/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/091208.mbx C L A S S A C T I O N R E P O R T E R Tuesday, December 8, 2009, Vol. 11, No. 242 Headlines AMAZON.COM: Accused of Shortchanging Employees Overtime Pay AT&T INC: Sued in D. Neb. for Collecting Illegal Taxes BIOTECH CORP: Cognovin Memory Enhancement Claims Challenged CAPITAL ONE: N.J. Suit Complains about Credit Card Practices GLOBAL VISION: Jury Returns $50 Million Hair Loss Product Verdict HAIER AMERICA: Recalls 53,800 Blenders HURRICANE KATRINA: Fifth Cir. Upholds Dismissal of Dredging Suit NEW YORK: Teachers Sue for Being Confined to "Rubber Rooms" NTD APPAREL: Recalls 1,200 Hello Kitty Zip Up Hoodie Sweatshirts OBERON MEDIA: Lawsuit Complains About Automatic GameSaver Fees OHIO AUTOMOBILE: Accused of Charging Bogus $250 Documentation Fee OWENS CORNING: Accused in W.D. Pa. Lawsuit of Breaching Warranty PROVIDENT ROYALTIES: Idaho Subclass Complaint Filed in D. Idaho STORK CRAFT: Crib Recall Leads to Class Action Suit in N.D. Ill. SUNSATIONS INC: Recalls 12,000 Children's Hooded Sweatshirts TOO LAZY: Accused in Calif. Lawsuit of False Billing Practices VIVENDI SA: S.D.N.Y. Declines Invitation to Halt French Lawsuit WACHOVIA MORTGAGE: Mass. Suit Attacks World Mortgage Deals WAL-MART STORES: 8th Cir. Revives Suit Concerning 401(k) Fees WAL-MART STORES: Agrees to Pay $40 Million to Mass. Workers New Securities Fraud Cases HEMISPHERX BIOPHARMA: Shareholder Suit Filed in E.D. Pa. ********* AMAZON.COM: Accused of Shortchanging Employees Overtime Pay ----------------------------------------------------------- Tresa Baldas at The National Law Journal reports that Amazon.com received some early coal in its stocking: a potential class action claiming unpaid overtime. In Austin v. Amazon.com, Inc., Case No. 09-cv-01679 (W.D. Wash.) (Robart, J.), filed Nov. 25, 2009, in Seattle, the on-line retail giant is being sued for allegedly rounding off the hours worked by 21,000 warehouse employees who fill orders and ship packages. Specifically, the company is accused of rounding the start and end times for each person's shift, costing employees roughly 15 minutes of overtime pay each day. That's a lot of money when you add it all up, Mark Thierman of the Thierman Law Firm, whose Reno, Nev., firm is one of four handling the case, told Ms. Baldas. Mr. Thierman argued that Amazon should know better than to cut corners with the time clock: "You're in the technology business. Use it. You can do this to the second. There's no need for this. These people punch in on an electronic clock." Mr. Thierman also said that, while rounding off work hours is not uncommon in the workplace, Amazon's rounding-off practice "is very unusual." He said, "With other companies, I've never seen 15 minutes of rounding off. It's usually more like five minutes." He added that Amazon has "been doing this for years." Amazon has not yet filed a response to the complaint. Company officials were not available for comment. Rounding-off policies have been challenged elsewhere, Ms. Baldas relates. In Nevada, Station Casinos is facing a potential class action on behalf of 10,000 hourly employees for allegedly rounding off their shifts' starting and ending times. The suit was filed by three employees, including a food-and-beverage runner and a blackjack dealer. In Michigan, a group of call center employees is pursuing a class action against Michigan Bell, alleging -- among other things -- that the phone company's rounding-off policy denies them earned overtime pay. And in New Jersey this summer, the state Department of Labor and Workforce Development warned employers about such policies, announcing that it "does not accept the 'rounding' policy" of the U.S. Department of Labor. The federal department has long allowed for rounding, holding that it's acceptable "provided that it is used in such a manner that it will not result, over a period of time, in failure to compensate the employees properly for all the time they have actually worked." New Jersey, however, has taken the position that "if an employer does round off to an increment or a fraction of an hour, it must be to the benefit of the employee." Court records show Mr. Austin is represented by: Matthew James Ide, Esq. 801 Second Ave., Ste. 1502 Seattle, WA 98104 Telephone: 206-625-1326 - and - David R. Markham, Esq. Clark & Markham LLP 600 B Street, Ste. 2130 San Diego, CA 92101 Telephone: 619-239-1321 AT&T INC: Sued in D. Neb. for Collecting Illegal Taxes ------------------------------------------------------ Courthouse News Service reports that AT&T and AT&T Mobility charge state and local taxes for Internet access, which is illegal in Nebraska, a class action claims in Lincoln Federal Court. A copy of the Complaint in Cranford v. AT&T, Inc., et al., Case No. 09-cv-03243 (D. Neb.), is available at: http://www.courthousenews.com/2009/12/01/InternetTax.pdf.pdf The Plaintiff is represented by: Jefferson Downing, Esq. KEATING, O'GARA, NEDVED & PETER, P.C., L.L.O. 530 S. 13th Street, Suite 100 Lincoln, NE 68520 Telephone: 402-475-8230 - and - James Bartimus, Esq. Edward D. Robertson, Jr., Esq. Mary D. Winter, Esq. Anthony L. DeWitt, Esq. BARTIMUS, FRICKLETON, ROBERTSON & GORNY, P.C. 715 Swifts Highway Jefferson City, Mo. 65109 Telephone: 573-659-4454 News about the filing of a similar lawsuit, Pauley v. AT&T, Inc., et al., Case No. 09-cv-04248 (W.D. Mo.), appeared in the Class Action Reporter on Dec. 1, 2009. BIOTECH CORP: Cognovin Memory Enhancement Claims Challenged ----------------------------------------------------------- Courthouse News Service reports that Biotech Corp. and The Vitamin Shoppe push "Cognovin" with false claims that it "quickly boosts memory . . . counteracts cognitive decline," and so on, a class action claims in Los Angeles Superior Court. CAPITAL ONE: N.J. Suit Complains about Credit Card Practices ------------------------------------------------------------ Courthouse News Service reports that Capital One Bank defrauds credit-card customers by luring them in with teaser rates and then jacking up the rates and piling on other charges, a class action claims in Morris County Court, N.J. The named plaintiff says Capital One tried to collect more than $4,000 on a $1,327 debt, which he paid off. A copy of the Complaint in Hoffman v. Capital One Bank (USA), N.A., Docket No. L-3836-09 (N.J. Super. Ct., Morris Cty.), is available at: http://www.courthousenews.com/2009/12/02/Banks.pdf The Plaintiff is represented by: David M. Hoffman, Esq. 15A New England Avenue P.O. Box 554 Summit, NJ 07901 Telephone: 908-608-0333 GLOBAL VISION: Jury Returns $50 Million Hair Loss Product Verdict ----------------------------------------------------------------- Kate Moser at The Recorder reports that an Alameda County, Calif., jury late last month returned a $50 million verdict -- see http://pdfserver.amlaw.com/ca/verdict1202_02.pdf-- in Thomas v. Global Vision Products, Inc., et al., Case No. RG03091195 (Calif. Super. Ct., Alameda Cty.), which sought relief for Californians who'd bought Avacor, a hair-loss remedy that was marketed as an all-natural, clinically tested product. Attorneys fees have yet to be decided, local Plaintiff's counsel: L. Timothy Fisher, Esq. BRAMSON, PLUTZIK, MAHLER & BIRKHAEUSER LLP 2125 Oak Grove Rd., Suite, 120 Walnut Creek, CA 94598 Telephone: (925) 945-0200 told Ms. Moser. New York lawyer Scott Bursor and New York firm Faruqi & Faruqi also represented the plaintiffs. There were about 150,000 purchases of Avacor in California during the class period, but since some were reorders, the exact size of the class is unclear, Mr. Fisher said. The outcome against two defendants marked the second trial victory in the same class action for the plaintiff lawyers. The earlier trial had ended in a $40 million win against different defendants, but Fisher said the awards from the trials will not be added together, and he expects the court will order that $50 million in all be returned to the class. Both trials took place before Alameda County Superior Court Judge Robert Freedman. The defendants in the latest trial were two officers of Global Vision Products Inc., Robert DeBenedictis and Henry Edelson -- a court stay after the company's 2007 bankruptcy filing had kept them out of the earlier one. Mr. DeBenedictis was represented by: Peter M. Hart, Esq. LeClairRyan 44 Montgomery Street, 18th Floor San Francisco, CA 94104 Telephone: 415-391-7111 Mr. Edelson was recently representing himself and did not appear at trial. One of Mr. DeBenedictis' lawyers said his client was just an investor and not directly participating in the company in its early years, and that he planned to appeal. "Once he became involved in 2004, he took every effort he possibly could to get the company back on the straight and narrow and get its advertising in compliance with the Better Business Bureau and the Food and Drug Administration," Mr. Hart said. "We think the jury looked at his position and made the leap that just because he was president, he was responsible." To bolster that thought, he noted that the jury had found in Mr. DeBenedictis' favor on allegations of conspiracy with defendants from the earlier trial. Named plaintiffs Garrett Boyd and James Thomas claimed Avacor's three-part "hair re-growth program" was misleading in selling itself as an all-natural, clinically tested product with no side effects. Fisher, one of their lawyers, contended that Global Vision Products' advertising referred to a clinic that didn't exist, a study that was never done and success rates that had no backing. The company, having filed for bankruptcy, was not included in either trial. Testimony that Mr. DeBenedictis continues to sell Avacor seemed influential with the jury, Mr. Fisher said. "We got the sense that they understood how many people had been defrauded here and that this was a widespread scheme, that this was something that [they] needed to put a stop to." But Mr. Hart said that while Mr. DeBenedictis has an interest in a new company, Avacor, no state or federal agency is claiming that selling the hair remedy is improper. The 2007 trial involved three principal defendants: Avacor's creator, a Nascar driver hired as its celebrity spokesman and a former doctor who appeared in ads for the product. The jury returned a verdict of just under $37 million. In his May 2008 statement of decision, Judge Freedman increased the award to $40 million. "The court can and does take judicial notice of the fact that enormous sums of money are spent on personal care and grooming products," Judge Freedman wrote in that decision -- see http://pdfserver.amlaw.com/ca/verdict1202_01.pdf "Into this lucrative market stepped a band of hucksters, defendants, to prey on the vulnerabilities of human nature and employing a colossal array of false, deceptive and fraudulent techniques cynically collected millions of dollars from deceived California consumers." HAIER AMERICA: Recalls 53,800 Blenders -------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Haier America Trading, L.L.C., of New York, N.Y., announced a voluntary recall of about 53,800 blenders manufactured by Ka Po International Industrial Co., of Hong Kong. Consumers should stop using recalled products immediately unless otherwise instructed. The blade assemblies of the blenders may come apart or break, posing a laceration risk. Haier America has received approximately 60 reports of blade assemblies coming apart or breaking. One consumer reported receiving a minor cut to his hand. This recall involves commercial-style 500-watt blenders with model number HB500BSS. The units are stainless steel and black plastic. "Haier" is printed on the front below the power switch, and the model number is printed on a label on the bottom of the blenders. A picture of the recalled product is available at http://www.cpsc.gov/cpscpub/prerel/prhtml10/10052.html The recalled blenders, manufactured in China, were sold at mass merchandisers and specialty retailers nationwide from November 2006 through October 2009 for between $26 and $60. Consumers should immediately stop using the recalled blenders and contact Haier America to receive a free replacement blade assembly. For additional information, contact Haier America toll-free at (866) 327-6147 anytime, or visit the firm's Web site at http://www.haieramerica.com/ HURRICANE KATRINA: Fifth Cir. Upholds Dismissal of Dredging Suit ---------------------------------------------------------------- Annie Youderian at Courthouse News Service reports that the United States Court of Appeals for the Fifth Circuit upheld a lower court's dismissal of a class action seeking to hold 32 federal contractors liable for flood damage linked to the dredging of the Mississippi River-Gulf Outlet shipping canal before Hurricane Katrina. The three-judge panel in New Orleans backed a federal judge's decision to dismiss the 2006 class action against the United States and 32 dredging companies. The plaintiffs claimed that the dredging damaged wetlands, "created an environmental disaster," and "dramatically increased the region's vulnerability to hurricanes and tropical surges." Specifically, they said the dredging amplified the storm surge during Hurricane Katrina. However, the district court found that the contractors were protected by government-contractor immunity, and the 5th Circuit panel agreed. "These allegations attack Congress' policy of creating and maintaining the MGRO, not any separate act of negligence by the Contractor Defendants," Judge Priscilla Owen wrote. The plaintiffs' remaining claims -- that the lower court should have let them amend their complaint or conduct discovery -- as being "without merit" or "harmless error," the court concluded. A copy of the slip opinion in Ackerson, et al. v. Bean Dredging LLC, et al., No. 07-30272 (5th Cir.), is available at: http://www.ca5.uscourts.gov/opinions/pub/07/07-30272-CV0.wpd.pdf NEW YORK: Teachers Sue for Being Confined to "Rubber Rooms" ----------------------------------------------------------- Dan McCue at Courthouse News Service reports that some 2,000 schoolteachers say New York City is discriminating against them by confining them on trumped-up charges in infamous "rubber rooms" until they retire. Rubber rooms are study hall-like places where teachers are paid full wages to do nothing -- sometime for years. The class of tenured teachers claims School Chancellor Joel Klein is following Mayor Michael Bloomberg's orders: to abolish the public schools' tenure system by firing tenured teachers or forcing them to quit by making their work life unbearable. Mayor Bloomberg took administrative control of the city's public schools in 2002. The named plaintiffs - Marie Anne Thomas, Leverett Holmes, Josefina Cruz, Brian Salazar, David Pakter and Paul Santucci -- all were brought up on disciplinary charges after Bloomberg took over the schools. They say Chancellor Klein had no educational experience when he was appointed, and was given the job with a directive to abolish the public school's system of tenure, and to either fire tenured teachers or force them to quit by making their work life unbearable. Since then, the defendants -- the New York City Department of Education, Chancellor Klein, Human Resources Director Philip Crowe and his deputy Judith Rivera -- have denied an estimated 2,000 class members due process rights, consigning them to the limbo of the district's overcrowded Teacher Reassignment Centers, aka the rubber rooms, according to the complaint. Thomas and her fellow plaintiffs say the practice also violates their right to equal protection, their human rights, and their contractual and statutory rights under state law. They seek declaratory and injunctive relief, and compensatory and punitive damages. In each case, the teachers said, the charges were improperly brought without contractually required checks and balances to determine whether there was probable cause to back the suspicions raised about them. When confined in rubber rooms, the teachers are subjected to surveillance by guards and security cameras, hostility from administrators, and are denied use of electronic devices, including their telephones and laptop computers. And because the centers are overcrowded, the teachers say, they are exposed to health and fire dangers. Few teachers are ever provided with the opportunity to be exonerated of any or all charges, the complaint states. The teachers say that no teacher outside of New York Cit is confined in a rubber room while awaiting the disposition of disciplinary charges. They want the rubber rooms to be closed immediately, and to be returned to their teaching duties. A copy of the Complaint in Thomas, et al. v. New York City Department of Education, Case No. 09-cv-05167 (E.D.N.Y.) (Townes, J.), is available at: http://www.courthousenews.com/2009/12/01/RubberRoom.pdf The Plaintiffs are represented by: Joy Hochstadt, Esq. 300 Central Park West, Suite 2E New York, NY 10024-1513 Telephone: 212-580-9930 NTD APPAREL: Recalls 1,200 Hello Kitty Zip Up Hoodie Sweatshirts ---------------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with NTD Apparel, of Los Angeles, Calif., announced a voluntary recall of about 1,200 "Hello Kitty" Zip Up Hoodie Sweatshirts the following consumer product. Consumers should stop using recalled products immediately unless otherwise instructed. The sweatshirts have a drawstring through the hood which can pose a strangulation hazard to children. In February 1996, CPSC issued guidelines (which were incorporated into an industry voluntary standard in 1997) to help prevent children from strangling or getting entangled on the neck and waist drawstrings in upper garments, such as jackets or sweatshirts. No incidents or injuries have been reported. The "Hello Kitty" hoodie has an appliqu� on the right chest and screenprint on left chest and left sleeve. They were sold in black with silver lining and in sizes 2T, 3T, 4, 5, 6 and 6X. NTD APPAREL, D1592H7273, RN#116180 is printed on the neck label and care label. A picture of the recalled product is available at http://www.cpsc.gov/cpscpub/prerel/prhtml10/10054.html The garments were manufactured in China and sold at Macy's and Dillard's department stores nationwide from November 2008 through December 2008 for $36. Consumers should immediately remove the drawstrings from the sweatshirts to eliminate the hazard, or return the garment to either the place of purchase or to NTD Apparel for a full refund. For additional information, contact NTD Apparel toll-free at (866) 317-3974 between 9:00 a.m. and 5:00 p.m., Pacific time, Monday through Friday. OBERON MEDIA: Lawsuit Complains About Automatic GameSaver Fees -------------------------------------------------------------- Maria Dinzeo at Courthouse News Service reports that video game players expecting free games were charged monthly subscription fees instead by GameSaver, according to a federal class action. Oberon, which sells video games to "casual gamers," automatically enrolls people in its GameSaver subscription service when they buy a game online or redeem a free game, the class claims. The class says they never consented to purchase GameSaver subscriptions and that Oberon refused to cancel these memberships unless they agreed to pay an "early termination fee." They claim GameSaver automatically charged their credit cards "membership fees" of up to $9.95 a month. They also say that Oberon refuses to deliver on its promise of one free game per month and charged their credit cards multiple times for single-game purchases. Lead plaintiff Blake Williams says she was charged twice for a GameSaver membership after she tried to redeem a free game on the GameSaver Web site, and that Oberon refused to refund her money. Peggy McGregor says that one month after she bought a single game, she discovered she had been charged for a monthly GameSaver membership. McGregor says she is still trying -- unsuccessfully -- to cancel the "service." Oberon is a Delaware corporation based in New York City. The class demands restitution and compensatory damages for Oberon's unlawful early termination fees and unjust enrichment. A copy of the Complaint in Williams, et al. v. Oberon Media, Inc., Case No. 09-cv-08764 (C.D. Calif.), is available at: http://www.courthousenews.com/2009/12/02/GameSaver.pdf The Plaintiffs are represented by: Ronald W. Makarem, Esq. Marni B. Folinsky, Esq. MAKEREM & ASSOCIATES, APLC 11601 Wilshire Boulevard, Suite 2440 Los Angeles, CA 90025-1760 Telephone: 310-312-0299 - and - Michael H. Kim, Esq. MICHAEL H. KIM, P.C. 3699 Wilshire Boulevard, Suite 860 Los Angeles, CA 90010 Telephone: 213-639-2900 OHIO AUTOMOBILE: Accused of Charging Bogus $250 Documentation Fee ----------------------------------------------------------------- Courthouse News Service reports that The Ohio Automobile Dealers Association adds a bogus $250 "documentation fee" to every auto its members sell or lease in Ohio, a class action claims in Cuyahoga County Court, Cleveland. OWENS CORNING: Accused in W.D. Pa. Lawsuit of Breaching Warranty ---------------------------------------------------------------- Courthouse News Service reports that Owens Corning claims its shingles are guaranteed for 20 to 40 years, but refuses to replace or repair them when they start falling apart after less than 5 years, a class action claims in Pittsburgh Federal Court. A copy of the Class Action Complaint dated Nov. 24, 2009 (Doc. 1529, filed Nov. 30, 2009) in Wright v. Owens Corning, Case No. 05-cv-02025 (W.D. Pa.), is available at: http://www.courthousenews.com/2009/12/01/CCAShingles.pdf The Plaintiff is represented by: James T. Davis, Esq. DAVIS & DAVIS 107 East Main Street Uniontown, PA 15401 Telephone: 724-437-2799 - and - Charles J. LaDuca, Esq. Brendan S. Thompson, Esq. CUNEO GILBERT & LADUCA, LLP 507 C Street, N.E. Washington, DC 20002 Telephone: 202-789-3960 - and - Michael McShane, Esq. AUDET & PARTNERS, LLP 221 Main Street, Suite 1460 San Francisco, CA 94105 Telephone: 415-568-2555 - and - Robert J. Shelquist, Esq. LOCKRIDGE, GRINDAL & NAUEN, P.L.L.P. 100 Washington Avenue South, Suite 2200 Minneapolis, MN 55401 Telephone: 612-339-6900 - and - Clayton D. Halunen, Esq. Shawn Wanta, Esq. HALUNEN & ASSOCIATES 1650 IDS Center 80 South Eighth Street Minneapolis, MN 55402 Telephone: 612-605-4098 - and - Charles Schaffer, Esq. LEVIN FISHBEIN & BERMAN 510 Walnut Street, Suite 500 Philadelphia, PA 19106-3697 Telephone: 215-592-1500 Jon Hood at ConsumerAffairs.com reports that Ms. Wright had Owens Corning Oakridge Shadow 40-year shingles installed on her house in 1998. She bought the shingles through her contractor, who was convinced of their durability. But in late 2008 and early 2009 -- ten years after she purchased the shingles -- Ms. Wright discovered that her roof was leaking. In March, she was told that the only way to prevent further damage was to replace her entire roof. Ms. Wright responded by filing a class action lawsuit in federal court in Pennsylvania. The complaint says that Owens Corning failed to adequately test its shingles for common conditions that it knew, or should have known, could damage the shingles. As a result, the company's shingles .routinely deteriorate by cracking, curling and degranulating far in advance of the expiration of warranty periods.. The suit also says that Owens Corning fraudulently marketed the shingles as durable and long-lasting, leading consumers to believe that their roof would be taken care of for decades. Owens Corning marketed the Oakridge shingle, in particular, as "offering premium protection and enduring value . . . [c]onstructed with the most weathering grade asphalt available and a tough Fiberglass mat." Further, the suit says that Owens Corning actively concealed facts about the shingles' design that would have made consumers think twice before buying them. In addition to Owens Corning's inadequate testing and fraudulent marketing, the suit charges that the company had steadfastly refused to replace defective shingles, even though they are warrantied for up to 40 years. At least one consumer had his warranty claim turned down because he wasn't the house's original owner. The company has done nothing to remedy its warranty procedures or the design of its shingles, the suit charges. The suit is brought on behalf of all homeowners who have had Owens Corning shingles installed since 1986. The complaint asserts that, in addition to their ruined roofs, the plaintiffs have suffered structural damage to their homes and diminished property values. The action includes counts for breach of contract, breach of warranty, negligence, strict product liability, unjust enrichment, and breach of Pennsylvania consumer protection laws. Owens Corning is the second-largest asphalt shingle manufacturer in the U.S., and the largest manufacturer of industrial and specialty shingles. PROVIDENT ROYALTIES: Idaho Subclass Complaint Filed in D. Idaho --------------------------------------------------------------- Courthouse News Service reports that Bradley K. Hofhines and Summit Retirement Advisors sold Provident Securities through false and misleading statements, shareholders claim in Boise Federal Court. Defendants include Securities America, Securities American Financial Corp., and Ameriprise Financial Inc. A copy of the Complaint in Toomey, et al. v. Hofhines, et al., Case No. 09-cv-00613 (D. Idaho), is available at: http://www.courthousenews.com/2009/11/30/SCA.pdf The Plaintiffs are represented by: Richard H. Greener, Esq. Soo Y. Kang, Esq. GREENER BURKE SHOEMAKER P.A. The Banner Building 950 W. Bannock Street, Suite 900 Boise, ID 83702 Telephone: (208) 319-2600 - and - Lynn L. Sarko, Esq. Michael D. Woerner, Esq. Elizabeth A. Leland, Esq. KELLER ROHRBACK L.L.P. 1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052 Telephone: (206) 623-1900 Pursuant to Section VIII of the Order Granting Temporary Restraining Order, Appointing Receiver, Freezing Assets, Staying Litigation, Prohibiting the Destruction of Documents and Accelerating Discovery entered in Securities and Exchange Commission v. Provident Royalties LLC, et al., Case No. 09-cv-c1238 (N.D. Texas, filed July. 2, 2009), the Plaintiffs do not assert claims against Provident Royalties, LLC, Provident Asset Management, LLC, their subsidiaries or affiliates, Paul R. Melbye, Brendan W. Coughlin or Henry D. Harrison. STORK CRAFT: Crib Recall Leads to Class Action Suit in N.D. Ill. ---------------------------------------------------------------- Courthouse News Service reports that Stork Craft Manufacturing made dangerously defective drop-side cribs, which were recalled, and Wal-Mart sold them, a class action claims in Chicago Federal Court. A copy of the Complaint in Wiegel v. Stork Craft Manufacturing, and Wal-Mart Stores, Inc., Case No. 09-cv-07417 (N.D. Ill.), is available at: http://www.courthousenews.com/2009/11/30/CCACribs.pdf The Plaintiff is represented by: Ben Barnow, Esq. Sharon Harris, Esq. BARNOW AND ASSOCIATES, P.C. One North LaSalle Street, Suite 4600 Chicago, IL 60602 Telephone: (312) 621-2000 Fax: (312) 641-5504 - and - Aron D. Robinson LAW OFFICE OF ARON D. ROBINSON 19 S. LaSalle Street, Suite 1200 Chicago, IL 60602 Telephone: (312) 857-9050 News about the recall appeared in the Class Action Reporter on Nov. 11, 2009, and news about the filing of Canadian class action lawsuits following the recall appeared in the Class Action Reporter on Dec. 1, 2009. SUNSATIONS INC: Recalls 12,000 Children's Hooded Sweatshirts ------------------------------------------------------------ The U.S. Consumer Product Safety Commission, in cooperation with Sunsations Inc, of Virginia Beach, Va., announced a voluntary recall of about 12,000 Children's Hooded Sweatshirts with Drawstrings. Consumers should stop using recalled products immediately unless otherwise instructed. The sweatshirts have a drawstring through the hood which can pose a strangulation hazard to children. In February 1996, CPSC issued guidelines (which were incorporated into an industry voluntary standard in 1997) to help prevent children from strangling or getting entangled on the neck and waist drawstrings in upper garments, such as jackets or sweatshirts. A picture of the recalled product is available at: http://www.cpsc.gov/cpscpub/prerel/prhtml10/10053.html No incidents or injuries have been reported. The recall involves children's hooded sweatshirt sizes 2T through 12 sold in various solid colors. Style numbers included in this recall are: KD102, KD124 and KFS102. The garments were manufactured in Pakistan and were sold at Sunsations stores in Virginia Beach, Va.; Ocean City, Md.; and North Carolina from April 2006 through July 2009 for about $13. Consumers should immediately remove the drawstrings from the sweatshirts to eliminate the hazard or return the garment to Sunsations for a full refund. For additional information contact Sunsations at (800) 786-9044 between 9:00 a.m. and 5:00 p.m., Eastern time, Monday through Friday, or visit the firm's Web site at http://www.sunsationsusa.com/ TOO LAZY: Accused in Calif. Lawsuit of False Billing Practices ---------------------------------------------------------------- Courthouse News Service reports that Too Lazy LLC charges cell- phone customers for "services" they didn't order and don't want, a class action claims in Santa Clara County Court, Calif. A copy of the Complaint in Johnson v. Too Lazy, LLC, Case No. 109CV158280 (Calif. Super. Ct., Santa Clara Cty.), is available at: http://www.courthousenews.com/2009/11/30/CellPhone.pdf The Plaintiff is represented by: David C. Parisi, Esq. Suzanne Havens Beckman, Esq. PARISI & HAVENS LLP 15233 Valleyheart Drive Sherman Oaks, CA 91403 Telephone: 818-990-1299 VIVENDI SA: S.D.N.Y. Declines Invitation to Halt French Lawsuit --------------------------------------------------------------- Jonathan Perlow at Courthouse News Service reports that in an effort to avoid dueling "anti-suit injunctions," a federal judge in Manhattan refused to force media giant Vivendi SA to withdraw a French lawsuit against two members of a class action alleging securities fraud. U.S. District Judge Richard J. Holwell tried to avoid stepping on the Paris court's jurisdiction, despite acknowledging that the plaintiffs in the U.S. suit met the qualifications for an injunction. Investors sued in 2002, claiming Vivendi artificially inflated its stock price and issued false and misleading statements. The trial in Manhattan Federal Court began on Oct. 5. Three days later, Vivendi asked the Tribunal de Grande Instance de Paris to enjoin two individual French class members from participating. The trial is expected to last until the end of the year, the judge said. "Thus, both a U.S. court and a French court are being asked to enjoin parties from proceeding in a foreign jurisdiction," Holwell wrote. "The court concludes that plaintiffs in this action likely established their entitlement to an anti-suit injunction against Vivendi." But he said that his decision was "in the interests of comity" and was the necessary step "to avert the need for either a French or a U.S. court to enter competing anti-suit injunctions." Former CEO Jean-Marie Messier fueled Vivendi's growth from a water supply company to one of the world's largest media and telecommunications conglomerates. He and the company are accused of failing to disclose a liquidity crisis and of manipulating the company's share price. He faces criminal charges in France. Mr. Messier and former CFO Guillaume Hannezo are named as defendants along with Vivendi. They sued in 2007, claiming France was the proper venue to hear the case because the alleged fraudulent statements were approved by executives in Paris. U.S. District Judge Harold Baer Jr. ruled that the Manhattan District Court had jurisdiction over the case, in part because the company had moved its headquarters to New York. The fact that Messier lived in a $17 million Park Avenue apartment paid for by the company didn't help Vivendi's cause either. The judge certified a class of investors from the United States, France, England and the Netherlands. German and Austrian shareholders were excluded. Vivendi unsuccessfully argued that French investors should be barred from the suit, as class actions are not allowed in France. The court's decision "was based on the traditional notion that a court may exercise its jurisdiction to regulate illegal activity occurring within its territory," the judge wrote. In the most recent proceedings, Judge Holwell chose to not impede on a lawsuit filed in another country's court, but noted that "a final judgment in this case will dispose of the Paris action because the alleged need for a French court to issue an injunction against this action will be mooted." Vivendi claimed it was not trying to disrupt the trial or coerce the two French plaintiffs, but wanted to obtain a ruling from a French court. Such a decision "might be helpful to this court in any further consideration of these issues," Holwell wrote. "Requesting a French court to order class plaintiffs to withdraw from this action in the middle of a trial on the merits is a most unusual form of help." A copy of Judge Holwell's decision dated Nov. 19, 2009, in In re Vivendi Universal, S.A., Securities Litigation, Case No. 02-cv-05571 (S.D.N.Y.), is available at: http://www.courthousenews.com/2009/12/01/Vivendi.pdf WACHOVIA MORTGAGE: Mass. Suit Attacks World Mortgage Deals ---------------------------------------------------------- Courthouse News Service reports that Wachovia Mortgage, successor to World Savings Bank, profited unjustly by World's misrepresentation of the terms of its negatively amortizing, interest-only, "pick a payment" mortgages, a class action claims in Boston Federal Court. A copy of the Complaint in Leonelli, et ux. v. Wachovia Mortgage, FSB, Case No. 09-cv-12047 (D. Mass.) (O'Toole, J.), is available at: http://www.courthousenews.com/2009/12/02/HomeMorts.pdf The Plaintiffs are represented by: Valeriano Diviacchi, Esq. DIVIACCHI LAW OFFICE 111 Beach Street #1A Boston, MA 02111-2532 Telephone: 617-542-3175 WAL-MART STORES: 8th Cir. Revives Suit Concerning 401(k) Fees ---------------------------------------------------------------- Courthouse News Service reports that the United States Court of Appeals for the Eighth Circuit reinstated a class action accusing Wal-Mart and its executives of turning a blind eye while mutual funds charged millions of dollars in unnecessary fees for Wal- Mart's employee retirement plans. According to the complaint, a committee overseeing Wal-Mart's profit-sharing and 401(k) plan routinely selected mutual funds that shared their fees with trustee Merrill Lynch. As a result, some or all of the plan's investment options charged excessive fees, to the tune of $20 million a year, the plaintiffs claimed. The class members added that the high fees couldn't be justified by greater returns on investment, because most of the mutual funds underperformed lower-cost alternatives. Lead plaintiff Jeremy Braden estimated that the funds' higher fees and lower returns cost around $140 million by the end of 2007. The district court granted Wal-Mart's motion to dismiss, concluding that the plaintiffs lacked standing to challenge how the plan was managed before they began contributing to it. "In reaching this conclusion, the district court mixed two distinct issues," the St. Louis-based appeals court ruled. "Whether Braden may pursue claims on behalf of the Plan at all is a question of constitutional standing which turns on his personal injury," Judge Diana Murphy wrote for the three-judge panel. "Whether relief may be had for a certain period of time is a separate question, and its answer turns on the cause of action Braden asserts." Mr. Braden established standing for the alleged injury to his own plan, the court ruled, and the Employee Retirement Income Security Act allows him to "seek relief for the entire Plan." "The relief that may be appropriate, should Braden succeed, is not necessarily limited to the period in which he personally suffered injury," Judge Murphy added. The court reversed and remanded for further proceedings. A copy of the slip opinion in Braden v. Wal-Mart Stores, Inc., et al., No. 08-3798 (8th Cir.), is available at: http://www.ca8.uscourts.gov/opndir/09/11/083798P.pdf The District Court's order dismissing the lawsuit was reported at 590 F. Supp. 2d 1159 (W.D. Mo. 2008). Prior coverage of Braden v. Wal-Mart Stores, Inc, et al., Case No. 08-cv-03109 (W.D. Mo.), appeared in the Class Action Reporter on April 23, 2008, and July 24, 2008. WAL-MART STORES: Agrees to Pay $40 Million to Mass. Workers ----------------------------------------------------------- Rodrigue Ngowi at The Associated Press reports that Wal-Mart Stores Inc. has agreed to pay $40 million to 87,500 Massachusetts employees who claimed the retailer denied them rest and meals breaks, manipulated time cards and refused to pay overtime, according to court documents filed last week. The settlement -- believed to be one of the largest of its kind in the state -- seeks to resolve a class action lawsuit filed in 2001. It comes less than three months after the world's largest retailer reached a deal with state prosecutors to pay $3 million to settle complaints that it didn't give its Massachusetts workers proper meal breaks. An affidavit filed by plaintiffs' attorney Philip Gordon says people who worked for Wal-Mart between August 1995 and this year will receive payments of between $400 and $2,500, depending upon their years of service. "It is the largest settlement of any wage and hour class action in the history of Massachusetts, and it dwarfs settlements of similar class actions against Wal-Mart across the country," Mr. Gordon said in the affidavit. The settlement was reached after the court rejected a deal proposed in June and July when Mr. Gordon and other plaintiffs' attorneys objected, saying it was negotiated without the knowledge or consent of class action representatives, Wal-Mart's payout would not exceed $20 million and the money would be consumed largely by attorney fees. The latest settlement is also subject to approval from the Middlesex Superior Court. Under terms of the settlement, both sides are barred from commenting on the matter. "Resolving this litigation is in the best interest of our company, our shareholders and our associates. These cases were filed years ago, and the allegations are not representative of the company we are today," Wal-Mart spokeswoman Daphne Moore told the AP. The settlement guarantees the full $40 million and stipulates that no leftover funds will revert back to the Bentonville, Ark.- based Wal-Mart. The deal "will not only provide real cash to hard working Wal- Mart employees, but should also provide a mini-stimulus to Massachusetts as the money is distributed and spent by class members around the state," lead plaintiffs attorney Carolyn Beasley Burton said in an affidavit. The lawsuit was part of a string of complaints filed against Wal- Mart across the country in 2001. Last December, the company agreed to pay as much as $640 million to settle 63 lawsuits over wage-and-hour violations. New Securities Fraud Cases HEMISPHERX BIOPHARMA: Shareholder Suit Filed in E.D. Pa. -------------------------------------------------------- Courthouse News Service reports that Hemispherx Biopharma inflated its share price through false and misleading statements, shareholders claim in Philadelphia Federal Court. A copy of the Complaint in McGovern v. Hemispherx Biopharma, Inc., et al., Case No. 09-cv-05682 (E.D. Pa.) (Diamond, J.), is available at: http://www.courthousenews.com/2009/12/02/SCAHemispherx.pdf The Plaintiff is represented by: Scott R. Shepherd, Esq. Natalie Findelman Bennett, Esq. James C. Shah, Esq. SHEPHERD, FINKELMAN, MILLER & SHAH, LLP 35 E. State Street Media, PA 19063 Telephone: 610-891-9880 - and - Lawrence E. Feldman, Esq. LAWRENCE E. FELDMAN & ASSOCIATES Jenkintown Plaza, Suite 230 101 Greenwood Ave. Jenkintown, PA 19046 Telephone: 215-885-3302 - and - James E. Miller, Esq. Patrick A. Klingman, Esq. SHEPHERD, FINKELMAN, MILLER & SHAH, LLP 65 Main Street Chester, CT 06412 Telephone: 860-526-1100 ********* 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. Gracele D. Canilao, Leah Felisilda and Peter A. Chapman, Editors. Copyright 2009. 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. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Christopher Beard at 240/629-3300. * * * End of Transmission * * *