/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/071115.mbx C L A S S A C T I O N R E P O R T E R Thursday, November 15, 2007, Vol. 9, No. 227 Headlines ACCREDO HEALTH: Continues to Face Securities Litigation in Tenn. AMERICAN HONDA: Recalls Lawn Mowers Due to Fire Hazard APRIA HEALTHCARE: Nov. 26 Trial for Calif. Labor Lawsuit Vacated BLOOMBERG LP: Fourth Plaintiff Joins Discrimination Lawsuit BRITISH AIRWAYS: U.S. Passengers' Suit Over Lost Luggage Widened CREDIT SOLUTIONS: Cheats Its Customers, Washington Suit Claims DEL REY TORTILLERIA: Recalls Tortillas for Possible Health Risk DELTA AIR: Objects to Former Employees' Class Certification Bid DERMALIVE: Canadian User Sues Over Anti-aging Treatment Damage FIRST CONSULTING: Sued Over Plan to Merge with Computer Sciences INTUIT INC: E-Filing Firms Sued Over Fees Collected on Taxpayers ISRAELI BROADCASTING COS: Face Suit for Limiting Competitions MEDCO HEALTH: Settles Mass. Suit Over PolyMedica Corp. Merger MEDCO HEALTH: Still Faces Several ERISA Complaints in N.Y. MEDCO HEALTH: Still Faces Consolidated Antitrust Lawsuits in Pa. MEDCO HEALTH: Opposes Stay Recommendation in Pharmacies' Suit MICROSOFT CORP: Seeks Dismissal of Ga. Suit Over Xbox Live NAPASTYLE: Recalls Pitchers, Tumblers for Possible Health Risk NORTHERN TOOL: Recalls Wagons with Paint Exceeding Lead Standard PEOPLE'S CHOICE: ERISA Suit Class Certification Hearing Set Dec. PRISON HEALTH: Discovery Ongoing in Pa. Physician's Litigation PROVIDENCE HEALTH: Ore. Suit Over Patient Data Theft Dismissed PRUDENTIAL INSURANCE: $2M Deal in Suit Over “Modal” Payment Ok'd PRUDENTIAL SECURITIES: Seeks Dismissal of Mutual Funds Lawsuits PRUDENTIAL INSURANCE: Settles Mortgage Securities Suit for $7.5M PRUDENTIAL FINANCIAL: Still Faces Stockbrokers' Suits in Calif. SAN DIEGO GAS: Accused of Negligence in Two California Fires SCHYLLING ASSOCIATES: Recalls Music Box on Paint's Lead Level SCOTTISH RE: N.Y. Court Partially Dismisses Securities Suit SOLUTIA INC: Plaintiffs in SIP Plan Suit Appeal Case Dismissal SPIN MASTER: Recalls Beads that Caused Child's Hospitalization SPIN MASTER: Faces Suit Over Toys Coated with “Date Rape Drug” TITAN CORP: Col. Court Dismisses Suit Over Abu Ghraib “Abuses” TOWN SPORTS: Faces Suits in N.Y. Alleging Labor Law Violations TRINITY INDUSTRIES: Nov. Settlement Hearing Set in Waxler's Suit YAMAHA CORP: Recalls Power Adaptors Due to Electric Shock Hazard New Securities Fraud Cases SANOFI-AVENTIS: Coughlin Stoia Files N.Y. Securities Fraud Suit ********* ACCREDO HEALTH: Continues to Face Securities Litigation in Tenn. ---------------------------------------------------------------- Accredo Health Group, Inc., a wholly owned subsidiary of Medco Health Solutions, Inc., still faces a consolidated securities fraud class action in the U.S. District Court for the Western District of Tennessee. The suit was filed against the company, and two former company officers, one of whom is now a director at Medco Health Solutions. The lawsuit alleges violations of Section 10(b) of the U.S. Securities Exchange Act of 1934 and Rule 10(b)(5) promulgated thereunder, and Section 20 of the Securities Exchange Act of 1934. The putative class representatives seek to represent a class of individuals and entities that purchased company's stock from June 16, 2002 to April 7, 2003 and who supposedly suffered damages from the alleged violations of the securities laws. On June 30, 2004, the court appointed Bernstein Litowitz Berger & Grossmann LLP's client the Louisiana School Employees Retirement System and individual plaintiff Debra Swiman as co lead plaintiffs for the class in the consolidated action. Bernstein Litowitz was appointed as co-lead counsel. Lead plaintiffs filed a consolidated complaint on Sept. 15, 2004. Plaintiffs' allegations against Accredo and its top officers arise out of Accredo's overstated fourth quarter 2002 and second quarter 2003 financial statements. The alleged false statements relate to the company's inadequate reserves for nearly $60 million in uncollectible accounts receivable. On April 11, 2005, the court denied defendants' motion to dismiss the consolidated complaint. Discovery has commenced and is continuing. On March 7, 2006, the Magistrate Judge issued its Report and Recommendation recommending that lead plaintiffs' motion for class certification be granted. On April 19, 2006, the court entered an order adopting the Report and Recommendation, certifying the class and appointing Louisiana School Employees Retirement System and Debra Swiman as class representatives and BLB&G as co-class counsel. Medco Healt reported no development in the matter in its Nov. 1, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended Sept. 29, 2007. The suit is "Ferrari, et al. v. Accredo Health, Inc., et al., Case No. 2:03-cv-02216-BBD," filed in the U.S. District Court for the Western District of Tennessee under Judge Bernice B. Donald. Representing the plaintiffs is: Tor Gronborg, Esq. Trig R. Smith, Esq. Lerach Coughlin Stoia Geller Rudman & Robbins, LLP 401 B St., Ste. 1700 San Diego, CA 92101 Phone: 619-231-1058 Representing the company are: Douglas F. Halijan, Esq. Jef Feibelman, Esq. Burch Porter & Johnson 130 N. Court Avenue Memphis, TN 38103 Phone: 901-524-5000 Fax: 901-524-5024 - and - John H. Goselin, Esq. Oni A. Holley, Esq. Peter Q. Bassett, Esq. Alston & Bird One Atlantic Center, 1201 West Peachtree St. Atlanta, GA 30309-3424 Phone: 404-881-7000 AMERICAN HONDA: Recalls Lawn Mowers Due to Fire Hazard ------------------------------------------------------ American Honda Motor Corp., of Torrance, California, in cooperation with U.S. Consumer Product Safety Commission, is recalling about 22,000 Honda HRX217KHXA and HRX217KHMA lawn mowers. The company said due to a manufacturing defect, a crack can occur in the fuel tank causing a fuel leak. If gasoline leaking from the fuel tank is ignited, a fire or explosion can occur. American Honda Motor Corp. has received six reports of fuel leakage. No fires or injuries have been reported. The recall involves HRX walk-behind lawn mowers with model numbers HRX217KHXA and HRX217KHMA. Only serial numbers from 1400001 through 1453714 are included in the recall. The model and serial number are printed on a label located on the upper rear of the deck. The lawn mower is dark gray with a red engine cover. These recalled lawn mowers were manufactured in the United States and are being sold at Honda Lawn and Garden dealers nationwide, including The Home Depot stores, from January 2007 through September 2007 for between $800 and $900. Pictures of recalled lawn mowers: http://www.cpsc.gov/cpscpub/prerel/prhtml08/08077a.jpg http://www.cpsc.gov/cpscpub/prerel/prhtml08/08077b.jpg Consumers are advised to stop using these recalled lawn mowers immediately and contact any Honda Lawn and Garden dealer to have the fuel tank replaced. Registered owners of the recalled lawn mowers will be mailed a notice. or additional information, contact Honda at (800) 426-7701 between 8:30 a.m. and 5 p.m. ET Monday through Friday, or visit the firm's Web site: http://www.hondapowerequipment.com. APRIA HEALTHCARE: Nov. 26 Trial for Calif. Labor Lawsuit Vacated ---------------------------------------------------------------- A Nov. 26, 2007 trial scheduled for a purported class action filed against Apria Healthcare Group, Inc. in California Superior Court for the County of San Francisco has been vacated with no new date being set. The suit contains blanket claims of liability under various California employee protection statutes and regulations relating to: -- payment of regular and overtime wages; -- the timeliness of such payments; -- the maintenance and provision of access to required payroll records; and -- the provision of meal and rest periods. The suit is "Venegas v. Apria Healthcare, Inc., et al., Case No. CGC-06-449669," filed on Feb. 21, 2006. No class has been certified at this time but the complaint seeks compensatory and punitive damages in an unspecified amount as well as other relief on behalf of a purported class consisting of certain hourly employees of the company in the State of California. The company has filed an answer to the complaint denying all material allegations and asserting a number of affirmative defenses. On Oct. 24, 2007, the Court granted summary adjudication in favor of the company on four of the nine causes of action stated in the plaintiff’s complaint (for unjust enrichment, false imprisonment, fraud and declaratory relief). On the same date, the Court issued orders vacating the Nov. 26, 2007 trial date previously set by the Court, granted the plaintiff’s motion to reinstate the class action allegations of the complaint which the Court had stricken from the complaint on Aug. 15, 2007, and set a case management conference for Dec. 4, 2007. A new trial date has not been set, and no ruling has been made on whether this case may be certified as a class action, according to America Service's Nov. 2, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended Sept. 30, 2007. Apria Healthcare, Inc. -- http://www.apria.com/-- provides a range of home healthcare services through approximately 475 branch locations that serve patients in all 50 states throughout the U.S. The company has three service lines: home respiratory therapy, home infusion therapy and home medical equipment. BLOOMBERG LP: Fourth Plaintiff Joins Discrimination Lawsuit ----------------------------------------------------------- Monica Prestia has joined a lawsuit against Bloomberg L.P. accusing the financial services and media company of violating federal law by discriminating against a class of female employees who became pregnant and took maternity leave, Ray Riviera of the New York Times reports. In September, the U.S. Equal Employment Opportunity Commission filed the suit under Title VII of the Civil Rights Act, as amended by the Pregnancy Discrimination Act (Class Action Reporter, Oct. 25, 2007). In its suit, the EEOC asserts that Bloomberg engaged in a pattern or practice of demoting and reducing the pay of female employees after they announced their pregnancies and after they took maternity leave. Some women were replaced by more junior male employees, the EEOC says. The lawsuit also alleges that the same pregnant women and new mothers were excluded from management meetings and subjected to stereotyping about their abilities to do their jobs because of their family and caregiver responsibilities. Complaints made by the women to Bloomberg’s human resources department were dismissed. The EEOC filed its lawsuit (Civil Action No. 07- CIV 8383) in U.S. District Court for the Southern District of New York after first attempting to reach a voluntary settlement. The suit seeks monetary relief; an order requiring the company to implement new policies and practices to prevent discrimination; training on anti-discrimination laws; posting of notices at the work site; and other injunctive relief. Ms. Prestia, the fourth woman to join the class action, says that she was hired as an account executive with Bloomberg in 1997 and within two years was promoted to Latin American sales manager for Bloomberg Television. Ms. Prestia had filed a separate federal lawsuit against the company in June after filing a complaint with the commission. Her lawyer, Richard A. Roth, said she would drop her own lawsuit. Ms. Prestia said after she had her first child in 2005, she received the worst performance review of her career, her compensation fell, and a supervisor who could not have children of her own was openly hostile to her. The hostility only increased when Ms. Prestia complained to the Human Resources Department, which did not take action, the complaint states. Bloomberg denied the allegations, but is not opposing her motion to intervene. The suit is seeking monetary damages and an order that the company put new policies into effect to prevent discrimination. Ms. Prestia is represented by: Richard A. Roth The Roth Law Firm PLLC 545 Fifth Avenue, Suite 960 New York, New York 10017 Phone: 212-542-8882 Cell Phone: 914-484-5555 Fax: 212-542-8883 BRITISH AIRWAYS: U.S. Passengers' Suit Over Lost Luggage Widened ---------------------------------------------------------------- Seattle-based law firm Hagens Berman Sobol Shapiro (HBSS) filed an amended complaint against British Airways (NQB: BAIRY), expanding its allegations that the airline giant acted recklessly when it lost more than one million items of passenger baggage over the past years, and should reimburse passengers for actual loses. In September, three U.S. travelers filed a proposed class action in federal court in Seattle alleging British Airways caused them a major inconvenience for mishandling their luggage (Class Action Reporter, Sept. 7, 2007). According to the suit, filed by Hagens Berman Sobol Shapiro, British Air loses 23 bags per 1,000 passengers carried, about 60 percent more than the industry average and twice as bad as the worst U.S. carrier. The suit claims that British Airways has lost more than one million items of baggage over the past two years. The complaint claims British Airways violated provisions of the Montreal Convention, which governs how airlines handle passenger baggage. The convention, to which the United States and 124 other countries are signatories, also provides means by which airlines can be held legally and financially liable for damages sustained in cases of destruction, damage to, or temporary or complete loss of checked baggage. The suit seeks to recover actual losses incurred by travelers who had luggage lost, delayed or damaged. According to the suit, the Montreal Convention waives the $1,500 loss limit when the carrier is reckless and has knowledge that damage would probably result. "Since the complaint was filed in September, we have been inundated with calls and e-mails from passengers who experienced horrific treatment by British Air, in the way the airline dealt with baggage, and how they dealt with passengers searching for luggage," said Steve Berman, managing partner of the firm. Aside from additional plaintiffs, the amended complaint includes newly discovered statements and documents by British Air insiders acknowledging the breakdown in baggage handling. The suit also claims that despite an April 2007 report that the airline's baggage handling system was overloaded by nearly 25 percent, British Air failed to alert passengers to the increasing complications posed by their flawed system. Additional reports indicate that the airline's backlog of mishandled passenger baggage reached 20,000 pieces by March 2007, the complaint states. The amended complaint goes on to cite that British Air workers claim that in reality the backlog neared 40,000 bags at that time. Among the new plaintiffs is Laura Hutchinson, a student attending the University of Washington and among the thousands of British Air passengers who have not seen their luggage since checking it upon departure. In June 2007, Ms. Hutchinson set off for Paris where she would participate in a two-month study-abroad program. Her luggage contained many crucial study materials, two months worth of clothing and other necessary travel accessories. According to the amended complaint, when Ms. Hutchinson discovered her baggage was missing, British Air directed her to continue to her dormitory and that her bags would reach her the next day. Despite the airline's promises and several failed attempts to locate its whereabouts, the luggage never arrived and Ms. Hutchinson has yet to be fully compensated for her losses. Cindy Kerr experienced similar, if not more, frustration upon traveling to Nairobi, Africa on business in June 2007. As chief marketing officer for a non-governmental organization that helps to provide irrigation equipment for underdeveloped parts of Africa, Kerr's luggage contained important business materials and all of her personal items necessary for a six-week trip to rural parts of Africa. According to the amended complaint, after Ms. Kerr was informed that her baggage was missing, British Air officials directed her to return to the airport in Nairobi on at least four separate occasions so she could personally search for her bags amid piles of other unclaimed bags. Each trip proved fruitless and finally, Ms. Kerr was informed that her bag had "disappeared" from the airline's tracking system. The suit seeks to recover actual losses incurred by travelers who had luggage lost, delayed or damaged. According to the suit, the Montreal Convention waives the $1,500 loss limit when the carrier is reckless and has knowledge that damage will probably result to travelers. The amended complaint claims British Airways is liable under the terms of the Montreal Convention, which governs how airlines handle passenger baggage. The Convention, to which the United States and 124 other countries are signatories, also provides means by which airlines can be held legally and financially liable for damages sustained in cases of destruction, damage to, or temporary or complete loss of checked baggage. The suit seeks to represent American international British Air travelers who had luggage lost or damaged or delayed between September 5, 2005 and September 5, 2007. The suit is “Smith et al. v. British Airways Plc, Case Number: 2:2007cv01370,” filed in the Western District of Washington, under Hon. Marsha J. Pechman. Representing plaintiffs are: Steve Berman Hagens Berman Sobol Shapiro Phone: (206) 623-7292 E-mail: Steve@hbsslaw.com Website: http://www.hbsslaw.com/britishair.htm - and - Mark Firmani Firmani & Associates, Inc. Phone: (206) 443-9357 E-mail: mark@firmani.com CREDIT SOLUTIONS: Cheats Its Customers, Washington Suit Claims -------------------------------------------------------------- CSA-Credit Solutions of America based in Addison, Texas, is facing a class-action complaint filed in the U.S. District Court for the Western District of Washington, claiming it defrauds consumers, the CourtHouse News Service reports. Named plaintiffs Jessica and Matt McDaniel alleges CSA defrauds consumers by promising to reduce their debt by 60 percent, promising to "repair (their) credit," for which they charge 15 percent of the total debt, then gives horrible advice, fails to negotiate with creditors, and leaves customers with even worse credit than they started. This action is brought and may be maintained pursuant to Federal Rules of Civil Procedures 23(b)(3), on behalf of: (a) all persons in the United States who signed a services contract with CSA and made at least one monthly fee payment to CSA pursuant to that agreement; and (b) all persons who, while residents of Washington State, signed a services contract with CSA and made at least one monthly fee payment to CSA pursuant to that agreement. Plaintiffs want the court to rule on: (1) whether CSA is a "credit repair organization" within the meaning of 15 U.S.C. Section 1679a(3); (2) whether CSA's practice of charging and/or receiving fees prior to performing its services in full violates 15 U.S.C. Section 1679b(b); (3) whether CSA has violated 15 U.S.C. Section 1679c; and (4) whether CSA is liable for punitive damages pursuant to 15 U.S.C. Section 1679g(a)(2). They demand judgment and other relief as follows: -- certification of the class pursuant to Fed.R.Civ.P. 23; -- judgment in an amount equal to no less than the amount of plaintiffs and the class paid to CSA; -- judgment in an amount equal to no less than the amount plaintiffs and the class paid to CSA; -- judgment in an amount equal to the amount that plaintiffs paid to CSA; -- judgment for punitive damages; -- equitable and injunctive relief; -- for appropriate attorney's fees; -- for costs of this action; and -- for any other relief that the court deems just and proper. The suit is "Jessica McDaniel et al. v. CSA-Credit Solutions of America, Inc., Case No. 07-CV-01815-CMP," filed in the U.S. District Court for the Western District of Washington. Representing plaintiffs are: Steve W. Berman Tyler S. Weaver 1301 Fifth Avenue, Suite 2900 Seattle, WA 98101 Phone: (206) 623-7292 Fax: (206) 623-0594 E-mail: steve@hbsslaw.com or tyler@hbsslaw.com DEL REY TORTILLERIA: Recalls Tortillas for Possible Health Risk --------------------------------------------------------------- Del Rey Tortilleria, Inc., Chicago, Illinois, is announcing the recall of its flour tortilla products. Included in the recall are flour tortillas of all sizes [White Flour Tortillas; Tortillas de Harina(6 inch); Burritos 2, 3, and 4; and Fajita 8" size] with the name "Del Rey" on the label, and with one of these Date Codes: OCT/17/07; OCT/20/07; OCT/24/07; NOV/04/07; NOV/10/07; or NOV/11/07. Illinois state officials have told us that they believe there is a connection between the tortillas and recent illnesses in Racine, WI schools, in which students experienced vomiting, nausea and abdominal cramps. If you experience symptoms of this type, you should consult a health professional. State officials have told us that they do not believe the problem involves microbial contamination. Del Rey is not certain that its products caused the reported symptoms, but is recalling the product nevertheless as a precaution while its investigation continues. This recall does not affect any other Del Rey products. The products were distributed nationwide through food distributors and grocery stores. Consumers should immediately return any product that is subject to this recall to the store where it was purchased for a full refund or replacement. Consumers with questions may contact the company by calling Marcy Toledo, General Manager, at 773 637-8900. DELTA AIR: Objects to Former Employees' Class Certification Bid --------------------------------------------------------------- Delta Air Lines, Inc., asks the Court to: (a) disallow and expunge Claim Nos. 8601 & 8604 filed in the names of George T. Baker, Herbert Summers, Charles L. Strickland and Donald F. Mairose; and (b) deny with prejudice Baker, et al.'s requests (i) for certification of class under Rule 7023 of the Federal Rules of Civil Procedure, and (ii) to appoint counsel. Baker, et al., filed the proofs of claim against the Debtors, asserting a portion of their retirement benefits that have been allegedly disregarded in the calculation of claims for damages arising from the termination of the non-qualified retirement plans, which was expected to exceed $100,000,000 against Delta. Baker, et al., are members of DP3, Inc., doing business as Delta Pilots' Pension Preservation Organization. According to Baker, et al., the Class claim was also filed on behalf of the persons who are similarly situated, consisting of all persons who (i) were previously employed by Delta as pilots, (i) retired from service with Delta prior to September 2, 2006, (iii) qualified as participants under the Qualified Plan, and (iv) are not being allowed a claim for their full retirement benefits under the Qualified and Non-Qualified Plans, owing to Delta's disregard of the benefits' portions through the Debtors' inconsistent application of the compensation and benefit limitations, as specified in IRC Section 401(a)(17) and Section 415(b). Class Claims in Question Marshall S. Huebner, Esq., at Davis Polk & Wardwell, in New York, relates that Delta, DP3, and the DP3 claimants underwent arm's-length negotiations to settle all claims arising out of, or relating to Delta's non-qualified pension plans. Delta provided for the claims their individual calculation methodologies as duly approved by the Court and supported by DP3. In seeking non-qualified pension claims from Delta, on top of the expected calculation of qualified pension benefits by the Pension Benefit Guaranty Corporation, DP3 has violated the express terms of the Court-approved settlement, Mr. Huebner contends. Mr. Huebner further finds that DP3's clear attempt to recover from Delta benefits that may possibly be lost on account of the PBGC's application of the Employee Retirement Income Security Act rules, is not supported by any legal principle. No contractual provision allows a non-qualified pension claim against Delta to offset a possible loss of PBGC-paid qualified pension benefits. Moreover, the attempt gives PBGC the grounds to contend that any top up claim would be illegal under the ERISA, as amended in 1974, he says. Mr. Huebner points out that the Class claim is barred by virtue of being filed (i) in direct violation of two comprehensive settlements enshrined in two written stipulations ordered approved, final and non-appealable by the Court; and (ii) after the expiration of all possible deadlines. Delta: Class Certification Inappropriate Similarly, Delta says that the DP3 claimants' request for certification is untimely, as it was filed after the effective date of a confirmed Chapter 11 Plan and after the expiration of the applicable bar dates for the members of the putative Class. Class certification is not appropriate in the period immediately preceding a plan confirmation, and is certainly not appropriate after distributions have commenced. Owing to their apparent purpose to collaterally attack negotiated settlements, neither DP3 or the DP3 claimants can possibly meet the rigorous standards for certification under Rule 23 of the Federal Rules of Civil Procedure, nor can their counsel, Miller & Martin PLLC, be appointed to represent any Class, Mr. Huebner contends. The Debtors maintain that the Court should decline to exercise its discretion to certify the DP3 Class action because the asserted Class claim is a thinly-disguised effort to evade Title IV of ERISA by recovering for the termination of a qualified, defined benefits plan. Specifically, the Debtors find that the DP3 claimants seek more non-qualified claims to evade the possibility that the PBGC will assign certain benefits a lower priority based on application of ERISA's three- and five-year look-back rules. The rules, with respect to ERISA's Title IV, require the PBGC to determine the benefit payable to a retiree based on (i) his or her age, pay and service three years prior to the pension plan termination, and (ii) the benefit plan terms five years prior to its termination. The calculated amount will then be compared to the amount actually being paid to the retiree at pension plan termination, giving a lower payment priority to the difference between the two, Mr. Huebner explains. Notwithstanding the circumstances, the Debtors maintain that the DP3 claimants' Class claim and request for certification fail because the lengthy Class action process begins only upon the Court's finding that the claim satisfies each of the Civil Rule requirement, and thereafter, Rule 9014 of the Federal Rules of Bankruptcy Procedure allows the Court to choose, in its absolute discretion, to permit the DP3 Class claim under Rule 23 of the Federal Rules of Civil Procedure. DP3 and Class Claimants Respond Baker, et al., contend that their Class claim "seek only to compel Delta to liquidate and allow the Class of retired pilots' claim for the full economic loss caused by Delta's termination of the Non-Qualified Plans in accordance with the terms of the settlements between Delta and DP3." Dean Booth, Esq., at Miller & Martin LLC, in Chattanooga, Tennessee, finds that the Debtors' arguments to the request for Class certification are irrelevant as it relates to the merit of the Class claim, as opposed to the fact that the Court's determination is based only whether the nominal Class representatives meet the requirements for certification required by Civil Rules 23(a) and 23(b). Rather than collaterally attack the DP3 and Delta settlements on which the members of the putative Class relied, the Class claimants seek to enforce the terms of the settlement and compel Delta to liquidate the claims of the putative Class to the extent that the claims include all post-termination, non- qualified pension benefits lost as a result of Delta's termination of the NQ Plans, he says. In addition, the unsecured Class claim seeks to recover the disregarded benefit payable directly by the Debtors under the NQ Plans, while the PBGC's claim asserts unfunded benefits arising under the Qualified Plan. In this regard, the Class claim do not usurp the PBGC's authority afforded in Title IV of ERISA, Mr. Booth clarifies. The Class claimants assert their standing to pursue the Class claim for the "actual economic loss" suffered by the individual claimants and members of the putative Class, as caused by Delta's failure to properly compute and schedule the amount of lost pension benefits pursuant to the Plans, and the settlements between DP3 and Delta. Moreover, the Class claimants assert their constitutional standing to prosecute their Class claim, as an injury-in-fact was caused by Delta's calculation of the Class claimants' benefits without regard to the compensation and benefit limitations specified in IRC Sections 401(a)(17) and 415(b). The Class claimants' statutory standing to pursue the Class claims is also empowered by Title I of ERISA, which authorizes a plan participant -- defined as any employee or former employee -- to bring an action to recover benefits under a retirement plan, Mr. Booth asserts. Mr. Booth adds that contrary to Delta's contention that the PBGC possesses the exclusive authority to pursue a claim for unpaid benefits, ERISA affords standing to Class claimants, as participants of the NQ Plans, to assert the Class claim. This is reinforced by the termination of the Qualified Plan and the PBGC's appointment as the Statutory Trustee. Under the assumption that the PBGC maintains an exclusive authority to pursue a claim for unfunded benefit liabilities relating to the terminated Qualified Plan, the Class claim, reflecting a general unsecured claim for a benefit payable under the NQ Plans, does not infringe upon the PBGC's authority, Mr. Booth maintains. According to DP3, Delta's contention that the Class claimants failed to file their claim by the Bar Date, is "misplaced", because: (a) the stipulations and settlements between Delta, the Committee and DP3 created for the Class a reasonable expectation that they are allowed an unsecured claim that included all "actual economic loss" resulting from the termination of the NQ Plans; and (b) the many pleadings filed by DP3 preserve and recover pension benefits for all retired pilots constitute informal proofs of claim by members of the putative Class for all "actual economic loss". Alternatively, the Court should find that the Class claimants' failure to file within the deadline was the result of "excusable neglect", and the Bar Date should be extended, pursuant to Rule 9006(b)(1), Mr. Booth asserts. DP3 further asserts the reasonability of the Class claim, as the prerequisites to certification of the Class under Civil Rule 23 has been satisfied: * At least 3,485 retirees have presumably suffered a loss of the disregarded benefit complies with the numerosity requirement; * The untimely filing of an informal claim prior to the expiration of the purported Bar Date is caused by inadequacy of Delta's notice; and * Certification of the Class will facilitate the prompt resolution of the substantive legal issues, binding all members of the Class in one proceeding. Accordingly, the DP3 and the Class claimants ask the Court to: (a) allow the Class claims; (b) certify the Class under Civil Rules 23(b)(i) and (b)(3); and (c) appoint (i) Dean Booth, Esq., (ii) Shelley D. Rucker, Esq., and (iii) Nicholas W. Wittenburg, Esq., of Miller & Martin PLLC, as Class counsel. PBGC Calls for ERISA-Unrelated Resolution In a separate filing, the Pension Benefit Guaranty Corporation holds that the Court "can, and should, resolve the motion and the objection without deciding any issues relating to Title IV of ERISA." Alternatively, the PBGC reserves the right to fully brief the ERISA issues prior to any decision reached in the proceeding, as the disputed issues may have a significant impact on the ERISA- administered Title IV pension plan termination insurance program. (Delta Air Lines Bankruptcy News, Issue Number 83; Bankruptcy Creditors' Service, Inc., http://bankrupt.com/newsstand/or 215/945-7000). DERMALIVE: Canadian User Sues Over Anti-aging Treatment Damage -------------------------------------------------------------- A Montreal victim of anti-wrinkle treatment Dermalive is seeking permission to launch a $10 million class action in Quebec Superior Court on behalf of about 1,500 women affected by the product, it emerged in a report by Charlie Fidelman of The Gazette. The complainant is Doris Durand whose face erupted in painful lumps at every part injected with the filler, and her lips swelled alarmingly within a year of using the product. She had her lips opened and the implant scraped away, but the swelling reaction continues until now. Dermalive is an injectable permanent filler whose plastic particles stimulate collagen growth in the soft tissue to plump out dimples and wrinkles. It was approved by Health Canada in 2003, the same year its licence as a medical product was suspended in France. Health Canada quietly suspended Dermalive's use this summer after receiving eight cases of problems with the implant this year. It is now banned in the U.S. and is subjects of legal suits in Europe. FIRST CONSULTING: Sued Over Plan to Merge with Computer Sciences ---------------------------------------------------------------- A putative class action styled, “Joshua Teitelbaum v. First Consulting Group, Inc., et al. (Case No. BC380470)” was filed on Nov. 8, 2007 in the Superior Court of the State of California in and for the County of Los Angeles, purportedly on behalf of the public holders of Fist Consulting's common stock. The complaint names as defendants the company and each of FCG’s directors, and alleges, among other things, that FCG’s directors breached their fiduciary duties by adopting the Agreement and Plan of Merger dated October 30, 2007, between FCG, Computer Sciences Corporation, and LB Acquisition Corp., and by approving the merger described therein. The complaint further alleges that the proposed merger provides FCG’s public stockholders with inadequate consideration for their shares of FCG common stock. The plaintiff seeks, among other things, class action status, an injunction preventing the completion of the merger, rescission of the merger agreement, and the payment of attorneys’ fees and expenses. The company said it believes the lawsuit is without merit and intend to defend the action vigorously. INTUIT INC: E-Filing Firms Sued Over Fees Collected on Taxpayers ---------------------------------------------------------------- The law firms Feldman Shepherd Wohlgelernter Tanner & Weinstock and Cooley & Handy filed a class action suit against a group of income tax software companies that are part of a cartel known as the Free File Alliance LLC. The suit names as defendant Intuit Inc., H&R Block Inc., H&R Block Digital Tax Solutions LLC and Free Fire Alliance LLC. The suit, brought by Philadelphia resident Stacie Byers, alleges that cartel members including H&R Block and Intuit unlawfully charged millions of U.S. taxpayers excessive e-filing fees. Damages are estimated in the billions of dollars. "This amounts to a tax on e-filing tax returns. Hardworking taxpayers deserve better," said Feldman Shepherd partner Thomas More Marrone. "This is government outsourcing at its worst." The complaint, filed in the U.S. District Court for the Eastern District of Pennsylvania, asserts that the IRS contracted with the cartel to collect e- filed federal tax returns on its behalf. As agents of the IRS, federal law required cartel members to set "fair and uniform" fees for e-filing. But cartel members set their fees based solely on profit, the complaint states. "The private tax software companies have used the 'Free File' arrangement to push commercial products they sell, and until recently tried to get taxpayers to buy high-rate 'refund anticipation loans,' said Alan M. Feldman, Managing Partner of Feldman Shepherd. "The name 'Free File Alliance' is clearly misleading," Marrone said. "E- filing has become an enormous profit center for cartel members." The class action seeks a full refund of all fees paid for e- filing, as well as injunctive relief. Defendants include all members of the cartel which charged fees to electronically file federal tax returns. Cooley & Handy partner Kevin Handy said, "The U.S. should join other civilized nations in allowing its citizens to e-file tax returns for free. The truth is it costs the government less to process an e-filed return than a paper one." The Free File Alliance said the suit is without merit. The suit is "Byers v. Intuit, Inc. et al., Case No. 2:07-cv- 04753-MK," filed in the U.S. District Court for the Eastern District of Pennsylvania under Judge Marvin Katz. Representing the plaintiff are: Thomas More Marrone, Esq. Feldman Shepherd 1845 Walnut Street 25th Floor Philadelphia, PA 19103 Phone: 215-567-8300 Fax: 215-567-8333 E-mail: cherling@feldmanshepherd.com ISRAELI BROADCASTING COS: Face Suit for Limiting Competitions ------------------------------------------------------------- An attorney filed a NIS438 million ($111 million) class action against competitors Sports Channel and the broadcast company Charlton claiming the two coordinated broadcasting times of Saturday sporting events in order to avoid competition, Arnon Ben-Yair of Haaretz Daily reports. Charlton owns the rights to Israeli and English soccer and basketball games. Its competitor, the Sports Channel, broadcasts Spanish and Italian soccer games. Attorney Shlomi Cohen said that under an October 2004 agreement over broadcast rights, the Sports Channel may broadcast live Spanish and Italian games only before 9:30 p.m. so that sports lover would have fewer options on Saturday and so opt to watch Charlton on pay-per-view. Antitrust Commissioner Ronit Kan is supporting the suit believing that the 2004 agreement is anticompetitive. She submitted her position to the Tel Aviv District Court. "...[T]he companies' agreement constitutes a horizontal division of the market between competitors, the most severe type. The commissioner says that the law clearly sees such a move as harmful to competition," she said. "The Sports Channel has simply denied consumers access to a substantial part of the market," she added. MEDCO HEALTH: Settles Mass. Suit Over PolyMedica Corp. Merger ------------------------------------------------------------- Medco Health Solutions, Inc., which Merck & Co., Inc. acquired in 1993, has settled a class action over a merger agreement with PolyMedica Corp. Under the terms of the Agreement and Plan of Merger dated Aug. 27, 2007, PolyMedica shareholders received $53 in cash for each outstanding share of PolyMedica common stock. The Company funded the transaction on Oct. 31, 2007 through a combination of $1 billion in bank borrowings from its existing $2 billion revolving credit facility and cash on hand. In August 2007, a putative stockholder class action related to the merger was filed by purported stockholders of PolyMedica Corp. in the Superior Court of Massachusetts for Middlesex County against, amongst others, the Company and its affiliate, MACQ Corp. The lawsuit captioned, “Groen v. PolyMedica Corp. et al.,” alleges, among other things, that the price agreed to in the merger agreement was inadequate and unfair to the PolyMedica stockholders and that the defendants breached their duties to the stockholders and/or aided breaches of duty by other defendants in negotiating and approving the merger agreement. Shortly thereafter, two virtually identical lawsuits (only one of which named the Company as a defendant) were filed in the same court. The complaints allege claims for breach of fiduciary duty and seek injunctive, declaratory and other equitable relief. On Sept. 28, 2007, the parties to these actions reached an agreement in principle to settle the actions, according to the company's Nov. 1, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended Sept. 29, 2007. Medco Health Solutions Inc. -- http://www.medco.com/-- is a pharmacy benefit manager. The Company provides traditional and specialty prescription drug benefit programs and services for its clients, members of client-funded benefit plans or those served by the Medicare Part D Prescription Drug Program (Medicare Part D), and individual patients. MEDCO HEALTH: Still Faces Several ERISA Complaints in N.Y. ---------------------------------------------------------- Medco Health Solutions, Inc., which Merck & Co., Inc. acquired in 1993, continues to face purported class actions, alleging violations of Employee Retirement Income Security Act. Gruer Litigation In December 1997, a lawsuit captioned, “Gruer v. Merck-Medco Managed Care, L.L.C.,” was filed in the U.S. District Court for the Southern District of New York against Merck and the Company. The suit alleges that the Company should be treated as a “fiduciary” under the provisions of ERISA (the Employee Retirement Income Security Act of 1974) and that the Company had breached fiduciary obligations under ERISA in a variety of ways. After the Gruer case was filed, a number of other cases were filed in the same court asserting similar claims. In December 2002, Merck and the Company agreed to settle the Gruer series of lawsuits on a class action basis for $42.5 million, and agreed to certain business practice changes, to avoid the significant cost and distraction of protracted litigation. The release of claims under the settlement applies to plans for which the Company has administered a pharmacy benefit at any time between Dec. 17, 1994 and the date of final approval. It does not involve the release of any potential antitrust claims. In May 2004, the U.S. District Court granted final approval to the settlement and a final judgment was entered in June 2004. Various appeals were taken and in October 2007, the U.S. Court of Appeals for the Second Circuit overruled all but one objection to the settlement that had been the subject of the appeals. The appeals court vacated the lower court’s approval of the settlement in one respect, and remanded the case to the District Court for further proceedings relating to the manner in which the settlement funds should be allocated between self-funded and insured plans. The plaintiff in one of the Gruer series of cases discussed above, “Blumenthal v. Merck-Medco Managed Care, L.L.C., et al.,” has elected to opt out of the settlement. Similar ERISA-based complaints against the Company and Merck were filed in eight additional actions by ERISA plan participants, purportedly on behalf of their plans, and, in some of the actions, similarly situated self-funded plans. The ERISA plans themselves, which were not parties to these lawsuits, had elected to participate in the Gruer settlement discussed above and, accordingly, seven of these actions had been dismissed pursuant to the final judgment discussed above. Jones Litigation The plaintiff in another action, “Betty Jo Jones v. Merck-Medco Managed Care, L.L.C., et al.,” has filed a Second Amended Complaint, in which she seeks to represent a class of all participants and beneficiaries of ERISA plans that required such participants to pay a percentage co-payment on prescription drugs. The effect of the release under the Gruer settlement discussed above on the Jones action has not yet been litigated. United Food Litigation In addition to these cases, a proposed class action complaint against Merck and the Company has been filed in the U.S. District Court for the Northern District of California by trustees of another benefit plan, the United Food and Commercial Workers Local Union No. 1529 and Employers Health and Welfare Plan Trust. This plan has elected to opt out of the Gruer settlement. The suit, “United Food and Commercial Workers Local Union No. 1529 and Employers Health and Welfare Plan Trust v. Medco Health Solutions, Inc. and Merck & Co., Inc.,” has been transferred and consolidated in the U.S. District Court for the Southern District of New York by order of the Judicial Panel on Multidistrict Litigation. Miles Litigation In September 2002, a lawsuit captioned, “Miles v. Merck-Medco Managed Care, L.L.C.,” based on allegations similar to those in the ERISA cases discussed above, was filed against Merck and the Company in the Superior Court of California. The theory of liability in this action is based on a California law prohibiting unfair business practices. The Miles case was removed to the U.S. District Court for the Southern District of California and was later transferred to the U.S. District Court for the Southern District of New York and consolidated with the ERISA cases pending against Merck and the Company in that court. The company reported no development in the matter in its Nov. 1, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended Sept. 29, 2007. The suit is “In Re: Medco Health ERISA Litigation, Case No. 7:03-md-01508-CLB,” filed in the U.S. District Court for the Southern District of New York under Judge Charles L. Brieant. Representing the plaintiffs are: Linda J. Cahn, Esq. Mark Gardy, Esq. Abbey, Gardy & Squitieri, LLP 212 East 39th Street New York, NY 10016 Phone: (212) 889-3700 - and - Philippe Z. Selendy, Esq. Boies, Schiller & Flexner, LLP 570 Lexington Avenue 16th Floor New York, NY 10022 Phone: (212) 446-2300 Representing the company are: Bruce B. Kelson, Esq. Kenneth M. Kramer, Esq. James P. Tallon, Esq. Shearman & Sterling 555 California Street, 20th Floor San Francisco, CA 94104 Phone: (415) 616-1100 E-mail: jtallon@shearman.com MEDCO HEALTH: Still Faces Consolidated Antitrust Lawsuits in Pa. ---------------------------------------------------------------- Medco Health Solutions, Inc., and Merck & Co. Inc., which acquired Medco in 1993, continues to face several class actions that were consolidated for pretrial purposes in the U.S. District Court for the Eastern District of Pennsylvania. Brady Enterprises Lawsuit In August 2003, a lawsuit "Brady Enterprises, Inc., et al. v. Medco Health Solutions, Inc., et al." was filed in the U.S. District Court for the Eastern District of Pennsylvania against the company and Merck. The plaintiffs, who seek to represent a national class of retail pharmacies that had contracted with the company, allege that the company has conspired with, acted as the common agent for, and used the combined bargaining power of plan sponsors to restrain competition in the market for the dispensing and sale of prescription drugs. The plaintiffs allege that, through the alleged conspiracy, the company has engaged in various forms of anticompetitive conduct, including, among other things, setting artificially low reimbursement rates to such pharmacies. The plaintiffs assert claims for violation of the Sherman Act and seek treble damages and injunctive relief. The plaintiffs' motion for class certification is currently pending. North Jackson Pharmacy Lawsuit In October 2003, a lawsuit captioned "North Jackson Pharmacy, Inc., et al. v. Medco Health Solutions, Inc., et al." was filed in the U.S. District Court for the Northern District of Alabama against Merck and the company. In their Second Amended Complaint, the plaintiffs allege that: -- Merck and the company have engaged in price fixing and other unlawful concerted actions with others, including other Pharmacy Benefit Managers, to restrain trade in the dispensing and sale of prescription drugs to customers of retail pharmacies who participate in programs or plans that pay for all or part of the drugs dispensed; and -- have conspired with, acted as the common agent for, and used the combined bargaining power of plan sponsors to restrain competition in the market for the dispensing and sale of prescription drugs. The plaintiffs allege that, through such concerted action, Merck and the company have engaged in various forms of anticompetitive conduct, including, among other things, setting reimbursement rates to such pharmacies at unreasonably low levels. The plaintiffs assert claims for violation of the Sherman Act and seek treble damages and injunctive relief. The plaintiffs' motion for class certification has been granted. Mike's Medical Center Lawsuit In December 2005, a lawsuit captioned "Mike's Medical Center Pharmacy, et al. v. Medco Health Solutions, Inc., et al." was filed against the company and Merck in the U.S. District Court for the Northern District of California. The plaintiffs seek to represent a class of all pharmacies and pharmacists that had contracted with the company and California pharmacies that had indirectly purchased prescription drugs from Merck and make factual allegations similar to those in the Alameda Drug Co. action. The plaintiffs assert claims for violation of the Sherman Act, California antitrust law, and California law prohibiting unfair business practices. The plaintiffs demand, among other things, treble damages, restitution, disgorgement of unlawfully obtained profits, and injunctive relief. In April 2006, the Brady plaintiffs filed a petition to transfer and consolidate various antitrust actions against Pharmacy Benefit Managers, including North Jackson, Brady, and Mike's Medical Center before a single federal judge. The motion was granted on Aug. 24, 2006. These actions are now consolidated for pretrial purposes in the U.S. District Court for the Eastern District of Pennsylvania. The consolidated action is known as "In re Pharmacy Benefit Managers Antitrust Litigation." The company reported no development in the matter in its Nov. 1, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended Sept. 29, 2007. Medco Health Solutions Inc. -- http://www.medco.com/-- is a pharmacy benefit manager. The Company provides traditional and specialty prescription drug benefit programs and services for its clients, members of client-funded benefit plans or those served by the Medicare Part D Prescription Drug Program (Medicare Part D), and individual patients. MEDCO HEALTH: Opposes Stay Recommendation in Pharmacies' Suit ------------------------------------------------------------- Medco Health Solutions, Inc. is objecting to a recommendation by a court to deny Medco’s motion to stay, pending arbitration, a suit filed by a class of Oklahoma pharmacies. The suit was filed by Chelsea Family Pharmacy, PLLC in February 2006, and seeks to represent a class of Oklahoma pharmacies that have contracted with the company within the last three years. It alleges, among other things, that the company has contracted with retail pharmacies at rates that are less than the prevailing rates paid by ordinary consumers and has denied consumers their choice of pharmacy by placing restrictions on the plaintiff's ability to dispense pharmaceutical goods and services. The plaintiff asserts that the company's activities violate the Oklahoma Third Party Prescription Act, and seeks, among other things, compensatory damages, attorneys' fees, and injunctive relief. On April 12, 2006, the company filed a motion to dismiss the complaint. On June 12, 2006, the company filed a motion to stay the action pending arbitration. On Sept. 21, 2007, the Magistrate Judge of the U.S. District Court for the Northern District of Oklahoma recommended that the District Court deny Medco’s motion to stay the action pending arbitration. On Oct. 4, 2007, Medco filed an objection to the Magistrate’s Report and Recommendation, according to the company's Nov. 1, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended Sept. 29, 2007. The suit is "Chelsea Family Pharmacy, PLLC. v. Medco Health Solutions, Inc., Case No. 4:06-cv-00118-TCK-SAJ," filed in the U.S. District Court for the District of Oklahoma under Judge Terence Kern with referral to Judge Sam A. Joyner. Representing the plaintiffs are: Bradford D. Barron, Esq. Gibbon Barron & Barron, PA 2 W. 6th St., Ste. 320 Tulsa, OK 74119-1215 Phone: 918-745-0687 Fax: 9180745-0821 E-mail: Bbarron@gbbfirm.com - and - Bobby Leon Latham, Jr., Esq. Latham Stall Wagner Steele & Lehman, PC 1800 S. Baltimore, Ste. 500 Tulsa, OK 74119 Phone: 918-382-7523 Fax: 918-382-7541 E-mail: blatham@lswsl.com Representing the defendants are: Mark Banner, Esq. Hall Estill Hardwick Gable Golden & Nelson 320 S. Boston, Ste. 400 Tulsa, OK 74103-3708 Phone: 918-594-0432 Fax: 918-594-0505 E-mail: mbanner@hallestill.com - and - John Briggs, Esq. Howrey, LLP, 1299 Pennsylvania Ave. NW Washington, DC 20004-2402 Phone: 202-783-0800 MICROSOFT CORP: Seeks Dismissal of Ga. Suit Over Xbox Live ---------------------------------------------------------- Microsoft Corp. has asked a federal court in Georgia to dismiss a purported class action filed by a Georgia man accusing it of fraudulently inducing children to enter into unenforceable contracts to subscribe to Xbox Live Internet services. The suit was originally filed by Francisco Garcia on Aug. 23 in the Superior Court of Fulton County, in the State of Georgia (Class Action Reporter, Aug. 31, 2007). Mr. Garcia, on behalf of his minor child Silvario Garcia, claims Microsoft knows its contracts with kids, for $49.99 a year, which can be renewed online, without a written contract, are illegal, deceitful and unenforceable. Plaintiff brings this class action because of defendant's alleged fraudulent inducement, conversion, fraud and deceit, deceptive trade practices and unjust enrichment. In September, Microsoft filed a motion to have the case moved to federal court. Microsoft has asked the federal court to dismiss the case, claiming it has paperwork that proves Silvario Garcia misrepresented his age when he subscribed to Xbox Live by falsely stating that he was at least 18 years old. Allegations The plaintiff is bringing the action on behalf of all who have been charged fees for XBOX Live subscriptions of any length, with accompanying automatic XBOX Live subscription renewals of any length, where such contracts have been entered into by any minor children in violation of O.C.G.A. Section 13-3-20. He also brings this action on behalf of all who have been charged fees for XBOX Live subscriptions of any length, with accompanying automatic XBOX Live subscription renewals of any length, where such multiple-years contracts with adult class members are not in writing as required under the applicable Statute of Frauds, found in O.C.G.A. Section 13-5-30(5). The plaintiff wants the court to rule: (a) whether the defendant fraudulently induced minor class members to enter into unenforceable contracts for XBOX Live subscription contracts of any length, and accompanying automatic XBOX Live subscription renewal contracts of any length, under the well-established "Infancy Doctrine" found in O.C.G.A. Section 13-3-20; (b) whether the defendant improperly charged initial XBOX Live subscription fees and subsequents automatic XBOX Live subscription renewal fees to adult class members without securing written contracts with adult class members in violation of the Statute of Frauds, found in O.C.G.A. Section 13-5-30(5); (c) whether the defendant's actions constitute conversion; (d) whether the defendant's action constitute fraud and deceit; (e) whether the defendant's actions constitute deceptive trade practices; and (f) whether the defendant's actions constitute unjust enrichment. Plaintiff prays for relief as follows: -- that process issue and service be made according to law; -- that this complaint be served upon defendant in accordance with law; -- that the class be certified in accordance with law; -- for a declaration that defendant's acts complained of are unlawful under stated and/or federal law; -- for the entry of a permanent injunction ordering defendant to establish and properly maintain appropriate internal safeguards as to prevent a repeat of the fate suffered by the class members; -- for an award of pre-judgment interest in an amount to be determined at court; -- for an award of post-judgment interest in an amount to be determined at court; -- for an award of all costs of litigation, including without limitation, attorneys' fees, in an amount to be determined at court; -- for the creation of a court supervised fund to process and distribute awards to the class; and -- for all other relief the court deems just and proper. The suit is "Garcia v. Microsoft Corp., Case No. 1:2007cv02363," filed in the U.S. District Court for the Northern District of Georgia under Judge Timothy C. Batter, Sr. and Judge Clarence Cooper. Representing plaintiffs is: Christopher C. Taylor Hernan Taylor & Lee, LLC 990 Holcomb Bridge Rd, Suite 3 Roswell, Georgia 30076 Phone: (770) 650-7200 Fax: (770) 650-7211 NAPASTYLE: Recalls Pitchers, Tumblers for Possible Health Risk -------------------------------------------------------------- NapaStyle of Napa, California is recalling their Romano Pitchers and Tumblers, because they may contain high levels of leachable lead. No illnesses have been reported to date. The recall was a result of an FDA test that showed that the items may contain lead introduced by the manufacturing process by our supplier. Consumption of leachable lead from the ceramicware can cause severe health problems; especially in infants, young children and pregnant women. High lead exposures can cause a baby to have low birth weight or be born prematurely, or can result in miscarriage or stillbirth. Lead can cause damage to the central nervous system, resulting in learning disabilities and behavioral disorders that could last a lifetime. Children with lead poisoning may not look or act sick. The Romano Pitchers and Tumblers were distributed through our retail stores in California and nationwide through our mail order catalog. These pieces are roughly glazed, with streaks of dark brown clay showing through the variegated green finish. Product Specs: * Pitcher, 44 oz., 7 1/2" h. * Four Tumblers, 145 oz., 4 1/4" h * SKU #’s: 4410, 4411, 4710 The recall was the result of a routine sampling program by the FDA, which revealed that the finished products contained leachable lead that exceeded FDA guidelines. NapaStyle has ceased the production and distribution of the product and will not be reordering this product in the future. Consumers are advised to return all such products a full refund to: NapaStyle Distribution Center 360 Industrial Court, Suite A Benicia, CA 94510 Customers with questions should contact NapaStyle Customer Service at 1-866-776-1600. NORTHERN TOOL: Recalls Wagons with Paint Exceeding Lead Standard ---------------------------------------------------------------- Northern Tool & Equipment Co., of Burnsville, Minn., in cooperation with the U.S. Consumer Product Safety Commission, is recalling about 7,200 "Big Red" wagons. The company said the surface paints on the wagon and handle contain excessive levels of lead, violating the federal lead paint standard. No incidents/injuries have been reported so far. The recalled wagon has a red painted, steel deck with removable wooden sides. The wheels have ball bearings and air- filled tires. The wagons were made in China and sold through Northern Tool & Equipment catalog, Web site, and retail stores nationwide from July 2007 through September 2007 for about $60. Customers should immediately take the recalled wagon away from children and return it to any Northern Tool store for a free replacement. For additional information, contact Northern Tool & Equipment Co. at (800) 222-5381 between 9 a.m. and 5 p.m. CT Monday through Friday, or visit http://www.northerntool.com. PEOPLE'S CHOICE: ERISA Suit Class Certification Hearing Set Dec. ---------------------------------------------------------------- A hearing on an Amended Motion for Class Certification of a suit claiming Employee Retirement Income Security Act benefits against People's Choice (in Bankruptcy) will be continued to Dec. 4, 2007. The parties are in the process of discussing a consensual stipulation for class certification. With Bankruptcy Judge Robert Kwan's approval, the parties agree that the hearing on the Amended Motion should be continued to December 4, 2007, to allow them sufficient time to reach a stipulation in this regard. Amended Complaint Plaintiffs John P. Salvador, Douglas McClary, Melinda McZiel, Shane Fowler and Debbie Oliphant were employees of People's Choice Home Loan, Inc. (PCHLI) and People's Credit and Finance Corp., and were terminated as part of, or as a result of, mass layoffs or plant closings ordered by the two Debtors. The Former Employees, on their own behalf and on behalf of all other persons similarly situated, filed a class action for the recovery of damages in the amount of 60 days pay and Employee Retirement Income Security Act benefits by reason of PCFC's and PCHLI's alleged violation of the Former Employees' rights under the Worker Adjustment and Retraining Notification Act, 29 U.S.C., Section 2101 et seq. and its California counterpart, California Labor Code Section 1400 et seq. Pursuant to the WARN Act, PCHLI and PCFC constituted a single employer. The Former Employees also filed an Amended Motion for Class Certification based upon an agreement for a reconstituted class reached regarding Adversary Proceeding No. 07-01987. The Bakhtlari Employee Group and Salvador Employee Group entered into a tentative agreement to jointly represent the former employees for their WARN and non-WARN wage claims. The Amended Motion added Shane Fowler and Debbie Oliphant from the Bakhtlari Employee Group as additional class representatives, and Spiro Moss Barnes, LLP, as additional class counsel. In the Amended Complaint, the Former Employees assert, among others: (a) an administrative priority claim pursuant to Section 503 of the Bankruptcy Code in favor of each Former Employee, equal to the sum of unpaid wages, salary, commissions, bonuses, accrued holiday pay, accrued vacation pay pension and 401(k) contributions and other ERISA benefits, for 60 days, that would have been covered and paid under the then applicable employee benefits plans had the coverage continued for that period, all determined in accordance with the WARN Act and California Labor Code. Alternatively, determining that the first $10,950 of the WARN Act claims of the Former Employees and each other Class member is entitled to priority status, under Section 5007(a)(4) of the Bankruptcy Code, and the balance in general unsecured claim; (b) certification that the Former Employees and the other Class members constitute a single class; (c) appointment of Lankenau & Miller, LLP, and The Gardner Firm as Class Counsel; (d) appointment of Messrs. Salvador, McClary, and Fowler, Ms. McZiel and Ms. Oliphant, as Class Representatives, and payment of reasonable compensation to them for their services; and (e) an allowed administrative priority claim under Section 503 for the reasonable attorneys fees and the costs and disbursements that the Former Employees incur in prosecuting the action, as authorized by the WARN Act. (People's Choice Bankruptcy News, Issue Number 18; Bankruptcy Creditors' Service, Inc., http://bankrupt.com/newsstand/or 215/945-7000) PRISON HEALTH: Discovery Ongoing in Pa. Physician's Litigation -------------------------------------------------------------- Discovery is ongoing in a purported class action against Prison Health Services, Inc., a unit of the America Service Group, Inc., and the City of Philadelphia. The suit was filed by Andrew Berkowitz, M.D., an individual physician independent contractor in Philadelphia. The plaintiff filed the suit as a putative class action on or about Aug. 2, 2006 in the Court of Common Pleas of Philadelphia County, Trial Division. Plaintiff is seeking unspecified damages for the class, but damages in the amount of at least $9,588, individually. The complaint alleges that plaintiff provided services to inmates in the Philadelphia Prison System at the request of the defendants and that the defendants breached the alleged contractual duties owed to him by paying an amount alleged to be less than the full amount Plaintiff billed for his medical services. On Sept. 22, 2006, the City of Philadelphia filed a New Matter Cross claim against PHS alleging breach of contract, negligence and seeking indemnification. On Sept. 29, 2006, Prison Health filed its answer to plaintiff's complaint, which answer included a crossclaim against the City of Philadelphia for contribution and indemnification. The Plaintiff filed his motion for class certification on Oct. 1, 2007; and PHS and the City have since responded to this motion. The parties are presently involved in discovery proceedings, according to America Service's Nov. 2, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended Sept. 30, 2007. America Service Group Inc. -- http://www.asgr.com/-- through its subsidiaries Prison Health Services, Inc. (PHS), EMSA Limited Partnership, Correctional Health Services, LLC (CHS) and Secure Pharmacy Plus, LLC (SPP), contracts to provide and/or administer managed healthcare services, including the distribution of pharmaceuticals throughout the U.S. PROVIDENCE HEALTH: Ore. Suit Over Patient Data Theft Dismissed -------------------------------------------------------------- The Multnomah County Circuit Court (Ore.) dismissed a class action against Providence Health System in connection with the 2005 theft of computer discs and tapes with records of 365,000 patients, Portland Business Journal reports. Steven Shields, who was a Providence information systems analyst, lost 10 computer discs and data tapes at his van in the driveway of his Milwaukie home in December 2005. The records, some going back 20 years, contained information such as Social Security numbers and medical information. The records were stored without protective encryption. There have been no reports of the stolen data being used for identity theft. Judge Marilyn Litzenberger dismissed all claims seeking damages or equitable relief and ruled that Providence has taken the necessary corrective steps. PRUDENTIAL INSURANCE: $2M Deal in Suit Over “Modal” Payment Ok'd ---------------------------------------------------------------- The District Court of Valencia County, New Mexico approved a settlement that was reached in the purported national class action, “Azar, et al. v. Prudential Insurance.” The Prudential Insurance Company of America is a wholly owned domestic insurance subsidiary Prudential Financial, Inc. In August 2000, a suit was filed against the company based upon an alleged failure to adequately disclose the increased costs associated with payment of life insurance premiums on a "modal" basis, i.e., more frequently than once a year. Similar actions were filed in New Mexico against over a dozen other insurance companies. The complaint asserts claims for breach of the common law duty to disclose material information, breach of the implied covenant of good faith and fair dealing, breach of fiduciary duty, unjust enrichment and fraudulent concealment. It seeks injunctive relief, compensatory and punitive damages, both in unspecified amounts, restitution, treble damages, interest, costs and attorneys' fees. In March 2001, the court entered an order granting partial summary judgment to plaintiffs as to liability. In January 2003, the New Mexico Court of Appeals reversed this finding and dismissed the claims for breach of the covenant of good faith and fair dealing and breach of fiduciary duty. The case was remanded to the trial court and in November 2004, it held that, as to the named plaintiffs, the non-disclosure was material. In July 2005, the court certified a class of New Mexico only policyholders denying plaintiffs’ motion to include purchasers from 35 additional states. In September 2005, plaintiffs sought to amend the court’s order on class certification with respect to eight additional states. In March 2006, the court reiterated its denial of a multi-state class and maintained the certification of a class of New Mexico resident purchasers of Prudential life insurance. The court also indicated it would enter judgment on liability against Prudential for the New Mexico class. In May 2007, the matter was settled. The settlement, which is subject to final approval by the court, provides that Prudential Insurance will pay the difference between the annualized modal premium and the annual premium and attorneys’ fees. In October 2007, the court approved the settlement of approximately $2 million without any objections. The settlement is expected to become final in November 2007, according to its Nov. 1, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended Sept. 30, 2007. Prudential Financial, Inc. -- http://www.prudential.com/-- is a financial services company. As of Dec. 31, 2006, the Company had approximately $616 billion of assets under management. Through its subsidiaries and affiliates, the Company offers an array of financial products and services, including life insurance, mutual funds, annuities, pension and retirement- related services and administration, asset management, banking and trust services, real estate brokerage and relocation services, and, through a joint venture, retail securities brokerage services. PRUDENTIAL SECURITIES: Seeks Dismissal of Mutual Funds Lawsuits --------------------------------------------------------------- Prudential Financial, Inc. and Prudential Securities, Inc. are seeking for the dismissal of several purported class actions that were consolidated as part of the multi-district proceeding, "In re: Mutual Funds Investment Litigation, MDL-1586, Master Docket Nos. 04-md-15861, 04-md-15862, 04-md-15863, and 04-md- 15864." In October 2004, Prudential Financial, Inc. and Prudential Securities, Inc. were named as defendants in several class actions brought on behalf of purchasers and holders of shares in a number of mutual fund complexes. The actions were consolidated as part of the multi-district proceeding, "In re: Mutual Funds Investment Litigation, MDL- 1586, Master Docket Nos. 04-md-15861, 04-md-15862, 04-md-15863, and 04-md-15864," which is pending in the U.S. District Court for the District of Maryland. The complaints allege that purchasers and holders of mutual funds were harmed by dilution of the funds' values and excessive fees caused by market timing and late trading. It is seeking unspecified damages. In August 2005, the Company was dismissed from several of the actions, without prejudice to repleading the state claims, but remains a defendant in other actions in the consolidated proceeding. In July 2006, in one of the consolidated mutual fund actions, “Saunders v. Putnam American Government Income Fund, et al.,” the United States District Court for the District of Maryland granted plaintiffs leave to refile their federal securities law claims against Prudential Securities. In August 2006, the second amended complaint was filed alleging federal securities law claims on behalf of a purported nationwide class of mutual fund investors seeking compensatory and punitive damages in unspecified amounts. Motions to dismiss the other actions are pending, according to Prudential Financial's Nov. 1, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended Sept. 30, 2007. Prudential Financial, Inc. -- http://www.prudential.com/-- is a financial services company. As of Dec. 31, 2006, the Company had approximately $616 billion of assets under management. Through its subsidiaries and affiliates, the Company offers an array of financial products and services, including life insurance, mutual funds, annuities, pension and retirement- related services and administration, asset management, banking and trust services, real estate brokerage and relocation services, and, through a joint venture, retail securities brokerage services. PRUDENTIAL INSURANCE: Settles Mortgage Securities Suit for $7.5M ---------------------------------------------------------------- Parties in the purported class action, “Capitol Life Insurance Co. v. Prudential Insurance, et al.,” have reached a $7.5 million settlement in the matter. The suit was filed The Superior Court of New Jersey, Essex County against: -- Prudential Insurance Co. of America; -- Prudential Home Mortgage Co., Inc.; and -- several other subsidiaries. The suit was filed in connection with the sale of certain subordinated mortgage securities sold by a subsidiary of Prudential Home Mortgage. In May 2000, plaintiffs filed a second amended complaint that alleges violations of the New Jersey securities statute and the Racketeer Influenced and Corrupt Organizations Act, fraud, conspiracy and negligent misrepresentation, and seeks compensatory as well as treble and punitive damages. In October 2002, plaintiffs' motion for class certification was denied. Since that time, the court has permitted nine additional investors to intervene as plaintiffs. In August 2005, the court dismissed the New Jersey Securities Act and RICO claims and the negligent misrepresentation claim. In April 2007, the matter settled for $7.5 million, according to its Nov. 1, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended Sept. 30, 2007. Prudential Financial, Inc. -- http://www.prudential.com/-- is a financial services company. As of Dec. 31, 2006, the Company had approximately $616 billion of assets under management. Through its subsidiaries and affiliates, the Company offers an array of financial products and services, including life insurance, mutual funds, annuities, pension and retirement- related services and administration, asset management, banking and trust services, real estate brokerage and relocation services, and, through a joint venture, retail securities brokerage services. PRUDENTIAL FINANCIAL: Still Faces Stockbrokers' Suits in Calif. --------------------------------------------------------------- Prudential Financial, Inc. continues to face several purported class actions accusing the company of improperly classifying stockbrokers as exempt employees under state and federal wage and hour laws. The suits –- recently consolidated in California for coordinated trial proceedings -- also name as defendants Prudential Securities, Inc. and Prudential Equity Group LLC. Two of the complaints -- “Janowsky v. Wachovia Securities, LLC, and Prudential Securities Incorporated,” and “Goldstein v. Prudential Financial, Inc.” were filed in the U.S. District Court for the Southern District of New York. The “Goldstein” complaint purports to have been filed on behalf of a nationwide class. The “Janowsky” complaint alleges a class of New York brokers. The three complaints filed in California Superior Court purport to have been brought on behalf of classes of California brokers. The suits are captioned: -- “Dewane v. Prudential Equity Group, Prudential Securities Incorporated, and Wachovia Securities LLC;” -- “DiLustro v. Prudential Securities Incorporated, Prudential Equity Group, Inc. and Wachovia Securities;” and -- “Carayanis v. Prudential Equity Group LLC and Prudential Securities Inc.” The “Carayanis” complaint was subsequently withdrawn without prejudice in May 2006. In June 2006, a purported New York state class action complaint was filed in the U.S. District Court for the Eastern District of New York, captioned, “Panesenko v. Wachovia Securities, et al.” The Panesenko complaint is alleging that the Company failed to pay overtime to stockbrokers in violation of state and federal law and that improper deductions were made from the stockbrokers’ wages in violation of state law. In September 2006, Prudential Securities was sued in “Badain v. Wachovia Securities, et al.,” a purported nationwide class action filed in the U.S. District Court for the Western District of New York. The complaint alleges that Prudential Securities failed to pay overtime to stockbrokers in violation of state and federal law and that improper deductions were made from the stockbrokers’ wages in violation of state law. In October 2006, a purported class action, “Bouder v. Prudential Financial, Inc. and Prudential Insurance Company of America,” was filed in the U.S. District Court for the District of New Jersey, claiming that the Company failed to pay overtime to insurance agents who were registered representatives in violation of federal and state law, and that improper deductions were made from these agents’ wages in violation of state law. In December 2006, the stockbrokers’ cases were transferred to the U.S. District Court for the Central District of California by the Judicial Panel on Multidistrict Litigation for coordinated or consolidated pre-trial proceedings. The complaints seek back overtime pay and statutory damages, recovery of improper deductions, interest, and attorneys’ fees. The company reported no development in the matter in its Nov. 1, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended Sept. 30, 2007. Prudential Financial, Inc. -- http://www.prudential.com/-- is a financial services company. As of Dec. 31, 2006, the Company had approximately $616 billion of assets under management. Through its subsidiaries and affiliates, the Company offers an array of financial products and services, including life insurance, mutual funds, annuities, pension and retirement- related services and administration, asset management, banking and trust services, real estate brokerage and relocation services, and, through a joint venture, retail securities brokerage services. SAN DIEGO GAS: Accused of Negligence in Two California Fires ------------------------------------------------------------ San Diego Gas & Electric Co. is accused of playing a role in starting the Witch Creek and Rice fires that caused an estimated $20 million in property damages, San Diego Business Journal reports. The Rice Fire, which started Oct. 22, burned about 9,000 acres in the Fallbrook area. As of Oct. 28, the cost of the destruction was $4.9 million, according to the report. The Witch Creek Fire, which started Oct. 21, burned 197,990 acres from Santa Ysabel to Rancho Santa Fe. The cost as of Nov. 1 for the Witch Creek Fire was $16 million. Three San Diego County residents filed two class actions on Nov. 13 in San Diego Superior Court seeking economic damages from what the lawsuits call the utility’s “gross negligence” in keeping its installation safe from possible fires. The Witch Creek Fire suit was filed by San Diego firm Zachary Lemley of Macaluso & Associates on behalf of Kenyon and Kath Clark of Rancho Santa Fe. Michael Downing, a homeowner on Reche Road in Fallbrook who lost his home, is the plaintiff in the Rice Canyon suit. The plaintiffs are accusing SDG&E of being negligent, failing to comply with state and federal laws requiring clear zones around transmission lines and poles. The company denied the allegations in a statement. SCHYLLING ASSOCIATES: Recalls Music Box on Paint's Lead Level ------------------------------------------------------------- Schylling Associates Inc., of Rowley, Mass., in cooperation with the U.S. Consumer Product Safety Commission, is voluntarily recalling about 1,300 Dizzy Ducks Music Box. The company said surface paints on the wooden base of the music box contain excessive levels of lead, which violates the federal lead paint standard. No incidents/injuries have been reported so far. The Dizzy Ducks Music Box is a wind-up music box with ducks that spin as music plays. The music boxes were made in China and sold at specialty toy stores and gift shops nationwide from March 2007 through October 2007 for about $12. Consumers are advised to immediately take the recalled toy away from children and contact Schylling to receive a refund or free replacement toy. For additional information, contact Schylling at (800) 767-8697 between 9 a.m. and 5 p.m. ET Monday through Friday, or visit http://www.schylling.com. SCOTTISH RE: N.Y. Court Partially Dismisses Securities Suit ----------------------------------------------------------- The U.S. District Court for the Southern District of New York partially granted and partially denied a motion to dismiss a consolidated securities fraud class action filed against Scottish Re Group Ltd. On Aug. 2, 2006, putative class actions were filed against: -- the company; -- Glenn Schafer, the chairman of its board of directors; -- Dean E. Miller, chief financial officer; -- Scott E. Willkomm, former chief executive officer; and -- Seth Vance, former chief executive officer - North America. Between Aug. 7, 2006 and Oct. 2, 2006, seven additional related class actions were filed against the company, certain of its current and former officers and directors, and certain third parties. Each of the complaints allege that the defendants made materially false and misleading statements and/or omissions concerning the company's business and operations, thereby causing investors to purchase the company's securities at artificially inflated prices, in violation of Sections 10(b) and 20(a) of the U.S. Securities Exchange Act of 1934, as amended, and Rule 10b-5 promulgated under the 1934 Act. Two of the complaints also allege violations of Sections 11 and 15 of the Securities Act of 1933, related to a 2005 preferred stock offering. Each of the class actions filed seek an unspecified amount of damages, as well as other forms of relief. On Oct. 12, 2006, all of the class actions were consolidated. A consolidated complaint was filed on December 4, 2006. On March 7, 2007, the company filed a motion to dismiss the putative class action. On Nov. 2, Judge Shira A. Scheindlin of the U.S. District Court for the Southern District of New York issued a split verdict, agreeing to toss claims relating to Scottish Re accounting firm Ernst & Young, but denying the defendants' bid to dismiss the entire securities fraud suit. Judge Scheindlin dismissed two of the claims filed against E&Y on the grounds that the plaintiffs had not adequately established scienter. The is suit is "Zuckerman v. Scottish Re Group Ltd. et al., Case No. 1:06-cv-05853-SAS," filed in the U.S. District Court for the Southern District of New York under Judge Shira A. Scheindlin. Representing the plaintiff are: Arthur N. Abbey, Esq. Abbey Spanier Rodd Abrams & Paradis LLP, 212 East 39th Street New York, NY 10016 Phone: (212) 889-3700 Fax: (212) 684-5191 E-mail: aabbey@abbeygardy.com - and - Max W. Berger, Esq. Bernstein, Litowitz, Berger & Grossmann, L.L.P. 1285 Avenue of the Americas New York, NY 10019 Phone: (212) 554-1400 Fax: (212) 554-1444 Representing the company is: George E. Anhang, Esq. LeBoeuf, Lamb, Greene & MacRae, L.L.P. 1875 Connecticut Ave., N.W., Suite 1200 Washington, DC 20009 Phone: (202) 986-8052 SOLUTIA INC: Plaintiffs in SIP Plan Suit Appeal Case Dismissal -------------------------------------------------------------- Plaintiffs in a suit filed to recover alleged losses to the Solutia Inc. Savings and Investment Plan (SIP Plan) are appealing the dismissal of the case. On October 7, 2004, a purported class action, “Dickerson v. Feldman, et al.” was filed in the United States District Court for the Southern District of New York against a number of defendants, including former officers and employees of Solutia and Solutia’s Employee Benefits Plans Committee and Pension and Savings Funds Committee. Solutia was not named as a defendant. The action alleged breach of fiduciary duty under ERISA and sought to recover alleged losses to the SIP Plan during the period December 16, 1998 to the date the action was filed. The investment of SIP Plan assets in Solutia’s common stock is alleged to have been imprudent because of the risks and liabilities related to Solutia’s legacy environmental and litigation liabilities and because of Flexsys' alleged involvement in the matters described above under "Flexsys Antitrust Litigation." The action sought monetary payment to the SIP Plan to recover the losses resulting from the alleged breach of fiduciary duties, as well as injunctive and other appropriate equitable relief, reasonable attorney’s fees and expenses, costs and interest. In addition, the plaintiff in this action filed a proof of claim for $269 against Solutia in the Bankruptcy Court. On March 30, 2006, the District Court granted the defendants’ motion to dismiss on grounds that the Dickerson plaintiffs lacked standing to sue and that the complaint failed to state a claim on which relief could be granted. The dismissal of Dickerson's cause of action resulted in dismissal of the entire purported class action, including claims asserted on behalf of the unnamed purported class members. On April 3, 2006, Dickerson filed an appeal of this dismissal with the United States Court of Appeals for the Second Circuit. The parties have fully briefed the appeal, and oral arguments were heard on May 21, 2007. The company reported no development in the case at its Nov. 6, 2007 form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2007. The suit is "Dickerson v. Feldman et al., Case No. 1:04-cv- 07935-LAP," on appeal from the U.S. District Court for the Southern District of New York Under Judge Loretta A. Preska. Representing plaintiff is: Ronen Sarraf, Esq. Sarraf Gentile, LLP 485 Seventh Avenue, New York, NY 10018 Phone: (212) 868-3610 Fax: (212)918-7967 E-mail: ronen@sarrafgentile.com Representing the Employee Benefits Plan Committee is: Robert M. Stern, Esq. O'Melveny & Myers LLP 1625 Eye Street, NW Washington, DC 20006 Phone: (202) 383-5328 Fax: (202) 383-5396 E-mail: rstern@omm.com SPIN MASTER: Recalls Beads that Caused Child's Hospitalization -------------------------------------------------------------- Spin Master, of Toronto, Canada, in cooperation with the U.S. Consumer Product Safety Commission, is recalling about 4.2 million Aqua Dots. The company said the coating on the beads that causes the beads to stick to each other when water is added contains a chemical that can turn toxic when many are ingested. Children who swallow the beads can become comatose, develop respiratory depression, or have seizures. CPSC has received two reports over the past several days of children swallowing Aqua Dots. A 20-month-old child swallowed several dozen beads. He became dizzy and vomited several times before slipping into a comatose state for a period of time, was hospitalized, and has since fully recovered. A second child also vomited and slipped into a comatose state and was hospitalized for five days. The recalled toy is a craft kit which allows children to create various multi-dimensional designs using small colored beads. The beads fuse together when sprayed with water. The recall applies to all models of Aqua Dots. The product is available in various different kits with accessories such as a drying fan, applicator pen, design templates for the beads, and spray bottle. The product is labeled for ages 4+. The Aqua Dots were made in China and sold at mass merchandisers nationwide from April 2007 through November 2007 for between $17 and $30. Consumers are advised to immediately take the recalled toy away from children and contact Spin Master to return for free replacement beads or a toy of equal value. For additional information, contact Spin Master at (800) 622-8339 between 9 a.m. and 6 p.m. ET Monday through Friday, or visit http://www.aquadotsrecall.com. SPIN MASTER: Faces Suit Over Toys Coated with “Date Rape Drug” -------------------------------------------------------------- Spin Master Ltd., of Canada is facing a class-action complaint filed Nov. 9, in the U.S. District Court for the Northern District of Illinois alleging it imported "Aqua Dots" toys from China, which are coated with the chemical 1,4-butanediol that, upon being ingested, turns into the "date rape drug" gamma- hydroxybutyric acid, the CourtHouse News Service reports. On Nov. 7, the U.S. Consumer Product Safety Commission announced a recall of the Aqua Dots products. Despite the recall, defendant has not offered to reimburse plaintiff or other members of the plaintiff class for the costs of the Aqua Dots. Rather, defendant is offering to provide for replacement toys. Defendant's offer is inadequate and fails to compensate plaintff and other members of the plaintiff class for their damages or make them whole, the complaint says. The complaint claims despited marketing its Aqua Dots as safe for young children, defendant distributed this product with a chemical that, if ingested, is poisonous and banned for distribution in the United States and Canada. Named plaintiff Robyn Williams alleges Spin Master had 4.2 million of the toys for young children made in China since April, using 1,4-butanediol because the nontoxic chemical 1,5- pentanediol is three to seven times more expensive. She brings this action as a class action pursuant to Rules 23(a),(b)(1), (b)(2) and (b)(3) of the Federal Rules of Civil Procedure on behalf of all persons who purchased Aqua Dots manufactured, marketed, and/or distributed by Spin Master, Ltd., between April 2007, to the present. Ms. Williams want the court to rule on: (a) whether the products are defective; (b) whether the products are inherently dangerous; (c) whether, as a result of defendant's negligent and reckless conduct, children have been exposed and continue to be exposed to a known hazardous substance; (d) whether plaintiff and other members of the plaintiff class are entitled to injunctive relief; (e) whether defendant has been unjustly enriched; and (f) whether plaintiff and plaintiff class members were damaged and in what amount. Plaintiff request that court enter an order or judgment against defendant including the following: -- certification of the action as a class action pursuant to Rule 23(b)(1),(2) and (3) of the Federal Rules of Civil Procedure, and appointment of plaintiff as class representative and plaintiff's counsel of record as class counsel; -- damages in the amount of monies paid for the Aqua Dots toys; -- actual damages, statutory damages, punitive or treble damages, and such other relief as provided by the statutes cited; -- pre-judgment and post-judgment interest on such monetary relief; -- other appropriate injunctive relief; -- the cots of bringing this suit, including reasonable attorneys' fees, costs, and expenses; and -- all other relief to which plaintiff and members of the plaintiff class may be entitled at law or in equity. The suit is "Robyn Williams et al. v. Spin Master, Ltd., Case No. 07CV6387," file in the U.S. District Court for the Northern District of Illinois. Representing plaintiffs are: Ben Barnow Sharon Harris Erich Schork Barnow and Associates, P.C. One North LaSalle Street, Suite 4600 Chicago, IL 60602 Phone: (312) 621-2000 Fax: (321) 641-5504 - and - Aron D. Robinson The Law Office of Aron D. Robinson 19 S. LaSalle Street, Suite 1300 Chicago, IL 60603 Phone: (312) 857-9050 Fax: (312) 857-9054 TITAN CORP: Col. Court Dismisses Suit Over Abu Ghraib “Abuses” -------------------------------------------------------------- Judge James Robertson of the U.S. District Court for the District of Columbia, in a ruling filed Nov. 6, ordered in the suits: -- “Ilham Nassir Ibrahim et al. v. Titan Corp., et al. (Civil Action No. 04-1248);” and -- “Saleh, et al. v. Titan Corp. et al. Civil Action No. 05-1165,” that Titan Corp.'s motion for summary judgment be granted and CACI International's motion for summary judgment be denied. Named plaintiffs in both of these cases are Iraqi nationals who allege that they or their late husbands were tortured or otherwise mistreated while detained by the U.S. military at Abu Ghraib and other prisons in Iraq. Defendants are government contractors who provided interpreters or interrogators to the U.S. military in Iraq. The defendants have moved for summary judgment, asserting that plaintiffs’ common law tort claims should be preempted under the government contractor defense. When these suits were originally filed, Titan was a publicly traded company called The Titan Corporation. In July 2005, L-3 Communications Corporation acquired Titan and renamed it L-3 Communications Titan Corporation. The renamed entity is now a wholly owned subsidiary of L-3 Communications Corporation. In 1999, the U.S. Army awarded a contract to Titan’s corporate predecessor for the provision of civilian linguists. This contract did not request a set number of linguists but instead allowed for individual delivery orders to be made as the need arose. Such needs became quite urgent following the deployment of military personnel into Iraq and Afghanistan. The Saleh plaintiffs have sued both CACI Premier Technologies, Inc., and its parent company, CACI International. CACI provided interrogators at Abu Ghraib under two delivery orders. The Statement of Work for one Delivery Order asserted that personnel hired for these interrogator positions would be “integrated into” various intelligence and interrogation teams, but it also provided that “[t]he Contractor is responsible for providing supervision for all contract personnel.” On August 12, 2005, the judge dismissed the Ibrahim plaintiffs’ claims under the Alien Tort Statute, RICO, various international laws and agreements, and U.S. contracting laws. Judge Robertson also dismissed their common law claims for false imprisonment and conversion. This left the plaintiffs with four common law claims: assault and battery, wrongful death and survival, intentional infliction of emotional distress, and negligence. On June 26, 2006, Judge dismissed the Saleh plaintiffs’ federal claims. That disposition rendered Saleh virtually indistinguishable from Ibrahim, because the Saleh plaintiffs also bring a number of common law claims, including assault and battery, sexual assault, wrongful death, negligent hiring and supervision, and intentional and negligent infliction of emotional distress. The cases were consolidated for discovery purposes only. The judge made different judgments in the cases because of critical differences between the ways that contract translators and contract interrogators were managed and supervised. He said that because the facts on the ground show that Titan linguists performed their duties under the exclusive operational control of the military, the remaining state law claims against Titan are preempted and must be dismissed. Whereas, because a reasonable trier of fact could conclude that CACI retained significant authority to manage its employees, the judge was unable to conclude at the summary judgment stage that the federal interest underlying the combatant activities exception requires the preemption of state tort claims against CACI. The judge reserved the task of sorting through the disputed facts regarding the military's command and control of CACI's employees for the jury. Judge Robertson granted Titan's summary judgment motion, and denied CACI's. A status conference is set for the parties approximately 30 days after the date of the memorandum order. TOWN SPORTS: Faces Suits in N.Y. Alleging Labor Law Violations -------------------------------------------------------------- Town Sports International, Inc., the parent of New York Sports Club chains, faces two purported class actions in New York alleging violations of various overtime provisions of state labor law by the company. First Litigation One suit is “Sarah Cruz, et al. v. Town Sports International, Inc.” It was filed on March 1, 2005 in the Supreme Court of the State of New York, New York County. The plaintiffs are Sarah Cruz of Union City, New Jersey, and Mathew Dockswell of Forest Hills, New York. Plaintiffs contend that they and many other employees routinely worked more than 40 hours in a week but didn't earn overtime because the company deliberately misclassified them as managers. According to court documents, the lawyers are seeking class- action status for the lawsuit, which they say could involve hundreds of personal trainers and assistant fitness managers at 65 New York Sports Clubs in the state, including in New York City and on Long Island. The suit covers the past six years. It states that Ms. Cruz, 30, who has worked for the chain since 1999, often has worked 13-hour days, five days a week, or about 65 hours, and Mr. Dockswell, who has worked for New York Sports Club since 2002, has regularly worked more than 40 hours a week. On or about Nov. 2, 2005, the lawsuit was stayed upon agreement of the parties pending mediation. On or about Nov. 28, 2006, the plaintiffs gave notice that they wished to lift the stay. On or about Feb. 7, 2007, the plaintiffs made a motion requesting leave to file a second amended complaint, which seeks to add to the purported class all New York hourly employees and alleged additional violations of the provisions of the New York State Labor Law with respect to the payment of wages. Second Litigation On or about June 18, 2007, the same plaintiffs commenced a second purported class action against the Company in the Supreme Court, New York County, seeking unpaid wages and alleging that TSI LLC violated various wage payment and overtime provisions of the New York State Labor Law with respect to the payment of wages to all New York purported hourly employees. The company reported no development in the matter at its Nov. 1, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended Sept. 30, 2007. New York, New York-based Town Sports International Holdings, Inc. -- http://www.mysportsclubs.com-- is an owner and operator of fitness clubs in the northeast and Mid-Atlantic regions of the United States. It owns and operates 141 fitness clubs in the United States and Switzerland. TRINITY INDUSTRIES: Nov. Settlement Hearing Set in Waxler's Suit ---------------------------------------------------------------- A tentative November 2007 fairness hearing is set for a settlement of a purported class action against Trinity Industries, Inc., and its wholly owned subsidiary, Trinity Marine Products, Inc. (TMP), with regards to barges it sold that were allegedly applied with defective coatings. Waxler Transportation, Inc. filed the suit against Trinity companies and certain material suppliers. The plaintiff has petitioned the court for certification of a class, which, if certified, could significantly increase the total number of barges at issue. The current class representative owns four tank barges on which allegedly defective coatings were applied. These four barges were sold at an approximate average price of $1.4 million. Legal counsel for the Company and TMP have each advised that factual disputes exist regarding the legal merits of class certification. Discovery is underway in the case and the court has scheduled the class certification hearing for December 2007. Independent experts investigating the claims for the Company and TMP have opined that the plaintiff’s assertion the coating applied to the barges is a food source for microbiologically influenced corrosion is without merit. While the Company and TMP have continued to vigorously defend the Waxler Case, in order to avoid the commitment of management and executive time and the legal, expert, and transactional costs associated with litigating the claims alleged, the Company and TMP have reached an agreement with the class representative and their counsel to resolve the litigation, which agreement has been preliminarily approved by the court. We reserved an additional $15.0 million for the three months ended June 30, 2007, bringing the total reserve to $18.0 million to cover our probable and estimable liabilities assuming this settlement is implemented. The deadline for putative class members to opt-out of the class or object to the settlement was in October 2007, and as of the company's Nov. 1, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended Sept. 30, 2007, there were no opt-outs or objections filed. The court has scheduled the fairness hearing for November 2007, at which time the court will hear arguments from putative class members, if any, who object to the settlement. Trinity Industries, Inc. -- http://www.trin.net-- is a holding company of diversified industrial companies. Trinity manufactures and sells railcars and railcar parts, inland barges, concrete and aggregates, highway products, beams and girders used in highway construction, tank containers and structural wind towers. YAMAHA CORP: Recalls Power Adaptors Due to Electric Shock Hazard ---------------------------------------------------------------- Yamaha Corp. of America, of Buena Park, California, in cooperation with the U.S. Consumer Product Safety Commission, is recalling about 49,000 Yamaha AC power adaptors. The company said the housing of the power adaptor can separate, posing an electric shock hazard to consumers. Yamaha has received five reports of units separating. No injuries have been reported. This recall involves the Yamaha PA-3C power adaptor with a date code of 0624. The adaptor is used with Yamaha keyboards and digital drum sets. The model number is written in white print on the front of the plug of the adaptor and the date code is etched into the plastic at the bottom of the plug panel. The adaptor can be purchased as part of a set or separately. These recalled power adaptors were manufactured in China and are being sold at musical instrument retailers nationwide from July 2006 through September 2007 for about $20. Picture of recalled AC power adaptor: http://www.cpsc.gov/cpscpub/prerel/prhtml08/08078.jpg Consumers are advised to stop using the recalled power adaptor immediately and contact Yamaha to return the power adaptor and obtain a free replacement. For more information, contact Yamaha Corporation of America toll-free at (866) 509-0320 Monday through Friday between 8 a.m. and 5 p.m. PT, or visit the firm's Web site: http://www.yamaha.com/warranty_safety.asp New Securities Fraud Cases SANOFI-AVENTIS: Coughlin Stoia Files N.Y. Securities Fraud Suit --------------------------------------------------------------- Coughlin Stoia Geller Rudman & Robbins LLP announced that a class action has been commenced on behalf of an institutional investor in the United States District Court for the Southern District of New York on behalf of purchasers of Sanofi-Aventis publicly traded stock or American Depository Receipts between February 17, 2006 and June 13, 2007. The complaint charges Sanofi and certain of its officers and directors with violations of the Securities Exchange Act of 1934. According to the complaint, in 2002, Sanofi began testing a new drug, Zimulti, which is designed to fight obesity by reducing appetite. As the first drug of its class, Zimulti was projected to become extremely profitable for Sanofi. Sanofi submitted its New Drug Application (NDA) for Zimulti in April 2005 and on June 23, 2005, the Company announced that the Food and Drug Administration had accepted it for filing. The complaint alleges that defendants' statements regarding Zimulti were materially false and misleading when made because defendants concealed data concerning Zimulti's propensity to cause depression. On June 13, 2007, the committee met and made a unanimous decision that Zimulti could not be recommended for approval. After the FDA's decision on June 13, 2007, Sanofi's securities declined $1.87, or 4.16%, closing at $43.07 on heavy trading volume. Plaintiff seeks to recover damages on behalf of all purchasers of Sanofi publicly traded stock or ADRs during the Class Period. Sanofi-Aventis engages in the research, development, manufacture, and marketing of healthcare products worldwide. Sanofi is the third largest pharmaceutical company in the world. For more information, contact: Samuel H. Rudman David A. Rosenfeld Coughlin Stoia Geller Rudman & Robbins LLP Phone: 800-449-4900 E-mail: djr@csgrr.com ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Frederick, Maryland USA. Glenn Ruel Senorin, Ma. Cristina Canson, and Janice Mendoza, Editors. Copyright 2007. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $575 for six months delivered via e-mail. 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