/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/091230.mbx C L A S S A C T I O N R E P O R T E R Wednesday, December 30, 2009, Vol. 11, No. 256 Headlines 5.11 TACTICAL: Recalls 19,000 Spanlink-Made Promotional Knives AIRVANA INC: Shareholder Sues in Del. to Block Sale of Company AMERICAN INVESTORS: Nine-Figure Settlement in RICO Class Action APPLE INC: Upgrades iMac Screen Firmware Without Any Liability APPLIED MINERALS: Final Settlement Hearing Set for Jan. 19 BEARINGPOINT INC: Securities Litigation Documents to be Preserved CALIFORNIA: Caltrans Settles N.D. Calif. Curb & Sidewalk Lawsuit CINTAS CORP: Settles Los Angeles Living Wage Lawsuit for $6.5 Mil COMCAST CORP: Settles Peer-to-Peer File Sharing Suit for $16 Mil. COMCAST CORP: Conn. Suit Complains About VoIP Modem Rental Fees EUROPEAN AUTOWORKS: Accused of Junk Fax Practices in Minn. Action IKEA HOME: Recalls 600 LEOPARD Highchairs LABOR READY: Notice of Settlement re Cash Dispensing Machine Fees LAMARTEK INC: Recalls 16,000 Dive Rite Wings MIVA INC: M.D. Fla. Dismisses Consolidated Securities Litigation NISSAN: Bubbling Infinity Dashboard Suit Filed in Missouri PXRE GROUP: 2nd Cir. Affirms Dismissal of Securities Complaint SEARS ROEBUCK: Wachtell Wins Dismissal of Kmart Merger Litigation SKYLINE HOMES: Hagens Berman Amends Waterproofing Lawsuit WATTS REGULATOR: Recalls 900 Temperature & Pressure Relief Valves ********* 5.11 TACTICAL: Recalls 19,000 Spanlink-Made Promotional Knives -------------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with 5.11 Tactical(R), of Modesto, Calif., announced a voluntary recall of about 19,000 promotional knives manufactured by Spanlink International Corp. Consumers should stop using recalled products immediately unless otherwise instructed. The knife can fail to lock into its open position, posing a cutting hazard to consumers. One minor cut was reported by a store employee. The recalled folding knives, Style No. 51041019, have a black handle with a pocket clip and are approximately five inches in length when closed and seven and three-quarters inches in length when the blade is open. Pictures of the recalled knives are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml10/10088.html The recalled items were manufactured in China and given away as a free promotional item commencing in September 2009 and ending in December 2009. Consumers should stop using the knives immediately and either return the knives to their local 5.11 Tactical retailer or contact 5.11 Tactical directly to arrange for the return and exchange of the knives for a substitute promotional item at no cost to them. For additional information, contact 5.11 Tactical Customer Service at (866) 451-1726 or visit the firm's Web site at http://www.511tactical.com/ AIRVANA INC: Shareholder Sues in Del. to Block Sale of Company -------------------------------------------------------------- Courthouse News Service reports that Airvana is selling itself too cheaply to 72 Mobile Holdings, which is owned by S.A.C. Private Capital Group, GSO Capital Partners, Sankaty Advisors, and Zelnick Media, for $7.65 a share or $530 million, shareholders claim in Delaware Chancery Court. A copy of the Complaint in Israni v. Airvana, Inc., et al., Case No. 5135 (Del. Ch. Ct.), is available at: http://www.courthousenews.com/2009/12/22/SCA.pdf The plaintiff is represented by: Joseph A. Rosenthal, Esq. ROSENTHAL MONHAIT & GODDESS, P.A. Citizens Bank Center 919 Market Street, Suite 1401 Wilmington, DE 19801 Telephone: (302) 656-4433 - and - Samuel H. Rudman, Esq. David A. Rosenfeld, Esq. Mark S. Reich, Esq. Joseph Russello, Esq. Carolina C. Torres, Esq. COUGHLIN STOIA GELLER RUDMAN & ROBBINS, LLP 58 South Service Road, Suite 200 Melville, NY 11747 Telephone: (631) 367-7100 - and - Marc S. Henzel, Esq. LAW OFFICES OF MARC C. HENZEL 273 Montgomery Ave., Suite 202 Bala Cynwyd, PA 19004 Telephone: 610-660-8000 AMERICAN INVESTORS: Nine-Figure Settlement in RICO Class Action --------------------------------------------------------------- Shannon P. Duffy at The Legal Intelligencer reports that a federal judge has granted final approval of a class action RICO settlement estimated to be worth at least $184 million and possibly as much as $530 million to a class of mostly elderly investors who say they were lured by deceptive marketing practices to purchase long-term annuities that often had maturity dates far beyond their own life expectancies. In her 75-page opinion in In re American Investors Life Insurance Co. Annuity Marketing and Sales Practices Litigation, U.S. District Judge Mary A. McLaughlin also awarded nearly $17.7 million in attorney fees and $550,000 in expenses to the team of plaintiffs lawyers led by Jerome M. Marcus and Jonathan Auerbach of Marcus & Auerbach in Wyncote, Pa., and John R. Hargrove of Hargrove Pierson & Brown in Boca Raton, Fla. Judge McLaughlin was assigned to preside over several class actions brought on behalf of more than 387,000 investors that accused AILI of conspiring with sales agents, trust attorneys and annuity marketing firms to entice older investors to purchase annuities that simply weren't suitable given the investors' ages and the substantial "surrender charges" incurred for early withdrawal. The main thrust of the suits was that the investments were "highly illiquid," meaning that the investors' funds would be tied up for long periods. In approving the settlement, Judge McLaughlin found that the plaintiffs lawyers had persuaded AILI to cure that problem by modifying the policies. "The settlement relief liquifies the annuities and allows class members to receive immediate payments and bonuses," Judge McLaughlin wrote. Under the terms of the settlement, AILI denied any wrongdoing, but agreed to modify significant aspects of the annuity policies, most notably removing surrender charges for class members whose policies are in deferral while allowing them to obtain the accumulated value of their annuity over a period ranging between two and seven years. Class members who can establish fraud can receive even greater relief by opting to pursue a claim that challenges the specific marketing practices used in their case. In an expert report, Baylor University business professor William Reichenstein, who has studied annuities for 20 years, estimated that the settlement is worth at least $184 million and possibly as much as $530 million, depending on the reaction of the class to the policy changes. In his first report, Mr. Reichenstein had supported the plaintiffs' RICO claims, opining that, given their features, illiquidity and possible rates of return, the annuities at issue in this case were "per se unsuitable" for their purchasers. In a report filed along with the settlement papers, Mr. Reichenstein noted that 96 percent of the policy account values, totaling $17 billion, are in deferral. He then opined that a minimum of 10 percent and a maximum of 35 percent of the class would receive some form of relief offered by the settlement. Mr. Reichenstein then calculated a range of potential value for the settlement based on predictions for the percentage of class members who would take advantage of the option to withdraw up to 10 percent of the value without penalty. At a fairness hearing, plaintiffs lawyers told Judge McLaughlin the settlement value would surpass Mr. Reichenstein's low estimate because, by the time of the hearing, the class participation was already higher than what the professor had anticipated. In declaring the settlement to be fair, Judge McLaughlin pointed to the low percentage of objections and exclusions, noting that only 12 of the 387,263 class members objected to the settlement, and that only 840 were excluded. Judge McLaughlin also noted that the plaintiffs faced significant risks if they pressed ahead and insisted on taking the case to trial. "Even if this action survived summary judgment, the trial would be complex and risky. It would involve intricate actuarial and financial analysis of the defendants' annuities and an inevitable battle of the experts," Judge McLaughlin wrote. Turning to the issue of the fees, Judge McLaughlin found that the plaintiffs lawyers had logged more than 16,000 hours over five years, racking up a lodestar of more than $7.9 million without any guarantee of payment. The requested fee of $17.9 million was a reasonable one, Judge McLaughlin found, because it amounted to just 3 to 9 percent of the estimated value of the settlement and resulted in a "multiplier" of 2.3 times the plaintiffs lawyers' ordinary billing rates. Judges within the Third Circuit, Judge McLaughlin noted, have approved fees ranging from 6.5% to 14.5% in cases where the settlements were valued between $90.1 million and $1.8 billion. "Class counsel's sought fee award of 3 percent to 9 percent of the settlement amount fits comfortably within the range of approved fee amounts for similar cases," Judge McLaughlin wrote. Lead defense counsel is James F. Jorden, Esq., at Jorden Burt in Washington, D.C. APPLE INC: Upgrades iMac Screen Firmware Without Any Liability -------------------------------------------------------------- David Diaz at TechCrunch.com reports that Law360 says a California federal judge dismissed a potential class action lawsuit which alleged that Apple propagated their popular iMac screens without disclosing certain manufacturing defects to its customers, saying that the allegations were too general to be considered. The lawsuit stated that unwanted vertical lines would appear on the devices after the warranty period had expired and that Apple "internally recognizes and concedes" the defect, but did nothing to warn consumers. While the class action suit was dismissed, the judge did state that the common-law claim regarding Apple's deliberate conciliation could be amended to add more detail, and thus decrease the scope of the suit. Coincidentally, or maybe not so Mr. Diaz says, Apple released a firmware update to address problems which have arisen on the 27¨ iMac screens. The firmware is stated to "address issues that may cause image corruption or display flickering." APPLIED MINERALS: Final Settlement Hearing Set for Jan. 19 ---------------------------------------------------------- Applied Minerals, Inc. (OTCBB: AMNL) f/k/a Atlas Mining Company announced that the Securities and Exchange Commission had approved the Company's offer of settlement to claims by the SEC arising out of the conduct of Atlas Mining Company's former CEO, Chairman, and President William Jacobson. The SEC settlement imposes no fine or other monetary sanction to be paid by the Company. The settlement with the SEC removes the last major issue confronting the Company left over from the prior management. With the SEC settlement, and final court approval of the previously announced class action settlement expected on January 19, 2010, the Company's management team is free to focus on the continued execution of its business plan into 2010, unencumbered with the legacy issues of the past. Details of the SEC Settlement: In an SEC administrative proceeding, the Company consented, without admitting or denying the facts, to the entry of a cease- and-desist order barring future violations of certain registration and reporting provisions of the federal securities laws. The SEC's cease-and-desist order specifically recognizes the remedial efforts undertaken by the new management of the Company. The SEC explains that after Jacobson's violations came to light in 2008, the Company promptly undertook "significant remedial efforts." These efforts included undertaking an internal investigation and reporting its findings to the SEC; replacing all members of the management team of the Company, including hiring a new CEO and CFO; changing all members of the Board of Directors; changing its independent auditor; adopting a Code of Conduct and Ethics for its senior officers; implementing internal control and corporate governance policies; and implementing additional remedial measures to improve its financial reporting and disclosure controls, including the appointment of a financial expert to the Board of Directors. As of August 14, 2009, the Company had brought itself current on all due and/or delinquent periodic reports and continues to be current on such reports. About Applied Minerals Inc Applied Minerals Inc., formerly the Atlas Mining Company, is the producer of halloysite clay from their wholly owned Dragon Mine Property in Utah. Halloysite is aluminosilicate clay that forms naturally occurring nanotubes. In addition to serving the traditional halloysite markets for use in technical ceramics and catalytic applications, the company has targeted niche applications that they feel will benefit from the tubular morphology of their Halloysite. These include: carriers of active ingredients in paints, coatings and building materials, agricultural applications and high performance fillers in plastic composites. BEARINGPOINT INC: Securities Litigation Documents to be Preserved ----------------------------------------------------------------- The U.S. Bankruptcy Court for the Southern District of New York entered an order confirming BearingPoint, Inc.'s Second Modified Amended Joint Plan Under Chapter 11 of the Bankruptcy Code. The Confirmation Order provides that "[n]otwithstanding anything in the Plan or herein, all of the Debtors' books, records and other documents relating to the securities class action entitled In re BearingPoint, Inc., Securities Litigation, Civil Action No. 1:05-cv-00454 (E.D. Va.) . . . shall be maintained by the Debtors or the Liquidating Trustee, as applicable, in the same manner as such are currently maintained, for a period of sixty (60) days following the effective date of the Plan, or as otherwise agreed to by the Debtors or the Liquidating Trustee, as applicable, and the Lead Plaintiffs . . . or as otherwise ordered by the Bankruptcy Court; provided, however, that all rights of the Lead Plaintiffs with respect to the disposition of the Debtors' books, records and other documents relating to the Securities Litigation are preserved." CALIFORNIA: Caltrans Settles N.D. Calif. Curb & Sidewalk Lawsuit ---------------------------------------------------------------- Caltrans has reached an agreement on the settlement of a class action lawsuit filed by Californians for Disability Rights (CDR) and California Council for the Blind (CCB) to improve access to pedestrian facilities such as curbs and sidewalks for persons with disabilities. The proposed settlement agreement has been submitted to the federal court. The court must preliminarily approve the terms of the agreement and then conduct a hearing before it is binding. There will be a public notice period, and all interested parties and the U.S. Department of Justice will be given an opportunity to review the settlement and provide input to the court. Final court approval of the settlement is not expected before April 2010. "This settlement is a win-win. It is a victory for all Californians -- taxpayers and the disability community who have a right to equal access to all walkways," said Governor Arnold Schwarzenegger. "It would be inexcusable to continue to delay these modifications. Instead of debating this through the legal process for the next decade, costing millions of taxpayer dollars, we are taking action to get this work completed." The terms of the settlement provide, among other things, that: "Caltrans is committed to addressing the mobility needs of all Californians and takes seriously its responsibilities under the Americans with Disabilities Act," said Caltrans Director Randy Iwasaki. The action, filed under the Americans with Disabilities Act (ADA), alleged that Caltrans discriminated against persons with mobility and/or visual disabilities by denying them full and equal access to sidewalks, crosswalks, park and ride lots and other pedestrian facilities owned or maintained by Caltrans. The lawsuits were filed in both federal and state court in 2006 and 2008. A copy of the settlement agreement in Californians for Disability Rights, Inc., et al., v. California Department of Transportation, et al., Case No. 06-cv-05125 (N.D. Calif.) (Armstrong, J.), is available at http://ResearchArchives.com/t/s?4cb6 CINTAS CORP: Settles Los Angeles Living Wage Lawsuit for $6.5 Mil ----------------------------------------------------------------- Bruce Beggs at American Laundry News reports that Cintas Corp. has agreed to settle a class-action lawsuit alleging that it violated the City of Los Angeles Living Wage Ordinance, and Workers United/SEIU, which claims to represent 70% of laundry workers in California, says the settlement will cost the company a record $6.5 million. More than 500 Southern California Cintas laundry workers are due to receive back wages, the union says. The lawsuit -- Ayon, et al. v. Cintas Corp. -- involved three Cintas rental facilities that rented goods to the City of Los Angeles Department of Water and Power under contract, says Cintas, which agreed to the settlement on Dec. 11. "While Cintas firmly believes that it fully complies with all federal and state wage and hour laws, including the Los Angeles Living Wage Ordinance (LWO) which was the subject of the case, the Company has decided to resolve the claims through a mediated settlement, in order to avoid the additional expense and distraction of ongoing litigation," Cintas says in a prepared statement. "The company's focus is to maintain the strong relationships we have with our employee-partners while providing the outstanding service our customers have grown to expect from Cintas," says Cintas CEO Scott Farmer in the statement. "Resolving this claim will enable us to do just that." The mediated settlement, which still must be approved by the Los Angeles Superior Court, provides $3.3 million in back wages and interest for more than 500 Cintas laundry workers at the company's Ontario, Pico Rivera and Whittier sites. Cintas will pay an additional $250,000 in penalties and more than $2.6 million in legal fees for the five-year class-action case, according to Workers United/SEIU. "We are overjoyed that Cintas is finally paying us the money we earned," says Blanca Arrellega, a worker at Cintas' Whittier facility, in the union's press release. "Five years was too long to wait to get what we worked so hard for." Los Angeles has a city ordinance that requires private businesses entering a contract to perform work for the city to pay a "living wage" to their employees who perform the work. Cintas contends that Regulation 5, the portion of Los Angeles' LWO at the heart of the employee lawsuit, didn't apply to its workers because they didn't work the minimum number of hours per month on those goods. "Cintas' evidence was that Cintas employee-partners on average spent far less than 20 hours per month, and in most cases only minutes per week, on goods leased to the Los Angeles Department of Water and Power, making the LWO inapplicable according to Regulation 5," Cintas says. The Los Angeles settlement comes almost a year after Cintas was required to pay roughly $1.2 million in back wages, interest and penalties to hundreds of Northern California Cintas workers and the State of California in a case where Cintas was found to have violated the City of Hayward's Living Wage Ordinance (Amaral vs. Cintas). COMCAST CORP: Settles Peer-to-Peer File Sharing Suit for $16 Mil. ----------------------------------------------------------------- Comcast Corporation has agreed to settle a consumer class action that challenged the company's practice of secretly blocking certain Internet traffic while claiming to provide unlimited Internet access. The lawsuit alleges that Comcast impaired the use of some "Peer-to-Peer" file sharing traffic on Comcast's High-Speed Internet network. Under the terms of the settlement, Comcast has agreed to pay up to $16 million, less settlement costs, to eligible Class members. P2P protocols facilitate the sharing and transfer of content such as high-definition movies and audio files between groups of users. P2P protocols are different than most streaming video services like YouTube and Netflix, which do not use P2P and are not involved in this case. "This settlement is a great result for Comcast customers," Lexington Law Group partner Mark Todzo states. "It creates an efficient and effective mechanism that will put money back in the customers' hands without them individually going to court." The action is currently pending in the United States District Court for the Eastern District of Pennsylvania and is being handled by Lexington Law Group together with the leading nationwide class-action firm Scott+Scott LLP. Comcast customers may be eligible to get a refund or credit if they live in the United States or its Territories with a current or former Comcast High-Speed Internet account and either: * Used or attempted to use Comcast service to use the Ares, BitTorrent, eDonkey, FastTrack or Gnutella P2P protocols any time from April 1, 2006 to December 31, 2008 and were unable to share files or have reason to believe that the speed at which files were shared was impaired; and/or * Attempted but were unable to use Comcast service to use Lotus Notes to send emails any time from March 26, 2007 to October 3, 2007. Comcast customers who wish to make a claim for settlement benefits should call 1-877-567-2754, or visit http://www.P2PCongestionSettlement.com/-- maintained by Rust Consulting -- for more information. The Lexington Law Group is a public interest law firm specializing in consumer protection and environmental cases. Its cases have resulted in the removal of toxic chemicals from thousands of everyday products and recovery of millions of dollars for the benefit of consumers. Scott+Scott LLP is a law firm with significant experience in prosecuting national class actions. The firm currently is litigating major consumer, securities, antitrust, insurance and employee-related actions throughout the United States. Scott+Scott LLP represents injured consumers, pension funds, foundations and other entities worldwide. The Plaintiff Class is represented by: Mark N. Todzo, Esq. Eric S. Somers, Esq. LEXINGTON LAW GROUP LLP 1627 Irving Street San Francisco, CA 94122 Telephone: 415-759-4111 - and - David R. Scott, Esq. Christopher M. Burke, Esq. SCOTT + SCOTT LLP 600 B Street, Suite 1500 San Diego, CA 92101 Telephone: 619-233-4565 Comcast is represented by: Seamus C. Duffy, Esq. DRINKER BIDDLE AND REATH LLP One Logan Square 18th & Cherry Sts. Philadelphia, PA 19103-6996 COMCAST CORP: Conn. Suit Complains About VoIP Modem Rental Fees --------------------------------------------------------------- Courthouse News Service reports that Comcast violates antitrust law by refusing to provide digital voice-phone service to customers unless they rent a modem at additional cost. The class action plaintiffs say Comcast won't sell the modem, and won't let them use one which is available for sale elsewhere, in New Haven Federal Court. A copy of the Class Action Complaint in Fromer v. Comcast Corporation, et al., Case No. 09-cv-_____ (D. Conn.), is available at: http://www.courthousenews.com/2009/12/22/Antitrust.pdf The Plaintiff is represented by: Anthony J. Medico, Esq. Frank Napolitano, Esq. THE LAW OFFICES OF MEDICO AND NAPOLITANO, LLC 7 Benedict Place Greenwich, CT 06830 Telephone: 203-661-8151 - and - William M. Sweetnam, Esq. 5 Revere Drive, Suite 200 Northbrook, IL 60062 Telephone: 845-498-7500 EUROPEAN AUTOWORKS: Accused of Junk Fax Practices in Minn. Action ----------------------------------------------------------------- David Hanners at the St. Paul Pioneer Press reports that Andrew Percic, who runs a restaurant in Minneapolis that uses its fax machine to take lunch orders, had enough of the unsolicited ads clogging his machine. Mr. Percic has sued a Bloomington, Minn., auto repair company and believes enough other businesses got the company's unwanted missives that the litigation should qualify as a class-action suit. In language equating an unsolicited fax to an assault, Mr. Hanners relates, Mr. Percic's lawyers say that a 2005 fax from a company named Autopia violated the federal Telephone Consumer Protection Act and that damages are in order. "Unsolicited faxes damage their recipients," the suit contends. "A junk fax recipient loses the use of its fax machine, paper and ink toner. An unsolicited fax wastes the recipient's valuable time that would have been spent on something else. A junk fax interrupts the recipient's privacy." Moreover, the suit claims, such faxes "prevent fax machines from receiving authorized faxes, prevent their use for authorized outgoing faxes, cause undue wear and tear on the recipients' fax machines and require additional labor to attempt to discern the source and purpose of the unsolicited message." The suit originally was filed in state court in Hennepin County but was removed to U.S. District Court in Minneapolis on the request of European Autoworks Inc., the Greenwich, Conn.-based company that owns Autopia. The case is Percic Enterprises, Inc. v. European Autoworks, Inc., Case No. 09-cv-03629 (D. Minn.) (Davis, J.). The Plaintiff is represented by: Garrett D. Blanchfield, Jr., Esq. Brant D. Penney, Esq. REINHARDT WENDORF & BLANCHFIELD 332 Minnesota St., Ste. E-1250 St. Paul, MN 55101 Telephone: 651-287-2100 The Defendant is represented by: William A. LeMire, Esq. Christopher D. Newkirk, Esq. ARTHUR CHAPMAN KETTERING SMETAK & PIKALA, PA 81 S. 9th St., Ste. 500 Minneapolis, MN 55402-3214 Telephone: 612-339-3500 IKEA HOME: Recalls 600 LEOPARD Highchairs ----------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with IKEA Home Furnishings, of Conshohocken, Pa., announced a voluntary recall of about 600 LEOPARD Highchairs. Consumers should stop using recalled products immediately unless otherwise instructed. The snap locks used to secure the seat to the frame can break and allow the seat and child to drop through the frame, posing a fall hazard to young children. Detached snap locks can pose a choking hazard to young children. IKEA has received 11 reports worldwide of failing snap locks, including one report of a child falling through the frame and suffering bruised legs. In addition, the firm has one report of a child mouthing a detached snap lock. No incidents have been reported in the United States. This recall involves all colors of the LEOPARD highchairs sold as a seat and a frame individually. The seat and tray has an adhesive label affixed to the underside with the words LEOPARD and "Made in Italy," an eight-digit article number and a five- digit supplier number (19589). Pictures of the recalled product are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml10/10089.html The recalled highchairs were manufactured in Italy and sold exclusively at IKEA stores nationwide from October 2009 through November 2009 for about $60. The frame sold for $40 and the seat for $20. Consumers should immediately stop using the highchairs and return them to any IKEA store for a full refund. For additional information, contact IKEA toll-free at (888) 966-4532 anytime, or visit the firm's Web site at http://www.ikea-usa.com/ LABOR READY: Notice of Settlement re Cash Dispensing Machine Fees ----------------------------------------------------------------- If you were a temporary worker at any Labor Ready branch in New York State at any time between November 17, 2000 and November 16, 2006 (in the case of Buffalo, New York branch # 1772, between January 1, 2001, and November 16, 2006), and were paid in cash through a Labor Ready cash dispensing machine, you are entitled to a payment. This notice is to advise you concerning a Settlement with the Attorney General of New York regarding temporary workers who worked for Labor Ready Northeast, Inc. in New York State. If you were a temporary worker at any Labor Ready branch in New York State at any time between November 17, 2000, and November 16, 2006 (in the case of Buffalo, New York branch # 1772, between January 1, 2001 and November 16, 2006), and were paid in cash through a Labor Ready cash dispensing machine, you are entitled to a payment. The Settlement requires Labor Ready to pay each Eligible Employee (as defined above) 250% (two and a half times) the total amount that was deducted as CDM fees from that person's wages. The fee for each use of the CDM machine was between $1.00 and $1.99. The amount you will receive depends on how long you worked for Labor Ready, how often you used the CDM machine, and what Labor Ready records show was the total amount deducted as CDM fees from your wages. A notice of restitution was sent to the last known address of Eligible Employees. That Notice explains how to request payment under the Settlement. If you are an Eligible Employee but did not get the Notice, please contact: NYAG v Labor Ready Class Action Processing c/o Simpluris, Inc. PO Box 679560 Orlando, FL 32867-9560 Questions? Call Simpluris at 877-723-7134, or the New York Attorney General's Office, Assistant Attorney General Seth Kupferberg, 212-416-8856. LAMARTEK INC: Recalls 16,000 Dive Rite Wings -------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Lamartek Inc., dba Dive Rite of, Lake City, Fla., announced a voluntary recall of about 16,000 Dive Rite Wings. Consumers should stop using recalled products immediately unless otherwise instructed. The over pressure valve springs in the diving equipment could rust and fail allowing the buoyancy compensator devices to leak, posing a drowning hazard to divers. No incidents or injuries have been reported. The Dive Rite Wings affected in this recall include these models: -- Travel, -- Venture, -- Rec, -- Trek, -- Classic, -- Nomad and -- Super Wings. The wings were sold in red, blue or black. Springs were used on wings that have an opaque white or blue tinted bladder and welded in flanges. Wings with a black bladder are not affected. Only the Dive Rite wings that have a serial number range from 42000 through 72000 are affected by this recall. The serial numbers can be found on a white tag attached along a seam of the wing. Pictures of the recalled product are available at http://www.cpsc.gov/cpscpub/prerel/prhtml10/10086.html The recalled items were manufactured in the United States and sold at diving equipment retailers and distributors nationwide from June 2006 through October 2008 for about $359. Consumers should immediately stop using recalled diving equipment and return it to an authorized distributor or dealer for a free replacement of the overpressure valve spring. For additional information, contact your local dealer or Dive Rite at (800) 495-1046 between 9:00 a.m. and 4:00 p.m., Eastern Time, Monday through Friday or visit the firm's Web site at http://www.diverite.com/ MIVA INC: M.D. Fla. Dismisses Consolidated Securities Litigation ---------------------------------------------------------------- Vertro, Inc.'s motion to dismiss In re MIVA, Inc. Securities Litigation, Case No. 05-cv-00201 (M.D. Fla.) (Steele, J.), has been granted and summary judgment has been entered in favor of the defendants in this consolidated shareholder securities class action. MIVA was formerly known as Findwhat.com, Inc. The Court ruled that plaintiffs could not prevail on their claims of alleged violations of Section 10(b) of the Securities Exchange Act of 1934 against Vertro and the individual defendants and on their claims that the individual defendants also violated Section 20(a) of the Act as "control persons" of Vertro. Vertro had previously disclosed in its Form 10-Q for the quarter ended September 30, 2009, that the Magistrate Judge issued a report recommending Vertro's motion for summary judgment be granted. Plaintiffs have filed a notice of their intention to appeal this decision to the Eleventh Circuit Court of Appeals. Vertro, Inc. (NASDAQ: VTRO) is a software and technology company that owns and operates the ALOT product portfolio. ALOT's products are designed to 'Make the Internet Easy' by enhancing the way consumers engage with content online. Through ALOT, Internet users can discover best-of-the-web third party content and display that content through customizable toolbar, homepage and desktop products. ALOT has millions of live users across its product portfolio. Together these users conduct high-volumes of type-in search queries, which are monetized through third-party search and content agreements. Coverage of the shareholder litigation appeared in the Class Action Reporter on Nov. 25, June 10, Apr. 15, 2009, and prior. NISSAN: Bubbling Infinity Dashboard Suit Filed in Missouri ---------------------------------------------------------- Courthouse News Service reports that dashboards in 2003-08 Infiniti FX35 and FX45 are prone to "bubbling," a class action claims in Jackson County Court, Independence, Mo. A copy of the Complaint in Hope, et al. v. Nissan North America, Inc., Case No. 0916-CV38388 (Mo. Cir. Ct., Jackson Cty.), is available at: http://www.courthousenews.com/2009/12/22/Nissan.pdf The Plaintiffs are represented by: L. Benjamin Mook, Esq. MOOK & MOOK, P.C. 103 N. Main St. Excelsior Springs, MO 64465 Telephone: 816-630-3300 - and - Michael W. Blanton, Esq. LAW OFFICE OF MICHAEL W. BLANTON 11150 Overbrook Rd., Suite 350 Leawood, KS 66211-2298 Telephone: 913-661-9600 - and - Kevin D. Stanley, Esq. THE STANLEY LAW FIRM 1100 Main St., Suite 2550 Kansas City, MO 64105 Telephone: 816-221-2320 PXRE GROUP: 2nd Cir. Affirms Dismissal of Securities Complaint -------------------------------------------------------------- The United States Court of Appeals for the Second Circuit in Condra v. PXRE Group, Ltd., No. 09-1370, upheld the decision of the U.S. District Court dismissing a securities fraud class action case regarding the losses that PXRE, a reinsurance company, would be exposed to in the wake of Hurricane Katrina as well as the company's procedures for calculating loss. On appeal, the disgruntled investors argued that the District Court erred in dismissing their complaint on the basis that it failed to raise a strong inference of scienter so as to survive a motion to dismiss. Specifically, investors asserted that the District Court erred by (1) holding that the Chief Actuary's opinion was insufficient to infer sceinter, (2) finding that the magnitude of PXRE's understatement of losses, absolutely and relative to its peers, did not support an inference of scienter, and (3) discounting defendants' motive and opportunity in making their alleged misstatements about PXRE's losses. "In a thorough, well-reasoned opinion, the District Court granted defendants' motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, holding that plaintiffs failed to sufficiently plead scienter under either of the two prongs of the scienter test required. . . . After considering plaintiffs' complaint and all of the arguments on appeal, we dismiss plaintiffs' claims substantially for the reasons stated by the District Court's careful order and opinion of March 4, 2009." See In re PXRE Group, Ltd., Sec. Litig., 600 F. Supp. 2d 510 (S.D.N.Y. 2009). SEARS ROEBUCK: Wachtell Wins Dismissal of Kmart Merger Litigation ----------------------------------------------------------------- Andrew Longstreth at The Am Law Litigation Daily reports that the plaintiffs in a long-running class action against Sears, Roebuck & Co. over its merger with Kmart Corp. had reason to be optimistic. Their case survived a motion to dismiss, and they managed to win class certification. But they suffered a potentially fatal setback last week when Chicago federal district court judge Robert Gettleman granted Sears's motion for summary judgment. The plaintiffs alleged that Sears and its CEO, Alan Lacy, had made misleading statements by failing to disclose merger discussions with Kmart before and through the class period leading up to the deal's consummation in November 2004. Sears and Lacy, represented by Wachtell, Lipton, Rosen & Katz, had argued that they had no duty to disclose the negotiations. Judge Gettleman found that the case had to be decided on the facts, so he let it proceed through discovery. But when the record became complete, he found that the defendants had not made any material omissions or misleading statements. Judge Gettleman also granted summary judgment to Sears Holdings chairman Edward Lampert and investment fund ESL Partners, which became a controlling shareholder of Sears. The plaintiffs had alleged that ESL had a duty to make a securities filing regarding its intent to effect change in the ownership of Sears prior to the class period. Judge Gettleman disagreed. Lee Squitieri & Fearon, an attorney for the plaintiffs, said he would likely file a motion for reconsideration. Representing Sears and Lacy were Paul Vizcarrondo, Jr. of Wachtell and Christopher King of Sonnenschein Nath & Rosenthal. ESL and Lampert had Craig Pimis and Tom Yannucci of Kirkland & Ellis. SKYLINE HOMES: Hagens Berman Amends Waterproofing Lawsuit --------------------------------------------------------- Hagens Berman served a First Amended Complaint in Mitchell v. Skyline Homes, Inc., Case No. 09-cv-02241 (E.D. Calif.), a class action lawsuit on behalf of homeowners for allegedly failing to provide proper water protection for its line of manufactured homes. According to the amended complaint, Skyline Homes designed, built and sold manufactured homes without adequate weather-resistant barriers on exterior walls. A copy of the First Amended Complaint is available at http://is.gd/5yk5L Homeowners of Skyline's manufactured homes claim to have experienced moisture-related problems including bugs, mold, mildew and rot due to the lack of weather-resistant sheets typically placed between the home's exterior walls and siding. This violates state and federal building codes for manufactured homes, which clearly regulates the design, construction and structural durability so that buildings can withstand normal elements and use. Skyline also guarantees manufacturing defects for at least 15 months, stating these defects will be corrected without charge and within a reasonable timeframe. Hagens Berman says that Skyline failed to comply with state and federal building codes as well as neglected to uphold warranties for manufacturing defects, the suit contends. If you have a Skyline manufactured home in California that has been affected by water damage due to the lack of weather-resistant sheets, please visit: http://www.hbsslaw.com/Skyline.htm and join the case. California homeowners can also contact attorney Jeff Friedman at 510-725-3000 or by email at jefff@hbsslaw.com. About Hagens Berman Sobol Shapiro Hagens Berman Sobol Shapiro LLP -- http://www.hbsslaw.com/-- is a shareholder-rights law firm with offices in San Francisco, Seattle, Chicago, Boston, Los Angeles, and Phoenix. Since 1993, HBSS has recovered hundreds of millions of dollars for institutional and individual investors defrauded by unscrupulous management of publicly held corporations through tenacious legal representation. WATTS REGULATOR: Recalls 900 Temperature & Pressure Relief Valves ----------------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Watts Regulator Co., of North Andover, Mass., announced a voluntary recall of about 900 One-inch 140X-9 Temperature and Pressure Relief Valves. Consumers should stop using recalled products immediately unless otherwise instructed. The relief valve can fail to reduce pressure and avert failure or rupture of the water heater tank and associated valves, posing rupture and burn hazard to consumers. No incidents or injuries have been reported. This recall involves the one-inch 140X-9 Temperature and Pressure Relief valves, which are typically used in large water heaters for commercial buildings or possibly for large homes. The valves bear item codes 0259844 (75 psi/210-degree F); 0259924 (100 psi/210-degree F); 0259708 (150 psi/210-degree F); 0259925 (125 psi/210-degree F); and 0259930 (150 psi/210-degree F). The affected date codes are 0641R through 0930R. The date code is printed after the model number "M15" on a green metal tag fastened to the pressure relief valve. Pictures of the recalled product are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml10/10087.html The recalled items were manufactured in the United States and sold by authorized distributors nationwide from October 2006 through July 2009 for between $250 and $280. The valves were typically sold as replacement parts for large water heaters used in commercial locations or possibly large homes. Consumers should immediately contact Watts Regulator to schedule a free repair. For more information, contact Watts Regulator toll-free at (888) 272-4649 between 8:00 a.m. and 4:30 p.m., Eastern time, Monday through Friday or visit the firm's Web site at http://www.watts.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. 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 * * *