CAR_Public/100127.mbx             C L A S S   A C T I O N   R E P O R T E R

           Wednesday, January 27, 2010, Vol. 12, No. 18

                            Headlines

ALCON INC: Second Suit Says Novartis and Nestle Deal is Unfair
ARKANSAS AUTOMOBILE: Accused of Drivers License Privacy Breach
AT&T CORP: Lawsuit Seeks $65 Million Refund of "Special Charges"
ATI TECHNOLOGIES: $2 Mil. of Class Settlement Going to Charities
BAYER HEALTHCARE: Yaz Litigation Update from Newsome Law Firm

BSH HOME: Recalls 37,000 More Thermador(r) Built-In Ovens
CEDAR FAIR: Shareholder Sues in Del. to Block Sale to Apollo
CONAIR CORP: Recalls 162,000 Lysol Steam Cleaning Mops
COUNTRYWIDE HOME: Settlement Hearing in Ill. Adjourned to Feb.
CREDIT SOLUTIONS: S.D. Calif. Suit Calls Debt Management a Scam

GENERAL MOTORS: Canadian Dealers Seek $750 Mil. in Compensation
HERLEY INDUSTRIES: Galleon Out as Lead Plaintiff, But Not Counsel
JOHNSON HEALTH: Recalls 18,000 Elliptical Trainers
LITTON LOAN: Suit Claims Servicer Has No Foreclosure Authority
MICROSOFT CORP: Windows XP Anti-Piracy Software Suit Dismissed

NEW YORK CITY: E.D.N.Y. Lawsuit Accuses Police Student Abuse
QUADRAMED CORP: Shareholder Sues in Del. to Block Francisco Deal
STAR ONE STAFFING: E.D. Ark. Suit Alleges Recruitment Wrongs
SYMANTEC SYSTEMS: Suit Complains About Automatic Norton Renewals
TEREX CORP: Shareholder Class Action Suit Filed in D. Conn.

TEXAS WINDSTORM: 210 Gulf Coast Residents Sue Insurer in Tex.
UNITED NATIONAL: Landlord & Lawyers Sued by Tenants in Calif.
UNITED STATES: Scallop Fishermen Say Permit Rules are Unfair
UNIVERSITY OF CALIFORNIA: Suit Tries Gang Strategy Against Frats
VALE INCO: Closing Arguments in $400 Million Class Action Suit

                            *********

ALCON INC: Second Suit Says Novartis and Nestle Deal is Unfair
--------------------------------------------------------------
Giovanni Legorano at Global Pensions reports that The City of
Westland Police & Fire Retirement System filed a class action
lawsuit against Alcon, Novartis and Nestle, alleging that
Novartis' recent public offer for Alcon discriminated minority
shareholders.

Earlier this month, the Massachusetts Bricklayers and Masons
pension fund filed a lawsuit against Novartis, Alcon and Nestle
over the deal.

Novartis announced on January 4 that it had exercised an option
to purchase 52% of Alcon's shares from Nestlé for approximately
US$180 per share in cash. This transaction would give Novartis a
77% stake in Alcon.

According to law firm Grant & Eisenhofer, co-interim class
counsel in the case, Novartis said it would make a public non-
cash offer for the remaining 23% held by minority shareholders,
but only for $148.70 per share.

Grant & Eisenhofer added Novartis had not obtained the approval
of Alcon's independent directors, but "is poised to push through
the transaction regardless. This would violate Alcon's
organisational regulations, which require such a transaction to
be approved by the independent directors on Alcon's board."
In a statement circulated after the lawsuit was announced, the
Alcon Independent Director Committee said the price and other
terms proposed by Novartis were "grossly inadequate" and the
financial analysis upon which Novartis' unilateral proposal was
based was "fundamentally flawed".

The Committee's chairman Thomas Plaskett said: "The Committee
strongly believes that the underlying historical record and
management's expected future financial performance of Alcon
justify a significantly higher price than that reflected in the
current proposal by Novartis.  Moreover, minority shareholders
have rights accorded to them that must be respected."
A spokesperson for Grant & Eisenhofer said the legal action was
proceeding as Alcon had not formally refused the offer.
The complaint against the three Swiss-based companies and several
Alcon directors was filed before the U.S. District Court in New
York.

"This offer seeks to bypass Alcon's contractual protections of
its minority shareholders, and force an unfair price on them,"
says Grant & Eisenhofer managing partner Jay Eisenhofer.  
"Alcon's public shareholders are unable to protect themselves
from this inadequate offer, due to the control Novartis and
Nestle exert over the company."



ARKANSAS AUTOMOBILE: Accused of Drivers License Privacy Breach
--------------------------------------------------------------
Lynn LaRowe at the Texarkana Gazette reports that Haney, et al v.
Arkansas Automobile Dealers' Association and TRW Target Marketing
and Recall Center, Case No. 10-cv-04003 (W.D. Ark.) (Barnes, J.),
could affect anyone who has had an Arkansas driver's license
since 2000.

"Plaintiffs and the members of the class have suffered harm as
their private information has been obtained unlawfully," the Jan.
14 complaint states.

"In addition to violation of this legally protected right,
plaintiffs and members of the class have suffered harm by virtue
of increased risks to them associated with having their protected
data in the possession of numerous individuals."

The Plaintiffs are represented by:

          Bruce A. Flint, Esq.
          FLINT & SOYARS, L.L.P.
          5520 Plaza Drive
          Texarkana, TX 75503
          Telephone: 903-334-8928


AT&T CORP: Lawsuit Seeks $65 Million Refund of "Special Charges"
----------------------------------------------------------------
Joe Harris at Courthouse News Service reports that AT&T is
billing its customers for a $65 million tax judgment -- which is
illegal -- and is covering its tracks by calling it "special
municipal charges," a class action claims in Jackson County
Court.  The class claims that AT&T and Southwestern Bell were
ordered to pay $65 million to settle complaints from Missouri
municipalities that claimed the companies failed to pay business
license taxes for landline phone services.
     
The class claims the "defendants have boldly passed their
liability on to their customers in the form of monthly charges,"
disguised as "special municipal charges."
     
"This practice is wrongful, deceptive, and extremely lucrative
for Defendants, who proceed as though they are immune from the
consequences of their wrongdoing," the complaint states.
     
"Indeed, they need not worry about the costs of their illicit
practices settled in other matters; their customers will simply
pay the bill.   *   *   *   The liabilities stemming from the
settlement are defendants' liabilities, not the plaintiffs."
     
The class consists of all people or businesses that were billed
for the special municipal charge or any other charges related to
the $65 million settlement.  It seeks disgorgement, actual and
punitive damages and an injunction.
     
A copy of the Complaint in Barry Road Associates, Inc., dba
Minsky's Pizza, et al. v. Southwestern Bell Telephone Company dba
AT&T Missouri, et al., Case No. _________ (Mo. Cit. Ct., Jackson
Cty.), is available at:

     http://www.courthousenews.com/2010/01/21/AT&T.pdf

The Plaintiffs are represented by:

          John F. Edgar, Esq.
          Anthony E. LaCroix, Esq.
          EDGAR LAW FIRM LLC
          1032 Pennsylvania Ave.
          Kansas City, MO 64105
          Telephone: 816-531-0033


ATI TECHNOLOGIES: $2 Mil. of Class Settlement Going to Charities
----------------------------------------------------------------
In an $11.5 million settlement resolving a federal class action,
In re ATI Tech. HDCP Litigation, distribution of almost $2
million in funding to various public interest and privacy groups
will commence immediately.  In addition, class members who
submitted claims will each receive a new $135 ATI graphics card
during the month of March. The settlement, which received final
approval by the United States District Court in the Northern
District of California on September 11, 2009, entitled consumers
who purchased various "HDCP Ready" ATI graphics cards to submit
claims for new graphics cards.  The settlement also provided for
one of the largest "cy pres" funds in a consumer class action
during 2009.  The defendant, ATI Technologies, Inc., purchased by
Advanced Micro Devices, Inc. during the litigation, has denied
any wrongful conduct.

The substantial cy pres award will be distributed among the
following 15 organizations, which were selected by counsel and
designated by court order: Electronic Privacy Information Center
(EPIC); Computers for Youth; Consumer Action; School on Wheels,
Inc.; SeniorNet; Bet Tzedek Legal Services (Los Angeles,
California); East Bay Community Law Center; Legal Aid Society of
San Diego, Inc.; National Consumer Law Center; One Laptop per
Child; Public Counsel (Los Angeles, California); Public Justice
Foundation; Katharine and George Alexander Community Law Center;
Stanford Public Interest Law Foundation; and Public Law Center
(Orange County, California).  U.S. District Judge James Ware
found each of these groups advanced the public interest and the
interests of the class.  See http://aticlassaction.com/for  
complete details.

New York attorney Scott A. Kamber, Esq., of KamberLaw, LLC
(formerly of KamberEdelson, LLC) and Los Angeles-based David
Parisi, Esq., of Parisi & Havens LLP, were appointed by the Court
to serve as lead counsel for the class. "This settlement shows
the good things that can be accomplished by a class action-a
tangible benefit available to every member of the class coupled
with a substantial public benefit in the form of a cy pres."
explained Kamber. "While it took years of hard-fought litigation
and negotiation to get to this point, the result certainly
demonstrates that it was worth the effort," said Parisi.

About KamberLaw: Scott A. Kamber, Esq., one of the most
recognized names in consumer class actions, founded KamberLaw to
advance consumer rights in the area of digital privacy and
security. Kamber is best known for serving as lead counsel in
class actions that have strengthened consumer protections and
brought meaningful relief in the first year of litigation. In
recent years, Kamber served as lead counsel in nationwide class
actions that resolved the contaminated pet food recall ($24
million), lead paint contamination with Thomas the Tank Engine &
Friends ($30 million), numerous cases of defective digital rights
management software on music and computer game CDs and DVDs and,
most recently, the Facebook Beacon privacy matter (approval
pending). With offices in New York and California, KamberLaw is
committed to advancing the cause of consumer rights from coast to
coast.

About Parisi & Havens LLP: Parisi & Havens LLP is a boutique law
firm that specializes in complex consumer class actions with an
emphasis in technology and insurance cases. In addition to the
firm's consumer class actions, Parisi & Havens LLP counts as its
clients Fortune 500 Companies and several banks. In each area in
which they practice, the firm and its partners have built a
reputation in the community for representing clients in cutting-
edge litigation with skill, tenacity, and integrity. The
principals of the firm, David C. Parisi, Esq., and Suzanne Havens
Beckman, Esq., have recovered in excess of $200 million for their
clients in the past ten years alone.


BAYER HEALTHCARE: Yaz Litigation Update from Newsome Law Firm
-------------------------------------------------------------
With an increasing number of lawsuits being filed against Bayer
Pharmaceuticals over usage of Yasmin and Yaz, the U.S. Judicial
Panel on Multidistrict Litigation (MDL) ordered, in mid 2009,
that all Yasmin and Yaz litigation that are pending federal
courts be consolidated in the U.S. District Court for the
Southern District of Illinois as a part of an MDL.

A posting at http://www.newsomelaw.com/node/231relates that  
Chief Judge David R. Herndon, in a status conference on the MDL,
has talked about establishing "bellwether" trials in which juries
will be gauged on how they respond to evidence presented by the
litigation.  Judge Herndon also mentioned that he would like to
see the case move through the court "efficiently and effectively"
and noted that both sides are working diligently "to move this
litigation at a fast pace."

Bayer Healthcare Pharmaceuticals has recently and rapidly come
into legal trouble over its oral contraceptive Yaz and its
alleged dangerous and even fatal side effects. Yaz, its
predecessor Yasmin, and the generic version Ocella have all come
under fire in recent years for their overstated benefits and
minimized risks. Experts predict that more than 25,000 cases
could eventually be filed by women alleging dangerous to fatal
side effects from using the prescription contraceptive.

Berlex Laboratories, which originally began manufacturing Yasmin
in 2001, was acquired by Bayer Healthcare in 2006. Before being
bought by Bayer, the FDA issued a warning to Berlex to
discontinue a misleading television advertisement for Yasmin. The
new company, Bayer Healthcare Pharmaceuticals, then released a
newer version of the pill under the name of Yaz in 2006. The FDA
then issued yet another warning in 2008 over misleading
commercials aired on television by Bayer. The warning included an
overstatement of efficacy on the part of Yaz's ability to fight
premenstrual syndrome and acne as well as understating the risks
involved with usage of the pill. Despite the warnings and several
cases of injury and death reported after using the hormonal birth
control, Yaz had become a very popular and bestselling oral
contraceptive.

The controversy surrounding Yaz stems from the use of a hormone
by the name of progestin drospirenone. Both Yasmin and Yaz use
the female hormones estrogen and progestin to block pregnancy by
preventing ovulation, making it harder for sperm to reach and
fertilize the egg, and reducing the chance that the egg will
implant on the uterine wall. Yaz uses a unique form of progestin
known as drosperinone which has been alleged to increase the risk
of the following symptoms: heart attack, stroke, cardiac
arrhythmia, gallbladder disease, deep vein thrombosis, pulmonary
embolism, and sudden death.

The 2008 FDA warnings were issued in response to two Bayer
television commercials that have been accused of being
misleading. One of the commercials' implied claims was that Yaz
was approved to treat premenstrual syndrome (PMS) when in fact it
was only approved to treat premenstrual dysphoric disorder
(PMDD), a more severe form of PMS. Another misleading claim made
in the commercials was that Yaz treated mild acne. In addition to
the claims, the commercials have been accused of downplaying the
associated risks of using the contraceptive. In early 2009,
prompted by the FDA, Bayer ran a multimillion television
advertising campaign in which it attempted to correct the
misleading claims of its previous commercials.


BSH HOME: Recalls 37,000 More Thermador(r) Built-In Ovens
---------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
BSH Home Appliances Corp., of Huntington Beach, Calif., announced
a voluntary recall of about 37,000 Thermador(r) Built-In Ovens.  
42,000 built-in ovens were previously recalled in June 2007.  
Consumers should stop using recalled products immediately unless
otherwise instructed.

The ovens can have gaps in the insulation where overheating can
occur and when used in the self-cleaning mode it can cause nearby
cabinets to catch fire. This poses a fire hazard to consumers.

BSH Home Appliances has received three additional reports of
incidents, including two that resulted in fires that damaged
surrounding cabinets.  No injuries have been reported.

The recall involves Thermador Brand built-in double ovens with
model numbers C272B, C302B, SEC272, SEC302, SECD272 and SECD302
and serial numbers between FD8403 through FD8701. Model and
serial numbers are located on the underside of the control panel.
Pictures of the recalled ovens are available at:

     http://www.cpsc.gov/cpscpub/prerel/prhtml10/10118.html

The recalled appliances were manufactured in the United States
and sold at appliance and specialty stores nationwide from June
2004 through July 2007 for between $3,000 and $4,400.

Consumers should immediately stop using the oven's self-cleaning
mode and contact the firm to schedule an inspection and free
repair, if necessary.  For additional information, contact
Thermador at (800) 701-5230 24 hours/day, 7 days/week, or visit
the firm's Web site at http://www.thermador.com/


CEDAR FAIR: Shareholder Sues in Del. to Block Sale to Apollo
------------------------------------------------------------
Courthouse News Service reports that Cedar Fair, an amusement
park company, is selling itself too cheaply to Apollo Global
Management, for $650 million, shareholders say in Delaware
Chancery Court.


CONAIR CORP: Recalls 162,000 Lysol Steam Cleaning Mops
------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
Conair Corp., of Stamford, Conn., announced a voluntary recall of
about 162,000 Lysol Steam Cleaning Mops.  Consumers should stop
using recalled products immediately unless otherwise instructed.

Hot water mixed with Lysol can forcefully spurt out and rupture
the housing unit, posing a burn hazard and a laceration hazard to
consumers from the broken housing unit.

Conair has received 14 reports of hot water forcefully spilling
out of the water reservoir compartment including two minor burn
injuries to consumers who sought medical attention.

This recall involves the Lysol Steam Cleaning Mop by Conair with
model numbers SM10L or SM10LR. The model number is printed on the
bottom of the mop under the microfiber cloth.  Pictures of the
recalled product are available at:

     http://www.cpsc.gov/cpscpub/prerel/prhtml10/10117.html

The recalled cleaning supplies were manufactured in China and
sold at department, drug, hardware and home improvement stores
and mass merchandisers nationwide and on the Internet from
September 2006 through September 2009 for about $40.

Consumers should immediately stop using the recalled mop and
contact Conair to receive a free replacement steam cleaning mop.  
For additional information, contact Conair at toll-free at
(800) 687-6916 between 8:30 a.m. and 4:30 p.m., Eastern Time,
Monday through Friday, or visit the firm's Web site at
http://www.conair.com/recallmop


COUNTRYWIDE HOME: Settlement Hearing in Ill. Adjourned to Feb.
--------------------------------------------------------------
Amelia Flood at The Madison County Record reports that the first
hearing on the settlement approval in a seven year-old class
action suit over improper mortgage fees has been moved to
February.

A hearing before Madison County Circuit Judge David Hylla was
slated to take place Jan. 20.

According to the case's docket sheet, attorney Doug Schulz asked
last Friday that the hearing be moved.  It has been reset to Feb.
22 at 10:30 a.m.

Plaintiff Todd Morgan leads a class against Countrywide Home
Loans Inc. on allegations the company overcharges customers.

It was one of a spate of similar suits filed between 2003 and
2005.

No details of the proposed settlement are available as yet.

The class is represented by Paul Marks.

The defendant is represented by Beth Bauer.

The case is Madison case number 03-L-980.


CREDIT SOLUTIONS: S.D. Calif. Suit Calls Debt Management a Scam
---------------------------------------------------------------
Elizabeth Banicki at Courthouse News Service reports that a
federal class action claims Credit Solutions of America is "at
the center" of the "emerging billion dollar industry" of "debt
settlement," which is putting the already strained finances of
thousands of Americans into a meat grinder. The class claims
attorneys general in six states have sued the company, which
takes money up front and does nothing while debtors' credit
plunges and their debts climb.

Credit Solutions of America, formed by Douglas Van Arsdale in
Richardson, Texas, in 2005, claims it can negotiate debt
reductions for an upfront fee of 15 to 20 percent of the total
debt, according to the complaint. Its customers must pay into a
"settlement account" until the company decides the debt is "ripe"
for negotiation.

As is often the case with such scams, the customers are told to
stop paying creditors and pay only Debt Solutions; then their
debt accumulates late fees and interest and is sent to
collections, the complaint states.

The class claims Credit Solution "collects its up-front fees and
then, by virtue of either circumstance or design, shuts its doors
to consumers."

Credit Solutions promises a refund only if the debt is not
settled, but does not inform customers that the company "can
settle the account for 99 percent of the outstanding balance,"
according to the complaint.

Credit Solutions claims to be the "industry leader, managing more
than $2.25 billion of debt," the complaint states.

The class seeks restitution, an injunction and damages for
violations of the California business code, the Consumers Legal
Remedies Act, the Credit Repair Organizations Act, tort in
essence and negligence.

A copy of the Complaint in Billing v. Credit Solutions of
America, Inc., Case No. 10-cv-00108 (S.D. Calif.), is available
at:

     http://www.courthousenews.com/2010/01/21/CreditSolutions.pdf

The Plaintiff is represented by:

          Robert L. Hyde, Esq.
          Joshua B. Wigart, Esq.
          David C. Leimback, Esq.
          HYDE & SWIGART
          411 Camino Del Rio South, Suite 301
          San Diego, CA 92108-3551
          Telephone: 619-233-7770


GENERAL MOTORS: Canadian Dealers Seek $750 Mil. in Compensation
---------------------------------------------------------------
Greg Keenan at the Globe and Mail reports that a Toronto car
dealership has launched a $750-million class-action suit on
behalf of more than 200 General Motors of Canada Ltd. dealers
that seeks compensation for how GM handled the termination of
their outlets last year.

The suit names the auto maker, law firm Cassels Brock & Blackwell
LLP and two of the firm's lawyers.  Trillium Motor World Ltd.,
filed the suit in the Ontario Superior Court of Justice Thursday
seeking redress for GM dealers who signed a wind-down agreement
last May after the company informed about 240 dealers that it was
terminating their dealer agreements and they would no longer be
permitted to sell new GM vehicles.

GM had no right to unilaterally terminate dealer agreements, and
Cassels Brock had a conflict of interest when it was hired by the
Canadian Automobile Dealers Association because, while it was
advising dealers, it was also acting for the federal government
in Ottawa's bailout talks, Trillium's statement of claim says.

The accusations in the statement of claim have not been heard by
the court and a class-action suit needs to be certified before it
can go ahead.

Officials from GM Canada and Cassels Brock were not immediately
available for comment.

About 215 of the approximately 240 dealers who received
termination letters from GM in May signed the wind-down
agreements (WDA) after being given a maximum of six days. Another
12 who did not sign the agreements have launched a separate
lawsuit against the auto maker.

Trillium was a Pontiac Buick GMC outlet from 1989 until it was
terminated last year.

While acting for GM dealers through the CADA, a lobby group for
new-car dealers, Cassels Brock was also representing the federal
government in the negotiations with GM on a bailout, the suit
filed Thursday says.

"Canada was the very party which had insisted on the dealership
reduction and which was advancing the majority of the bailout
funds," it says.

"The governments of Canada and Ontario had imposed upon GM a term
that in order to be eligible to receive extraordinarily large
government financial assistance packages (the GM auto bailout)
which they were prepared to make available to GM, GM would be
required to reduce the number of dealers in the franchise
system."

The CADA set up a special legal fund to pay Cassels Brock and
asked dealers to participate.  "In doing so, they retained a blue
chip, Bay Street law firm which held itself out as having the
depth, experience and resources to represent them in any complex
and fast-paced restructuring or insolvency which may be coming,"
the suit says.

The federal and Ontario governments contributed $10.6-billion to
a bailout of General Motors Corp. and its Canadian unit that was
led by the U.S. government, which provided about $50-billion
(U.S.).

The suit centres on the events of late May, just a few weeks
before GM went into Chapter 11 bankruptcy protection in the U.S.
and it appeared possible that GM Canada would go into protection
under the Companies' Creditors Arrangement Act.

GM Canada sent e-mail notices to the dealers on May 20 and gave
them until May 26 to respond to a compensation offer. The suit
says GM warned dealers that "there was a 'strong possibility'
that GM would file for reorganization under the Companies'
Creditors Arrangement Act."

GM Canada did not file for protection under the CCAA, but the
suit says the company did not offer any dealers who signed the
wind-down agreement the option of changing their minds.

The suit accuses the auto maker of adopting "a 'shock and awe'
strategy giving the affected dealers no more than a few days to
come to grips with what they were facing, organize themselves and
obtain effective legal representation on the WDA."


HERLEY INDUSTRIES: Galleon Out as Lead Plaintiff, But Not Counsel
-----------------------------------------------------------------
Alison Frankel at The Am Law Litigation Daily reports that
there's an intriguing consequence of the criminal case against
Galleon Group founder Raj Rajaratnam and his alleged insider-
trading cronies: Galleon has gotten the boot as lead plaintiff in
In re Herley Industries Inc. Securities Litigation, Case No. 06-
cv-02596 (E.D. Pa.) (Sanchez, J.).

But in a stroke of good fortune for Galleon's securities lawyers
at Kirby McInerny, Philadelphia federal district court judge Juan
Sanchez granted a joint request by:

          Ira M. Press, Esq.
          KIRBY MCINERNEY LLP
          825 Third Avenue
          New York, NY 10022
          Telephone: 212-371-6600

               - and -  

          Jonathan Gardner, Esq.
          LABATON SUCHAROW LLP
          140 Broadway
          New York, NY 10005
          Telephone: 212-907-0700
          
-- counsel to the new lead plaintiff, Norfolk County Retirement
System -- to continue as co-lead counsel.

Judge Sanchez appointed Galleon lead plaintiff in 2006, noting
that it reported losses of about $2.7 million after Herley was
charged with fraud, compared to the $104,000 that Norfolk
reported losing. But only two weeks after the judge certified a
class of shareholders, Mr. Rajaratnam was indicted, and, soon
thereafter, Galleon collapsed.  Norfolk's Labaton lawyers then
requested the lead plaintiff swap and co-lead counsel
arrangement.

The judge agreed. "The solution proposed by Norfolk is the
optimal method for protecting the plaintiff class," he wrote.
"Both firms have vast experience litigating securities class
actions. Kirby has the greatest knowledge of the facts and
procedural history of this case, and Labaton has a longstanding
relationship with new lead plaintiff Norfolk.  Therefore,
cooperation between Galleon's former counsel and Norfolk's
counsel will best serve the needs of the class."


JOHNSON HEALTH: Recalls 18,000 Elliptical Trainers
--------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
Johnson Health Tech North America Inc., of Cottage Grove, Wis.,
announced a voluntary recall of about 18,000 Horizon Fitness and
LIVESTRONG(tm) Fitness Elliptical Trainers.  Consumers should
stop using recalled products immediately unless otherwise
instructed.

The foot pedal can become disengaged, posing a fall hazard.

The firm is aware of 58 reports of foot pedal disengagements.  
No injuries have been reported.

The recalled products are elliptical trainers branded under the
Horizon Fitness and LIVESTRONG Fitness names. The brand name is
located at the top of the console display with the model numbers
just below and the serial numbers are located on the front
support tube of the trainer. The recalled models and serial
numbers are:

     Horizon Model:
          Serial Number Range

          EX-58:
          EP5130909CX00001 - EP5130909CX00645;
          EP5130909CY00646 - EP5130909CY00903;
          EP5130909CX00904 - EP5130910CX01893

          EX-68:
          EP5140909CX00259 - EP5140910CX00387

          EX-78:
          EP5160909CX00121 - EP5160910CX00142

          GS1050E:
          EP5180909CX02194 - EP5180910CX01290

          CE5.1:
          EP515N232090001 - EP515N332090519;
          EP515X639090001 - EP515X245090129

     LIVESTRONG Model:
     Serial Number Range

          LS7.9E:
          EP5250908CN00001 - EP5250908CN01679;
          EP5250909CX00001 - EP5250911CX00296
          
          LS9.9E:
          EP5270907CN00016;
          EP5270908CN00001 - EP5270908CN01682;
          EP5270909CX00001 - EP5270911CX00120
     
          LS12.9E:
          EP5280908CN00003 - EP5280908CN01534;
          EP5280909CX00001 - EP5280911CX00550
          
Pictures of the recalled products are available at:

     http://www.cpsc.gov/cpscpub/prerel/prhtml10/10116.html

The recalled exercise equipment was manufactured in China and
sold at sporting goods stores nationwide and online at
http://www.livestrongfitness.com/and  
http://www.dickssportinggoods.com/between October 2009 and  
November 2009.

Consumers should stop using the elliptical machines immediately
and contact Johnson Health Tech NA to schedule a free in-home
replacement of the defective pedals.  For additional information,
contact Johnson Health Tech NA at (800) 962-3596 from 8:00 a.m.
to 5:00 p.m., Central Time, Monday through Friday, or visit the
firm's Web sites at http://www.horizonfitness.com/and  
http://www.livestrongfitness.com/ Consumers can contact the firm  
also via e-mail at ellipticalsupport@horizonfitness.com


LITTON LOAN: Suit Claims Servicer Has No Foreclosure Authority
--------------------------------------------------------------
Courthouse News Service reports that Litton Loan Servicing and
Central Mortgage Co. foreclosed on homes and sold them "without
the requisite legal authority," a class action claims in San
Diego Federal Court.

A copy of the Complaint in HPC Corporation, et al. v. Litton Loan
Servicing LP, et al., Case No. 10-cv-00137 (S.D. Calif.), is
available at:

     http://www.courthousenews.com/2010/01/20/Foreclose.pdf

The Plaintiffs are represented by:

          Jennifer B. Siverts-McGrady, Esq.
          LAW OFFICES OF JENNIFER B. SIVERTS-MCGRADY
          4455 Morena Blvd., Suite 213
          San Diego, CA 92117
          Telephone: 858-272-5800

               - and -  

          Nicole R. Gallagher, Esq.
          LAW OFFICES OF NICOLE R. GALLAGHER
          3175 Cauby St., #311
          San Diego, CA 92110
          Telephone: 619-519-3667


MICROSOFT CORP: Windows XP Anti-Piracy Software Suit Dismissed
--------------------------------------------------------------
Gregg Keizer at Computerworld reports that a federal judge has
killed class-action allegations in a lawsuit that accused
Microsoft of misleading consumers when it fed them anti-piracy
software under the auspices of a critical security update,
according to court documents.

The move means that Microsoft will not be faced with millions in
potential damages. Last fall, Microsoft's lawyers argued that a
class-action lawsuit could involve "tens of millions" of
customers who might be owed "hundreds of millions of dollars" if
the company lost the case.

A class-action would have let virtually anyone who owned a
Windows XP PC in mid-2006 to join the case without having to hire
an attorney.

In an order filed on Jan. 15 in Engineered Process Controls, LLC,
et al. v. Microsoft Corporation, Case No. 06-cv-00927 (W.D.
Wash.), U.S. District Court Judge Richard Jones denied several
motions by the plaintiffs, including one that would have let them
modify their complaint a third time, which in turn put an
official end to their attempts to turn the case into a class-
action lawsuit.

The three-and-a-half-year-old lawsuit claims Microsoft duped
customers by labeling its Windows Genuine Advantage (WGA)
software a critical security update, failed to tell them that WGA
collected information from their PCs, then frequently "phoned
home" that data to Microsoft's servers.

In June 2006, Microsoft began pushing WGA to Windows XP users via
Windows Update, the company's default update service, as a "high
priority" update that was automatically downloaded and installed
to most machines.

Shortly after that, Microsoft acknowledged that WGA transmitted
information whenever a user logged on to Windows XP. Under
pressure from critics, it later reduced the frequency of the
anti-piracy checks.

Microsoft relies on WGA, and its successor, Windows Activation
Technologies (WAT), to detect bootlegged copies of Windows. If
the software sniffs out a counterfeit, it posts nagging messages
on the screen.

Microsoft had opposed the class-action certification last
September, at the time calling the lawsuit "fictional,"
"demonstrably false" and from an "alternate universe."

Last month, the plaintiffs withdrew most, but not all, of their
class action allegations, but said they were reserving the right
to revisit one of those claims, breach of contract, because an
earlier court decision related to that charge is currently on
appeal.

In his order of last week, Jones said that all class allegations
had to be withdrawn because they "need not be included for
appellate purposes and would create unnecessary confusion if they
were included."

Judge Jones also said that Microsoft could demand compensation
for the money it spent contesting the class-action charges, even
though the plaintiffs withdrew most of those allegations prior to
trial.

"While Plaintiffs maintain a 'no harm, no foul' perspective, it
is too late for that argument," Jones said. "If Plaintiffs had
withdrawn their class-certification motion before Microsoft had
prepared its Opposition, that would be a 'no harm, no foul'
situation. But here, the 'harm' was irreversibly inflicted when
Plaintiffs' motion required Microsoft to prepare a defense."

Microsoft has until Feb. 12 to submit its expense list to the
court.

Judge Jones also rejected the plaintiffs' motion to add a
misrepresentation charge to the lawsuit, and said that they could
not change the complaint to seek additional forms of relief from
injunction. Earlier this month, Microsoft had called those moves
"a cynical attempt to game the system."

The case was once scheduled to go to trial on Jan. 25, but Judge
Jones asked counsel for both parties to suggest a new calendar.

Microsoft's anti-piracy software has often made news. In August
2007, a day-long server outage riled thousands of users who were
mistakenly fingered for running counterfeit copies of Windows.
More recently, hackers revealed ways to bypass Windows 7's
activation process.


NEW YORK CITY: E.D.N.Y. Lawsuit Accuses Police Student Abuse
------------------------------------------------------------
Nick Divito at Courthouse News Service reports that New York
Police Department personnel assigned to the city's public middle
schools and high schools have a long-standing pattern of abuse,
unlawful arrests and excessive force against minority students
who commit even minor infractions like talking back, being late
for class or having a cell phone in school, a federal class
action claims.
     
The New York Civil Liberties Union and the American Civil
Liberties Union filed the lawsuit on behalf of five middle school
and high school students who say they were physically abused and
wrongfully handcuffed and arrested at school by the NYPD's School
Safety Division.
      
"Aggressive policing is stripping thousands of New York City
students of their dignity and disrupting their ability to learn,"
NYCLU Executive Director Donna Lieberman said.  "We all want safe
schools for our children, but the current misguided system
promotes neither safety nor learning.

The lawsuit says school safety officers "push, shove, grab, punch
and strike students," and then handcuff them and either place
them in seclusion rooms on school grounds or transport them to a
local precinct for booking.

"These policies and practices generate fear, distrust and even
violence within the schools," the lawsuit states.

One student said she was handcuffed for drawing on a classmate's
desk with erasable markers. She says she was told she could not
call her mother during a pat-down search that included a search
through her book bag. The girl says she was taken to a local
police precinct, still in handcuffs.

Another student claimed her arm was twisted and she was
handcuffed for refusing to enter a school as ordered after being
threatened by classmates. She says she was handcuffed, and that a
school safety officer than tripped her, causing her to fall
stomach-first onto the floor.

Another student says she was involved in a fight with a school
safety officer after officials insisted going through her bag
after she sounded the metal detector while entering the school.
She says she was put in a head-lock, arrested and taken to the
local precinct.

Yet another student says he was punched more than five times by
school officers after he was wrongly accused of bringing a cell
phone to school.

The lawsuit says school officers are inadequately trained and
poorly supervised in their efforts to ensure the safety of the
approximately 450,000 students in New York City's public middle
schools and high schools.

Since the NYPD took control of public school safety in New York
City in 1998, the number of police personnel assigned to patrol
public schools has grown by 73 percent, with more than 5,000
school safety officers and nearly 200 armed officers currently
assigned to city's public schools, the NYCLU says.

That makes it the nation's fifth-largest police force, according
to the lawsuit.

The NYCLU says it has received nearly 2,700 complaints against
school safety officers from 2002 to June 2007, at a rate of about
500 complaints each year.

The lawsuit seeks sweeping reforms in the New York City public
school system, including mandatory training of school safety
officers.

It also seeks a revision of the policies regarding how officers
who commit abuses are disciplined, including having them removed
from future contact with children when necessary.

Along with the City of New York, Mayor Michael Bloomberg, Police
Commissioner Raymond Kelly, Asst. Chief James Secreto and Sgt.
Roslyn Downing-Lee were named as defendants.

A copy of the Complaint in B.H., et al. v. City of New YOrk, et
al., Case No. 10-cv-00210 (E.D.N.Y.) (Mauskopf, J.), is available
at:

     http://www.courthousenews.com/2010/01/20/Brooklyn.pdf

The Plaintiffs are represented by:

          Arthur N. Eisenberg, Esq.
          Donna Lieberman, Esq.
          Adriana C. Pinon, Esq.
          Udi Ofer, Esq.
          Johanna E. Miller, Esq.
          Kathryn Hunt Muse, Esq.
          Naomi R. Shazt, Esq.
          NEW YORK CIVIL LIBERTIES UNION FOUNDATION
          125 Broad St., 19th Floor
          New York, NY 10004
          Telephone: 212-607-3324

               - and -  

          Catherine Y. Kim, Esq.
          AMERICAN CIVIL LIBERTIES UNION FOUNDATION
          125 Broad St., 18th Floor
          New York, NY 10004
          Telephone: 212-549-2682

               - and -  

          Joshua Colangelo-Bryan, Esq.
          DORSEY & WHITNEY, LLP
          250 Park Avenue
          New York, NY 10177
          Telephone: 212-415-9234


QUADRAMED CORP: Shareholder Sues in Del. to Block Francisco Deal
----------------------------------------------------------------
Courthouse News Service reports that QuadraMed shareholders claim
they are getting shortchanged in the company's sale to Francisco
Partners, in Delaware Chancery Court.  

A copy of the Complaint in LC Capital Master Fund, Ltd. v. James,
et al., Case No. 5214 (Del. Ch. Ct.), is available at:

     http://www.courthousenews.com/2010/01/20/SCAQuadraMed.pdf

The Plaintiff is represented by:

          Bruce L. Silverstein, Esq.
          Christian Douglas Wright, Esq.
          Richard J. Thomas, Esq.
          YOUNG CONAWAY STARGETT & TAYLOR, LLP
          The Brandywine Building
          1000 West Street, 17th Floor
          P.O. Box 391
          Wilmington, DE 19899-0391
          Telephone: 302-571-6600


STAR ONE STAFFING: E.D. Ark. Suit Alleges Recruitment Wrongs
------------------------------------------------------------
Angelic Saulsberry at Courthouse News Service reports that a
federal class action claims Miami-based Star One Staffing cheated
more than 100 Filipino workers in a bait-and-switch recruitment
scam, charging as much as $9,000 up front for visas and other
"fees," then sending them to jobs at far different circumstances,
and pay, than promised. The class claims Star One did this in
defiance of a 2008 agreement with New York State that cost the
recruiter $113,000.

Star One recruits workers for country clubs in Arkansas,
according to the complaint. The workers say they were promised
"at least 40 hours of work each week at specific job sites with a
specific pay rate." But when they arrived as guest workers, on H-
2B visas, they were told "the specific jobs they were supposed to
work were no longer available."

They say they were offered different jobs at different pay which
they were forced to accept because Star One did not provide money
for a return trip home.

"Plaintiff Morena Roco paid Star One over $9,000 in placement and
legal fees in order for her to work in the United States,"
according to the complaint.

Workers say they were forced to work illegally because Star One
failed to file paperwork for the job switch. They Star One paid
them late and deducted so much money from their paychecks for
"expenses" that they went into debt.

The illegal deductions included $100 a week for housing, $60 a
week for transportation, $40 a week for food, and more money for
uniforms and telephones, the class claims.

The class seeks damages for illegal wage withholdings, breach of
contract, fraud, negligent representation, racketeering, and
Labor Law violations.

A copy of the Complaint in Roco, et al. v. Star One Staffing
International, Inc., et al., Case No. 10-cv-00030 (E.D. Ark.)
(Young, J.), is available at:

     http://www.courthousenews.com/2010/01/21/EmployStarOne.pdf

A copy of the Complaint filed in People v. Star One Staffing,
Inc., et al., Index No. _______ (N.Y. Sup. Ct., N.Y. Cty.), filed
in 2008, is attached to the filing.

The Plaintiffs are represented by:

          Josh Sanford, Esq.
          SANFORD LAW FIRM, PLLC
          One Financial Center
          650 S. Shakleford Road, Suite 400
          Little Rock, AR 72211
          Telephone: 501-221-0088

               - and -  

          John T. Holleman, Esq.
          HOLLEMAN & ASSOCIATES, P.A.
          200 West Capitol Ave., Suite 1620
          Little Rock, AR 72201
          Telephone: 501-975-5040


SYMANTEC SYSTEMS: Suit Complains About Automatic Norton Renewals
----------------------------------------------------------------
Courthouse News Service reports that Symantec Systems dba Norton
automatically renews people's subscription to its anti-virus
software without asking if they want it renewed, a class action
claims in New York County Court.

A copy of the Complaint in Elan v. Symantec Systems, Inc., Index
No. 10/100696 (N.Y. Sup. Ct., N.Y. Cty.), is available at:

     http://www.courthousenews.com/2010/01/21/CCANorton.pdf

The Plaintiff is represented by:

          Jeffrey H. Squire, Esq.
          Raymond A. Bragar, Esq.
          BRAGAR WEXLER EAGLE & SQUIRE
          885 Third Avenue, Suite 3040
          New York, NY 10022
          Telephone: 212-308-5858


TEREX CORP: Shareholder Class Action Suit Filed in D. Conn.
-----------------------------------------------------------
Courthouse News Service reports that directors of Terex Corp.
propped up the stock price with false and misleading statements,
until it crashed from $76.25 a share to $9.45, shareholders claim
in Hartford Federal Court.

A copy of the Complaint in Glassman v. Terex Corporation, et al.,
Case No. 10-cv-00070 (D. Conn.), is available at:

     http://www.courthousenews.com/2010/01/19/SCATerex.pdf

The Plaintiff is represented by:

          David R. Scott, Esq.
          Erin Green Comite, Esq.
          SCOTT + SCOTT, LLP
          108 Norwich Ave.
          Colchester, CT 06415
          Telephone: 860-537-5537

               - and -  

          Joseph Guglielmo, Esq.
          SCOTT + SCOTT, LLP
          500 Fifth Ave., 40th Floor
          New York, NY 10110
          Telephone: 212-223-6444

               - and -  

          Robert S. Schachter, Esq.
          Richard A. Speirs, Esq.
          Shaye J. Fuchs, Esq.
          ZWERLING, SCHACHTER & ZWERLING, LLP
          41 Madison Ave.
          New York, NY 10010
          Telephone: 212-223-3900


TEXAS WINDSTORM: 210 Gulf Coast Residents Sue Insurer in Tex.
-------------------------------------------------------------
John Suayan at The Southeast Texas Record reports that two
Galveston attorneys have sued the Texas Windstorm Insurance
Association on behalf of about 210 Bolivar Peninsula residents
who claim the insurer did not pay them adequately for Hurricane
Ike damages.

The suits, filed by:

          Tony G. Buzbee, Esq.
          2401 W. Parkwood Ave.
          Friendswood, TX 77546
          Telephone: (281) 992-5393

               - and -  

          Darrell Apffel, Esq.
          6710 Stewart Rd.
          Galveston, TX 77551
          Telephone: (409) 744-9783

on Jan. 15 in Galveston County District Court, allege that TWIA
arbitrarily chose to pay a small fraction of the value of the
plaintiffs' affected residences.

The plaintiffs are seeking class action status for the
litigation.  According to the homeowners, the defendant's
reported decisions have deprived them of any way to start anew.

Ike, a Category 2 storm, came ashore on Galveston Island with
110-mph winds and a 15-foot storm surge the morning of Sept. 13,
2008, damaging numerous residences and businesses and rendering
thousands of residents homeless. The hurricane left miles of
slabs which used to be freestanding houses from Port Bolivar to
High Island.

Hundreds of coastal residents who sustained damage from Ike have
subsequently sued TWIA, claiming the insurer deceived
policyholders. About 900 out of 93,000 policyholders who filed
claims post-Ike have taken the windstorm association to court.

A Jan. 16 Galveston County Daily News article reports that TWIA
has started to speed up the pace with which it would settle
claims.

The windstorm association has settled 300 Ike suit leaving 1,000
remaining on the docket, according to Insurance News Net.


UNITED NATIONAL: Landlord & Lawyers Sued by Tenants in Calif.
-------------------------------------------------------------
Elizabeth Banicki at Courthouse News Service reports that tenants
of a dilapidated downtown building say United National Insurance
and its attorneys, Nixon Peabody, owe them $497,500 for dropping
two code violation cases against their "criminally convicted
slumlord." Tenants in the Superior Court class action claim they
had a deal to drop the cases against landlord David Behrend in
exchange for $497,000, which the insurance company refuses to
pay.
     
Tenants say their building "was in horrendous condition and the
subject of multiple code violations." They say the deal was made
"in order to stop paying for the defense of Mr. Behrend in the
face of two imminently pending trials."
     
The Aragon Action and the Enciso Action, one of which was a
certified class action, claimed Mr. Behrend neglected his
building and tenants.
     
But the tenants say in the new complaint that the money was never
paid and the defendants never intended to pay it.
     
The tenants say they were given a copy of a check, a small
fraction of the amount they were promised, and nothing else.
     
They allege breach of contract, promise without intent to
perform, fraud and deceit and negligent misrepresentation. The
claim the class consists of about 90 people.
     
Guillermo Rodriguez and Benedicta Aragon filed on behalf of the
class, which is represented by:

          Raymond Paul Katrinak, Esq.
          LAW OFFICES OF R. PAUL KATRINAK
          9663 Santa Monica Blvd #450
          Beverly Hills, CA, 90210
          Telephone: (310) 990-4348

The Plaintiffs also sued the insurer's attorney:

          Gregory E. Schopf, Esq.
          NIXON PEABODY LLP
          One Embarcadero Center, Suite 1800
          San Francisco, CA 94111
          Telephone: (415) 984-8200


UNITED STATES: Scallop Fishermen Say Permit Rules are Unfair
------------------------------------------------------------
Sonya Angelica Diehn at Courthouse News Service reports that
small-scale fishermen filed a class action against the National
Marine Fisheries Service, fighting a rule they say will unfairly
redistribute permits to larger businesses.  

A copy of the Complaint in McCullough, et al. v. Locke, Case No.
10-cv-______, docketed as Doc. 67 in Case No. 33-av-00001, (D.
N.J.), is available at:

     http://www.courthousenews.com/2010/01/21/Scallops.pdf

The Plaintiffs are represented by:

          Patrick Flanigan, Esq.
          P.O. Box 42
          Swarthmore, PA 19081-0042
          Telephone: (484) 904-7795



UNIVERSITY OF CALIFORNIA: Suit Tries Gang Strategy Against Frats
----------------------------------------------------------------
Kate Moser at The Recorder reports that the main legal theory
behind a class action filed last week against University of
California-Berkeley fraternities has its roots in cities'
injunctions against criminal street gangs.

The plaintiffs are attempting to make a case against the
fraternities for a host of nuisances they allege the Greeks
cause, including public drunkenness, encouragement of underage
drinking and harassment of people in the neighborhood.

"As we looked at the behaviors of the gangs, it's almost
identical," said the plaintiffs' lawyer:

          Louis Garcia, Esq.
          LAW OFFICES OF PAUL KRANZ
          2560 9th Street
          Berkeley, CA 94710-2549
          Telephone: (510) 549-5900?

"Maybe it's not as egregious, but it's just as illegal."

Mr. Garcia pointed to People ex rel. Gallo v. Acuna, 14 Cal.4th
1090, in which the California Supreme Court in 1997 allowed the
use of civil gang injunctions.

So he predicts that, even if his side loses in the short term, it
will ultimately be vindicated. "The parallels are so evident to
me. . . .  I think we'll be successful," Mr. Garcia said.

The lawsuit, filed in Alameda County Superior Court by a
homeowner and the South of Campus Neighborhood Association, seeks
an injunction against alleged unruly and illegal conduct by the
fraternities, including frequently disturbing the peace and
encouraging underage drinking.  The proposed class is made up of
current and past residents, renters and property owners of the
South of Campus area, in addition to visitors to the neighborhood
injured by the alleged nuisances, and even members of the public
who have been harmed by alleged pollution of public waterways.

In addition to the injunction, the plaintiffs want penalties for
alleged violations of state and local laws, plus compensatory and
general damages, special damages and punitive damages, as well as
attorneys' fees and costs.

A Texas lawyer:

          James B. Ewbank, II, Esq.
          EWBANK & BYROM
          1210 Nueces
          Austin, TX 78701
          Telephone: 512-476-1080

who represents 17 of the 37 fraternity organizations sued, said
he's represented fraternities before but has never seen them sued
in a class action.

"This does seem to be isolated to a few neighbors, but the
plaintiffs have turned this into a monster litigation that's
going to be endless in terms of fees, when so far I haven't seen
any evidence of widespread nuisance by fraternity members," said
Mr. Ewbank.  "I don't see any need for this broad-brush approach
by the plaintiffs."

Other defense counsel involved include:

          Michael C. Osborne, Esq.
          ARCHER NORRIS PLC
          2033 North Main Street, Suite 800
          Walnut Creek, CA  94596
          Telephone: 925-930-6600

and Berkeley solo Steven Feller.

Judge Frank Roesch denied a temporary restraining order last
week, Mr. Garcia said, reasoning that there wasn't enough
evidence of an imminent harm. Next, Garcia will argue for a
preliminary injunction.

In publicizing the class action, Garcia's firm drew attention to
videos and photos of fraternity behavior, recorded on home
security cameras by lead plaintiff Paul Ghysels, whose home is
sandwiched by fraternities.

Mr. Ghysels, a retired firefighter and paramedic, hasn't slept
through the night in his home on a Thursday, Friday or Saturday
night in more than a decade, he said in a declaration supporting
the temporary restraining order.

Mr. Garcia first connected with the plaintiffs when a colleague,
criminal defense lawyer Yolanda Huang, put him in touch with them
after she began investigating the fraternity culture for a murder
case.

In a trial set to start later this month, Huang is defending
Andrew Hoeft-Edenfield, who is claiming self-defense in the 2008
killing of a Sigma Pi member, Christopher Wootton.


VALE INCO: Closing Arguments in $400 Million Class Action Suit
--------------------------------------------------------------
Mark Tayti at The Welland Tribune reports that everything changed
with respect to property values after media reports of high
levels of nickel in Port Colborne, Ontario's soil started to
circulate in September 2000.

That was the crux of the argument presented by plaintiffs'
lawyer:

          Kirk M. Baert, Esq.
          900-20 Queen Street West
          Toronto, Ontario
          CANADA

in a $400-million class action suit against Vale Inco, filed by
Ellen Smith, during final arguments in a Welland courtroom last
week.

Mr. Baert, who represents the residents, told Justice Joseph
Henderson that property values in Port Colborne between 1997 and
1999 had been running ahead of real estate values in Welland.

That all changed after information about elevated nickel levels
in the Rodney St. neighbourhood began making headlines.

"After 2000, the whole environment changed in Port Colborne given
the media stories and all the reports," Mr. Baert said.

He suggested a community-based risk assessment (CBRA) and the
remediation of 24 properties on the city's east side -- done at
Vale Inco's expense -- offered no defence.

During his closing arguments, Mr. Baert said "internal Inco
documents" showed contamination levels were "a real problem" and
"the company was concerned."

The fact Inco was the source of nickel contamination in Port
Colborne was uncontested by the defence, Mr. Baert said.

Mr. Baert said expert witnesses called during the trial were
"worthy of belief" when citing downward trends in the real estate
market after 2000.

He said the civil case, the CBRA and a human health risk
assessment (HHRA) would not have been necessary except for the
Inco emissions.

Adhering to bylaws and provincial regulations were also no
defence for Inco, Mr. Baert said.

He argued subject properties continue to carry a stigma when it
comes to the market place because many of the issues regarding
remediation and health risk remain unresolved.

"Ten years later and it is still not clear what will be done,'
Mr. Baert said.  "The problem is that there has never been a
complete cleanup. It isn't until that happens that the stigma
disappears."

Mr. Baert said it was wrong to suggest statutory agencies that
issued the contamination reports are to blame for falling
property values in Port Colborne.

"The notices and reports by the statutory authorities were a
natural and foreseeable response to public risk brought on by the
elevated levels of nickel. (Vale) Inco is responsible for all the
damages that flow from the activities of public authorities.

At no time was (the defence) able to show the steps taken by the
Ministry of Environment were not appropriate, given the facts of
the case," Mr. Baert added.

He was critical of Inco's decision to cancel a study on property
values that Inco had commissioned with Deloitte and Touche.

Mr. Baert said the decision to cancel the study was tied to the
civil case.

"It's very telling that the study by Inco never saw the light of
day."

Mr. Baert said the amount of soil sampling and testing after
2000, the ministry orders to remediate the properties, open
houses, public meetings, news releases and media reports raised
the profile of the nickel-elevated properties.

Conflicting information as to "safe" or "acceptable" levels of
contamination further eroded the local real estate market, Mr.
Baert added.

"It's clear from the evidence the nature, extent and scope of
disclosure changed (after 2000)," he said. "It became a
contributing factor for falling property values in the Port
Colborne area."

Mr. Baert said after September 2000, the MoE began issuing
reports to every household in the Rodney St. area -- and "media
attention exploded."

Baert said after 2000, there were thousands of references in the
media regarding nickel contamination in Port Colborne.

"The class action was not the source for any property
devaluation," Mr. Baert said. "The headlines speak for
themselves."

Ten years after the fact, Mr. Baert said it is not clear what the
final cleanup will entail.

He said this "uncertainty" has damaged the reputation of Port
Colborne's real estate market.

The remediation done to date is not a complete answer to any
stigma, Mr. Baert said.

"The ministry has not reached any conclusions . the public
consultation remain incomplete today."

Mr. Baert said "health concerns" with respect to contamination
have created anxiety in the market place.

"There is still a cloud hanging over properties in Port Colborne.
It is still not clear what properties in Port Colborne will be
cleaned up and to what level.  We're talking about perception and
perception, in this case, has a considerable basis in fact."

                            *   *   *   

The idea that falling property values in Port Colborne are
somehow tied to the historic operation of Vale Inco's nickel
refining operation in Port Colborne is flawed.

That was the closing argument put forward when Inco defence
lawyer:

          Alan Lenczner, Esq.
          LENCZNER SLAGHT ROYCE SMITH GRIFFIN LLP BARRISTERS
          130 Adelaide Street West, Suite 2600
          Toronto, Ontario M5H 3P5
          CANADA

picked apart statements made the day earlier by the legal team
representing the plaintiffs.  

Relying on MLS real estate data, Mr. Lenczner said houses in Port
Colborne continued to sell well after 2000 when news of elevated
nickel levels in the Rodney St. area began to make headlines.

Property owners also had no problem securing mortgages and
financing, despite reports that soil on Port Colborne's east side
exceeded Ministry of Environment guidelines with respect to
nickel contamination, Mr. Lenczner added.

In addressing health risks associated with contamination, Justice
Joseph Henderson heard that doctors from across the province had
studied health risks and the data had been peer reviewed.

"There is every indication that health risks experienced by
people in Port Colborne is the same as in any other Ontario
community," Mr. Lenczner said.

He noted that 23 of 24 properties with nickel levels higher than
8,000 parts per million had undergone remediation.

"Below that level of 8,000 ppm, the parties have agreed there
cannot be any harm, cannot be any requirement for cleanup and
there cannot be any damages."

He said the Inco refinery, which ceased its nickel operations in
1984, cannot be held responsible for "unreasonable interference"
on property owners.

"My respectful submission is that there has been no unreasonable
interference with the use and enjoyment of the property," he
said.

Mr. Lenczner also referred to evidence given by Ellen Smith, who
is named in the class action and was the only Rodney St. resident
to take the stand in a trial that began last October.

He said Smith was aware of the refinery when she and her husband
originally purchased their Rodney St. home. Based on her
testimony, Mr. Lenczner said none of Ms. Smith's neighbours
complained about the Inco plant prior to 2000.

He said Ms. Smith described Rodney St. as "an attractive place
for a young couple to buy a house."

Mr. Lenczner said Ms. Smith's property was the only property of
24 properties on the ministry's remediation list that, to date,
has not been cleaned up.

"The only property that was not cleaned up was Ellen Smith's, who
refused to have the property cleaned up and who has lived there
for six years (after the order was issued). If you don't want to
clean up your property, how can you have unreasonable
interference? That is tantamount."

Mr. Lenczner said 200 homes per year have been bought and sold in
Port Colborne since 2000 and more than 1,700 homes in total have
been bought and sold over the past eight years.

"On the face of it, that tells you people are not having any
difficulty buying and selling homes."

He asked how nickel could be considered a "nuisance" when Inco
ceased nickel refining in Port Colborne 25 years ago.

"Where is the harm?" Mr. Lenczner said. "There is none in the
evidence."

Mr. Lenczner said the Inco plant had existed in Port Colborne
since 1918 and there were stories circulated in the media well
before 2000 that talked about nickel in the soil.

He suggested the plaintiff's argument fails to recognize local
history.

"We're playing a game here trying to pretend that a plant that
operated since 1918 went by unnoticed."

Mr. Lenczner also clarified why a Deloitte and Touche property
value study was cancelled before it was completed. He said the
cancellation had nothing to do with the class action.

"That was done at the request of the chair of the public liaison
committee (PLC) of the community-based risk assessment (CBRA).

He said the PLC felt Deloitte and Touche were "too allied" with
Inco to gain the public trust.

"It was done in the best interest of the CBRA process," Mr.
Lenczner added.

Mr. Lenczner further argued that much of the plaintiff's case
concerning property values was based on "speculation."

He spent much of the afternoon picking apart the testimony of
expert witness Robert Maughan, program manager of risk management
services for financial markets at Teranet, who took the stand in
November to provide information about real estate trends in Port
Colborne.

Mr. Lenczner said Mr. Maughan's testimony should be "rejected"
because of "flawed methodology."

He said the witness's testimony produced "absurd results."


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