/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/091221.mbx C L A S S A C T I O N R E P O R T E R Monday, December 21, 2009, Vol. 11, No. 251 Headlines AT&T CORP: Two Overtime Suits Filed on Behalf of 5,000 Employees BARNES & NOBLE: Class Certification Hearing Set for January 20 BARNES & NOBLE: Unit Faces "Minor" Complaint Over Wage Payments CHICO'S FAS: Court Denies Class Certification in "Haefner" Suit DOLLAR GENERAL: Continues to Defend "Richter" Suit in Alabama DOLLAR GENERAL: Continues to Defend FLSA Violations Suit in N.Y. DOLLAR GENERAL: Still Defending Former Manager's Suit in Alabama DOLLAR GENERAL: "Cox" Suit over Pregnancy Discrimination Pending DYNAMEX INC: San Bernardino Plaintiffs Added to Los Angeles Suit ETERNIT: Asbestos-Related Class Action Suit Begins in Italy GE HEALTHCARE: Sued in Ala. Over High-Radiation CT Scanners GENESCO INC: Awaits Final Approval of Customer E-mail Settlement GENESCO INC: Settlement of "Jacobs" Labor Suit Pending Approval HERLEY INDUSTRIES: Continues to Defend Securities Violation Suit HOME DEPOT: Recalls 2,000 Model HB-50 Hampton Bay Dehumidifiers JASON EVANS: Recalls 18,300 Boys Hooded Sweatshirts LEBANON RACEWAY: Stan Chesley Preparing Suit After Dec. 5 Fire OKK TRADING: Recalls 22,000 "Action Team" Toy Dart Gun Sets PRECIOUS MOMENTS: Recalls 4,300 Angel Tree Toppers SMITH & WESSON: Trial in Consolidated Suit Set for February 7 TIMBERLAND CO: Recalls 21,000 Lead-Contaminated Children's Boots TODSON INC: Recalls 24,000 CO2 Bicycle Tire Inflators ULTA SALON: Court Approves Settlement in Consolidated Suit ULTA SALON: Continues to Face FLSA Violations Suit in California VCG HOLDING: Discloses Filing of Lawsuit to Block Buy-Out Offer ********* AT&T CORP: Two Overtime Suits Filed on Behalf of 5,000 Employees ---------------------------------------------------------------- Local Tech Wire reports that attorneys representing more than 5,000 current and former AT&T (NYSE: T) workers have filed two class action lawsuits against the communications giant, alleging that the employees were not paid overtime. The suits are seeking $1 billion. Affected workers were titled as "first-level managers" but had minimal supervisory roles, the suits say. Attorneys say the employees were classified as managers by AT&T in 2007 after it acquired BellSouth in order to avoid paying overtime. "If you call somebody a duck and it doesn't quack, it doesn't swim and it doesn't have wings, it ain't a duck," one of the attorneys in the case told Reuters. He added that BellSouth used to pay the same workers overtime until a policy change in 2007. Added Jeremy Heisler, the lead counsel in the case: "AT&T is in disconnect mode when it comes to its so-called managers. The company knows all too well that its 'Managers' have that title in name only, and lack the typical managerial responsibilities you associate with a manager. "In fact, until the takeover by AT&T two years ago, BellSouth used to pay all its First Levels overtime," he added in a statement. "What changed? Nothing but the Company's desire to squeeze earned wages out of its employees' paychecks." The suits were filed in federal court in Atlanta and San Francisco. Lawyers in the case won court approval in November to represent other AT&T workers as a class action suit in New England. "The two class actions seek unpaid overtime wages for First Levels who worked for PacBell in California, BellSouth's 9-state region in Florida, Georgia, Mississippi, Tennessee, North Carolina, Alabama, Louisiana, South Carolina and Kentucky, and nearly every other state in the union where the phone giant does business," the law firms involved in the case said in a press release. "The suits allege that AT&T violated the Federal Fair Labor Standards Act (FLSA) and California state laws by carrying out a company-wide policy to wrongfully misclassify thousands of its Level One Managers as exempt from overtime wages." A copy of the Collective Action Complaint filed in Lawson, et al. v. BellSouth Telecommunnications, Inc., dba AT&T Southeast, etc., Case No. 09-cv-_____ (N.D. Ga.), is available at http://is.gd/5rmpeand the Plaintiffs are represented by: Edward D. Buckley, Esq. BUCKLEY & KLEIN, LLP Atlantic Center Plaza, Suite 1100 1180 West Peachtree Street Atlanta, GA 30309 Telephone: (404) 781-1100 - and - Steven L. Wittels, Esq. Jeremy Heisler, Esq. David W. Sanford, Esq. SANFORD WITTELS & HEISLER, LLP 1350 Avenue of the Americas, 31st Floor New York, NY 10019 Telephone: (646) 723-2947 - and - Edmond Clark, Esq. LAW OFFICE OF EDMOND CLARK 83 Scotland Avenue Madison, CT 06443-2501 Telephone: (203) 245-4602 A copy of the Class and Collective Action Complaint filed in Luque, et al. v. AT&T Corp., Pacific Bell Telephone Co., etc., Case No. 09-cv-_____ (N.D. Calif.), is available at http://amlawdaily.typepad.com/ATTwageCalif.docand the Plaintiffs are represented by: Thomas Marc Litton, Esq. SANFORD WITTELS & HEISLER, LLP 555 Montgomery Street, Suite 820 San Francisco, CA 94111 Telephone: (415) 421-4774 - and - Steven L. Wittels, Esq. David W. Sanford, Esq. Andrew Melzer, Esq. SANFORD WITTELS & HEISLER, LLP 1350 Avenue of the Americas, 31st Floor New York, NY 10022 Telephone: (646) 723-2947 - and - Michael Ram, Esq. Karl Olson, Esq. RAM & OLSON LLP 555 Montgomery Street, Suite 820 San Francisco, CA 94111 Telephone: (415) 433-4949 - and - Edmond Clark, Esq. LAW OFFICE OF EDMOND CLARK 83 Scotland Avenue Madison, CT 06443-2501 Telephone: (203) 245-4602 BARNES & NOBLE: Class Certification Hearing Set for January 20 -------------------------------------------------------------- A Jan. 20, 2010 hearing on the class certification motion in the matter Hostetter v. Barnes & Noble Booksellers, Inc. et al., has been scheduled, according to Barnes & Noble, Inc.'s Dec. 10, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Oct. 31, 2009. On Dec. 4, 2008, a purported class action complaint was filed against Barnes & Noble Booksellers, Inc. in the Superior Court for the State of California making these allegations against defendants with respect to hourly managers and/or assistant managers at Barnes & Noble stores located in the State of California: (1) failure to pay wages and overtime; (2) failure to provide meal and/or rest breaks; (3) waiting time penalties; and (4) unfair competition. The complaint contains no allegations concerning the number of any such alleged violations or the amount of recovery sought on behalf the purported class. On March 4, 2009, Barnes and Noble filed an answer denying all claims. On March 5, 2009, Barnes and Noble removed this matter to federal court. Written discovery concerning purported class member wages, hours worked, and other matters has commenced. Discovery concerning purported class member wages, hours worked, and other matters has commenced. The plaintiffs' class certification motion was filed on Oct. 19, 2009. The company's response was filed on Nov. 30, 2009, and the hearing on the class certification motion is set for Jan. 20, 2010. The Court has set a trial date of Aug. 10, 2010. Barnes & Noble, Inc. -- http://www.barnesandnoble.com/-- is a bookseller. The company's principal business is the sale of trade books (generally hardcover and paperback consumer titles, excluding educational textbooks and specialized religious titles), mass-market paperbacks (such as mystery, romance, science fiction and other fiction), children's books, bargain books, magazines, gift, cafe products and services, music and movies direct to customers. As of Jan. 31, 2009, the company operated 778 bookstores and a Website. Of the 778 bookstores, 726 operate under the Barnes & Noble Booksellers trade name and 52 operate primarily under the B. Dalton Bookseller trade name. BARNES & NOBLE: Unit Faces "Minor" Complaint Over Wage Payments --------------------------------------------------------------- A purported class-action complaint entitled, "Minor v. Barnes & Noble Booksellers, Inc. et al.," is pending, according to Barnes & Noble, Inc.'s Dec. 10, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Oct. 31, 2009. On May 1, 2009, a purported class action complaint was filed against Barnes & Noble Booksellers, Inc. in the Superior Court for the State of California alleging wage payments by instruments in a form that did not comply with the requirements of the California Labor Code, allegedly resulting in impermissible wage payment reductions and calling for imposition of statutory penalties. The complaint also seeks restitution of such allegedly unpaid wages under California's unfair competition law, and an injunction compelling compliance with the California Labor Code. The complaint alleges two subclasses of 500 and 200 employees, respectively (there may be overlap among the subclasses), but contains no allegations concerning the number of alleged violations or the amount of recovery sought on behalf of the purported class. On June 3, 2009, Barnes & Noble Booksellers filed an answer denying all claims. Discovery concerning purported class member payroll checks and related information has commenced. Barnes & Noble, Inc. -- http://www.barnesandnoble.com/-- is a bookseller. The company's principal business is the sale of trade books (generally hardcover and paperback consumer titles, excluding educational textbooks and specialized religious titles), mass-market paperbacks (such as mystery, romance, science fiction and other fiction), children's books, bargain books, magazines, gift, cafe products and services, music and movies direct to customers. As of Jan. 31, 2009, the company operated 778 bookstores and a Website. Of the 778 bookstores, 726 operate under the Barnes & Noble Booksellers trade name and 52 operate primarily under the B. Dalton Bookseller trade name. CHICO'S FAS: Court Denies Class Certification in "Haefner" Suit --------------------------------------------------------------- The Superior Court for the State of California, County of San Diego has issued an order denying the plaintiff's motion for class certification in the suit, Michele L. Massey Haefner v. Chico's FAS, Inc., according to the company's Dec. 7, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Oct. 31, 2009. The Complaint, filed in June 2008, alleges that the company, in violation of California law, requested or required customers to provide personal identification information in conjunction with credit card transactions. The company filed an answer denying the material allegations of the Complaint. The parties have exchanged class certification briefs and the Court has scheduled a hearing on class certification in September After the hearing, the Court issued an Order denying the plaintiff's motion for class certification. As a result, the case will proceed as a single plaintiff case only, unless the ruling is overturned on appeal. Chico's FAS, Inc. -- http://www.chicosfas.com-- is a specialty retailer of private branded, casual-to-dressy clothing, intimates, complementary accessories, and other non-clothing gift items under the Chico's, White House |Black Market and Soma Intimates brand names. The Chico's brand sells designed, private branded clothing focusing on women 35 and over with a moderate to high income level. DOLLAR GENERAL: Continues to Defend "Richter" Suit in Alabama ------------------------------------------------------------- Dollar General Corp., intends defend a suit styled Cynthia Richter, et al. v. Dolgencorp, Inc., according to the company's Dec. 10, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Oct. 30, 2009. The lawsuit was filed on Aug. 7, 2006, in the U.S. District Court for the Northern District of Alabama (Case No. 7:06-cv-01537-LSC) in which the plaintiff alleges that she and other current and former Dollar General store managers were improperly classified as exempt executive employees under the Fair Labor Standards Act and seeks to recover overtime pay, liquidated damages, and attorneys' fees and costs. On Aug. 15, 2006, the Richter plaintiff filed a motion in which she asked the court to certify a nationwide class of current and former store managers. The company opposed the plaintiff's motion. On March 23, 2007, the court conditionally certified a nationwide class of individuals who worked for Dollar General as store managers since August 7, 2003. The number of persons who will be included in the class has not been determined. On May 30, 2007, the court stayed all proceedings in the case, including the sending of a notice to the class, to evaluate, among other things, certain appeals pending in the Eleventh Circuit involving claims similar to those raised in this action. That stay has been extended on several occasions, most recently through Oct. 31, 2009. Those appeals have been resolved, and the court has ordered that a list of potential class members be prepared and notice to those individuals be issued. During the stay, the statute of limitations was tolled for the potential class members. The company says its store managers are and have been properly classified as exempt employees under the FLSA and that this action is not appropriate for collective action treatment. Dollar General Corp. -- http://www.dollargeneral.com/-- is a discount retailer of general merchandise at everyday low prices. Through its stores, the Company offers a focused assortment of basic consumable merchandise, including health and beauty aids, packaged food and refrigerated products, home cleaning supplies, housewares, stationery, seasonal goods, basic clothing and domestics. Dollar General stores serve primarily low-, middle- and fixed-income families. DOLLAR GENERAL: Continues to Defend FLSA Violations Suit in N.Y. ---------------------------------------------------------------- Dollar General Corp. continues to defend a suit alleging violations of the Fair Labor Standards Act filed in the U.S. District Court for the Western District of New York, according to the company's Dec. 10, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Oct. 30, 2009. On May 18, 2006, the company was served with a lawsuit entitled Tammy Brickey, Becky Norman, Rose Rochow, Sandra Cogswell and Melinda Sappington v. Dolgencorp, Inc. and Dollar General Corporation, Case No. 6:06-cv-06084-DGL, originally filed on Feb. 9, 2006 and amended on May 12, 2006. The Brickey plaintiffs seek to proceed collectively under the FLSA and as a class under New York, Ohio, Maryland and North Carolina wage and hour statutes on behalf of, among others, assistant store managers who claim to be owed wages (including overtime wages) under those statutes. Dollar General Corp. -- http://www.dollargeneral.com/-- is a discount retailer of general merchandise at everyday low prices. Through its stores, the Company offers a focused assortment of basic consumable merchandise, including health and beauty aids, packaged food and refrigerated products, home cleaning supplies, housewares, stationery, seasonal goods, basic clothing and domestics. Dollar General stores serve primarily low-, middle- and fixed-income families. DOLLAR GENERAL: Still Defending Former Manager's Suit in Alabama ---------------------------------------------------------------- Dollar General Corp., continues to defend a suit styled Janet Calvert v. Dolgencorp, Inc., Case No. 2:06-cv-00465-VEH, filed in the U.S. District Court for the Northern District of Alabama, according to the company's Dec. 10, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Oct. 30, 2009. The company was filed on March 7, 2006, in which the plaintiff, a former store manager, alleged that she was paid less than male store managers because of her sex, in violation of the Equal Pay Act and Title VII of the Civil Rights Act of 1964, as amended. The complaint subsequently was amended to include additional plaintiffs, who also allege to have been paid less than males because of their sex, and to add allegations that the company's compensation practices disparately impact females. Under the amended complaint, Plaintiffs seek to proceed collectively under the Equal Pay Act and as a class under Title VII, and request back wages, injunctive and declaratory relief, liquidated damages, punitive damages and attorneys' fees and costs. On July 9, 2007, the plaintiffs filed a motion in which they asked the court to approve the issuance of notice to a class of current and former female store managers under the Equal Pay Act. The company opposed plaintiffs' motion. On Nov. 30, 2007, the court conditionally certified a nationwide class of females under the Equal Pay Act who worked for Dollar General as store managers between Nov. 30, 2004 and Nov. 30, 2007. The notice was issued on January 11, 2008, and persons to whom the notice was sent were required to opt into the suit by March 11, 2008. Approximately 2,100 individuals have opted into the lawsuit. The company will have an opportunity at the close of the discovery period to seek decertification of the Equal Pay Act class, and the company expects to file such motion. The plaintiffs have not yet moved for class certification relating to their Title VII claims. The company expects such motion to be filed within the next several months and will strenuously oppose such a motion. At this time, it is not possible to predict whether the court ultimately will permit the Calvert action to proceed collectively under the Equal Pay Act or as a class under Title VII. However, the company says the case is not appropriate for class or collective treatment and that its policies and practices comply with the Equal Pay Act and Title VII. Dollar General Corp. -- http://www.dollargeneral.com/-- is a discount retailer of general merchandise at everyday low prices. Through its stores, the Company offers a focused assortment of basic consumable merchandise, including health and beauty aids, packaged food and refrigerated products, home cleaning supplies, housewares, stationery, seasonal goods, basic clothing and domestics. Dollar General stores serve primarily low-, middle- and fixed-income families. DOLLAR GENERAL: "Cox" Suit over Pregnancy Discrimination Pending ---------------------------------------------------------------- Cox, et al. v. Dolgencorp, Inc., et al, Case No. LACV-034423 (Iowa Dist. Ct., Dallas Cty.), remains pending, according to Dollar General Corp.'s Dec. 10, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Oct. 30, 2009. The company was served with the Cox complaint on July 30, 2008. The plaintiff, a former store manager, alleges that the company discriminates against pregnant employees on the basis of sex and retaliates against employees in violation of the Iowa Civil Rights Act. Cox seeks to represent a class of "all current, former and future employees from the State of Iowa who are employed by Dollar General who suffered from, are currently suffering from or in the future may suffer from" alleged sex/pregnancy discrimination and retaliation and seeks declaratory and injunctive relief as well as equitable, compensatory and punitive damages and attorneys' fees and costs. Dollar General Corp. -- http://www.dollargeneral.com/-- is a discount retailer of general merchandise at everyday low prices. Through its stores, the Company offers a focused assortment of basic consumable merchandise, including health and beauty aids, packaged food and refrigerated products, home cleaning supplies, housewares, stationery, seasonal goods, basic clothing and domestics. Dollar General stores serve primarily low-, middle- and fixed-income families. DYNAMEX INC: San Bernardino Plaintiffs Added to Los Angeles Suit ---------------------------------------------------------------- Plaintiffs in a purported class action suit against Dynamex Inc., alleging violations of the California business statutes has been added to the lawsuit currently being faced by the company in the Superior Court of California, Los Angeles County, according to the company's Dec. 10, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Oct. 31, 2009. On July 25, 2008, two independent contractor drivers filed a purported class action suit in San Bernardino County, California Superior Court alleging that the company's classification of California drivers as independent contractors was unlawful, and that as a consequence they were denied the benefit of various California wage laws. The plaintiffs further alleged that such misclassification constituted unfair competition under California business statutes. Because the Complaint in large measure contains the same causes of action as the on-going 2005 Los Angeles County, California Superior Court case, the company filed a Special Demurrer and a Motion to Stay further proceedings pending the outcome of the earlier action. Following a November 2008 Hearing, the Court issued a Stay. Plaintiffs' subsequent attempt to consolidate their action with the Los Angeles County action was denied. On Jan. 21, 2009, one of the named Plaintiffs voluntarily dismissed his claims without prejudice in order to attempt to join the Los Angeles County suit. The Plaintiff has subsequently been added to the Los Angeles County suit. The company says the independent contractor owner-operator drivers are properly classified as independent contractors and intends to vigorously defend this litigation. Given the nature and preliminary status of the claims, however, the company cannot yet determine the amount or a reasonable range of potential loss in these matters, if any. Dynamex Inc. -- http://www.dynamex.com/-- is a provider of same- day delivery and logistics services in the United States and Canada. The company operates in the same-day delivery services segment, with two primary service offerings: same-day on-demand delivery services, and same-day local and regional distribution services, including outsourcing services, such as fleet management and facilities management. ETERNIT: Asbestos-Related Class Action Suit Begins in Italy ----------------------------------------------------------- MesotheliomaCancerNews.com reports that a trial regarding alleged asbestos contamination by Eternit, a Swiss building materials firm, began this week. As reported by AFP, the trial involves a class-action lawsuit on behalf of 700 individuals who were sickened or died as a result of the contamination. As noted by AFP, two former shareholders of Eternit stand accused of negligence, which reportedly resulted in over 2,000 deaths from asbestos-related illnesses, and hundreds more illnesses. The trial is said to be the largest to involve blue asbestos contamination. The mineral was banned in the country over a decade ago. Jean-Paul Teissonniere, an attorney for the plaintiffs, is quoted in the report as stating of the trial, "It's a world first. This trial will determine whether the judicial system is capable of handling such a complex case." GE HEALTHCARE: Sued in Ala. Over High-Radiation CT Scanners ----------------------------------------------------------- An Alabama woman has filed a class-action lawsuit against the makers of a CT scan machine for allegedly exposing her and possibly hundreds of other patients to excess radiation during medical imaging exams. Becky Coudert underwent a procedure called a CT brain scan perfusion scan in September at a hospital in Huntsville and later developed a bald strip around her head. According to her federal lawsuit against GE Healthcare, the company that made the scanner used in her procedure, Ms. Coudert was exposed to radiation levels that were up to 14 times the required radiation. Ms. Coudert's lawsuit accuses GE of negligence for failing to install warnings on the machines to alert users and patients of radiation overexposure. Hospital officials have said as many as 60 other patients at the same facility may also have been overexposed to radiation. The suit asks the company to create a fund of at least $5 million to cover the medical bills and other damages for patients exposed to excess radiation during the exams. In some cases, the symptoms of damage done may not be apparent for decades, according to Ms. Coudert's lawsuit. Ms. Coudert is represented by: Eric James Artrip, Esq. WATSON MCKINNEY & ARTRIP, LLP 203 Greene Street SE P.O. Box 18368 Huntsville, AL 35801-4810 Telephone: 256-536-7423 GENESCO INC: Awaits Final Approval of Customer E-mail Settlement ---------------------------------------------------------------- A settlement agreement in the purported class-action lawsuit against Genesco, Inc., alleging violations of the Song-Beverly Credit Card Act of 1971, California Civil Code Section 1747.08, awaits final approval. The suit, filed in the Superior Court of California, San Diego County, on April 8, 2008, related to requests that customers in the company's California retail stores voluntarily provide the company with their e-mail addresses. The company has filed an answer to the complaint consisting of a general denial of its allegations and asserting a number of affirmative defenses and is presently unable to predict whether or to what extent it may have liability in the case. On Oct. 13, 2008, the court certified the action as a class- action suit and preliminarily approved a settlement agreement pursuant to which the company has issued to each plaintiff class member a discount coupon good for 25% off up to a $200 purchase from a Johnston & Murphy store in a single transaction, exchangeable at the class member's option for a $25 gift card. The company also agreed to pay attorney's fees and costs and additional consideration to the named plaintiff totaling approximately $200,000. No further developments in the case were reported in the company's Dec. 10, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Oct. 31, 2009. Genesco, Inc. -- http://www.genesco.com/-- is a retailer of branded footwear, licensed and branded headwear, and a wholesaler of branded footwear. GENESCO INC: Settlement of "Jacobs" Labor Suit Pending Approval --------------------------------------------------------------- The settlement of a putative class-action suit, Jacobs v. Genesco Inc., et al., Case No. __________ (Calif. Super. Ct., Shasta Cty.), remains subject to court approval. The suit was filed on June 16, 2008, and alleges violations of the California Labor Code involving payment of wages, failure to provide mandatory meal and rest breaks, and unfair competition, and seeking back pay, penalties and declaratory and injunctive relief. The company has removed the case to the Federal District Court for the Eastern District of California. On Sept. 3, 2008, the court dismissed certain of the plaintiff's claims, including claims for conversion and punitive damages. On May 5, 2009, the Company and the plaintiff's counsel reached an agreement in principle to settle the lawsuit on a claims made basis. The minimum payment by the Company pursuant to the agreement is $398,000; the maximum is $703,000. No further developments in the case were reported in the company's Dec. 10, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Oct. 31, 2009. Genesco, Inc. -- http://www.genesco.com/-- is a retailer of branded footwear, licensed and branded headwear, and a wholesaler of branded footwear. HERLEY INDUSTRIES: Continues to Defend Securities Violation Suit ---------------------------------------------------------------- Herley Industries, Inc., continues to defend a lawsuit alleging violations of the Securities Exchange Act of 1934, according to the company's Dec. 10, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Nov. 1, 2009. In June and July 2006, the company was served with several class-action complaints against the company and certain of its current and former officers and directors in the U.S. District Court for the Eastern District of Pennsylvania. The claims are made under Section 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder. The plaintiffs seek unspecified damages on behalf of a purported class of purchasers of the company's securities during various periods before June 14, 2006. All defendants in the class-action complaints filed motions to dismiss on April 6, 2007. On July 17, 2007, the Court issued an order denying the company's and its former Chairman's motion to dismiss and granted, in part, the other defendants' motion to dismiss. Specifically, the Court dismissed the Section 10(b) claim against the other defendants and denied the motion to dismiss the Section 20(a) claim against them. On July 9, 2008, plaintiffs filed a Motion for Class Certification. On March 4, 2009, all defendants filed an Opposition to Plaintiffs' Motion for Class Certification. On May 18, 2009, plaintiffs filed a reply in support of their motion for class certification. Oral argument regarding the plaintiffs' motion for class certification was held on July 17, 2009. On Oct. 9, 2009, the Court issued an order granting plaintiffs' motion for class certification. The Court certified a class consisting of all purchasers of Herley stock between Oct. 1, 2001 and June 14, 2006, who sustained a loss as a result of that acquisition. The parties have completed fact and expert discovery and, on Oct. 30, 2009, the plaintiffs' and the company each filed a Motion for Summary Judgment. Herley Industries, Inc. -- http://www.herley.com/-- is a supplier of microwave products and systems to defense and aerospace entities worldwide. The company designs and manufactures microwave components and subassemblies, which are embedded in a variety of radars, flight instrumentation, weapons sensors, electronic warfare systems and guidance systems. HOME DEPOT: Recalls 2,000 Model HB-50 Hampton Bay Dehumidifiers --------------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with The Home Depot, of Atlanta, Ga., announced a voluntary recall of about 2,000 Hampton Bay Dehumidifiers. Consumers should stop using recalled products immediately unless otherwise instructed. An internal component can fail causing the dehumidifier to overheat, posing fire and burn hazards to consumers. Home Depot has received 18 reports of the dehumidifiers catching fire. One consumer reported a burn injury to his forearm. The dehumidifiers are beige, have four wheels, and measure 21 inches high, 13-1/2 inches wide and 17-1/2 inches long. "Hampton Bay" is printed on the front panel. Model HB-50 is being recalled. The model number is printed on the back interior panel. A picture of the recalled product is available at: http://www.cpsc.gov/cpscpub/prerel/prhtml10/10082.html The recalled appliances were manufactured in China and sold at The Home Depot from November 2000 through May 2007 for between $120 and $150. Consumers should immediately stop using the recalled dehumidifiers and contact Home Depot to receive a gift card for the full amount of the purchase price. For additional information, contact The Home Depot at (800) 553-3199 between 8:30 a.m. and 5:30 p.m., Eastern Time, Monday through Friday, or visit the firm's Web site at http://www.homedepot.com/ JASON EVANS: Recalls 18,300 Boys Hooded Sweatshirts --------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Jason Evans Associates, LLC, of Hewlett, N.Y., announced a voluntary recall of about 18,300 Boys Fleece & Flannel Zip Hooded Sweatshirts manufactured by DMF Sales, of New York, N.Y. Consumers should stop using recalled products immediately unless otherwise instructed. The hooded zip sweatshirts have a drawstring through the hood which 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 sweatshirts and jackets. No incidents or injuries have been reported. This recall involves Boys Fleece, Printed Fleece and Flannel Zip Hooded Sweatshirts with labels in the neck seam with the brand name Bay Trading and RN# 30842, in sizes 4 - 18. Pictures of the recalled garments are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml10/10080.html The recalled garments were manufactured in Pakistan and sold at Burlington Coat Factory from September 2006 through October 2009 for about $12 to 20. Consumers should immediately remove the drawstrings from the sweatshirts to eliminate the hazard or return the garment to either the place of purchase or to Jason Evans for a full refund. For additional information contact: Jason Evans toll free at (888) 683-0063 between 10:00 a.m. and 4:30 p.m., Eastern Time, Monday through Saturday or visit the firm's Web site at http://www.burlingtoncoatfactory.com/ LEBANON RACEWAY: Stan Chesley Preparing Suit After Dec. 5 Fire -------------------------------------------------------------- WLWT TV 5 in Cincinnati reports that Stan Chesley, Esq., plans a class-action lawsuit in connection with a fire that killed two men and 45 horses. Mr. Chesley represents a group of horse owners whose animals died in the Dec. 5 blaze at Lebanon Raceway. He plans to seek damages on their behalf, saying they're entitled to the value of the horses and money for their anguish. State investigators continue to search for the cause of the fire, the news report says. Mr. Chesley can be reached at: Stanley M. Chesley, Esq. WAITE, SCHNEIDER, BAYLESS & CHESLEY 1513 Fourth & Vine Tower 1 West Fourth Street Cincinnati, OH 45202 Telephone: (513) 621-0267 OKK TRADING: Recalls 22,000 "Action Team" Toy Dart Gun Sets ----------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with OKK Trading Inc., of Los Angeles, Calif., today announced a voluntary recall of about 22,000 "Action Team" Toy Dart Gun Sets manufactured by Kong Hoi Industrial Co., of Hong Kong, China. Consumers should stop using recalled products immediately unless otherwise instructed. If a child places the soft, pliable plastic dart in his or her mouth, they are likely to choke or aspirate the dart into the throat impairing the child's ability to breathe. If the dart is not immediately removed, brain damage or death can occur. CPSC and OKK Trading have received one report of the November 2007 death of an 8-year-old boy in Port Arthur, Texas. The child reportedly was chewing on the toy dart when he inadvertently swallowed it and it became lodged in his throat blocking his ability to breathe. The "ACTION TEAM" play set has a toy gun with three soft rubber darts, a S.W.A.T. watch, a baton, walkie-talkie, a whistle, and a badge with a clip and an identification card. The soft, pliable orange plastic darts have a nearly 2 " inch long shaft and an approximately _ inch diameter suction cup. The toy gun is black with an orange nose and trigger and red spring release mechanism. "Made in China" is printed on one side of the barrel. A picture of the recalled product is available at: http://www.cpsc.gov/cpscpub/prerel/prhtml10/10079.html The recalled toy was manufactured in China and sold at discount department stores nationwide from December 2006 through March 2008 for about $1. Consumers should immediately take the recalled dart gun sets away from children and contact OKK Trading to return the toy for a $3 bounty. OKK Trading will provide a free postage paid envelope for consumers to return the toy. For additional information, contact OKK Trading toll-free at (877) 655-8697 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.okktrading.com/ PRECIOUS MOMENTS: Recalls 4,300 Angel Tree Toppers -------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Precious Moments Inc. of Carthage, Mo., announced a voluntary recall of about 4,300 Precious Moments Angel Tree Toppers. Consumers should stop using recalled products immediately unless otherwise instructed. Undersized wiring can cause the tree topper's switch assembly to overheat and melt posing a fire hazard. Precious Moments has received two reported incident involving the tree topper overheating. No injuries have been reported. The recalled tree toppers are 10-inch tall vinyl angels with LED lighted wings. The angels are white, gold and yellow and they are holding either a star or a set of bells. A picture of the recalled product is available at: http://www.cpsc.gov/cpscpub/prerel/prhtml10/10078.html The recalled item was manufactured in China and sold at Menards, Shopko and Blain's Farm and Fleet nationwide from August 2009 through December 2009 for about $18. Consumers should immediately stop using the tree toppers and return them to the place of purchase for a full refund. For additional information, contact Precious Moments at (877) 778-7275 between 8:00 a.m. and 6:00 p.m., Central Time, or visit the firm's Web site at http://www.preciousmoments.com/ SMITH & WESSON: Trial in Consolidated Suit Set for February 7 ------------------------------------------------------------- Trial in a Consolidated Class Action against Smith & Wesson Holding Corp. alleging violations of the Securities Exchange Act is set to begin on Feb. 7, 2011, according to the company's Dec. 10, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Oct. 31, 2009. The suit is styled In re Smith & Wesson Holding Corp. Securities Litigation and is a consolidation of these three cases: -- William Hwang v. Smith & Wesson Holding Corp., et al.; -- Joe Cranford v. Smith & Wesson Holding Corp., et al.; -- Joanne Trudelle v. Smith & Wesson Holding Corp., et al. The case is pending in the U.S. District Court for the District of Massachusetts (Springfield), and is a purported securities class action lawsuit brought individually and on behalf of all persons who purchased the securities of the company between June 15, and Dec. 6, 2007. The putative plaintiffs seek unspecified damages against the company, certain of its officers, and its directors for alleged violations of Sections 10(b) and 20(a) of the Exchange Act. On Feb. 11, 2008, the plaintiffs in each of the above-referenced actions filed motions for consolidation of the actions and to appoint lead class plaintiffs and lead counsel pursuant to the Private Securities Litigation Reform Act of 1995. The Oklahoma Firefighters Pension and Retirement System was appointed Lead Plaintiff of the putative class. On May 30, 2008, Lead Plaintiff Oklahoma Firefighters Pension and Retirement System filed a Consolidated Class Action Complaint seeking unspecified damages against the company and several officers and directors for alleged violations of Sections 10(b) and 20(a) of the Exchange Act. On Aug. 28, 2008, the named officers and directors moved to dismiss the Consolidated Amended Complaint because it fails to state a claim under the federal securities laws and the PSLRA. The putative class Lead Plaintiff submitted its Opposition to the company's motion on Oct. 28, 2008. The company filed its reply to that Opposition on Dec. 12, 2008. A hearing was held on the company's motion to dismiss on Jan. 12, 2009. On March 26, 2009, the company's motion was granted as to Mr. Monheit and denied as to the remaining defendants. Discovery is ongoing. Trial is scheduled to begin on February 7, 2011. Smith & Wesson Holding Corp. -- http://www.smith-wesson.com/-- manufactures firearms. The company manufactures a range of pistols, revolvers, tactical rifles, hunting rifles, black powder firearms, handcuffs, and firearm-related products and accessories for sale to a variety of customers, including gun enthusiasts, collectors, hunters, sportsmen, competitive shooters, protection focused individuals, law enforcement and security agencies and officers, and military agencies in the United States and throughout the world. TIMBERLAND CO: Recalls 21,000 Lead-Contaminated Children's Boots ---------------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with The Timberland Company, of Stratham, N.H., announced a voluntary recall of about 21,000 Classic Scuffproof Boots. Consumers should stop using recalled products immediately unless otherwise instructed. The logo stamped onto the children's boot's insoles contains excessive levels of lead, violating the federal lead paint standard. No incidents or injuries have been reported. This recall involves children's Timberland 6" Classic Scuffproof boots. The boots are wheat-colored leather and were sold in toddler size 4 through junior size 7. The model numbers included in this recall are 34772, 34872 and 34972. The manufacturer/date code numbers included in this recall are 6456, 6556, 6656, 6756 and 6856. The model and manufacturer date code numbers are printed below the size on a white tag inside the boots. A picture of the recalled product is available at: http://www.cpsc.gov/cpscpub/prerel/prhtml10/10076.html The recalled boots were manufactured in Thailand and sold at shoe stores and specialty retailers nationwide from June 2009 through October 2009 for between $50 and $70. Consumers should immediately take the recalled boots away from children and contact Timberland to receive free replacement insoles for the boots. For additional information, contact Timberland at (800) 445-5545 between 8:00 a.m. and 5:30 p.m., Eastern time, Monday through Friday, or visit the firm's Web site at http://www.timberland.com/ TODSON INC: Recalls 24,000 CO2 Bicycle Tire Inflators ----------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Todson Inc., of North Attleboro, Mass., announced a voluntary recall about 24,000 CO2 bicycle tire inflators. Consumers should stop using recalled products immediately unless otherwise instructed. The pressurized cartridge containing carbon dioxide (CO2) can forcefully separate from the pump head, posing a risk of injury to the consumer. No incidents or injuries have been reported. This recall involves Zefal CO2 bicycle tire inflators with a small pressurized carbon dioxide cartridge. The metal cartridge is threaded into the inflator head, which allows for the controlled release of carbon dioxide into the bicycle inner tube. The recalled inflators have "Zefal EZ+ CO2 inflator" printed on the front of the package. Model number 5602 and UPC number 798661556020 is printed on the back. A picture of the recalled product is available at: http://www.cpsc.gov/cpscpub/prerel/prhtml10/10081.html The recalled device was manufactured in Taiwan and sold exclusively at Walmart stores nationwide from August 2009 through November 2009 for about $15. Consumers should immediately stop using the inflators and return them to Walmart for a full refund. For additional information, contact Todson Inc. at (800) 213- 4561 between 9:00 a.m. and 5:00 p.m., Eastern Time, Monday through Friday, or visit the firm's Web site at http://www.todson.com/ ULTA SALON: Court Approves Settlement in Consolidated Suit ---------------------------------------------------------- The U.S. District Court for the Northern District of Illinois gave its final approval to the settlement entered into between Ulta Salon, Cosmetics & Fragrance, Inc., and the plaintiffs in a consolidated suit, according to the company's Dec. 10, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Oct. 31, 2009. In December 2007 and January 2008, three putative securities class action lawsuits were filed against the company and certain of its current and then-current executive officers in the U.S. District Court for the Northern District of Illinois. Each suit alleged that the prospectus and registration statement filed pursuant to the company's initial public offering contained materially false and misleading statements and failed to disclose material facts. Each suit claimed violations of Sections 11, 12(a)(2) and/or 15 of the Securities Act of 1933, and the two later filed suits added claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as well as the associated Rule 10b-5. In February 2008, two of the plaintiffs filed competing motions to consolidate the actions and appoint lead plaintiffs and lead plaintiffs' counsel. On March 18, 2008, after one of the plaintiffs withdrew his motion, the suits were consolidated and plaintiffs in the Mirsky v. ULTA action were appointed lead plaintiffs. Lead plaintiffs filed their amended complaint on May 19, 2008. The amended complaint alleged no new violations of the securities laws not asserted in the prior complaints. It added no new defendants and dropped one of the then-current officers as a defendant. On July 21, 2008, defendants filed a motion to dismiss the amended complaint. On Sept. 24, 2008, lead plaintiffs filed their opposition to the motion to dismiss, and on Oct. 24, 2008, defendants filed their reply memorandum in support of their motion to dismiss. On March 19, 2009, defendants' motion to dismiss was denied. On May 29, 2009, the company and its primary insurance carrier engaged in a mediation with counsel representing the putative class. Although the company continues to deny plaintiffs' allegations, in the interest of putting this matter behind it, the company and its insurer reached a settlement with plaintiffs. On Aug. 7, 2009, the Court entered an order preliminarily approving the settlement, approving the form and manner of notice to putative class members, and setting a final hearing to determine whether to approve the settlement. On Nov. 16, 2009, the Court held a final hearing and, no class members having objected to the settlement or having requested exclusion from the settlement class, the Court entered a final order dismissing all three consolidated cases with prejudice. All amounts paid under the settlement have been paid out of proceeds of the company's directors and officers liability insurance coverage. Ulta Salon, Cosmetics & Fragrance, Inc. -- http://www.ulta.com/ -- is a beauty retailer that that provides one-stop shopping for prestige, mass and salon products and salon services in the United States. ULTA SALON: Continues to Face FLSA Violations Suit in California ---------------------------------------------------------------- Ulta Salon, Cosmetics & Fragrance, Inc., continues to face an amended complaint alleging violations of the Fair Labor Standards Act, according to the company's Dec. 10, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Oct. 31, 2009. In July 2009, a putative employment class action lawsuit was filed against the company and certain unnamed defendants in State Court in California. The suit alleges that Ulta misclassified its store General Managers and Salon Managers as exempt (from the Fair Labor Standards Act and California Labor Code). The suit seeks to recover damages and penalties as a result of this alleged misclassification. On Aug. 27, 2009 the company filed its answer to the lawsuit and on Aug. 31, 2009 the company moved the action to the U.S. District Court for the Northern District of California. On Nov. 2, 2009, the plaintiffs filed an amended complaint adding another named plaintiff. Ulta Salon, Cosmetics & Fragrance, Inc. -- http://www.ulta.com/ -- is a beauty retailer that that provides one-stop shopping for prestige, mass and salon products and salon services in the United States. VCG HOLDING: Discloses Filing of Lawsuit to Block Buy-Out Offer --------------------------------------------------------------- On December 11, 2009, VCG Holding Corp. was notified of a complaint filed by Brandon Ostry in the District Court in Jefferson County, Colorado. In the Complaint, the Plaintiff purports to bring a class action lawsuit against the Company's Chief Executive Officer, Troy Lowrie and Lowrie Management, LLLP. The Complaint was filed by the Plaintiff on behalf of himself and all others similarly situated in connection with the proposal by Mr. Lowrie, Lowrie Management, LLLP and Family Dog, LLC, to acquire all of the outstanding shares of common stock of the Company. The Complaint alleges, among other things, that the consideration in the Proposal is inadequate and that Mr. Lowrie has conflicts of interest with respect to the Proposal and has breached his fiduciary duties under Colorado law in connection with the Proposal. The Complaint seeks, among other things, certification of the Plaintiff as a class representative, an injunction enjoining the consummation of the Proposal, rescinding the transaction if it is consummated or awarding alleged recessionary damages, an accounting for alleged damages, profits and special benefits obtained and for the costs of maintaining the action, including reasonable attorneys' and experts' fees, and such other relief the court deems just and proper. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Frederick, Maryland USA. Gracele D. Canilao, Leah Felisilda and Peter A. Chapman, Editors. Copyright 2009. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $575 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Christopher Beard at 240/629-3300. * * * End of Transmission * * *