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/raid1/www/Hosts/bankrupt/CAR_Public/100127.mbx C L A S S A C T I O N R E P O R T E R Wednesday, January 27, 2010, Vol. 12, No. 18 Headlines ALCON INC: Second Suit Says Novartis and Nestle Deal is Unfair ARKANSAS AUTOMOBILE: Accused of Drivers License Privacy Breach AT&T CORP: Lawsuit Seeks $65 Million Refund of "Special Charges" ATI TECHNOLOGIES: $2 Mil. of Class Settlement Going to Charities BAYER HEALTHCARE: Yaz Litigation Update from Newsome Law Firm BSH HOME: Recalls 37,000 More Thermador(r) Built-In Ovens CEDAR FAIR: Shareholder Sues in Del. to Block Sale to Apollo CONAIR CORP: Recalls 162,000 Lysol Steam Cleaning Mops COUNTRYWIDE HOME: Settlement Hearing in Ill. Adjourned to Feb. CREDIT SOLUTIONS: S.D. Calif. Suit Calls Debt Management a Scam GENERAL MOTORS: Canadian Dealers Seek $750 Mil. in Compensation HERLEY INDUSTRIES: Galleon Out as Lead Plaintiff, But Not Counsel JOHNSON HEALTH: Recalls 18,000 Elliptical Trainers LITTON LOAN: Suit Claims Servicer Has No Foreclosure Authority MICROSOFT CORP: Windows XP Anti-Piracy Software Suit Dismissed NEW YORK CITY: E.D.N.Y. Lawsuit Accuses Police Student Abuse QUADRAMED CORP: Shareholder Sues in Del. to Block Francisco Deal STAR ONE STAFFING: E.D. Ark. Suit Alleges Recruitment Wrongs SYMANTEC SYSTEMS: Suit Complains About Automatic Norton Renewals TEREX CORP: Shareholder Class Action Suit Filed in D. Conn. TEXAS WINDSTORM: 210 Gulf Coast Residents Sue Insurer in Tex. UNITED NATIONAL: Landlord & Lawyers Sued by Tenants in Calif. UNITED STATES: Scallop Fishermen Say Permit Rules are Unfair UNIVERSITY OF CALIFORNIA: Suit Tries Gang Strategy Against Frats VALE INCO: Closing Arguments in $400 Million Class Action Suit ********* ALCON INC: Second Suit Says Novartis and Nestle Deal is Unfair -------------------------------------------------------------- Giovanni Legorano at Global Pensions reports that The City of Westland Police & Fire Retirement System filed a class action lawsuit against Alcon, Novartis and Nestle, alleging that Novartis' recent public offer for Alcon discriminated minority shareholders. Earlier this month, the Massachusetts Bricklayers and Masons pension fund filed a lawsuit against Novartis, Alcon and Nestle over the deal. Novartis announced on January 4 that it had exercised an option to purchase 52% of Alcon's shares from Nestl‚ for approximately US$180 per share in cash. This transaction would give Novartis a 77% stake in Alcon. According to law firm Grant & Eisenhofer, co-interim class counsel in the case, Novartis said it would make a public non- cash offer for the remaining 23% held by minority shareholders, but only for $148.70 per share. Grant & Eisenhofer added Novartis had not obtained the approval of Alcon's independent directors, but "is poised to push through the transaction regardless. This would violate Alcon's organisational regulations, which require such a transaction to be approved by the independent directors on Alcon's board." In a statement circulated after the lawsuit was announced, the Alcon Independent Director Committee said the price and other terms proposed by Novartis were "grossly inadequate" and the financial analysis upon which Novartis' unilateral proposal was based was "fundamentally flawed". The Committee's chairman Thomas Plaskett said: "The Committee strongly believes that the underlying historical record and management's expected future financial performance of Alcon justify a significantly higher price than that reflected in the current proposal by Novartis. Moreover, minority shareholders have rights accorded to them that must be respected." A spokesperson for Grant & Eisenhofer said the legal action was proceeding as Alcon had not formally refused the offer. The complaint against the three Swiss-based companies and several Alcon directors was filed before the U.S. District Court in New York. "This offer seeks to bypass Alcon's contractual protections of its minority shareholders, and force an unfair price on them," says Grant & Eisenhofer managing partner Jay Eisenhofer. "Alcon's public shareholders are unable to protect themselves from this inadequate offer, due to the control Novartis and Nestle exert over the company." ARKANSAS AUTOMOBILE: Accused of Drivers License Privacy Breach -------------------------------------------------------------- Lynn LaRowe at the Texarkana Gazette reports that Haney, et al v. Arkansas Automobile Dealers' Association and TRW Target Marketing and Recall Center, Case No. 10-cv-04003 (W.D. Ark.) (Barnes, J.), could affect anyone who has had an Arkansas driver's license since 2000. "Plaintiffs and the members of the class have suffered harm as their private information has been obtained unlawfully," the Jan. 14 complaint states. "In addition to violation of this legally protected right, plaintiffs and members of the class have suffered harm by virtue of increased risks to them associated with having their protected data in the possession of numerous individuals." The Plaintiffs are represented by: Bruce A. Flint, Esq. FLINT & SOYARS, L.L.P. 5520 Plaza Drive Texarkana, TX 75503 Telephone: 903-334-8928 AT&T CORP: Lawsuit Seeks $65 Million Refund of "Special Charges" ---------------------------------------------------------------- Joe Harris at Courthouse News Service reports that AT&T is billing its customers for a $65 million tax judgment -- which is illegal -- and is covering its tracks by calling it "special municipal charges," a class action claims in Jackson County Court. The class claims that AT&T and Southwestern Bell were ordered to pay $65 million to settle complaints from Missouri municipalities that claimed the companies failed to pay business license taxes for landline phone services. The class claims the "defendants have boldly passed their liability on to their customers in the form of monthly charges," disguised as "special municipal charges." "This practice is wrongful, deceptive, and extremely lucrative for Defendants, who proceed as though they are immune from the consequences of their wrongdoing," the complaint states. "Indeed, they need not worry about the costs of their illicit practices settled in other matters; their customers will simply pay the bill. * * * The liabilities stemming from the settlement are defendants' liabilities, not the plaintiffs." The class consists of all people or businesses that were billed for the special municipal charge or any other charges related to the $65 million settlement. It seeks disgorgement, actual and punitive damages and an injunction. A copy of the Complaint in Barry Road Associates, Inc., dba Minsky's Pizza, et al. v. Southwestern Bell Telephone Company dba AT&T Missouri, et al., Case No. _________ (Mo. Cit. Ct., Jackson Cty.), is available at: http://www.courthousenews.com/2010/01/21/AT&T.pdf The Plaintiffs are represented by: John F. Edgar, Esq. Anthony E. LaCroix, Esq. EDGAR LAW FIRM LLC 1032 Pennsylvania Ave. Kansas City, MO 64105 Telephone: 816-531-0033 ATI TECHNOLOGIES: $2 Mil. of Class Settlement Going to Charities ---------------------------------------------------------------- In an $11.5 million settlement resolving a federal class action, In re ATI Tech. HDCP Litigation, distribution of almost $2 million in funding to various public interest and privacy groups will commence immediately. In addition, class members who submitted claims will each receive a new $135 ATI graphics card during the month of March. The settlement, which received final approval by the United States District Court in the Northern District of California on September 11, 2009, entitled consumers who purchased various "HDCP Ready" ATI graphics cards to submit claims for new graphics cards. The settlement also provided for one of the largest "cy pres" funds in a consumer class action during 2009. The defendant, ATI Technologies, Inc., purchased by Advanced Micro Devices, Inc. during the litigation, has denied any wrongful conduct. The substantial cy pres award will be distributed among the following 15 organizations, which were selected by counsel and designated by court order: Electronic Privacy Information Center (EPIC); Computers for Youth; Consumer Action; School on Wheels, Inc.; SeniorNet; Bet Tzedek Legal Services (Los Angeles, California); East Bay Community Law Center; Legal Aid Society of San Diego, Inc.; National Consumer Law Center; One Laptop per Child; Public Counsel (Los Angeles, California); Public Justice Foundation; Katharine and George Alexander Community Law Center; Stanford Public Interest Law Foundation; and Public Law Center (Orange County, California). U.S. District Judge James Ware found each of these groups advanced the public interest and the interests of the class. See http://aticlassaction.com/for complete details. New York attorney Scott A. Kamber, Esq., of KamberLaw, LLC (formerly of KamberEdelson, LLC) and Los Angeles-based David Parisi, Esq., of Parisi & Havens LLP, were appointed by the Court to serve as lead counsel for the class. "This settlement shows the good things that can be accomplished by a class action-a tangible benefit available to every member of the class coupled with a substantial public benefit in the form of a cy pres." explained Kamber. "While it took years of hard-fought litigation and negotiation to get to this point, the result certainly demonstrates that it was worth the effort," said Parisi. About KamberLaw: Scott A. Kamber, Esq., one of the most recognized names in consumer class actions, founded KamberLaw to advance consumer rights in the area of digital privacy and security. Kamber is best known for serving as lead counsel in class actions that have strengthened consumer protections and brought meaningful relief in the first year of litigation. In recent years, Kamber served as lead counsel in nationwide class actions that resolved the contaminated pet food recall ($24 million), lead paint contamination with Thomas the Tank Engine & Friends ($30 million), numerous cases of defective digital rights management software on music and computer game CDs and DVDs and, most recently, the Facebook Beacon privacy matter (approval pending). With offices in New York and California, KamberLaw is committed to advancing the cause of consumer rights from coast to coast. About Parisi & Havens LLP: Parisi & Havens LLP is a boutique law firm that specializes in complex consumer class actions with an emphasis in technology and insurance cases. In addition to the firm's consumer class actions, Parisi & Havens LLP counts as its clients Fortune 500 Companies and several banks. In each area in which they practice, the firm and its partners have built a reputation in the community for representing clients in cutting- edge litigation with skill, tenacity, and integrity. The principals of the firm, David C. Parisi, Esq., and Suzanne Havens Beckman, Esq., have recovered in excess of $200 million for their clients in the past ten years alone. BAYER HEALTHCARE: Yaz Litigation Update from Newsome Law Firm ------------------------------------------------------------- With an increasing number of lawsuits being filed against Bayer Pharmaceuticals over usage of Yasmin and Yaz, the U.S. Judicial Panel on Multidistrict Litigation (MDL) ordered, in mid 2009, that all Yasmin and Yaz litigation that are pending federal courts be consolidated in the U.S. District Court for the Southern District of Illinois as a part of an MDL. A posting at http://www.newsomelaw.com/node/231relates that Chief Judge David R. Herndon, in a status conference on the MDL, has talked about establishing "bellwether" trials in which juries will be gauged on how they respond to evidence presented by the litigation. Judge Herndon also mentioned that he would like to see the case move through the court "efficiently and effectively" and noted that both sides are working diligently "to move this litigation at a fast pace." Bayer Healthcare Pharmaceuticals has recently and rapidly come into legal trouble over its oral contraceptive Yaz and its alleged dangerous and even fatal side effects. Yaz, its predecessor Yasmin, and the generic version Ocella have all come under fire in recent years for their overstated benefits and minimized risks. Experts predict that more than 25,000 cases could eventually be filed by women alleging dangerous to fatal side effects from using the prescription contraceptive. Berlex Laboratories, which originally began manufacturing Yasmin in 2001, was acquired by Bayer Healthcare in 2006. Before being bought by Bayer, the FDA issued a warning to Berlex to discontinue a misleading television advertisement for Yasmin. The new company, Bayer Healthcare Pharmaceuticals, then released a newer version of the pill under the name of Yaz in 2006. The FDA then issued yet another warning in 2008 over misleading commercials aired on television by Bayer. The warning included an overstatement of efficacy on the part of Yaz's ability to fight premenstrual syndrome and acne as well as understating the risks involved with usage of the pill. Despite the warnings and several cases of injury and death reported after using the hormonal birth control, Yaz had become a very popular and bestselling oral contraceptive. The controversy surrounding Yaz stems from the use of a hormone by the name of progestin drospirenone. Both Yasmin and Yaz use the female hormones estrogen and progestin to block pregnancy by preventing ovulation, making it harder for sperm to reach and fertilize the egg, and reducing the chance that the egg will implant on the uterine wall. Yaz uses a unique form of progestin known as drosperinone which has been alleged to increase the risk of the following symptoms: heart attack, stroke, cardiac arrhythmia, gallbladder disease, deep vein thrombosis, pulmonary embolism, and sudden death. The 2008 FDA warnings were issued in response to two Bayer television commercials that have been accused of being misleading. One of the commercials' implied claims was that Yaz was approved to treat premenstrual syndrome (PMS) when in fact it was only approved to treat premenstrual dysphoric disorder (PMDD), a more severe form of PMS. Another misleading claim made in the commercials was that Yaz treated mild acne. In addition to the claims, the commercials have been accused of downplaying the associated risks of using the contraceptive. In early 2009, prompted by the FDA, Bayer ran a multimillion television advertising campaign in which it attempted to correct the misleading claims of its previous commercials. BSH HOME: Recalls 37,000 More Thermador(r) Built-In Ovens --------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with BSH Home Appliances Corp., of Huntington Beach, Calif., announced a voluntary recall of about 37,000 Thermador(r) Built-In Ovens. 42,000 built-in ovens were previously recalled in June 2007. Consumers should stop using recalled products immediately unless otherwise instructed. The ovens can have gaps in the insulation where overheating can occur and when used in the self-cleaning mode it can cause nearby cabinets to catch fire. This poses a fire hazard to consumers. BSH Home Appliances has received three additional reports of incidents, including two that resulted in fires that damaged surrounding cabinets. No injuries have been reported. The recall involves Thermador Brand built-in double ovens with model numbers C272B, C302B, SEC272, SEC302, SECD272 and SECD302 and serial numbers between FD8403 through FD8701. Model and serial numbers are located on the underside of the control panel. Pictures of the recalled ovens are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml10/10118.html The recalled appliances were manufactured in the United States and sold at appliance and specialty stores nationwide from June 2004 through July 2007 for between $3,000 and $4,400. Consumers should immediately stop using the oven's self-cleaning mode and contact the firm to schedule an inspection and free repair, if necessary. For additional information, contact Thermador at (800) 701-5230 24 hours/day, 7 days/week, or visit the firm's Web site at http://www.thermador.com/ CEDAR FAIR: Shareholder Sues in Del. to Block Sale to Apollo ------------------------------------------------------------ Courthouse News Service reports that Cedar Fair, an amusement park company, is selling itself too cheaply to Apollo Global Management, for $650 million, shareholders say in Delaware Chancery Court. CONAIR CORP: Recalls 162,000 Lysol Steam Cleaning Mops ------------------------------------------------------ The U.S. Consumer Product Safety Commission, in cooperation with Conair Corp., of Stamford, Conn., announced a voluntary recall of about 162,000 Lysol Steam Cleaning Mops. Consumers should stop using recalled products immediately unless otherwise instructed. Hot water mixed with Lysol can forcefully spurt out and rupture the housing unit, posing a burn hazard and a laceration hazard to consumers from the broken housing unit. Conair has received 14 reports of hot water forcefully spilling out of the water reservoir compartment including two minor burn injuries to consumers who sought medical attention. This recall involves the Lysol Steam Cleaning Mop by Conair with model numbers SM10L or SM10LR. The model number is printed on the bottom of the mop under the microfiber cloth. Pictures of the recalled product are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml10/10117.html The recalled cleaning supplies were manufactured in China and sold at department, drug, hardware and home improvement stores and mass merchandisers nationwide and on the Internet from September 2006 through September 2009 for about $40. Consumers should immediately stop using the recalled mop and contact Conair to receive a free replacement steam cleaning mop. For additional information, contact Conair at toll-free at (800) 687-6916 between 8:30 a.m. and 4:30 p.m., Eastern Time, Monday through Friday, or visit the firm's Web site at http://www.conair.com/recallmop COUNTRYWIDE HOME: Settlement Hearing in Ill. Adjourned to Feb. -------------------------------------------------------------- Amelia Flood at The Madison County Record reports that the first hearing on the settlement approval in a seven year-old class action suit over improper mortgage fees has been moved to February. A hearing before Madison County Circuit Judge David Hylla was slated to take place Jan. 20. According to the case's docket sheet, attorney Doug Schulz asked last Friday that the hearing be moved. It has been reset to Feb. 22 at 10:30 a.m. Plaintiff Todd Morgan leads a class against Countrywide Home Loans Inc. on allegations the company overcharges customers. It was one of a spate of similar suits filed between 2003 and 2005. No details of the proposed settlement are available as yet. The class is represented by Paul Marks. The defendant is represented by Beth Bauer. The case is Madison case number 03-L-980. CREDIT SOLUTIONS: S.D. Calif. Suit Calls Debt Management a Scam --------------------------------------------------------------- Elizabeth Banicki at Courthouse News Service reports that a federal class action claims Credit Solutions of America is "at the center" of the "emerging billion dollar industry" of "debt settlement," which is putting the already strained finances of thousands of Americans into a meat grinder. The class claims attorneys general in six states have sued the company, which takes money up front and does nothing while debtors' credit plunges and their debts climb. Credit Solutions of America, formed by Douglas Van Arsdale in Richardson, Texas, in 2005, claims it can negotiate debt reductions for an upfront fee of 15 to 20 percent of the total debt, according to the complaint. Its customers must pay into a "settlement account" until the company decides the debt is "ripe" for negotiation. As is often the case with such scams, the customers are told to stop paying creditors and pay only Debt Solutions; then their debt accumulates late fees and interest and is sent to collections, the complaint states. The class claims Credit Solution "collects its up-front fees and then, by virtue of either circumstance or design, shuts its doors to consumers." Credit Solutions promises a refund only if the debt is not settled, but does not inform customers that the company "can settle the account for 99 percent of the outstanding balance," according to the complaint. Credit Solutions claims to be the "industry leader, managing more than $2.25 billion of debt," the complaint states. The class seeks restitution, an injunction and damages for violations of the California business code, the Consumers Legal Remedies Act, the Credit Repair Organizations Act, tort in essence and negligence. A copy of the Complaint in Billing v. Credit Solutions of America, Inc., Case No. 10-cv-00108 (S.D. Calif.), is available at: http://www.courthousenews.com/2010/01/21/CreditSolutions.pdf The Plaintiff is represented by: Robert L. Hyde, Esq. Joshua B. Wigart, Esq. David C. Leimback, Esq. HYDE & SWIGART 411 Camino Del Rio South, Suite 301 San Diego, CA 92108-3551 Telephone: 619-233-7770 GENERAL MOTORS: Canadian Dealers Seek $750 Mil. in Compensation --------------------------------------------------------------- Greg Keenan at the Globe and Mail reports that a Toronto car dealership has launched a $750-million class-action suit on behalf of more than 200 General Motors of Canada Ltd. dealers that seeks compensation for how GM handled the termination of their outlets last year. The suit names the auto maker, law firm Cassels Brock & Blackwell LLP and two of the firm's lawyers. Trillium Motor World Ltd., filed the suit in the Ontario Superior Court of Justice Thursday seeking redress for GM dealers who signed a wind-down agreement last May after the company informed about 240 dealers that it was terminating their dealer agreements and they would no longer be permitted to sell new GM vehicles. GM had no right to unilaterally terminate dealer agreements, and Cassels Brock had a conflict of interest when it was hired by the Canadian Automobile Dealers Association because, while it was advising dealers, it was also acting for the federal government in Ottawa's bailout talks, Trillium's statement of claim says. The accusations in the statement of claim have not been heard by the court and a class-action suit needs to be certified before it can go ahead. Officials from GM Canada and Cassels Brock were not immediately available for comment. About 215 of the approximately 240 dealers who received termination letters from GM in May signed the wind-down agreements (WDA) after being given a maximum of six days. Another 12 who did not sign the agreements have launched a separate lawsuit against the auto maker. Trillium was a Pontiac Buick GMC outlet from 1989 until it was terminated last year. While acting for GM dealers through the CADA, a lobby group for new-car dealers, Cassels Brock was also representing the federal government in the negotiations with GM on a bailout, the suit filed Thursday says. "Canada was the very party which had insisted on the dealership reduction and which was advancing the majority of the bailout funds," it says. "The governments of Canada and Ontario had imposed upon GM a term that in order to be eligible to receive extraordinarily large government financial assistance packages (the GM auto bailout) which they were prepared to make available to GM, GM would be required to reduce the number of dealers in the franchise system." The CADA set up a special legal fund to pay Cassels Brock and asked dealers to participate. "In doing so, they retained a blue chip, Bay Street law firm which held itself out as having the depth, experience and resources to represent them in any complex and fast-paced restructuring or insolvency which may be coming," the suit says. The federal and Ontario governments contributed $10.6-billion to a bailout of General Motors Corp. and its Canadian unit that was led by the U.S. government, which provided about $50-billion (U.S.). The suit centres on the events of late May, just a few weeks before GM went into Chapter 11 bankruptcy protection in the U.S. and it appeared possible that GM Canada would go into protection under the Companies' Creditors Arrangement Act. GM Canada sent e-mail notices to the dealers on May 20 and gave them until May 26 to respond to a compensation offer. The suit says GM warned dealers that "there was a 'strong possibility' that GM would file for reorganization under the Companies' Creditors Arrangement Act." GM Canada did not file for protection under the CCAA, but the suit says the company did not offer any dealers who signed the wind-down agreement the option of changing their minds. The suit accuses the auto maker of adopting "a 'shock and awe' strategy giving the affected dealers no more than a few days to come to grips with what they were facing, organize themselves and obtain effective legal representation on the WDA." HERLEY INDUSTRIES: Galleon Out as Lead Plaintiff, But Not Counsel ----------------------------------------------------------------- Alison Frankel at The Am Law Litigation Daily reports that there's an intriguing consequence of the criminal case against Galleon Group founder Raj Rajaratnam and his alleged insider- trading cronies: Galleon has gotten the boot as lead plaintiff in In re Herley Industries Inc. Securities Litigation, Case No. 06- cv-02596 (E.D. Pa.) (Sanchez, J.). But in a stroke of good fortune for Galleon's securities lawyers at Kirby McInerny, Philadelphia federal district court judge Juan Sanchez granted a joint request by: Ira M. Press, Esq. KIRBY MCINERNEY LLP 825 Third Avenue New York, NY 10022 Telephone: 212-371-6600 - and - Jonathan Gardner, Esq. LABATON SUCHAROW LLP 140 Broadway New York, NY 10005 Telephone: 212-907-0700 -- counsel to the new lead plaintiff, Norfolk County Retirement System -- to continue as co-lead counsel. Judge Sanchez appointed Galleon lead plaintiff in 2006, noting that it reported losses of about $2.7 million after Herley was charged with fraud, compared to the $104,000 that Norfolk reported losing. But only two weeks after the judge certified a class of shareholders, Mr. Rajaratnam was indicted, and, soon thereafter, Galleon collapsed. Norfolk's Labaton lawyers then requested the lead plaintiff swap and co-lead counsel arrangement. The judge agreed. "The solution proposed by Norfolk is the optimal method for protecting the plaintiff class," he wrote. "Both firms have vast experience litigating securities class actions. Kirby has the greatest knowledge of the facts and procedural history of this case, and Labaton has a longstanding relationship with new lead plaintiff Norfolk. Therefore, cooperation between Galleon's former counsel and Norfolk's counsel will best serve the needs of the class." JOHNSON HEALTH: Recalls 18,000 Elliptical Trainers -------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Johnson Health Tech North America Inc., of Cottage Grove, Wis., announced a voluntary recall of about 18,000 Horizon Fitness and LIVESTRONG(tm) Fitness Elliptical Trainers. Consumers should stop using recalled products immediately unless otherwise instructed. The foot pedal can become disengaged, posing a fall hazard. The firm is aware of 58 reports of foot pedal disengagements. No injuries have been reported. The recalled products are elliptical trainers branded under the Horizon Fitness and LIVESTRONG Fitness names. The brand name is located at the top of the console display with the model numbers just below and the serial numbers are located on the front support tube of the trainer. The recalled models and serial numbers are: Horizon Model: Serial Number Range EX-58: EP5130909CX00001 - EP5130909CX00645; EP5130909CY00646 - EP5130909CY00903; EP5130909CX00904 - EP5130910CX01893 EX-68: EP5140909CX00259 - EP5140910CX00387 EX-78: EP5160909CX00121 - EP5160910CX00142 GS1050E: EP5180909CX02194 - EP5180910CX01290 CE5.1: EP515N232090001 - EP515N332090519; EP515X639090001 - EP515X245090129 LIVESTRONG Model: Serial Number Range LS7.9E: EP5250908CN00001 - EP5250908CN01679; EP5250909CX00001 - EP5250911CX00296 LS9.9E: EP5270907CN00016; EP5270908CN00001 - EP5270908CN01682; EP5270909CX00001 - EP5270911CX00120 LS12.9E: EP5280908CN00003 - EP5280908CN01534; EP5280909CX00001 - EP5280911CX00550 Pictures of the recalled products are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml10/10116.html The recalled exercise equipment was manufactured in China and sold at sporting goods stores nationwide and online at http://www.livestrongfitness.com/and http://www.dickssportinggoods.com/between October 2009 and November 2009. Consumers should stop using the elliptical machines immediately and contact Johnson Health Tech NA to schedule a free in-home replacement of the defective pedals. For additional information, contact Johnson Health Tech NA at (800) 962-3596 from 8:00 a.m. to 5:00 p.m., Central Time, Monday through Friday, or visit the firm's Web sites at http://www.horizonfitness.com/and http://www.livestrongfitness.com/ Consumers can contact the firm also via e-mail at ellipticalsupport@horizonfitness.com LITTON LOAN: Suit Claims Servicer Has No Foreclosure Authority -------------------------------------------------------------- Courthouse News Service reports that Litton Loan Servicing and Central Mortgage Co. foreclosed on homes and sold them "without the requisite legal authority," a class action claims in San Diego Federal Court. A copy of the Complaint in HPC Corporation, et al. v. Litton Loan Servicing LP, et al., Case No. 10-cv-00137 (S.D. Calif.), is available at: http://www.courthousenews.com/2010/01/20/Foreclose.pdf The Plaintiffs are represented by: Jennifer B. Siverts-McGrady, Esq. LAW OFFICES OF JENNIFER B. SIVERTS-MCGRADY 4455 Morena Blvd., Suite 213 San Diego, CA 92117 Telephone: 858-272-5800 - and - Nicole R. Gallagher, Esq. LAW OFFICES OF NICOLE R. GALLAGHER 3175 Cauby St., #311 San Diego, CA 92110 Telephone: 619-519-3667 MICROSOFT CORP: Windows XP Anti-Piracy Software Suit Dismissed -------------------------------------------------------------- Gregg Keizer at Computerworld reports that a federal judge has killed class-action allegations in a lawsuit that accused Microsoft of misleading consumers when it fed them anti-piracy software under the auspices of a critical security update, according to court documents. The move means that Microsoft will not be faced with millions in potential damages. Last fall, Microsoft's lawyers argued that a class-action lawsuit could involve "tens of millions" of customers who might be owed "hundreds of millions of dollars" if the company lost the case. A class-action would have let virtually anyone who owned a Windows XP PC in mid-2006 to join the case without having to hire an attorney. In an order filed on Jan. 15 in Engineered Process Controls, LLC, et al. v. Microsoft Corporation, Case No. 06-cv-00927 (W.D. Wash.), U.S. District Court Judge Richard Jones denied several motions by the plaintiffs, including one that would have let them modify their complaint a third time, which in turn put an official end to their attempts to turn the case into a class- action lawsuit. The three-and-a-half-year-old lawsuit claims Microsoft duped customers by labeling its Windows Genuine Advantage (WGA) software a critical security update, failed to tell them that WGA collected information from their PCs, then frequently "phoned home" that data to Microsoft's servers. In June 2006, Microsoft began pushing WGA to Windows XP users via Windows Update, the company's default update service, as a "high priority" update that was automatically downloaded and installed to most machines. Shortly after that, Microsoft acknowledged that WGA transmitted information whenever a user logged on to Windows XP. Under pressure from critics, it later reduced the frequency of the anti-piracy checks. Microsoft relies on WGA, and its successor, Windows Activation Technologies (WAT), to detect bootlegged copies of Windows. If the software sniffs out a counterfeit, it posts nagging messages on the screen. Microsoft had opposed the class-action certification last September, at the time calling the lawsuit "fictional," "demonstrably false" and from an "alternate universe." Last month, the plaintiffs withdrew most, but not all, of their class action allegations, but said they were reserving the right to revisit one of those claims, breach of contract, because an earlier court decision related to that charge is currently on appeal. In his order of last week, Jones said that all class allegations had to be withdrawn because they "need not be included for appellate purposes and would create unnecessary confusion if they were included." Judge Jones also said that Microsoft could demand compensation for the money it spent contesting the class-action charges, even though the plaintiffs withdrew most of those allegations prior to trial. "While Plaintiffs maintain a 'no harm, no foul' perspective, it is too late for that argument," Jones said. "If Plaintiffs had withdrawn their class-certification motion before Microsoft had prepared its Opposition, that would be a 'no harm, no foul' situation. But here, the 'harm' was irreversibly inflicted when Plaintiffs' motion required Microsoft to prepare a defense." Microsoft has until Feb. 12 to submit its expense list to the court. Judge Jones also rejected the plaintiffs' motion to add a misrepresentation charge to the lawsuit, and said that they could not change the complaint to seek additional forms of relief from injunction. Earlier this month, Microsoft had called those moves "a cynical attempt to game the system." The case was once scheduled to go to trial on Jan. 25, but Judge Jones asked counsel for both parties to suggest a new calendar. Microsoft's anti-piracy software has often made news. In August 2007, a day-long server outage riled thousands of users who were mistakenly fingered for running counterfeit copies of Windows. More recently, hackers revealed ways to bypass Windows 7's activation process. NEW YORK CITY: E.D.N.Y. Lawsuit Accuses Police Student Abuse ------------------------------------------------------------ Nick Divito at Courthouse News Service reports that New York Police Department personnel assigned to the city's public middle schools and high schools have a long-standing pattern of abuse, unlawful arrests and excessive force against minority students who commit even minor infractions like talking back, being late for class or having a cell phone in school, a federal class action claims. The New York Civil Liberties Union and the American Civil Liberties Union filed the lawsuit on behalf of five middle school and high school students who say they were physically abused and wrongfully handcuffed and arrested at school by the NYPD's School Safety Division. "Aggressive policing is stripping thousands of New York City students of their dignity and disrupting their ability to learn," NYCLU Executive Director Donna Lieberman said. "We all want safe schools for our children, but the current misguided system promotes neither safety nor learning. The lawsuit says school safety officers "push, shove, grab, punch and strike students," and then handcuff them and either place them in seclusion rooms on school grounds or transport them to a local precinct for booking. "These policies and practices generate fear, distrust and even violence within the schools," the lawsuit states. One student said she was handcuffed for drawing on a classmate's desk with erasable markers. She says she was told she could not call her mother during a pat-down search that included a search through her book bag. The girl says she was taken to a local police precinct, still in handcuffs. Another student claimed her arm was twisted and she was handcuffed for refusing to enter a school as ordered after being threatened by classmates. She says she was handcuffed, and that a school safety officer than tripped her, causing her to fall stomach-first onto the floor. Another student says she was involved in a fight with a school safety officer after officials insisted going through her bag after she sounded the metal detector while entering the school. She says she was put in a head-lock, arrested and taken to the local precinct. Yet another student says he was punched more than five times by school officers after he was wrongly accused of bringing a cell phone to school. The lawsuit says school officers are inadequately trained and poorly supervised in their efforts to ensure the safety of the approximately 450,000 students in New York City's public middle schools and high schools. Since the NYPD took control of public school safety in New York City in 1998, the number of police personnel assigned to patrol public schools has grown by 73 percent, with more than 5,000 school safety officers and nearly 200 armed officers currently assigned to city's public schools, the NYCLU says. That makes it the nation's fifth-largest police force, according to the lawsuit. The NYCLU says it has received nearly 2,700 complaints against school safety officers from 2002 to June 2007, at a rate of about 500 complaints each year. The lawsuit seeks sweeping reforms in the New York City public school system, including mandatory training of school safety officers. It also seeks a revision of the policies regarding how officers who commit abuses are disciplined, including having them removed from future contact with children when necessary. Along with the City of New York, Mayor Michael Bloomberg, Police Commissioner Raymond Kelly, Asst. Chief James Secreto and Sgt. Roslyn Downing-Lee were named as defendants. A copy of the Complaint in B.H., et al. v. City of New YOrk, et al., Case No. 10-cv-00210 (E.D.N.Y.) (Mauskopf, J.), is available at: http://www.courthousenews.com/2010/01/20/Brooklyn.pdf The Plaintiffs are represented by: Arthur N. Eisenberg, Esq. Donna Lieberman, Esq. Adriana C. Pinon, Esq. Udi Ofer, Esq. Johanna E. Miller, Esq. Kathryn Hunt Muse, Esq. Naomi R. Shazt, Esq. NEW YORK CIVIL LIBERTIES UNION FOUNDATION 125 Broad St., 19th Floor New York, NY 10004 Telephone: 212-607-3324 - and - Catherine Y. Kim, Esq. AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad St., 18th Floor New York, NY 10004 Telephone: 212-549-2682 - and - Joshua Colangelo-Bryan, Esq. DORSEY & WHITNEY, LLP 250 Park Avenue New York, NY 10177 Telephone: 212-415-9234 QUADRAMED CORP: Shareholder Sues in Del. to Block Francisco Deal ---------------------------------------------------------------- Courthouse News Service reports that QuadraMed shareholders claim they are getting shortchanged in the company's sale to Francisco Partners, in Delaware Chancery Court. A copy of the Complaint in LC Capital Master Fund, Ltd. v. James, et al., Case No. 5214 (Del. Ch. Ct.), is available at: http://www.courthousenews.com/2010/01/20/SCAQuadraMed.pdf The Plaintiff is represented by: Bruce L. Silverstein, Esq. Christian Douglas Wright, Esq. Richard J. Thomas, Esq. YOUNG CONAWAY STARGETT & TAYLOR, LLP The Brandywine Building 1000 West Street, 17th Floor P.O. Box 391 Wilmington, DE 19899-0391 Telephone: 302-571-6600 STAR ONE STAFFING: E.D. Ark. Suit Alleges Recruitment Wrongs ------------------------------------------------------------ Angelic Saulsberry at Courthouse News Service reports that a federal class action claims Miami-based Star One Staffing cheated more than 100 Filipino workers in a bait-and-switch recruitment scam, charging as much as $9,000 up front for visas and other "fees," then sending them to jobs at far different circumstances, and pay, than promised. The class claims Star One did this in defiance of a 2008 agreement with New York State that cost the recruiter $113,000. Star One recruits workers for country clubs in Arkansas, according to the complaint. The workers say they were promised "at least 40 hours of work each week at specific job sites with a specific pay rate." But when they arrived as guest workers, on H- 2B visas, they were told "the specific jobs they were supposed to work were no longer available." They say they were offered different jobs at different pay which they were forced to accept because Star One did not provide money for a return trip home. "Plaintiff Morena Roco paid Star One over $9,000 in placement and legal fees in order for her to work in the United States," according to the complaint. Workers say they were forced to work illegally because Star One failed to file paperwork for the job switch. They Star One paid them late and deducted so much money from their paychecks for "expenses" that they went into debt. The illegal deductions included $100 a week for housing, $60 a week for transportation, $40 a week for food, and more money for uniforms and telephones, the class claims. The class seeks damages for illegal wage withholdings, breach of contract, fraud, negligent representation, racketeering, and Labor Law violations. A copy of the Complaint in Roco, et al. v. Star One Staffing International, Inc., et al., Case No. 10-cv-00030 (E.D. Ark.) (Young, J.), is available at: http://www.courthousenews.com/2010/01/21/EmployStarOne.pdf A copy of the Complaint filed in People v. Star One Staffing, Inc., et al., Index No. _______ (N.Y. Sup. Ct., N.Y. Cty.), filed in 2008, is attached to the filing. The Plaintiffs are represented by: Josh Sanford, Esq. SANFORD LAW FIRM, PLLC One Financial Center 650 S. Shakleford Road, Suite 400 Little Rock, AR 72211 Telephone: 501-221-0088 - and - John T. Holleman, Esq. HOLLEMAN & ASSOCIATES, P.A. 200 West Capitol Ave., Suite 1620 Little Rock, AR 72201 Telephone: 501-975-5040 SYMANTEC SYSTEMS: Suit Complains About Automatic Norton Renewals ---------------------------------------------------------------- Courthouse News Service reports that Symantec Systems dba Norton automatically renews people's subscription to its anti-virus software without asking if they want it renewed, a class action claims in New York County Court. A copy of the Complaint in Elan v. Symantec Systems, Inc., Index No. 10/100696 (N.Y. Sup. Ct., N.Y. Cty.), is available at: http://www.courthousenews.com/2010/01/21/CCANorton.pdf The Plaintiff is represented by: Jeffrey H. Squire, Esq. Raymond A. Bragar, Esq. BRAGAR WEXLER EAGLE & SQUIRE 885 Third Avenue, Suite 3040 New York, NY 10022 Telephone: 212-308-5858 TEREX CORP: Shareholder Class Action Suit Filed in D. Conn. ----------------------------------------------------------- Courthouse News Service reports that directors of Terex Corp. propped up the stock price with false and misleading statements, until it crashed from $76.25 a share to $9.45, shareholders claim in Hartford Federal Court. A copy of the Complaint in Glassman v. Terex Corporation, et al., Case No. 10-cv-00070 (D. Conn.), is available at: http://www.courthousenews.com/2010/01/19/SCATerex.pdf The Plaintiff is represented by: David R. Scott, Esq. Erin Green Comite, Esq. SCOTT + SCOTT, LLP 108 Norwich Ave. Colchester, CT 06415 Telephone: 860-537-5537 - and - Joseph Guglielmo, Esq. SCOTT + SCOTT, LLP 500 Fifth Ave., 40th Floor New York, NY 10110 Telephone: 212-223-6444 - and - Robert S. Schachter, Esq. Richard A. Speirs, Esq. Shaye J. Fuchs, Esq. ZWERLING, SCHACHTER & ZWERLING, LLP 41 Madison Ave. New York, NY 10010 Telephone: 212-223-3900 TEXAS WINDSTORM: 210 Gulf Coast Residents Sue Insurer in Tex. ------------------------------------------------------------- John Suayan at The Southeast Texas Record reports that two Galveston attorneys have sued the Texas Windstorm Insurance Association on behalf of about 210 Bolivar Peninsula residents who claim the insurer did not pay them adequately for Hurricane Ike damages. The suits, filed by: Tony G. Buzbee, Esq. 2401 W. Parkwood Ave. Friendswood, TX 77546 Telephone: (281) 992-5393 - and - Darrell Apffel, Esq. 6710 Stewart Rd. Galveston, TX 77551 Telephone: (409) 744-9783 on Jan. 15 in Galveston County District Court, allege that TWIA arbitrarily chose to pay a small fraction of the value of the plaintiffs' affected residences. The plaintiffs are seeking class action status for the litigation. According to the homeowners, the defendant's reported decisions have deprived them of any way to start anew. Ike, a Category 2 storm, came ashore on Galveston Island with 110-mph winds and a 15-foot storm surge the morning of Sept. 13, 2008, damaging numerous residences and businesses and rendering thousands of residents homeless. The hurricane left miles of slabs which used to be freestanding houses from Port Bolivar to High Island. Hundreds of coastal residents who sustained damage from Ike have subsequently sued TWIA, claiming the insurer deceived policyholders. About 900 out of 93,000 policyholders who filed claims post-Ike have taken the windstorm association to court. A Jan. 16 Galveston County Daily News article reports that TWIA has started to speed up the pace with which it would settle claims. The windstorm association has settled 300 Ike suit leaving 1,000 remaining on the docket, according to Insurance News Net. UNITED NATIONAL: Landlord & Lawyers Sued by Tenants in Calif. ------------------------------------------------------------- Elizabeth Banicki at Courthouse News Service reports that tenants of a dilapidated downtown building say United National Insurance and its attorneys, Nixon Peabody, owe them $497,500 for dropping two code violation cases against their "criminally convicted slumlord." Tenants in the Superior Court class action claim they had a deal to drop the cases against landlord David Behrend in exchange for $497,000, which the insurance company refuses to pay. Tenants say their building "was in horrendous condition and the subject of multiple code violations." They say the deal was made "in order to stop paying for the defense of Mr. Behrend in the face of two imminently pending trials." The Aragon Action and the Enciso Action, one of which was a certified class action, claimed Mr. Behrend neglected his building and tenants. But the tenants say in the new complaint that the money was never paid and the defendants never intended to pay it. The tenants say they were given a copy of a check, a small fraction of the amount they were promised, and nothing else. They allege breach of contract, promise without intent to perform, fraud and deceit and negligent misrepresentation. The claim the class consists of about 90 people. Guillermo Rodriguez and Benedicta Aragon filed on behalf of the class, which is represented by: Raymond Paul Katrinak, Esq. LAW OFFICES OF R. PAUL KATRINAK 9663 Santa Monica Blvd #450 Beverly Hills, CA, 90210 Telephone: (310) 990-4348 The Plaintiffs also sued the insurer's attorney: Gregory E. Schopf, Esq. NIXON PEABODY LLP One Embarcadero Center, Suite 1800 San Francisco, CA 94111 Telephone: (415) 984-8200 UNITED STATES: Scallop Fishermen Say Permit Rules are Unfair ------------------------------------------------------------ Sonya Angelica Diehn at Courthouse News Service reports that small-scale fishermen filed a class action against the National Marine Fisheries Service, fighting a rule they say will unfairly redistribute permits to larger businesses. A copy of the Complaint in McCullough, et al. v. Locke, Case No. 10-cv-______, docketed as Doc. 67 in Case No. 33-av-00001, (D. N.J.), is available at: http://www.courthousenews.com/2010/01/21/Scallops.pdf The Plaintiffs are represented by: Patrick Flanigan, Esq. P.O. Box 42 Swarthmore, PA 19081-0042 Telephone: (484) 904-7795 UNIVERSITY OF CALIFORNIA: Suit Tries Gang Strategy Against Frats ---------------------------------------------------------------- Kate Moser at The Recorder reports that the main legal theory behind a class action filed last week against University of California-Berkeley fraternities has its roots in cities' injunctions against criminal street gangs. The plaintiffs are attempting to make a case against the fraternities for a host of nuisances they allege the Greeks cause, including public drunkenness, encouragement of underage drinking and harassment of people in the neighborhood. "As we looked at the behaviors of the gangs, it's almost identical," said the plaintiffs' lawyer: Louis Garcia, Esq. LAW OFFICES OF PAUL KRANZ 2560 9th Street Berkeley, CA 94710-2549 Telephone: (510) 549-5900? "Maybe it's not as egregious, but it's just as illegal." Mr. Garcia pointed to People ex rel. Gallo v. Acuna, 14 Cal.4th 1090, in which the California Supreme Court in 1997 allowed the use of civil gang injunctions. So he predicts that, even if his side loses in the short term, it will ultimately be vindicated. "The parallels are so evident to me. . . . I think we'll be successful," Mr. Garcia said. The lawsuit, filed in Alameda County Superior Court by a homeowner and the South of Campus Neighborhood Association, seeks an injunction against alleged unruly and illegal conduct by the fraternities, including frequently disturbing the peace and encouraging underage drinking. The proposed class is made up of current and past residents, renters and property owners of the South of Campus area, in addition to visitors to the neighborhood injured by the alleged nuisances, and even members of the public who have been harmed by alleged pollution of public waterways. In addition to the injunction, the plaintiffs want penalties for alleged violations of state and local laws, plus compensatory and general damages, special damages and punitive damages, as well as attorneys' fees and costs. A Texas lawyer: James B. Ewbank, II, Esq. EWBANK & BYROM 1210 Nueces Austin, TX 78701 Telephone: 512-476-1080 who represents 17 of the 37 fraternity organizations sued, said he's represented fraternities before but has never seen them sued in a class action. "This does seem to be isolated to a few neighbors, but the plaintiffs have turned this into a monster litigation that's going to be endless in terms of fees, when so far I haven't seen any evidence of widespread nuisance by fraternity members," said Mr. Ewbank. "I don't see any need for this broad-brush approach by the plaintiffs." Other defense counsel involved include: Michael C. Osborne, Esq. ARCHER NORRIS PLC 2033 North Main Street, Suite 800 Walnut Creek, CA 94596 Telephone: 925-930-6600 and Berkeley solo Steven Feller. Judge Frank Roesch denied a temporary restraining order last week, Mr. Garcia said, reasoning that there wasn't enough evidence of an imminent harm. Next, Garcia will argue for a preliminary injunction. In publicizing the class action, Garcia's firm drew attention to videos and photos of fraternity behavior, recorded on home security cameras by lead plaintiff Paul Ghysels, whose home is sandwiched by fraternities. Mr. Ghysels, a retired firefighter and paramedic, hasn't slept through the night in his home on a Thursday, Friday or Saturday night in more than a decade, he said in a declaration supporting the temporary restraining order. Mr. Garcia first connected with the plaintiffs when a colleague, criminal defense lawyer Yolanda Huang, put him in touch with them after she began investigating the fraternity culture for a murder case. In a trial set to start later this month, Huang is defending Andrew Hoeft-Edenfield, who is claiming self-defense in the 2008 killing of a Sigma Pi member, Christopher Wootton. VALE INCO: Closing Arguments in $400 Million Class Action Suit -------------------------------------------------------------- Mark Tayti at The Welland Tribune reports that everything changed with respect to property values after media reports of high levels of nickel in Port Colborne, Ontario's soil started to circulate in September 2000. That was the crux of the argument presented by plaintiffs' lawyer: Kirk M. Baert, Esq. 900-20 Queen Street West Toronto, Ontario CANADA in a $400-million class action suit against Vale Inco, filed by Ellen Smith, during final arguments in a Welland courtroom last week. Mr. Baert, who represents the residents, told Justice Joseph Henderson that property values in Port Colborne between 1997 and 1999 had been running ahead of real estate values in Welland. That all changed after information about elevated nickel levels in the Rodney St. neighbourhood began making headlines. "After 2000, the whole environment changed in Port Colborne given the media stories and all the reports," Mr. Baert said. He suggested a community-based risk assessment (CBRA) and the remediation of 24 properties on the city's east side -- done at Vale Inco's expense -- offered no defence. During his closing arguments, Mr. Baert said "internal Inco documents" showed contamination levels were "a real problem" and "the company was concerned." The fact Inco was the source of nickel contamination in Port Colborne was uncontested by the defence, Mr. Baert said. Mr. Baert said expert witnesses called during the trial were "worthy of belief" when citing downward trends in the real estate market after 2000. He said the civil case, the CBRA and a human health risk assessment (HHRA) would not have been necessary except for the Inco emissions. Adhering to bylaws and provincial regulations were also no defence for Inco, Mr. Baert said. He argued subject properties continue to carry a stigma when it comes to the market place because many of the issues regarding remediation and health risk remain unresolved. "Ten years later and it is still not clear what will be done,' Mr. Baert said. "The problem is that there has never been a complete cleanup. It isn't until that happens that the stigma disappears." Mr. Baert said it was wrong to suggest statutory agencies that issued the contamination reports are to blame for falling property values in Port Colborne. "The notices and reports by the statutory authorities were a natural and foreseeable response to public risk brought on by the elevated levels of nickel. (Vale) Inco is responsible for all the damages that flow from the activities of public authorities. At no time was (the defence) able to show the steps taken by the Ministry of Environment were not appropriate, given the facts of the case," Mr. Baert added. He was critical of Inco's decision to cancel a study on property values that Inco had commissioned with Deloitte and Touche. Mr. Baert said the decision to cancel the study was tied to the civil case. "It's very telling that the study by Inco never saw the light of day." Mr. Baert said the amount of soil sampling and testing after 2000, the ministry orders to remediate the properties, open houses, public meetings, news releases and media reports raised the profile of the nickel-elevated properties. Conflicting information as to "safe" or "acceptable" levels of contamination further eroded the local real estate market, Mr. Baert added. "It's clear from the evidence the nature, extent and scope of disclosure changed (after 2000)," he said. "It became a contributing factor for falling property values in the Port Colborne area." Mr. Baert said after September 2000, the MoE began issuing reports to every household in the Rodney St. area -- and "media attention exploded." Baert said after 2000, there were thousands of references in the media regarding nickel contamination in Port Colborne. "The class action was not the source for any property devaluation," Mr. Baert said. "The headlines speak for themselves." Ten years after the fact, Mr. Baert said it is not clear what the final cleanup will entail. He said this "uncertainty" has damaged the reputation of Port Colborne's real estate market. The remediation done to date is not a complete answer to any stigma, Mr. Baert said. "The ministry has not reached any conclusions . the public consultation remain incomplete today." Mr. Baert said "health concerns" with respect to contamination have created anxiety in the market place. "There is still a cloud hanging over properties in Port Colborne. It is still not clear what properties in Port Colborne will be cleaned up and to what level. We're talking about perception and perception, in this case, has a considerable basis in fact." * * * The idea that falling property values in Port Colborne are somehow tied to the historic operation of Vale Inco's nickel refining operation in Port Colborne is flawed. That was the closing argument put forward when Inco defence lawyer: Alan Lenczner, Esq. LENCZNER SLAGHT ROYCE SMITH GRIFFIN LLP BARRISTERS 130 Adelaide Street West, Suite 2600 Toronto, Ontario M5H 3P5 CANADA picked apart statements made the day earlier by the legal team representing the plaintiffs. Relying on MLS real estate data, Mr. Lenczner said houses in Port Colborne continued to sell well after 2000 when news of elevated nickel levels in the Rodney St. area began to make headlines. Property owners also had no problem securing mortgages and financing, despite reports that soil on Port Colborne's east side exceeded Ministry of Environment guidelines with respect to nickel contamination, Mr. Lenczner added. In addressing health risks associated with contamination, Justice Joseph Henderson heard that doctors from across the province had studied health risks and the data had been peer reviewed. "There is every indication that health risks experienced by people in Port Colborne is the same as in any other Ontario community," Mr. Lenczner said. He noted that 23 of 24 properties with nickel levels higher than 8,000 parts per million had undergone remediation. "Below that level of 8,000 ppm, the parties have agreed there cannot be any harm, cannot be any requirement for cleanup and there cannot be any damages." He said the Inco refinery, which ceased its nickel operations in 1984, cannot be held responsible for "unreasonable interference" on property owners. "My respectful submission is that there has been no unreasonable interference with the use and enjoyment of the property," he said. Mr. Lenczner also referred to evidence given by Ellen Smith, who is named in the class action and was the only Rodney St. resident to take the stand in a trial that began last October. He said Smith was aware of the refinery when she and her husband originally purchased their Rodney St. home. Based on her testimony, Mr. Lenczner said none of Ms. Smith's neighbours complained about the Inco plant prior to 2000. He said Ms. Smith described Rodney St. as "an attractive place for a young couple to buy a house." Mr. Lenczner said Ms. Smith's property was the only property of 24 properties on the ministry's remediation list that, to date, has not been cleaned up. "The only property that was not cleaned up was Ellen Smith's, who refused to have the property cleaned up and who has lived there for six years (after the order was issued). If you don't want to clean up your property, how can you have unreasonable interference? That is tantamount." Mr. Lenczner said 200 homes per year have been bought and sold in Port Colborne since 2000 and more than 1,700 homes in total have been bought and sold over the past eight years. "On the face of it, that tells you people are not having any difficulty buying and selling homes." He asked how nickel could be considered a "nuisance" when Inco ceased nickel refining in Port Colborne 25 years ago. "Where is the harm?" Mr. Lenczner said. "There is none in the evidence." Mr. Lenczner said the Inco plant had existed in Port Colborne since 1918 and there were stories circulated in the media well before 2000 that talked about nickel in the soil. He suggested the plaintiff's argument fails to recognize local history. "We're playing a game here trying to pretend that a plant that operated since 1918 went by unnoticed." Mr. Lenczner also clarified why a Deloitte and Touche property value study was cancelled before it was completed. He said the cancellation had nothing to do with the class action. "That was done at the request of the chair of the public liaison committee (PLC) of the community-based risk assessment (CBRA). He said the PLC felt Deloitte and Touche were "too allied" with Inco to gain the public trust. "It was done in the best interest of the CBRA process," Mr. Lenczner added. Mr. Lenczner further argued that much of the plaintiff's case concerning property values was based on "speculation." He spent much of the afternoon picking apart the testimony of expert witness Robert Maughan, program manager of risk management services for financial markets at Teranet, who took the stand in November to provide information about real estate trends in Port Colborne. Mr. Lenczner said Mr. Maughan's testimony should be "rejected" because of "flawed methodology." He said the witness's testimony produced "absurd results." ********* 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 2010. 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. 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