/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/100503.mbx C L A S S A C T I O N R E P O R T E R Monday, May 3, 2010, Vol. 12, No. 85 Headlines 200 WEST 15TH: Accused of Violating Rent Stabilization Law ACTIVISION: Employees Sue Game Publisher for Unpaid Royalties BANK OF AMERICA: Accused in N.Y. Suit of Racial Discrimination BOMBARDIER RECREATIONAL: Recalls 1,500 BRP Ski-Doo Snowmobiles CITY OF ALBUQUERQUE: Accused of Violating N.M. Children's Code CITY OF LOS ANGELES: Accused of Overcharging Victims of Crime CLARK-REED CO: Plaintiff Takes Last Stab at Relacore Class Action COMPREHENSIVE HEALTH: Breach of Employment Contracts Alleged CORNELL COS: Being Sold for Too Little, Texas Suit Claims DISCOUNT SCHOOL: Recalls 3,000 Double Egg Shakers GENE WHEELER: Charged With Labor Code Violations GENERAL MOTORS: Accused of Underpaying Service Contract Refunds GOGO SPORTS: Recalls 2,400 Children's Hooded Sweatshirts HERB THYME: Accused in California Suit of Fraud ICON HEALTH: Recalls 33,000 Inversion Benches Due to Fall Hazard JO-ANN STORES: To Pay $50,000 Penalty for Lead Paint Ban Violation MERRILL LYNCH: Motion to Dismiss 2nd Amended Complaint Pending MERRILL LYNCH: Plaintiffs in Two Suits Appeal Dismissal Ruling MERRILL LYNCH: "DeBlasio" Plaintiffs Withdraw Plan to Appeal MERRILL LYNCH: Motion to Dismiss Securities Suit Remains Pending MERRILL LYNCH: Defends Suit by Iron Workers in New York MERRILL LYNCH: Faces "Dornfest" Lawsuit in New York MERRILL LYNCH: MLPF&S Dismissed as Defendant in "Newby" Suit MERRILL LYNCH: Court Okays Summary Judgment for Plaintiffs MERRILL LYNCH: "Tipsword" Suit Against MLPF&S Remains Stayed MERRILL LYNCH: Wants Clancy-Gernon Consolidated with Tipsword MERRILL LYNCH: BofA's Motion to Dismiss Complaint Still Pending MERRILL LYNCH: Motion to Dismiss "Lehman" Litigation Pending MERRILL LYNCH: Court Okays Settlement in "Louisiana Sheriffs'" MERRILL LYNCH: Motion to Dismiss MBS-Related Suit Still Pending NOVELL INC: Notices of Appeal Filed on Settlement Final Approval OCEAN MANAGEMENT: Recalls 20,000 Buoyancy Compensators OHIO EDUCATION: Settles Retiree Healthcare Lawsuit for $3.75 Mil. ROSETTA STONE: Accused in Calif. Suit of Not Paying Overtime SONY COMPUTER: PlayStation 3 Owner Sues for OS Option Removal TRANSITIONS OPTICAL: Accused in Wash. of Anticompetitive Conduct VIVENDI SA: Paris Appeals Court Won't Block French Participation WALLDESIGN INCORPORATED: Labor Code Violations Alleged ********* 200 WEST 15TH: Accused of Violating Rent Stabilization Law ---------------------------------------------------------- Eric De Hoff, on behalf of himself and others similarly situated v. 200 West 15th L.L.C., Case No. 650333/2010 (N.Y. Sup. Ct., New York Cty. Apr. 26, 2010), accuses the owner of the apartment building located at 215 West 15th Street in New York City of improperly and unlawfully charging its tenants market rate rents for its rental units far in excess of present rent stabilization levels, while at the same time pocketing huge sums in New York City tax benefits that are expressly conditioned on maintaining the apartments as rent stabilized, in violation of the Rent Stabilization Law. Mr. De Hoff says that the landlord has been receiving real estate tax benefits under New York City's J-51 property tax abatement and exemption program (for rehabilitation work to the building) for roughly the past six years. Mr. De Hoff is seeking money damages and attorneys' fees for the rent overcharges. The Plaintiff is represented by: William C. Rand, Esq. LAW OFFICE OF WILLIAM COUDERT RAND 228 East 45th Street, 17th Floor New York, NY 10017 Telephone: (212) 286-1425 E-mail: wcrand@wcrand.com - and - Jeffrey M. Gottlieb, Esq. Dana L. Gottlieb, Esq. GOTTLIEB & ASSOCIATES 150 East 18th Street, Suite PHR New York, NY 10003 Telephone: (212) 228-9795 E-mail: NYJG@aol.com ACTIVISION: Employees Sue Game Publisher for Unpaid Royalties ------------------------------------------------------------- AttackOfTheFanBoy.com reports that publishing giant Activision has been slapped with a class action lawsuit brought forth by Infinity Ward employees and ex-employees, calling for an upwards of $500 million in unpaid royalties and punitive damages. A total of 38 plaintiffs are involved in the suit, collectively referring to themselves as the "Infinity Ward Employee Group." The suit alleges that Activision purposely withheld royalties "in an attempt to force employees of Infinity Ward to continue to work at a job that many of them did not want just so Activision could force them to complete the development, production and delivery of Modern Warfare 3." Specifically, the suit seeks to recover between $75 million and $125 million in compensatory damages. That comes on top of $75 million to $500 million in punitive damages, bringing the grand total of damages and entitled bonuses sought to over half a billion. That figure, of course, represents a best and worst case scenario for the plaintiffs and Activision respectively. BANK OF AMERICA: Accused in N.Y. Suit of Racial Discrimination -------------------------------------------------------------- Courthouse News Service reports that a class action accuses Bank of America of racial discrimination in its Global Commercial Banking Group, in Manhattan Federal Court. The Plaintiffs in Donaldson, et al. v. Bank of America Corp., et al., Case No. 10-cv-03506 (S.D.N.Y.) (Stein, J.), are represented by: Douglas H. Wigdor, Esq. THOMPSON WIGDOR AND GILLY 85 Fifth Avenue, 5th floor New York, NY 10003 Telephone: 212-257-6800 E-mail: dwigdor@twglaw.com BOMBARDIER RECREATIONAL: Recalls 1,500 BRP Ski-Doo Snowmobiles -------------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Bombardier Recreational Products Inc., of Quebec, Canada and BRP Finland Oy, of Finland, announced a voluntary recall of about 1,500 BRP Ski-Doo snowmobiles. Consumers should stop using the product immediately unless otherwise instructed. The drive pulley bolts on the snowmobiles can break due to oil contamination during the assembly process. This can cause debris to come off the vehicle and act as projectiles, posing a laceration hazard to riders or bystanders. BRP has received three reports of projectiles flying off of the snowmobiles, including one report of a minor foot injury. The recall involves Ski-Doo model year 2009-2010 SKANDIC SWT V- 800 and model year 2010 GSX 1200, GTX 1200, MXZ 1200, and Renegade 1200 Snowmobiles. The model name and number are displayed on the engine compartment and the serial number is on the right side of the vehicle below the seat on the frame. Pictures of the recalled products are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml10/10732.html The recalled products were manufactured in Canada and Finland and sold through Ski-Doo dealerships nationwide from July 2008 through February 2010 for between $8,000 and $9,000. Consumers should stop using these snowmobiles immediately and contact their local Ski-Doo snowmobile dealer to schedule a free repair. All known owners of the recalled snowmobiles have been directly notified about this recall by mail. For additional information, call BRP at (800) 366-6992 between 8:00 a.m. and 5:00 p.m., Eastern Time, Monday through Friday or visit the firm's Web site at http://www.brp.com/ CITY OF ALBUQUERQUE: Accused of Violating N.M. Children's Code -------------------------------------------------------------- Courthouse News Service reports that a class action claims Albuquerque Police violate a state law that prohibits placing a child younger than 11 in adult handcuffs. It also accuses Albuquerque of battering a 10-year-old girl, in Bernalillo County Court. A copy of the Complaint in C.G. v. The City of Albuquerque, et al., Case No. 201005252 (N.M. Dist. Ct., Bernalillo Cty.) (Butkus, J.), is available at: http://www.courthousenews.com/2010/04/28/CivRts.pdf The Plaintiff is represented by: Joseph P. Kennedy, Esq. Shannon Kennedy, Esq. THE KENNEDY LAW FIRM 1000 Second St. NW Albuquerque, NM 87102 CITY OF LOS ANGELES: Accused of Overcharging Victims of Crime ------------------------------------------------------------- Mira Spajic, on behalf of herself and others similarly situated v. City of Los Angeles, et al., Case No. BC436233 (Calif. Super. Ct., Los Angeles Cty. Apr. 20, 2010), accuses the City of Los Angeles and its Chief of Police Charles Beck of violating the California Public Records Act Government Code Sec. 6253 by charging crime victims, other than victims of domestic violence, a flat administrative fee of $23.00 for copies of crime reports, even though by statute, as a public agency, the L.A.P.D. can only charge direct costs, and not indirect costs, of document duplication. As evidence of this unlawful practice, Ms. Spajic relates that the City required crime victims to pay the same rate regardless of the size of the report, and that because they were so harmed, are entitled to receive compensatory damages, including attorneys' fees. The Plaintiff demands a jury trial and is represented by: Mike Arias, Esq. Mark A. Ozzello, Esq. Mikael H. Stahle, Esq. ARIAS OZZELLO & GIGNAC LLP 6701 Center Drive West, Suite 1400 Los Angeles, CA 90045-1558 Telephone: (310) 670-1600 - and - Eugene Feldman, Esq. EUGENE FELDMAN, ATTORNEY AT LAW, APC 555 Pier Ave., Suite 4 Hermosa Beach, CA 90254 Telephone: (310) 372-4636 - and - Steven S. Derelian, Esq. RUSSAKOW, RYAN & JOHNSON 225 South Lake Ave., 10th Floor Pasadena, CA 91101 Telephone: (626) 683-8869 CLARK-REED CO: Plaintiff Takes Last Stab at Relacore Class Action ----------------------------------------------------------------- Michael Booth at the New Jersey Law Journal reports that a lawyer for dissatisfied users of the dietary supplement Relacore took his third and probably final shot Tuesday at getting class action treatment for the suit, which alleges the manufacturer made false claims about the drug's effectiveness in cutting belly fat and stress. Two lower New Jersey courts have held that there are too many possible variables to satisfy the class action requirement that questions of law or fact common to the class predominate over questions affecting only individual members. But plaintiffs lawyer Jeffrey Carton told the state Supreme Court that both courts were wrong: that the common variable is manufacturer Carter-Reed Co.'s fraud on consumers. "These people spent their hard-earned money on a worthless product, thanks to a slick mass media advertising campaign," said Carton, of White Plains, N.J.'s Meiselman, Denlea, Packman, Carton & Eberz. The suit, Lee v. Carter-Reed Co., A-38-09, seeks certification of a class comprised of all New Jersey residents who bought Relacore since it came to market in 2002. The marketing campaign for Relacore varied over time. Some advertisements claimed the drug could reduce belly fat while others touted its ability to reduce stress, enhance mood or fight metabolic syndrome. Lead plaintiff Melissa Lee alleges she bought Relacore in April 2004 after seeing an ad that claimed it would reduce belly fat, but after using it for 90 days, at $39.99 for each month's supply, her waistline actually increased. Her complaint, filed in Union County, N.J., in 2004, includes claims under the Consumer Fraud Act, N.J.S.A. 56:8-1 to -166, and common law claims for fraud, unjust enrichment and breach of express and implied warranty. Superior Court Judge Katherine Dupuis denied certification after identifying 14 individual factors that would necessitate an evidentiary hearing for each class member on the fraud claims. Those factors included the reason for buying Relacore, which advertisements induced the purchase, whether buyers were influenced by a personal recommendation, how the buyers' underlying health might have affected the product's efficacy, how much they paid and whether they sought or obtained a refund. Relacore users might have bought the product for different reasons and been disappointed in different ways by its alleged failure to measure up to the advertised promises, Dupuis said. She identified additional issues on the other claims, such as whether class members received any benefit, on the unjust enrichment claim, and whether timely notice to the seller was provided, on the express warranty. Appellate Division Judges Mary Catherine Cuff, Clarkson Fisher Jr. and Linda Baxter affirmed Dupuis' ruling, though acknowledging that the relatively small losses suffered by class members, roughly $40 to $120, made it unlikely they would sue individually. On Tuesday, Carton said the court should reject the trial and appeals judges' concerns about the manageability of the case. "The lower courts have turned their backs on Ms. Lee and the others," he said. "Without the [class action] remedy the Consumer Fraud Act affords, these wrongs might go unvindicated." Justice Roberto Rivera-Soto said there was no way to tell why individual members of the putative class bought the drug because of the varied reasons for which it was marketed. Carton stated again that all of the claims boil down to one central allegation -- fraudulent advertising for a product that did nothing that was advertised. "Not one of the defendants offered any testimony that the product actually worked," he said. "Class action is the superior mechanism for this type of action." Carter-Reed's lawyer, Gary Bendinger, told the court it should not bend the rules for granting class status. "Plaintiff conceded below that two essential elements, causal nexus and loss, could not be proven class-wide," said Bendinger, of Howrey in New York. Relacore, he said, had "multi-faceted purposes" that make it impossible for there to be one class of plaintiffs with a common complaint. "Plaintiff is asking . . . for a presumption to be substituted for causal nexus and loss," said Bendinger. Nothing in the CFA ... permits an expedient presumption," he said. Justice Barry Albin said that if people are taken in by an "unconscionable" ad campaign that violated the CFA, they are entitled to compensation. That would be the case only if everyone in the case took the product for the same reason, Bendinger said. Rivera-Soto asked what remedies the plaintiffs would have, considering that their individual financial losses make it unlikely that they would go to court individually. "You have the Attorney General, the [Federal Trade Commission]," Bendinger said. "There are other government agencies whose responsibility it is to protect consumers from deceptive advertising." "So you're better off having multiple misrepresentations. Would that be right?" asked Chief Justice Stuart Rabner. "Companies are allowed to market their products as they see fit," Bendinger replied. COMPREHENSIVE HEALTH: Breach of Employment Contracts Alleged ------------------------------------------------------------ Peter Richard, on behalf of himself and others similarly situated v. Comprehensive Health Management, Inc., Case No. 2010-L-004885 (Ill. Cir. Ct., Cook Cty. Apr. 26, 2010), accuses the WellCare Health Plans, Inc., subsidiary of breaching its contracts of employment by placing him and other agents-in-training on furlough and not calling them back to work after the furlough period. He says that, while still in training, he learned that Comprehensive was under investigation by Central Management Services, Inc., a branch of the federal government, and a branch of the Social Security Administration. Later CMS directed Comprehensive to suspend enrollments in Medicare health plans by March 7, 2009. On that date, Mr. Richard says, Comprehensive informed him and other agents-in-training that they had been placed on involuntary, unpaid furlough. In compliance with the furlough agreement he did not sell any Medicare health plans during the furlough or work for any of Comprehensive's competitors. When he returned to Comprehensive in November 2009, he was told that none of the agents-in-training were being called back to work. Mr. Richard and the other plaintiffs seek breach of contract damages and all consequential and punitive damages. The Plaintiff is represented by: L. Steven Platt, Esq. ARNOLD AND KADJAN 19 W. Jackson, 3rd Flr. Chicago, IL 60604 Telephone: (312) 236-0415 E-mail: Lsplatt@arnoldandkadjan.com CORNELL COS: Being Sold for Too Little, Texas Suit Claims --------------------------------------------------------- Courthouse News Service reports that Cornell Cos. are selling themselves too cheaply to The GEO Group, for 1.3 GEO share for each Cornell share, or 1 GEO share plus $6 per Cornell share, a $685 million deal, shareholders say in Harris County Court, Houston. A copy of the Complaint in Shelby v. Cornell Companies, Inc., et al., Case No. 2010-26261 (Tex. Dist. Ct., Harris Cty.), is available at: http://www.courthousenews.com/2010/04/28/SCA.pdf The Plaintiff is represented by: Michael P. Ridulfo, Esq. Angela Offerman, Esq. BROWN MCCARROLL, L.L.P. 1111 Bagby, 47th Floor Houston, TX 77002 Telephone: 713-529-3100 - and - Evan J. Smith, Esq. Marc L. Ackerman, Esq. BRODSKY & SMITH, LLC Two Bala Plaza, Suite 602 Bala Cynwyd, PA 19004 Telephone: 610-667-6200 DISCOUNT SCHOOL: Recalls 3,000 Double Egg Shakers ------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Discount School Supply, of Monterey, Calif., announced a voluntary recall of about 3,000 Double Egg Shakers. Consumers should stop using the product immediately unless otherwise instructed. Surface paint on the red eggs contains excessive levels of lead, violating the federal lead paint standard. No injuries or incidents have been reported. This recall involves egg shakers sold in packages of two. The words "Double Eggs" and "Breeded to produce great sound" are printed on the front of the package. Only the red eggs are subject to the violation of the lead paint standard. A Picture of the recalled product is available at: http://www.cpsc.gov/cpscpub/prerel/prhtml10/10731.html The recalled products were manufactured in Taiwan and sold through discount School Supply stores nationwide from April 2009 through December 2009 for about $3. Consumers should immediately take the recalled eggs away from children and contact Discount School Supply for a purchase credit. For more information, contact Discount School Supply at (800) 606-3807 between 8:00 a.m. and 4:00 p.m., Pacific Time, Monday though Friday, or visit the firm's Web site at http://www.discountschoolsupply.com/ GENE WHEELER: Charged With Labor Code Violations ------------------------------------------------ Galdino Valencia Diaz, on behalf of himself and others similarly situated v. Gene Wheeler Farms, Inc., Case No. BC436235 (Calif. Super. Ct., Los Angeles Cty. Apr. 20, 2010), accuses the agricultural supplier of failing to pay wages for all hours worked, improper payment of overtime and double time wages, failing to provide meal and rest break premium wages, not providing accurate wage statements, and failing to timely pay final wages, in violation of the Labor Code and the Bus. & Prof. Code. Mr. Diaz worked as an hourly, non-exempt employee for Gene Wheeler and is no longer an employee of the Company. The Plaintiff is represented by: Joseph Lavi, Esq. Jose M. Cristobal, Esq. LAVI & EBRAHIMIAN, LLP 8383 Wilshire Blvd., Suite 840 Beverly Hills, CA 90211 Telephone: (323) 653-0086 GENERAL MOTORS: Accused of Underpaying Service Contract Refunds --------------------------------------------------------------- Michelle Massey at The Southeast Texas Record reports that with alleged claims likely to top more than $5 million, a recent class action accuses General Motors of underpaying the prorated refunds of cancelled extended warranty plans. As class representative, Jimmy Hendon filed a lawsuit against General Motors Co. and General Motors LLC on April 21 in the Beaumont Division of the Eastern District of Texas. The plaintiff states that he purchased a new 2006 Chevy Avalanche on Aug. 21, 2006, which came with the GM standard 36 month, 36,000 mile factory warranty. At the time of purchase, he also bought a GM Major Guard Vehicle Service Contract, which extended the standard factory warranty an additional 12 months and 44,000 miles. Hendon canceled the contract in June 2009 with 18,483 miles remaining on the warranty. According to the complaint, GM calculated his refund by taking the remaining miles divided by the 80,000 total miles, resulting in a $295 refund. Hendon claims GM should have calculated his refund by dividing his remaining miles by the 44,000-mile extension, resulting in a $580 refund. The lawsuit argues that GM is improperly calculating the prorated cancellation refunds by dividing the remaining miles or days by the total number of miles or days in the factory warranty, plus the extension. The suit claims GM should be prorating the canceled refund by dividing the remaining miles or days by the number of miles or days that the service contract extended the factory warranty. Class members are owners, lessees and/or operators of GM vehicles, who have purchased, then canceled extended warranty plans from GM. The plaintiff claims the defendant breached its contractual obligation by improper calculation of the prorated refund and by underpaying the class members. The class action is asking for damages for the underpayment, pre- judgment and post-judgment interest, attorney's fees, interest and costs. Houston attorneys Michael A. Caddell, Cynthia B. Chapman and Cory S. Fein of Caddell & Chapman PC and Beaumont attorney Mitchell A. Toups of Weller, Green, Toups & Terrell LLP are representing the plaintiff in Hendon v. General Motors, Case No. 10-cv-00227 (E.D. Tex.) (Heartfield, J.). GOGO SPORTS: Recalls 2,400 Children's Hooded Sweatshirts -------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Gogo Sports Inc., of San Francisco, Calif., announced a voluntary recall of about 2,400 Children's hooded sweatshirts with drawstrings. Consumers should stop using recalled products immediately unless otherwise instructed. The sweatshirts have a drawstring through the hood that can pose a strangulation hazard to children. In February 1996, CPSC issued guidelines to help prevent children from strangling or getting entangled on the neck and waist drawstrings in upper garments, such as jackets and sweatshirts. No injuries or incidents have been reported. This recall involves three styles of children hooded sweatshirts with drawstrings. The zippered sweatshirts were sold in sizes XS through 3XL. The HAY style sweatshirts were sold in black, navy, light grey, charcoal grey and pink. The HKK style sweatshirts were sold in black, navy, light blue, light grey, pink and red. The JMK sweatshirts are reversible microfiber with polar fleece lining and a removable hood with elastic or retractable drawstrings. Style JMK was sold in black only. The sweatshirts have sewn-in neck tag that reads "Gogo Sports" and city names printed across the front of the garment. Pictures of the recalled products are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml10/10209.html The recalled products were manufactured in China and sold through clothing retail stores in California, Colorado, Hawaii and New Mexico from January 2008 through December 2009 for between $14 and $27. Consumers should immediately remove the drawstring from the sweatshirts to eliminate the hazard. For additional information, contact Gogo Sports toll-free at (877) 785-1915 between 9:00 a.m. and 5:00 p.m., Pacific Time, Monday through Friday, or visit the firm's Web site at http://www.gogofleece.com/ HERB THYME: Accused in California Suit of Fraud ----------------------------------------------- Elizabeth Banicki at Courthouse News Service reports that California's largest herb merchant, HerbThyme Farms, "played California consumers for fools," by selling conventionally grown herbs as organic at bumped-up prices, a class action claims in Superior Court. Named plaintiff Michelle Quesada says HerbThyme Farms is the largest grower, shipper and marketer of herbs in California. "But that wasn't enough. So when HerbThyme's profits grew at a slower rate than the company wanted, it turned to fraud," according to the complaint. Compton-based HerbThyme took advantage of the organic foods movement when it "slapped higher price tags on its products, and turned a tidy -- albeit illicit -- profit" for conventionally grown herbs it labeled as "Fresh Organic," the complaint states. HerbThyme owns a number of large farms where it grows produce conventionally, and a much smaller organic farm, according to the complaint. It distributes to grocery stores across the country. The class seeks restitution, damages and an injunction, alleging unjust enrichment, fraud and violations of the California business and consumer laws. The case is Quesada v. Herb Thyme Farms, Inc., et al., Case No. BC436557 (Calif. Super. Ct., Los Angeles Cty.). The Plaintiffs is represented by: Raymond P. Boucher, Esq. Paul R. Kiesel, Esq. Michael C. Eyerly, Esq. KIESEL BUCHER LARSON, LLP 8648 Wilshire Blvd. Beverly Hills, CA 90211-2910 Telephone: 310-854-4444 E-mail: boucher@kbla.com kiesel@kbla.com eyerly@kbla.com - and - Edith M. Kallas, Esq. WHATLEY DRAKE & KALLAS, LLC 1540 Broadway, 37th Floor New York, NY 10036 Telephone: 212-447-7070 E-mail: ekallas@wdklaw.com - and - Neville Johnson, Esq. JOHNSON & JOHNSON LLP 439 N. Canon Dr., Suite 200 Beverly Hills, CA 90210 Telephone: 310-975-1080 E-mail: njohnson@jjllplaw.com ICON HEALTH: Recalls 33,000 Inversion Benches Due to Fall Hazard ---------------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with ICON Health & Fitness Inc., of Logan, Utah, announced a voluntary recall of about 33,000 Nordic Track Revitalize, Gold's Gym, and Weider Club Inversion Benches. Consumers should stop using recalled products immediately unless otherwise instructed. The ankle clamp can release unexpectedly or the strap used to limit rotation can break, posing a fall hazard to consumers. ICON Health & Fitness has received 75 reports of incidents involving the strap breaking or the ankle clamp releasing, including 23 injuries, some of which were to the head and neck. This recall involves the Nordic Track Revitalize Inversion Bench 2.0 model 831.14895.0, Gold's Gym Inversion System models GGBE0867.0 and GGCCBE0867.0 and Weider Club Inversion System model WEBE0878.0. The model number is located under the backrest of the bench. The inversion systems consist of a frame with a backrest, headrest and leg clamp assembly. Pictures of the recalled products are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml10/10210.html The recalled products were manufactured in China and sold through sporting good stores, Walmart, Sears and other retailers nationwide from April 2008 through February 2009 for between $200 and $300. Consumers should immediately stop using the recalled inversion benches and contact Icon Health & Fitness for a free repair kit. For additional information, contact ICON Health & Fitness toll- free at (866) 506-9095 between 8:00 a.m. and 4:00 p.m., Mountain Time, Monday through Friday, or visit the company's website at http://www.iconfitness.com/ JO-ANN STORES: To Pay $50,000 Penalty for Lead Paint Ban Violation ------------------------------------------------------------------ The U.S. Consumer Product Safety Commission announced that Jo-Ann Stores Inc., of Hudson, Ohio, has agreed to pay a $50,000 civil penalty for allegedly importing and selling children's products that violated the federal lead paint ban. The penalty settlement, which has been provisionally accepted by the Commission, resolves CPSC staff allegations that Jo-Ann Stores knowingly imported and sold Robbie Ducky(TM) children's products that contained lead paint in excess of the federal government's regulatory limit from January through November 2007. At the time of the violations, the federal limit on lead in paint was 600 ppm (0.06 percent). As a result of the Consumer Product Safety Improvement Act of 2008, the regulatory limit on lead in paint and surface coatings was reduced in August 2009 from 600 ppm (0.06 percent) to 90 ppm (.009 percent). These Robbie Ducky(TM) children's products allegedly violated the federal lead paint ban and were later recalled by Jo-Ann Stores: * Robbie Ducky(TM) children's watering cans-6,000 recalled on August 28, 2007 * Robbie Ducky(TM) children's toy rakes-16,000 recalled on September 26, 2007 * Robbie Ducky(TM) children's toy rakes-An additional 97,000 toy rakes were recalled on October 25, 2007 * Robbie Ducky(TM) holiday water globes-60 recalled on December 13, 2007 In agreeing to the settlement, Jo-Ann Stores denies CPSC's allegations that it violated federal law. MERRILL LYNCH: Motion to Dismiss 2nd Amended Complaint Pending -------------------------------------------------------------- Merrill Lynch & Co. Inc.'s motion to dismiss a second amended consolidated complaint relating to its auction rate securities, remains pending. On March 25, 2008, a putative class action, Burton v. Merrill Lynch & Co., Inc., et al., was filed in the U.S. District Court for the Southern District of New York against ML & Co. and Merrill Lynch, Pierce, Fenner & Smith Inc. (MLPF&S), on behalf of persons who purchased and continue to hold ARS offered for sale by MLPF&S between March 25, 2003 and Feb. 13, 2008. The complaint alleges, among other things, that MLPF&S failed to disclose material facts about ARS. A similar action, captioned Stanton v. Merrill Lynch & Co., Inc., et al., was filed the next day in the same court. On Oct. 31, 2008, the two cases were consolidated under the caption In Re Merrill Lynch Auction Rate Securities Litigation, and on Dec. 10, 2008, plaintiffs filed a consolidated class action amended complaint. Plaintiffs seek to recover alleged losses in the market value of ARS allegedly caused by the decision of Merrill Lynch to discontinue supporting auctions for the ARS. On Feb. 27, 2009, defendants filed a motion to dismiss the consolidated amended complaint. On May 22, 2009, the plaintiffs filed a second amended consolidated complaint. On July 24, 2009, Merrill Lynch filed a motion to dismiss the second amended consolidated complaint. No further updates were reported in the company's March 11, 2010, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2009. Merrill Lynch & Co. Inc., together with its subsidiaries, provide investment, financing, insurance, and related services to individuals and institutions on a global basis through its broker, dealer, banking and other financial services subsidiaries. MERRILL LYNCH: Plaintiffs in Two Suits Appeal Dismissal Ruling -------------------------------------------------------------- Plaintiffs in two purported class actions where Merrill Lynch & Co. Inc., is a defendant, are appealing the ruling of the U.S. District Court for the Southern District of New York dismissing the cases, according to the company's March 11, 2010, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2009. On Sept. 4, 2008, plaintiffs filed two purported class actions under the antitrust laws against over a dozen defendants, including Merrill Lynch. The two class actions are: (1) Mayor and City Council of Baltimore Maryland v. Citigroup, Inc., et al.; and (2) Russell Mayfield, et al. v. Citigroup, Inc., et al. Plaintiffs allege that the defendants colluded in connection with their ARS practices. The plaintiffs in City Council of Baltimore seek to represent a class of issuers of auction rate securities (ARS) underwritten by the defendants between May 12, 2003 and Feb. 13, 2008, who seek to recover the alleged above-market interest payments they claim they were forced to make when Merrill Lynch and others allegedly discontinued supporting ARS. The plaintiffs who also purchased ARS also seek to recover claimed losses in the market value of those securities allegedly caused by the decision of the financial institutions to discontinue supporting auctions for the securities. These plaintiffs seek treble damages and seek to rescind at par their purchases of ARS. The plaintiffs in Mayfield seek to represent a class of persons who acquired ARS directly from defendants and who held those securities as of Feb. 13, 2008. Plaintiffs seek to recover alleged losses in the market value of ARS allegedly caused by the decision of Merrill Lynch and others to discontinue supporting auctions for the securities. Plaintiffs seek treble damages and seek to rescind at par their purchases of ARS. On Jan. 15, 2009, defendants, including Merrill Lynch, moved to dismiss the complaints. On Jan. 25, 2010, the District Court dismissed the two cases with prejudice. On March 1, 2010, plaintiffs filed a notice of appeal. Merrill Lynch & Co. Inc., together with its subsidiaries, provide investment, financing, insurance, and related services to individuals and institutions on a global basis through its broker, dealer, banking and other financial services subsidiaries. MERRILL LYNCH: "DeBlasio" Plaintiffs Withdraw Plan to Appeal ------------------------------------------------------------ Plaintiffs in the matter DeBlasio v. Merrill Lynch, et al., withdrew their notice of intent to appeal the dismissal of their purported class action following a settlement, according to the company's March 11, 2010, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2009. On Jan. 12, 2007, a purported class action was brought against Merrill Lynch, Pierce, Fenner & Smith Inc. (MLPF&S) and other securities firms in the U.S. District Court for the Southern District of New York alleging that their bank sweep programs violated state law because their terms were not adequately disclosed to customers. On May 1, 2007, plaintiffs filed an amended complaint, which added additional defendants. On Nov. 12, 2007, defendants filed motions to dismiss the amended complaint. On July 27, 2009, the U.S. District Court for the Southern District of New York entered an order dismissing the complaint with prejudice. The plaintiffs filed a notice of intent to appeal the court's decision. Plaintiffs withdrew their notice of intent to appeal following a settlement among the parties in December 2009 for an amount that was not material to Merrill Lynch's consolidated financial statements. Merrill Lynch & Co. Inc., together with its subsidiaries, provide investment, financing, insurance, and related services to individuals and institutions on a global basis through its broker, dealer, banking and other financial services subsidiaries. MERRILL LYNCH: Motion to Dismiss Securities Suit Remains Pending ---------------------------------------------------------------- Merrill Lynch & Co. Inc.'s motion to dismiss a consolidated amended class action complaint remains pending in the U.S. District Court for the Southern District of New York, according to the company's March 11, 2010, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2009. On Sept. 25, 2009, plaintiffs in the securities actions consolidated under the caption In re Bank of America Securities, Derivative and Employment Retirement Income Security Act Litigation filed a consolidated amended class action complaint. The amended complaint is brought on behalf of a purported class, which consists of purchasers of Bank of America common and preferred securities between Sept. 15, 2008 and Jan. 21, 2009, holders of Bank of America's common stock or Series B Preferred Stock as of Oct. 10, 2008, and purchasers of Bank of America's common stock issued in the offering that occurred on or about Oct. 7, 2008, and names as defendants Bank of America, Merrill Lynch and certain of their present or former directors, officers and affiliates. As to Merrill Lynch, the amended complaint alleges violations of Sections 10(b) and 14(a) of the Securities Exchange Act of 1934, and SEC rules promulgated thereunder, based on, among other things, alleged false statements and omissions related to the financial condition and 2008 fourth quarter losses experienced by Merrill Lynch and bonus payments to Merrill Lynch employees. The amended complaint also alleges violations of Sections 11 and 12(a)(2) of the Securities Act of 1933 against Merrill Lynch, Pierce, Fenner & Smith Inc. (MLPF&S) based on, among other things, alleged false statements and omissions related to bonus payments to Merrill Lynch employees and the benefits and impact of the merger on Bank of America in connection with an Oct. 7, 2008, secondary offering of Bank of America common stock. The amended complaint seeks unspecified damages and other relief. On Nov. 24, 2009, defendants moved to dismiss the consolidated amended class action complaint. Merrill Lynch & Co. Inc., together with its subsidiaries, provide investment, financing, insurance, and related services to individuals and institutions on a global basis through its broker, dealer, banking and other financial services subsidiaries. MERRILL LYNCH: Defends Suit by Iron Workers in New York ------------------------------------------------------- Merrill Lynch & Co. Inc., defends a purported class action styled Iron Workers of Western Pennsylvania Pension Plan v. Bank of America Corp., et al., according to the company's March 11, 2010, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2009. On Dec. 22, 2009, Bank of America, Merrill Lynch and certain of their current and former officers were named in a purported class action filed in the U.S. District Court for the Southern District of New York, Iron Workers of Western Pennsylvania Pension Plan v. Bank of America Corp., et al. The action is purportedly brought on behalf all persons who purchased or acquired certain Corporation debt securities between Sept. 15, 2008, and Jan. 21, 2009, and alleges that defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and SEC rules promulgated thereunder, based on, among other things, alleged false statements and omissions related to: (i) the financial condition and 2008 fourth quarter losses experienced by Bank of America and Merrill Lynch; (ii) due diligence conducted by Bank of America in connection with its acquisition of Merrill Lynch; (iii) bonus payments to Merrill Lynch employees; and (iv) Bank of America's contacts with government officials regarding Bank of America's consideration of invoking the material adverse change clause in the merger agreement and the possibility of obtaining government assistance in completing the acquisition of Merrill Lynch. The complaint seeks unspecified damages and other relief. The parties in the securities actions in the In re Bank of America Securities, Derivative and Employment Retirement Income Security Act Litigation have requested that the District Court consolidate this action with their actions. Merrill Lynch & Co. Inc., together with its subsidiaries, provide investment, financing, insurance, and related services to individuals and institutions on a global basis through its broker, dealer, banking and other financial services subsidiaries. MERRILL LYNCH: Faces "Dornfest" Lawsuit in New York --------------------------------------------------- Merrill Lynch & Co. Inc., faces a purported class action styled Dornfest v. Bank of America Corp., et al., pending in the U.S. District Court for the Southern District of New York, according to the company's March 11, 2010, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2009. On Jan. 13, 2010, Bank of America, Merrill Lynch and certain of Bank of America's current and former officers and directors were named in a purported class action. The action is purportedly brought on behalf of investors in Bank of America option contracts between Sept. 15, 2008, and Jan. 22, 2009, and alleges that during the class period approximately 9.5 million Bank of America call option contracts and approximately 8 million Bank of America put option contracts were already traded on seven of the Options Clearing Corporation exchanges. The complaint alleges that defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and SEC rules promulgated thereunder, based on, among other things, alleged false statements and omissions related to: (i) the financial condition and 2008 fourth quarter losses experienced by Bank of America and Merrill Lynch; (ii) due diligence conducted by Bank of America in connection with its acquisition of Merrill Lynch; (iii) bonus payments to Merrill Lynch employees; and (iv) certain defendants' contacts with government officials regarding Bank of America's consideration of invoking the material adverse change clause in the merger agreement and the possibility of Bank of America obtaining additional government assistance in completing the acquisition of Merrill Lynch. The plaintiff class allegedly suffered damages because they invested in Bank of America option contracts at allegedly artificially inflated prices and were adversely affected as the artificial inflation was removed from the market price of the securities. The complaint seeks unspecified damages and other relief. Plaintiffs in the securities actions in the In re Bank of America Securities, Derivative and Employment Retirement Income Security Act (ERISA) Litigation have requested that the District Court consolidate this action with their actions. Merrill Lynch & Co. Inc., together with its subsidiaries, provide investment, financing, insurance, and related services to individuals and institutions on a global basis through its broker, dealer, banking and other financial services subsidiaries. MERRILL LYNCH: MLPF&S Dismissed as Defendant in "Newby" Suit ------------------------------------------------------------ The U.S. District Court for the Southern District of Texas has dismissed ML & Co. and Merrill Lynch, Pierce, Fenner & Smith Inc. (MLPF&S) from the matter Newby v. Enron Corp. et al., according to Merrill Lynch & Co. Inc.'s March 11, 2010, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2009. On April 8, 2002, ML & Co. and MLPF&S (collectively Merrill Lynch) were added as defendants in a consolidated class action, filed in the U.S. District Court for the Southern District of Texas on behalf of certain purchasers of Enron's publicly traded equity and debt securities. The complaint alleges, among other things, that Merrill Lynch engaged in improper transactions that helped Enron misrepresent its earnings and revenues. On March 5, 2009, the court granted Merrill Lynch's motion for summary judgment and dismissed the claims against Merrill Lynch with prejudice. Subsequently, the lead plaintiff, Merrill Lynch and certain other defendants filed a motion to dismiss and for entry of final judgment. The court granted the motion on Dec. 2, 2009, and dismissed all claims against Merrill Lynch with prejudice. Merrill Lynch & Co. Inc., together with its subsidiaries, provide investment, financing, insurance, and related services to individuals and institutions on a global basis through its broker, dealer, banking and other financial services subsidiaries. MERRILL LYNCH: Court Okays Summary Judgment for Plaintiffs ---------------------------------------------------------- The Circuit Court of Cook County, Illinois, granted the plaintiffs' motion for summary judgment in the matter Fred C. Dames Funeral Homes, Inc., et al., v. Daniel W. Hynes, the Illinois Office of the Comptroller, et al., according to Merrill Lynch & Co. Inc.'s March 11, 2010, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2009. On July 7, 2009, a purported class action was filed on behalf of certain funeral directors who are seeking to void the Consent Order in its entirety, and are asking for a declaratory judgment against the Illinois Comptroller, the Department, MLPF&S, MLLA and Merrill Lynch Bank & Trust Co., FSB that only certain terms of the Consent Order are unenforceable; an injunction against the Department and the IOC from taking further action; and recovery of attorneys' fees. The plaintiffs, IOC and Department filed cross-motions for summary judgment that focus on the authority of the IOC and Department to enter into the Consent Order or impose other regulatory actions in connection with the IFDA trust. On Feb. 24, 2010, the Circuit Court entered a Memorandum Opinion and Order, granting the plaintiffs' motion for summary judgment and denying the IOC's and Department's motions for summary judgment, and finding that the Department and IOC lacked authority to enter into the Consent Order to the extent it affected the rights of non-regulated third parties. Merrill Lynch & Co. Inc., together with its subsidiaries, provide investment, financing, insurance, and related services to individuals and institutions on a global basis through its broker, dealer, banking and other financial services subsidiaries. MERRILL LYNCH: "Tipsword" Suit Against MLPF&S Remains Stayed ------------------------------------------------------------ A purported class action where Merrill Lynch, Pierce, Fenner & Smith Inc. (MLPF&S), is a defendant remains stayed. On June 16, 2009, a purported class action on behalf of a proposed class of pre-need contract holders, David Tipsword as Trustee of Mildred E. Tipsword Trust, individually and on behalf of all others similarly situated v. I.F.D.A. Services Inc., et al., was filed in the U.S. District Court for the Southern District of Illinois against MLPF&S, among other defendants. The complaint alleges that MLPF&S breached purported fiduciary duties and committed negligence. MLPF&S has filed a motion to dismiss the complaint, with prejudice. Prior to considering the motion of MLPF&S, however, the District Court, pursuant to the motion of IFDA, IFDA Services, and affiliated officers and directors of IFDA, entered an order staying the action in all respects, including MLPF&S's motion to dismiss. The complaint seeks unspecified compensatory and punitive damages for the class, attorneys' fees and costs. No further updates were reported in Merrill Lynch & Co. Inc.'s March 11, 2010, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2009. Merrill Lynch & Co. Inc., together with its subsidiaries, provide investment, financing, insurance, and related services to individuals and institutions on a global basis through its broker, dealer, banking and other financial services subsidiaries. MERRILL LYNCH: Wants Clancy-Gernon Consolidated with Tipsword ------------------------------------------------------------- Merrill Lynch, Pierce, Fenner & Smith Inc. (MLPF&S), seeks to consolidate the matter Clancy-Gernon Funeral Home, Inc., et al. v. MLPF&S, et al., with David Tipsword as Trustee of Mildred E. Tipsword Trust, individually and on behalf of all others similarly situated v. I.F.D.A. Services Inc., et al., according to Merrill Lynch & Co. Inc.'s March 11, 2010, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2009. On June 30, 2009, a purported class action on behalf of a proposed class of funeral directors was filed in the Circuit Court of Cook County, Illinois, alleging that MLPF&S and MLLA, among other defendants, committed consumer fraud, civil conspiracy, unjust enrichment, and conversion. MLPF&S and MLLA removed the complaint to the U.S. District Court for the Northern District of Illinois. Plaintiffs filed a motion to remand the case to the Circuit Court for Cook County or to transfer the case to the U.S. District Court for the Southern District of Illinois. MLPF&S and MLLA opposed the motion. On or about Nov. 17, 2009, the District Court denied the motion to remand, but granted the motion to transfer the case to the Southern District. On or about Dec. 23, 2009, the plaintiffs filed a second amended complaint in the U.S. District Court for the Southern District of Illinois. The second amended complaint seeks unspecified damages, declaratory relief, disgorgement of all fees, commissions and "revenues" received by MLPF&S and MLLA, punitive damages, attorneys' fees and an accounting. On Jan. 26, 2010, MLPF&S filed a motion to consolidate the Clancy-Gernon action with the Tipsword action, and to extend the stay entered in the Tipsword action to the combined proceedings. Merrill Lynch & Co. Inc., together with its subsidiaries, provide investment, financing, insurance, and related services to individuals and institutions on a global basis through its broker, dealer, banking and other financial services subsidiaries. MERRILL LYNCH: BofA's Motion to Dismiss Complaint Still Pending --------------------------------------------------------------- Bank of America Corporation's motion to dismiss a consolidated amended complaint remains pending in the U.S. District Court for the Southern District of New York, according to Merrill Lynch & Co. Inc.'s March 11, 2010, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2009. On Jan. 20, 2009, MLPF&S in its capacity as underwriter, along with IndyMac MBS, IndyMac ABS, and other underwriters and individuals, was named as a defendant in a putative class action complaint, entitled IBEW Local 103 v. Indymac MBS et al., filed in the Superior Court of the State of California, County of Los Angeles, by purchasers of IndyMac mortgage pass-through certificates. The complaint alleges, among other things, that the mortgage loans underlying these securities were improperly underwritten and failed to comply with the guidelines and processes described in the applicable registration statements and prospectus supplements, in violation of Sections 11 and 12 of the Securities Act of 1933, and seeks unspecified compensatory damages and rescission, among other relief. On May 14, 2009 and June 29, 2009, two new putative class action complaints, entitled Police & Fire Retirement System of the City of Detroit v. IndyMac MBS, Inc., et al. and Wyoming State Treasurer, et al. v. John Olinski, et al., respectively, were filed in the U.S. District Court for the Southern District of New York. MLPF&S was not named a defendant in either of these cases. The allegations, claims, and remedies sought in these cases are substantially similar to those in the IBEW Local 103 case, which named MLPF&S as a defendant. On July 29, 2009, Police & Fire Retirement System of the City of Detroit v. IndyMac MBS, Inc., et al. and Wyoming State Treasurer, et al. v. John Olinski, et al., were consolidated by the U.S. District Court for the Southern District of New York, and a consolidated amended complaint was filed on Oct. 9, 2009. The consolidated complaint named Bank of America, and not MLPF&S, as a defendant based on an allegation that Bank of America is the "successor-in-interest" to MLPF&S. Prior to the consolidation of these matters, the IBEW Local 103 v. IndyMac MBS et al. case was voluntarily dismissed by plaintiffs, and its allegations and claims are incorporated into the consolidated amended complaint. A motion to dismiss the consolidated amended complaint was filed on Nov. 23, 2009. Merrill Lynch & Co. Inc., together with its subsidiaries, provide investment, financing, insurance, and related services to individuals and institutions on a global basis through its broker, dealer, banking and other financial services subsidiaries. MERRILL LYNCH: Motion to Dismiss "Lehman" Litigation Pending ------------------------------------------------------------ A motion to dismiss a consolidated amended complaint where Merrill Lynch, Pierce, Fenner & Smith Inc. (MLPF&S), is a defendant remains pending. Beginning in September 2008, MLPF&S, among other underwriters and individuals, was named as a defendant in several putative class action complaints filed in the U.S. District Court for the Southern District of New York and state courts in Arkansas, California, New York and Texas. Plaintiffs allege that the underwriter defendants violated Sections 11 and 12 of the Securities Act of 1933 by making false or misleading disclosures in connection with various debt and convertible stock offerings of Lehman Brothers Holdings, Inc., and seek unspecified damages. All cases against the defendants have now been transferred or conditionally transferred to the multi-district litigation captioned In re Lehman Brothers Securities and ERISA Litigation pending in the U.S. District Court for the Southern District of New York. MLPF&S and other defendants moved to dismiss the consolidated amended complaint. No further updates were reported in Merrill Lynch & Co. Inc.'s March 11, 2010, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2009. Merrill Lynch & Co. Inc., together with its subsidiaries, provide investment, financing, insurance, and related services to individuals and institutions on a global basis through its broker, dealer, banking and other financial services subsidiaries. MERRILL LYNCH: Court Okays Settlement in "Louisiana Sheriffs'" -------------------------------------------------------------- The U.S. District Court for the Southern District of New York gave its final approval to the settlement agreement in the matter Louisiana Sheriffs' Pension & Relief Fund v. Conway, et al., according to the company's March 11, 2010, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2009. On Oct. 3, 2008, a putative class action was filed against Merrill Lynch & Co., Inc., Merrill Lynch Capital Trust I, Merrill Lynch Capital Trust II, Merrill Lynch Capital Trust III, MLPF&S (collectively the Merrill Lynch entities), and certain present and former Merrill Lynch officers and directors, and underwriters in New York Supreme Court, New York County. The complaint seeks relief on behalf of all persons who purchased or otherwise acquired debt securities issued by the Merrill Lynch entities pursuant to a shelf registration statement dated March 31, 2006. The complaint alleged that prospectuses misstated the financial condition of the Merrill Lynch entities and failed to disclose their exposure to losses from investments tied to subprime and other mortgages, as well as their liability arising from their participation in the auction rate securities (ARS) market. On Oct. 22, 2008, the action was removed to federal court and on Nov. 5, 2008 it was accepted as a related case to In re Merrill Lynch & Co., Inc. Securities, Derivative, and ERISA Litigation. On April 21, 2009, the parties reached an agreement in principle to settle the Louisiana Sheriffs' matter for an amount that was not material to Merrill Lynch's consolidated financial statements and dismiss all claims with prejudice. On Nov. 30, 2009, the Court granted final approval of the settlement. Merrill Lynch & Co. Inc., together with its subsidiaries, provide investment, financing, insurance, and related services to individuals and institutions on a global basis through its broker, dealer, banking and other financial services subsidiaries. MERRILL LYNCH: Motion to Dismiss MBS-Related Suit Still Pending --------------------------------------------------------------- Merrill Lynch & Co. Inc.'s motion to dismiss a consolidated amended complaint relating to the sale of mortgage-backed securities remains pending. Beginning in December 2008, Merrill Lynch and affiliated entities and others were named in four putative class actions arising out of the underwriting and sale of more than $55 billion of mortgage-backed securities. The four class actions are: (1) Connecticut Carpenters Pension Fund, et al. v. Merrill Lynch & Co., Inc., et al.; (2) Iron Workers Local No. 25 Pension Fund v. Credit-Based Asset Servicing and Securitization LLC, et al.; (3) Public Employees' Ret. System of Mississippi v. Merrill Lynch & Co. Inc.; and (4) Wyoming State Treasurer v. Merrill Lynch & Co. Inc. The complaints alleged, among other things, that the relevant registration statements and accompanying prospectuses or prospectus supplements misrepresented or omitted material facts regarding the underwriting standards used to originate the mortgages in the mortgage pools underlying the MBS, the process by which the mortgage pools were acquired, and the appraisals of the homes secured by the mortgages. Plaintiffs seek to recover alleged losses in the market value of the MBS allegedly caused by the performance of the underlying mortgages or to rescind their purchases of the MBS. These cases were consolidated under the caption Public Employees' Ret. System of Mississippi v. Merrill Lynch & Co. Inc. and, on May 20, 2009, a consolidated amended complaint was filed. On June 17, 2009, Merrill Lynch filed a motion to dismiss the consolidated amended complaint. No further updates were reported in the company's March 11, 2010, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2009. Merrill Lynch & Co. Inc., together with its subsidiaries, provide investment, financing, insurance, and related services to individuals and institutions on a global basis through its broker, dealer, banking and other financial services subsidiaries. NOVELL INC: Notices of Appeal Filed on Settlement Final Approval ---------------------------------------------------------------- Certain parties in a consolidated amended class action complaint against SilverStream, which Novell, Inc., acquired in July 2002, have filed notices of appeal on the U.S. District Court for the Southern District of New York's final approval of the settlement agreement, according to the company's March 11, 2010, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Jan. 31, 2009. SilverStream and several of its former officers and directors, as well as the underwriters who handled SilverStream's two public offerings, were named as defendants in several class action complaints that were filed on behalf of certain former stockholders of SilverStream who purchased shares of SilverStream common stock between Aug. 16, 1999, and Dec. 6, 2000. These complaints are closely related to several hundred other complaints that the same plaintiffs have brought against other issuers and underwriters. These complaints all allege violations of the Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended. In particular, they allege, among other things, that there was undisclosed compensation received by the underwriters of the public offerings of all of the issuers, including SilverStream. A Consolidated Amended Complaint with respect to all of these complaints was filed in the U.S. District Court, Southern District of New York, on April 19, 2002. Various parties participated in settlement discussions and reached a proposed settlement agreement. This agreement received preliminary approval from the Court in June 2009. After notice to the plaintiff class, the settlement agreement received final approval from the Court on Sept. 10, 2009. Certain parties have filed Notices of Appeal from the Court's decision. Novell, Inc. -- http://www.novell.com/-- through its infrastructure software and ecosystem of business partnerships, integrate mixed information technology (IT) environments, allowing people and technology to work as one. The company has four segments: Open Platform Solutions, Identity and Security Management, Systems and Resource Management, and Workgroup. OCEAN MANAGEMENT: Recalls 20,000 Buoyancy Compensators ------------------------------------------------------ The U.S. Consumer Product Safety Commission, in cooperation with Ocean Management Systems Inc., of Middletown, N.Y., announced a voluntary recall of about 20,000 Buoyancy Compensators used for Scuba Diving. Consumers should stop using recalled products immediately unless otherwise instructed. The buoyancy compensator seal ring could crack, posing a drowning hazard to divers. No injuries or incidents have been reported. This recall involves buoyancy compensators with the following model numbers. Buoyancy compensators provide buoyancy control for scuba divers by allowing them to inflate or deflate the devices. The compensators were sold in black or red. "OMS" is printed on the front inside of the compensators. Item and serial numbers are printed on the warning label located in the non- inflation area of the buoyancy compensator. A list of serial numbers included in this recall is available from the firm. Item Number Description ----------- ----------- BC-TCPS- B TACOPS(R) BC ; Black BC-TCPS-R TACOPS(R) BC ; Red BC116-32B16 B Non retraction single tank BC 32 lb. lift/Black BC116-32R Non retraction single tank BC 32 lb. lift/Red BC-LGS45 Larry Green Signature Series 45 lb. lift BC BC-LGS70 Larry Green Signature Series 70 lb. lift BC BC118 - K Dual Bladder BC [inflated] 94 lb. lift Black or Red BC115 - KB Dual Bladder BC, 60 lb. lift in Black BC115 - KR Dual Bladder BC, 60 lb. lift in Red BC118 - K Dual Bladder BC [deflated] 94 lb. lift Black or Red BC117 - K45 Single Bladder BC 45 lb. lift / Black BC117CR - K45 Chemically Resistant 45 lb. lift / Black BC117 - K60 Single Bladder BC, 60 lb. lift / Black BC117 - KB Single Bladder BC, 94 lb. lift / Black BC117 - KR Single Bladder BC, 94 lb. lift / Red BC116-45B Non-retraction Single Bladder BC 45 lb. lift/Black BC116-60B Non-retraction Single Bladder BC 60 lb. lift/Black BC116-60R Non-retraction Single Bladder BC 60 lb. lift/Red BC116-60C Chemically Resistant 60 lb. lift / Black Pictures of the recalled products are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml10/10208.html The recalled products were manufactured in United States and sold through dive stores nationwide from May 2006 through August 2008 for about $400. Consumers should immediately stop using the diving equipment and contact Ocean Management Systems to receive a free repair. For additional information, contact Ocean Management Systems toll- free at (877) 791-0315 between 9:00 a.m. and 4:30 p.m., Eastern Time, Monday through Friday, visit the firm's website at http://www.omsdive.com/or E-mail the firm at recall@omsdive.com OHIO EDUCATION: Settles Retiree Healthcare Lawsuit for $3.75 Mil. ---------------------------------------------------------------- Tanya Hutchins at nbc4i.com reports that the Ohio Education Association is settling a $3.75 million class action suit pending in U.S. District Court for the Southern District of Ohio. Four retired staff employees from OEA say they were notified in 2004 that they would not receive health benefits after they turned 65 years old. In 2005, they filed the class action suit, which now includes 158 people. Ms. Hutchins reports that 335 people could ultimately benefit from the settlement because it affects people who are 65 now, people who are retired but not yet 65 and people who are not retired but will be entitled to the benefits when they reach that age, according to David Cook, Esq., a lawyer representing the plaintiffs. Mr. Cook says the case was originally dismissed, then won when it reached the U.S. Court of Appeals. He says in cases like this, union members often fare better than non-union members and anyone with a contract needs to read it carefully. "See if it contains provisions that give you benefits after you retire and in particular, if those benefits are directly linked to you receiving a pension," Cook said. He says OEA originally said the organization had a legal right to terminate the benefits and that the contracts did not bind them. When contacted for this story, OEA issued the following statement: "The class action lawsuit resulted from a lack of clear contractual language that the Ohio Education Association (OEA) could reasonably rely on to justify the purchase of health care benefits for OEA retirees over the age of 65 years old. The only court decision issued through the history of the case was issued by the federal district court in favor of OEA. Based upon the Plaintiff's appeal of the district court's decision, the Sixth Circuit Court of Appeals reversed the lower court's decision on the basis that the factual issues could not be decided by the lower court without a trial. Immediately prior to the start of what would be a long, costly and complex trial, the parties were able to reach settlement of all issues. The OEA is pleased that the parties could achieve a settlement of the lawsuit that allows OEA to provide appropriate benefits to its retirees while also allowing OEA to meet its financial obligations to its members." The Garden City Group, Inc., maintains a Web site at: http://www.praterclassactionsettlement.com/index.php3 providing further information about Prater, et al. v. Ohio Education Association, Case No. 04-cv-01077 (S.D. Ohio) (Sargus, J.). The Plaintiffs are represented by: David M. Cook, Esq. Ellen M. Grachek, Esq. Jennie G. Arnold, Esq. COOK, PORTUNE & LOGOTHETIS, LLC 22 West Ninth Street Cincinnati, OH 45202 Telephone: 513-721-0444 E-mail: dcook@dmcllc.com egrachek@dmcllc.com jarnold@dmcllc.com The Defendant is represented by: M.J. Asensio, Esq. Rodger L. Eckelberry, Esq. BAKER & HOSTETLER, LLP 65 East State Street, Suite 2100 Columbus, Ohio 43215 Telephone: (614) 228-1541 E-mail: masensio@bakerlaw.com reckelberry@bakerlaw.com ROSETTA STONE: Accused in Calif. Suit of Not Paying Overtime ------------------------------------------------------------ Courthouse News Service reports that Rosetta Stone, the language company, stiffs managers for overtime, a class action claims in Alameda County Court, Oakland. A copy of the Complaint in Pierce, et al. v. Rosetta Stone Ltd., et al., Case No. RG10511660 (Calif. Super. Ct., Alameda Cty.), is available at: http://www.courthousenews.com/2010/04/28/RosettaStone.pdf The Plaintiffs are represented by: Timothy P. Rumberger, Esq. LAW OFFICES of TIMOTHY P. RUMBERGER 2161 Shattuck Ave., Suite 200 Berkeley, CA 94704-1313 Telephone: 510-841-5500 E-mail: tim@rumbergerlaw.com SONY COMPUTER: PlayStation 3 Owner Sues for OS Option Removal ------------------------------------------------------------- Michael McWhertor at kotaku.com reports that in early April, Sony issued a new software update for the PlayStation 3 that eliminated the option to install an alternate operating system, like Linux, to the console. Now, a California man is suing Sony Computer Entertainment over the change. PlayStation 3 firmware 3.21 -- a mandatory update -- went live on April 1, removing the "Install Other OS" feature present in the original version of the console. Sony Computer Entertainment reps said the decision to eliminate the feature was "due to security concerns," that dropping a secondary operating system would "help ensure that PS3 owners will continue to have access to the broad range of gaming and entertainment content from SCE and its content partners on a more secure system." Plaintiff Anthony Ventura takes issue with that decision in a suit filed against SCEA in the U.S. District Court for the Northern District of California. The suit filed on his behalf believes the change "reflected Sony's concerns that the Other OS feature might be used by 'hackers' to copy and/or steal gaming and other content." "Sony's decision to force users to disable the Other OS function was based on its own interest and was made at the expense of its customers," reads the complaint. The class action suit was brought on behalf of "a nationwide class of all persons who purchased a PS3 during the period November 17, 2006 and March 27, 2010 and who did not resell their PS3" during that time. The suit claims that the "Install Other OS" function was "extremely valuable." According to the suit, the plaintiff he has not yet installed the latest firmware update so that he can continue to use the Other OS feature. The suit also notes that PS3 owners who choose not to update their firmware cannot access the PlayStation Network, play PS3 games online, nor can they play new games or Blu-ray videos that require firmware 3.21. Ventura's suit against the PlayStation maker seeks "damages for Plaintiff and each class member, including but not limited to compensatory damages; restitution; injunctive relief; attorneys' fees; and the cost of this suit." Specific sums are not listed, although court documents note "the amount in controversy is in excess of $5 million." A copy of the Complaint in Ventura v. Sony Computer Entertainment America, Inc., Case No. 10-cv-01811 (N.D. Calif.), is available at http://is.gd/bNk31 The Plaintiff is represented by: Rebecca Coll, Esq. David J. Meiselman, Esq. Jeffrey I. Carton, Esq. D. Greg Blankinship, Esq. Jerome Noll, Esq. MEISELMAN, DENLEA, PACKMAN, CARTON & EBERZ P.C. 1311 Mamaroneck Ave. White Plains, NY 10605 Telephone: 914-517-5000 E-mail: rcoll@mdpcelaw.com TRANSITIONS OPTICAL: Accused in Wash. of Anticompetitive Conduct ---------------------------------------------------------------- Courthouse News Service reports that Transitions Optical and Essilor of America conspired to monopolize the U.S. market for photochromic corrective lenses, according to a federal antitrust class action in Seattle. A copy of the Complaint in Arthur L. Cartier Optics v. Transitions Optical, Inc., et al., Case No. 10-cv-00694 (W.D. Wash.), is available at: http://www.courthousenews.com/2010/04/28/Antitrust.pdf The Plaintiff is represented by: Mark A. Griffin, Esq. Raymond J. Farrow, Esq. KELLER ROHRBACK L.L.P. 1201 Third Ave., Suite 3200 Seattle, WA 98101-3052 Telephone: 206-623-1900 E-mail: mgriffin@kellerrohrback.com rfarrow@kellerrohrback.com - and - J. Douglas Richards, Esq. Daniel A. Small, Esq. Kit A. Pierson, Esq. Benjamin D. Brown, Esq. Christopher J. Cormier, Esq. COHEN MILSTEIN SELLERS & TOLL PLLC 1100 New York Ave., NW, Suite 500, West Tower Washington, DC 20005 Telephone: 202-408-4600 E-mail: drichards@cohenmilstein.com dsmall@cohenmilstein.com kpierson@cohenmilstein.com bbrown@cohenmilstein.com ccormier@cohenmilstein.com - and - Mark Samson, Esq. KELLER ROHRBACK P.L.C. 3101 North Central Ave., Suite 1400 Phoenix, AZ 85012 Telephone: 602-248-0088 E-mail: msamson@kellerrohrback.com VIVENDI SA: Paris Appeals Court Won't Block French Participation ---------------------------------------------------------------- Dow Jones reports that the Paris court of appeal has rejected French media conglomerate Vivendi SA's application for a ruling that French shareholders shouldn't participate in a U.S. class action. In February, in In re Vivendi Universal, S.A., Securities Litigation, Case No. 02-cv-5571 (S.D.N.Y.) (Holwell, J.), a U.S. jury found Vivendi liable for misstatements about its financial health in 2001 and 2002. "Vivendi regrets that the Court of Appeal has decided not to make a ruling at this stage on the question of whether American class actions were in accordance with French public policy," Vivendi said. Vivendi noted that no judgment on the matter has yet been rendered in the U.S. Leila Abboud at Reuters reports that Vivendi's lawyer Herve Pisani said that the essential debate over whether the French investors should be included in the U.S. case remained open. The company can continue to make its case on that point before the U.S. judge, he told Reuters, regardless of today's decision in France. Vivendi can also appeal the decision, which could drag out the process several years. Vivendi has already set aside 550 million euros ($726 million) to cover a possible payout. But, Ms. Abboud relates, analysts worry that the cost to the company could end up being much larger, perhaps in the billions. WALLDESIGN INCORPORATED: Labor Code Violations Alleged ------------------------------------------------------ Jose Hernandez, on behalf of himself and others similarly situated v. WallDesign Incorporated, Case No. 30-2010-00364818 (Calif. Super. Ct., Orange Cty. Apr. 20, 2010), accuses the residential subcontractor of failing to: (i) pay overtime wages, (ii) pay the prevailing wage rate, (iii) provide meal and rest breaks, (iv) pay wages upon termination, and (v) furnish accurate itemized wage statements upon payment of wages, in violation of the Labor Code and the Bus. & Prof. Code. Mr. Hernandez was employed as a construction worker at various construction sites of the Defendant throughout California from 2000 to August of 2009. The Plaintiff is represented by: Louis M. Marlin, Esq. Marcus J. Bradley, Esq. Stephen P. O'Dell, Esq. MARLIN & SALTZMAN, LLP 3200 El Camino Real, Suite 100 Irvine, CA 92602 Telephone: (714) 669-4900 - and - Michelle West, Esq. ROBINSON, CALCAGNIE & ROBINSON 620 Newport Center Dr., 7th Floor Newport Beach, CA 92660 Telephone: (949) 720-1288 ********* 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, Joy A. Agravante, Ronald Sy 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. For subscription information, contact Christopher Beard at 240/629-3300. * * * End of Transmission * * *