text:
Monday, July 30, 2012, Vol. 14, No. 149
AFFINIA GROUP: Still Awaits Ruling on Price Fixing Lawsuit Deal
AMERICAN APPAREL: Bid to Dismiss Amended Shareholder Suit Pending
ASTORIA FINANCIAL: Unit Still Defends NY Suit On Overdraft Fees
BUONA VITA: FSIS Lists Stores That Received Recalled Products
CARGILL MEAT: More Stores Received Recalled Ground Beef Products
CENTURY ALUMINUM: Appeal From Stockholder Suit Dismissal Pending
CENTURY ALUMINUM: Suits Over Retiree Benefits Still Stayed
CHINA ADVANCED: Still Defends Stockholder Class Suits
CHOICE MANUFACTURING: Judge Dismisses Class Action
CITIBANK NA: Accused of Making Unnecessary Third Party Fees
DUKE ENERGY: Kessler Topaz Files Class Action in North Carolina
EASTMAN CHEMICAL: Reaches MOU in Solutia-Related Class Lawsuit
ELECTRONIC ARTS: Settles Antitrust Class Action for $27 Million
FRIENDFINDER NETWORKS: Securities Suit Dismissal Bid Pending
GENON ENERGY: Being Sold to NRG for Too Little, Suit Claims
GENVEC INC: Securities Suit in Maryland Still Pending
GOLFSMITH INT'L: Signs MOU to Settle Two Merger-Related Suits
HERSHEY COMPANY: Faces Overtime Class Action in California
IMH FINANCIAL: Still Awaits Court OK of Unitholders' Suit Deal
JBI INC: Securities Class Suit Still Pending
JPMORGAN CHASE: Grant & Eisenhofer Files Class Action in N.Y.
LIME ENERGY: Lin Law Firm Files Securities Class Action
LOUISIANA CITIZENS: Aug. 3 Class Action Status Conference Set
MARICOPA COUNTY, AZ: Sheriff Arpaio Takes Stand in Immigrant Suit
MAXFIELD & OBERTON: Sued by CPSC Over Buckyballs/Buckycube Toys
MAZDA CANADA: B.C. Court of Appeal Restricts Waiver of Tort
MEDIFAST INC: Plea to Dismiss Securities Suit in Maryland Pending
MERCEDES-BENZ, USA: Wigington Rumely Files Class Action
MINNESOTA: Judge Certifies Sex Offender Class Action
OUTBOARD MARINE: Group of Residents Mull Class Action
POWERWAVE TECHNOLOGIES: Still Defends Shareholder Suit in Calif.
PROSPER MARKETPLACE: Still Defends Securities Suit in California
PROTECTIVE LIFE: Suit Related to Group Health Business Pending
RICK'S CABARET: Still Defends Securities Class Lawsuits
SEARCHMEDIA HOLDINGS: Shareholder Suit Settlement Okayed in April
SERVICE CORPORATION: Calif. Sup. Ct. Keeps Class Certification
SUPERVALU INC: Continues to Defend Suit Over C&S Transaction
SUPERVALU INC: Wisconsin Suit Remains Stayed Pending IOS Ruling
THERABIOGEN INC: Still In Negotiations to Settle "Conde" Suit
TICKETMASTER: Consumer Class Action Settlement Challenged
TONGXIN INT'L: Gets Final OK of $3-Mil. Shareholder Suits Deal
TRANS1 INC: Continues to Defend Securities Suit in N.C.
TREE.COM INC: Trial in "Schnee" Class Suit Set for April 2013
TRIAGE STAFFING: Faces Class Action Over Hep. C Outbreak
VISA INC: Grocers Group Opposes Interchange Fee Suit Settlement
WASHINGTON MUTUAL: Judge Tosses Motion to Block MBS Class Action
* Consumer Advisory Group Mulls Class Action v. Korean Banks
* Ex-AG Files Mortgage Class Action v. Loan Servicers, Law Firms
A settlement agreement aimed at resolving a multidistrict
litigation over price fixing claims against a subsidiary of
Affinia Group Intermediate Holdings Inc. is still pending court
approval, according to the Company's May 14, 2012, Form 10-Q
quarter ended March 31, 2012.
On March 31, 2008, a class action lawsuit was filed by S&E Quick
Lube Distributors, Inc. of Utah against several auto parts
manufacturers for allegedly conspiring to fix prices for
replacement oil, air, fuel and transmission filters. Several auto
parts companies are named as defendants, including Champion
Laboratories, Inc., Purolator Filters NA LLC, Honeywell
International Inc., Cummins Filtration Inc., Donaldson Company,
Baldwin Filters Inc., Bosch USA., Mann + Hummel USA Inc.,
ArvinMeritor Inc., United Components Inc. and Wix Filtration Corp
LLC ("Wix Filtration"), one of the Company's subsidiaries. The
lawsuit is currently pending as a consolidated Multi-District
Litigation (MDL) Proceeding in Chicago, Illinois, because of
multiple "tag-along" filings in several jurisdictions. Two suits
have also been filed in the Canadian provinces of Ontario and
Quebec. Wix Filtration, along with other named defendants, has
filed various motions to dismiss plaintiffs' complaints, which
were denied by the court in December 2009. Several defendants,
including Wix Filtration, refiled motions to dismiss based upon
plaintiffs' most recent amended complaint. The court denied those
motions in September 2010. In June 2011, the U.S. Department of
Justice indicted the plaintiffs' main witness, William Burch, for
making false statements in connection with the litigation. Mr.
Burch pleaded guilty, was sentenced to two years in prison and the
parties are now considering the implications. Three defendants to
the action, Baldwin Filters Inc., Cummins Filtration Inc. and
Donaldson Company, settled the claims against them for minimal
payments in the fall of 2011. In January 2012, all parties to the
lawsuit participated in a settlement conference with the Court
without success. Shortly afterwards, defendants Wix Filtration,
Honeywell and Champion, were able to combine their contributions
toward settlement to reach an agreement with plaintiffs to avoid
the cost of further litigation. The parties have signed a
settlement agreement and submitted the settlement agreement to the
court for approval.
American Apparel Inc.'s motion to dismiss an amended consolidated
shareholder class action complaint remains pending in California,
according to the Company's May 15, 2012, Form 10-Q filing with the
Four putative class action lawsuits, entitled Anthony Andrade v.
American Apparel, et al., Case No. CV106352 MMM (RCx), Douglas
Ormsby v. American Apparel, et al., Case No. CV106513 MMM (RCx),
James Costa v. American Apparel, et al., Case No. CV106516 MMM
(RCx), and Wesley Childs v. American Apparel, et al., Case No.
CV106680 GW (JCGx), were filed in the U.S. District Court for the
Central District of California on August 25, 2010, August 31,
2010, August 31, 2010, and September 8, 2010, respectively,
against American Apparel and certain of the Company's officers and
executives on behalf of American Apparel shareholders who
purchased the Company's common stock between December 19, 2006 and
August 17, 2010. On December 3, 2010, the four lawsuits were
consolidated for all purposes into a case entitled In re American
Apparel, Inc. Shareholder Litigation, Lead Case No. CV106352 MMM
(JCGx) (the "Federal Securities Action"). On March 14, 2011, the
Court appointed the firm of Barroway Topaz, LLP (now Kessler Topaz
Meltzer & Check, LLP) to serve as lead counsel and Mr. Charles
Rendelman to serve as lead plaintiff. On April 29, 2011, Mr.
Rendelman filed a Consolidated Class Action Complaint against
American Apparel, certain of the Company's officers, and Lion,
alleging two causes of action for violations of Section 10(b) and
20(a) of the 1934 Act, and Rules 10b-5 promulgated under Section
10(b), arising out of alleged misrepresentations contained in the
Company's press releases, public filings with the SEC, and other
public statements relating to (i) the adequacy of the Company's
internal and financial control policies and procedures; (ii) the
Company's employment practices; and (iii) the effect that the
dismissal of over 1,500 employees following an Immigration and
Customs Enforcement inspection would have on the Company.
Plaintiff seeks damages in an unspecified amount, reasonable
attorneys' fees and costs, and equitable relief as the Court may
deem proper.
On May 31, 2011, defendants filed a motion to dismiss the Federal
Securities Action. On January 13, 2012, the Court dismissed the
Federal Securities Action, with leave to amend. Plaintiff filed an
amended complaint on February 27, 2012. The Company moved to
dismiss the amended complaint on March 30, 2012. A hearing on the
motion was set for May 21, 2012. Discovery is stayed in the
Federal Securities Action, as well as in the Federal Derivative
Action, pending resolution of motions to dismiss the Federal
Securities Action.
The Company is unable to predict the financial outcome of these
matters at this time, and any views formed as to the viability of
these claims or the financial exposure, which could result may
change from time to time as the matters proceed through their
course. However, no assurance can be made that these matters,
either individually or together with the potential for similar
suits and reputational harm, will not result in a material
financial exposure, which could have a material adverse effect
upon the Company's financial condition and results of operations.
American Apparel, Inc. -- http://www.americanapparel.net--
engages in the manufacture, distribution, and retail of branded
fashion basic apparel for women, men, children, and babies. The
Company was founded in 1998 and is headquartered in Los Angeles,
Astoria Financial Corporation's wholly owned subsidiary continues
to defend itself against a class action complaint relating to
improper overdraft fees, according to the Company's May 10, 2012
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended March 31, 2012.
On February 27, 2012, a putative class action entitled Ellen
Lefkowitz, individually and on behalf of all Persons similarly
situated v. Astoria Federal Savings and Loan Association was
commenced in the Supreme Court of The State of New York, County of
Queens, against the Company alleging that during the proposed
class period, the Company improperly charged overdraft fees to
customer accounts when accounts were not overdrawn, improperly
reordered electronic debit transactions from the highest to the
lowest dollar amount and processed debits before credits to
deplete accounts and maximize overdraft fee income. The complaint
contains the further assertion that the Company did not adequately
inform its customers that they had the option to "opt-out" of
overdraft services.
The Company was served with the summons and complaint in such
action on February 29, 2012 and its reply was due April 30, 2012.
The Company cannot at this time estimate the possible loss or
range of loss, if any. No assurance can be given at this time
that this litigation against the Company will be resolved
amicably, that this litigation will not be costly to defend, that
this litigation will not have an impact on the Company's financial
condition or results of operations or that, ultimately, any such
impact will not be material.
Headquartered in Lake Square, New York, Astoria Financial
Corporation -- http://www.astoriafederal.com/
-- operates as the bank holding company for Astoria Federal
Savings and Loan Association that provides various banking and
financial products and services in the United States. The Company
was founded in 1888.
The U.S. Department of Agriculture's Food Safety and Inspection
Service disclosed that certain stores in various states received
meatballs and various other frozen, ready-to-eat meat and poultry
products that have been recalled by Buona Vita, Inc.
The FSIS says the list of store locations may not include all
retail locations that have received the recalled product or may
include retail locations that did not actually receive the
recalled product. Therefore, the FSIS says, it is important that
consumers use the product-specific identification information
available at http://is.gd/UGVCcs,in addition to the list of
retail stores, to check meat or poultry products in the consumers'
possession to see if they have been recalled.
Nationwide, State-Wide, or Area-Wide Distribution
Retailer Name Location
------------- --------
Carr's Stores in AK
Cumberland Farms Stores in CT, DE, ME, MA, NH,
NJ, NY, PA, RI, VT
Dominick's Stores in IL
Eagle Stores in AK
Genuardi's Stores in NJ, PA
Hannaford Stores in ME, MA, NH, NY, VT
Pak N Save Stores in CA
Pavilions Stores in CA
Randall's Stores in TX
Roche Brothers Stores in MA
Safeway Stores Nationwide
Sam's Club Stores Nationwide
The Market Stores in CA
Tom Thumb Stores in TX
Vons Stores in CA, NV
Specific Store-Wide Distribution (Stores and Location)
Retailer Name City and State
------------- --------------
Oaken Keg-Liquor Fairbanks, Alaska
A & S Fine Foods Fairfield, Connecticut
Cavallo's Italian Oakville, Connecticut
Specialty Shoppe
Old Mystic General Store Old Mystic, Connecticut
Gnazzo Food Center, Inc. Plainville, Connecticut
Artans Deli & Grocery Shelton, Connecticut
Town Plot Supermarket Waterbury, Connecticut
Felton Market Felton, Delaware
Food Supply South Daytona Beach, Florida
Box N' Save, Inc. Baltimore, Maryland
Box N' Save, Inc. Glen Burnie, Maryland
Ferretti's Market Brewster, Massachusetts
The Butchery Danvers Danvers, Massachusetts
Colella's Supermarket Hopkinton, Massachusetts
Brant Rock Market Marshfield, Massachusetts
Food City Turner Falls, Massachusetts
Ye Olde Butcher Shoppe West Springfield, Massachusetts
Lucci's Supermarket, Inc. Wilmington, Massachusetts
Foodtown North Haledon, New Jersey
Okie's Butcher Shop Surf City, New Jersey
Freshway Valley Grocery Akron, Ohio
Kirtland's Market Kirtland, Ohio
Walmart Poland, Ohio
Brownhelm Country Market Vermilion, Ohio
Sprankle's Neighborhood Apollo, Pennsylvania
Geresbeck's Food Market Baltimore, Pennsylvania
Little Barn Discount Bedford, Pennsylvania
Surplus Outlet Berwick, Pennsylvania
Horning Market Bethel, Pennsylvania
Karns Food Boiling Springs, Pennsylvania
Friedman's Market Butler, Pennsylvania
Thomas' Family Market Dallas, Pennsylvania
Glenwood Foods Ephrata, Pennsylvania
Everett Food-Liner Everett, Pennsylvania
Foodland Galeton, Pennsylvania
Sunnyway Foods Greencastle, Pennsylvania
Karns Food Harrisburg, Pennsylvania
Thomas' Family Market Hazleton, Pennsylvania
Karns Food Hershey, Pennsylvania
Ideal Market Bedford, Johnstown, Pennsylvania
Ideal Market Walnut, Johnstown, Pennsylvania
Market Basket, Inc. Johnstown, Pennsylvania
Mercik's Ideal Market Johnstown, Pennsylvania
IGA Kittanning, Pennsylvania
S. Mandros Imported Foods Lancaster, Pennsylvania
IGA Leechburg, Pennsylvania
Karns Food Lemoyne, Pennsylvania
Kratzer's Store Lewistown, Pennsylvania
Marlin Market Marlin, Pennsylvania
Rhodes Meat Market, Inc. Martinsburg, Pennsylvania
Schrader's Store Meadville, Pennsylvania
Karns Food Mechanicsburg, Pennsylvania
Karns Food Middletown, Pennsylvania
Surplus Outlet Montgomery, Pennsylvania
Peights Country Store Mt. Union, Pennsylvania
Horning Market Myerstown, Pennsylvania
Gold Crown Foodland Nanty Glo, Pennsylvania
Feiling's Produce New Alexandria, Pennsylvania
Karns Food New Bloomfield, Pennsylvania
Mark's Discount Groceries New Oxford, Pennsylvania
Surplus Outlet Northumberland, Pennsylvania
Quinn's Market Peckville, Pennsylvania
Cousin's Fresh Market Lehigh, Philadelphia, PA
Cousin's Fresh Market Philadelphia, Pennsylvania
County Market Punxsutawney, Pennsylvania
Palumbo's Family Meats Ridgway, Pennsylvania
Bilo Foods Ridgway, Pennsylvania
Creekside Discount Rome, Pennsylvania
Friedman's Market Saxonburg, Pennsylvania
Thomas' Family Market Shaverton, Pennsylvania
Reese's Market Tyrone, Pennsylvania
Sprankle's Neighborhood Vandergrift, Pennsylvania
Fendler's Distributing Inc. Wilkes Barre, Pennsylvania
Connie's Supermarket, Inc. Wyalusing, Pennsylvania
Dino's Park-N-Shop Chepachet, Rhode Island
Roch's Market West Warwick, Rhode Island
Dunns Corners Market Westerly, Rhode Island
Kilburn's Convenience Store Manchester, Vermont
Readsboro General Store Readsboro, Vermont
ground beef products that have been recalled by Cargill Meat
Solutions Corporation.
available at http://is.gd/kG0Zco,in addition to the list of
Country Market Oakdale, Connecticut
Brackett's Market Bath, Maine
Will's Shop N' Save Dover-Foxcroft, Maine
Gray Shop N' Save Gray, Maine
Pure Food Market, Inc. Southampton, Massachusetts
IGA Winchendon, Massachusetts
Hunter's Shop 'n Save Wolfeboro, New Hampshire
IGA Brewster, New York
Peck's Market Callicoon, New York
IGA Greenport, New York
Peck's Market Jeffersonville, New York
IGA Southold, New York
Hurley Ridge Market West Hurley, New York
Wilson's Lakeside Market Wilson, New York
G-Mart Wurtsboro, New York
IGA Elmer, New Jersey
IGA Ridgefield Park, New Jersey
Town Market Roebling, New Jersey
Lake Region IGA Hawley, Pennsylvania
In March 2011, purported stockholder class actions pending against
Century Aluminum Company consolidated as In re: Century Aluminum
Company Securities Litigation were dismissed with prejudice by the
U.S. District Court for the Northern District of California. The
plaintiffs in the class actions allege that the Company improperly
accounted for cash flows associated with the termination of
certain forward financial sales contracts which accounting
allegedly resulted in artificial inflation of the Company's stock
price and investor losses. Plaintiffs are seeking rescission of
the Company's February 2009 common stock offering, unspecified
compensatory damages, including interest thereon, costs and
expenses and attorneys' fees. On March 10, 2011, plaintiffs filed
a notice of appeal to the order and judgment entered by the court
on March 3, 2011. The notice of appeal remains pending before the
U.S. Court of Appeals for the Ninth Circuit.
Century Aluminum Company -- http://www.centuryaluminum.com--
through its subsidiaries, produces primary aluminum in the United
States, China, and Iceland. It also holds a 40% joint venture
interest in a carbon anode and cathode facility located in the
Guangxi Zhuang Autonomous Region of south China. The Company was
founded in 1981 and is headquartered in Monterey, California.
Class action lawsuits relating to retiree benefits offered by a
subsidiary of Century Aluminum Company continue to be stayed
pending the parties' talks on the possible resumption of
operations at a Ravenswood, Virginia facility, according to the
Company's May 10, 2012, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended March 31, 2012.
Century Aluminum of West Virginia, Inc. (CAWV) amended its
postretirement medical benefit plan, effective January 1, 2010,
for all current and former CAWV salaried employees, their
dependents and all bargaining unit employees who retired before
June 1, 2006, and their dependents. Effective January 1, 2011,
CAWV no longer provided retiree medical benefits to active
salaried CAWV personnel or any other personnel who retired prior
to November 1, 2010.
The principal changes to the plan as a result of this amendment
were that, upon attainment of age 65, all CAWV provided retiree
medical benefits ceased for retirees and dependents. In addition,
bargaining unit retirees under age 65 and qualified dependents
under age 65 were covered by the salary retiree medical plan which
required out-of pocket payments for premiums, co-pays and
deductibles by participants.
In November 2009, CAWV filed a class action complaint for
declaratory judgment against the USWA, the USWA's local union, and
four CAWV retirees, individually and as class representatives,
seeking a declaration of CAWV's rights to modify/terminate retiree
medical benefits. Later in November 2009, the USWA and
representatives of a retiree class filed a separate suit against
CAWV, Century Aluminum Company, Century Aluminum Master Welfare
Benefit Plan, and various John Does with respect to the foregoing.
These actions, entitled Dewhurst, et al. v. Century Aluminum Co.,
et al., and Century Aluminum of West Virginia, Inc. v. United
Steel, Paper and Forestry, Rubber Manufacturing, Energy, Allied
Industrial & Service Workers International Union, AFL-CIO/CLC, et
al., have been consolidated and venue has been set in the U.S.
District Court for the Southern District of West Virginia.
In January 2010, the USWA filed a motion for preliminary
injunction to prevent the Company from implementing the foregoing
changes while these lawsuits are pending, which was dismissed by
the trial court. In August 2011, the Fourth Circuit Court of
Appeals upheld the District Court's dismissal of the USWA's motion
for preliminary injunction, finding that the USWA had failed to
establish the likelihood of success on the merits of the
underlying matter. In October 2011, CAWV filed a motion to
dismiss plaintiff's first amended complaint with the trial court.
No ruling has yet been made on the motion. In March 2012, the
court granted a stay pending negotiations to restart the Company's
smelter facility in Ravenswood, Virginia. The Ravenswood facility
is owned and operated by CAWV. The plaintiffs have agreed in
principle to settle the lawsuit upon a successful restart of
Ravenswood facility.
The Company has reached an agreement in principle with the CAWV
retirees to make contributions to a voluntary employee beneficiary
association (VEBA) trust that would provide certain health care
benefits to these retirees and their eligible dependents in the
event of a restart of its Ravenswood facility. If this agreement
were entered into, the Company's obligations under the agreement,
including any contributions to the VEBA, would be contingent upon
the occurrence of several future events that are necessary in
order to restart the Ravenswood facility. None of these events,
including the finalization of this agreement, are certain to
China Advanced Construction Materials Group, Inc. continues to
defend stockholder class action lawsuits in Delaware, according to
the Company's May 14, 2012, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended
On July 26, 2011, the Company issued a press release announcing
that its board of directors received a preliminary, non-binding
offer from its Chairman and Chief Executive Officer, Mr. Xianfu
Han, and its Vice Chairman and Chief Operating Officer, Mr. Weili
He, to acquire all of the outstanding shares of the Company's
common stock not currently owned by them in a going private
transaction at a proposed price of $2.65 per share in cash (the
Proposed Transaction).
Since July 29, 2011, multiple class action complaints (the
Stockholder Actions) have been filed against the Company and its
Board of Directors in the Court of Chancery of the State of
Delaware, generally alleging that the Company and all of its
directors breached their fiduciary duties in connection with the
receipt by the Company of a preliminary, non-binding offer from
Xianfu Han, the Company's Chairman and Chief Executive Officer,
and Weili He, the Company's Vice Chairman and Chief Operating
Officer, to acquire all of the outstanding shares of the Company's
Proposed Transaction). The Stockholder Actions have been
consolidated under the caption In re China Advanced Construction
Materials Group Litigation, Consolidated C.A. No. 6729-CS. The
Stockholder Actions seek, among other things, to declare that the
Proposed Transaction is unfair, unjust and inequitable, to enjoin
the Company from taking any steps necessary to accomplish or
implement the Proposed Transaction, and damages in the event the
Proposed Transaction is consummated.
China Advanced Construction Materials Group, Inc. --
http://www.china-acm.com-- through its subsidiaries, produces and
supplies ready mix concrete materials and related technical
services for large scale, high-speed rail, and other complex
infrastructure projects primarily in the People's Republic of
China. The Company was founded in 2002 and is headquartered in
Beijing, China.
Courthouse News Service reports that a federal judge dismissed
class action claims against Choice Manufacturing president Peter
Masi, payment plan servicer Mepco Finance, and Independent Bank
Corp.
A copy of the Order Granting Defendants' Motions to Dismiss in
High v. The Choice Manufacturing Company, et al., Case No. 11-cv-
05478 (N.D. Calif.), is available at:
http://www.courthousenews.com/2012/07/25/Choice%20Company.pdf
Gloria Stitt, Ronald Stitt, Judi Shatzer, Mark Zirlott, and Terri
Louise Zirlott, individually, and on behalf of other members of
the general public similarly situated v. Citibank, N.A., a
national association, and CitiMortgage, Inc., a New York
corporation, Case No. 3:12-cv-03892 (N.D. Calif., July 24, 2012)
is brought based on claims originally asserted as part of the
action captioned Bias et al. v. Wells Fargo & Company et al., Case
No. 4:12-cv-00664-YGR (N.D. Calif., February 10, 2012). However,
by order dated July 13, 2012, the District Court found that the
claims with respect to the Defendants in this action were not
properly joined in a single action with the claims against the
other defendants in the Bias action.
This lawsuit concerns fraudulent practices committed by the
Defendants in connection with their home mortgage loan servicing
businesses, the Plaintiffs argue. They allege that the Defendants
use automated mortgage loan management systems, made up of an
enterprise of subsidiaries, inter-company departments, divisions,
and third-party "property preservation" vendors, to engage in a
scheme to conceal the unlawful assessment of improperly marked-up
or unnecessary third party fees for default-related services,
cheating borrowers who can least afford it.
The Stitts are citizens of New York, Ms. Shatzer is a citizen of
Maryland, and the Zirlotts are citizens of Alabama.
Citibank is a national bank based in New York. Citibank is a
subsidiary of Citicorp. CitiMortgage is a subsidiary of Citibank.
CitiMortgage is a New York corporation based in O'Fallon,
Missouri.
The Plaintiffs are represented by:
Daniel Alberstone, Esq.
Roland Tellis, Esq.
Mark Pifko, Esq.
BARON & BUDD, P.C.
15910 Ventura Boulevard, Suite 1600
E-mail: dalberstone@baronbudd.com
rtellis@baronbudd.com
mpifko@baronbudd.com
Bruce Henderson, writing for Charlotte Observer, reports that a
San Francisco law firm said on July 24 it has filed a class-action
lawsuit on behalf of investors over the chief executive switch
following the Duke Energy-Progress Energy merger.
The firm, Kessler Topaz Meltzer & Check, said it filed the suit in
the U.S. District Court for Eastern North Carolina on behalf of
people who bought Duke stock between June 28 and July 9.
The suit claims that Duke and its officers broke securities law by
misrepresenting who would lead the combined companies. Progress
CEO Bill Johnson was forced out as chief executive of the new Duke
hours after the merger closed July 2.
Eastman Chemical Company was able to negotiate a memorandum of
understanding in May to resolve a consolidated class action
complaint relating to its acquisition of Solutia, Inc., according
to the Company's May 10, 2012, Form 10-Q filing with the U.S.
On January 26, 2012, the Company entered into a definitive
agreement to acquire Solutia Inc., a leader in performance
materials and specialty chemicals. Solutia, headquartered in St.
Louis, Missouri, produces and sells a diverse portfolio of
performance materials and specialty chemicals. The transaction
remains subject to approval by Solutia's shareholders and receipt
of required regulatory approvals as well as other customary
closing conditions. The transaction is expected to close in mid-
On February 2, 2012, a putative shareholder class and derivative
action, styled Jennifer Howard v. Jeffry N. Quinn, et al., was
filed against Solutia, its board of directors (the "Solutia
Board") and Eastman in the Circuit Court of St. Louis County,
Missouri (the "Missouri Action"). On February 7, 2012, a second
putative shareholder class action, styled John C. Dewan v. Solutia
Inc., was filed against Solutia, the Solutia Board, Eastman and
Eastman's subsidiary Eagle Merger Sub Corporation ("Merger Sub")
in the Chancery Court of Delaware. On February 14, 2012, two
additional putative shareholder class actions, styled Joseph C.
Huttemann v. Jeffry N. Quinn, et al., and David Wolfe v. Solutia
Inc., et al., respectively, were filed against Solutia, the
Solutia Board, Eastman and Merger Sub in the Chancery Court of
Delaware (together with the putative shareholder class action
filed on February 7, 2012, the "Delaware Actions").
The Missouri Action and the Delaware Actions generally allege that
the Solutia Board breached its fiduciary duties to Solutia
stockholders by, among other things, approving Eastman's proposed
acquisition of Solutia for allegedly inadequate consideration,
following an allegedly unfair sale process, and that Eastman and
Merger Sub aided and abetted the Solutia Board's alleged breaches
of fiduciary duty. The Delaware Actions further allege that the
Solutia Board breached its fiduciary duties by agreeing to terms
in the Merger Agreement that favor Eastman and deter alternative
bids. The complaints in the Missouri Action and the Delaware
Actions seek, among other things, an injunction against the
completion of Eastman's proposed acquisition of Solutia and
attorneys' fees and expenses incurred in connection with the
action. The complaint in the Missouri Action further seeks
rescission of Eastman's proposed acquisition of Solutia in the
event it is completed, and any damages arising from the
defendants' alleged breaches. Eastman and Merger Sub each believe
that all the allegations are without merit and intend to
vigorously defend themselves against the allegations in these
On February 21, 2012, the Chancery Court of Delaware entered an
order consolidating the Delaware Actions (the "Consolidated
Delaware Action").
On March 5, 2012, the Circuit Court of St. Louis County, Missouri
entered an order staying the Missouri Action in favor of the
Consolidated Delaware Action.
On March 22, 2012, plaintiffs in the Consolidated Delaware Action
filed a Verified Consolidated Amended Class Action Complaint (the
"Consolidated Amended Complaint"), styled In re Solutia Inc.
Shareholders Litigation, which generally alleges that the Solutia
Board breached its fiduciary duties to Solutia stockholders by,
among other things, approving Eastman's proposed acquisition of
Solutia for allegedly inadequate consideration, following an
allegedly unfair sale process, and agreeing to terms in the Merger
Agreement that favor Eastman and deter alternative bids. The
Consolidated Amended Complaint also generally alleges that the
Solutia Board breached its fiduciary duties to Solutia
stockholders by failing to disclose in the Form S-4 registration
statement filed on March 7, 2012 certain material information
concerning events leading up to the announcement of the proposed
acquisition and relating to the review and analysis of the
transaction by Solutia management, and by the financial advisors
to Solutia and the Solutia Board. The Consolidated Amended
Complaint further alleges that Eastman and Merger Sub aided and
abetted the Solutia Board's alleged breaches of fiduciary duties.
The Consolidated Amended Complaint seeks, among other things, an
injunction against the completion of Eastman's proposed
acquisition of Solutia, rescission of Eastman's proposed
acquisition of Solutia in the event it is completed, any damages
On May 3, 2012, the parties to the Consolidated Delaware Action
entered into a Memorandum of Understanding (the MOU) to provide
for the settlement of all claims related to Eastman's proposed
acquisition of Solutia. The settlement provides for, among other
things, a stay of all proceedings in the Consolidated Delaware
Action, including plaintiffs' request for a preliminary injunction
against consummation of Eastman's proposed acquisition of Solutia,
the inclusion of additional disclosures with respect to various
aspects of Eastman's proposed acquisition of Solutia in the proxy
statement/prospectus regarding Eastman's proposed acquisition of
Solutia, and the entry of a stipulation certifying a mandatory
class of all Solutia stockholders. The settlement is subject to
final documentation and court approval, and is conditioned on
consummation of Eastman's proposed acquisition of Solutia. Under
the MOU, plaintiffs' counsel in the Consolidated Delaware Action
will petition the court for an award of attorneys' fees and
expenses. The MOU does not specify any particular fee to be
awarded to plaintiffs' counsel in the Consolidated Delaware
Action, but it does require the parties to negotiate those fees
and expenses in good faith. The decision to award, or not award,
the requested attorneys' fees and expenses will be within the
discretion of the Chancery Court of Delaware, and the
effectiveness of the settlement is not conditioned upon the award
of attorneys' fees and expenses. If the settlement is approved by
the Chancery Court of Delaware, it will resolve and release, on
behalf of the entire class of Solutia stockholders, all claims
that were or could have been brought by them challenging any
aspect of Eastman's proposed acquisition of Solutia, the merger
agreement, and any disclosures made in connection therewith, among
other claims.
Headquartered in Kingsport, Tennessee, Eastman Chemical Company is
a major producer of acetate tow, and a broad array of specialty
plastics and resins, as well as both commodity and specialty
chemicals. Eastman reported sales of roughly
$7.1 billion for the year ended December 31, 2011.
Maria Dinzeo at Courthouse News Service reports that with a class-
action settlement in the works, Electronic Arts has voluntarily
given up some of its hold on the market for football video games.
The Redwood City, Calif.-based developer agreed to wait five years
before seeking renewal of exclusive licensing deals with the
National Collegiate Athletic Association and the Collegiate
Licensing Company that are set to expire in 2014.
After four years of litigation, the game developer will pay $27
million to a class of gamers who claimed that these agreements
monopolized the market for football video games and drove up
EA will keep its licensing deal with the National Football League,
but it will wait five years to do the same with the Arena Football
League after that exclusive trademark license lapses.
In a 2008 complaint, Geoffrey Pecover and Jeffrey Lawrence claimed
that EA's agreements with the NFL, NCAA, CLC and AFL killed off
competing football games. Left in control of the market, EA
allegedly jacked game prices to up to $60 per unit.
Settlement talks with EA started in July 2011. The proposed deal
offers cash payments of either $1.95 or $6.79, depending on the
type of video game title, to consumers who bought "Madden NFL,"
"NCAA Football" or "Arena Football League" between January 1,
2005, and June 21, 2012.
Continued litigation would likely take any award for consumers off
the table, according to the agreement.
Electronic Arts challenged several aspects of the class action,
including the allegedly too-narrow characterization of a relevant
market. It also said that there was no proof of above-market
U.S. District Judge Claudia Wilken is expected to look at the
settlement on Sept. 27, 2012.
A copy of the Unopposed Notice of Motion and Motion for
Preliminary Approval of Class Action Settlement in Pecover, et al.
v. Electronic Arts, Inc., Case NO. 08-cv-02820 (N.D. Calif.), is
http://www.courthousenews.com/2012/07/25/ea.pdf
Jeff D. Friedman, Esq.
Shana E. Scarlett, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
715 Hearst Avenue, Suite 202
E-mail: jefff@hbsslaw.com
shanas@hbsslaw.com
Stuart M. Paynter, Esq.
THE PAYNTER LAW FIRM PLLC
1200 G Street N.W., Suite 800
E-mail: stuart@smplegal.com
Steve W. Berman, Esq.
1918 Eighth Avenue, Suite 3300
E-mail: steve@hbsslaw.com
FriendFinder Networks Inc. is awaiting a ruling on its motion to
dismiss an amended securities class action complaint in Florida,
On November 11, 2011, a putative shareholder class action was
filed in the U.S. District Court for the Southern District of
Florida by Greenfield Childrens Partnership, on behalf of
investors who purchased the Company's common stock pursuant to its
initial public offering, against the Company, Ladenburg Thalmann &
Co., Inc. and Imperial Capital LLC, the underwriters in the
initial public offering, and the Company's directors and certain
of the Company's executive officers. The complaint alleges, among
other things, that the initial public offering documents contained
certain false and misleading statements and seeks an unspecified
amount of compensatory damages. In March 2012, the plaintiffs
filed an amended complaint alleging all of the same causes of
action and adding additional factual allegations and in response
to the Amended Complaint, the Company filed its Motion to Dismiss.
The Company believes it has meritorious defenses to all claims and
is vigorously defending the lawsuit.
FriendFinder Networks Inc., together with Various, Inc and its
other wholly owned subsidiaries, is an internet and technology
company providing services in the social networking and web-based
video sharing markets.
Courthouse News Service reports that GenOn Energy is selling
itself too cheaply through an unfair price to NRG Energy, for the
"bargain basement price" of $2.20 a share, or $1.7 billion,
shareholders say in a class action in Harris County Court.
A copy of the Petition for Breach of Fiduciary Duty in Akel, et
al. v. Genon Energy Inc., et al., Case No. 2012-42090 (Tex. Dist.
Ct., Harris Cty.), is available at:
http://www.courthousenews.com/2012/07/25/ElectricMerger.pdf
The Plaintiff is represented by:
Joe Kendall, Esq.
Jamie J. McKey, Esq.
Daniel Hill, Esq.
KENDALL LAW GROUP, LLP
E-mail: jkendall@kendalllawgroup.com
jmckey@kendalllawgroup.com
dhill@kendalllawgroup.com
Randall J. Baron, Esq.
A. Rick Atwood, Jr., Esq.
David T. Wissbroecker, Esq.
Edward M. Gergosian, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
655 West Broadway, Suite 1900
E-mail: randyb@rgrdlaw.com
ricka@rgrdlaw.com
DWissbroecker@rgrdlaw.com
EGergosian@rgrdlaw.com
Richard A. Maniskas, Esq.
RYAN & MANISKAS, LLP
995 Old Eagle School Road, Suite 311
Alfred G. Yates, Jr., Esq.
Gerald L. Rutledge, ESq.
LAW OFFICE OF ALFRED G. YATES, JR., P.C.
519 Allegheny Building
429 Forbes Avenue
A securities class action complaint remains pending against
GenVec, Inc. in Maryland, according to the Company's May 10, 2012,
On February 3, 2012, a putative class action lawsuit was commenced
against the Company, Paul H. Fischer, Douglas J. Swirsky and Mark
O. Thornton, in the U.S. District Court for the District of
Maryland, captioned Satish Shah v. GenVec, Inc., et al. The
plaintiff alleges that the Company and the individual defendants
violated Section 10(b) of the Securities Exchange Act of 1934,
Rule 10b-5 promulgated thereunder and Section 20(a) of the
Exchange Act. The plaintiff purports to be acting on behalf of a
class consisting of purchasers or acquirers of the Company's
common stock between March 12, 2009 and March 30, 2010 (the "Class
Period"). The plaintiff alleges that, as a result of the
defendants' allegedly false misleading statements or omissions
concerning the Company's prospects, the Company's common stock
traded at artificially inflated prices throughout the Class
Period. The plaintiff seeks compensatory damages and fees and
costs, among other relief, but has not specified the amount of
damages being sought in the action. The parties have stipulated,
and the Court has ordered, that the defendants' responses to the
pending complaint are appropriately deferred until after the
appointment of a lead plaintiff and after the approval of lead
counsel. On or about April 3, 2012, a group of individuals
claiming to be investors filed a motion seeking to be appointed
lead plaintiff and seeking approval of their choice of lead
plaintiffs' counsel. On April 26, 2012, the Court appointed this
group of individuals as lead plaintiff, approved their choice of
lead plaintiffs' counsel, and approved a schedule proposed by the
parties that, among other things, provides for the lead plaintiffs
to file an amended complaint within 55 days.
GenVec, Inc. -- http://www.genvec.com/-- operates as a
biopharmaceutical company that uses differentiated, proprietary
technologies to create therapeutics and vaccines. GenVec is
working with various companies and organizations, such as
Novartis, Merial, and the U.S. Government to support a portfolio
of product programs that address the prevention and treatment of
human and animal health concerns. Founded in 1992, the Company is
based in Gaithersburg, Maryland.
Golfsmith International Holdings, Inc. filed a Form 8-K with the
U.S. Securities and Exchange Commission on July 23, 2012, pursuant
to a memorandum of understanding regarding the settlement of
certain litigation relating to the Agreement and Plan of Merger
(the "Merger Agreement"), dated May 11, 2012, among the Company,
Golf Town USA Holdings Inc. ("Golf Town") and Major Merger Sub,
Inc. ("Merger Sub").
The Merger Agreement provides that, on the terms and subject to
the conditions set forth in the Merger Agreement, Merger Sub will
merge with and into the Company (the "Merger"), with the Company
continuing as the surviving corporation and a wholly owned
subsidiary of Golf Town.
As previously disclosed, two putative class action lawsuits were
filed in connection with the Merger. The actions are entitled
Bushansky v. Golfsmith International Holdings, Inc., et al., No.
D-1-GN-12-001495 (the "Bushansky Action"), pending in the District
Court of Travis County, Texas, 126th Judicial District (the
"Court") and Fleener v. Hanaka, et al., Civil Action No. 1:12-CV-
563 (the "Fleener Action"), pending in the United States District
Court for the Western District of Texas Austin Division. Such
lawsuits were filed against the Company, Golf Town, Merger Sub,
the Company's directors, and, in the case of the Fleener Action,
against Atlantic Equity Partners III, L.P. ("AEP"). The
complaints allege, among other things, that the Company's
directors and certain other defendants breached their fiduciary
duties in connection with the Merger, that Golf Town and Merger
Sub and certain other defendants aided and abetted the directors'
alleged breach of those fiduciary duties, and that the Preliminary
Information Statement on Schedule 14C filed with the SEC by the
Company on June 4, 2012 contained material misstatements and
omissions. The plaintiffs sought injunctive relief concerning the
alleged fiduciary breaches and prohibiting defendants from
consummating the Merger, other forms of equitable relief, and
compensatory and/or rescissory damages.
On July 23, 2012, the Company, the Company's directors, Golf Town
and Merger Sub entered into a memorandum of understanding with the
plaintiffs in the Bushansky Action and the Fleener Action
regarding the settlement of these actions.
In connection with the proposed settlement, the Company agreed not
to assert that a demand for appraisal by a holder of the Company's
common stock who has not surrendered any of such holder's common
stock in exchange for any Merger Consideration (as defined in the
Merger Agreement) is not timely under Section 262 of the Delaware
General Corporate Law if such holder who otherwise satisfies the
requirements of Section 262 submits a written demand for appraisal
within 20 calendar days of the first date that each of the
following is satisfied: (i) the notice required by Section
262(d)(2), as revised to reflect the terms of the settlement, is
delivered to stockholders in accordance with Section 262(d)(2) and
(ii) the filing of this 8-K.
The Company believes that no further supplemental disclosure is
required under applicable laws; however, to avoid the risk of the
stockholder class actions delaying or adversely affecting the
Merger and to minimize the expense of defending such actions, the
Company has also agreed, pursuant to the terms of the proposed
settlement, to make certain supplemental disclosures related to
the Merger. Subject to completion of certain confirmatory
discovery by counsel to the plaintiffs, the memorandum of
understanding stipulates that the parties will enter into a
stipulation of settlement. The stipulation of settlement will be
subject to customary conditions, including court approval
following notice to the Company's stockholders. In the event that
the parties enter into a stipulation of settlement, a hearing will
be scheduled at which the Court will consider the fairness,
reasonableness, and adequacy of the settlement. If the settlement
is finally approved by the Court, it is anticipated that it will
resolve and release all claims in all actions that were or could
have been brought challenging any aspect of the Merger, the Merger
Agreement, and any disclosure made in connection therewith. There
can be no assurance that the parties will ultimately enter into a
stipulation of settlement or that the Court will approve the
settlement even if the parties were to enter into such
stipulation. In such event, the proposed settlement as
contemplated by the memorandum of understanding may be terminated.
Courthouse News Service reports that Hershey failed to pay hourly
merchandisers overtime or timely wages, and it did not provide
them with meal and rest periods, a class claims.
A copy of the Complaint in Rodrigues v. The Hershey Company, Case
No. RG12640247 (Calif. Super. Ct., Alameda Cty.), is available at:
http://www.courthousenews.com/2012/07/25/hershey.pdf
R. Rex Parris, Esq.
Alexander R. Wheeler, Esq.
Kitty Szeto, Esq.
R. REX PARRIS LAW FIRM
43364 10th Street West
Edwin Aiwazian, Esq.
Arby Aiwazian, Esq.
Maria F. Nickerson, Esq.
LAWYERS FOR JUSTICE, PC
410 West Arden Avenue, Suite 203
IMH Financial Corporation continues to await court approval of a
tentative settlement in principle to resolve a consolidated class
action lawsuit captioned In re IMH Secured Loan Fund Unitholders
Litigation, according to the Company's May 15, 2012, Form 10-Q
As a result of the unprecedented disruptions in the general real
estate and related markets and the rapid decline in the global and
U.S. economies, on October 1, 2008, pursuant to its operating
agreement, IMH Secured Loan Fund, LLC (the "Fund"), the Company's
predecessor entity, suspended member redemption requests. In
order to preserve liquidity in the ongoing credit crisis, the Fund
suspended regular monthly distributions to members in the second
quarter of 2009. On June 18, 2010, following approval by members
representing 89% of membership units of the Fund voting on the
matter, the Fund became internally-managed through the acquisition
of Investors Mortgage Holdings, Inc. (the "Manager") and converted
into a Delaware corporation in a series of transactions, the
Conversion Transactions.
On June 18, 2010, the Company whereby the Fund was converted into
a Delaware corporation and became internally managed through the
acquisition of the Manager. In the Conversion Transactions, the
Company also acquired IMH Holdings, LLC ("Holdings"), which is a
Delaware limited liability company and serves as a holding company
for two wholly-owned subsidiaries, IMH Management Services, LLC,
an Arizona limited liability company, and SWI Management, LLC, an
Arizona limited liability company ("SWIM"). IMH Management
provides the Company and its affiliates with human resources and
administrative services and SWIM manages the Strategic Wealth &
Income Fund, LLC (the "SWI Fund").
Various disputes arose relating to the consent
solicitation/prospectus used in connection with seeking member
approval of the Conversion Transactions, and the Company was named
in various lawsuits containing allegations and claims that
fiduciary duties owed to Fund members and to the Fund were
breached because, among other things, the Conversion Transactions
were unfair to Fund members, constituted self-dealing and because
the information provided about the Conversion Transactions and
related disclosures was false and misleading. The claims were
consolidated into the putative class action lawsuit captioned In
re IMH Secured Loan Fund Unitholders Litigation pending in the
Court of Chancery in the State of Delaware against the Company,
certain affiliated and predecessor entities, and certain former
and current of the Company's officers and directors ("Fund
Litigation").
On January 31, 2012, the Company reached a tentative settlement in
principle to resolve all claims asserted by the plaintiffs in the
Fund Litigation, other than the claims of one plaintiff. The
tentative settlement in principle, memorialized in a Memorandum of
Understanding (MOU) is subject to certain class certification
conditions, confirmatory discovery and final court approval
(including a fairness hearing). The MOU contemplates a full
release and settlement of all claims, other than the claims of the
one non-settling plaintiff, against the Company and the other
defendants in connection with the claims made in the Fund
Litigation.
The following are some of the key elements of the tentative
settlement:
- The Company will offer $20.0 million of 4% five-year
subordinated notes to members of the Class in exchange for
2,493,765 shares of IMH common stock at an exchange rate of
$8.02 per share;
- The Company will offer to Class members that are accredited
investors $10.0 million of convertible notes with the same
financial terms as the convertible notes previously issued to
NW Capital;
- The Company will deposit $1.6 million in cash into a
settlement escrow account (less $0.23 million to be held in a
reserve escrow account that is available for use by us to
fund the Company's defense costs for other unresolved
litigation) which will be distributed (after payment of
notice and administration costs and any amounts awarded by
the Court for attorneys' fees and expense) to Class members
in proportion to the number of the Company's shares held by
them as of June 23, 2010;
- The Company enact certain agreed upon corporate governance
enhancements, including the appointment of two independent
directors to the Company's board of directors upon
satisfaction of certain conditions (but in no event prior to
December 31, 2012) and the establishment of a five-person
investor advisory committee (which may not be dissolved until
such time as we have established a seven-member board of
directors with at least a majority of independent directors);
- It provides additional restrictions on the future sale or
redemption of the Company's common stock held by certain of
the Company's executive officers.
The Company has vigorously denied, and continue to vigorously
deny, that it has committed any violation of law or engaged in any
of the wrongful acts that were alleged in the Fund Litigation, but
it believes it is in its best interests and the interests of its
stockholders to eliminate the burden and expense of further
litigation and to put the claims that were or could have been
asserted to rest.
As of March 31, 2012 and December 31, 2011, the Company has
accrued the cash payment required of $1.6 million, net of related
anticipated insurance proceeds. However, it has not included any
other adjustments relating to the potential repurchase of stock in
exchange for the issuance of convertible notes because of the
uncertainty of timing and of the fair values of such instruments
as of the date of settlement. At the time that this amount is
estimable, the Company will provide for the appropriate amounts
resulting from the resolution of this matter.
There can be no assurance that the court will approve the
tentative settlement in principle, the Company relates.
Furthermore, the judicial process to ultimately settle this action
is estimated to take a minimum of six to nine months or longer.
If not approved, the tentative settlement as outlined in the MOU
may be terminated and the Company will continue to vigorously
defend this action.
IMH Financial Corporation is a Scottsdale, Arizona-based real
estate lender and investor.
A securities class action complaint against JBI, Inc. remains
pending, according to the Company's May 15, 2012, Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended March 31, 2012.
On July 28, 2011, one of the Company's shareholders filed a class
action lawsuit against the Company and Messrs. Bordynuik and
Baldwin on behalf of purchasers of its securities between August
28, 2009 and July 20, 2011. The complaint in that case, filed in
federal court in Nevada, alleges that the defendants made false or
misleading statements, or both, and failed to disclose material
adverse facts about the Company's business, operations, and
prospects in press releases and filings made with the SEC.
Specifically, the lawsuit alleges that the defendants made false
or misleading statements or failed to disclose material
information, or a combination thereof regarding: (1) that the
media credits were substantially overvalued; (2) that the Company
improperly accounted for acquisitions; (3) that, as such, the
Company's financial results were not prepared in accordance with
Generally Accepted Accounting Principles; (4) that the Company
lacked adequate internal and financial controls; and (5) that, as
a result of the above, the Company's financial statements were
materially false and misleading at all relevant times. The
Company's response to the Complaint is not due until a lead
plaintiff is appointed, which has not yet occurred. The Company
cannot predict the outcome of the class action litigation at this
Grant & Eisenhofer P.A. has filed a class action lawsuit on
July 13, 2012 in the Supreme Court of the State of New York
against JPMorgan Chase & Co.
JPMorgan, unbeknownst to its customers, has directed its clients
into its own JPMorgan funds even when those funds were not
suitable investments. JPMorgan did so to earn increased fees at
the expense of their clients. As a result of Defendant's conduct,
the Securities and Exchange Commission ("SEC"), the Financial
Industry Regulatory Authority ("FINRA"), the Manhattan district
attorney, and officials in New Jersey and Delaware are
investigating Defendant's sales practices. All current or former
JPMorgan clients who invested in JPMorgan mutual funds from
January 1, 2007 through the present are eligible to participate in
the suit.
The lawsuit seeks to recover (1) all fees paid to JPMorgan in
connection with purchases of JPMorgan's proprietary funds and
investments, (2) all ongoing management fees collected by JPMorgan
on client portfolios that contained positions in JPMorgan
proprietary funds and investments, (3) all other fees that
JPMorgan received as a results of its clients' investments in
JPMorgan proprietary funds and investments, and (4) compensatory,
consequential, and punitive damages recoverable at law, equity, or
under N.Y. GBS Law Sections 349 and 350.
If you invested in a JPMorgan fund from January 1, 2007 to the
present, please contact Grant & Eisenhofer P.A. at 888-554-3529 or
info@gelaw.com
Grant & Eisenhofer -- http://www.gelaw.com-- represents investors
and shareholders internationally in securities class actions,
corporate governance actions and derivative actions.
The Lin Law Firm, A Professional Law Corporation, has filed a
class action lawsuit against Lime Energy Co. and certain of its
officers for alleged violations of the federal securities laws in
the United States District Court, Northern District of Illinois,
under case no. 12 C 5704. The case is brought on behalf of a
class consisting of all persons or entities who purchased Lime
Energy securities between May 13, 2010 and July 17, 2012,
inclusive. If you are a shareholder who purchased Lime Energy
securities during the Class Period, you have until September 18,
2012 to ask the Court to appoint you as Lead Plaintiff for the
On July 17, 2012, the Company disclosed that the Audit Committee
of the Board of Directors of Lime Energy had determined that the
Company's consolidated financial statements filed with the SEC on
Form 10-K for the periods ended December 31, 2010 and December 31,
2011, and quarterly report on Form 10-Q for the period ended March
31, 2012, may no longer be relied upon. Specifically, the Company
stated that, "[i]n some cases, it appears that non-existent
revenue may have been recorded" and that "[i]n other cases, it
appears that revenue may have been recorded earlier than it should
have been."
On this news, shares of the Company declined approximately 45%, to
close on July 17, 2012, at $1.12 per share, on unusually heavy
The Complaint filed by The Lin Law Firm alleges that during the
Class Period, Defendants made false and misleading statements or
failed to disclose that:(1) the Company was improperly recording
revenue; (2) the Company's revenue and financial results were
overstated; (3) the Company's financial statements were not
prepared in accordance with Generally Accepted Accounting
Principles ("GAAP"); (4) the Company lacked adequate internal and
financial controls; and (5) the Company's financial statements
were materially false and misleading at all relevant times.
If you purchased Lime Energy shares between May 13, 2010 and
July 17, 2012, and are interested in being a Lead Plaintiff in the
class action lawsuit, or if you have any questions concerning this
announcement or your rights, please contact Elizabeth Lin, Esq.,
The Lin Law Firm, APLC, by telephone at (866) 864-3898 or (909)
595-5522, or by email to elizabethL@thelinlawfirm.com
You have until September 18, 2012, to request that the Court
appoint you as a Lead Plaintiff.
The Lin Law Firm, A Professional Law Corporation, --
http://www.thelinlawfirm.com-- is a litigation law firm committed
to representing investors nationwide in securities matters and
protecting investors against corporate wrongdoing.
Ed Anderson, writing for The Times-Picayune, reports that a total
of 18,573 plaintiffs in a lawsuit against the state-run property
insurance company should get at least $3,000 each when the claims
are paid this year or in early 2013, lawyers for the group said on
July 24. Fred Herman, one of the attorneys representing the
plaintiffs who alleged that Louisiana Citizens Property Insurance
Corp. did not properly follow its claims policy after Hurricanes
Katrina and Rita in 2005, said approximately $105 million for the
payments was turned over to the Jefferson Parish Sheriff's Office
late on July 23.
The next step will be a hearing on how the money will be paid out
and how much the attorneys' fees and other legal costs will run.
Mr. Herman said that the plaintiffs in the lawsuit could get paid
between November and January.
Mr. Herman said 24th Judicial District Court Judge Henry Sullivan
in Gretna, who has handled the case since it was filed in 2006,
has a status conference with the lawyers scheduled for Aug. 3 to
start working through the details of the cash distribution.
"There is no way it can be stopped at this point now," Mr. Herman
said of the long-delayed payout to the members of the class-action
lawsuit titled Geraldine Oubre et al. vs. Louisiana Citizens Fair
Plan. "This is the final chapter in this part of the saga."
Mr. Herman said "several thousand" other claimants may also be
involved in a separate award.
"As far as we are concerned they have come to the end of the
road," said Wiley Beevers, another attorney in the class-action
litigation. "Citizens has exhausted all legal remedies."
Richard Robertson, president and chief executive officer of
Citizens, agreed. "The money is already gone" from the Citizens
bank account at Regions Bank, he said.
Insurance Commissioner Jim Donelon said, "It is in their account.
It is all over."
Mr. Herman said that award to the plaintiffs could be up to $4,000
each based on how much Judge Sullivan awards to the lawyers for
their fees. Based on past procedures, attorneys representing the
class could get 25 percent to 40 percent of the award, he said.
Citizens has battled paying the claims for years, alleging that
Judge Sullivan granted the judgment without giving the state-run
insurer of last resort a proper hearing and due process. The case
at one point wound up before the U.S. Supreme Court, which refused
to grant relief.
Judge Sullivan originally awarded a judgment of $92.86 million to
the members of the class action in 2009 but that has grown by
$10,000 a day in interest since.
Mr. Herman said the approximately $105 million was turned over
shortly after the state Supreme Court refused to delay the
payments in a lawsuit that Citizens filed against Regions Bank,
where the cash was held in an account.
The Baton Rouge-based 1st Circuit Court of Appeal took less than
three hours on July 20 to deny Citizens' claim against Regions,
setting up Monday's last-ditch appeal and rejection.
Mr. Robertson said that even with the award, Citizens "has more
than adequate cash reserves to operate smoothly."
"We have a balance of $100 million to $110 million in cash
reserves" but a large payout of claims from a storm this year
"could put enormous pressure on the company."
Jamie Ross at Courthouse News Service reports that Sheriff Joe
Arpaio's comments in press releases, in his book, and in his notes
to deputies were used against him on July 24 as he took the stand
in Federal Court. Mr. Arpaio twice denied writing book excerpts
the plaintiffs' attorney read him, including: "My parents, like
all other immigrants exclusive to those from Mexico, held to
certain hopes and truths."
Mr. Arpaio, the self-proclaimed toughest sheriff in America, is
defending himself from a class action accusing him of using racial
profiling to target Latinos for stops and arrests.
Stanley Young, plaintiffs' attorney, questioned Mr. Arpaio about a
passage in his book, "Joe's Law: America's Toughest Sheriff Takes
on Illegal Immigration, Drugs and Everything Else That Threatens
America," that claimed: "My parents, like all other immigrants
exclusive to those from Mexico, held to certain hopes and truths."
Mr. Arpaio denied writing the passage, claiming his co-author, Len
Sherman, wrote much of the book.
"Is it a fair reading in the sentence of the book . . . that it's
saying that immigrants from other places in the world had the same
hopes and truths that your parents had, but people from Mexico did
not?" Mr. Young asked.
"Well, that's not fair," Mr. Arpaio replied. "People from Mexico
have the same hopes and truths."
Mr. Young asked Mr. Arpaio the meaning of another passage from the
sheriff's book: "A growing movement among not only Mexican
nationals but also some Mexican-Americans contends that the United
States stole the territory that is now California, Arizona, and
Texas."
Mr. Arpaio replied: "Once again, I didn't write this; my co-author
did."
Attorney Young asked: "Before the publication of your book, you
did look at the whole manuscript, correct?"
"It may not have been every line of the manuscript, but in general
terms I looked at it," Mr. Arpaio said.
In an April 2009 Maricopa County Sheriff's Office press release
presented as evidence, Mr. Arpaio wrote that his deputies were at
risk for swine flu from their contact with illegal immigrants.
"We were concerned with the people incarcerated in our jails
because of this epidemic in Mexico, and I believe that we showed
that a high percentage of people in our jails came from south of
Mexico City," Mr. Arpaio said.
"You were trying to associate people from Mexico with this
disease," Mr. Young said.
"No, I was just being concerned," Mr. Arpaio responded.
Mr. Arpaio admitted he keeps a file with copies of press articles
and letters from constituents, and said he writes thank-you
letters to everyone who writes him.
In one letter, dated Aug. 1, 2008, a constituent asked Mr. Arpaio
to investigate McDonald's employees: "Anyway, when I was in the
McDonalds at Bell Road and Boswell, (next to the Chase Bank) this
noon, there was not an employee in sight, or within hearing, who
spoke English as a first language -- to my dismay. From the staff
at the registers to the staff back in the kitchen area, all I
heard was Spanish -- except when they spoke haltingly to a
customer.
You might want to check this out."
Mr. Young told Mr. Arpaio: "You forwarded this letter to Chief
Sands, and you wrote a note, in your handwriting: For Our
Operation. The operation you were referring to was the Sun City
crime suppression operation. You sent Chief Sands this
information about people speaking Spanish at a McDonald's."
Mr. Arpaio said he gives a copy of every letter he receives about
illegal immigration to Chief Brian Sands, who determines the areas
for crime suppression sweeps.
"You make suggestions to him as where to do the crime suppression
sweeps," Mr. Young said. "You are the sheriff, and if you tell
Chief Sands to do something, he'll do it."
"I don't micromanage, but I presume he does," Mr. Arpaio replied.
In another letter received by Mr. Arpaio, dated June 19, 2008, a
constituent wrote: "If you have dark skin, then you have dark
skin! Unfortunately that is the look of the Mexican illegal who
are here ILLEGALLY!"
Mr. Young asked Mr. Arpaio if he had ever written back to a
constituent that he would not "go after other people based on
their race, ethnicity, or language."
The attorney asked: "Do you think it would be in keeping with your
public responsibilities . . . for you to send back with your thank
you letter, you know, being Mexican is not a crime. Speaking
Spanish is not a crime."
"I'm not going to give someone a history lesson," Mr. Arpaio said.
"I'm just thanking them for their concern and input.
"I like to think that the public understands what we do with our
illegal immigration activities," Mr. Arpaio added.
The court also heard testimony from Deputy Sheriff Louis DiPietro,
who pulled over a truck, allegedly for speeding, during a crime
suppression sweep. Manuel de Jesus Ortega Melendres, the lead
plaintiff in the civil rights class action, was a passenger in the
When asked about the legality of people working as day laborers,
Mr. DiPietro said that in his experience, the majority are here
illegally.
"You don't have to show an ID; that type of work would be easier
for a person in this country illegally to get because they don't
have the proper paperwork," Mr. DiPietro said.
The trial was set to resume on July 25.
In an effort to prevent children from suffering further harm, the
U.S. Consumer Product Safety Commission (CPSC) staff filed an
[http://www.cpsc.gov/cpscpub/prerel/prhtml12/12234.pdf]on
July 25, 2012, against Maxfield & Oberton Holdings LLC, of New
York, alleging that Buckyballs and Buckycubes contain a defect in
the design, packaging, warnings, and instructions, which pose a
substantial risk of injury to the public. The Commission voted 3-
1 to approve the filing of the complaint, which seeks, among other
things, an order that the firm stops selling Buckyballs and
Buckycubes, notify the public of the defect, and offer consumers a
In response to a request from CPSC staff, a number of retailers
have voluntarily agreed to stop selling Buckyballs, Buckycubes,
and similar products manufactured by other companies. CPSC staff
called upon these retailers to cease distribution of high-powered,
manipulative magnetic products after dozens of young children and
teenagers swallowed multiple magnets, which connected inside their
gastrointestinal tracts and caused internal injuries requiring
surgery. The online marketplace eBay has also agreed to implement
steps to remove listings by sellers for these items.
The Commission staff filed the administrative complaint against
Maxfield & Oberton after discussions with the company and its
representatives failed to result in a voluntary recall plan that
CPSC staff considered to be adequate. This type of legal action
against a company is rare, as this is only the second
administrative complaint filed by CPSC in the past 11 years.
In May 2010, CPSC and Maxfield & Oberton announced a cooperative
recall [http://www.cpsc.gov/cpscpub/prerel/prhtml10/10251.html]of
about 175,000 Buckyball high powered magnets sets, because they
were labeled "Ages 13+" and did not meet the federal mandatory toy
standard, F963-08. The standard requires that such powerful loose
as received magnets not be sold for children younger than 14.
The Buckyballs and Buckycubes sets contain up to 216 powerful rare
earth magnets.
At the time of the 2010 recall, Maxfield & Oberton was aware of
two reports of children swallowing one or more magnets without
injury. Subsequent to the recall, CPSC staff continued to receive
reports of children ingesting the product and learned of incidents
in which children had suffered injuries when the magnets attracted
to each other through the victim's gastrointestinal tract. In
subsequent months, staff learned of one dozen surgeries, including
numerous surgeries that involved Buckyballs.
In November 2011, CPSC and Maxfield & Oberton worked cooperatively
to inform and educate consumers
[http://www.cpsc.gov/onsafety/2011/11/magnet-dangers/]that
Buckyballs were intended for adult use only, and although the risk
scenarios differ by age group, the danger when multiple rare earth
magnets are ingested is the same. However, even after the safety
alert [http://www.cpsc.gov/cpscpub/prerel/prhtml12/12037.html],
ingestions and injuries continued to occur.
Since 2009, CPSC staff has learned of more than two dozen
ingestion incidents, with at least one dozen involving Buckyballs.
Surgery was required in many of incidents. The Commission staff
alleges in its complaint that it has concluded that despite the
attempts to warn purchasers, warnings and education are
ineffective and cannot prevent injuries and incidents with these
rare earth magnets.
CPSC has received reports of toddlers finding loose magnets left
within reach and placing them in their mouths. It can be
extremely difficult for a parent to tell if any of the tiny
magnets are missing from a set. In some of the reported
incidents, toddlers have accessed loose magnets left on a
refrigerator and other parts of the home.
Use of the product by tweens and teenagers to mimic piercings of
the tongue, lip or cheek has resulted in incidents where the
product is unintentionally inhaled and swallowed. These ingestion
incidents occur when children receive it as a gift or gain access
to the product in their homes or from friends.
When two or more magnets are swallowed, they can attract to one
another through the stomach and intestinal walls, resulting in
serious injuries, such as holes in the stomach and intestines,
intestinal blockage, blood poisoning and possibly death. Medical
professionals may not diagnose the need for immediate medical
intervention in such cases, resulting in worsening of the
Due to the number of ingestion incidents received by CPSC staff
since the 2010 recall announcement and 2011 safety alert, CPSC
staff seeks the remedies outlined in the complaint to stop further
incidents and injuries to children.
The British Columbia Court of Appeal has restricted the
application of the doctrine of "waiver of tort" in its recent
decision in Koubi v. Mazda Canada Inc. The Court held, in a
unanimous decision, that alleged breaches of the Business
Practices and Consumer Protection Act (BPCPA) and the Sale of
Goods Act (SGA) could not provide the requisite "wrongdoing" for a
claim in waiver of tort, and overturned the lower court's
certification of the action. This decision is a significant blow
to purported class actions based upon statutory causes of action
where the plaintiffs cannot establish loss on a common basis.
Waiver of tort is a restitutionary doctrine that permits a
plaintiff to recover the benefits a defendant has obtained by its
wrongdoing instead of damages measured by the plaintiff's loss.
The nature and scope of the doctrine is very controversial and has
been the subject of much judicial and academic debate. It is
routinely pleaded in class actions in an attempt to present
damages as a common issue -- based on the gains or benefits
accruing to the defendant -- rather than relying on damages to
class members which, in most cases, requires individual proof.
In Koubi, the B.C. Court of Appeal conducted a detailed analysis
of the waiver of tort doctrine and allowed the defendants' appeal
from certification on the basis that the plaintiff's claims of
waiver of tort premised on alleged statutory breaches did not
disclose a cause of action. In resolving the issue at the
certification stage, the Court drew support from the recent
decision of Justice Lax in Andersen v. St. Jude Medical, Inc. and,
specifically, her observation that a full factual record after a
common issues trial did not assist to illuminate the legal issues
regarding waiver of tort. The Court in Koubi held that it was
plain and obvious that the alleged breaches of the BPCPA and SGA
did not provide the predicate wrongful act required for a cause of
action based on waiver of tort.
The plaintiff, Ms. Koubi, sought to certify a class action against
Mazda Canada Inc. and Mazda dealerships on behalf of all
purchasers and leasees of Mazda3 vehicles, alleging that the door
locks installed on the vehicles for model years 2004 to 2007 were
defective and did not protect against the possibility of keyless
break-ins by way of a sharp kick to the door. A remedy for the
issue was developed by Mazda and introduced to the assembly line
in 2007. Remedial devices were also made available to Mazda
dealers for installation into affected vehicles. Initially,
however, Mazda did not issue a general notification to owners or
leasees of affected vehicles of either the issue or the remedial
Ms. Koubi, who had leased a 2007 model Mazda3, contacted a
representative of her Mazda dealership in October 2006 after
hearing about break-in problems with Mazda3 vehicles. The
representative denied any knowledge of the problem. In June 2007,
she contacted Mazda Canada by email and was informed the following
day that she could have a remedial device installed at her local
dealership. Ms. Koubi had the remedial device installed in her
vehicle without charge and never suffered a break-in or any other
losses. In 2008, Mazda Canada advised owners and leasees of a
Special Service Program to have the remedial devices installed
without charge on all affected vehicles.
Ms. Koubi commenced a class proceeding in 2008, alleging that
Mazda dealerships breached implied warranties contrary to section
18 of the SGA and that Mazda Canada had engaged in deceptive acts
in its representations of the quality of the Mazda3 vehicles,
contrary to sections 4 and 5 of the BPCPA. The claim did not seek
the recovery of any losses suffered by individual owners, either
losses associated with break-ins or the expenses associated with
repairing damage to the vehicles or any loss of use. Instead, the
claim sought restitutionary damages and the disgorgement of
profits earned by the defendants on the basis of waiver of tort.
Further, the plaintiff alleged that the class was entitled to
recoup all profits earned by the defendants as a result of the
sale and marketing vehicles that they allegedly knew were unfit.
The Supreme Court of British Columbia found that the requirements
of the Class Proceedings Act had been met, and certified the
action, including common issues related to waiver of tort.
B.C. Court of Appeal Decision
Although the appellants raised a number of grounds of appeal,
Justice Neilson found that "this matter may be determined solely
on the issue of whether Ms. Koubi's claim for restitutionary
damages, disgorgement of profits, and waiver of tort, arising from
statutory breaches of the SGA or BPCPA, discloses a cause of
action." Ultimately, she determined that they do not.
Justice Neilson first addressed the issue of whether waiver of
tort is an independent cause of action or a remedy. She described
the significance of the distinction between these two as follows:
[I]f waiver of tort is only remedial, the plaintiff must prove all
elements of the underlying wrong, including loss, before it may
elect to seek benefits in the hands of the defendant. If it is an
independent cause of action, however, the plaintiff need only
prove wrongful acquisition of a benefit by the defendant before
claiming disgorgement of that benefit.
She conducted a review of numerous British Columbia and Ontario
authorities, noting that waiver of tort has been certified in many
cases, but generally without a great deal of analysis of its scope
or fundamental characteristics. There has been no judgment on the
doctrine of waiver of tort rendered after trial. Given the
unsettled case law, Justice Neilson concluded that the chambers
judge had not erred in finding that Ms. Koubi has an arguable case
that the doctrine may provide an independent cause of action and
may, therefore, permit the class to recover the profits earned by
the defendants without having to prove individual harm or damages.
Notably, the Court of Appeal did not decide the issue either way
but merely found that the chambers judge had not committed an
error of law in holding that it is not plain and obvious that
waiver of tort is not a distinct cause of action.
Justice Neilson next turned to the issue of the scope of the
predicate wrongful acts that may ground a claim for waiver of
tort, specifically whether it is limited to traditionally tortious
conduct or whether allegations of statutory breaches of the BPCPA
and/or SGA can provide the predicate wrongdoing necessary for such
a claim. The general rule is that there is no tort of statutory
breach and no cause of action at common law to enforce statutory
rights; they are enforced via the remedies expressly provided for
by the statute. Where the statutory remedy is inadequate, there
may arguably be a basis for a common law right of action, but when
the statute is "exhaustive" in the sense that it is "an intent to
provide a complete and comprehensive statement of the law
governing a matter" and offers comprehensive regulation of the
subject matter, a violation of a statutory right will not give
rise to an independent civil cause of action.
Following a careful review of the legislative objectives and
provisions of the BPCPA, Justice Neilson found that the BPCPA is
an attempt to "provide an exhaustive code regulating consumer
transactions, directed to both protection of consumers and
fairness and consistency for all parties in the consumer
marketplace." In concluding that the allegations of Mazda's
statutory wrongdoing under the BPCPA does not give rise to an
independent cause of action, she stated:
I discern nothing in the BPCPA to support the view that the
legislature intended to augment its statutory remedies by
permitting consumers to mount an action against a supplier for
restitutionary relief based on the novel doctrine of waiver of
tort. Such a conclusion is inconsistent with the express language
of ss. 171, 172(3)(a) and 192, which clearly limit recovery for
pecuniary loss to restoration of the consumer's own damages or
loss arising from a deceptive act.
With respect to the claims against the Mazda dealerships under the
SGA,Justice Neilson found that the SGAis not an exhaustive code,
but claims for restitutionary damages, disgorgement of profits and
waiver of tort are clearly inconsistent with the express
provisions of the statute and the remedies provided therein.
As a result of the conclusions that she reached, Justice Neilson
decertified the class proceeding against the defendants, stating
that a review of the relevant legislation was sufficient to
determine the legal issues and that it was not necessary to have
an entire factual record.
Until recently, courts have been unwilling to conduct a summary
appraisal of claims in waiver of tort, finding instead that since
it is not plain and obvious that waiver of tort is not a cause of
action, the action must be certified and the waiver of tort issue
be resolved at a common issues trial on a full evidentiary record.
However, the B.C. Court of Appeal decision in Koubi and the recent
Ontario trial decision in Anderson v. St. Jude Medical, Inc. have
brought this practice into question. Both decisions indicate that
a summary appraisal of whether waiver of tort is a cause of action
may be appropriate and the question may be determined on an
application for certification. The Koubi decision is also a
significant blow to future class actions for restitutionary
damages premised on breaches of a statute rather than traditional
tort claims, where the individual class members have suffered no
loss or cannot establish loss on a common basis.
A motion to dismiss a securities class action complaint against
Medifast, Inc. remains pending in a Maryland federal court,
according to the Company's May 10, 2012 Form 10-Q filing with the
On March 17, 2011, a class action complaint titled Oren Proter et
al. v. Medifast, Inc. et al. (Civil Action 2011-CV-720[BEL]),
alleging violations of Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934, as amended (the Exchange Act), and Rule 10b-
5 promulgated under the Exchange Act, was filed for an unspecified
amount of damages in the U.S. District Court for the District of
Maryland. The complaint alleges that the defendants made false
and/or misleading statements and failed to disclose material
adverse facts regarding the Company's business, operations and
prospects. On March 24, 2011, a class action complaint titled
Fred Greenberg v Medifast, Inc., et al (Civil Action 2011-CV776
[BEL], alleging violations of Sections 10(b) and 20(a) of the
Exchange Act and Rule 10b-5 promulgated under the Exchange Act,
was filed for an unspecified amount of damages in the US District
Court, District of Maryland. The complaint alleges that the
defendants made false and/or misleading statements and failed to
disclose material adverse facts regarding the Company's business,
operations and prospects. On July 19, 2011, the U.S District
Judge ordered the consolidation of the cases and appointment of
co-lead counsel among other matters. The Greenberg case was
dismissed without prejudice. The Plaintiffs subsequently filed an
Amended Complaint. The Company has reviewed its allegations,
subsequently filed its Motion to Dismiss which is currently
pending; and intends to vigorously defend against that Complaint.
Medifast, Inc. -- http://www.medifast1.com-- through its
subsidiaries, engages in the production, distribution, and sale of
weight management and disease management products, and other
consumable health and diet products in the United States. The
Company's product lines include weight and disease management,
meal replacement, and vitamins. It was founded in 1980 and is
headquartered in Owings Mills, Maryland.
Texas law firm Wigington Rumley Dunn & Ritch along with Georgia
law firm Conley Griggs Partin on July 25 filed a class action
lawsuit against Mercedes-Benz, USA and its German parent
corporation Daimler (1:12-cv-02494-TCB McCabe et al v. Daimler AG
et al) in the Northern District of Georgia on behalf of thousands
of consumers who purchased model year 2003-2009 Mercedes-Benz E-
Class vehicles.
The lawsuit alleges that Mercedes has knowingly concealed a defect
in the fuel tank assembly that poses a severe safety risk to
consumers even when there is no collision or impact to the
vehicle. The alleged defect in the tank causes gasoline vapor
leaks inside the vehicle cabin and liquid gasoline leaks outside
of the vehicle. Individuals with vehicles affected by this defect
have reported strong gas odor in the vehicle following refueling.
Others have reported liquid gas pooling onto the ground or other
vehicle parts beneath the tank, causing understandable outrage
over wasted gas and the risks of fire or other harm from exposure
to raw fuel. Video footage obtained from one of the class members
shows raw fuel leaking from a defective fuel tank and pooling on
the ground of a 2007 Mercedes E63 AMG is available online at:
http://www.MercedesFuelTankClassAction.com
The Complaint alleges that failure to adequately contain raw
gasoline and gasoline fumes render the vehicles unsafe to drive
and unsafe to store in garages due to the potential for explosions
and sickness. The lawsuit further alleges that exposure to
gasoline vapor is dangerous for vehicle occupants. Known effects
of exposure include respiratory problems, nausea, loss of
coordination, loss of consciousness, and cancer. Plaintiffs
allege despite being aware of the defect by at least 2008,
Mercedes has failed to disclose the safety hazard to consumers and
even instructed Mercedes-Benz technicians to only replace fuel
tank parts that were under warranty after repeated owner
complaints. Co-lead counsel for the class, Cale Conley, says,
"The failure of a manufacturer like Mercedes to take full and
prompt action to warn consumers and remedy this potentially
catastrophic condition in full is egregious, and we filed this
lawsuit to put a stop to this ongoing hazard to the public."
Class members, including Tucker, Georgia, resident Ronan McCabe,
say they would have never purchased their Mercedes-Benz vehicles
had they known of the safety defect contained within the fuel
tank. On January 23, 2012, the National Highway Traffic Safety
Administration ("NHTSA") opened an investigation of the gasoline
leaks in 2003-2006 Mercedes-Benz E55 AMG vehicles. Neil Goro, who
has experience litigating defect cases against car manufacturers
says, "We believe the NHTSA investigation is just the tip of the
iceberg in terms of uncovering the scope of the problems that
consumers are facing with these vehicles." The lawsuit alleges
that the recall campaign only applied to E55 AMG vehicles affected
by the problems, and did not even remedy the issue concerning gas
leakage because customers are still reporting gasoline leaks.
The following 2003-2009 Mercedes-Benz models are included in the
class action lawsuit:
The Federal Government, through NHTSA, requires that manufacturers
notify consumers of known safety problems and fix the problems at
no charge to the consumer.
Plaintiffs' counsel would like to hear from individuals who have
smelled gas in their 2003-2009 E-Class Mercedes vehicles or seen
leaking fuel in or around their vehicle. Consumers can call the
class action legal team at 1-888-406-5284 or visit
http://www.MercedesFuelTankClassAction.comfor more information.
The Associated Press reports that a federal judge has certified a
lawsuit challenging the constitutionality of the Minnesota Sex
Offender Program as a class action on behalf of everyone committed
to the program.
U.S. District Judge Donovan Frank ruled on July 24 that the
lawsuit meets the legal requirements to be certified as a class
action. He pointed out that the proposed class includes about 600
people who've been indefinitely committed to the program, and he
concluded that addressing each case individually would be an
enormous drain on legal resources.
Mr. Frank writes that they all face an identical process for
treatment and possible release. He says they all raise similar
allegations of a lack of realistic opportunities for earning their
freedom. And says they all have sufficiently similar legal
interests for their cases to go forward together.
Brendan Wedley, writing for Peterborough Examiner, reports that a
group of residents and former residents of the neighborhood around
the former Outboard Marine Corp. is considering a class-action
lawsuit for damages from the contaminated site.
The group of about 30 people met at the Canadian Canoe Museum,
which sits on the former industrial site, on Monaghan Rd. on
July 24 to consider its next steps. It heard from a pair of
lawyers from a Toronto firm that specializes in environmental law,
but didn't decide whether to start working toward a class-action
lawsuit.
The people decided to formally form a group and meet again.
Their concerns stem from the trichloroethylene (TCE) contamination
in the groundwater beneath their homes. They expressed concerns
about property values and they spoke about health concerns.
Recent testing inside some of the homes in the neighborhood found
that the levels of TCE vapors was very low, but Peterborough
medical officer of health Dr. Rosana Pellizzari has acknowledged
that any level of exposure to the chemical causes a risk of
cancer.
The people at the meeting on July 24 discussed options such as
asking the local health unit to do a comprehensive health study
and lobbying the governments to make it mandatory to notify
residents about contamination affecting their homes.
Dave Lavallee, who owns a house on Romaine St., explained the
importance of organizing as a group to try to respond to the
contamination issues.
"All of this was done with Walkerton and many other environmental
cases," he said.
The group quietly listened to presentations from lawyer
David McRobert, who owns a house in Peterborough and is a former
in-house counsel for the Environmental Commissioner of Ontario,
and lawyers Paula Boutis and Laura Bowman from Iler Campbell LLP
in Toronto.
Peterborough County-City Health Unit hosted its own meeting last
month with Ministry of the Environment officials on hand to answer
questions from residents.
At the meeting last month, results were presented from testing in
26 homes along Romaine and Brioux streets earlier this year. Only
three of those homes had TCE levels above 0.5 micrograms per cubic
meter, with the highest level being 2.58 micrograms per cubic
A person who is exposed to a TCE level of 0.5 micrograms per cubic
meter over a 70-year life has a one-in-one-million risk of cancer,
Dr. Pellizzari has said.
The Ministry of the Environment is going to do a second round of
testing in the winter. It's trying to find out how much TCE
vapors are rising from the groundwater, through the soil and up
into homes through cracks in foundations or dirt floors in
unfinished basements.
It's a fundamental environmental injustice issue, Mr. McRobert
said, mentioning stories in the neighborhood about an unusually
high number of cases of cancer.
"This needs to be addressed in some kind of manner . . . to make
sure that these kind of situations don't emerge in the future," he
Outboard Marine Corp. Canada operated on the properties near
Romaine St. and Monaghan Rd. from 1956 to 1989. It had been an
industrial site since 1913.
After the company went into receivership, the provincial
government hired a company to do cleanup and containment of
contamination on the properties. About 40,000 tons, or 2,300 dump
truck loads, of contaminated soil was removed from the properties
in 2002. And the ministry is overseeing ongoing monitoring and
treatment of the groundwater contamination to prevent the spread
of the plume.
Mr. McRobert referred to the Northstar Aerospace $3-million
settlement for TCE contamination in Cambridge, Ont. in 2009.
"We do have these legacies to deal with," he said.
Powerwave Technologies, Inc. continues to defend itself against a
shareholder lawsuit in California, according to the Company's May
11, 2012, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended April 1, 2012.
In the first quarter of 2012, a purported shareholder class action
complaint was filed in the U.S. District Court for the Central
District of California against the Company, its President and
Chief Executive Officer and its Chief Financial Officer. The
complaint, Pawel I. Kmiec v. Powerwave Technologies, Inc. et. al.
asserts claims under Sections 10(b) and 20(a) of the Exchange Act
and Rule 10b-5 thereunder. The complaint purports to state claims
on behalf of all persons who purchased the Company's Common Stock
between February 1, 2011 and October 18, 2011 and seeks
compensatory damages in an amount to be proven at trial. The
complaint alleges that the defendants made misleading statements
or omissions concerning the Company's operations and projected
sales revenues. Plaintiffs were expected to file a consolidated
amended complaint by June 25, 2012. The Company believes that the
purported shareholder class action is without merit and intends to
defend it vigorously.
Powerwave Technologies, Inc. -- http://www.powerwave.com/--
designs, manufactures, and markets end-to-end wireless solutions
for wireless communications networks worldwide. The Company was
founded in 1985 and is headquartered in Santa Ana, California.
Prosper Marketplace, Inc. continues to defend itself against a
securities class action complaint in California, according to the
On November 26, 2008, plaintiffs, Christian Hellum, William
Barnwell and David Booth, individually and on behalf of all other
plaintiffs similarly situated, filed a class action lawsuit
against the Company and certain of its executive officers and
directors in the Superior Court of California, County of San
Francisco, California. The suit was brought on behalf of all loan
note purchasers on the platform from January 1, 2006 through
October 14, 2008. The lawsuit alleges that the Company offered
and sold unqualified and unregistered securities in violation of
the California and federal securities laws. The lawsuit seeks
class certification, damages and the right of rescission against
the Company and the other named defendants, as well as treble
damages against the Company and the award of attorneys' fees,
experts' fees and costs, and pre-judgment and post-judgment
interest.
On February 25, 2011, the plaintiffs filed a Third Amended
Complaint, which removed David Booth as a plaintiff and added
Brian Russom and Michael Del Greco as plaintiffs. The new
plaintiffs are representing the same putative class and
prosecuting the same claims as the previously named plaintiffs. On
February 29, 2012, the court granted the plaintiffs' motion for
class certification.
Greenwich Action
The Company's insurance carrier with respect to the class action
lawsuit, Greenwich Insurance Company, denied coverage. On August
21, 2009, the Company filed suit against Greenwich in the Superior
Court of California, County of San Francisco, California. The
lawsuit sought a declaration that the Company was entitled to
coverage under its policy with Greenwich for losses arising out of
the class action lawsuit as well as damages and the award of
attorneys' fees and pre- and post-judgment interest.
On January 26, 2011, the court issued a final statement of
decision finding that Greenwich has a duty to defend the class
action lawsuit, and requiring that Greenwich pay the Company's
past and future defense costs in the class action suit up to
$2.0 million. Greenwich subsequently made payments to the Company
in the amount of $2.0 million to reimburse the Company for the
defense costs it had incurred in the class action suit. As a
result, Greenwich has now satisfied its obligations with respect
to the Company's defense costs for the Hellum suit, with the
exception of $142,584 in pre-judgment interest that Greenwich will
be required to pay to the Company when a final judgment has been
entered in the suit and all appeals have been exhausted.
On July 1, 2011, the Company and Greenwich entered into a
Stipulated Order of Judgment pursuant to which the Company agreed
to dismiss its remaining claims against Greenwich. On August 12,
2011, Greenwich filed a notice of appeal of the court's decision
regarding Greenwich's duty to defend up to $2.0 million.
The Company intends to vigorously defend the class action lawsuit.
The Company cannot, however, presently determine or estimate the
final outcome of the lawsuit, and there can be no assurance that
it will be finally resolved in the Company's favor. If the class
action lawsuit is not resolved in the Company's favor, the Company
might be obliged to pay damages, and might be subject to such
equitable relief as a court may determine. Accordingly, the
Company has not recorded an accrued loss contingency in connection
with its sale of notes through the platform prior to November
2008. Accounting for loss contingencies involves the existence of
a condition, situation or set of circumstances involving
uncertainty as to possible loss that will ultimately be resolved
when one or more future event(s) occur or fail to occur. An
estimated loss in connection with a loss contingency shall be
recorded by a charge to current operations if both of the
following conditions are met: first, the amount can be reasonably
estimated; and second, the information available prior to issuance
of the financial statements indicates that it is probable that a
liability has been incurred at the date of the financial
As of March 31, 2012, the lawsuits are in their preliminary stages
and their probable outcomes cannot presently be determined, nor
can the amount of damages or other costs that might be borne by
Prosper be estimated.
Prosper Marketplace, Inc. operates as a peer-to-peer lending
marketplace in the United States. It connects prospective
borrowers with people who have money and a willingness to lend
through an online community. The Company handles funding and
servicing of the loan on behalf of the matched borrowers and
investors. It is based in San Francisco, California.
Protective Life Corporation disclosed in its July 23, 2012, Form
8-K filing with the U.S. Securities and Exchange Commission that a
class action lawsuit is currently pending against it.
Group health coverage issued through associations and credit
insurance coverages have received some negative publicity in the
media as well as increased regulatory consideration and review and
litigation. The Company has a small closed block of group health
insurance coverage that was issued to members of an association; a
purported class action lawsuit is currently pending against the
Company in connection with this business.
Rick's Cabaret International, Inc. continues to defend itself
against two class action complaints alleging violations of
securities laws, according to the Company's May 10, 2012, Form 10-
Q filing with the U.S. Securities and Exchange Commission for the
Two securities class action lawsuits were filed against the
Company in June 2011 in the U.S. District Court for the Southern
District of Florida. The plaintiffs claim to represent recipients
of text messages. The complaints allege that the Company violated
the Telephone Consumer Protection Act (the TCPA) by sending
unsolicited advertisements by text message to the plaintiff and
other recipients nationwide during the four-year period preceding
the lawsuit without the prior express invitation or permission of
the recipients. On January 20, 2012, an amended complaint was
filed in one of the cases to add one of the Company's subsidiaries
as a defendant. In October 2011, the Company filed a declaratory
judgment action in U.S. District Court for the Southern District
of Texas (Houston division) against the Company's general
liability insurance carrier to provide coverage for these two TCPA
cases. On January 24, 2012, the presiding judge issued an order
dismissing the case against the Company's carrier. Therefore,
there is no insurance coverage for this case. The Company denies
any liability in this matter and is vigorously defending the
allegations.
No updates were reported in the Company's latest Form 10-Q filing
with the SEC.
Rick's Cabaret International, Inc. -- http://www.rick's.com/--
through its subsidiaries, owns and operates upscale adult
nightclubs serving primarily businessmen and professionals in the
United States. Its nightclubs offer live adult entertainment,
restaurant, and bar operations. The Company was founded in 1982
and is based in Houston, Texas.
SearchMedia Holdings Limited obtained final court approval in
April of a settlement resolving shareholder lawsuits in the United
States, according to the Company's May 15, 2012, Form 20-F filing
with the U.S. Securities and Exchange Commission for the fiscal
year ended December 31, 2011.
A shareholder complaint was filed on September 13, 2010 by Sid
Murdeshwar against SearchMedia Holdings, the former Ideation
officers and directors and certain of the SearchMedia Holdings'
officers and directors (the Individual Defendants) as a purported
class action on behalf of the shareholders of SearchMedia Holdings
in the U.S. District Court for the Central District of California.
The case was filed under the caption Sid Murdeshwar, Individually
and on Behalf of All Others Similarly Situated, Plaintiff v.
SearchMedia Holdings Limited f/k/a Ideation Acquisition Corp.,
Robert N. Fried, Phillip Frost, Rao Uppaluri, Steven D. Rubin,
Glenn Halpryn, Thomas E. Beier, David H. Moskowitz, Shawn Gold,
Garbo Lee, Paul Conway, Qinying Liu, Earl Yen, and Jennifer Huang,
Defendants .
A separate shareholder complaint was filed on December 23, 2010 by
Hymie Akst against SearchMedia Holdings, the former Ideation
in the United States District Court for the Southern District of
Florida. The case was filed under the caption Hymie Akst,
Individually and on Behalf of All Others Similarly Situated,
Plaintiff v. SearchMedia Holdings Limited f/k/a Ideation
Acquisition Corp., Robert N. Fried, Phillip Frost, Rao Uppaluri,
Steven D. Rubin, Glenn Halpryn, Thomas E. Beier, David H.
Moskowitz, Shawn Gold, Garbo Lee, Paul Conway, Qinying Liu, Earl
Yen, and Jennifer Huang, Defendants.
On February 17, 2011, the Murdeshwar action was transferred to the
U.S. District Court for the Southern District of Florida. The
Akst plaintiffs voluntarily dismissed their action on February 23,
2011. On April 11, 2011, the Murdeshwar plaintiffs amended their
complaint, alleging, among other things, that the directors of
SearchMedia Holdings violated the federal securities laws by
making false and misleading statements regarding Ideation's
acquisition of the target company, SearchMedia International, and
by overstating SearchMedia International's financial results. The
amended complaint further alleged that the individual Defendants
are liable for the alleged misrepresentations as controlling
persons. The complaint sought certification of a class of
SearchMedia Holdings' shareholders who purchased or otherwise
acquired SearchMedia Holdings securities between April 1, 2009 and
August 20, 2010, and all persons who were holders of SearchMedia
Holdings on October 2, 2009, an award of compensatory damages, an
award of reasonable fees and costs incurred in the action, and
such other relief as the Court deems just and proper.
In August 2011, the Court dismissed the claims pertaining to
alleged misstatements and omissions made about SearchMedia
International's financial results and future prospects, but did
not dismiss the claims regarding the alleged misstatements and
omissions in Ideation's proxy statement.
In September 2011, after attending a mediation, SearchMedia
Holdings and certain of the individual Defendants (Robert Fried,
Phillip Frost, Rao Uppaluri, Steven Rubin, Glenn Halpryn, Thomas
Beier, David Moskowitz and Shawn Gold) (the Settling Defendants)
reached a tentative settlement with the Akst Plaintiffs.
Under the terms of the settlement, SearchMedia Holdings' D&O
insurer agreed to pay $2.75 million in exchange for a release of
the claims asserted against the Settling Defendants by the Akst
plaintiffs and the putative class members. SearchMedia Holdings
and the other Settling Defendants did not admit to any wrongdoing.
The settlement does not include a release of the Plaintiffs'
claims against SearchMedia International or Defendants Garbo Lee,
Qinying Liu, Earl Yen, Jennifer Huang and Paul Conway, who have
not been served with the amended complaint. In January 2012, the
court dismissed without prejudice the claims against these
remaining Defendants for the plaintiffs' failure to timely effect
service on them.
On April 23, 2012, the court held a final fairness hearing on the
settlement. There were no objections to the settlement. On April
24, 2012, the court signed a final judgment approving the
settlement and dismissing the lawsuit with prejudice.
SearchMedia Holdings Limited -- http://www.searchmediaholdings.com
-- and its subsidiaries is a multi-platform media company
operating primarily in the out-of-home advertising industry in the
Peoples Republic of China. Out-of-home advertising typically
refers to advertising media in public places, such as billboards,
in-elevator displays, street furniture and transit area displays.
The Company's core outdoor billboard and in-elevator platforms are
complemented by its transit advertising platform, which together
enables us to provide multi-platform, "one-stop shop" services for
its local, national and international clients.
Eagan Avenatti, LLP announces that the California Supreme Court
has refused to set aside a lower court decision certifying a class
action in a mass grave desecration lawsuit filed in the Superior
Court of California, County of Los Angeles, against publicly
traded Service Corporation International.
The lawsuit alleges that SCI and its employees purposely
desecrated hundreds of Jewish graves and improperly disposed of
human remains and bones in mass graves located in "dump areas" of
Eden Memorial Park cemetery in Los Angeles. The case is titled
Sands v. Service Corporation International, et al., Case No.
BC421528. The damages in the case are expected to exceed $500
million.
In particular, the lawsuit alleges that groundskeepers were
repeatedly instructed by cemetery management to secretly break
concrete vaults with a backhoe and remove, dump and/or discard the
human remains, including human skulls, to make room for new
burials, all in the interest of increased profits.
According to the Complaint, the Defendants took considerable steps
to conceal their fraudulent actions by threatening employees and
witnesses with retaliation and the loss of their jobs.
The lower court previously sanctioned SCI in the case after SCI
employees were caught on videotape tampering with and destroying
evidence. Anderson Cooper reported on the lawsuit on 60 Minutes
earlier this year.
In an En Banc decision received July 23, the Supreme Court denied
SCI's attempt to have the lower court's decision overturned. As a
result, the case will proceed to trial and tens of thousands of
Jewish families will have the opportunity to seek damages against
SCI for the Company's fraud and deceit.
"We are pleased with the Court's decision and look forward to
trying this case to a jury," said lead attorney Michael Avenatti
of Eagan Avenatti, LLP, the lead law firm representing the
families. "The verdict in this case may rightly cause the
bankruptcy of SCI and completely wipe out all equity in the
company."
This is not the first time that Defendant SCI, the largest owner
of cemeteries and funeral homes in the United States, has come
under fire for similar conduct. In 2003, the State of Florida
brought criminal charges against the Company after groundskeepers
at Menorah Gardens, another SCI owned and operated Jewish
cemetery, testified to the accuracy of similar allegations. SCI
later paid well in excess of $100 million to settle civil lawsuits
that followed.
SCI is North America's largest provider of death-care products and
In December 2008, a class action complaint was filed in the United
States District Court for the Western District of Wisconsin
against SuperValu Inc. alleging that a 2003 transaction between
the Company and C&S Wholesale Grocers, Inc. ("C&S") was a
conspiracy to restrain trade and allocate markets. In the 2003
transaction, the Company purchased certain assets of the Fleming
Corporation as part of Fleming Corporation's bankruptcy
proceedings and sold certain assets of the Company to C&S which
were located in New England. Since December 2008, three other
retailers have filed similar complaints in other jurisdictions.
The cases have been consolidated and are proceeding in the United
States District Court for the District of Minnesota. The
complaints allege that the conspiracy was concealed and continued
through the use of non-compete and non-solicitation agreements and
the closing down of the distribution facilities that the Company
and C&S purchased from each other. Plaintiffs are seeking
monetary damages, injunctive relief and attorneys' fees. The
Company is vigorously defending these lawsuits. Separately from
these civil lawsuits, on September 14, 2009, the United States
Federal Trade Commission ("FTC") issued a subpoena to the Company
requesting documents related to the C&S transaction as part of the
FTC's investigation into whether the Company and C&S engaged in
unfair methods of competition. The Company cooperated with the
FTC. On March 18, 2011, the FTC notified the Company that it had
determined that no additional action was warranted by the FTC and
that it had closed its investigation.
No further updates were reported in the Company's July 23, 2012,
for the quarter ended June 16, 2012.
Predicting the outcomes of claims and litigation and estimating
related costs and exposures involves substantial uncertainties
that could cause actual outcomes, costs and exposures to vary
materially from current expectations. The Company regularly
monitors its exposure to the loss contingencies associated with
these matters and may from time to time change its predictions
with respect to outcomes and its estimates with respect to related
costs and exposures. With respect to the consolidated lawsuit,
the Company believes the chance of a negative outcome is remote.
It is possible, although management believes it is remote, that
material differences in actual outcomes, costs and exposures
relative to current predictions and estimates, or material changes
in such predictions or estimates, could have a material adverse
effect on the Company's financial condition, results of operations
or cash flows.
In September 2008, a class action complaint was filed against
SuperValu Inc., as well as International Outsourcing Services, LLC
("IOS"), Inmar, Inc., Carolina Manufacturer's Services, Inc.,
Carolina Coupon Clearing, Inc. and Carolina Services, in the
United States District Court in the Eastern District of Wisconsin.
The plaintiffs in the case are a consumer goods manufacturer, a
grocery co-operative and a retailer marketing services company who
allege on behalf of a purported class that the Company and the
other defendants (i) conspired to restrict the markets for coupon
processing services under the Sherman Act and (ii) were part of an
illegal enterprise to defraud the plaintiffs under the Federal
Racketeer Influenced and Corrupt Organizations Act. The
plaintiffs seek monetary damages, attorneys' fees and injunctive
relief. The Company intends to vigorously defend this lawsuit,
however all proceedings have been stayed in the case pending the
result of the criminal prosecution of certain former officers of
IOS.
costs and exposures. With respect to the stayed lawsuit, the
Company believes the chance of a negative outcome is remote. It
is possible, although management believes it is remote, that
TheraBiogen, Inc. has been sued in California in a purported class
action regarding allegations that the product packaging should be
modified. The Company has reviewed the packaging with Registrar
Corp, which helps businesses comply with U.S. Food and Drug
Administration Drug registration and listing requirements by
providing Registration, U.S. Agent and Compliance Assistance for
U.S. and Non-U.S. Companies in the Drug Industry. Registrar
Corp's Drug Labeling and Ingredient Review service helps companies
determine their drug's likely classification and compliance with
applicable labeling requirements. All products packaging and
labeling was reviewed by and received approval from Registrar
before going to market. Mr. Jimmy Conde is the plaintiff and
alleges that the Company's product's package labeling is
inadequate.
The Company says that even though it believes the lawsuit is
without merit, it is attempting to negotiate a modest settlement
that may include minor additions to the packaging labels. The
litigation has been moved to Federal Court and the Company is
negotiating a settlement agreement in the amount of $21,000 which
is fully dependent upon the Company's ability to pay this amount,
the agreement of the parties and approval by the Court.
for the quarter ended May 31, 2012.
The Company says no assurances can be given as to the outcome of
this litigation or its impact upon the Company or its business.
Amanda Bronstad, writing for The National Law Journal, reports
that eight lawyers representing more than a dozen of the nearly
100 objectors to a consumer class action settlement with
Ticketmaster urged a Los Angeles judge on July 24 to reject the
deal, which they called the latest example of paying cash to the
lawyers while the class members make do with coupons.
Addressing Los Angeles Superior Court Judge Kenneth Freeman, the
lawyers took turns during a fairness hearing to argue against
final approval of the deal, which would grant $16.5 million in
fees and costs to plaintiffs attorneys and discounts off future
ticket purchases to a nationwide class of consumers. Judge
Freeman gave the deal his tentative approval on Nov. 2.
He issued no immediate ruling following the latest hearing.
"You should not force class members to do business with the
defendant in order to receive a benefit," argued Robert Chojnacki
of Robert C. Chojnacki Law Offices in Menlo Park, Calif. "Here,
the class counsel gets $15 million in cash and class members get
coupons."
Steven Blonder, a principal at Chicago's Much Shelist, one of the
plaintiffs' firms in the case, defended the deal, which would
resolve claims originally brought in 2003 that Ticketmaster
imposed inflated fees to process ticket orders and for United
Parcel Service deliveries.
"The settlement has the presumption of fairness," he said.
Under the deal, each class member would receive an e-mailed
discount code worth $1.50 against each future ticket purchase and
a $5 discount code for each UPS delivery fee -- both capped at 17
transactions. The estimated class encompasses customers who
bought tickets from Oct. 21, 1999, through Oct. 19, 2011.
The deal would provide $20,000 to each of two class
representatives and a guaranteed $45 million in cy pres payments
to an unidentified group of charities in the event that not all
the discounts are redeemed. Most of those payments would be in
the form of free tickets. The cy pres doctrine, from the French
for "as close as possible," allows parties to donate to related
charities the excess money from legal settlements.
Mr. Blonder said that the objectors, who represent a small
percentage of the estimated 50 million people in the class, have
failed to prove the deal is unfair. "Clearly, 100 out of 50
million is a de minimis number," he said.
Under the deal, plaintiffs attorneys would receive $15 million in
fees and about $1.5 million in costs. W. Michael Hensley, a
shareholder in the Santa Ana, Calif., office of AlvaradoSmith,
another plaintiffs' firm in the case, said the attorneys had laid
out their costs and fees in "excruciating detail."
"We have not asked for all of the fees that we have actually
generated," he said, noting that the lodestar amount came to $6.5
He said that this case, unlike others cited by the objectors, took
nearly nine years to litigate.
The case was "hotly contested," said Ticketmaster attorney Gail
Lees, chairwoman of the class action practice at Gibson, Dunn &
Crutcher.
After Judge Freeman rejected an earlier proposed settlement last
year, she said, Ticketmaster agreed to post more detailed
disclosures about attorney fees on its Web site and e-mailed
reminders to class members about their discount codes. She noted
that plaintiffs attorneys faced an uphill battle from the
beginning.
"The plaintiffs faced a very serious and real risk of a loss at
trial," she said.
It was not appropriate to name the recipients of the cy pres
payments at this time, she continued, because distribution of
those funds, if necessary, was "quite far down the line."
Ms. Lees cited California state precedents supporting use of non-
cash payments in class action settlements, most prominently Frank
Chavez v. Netflix Inc. In that case, California's First District
Court of Appeal in 2008 concluded that Netflix's offer to give
class members a limited number of rentals at no charge did not
constitute a "coupon" settlement.
But Joshua Furman, an objector attorney, argued that Chavez
provides no "rubber stamp" for coupon settlements. Unlike the
Ticketmaster deal, Chavez was not a "pure" coupon settlement, said
Furman, a solo practitioner in Beverly Hills, Calif.
Objector attorneys saw no reason why Ticketmaster couldn't
disclose the names of the charitable organizations. They noted a
July 13 ruling by the U.S. Court of Appeals for the Ninth Circuit
rejecting a class action settlement because of excessive attorney
fees and cy pres payments to unnamed charities. In Dennis v.
Kellogg Co., the Ninth Circuit said a proposal to feed the
indigent lacked enough of a nexus to the alleged false advertising
claims against Kellogg Co. over its Frosted Mini-Wheats cereal.
"These cases are coming under increasing scrutiny," said John
Davis, an objector attorney at the Law Office of John W. Davis in
San Diego. "You're hard pressed to say there's nothing wrong with
coupon settlements."
Tongxin International Ltd. announced that it received final
approval of its $3 million settlement agreement resolving class-
action lawsuits filed in January 2011. The final judgment and
order of dismissal with prejudice was entered on July 20, 2012.
Company Statement
CHANGSHA, China -- July 23, 2012 -- Tongxin International Ltd.,
(Pink Sheets: TXIC), a China-based manufacturer of engineered
vehicle body structures ("EVBS") and stamped parts for the
commercial automotive industry, reported that the United States
District Court for the Central District of California granted
final approval of the settlement agreement entered between Tongxin
and the plaintiffs in the class-action lawsuits against the
Company filed in January 2011.
A tentative settlement agreement with the plaintiffs of the
shareholder lawsuits was reached earlier this year, and the Court
previously granted preliminary approval of the settlement. The
hearing on the motion for final approval of the settlement was
held on July 9, 2012, and approval was granted by the Court.
Under the settlement agreement, all shareholder lawsuits against
the Company will be terminated in return for payment of a total
settlement amount of $3 million, which is to be paid by the
Company's D&O insurance carrier.
The class covered by the lawsuits consists of all persons who
purchased Tongxin common stock during the period from May 18,
2009, through December 17, 2010. Plaintiffs had alleged that
Tongxin and certain of its officers and directors violated the
Securities Exchange Act of 1934 by issuing, between May 18, 2009,
and December 17, 2010, allegedly materially false and misleading
statements regarding Tongxin International's business and
financial results. Under the terms of the settlement as approved
by the Court, there is no admission of any validity of the claims,
no admission of any wrongdoing, no admission of any liability, and
no admission of any fault.
About Tongxin International Ltd.
Tongxin International Ltd., the largest independent supplier of
EVBS in China, is capable of providing EVBS for both the
commercial truck and light vehicle market segments. The Company
also designs, fabricates and tests dies used in the vehicle body
structure manufacturing process. EVBS consists of exterior body
panels including doors, floor pans, hoods, side panels and
fenders. Tongxin International Ltd. maintains a network of over
130 customers throughout 21 provinces in China. Headquartered in
Changsha, the Company also maintains regional manufacturing in
Dali, Ziyang and Zhucheng. For more information, please visit
http://www.txicint.com/or http://www.hntx.com/
In January 2012, Trans1, Inc. received notice that a class action
lawsuit had been filed in the U.S. District Court Eastern
District, North Carolina, on behalf of a class consisting of all
persons other than the defendants who purchased TranS1 securities
between February 21, 2008 and October 17, 2011. The Company
disclosed in its May 14, 2012, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended March 31,
2012, that it is in the process of responding to this lawsuit.
The Company is unable to predict what impact, if any, the outcome
of this matter might have on our consolidated financial position,
results of operations, or cash flows.
A class action lawsuit against Tree.com, Inc.'s subsidiaries
captioned Schnee v. LendingTree, LLC and Home Loan Center, Inc.,
No. 06CC00211 (Cal. Super. Ct., Orange Cty.) is scheduled for
trial in April 2013, according to the Company's May 15, 2012, Form
the quarter ended March 31, 2012.
In October 2006, four individual plaintiffs filed this putative
class action against LendingTree, LLC and HLC in the California
Superior Court for Orange County. The plaintiffs allege that they
used the LendingTree.com website to find potential lenders and
without their knowledge were referred to LendingTree's direct
lender, HLC; that Lending Tree and HLC did not adequately disclose
the relationship between them; and that HLC charged the plaintiffs
higher rates and fees than they otherwise would have been charged.
Based upon these allegations, Plaintiffs assert that LendingTree
and HLC violated the California unfair competition law, California
Business and Professions Code Sec. 17500, and the Consumer Legal
Remedies Act. The plaintiffs purport to represent a nationwide
class of consumers who sought lender referrals from LendingTree
and obtained loans from HLC since December 1, 2004. The plaintiffs
seek damages, restitution, attorneys' fees and injunctive relief.
In September 2009, the plaintiffs' motion for class certification
was denied in its entirety; the plaintiffs appealed such action
and in July 2011, the Court of Appeals issued its opinion denying
the plaintiffs' appeal. Remittitur was filed in September 2011.
This matter is currently scheduled for trial in April 2013.
Based in Charlotte, North Carolina, Tree.Com, Inc. --
http://www.lendingtree.com/-- through its subsidiaries, owns
various brands and businesses that provide information, tools,
advice, products, and services for critical transactions in
consumers' lives. Its brands include LendingTree.com,
GetSmart.com, DegreeTree.com, LendingTreeAutos.com, DoneRight.com,
ServiceTree.com, InsuranceTree.com, and HealthTree.com that serve
as an ally for consumers who are looking to make informed purchase
decisions and compare shops for loans and other services from
multiple businesses and professionals.
Jackie Bruno, writing for NECN.com, reports that as New Hampshire
was preparing to test thousands of people for Hepatitis C, as many
as six more states could be dealing with a similar situation.
A new class action lawsuit is being brought against Triage
Staffing. That's the company that hired the accused suspect
David Kwiatkowski and brought him to Exeter hospital in New
Hampshire. While at Exeter hospital, Mr. Kwiatkowski is accused
of injecting himself with powerful drugs, and then leaving the
needles for re-use. Since he had Hepatitis C, he put thousands at
risk for the virus and infected at least 32 patients.
"Hepatitis c infection down the road can cause serious liver
problems and you can get inflammation, scarring of the liver,
chirrosis, and increase the risk of liver failure and increase the
risk for liver cancer," said Dr. Mallika Marshall.
Attorney Domenic Paolini says Triage should have researched
Kwiatkowski's background before they placed him in Kansas,
Georgia, Maryland, Michigan, New York, Arizona and finally New
"Triage was an enabler, what they did, by not doing their due
diligence, by not checking on Mr. Kwiatkowski, by not keeping up
on what was going on with them at his various assignments they
actually enabled him," Mr. Paolini said.
The class action lawsuit alleges that Mr. Kwiatkowski had a long
history of red flags, everything from allegedly stealing drugs, to
falsely claiming he had cancer.
"If you place somebody at a hospital for six months, when they
leave make a phone call to the hospital, how did they work out,
why did they leave, were there any problems, collect that kind of
information," Mr. Paolini said.
Triage staffing has not commented on this lawsuit yet but, patient
advocate Eleanor Casey Crane says there should more oversight on
these healthcare staffing companies.
"As a former legislator I would hope that every legislator that's
listening and every legislator around the country will realize
this is almost like an accident waiting to happen," Ms. Crane
said. "We need to regulate some of these companies that are in
our health care industry.
New Hampshire was set to ask nearly 6,000 people who could have
been affected by this outbreak . . . at Exeter Hospital to get
themselves tested.
Andrew R. Johnson of The Wall Street Journal reports that the
National Grocers Association, one of the plaintiffs suing Visa
Inc. V +3.74% and MasterCard Inc. MA +2.77% over credit-card
transaction fees, said July 26, 2012, it opposes the $7.25 billion
class-action settlement reached in the case earlier this month.
The trade group, which represents more than 1,200 companies, is
among a growing number of voices to blast the deal for what they
say is a failure to address problems in how the card networks set
so-called interchange or swipe fees. Target Corp. TGT +1.16% and
Wal-Mart Stores Inc., WMT +2.21% which aren't plaintiffs, have
also criticized the settlement, which requires court approval.
The National Grocers Association "joined the lawsuit on behalf of
its independent retail grocer members over seven years ago to
bring about real reform of the anticompetitive credit-card swipe
fee system," said Peter Larkin, president and chief executive of
the trade group, in a statement. "This proposed settlement
agreement fails in this regard by allowing Visa and MasterCard to
continue their dominant anticompetitive practices."
The NGA's decision to oppose the settlement applies only to the
trade group itself, not its members, which will have the ability
to formally opt in or out of the agreement. Analysts don't expect
enough merchants will opt out of the deal to derail it.
Plaintiffs accused the credit-card companies of conspiring to set
interchange fees arbitrarily high. Another plaintiff, the
National Association of Convenience Stores, also said it rejected
the deal when it was announced July 13.
"We think that those who are opposed to the settlement are
extraordinarily misguided because they haven't considered the
practical alternatives to the settlement, which are very
undesirable for merchants because it involves another four or five
or six years of litigation and no realistic opportunity for a
better outcome even after more litigation," said Craig Wildfang, a
partner with Robins, Kaplan, Miller & Ciresi LLP, one of the law
firms representing the class plaintiffs in the lawsuit.
Under the settlement, Visa, MasterCard and card-issuing banks
including Bank of America Corp. BAC +1.41% and J.P. Morgan Chase
JPM +1.82% & Co. agreed to pay more than $6 billion to merchants.
The card networks also agreed to temporarily reduce swipe fees, or
interchange fees, on credit-card transactions and allow merchants
to surcharge customers who pay with cards, an ability that retail
groups have sought but Visa and MasterCard prohibited.
The grocers group said the ability to charge customers extra for
using credit cards includes "burdensome restrictions," which makes
it "unlikely that many of NGA's members will be able to make this
provision workable."
The provision would require merchants to post signs notifying
customers that they surcharge and include the amount of any fee on
receipts, measures that the card networks said are intended to
protect consumers. Merchants wouldn't be allowed to surcharge
Visa and MasterCard cardholders more than what they charge
customers paying with American Express Co. AXP +3.05% and Discover
Financial Services DFS +3.95% cards.
A spokesman for MasterCard declined to comment on the NGA's
statements. A Visa spokesman didn't immediately respond to a
request for comment, though Visa Chairman and Chief Executive Joe
Saunders said on a conference call Wednesday the company expects
the settlement will "have support among the retail community in
the U.S. because it is a fair and an appropriate compromise for
all parties."
If merchants representing 25% of Visa and MasterCard's credit-card
sales volume opt out of the settlement, the card networks have the
ability to cancel it.
The likelihood of that occurring, though, is slim, according to
Keefe, Bruyette & Woods, which performed an analysis of sales of
the top 100 U.S. retailers. Those merchants combined equal about
25% of Visa and MasterCard credit-card volume, KBW said, noting 15
of those retailers have already agreed to a separate settlement
with the card networks.
"Even in the worst-case scenario where all of the remaining top 85
retailers ... opt out of a settlement, their representation of
volume would amount to roughly 20%," KBW said. "Outside of a
coordinated and large retailer movement to opt out of a
settlement, we believe the risks to a settlement are relatively
low."
Cohen Milstein Sellers & Toll PLLC on July 24 disclosed that a
federal judge on July 23 rejected a motion by two former WaMu
(Washington Mutual Bank) subsidiaries to escape a class action
lawsuit alleging Securities Act violations filed by plaintiffs who
purchased mortgage-backed certificates from the savings and loan
that in 2008 became before the nation's largest bank failure. The
decision paves the way for a Sept. 17, 2012, trial date, according
to plaintiffs' co-lead counsel Steven Toll of Cohen Milstein
Sellers & Toll PLLC.
"This is a terrific decision for the plaintiffs. The case is
prepared and we are looking forward to trial," said Mr. Toll,
whose firm along with Scott + Scott LLP, represent the
Boilermakers National Annuity Trust, Doral Bank Puerto Rico, and
the Policemen's Annuity and Benefit Fund of Chicago.
The case involves substantial claims in mortgage-backed
certificates issued and underwritten by WaMu and its related
entities. The value of the certificates, which were supported by
pools of residential mortgage loans, collapsed soon after
issuance. The named plaintiffs, representing a court-certified
class of investors, allege that loans backing the securities were
"fundamentally impaired" and that they were misled as to the
quality of the loans' underwriting.
In denying the defendant's motion for summary judgment, which
sought to dismiss the plaintiffs' claims before trial, Judge
Marsha J. Pechman of the U.S. District Court for the Western
District of Washington, in Seattle, wrote, "Plaintiffs have
successfully raised a dispute of fact as to whether WaMu
systematically deviated from its underwriting guidelines so as to
render the statements in the offering documents false or
misleading."
Furthermore, she added, "Plaintiffs have also shown a dispute of
fact as to whether the disclosures regarding exceptions were
accurately reported to investors."
Judge Pechman also rejected the defendant's argument that losses
claimed were caused entirely by something other than the disregard
for WaMu's loan underwriting guidelines, and upheld the
plaintiffs' right to include expert testimony from a highly
regarded statistician and a loan underwriting expert, as well as
from several former WaMu employees whose testimony would be
helpful to the plaintiffs' claims.
Additional information about the case and a copy of the court
order (Case No. C09-37MJP) are available online at
http://www.cohenmilstein.com/news.php?NewsID=516
Yonhap reports that a Korean consumer advocacy group said on
July 25 that it is preparing for a class action suit against
banks' alleged collusion to rig key money-market rates, as
suspected rate fixing is presumed to add to households' debt
burden.
The Fair Trade Commission, the country's anti-trust watchdog
launched an investigation into major local banks and brokerage
houses over their suspected involvement in rigging rates on the
91-day certificate of deposit (CD), or the benchmark for bank
lending rates.
The Financial Consumer Agency said it will accept applications
from borrowers who believe the alleged rate fixing has caused
financial damage to them, to prepare for the class action suit.
A CD is a financial instrument sold by banks and circulated in
secondary markets by securities firms. Most bank mortgage loans
are tied to CD rates, raising chances that higher CD rates might
contribute to increased debt-repaying burdens for households.
According to the agency, suspected rate fixing is estimated to
have incurred around KRW1.6 trillion ($1.4 billion) in damage per
year for borrowers.
Currently, the CD rates are announced twice a day via quotations
by 10 local securities firms based on CDs sold by seven banks.
The probe came as the CD rates remained relatively high even as
other market rates fell amid the slowing economy and prospects for
a rate cut by the central bank.
Household lending handled by local banks and non-bank institutions
totaled a record 642.7 trillion won at the end of May, according
to data by the central bank.
The probe came as similar investigations are underway in the
United States and Britain into several banks, including Barclays,
for their alleged involvement in rigging the London Interbank
Offered Rate, or Libor, a benchmark interest rate in the global
financial market.
The Associated Press reports that the law firm of Ohio's scandal-
scarred ex-attorney general is among those that have filed a
class-action lawsuit in Cleveland on behalf of homeowners
victimized by foreclosure fraud.
The action by attorney Marc Dann and others was filed on July 24
in Cuyahoga County Common Pleas Court. It targets several loan
servicers and law firms that prosecute foreclosures, claiming they
purposefully engaged in fraud by forging paperwork and foreclosing
on mortgages they don't own.
Mr. Dann resigned as attorney general in 2008 amid a sexual
harassment scandal. He pleaded guilty in 2010 to improperly
paying two aides from political and office accounts and not
disclosing campaign expenses.
The Ohio Supreme Court is weighing a six-month law license
suspension for his actions.
While in office, Mr. Dann took on some of the nation's biggest
mortgage brokers.