/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/000711.MBX C L A S S A C T I O N R E P O R T E R Tuesday, July 11, 2000, Vol. 2, No. 133 Headlines ADVANCED TECHNICAL: Chitwood & Harley Files Securities Suit in Georgia ALS: Firm Cuts Myotrophin Supply After Failing to Win FDA Approval AUTOZONE, INC: Distributors Allege Retailers Violate Robinson-Patman Act AUTOZONE, INC: Store Managers Claim Overtime Pay in California BURIAL INSURANCE: States Ratify $214M Settlement on Discriminatory Rates DEPT OF MOTOR: CA Governor Announces Dropping of Appeal in ADA Suit ENTERTAINMENT INTERNET: Resolves Investor Lawsuit Filed in 1999 ENTRUST TECHNOLOGIES: Cauley & Geller Files Securities Lawsuit in Texas FIRSTWORLD COMMUNICATIONS: Cauley & Geller Files Securities Suit in CO FIRSTWORLD COMMUNICATIONS: Dyer & Shuman Files Securities Suit in CO FLEXI-VAN LEASING: Announces Successful Tender for Castle-Cooke Shares INMATES LITIGATION: HIV and Other Medical Ills Not Cause For Leniency INMATES LITIGATION: Sp Ct Leaves PLRA Intact; Remands IN Penleton Case INTUIT: Are Wheels Coming off QuickBooks Provider? LA COSA: Organized Crime Implicated in Securities Fraud Arrests NATIONAL WESTMINSTER: Stock Appreciation Plan Is Excluded Under ERISA SARALAND APARTMENTS: Residents Sue over Hazardous Substance Exposure TECHNICAL CHEMICALS: Announces Dismissal of Shareholder Lawsuit in FL THRIFTY OIL: High Court OKs Consumers' Class over Discounts at Stations TOBACCO LITIGATION: Smokers Seek Up to $196 Bil Punitive in FL Case USDA: Update on Employees' Action to End 'Widespread' Discrimination WESTCHESTER COUNTY: Program for Immigrants Follows Years of Legal Battle WEYERHAEUSER COMPANY: Reaches National Settlement over Hardboard Siding ********* ADVANCED TECHNICAL: Chitwood & Harley Files Securities Suit in Georgia ---------------------------------------------------------------------- A class action lawsuit was filed in the United States District Court for the Northern District of Georgia, Atlanta Division, on behalf of all persons who purchased the stock of Advanced Technical Products, Inc. (NASDAQ: "ATPXE") between April 22, 1998, and March 3, 2000, inclusive (the "Class Period"). The complaint charges ATP, certain of its officers and directors and one of its subsidiaries with violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder. The complaint alleges that defendants issued a series of materially false and misleading statements concerning the state of ATP's business and its acquisitions. As a result, ATP's stock price was artificially inflated throughout the Class Period. Contact: Chitwood & Harley Martin D. Chitwood, Esq./M. Krissi Temple, Esq. (888) 873-3999/(404) 873-3900 mkt@classlaw.com ALS: Firm Cuts Myotrophin Supply After Failing to Win FDA Approval ------------------------------------------------------------------ Kyle Hahn can no longer speak clearly, his body ravaged by ALS, the fatal neurological disease named for baseball legend Lou Gehrig. But there was no mistaking his horror late last year when he learned that his shipments of an experimental medication called Myotrophin were being cut off. His girlfriend, Terry Frank, said his face froze into a "silent scream" that reminded her of the agonized stare in an Edvard Munch painting. Hahn, of Trenton, Ohio, was one of 160 patients using Myotrophin on an experimental basis, undeterred by a debate among scientists and regulators about whether the drug really worked against amyotrophic lateral sclerosis, or ALS. Already robbed of his ability to walk and play guitar, the musician really didn't care what skeptics thought about Myotrophin. He was convinced it was keeping him alive. Then came a decision by Cephalon Inc. of West Chester, Pa., to stop the free shipments and cut off Myotrophin production. "It felt like I was cast into a void . . . beyond anything I have yet faced in living with this nightmare known as Lou Gehrig's Disease," Hahn said in an e-mail written with a computer device that responds to movements of his eyeglasses. Now, as Hahn's supplies dwindle, a federal grand jury is examining Cephalon and the story behind the drug the company once promoted on Wall Street as a breakthrough against ALS. The grand jury investigation is the latest installment in a years-long drama that has repeatedly raised, then dashed the expectations of investors, the medical world and, most importantly, ALS patients. At issue is whether Cephalon cut scientific corners or misrepresented test results to try to speed Myotrophin's race to market. Since Cephalon began seeking federal Food and Drug Administration approval in 1995, it has been dogged by questions about its testing, stock sales and promotional tactics. Anonymous tipsters complained to the FDA about a "wide range" of possible improprieties at its Beltsville manufacturing plant. Stockholders accused company officials of hyping Myotrophin test results to boost stock prices and enrich themselves. Cephalon officials say the company has done nothing wrong and is cooperating with the investigation. The decision to stop distributing Myotrophin was not related to the inquiry, they say. The company could not afford to invest more in a product that faced an uncertain future. Patients like Hahn don't know who to believe. They only want a drug--any drug--that might make their lives more bearable. "The patients are desperate. They'll grasp at any straw," said Abbey Meyers, president of the National Association for Rare Disorders, an advocacy group that administered a patient lottery for Myotrophin. "Who is going to tell the patients the scientific truth, unbiased by these financial influences? You don't know who to trust." (The Washington Post, July 10, 2000) AUTOZONE, INC: Distributors Allege Retailers Violate Robinson-Patman Act ------------------------------------------------------------------------ AutoZone, Inc., is a defendant in a lawsuit entitled "Coalition for a Level Playing Field, L.L.C., v. AutoZone, Inc., et al.," filed in the U.S. District Court for the Eastern District of New York on February 16, 2000. The case was filed by over 100 plaintiffs, which are principally automotive aftermarket warehouse distributors and jobbers, against eight defendants, which are principally automotive aftermarket parts retailers. The plaintiffs claim that the defendants have knowingly received volume discounts, rebates, slotting and other allowances, fees, free inventory, sham advertising and promotional payments, a share in the manufacturers' profits, and excessive payments for services purportedly performed for the manufacturers in violation of the Robinson-Patman Act. Plaintiffs seek approximately $1 billion in damages (including statutory trebling) and a permanent injunction prohibiting defendants from committing further violations of the Robinson-Patman Act and from opening up any further stores to compete with plaintiffs as long as defendants continue to violate the Act. The Company believes this suit to be without merit and will vigorously defend against it. AUTOZONE, INC: Store Managers Claim Overtime Pay in California -------------------------------------------------------------- AutoZone, Inc., is a defendant in a purported class action lawsuit entitled "Melvin Quinnie on behalf of all others similarly situated v. AutoZone, Inc., and Does 1 through 100, inclusive" filed in the Superior Court of California, County of Los Angeles, in November 1998. The plaintiff claims that the defendants failed to pay overtime to store managers as required by California law and failed to pay terminated managers in a timely manner as required by California law. The plaintiff is seeking injunctive relief, restitution, statutory penalties, prejudgment interest, and reasonable attorneys' fees, expenses and costs. On April 3, 2000, the court certified the class as consisting of Chief managers who became AutoZone employees in standardized stores on January 1, 1999, for their claims since January 1, 1999, only, and all AutoZone store managers in the State of California. The Company will continue to vigorously defend this action. Subsidiary Chief Auto Parts Inc. Sued AutoZone, Inc., and its wholly-owned subsidiary, Chief Auto Parts Inc., are defendants in a purported class action lawsuit entitled "Paul D. Rusch, on behalf of all others similarly situated, v. Chief Auto Parts Inc. and AutoZone, Inc." filed in the Superior Court of California, County of Los Angeles, in May 1999. The plaintiffs claim that the defendants have failed to pay their store managers overtime pay from March 1997 to present. The plaintiffs are seeking back overtime pay, interest, an injunction against the defendants committing such practices in the future, costs, and attorneys' fees. The Company is unable to predict the outcome of this lawsuit at this time, but believes that the potential damages recoverable by any single plaintiff are minimal. However, if the plaintiff class were to be certified and prevail on all of its claims, the aggregate amount of damages could be substantial. The Company is vigorously defending against this action. Ty Newlin Litigation AutoZone, Inc., is a defendant in a lawsuit entitled "Ty Newlin, individually, and on behalf of others similarly situated, v. AutoZone, Inc., and Does 1 through 50, inclusive," filed in the Kern County, California, Superior Court on April 27, 2000. The plaintiff, on behalf of a class of employees, alleges that AutoZone failed to pay overtime to its store management employees. The plaintiff is seeking unpaid overtime compensation, penalties, punitive damages, interest, attorneys' fees, and an injunction requiring AutoZone to pay overtime compensation as required under California and federal law. The Company intends to vigorously defend this action. BURIAL INSURANCE: States Ratify $214M Settlement on Discriminatory Rates ------------------------------------------------------------------------ States representing more than 86 percent of the American General policyholders that paid race-based life insurance premiums have ratified a multi-million-dollar penalty and restitution settlement negotiated by Florida Insurance Commissioner Bill Nelson. Ratification of the settlement by insurance regulators from 26 states and the District of Columbia completes the first of two steps needed before $206 million in refunds and other relief will be distributed by American General Life and Accident Insurance Company to millions of victimized policyholders or their heirs. Still needed -- and anticipated later this summer -- is approval by a federal court judge in Tennessee of a related settlement of a class-action lawsuit against the Nashville-based insurance company. "We are well on our way to giving millions of people the relief they deserve," said Nelson, who executed the regulatory settlement last month and needed approval within 15 days from states representing 67 percent of the policyholders in order to make it binding. "We've exceeded our goal, and we expect many more states to join in this settlement before we're done." On top of the $206 million in restitution to policyholders, the settlement imposes a $7.5 million penalty against American General to be split among participating states. The company -- which says it unknowingly acquired the racially priced policies in its acquisition of Jacksonville-based Gulf Life and Independent Life and several other smaller life insurance companies -- will also make a $2 million contribution to the National Association for the Advancement of Colored People. Overall, the settlement involves about 9.1 million so-called industrial life, or "burial insurance," policies sold door-to-door to low-income and minority consumers, mostly during the 1950s and 1960s. Agents typically visited the customers on a weekly basis, collecting small premiums that in many cases would ultimately exceed the low value of the policy. About 4.9 million of the policies acquired by American General had premiums based on race, charging African-American customers more than whites for the same insurance. Although the industry stopped selling racially-discriminatory insurance after enactment of new civil rights laws in the '60s, investigators for Nelson turned up evidence that American General continued collecting the higher premiums on existing policies until he issued a "cease and desist" order last April. That discovery was central to the settlements separately reached on June 21 by Nelson and private attorneys for policyholders in the class-action lawsuit. The National Association of Insurance Commissioners had authorized Nelson to seek a regulatory resolution with American General on behalf of all 50 states and the District of Columbia. Under terms of both the regulatory and class-action settlements, American General will provide several different types of policyholder relief, including cash refunds, increased death benefits and significant premium reductions. In addition to the 4.9 million race-based policies, the settlements cover several million more industrial life policies that were sold without race being a factor. Many involved payment of premiums that over time far exceeded the face value of the policy. The states that have now ratified the settlement, and in which 86.3 percent of the race-based policies were sold, are: Alabama, Colorado, Delaware, Florida, Georgia, Iowa, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maryland, Maine, Michigan, North Carolina, Nebraska, Nevada, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Texas, Virginia, Vermont, and West Virginia; plus the District of Columbia. U.S. District Court Judge John T. Nixon has scheduled a hearing for 10 a.m., September 8 in Nashville to consider whether the class-action settlement is fair, adequate and reasonable. Meanwhile, Nelson is continuing his investigation of four other insurers that, along with American General, carry most of the industrial life policies in Florida. They are: United Insurance Company of America, Monumental Life Insurance Company, Liberty National Life Insurance Company, and Life Insurance Company of Georgia. (Source: Florida Department of Insurance) DEPT OF MOTOR: CA Governor Announces Dropping of Appeal in ADA Suit ------------------------------------------------------------------- Gov. Gray Davis backed away from a brawl with the disabled community when he announced he would drop California's appeal to the U.S. Supreme Court in a case over payment of a $3 annual fee for handicap placards -- but only if state lawyers could reach settlement with the plaintiffs. Proponents for the disabled feared the state's pursuit of the case might ultimately gut the Americans with Disabilities Act of 1990 by exempting first states, then private entities from its provisions. "I continue to believe California has the right to charge this nominal fee," Davis said, "but I simply will not be party to any lawsuit that could put the Americans with Disabilities Act in jeopardy." In the 4-year-old case of Dare v. Department of Motor Vehicles, 99-1417, two southern California men had filed a class action against the DMV over its requirement of a $3 annual fee for a handicap placard. The placard is purchased by 1.1 million disabled Californians annually to be displayed in cars in which they are passengers. Although the DMV doesn't charge for license plates with the handicap logo, it argued it needed the $3.3 million it earned for the placards to defray the costs to its $500 million annual operating budget. But two lower courts found that the fee violated provisions of the ADA that require states to provide free accommodations to the disabled, including ramps, sign language interpreters, braille readers -- and handicap placards. Davis dismayed disability proponents by mounting a Supreme Court appeal of the Ninth Circuit U.S. Court of Appeals ruling issued last September. "I can't believe a Democratic governor would do this," said Patricia Yeager, director of the California Foundation for Independent Living Centers, a coalition of organizations for the disabled. She cited a major push throughout the United States in which some 18 states have filed similar suits. The suits invoke state sovereignty under the 11th Amendment to argue that state and local governments should not be sued in federal court for violations of federal law. Had the Supreme Court accepted the case, it would have been the first to challenge the ADA under Title II of its provisions, which mandates local compliance. "This is not about disputing a placard fee -- who cares!" said Claudia Center, an attorney with the San Francisco Legal Aid Society. "If ADA is struck down as it applied to the states, all sorts of provisions crucial to making schools, hospitals, voting booths accessible to the disabled could have been struck down as well." (The Recorder, July 3, 2000) ENTERTAINMENT INTERNET: Resolves Investor Lawsuit Filed in 1999 --------------------------------------------------------------- Entertainment Internet, Inc. (TEI) (EQS:EINI) confirmed resolution of an investor lawsuit (Subbiah, CV99-11472SWV) filed against TEI and its subsidiary corporation during 1999. Resolution was achieved last Friday July 7 through a tiered agreement that allows TEI considerable time to continue its turnaround efforts without the burden of payment obligations left by prior management of its subsidiary corporation, Only Multimedia Network, Inc. (OMNI). TEI Chief Operating Officer Jeremy Schuster served as litigation counsel in the Federal court action, which involved an investment unit sold by OMNI to an accredited investor during 1996. According to Schuster, the litigation was "a contentious battle" that ended favorably and with respect for the corporation's turnaround plans. TEI Co-chairman Mohamed Hadid said the claim resulted from "the unfortunate legacy of debt left by prior OMNI management" that he and Mr. Schuster have been working to restructure and eliminate. Mr. Hadid added that he is "looking forward to concentrating efforts on growth" as the corporation moves forward. ENTRUST TECHNOLOGIES: Cauley & Geller Files Securities Lawsuit in Texas ----------------------------------------------------------------------- The Law Firm of Cauley & Geller, LLP announced that it has filed a class action in the United States District Court for the Eastern District of Texas on behalf of all individuals and institutional investors that purchased the common stock of Entrust Technologies Inc. (Nasdaq:ENTU) between April 19, 2000 and July 3, 2000, inclusive (the "Class Period"). The complaint charges that the Company and certain of its officers and directors violated the federal securities laws by providing materially false and misleading statements regarding the Company's financial condition. Entrust develops, markets, and sells products and services that allow enterprises to manage trusted, secure electronic communications and transactions over networks. The complaint alleges that defendants misrepresented the revenues that Entrust was deriving from its public key infrastructure business which together with defendants' false representations that Entrust would post 2Q 2000 EPS of $0.08, operated to artificially inflate the price of Entrust stock to a Class Period high of $82 3/4 on 6/30/00. This upsurge in Entrust's stock caused by defendants' false and misleading statements enabled Entrust to complete the $703 million stock-for-stock acquisition of enCommerce. On 7/5/00, two business days after the acquisition of enCommerce was completed, Entrust revealed that it was in fact suffering a huge decline in revenues, was not posting earnings per share growth, and contrary to defendants' repeated assurances, Entrust was forced to reveal the problems it had been experiencing during the Class Period in attempting to grow its business. This announcement caused its stock price to drop to as low as $34 3/8 (or over $40 per share) on record volume of 19 million shares on 7/5/00, causing hundreds of millions of dollars in damages to members of the Class. Contact: Cauley & Geller, LLP, Boca Raton Sue Null, Jackie Addison or Sharon Jackson Toll Free: 888/551-9944 E-mail: Cauleypa@aol.com FIRSTWORLD COMMUNICATIONS: Cauley & Geller Files Securities Suit in CO ---------------------------------------------------------------------- The Law Firm of Cauley & Geller, LLP announced that it has filed a class action in the United States District Court for the District of Colorado on behalf of all individuals and institutional investors that purchased the common stock of FirstWorld Communications Inc. (Nasdaq:FWIS) pursuant to or traceable to the Company's initial public offering ("IPO") on March 8, 2000. The complaint charges that the Company and certain of its officers and directors violated the federal securities laws by providing a false and misleading Registration Statement and Prospectus for the IPO of FirstWorld common stock. The complaint alleges that as a direct result of the falsity of the Registration Statement and the Prospectus, FirstWorld's IPO was sold at a price far exceeding the true value of the stock at that time. Cauley & Geller, LLP has substantial experience representing investors in securities fraud class action lawsuits such as this. The firm has offices in Florida, Arkansas and California, but represents shareholders from throughout the nation. If you have any questions about how you may be able to recover for your losses, or if you would like to consider serving as one of the lead plaintiffs in this lawsuit, you must take appropriate action by September 5, 2000. You are encouraged to call or e-mail the Firm or visit the Firm's website at www.classlawyer.com. Contact: Cauley & Geller, LLP, Boca Raton Sue Null, Jackie Addison or Sharon Jackson Toll Free: 888/551-9944 E-mail: Cauleypa@aol.com FIRSTWORLD COMMUNICATIONS: Dyer & Shuman Files Securities Suit in CO -------------------------------------------------------------------- A class action lawsuit was filed in the United States District Court for the District of Colorado on behalf of all purchasers of the common stock of FirstWorld Communications, Inc. (Nasdaq:FWIS) pursuant or traceable to the Company's initial public offering ("IPO") on March 8, 2000. The complaint charges FirstWorld and certain of its officers and directors with issuing a false and misleading Registration Statement and Prospectus for the IPO of FirstWorld common stock. The complaint alleges that, as a direct result of the falsity of the Registration Statement and the Prospectus, FirstWorld's IPO was sold at a price far exceeding the true value of the stock at that time. Contact: Dyer & Shuman LLP, Denver Kip B. Shuman Jeffrey A. Berens 303/861-3003 800/711-6483 Fax: 303/830-6920 Attorneys@DyerShuman.com FLEXI-VAN LEASING: Announces Successful Tender for Castle-Cooke Shares ---------------------------------------------------------------------- Subsequent to the announcement of agreement to settle lawsuit over tender offer, as previously reported in the CAR, Castle & Cooke, Inc. (NYSE: CCS) and Flexi-Van Leasing, Inc. announced on July 7 that approximately 7.2 million shares have been tendered in response to the tender offer made by Flexi-Van's wholly-owned subsidiary, Castle Acquisition Company, Inc., for the shares of Castle & Cooke, Inc., which Flexi-Van and its affiliates do not already own. Following the acceptance of these shares, Castle Acquisition Company, Inc. will own more than 68%, or approximately 11.7 million shares, of Castle & Cooke, Inc. Due to a system failure and communications and reporting problems between the Depositary Trust Company and the Exchange Agent, it is possible additional shares have been tendered. As a result, the offer has been extended by one extra day to 12:00 p.m. Eastern Standard Time on July 7, 2000, so that the problem can be resolved and additional shares tendered. In connection with the tender offer, the Circuit Court of the Second Circuit, State of Hawaii, granted preliminary approval on July 5, 2000, to the previously announced settlement of the purported class actions challenging the tender offer. INMATES LITIGATION: HIV and Other Medical Ills Not Cause For Leniency --------------------------------------------------------------------- A prison inmate is not entitled to a reduction in her 94-month prison sentence based on family hardship and her recent HIV diagnosis, a federal judge in Louisiana said. Lillian Brown was sentenced in August 1996 on one count each of possessing and intending to distribute cocaine. After serving part of her sentence, she filed her own motion pleading for leniency. Brown pointed to her medical history, which includes her HIV diagnosis and two mastectomies while in prison. She also said that her absence from the family posed a hardship to her teen-age daughter, and that she had reformed while in prison. The judge rejected her motion, saying there was nothing under 28 U.S.C. 2255 which provides grounds for such a reduction. The statute authorizes reductions if the sentence was imposed in violation of the Constitution or federal law, or if the court was without jurisdiction to impose the sentence, or if the sentence was in excess of the maximum authorized by law. None of those conditions applied in Brown's case. She could not seek a reduction under Rule 35 (b) or (c) because such a petition must be made by the government. The judge said her medical conditions do not warrant a reduction in sentence, although she might be able to pursue other legal remedies under a class-action suit pending against the federal Bureau of Prisons. U.S. v. Brown, No. Crim. A. 96-79 (E.D. La., 4/11/00). (AIDS Policy and Law, July 7, 2000) INMATES LITIGATION: Sp Ct Leaves PLRA Intact; Remands IN Penleton Case ---------------------------------------------------------------------- After a three-year battle between the Indiana Department of Corrections and prisoners at the Pendleton Correctional Facility, the U.S. Supreme Court found the Prisoner Litigation Reform Act to be sound in its entirety and remanded the matter to the lower courts to determine the remaining issues of the conditions of confinement at the facility. In 1975, Pendleton inmates won a class action suit and the District Court for the Northern District of Indiana issued an injunction, which remains in effect, to remedy unacceptable conditions of confinement at Pendleton. In 1995, Congress enacted the PLRA which, among other things, lays down the terms under which a facility can end the prospective relief, once the unacceptable conditions have been rectified. Specifically, one section of the PLRA says a facility may move to end relief if the court determines it is no longer necessary. But the court has only 30 days to make its determination before it places a stay or hold on that relief. The stay ends only when the court finally rules on whether the relief still is necessary. If it is necessary, the injunction for prospective relief is restored. If not, the court orders it to permanently end. In 1997, Pendleton officials filed a motion to terminate the court-ordered relief, saying it was no longer necessary, and waited the 30 days before a stay could be entered (the permanence of which was to be determined by the courts, according to terms of the PLRA.) The inmates moved to enjoin the stay, arguing that the stay provision of the PLRA violates the principles of due process and separation of powers. The district court agreed with the prisoners and enjoined the stay. The 7th Circuit upheld the ruling on appeal. The circuit court concluded that section 3626 (e)(2) of the PLRA did not allow the courts to enjoin the stay. It found the statute as constructed was unconstitutional because it violated the separation of powers doctrine. The U.S. Supreme Court disagreed. By a slim majority, the justices reversed the decisions of the lower courts, leaving the PLRA intact. The matter as to whether prospective relief is still necessary at the prison was remanded to the lower courts to decide. Miller v. French, et al., Nos. 99-224 and 99-582, (U.S. 06/19/2000.) (Corrections Professional, July 7, 2000) INTUIT: Are Wheels Coming off QuickBooks Provider? -------------------------------------------------- Are the Wheels Coming Off Intuit? Critical product support functions for QuickBooks, the flagship product for Intuit, seem to have collapsed, and the company is currently unable to provide adequate support for it's enormous customer base. Tens of thousands of small businesses in the United States depend upon QuickBooks to process payroll and compute the related federal and state taxes, generally on a weekly or biweekly basis. QuickBooks, the dominant small business accounting software, has been withdrawing support of older versions of QuickBooks forcing customers to purchase and utilize the company's new payroll systems. Under the most favorable assumptions, Intuit is unable to provide customer support for prompt migration to the new payroll system, threatening the small business user's viability. More serious fundamental flaws in the new products might, of course, be the cause of the difficulties. Intuit's new payroll system, forced on some customers within the last few weeks, requires the user to go on-Line to process payroll. Quickbooks, which now requires regular downloaded updates from Intuit, will not process payroll without a connection. Error messages upon connection indicate a phone number to call for Product Support. As of July 5, the recording said the company was too busy to deal with the call and then disconnected the caller. On July 6, the message gave a fix for some other error and a web site address for further information. Messages left at the web site were not answered. On July 10, another help line, different from the one recommended, advised the caller that the wait for service is "more than 60 minutes." Intuit's comments were promised in time for inclusion in this article, but were not received. In addition to QuickBooks, Intuit, a NASDAQ-listed company, markets Quicken, the leading personal finance software, and Turbo-Tax, the best-selling tax preparation software. LA COSA: Organized Crime Implicated in Securities Fraud Arrests --------------------------------------------------------------- The U.S. Attorney's Office in Manhattan has charged over 120 people with securities fraud, including members of the five organized crime families of La Cosa Nostra in the New York City area. According to the indictments, investors were swindled out of $50 million over a five-year period in a scheme marked by racketeering, bribery, extortion and even murder solicitation. P. 4. (Securities Litigation & Regulation Reporter, June 21, 2000) NATIONAL WESTMINSTER: Stock Appreciation Plan Is Excluded Under ERISA --------------------------------------------------------------------- Plaintiff employees brought suit against their employer, defendant corporation, pursuant to the Employee Retirement Income Security Act. Plaintiffs sought to enforce their rights under a stock appreciation plan. Essentially plaintiffs argued that the payments received, under this plan, were improperly valued. Defendant moved to dismiss, contending that the plan was not a "plan" under ERISA. Having found that the disputed plan was a bonus plan, the court noted that it was excluded from ERISA, unless payments under the plan was "systematically deferred" to the postemployment period. The court concluded that in the instant case, the receipt of payments after retirement were merely "incidental" to the administration of the plan, and did not take it outside of an ERISA excluded bonus plan. Accordingly, the court granted defendant's motion to dismiss. Hahn V. National Westminster Bank Qds:03762590 The Parties Plaintiffs are individuals who were employed by National Westminster Bancorp, Inc. ("Bancorp"). In this lawsuit, Plaintiffs seek to enforce their rights (alleged to be both contractual and pursuant to ERISA) under a plan known as the "Phantom Stock Appreciation Plan of National Westminster Bancorp as Amended and Restated April 1994" (hereinafter the "Plan," the "Phantom Stock Plan" or the "PSP"). Plaintiffs received payments which came due under the PSP after a merger (the "Merger") that resulted in the sale of Bancorp's assets and business to Fleet Bank of New York, N. A. ("Fleet"). n1 Essentially, Plaintiffs argue that the payments received were improperly valued. According to the complaint, Plaintiffs' shares should have been valued at approximately $ 108.00 per share and were instead, valued at only $ 37.00 per share. They seek here the difference between these two values as well as costs and attorneys' fees pursuant to ERISA. The Phantom Stock Plan The purpose of the Phantom Stock Plan was to "provide key employees with financial incentives for improving the long-term performance" of Bancorp and "increasing the value" of the institution to its parent company. To these ends, the PSP provided that "Phantom Stock" would be issued to employees who "significantly affect the long-term performance [of Bancorp] and is intended to provide, in combination with other forms of compensation and benefits, a total compensation program which is competitive with the reward programs of other similar financial institutions." The PSP set the value of shares of "Phantom Stock Awards" and defined the individuals eligible to receive such awards. Those who were eligible to receive Phantom Stock Awards were executive officers or other key employees of Bancorp. Individuals receiving Phantom Stock Awards were referred to as "Participants," under the PSP. The decision to issue Phantom Stock Awards was placed in the discretion of the Compensation Committee of the Board of Directors of Bancorp. Each Phantom Stock Award represented the right to receive, as payment, an amount in cash equal to any appreciation in the "Fair Market Value of one Unit" (as defined in the PSP) between the date of grant of the Phantom Stock Award and the date of its exercise. In the event of a change in control of Bancorp, the PSP provided that the valuation of Phantom Stock Awards was to "reflect the purchase price for Bancorp." The PSP set a schedule for when Phantom Stock Awards could be turned in for cash payments or "exercised." One-third of the Award was allowed to be exercised on or after one year of the date of grant, two-thirds of the Award was allowed to be exercised on or after two years from the date of the grant and the Award could be exercised in full on or any time after three years from the date of the grant. Certain eventualities altered these time frames and the right to exercise Phantom Stock Awards under the PSP. For example, if a Participant was terminated for "cause," (including termination for a felony conviction), that employee's Phantom Stock Awards were automatically cancelled. If a Participant retired, those Phantom Stock Awards that were not exercisable as of the date of retirement become automatically vested and could be exercised three years after retirement. If a Participant's employment with Bancorp was terminated for any reason not set forth specifically in the PSP, his Phantom Stock Awards that were not exercisable as of the date of termination were to be automatically cancelled. Those Awards that were exercisable as of the termination were automatically exercised ninety days after the termination date unless exercise was requested prior to that date. The Merger and its Effect on PSP Participants Bancorp ceased to exist as an entity once the Merger was consummated. In a memorandum dated January 19, 1996, Participants in the Bancorp PSP were advised as to the implication of the Merger on their shares of Phantom Stock Awards. Participants were advised that when the sale to Fleet became final, the PSP would cease to exist. The final valuation of Phantom Stock Awards was stated to depend upon the precise value of the sale of Bancorp at its closing and was estimated, at the time, to be between $ 37.00 and $ 38.00 per share. In March of 1996, the PSP was amended to allow Participants to elect to defer compensation previously payable only in cash when exercising Phantom Stock Awards. Specifically, the PSP was changed, as of March 1996, to allow the Award payments to be deferred into a trust under Bancorp's Deferred Compensation Plan. In a memorandum dated April 5, 1996, Participants were advised of the deferral right created by the March amendment to the PSP. That memorandum informed Participants that they could participate in the NatWest Deferred Compensation Plan "in connection with your forthcoming distribution form the Phantom Stock Appreciation Plan." Participants were advised that they could elect to voluntarily defer cash to be received from the exercise of Phantom Stock Awards. The memorandum included a description of the five different investment options offered through the Deferred Compensation Plan and included forms to be filled out to exercise the rights described therein. Plaintiffs' Claims and Defendant's Motion Plaintiffs were all Participants under the PSP. Each received Phantom Stock Awards under the PSP prior to 1996. After the Merger, Plaintiffs' Awards were exercised at the rate of $ 37.00 per unit. As noted above, Plaintiffs allege that the proper value of their Awards should have been approximately $ 108.00 per unit. They seek the difference between these amounts as damages under their breach of contract and ERISA claims. Alleging that they are part of a large class of similarly situated individuals, Plaintiffs also seek class certification. Defendant contends that the PSP is not a "plan" under ERISA and accordingly, seeks dismissal of this sole federal claim. Defining an ERISA Employee Pension Benefit Plan Plaintiffs alleged that the PSP is an employee pension benefit plan subject to regulation under ERISA. ERISA defines such plans as "any plan... established or maintained by an employer... [which] by its express terms or as a result of surrounding circumstances... provides retirement income to employees, or results in a deferral of income to employees, for periods extending beyond the termination of covered employment or beyond. Plaintiffs' complaint also alleges that the PSP is an "employee welfare benefit plan" under ERISA. Plaintiffs, however, do not attempt to support such a claim and the court therefore deems the claim to have been abandoned. In any event, it is clear that the PSP does not fall into the statutory definition of such a plan since it was clearly not established to provide the benefits referred to therein. See 29 U.S.C. @ 1002(l). Plaintiffs have similarly failed to support the complaint's allegation regarding "top hat" plans under 29 U.S.C. @ 1051(2) and the court considers any such claim to be similarly abandoned. Despite the regulation excluding bonus payments form ERISA coverage, such payments may fall within the ERISA definition of employee pension benefit plans if: (1) payments are "systematically deferred to the termination of covered employments or beyond" or (2) payments are designed for the purpose of providing retirement income. 29 C.F.R. @ 2510.3-2(c). The mere fact that payments made pursuant to a plan continue after retirement does not transform an otherwise excluded bonus plan into one whose payments are "systematically deferred" to the termination of employment or one whose purpose is to provide retirement income. Thus, the fact that some payments may be made after retirement does not necessarily result in ERISA coverage. Murphy, 611 F.2d at 575; Albers, 1999 WL 228367 *4 (April 19, 1999); Foster, 1994 WL 150830 *2-3. Instead, post-retirement payments may be only "incidental to the goal of providing current compensation." International Paper, 978 F. Supp. at 511. Thus, several cases have held that ERISA does not apply to a bonus plan simply because it happens to provide payments after the end of an individual's employment and thus provides a source of retirement income. E.g., Emmenegger, 197 F.3d at 933; Albers, 1999 WL 228367 *4 (April 19, 1999) (payments made after retirement may be only a "by-product" of a plan's administration); Kaelin v. Tenneco, Inc., 28 F. Supp.2d 478, 486-87 (N.D. Ill. 1998) (granting of stock options that might result in post-employment payment "does not necessarily equate to a pension plan under ERISA"); Goodrich v. CML Fiberoptics, Inc., 990 F. Supp. 48, 49-50 (D. Mass. 1998) (plan does not provide retirement income "even if the exercise of options might result, incidentally, in some payment... after retirement"); Murphy, 611 F.2d at 575 ("mere fact that some payments under a plan may be made after an employee has retired or left the company does not result in ERISA coverage"). Indeed, even in a case where no payments could be made until the employee reached the age of sixty-five, the usual retirement age, the court refused to hold that payments were "systematically deferred" because the employee was free to continue his employment past the age of sixty-five. International Paper, 978 F. Supp. at 511. The PSP Is Not An EmpIoyee Pension Plan Applying the principles set forth above, the court concludes that the Phantom Stock Plan is not an employee pension plan within the meaning of ERISA, but instead constitutes a bonus plan that is not covered by the statute. First, it is clear that the PSP was created to provide additional compensation to current employees in recognition of their value to Bancorp. The Plan's express statement of purpose (to "provide key employees with financial incentives for improving the long-term performance" of Bancorp) is entitled to weight when determining the nature of the plan. Where, as here, the plan proclaims its intent to provide bonus compensation, a pension plan will not be found. See, e.g., Emmenegger, 197 F.3d at 932 (holding that phantom stock plan was a bonus plan where it's stated purpose was to provide "additional incentives for industry and efficiency and compensation for services rendered to the Corporation"); International Paper, 978 F. Supp. at 508 (stated purpose of plan to "motivate and reward a small select group... of executives and to align their interest with that of shareholders"); Foster 1994 WL 150830 *1 (stated purpose of plan to provide (additional compensation commensurate with... performance"). Having decided that the PSP is a bonus plan within the meaning of 29 C.F.R. @ 2510.3-2 (c), the question arises whether the Plan is subject to either of the exceptions set forth in the Regulation. Specifically, the question is: (1) whether payments under the plan are "systematically deferred" to the post employment period or, (2) whether the Plan was designed for the purpose of providing retirement income. See 29 C.F.R. @ 2510.3-2(c). Neither is true here. The latter exception to bonus plans must be rejected based upon the discussion above. Clearly, the PSP was never intended for the purpose of providing retirement income. Nor is there support for notion that the first-stated exception to the Regulation applies. The fact that certain payments could, by operation of the Plan, be granted after retirement, does not result in a finding that payments were "systematically deferred" to the post-employment period. The actual operation of the Plan was quite the opposite. Participants were free to cash in their Phantom Stock Awards while employed by Bancorp. This right was limited only by the vesting schedule set forth in the Plan, which provided for full vesting in the third year following a grant of a Phantom Stock Award. Here, as in the cases referred to above, the receipt of payments after retirement are merely "incidental" to the administration of the Plan and do not take the PSP outside of an ERISA-excluded bonus plan. Accord Murphy, 611 F.2d at 575; Albers, 1999 WL 228367 *4 (April 19, 1999) International Paper, 978 F. Supp. at 511; Goodrich, 990 F. Supp. at 49-50; Foster, 1994 WL 150830 *2-3. The fact that, beginning in March 1996, employees were given the option to defer Plan income into a trust under Bancorp's Deferred Compensation Plan does not alter the court's conclusion. Notwithstanding the March 1996 amendment, Participants retained the right to obtain an immediate cash payment in exchange for their Phantom Stock Awards. The deferral option was not, as argued by Plaintiffs, an "ERISA-significant" change. Instead, it was merely a choice provided to employees - not a requirement under the Plan sufficient to change its character. The mere presence of an option to defer compensation to post-retirement income no more transforms the PSP into a plan covered by ERISA than the fact that payments under the PSP could continue into an employee's post-employment period. Again, such post-employment income, is merely incidental to the Plan's administration. See Emmenegger, 197 F.3d at 933 (where option to defer existed there was "nothing in the terms of the program that would result in such deferral with the purposeful consistency required to make deferral systematic"); International Paper, 978 F.Supp. at 512 (plan not requiring deferral of income did not systematically defer income). In sum, there is nothing about providing employees with a choice that results a finding of a "purposeful consistency required to make deferral systematic." Emmenegae, 197 F.3d at 933. Finally, the court holds that there is a complete absence of facts to support the argument, advanced by Plaintiffs, that any "surrounding circumstances" renders the PSP an employee pension benefit plan. While the Department of Labor acknowledges that such facts may exist in certain cases, see Dep't of Labor Pension & Welfare Benefit Programs Op. No. 98-02A (Mar. 6, 1998), the opinion relied upon acknowledges that "surrounding circumstances" will result in a finding of ERISA coverage only if payments are systematically deferred to the post-employment period. That is not the case here and Plaintiffs have submitted no evidence raising a question of fact with respect thereto. Accord Emmenegger, 197 F.3d at 933 (holding that administration of phantom stock plan was devoid of facts showing systematic deferral of compensation sufficient to render plan covered by ERISA). Remaining Issues In view of the fact that the ERISA claim was Plaintiff's sole ground supporting federal jurisdiction, dismissal of that claim results in the remainder only of a state law breach of contract claim. This court declines to exercise supplemental jurisdiction over such claim. Instead, the court remands this case to the Supreme Court of the State of New York, County of Suffolk County, for lack of federal jurisdiction. The court expresses no opinion regarding the motion for class certification. Instead, the court denies the motion, without prejudice to renewal of such motion in the State court. The Court granted the defendant's motion to dismiss the complaint. (New York Law Journal, June 27, 2000) SARALAND APARTMENTS: Residents Sue over Hazardous Substance Exposure -------------------------------------------------------------------- On May 13, 1997, a number of former residents at the Saraland Apartment Complex served a purported class action complaint upon Hutton Advantaged Properties, Ltd. and H/R Special Limited Partnership, as well as Redwing Carriers, Inc., Saraland, Saraland's general partners and others alleging that all defendants are liable to the class members for adverse health consequences and other expenses attendant to hazardous substance exposure caused by the conduct of all defendants at the Saraland site. On June 5, 1998, this action against the Partnership was dismissed with prejudice, and accordingly, this matter is now concluded. The above conditions raise substantial doubt about Saraland's ability to continue as a going concern. These financial statements do not include any adjustments that might result from the outcome of these uncertainties. TECHNICAL CHEMICALS: Announces Dismissal of Shareholder Lawsuit in FL --------------------------------------------------------------------- Technical Chemicals and Products, Inc. (Nasdaq:TCPI), a manufacturer and worldwide marketer of point-of-care medical diagnostic products, announced that on July 3, 2000 the United States district Court for the Southern District of Florida dismissed the securities class action lawsuit against the company and its Chairman. The Court has given the Plaintiffs until July 24, 2000 to serve a second amended complaint. The case has been previously reported on the CAR. THRIFTY OIL: High Court OKs Consumers' Class over Discounts at Stations ----------------------------------------------------------------------- The state Supreme Court in late June broadened the circumstances under which a suit charging violation of consumer protection statutes may be certified as a class action. In a unanimous decision, the high court overturned lower court denying class action status to a suit attacking a gasoline retailer for not offering cash discounts at all of its stations. The rulings by since-retired Los Angeles Superior Court Judge Loren Miller Jr. and by Div. One of this district's Court of Appeal were erroneous in three respects, Justice Marvin Baxter said. It was improper to deny class certification based upon the trial judge's preliminary assessment that Rochelle Linder's suit against Thrifty Oil Co. lacked sufficient merit, Baxter said. The lower courts, he added, gave inadequate consideration to the possible benefits of a class action, and erroneously concluded that the aggregate amount of potential statutory penalties would be either too small or too onerous to support class certification. Linder accused Thrifty of violating two provisions of the Song-Beverly Credit Card Act of 1971Civil Code Sec. 1748.1, prohibiting surcharges for the use of credit cards, and Sec.1747.8(a)(3), prohibiting the use of a form which requires the customer to provide any "personal identification number," including a telephone number. She asked the court to certify a class made up of all persons who used credit cards at Thrifty stations during a three-year period beginning in May 1992 and had to pay more than the cash price, or who had to fill out "prohibited credit card transaction forms." Linder contended that although the section prohibiting surcharges specifically permits discounts for using cash if "offered to all prospective buyers," Thrifty was in violation because it did not offer such discounts at all of its stations. But Miller found that there was no "community of interest" among prospective class members, since each station offering the discount posted its cash and credit prices and allowed every customer to choose. He also found that any benefit to class members would be insubstantial, since the difference between the cash and credit price would be less than a dollar for a full tank of gas. The Court of Appeal concluded that Miller's ruling wasn't an abuse of discretion. But Baxter concluded that the trial court's discretion doesn't include the right to prejudge the merits of the action as part of the class-certification process. "When the substantive theories and claims of a proposed class suit are alleged to be without legal or factual merit, the interests of fairness and efficiency are furthered when the contention is resolved in the context of a formal pleading (demurrer) or motion (judgment on the pleadings, summary judgment, or summary adjudication) that affords proper notice and employs clear standards," Baxter said. "Were we to condone merit-based challenges as part and parcel of the certification process, similar procedural protections would be necessary to ensure that an otherwise certifiable class is not unfairly denied the opportunity to proceed on legitimate claims." The justice went on to say that the minimal amount of potential recovery for each class member will not bar class certification in every case. On remand, he said, the trial judge should consider other potential benefits of certifying Linder's proposed class, including whether class certification is the only means of deterring the allegedly unlawful conduct or prevent unjust enrichment of the defendant. Baxter also concluded that the lower court's analysis of the potential penalties was flawed. The lower courts noted that the statute imposes penalties of $ 250 for the first violation and $ 1,000 for each additional violation. Thus, they reasoned, if it were interpreted as permitting only a single penalty to be recovered by the class, the amount involved would be too small, whereas if Thrifty had to pay a separate penalty to each class member, it would be bankrupted. But Baxter said that "dilemma...does not actually exist." The statute, he explained, sets the maximum penalty, so the court could make an award to each class member in an amount substantially less than $ 250. Jeffrey J. Daar of Daar & Newman argued for Linder in the Supreme Court. Mark Chavez of the Mill Valley firm of Chavez & Gertler argued for Consumer Attorneys of California as amicus in support of the plaintiff, and Mark T. Drooks of Bird, Marella, Boxer & Wolpert made the argument for Thirfty. The case is Linder v. Thrifty Oil Co., 00 S.O.S. 3729. (Metropolitan News-Enterprise; Capitol News Service, June 27, 2000) TOBACCO LITIGATION: Smokers Seek Up to $196 Bil Punitive in FL Case ------------------------------------------------------------------- Smokers in a landmark case asked for up to $196 billion in punitive damages from the tobacco industry Monday to punish it for ruining the lives of millions of sick and addicted customers. ''This industry has left a half-century trail of deceit which has decimated millions of Americans,'' Stanley Rosenblatt said as closing arguments started in the two-year trial. ''Never have so few caused so much harm to so many for so long, and the day of reckoning has arrived.'' Each side has two days to summarize the class-action case on behalf of 300,000 to 700,000 sick Florida smokers against the nation's five biggest cigarette makers. The same six-member jury already has decided that the industry makes a deadly, defective product and awarded $12.7 million in compensatory damages to three representative smokers. Rosenblatt called $154 billion ''an appropriate, just number'' but suggested jurors consider a range of $123 billion or $196 billion. Witnesses for smokers testified the defendants could afford $150 billion to $157 billion. Tobacco companies have argued they should not be required to pay any more than their combined net worth of $15.3 billion, the difference between assets and liabilities on financial balance sheets. But Circuit Judge Robert Kaye refused to set any limit on possible damages. Florida law says a punitive verdict cannot put a company out of business, and judges are required to reduce any award that would. (AP Online, July 10, 2000) USDA: Update on Employees' Action to End 'Widespread' Discrimination -------------------------------------------------------------------- Minority workers at the U.S. Department of Agriculture have called on President Clinton to address "continuing widespread discrimination" within their agency. Lawrence Lucas, president of USDA's Coalition of Minority Employees, told FEA there is little accountability in the agency when it comes to civil rights issues. "We've been fighting this battle since [the coalition's] inception in June of 1995," Lucas said. "We decided the only thing we had left to do was go to the president." Members of the coalition met on Capitol Hill to bring national attention to the issue and to ask for a meeting with the president. The USDA is in the process of settling a controversial class action suit filed by black farmers. Lucas said the coalition wants the USDA to revamp its civil rights program. This includes: -- Establishing sanctions for managers who are found guilty of discrimination. -- Reinstituting Asian American programs that have been dismantled. -- Placing the civil rights office directly under the authority of the head of the agency. The coalition has gotten support from several lawmakers, including Rep. Patsy Mink, D-Hawaii, and Sen. Charles Robb, D-Va. In addition to a meeting with the president, the group is also pursuing congressional oversight hearings on USDA workplace discrimination, Lucas said. In an April letter to USDA Secretary Dan Glickman, Robb raised concerns about civil rights problems at the agency. "I have heard from a number of minority and women employees," Robb said. "The hostile work environment for many has either continued or gotten worse over the last few years." In recent years, USDA has issued several reports on its civil rights program. The most recent one shows slight improvements in minority hiring. (Federal EEO Advisor, July 6, 2000) WESTCHESTER COUNTY: Program for Immigrants Follows Years of Legal Battle ------------------------------------------------------------------------ Someone looking for a model of how to integrate poor Hispanic immigrants into a prosperous suburban community would probably not start in this Westchester County town, where years of legal battles have pitted unwelcome newcomers against local officials. But largely because of that history of discord, Mount Kisco is now home to an ambitious new program that seeks to do something few local suburbs have accomplished -- to ford the river of race, class and ethnicity and make the immigrants feel they are accepted and valued in a largely affluent suburb. The Buddies Program, as it is known, faces numerous obstacles in a town where immigrants stand on the street by the train station looking for yard work as suburban women glide by in their S.U.V.'s. First among them is that Westchester County, outside its most diverse communities like Mount Vernon, Ossining or Yonkers, is a place where people seem more accustomed to saying "buenos dias" during a Costa Rican vacation than to neighbors in their own towns. Still, the program's organizer, Carla Rediker, a social worker at Mount Kisco Elementary School, has so far rounded up almost 50 immigrant parents and half as many local residents who want to work with them. "We believe that cultural change occurs as one person after another does the right thing," Ms. Rediker said. "Then we can begin healing the highly publicized racial tensions here." So with mimeographed fliers in the windows of Mount Kisco's Hispanic restaurants and coin laundries, she has lured cautious immigrants to twice-weekly classes that combine English as a second language with life skills. And she has begun pairing them with American families who can guide and befriend them as they settle in this new and often hostile land. The chasm is particularly deep here. Mount Kisco has weathered at least four lawsuits on behalf of its immigrants. Three were class actions alleging discriminatory raids on overcrowded housing and gathering places where day laborers wait for work. Those cases ended in out-of-court settlements favorable to the immigrants. The fourth was a case involving the eviction of a restaurant owner who changed her Chinese cuisine to attract a Hispanic clientele. A federal judge stayed the eviction in language that scathingly condemned the town. In this atmosphere, the Buddies Program is trying to build bridges on individual levels, and Lenore Linares and Evelin Diaz are at the leading edge of the experiment. They came together, first in a classroom at Mount Kisco Elementary School, the most heavily Hispanic in the district with 4 in 10 children from Spanish-speaking homes, and later in each other's homes. They have known each other only a few months but are already discovering cross-cultural understanding. Ms. Rediker's goal, after a year of counseling immigrant children, is to give their parents a toehold "in this country, this community and this school district." At the same time, she hopes to encourage their American counterparts to acquaint themselves with Hispanic culture and language and thus view the newcomers as an asset rather than an eyesore. It is likely to be an uphill battle. Hostility, especially toward the Central American day laborers who have flooded downtown Mount Kisco, is less public than it once was but still corrosive. A planned recreation center for the laborers was recently jettisoned because of antagonistic neighbors. And a school budget went down on the first of two votes, in part because of the burden of educating non-English-speaking children. Even the Buddies Program, despite its enthusiastic participants, has its limitations. Four months after its inception, most of the English-speaking buddies are themselves the children of immigrants, raised in two languages and two cultures. The three-hour classes for Hispanics have included a series of guest speakers, including immigration lawyers, housing experts and town officials. Recently, Ms. Rediker escorted the group to a school budget hearing, even though most are not citizens and thus cannot vote. "I wanted them to be seen as a physical presence," she said. "They filled a third of the auditorium and that sent a message to the board that they must represent all the children in the district." School officials already see a change in the immigrants. "They get a feeling this is their school, too," said Bob Bernstein, who just completed a year as interim principal at Mount Kisco Elementary. "They come into the building with a sense of, 'Hey, I belong here too.' Plus, from what I can see, it's a catalyst for people to speak to each other." (The New York Times, July 10, 2000) WEYERHAEUSER COMPANY: Reaches National Settlement over Hardboard Siding ----------------------------------------------------------------------- Attorneys for homeowners announced on July 10 a nationwide settlement of a class action lawsuit, which was reported in the CAR in March, pending in San Francisco Superior Court against Weyerhaeuser Company, a Washington corporation, relating to Weyerhaeuser hardboard siding installed by homeowners on potentially millions of homes and other structures in California and across the country from January 1, 1981 through December 31, 1999. According to co-lead counsel for Plaintiffs and the Class, Jonathan Selbin, of San Francisco's Lieff, Cabraser, Heimann & Bernstein, LLP, the settlement, which is subject to Court approval, "provides a terrific recovery for homeowners and others whose Weyerhaeuser hardboard siding is prematurely failing. Over the nine year claims period provided for in the settlement, Weyerhaeuser will pay all timely, qualified claims for damaged siding, without any reduction of Class members' recoveries for attorneys' fees or costs." Commenting on the settlement, Christopher Brain, of Seattle's Tousley, Brain, PLLC, also co-lead counsel for Plaintiffs and the Class, stated: "After two years of hard fought and difficult litigation, this settlement provides substantial and prompt relief for homeowners across the country, without any of the risks and uncertainties of continued litigation." William Audet, of San Jose's Alexander, Hawes & Audet, also co-lead counsel for Plaintiffs and the Class, added: "we believe that by entering into this settlement, Weyerhaeuser has stepped up to the plate to provide fair and prompt relief to homeowners. We are proud of the result we have obtained and the relief this settlement provides." The case, captioned Nancie Williams, et al v. Weyerhaeuser Company, was filed in San Francisco Superior Court June 15, 1998. Weyerhaeuser hardboard siding is a manufactured exterior siding composed of wood fiber, resin and wax, and pressed to look like real wood siding. Weyerhaeuser sold the siding nationwide, and a significant percentage was sold in California and the Pacific Northwest. Plaintiffs sought monetary relief for homeowners and others who own or owned structures on which the siding was installed between January 1, 1981 and December 31, 1999. Under the terms of the settlement, Class members will be entitled to an inspection of their property by a court-appointed independent inspector, and to receive money damages as compensation for siding that qualifies as damaged within the meaning of the settlement. The settlement will be presented for court approval, and Class members will have the opportunity to exclude themselves from the Class and to comment on or object to the settlement's terms. If the Court approves the settlement, Class members can begin making claims by the end of the year. Contact: Lieff, Cabraser, Heimann & Bernstein, LLP Jonathan D. Selbin, 415/956-1000 www.lchb.com jselbin@lchb.com or Tousley, Brain, PLLC Christopher I. Brain, 206/682-5600 www.tousley.com cibrain@tousley.com or Alexander Hawes & Audet William M. Audet, 408/289-1776 www.alexanderlaw.com waudet@alexanderlaw.com ********* 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., Princeton, NJ, and Beard Group, Inc., Washington, DC. Theresa Cheuk, Managing Editor. Copyright 1999. 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 301/951-6400. * * * End of Transmission * * *