/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/091125.mbx C L A S S A C T I O N R E P O R T E R Wednesday, November 25, 2009, Vol. 11, No. 233 Headlines BRAIN RESEARCH: Class Action Target Sues Law Firm for Defamation CHINESE DRYWALL: CPSC Sees Strong Drywall-Corrosion Association CITYSEARCH: C.D. Calif. Certifies Click-Fraud Claimants Class DISTRICT OF COLUMBIA: Settles Mass Arrest Case for $13.7 Million HASEKO HOMES: Complaint Alleged Hurricane Straps Don't Work LAURA HESS: Debt Settlement Scam Victims See Initial 25% Recovery LUZERNE COUNTY: "Kids for Cash" Judges Win Partial Civil Immunity MARQUEE HOLDINGS: Appeal of Bateman Certification Ruling Pending NEUROMETRIX INC: Motion to Dismiss Suit Remains Pending in Mass. O'REILLY AUTO PARTS: Accused of Shortchanging Customer Refunds PFIZER INC: Pa. Super. Ct. Mulls Neurontin Class Decertification REDBOX AUTOMATED: Lawyers Launch Web Site to Solicit Claimants RETALIX LTD: Shareholder Agrees to Dismiss E.D. Tex. Lawsuit RONCO ACQUISITION: Accused in N.J. Suit of Inflated Shipping Fees SELECT COMFORT: Continues to Defend vs. Product Liability Suit SIRIUS XM: S.D.N.Y. Suit Complains About Deceptive $2 Admin Fee SONY ELECTRONICS: Calif. Suit Says VAIO Touchpads are Defective STORK CRAFT: Recalls 2.1 Million Drop-Side Cribs SUNAIR CORP: Shareholders Want More Money in Massey Transaction TRAILER BRIDGE: Wants Amended Class Action Complaint Dismissed UNITED STATES: Telephone Tax Suit Survives Motion to Dismiss URS CORP: Unit Continues to Defend Suit on Industrial Canal Work VCG HOLDING: Continues to Defend Zajkowski Suit in Minnesota VERTRO INC: Decision on Magistrate Judge's Report Still Pending New Securities Fraud Cases CARTER'S INC: Finkelstein Files Shareholder Suit in N.D. Ga. ********* BRAIN RESEARCH: Class Action Target Sues Law Firm for Defamation ---------------------------------------------------------------- Kate Moser at The Recorder reports that soon after filing a class action last spring against the maker of a dietary supplement called Procera AVH, Thomas Clarke, Jr., Esq., a partner in the San Francisco office of Ropers, Majeski, Kohn & Bentley, uploaded a video on YouTube about the class action and talked to a television reporter for a news story about the litigation. Now, Brain Research Labs, the defendant in that class action, has sued Mr. Clarke and his law firm, as well as the plaintiff named in the complaint, saying their comments on TV and the Internet are defamatory and have hurt the company's business. In a hearing last week on a motion to dismiss the lawsuit, the company's lawyers painted Mr. Clarke as an attorney who'd gone too far. "We're here in a court of law to provide justice, to understand when a lawyer crosses the line," John Younesi, Esq., of Los Angeles firm Younesi & Yoss, told San Francisco Superior Court Judge Harold Kahn. The line Mr. Clarke crossed, Mr. Younesi argued in court, was to accuse his client of being a thief and a killer, and to say that human trials have proven Procera ineffective. But one of Mr. Clarke's lawyers said it's "shocking" that Brain Research Labs would try to chill a valid filing of a lawsuit by suing the lawyer involved. "It's a rather remarkable use of litigation in an attempt to thwart a lawyer and his client's efforts to pursue a class action," said James Wagstaffe, Esq., of San Francisco firm Kerr & Wagstaffe, who was there arguing for Mr. Clarke as well as for Ropers Majeski. The motion to strike the complaint as a SLAPP, or a strategic lawsuit against public participation, was argued primarily by Jacqueline Scott Corley, Esq., who joined Kerr & Wagstaffe as a partner at the end of September after clerking for 12 years for Judge Charles Breyer in the Northern District. Zachary Rothenberg, Esq., of Santa Monica, Calif., firm Grodsky & Olecki, argued on behalf of the name plaintiff from the underlying suit. Interviewed by phone, Mr. Clarke said he was surprised that Brain Research Labs thought the "tactic" of suing him would work. "I think that their attorneys have, unfortunately, done them a great disservice by letting them think they had a chance at this," he said. But Mr. Younesi said the only way to "promote justice" in this case is to give his client its day in court: "Otherwise, a lawyer could be able to say virtually anything he wants to say and hide behind a statute." The complaint -- a copy of which is available at no charge at http://pdfserver.amlaw.com/ca/defamation1123.pdf-- against Mr. Clarke argues that Clarke defamed the company on TV and in his nine-minute YouTube video. The complaint in Brain Research Labs LLC v. Clarke, Case No. CGC-09-491932 (Calif. Super Ct., San Francisco Cty.), quotes at length from the video, in which Clarke broadly uses words like "scam artists," and says the makers of Procera sell unsuspecting customers a product that doesn't work. "In 25 years of practice, I've never seen a lawyer go on record to mock somebody in the way that he did," Mr. Younesi said, adding that Mr. Clarke's audience for the video, which had been viewed about a thousand times as of last week, goes beyond potential litigants. While Judge Kahn said at the beginning of the hearing that he was still "not sure" which way to rule, toward the end, most of his tough questions were for Brain Research Labs' lawyers. For instance, he asked whether Mr. Clarke might have been within bounds in trying to reach class members: "Why isn't this Mr. Clarke a little artfully, maybe a lot rudely, shaking the trees?" Younesi & Yoss seemed to argue that Clarke's chosen medium was at the heart of the problem: "To do it in the way that Mr. Clarke did it was very insidious, because he reached across continents," Mr. Younesi said. Mr. Wagstaffe said the law regardless protects a lawyer's ability to reach out to witnesses and litigants. "The law doesn't change simply because there's a new communication technique used," he said. While Mr. Yoss argued that the anti-SLAPP motion should be denied because Clarke's statements went "beyond any purpose that is in the class action," her partner made a loftier argument that Clarke shouldn't be able to make statements that damaged the supplement maker with impunity. Later Mr. Younesi said Mr. Clarke "picked on a particularly vulnerable industry -- the supplement industry," adding that it's unfair "when you deep-sea fish for clients and you scam people by saying things that aren't true." But Mr. Clarke's defense lawyers argued in their motion that the lawsuit is a "quintessential" SLAPP lawsuit and a "meritless" defamation suit. "Ropers, Majeski is one of the most prominent and highly regarded law firms in the country," Mr. Wagstaffe said after the hearing. "They are being sued for what presumably would be for millions of dollars because they described a lawsuit to a television reporter in a news story about it, and for going on YouTube. . . . That's shocking to us." Judge Kahn commended the lawyers on both sides for well-prepared arguments and said he'd rule "as soon as I'm able to do so." CHINESE DRYWALL: CPSC Sees Strong Drywall-Corrosion Association --------------------------------------------------------------- Brian Skoloff, writing for The Associated Press, reports that the federal government says it finds a "strong association" between problematic imported Chinese drywall and corrosion of pipes and wires, a conclusion that supports complaints by thousands of homeowners over the last year. The report -- see http://www.cpsc.gov/info/drywall/index.html-- is the U.S. Consumer Product Safety Commission's second one on the potentially defective building materials. The commission said its investigation also has found a "possible" link between health problems reported by homeowners and hydrogen sulfide gas emitted from the wallboard coupled with formaldehyde, which is commonly found in new houses. Millions of pounds of cheap Chinese-made drywall were imported and used in new homes in the U.S. at the height of the U.S. housing boom from 2004-2008, Mr. Skoloff relates. CITYSEARCH: C.D. Calif. Certifies Click-Fraud Claimants Class ------------------------------------------------------------- Dealing a blow to IAC, Wendy Davis at Online Media Daily reports, a federal judge has decided that disgruntled online marketers can proceed with a class-action click-fraud lawsuit against the company. U.S. District Court Judge Christina Snyder in Los Angeles ruled that the search marketers could be certified as a class because their complaints against IAC stemmed from the same type of alleged conduct. "Plaintiffs advertised using Citysearch's pay-per-click advertising program and were allegedly charged by Citysearch for invalid clicks," Judge Snyder wrote. "Notwithstanding any asserted differences between class members, plaintiffs' claims are based on an alleged common course of conduct." The class includes all pay-per-click marketers on Citysearch who "experienced click fraud by reason of double clicks" -- clicks within a short period of time from the same IP address -- or from Citysearch's "failure to apply automatic filters to traffic from its syndication partners" before March 23, 2007. Barry Diller's IAC had opposed the marketers' efforts to proceed as a class, arguing that "each advertiser's expectations of and experience with Citysearch are unique." This decision appears to mark the first time a judge has ruled on a contested motion to certify a class in a click-fraud lawsuit stemming from pay-per-click ads. While Google and Yahoo have both faced class-action click-fraud lawsuits, those cases were resolved without litigation about whether a class should be certified, according to: Brian S. Kabateck, Esq. KABATECK BROWN KELLNER, LLP Engine Company No. 28 Building 644 South Figueroa Street Los Angeles, CA 90017 Telephone: 213-217-5000 who represents the marketers in the lawsuit against IAC, and has also represented search marketers in class-actions against Google and Yahoo. Whether a class can be certified is key in these types of cases because individual marketers' damages from click fraud are usually too small to justify the expense of suing, unless they can proceed as a class. The two advertisers who brought the case, make-up services company Menagerie Productions and payroll company Redwolf, alleged that they were billed for clicks that were "invalid." They said that in some cases, Citysearch charged them for more than one click from the same IP address in a short period of time. They also alleged that IAC did not apply filters to screen out suspicious clicks. Menagerie alleged that it shelled out $1,900 in a three-month period for pay-per-click ads on Citysearch without receiving any new clients. Redwolf said it paid $700 over a five-month period and also didn't see any new business as a result of the ads. Mr. Kabateck said the case could go to trial next year, unless it settles. "Hopefully, Citysearch will make things right with their customers," he said. DISTRICT OF COLUMBIA: Settles Mass Arrest Case for $13.7 Million ---------------------------------------------------------------- Jordan Weissmann at The National Law Journal reports that the District of Columbia has agreed to pay $13.7 million to settle a class action suit brought by protesters arrested during a demonstration in 2000, lawyers in the case announced in court Monday. Lawyers for the protesters said it would be the largest amount ever paid in the U.S. to compensate protesters who were wrongfully arrested. The plaintiffs alleged that police officers detained nearly 700 people attending an April 15, 2000, march against "the prison industrial complex," which was timed to overlap with an IMF/World Bank meeting. Many of those arrested were tied up for long periods of time, they said. "It sends a message to every city and every law enforcement officer that there is going to be a steep price to pay for violating protesters' First Amendment rights," said Mara Verheyden-Hilliard of the Partnership for Civil Justice, which filed the suit in 2001. Ms. Verheyden-Hilliard said she believed that U.S. District Judge Paul Friedman's decision to set a trial date had pushed the District to settle. "Faced with the reality of trial and a potentially huge loss, the district was able to come to the table," she said. The case is the second major protester suit the District has settled in recent weeks. It agreed earlier this month to pay $450,000 to eight individuals who were allegedly interrogated by police during a 2002 demonstration related to the Iraq War. HASEKO HOMES: Complaint Alleged Hurricane Straps Don't Work ----------------------------------------------------------- Courthouse News Service reports that a class action in O'ahu Circuit Court claims these defendants' hurricane straps do not properly secure homes to the foundation: Haseko Homes, Haseko Construction, Ke Noho Kai Development, Spinnaker Place Development, Simpson Manufacturing Co., and Simpson Strong-Tie Co. A copy of the Complaint in Alvarez, et al. v. Haseko Homes, Inc., et al., Civil No. 09-1-2697-11 (Hawaii Cir. Ct., 1st Cir.), is available at: http://www.courthousenews.com/2009/11/19/Construct.pdf The Plaintiffs -- a long list of them -- are represented by: Melvin Y. Agena, Esq. LAW OFFICES OF MELVIN Y. AGENA 828 Fort Street Mall, Suite 320 Honolulu, HI 96813 Telephone: 808-536-6647 - and - Glenn K. Sato, Esq. LAW OFFICE OF GLENN K. SATO 888 Mililani St., PH 1 Honolulu, HI 96813 Telephone: 808-537-1625 LAURA HESS: Debt Settlement Scam Victims See Initial 25% Recovery ----------------------------------------------------------------- Julie Kay at the Daily Business Review reports that Victims of an alleged debt settlement scam run by a Coral Springs, Fla., law firm will get $13.6 million, or 25 percent of their losses. Broward Circuit Judge Ronald J. Rothschild approved the receiver's motion in Office of Attorney General v. Laura L. Hess, Esq., Laura Hess & Associates, P.A., Hess Kennedy Chartered LLDC, and The Consumer Law Center, LLC, Case No. 08-007686 08 (Fla. Cir. Ct., 17th J. Dist., Broward Cty.), covering claims against the Hess Kennedy firm and affiliated companies. On Friday, he ordered checks to be distributed to about 20,000 claimants by Dec. 31. "The attorney general's office and the receiver in this case were very diligent," Judge Rothschild said. After receiving numerous complaints, the Florida Attorney General Bill McCollum filed suit last year against Hess Kennedy, which had offices in Coral Springs, Orlando and New York, and related entities. The complaint alleged violations of the state Deceptive and Unfair Trade Practices Act and sought the appointment of a receiver. No criminal charges have been filed. Hess Kennedy marketed debt settlement and debt management services nationally, offering clients the option of paying a fraction of their debt if they agreed to pay attorney fees up front. The firm claimed to have deals with major credit card companies to get debt slashed 30 percent to 55 percent. Despite the firm's name, no attorney named Kennedy worked there. Unbenownst to clients, the attorney general's office claimed the firm never paid credit card debt as promised. Most were surprised to find they were being sued. The law firm was closed in October 2008, and lead lawyer Laura Hess was suspended by The Florida Bar for five years in January. Daniel Stermer of Development Specialists in Miami took on the job of receiver in July 2008, and Rene Harrod, Esq., a partner with Berger Singerman in Fort Lauderdale, served as receiver's counsel. The two were stunned to find more than 90,000 current and former clients. More than 20,000 wound up filing claims totaling more than $100 million. So far, Mr. Stermer has recovered $18 million in firm assets and is now going after $50 million in third-party claims. Those involve advertisers and marketers who allegedly received fees for client referrals. The pair filed more than a dozen lawsuits against these companies seeking million. Mr. Stermer persuaded three credit card companies -- Capital One, HSBC and Chase -- to forgive $150 million in credit card debt and erase negative information on consumer credit reports. The Hess Kennedy operation began to unravel after Chase came forward and sued the firm in March 2008. The lawsuit claimed Chase credit card customers were urged by the law firm to falsely claim nonexistent billing errors on monthly statements to avoid payment or have the debt erased. Judge Rothschild called the credit card company aspect of the settlement "a huge wrinkle" and said he had never heard of receivers accomplishing that. LUZERNE COUNTY: "Kids for Cash" Judges Win Partial Civil Immunity ----------------------------------------------------------------- Leo Strupczewski at The Legal Intelligencer reports that two former Luzerne County, Pa., judges who are facing federal criminal charges have been granted partial immunity in a civil suit brought by a class of juveniles who claim their rights were violated in the wake of the Luzerne County judicial scandal. Writing that judicial immunity does not operate on a "sliding scale," U.S. District Judge A. Richard Caputo has ruled, in Wallace, et al. v. Powell, et al., Case No. 09-cv-00286 (M.D. Pa.), that Michael T. Conahan and Mark A. Ciavarella, Jr., are protected by immunity from facing legal action for their courtroom acts. "The degree of corrupt behavior is not the touchstone of the immunity doctrine's application," Judge Caputo wrote. "The doctrine holds that judges with bad intentions, as well as those with good intentions, are immune from suit." The ruling is a blow to the juveniles. Messrs. Conahan and Ciavarella are facing a 48-count racketeering indictment for allegedly accepting $2.8 million from the builder and former co-owner of private juvenile detention facilities. Both federal investigators and attorneys for the juveniles have alleged those payments motivated the judges to send children to those facilities. While Judge Caputo's ruling does not put an end to the litigation, it does mean that Mr. Ciavarella will escape liability "for the vast majority of his conduct in this action," Judge Caputo said. Mr. Ciavarella, the juvenile delinquency court judge during the time frame noted in the suit, allowed more than half of the juveniles who appeared before him to do so without representation or a proper colloquy. He is the judge who sentenced the juveniles in the suit. Judge Caputo wrote that he recognized his decision was "against the popular will," but defended his ruling throughout his 26-page memorandum and order. The doctrine of judicial immunity, he wrote, is grounded in the notion that all judgments are final, judicial independence must be protected, sincere judges should be protected from continual legal action and the justice system is to be protected from falling into disrepute. Such notions have been around since the days of Lord Coke, the former chief justice of England, Judge Caputo wrote, and are "as valid today as they were four hundred years ago." "Subjecting judges to a determination of the existence of good faith on a case by case basis is not desirable," Judge Caputo wrote. "It would create chaos and undermine judicial independence. It would eliminate the finality of judgments and destroy public confidence in the judiciary. Every decision by every judge would be subject to attack (in court) on the basis that it was not an honest mistake." In reaching his decision, Judge Caputo cited four U.S. Supreme Court cases that have addressed judicial immunity in the past. The plaintiffs, led by the Philadelphia-based Juvenile Law Center, had argued from the beginning that neither Messrs. Conahan nor Ciavarella should be granted immunity because their acts were so far outside the norm. Mr. Ciavarella's corruption, the JLC argued, was so egregious that he was not acting as a judge while he was adjudicating juveniles delinquent and sentencing them. Judge Caputo rejected that argument, citing Forrester v. White, 484 U.S. 219, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988). In that case, the U.S. Supreme Court wrote that a judicial act "does not become less judicial by virtue of an allegation of malice or corruption of motive." Judge Caputo continued his analysis, writing that the U.S. Supreme Court's 1978 decision in Stump v. Sparkman held that the question concerning judicial immunity is not related to the intent of a judge or the extent of the judge's error. "The only question is objectively whether the alleged action is one that traditionally a judge would perform or that the parties expected would come from the judge in an official capacity," Judge Caputo wrote. Judge Caputo also wrote in his opinion that both Messrs. Conahan and Ciavarella still face liability -- just not as much as before. "For example, Mr. Conahan's signing of a 'Placement Agreement' would be an administrative, not judicial act," Mr. Caputo wrote. "Similarly, any acts in making budget requests to the Luzerne County commissioners would also be administrative or executive in nature. And the actions of Messrs. Conahan and Ciavarella in coercing probation officers to change their recommendations is outside the role of a judicial officer." Judge Caputo wrote that he recognized the "egregious nature" of the allegations, but continuously stressed that was not the true issue. "This is, however, about the rule of law," Judge Caputo wrote. "It is about the rule of law in the face of popular opinion which would seek a finding directly contrary to the result the rule of law dictates." Marsha Levick, chief counsel for the JLC, called Judge Caputo's decision that the judges remain exposed to civil liability for their out-of-court conduct an important victory for the plaintiffs and the community. "What is important to everybody is that the judges have not been dismissed from the lawsuit and we will have an opportunity to pursue our allegations against them and pursue our claims for damages," Ms. Levick said. Ms. Levick said the JLC recognized a risk that the court would grant immunity for the judges' courtroom conduct. It argued that the constitutional violations that occurred in Mr. Ciavarella's courtroom pushed the case outside the arena for judicial immunity in the United States. "We're talking about 6,000 violations over the course of five years," Ms. Levick said. Ms. Levick said the issue would be considered interlocutory for the plaintiffs and that the JLC's clients would not have an automatic right of appeal. Ms. Levick said the judges would have 30 days to appeal the decision. The court docket did not provide contact information for Messrs. Conahan or Ciavarella, both of whom are representing themselves pro se, Mr. Strupczewski reports. While the federal government's case against the former judges centers on their roles in allegedly taking money from attorney Robert Powell, the owner, and Robert Mericle, the builder, of a juvenile detention facility and the judges' alleged abuse of the rights of juveniles sentenced to PA Child Care, sources close to the investigation and inside Luzerne County say the scam some in the media have labeled "kids for cash" was just the tip of the iceberg and only the most blatant example of the corruption allegedly overseen by the two judges. The Legal Intelligencer has previously reported Ms. Conahan's ties to admitted felons, including reputed mob boss William "Billy" D'Elia. Multiple sources have said that Mr. Conahan and his father also had links to Joseph Scalleat and Michael "Hoppy" Carsia. According to a former member of the now-defunct Pennsylvania Crime Commission, Messrs. Scalleat and Carsia ran the mob in Hazleton, Pa., for years. The Legal Intelligencer has also previously reported that federal investigators are looking at allegations of case-fixing in Luzerne County, particularly UM/UIM arbitration cases, as well as criminal case-fixing. The Class Action Reporter provided coverage about H.T., et al. v. Ciavarella, et al., Case No. 09-cv-00357 (M.D. Pa.), on April 27, 2009. MARQUEE HOLDINGS: Appeal of Bateman Certification Ruling Pending ---------------------------------------------------------------- The plaintiff's appeal of the denial of his renewed motion for class certification in Bateman v. American Multi-Cinema, Inc., Case No. 07-cv-00171 (C.D. Calif.), which names Marquee Holdings, Inc., as a defendant, is pending. The lawsuit alleges violations of the Fair and Accurate Credit Transactions Act. FACTA provides in part that neither expiration dates nor more than the last five numbers of a credit or debit card may be printed on receipts given to customers. It imposes significant penalties upon violators where the violation is deemed to have been willful. Otherwise damages are limited to actual losses incurred by the card holder. The plaintiff is seeking an order certifying the case as a class action as well as statutory and punitive damages in an unspecified amount. On Oct. 31, 2007, the District Court denied the plaintiff's motion for class certification without prejudice pending the Ninth Circuit's decision in an appeal from a denial of certification in a similar FACTA case. The District Court stayed all proceedings in the case pending the outcome of the Ninth Circuit case. On June 3, 2008, the President of the United States of America signed the FACTA reform bill. The bill specifies that if a company printed the expiration date on credit card receipts, but otherwise complied with FACTA, it did not willfully violate the law. The legislation does not specifically address the situation where more than five digits of the credit card are printed on a receipt. The Ninth Circuit appeal was subsequently dismissed after the parties reached a settlement. On Oct. 24, 2008, the District Court denied plaintiff's renewed motion for class certification. Plaintiff has appealed this decision and the case is stayed pending this appeal. No further updates were reported in the company's Nov. 12, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Oct. 1, 2009. The suit is Michael Bateman v. Regal Cinemas Inc. et al., Case No. 07-cv-00052 (C.D. Calif.) (Feess, J.). Representing the plaintiffs are: Gregory N. Karasik, Esq. Ira Spiro, Esq. SPIRO MOSS BARNESS 11377 West Olympic Boulevard, 5th Floor Los Angeles, CA 90064 Phone: 310-235-2468 Representing the defendants is: David E. Novitski, Esq. THELEN REID BROWN RAYMANS AND STEINER 333 South Hope Street, Suite 2900 Los Angeles, CA 90071-3048 Phone: 213-576-8097 Fax: 213-576-8080 NEUROMETRIX INC: Motion to Dismiss Suit Remains Pending in Mass. ---------------------------------------------------------------- NeuroMetrix, Inc.'s to dismiss a consolidated putative securities class-action complaint remains pending in the U.S. District Court for the District of Massachusetts, according to the company's Nov. 12, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2009. On March 17, 2008, a putative securities class action complaint was against the company and certain of its current and former officers. On March 27, 2008, a related putative securities class action complaint was filed in the same court, against the same defendants. These two actions were subsequently consolidated, and the court appointed a lead plaintiff. On Nov. 10, 2008, a consolidated amended class action complaint was filed, which alleges, among other things, that between Oct. 27, 2005 and February 12, 2008, defendants violated the federal securities laws by allegedly making false and misleading statements and failing to disclose material information to the investing public. The plaintiffs are seeking unspecified damages. On Jan. 30, 2009, the company filed a motion to dismiss the consolidated amended complaint on the grounds, among others, that it failed to state a claim on which relief can be granted. In March 2009, the parties mutually agreed to participate in mediation to attempt to resolve the litigation, and the court entered an order staying the proceedings. The mediation did not resolve the litigation, and plaintiffs opposed defendants' motion to dismiss on July 20, 2009. The defendants filed their reply brief in further support of their motion to dismiss the amended complaint on July 31, 2009. NeuroMetrix, Inc. -- http://www.neurometrix.com/-- designs, develops and markets medical devices used to help physicians diagnose and treat diseases of the nervous system, such as neuropathies, which are disorders of the peripheral nerves and parts of the spine, and neurovascular disorders such as diabetic retinopathy. The company is also developing medical devices designed to be used to provide regional anesthesia and pain control. The company's focus has been on products that help physicians with the diagnosis or detection of neuropathies and neurovascular disorders. It has two product lines cleared by the United States Food and Drug Administration that are being marketed primarily to physicians and clinics: the NC-stat System for the assessment of neuropathies and the DigiScope for the detection of eye disorders such as diabetic retinopathy. O'REILLY AUTO PARTS: Accused of Shortchanging Customer Refunds -------------------------------------------------------------- Kelly Holleran at The Madison Record reports that a man has filed a putative class action lawsuit against an auto store, alleging the store refuses to reimburse customers the full amount of a product if taxes at the purchase store are higher than where the product is returned. Darin L. Pichee and the putative class will be represented by: Bradley M. Lakin, Esq. Robert W. Schmieder, II, Esq. Robert J. Evola, Esq. LAKINCHAPMAN 300 Evans Ave. PO Box 229 Wood River, IL 62095 Telephone: 618-208-4240 Mr. Pichee claims he purchased an ignition lock cylinder at an O'Reilly Auto Parts in Alton for $62.54 on Sept. 8. The cost of the cylinder consisted of $57.99 for the actual part and $4.55 for 7.85 percent in sales tax. On Sept. 9, Mr. Pichee returned the cylinder with his receipt to the O'Reilly Godfrey store. There, however, Mr. Pichee only received $61.96 back, according to the complaint filed Nov. 13 in Madison County Circuit Court. "Upon information and belief O'Reilly returned the lesser amount because the applicable tax rate at the Godfrey, Illinois store in 6.85%," the complaint in Pichee v. O'Reilly Auto Parts, Case No. 09-L-1224 (Ill. Cir. Ct., Madison Cty.), states. Mr. Pichee claims O'Reilly consistently fails to refund its customers the total cost of their products. "While O'Reilly promises a refund of all amounts paid by the purchaser if merchandise is returned to it within the prescribed time period, it does not do so if the item is returned to an O'Reilly location where the applicable sales tax rate is lower than the rate applicable at the location where the item originally was purchased," the complaint says. "Rather than return the entire amount paid by the purchaser as promised, O'Reilly returns only what it categorizes as the cost of the item and an amount equal to the sales tax at the store where the item is returned." However, if the opposite occurs and a customer returns an item at a store with a higher sales tax than where the product was originally purchased, O'Reilly adjusts the amount to ensure it does not return more money to the customer than what was paid for the item, according to the complaint. Mr. Pichee is asking the court to certify the complaint as a class action lawsuit and is seeking actual damages, plus attorneys' fees, costs, pre- and post-judgment interest and other relief the court deems just. PFIZER INC: Pa. Super. Ct. Mulls Neurontin Class Decertification ---------------------------------------------------------------- Gina Passarella at The Legal Intelligencer reports that a class can't be decertified unless there are substantial changes to the facts of a case, nor can it be decertified once a partial ruling has been made as to the merits of the case, an attorney for a class suing over the off-label marketing of epilepsy and neuralgia drug Neurontin argued before the Pennsylvania Superior Court in Philadelphia. The attorney for the Plaintiffs: John K. Weston, Esq. SACKS & WESTON 114 Old York Rd Jenkintown, PA 19046-3233 Telephone: (215) 925-8200 argued that Philadelphia Common Pleas Court Judge Mark I. Bernstein improperly decertified the class in February -- a month before trial -- in Clark, et al. v. Pfizer Inc., et al., No. 1819 (Pa. Common Pleas Ct., Philadelphia Cty.). Pfizer is represented by: Robert C. Heim, Esq. Judy Leone, Esq. DECHERT LLP Cira Centre 2929 Arch Street Philadelphia, PA 19104-2808 Telephone: (215) 994-4000 Pfizer's lawyers argued that the courts have to make class certification decisions early in a case and can always decertify later. Mr. Heim said certifications are made on the presumption that injury could be shown on a class-wide basis, but said class counsel conceded that if Neurontin worked for particular class members, then there was no injury. Ms. Passarella's full report is available at http://is.gd/52ykI REDBOX AUTOMATED: Lawyers Launch Web Site to Solicit Claimants -------------------------------------------------------------- Susanne Ault at Video Business reports that lawyers behind the late-fee class-action lawsuit against Redbox have launched a Web site at http://www.RedboxLateFees.com/to locate additional plaintiffs and offer education about the case. Piechur v. Redbox Automated Retail, LLC, Case No. 09-L-0562 (Ill. Cit. Ct., 20th J. Dist., St. Clair Cty.), alleges that Redbox unfairly dings customers $1 for every day past the paid one-night rental that the DVD is not returned to machines. It notes that Redbox touts a "No Late Fees" policy. In particular, the suit cries foul that the $25 charged for titles kept more than 24 days is more than triple Redbox's used-DVD sales price and amounts to unfair business practices. RETALIX LTD: Shareholder Agrees to Dismiss E.D. Tex. Lawsuit ------------------------------------------------------------ Retalix(R) Ltd. (Nasdaq:RTLX) disclosed that the plaintiff in the purported shareholder class action lawsuit that was filed last month in the United States District Court for the Eastern District of Texas, Sherman Division, against Retalix, its directors and a subsidiary of Retalix in connection with the strategic financing transaction signed by Retalix on September 3, 2009, has agreed to dismiss the case without prejudice and not to file a lawsuit relating to the transaction in any U.S. federal or state court. Retalix has agreed not to seek the recovery of costs, fees or sanctions from plaintiff or her attorneys in connection with the case but has not agreed to pay any consideration in connection with the case or its dismissal. The dismissal remains subject to court approval, which has not yet occurred. Retalix -- http://www.retalix.com/-- is an independent provider of software solutions to retailers and distributors worldwide. With over 40,000 sites installed across more than 50 countries, Retalix solutions serve the needs of grocery chains, convenience and fuel retailers, food and consumer goods distributors and independent grocers. The Company offers a portfolio of software applications that automate and synchronize essential retail and supply chain operations, encompassing stores, headquarters and warehouses. Retalix develops and supports its software through 1,300 employees in its various subsidiaries and offices worldwide. The Company's International headquarters are located in Ra'anana, Israel, and its American headquarters are located in Dallas, Texas. Coverage of the filing of Tamar v. Retaliz Ltd., et al., Case No. 09-cv-00511 (E.D. Tex.) (Schell, J.), appeared in the Class Action Reporter on Oct. 16, 2009. Retalix is represented by: Yuval M. Rogson, Esq. Bruce Vanyo, Esq. Richard H. Zelichov, Esq. KATTEN MUCHIN ROSENMAN LLP 2029 Century Park East, #2600 Los Angeles, CA 90067 Telephone: 310-788-4613 - and - James Bachman Greer, Esq. Kenneth Craig Johnston, Esq. KANE RUSSELL COLEMAN & LOGAN 1601 Elm St., Suite 3700 Dallas, TX 75201 Telephone: 214-777-4252 RONCO ACQUISITION: Accused in N.J. Suit of Inflated Shipping Fees ----------------------------------------------------------------- Courthouse News Service reports that Ronco inflated the shipping costs of a supposedly free knife set, and Urban Nutrition does the same thing with a face cream, two class actions claim in Bergen County Court, Hackensack. A copy of the Complaint in Hoffman v. Ronco Acquisition Corp., Docket No. BER-L-9787-09 (N.J. Super. Ct., Bergen Cty.), is available at: http://www.courthousenews.com/2009/11/19/CCARonco.pdf Harold M. Hoffman, Esq., is a member of the New Jersey Bar and represents himself in this action. SELECT COMFORT: Continues to Defend vs. Product Liability Suit -------------------------------------------------------------- Select Comfort Corp. continues to defend a second amended complaint alleging that its products had a unique propensity to develop mold, according to the company's Nov. 12, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Oct. 3, 2009 On April 25, 2008, a lawsuit was filed against one of the company's subsidiaries in Superior Court in Santa Clara County, California by one of its customers. The complaint asserted various claims related to products liability, breach of warranty, concealment, intentional misrepresentation and negligent misrepresentation and sought class certification. The complaint alleged that products sold by the company prior to 2006 had a unique propensity to develop mold, alleged that the plaintiff suffered adverse health effects, and sought various forms of legal and equitable relief, including without limitation unspecified damages, punitive and exemplary damages, attorneys' fees and costs, and injunctive relief. The company removed the case to the U.S. District Court for the Northern District of California. On Sept. 30, 2008, the Court granted the company's motion to dismiss and strike the purported class action claims, and allowed the plaintiff leave to amend the complaint. On Oct. 30, 2008, the plaintiff filed a first amended complaint alleging facts similar to those asserted in the initial complaint and asserting additional claims, including antitrust and RICO claims. On June 5, 2009, the Court granted the company's motion to dismiss and strike the purported class action claims of the first amended complaint, and allowed the plaintiff leave to amend the complaint with respect to certain of the alleged claims. On July 6, 2009, the plaintiff filed a second amended complaint alleging facts similar to those asserted in the initial complaint limiting the purported class to California and Florida residents, and asserting claims related to negligence, product liability, breach of warranty under federal and state statutes and unfair competition under state statutes. Select Comfort Corp. -- http://www.selectcomfort.com/-- is engaged primarily in developing, manufacturing, marketing and distributing adjustable-firmness beds and other sleep-related accessory products. The air-chamber technology of the company's Sleep Number bed allows adjustable firmness on each side of the mattress. In addition, Select Comfort markets and sells accessories and other sleep related products, which focus on providing personalized comfort to complement the Sleep Number bed and provide a better night's sleep to the consumer. As of Jan. 3, 2009, the company operated 471 company-owned stores in the United States. SIRIUS XM: S.D.N.Y. Suit Complains About Deceptive $2 Admin Fee --------------------------------------------------------------- Courthouse News Service reports that Sirius XM Satellite Radio unjustly enriches itself by charging subscribers a deceptive $2 "administrative fee" for paying by credit card, a class action claims in Manhattan Federal Court. The case is Kaufman v. Sirius XM Satellite Radio, Inc., Case No. 09-cv-09590 (S.D.N.Y.) (Marrero, J.). The Plaintiff is represented by: Michael D. Campbell, Esq. CAMPBELL & ASSOCIATES 523 East Central Avenue Winter Haven, FL 33880 Telephone: (863) 292-9929 - and - Valentina M. Tejera, Esq. MASE, LARA & EVERSOLE, P.A. 80 S.W. 8th Street, Suite 2700 Miami, FL 33130 Telephone: (305) 377-3770 SONY ELECTRONICS: Calif. Suit Says VAIO Touchpads are Defective --------------------------------------------------------------- Courthouse News Service reports that Sony's VAIO notebook computers have defective touchpads that make the cursor move in the opposite direction, freeze, and to open and close windows at random, a class action claims in San Diego Federal Court. A copy of the Complaint in Nation v. Sony Electronics, Inc., Case No. 09-cv-02603 (S.D. Calif.), is available at: http://www.courthousenews.com/2009/11/19/SonyVAIO.pdf The Plaintiff is represented by: Helen I. Zeldes, Esq. Arleen Haeggquist, Esq. Aaron M. Olsen, Esq. ZELDES & HAEGGQUIST, LLP 625 Broadway, Suite 906 San Diego, CA 92101 Telephone: 619-342-8000 STORK CRAFT: Recalls 2.1 Million Drop-Side Cribs ------------------------------------------------ The U.S. Consumer Product Safety Commission (CPSC), in cooperation with Stork Craft Manufacturing Inc., of British Columbia, Canada, announced the voluntary recall of more than 2.1 million Stork Craft drop-side cribs, including about 147,000 Stork Craft drop-side cribs with the Fisher-Price logo. The recall involves approximately 1,213,000 units distributed in the United States and 968,000 units distributed in Canada. CPSC urges parents and caregivers to immediately stop using the recalled cribs, wait for the free repair kit, and do not attempt to fix the cribs without the kit. They should find an alternative, safe sleeping environment for their baby. Consumers should contact Stork Craft to receive a free repair kit that converts the drop-side on these cribs to a fixed side. The cribs' drop-side plastic hardware can break, deform, or parts can become missing. In addition, the drop-side can be installed upside-down, which can result in broken or disengaged plastic parts. All of these problems can cause the drop-side to detach in one or more corners. When the drop-side detaches, it creates space between the drop-side and the crib mattress. The bodies of infants and toddlers can become entrapped in the space, which can lead to suffocation. Complete detachment of drop-sides can lead to falls from the crib. CPSC, Health Canada, and Stork Craft are aware of 110 incidents of drop-side detachment; 67 incidents occurred in the United States and 43 in Canada. The incidents include 15 entrapments; 12 in the U.S. and three in Canada. Four of the entrapments resulted in suffocation: a 7-month-old in Gouverneur, N.Y.; a 7-month-old in New Iberia, La.; a 6-month-old in Summersville, W.Va.; and a 9-month-old in Bronx, N.Y. Included in these incidents are 20 falls from cribs; 12 in the U.S. and eight in Canada. Fall injuries ranged from concussion to bumps and bruises. The cribs involved in these incidents had plastic drop-side hardware that had broken, missing, or deformed claws, connectors, tracks, or flexible tab stops; loose or missing metal spring clips; stripped screws; and/or drop-sides installed upside-down. This recall involves Stork Craft drop-side cribs and Stork Craft drop-side cribs with the Fisher-Price logo. This recall does not involve any cribs that do not have a drop-side. This recall does not involve any cribs with metal rod drop-side hardware. It involves only those cribs with plastic trigger and one-hand- system drop-side hardware. This recall includes Stork Craft cribs with manufacturing and distribution dates between January 1993 and October 2009. This recall also includes Stork Craft cribs with the Fisher-Price logo that have manufacturing dates between October 1997 and December 2004. The Stork Craft cribs with the Fisher-Price logo were first sold in the U.S. in July 1998 and in Canada in September 1998. The cribs were sold in various styles and finishes. The manufacture date, model number, crib name, country of origin, and the firm's name, address, and contact information are located on the assembly instruction sheet attached to the mattress support board. The firm's insignia "storkcraft baby" or "storkling" is inscribed on the drop-side teething rail of some cribs. In Stork Craft cribs that contain the "Fisher-Price" logo, this logo can be found on the crib's teething rail, in the manufacturer's instructions, on the assembly instruction sheet attached to the mattress support board, and on the end panels of the Twinkle- Twinkle and Crystal crib models. Pictures of the recalled products are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml10/10046.html Major retailers in the United States and Canada sold the recalled cribs including BJ's Wholesale Club, J.C. Penney, Kmart, Meijer, Sears, USA Baby, and Wal-Mart stores and online at Amazon.com, Babiesrus.com, Costco.com, Target.com, and Walmart.com from January 1993 through October 2009 for between $100 and $400. The cribs were manufactured in Canada, China and Indonesia. For additional information, contact Stork Craft toll-free at (877) 274-0277 anytime to order the free repair kit, or log on to http://www.storkcraft.com/ SUNAIR CORP: Shareholders Want More Money in Massey Transaction ---------------------------------------------------------------- Courthouse News Service reports that Sunair Corp. sold itself too cheaply to Massey Services and Buyer Acquisition Co., for $2.75 a share or $54 million, shareholders say in Miami Federal Court. A copy of the Complaint in Fleisher v. Rochon, et al., Case No. 09-cv-82315 (S.D. Fla.), is available at: http://www.courthousenews.com/2009/11/19/SCASunair.pdf The Plaintiff is represented by: Chris A. Barker, Esq. BARKER, RODEMS & COOK, P.A. 400 North Ashley Drive, Suite 2100 Tampa, FL 33602 Telephone: 813-489-1001 - and - Seth D. Rigrodsky, Esq. Brian D. Long, Esq. Timothy J. MacFall, Esq. RIGRODSKY & LONG, P.A. 919 North Market Street, Suite 980 Wilmington, DE 19801 Telephone: 302-295-5310 - and - Aaron Brody, Esq. STULL, STULL & BRODY 6 East 45th Street New York, NY 10017 Telephone: 212-687-7230 - and - Joseph H. Weiss, Esq. WEISS & LURIE 551 Fifth Avenue New York, NY 10176 Telephone: 212-682-3025 TRAILER BRIDGE: Wants Amended Class Action Complaint Dismissed -------------------------------------------------------------- Trailer Bridge, Inc., filed a motion to dismiss an amended class action complaint in a multi-district litigation proceeding, according to the company's Nov. 12, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2009. On April 17, 2008, the company received a subpoena from the Antitrust Division of the U.S. Department of Justice seeking documents and information relating to a criminal grand jury investigation of alleged anti-competitive conduct by Puerto Rico ocean carriers. Company representatives have met with United States Justice Department attorneys and pledged the company's full and complete cooperation with the DOJ investigation. The company has made document submissions to the DOJ in response to the subpoena, and its attorneys are in the process of reviewing documents for additional submissions. Following publicity about the DOJ investigation, beginning on April 22, 2008, shippers in the Puerto Rico trade lane, and in one case indirect consumer purchasers within Puerto Rico, have filed at least 41 purported class actions against domestic ocean carriers, including Horizon Lines, Sea Star Lines, Crowley and the company. The actions allege that the defendants inflated prices in violation of federal antitrust laws and seek treble damages, attorneys' fees and injunctive relief. The actions, which were filed in the U.S. District Court for the Southern District of Florida, the U.S. District Court for the Middle District of Florida, and the U.S. District Court for the District of Puerto Rico, were consolidated into a single multi- district litigation proceeding (MDL 1960) in the District of Puerto Rico for pretrial purposes. On Oct. 21, 2009, in connection with this consolidated proceeding, the Plaintiffs' lead counsel filed an amended class action complaint under seal. The company filed a motion to dismiss that complaint with the court on Nov. 4, 2009. In June 2009, Horizon Lines and its related companies entered into a settlement agreement with certain named direct purchaser plaintiffs on behalf of a purported class of claimants in the MDL 1960 proceeding, while denying any liability for the underlying claims. The settlement agreement is subject to Court approval and is subject to various objections. On Oct. 20, 2009, the Court heard arguments related to the approval of the settlement and now has the matter under advisement and is scheduled to conduct an additional hearing on this matter on Nov. 12, 2009. It is not clear what, if any, impact the settlement agreement will have on further prosecution of the MDL 1960. The company is not a party to the Horizon Lines settlement. On Oct. 9, 2009, the company received a Request for Information and Production of Documents from the Puerto Rico Office of Monopolistic Affairs. The request relates to an investigation into possible price fixing and unfair competition in the Puerto Rico domestic ocean shipping business. The company has indicated to the Puerto Rican authorities that it will cooperate fully with this investigation. Trailer Bridge, Inc. -- http://www.trailerbridge.com/-- is a trucking and marine transportation company with contract and common carrier authority. Highway transportation services are offered in the continental U.S., while marine transportation is offered between Jacksonville, Florida, San Juan, Puerto Rico and Puerto Plata, Dominican Republic. UNITED STATES: Telephone Tax Suit Survives Motion to Dismiss ------------------------------------------------------------ Dealing another major setback to the IRS in the ongoing litigation over how it handled a massive $8 billion refund for a now-abandoned telephone excise tax, Shannon P. Duffy at The Legal Intelligencer reports, a federal judge in Harrisburg, Pa., has refused to dismiss a nationwide class action suit that says the agency's public notices about the availability of the refund violated due process. The ruling in Swisher v. United States, Case No. 09-cv-00047 (M.D. Pa.), by the Honorable John E. Jones III comes on the heels of a scathing decision in August from a federal appeals court in Washington, D.C., that revived a batch of similar suits alleging that the IRS' handling of the refund program violated the Administrative Procedures Act. Both rulings are victories for the attorneys serving as lead counsel in the Pennsylvania case and on the executive committee for the class of plaintiffs in the Washington, D.C., case: Benjamin F. Johns, Esq. Nicholas E. Chimicles, Esq. Morris M. Shuster, Esq. CHIMICLES & TIKELLIS LLP One Haverford Centre 361 West Lancaster Ave Haverford, PA 19041 Telephone: 610-642-8500 The Intelligencer's full report is at http://is.gd/52xu6 URS CORP: Unit Continues to Defend Suit on Industrial Canal Work ---------------------------------------------------------------- Washington Group International, Inc., a wholly owned subsidiary of URS Corp., continues to defend class action lawsuits resulting from work done on the east bank of the Inner Harbor Navigation Canal in New Orleans, Louisiana, according to URS' Nov. 12, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Oct. 2, 2009. From July 1999 through May 2005, WGI, an Ohio company acquired by the company on Nov. 15, 2007, performed demolition, site preparation, and environmental remediation services for the U.S. Army Corps of Engineers on the east bank of the Inner Harbor Navigation Canal (the "Industrial Canal") in New Orleans, Louisiana. On Aug. 29, 2005, Hurricane Katrina devastated New Orleans. The storm surge created by the hurricane overtopped the Industrial Canal levee and floodwall, flooding the Lower Ninth Ward and other parts of the city. Since September 2005, 59 personal injury, property damage and class action lawsuits have been filed in Louisiana State and federal court naming WGI Ohio as a defendant. Other defendants include the U.S. Army Corps of Engineers, the Board for the Orleans Parish Levee District, and its insurer, St. Paul Fire and Marine Insurance Company. Over 1,450 hurricane-related cases, including the WGI Ohio cases, have been consolidated in the U.S. District Court for the Eastern District of Louisiana. The plaintiffs claim that defendants were negligent in their design, construction and/or maintenance of the New Orleans levees. The plaintiffs are all residents and property owners who claim to have incurred damages arising out of the breach and failure of the hurricane protection levees and floodwalls in the wake of Hurricane Katrina. The allegation against the company is that the work performed adjacent to the Industrial Canal damaged the levee and floodwall and caused and/or contributed to breaches and flooding. The plaintiffs allege damages of $200 billion and demand attorneys' fees and costs. WGI Ohio did not design, construct, repair or maintain any of the levees or the floodwalls that failed during or after Hurricane Katrina. WGI Ohio performed the work adjacent to the Industrial Canal as a contractor for the federal government and has pursued dismissal from the lawsuits on a motion for summary judgment on the basis that government contractors are immune from liability. On Dec. 15, 2008, the District Court granted WGI Ohio's motion for summary judgment to dismiss the lawsuit on the basis that the company's performed the work adjacent to the Industrial Canal as a contractor for the federal government and are therefore immune from liability, which was appealed by a number of the plaintiffs on April 27, 2009 to the United States Fifth Circuit Court of Appeals. URS Corporation -- http://www.urscorp.com/-- is a provider of engineering, construction and technical services. The company offers a range of program management, planning, design, engineering, construction and construction management, operations and maintenance, and decommissioning and closure services to public agencies and private sector clients worldwide. The company is focused on four market sectors: power, infrastructure, federal, and industrial and commercial. It has three divisions: the URS Division, the EG&G Division and the Washington Division. Through its network of offices across the United States and in more than 30 countries, the company provides services to a range of domestic and international clients, including the United States federal government agencies, national governments of other countries, and state and local government agencies both in the United States and in international locations. In August 2008, it acquired LopezGarcia Group, Inc. and most of the assets of Tryck Nyman Hayes, Inc. VCG HOLDING: Continues to Defend Zajkowski Suit in Minnesota ------------------------------------------------------------ VCG Holding Corp. continues to defend a purported class action filed by a former employee of its subsidiary, according to the company's Nov. 12, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2009. In December 2007, a former employee of VCG's subsidiary Classic Affairs, Eric Zajkowski, filed a lawsuit in Hennepin County District Court, Minneapolis, Minnesota against VCG following his termination from employment alleging that, in connection with his employment, he was subject to certain employment practices which violated Minnesota law. The initial action and subsequent pleading asserted that the matter was filed as a purported class action. Subsequent to the filing of Zajkowski's Complaint, Zajkowski moved to amend his Complaint to name additional Plaintiffs and later, to name Classic Affairs as a party defendant. VCG and Classic Affairs have answered this complaint denying all liability. Classic Affairs has also filed a Counter-Complaint against Mr. Zajkowski based upon matters relating to his termination from employment with Classic Affairs. In December 2008 and early January 2009, the parties filed cross- motions for Summary Judgment and Zajkowski filed a Motion for Class Certification. Following the motions, the Court issued a series of rulings on those Motions. In these rulings, the Court has dismissed VCG as a party Defendant - having determined that VCG is not directly liable to Zajkowski or the other Plaintiffs on their claims. The Court granted Summary Judgment to Zajkowski as to one issue, but did not determine the scope or extent, if any, of the alleged damages, ruling this issue, like the others, are questions for a jury, and the Court dismissed two other claims asserted by Zajkowski. In all other respects, the Court has denied the parties respective Summary Judgment motions. On July 21, 2009, the Court denied Zajkowski's and the other Plaintiffs' Motion for Class Certification. Zajkowski appealed that decision to the Minnesota Court of Appeals and on Sept. 22, 2009, the Court of Appeals denied Plaintiffs request for discretionary review. Plaintiffs have indicated that they do not intend to seek leave to appeal from the Minnesota Supreme Court. The parties have scheduled mediation for November 2009 and if mediation is unable to settle this case, trial is scheduled to begin in late January 2010. VCG Holding Corp. -- http://www.vcgh.com/-- is in the business of acquiring, owning and operating nightclubs, which provide live adult entertainment, restaurant and beverage services. As of Dec. 31, 2008, the company, through its subsidiaries, owns and operates 20 nightclubs in Indiana, Illinois, Colorado, Texas, North Carolina, Minnesota, Kentucky, Maine, Florida and California. The company operates under the brand names, Diamond Cabaret, PT's, Jaguar's Gold Club, Penthouse, Pet of the Month, Pet of the Year, Three Key Logo and One-Key Logo. The company owns International Entertainment Consultants, Inc. (IEC), which provides management services to its nightclubs. During the year ended Dec. 31, 2008, the company acquired Jaguar's Gold Club and Imperial Showgirls Gentlemen's Club. Its subsidiaries include PT's Showclub, Diamond Cabaret, The Penthouse Club, Schiek's Palace Royale, The Men's Club and LaBoheme Gentlemen's Club. VERTRO INC: Decision on Magistrate Judge's Report Still Pending --------------------------------------------------------------- The issue of whether to adopt the magistrate judge's report and recommendation in a lawsuit against Vertro, Inc., remains pending in the U.S. District Court for the Middle District of Florida, according to the company's Nov. 12, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2009. Beginning on May 6, 2005, five putative securities fraud class action lawsuits were filed against the company and certain of its former officers and directors in the U.S. District Court for the Middle District of Florida. The complaints allege that the company and the individual defendants violated Section 10(b) of the Securities Exchange Act of 1934 and that the individual defendants also violated Section 20(a) of the Act as "control persons" of Vertro. Plaintiffs purport to bring these claims on behalf of a class of the company's investors who purchased its stock between Sept. 3, 2003 and May 4, 2005. Plaintiffs allege generally that, during the putative class period, the company made certain misleading statements and omitted material information. Plaintiffs seek unspecified damages and other relief. On July 27, 2005, the Court consolidated all of the outstanding lawsuits under the case style In re MIVA, Inc. (now known as Vertro) Securities Litigation, selected lead plaintiff and lead counsel for the consolidated cases, and granted Plaintiffs leave to file a consolidated amended complaint, which was filed on Aug. 16, 2005. The company and the other defendants moved to dismiss the complaint on Sept. 8, 2005. On Dec. 28, 2005, the Court granted Defendants' motion to dismiss. The Court granted Plaintiffs leave to submit a further amended complaint, which was filed on Jan. 17, 2006. On Feb. 9, 2006, Defendants filed a renewed motion to dismiss. On March 15, 2007, the Court granted in large part Defendants' motion to dismiss. On March 29, 2007, Defendants filed a motion for amendment to the March 15, 2007, order to include certification for interlocutory appeal or, in the alternative, for reconsideration of the motion to dismiss. On July 17, 2007, the Court: (1) denied the motion for amendment to the March 15, 2007, order to include certification for interlocutory appeal and (2) granted the motion for reconsideration as to the issue of whether Plaintiffs pled a strong inference of scienter in light of intervening precedent. The Court requested additional briefing on the scienter issue, and on Feb. 15, 2008, entered an Order dismissing one of the individual defendants from the lawsuit and limiting the claims that could be brought against another individual defendant. In addition, Plaintiffs previously had moved the Court to certify a putative class of investors, and Defendants had filed briefs in opposition thereto. On March 12, 2008, the Court entered an Order certifying a class of those investors who purchased the company's common stock from Feb. 23, 2005, to May 4, 2005. The Court also dismissed two of the proposed class representatives for lack of standing. Plaintiffs have served discovery requests on Defendants, and the discovery phase of the lawsuit has been ongoing. Defendants filed a motion for summary judgment on March 2, 2009, and, on April 10, 2009, the Court entered an order staying discovery pending the resolution of that motion. On Aug. 25, 2009, the magistrate judge issued a report recommending that Defendants' motion for summary judgment be granted. Vertro, Inc., formerly MIVA, Inc. -- http://www.miva.com/-- is an Internet company that owns and operates the ALOT product portfolio. The company operated its range of products and services through two divisions: MIVA Direct and MIVA Media as of December 31, 2008. MIVA Direct offers home page, desktop application and Internet browser toolbar products under the ALOT brand. The ALOT Home Page, ALOT Desktop and ALOT Toolbar are designed to make the Internet easy for consumers by providing direct access to affinity content and search results. The products generate approximately two million Internet searches per day. MIVA Media connected buyers and sellers online by displaying advertisements in response to consumer search or browsing activity on select Internet properties. Prior to the MIVA Media Sale, MIVA Media was an auction based pay-per-click advertising network that was operated across North America and in Europe. On March 12, 2009, Adknowledge, Inc. acquired MIVA Media, the media division of the company. New Securities Fraud Cases CARTER'S INC: Finkelstein Files Shareholder Suit in N.D. Ga. ------------------------------------------------------------ Finkelstein Thompson LLP filed a class action complaint in the United States District Court for the Northern District of Georgia on behalf of purchasers of the securities of Carter's, Inc. (NYSE:CRI) between April 27, 2004, and November 10, 2009, inclusive. At present, this is the first and only currently pending class action of its type against Carter's. Finkelstein Thompson welcomes inquiries from institutions or individuals interested in acting as "lead plaintiff" in this litigation. A lead plaintiff is a representative party that acts on behalf of other class members in directing the litigation. The deadline for moving for such appointment is January 19, 2010. If you are interested in acting as lead plaintiff, or if you have any other questions about the litigation, please contact: Donald J. Enright, Esq. FINKELSTEIN THOMPSON LLP 1050 30th St. NW Washington, DC, 20007 Telephone: (877) 337-1050 E-mail: contact@finkelsteinthompson.com The complaint in Mylroie v. Carter's, Inc., et al., Case No. 09- cv-03196 (N.D. Ga.) (Forrester, J.), charges Carter's and certain of its officers and directors with violating the Securities Exchange Act of 1934 in issuing materially false and misleading statements regarding the Company's financial results and compliance with Generally Accepted Accounting Principles. Specifically, the complaint alleges that the Company improperly reported margin support payments to major wholesale customers in incorrect periods, which resulted in artificially inflated prices during the Class Period for Carter's shares. When Carter's revealed this would require it to restate four years of earnings, Carter's shares plunged in value. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Frederick, Maryland USA. Gracele D. Canilao, Leah Felisilda and Peter A. Chapman, Editors. Copyright 2009. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. 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