher-Price Soothe & Glow Seahorse is the seventh best- selling toddler toy on Amazon.com, but it's also the subject of dozens of negative reviews and at least 10 complaints to the Consumer Product Safety Commission from parents who say it got dangerously hot and even started smoking when they simply changed the batteries. Triana Burdick says the toy is a favorite in her house. Each of her two children has one. "I think the light is kind of soothing to them, in the dark, and then the music," Ms. Burdick said. "They always liked listening to it, falling asleep." Ms. Burdick's son Christopher got his Soothe & Glow Seahorse four years ago. His little sister Lila's was a gift in 2011. "It usually was in their bed all the time," Ms. Burdick said. "Whenever they napped, whenever we put them down." But when Ms. Burdick changed the batteries in Lila's doll for the first time, she said it felt hot, and she heard a sizzling noise. Then the battery coils started heating up, and smoke poured out of the toy. "It was melting the plastic on the inside," Ms. Burdick said. "The first thought that went through my head was like, 'Oh, my God, it could have caught fire. It could have caught a blanket in her bed on fire.' I freaked out right away." Ms. Burdick showed the toy to her husband, and they checked to make sure the batteries were correctly installed. "Everything was fine," she said. "So we just assumed, I don't know, maybe it was a random malfunction." But the CPSC complaints and Amazon.com reviews, which date from October 2012 to as recently as February 2014, show it wasn't random at all. One reviewer wrote, "The toy just suddenly started burning . . ." Another wrote he picked up his daughter's seahorse and "it was stinking, took the cover off it and the battery compartment was smoking, removed the backing and the spring was orange and had melted the plastic around it." Still another wrote, "Does a house have to burn down before they recall this thing?" The online complaints included problems when using both regular alkaline and rechargeable batteries. The Soothe & Glow Seahorse manual says both types are acceptable. Ms. Burdick said when she called Fisher-Price, they told her to send them the toy in exchange for a new one. So CALL7 Investigator Keli Rabon found another family who experienced the same problem -- and took their toy to University of Denver electrical engineering professor Dr. David Gao. Seconds after he put in three brand new batteries, the coil began to burn. It turned bright red, smoke poured out of the compartment, and the plastic casing around it began to melt. Four minutes later, Dr. Gao took the battery out. "The coil is about to fall, due to the burning and the heat," he said. Dr. Gao said the burn risk isn't the only problem. He said the fumes from the melting plastic can be poisonous, and overheated batteries are dangerous, too. "If we left this burning to keep going, the battery may explode," he said. Dr. Gao said he believes the problem with the Soothe & Glow Seahorse is a design flaw that involves the battery coil, metal, wiring, and soldering inside the toy. "I think this product should be recalled," he said. Instead, the CALL7 Investigators found Fisher-Price may have quietly addressed the problem without issuing a recall for the faulty toys already in consumers' homes. The seahorse Dr. Gao tested used three batteries, as did Burdick's problem toy, and the examples CALL7 found online. But a brand new Soothe & Glow Seahorse purchased on Amazon.com requires only two batteries -- not three. The toys are otherwise nearly identical, and both were made in China. "I think the two-battery version may be an improved design by the company," said Dr. Gao. "I don't understand why in the market, there are still these two different versions." Fisher-Price refused to acknowledge any modifications to the Soothe & Glow Seahorse, and told the CALL7 Investigators the company has no plans to recall it. The company also refused to answer questions about where in China the toy was made, or about how it determines a recall is necessary, instead releasing this written statement: "The Soothe & Glow Seahorse has been a hugely popular item since its introduction in 2008. We've received calls from a very small percentage of consumers who have experienced an issue with this product. We completely understand some consumers have concerns, which we're taking seriously and working to address as effectively as possible. We want to reassure everyone that the Seahorse is safe and we hope the following information will help put consumers' minds at ease. AA batteries have limited energy that depletes quickly. In the rare instance that a portion of the battery compartment is reported to have heated up, which we realize can be concerning to parents, it is brief and does not involve any other part of the toy beyond the battery compartment. We value consumers' trust and want to assure them that we would never do anything that compromises children's safety. If consumers have any questions regarding the Soothe & Glow Seahorse product or if they've experienced an issue, we encourage them to call our consumer services team at 888.253.4303888.253.4303, Mon.-Fri., 9 a.m.-6 p.m. We're ready to listen and help." Ms. Burdick said that answer leaves her wondering how safe her children's Fisher-Price toys really are. "It sounds like maybe they are trying to fix it, but not actually take care of the people that already have them," she said. "I don't know why they're waiting for someone to get hurt." The CALL7 Investigators asked the Consumer Product Safety Commission about the criteria it uses to determine the need for a recall -- and about a company's responsibility to notify the CPSC about defective products. The CPSC said a company is required to report any complaints about products that represent a "substantial hazard" to the public. But it's the companies that decide what qualifies as "substantial." To report a problem with the Soothe & Glow Seahorse or any other product, and to research complaints and recalls, go to SaferProducts.gov. FLAT CREEK: Heavenly Blue Cheese and Aztec Cheddar Cheese Recalled ------------------------------------------------------------------ Flat Creek Farm & Dairy of Swainsboro, GA announced in January a recall of its Heavenly Blue Cheese and Aztec Cheddar cheese. The purpose of the updated press release is to provide the correct lot number for the Aztec Cheddar cheese. The lot number that appears on the Aztec Cheddar cheese is 130823XCAZ, not 130823XAZ as previously reported. As of Dec. 24, 2013, all customers that purchased the product have been notified and all products have been either recovered or destroyed. Since the previous recall, the dairy has conducted extensive independent testing and results come back negative for any contamination. The 90 pounds of Heavenly Blue and 78 pounds of Aztec Cheddar cheese, were recalled because of potential contamination by Salmonella, an organism which can cause serious and sometimes fatal infections in young children, frail or elderly people, and others with weakened immune systems. Healthy persons infected with Salmonella often experience fever, diarrhea (which may be bloody), nausea, vomiting and abdominal pain. In rare circumstances, infection with Salmonella can result in the organism getting into the bloodstream and producing more severe illnesses such as arterial infections (i.e., infected aneurysms), endocarditis and arthritis, no illnesses have been reported to date. The cheeses were distributed in certain parts of Georgia and Florida and (6) online orders (www.flatcreekdairy.com), which have all been notified. The product was packed in clear plastic and ranged in sizes from 1/2 pound to whole wheels. The recall was specific to product marked with the lot codes 130916XHB (Heavenly Blue) and 130823XCAZ (Aztec Cheddar), which can be found on the front of the package. The recall was the result of a routine sampling program conducted by the Georgia Department of Agriculture, which revealed that the finished products were potentially contaminated. Consumers that have concerns about this recall should call Flat Creek Dairy & Farm at 478-237-0123 from 8:00 a.m. to 5:00 p.m. EST for more information. Again, all of recalled product has been either recovered or destroyed. Since the previous recall, the dairy has conducted extensive independent testing and results come back negative for any contamination. FORD MOTOR: Fiesta & Focus Have Faulty Transmissions, Suit Says --------------------------------------------------------------- Ford Fiesta 2011-14 and Focus 2012-14 models have defective PowerShift six-speed transmissions, a class action filed in February claims in California Superior Court, according to Courthouse News Service. GANNETT CO: Accused of Discriminating Against Black Workers ----------------------------------------------------------- An Arkansas sports broadcaster has accused Gannett and its THV Channel 11 station of running a racist workplace that makes it impossible for black workers to be promoted to lead anchor and management positions, according to Erik de la Garza, writing for Courthouse News Service. Named plaintiff Mark C. Nelson pka Mark Edwards sued Gannett Co. dba Today's THV Channel 11 in a 26-page lawsuit with 23 pages of attachments. Nelson claims that Gannett ran a sophisticated scheme and cover "in the form of focus groups and other means and methods that are subjectively manipulated by Gannett to achieve its discriminatory goals and objectives." According to the class action lawsuit, Gannett "has a corporate custom, policy, pattern, practice and procedure of not promoting African-Americans to director and leadership positions and utilizing a 'one-and-done policy' that disparately impacts African-American employed within the company." Gannett, based in McLean, Va., is best known for its flagship newspaper, USA Today. Its chain of newspapers, TV stations and other media reach than 110 million people a month, according to the complaint. Edwards says he began working for Gannett at THV Channel 11 in 2003 "in what is referred to as a 'number three' position" -- editing and production, rather than sports anchor or broadcaster. In 2007, he says, he was offered a prime sports broadcasting spot in Cleveland, Ohio, one of the nation's top 15 news markets. Apparently, the offer was from a competitor, which is not named in the complaint. "This broadcasting position provided a substantial increase in pay, promotion, terms, conditions, privileges and employment benefits. The position offered plaintiff the opportunity to cover and broadcast professional sports teams, such as the Cleveland Cavaliers, Cleveland Browns, (and) Cleveland Indians on television and also provided further advancement opportunities in major sports broadcasting venues. At the time of this offer, Larry Audas, the General Manager at THV Channel 11, approached plaintiff and advised plaintiff that defendant was opposed to him leaving. Mr. Audas, on behalf of Channel 11, advised plaintiff that defendant would promote plaintiff to a higher sports broadcasting position on weekends with the company, a number two position, and ultimately plaintiff would be on a 'fast track' for the number one position as sports director at THV Channel 11, if plaintiff stayed in Little Rock, Arkansas," according to the complaint. Nelson says he stayed, and the Cleveland job went to someone else. He says he worked on the station's morning show for a week and was offered a weekend morning show co-anchor position. The complaint continues: "After remaining in employment for several years with the defendant, in approximately May 2012, Wes Moore, a white sports anchor and director, left Channel 11. Plaintiff was in an optimum position to take over as the anchor and sports director with the attendant advertising, marketing, promotion and raise-in-pay that accompanies such advancement within the company. However, rather than offer this opportunity to plaintiff, instead, Channel 11 hired a white male with less sports broadcasting experience from another station in July-August of 2012. For reasons never explained to plaintiff, defendant did not provide plaintiff with an offer to be promoted, marketed or further advanced with the defendant as sports director, or anchor as was promised and represented by him." In late 2012, Nelson claims, an Arizona station offered him "a substantial, meaningful and quality promotion, including an increase in pay, benefits privileges and television director and leadership advancement opportunity." He claims that Gannett sabotaged that job offer: "(D)efendant concealed from the plaintiff that it retaliated against plaintiff. Defendant willfully and intentionally interfered with the Arizona offer of promotion to plaintiff and the advancement and opportunity for a better employment opportunity in Arizona. Defendant unlawfully retaliated because of plaintiff's race and in order to depress and keep plaintiff in Arkansas in an unequal and disparate employment setting for African-Americans, which defendant created, implemented and maintained throughout its company. "Defendant concealed, suppressed and omitted the fact that it had directly and unlawfully communicated with the television station in Arizona and further omitted from plaintiff that defendant had provided false, racial stereotyped information about plaintiff's employment and work history with defendant. Defendant further manipulated evidence of focus groups to cast a negative impression on African-Americans and perpetuate its racial glass ceiling and denial of advancement opportunities for plaintiff and others similarly situated. Defendant's unlawful, retaliatory and unfair conduct and actions against the plaintiff terminated the employment opportunity, disparaging plaintiff's reputation in the television broadcasting community and maintain plaintiff locked in an unequal and disparate employment setting." Nelson estimates the class includes "several hundred" people spread about the South. They are defined as "all African American employees employed within Gannett, in the states of Texas, Arkansas, Louisiana, Mississippi, Tennessee, Kentucky, Georgia, Virginia, North and South Carolina and Florida, who were denied promotion, equal pay and employment benefits." Gannett recently bought Belo Corp. for $2.2 billion, creating the largest independent group of major network affiliates in the top 25 markets, according to the complaint. Gannett claims its TV stations reach one-third of American households. "In sum, the overall employment atmosphere and attitude at the defendant is hostile toward recruitment, training, leadership, management and advancement of African-Americans into top broadcasting leadership positions and opportunities," Nelson claims. He seeks class certification, restitution, and compensatory and punitive damages for Civil Rights Act violations, loss of prospective earnings and a court order "to enjoin the discriminatory practices." In a page attached to the lawsuit, "Dismissal and Notice of Rights," dated Nov. 26, 2013, the EEOC's Little Rock Area Office wrote, in a form letter: "THE EEOC IS CLOSING ITS FILE ON THIS CHARGE FOR THE FOLLOWING REASON:" -- it then checked the fifth of seven boxes. The fifth box on the form states: "The EEOC issues the following determination: Based upon its investigation, the EEOC is unable to conclude that the information obtained establishes violations of the statutes. This does not certify that the respondent is in compliance with the statutes. No finding is made as to any other issues that might be construed as having been raised by this charge." Marked as Exhibit 2 is a 1999 lawsuit against Today's THV Channel 11 in which Richelle A. McCoy accused the station of racial discrimination. The Plaintiff is represented by: Phillip J. Duncan, Esq. THE DUNCAN FIRM 900 S. Shackleford Road, Suite 725 Little Rock, AK 72211 Telephone: (501) 228-7600 Facsimile: (501) 228-0415 GANO EXCEL: C'Real Spirulina Due to Undeclared Allergens Recalled ----------------------------------------------------------------- Gano Excel USA, Inc. of Irwindale, CA in January initiated a recall of all C'Real Spirulina. C'Real Spirulina is being recalled because of the undeclared food allergens, wheat and soy. People who have allergy or severe sensitivity to wheat and/or soy run the risk of life threatening allergic reaction, anaphylaxis, that requires immediate medical care if they consume the product. Gano Excel immediately segregated its entire C'Real Spirulina inventory and is notifying customers not to consume this product if they are allergic to wheat and/or soy. C'Real Spirulina is an instant cereal that is sold by the box with 15 packets of instant cereal per box. Gano Excel USA, Inc. wants to ensure its products are safe. Consequently, in addition to its ongoing cooperation with the California Department of Public Health, Gano Excel USA, Inc. is voluntarily recalling all C'Real Spirulina from all of its distributors. Consumers in possession of C'Real Spirulina who are allergic to wheat and/or soy should not eat the product and should return the product to the place of purchase. Gano Excel USA, Inc. said it would be sending recall notices to all of its direct customers. Please call Matthew Nguyen at (626) 480-7550 for further information. GENERAL ELECTRIC: Class Seeks to Recover Unpaid Overtime Wages -------------------------------------------------------------- Donald Maddy, Kurt Fredrick, Frederick R. Shellhammer, III, Frank Michienzi, Mario Laureano, Anthony Chelpaty, William Madden, Individually, and on behalf of all others similarly situated v. General Electric Company, a New York corporation, Case No. 1:14- cv-00490-JEI-KMW (D.N.J., January 23, 2014) is brought to recover unpaid wages, unpaid overtime wages, liquidated damages, and reasonable attorneys' fees and costs from GE pursuant to the Fair Labor Standards Act. The Plaintiffs have worked as service technicians for GE in New Jersey, Pennsylvania, Massachusetts, Florida, Delaware and Georgia. General Electric Company is a New York corporation that has done business throughout the United States, including in New Jersey, Pennsylvania, Massachusetts, Florida, Delaware and Georgia. The Plaintiffs are represented by: Justin L. Swidler, Esq. Richard S. Swartz, Esq. SWARTZ SWIDLER, LLC 1878 Marlton Pike East, Suite 10 Cherry Hill, NJ 08003 Telephone: (856) 685-7420 Facsimile: (856) 685-7417 E-mail: jswidler@swartz-legal.com rswartz@swartz-legal.com The Defendant is represented by: Nina K. Markey, Esq. LITTLER MENDELSON PC Three Parkway 1601 Cherry Street, Suite 1400 Philadelphia, PA 19102-1321 Telephone: (267) 402-3020 E-mail: nmarkey@littler.com GENERAL MILLS: Sued by "Kellogg" Over False Claims on Kix Cereal ---------------------------------------------------------------- Courthouse News Service reported that General Mills pushes Kix cereal with false claims that it's made from "All Natural Corn & Honey," according to a federal class action filed by, of all people, Daniel Kellogg. GOYA FOODS: Malta Goya Drinks Contain Carcinogen, Suit Claims ------------------------------------------------------------- Thamar Santisteban Cortina, on behalf of herself and all others similarly situated v. Goya Foods, Inc., Case No. 3:14-cv-00169-L- NLS (S.D. Cal., January 23, 2014) alleges that Goya has actively concealed from the Plaintiff and the class material facts concerning the amount of 4-MeI in the Malta Goya beverages, as well as its potential health harms. 4-MeI is an impurity generated during the manufacture of caramel colors III and IV used in some soft drinks. 4-MeI has been found by the National Toxicology Program to cause lung tumors in laboratory animals. Goya Foods, Inc. is a New Jersey company with its principle place of business in Secaucus, New Jersey. Goya sells "Malta Goya" cola soft drinks throughout the state of California. Malta Goya beverages contain an amount of 4-methylimidazole (4-MeI), a carcinogen, sufficient to expose California consumers to substantial health risks, according to the Plaintiff. The Plaintiff is represented by: Jack Fitzgerald, Esq. THE LAW OFFICE OF JACK FITZGERALD, PC The Palm Canyon Building 2870 Fourth Avenue, Suite 205 San Diego, CA 92103 Telephone: (619) 692-3840 Facsimile: (619) 362-9555 E-mail: jack@jackfitzgeraldlaw.com HALLIBURTON CO: Justices Reluctant to Overturn 1988 Ruling ---------------------------------------------------------- Tony Mauro, writing for the New York Law Journal, reports that despite the urgent plea of business advocates, the U.S. Supreme Court on March 5 appeared reluctant to completely overturn a key precedent that has made it easier for plaintiffs to sue companies for securities fraud. Instead, during arguments in Halliburton v. Erica P. John Fund, several justices latched onto what they labeled "the law professors' brief" filed in the case as a possible "midway position," in the words of Justice Anthony Kennedy. The brief, authored by John Elwood of Vinson & Elkins, suggests that plaintiffs be required to conduct an "event study" at the class- certification stage showing that a company's misstatements had a significant impact on share prices. Justice Kennedy, a crucial vote in this and most other cases, returned to the professors' brief at least three times during argument, making it clear he saw it as a way to modestly increase the burden for plaintiffs in securities class actions -- thereby updating but not overturning the 1988 precedent Basic Inc. v. Levinson. That decision endorsed a "fraud on the market" theory holding that investors rely on an efficient market, and that share prices reflect information or misinformation that is available to the public. The theory has allowed plaintiffs to sue for securities fraud without the costly burden of having to prove specifically that individual investors read company statements and were misled and harmed by them. By the end of the hourlong argument, Justice Antonin Scalia was referring to the brief's compromise position as "Basic writ small," and Justice Elena Kagan was asking advocates for their views on the impact "if the law professors' position was adopted." Neither side rejected the idea outright, though plaintiffs' lawyer David Boies of Boies, Schiller & Flexner said event studies can become costly and complicated, especially if there are multiple events -- company misstatements -- whose price impact would have to be analyzed. The Elwood brief was actually one of three amicus curiae briefs filed in the case on behalf of legal academics. Such briefs have proliferated at the Supreme Court in recent years, according to a 2012 study by Harvard Law School professor Richard Fallon. Justice Kennedy did not mention which one he referred to, but it was clear to the advocates that it was Elwood's. On March 5, after the arguments, Mr. Elwood said, laughing, that it would have been nice if Justice Kennedy had called it the "Elwood brief," but thought the justice might have been reluctant to give one of his former law clerks a shout-out by name. Mr. Elwood clerked for Justice Kennedy in 1996-97. University of Michigan Law School professor Adam Pritchard, one of the law professors Elwood represented in the brief, said he has advanced the "event study" idea in two previous briefs in related Supreme Court cases. "Finally, someone is paying attention, I hope," Mr. Pritchard said. It could benefit plaintiffs in some cases, defendant companies in others, he said, making it a good foundation for a compromise. "Everyone has something to like or dislike," he said. The case before the court on March 5 was brought by investors who claim they were harmed by misleading statements from Halliburton Co. that underestimated the company's exposure to asbestos liability claims and other business setbacks. Halliburton sought dismissal, and after a lengthy appeals process -- including a previous decision by the Supreme Court -- the U.S. Court of Appeals for the Fifth Circuit allowed certification of the class, with the help of the Basic presumption. HERBASWAY LABORATORIES: Sued for Bogus Claims on Daily Detox Pill ----------------------------------------------------------------- Herbasway Laboratories sells a "Daily Detox" diet supplement with bogus claims that it can "detoxify your liver," a class action claims in Bergen County Court, according to Courthouse News Service. HUMAN SCIENCE: Pro ArthMax Recalled Due to Active Ingredients ------------------------------------------------------------- Gardena, CA, Human Science Foundation in January issued a voluntarily recalling all lots of Pro ArthMax 120 count bottle, labeled and sold as a dietary supplement to the consumer level. The product has been found to contain undeclared active pharmaceutical ingredients (APIs), making it an unapproved new drug. FDA sample analysis tested the product to contain the following APIs: 2.4mg of Chlorzoxazone, 0.78mg of Nefopam, 2.5mg of Diclofenac, 7.7mg of Ibuprofen, 2.1mg of Naproxen, and 1.9mg of Indomethacin. Use of this product containing the undeclared drug ingredients listed above, has a reasonable probability of resulting in fatal adverse events in consumers and patients with underlying illnesses, including known allergy to the hidden ingredients, cardiac, gastrointestinal, hepatic, and renal conditions as well as patients who recently undergone cardiac bypass graft surgery. Consumers would be unaware that the product contains Non-Steroidal Anti-Inflammatory Drugs (NSAIDs) (and other ingredients), may inadvertently overdose by taking another NSAID concurrently, thus increasing the risk for NSAID associated adverse events, which include but are not limited to, myocardial infarction, stroke, congestive heart failure, renal toxicity, and bleeding, ulceration, or perforation of the stomach or intestines. The product is marketed as a dietary supplement for joint pain and arthritis and is packaged in 120-count tablets per bottle, in a white plastic screw top bottle. Product was distributed to direct consignees in the state of California then further distributed nationwide to retail stores and via internet sales. Company is notifying its distributors and customers by telephone and e-mail and is arranging for return for credit of all recalled products. Consumers/distributors/retailers that have product which is being recalled should stop using and return to place of purchase for credit. Consumers with questions regarding this recall can contact Human Science Foundation by email to hsf@hs-foundation.com from Monday through Friday, 10 AM and 4 PM, PST. Consumers should contact their physician or healthcare provider if they have experienced any problems that may be related to taking or using this drug product. Adverse reactions or quality problems experienced with the use of this product may be reported to the FDA's MedWatch Adverse Event Reporting program either online, by regular mail or by fax. Complete and submit the report Online: http://www.fda.gov/MedWatch/report.htm Regular Mail or Fax: Download form http://www.fda.gov/MedWatch/getforms.htmor call 1-800-332-1088 to request a reporting form, then complete and return to the address on the pre-addressed form, or submit by fax to 1-800-FDA-0178. The recall is being conducted with the knowledge of the U.S. Food and Drug Administration. IC SYSTEM: Accused of Violating Fair Debt Collection Act in N.Y. ---------------------------------------------------------------- Joseph Lowenbein, on behalf of himself and all other similarly situated consumers v. I.C. System, Inc., Case No. 1:14-cv-00516- SJ-RLM (E.D.N.Y., January 23, 2014) accuses the Company of violating the Fair Debt Collection Practices Act. The Plaintiff is represented by: Adam Jon Fishbein, Esq. ADAM J. FISHBEIN, ATTORNEY AT LAW 483 Chestnut Street Cedarhurst, NY 11516 Telephone: (516) 791-4400 Facsimile: (516) 791-4411 E-mail: fishbeinadamj@gmail.com ILLINOIS: Faces Fifth Lawsuit Over New Pension Law -------------------------------------------------- The Associated Press reports that a fifth lawsuit has been filed by state employees challenging Illinois' new pension law. The lawsuit from current and former employees at the University of Illinois at Champaign-Urbana and Parkland Community College was filed in Champaign County Circuit Court on March 6. It says the legislation passed by the General Assembly in December violates several provisions of the state constitution, which says retirement benefits should not be diminished or impaired and private property should not be "taken or damaged for public use." The Illinois Supreme Court consolidated four other lawsuits challenging the legislation in Sangamon County Circuit Court. Illinois' five public-retirement systems had a $100 billion unfunded liability when the Legislature passed the measure. The bill saves an estimated $145 billion, largely by cutting benefits for employees and retirees. INTEGRITY STAFFING: Supreme Court to Review Unpaid Security Checks ------------------------------------------------------------------ The Supreme Court said March 3, 2014, that it will look for conflicts in the pursuit of class and collective claims by warehouse workers who fill Amazon orders fighting unpaid security checks, reports Barbara Leonard, writing for Courthouse News Service. Jesse Busk and Laurie Castro, both of Nevada, worked in Las Vegas- area warehouses of Integrity Staffing Solutions where they filled orders for Amazon.com. Every day at quitting time, Integrity forced the workers to wait in a long line to face a thorough searched and metal detector. Integrity said that the searches were necessary to cut down on employee theft. The checks could take nearly half an hour at the end of the working day and the employees were not paid for the time. Busk and Castro filed a federal class action against Integrity in 2010, alleging that the unpaid security sweeps violated the Fair Labor Standards Act (FLSA) and state law. They also claimed that the company refused to pay them for their 30-minute lunches, 10 minutes of which they spent walking to and from a cafeteria and going through a security check. Even at lunch managers allegedly harassed them to "finish their meal period quickly so that they would clock back in on time," the plaintiffs claimed, as it took about 10 minutes out of their lunchtime to do so. U.S. District Judge Roger Hunt dismissed the case after finding that the plaintiffs had failed to state a valid claim for compensation. Hunt cited several out-of-circuit cases in finding that time spent going through security does not qualify for compensation under the Portal-to-Portal Act of 1947. Hunt also found that the state-law claims presented conflicting class- certification mechanisms since plaintiffs must opt into a collective action under FLSA but must opt out of a class action under Federal Rule of Civil Procedure 23. A three-judge panel of the 9th Circuit partly reversed that ruling last year, saying "such actions can peacefully coexist." Turning to the merits, the panel also found no reason to bar a suit under the Portal-to-Portal Act, which amended FLSA to generally preclude compensation for activities that are "preliminary" or "postliminary" to the "principal activity or activities" that the employee "is employed to perform." This act contains an exception the act gives for such activities that are "integral and indispensable" to an employee's principal duties, according to the ruling. The ruling did, however, block the employees form claiming that their lunch breaks violated federal labor law. The Fair Labor and Standards Act does not require employers to pay their workers for lunch breaks, and the plaintiffs failed to show that they were made to do work during their lunch breaks, the court found. State law may still provide relief for the workers to recoup unpaid wages, the judges added. The Supreme Court did not issue any comment in granting the board a writ of certiorari March 3, 2014, as is its custom. The Plaintiffs-Respondents are represented by: Mark R. Thierman, Esq. Joshua D. Buck, Esq. THIERMAN LAW FIRM, P.C. 7287 Lakeside Drive Reno, NV 89511 Telephone: (775) 284-1500 E-mail: mark@thiermanlaw.com josh@thiermanlaw.com - and - Eric Schnapper, Esq. UNIVERSITY OF WASHINGTON SCHOOL OF LAW P.O. Box 353020 Seattle, WA 98195 Telephone: (206) 616-3167 The appellate case is Integrity Staffing Solutions v. Busk, Jesse, et al., Case No. 13-433, in the U.S. Court of Appeals for the Ninth Circuit. KENNETH KEYSER: Owner of Cottage Garden Faces OT Suit ----------------------------------------------------- Jaime Pillco on behalf of himself and all others similarly situated v. Kenneth Keyser, a/k/a Kenny Kaiser, in his individual and professional capacities, Case No. 2:14-cv-00513-LDW-AKT (E.D.N.Y., January 23, 2014) is a civil action based upon alleged flagrant and willful violations committed by the Defendant of the Plaintiff's rights guaranteed to him by the overtime provisions of the Fair Labor Standards Act and the New York Labor Law. Mr. Keyser is a Defendant in the action in his individual capacity. He has been residing in Suffolk County, New York, and has been maintaining an office and regularly doing business in East Hampton, New York. During the relevant times, he has owned and operated an unincorporated landscaping business in New York that primarily operates in the County of Suffolk. Mr. Keyser's landscaping business has at times operated as "KK Landscaping" and, most recently, as "Cottage Garden." The Plaintiff is represented by: Dana Zelenznik Stecker, Esq. Michael J. Borrelli, Esq. BORRELLI & ASSOCIATES, PLLC 1010 Northern Boulevard, Suite 328 Great Neck, NY 11021 Telephone: (516) 248-5550 Facsimile: (516) 248-6027 E-mail: dzs@employmentlawyernewyork.com mjb@employmentlawyernewyork.com KIA MOTORS: "Patterson" Fraud Suit Transferred to California ------------------------------------------------------------ The class action lawsuit captioned Douglas A. Patterson v. Kia Motors America, Inc., et al., Case No. 1:13-cv-01003, was transferred from the U.S. District Court for the Middle District of North Carolina to the United States District Court for the Central District of California (Los Angeles). The California District Court Clerk assigned Case No. 2:14-cv-00327-GW-FFM to the proceeding. The lawsuit alleges fraud and violations of the Truth in Lending Act. The Plaintiff is represented by: Edward B. Davis, Esq. BELL DAVIS AND PITT PA 227 West Trade Street, Suite 2160 Charlotte, NC 28202 Telephone: (704) 227-0400 Facsimile: (704) 227-0178 E-mail: ward.davis@belldavispitt.com KINNIKINNICK FOODS: 5 Foods Products Recalled Due to Allergen ------------------------------------------------------------- Kinnikinnick Foods of 10940 120 Street, Edmonton, AB, in January issued a warning to consumers with MILK Allergies not to consume these Kinnikinnick Products. -- Original Homestyle Waffles -- Cinnamon & Brown Sugar Homestyle Waffles -- Pancake & Waffle Mix -- Kinni-Kwik Bread & Bun Mix -- Panko Style Bread Crumbs Kinnikinnick has determined that an ingredient used in the production of these products contained MILK allergens that were not listed by the manufacturer of that ingredient and may be present in these finished products. MILK is not declared on the packaging of these 5 Kinnikinnick products. Routine testing by Kinnikinnick discovered this MILK contamination in a specific lot of an ingredient which was certified by the manufacturer to contain no MILK allergens. Regulatory agencies in Canada and the USA have been notified of these findings regarding this manufacturer. Many of the Best Before dates listed are already expired, however these are listed for completeness. The products being recalled are: -- Kinnikinnick Original Homestyle Waffles Weight: 210 g/7.4oz Qty/Pkg: 6 Cardboard Box UPC: 62013300198 1 -- Kinnikinnick Cinnamon & Brown Sugar Homestyle Waffles Weight: 210 g/7.4oz Qty/Pkg: 6 Cardboard Box UPC: 62013300199 8 -- Kinnikinnick Kinni-Kwik Bread & Bun Mix Weight: 465g/16.4oz Cardboard Box UPC 62013310550 4 -- Kinnikinnick Panko Style Bread Crumbs Weight: 350g/12.5oz Cardboard Box UPC: 62013360015 3 -- Kinnikinnick Pancake & Waffle Mix Weight: 454g/16oz Cardboard Box UPC: 62013310512 2 KINNIKINNICK FOODS: Recall on Products With Milk Allergen Expanded ------------------------------------------------------------------ Kinnikinnick Foods of 10940 120 Street, Edmonton, AB in January said it was expanding previous recalls of January 10 & 15th. Kinnikinnick has determined that an ingredient used in the production of these products contained MILK allergens that were not listed by the manufacturer of that ingredient and may be present in these finished products. MILK is not declared on the packaging of these 5 Kinnikinnick products. Routine testing by Kinnikinnick discovered this MILK contamination in a specific lot of an ingredient which was certified by the manufacturer to contain no MILK allergens. The distributor of this ingredient in Canada, Burnbrae Farms, has currently recalled 4 lots of this ingredient and several additional lots are under investigation. The company is voluntarily recalling all lots produced up to and including the Best Before dates indicated below which contained the ingredient. Lots produced after the listed Best Before dates do not use this ingredient and are not a part of this recall. Affected Products: -- Original Homestyle Waffles Weight: 210 g/7.4oz Qty/Pkg: 6 Cardboard Box UPC: 62013300198 1 Up to and including Best Before 2014AU10 20140810 140810 -- Kinni-Kwik Bread & Bun Mix Weight: 465g/16.4oz Cardboard Box UPC 62013310550 4 Up to and including Best Before 2014DE19 20141219 141219 -- Panko Style Bread Crumbs Weight: 350g/12.5oz Cardboard Box UPC: 62013360015 3 Up to and including Best Before 2014AU09 20140809 140809 -- Pancake & Waffle Mix Weight: 454g/16oz Cardboard Box UPC: 62013310512 2 Up to and including Best Before 2015JA06 20150106 150106 -- Cinnamon & Brown Sugar Homestyle Waffles Weight: 210 g/7.4oz Qty/Pkg: 6 Cardboard Box UPC: 62013300199 8 Up to and including Best Before 2014AU11 20140811 140811 A complete list of affected Best Before dates is available at www.kinnikinnick.com Disclaimer icon Best before dates are embossed on the top flap of the box, applied with an ink jet printer on the side or as an applied label to the bottom of the box. The products are distributed across Canada and the United States in retail stores and through direct shipments. This may cause a serious or life-threatening reaction in persons with allergies to MILK. Consumers who are allergic to MILK should dispose of or return the product to point of sale for a refund. Consumers WITHOUT allergies to MILK may continue to consume these products. There have been no reported illnesses associated with this recall. Consumers can contact Kinnikinnick Foods by calling 780-424-2900 or by emailing info@kinnikinnick.com. LEHIGH VALLEY: Voluntarily Recalls Orange Juice Over Allergen ------------------------------------------------------------- The Associated Press reports that Lehigh Valley Dairy is voluntarily recalling orange juice because it may contain milk, a common allergen. The Food and Drug Administration said the recall on March 6 affects multiple brands distributed to both retail and food- service locations in Pennsylvania, New Jersey, Delaware, Maryland, Virginia, West Virginia and Washington, D.C. The affected brands and sizes are Lehigh Valley half pints, half gallons and gallons; Swiss Premium half gallons and gallons, and Price Chopper gallons. The Allentown-based dairy said due to a manufacturing error, milk became mixed with the orange juice. All of the affected products have a sell-by date of March 23 and plant code 42-099. Lehigh Valley Dairy said consumers should discard the product and return the packaging to the place of purchase for a refund or exchange. LIVEDEAL INC: Lawsuit by GES Closed After Settlement Payments ------------------------------------------------------------- The litigation Global Education Services, Inc. v. LiveDeal, Inc. is fully resolved and the matter closed after payment of class members and attorneys' fee, according to LiveDeal's Jan. 10, 2014, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended Sept. 30, 2013. On June 6, 2008, Global Education Services, Inc., which the company refers to as GES, filed a consumer fraud lawsuit against the company in the King County Superior Court in the State of Washington, alleging that the company's use of activator checks violated the Washington Consumer Protection Act and seeking class certification pursuant to Washington law. GES sought injunctive relief against the company's use of activator checks, damages in an amount equal to three times the damages allegedly sustained by the members of the putative class, exemplary damages for the alleged violation of law and its fees and costs. The company denied the allegations and commenced defending the litigation. Early in 2010, the Court denied both parties' dispositive motions, at which time they commenced settlement discussions. The parties reached a settlement and entered into a settlement agreement on or about November 5, 2012. The settlement agreement required $150,000 to be paid to plaintiff's counsel, $10,000 to be paid to GES as the "representative plaintiff" and $70 to be paid to each eligible class member. The Court granted final approval of the settlement on April 26, 2013 and the Court's order became final on May 27, 2013. All class member claims have been paid and the last attorneys' fee payment was made on November 23, 2013. Accordingly, the litigation is fully resolved and the matter closed. MARCHELLO'S GARDEN: Fails to Properly Overtime, Class Claims ------------------------------------------------------------ Luis O. Rubio on behalf of himself and all others similarly situated, and Jose A. Mendez, and Jose L. Benitez, individually v. Marchello's Garden Grill, Inc., d/b/a Garden Grill, and Beach Hut at Venetian Shores, Inc. d/b/a Cedar Beach, and Gloria Marsilio and Fred Marsilio, individually, Case No. 2:14-cv-00497-JFB-AKT (E.D.N.Y., January 23, 2014) alleges that the Defendants failed to compensate the Plaintiffs for time worked in excess of 40 hours per week at a rate of at least one and one-half times their regular hourly rate. Marchello's Garden Grill, Inc. does business in the state of New York, maintaining a place of business in Smithtown, New York. Beach Hut at Venetian Shores, Inc. does business in the state of New York, maintaining a place of business in Babylon, New York. The Corporate Defendants are engaged in the restaurant business. The Individual Defendants own, operate or manage the Corporate Defendants. The Plaintiffs are represented by: Troy L. Kessler, Esq. Marijana F. Matura, Esq. Ilan Weiser, Esq. SHULMAN KESSLER LLP 510 Broadhollow Road, Suite 110 Melville, NY 11747 Telephone: (631) 499-9100 Facsimile: (631) 499-9120 E-mail: tk@shulmankessler.com mm@shulmankessler.com iweiser@shulmankessler.com MARINA DISTRICT: Refused to Refund Buy-In Money, Suit Claims ------------------------------------------------------------ An Atlantic City casino hoodwinked by counterfeit chips in a poker tournament has refused to refund competitors their buy-in money, a class claims in court, according to Kevin Koeninger, writing for Courthouse News Service. The 2014 Borgata Winter Poker Open, referred to as the "Big Stack, No Limit Hold 'Em," kicked off at the Borgata Hotel Casino and Spa in Atlantic City, N.J., on Jan. 12, 2014. On Jan. 17, posts appeared on the online poker forum Two Plus Two about a 24-hour suspension of the tournament after the discovery of counterfeit poker chips. Several media outlets reported on the arrest later that month of 42-year-old Christian Lusardi of Fayetteville, N.C., after investigators allegedly linked him to $2.7 million worth of counterfeit poker chips flushed down an Atlantic City toilet. CNN said the flushed chips had clogged the sewers, and that tournament officials subsequently found 160 counterfeit poker chips -- each with a value of $5,000, for a total of $800,000 -- among the genuine casino chips. The tournament was canceled with 27 of the original 4,800 entrants still competing, CNN reported. Recreational poker player Jacob Musterel says he had paid two $560 entry fees for the tournament and wants to represent a class of players. He sued the Marina District Finance Co. Inc., the Marina District Development Co. LLC, the Marina District Development Holding Co. LLC, Boyd Atlantic City Inc. and Boyd Gaming Corp. on Feb. 18 in Atlantic County Superior Court. Lusardi is not named in the complaint. The tournament billed the prize money as the "$2 million guarantee," and a $560 buy-in got each player 20,000 chips, the class says. "As is now well known, the subject poker tournament turned out to be an utterly compromised and 'rigged' event, with defendants negligently permitting an individual to introduce large amounts of counterfeit chips into the tournament, tainting the games and essentially forfeiting the participants' buy-in money, without the participants having been provided with a fair opportunity to win the tournament's prize money, as promised," the complaint states. The class blames the defendants for having "failed to properly supervise the event (or their staff); failed to implement adequate security measures; failed to detect a participant's introduction of significant amounts of counterfeit chips into the game at various times, even (upon information and belief) after other participants had noticed the counterfeit chips and compromised play, and informed staff; did not halt the event as soon as the event was, or should have been, recognized as compromised; failed during the tournament to count the chips on an ongoing basis and failed to adequately secure the legitimate chips during breaks in play; and otherwise acted negligently in permitting an utterly rigged gaming event to occur at their casino." Essentially admitting its guilt after the tournament's cancelation, officers for the defendants "characterized the security failures as . . . a 'learning experience' for the casino, and as presenting an opportunity to improve its security apparatus (obviously inadequate for the subject tournament) for future events," according to the complaint. "Disgracefully, however, defendants' security 'education' unjustly comes at the expense of the plaintiff and the other members of the plaintiff class, unless the entry fees are refunded," the class says. In addition to the return of their buy-in money, the class wants treble damages for negligence, consumer fraud, breach of contract and unjust enrichment. MOTLEY RICE: Sued by South Carolinians Over Worker's Comp Loss -------------------------------------------------------------- South Carolinians allegedly exposed to asbestos say in court that they cannot collect worker's compensation because of the Motley Rice law firm's mishandling of their third-party claims, reports Dan McCue, writing for Courthouse News Service. Odell Parker leads the county court class action on behalf of South Carolina residents who have suffered physical injuries as a result of exposure to materials containing asbestos during the course of their employment. Parker and the other named plaintiffs claim to be members of a potential class of 14,900. Each of the plaintiffs claims to have been represented by Motley Rice, which pursued asbestos cases on their behalf as co-counsel and/or members of joint ventures with other law firms located in Mississippi and Georgia. Motley Rice and its principal, defendant Joseph F. Rice, "knew or should have known that under South Carolina law an injured worker intending to proceed with the claim against a third-party who caused injury to the employee during the course and scope of the employment was required to satisfy the notice provisions of S.C. Code Ann. Section42-1-560(b) or they would otherwise lose their workers' compensation benefits," the complaint states. Indeed, at the time the class retained Motley Rice, the plaintiffs were allegedly presented with a contract that stated, among other things, "I understand that Attorneys are not being employed or retained to advise me or file any type of claim for compensation pursuant to the Georgia Workers' Compensation Act or any other workers' compensation act." Another form, titled "Information Regarding Your Asbestos Claim," stated "Your employer is not a defendant unless you pursue a Workers' Compensation claim. I do not represent you in worker compensation claims," according to the complaint. Nevertheless, "neither defendants nor their co-counsel/joint ventures informed plaintiffs at any point during the representation of the need to engage counsel or take other actions to protect plaintiffs' workers' compensation benefits prior to or during the representation of plaintiffs on the third-party claims against the asbestos manufacturers," the class claims. Because they limited the scope of their representation to pursuing only third-party claims on the their behalf, Rice and his law firm allegedly never provided notice of the claims to their employers, their employers' workers compensation policy carrier, or to the South Carolina Workers' Compensation Commission. The class says Motley Rice should have advised them that the action could lead them to lose their worker's compensation benefits. "Had defendants and their co-counsel/joint venturers satisfied the minimum standard of conduct with regard to their fiduciary duties by explaining the proposed limitation on the scope of representation (to exclude workers' compensation claims) and how the proposed limitation on the scope of the represent may impact their workers compensation claims, plaintiffs would have engaged counsel or taken other steps to protect their entitlement to and recovery of workers' compensation benefits," the complaint states. The legal malpractice action concedes that Motley Rice pursued one of three possible legal avenues available to the plaintiffs, and that they have all received monetary settlements in exchange for releasing the manufacturers from all claims. They insist, however, that the attorneys' fees taken out of these settlements was not commensurate with the work performed, and that in the end, pursuing the litigation against the third-parties without providing notice to their employers cost them their "valuable workers' compensations benefits." Motley Rice did not return a call seeking comment on the lawsuit. Ruth Parker, Larry Southern, Roy Southern, Yvonne Harris and Barbara Patterson are also named plaintiffs. They seek punitive damages and disgorgement of legal fees for legal malpractice, negligence, breach of fiduciary duty and breach of contract. The Plaintiffs are represented by: Thomas Pendarvis, Esq. PENDARVIS LAW OFFICES, P.C. 500 Carteret St., Suite A Beaufort, SC 29902 Telephone: (843) 524-9500 Facsimile: (843) 524-9501 E-mail: Thomas@PendarvisLaw.com MT. GOX: Faces Suit Over Breach Resulting in 744K-Bitcoin Loss -------------------------------------------------------------- A massive security breach at Mt. Gox allowed hundreds of millions of dollars in bitcoins to be pilfered from the now-bankrupt exchange, users claim in a federal class action, reports Annie Youderian at Courthouse News Service. Lead plaintiff Gregory Greene says the Tokyo-based exchange touted itself as the "world's largest bitcoin exchange," handling "over 80% of all bitcoin trade." Bitcoin is a digital currency introduced in early 2009, the same year Mt. Gox launched its online trading platform. The Web site allowed users to buy and sell bitcoins, which are not issued or directly regulated by any central authority or government, according to the lawsuit filed February 27, 2014, in Chicago. The price of the crypto-currency is highly volatile and topped $1,000 last November. It's now at about $566. But the price on Mt. Gox plummeted after the exchange froze bitcoin withdrawals earlier in February while it purportedly investigated a "bug" or "technical glitch," users say. "Shortly thereafter, media outlets around the world began reporting that Mt. Gox had actually shut down due to a security breach that went unnoticed for years, which resulted in the loss of hundreds of millions of dollars worth of its users' bitcoins (approximately 744,000 of them)," the lawsuit states. (Parentheses and emphasis in original.) The exchange filed for bankruptcy protection February 28, 2014, in Japan. Since the site went dark, users have allegedly been unable to withdraw their bitcoins, which they say just "disappeared." "The company believes there is a high possibility that the bitcoins were stolen," Mt. Gox reportedly said in a statement. Greene, who lost about $25,000 in bitcoins, claims Mt. Gox failed to deliver on its promises to "securely store [his] bitcoins in a virtual 'vault' for safekeeping" and to grant him access "at any time." Mt. Gox CEO Mark Karpeles "was and is aware of the conduct and security problems underlying the widespread loss of bitcoins, and was and is aware that he and his co-defendants were wrongfully obtaining bitcoins for fiat currency by shutting down the Mt. Gox exchange and capturing its users' property," class members say. They are suing MtGox Inc., Mt Gox KK, Tibanne KK and Karpeles for consumer fraud, fraud in the inducement, negligence, breach of fiduciary duty, breach of contract, unjust enrichment, trespass to chattels, conversion, accounting and constructive trust. They also seek an order forcing the exchange to unfreeze the digital currency and "immediately make full restitution of all funds wrongfully obtained." The Plaintiffs are represented by: Jay Edelson, Esq. Christopher L. Dore, Esq. David I. Mindell, Esq. Alicia Hwang, Esq. EDELSON PC 350 North LaSalle Street, Suite 1300 Chicago, IL 60654 Telephone: (312) 589-6370 Facsimile: (312) 589-6378 E-mail: jedelson@edelson.com cdore@edelson.com dmindell@edelson.com ahwang@edelson.com - and - Steven L. Woodrow, Esq. Megan Lindsey, Esq. EDELSON PC 999 18th Street, Suite 3000 Denver, CO 80202 Telephone: (303) 357-4878 Facsimile: (303) 446-9111 E-mail: swoodrow@edelson.com mlindsey@edelson.com NUCOR CORP: Still Faces Suits Alleging Antitrust Law Violations --------------------------------------------------------------- Nucor Corporation continues to face antitrust lawsuits filed by Standard Iron Works and other steel purchasers in the United States District Court for the Northern District of Illinois, according to the company's Nov. 6, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 28, 2013. Nucor has been named, along with other major steel producers, as a co-defendant in several related antitrust class-action complaints filed by Standard Iron Works and other steel purchasers in the United States District Court for the Northern District of Illinois. The majority of these complaints were filed in September and October of 2008, with two additional complaints being filed in July and December of 2010. Two of these complaints have been voluntarily dismissed and are no longer pending. The plaintiffs allege that from April 1, 2005 through December 31, 2007, eight steel manufacturers, including Nucor, engaged in anticompetitive activities with respect to the production and sale of steel. The plaintiffs seek monetary and other relief. OMNICARE INC: Supreme Court to Review Investors' Securities Suit ---------------------------------------------------------------- Pharmaceutical care giant Omnicare persuaded the Supreme Court on March 3, 2014, to review whether investors have adequately pleaded securities claims, according to Barbara Leonard at Courthouse News Service. After Omnicare, which is the nation's largest provider of pharmaceutical care services for the elderly and other residents of long-term care facilities in the United States and Canada made its December 2005 public stock offering, investors claimed that there were material misstatements or omissions in a registration statement filed with the Securities and Exchange Commission. They claimed Omnicare had made kickback arrangements with pharmaceutical manufacturers and had submitted false claims to Medicare and Medicaid, among other illegal activities. Meanwhile the company's SEC registration statement had stated "that its contracts with drug companies were 'legally and economically valid arrangements that bring value to the healthcare system and patients that we serve,'" according to the complaint (emphasis in original). A federal judge in Kentucky never certified a class in the 2006 lawsuit and dismissed the complaint in its entirety in 2007. The 6th Circuit revived the allegations under Section 11 of the Securities Act of 1934 two years later, but the court dismissed the case again in 2012, finding that Section 11 claim "sounds in fraud." In a partial reversal last year, the federal appeals court revived the allegation that Omnicare's statements of "legal compliance" involved material misstatements and omissions. The Supreme Court granted Omnicare a writ of certiorari March 3, 2014, but did not issue any comment on the case, as is its custom. The Indiana State District Council of Laborers and HOD Carriers Pension and Welfare Fund leads the class action along with the Cement Masons Local 526 Combined Funds and the Laborers District Council Construction Industry Pension Fund. The Plaintiffs-Respondents are represented by: Kevin L. Murphy, Esq. GRAYDON HEAD & RITCHEY, LLP 2400 Chamber Center Drive, Suite 300 Fort Mitchell, KY 41017, Telephone: (859) 282-8800 E-mail: kmurphy@graydon.com - and - Darren J. Robbins, Esq. Eric Alan Isaacson, Esq. Henry Rosen, Esq. Steven F. Hubachek, Esq. Amanda M. Frame, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 655 West Broadway, Suite 1900 San Diego, CA 92101 Telephone: (619) 231-1058 E-mail: darrenr@rgrdlaw.com erici@rgrdlaw.com henryr@rgrdlaw.com shubachek@rgrdlaw.com aframe@rgrdlaw.com The Defendants-Petitioners are represented by: Harvey Kurzweil, Esq. Richard W. Reinthaler, Esq. James P. Smith III, Esq. John E. Schreiber, Esq. WINSTON & STRAWN LLP 200 Park Avenue, New York, NY 10166 Telephone: (212) 294-6700 E-mail: hkurzweil@winston.com rreinthaler@winston.com jpsmith@winston.com jschreiber@winston.com - and - Linda T. Coberly, Esq. WINSTON & STRAWN LLP 35 W. Wacker Drive Chicago, IL 60601 Telephone: (312) 558-8768 Telephone: lcoberly@winston.com - and - Steffen N. Johnson, Esq. Elizabeth P. Papez, Esq. Andrew C. Nichols, Esq. WINSTON & STRAWN LLP 1700 K Street NW., Washington, DC 20006 Telephone: (202) 282-5000 E-mail: sjohnson@winston.com epapez@winston.com anichols@winston.com The case is Omnicare, Inc., et al., Petitioners v. The Laborers District Council Construction Industry Pension Fund and The Cement Masons Local 526 Combined Funds, Respondents, Case No. 13-435, in the United States Court of Appeals for the Sixth Circuit. PATHEON INC: Continues to Face Suit Over Product Recall ------------------------------------------------------- Patheon Inc. faces suits in connection with the recall of certain lots of allegedly defective products, according to the company's Jan. 10, 2014, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended Oct. 31, 2013. One putative class action and four individual plaintiff actions are pending in the United States against one of the Company's customers in connection with the recall of certain lots of allegedly defective products manufactured by the Company for the customer. The Company has also been named in the putative class action and in three of the individual plaintiff actions. The customer has given the Company notice of its intent to seek indemnification from the Company for all damages, costs and expenses, pursuant to the manufacturing services agreement between the customer and the Company. As these cases are at an early stage, the Company is unable to estimate the number of potential claimants or the amount of potential damages for which the Company may be directly or indirectly liable in the actions. PAYPAL INC: "Zepeda" Suit Settlement Needs Revision, Court Ruled ---------------------------------------------------------------- A proposed settlement to end claims PayPal wrongly closed accounts due to unfounded concerns of suspicious activity is overly broad and must be revised, a federal judge ruled, according to Courthouse News Service. Lead plaintiff Moises Zepeda claimed that he logged onto his PayPal account, which he used for business purposes, and found a notification telling him his access had been limited. PayPal did not give him a specific reason for the subsequent account closure, only that there were issues with security, he said. Zepeda further stated that PayPal held his funds and retained the interest from these withheld amounts. The lawsuit went on to claim PayPal did not inform Zepeda or other sellers with similar issues how to have the hold released or how to avoid future holds being placed on their accounts. Zepeda's 2010 lawsuit, which came on the heels of two similar lawsuits that were voluntarily dismissed without prejudice, asserted breach of contract, breach of fiduciary duty, unjust enrichment, and violation of California's Consumers Legal Remedies Act and Unfair Competition Law. Meanwhile, another class action lawsuit was also filed in 2010 by Devinda Fernando and Vadim Tsigel against PayPal and eBay claiming that PayPal improperly restricted and closed customer accounts because of suspicious activity without notice. PayPal allegedly froze the accounts, preventing users from recovering their funds. Fernando's lawsuit alleged conversion, unjust enrichment, and violations of the Electronic Fund Transfer Act (EFTA) and the terms of a 2004 settlement stemming from the 2002 Comb vs. PayPal case. The Comb settlement called for PayPal to comply with certain procedures for limiting accounts and responding to and returning funds to customers whose accounts have been limited. PayPal also agreed to pay $9.25 million into a settlement fund used to pay class members with valid claims and pay attorney fees and costs. In 2011, both the Zepeda and Fernando litigants participated in separate mediation, resulting in a global settlement of both actions. However, things broke down when one of the attorneys for the Fernando plaintiffs, Marina Trubitsky, stated that two of the plaintiffs wanted to negotiate individual settlements and that the global settlement could not move forward. U.S. District Court Judge Saundra Brown Armstrong ordered all parties in both cases to participate in a mandatory settlement conference before Magistrate Judge Nathaniel Cousins, but Trubitsky did not show up, so the conference proceeded in only the Zepeda case. The Zepeda class, which added eBay as a defendant, renewed their motion for preliminary approval of their proposed settlement, which calls for PayPal to implement certain business practices, including: disclosing its use of fraud and risk modeling in the PayPal User Agreement; distinguishing how it uses the terms "holds," "reserves" and "limitations" in the agreement; and disclosing the reason for a hold, reserve or limitation to the extent that it is not inconsistent with PayPal's security requirements. The settlement does not provide for any monetary relief to class members. However, it does require PayPal to pay $1.425 million into a settlement fund to go toward $500,000 in attorney fees, $5,000 incentive awards for the class representatives, and a $250,000 cy pres award to Electronic Frontier Foundation. The settlement class is defined as "all current and former users of PayPal who had an active account between April 19, 2006 and the date of entry of the Preliminary Approval Order." Among other things, the agreement calls for the class to release PayPal and eBay from liability for any claims that were or could have been brought in the Zepeda or Fernando actions and for any claims that "in any respect" relate to PayPal's obligations under the EFTA or the Comb settlement. Objectors to the settlement -- which include plaintiffs in the other actions -- claimed that the settlement "is collusive and unfair on the grounds that it vitiates 'the force and effect' of the Comb settlement, essentially in exchange for a 'pay off' to plaintiffs' attorneys and the class representatives," according to the ruling. Armstrong called the objectors' argument "discursive and not expressed in a particularly cogent manner," but agreed that there were concerns regarding the fairness of the settlement. "Despite the relatively discrete nature of the business practices being targeted and users affected in this case, the Settlement Agreement broadly defines the Settlement Class as any person who has used PayPal at any time since April 9, 2006, irrespective of whether the user was affected by this reserve practice at issue," Armstrong wrote. Because the agreement also calls for the class to release any and all claims relating not only to PayPal's practice of placing reserves on certain accounts, but to any claims that "relate in any respect" to the company's obligations under the EFTA and the Comb settlement, it "effectively immunizes PayPal and eBay from any liability for any claims predicated on violations of the Comb settlement or EFTA," Armstrong said. Armstrong was also troubled by the fact that the only people receiving money will be the class representatives and their counsel. "The breadth of the release relative to the claims alleged, coupled with the lack of any monetary benefit to the class, militate against preliminarily approving the Settlement Agreement," Armstrong ruled. The class can resubmit an amended motion for preliminary approval with a revised settlement agreement or a thorough analysis of Armstrong's concerns. The case is Moises Zepeda, et al. v. Paypal, Inc., et al., Case No. 4:10-cv-02500-SBA, in the United States District Court for the Northern District of California, Oakland Division. PNC FINANCIAL: Allowed to Appeal CBNV Mortgage Suit Certification ----------------------------------------------------------------- The United States Court of Appeals for the Third Circuit granted the motion of The PNC Financial Services Group, Inc. to appeal from the order granting the motion for class certification in In re: Community Bank of Northern Virginia Lending Practices Litigation (No. 03-0425 (W.D. Pa.), MDL No. 1674), according to PNC's Nov. 6, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2013. In the lawsuits consolidated for pretrial proceedings in the Western District of Pennsylvania under the caption In re: Community Bank of Northern Virginia Lending Practices Litigation (No. 03-0425 (W.D. Pa.), MDL No. 1674), the company filed a motion seeking leave to appeal the granting of the motion for class certification in August 2013. The United States Court of Appeals for the Third Circuit granted the motion in October 2013, allowing an appeal of the class certification motion to proceed before it. PRIDE MEDICAL: Doc Revealed HIV Status of 379 Patients, Suit Says ----------------------------------------------------------------- Writing for Courthouse News Service, Courtney Walters reports that an Atlanta doctor sent unencrypted "HIV/AIDS Patient Lists" to a "gay-oriented" magazine, disclosing 379 patients' names and HIV status, a class action claims in court. Lead plaintiff John Doe sued Pride Medical Services, three doctor/owners, a pharmacist and another part-owner of the clinic, in Fulton County State Court. Doe says he was diagnosed with HIV in 2008, and became a patient of Pride Medical in October 2011. He claims Pride kept a spreadsheet on patients, covering "How Did You Find Us?", insurance plans and other information, including their "unambiguously" identifiable names and HIV/AIDS status -- "HIV (+/-)" -- and that "every cell [in the spreadsheet] (with a few exceptions) contains a 'P,' 'N,' or 'U' next to the patient's name." "The 'P,' 'N,' or 'U' stand for positive, negative or unknown," according to the complaint. Doe claims that on Dec. 5, 2012, defendant Dr. Lee R. Anisman, Pride Medical's senior physician and majority owner, "met for the first time the owner of a certain Atlanta-based gay magazine (a 'List Recipient') at a party." (Parentheses in complaint.) Six days later, at 4:39 p.m., "Dr. Anisman emailed the HIV/AIDS Patient List to the business email address of the List Recipient from Dr. Anisman's American Online ('AOL') email account at [aol address]." This was the "first disclosure," Doe says. The complaint continues: "The List Recipient did not request this document from Dr. Anisman. "The email address to which the First Disclosure was sent was a business email account, which several employees of the business checked regularly. "Therefore, multiple people working for that certain Atlanta-based gay magazine had access to the HIV/AIDS Patient List and may have reviewed it. "The HIV/AIDS Patient List that was sent in the First Disclosure on December 11, 2012 contained the patient list for 2011, consisting of 214 names and their HIV status." This disclosure was illegal, Doe says. Then came a second illegal disclosure. "Again, on March 26, 2013, Dr. Anisman emailed the HIV/AIDS Patient List to the List Recipient from his AOL account," the lawsuit states. "The List Recipient did not request this document at any time from Dr. Anisman." The second disclosure was sent to the same company-wide email account at the gay magazine, and contained, in addition to the 2011 list of 214 names and their HIV status, "the patient list for 2012, consisting of 165 names and their HIV status," according to the complaint. It also contained at "2013 Tab," in which, at last, "the patient names were redacted," Doe says. Doe says his name and HIV status were revealed by the illegal disclosures. He seeks class certification for the, at minimum, 379 people whose names and HIV/AIDS status were disclosed, and punitive damages for violation of medical privacy laws, invasion of privacy, breach of confidential relationship and fiduciary duty, negligence, gross negligence, wrongful disclosure of privileged information, and breach of contract. The 25-page lawsuit gives no indication why Anisman may have done this. The Plaintiff is represented by: Todd J. Poole, Esq. POOLE LAW GROUP 315 W. Ponce de Leon Ave., Suite 225 Decatur, GA 30030 Telephone: (404) 373-4008 Facsimile: (888) 709-5723 E-mail: todd@poolelawgroup.com SAFEWAY INC: Settles False Advertising Suit for $2.25 Million ------------------------------------------------------------- The Associated Press reports that prosecutors in Northern California say Safeway has agreed to pay $2.25 million to settle a lawsuit alleging that the grocer engaged in false advertising, unfair competition and violated a 2008 injunction. Under the deal, the Pleasanton-based supermarket chain does not admit liability, but it is bound by a permanent injunction barring it from making false or misleading statements, charging more than the lowest posted price and failing to honor valid coupons, discounts or offers. Safeway has also agreed to take certain measures including adding more signs to notify consumers of its price-accuracy policy and hiring an independent auditor to conduct annual reviews. The March 6 settlement comes on the same day that Safeway and Albertsons announced a merger of two of the nation's biggest supermarket chains valued at more than $9 billion. STANFORD GROUP: Investors May Recover via Class Suits, SC Ruled --------------------------------------------------------------- Federal law does not preclude investors allegedly defrauded by R. Allen Stanford's $7 billion Ponzi scheme from attempting recovery via state class actions, reported Barbara Leonard at Courthouse News Service, citing a Supreme Court ruling dated February 26, 2014. For nearly 15 years, Stanford Group Co. and related entities sold certificates of deposit issued by its Antigua-based Stanford International Bank, and then used investor funds to cover its liabilities. Its eponymous leader was sentenced in 2012 to 110 years in federal prison after a federal jury in Houston, Texas, convicted him on 13 of 14 counts of conspiracy, wire fraud and mail fraud. The Northern District of Texas consolidated several class actions brought under state law. James Roland and Leah Farr lead class actions that alleged violations of Louisiana law. Samuel Troice leads a group of Latin American investors who brought claims under Texas law. Named as defendants are SEI Investments, which advised the Stanford Trust Co., the bank's lawyers with Proskauer Rose and Chadbourne and Parke, and the bank's insurance brokers with Willis of Colorado. In 2010, the federal judge presiding over the multidistrict litigation found that the Securities Litigation Uniform Standards Act (SLUSA) precluded the claims. That law says plaintiffs may not maintain a class action "based upon the statutory or common law of any state" in which the plaintiffs allege "a misrepresentation or omission of a material fact in connection with the purchase or sale of a covered security." A three-judge panel of the 5th Circuit reversed in September 2012, finding that the defendants' alleged actions "are not more than tangentially related to the purchase or sale of covered securities and are therefore not sufficiently connected to such purchases or sales to trigger SLUSA preclusion." The U.S. Supreme Court granted the defendants a writ of certiorari last year and affirmed, 5-2, on February 26, 2014. "We believe the basic consequence of our holding is that, without limiting the federal government's prosecution power in any significant way, it will permit victims of this (and similar) frauds to recover damages under state law," Justice Stephen Breyer wrote for the majority (Parentheses in original). The ruling highlights the aims of both the SLUSA, which it dubs the Litigation Act, and the Private Securities Litigation Reform Act, or PSLRA. Both were enacted "to protect securities issuers, as well as the investment advisers, accountants, and brokers who help them sell financial products, from abusive class-action lawsuits," Breyer wrote (emphasis in original). "The dissent worries our approach will 'subject many persons and entities whose profession it is to give advice, counsel, and assistance in investing in the securities markets to complex and costly state-law litigation,'" he added. "To the contrary, the only issuers, investment advisers, or accountants that today's decision will continue to subject to state-law liability are those who do not sell or participate in selling securities traded on U. S. national exchanges. We concede that this means a bank, chartered in Antigua and whose sole product is a fixed-rate debt instrument not traded on a U.S. exchange, will not be able to claim the benefit of preclusion under the Litigation Act. But it is difficult to see why the federal securities laws would be -- or should be -- concerned with shielding such entities from lawsuits." Breyer and the others in the majority saw no evidence of how their holding "could significantly curtail the SEC's enforcement powers." "We find it surprising that the dissent worries that our decision will 'narro[w] and constric[t] essential protection for our national securities market,' and put 'frauds like the one here . . . not within the reach of federal regulation,'" the opinion states. "That would be news to Allen Stanford, who was sentenced to 110 years in federal prison after a successful federal prosecution, and to Stanford International Bank, which was ordered to pay billions in federal fines, after the same. Frauds like the one here -- including this fraud itself -- will continue to be within the reach of federal regulation because the authority of the SEC and Department of Justice extends to all 'securities,' not just to those traded on national exchanges." There is only one difference between the majority's approach and that of the dissent, Breyer said. It "is that we also preserve the ability for investors to obtain relief under state laws when the fraud bears so remote a connection to the national securities market that no person actually believed he was taking an ownership position in that market," the ruling states. "Thus, despite the government's and the dissent's handwringing, neither has been able to point to an example of any prior SEC enforcement action brought during the past 80 years that our holding today would have prevented the SEC from bringing," it continues. The handwringing in the dissent, written by Justice Anthony Kennedy and joined by Justice Samuel Alito, goes on for 18 pages. They said the SLUSA's language precludes "a broad range of state- law securities claims in order to protect those who advise, counsel, and otherwise assist investors from abusive and multiplicitous class actions designed to extract settlements from defendants vulnerable to litigation costs." "The court's narrow reading of the statute will permit proliferation of state-law class actions, forcing defendants to defend against multiple suits in various state fora," Kennedy wrote. "This state-law litigation will drive up legal costs for market participants and the secondary actors, such as lawyers, accountants, brokers, and advisers, who seek to rely on the stability that results from a national securities market regulated by federal law. This is a serious burden to put on attorneys, accountants, brokers, and investment advisers nationwide; and that burden itself will make the national securities markets more costly and difficult to enter. The purpose of the act is to preclude just these suits. By permitting the very state-law claims Congress intended to prohibit, the court will undermine the primacy of federal law in policing abuses in the securities markets." Justice Clarence Thomas focused on the statutory language in a concurring opinion. The case is Chadbourne & Parke LLP v. Troice, et al., Case No. 12-79, in the Supreme Court of the United States. STATE AUTO: Faces Litigation Over Insurance to Value Program ------------------------------------------------------------ State Auto companies were named defendants in Schumacher vs. State Automobile Mutual Insurance Company, et al., which alleges that the company's coverage limits and premiums were improperly increased as a result of an insurance to value ("ITV") program, according to State Auto Financial Corporation's Nov. 6, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2013. In April 2013, a putative class action lawsuit (Schumacher vs. State Automobile Mutual Insurance Company, et al.) was filed against State Auto Mutual, State Auto Financial and State Auto P&C in Federal District Court in Ohio. Plaintiffs claim that in connection with the homeowners policies of various State Auto companies, the coverage limits and premiums were improperly increased as a result of an insurance to value ("ITV") program and Plaintiffs allege that they purchased coverage in excess of that which was necessary to insure them in the event of loss. Plaintiffs' claims include breach of good faith and fair dealing, negligent misrepresentation and fraud, violation of the Ohio Deceptive Trade Practices Act, and fraudulent inducement. Plaintiffs are seeking class certification and compensatory and punitive damages to be determined by the court. The Company intends to deny any and all liability to plaintiffs or the alleged class and to vigorously defend this lawsuit. TEXAS INDUSTRIES: Being Sold to Martin for Too Little, Suit Says ---------------------------------------------------------------- At $2.7 billion, Texas Industries is selling itself too cheaply to Martin Marietta Materials, a class of shareholders claim in Texas Federal Court, reported Courthouse News Service. Under the terms of the merger agreement, Martin Marietta will acquire all outstanding shares of Texas Industries common stock in a tax-free, stock-for-stock transaction. Texas Industries shareholders will receive 0.7 Martin Marietta shares for each share of Texas Industries common stock they own at closing. Based on the closing market prices for the shares of both companies on Jan. 27, 2014, and their debt levels as of their most recently completed quarters, the combined company will have an enterprise value of approximately $8.5 billion, according to a statement by Standard & Poor's Ratings Services, which placed Texas Industries' 'B-' corporate credit rating and 'B-' senior unsecured debt rating on CreditWatch with positive implications. TEXAS INDUSTRIES: Several Suits Over Chrome 6 Emissions Stayed -------------------------------------------------------------- A court has stayed four lawsuits filed against subsidiaries of Texas Industries, Inc. over chrome 6 emissions from its Crestmore cement plant pending a ruling in Virginia Shellman, et al. v. Riverside Cement Holdings Company, et al., according to the company's Jan. 9, 2014, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Nov. 30, 2013. In late April 2008, a lawsuit was filed in Riverside County Superior Court of the State of California styled Virginia Shellman, et al. v. Riverside Cement Holdings Company, et al. The lawsuit against three of the company's subsidiaries purports to be a class action complaint for medical monitoring for a putative class defined as individuals who were allegedly exposed to chrome 6 emissions from the company's Crestmore cement plant. The complaint alleges an increased risk of future illness due to the exposure to chrome 6 and other toxic chemicals. The suit requests, among other things, establishment and funding of a medical testing and monitoring program for the class until their exposure to chrome 6 is no longer a threat to their health, as well as punitive and exemplary damages. Since the Shellman lawsuit was filed, five additional putative class action lawsuits have been filed in the same court. The putative class in each of these cases is the same as or a subset of the putative class in the Shellman case, and the allegations and requests for relief are similar to those in the Shellman case. As a consequence, the court has stayed four of these lawsuits until the Shellman lawsuit is finally determined. TEXAS INDUSTRIES: No Trial Date Yet in Suit Over Oro Grande Plant ----------------------------------------------------------------- No trial date has been set in lawsuits filed against Texas Industries, Inc. and subsidiaries over the Oro Grande, California cement plant, according to the company's Jan. 9, 2014, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Nov. 30, 2013. Since January 2009, additional lawsuits have been filed against Texas Industries, Inc. or one or more of the company's subsidiaries in the same court involving similar allegations, causes of action and requests for relief, but with respect to the company's Oro Grande, California cement plant instead of the Crestmore plant. The suits involve approximately 300 individual plaintiffs. Texas Industries, Inc. and the company's subsidiaries operating in Texas have been similarly dismissed from these suits. The court has dismissed from these suits plaintiffs that failed to provide required information, leaving approximately 250 plaintiffs. Prior to the filing of the lawsuits, the air quality management district in whose jurisdiction the plant lies conducted air sampling from locations around the plant. None of the samples contained chrome 6 levels above 1.0 ng/m^3. The plaintiffs allege causes of action that are similar from suit to suit. Following dismissal of certain causes of action by the court and amendments by the plaintiffs, the remaining causes of action typically include, among other things, negligence, intentional and negligent infliction of emotional distress, trespass, public and private nuisance, strict liability, willful misconduct, fraudulent concealment, unfair business practices, wrongful death and loss of consortium. The plaintiffs generally request, among other things, general and punitive damages, medical expenses, loss of earnings, property damages and medical monitoring costs. At the date of this report, none of the plaintiffs in these cases has alleged in their pleadings any specific amount or range of damages. Some of the suits include additional defendants, such as the owner of another cement plant located approximately four miles from the Crestmore plant or former owners of the Crestmore and Oro Grande plants. Discovery is proceeding in all of the suits, and the trial for the claims of 14 of the individual plaintiffs is currently scheduled to begin in January, 2015. No trial date has been set in the class action suits or for other individual plantiffs. TOTAL SYSTEM: Awaits OK of Accord in Suit Over NetSpend Merger -------------------------------------------------------------- Total System Services, Inc. is awaiting court approval of a settlement it reached in suits over its merger with NetSpend Holdings, Inc., according to the company's Nov. 6, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2013. A putative class action entitled Koehler v. NetSpend Holdings, Inc. et. al. (the "Koehler action") was filed in the Court of Chancery of the State of Delaware on March 1, 2013 and a putative class action entitled Bushansky v. NetSpend Holdings, Inc. et al. (together with the Koehler action, the "Actions") was filed in the District Court of Travis County, Texas on February 25, 2013, each in connection with TSYS' proposed merger with NetSpend pursuant to the Merger Agreement. On May 21, 2013, the Delaware Chancery Court issued a memorandum opinion in the Koehler action denying the plaintiff's motion for a preliminary injunction, which sought to enjoin a shareholder vote on the proposed merger. While TSYS and the other defendants believe that each of the Actions is without merit, in an effort to minimize the cost and expense of any litigation relating to such Actions, on May 29, 2013, the defendants reached an agreement in principle with the plaintiffs regarding settlement of the Actions. In connection with the settlement contemplated by that agreement in principle, as set forth in a Memorandum of Understanding, dated as of May 29, 2013, and, later, a Settlement Agreement, dated as of September 20, 2013 (the "Settlement Agreement"), the Actions and all claims asserted therein will be dismissed. In addition, pursuant to the terms of the Settlement Agreement, TSYS and/or NetSpend, where applicable, agreed (a) to make certain amendments to the Merger Agreement; (b) that, consistent with the terms of the Merger Agreement, prior to the receipt of approval of the NetSpend stockholders, NetSpend could furnish information to, and engage in discussions and negotiations with, third parties who make unsolicited bona fide acquisition proposals if certain conditions were met; (c) that the special meeting of NetSpend stockholders that was scheduled to be held on May 31, 2013 would be adjourned to June 18, 2013; (d) that NetSpend would not take certain positions with respect to any appraisal proceeding perfected under Delaware law; (e) that certain information would be provided to counsel for the plaintiffs in the Actions in connection with any perfected appraisal proceeding; and (e) without admitting that any of the claims in the Actions have merit or that any supplemental disclosure was required under any applicable statute, rule, regulation or law, that they would acknowledge that the filing and prosecution of the Actions were the cause, in whole or in part, of certain supplemental disclosures made in connection with the proposed merger. Following submission of the Settlement Agreement to the Court of Chancery, on October 4, 2013, the Court entered an order scheduling further proceedings related to the settlement. Among other things, the Court scheduled a hearing for December 18, 2013 to consider whether or not to approve the settlement as proposed. TRIQUINT SEMICONDUCTOR: Being Sold for Too Little, Class Claims --------------------------------------------------------------- Courthouse News Service reports that directors are selling Triquint Semiconductor to RF Micro Devices too cheaply through an unfair process, in a stock swap, shareholders claim in Multnomah County Court. VITACOST.COM INC: No Writ Filed v. Dismissal of Securities Suit --------------------------------------------------------------- The lead plaintiff in a securities lawsuit filed against Vitacost.com, Inc. did not file a petition for a writ of certiorari against a court opinion affirming the dismissal of a second amended complaint, according to the company's Nov. 6, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2013. On May 24, 2010, a punitive class action complaint was filed in the United States District Court for the Southern District of Florida against the Company and certain current and former officers and directors by a stockholder on behalf of herself and other stockholders who purchased Vitacost common stock between September 24, 2009 and April 20, 2010, captioned Miyahira v. Vitacost.com, Inc., Ira P. Kerker, Richard P. Smith, Stewart Gitler, Allen S. Josephs, David N. Ilfeld, Lawrence A. Pabst, Eran Ezra, and Robert G. Trapp, Case 9:10-cv-80644-KLR. After being appointed to represent the purported class of shareholders, the lead plaintiffs filed an amended complaint asserting claims under Sections 11, 12(a)(2), and 15 of the Securities Act of 1933 and Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended, and Rule 10b-5 promulgated thereunder against Vitacost, its current and former officers and directors, and the underwriters of its initial public offering ("IPO"). On December 12, 2011, the Court granted defendants' motion to dismiss the complaint, and granted plaintiffs leave to amend. On January 11, 2012, lead plaintiff filed its second amended complaint asserting claims under Sections 11, 12(a)(2), and 15 of the Securities Act of 1933 against Vitacost, its current and former officers and directors, and its underwriters. Lead plaintiff purported to bring its action on behalf of investors who purchased stock in connection with or traceable to the Company's IPO between September 24, 2009 and April 20, 2010. The complaint alleged that the defendants violated the federal securities laws during the period by, among other things, disseminating false and misleading statements and/or concealing material facts concerning the Company's current and prospective business and financial results. The complaint also alleged that as a result of these actions the Company's stock price was artificially inflated during the class period. The complaint sought unspecified compensatory damages, costs, and expenses. On June 25, 2012, the Southern District of Florida entered its order granting defendants' motion to dismiss in full and dismissing the second amended complaint with prejudice. On July 23, 2012, lead plaintiff filed a notice of appeal to the Eleventh Circuit of the order granting defendants' motion to dismiss. On May 5, 2013, the Eleventh Circuit issued its opinion affirming the dismissal. The deadline to file a petition for writ of certiorari with the U.S. Supreme Court passed on August 5, 2013, and lead plaintiff did not file a petition. WATTS WATER: "Trabakoolas" Suit Stayed for Possible Settlement -------------------------------------------------------------- The U.S. District Court for the Northern District of California stayed the suit Trabakoolas et al., v, Watts Water Technologies, Inc., et al., to allow parties to explore the possibility of a settlement, according to the company's Nov. 6, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 29, 2013. On March 8, 2012, Watts Water Technologies, Inc., Watts Regulator Co., and Watts Plumbing Technologies (Taizho) Co., Ltd., among other companies, were named as defendants in a putative nationwide class action complaint filed in the U.S. District Court for the Northern District of California seeking to recover damages and other relief based on the alleged failure of toilet connectors. The complaint seeks among other items, damages in an unspecified amount, replacement costs, injunctive relief, and attorneys' fees and costs. No class certification hearing has been scheduled and the matter is currently in the discovery phase. On August 22, 2013, the Court stayed the action for 45 days, to allow the parties to explore the possibility of settlement. On October 8, 2013, this stay was extended until November 7, 2013, in order to allow the parties additional time to explore settlement. The Company intends to request a further extension of the stay for this purpose. If the stay is lifted, the Company intends to continue to vigorously contest the allegations in this case. WILLIAM OLEFINS: Sued by Louisiana Residents Over "Toxic Cloud" --------------------------------------------------------------- Kevin Lessmiller, writing for Courthouse News Service, reports that a history of safety violations preceded a fatal Louisiana plant explosion that caused a fire and released a "toxic cloud," a federal class action claims. The Geismar, La., facility operated by William Olefins LLC "produces approximately 1.3 billion pounds of ethylene and 90 million pounds of polymer grade propylene," according to the complaint filed February 24, 2014. It exploded on June 13, 2013, at approximately 8:30 a.m., leading to a mandatory evacuation, including "road closures and the shut- down of businesses in the area," Abraham Bosley, who purports to represent a class, claims in Federal Court. The U.S. Department of Labor and the Occupational Safety and Health Administration cited William Olefins for the explosion in December, saying its workplace-safety failures "cost two workers their lives," according to the complaint. Abraham Bosley named Williams Olefins LLC as a defendant as well as the Tulsa, Okla.-based subsidiary Williams Partners LP. He purports to anyone who suffered injuries or damages while working, shopping and/or residing in and around Geismar, La., at the time of the explosion. "Following the explosion and subsequent fire, a large amount of toxic chemicals were released into the surrounding areas including but not limited to ethylene, propylene and other gases and toxic materials," the complaint states. Residents and other members of the class "have suffered injury to their respiratory systems" and other damages and expenses related to "evacuation, inconvenience, loss of income, and fear and fright," according to the complaint. Among six OSHA violations for which William Olefins was cited after the explosion was one "willful" violation "for failing to develop clear, written procedures for how to change and put idle pressure vessels into service," according to the complaint. Williams Olefins and Williams Partners "had a history of citations, warnings and shut-downs due to improper storage and handling of chemicals," including a 2010 citation for releasing excess ethylene and a 2012 propylene leak, the class claims. Fault lies with William Olefins and Williams Partners because they failed to reasonably handle chemicals, properly maintain gas lines, inspect products and implement safety regulations, among other things, the complaint continues. Lead plaintiff Bosley says he was working at a nearby plant when the explosion occurred. The class seeks actual and punitive damages. Williams Olefins did not immediately return a request for comment. The Plaintiffs are represented by: Eric O'Bell, Esq. GAUTHIER, HOUGHTALING & WILLIAMS, LLP 3500 N. Hullen Street Metairie, LA 70002 Telephone: (504) 456-8600 Facsimile: (504) 456-8624 * Child Product Safety Recalls Have Dismal Response Rate of 10% --------------------------------------------------------------- Alicia McElhaney and Jayne O'Donnell, writing for USATODAY, report that despite efforts of federal regulators, consumer groups and companies, child product safety recalls have a dismal response rate of just 10%, according to a new KID report. "The return rate of recalls is really abysmal," says Nancy Cowles, KID's executive director. "The government makes announcements, but people don't hear about them or don't respond." Children's product companies and regulators wait too long to recall products and the practice has contributed to infant and children's deaths, the report says. It typically takes 13 reports of design flaws and two injuries to recall products, KID says. A recall can mean a refund, a repair or a replacement, says Scott Wolfson, communications director at the Consumer Product Safety Commission. Companies can choose among the three. Product recalls in the report include unstable dressers, the Nap Nanny infant recliner and baby monitor power cords. Julie Vallese, a spokeswoman for the Juvenile Product Manufacturers Association, says toys and children's products have always had low recall response rates and the issue is one several administrations have grappled with. And, she adds, the study is focusing on the wrong thing. "Return rates for products are a poor indicator of recall effectiveness, since a variety of factors affect how consumers decide to respond," says Ms. Vallese, a former spokeswoman for the CPSC. "Many products may no longer be in use or have already been disposed of by consumers." Ms. Cowles thinks lack of publicity is the larger problem. Companies and the CPSC distribute joint press releases about recalls, and companies with websites have to post the information. Then it's up to the company to share information about a recall on social media and elsewhere. Charley Pereira of Nagshead, N.C., and Washington, D.C., became an advocate for child safety after his 10-month-old daughter Savannah was strangled by the cord of her baby monitor in 2010, a death that helped prompt recalls of some monitors. He has fought for stricter rules for the way baby monitors are created and succeeded in stopping companies from portraying baby monitors at an unsafe distance in advertising. Mr. Pereira also worked to add safety labels to products to reduce their risks -- and the need to be recalled. He said that many companies are hesitant to put safety labels on products because they believe it will make people afraid to purchase them. There were 63 recalls in 2013 involving companies that used a Facebook or Twitter page within six months before the recall. Of these, the manufacturer only mentioned the product recall on Facebook in nine of those cases and on Twitter in eight, the report says. Many people say they hear of about two to three recalls per year, when there are typically more than 100 recalls on children's products alone each year, Ms. Cowles says. In 2013, there were 113 children's products recalled. Raedyn Grasseth was shocked when she received a call during her overnight shift as an emergency medical technician saying that her 10-month-old daughter, Riley, was not breathing. The infant, who was sleeping in her portable crib, was strangled when it collapsed on her. Though Ms. Grasseth dispatched an ambulance to her own home immediately, it was too late. Soon after Riley's death, Ms. Grasseth learned the company that made the crib had recalled it five years earlier. She had no idea. Now, Ms. Grasseth advocates in Riley's honor through Kids In Danger, an organization devoted to children's safety and recall awareness. "We had heard of different things being recalled from time to time, but not of any place to check and see if there was a database to search," Ms. Grasseth said in an e-mail interview. "We did not realize that her portable crib was recalled until the coroner told us." But reaching the consumer isn't the only problem. "Research has shown that consumers need to hear about recalls multiple times before they take action," CPSC's Wolfson says. KID co-founder Linda Ginzel's son, Danny Keysar, died when his crib collapsed on him in 1998. Unbeknownst to Ms. Ginzel, the crib had been recalled five years earlier. Ms. Ginzel says companies should promote recalls the way they promote products, and Ms. Cowles agrees. "I think social media (are) like any other tool a company has at their disposal," Ms. Cowles says. "They should use it in the same way they would use it for advertising." The increased publicity, Ms. Ginzel and Ms. Cowles say, would save many more children's lives. "It happened so many years ago and I still can't believe that this was how my son was killed," Ms. Ginzel says. She hopes no other families ever have to feel that way. ********* 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 G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2014. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. 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