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               Wednesday, July 12, 2000, Vol. 2, No. 134


AIRFIELD RATES: McCarthy to Pursue NZ Tekapo Rates Issue in Court
AUXILIARY LEGAL: Gender Discrimination Suit Moves to Trial in CA
BRANCH DAVIDIAN SIEGE: Arson Investigators Expected to Testify
CSC CREDIT, EQUIFAX: Consumers Denied Supreme Court Review for Cert.
HITSGALORE.COM: Announces Dismissal of Appeal in Securities Suit in CA

HOLOCAUST VICTIMS: German Cultural Properties Consficated in Athens
INMATES LITIGATION: Backlog of Parole Cases Much Larger Than Stated
LATEX GLOVE: Case against Smith & Nephew Goes to Oral Argument July 7
NUCLEAR PLANTS: Radiation Claims Vs. duPong Et. Al. Pursued in 9th Cir
PADUCAH GASEOUS: Judge Agrees to Step Aside in Uranium Plant Case

PSS WORLD: Stockholders' Suit Filed in 1998 in FL in Earliest Stages
RENT-A-CENTER: Agrees to Pay and Stop Psychological Test to Job Seekers
TOBACCO LITIGATION: Defendants Seek Prompt Cert. in Health Care Case
TOBACCO LITIGATION: E.D.N.Y. Denies Cert. for Subclasses Issues
TOBACCO LITIGATION: FL Engle Case Asks BAT to Pay $ 22 Bil

UNION PACIFIC: To Pay $34M to Settle Suit over Southern Pacific Merger

* Denial of Training Opportunities Is Cause of EEOC Lawsuits


AIRFIELD RATES: McCarthy to Pursue NZ Tekapo Rates Issue in Court
Aviation entrepreneur Robin McCarthy is to pursue the Mackenzie District
Council for rates not charged on Tekapo airfield land. Mr McCarthy said
he expected to file a class action in the Timaru High Court within a
fortnight on behalf of district ratepayers for a refund of 90 per cent of
rates paid over 25 years. He said he would fund the claim but would
accept donations for legal costs. At this stage he would front the case.
Mr McCarthy alleges the council rated Air Safaris, which occupies the
field under licence from the New Zealand Defence Force (NZDF), for only
4ha of the 40ha licensed area.

Council chief executive Paddy Beban said: "We have wasted enough time on
matters relating to this issue and won't be responding at all on it. If
we get a law suit through this particular issue we will respond to it at
the time."

Access to Tekapo airfield has long been an issue for Mr McCarthy. He said
he expected a select committee inquiry on matters at the airfield to
proceed further.

Mr McCarthy alleges the council, Air Safaris and the NZDF acted contrary
to a directive by then Minister of Defence Max Bradford giving him access
to the airfield. Shortly afterward, he alleges Air Safaris' licensed area
was increased from four to 40ha. Mr McCarthy could still have been a
sub-lessee, had he met conditions. "The NZDF claim the original licence
was in error, it was always 40ha. "The council have only ever rated Air
Safaris over 4ha. I have asked the NZDF for an explanation and they have
been unable to give me one. I have asked the council to rate Air Safaris
over the additional 36ha but they refuse. They won't tell me why. "I do
not believe Air Safaris has ever had more than 4ha. The whole business of
them having 40ha was designed to keep us out of the market place. If I'm
wrong, why is the council not rating Air Safaris over the additional

All land in the Mackenzie district is rated on capital value. At least
36ha is undeveloped but Mr McCarthy could not put a value on the money at
stake in the case. "I'd hate to think. There is a provision in the
ratings act where back rates can't be claimed for going back greater than
six years, but whether that's applicable in this case I don't know."
(Timaru Herald Copyright 2000, June 27, 2000)

AUXILIARY LEGAL: Gender Discrimination Suit Moves to Trial in CA
A lawsuit against the County Counsel's Office over alleged second-class
treatment of several female lawyers is headed for trial in the wake of
Los Angeles Superior Court Judge Charles W. McCoy, Jr.'s rejection of
motions to dismiss the claims, attorneys for the plaintiffs said.

The suit alleges that the county set up Auxiliary Legal Services, Inc.,
as a payrolling scheme to get lawyers to do work of the County Counsel's
Office for les pay and fewer benefits. The suit alleges that many ALS
lawyers-who for the most part work in the juvenile courts division-are

Plaintiffs' attorney David Stobaugh of the Seattle law firm of Bendich,
Stobaugh & Strong called ALS the "Women's Auxiliary' for the County
Counsel" in a statement.

Last year, Pellman won additional funding from the Board of Supervisors
to begin "converting" some of the ALS lawyers to full deputy county
counsel status, and the plaintiffs agreed to shelve their request for
class action certification pending mediation by former Supervisor Ed
Edelman. But the efforts failed.

The plaintiffs said ALS argued that employers can evade federal and
California anti-discrimination laws through such payrolling schemes, but
that McCoy ruled the women plaintiffs may base such claims on "a pay
disparity between the two entities."

The plaintiffs' lawyers noted that similar case in King County, Wash.
Involving employees labeled "contract workers" and paid through agencies
settled for a total value of $ 18.6 million. "The settlement also
establishes new positions for current 'contract workers' and requires the
County to monitor its use of payroll agencies to create new jobs in the
future instead of using permatemps," plaintiffs lawyers said of the
Washington case.

The named plaintiffs in the Los Angeles County case are Danna Hall, a
trial attorney representing the county since 1986, Sheila Kurnetz, a
lawyer with the office since 1984, Sabrina Eslamboly, who worked for the
office since 1986, and Nydia Bonazzola, a probate attorney with the
office since 1994.

"The plaintiffs' attorneys noted that the Equal Pay Act claim filed on
behalf of the female attorneys requires any women who believe they have a
claim to file a consent form with the court," the plaintiffs' lawyers
said in their statement. "Thus far, 140 women attorneys payrolled by the
County through ALS have filed consents to join the sex discrimination
lawsuit," the lawyers said.

A 1998 audit found lower pay, older equipment, heavier workloads and poor
morale among county lawyers who handle juveniles dependency cases.

The division of the office that handles juvenile dependency cases for the
county has been widely seen as a "dumping ground" for lawyers who don't
work out well in other divisions, according to the management audit by
Barrington-Wellesley Group, Inc. and Altman Weil. (Metropolitan
News-Enterprise; Capitol News Service, June 9, 2000)

BRANCH DAVIDIAN SIEGE: Arson Investigators Expected to Testify
Arson investigators who combed the Branch Davidian compound ruins after
the deadly fire on April 19, 1993, were expected to take the stand
Tuesday as the government continues its defense against a $675 million
wrongful death lawsuit.

The testimony from investigators, who have said the fire resulted from
"an intentional act" by people inside the compound and that accelerants
were used to speed the flames, is supposed to bolster the government's
assertion that Branch Davidians caused the tragedy. Sect leader David
Koresh and some 80 of his followers died on that day, some from fire,
others from gunshot wounds.

Sect survivors and family members who are suing the government say tanks
used in an FBI tear-gassing operation on the final day of the standoff
turned the compound into kindling and could have knocked over lanterns
used to illuminate the compound. Potentially incendiary tear gas
canisters launched into the building also may be a culprit of the fire,
they contend.

The government's 51-day standoff with the sect began Feb. 28, 1993, when
agents with the Bureau of Alcohol, Tobacco and Firearms unsuccessfully
tried to search the complex and arrest Koresh on illegal weapons charges.
A gunfight ensued; four agents and six Davidians were killed.

A fire expert hired by the plaintiffs testified earlier in the trial that
the government's fire investigation was "insufficient and inappropriate"
because it failed to identify dozens of propane tanks inside and around
the compound as potential fuel sources and failed to find burn patterns
in any of the three areas where government investigators say sect members
set fires.

However, lead plaintiffs' counsel Michael Caddell has conceded that
Davidians probably caused a fire in the chapel, where investigators did
find evidence of accelerants.

Government attorneys on Monday focused on the origin of the three fires,
which reportedly started around midday on April 19, about six hours into
the tear-gassing operation designed to end the standoff.

Unidentified Branch Davidians could be heard asking on the final day of
the siege "start the fire?" and "should we light the fire?" in excerpts
of surveillance audiotapes presented to jurors.

A day earlier, an unidentified male said, "you always wanted to be a
charcoal briquette ... There's nothing like a good fire to bring us to
the earth."

Earlier on Monday, an FBI agent recalled peering through his binoculars
and seeing a sect member bending over in a second-floor window seconds
before the fire started.

"Shortly thereafter, I noticed smoke and fire coming out of that window,"
Ronald Elder testified. "He got up and moved out of my view, and that's
when I saw the fire and the smoke coming out of the window."

Caddell questioned Elder's ability to see that far even with binoculars,
saying Elder was a little less than half a mile away from the complex.
(The Associated Press State & Local Wire, July 11, 2000)

CSC CREDIT, EQUIFAX: Consumers Denied Supreme Court Review for Cert.
Consumers who desired to pursue class action Fair Credit Reporting Act
claims against two credit reporting companies have been denied U.S.
Supreme Court review of a ruling holding that they did not meet the
requirements for class certification. The petitioners challenged the
Fifth Circuit's interpretation of the FCRA and its provisions on
injunctive relief. Washington et al. v. CSC Credit Services Inc. et al.,
199 F.3d 263 (5th Cir., 2000), cert. denied (U.S., June 26, 2000) (No.
99-1623); see Bank & Lender Liability LR , Feb. 2, 2000, 4.

Six consumers filed suit against CSC Credit Services Inc. and Equifax
Inc. in U.S. District Court for the Eastern District of Louisiana,
complaining that the agencies violated the FCRA, 15 U.S.C.S. @ 1681. The
consumers alleged that the agencies failed to maintain reasonable
procedures as mandated by the FCRA before providing credit information to
insurance companies. The suit sought, inter alia, statutory, compensatory
and punitive damages, as well as declaratory and injunctive relief
preventing the defendants from providing credit information to insurers
in connection with claims investigations.

The district court, in Washington et al. v. CSC Credit Services Inc. et
al ., 178 F.R.D. 95 (E.D. La., 1998), certified the action as a class
under Fed. R. Civ. P. 23(b)(2), and, after denying Equifax's motion for
reconsideration, amended the class definition and alternately certified
the class under Fed. R. Civ. P. 23(b)(3). The reporting agencies appealed
to the U.S. Court of Appeals for the Fifth Circuit.

On appeal the agencies argued that the consumers did not have individual
standing to bring FCRA claims and asserted that they did not meet the
typicality and commonality requirements of Rule 23(a). The agencies
further contended that the consumers could not show superiority or
dominance under Rule 23(b)(3) and could not continue with the suit
because the FCRA did not provide for injunctive relief.

The Fifth Circuit explained that Rule 23(a) contains four requirements
that must be met before a suit can proceed as a class action:

-- The class is so numerous that joinder of all members would be

-- There are questions of law or fact common to the class;

-- The claims or defenses of the class representatives are typical of
    those of the class; and

-- The class representatives will fairly and adequately protect the
    class members' interests.

After the four elements are satisfied, the plaintiffs must show that the
action can be maintained under one of the subsections of Rule 23(b), the
appellate panel elaborated. The class had been certified by the lower
court pursuant to Rule 23(b)(2), which provides that the predominant
relief sought must beinjunctive or declaratory, and it was also certified
under Rule 23(b)(3), the panel said. Rule 23(b)(3) states that plaintiffs
must demonstrate that common questions predominate over those affecting
solely individual members of the class and that resolution, via the
class, is the superior way for fair adjudication, the panel continued.

The circuit court then discussed the FCRA, stating that Section 1861b of
the act provides two instances in which a reporting agency can give
consumer credit reports to an insurer. The reports can be turned over
when the consumer consents in writing and when the agency has reason to
believe that the insurer intends to use the information for underwriting
purposes. Section 1681e(a) mandates that insurers have reasonable
procedures designed to limit the furnishing of reports to the two
specified instances, the panel continued.

The plaintiffs claimed that the defendants did not maintain the required
reasonable procedures under Section 1681e(a). The crucial issue was
whether the plaintiffs first had to show that a report had been disclosed
in violation of Section 1861b, the circuit court stated.

The lower court erred when it held that improper disclosure did not have
to be shown first, the panel held. The FCRA anticipates harm arising from
improper disclosure and not merely the risk of improper disclosure, the
panel elaborated. The district court's error formed the basis for its
decisions that the consumers had individual standing, that they satisfied
Rule 23(a)'s prerequisites, and that they could maintain a suit under
Rule 23(b)(3), the panel said. The certification decision under Rule
23(b)(2) was then reversed in part.

The next issue discussed on appeal was that involving injunctive relief
and the FCRA. The Fifth Circuit stated that the act gave the Federal
Trade Commission the authority to gain injunctive relief, but did not
contain similar language relating to consumers. Congress did not intend
to give private litigants the power to obtain injunctive relief, the
panel concluded.

With regard to class certification under Rule 23(b)(2) thecourt said that
the district court erred with this ruling as well. The district court
found that the plaintiffs could maintain a suit for declaratory relief,
because the reporting agencies acted in a way that made injunctive relief
or corresponding declaratory relief appropriate. The appellate panel
explained that the lower court relied on the Advisory Committee note to
Rule 23(b)(2), which states that declaratory relief corresponds to
injunctive relief when it affords injunctive relief as a practical matter
or serves as the basis for a later injunction.

Declaratory relief could serve as the basis for later injunctive relief
by the FTC, according to the district court's analysis. However, this
reasoning frustrated the FCRA's limitation on injunctive relief, the
panel said. Consumers could obtain injunctions indirectly by getting
declaratory relief, which would then move the FTC to request an
injunction, the court clarified. In addition, declaratory relief was not
the predominant form of relief requested in the plaintiffs' action, the
panel ruled. The consumers could not maintain a class action under Rule
23(b)(2), the appellate panel said.

The district court's holding on Rule 23(b)(2) certification was reversed,
the ruling on Rule 23(b)(3) certification was vacated and the matter was
remanded for further proceedings.

The plaintiffs filed a petition for certiorari with the U.S. Supreme
Court on April 6, 2000, seeking review of the circuit court's decision.
The petition stated that the circuit court's ruling that all class
members must show actual harm from improper disclosure before they have
standing is contrary to precedent set by the high court. The plaintiffs
pointed to Ortiz v. Fibreboard Corp. et al., 527 U.S. 815 (1999), as an

The petition also asserted that there is now a split of authority between
the Fifth and Ninth Circuits with regard to the issues concerning an
individual's right to injunctive relief under the FCRA.
The petition was denied on June 26. (Bank & Lender Liability Litigation
Reporter, June 29, 2000)

HITSGALORE.COM: Announces Dismissal of Appeal in Securities Suit in CA
Hitsgalore.com, Inc. (OTC Bulletin Board: HITT) announced on July 10 that
it has entered into a Stipulation to Voluntarily Dismiss Appeal (the
"Stipulation") with the plaintiffs in the federal class action lawsuit
99-CV-5060. The Stipulation provides for the voluntary dismissal of the
appeal from the Order Granting Defendants' Motion to Dismiss With
Prejudice entered by District Judge Manuel L. Real of the United States
District Court for the Central District of California, which Order
granted the Defendants' motion to dismiss the Second Consolidated Amended
Class Action Complaint filed in the action against Hitsgalore.com, Steve
Bradford and Dorian Reed.

CONTACT: Carl F. Schoeppl, Esq., or Daniel J. Becka, Esq., of SCHOEPPL &
BURKE, P.A., Boca Raton, Florida, 561-394-8301, for Hitsgalore.com, Inc.

HOLOCAUST VICTIMS: German Cultural Properties Consficated in Athens
Although the German Parliament last week passed the bill to establish a
DM 10 billion fund for slave and forced labor and other war-time damages,
the end is not yet in sight for claims against Berlin for Nazi-era

In Athens, three German cultural properties were due to be confiscated,
under a court order, to settle claims for the German army's 1944 massacre
of 218 villagers, Greek newspapers reported.

That court action may help the Jewish community of Salonika recoup 1.9
billion drachmas for a "ransom" it paid the Nazis in 1942, in a futile
effort to save its men from deportation to work as forced laborers,
according to a community official.

Earlier this year, Greece's Supreme Court upheld an award of some 9.5
billion drachmas to relatives of 218 villagers massacred by Nazi troops
at Distomo, near Delphi, on June 10, 1944, four months before the Germans
left Athens.

Germany has refused to pay, arguing that Greek reparations claims were
settled by a 1960 treaty. It also used a legal argument contending that
Greek courts have no jurisdiction in the case. That legal argument had
also been used in the US to quash class-action lawsuits seeking
compensation from German industry for slave and forced labor.

As a condition of the DM 10b. fund, the US is expected to provide German
industry with "legal peace" from lawsuits in American federal courts.

In Greece, the Supreme Court upheld a lower court ruling on both the
question of their jurisdiction and the substance of the villagers'
relatives claims. According to the Greek press, the courts found that "in
the case of Distomo, there was no armed clash but an act of
vengeance...the murder of non-combatants and crimes against their persons
and property."

That put the Greek government in the awkward position of balancing its
relations with Berlin against enforcing an order of its highest court.
The confiscation cannot proceed without authorization from the Justice
Ministry. Meanwhile, the Salonika Jewish community believes that the
Distomo ruling could help it recover its claim for the unusual war-time
ransom. The community agreed in 1942 to pay German authorities about 2.5
billion drachmas, in installments, to free Jewish men from forced labor
for the Mueller and Todt companies. Some 1.9b. drachmas were paid, but
the deportation went ahead anyway. The last two installments were not
paid because on the due dates no one was left in the village - all 50,000
Salonika Jews had been deported to Auschwitz.

A Greek court rejected the community's initial claim, saying it did not
have jurisdiction. That case is now being appealed.

The Distomo case eliminates the question of jurisdiction, said Albert
Hagoul, secretary of the Salonika Jewish community, adding, "Now, in our
case, the court can rule on the essence of the claims." The Salonika
Jewish community believes its claim is distinct from those covered by the
German fund. "The community as a legal entity is making a claim against
the German state," Hagoul said Sunday. "It was the community that made
the claim, not individuals." (The Jerusalem Post, July 11, 2000)

INMATES LITIGATION: Backlog of Parole Cases Much Larger Than Stated
The state attorney general's office released statistics showing that the
number of inmates who are eligible for parole and still awaiting hearings
is approaching 3,000, far higher than the number that the New Jersey
Parole Board, which has been sued by inmates, has acknowledged.

The parole board's chairman, Andrew B. Consovoy, had insisted for months
that they were eliminating a backlog that was much worse a year ago. A
report that the board submitted to the attorney general's office in May
listed a total of 303 inmates who were "past-eligible" and awaiting

But the attorney general's office, which is defending the lawsuit, said
today that the backlog had reached 2,815, including 2,201 inmates who had
not been granted hearings, 469 who had had hearings but were still
awaiting a decision, and 145 who had been ruled eligible for parole but
were awaiting release.

A spokesman for the attorney general, Roger Shatzkin, said that two
deputy attorneys general had worked with parole officials to account for
all past-eligible inmates, including those omitted from the reports the
board submits regularly to other state agencies. Those numbers are not
made public by the board, which reports only to the governor.

The class-action complaint, filed on May 1 in Federal District Court in
Camden, claimed that hundreds of inmates were left in prison without the
hearings required by state law. But the plaintiffs' attorneys did not
know the size of the backlog. Philip Steven Fuoco, the Haddonfield, N.J.,
lawyer who filed the suit, said today that "we should be outraged,
especially given what the parole board was telling everyone, including
the Legislature, about the numbers."

But Mr. Fuoco said that lawyers for the state had notified him of the
accounting on Friday, before releasing the information to reporters, and
that they were acting "in good faith" to settle the case.

Mr. Consovoy, who is on medical leave, could not be reached for comment
after the new numbers were released late today, and calls to the parole
board office were not answered.

The board chairman is under investigation for his role in the release of
several inmates, according to people who have been contacted by state
investigators. He left on medical leave a short time after a June 13
meeting with Gov. Christine Todd Whitman's chief of staff, Michael

The governor said at the time that she wanted explanations of the backlog
and of allegations that Mr. Consovoy had given favorable treatment to
several inmates, including one identified as an organized crime figure.

Mrs. Whitman was at a meeting of the National Governors' Association
today, and her press secretary, Jayne O'Connor, who was traveling with
her, could not be reached.

Earlier this year, before the inmates' suit was filed, criminal defense
lawyers publicly pressed Mr. Consovoy on the situation.

Barry Albin, the president of the Association of Criminal Defense Lawyers
of New Jersey, when told today of the accounting by the attorney
general's office, said: "If that's true, then the parole board has given
everyone a snow job. Consovoy had told me it was down to a couple

The board's executive director, Robert Egles, said in an interview in May
that board members were working furiously on their regular caseload,
about 1,500 new cases a month, and holding hearings for those who had
passed their eligibility dates. "The problems that existed are so far
into the process of being resolved that I don't know what this is all
about," he said at that time.

Mr. Egles also said that many of the inmates whose cases were back-logged
had already reached their eligibility dates in county jails before being
sent to the state prisons. In the accounting released today, 633 of the
2,815 past-eligible cases were in that category. The total inmate
population is about 30,000.

Mr. Fuoco, the lawyer for the inmates' suit, said that "not only are
there 2,800 past due, but every day more become eligible." He added, "We
need to set up an enforcement mechanism to make sure this doesn't happen
again." (The New York Times, July 11, 2000)

LATEX GLOVE: Case against Smith & Nephew Goes to Oral Argument July 7
In the only latex allergy litigation to award a plaintiff $1 million,
Smith & Nephew's appeal of Linda M. Green's unprecedented claim of strict
liability will be heard in oral arguments on July 7. Green v. Smith &
Nephew AHP Inc., No. 98-2162, oral argument scheduled (Wis. Ct. App.,
July 7, 2000).

Green, a former hospital employee who tested positive for latex
sensitivity in 1991, filed suit against Smith & Nephew AHP in 1994. Her
case was one of 35 latex allergy cases consolidated before Judge Charles
F. Kahn of the Milwaukee County, Wis., Circuit Court. Green's case,
selected as the bellwether case in the consolidated litigation, was tried
before a jury from Feb. 3 through Feb. 25, 1998. The jury found that
Smith & Nephew's latex gloves were defective and unreasonably dangerous.
Green was awarded $34,000 for past medical expenses; $42,000 for future
medical expenses; $90,000 for loss of past earnings; $250,000 for loss of
future earnings; and $584,000 for pain and suffering, for a total award
of $1 million.

In its opening brief filed in the Wisconsin Court of Appeals, Smith &
Nephew contended that the first jury verdict ever awarded in a U.S. latex
allergy case was based upon an unprecedented claim that strict liability
can be imposed on a manufacturer of a non-defective product that caused
an allergy. Green responded in her answering brief that her $1 million
award should stand because she proved that Smith & Nephew's latex gloves
were defective. According to Green, the gloves contained an unreasonably
dangerous defect -- unacceptably high protein levels -- which caused an

Green's statement of the case, said the company in its reply brief,
merely changed the phrasing of the question posed to the circuit court,
not the substance. Although Green presented her question in terms of a
product defect, the alleged defect is the product's propensity to cause
allergy, asserted the company.

"No matter how plaintiff reformulates her theory, the ultimate question
is the same: can a product be held defective and unreasonably dangerous
because it is allegedly not safe for the minority of consumers who are
allergic to one of its components" That threshold question, says Smith &
Nephew, must be answered in the negative.

Smith & Nephew's reply brief reiterated its charges of judicial error
regarding the admission of certain evidence and the circuit court's jury
instructions, and its argument in favor of a remittitur or new trial in
light of an excessive damage award.

Counsel for Smith & Nephew, Donald R. Peterson of Peterson, Johnson &
Murray in Milwaukee, confirmed the date for oral argument. "The Court of
Appeals advised the parties that it would hear oral argument on July 7,
2000," Peterson said. "While oral argument is seldom requested or
granted, it is impossible to know the significance of this development.
It is also impossible to anticipate when the court will render its

Peterson also said the court requested counsel to provide any information
on cases dealing with products that were unreasonably dangerous to some,
but not all, consumers. (Medical Devices Litigation Reporter, June 30,

NUCLEAR PLANTS: Radiation Claims Vs. duPong Et. Al. Pursued in 9th Cir
A group of 800 plaintiffs, alleging harm caused by radiation exposure,
has asked the Ninth Circuit to negate a district court order granting
summary judgment to the operators of a nuclear facility in Washington
state. In re Berg et al. v. E.I. duPont de Nemours and Co. et al., Nos.
99-35979 and 00-35062, appeal brief filed (9th Cir., May 1, 2000).

The appeal comes after 10 years of pretrial litigation begun in the early
1990s and is a consolidation of two class-action lawsuits. The case is on
appeal from the U.S. District Court for the Eastern District of


The defendants -- E.I. duPont de Nemours and Co., General Electric, UNC
Nuclear Industries, Atlantic Richfield Co. and Rockwell -- built and
operated the first large-scale plutonium production project in the world
at the Hanford Nuclear Reservation, a 560-square-mile manufacturing
facility located in southeastern Washington. From 1944 until 1990, the
defendants' reactors and plutonium processing plants supplied over half
of the plutonium in the United States' nuclear weapons. Hanford,
according to the brief, is the largest Superfund site in U.S. history.

The plaintiffs claim they were harmed by Hanford's owners and operators
because radiation was released from the facility for almost 30 years, yet
the defendants did not issue warnings to residents or instruct them about
precautions in dealing with radiation exposure. This harm includes
cancer, birth defects and emotional distress.

The group, known collectively as the Berg plaintiffs, is asking the U.S.
Court of Appeals for the Ninth Circuit to reverse the district court's
decision granting the defendants summary judgment.

The appeal is based on the sufficiency of the Berg plaintiffs' evidence
to prove that radiation has the capacity of a toxic agent to cause the
diseases they have developed.

The district court, which had jurisdiction over this case under the
federal Price-Anderson Act, made the following ruling:

-- Washington law requires plaintiffs to prove that the tort more than
    likely caused the injury;

-- The Berg plaintiffs would need statistical evidence that radiation
    more than doubled the average person's background risk for
    contracting the particular disease or cancer; and

-- The plaintiffs did not meet the burden of proof as required by state

The court also ruled that all emotional distress claims must meet the
doubling-of-the-risk threshold, and it dismissed the medical monitoring

The brief asks the Ninth Circuit to reverse the ruling, arguing that the
district court:

-- failed to apply Washington state law as mandated by the Price-
    Anderson Act;

-- erred by requiring proof that the plaintiffs' risk was doubled by
    their exposure to radiation;

-- failed to construe the evidence in the light most favorable to the
    plaintiffs; and

-- acted as an "amateur scientist" weighing the evidence.

The Berg plaintiffs are represented by Bryan Coluccio and R. Brent Walton
of Short Cressman & Burgess in Seattle and by Brian Deprew of Engstrom,
Lipscomb & Lack in Los Angeles. (Toxic Chemicals Litigation Reporter,
June 30, 2000)

PADUCAH GASEOUS: Judge Agrees to Step Aside in Uranium Plant Case
A federal judge that was to hear a $10 billion federal liability lawsuit
against the operators of the Paducah Gaseous Diffusion Plant has agreed
to step aside because of a possible conflict.

The announcement comes just six weeks after U.S. District Judge Thomas
Russell, who once represented the defendants in private practice, said he
saw no conflict of interest.

The plaintiffs - 700 current and former employees and their families -
are seeking class-action status against Lockheed Martin, Martin Marietta
and Union Carbide. The workers claim they were sickened or injured at the
Paducah plant, which is the site of extensive radioactive contamination,
and contend they were unknowingly exposed to other toxic substances.

The plaintiffs' attorneys had claimed a perception of unfairness was
created by Russell's previous legal work.

In an order dated Friday, Russell wrote that "upon reflection, the court
realizes some of the parties are well known to the judge." And because
the community is small, Russell wrote, he is "well acquainted with
personnel employed" at the plant and "cannot help but believe that some
of these persons may possibly be key witnesses or even decision makers in
this litigation."

Russell, who as a lawyer handled workers' compensation cases for
companies that formerly operated the plant, said he still believes his
previous representation of some of the defendants did not create a
conflict and did not require him to step aside.

Legal ethics experts questioned earlier by The Courier Journal agreed
that Russell's prior representation was not a conflict of interest.

Russell said he will refer the case to Charles R. Simpson, the chief
federal judge in the state's Western District, for reassignment. The case
is tentatively set for trial in January 2003. (The Associated Press State
& Local Wire, July 11, 2000)

PSS WORLD: Stockholders' Suit Filed in 1998 in FL in Earliest Stages
PSS and certain of its current officers and directors are named as
defendants in a purported securities class action lawsuit entitled Jack
Hirsch v. PSS World Medical, Inc., et al., Civil Action No.
98-502-cv-J-21A. The action, which was filed on or about May 28, 1998, is
pending in the United States District Court for the Middle District of
Florida, Jacksonville Division. An amended complaint was filed on
December 11, 1998.

The plaintiff alleges, for himself and for a purported class of similarly
situated stockholders who allegedly purchased the Company's stock between
December 23, 1997 and May 8, 1998, that the defendants engaged in
violations of certain provisions of the Exchange Act, and Rule 10b-5
promulgated thereunder. The allegations are based upon a decline in the
PSS stock price following announcement by PSS in May 1998 regarding the
Gulf South Merger which resulted in earnings below analyst's
expectations. The plaintiff seeks indeterminate damages, including costs
and expenses. PSS believes that the allegations contained in the
complaint are without merit and intends to defend vigorously against the
claims. However, the lawsuit is in the earliest stages, and there can be
no assurance that this litigation will be ultimately resolved on terms
that are favorable to PSS.

Although PSS does not manufacture products, the distribution of medical
supplies and equipment entails inherent risks of product liability.

RENT-A-CENTER: Agrees to Pay and Stop Psychological Test to Job Seekers
A national rent-to-own company has agreed to pay $2 million and stop
administering a psychological test to job applicants as a condition of
settling a class action by nearly 1,000 employees and job candidates who
said the test invaded their privacy.

Under terms of the settlement approved by Northern District Judge Maxine
Chesney, Dallas-based Rent-A-Center must stop giving the tests in
California and must destroy all records here of the test. In addition,
the company agreed to stop using the test at its 2,500 stores nationwide.

The company also agreed to pay $2,000 to each California employee who
took the test and failed and $1,250 to those who passed the test. The
total payments will reach about $2 million.

"The company views the settlement as a fair and reasonable resolution of
the allegations," said Rent-A-Center's attorney, Wayne Bost of Winstead
Sechrest & Minick's Austin office. "The company values its relationships
with its employees and these settlement payments are designed to resolve
the unsubtleties of the litigation. There is really nothing remarkable
about this settlement."

The case, Staples v. Rent-A-Center, 99-2987, represents one of a small
number of suits brought against companies using the Minnesota Multiphasic
Personality Inventory Test in the past decade. The first serious
challenge to the psychological tests in California was brought in Soroka
v. Dayton Hudson Corp.

In Soroka, the First District Court of Appeal held that the MMPI
constitutes an invasion of privacy of employees. The California Supreme
Court later took up the case, but it settled before the court was able to
issue a ruling. "This is the only settlement challenging the MMPI since
Soroka," said Brad Seligman, who argued Soroka and now heads the Impact
Fund, a Berkeley nonprofit that advises and counsels people in class
action and public interest cases. "After Soroka, employers got more

The MMPI, which dates from the 1950s, is the most commonly used
psychological test in the nation. An estimated 10 million people are
given these tests each year, Seligman said, and the popularity of the
test is on the rise among employers.

Although there are nine parts to the test, at issue in the case and
settlement was one part, which required employees and applicants to
answer " true" or "false" to 502 statements about their religious and
sexual practices. Statements ranged from: "My sex life is satisfactory"
to "I am strongly attracted to members of my own sex" to "I believe there
is a God." "An employee has a reasonable expectation of privacy," said
plaintiffs' attorney Jeffrey Ross, of Oakland's Dickson, Ross & Honig.
"We can't see any reason an employer needs to know that."

Ross said that Rent-A-Center contracted with a testing company to create
a profile of each employee based on their reponses. The profile included
the number of "deviations" from standard answers given by chief operating
officers of various companies in the 1950s.

The case was brought to Ross by two former Bay Area managers, Scott
Hadley and Arthur Staples. "They were required to give the test to all
their subordinates. They didn't feel it was right and were uncomfortable
being a party to it," Ross said. Dale Brodsky, solo practitioner in
Walnut Creek, assisted Ross in the case. (The Recorder, July 10, 2000)

TOBACCO LITIGATION: Defendants Seek Prompt Cert. in Health Care Case
Tobacco company defendants seeking to have a union health care fund's
suit against them certified as a class action have been turned down by
the Second Circuit, but in its opinion, the panel expressed confidence
that the trial court would "promptly discharge its obligation to decide
the issue of class certification." In re Philip Morris Inc., No. 00-3004
(2d Cir., June 9, 2000).

The plaintiffs, self-insured, multi-employer benefit plans, claim to have
made payments on behalf of participants who have suffered or presently
suffer from diseases caused by using tobacco products. They say there are
about 4,000 such funds and the potential liability of the tobacco
companies is in the billions of dollars.

U.S. District Judge Jack B. Weinstein of the Eastern District of New York
refused several times to certify the plaintiffs' class. That moved the
tobacco companies to petition the U.S. Court of Appeals for the Second
Circuit to order the certification.

The petitioners argued that Federal Rule of Civil Procedure 23(c)(1)
provides that the issue of class certification should be decided as soon
as possible. Rule 23(c)(1) reads: As soon as practicable after the
commencement of an action brought as a class action, the court shall
determine by order whether it is to be so maintained. An order under this
subdivision may be conditional, and may be altered or amended before the
decision on the merits.

The appeals court agreed that failing to decide on class certification
promptly puts defendants at an unfair disadvantage and could have an
"onerous effect" on them. The panel also pointed out that deciding class
certification after conducting a preliminary inquiry into the merits of
the case is improper. The U.S. Supreme Court ruled that such a procedure
contravenes Rule 23(c)(1) in Eisen v. Carlisle & Jacquelin, 417 U.S. 156,
177-78 (1974).

Despite pointing out the dangers of delaying a decision on class
certification, the Second Circuit said it would not abrogate the district
court's discretion in this matter. It did point out that the phrase "as
soon as practicable," however, "does not confer unfettered discretion."
Because trial is imminent, the panel wrote, the district court has an
immediate obligation to decide the issue, especially in light of the
possibility of a risk-free intervention by thousands of putative

In denying the petition for mandamus, the Second Circuit noted that the
record contained no ruling by the district court that it would not decide
on class certification before trial; if that were the case, the appeals
court said it would have granted the petition. The panel also said it
retains jurisdiction over further motions and would respond expeditiously
to any issues should they arise.

The petitioners were Philip Morris Inc., R.J. Reynolds Tobacco Co., RJR
Nabisco Co., Brown & Williamson Tobacco Co., Fortune Brands Inc.,
Lorillard Tobacco Co., the American Tobacco Co., The Council for Tobacco
Research-USA, the Tobacco Institute, British American Tobacco Co. Ltd.
and Hill & Knowlton Inc.

Representing the tobacco companies were Kenneth J. Parsigian, Paul E.
Nemser and Christopher D. Moore of Goodwin, Procter & Hoar in Boston.
Representing the union health care funds were E. David Hoskins, John C.M.
Angelos and David L. Palmer of the Law Offices of Peter G. Angelos in
Baltimore. (Tobacco Industry Litigation Reporter, June 30, 2000)

TOBACCO LITIGATION: E.D.N.Y. Denies Cert. for Subclasses Issues
A putative class action by long-time cigarette smokers with
tobacco-related diseases is not ready for class certification because
issues involving possible subclasses may need to be briefed for the
court, a federal district judge has ruled. Simon et al. v. Philip Morris
Inc. et al., No. 99 CV 1988 (E.D.N.Y., June 13, 2000).

Seven longtime smokers and the survivors of six others who died from lung
cancer brought an action in U.S. District Court for the Eastern District
of New York against the tobacco industry, purporting to represent
themselves and all others similarly situated across the nation. The
tobacco companies opposed certifying a class of plaintiffs, saying that
there are only 750 actions against it across the nation and that
certification of the class would involve complexities that would put an
undue burden on the court system.

The plaintiffs described the putative class as "all persons residing in
the United States, or who were residents of the United States at the time
of their deaths, who have a 20 pack -year history of smoking Defendants'
cigarettes and who had a timely claim as of April 9, 1999 for personal
injury or wrongful death arising from cancer of the lung. A pack-year is
one package of cigarettes consumed per day per year."

The court indicated that it would operate under the presumption that the
plaintiffs' cause of action was valid without making any finding that
their allegations can be proven. But as a practical matter, the U.S.
District Judge Jack B. Weinstein ruled class certification cannot be
decided without "further attention to the litigation's factual and
procedural underpinings." Specifically, because the complaint purports to
represent only victims of lung cancer, the court can foresee that
subclasses of persons not covered by the proposed class may need to be
added. Before class certification is decided, the judge said, the
complaint may need to be recast to reflect possible subclasses.

The opinion advised the plaintiffs to "establish that they can modify
their complaint so that it can be presented as a series of discreet
questions to the jury, permitting a verdict applicable to the entire
class without the need for hundreds-of-thousands of separate trials on
individual matters." The court urged that the parties attempt to agree on
the procedure for a future certification hearing.

The defendants are Philip Morris Inc., R.J. Reynolds Tobacco Co., Brown &
Williamson Tobacco Corp., B.A.T. Industries plc, The American Tobacco
Co., Lorillard Tobacco Co. Inc. and Liggett & Myers Inc.

Representing the plaintiffs are Steven E. Fineman and Joan T. Brown of
Lieff, Cabraser, Heimann & Bernstein in New York; Perry Weitz, Robert J.
Gordon, Jerry Kristal and Richard Akel of Weitz & Luxenberg in New York;
Richard Heimann, Elizabeth J. Cabraser and Robert J. Nelson of Lieff,
Cabraser, Heimann & Bernstein in San Francisco; Thomas M. Sobol and
Gregory T. Arnold of Brown, Rudnick, Freed & Gesmer in Boston; Norwood
Wilner of Spohrer, Wilner, Maciejewski & Matthews in Jacksonville, Fla.;
and Jon W. Barret of Lexington, Miss.

Philip Morris is represented by Robert A. Cohen and Peter L. Critchell of
Dechert, Price & Rhoads in New York and by Judy Leone of the firm's
Philadelphia office. Representing R.J. Reynolds are Harold Keith Gordon
and Byron G. Stier of Jones, Day, Reavis & Pogue in New York; Hugh R.
Witing and Mark A. Belasic of the firm's Cleveland office; and Jerome R.
Doak and Margaret I. Lyle of the firm's Dallas office. (Tobacco Industry
Litigation Reporter, June 30, 2000)

TOBACCO LITIGATION: FL Engle Case Asks BAT to Pay $ 22 Bil
The American arm of BAT Industries should be forced to pay as much as $
22 billion (Pounds 14.5 billion) to end a landmark class-action lawsuit
in Florida, according to a lawyer acting for sick smokers.

Overall, the tobacco industry could afford to pay as much as $ 196
million as punishment for its part in causing smoking-related diseases,
the jury was told.

The claims were made in the closing stages of a trial in Miami, Florida,
known as "the Engle case". The US tobacco industry has already been told
to pay several million dollars to individual smokers, but this trial
could lead to a record penalty because a jury is, for the first time,
being told to consider the damage done to hundreds of thousands of other

Stanley Rosenblatt, the lawyer for the plaintiffs, said the US tobacco
industry could afford to pay $ 196 billion, suggesting $ 154 billion
would be a suitable award. He claimed that Philip Morris could afford as
much as $ 118.5 billion and RJ Reynolds could afford up to $ 37.5
billion, Bloomberg News reported.

Brown & Williamson, the US arm of BAT Industries, can afford between $ 15
billion and $ 22 billion, Mr Rosenblatt claimed. A Brown & Williamson
spokesman last night said: "We are not surprised that the plaintiffs'
attorney would come up with a pie in the sky number." (The Times
(London), July 11, 2000)

UNION PACIFIC: To Pay $34M to Settle Suit over Southern Pacific Merger
Union Pacific Corp. plans to pay $34 million in cash to settle a lawsuit
stemming from its 1996 acquisition of Southern Pacific Rail Corp.

The settlement, disclosed in a Securities and Exchange Commission filing,
came out of a 1997 class-action lawsuit filed in Texas by some of the
Omaha-based transportation company's shareholders.

They claimed, among other things, that Union Pacific failed to disclose
material facts and made false and misleading statements about service,
congestion and safety problems following the Southern Pacific deal.

Union Pacific also agreed to settle another merger-related shareholder
lawsuit for $975,000. The second lawsuit, filed in 1998 also in Texas,
claimed that former U.P. officers breached their duties by approving and
implementing the Southern Pacific deal without informing themselves of
its impact or ensuring that adequate controls were put in place.

As part of the second settlement, Union Pacific has agreed to adopt
procedures designed to prevent service and safety crises in future deals.
As part of that, the company will study safety and congestion-related
issues in the event of any proposed merger involving a rail system of
greater than 1,000 miles.

The settlements resolved the last of several shareholder lawsuits related
to the Southern Pacific acquisition, U.P. spokesman John Bromley said
Monday. Bromley said the agreements are not an admission of guilt.

Union Pacific poured millions of dollars into implementing its 1996
merger with Southern Pacific as service problems crippled the railroad in
1997 and 1998.

Problems that Union Pacific had with its merger was a key factor in the
Surface Transportation Board's decision in March to impose a 15-month
moratorium on railroad mergers. The board, which regulates railroads,
wants to study the problems from combinations in the 1990s and rewrite
its merger rules.

The board's decision has put a halt to Burlington Northern Santa Fe's
planned merger with Canadian National Railway. (The Associated Press
State & Local Wire, July 11, 2000)

* Denial of Training Opportunities Is Cause of EEOC Lawsuits
Companies that fail to take the degree of care with their training
programs that they take with other human resource initiatives could be at
risk for violating the same Equal Employment Opportunity Commission
(EEOC) requirements that govern hiring, firing, and promotions. In fact,
denial of training opportunities is now a common cause of EEOC lawsuits
for gender, disability, and age discrimination.

                               Legal Actions

In a recent Americans with Disabilities Act (ADA) case against General
Motors, the claimant charged that in addition to terminating him, GM had
denied him training because of a disability (HIV/AIDS). A consent decree
awarded the claimant $ 7,000 in back pay and $ 28,000 in compensatory
damages. In a similar case, a claimant charged that Big Rivers Electric
Corp. failed to assign the full range of duties and denied training. A
settlement agreement provided for a $ 10,000 award.

Class-action suits alleging a pattern of discriminatory training
practices over time are also finding their way onto the EEOC court
docket. Both CBS and Mitsubishi Motors have been sued for gender and race
discrimination, including allegations that the employers consistently
denied training to women and people of color.

                              What to Avoid

Make sure that training programs are free of the four main EEOC
violations, cited in The Legal Handbook for Trainers, Speakers, and
Consultants, by attorney Patricia Eyres: Disparate treatment. Training is
discriminatory if some trainees are treated differently from similarly
situated co-trainees, Eyres explains. This means you could be in trouble
if your training programs:

    (1) Exclude an age or gender group from strenuous safety training.
Prevent employees with high blood pressure from physically demanding
training, but allow other disabled employees to participate. Give white
employees on-the-job training and require another ethnic group to go to a
training facility for the same training. Even though the differentiation
in training might be well-intentioned and without malicious intent, it's
still discriminatory, Eyres says.

    (2) Adverse impact. If an otherwise neutral training practice or
policy has an adverse impact on a protected group, it's discriminatory.
Example: post-training testing that disabled trainees may be unable to
complete, even though their disability doesn't prevent them from
performing the essential functions of their job.

    (3) Continuing past discriminatory practices. Past training practices
may dictate that you select training participants based on employee
referrals before you place other employees in a particular program. If
such a system singles out males or Caucasians because of past
discriminatory practices, Eyres notes, then employee referrals tend to
continue to single out these two groups.

    (4) Harassment/hostile training environments. A hostile training
environment allows slurs, insults, and pranks that might offend training
participants based on gender, race, sexuality, age, and so on.

                             Prevention Tips

To be sure that your training selection system is as objective as
possible and lends itself to consistent enforcement, Eyres recommends the
following steps: Uniformly publicize all training opportunities.
Establish job-related criteria for training programs. Since it is often
impossible to accommodate all employees who want or need training at
once, she suggests an objective schedule based on the areas of highest
need. Be consistent. Make clear to employees the requirements for
admission to the training. Establish objective qualification standards
for skills training programs, including prerequisites (prior training,
experience, skills tests). Make consistent explanations for all employees
who request and are denied training.

To avoid age discrimination in training, says Eyres, banish all
stereotypes from your department, such as that older workers are infirm,
resist change, cost too much to train, are overpaid, and so on. Many of
these stereotypes are not only wrong-headed, they're legally risky.

To comply with the ADA, says Eyres, training managers must never refuse
to train an employee with a ''covered disability.'' To be protected, an
employee must meet the ADA's tests for a covered disability and still be
qualified to perform the job.

That sexual harassment has no place in the training forum goes without
saying. Your primary objective should be to make sure any offending
behavior is stopped, and to prevent any retaliation against the
complaining employee, says Eyres.

Your company's legal counsel can provide assistance in identifying
trouble spots and how to solve a problem before it becomes a lawsuit or
an EEOC violation. (HR Focus, July 2000)


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
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Information contained herein is obtained from sources believed to be
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