/raid1/www/Hosts/bankrupt/CAR_Public/001117.MBX
C L A S S A C T I O N R E P O R T E R
Friday, November 17, 2000, Vol. 2, No. 225
Headlines
ATOCHEM NORTH: S.D. TX OKs $ 41.4M Settlement for Arsenic Exposure Suit
BRE-X MINERALS: Paper Trail 'Main Witness' in Ontario
CALIFORNIA: Court Rejects Attempt To Thwart ACLU's Schools Lawsuit
COCA-COLA: Agrees To Employment Review; Details Of Settlement Due
COCA-COLA: Mehri, Malkin Announces $192.5 Mil Settlement in Race Case
GEORGIA POWER: African American Employees' Race Case Moves Ahead
HOLOCAUST VICTIMS: Lives In Limbo As Survivor Plan Scrutinized
IPO UNDERWRITERS: CHS Lawsuit Not the First to Attack Fee Structure
JITEC INC: Shareholders Suit against 3 Brokerage Firms Filed in Quebec
MICHIGAN: Metro Detroit Schools Sue For Special Ed Funding
MTBE LITIGATION: CT Ct Declines Cert But Estops Shell From Litigation
MULTIMEDIA GAMES: Announces Dismissal of Shareholder Lawsuit in Oklahoma
PRESIDENTIAL ELECTION: British Paper Shifts Spotlight to the Boieses
PRESIDENTIAL ELECTION: Issue on Florida Ballot Recount Back to the Court
PRINCIPAL MUTUAL: Lawsuit over Insurer's Claims-Review Process Okayed
QUINTUS CORP: Barrack, Rodos Announces Securities Suit Filed
QUINTUS CORP: Wolf Popper Files Securities Suit in California
QUINTUS CORPORATION: Bernstein Liebhard Files Securities Suit in CA
QUINTUS CORPORATION: Milberg Weiss Files Securities Suit in California
QUINTUS CORPORATION: Schoengold & Sporn Files Securities Suit in CA
SOTHEBY'S HOLDINGS: Shares Down on Report; Settlement Hearing Postponed
TAINTED BLOOD: Victims in Canada Seek Fair Share in Compensation Package
THOMSON CONSUMER: IL App Ct Agrees to TV Purchasers' Proof under Act
TOBACCO LITIGATION: Justice Ministry in Israel Angry at Dubek Settlement
*********
ATOCHEM NORTH: S.D. TX OKs $ 41.4M Settlement for Arsenic Exposure Suit
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A Texas federal judge overruled all objections to the proposed $ 41.4
million arsenic exposure settlement involving Atochem North America Inc.
and granted a motion to award attorneys' fees Oct. 31 (Lillian Hayden, et
al. v. Atochem North America Inc., et al., No. H-92-1054, S.D. Texas,
Houston; See 9/22/00, Page 3).
Parties were to gather Oct. 16 to consider the fairness of a proposed
settlement that corrects the defect of the previous plan, which had no
opt-out consideration. The new settlement agreement was entered Aug. 15.
Class members have two opt-out rights under the approved settlement
agreement. There is an initial opt-out right for all members of the class.
If more than 135 members of the class exercise the initial opt-out right,
Atochem can withdraw from the settlement.
There is also a so-called back-end opt-out right for members of Subclass B,
who meet the proximity and timeliness requirements but not the medical
requirements. If the members of this class are diagnosed with cancer or a
birth defect that the member contends was caused by emissions from the
plant prior to April 10, 1995, they can opt out of the settlement.
Settlement Class
The settlement class comprises people who worked, lived, were in uteri or
owned property near the Elf Atochem agrochemicals plant in Bryan, Texas,
and who claim that during the specified period they were exposed to arsenic
and other chemicals from the plant. The class area is from 1 mile to 2.5
miles from the plant. Members of the class are divided into three
subclasses depending on their proximity to the plant, cancers they may have
contracted, birth defects and stillbirths.
The defendants admit no wrong in the settlement. The alleged contamination
occurred from 1973 to 1992 and involved air, soil, surface water and
groundwater in the surrounding area.
The subclasses of the proposed settlement class are distinguished by the
amount of exposure to arsenic in areas around the plant. There is a
5-nanogram zone and a 10-nanogram zone. Subclass A members will share $ 24
million from the settlement fund. Members of this class will have had
cancer, had a stillbirth, had one of the listed birth defects, lived in the
exposure zones or were in uteri while their mothers lived or worked in the
exposure zones.
Subclass B, C
Subclass B members will share $ 6.5 million of the settlement fund. They
are people who have not had cancers, stillbirths or children with the
listed birth defects but who lived or worked in the designated exposure
zones. Subclass C members owned property in the designated time period in
the 5-nanogram exposure zone. They will share $ 10.6 million.
In addition to the payments, the proposed settlement agreement designates
up to $ 3.5 million for monitoring and remediation of arsenic-laden dust in
the attics of residences in the designated zone. Residential properties
within the 10-nanogram exposure area are eligible for the testing. If the
dust samples have arsenic in excess of 100 ppm, Atochem will initiate a
remediation protocol yet to be developed.
Atochem also agrees not to produce or handle arsenic materials,
organophosphates, pesticides, fungicides, herbicides, insecticides and
rodenticides at the plant.
Diminished Property Value
Claimants asserted in their April 3, 1992, action that property values
diminished; they also put forth claims for personal injuries. They moved
Sept. 8, 1992, to certify the medical monitoring and property damage class
action.
The class was originally certified Jan. 31, 1994, as an opt-out class
action. However, the parties on April 5, 1995, reached a proposed
settlement that converted the action to a non-opt-out class. Several
objectors appealed the January 1999 certification of the class to the Fifth
Circuit U.S. Court of Appeals, where it was referred for mediation (See
9/1/99, Page 7).
Dennis C. Reich of Reich and Binstock in Houston, Elaine Watson of
Stephanie Shapiro in Houston and Newton Schwartz of Houston are class
counsel. W. Steven Steele of Davis & Davis in Bryan, Texas, and Philip
Banks of Bryan represent Subclass A. Lane D. Thibodeaux of Bryan represents
Subclass B. W. Tyler Moore Jr. of Bryan represents Subclass C.
Richard C. Godfey, Kevin T. Van Wart, Carole A. Cheney and Christopher M.R.
Turner of Kirkland & Ellis in Chicago and Knox D. Nunnally, Charles W.
Schwartz and Lewis C. Sutherland of Vinson & Elkins in Houston represent
Atochem. (Mealey's Emerging Toxic Torts, November 3, 2000)
BRE-X MINERALS: Paper Trail 'Main Witness' in Ontario
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Four years of daily records and memos between John Felderhof and his fellow
senior officers at Bre-X Minerals Ltd. will be the prosecution's 'main
witness' in its case against the company's former exploration chief, the
Ontario Securities Commission said in its opening statement on November 15.
Mr. Felderhof, who sold $83-million worth of Bre-X shares before the
world's largest mining fraud was exposed, lives in the Cayman Islands and
is not expected to appear at the trial.
However, Jay Naster, the commission's senior litigator, said he will rely
heavily on the paper trail between the jungle camp in Indonesia and the
Bre-X head office in Calgary to build his case.
Mr. Felderhof, a Dutch-born geologist who went to school in Nova Scotia,
has been charged with eight counts of violating Ontario's securities laws.
Mr. Naster told the court Bre-X parlayed itself from the ranks of penny
stocks in 1993 to a company with a market capitalization of over $5-billion
in 1996 'on one fact and one fact only: Bre-X claimed to have found one of
the largest gold deposits in the world.'
He said it was Mr. Felderhof who 'controlled and directed' all the
information out of Indonesia, adding David Walsh, the late Bre-X founder,
relied on Mr. Felderhof -- a geologist with 13 years experience in
Indonesia and roughly 30 years' experience in his field.
'In fact, the prosecution's main witness in this case will be John
Felderhof. This case will be built on the documentary record -- the most
reliable record there is.'
Mr. Felderhof, through Joseph Groia, his Canadian lawyer, formally entered
a plea of 'not guilty' as the substance of his trial finally got underway.
He is accused of four counts of insider trading and four counts of
permitting the release of press statements that contained misleading
information.
The court has spent the past month hearing arguments from Mr. Felderhof's
legal team that the charges should be stayed because disclosure by the OSC
was so deficient it impaired their ability to mount a full and fair
defence.
Peter Hryn, the Ontario Court of Justice judge hearing the case, ruled
there were some problems with disclosure, but not serious enough to impair
a fair trial, and denied a stay as well as an application for costs.
Also yesterday, lawyers representing Canadian and U.S. shareholders
announced the first cash settlement in the class-action lawsuits stemming
from the Bre-X collapse. They said they have an agreement with Bresea
Resources Ltd., a Bre-X affiliate, which will provide a payout of
$10-million.
The money, subject to court and shareholder approval, would be held by the
Bre-X trustee, who will distribute it in due course. (National Post
(formerly The Financial Post), November 16, 2000)
CALIFORNIA: Court Rejects Attempt To Thwart ACLU's Schools Lawsuit
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A judge declined Wednesday to dismiss a lawsuit accusing the state of
providing its poorest public school students with an inferior education.
Superior Court Judge Peter J. Busch of San Francisco ruled against state
lawyers who sought to dismiss the action brought by the American Civil
Liberties Union of Southern California.
The lawyers had claimed the class-action lawsuit was too vague and the
state was not ultimately responsible for assuring equal educational
opportunities for all children. The lawsuit claims many poor and minority
students face rat-infested classrooms, substandard schools lacking
textbooks or teachers with credentials.
"This case is exclusively about the state's system of oversight and that
system's alleged inadequacies and failures," Busch said Wednesday. "The
lawsuit is aimed at ensuring a system that will either prevent or discover
and correct such deficiencies from going forward."
The ACLU sued in May in a case that grew to represent 64 students at nine
urban districts throughout California. The lawsuit targets a 5.8
million-student school system for which the state provides most of the
money, but locally elected school boards make most of the decisions.
The lawsuit names the state of California, state school Superintendent
Delaine Eastin, the state Department of Education and the state Board of
Education. The ACLU is suing to have the state fix the schools and provide
enough credentialed teachers at all schools. Attorneys also would like the
state to set up an agency to monitor schools that are fixed to make sure
they remain safe and clean.
The next hearing in the case is set for Dec. 12 in San Francisco. (The
Associated Press State & Local Wire, November 16, 2000)
COCA-COLA: Agrees To Employment Review; Details Of Settlement Due
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Coca-Cola has agreed to a wholesale review of its employment practices ---
to be overseen by an outside group with enforcement powers --- as part of
settling a class-action racial discrimination lawsuit.
The examination over the next four years is likely to produce major changes
in the company's relationship with its employees, particularly those who
are black.
Details of the settlement, including much-anticipated monetary awards to
four plaintiffs and the 2,000 class members, will be announced today by
plaintiffs' attorneys at a noon press conference at the Sheraton Atlanta
Hotel on Courtland Street.
Aside from the monetary component, which both sides have kept under wraps,
the watchdog group of experts, or task force, is one of the settlement's
central pieces, according to a document obtained by the Journal-
Constitution.
The seven-member task force will be responsible for reviewing company
practices on pay, promotions and performance evaluations, as well as for
recommending changes and seeing that they are carried out during the four-
year life of the agreement.
"Coca-Cola will implement task force recommendations unless the company
seeks and obtains judicial relief," the document says. In order to win such
relief, the company would have to prove that following a task force
recommendation would constitute unsound business judgment or would be
unfeasible technically or financially.
The lawsuit, which was filed in April 1999, claimed the company
discriminated against African-American salaried employees in pay,
promotions and performance evaluations. Coca-Cola has denied the claims.
The settlement, which would have to be approved by U.S. District Judge
Richard Story, covers salaried African-American employees in the United
States who worked for the Atlanta-based company at any time from April 22,
1995, to June 14, 2000.
Atlanta attorney Hunter Hughes, who was the mediator for the settlement,
highlighted the innovative approach of the agreement. "I've been involved
in employment lawsuits of all types for over 30 years. In my experience,
the programmatic relief required by the Coke settlement is unique and
groundbreaking. It calls for an analysis and potential revamping of
virtually all aspects of Coke's personnel practices by independent
professionals, with further direct oversight and input from a separate
independent task force," he said.
To carry out its duties, the task force can communicate directly with any
employee or Coca-Cola officer in any manner it chooses, including focus
groups and anonymous surveys to monitor progress.
A toll-free telephone line will be established to receive complaints of
discrimination and harassment 24 hours a day, seven days a week. A new
position of ombudsperson will investigate all complaints. He or she will
report directly to Coca-Cola Chairman Doug Daft and give periodic reports
to the task force.
The agreement takes the unusual step of specifically requiring Coca-Cola's
board of directors to monitor the company's progress in meeting its new
obligations.
The obligations are numerous and include:
-- Reviewing and changing when necessary policies and practices on
pay;
-- promotions and performance evaluations to ensure that they are
fair to African-Americans and all other employees. "The Coca-Cola
Co. commits to excel among Fortune 500 companies in promoting and
fostering equal opportunity in compensation, promotion and career
advancement for all employees in all levels and areas of the
business, regardless of race, color, gender, religion, age,
national origin, or disability," the document says.
-- Compiling all sorts of employment data and then working with the
task force to develop recommendations to improve conditions. The
company's human resources department will implement the changes
and track the results. It will then consult with the task force to
see if further changes are needed.
-- Ensuring that managers make fair decisions about employee
compensation, including initial salaries, merit increases, bonuses
and stock options.
-- Giving employees a more formal process to appeal performance
evaluations believed to be unfair or inaccurate.
-- Making sure "diverse pools" of qualified candidates are considered
when vacancies are being filled by employees. "Such a diversity
goal shall include but not be limited to African-Americans," the
agreement says. Women, Hispanics, Asian-Americans and others also
should be included.
The company will make a formal explanation to the task force in ‘
situations when a slate of candidates "remains non-diverse."
"The company recognizes that diversity is a fundamental and
indispensable value and that the company, its shareholders and all
of its employees will benefit by striving to be a premier 'gold
standard' company on diversity," the agreement says. "The company
will set measurable and lawful business goals to achieve these
objectives during the next four years."
-- Considering diversity in the selection of board members. The
company currently has one African-American and two women on its
12-member board.
-- Including diversity efforts among the measures used in determining
compensation for top officers and managers.
-- Putting task force reports on the company's Internet site so the
public can read them.
The task force is modeled after a similar group established four years ago
in the settlement of an employment discrimination suit against Texaco.
Coca-Cola's task force will be made up of a diverse group of experts,
including former government officials in the labor or civil rights arena,
professors, lawyers, diversity consultants and business people. Three
members will be selected by the company, three members by the plaintiffs'
lawyers, and the chairperson will be jointly selected.
Members will likely spend hundreds of hours annually in their roles and
will have access to company records. They also will be well-compensated.
The task force will receive input from two industrial psychologists known
as "joint experts." They will do studies that the task force and the
company will use to make some of their recommendations and changes.
Already, the company has taken several actions, including establishing a
specific office of diversity, tying executives' compensation to meeting
diversity goals and creating a mentoring program to better train and
develop employees. (The Atlanta Journal and Constitution, November 16,
2000)
COCA-COLA: Mehri, Malkin Announces $192.5 Mil Settlement in Race Case
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The following was released on November 16 by Mehri, Malkin & Ross, PLLC:
Plaintiffs and their lawyers in a racial discrimination law suit against
Coca-Cola today announced an historic settlement valued at approximately
$192.5 million, making it the largest settlement ever achieved in a race
discrimination class action. In addition to an approximately $113 million
cash settlement, Coca-Cola has agreed to make future pay equity adjustments
that plaintiffs' experts estimate will cost about $43.5 million, and to
implement unprecedented programmatic reforms that plaintiffs estimate will
cost about $36 million.
"This settlement sets a new standard for corporate diversity. In short, the
'World of Coke' will be going through a 'World of Change,'" said co-lead
counsel Cyrus Mehri of Mehri, Malkin & Ross, PLLC. "By settling this case
in near-record time, we have obtained swift justice for this class."
The settlement is on behalf of a class of approximately 2000
African-Americans who have worked for The Coca-Cola Company in the United
States in salaried exempt and non-exempt positions since April 22, 1995.
The wide-sweeping programmatic reforms agreed to by Coca-Cola span the
company from top to bottom and require directors, officers, managers and
all company employees to fundamentally change the way they treat employees.
These reforms are forward-looking and are designed to ensure that the in
the future the Company will treat all African-American employees fairly.
A significant feature of the settlement includes the creation of an
outside; seven-member independent task force mandated to ensure compliance
with the settlement agreement and to provide independent oversight of
Coca-Cola's diversity efforts. Modeled on the Task Force for Fairness and
Equality created in 1997 as part of the settlement in Roberts vs. Texaco
Inc. the Coca-Cola Task Force shall have independent investigative,
reporting and monitoring powers over all pertinent human resource
practices.
The settlement agreement requires the Company, under task force oversight,
to make sweeping changes in a host of human resources practices. The task
force will produce annual reports on Coca-Cola's compliance with the
settlement agreement, to be posted on the Company's website. The financial
terms of the settlement provide "make-whole relief" determined by a panel
of experts to compensate the settlement class for wages, bonuses and stock
options stemming from lost promotional opportunities and pay inequities,
yielding an approximately $23.7 million Back Pay Fund for distribution to
the class.
Any class member has the option of pursuing an individual Promotional
Claims Procedure instead of accepting a share of the Back Pay Fund. Class
members will also share an approximately $58.7 million Compensatory Damages
Fund, and current class members can compete for awards from a $10 million
Promotional Achievement Award Fund, meaning that approximately $92.4
million will go to the class. The balance of the approximately $113 million
cash component will go to attorneys' fees, estimated at approximately $20
million, subject to court approval.
Other key features of the settlement include:
-- Commitment to a "gold standard."
Coca-Cola will commit to excel among Fortune 500 companies by becoming a
premier, "gold standard" company on diversity New responsibilities for the
Board of Directors. Coca-Cola's Board of Directors will acknowledge its
responsibility to ensure Equal Employment Opportunity (EEO) compliance, to
link compensation of senior management to EEO performance, and to consider
diversity in the selection of new Board members.
-- An independent ombudsperson.
There will be an independent ombudsperson to address internal reports of
discrimination and retaliation and to independently monitor the handling of
complaints by Coca-Cola human resources.
-- Transparency.
The Task Force will ensure that Coca-Cola regularly monitors and reports on
the treatment of African-American employees with respect to promotions,
compensation, performance evaluations and terminations, on a company-wide
and business-unit basis. These reports will go to the Board of Directors,
among others.
-- Linking compensation to EEO performance.
The Compensation Committee of the Board of Directors will link the
compensation of senior management to the Company's EEO performance.
Moreover, the Task Force will ensure that Coca-Cola bases an appropriate
portion of managerial incentive pay on that performance. The Task Force
will report annually to employees, management and the Board of Directors on
the company's EEO performance.
-- Oversight on managerial discretion.
The Task Force will ensure that Coca-Cola establishes effective internal
oversight of individual managerial decisions on promotions, compensation
and performance evaluations, to eliminate unlawful bias and excessive
subjectivity in decision making.
Further, the Task Force will ensure that the Company establishes procedures
to appeal managerial determinations regarding promotions, compensation and
performance. Diversity training. The Task Force will ensure that Coca-Cola
conducts mandatory diversity training at least annually for managers and
bi-annually for all other employees.
Contact: Jennifer Seeger at 202-478-6129 or jenseeger(At)yahoo.com. Or,
contact Lisa Baumgartner at 202-478-6128. KEYWORDS: LAW RACE JOBS/LABOR
Jen Seeger, 202-478-6129, jenseeger(At)yahoo.com or Lisa Baumgartner,
202-478-6128, both for Mehri, Malkin & Ross, PLLC
GEORGIA POWER: African American Employees' Race Case Moves Ahead
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A federal judge in Atlanta has rejected Georgia Power s initial bid for
dismissal of a widely publicized class-action racial discrimination lawsuit
filed against the utility and its parent and sister companies. In a recent
ruling, U.S. District Judge Orinda Evans said the case should move forward,
with both sides presenting evidence during pre-trial proceedings.
The lawsuit, filed July 27 on behalf of 2,200 African-American employees,
claims the companies have fostered a pattern of discrimination against
blacks in hiring and promotion and exhibited a reckless disregard for
racially hostile workplace conditions. Georgia Power and its parent,
Southern Co., have steadfastly rejected the allegations. (The Electricity
Daily, November 16, 2000)
HOLOCAUST VICTIMS: Lives In Limbo As Survivor Plan Scrutinized
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One former Auschwiz slave laborer says he fears becoming "once again a
number in a sea of names." Another Holocaust survivor, a 92-year-old widow,
wonders if she will be compensated for her past pain "while I am still
alive." Still another victim puts it this way: "I am old, sick and I am
seeking justice."
The anguished comments are found in the piles of letters that have flooded
Brooklyn federal court in the wake of a $1.25 billion settlement in
Holocaust survivors' massive class-action lawsuit against Swiss banks.
Nearly two years have passed since the settlement was reached. But U.S.
District Court Judge Edward Korman still must approve a proposed plan for
the daunting task of dividing and distributing the funds to a half million
or more potential claimants scattered across the globe.
The judge has scheduled a public hearing - expected to draw scores of
Holocaust victims and attorneys - on Monday in Brooklyn.
Crafted by a court-appointed mediator, the distribution plan would pay
about $800 million to claimants who can prove their families deposited
money in Swiss Banks to hide it from the Nazis and never got it back. At
last count, about 80,000 people had identified themselves as depositors or
their heirs.
The remaining $450 million would go to wartime refugees who were denied
entrance to or expelled from Switzerland, slave laborers forced to work for
companies with Swiss accounts, and victims whose belongings were plundered
by the Nazis and apparently ended up in Switzerland.
The mediator, Judah Gribetz, former chair of Jewish Community Relations
Council of New York, estimated that each refugee would get $2,500, and
laborers $1,000 apiece. But, in a letter to potential claimants posted on
the Internet, he cautioned that "there is simply not enough money
available" to pay all the heirs of Nazi victims.
Finally, although the plan sets aside $100 million to compensate looting
victims, Gribetz said it would be too difficult and time-consuming to
validate individual claims in that category. He instead proposed using the
money to pay for food, medical care and housing for "the neediest Nazi
victims."
The Jewish Week, a newspaper based in New York, hailed the Gribetz plan as
"Solomic in its effort to balance legal principles and moral
responsibility." The proposal, it added, achieves for the victims "symbolic
compensation from those who contributed to their suffering."
Some claimants like Ernest Lobet, 75, a Glen Cove, N.Y., attorney who
survived Auschwitz, agree that the plan, while flawed, is "the best that
could be done under the circumstances."
"Can I be compensated for three years in Auschwitz?" Lobet said in an
interview. "No one can be. ... But at least there's an acknowledgment that
something is owed to the victims."
Symbolism aside, the reality - compensation amounting to, at best, a few
thousand dollars per victim - has drawn reactions ranging from grim
resignation to anxiety to outrage from claimants. Many of the letters
written to Korman since the distribution plan was made public in September
complain that the settlement may be too little, too late.
Walter Simoni, 82, of Vienna, wrote that the Nazis forced him into slave
labor at a Poland factory during World War II. He said he had been
frustrated in his efforts to secure reparations through the German Claims
Conference and other funds. Simoni called the Swiss banks settlement his
"last hope" to avoid being "once again a number in a sea of names ... and
get the correct treatment I deserve." A Brooklyn rabbi, Chaim Stauber,
questioned putting the demands of the Swiss bank depositors ahead of "frail
survivors" who may not have long to live. "We must reflect on what the real
priorities must be," Stauber wrote. "We hope it will be to put the most
needy population of survivors ... as No. 1 on the distribution plan."
The widow, Rudolfine Schlinger, of Queens, said she hoped to reclaim funds
that her husband deposited in Switzerland and left behind when he fled to
the United States in 1939. Her husband "did not live long enough to be paid
back," she wrote. "My family has waited over 60 years to recover what is
rightfully ours. Can I expect to see this money in my lifetime?"
Another survivor, Revekaa Levin, of Ontario, Canada - whose family's gold
assets were stolen during the Nazi massacre of Jews in the Minsk ghetto in
Belarus - called Gribetz's plan "terrible" because it fails to identify and
compensate looting victims. "I am old, sick and I am seeking justice,"
wrote Levin, whose family was among those massacred. "I personally, just
for the sake of my murdered father and sisters, cannot participate in this
class-action claim. ... My fight will continue until the day I die." (The
Associated Press State & Local Wire, November 16, 2000)
IPO UNDERWRITERS: CHS Lawsuit Not the First to Attack Fee Structure
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CHSs lawsuit attacks standard fee structure of Wall Street underwriters.
The bankrupt computer distributor takes aim at 18 IPO underwriters in an
effort to recoup some commission fees.
CHS Electronics Inc. wants to go out with a bang. The once fast-growing and
now bankrupt Fortune 500 computers distributor based in Miami is entering
the final chapter of its existence with a lawsuit against several of Wall
Streets big-name investment brokers.
CHS is accusing 18 IPO underwriters -- including heavyweights Raymond James
& Associates, Credit Suisse First Boston and Goldman Sachs -- of
price-fixing commission fees.
The lawsuit is not the first attempt to attack the standard fee structure
of Wall Street underwriters.
The industry has received a lot of antitrust attention in connection with
market making, says Steven Halpert, professor of securities law at the
University of Miami, referring to government intervention. He said the
Department of Justice mandated several financial settlements to
underwriters. If CHS wins, the financial exposure to the underwriters would
be very large, he said.
Although no dollar amount has been specified, CHS seeks to recoup portions
of a 7 percent commission fee the computer distributor paid to a slew of
investment brokerage firms for its initial public offering of $ 66 million
in 1996. Any proceeds CHS wins from the lawsuit will be used to repay
creditors.
However, Halpert questions the strategy of the liquidating trust to use its
funds for this litigation.
Its a complicated case to prove, he said. These cases move at a glacial
pace and can be very expensive.
Keith Cooper, a principal of accounting firm PricewaterhouseCoopers, is
CHSs liquidating trustee.
Paul Singerman, the accounting firms general counsel and a partner with the
Miami law firm Berger Davis & Singerman, said the Miami firm Hanzman Criden
Chaykin & Rolnick, hired to lead the lawsuit against the investment banks,
is working on a contingency basis. This shows that the prospects for
recovery are good, he said.
The lawsuit was filed in federal court in Miami, but attorneys representing
the underwriters want to move the case to New York.
Attorneys representing CHS, which fell on hard times earlier this year and
filed for chapter 11 bankruptcy in March, say the underwriters continue to
charge the uniform fees to other companies that go public.
It is our position that the major underwriting firms conspire to fix
underwriting fees for deals that raise between $ 20 million to $ 80
million, said Michael Criden, CHSs attorney and a partner with Hanzman
Criden.
Criden said the underwriters have been able to enjoy fat fees from IPOs
because all of them have conspired to keep the fee high.
In a truly competitive world, he said, you have one guy who says he will do
it for 6 percent and another guy who says hell do it for 5 percent. We don
t have that here.
Lawrence Silver, spokesman for St. Petersburg-based Raymond James &
Associates, which led the CHS initial public offering, said the company
does not comment on any ongoing litigation. Officials for Credit Suisse and
Goldman did not return phone calls.
Meanwhile, the last assets of the one-time giant are about to be
liquidated. CHS finalized a restructured deal last week to sell its
European subsidiaries in France, Germany, Scandinavia, Eastern Europe and
Russia to privately held Europa.IT, based in Denmark, said CHS bankruptcy
attorney Thomas Lehman, a partner with the Miami firm of Tew Cardenas Rebak
Kellogg Lehman DeMaria & Tague.
In exchange for the subsidiaries, CHS received $ 1.1 million in cash, 35
percent of Europas common stock and $ 35 million in preferred notes. The
common stock and preferred notes will go to CHS creditors and the $ 1.1
million will be used for liquidating expenses.
When the Europa deal was approved in March, terms called for Europa to give
up 20 percent of its common stock, $ 22.5 million from 30-month notes and $
45 million in redeemable convertible preferred shares.
Lehman said the terms of the deal were changed from the original agreement
because the liquidating trust is selling some of CHSs European operations
to another entity. In another CHS-related development, Cooper, the
liquidating trustee, has begun verifying claims by CHS creditors, estimated
at $ 1.2 billion.
The trustee is making sure the filed claims are valid, said Singerman,
Coopers general counsel for the liquidation.
Creditors include note holders and equipment manufacturers such as IBM
Credit Corp. in Armonk, N.Y., which is owed $ 64.6 million, and Seagate
Technology in Palo Alto, Calif., which is owed $ 58.2 million.
Those creditors with valid claims will be entitled to proceeds from the
sale of CHS assets, Singerman said, which include any monetary judgments
from pending litigation by CHS against other parties.
In addition to the Europa deal and the lawsuit against the stockbrokers,
other CHS assets that will be used to pay off creditors include:
Any monetary judgments CHS may be entitled to from the federal governments
antitrust case against software maker Microsoft. CHS is a plaintiff in a
class-action antitrust suit against Microsoft;
Proceeds from an estimated $ 20 million lawsuit filed against CHS by
several of the companys former officers and directors;
Minority interests in several former operating subsidiaries of CHS in
Central and South America;
The sale of several CHS operations in the Baltic region of Europe estimated
at $ 3.5 million. The liquidating trust representatives expected to close
the deal Tuesday. If it doesnt, Europa is a standby buyer. Europa is run by
former CHS executive Mark Keough;
A lawsuit against SiS, a computer parts manufacturer based in Taiwan, over
a $ 25 million deposit SiS owes CHS relating to SiS entities in Hong Kong
that CHS had purchased. n
Keith Cooper, a principal of accounting firm PricewaterhouseCoopers, is
CHSs liquidating trustee.
Paul Singerman, the accounting firms general counsel and a partner with the
Miami law firm Berger Davis & Singerman, said the Miami firm Hanzman Criden
Chaykin & Rolnick, hired to lead the lawsuit against the investment banks,
is working on a contingency basis. This shows that the prospects for
recovery are good, he said.
The lawsuit was filed in federal court in Miami, but attorneys representing
the underwriters want to move the case to New York.
Attorneys representing CHS, which fell on hard times earlier this year and
filed for chapter 11 bankruptcy in March, say the underwriters continue to
charge the uniform fees to other companies that go public.
It is our position that the major underwriting firms conspire to fix
underwriting fees for deals that raise between $ 20 million to $ 80
million, said Michael Criden, CHSs attorney and a partner with Hanzman
Criden.
Criden said the underwriters have been able to enjoy fat fees from IPOs
because all of them have conspired to keep the fee high.
In a truly competitive world, he said, you have one guy who says he will do
it for 6 percent and another guy who says hell do it for 5 percent. We don
t have that here.
Lawrence Silver, spokesman for St. Petersburg-based Raymond James &
Associates, which led the CHS initial public offering, said the company
does not comment on any ongoing litigation. Officials for Credit Suisse and
Goldman did not return phone calls.
Meanwhile, the last assets of the one-time giant are about to be
liquidated. CHS finalized a restructured deal last week to sell its
European subsidiaries in France, Germany, Scandinavia, Eastern Europe and
Russia to privately held Europa.IT, based in Denmark, said CHS bankruptcy
attorney Thomas Lehman, a partner with the Miami firm of Tew Cardenas Rebak
Kellogg Lehman DeMaria & Tague.
In exchange for the subsidiaries, CHS received $ 1.1 million in cash, 35
percent of Europas common stock and $ 35 million in preferred notes. The
common stock and preferred notes will go to CHS creditors and the $ 1.1
million will be used for liquidating expenses.
When the Europa deal was approved in March, terms called for Europa to give
up 20 percent of its common stock, $ 22.5 million from 30-month notes and $
45 million in redeemable convertible preferred shares.
Lehman said the terms of the deal were changed from the original agreement
because the liquidating trust is selling some of CHSs European operations
to another entity.
In another CHS-related development, Cooper, the liquidating trustee, has
begun verifying claims by CHS creditors, estimated at $ 1.2 billion.
The trustee is making sure the filed claims are valid, said Singerman,
Coopers general counsel for the liquidation.
Creditors include note holders and equipment manufacturers such as IBM
Credit Corp. in Armonk, N.Y., which is owed $ 64.6 million, and Seagate
Technology in Palo Alto, Calif., which is owed $ 58.2 million.
Those creditors with valid claims will be entitled to proceeds from the
sale of CHS assets, Singerman said, which include any monetary judgments
from pending litigation by CHS against other parties.
In addition to the Europa deal and the lawsuit against the stockbrokers,
other CHS assets that will be used to pay off creditors include:
Any monetary judgments CHS may be entitled to from the federal governments
antitrust case against software maker Microsoft. CHS is a plaintiff in a
class-action antitrust suit against Microsoft;
Proceeds from an estimated $ 20 million lawsuit filed against CHS by
several of the companys former officers and directors;
Minority interests in several former operating subsidiaries of CHS in
Central and South America;
The sale of several CHS operations in the Baltic region of Europe estimated
at $ 3.5 million. The liquidating trust representatives expected to close
the deal Tuesday. If it doesnt, Europa is a standby buyer. Europa is run by
former CHS executive Mark Keough;
A lawsuit against SiS, a computer parts manufacturer based in Taiwan, over
a $ 25 million deposit SiS owes CHS relating to SiS entities in Hong Kong
that CHS had purchased. (Miami Daily Business Review, November 15, 2000)
JITEC INC: Shareholders Suit against 3 Brokerage Firms Filed in Quebec
----------------------------------------------------------------------
A motion for authorization to launch a class-action suit against Jitec
Inc., chief executive Benoit Laliberte, and three brokerage firms has been
filed in Quebec Superior Court. Petitioner Yves Beaudoin, brother of Marc
Beaudoin, a Canaccord Capital Corp. broker who was first suspended and then
resigned from the investment firm following an internal investigation about
links to Jitec, seeks the action on behalf of all those who were Jitec
shareholders between July 26 and Nov. 9. Documents appeal to the court to
order damages of $131, 253 be paid to Mr. Beaudoin, and individual amounts
to others represented by any class action 'to sanction the manipulation of
the trading volume and price of the Jitec stock on the Montreal Exchange.'
Investment firms named in the petition, set to be heard by a judge on Dec.
7, include Canaccord Capital Corp CIBC World Markets Inc, and Leduc &
Associates Securities (Canada) Ltd. (National Post (formerly The Financial
Post), November 16, 2000)
MICHIGAN: Metro Detroit Schools Sue For Special Ed Funding
----------------------------------------------------------
Most of Metro Detroit's school districts joined almost 300 others statewide
Wednesday in a third major lawsuit over special education funding.
The suit asks the courts to declare once and for all that the Legislature
and Gov. John Engler are violating the Michigan Constitution at a cost of
more than $400 million a year.
Of the 92 local and intermediate districts, 74 joined. Statewide, 366 of
555 local and intermediate districts signed on -- with more expected to
follow.
The suit is named, as it was twice before, after its lead plaintiff, Donald
Durant of Warren, the former Fitzgerald School Board president.
"I hope this is the last one," Durant said. "It's discouraging."
The suit, filed directly with the Court of Appeals as allowed by state law,
charges that the state is violating the 1978 voter-approved Headlee
Amendment to the state Constitution, which prohibits unfunded mandates from
Lansing.
It asks the court to declare what the state has done to be
unconstitutional, and also asks for $420 million in damages for unpaid
mandates for this school year. Prior suits in 1980 and 1998 did not ask for
such a clear declaration of blame.
"Ever since 1978, legislators on both sides of the aisle have tried to find
ways to avoid paying for their mandates on local government," said Richard
Headlee, the amendment's author and supporter of the schools.
The list of all the school board members, superintendents and interested
parents suing the state runs 58 pages.
Despite two prior victories and an $840-million settlement in 1997 to end
the first case, school officials say the state still doesn't pay for
special education services they require, such as transportation, extra
teachers and classroom aides. Special education classes serve handicapped
pupils and other special-needs students.
"We're absolutely perplexed" about this suit, said Engler spokesman John
Truscott. "We're more than happy to lay out for the court the record
increases in school funding we've approved."
Truscott said the extra money pumped into state foundation grants allows
local districts to decide how and where to spend their money. "It's not a
shell game. We think local districts know better how to spend their money."
But districts cannot keep up with increasing costs, and are forced to cut
regular programs to pay for special education, said Rochester Supt. John
Schultz. It's already caused rancor among parents in his district when
programs were cut and class sizes increased, he said. (The Detroit News,
November 16, 2000)
MTBE LITIGATION: CT Ct Declines Cert But Estops Shell From Litigation
---------------------------------------------------------------------
Class action certification in an MTBE action was denied Oct. 24 but Shell
Oil Co. is estopped from litigating issues covered in agreements with the
Connecticut Department of Environmental Protection, such as the fact that
MTBE leaked from its underground storage tank, a federal judge has ruled
(Catherine Martin, et al. v. Shell Oil Co., et al., No. 3:99CV1428 [JCH],
Conn. Dist.; See 12/8/99, Page 19).
"At best, the orders find that some MTBE did leak from the Shell station's
tank into the groundwater at the Shell station and at some unspecified
'off-site' locations, and that Shell is responsible for such leakage,"
wrote U.S. Judge Janet T. Hall of the District of Connecticut.
Judge Hall analyzed the Connecticut DEP orders and consent agreements to
determine if the documents collaterally estop Shell from contesting
causation in the proposed class action. Because the agency's proceedings
were "adjudicative in nature," Judge Hall ruled, and because the 1998
consent order was open to review due of its finality, it has a preclusive
effect.
Preclusive Effect
In the instant action, Judge Hall said, the 1998 order does not have
preclusive effect on causation.
"Because causation was not necessary to the 1998 Order, the defendants have
not had a full and fair opportunity to litigate this issue and thus, the
1998 Order does not collaterally estop them from raising the issue of
causation in this proceeding," the judge said.
The judge rejected plaintiffs' request for class certification after
analyzing numerosity, commonality and predominance.
"The plaintiffs have submitted no evidence to support their claim that the
class is sufficiently numerous, nor have they provided a reasonable
estimate of the number of class members," she said.
The weaknesses found in commonality and predominance are related to Judge
Hall's analysis of causation in the 1998 order. The effect on class
certification, Judge Hall wrote, is "the proof of causation, while it may
involve similar evidence for each of the plaintiffs, will not likely be
identical."
Individualized Proof
The alleged common issues of "fact and law" raised by plaintiffs, Judge
Hall wrote, are based on "the basic question of whether the leakage of MTBE
emanating from the Shell property extended to the property of a plaintiff,
and if so to what degree." These will require individualized proof, she
said.
"In contrast, the issues of whether and when the defendants became aware of
the leaks, whether the defendants adequately disclosed information about
the contamination to the proposed class members, whether the defendants
profited from operating the Shell station, whether the proposed class
members are at risk for future health problems and whether the contaminants
can cause adverse health effects all may be supported by common evidence,"
Judge Hall said.
Judge Hall denied defendants' motion to dismiss plaintiffs' claims for
injunctive relief regarding providing alternative sources of potable water.
Judge Hall rejected the argument that the state environmental agency has
sole jurisdiction in the matter and has adequately addressed the issue of
MTBE in the groundwater.
Injunctive Relief Survives
Judge Hall said she is not persuaded that the questions raised by the
motion for injunctive relief require the expertise of the CTDEP. Further,
she said, there is very little risk of inconsistent rulings if the court
exercises jurisdiction here. In addition, the environmental agency has not
ruled on whether Shell is "responsible for the spread of that contamination
to any other specific properties besides the Wilton Shopping Center." The
agency has not ruled on the specific issues raised by the instant case.
"The court finds that the advantages of applying the doctrine [of
jurisdiction] are outweighed by the potential costs resulting from
complications and delay in the administrative proceedings," Judge Hall
wrote. "It is not clear that any action by the CTDEP will address the
plaintiffs' concerns in the near future."
Scott E. Garrett and Gina M. von Oehsen of Garrett & Von Oehsen in
Stamford, Conn., and Russell H. Beattie Jr. and Curt D. Marshall of Beatie
& Osborn in New York represent the plaintiffs. Charles L. Howard and Paul
D. Sanson of Shipman and Goodwin in Hartford, Conn., and Steven C. Dubuc,
Anthony King, John W. Kampman and Richard E. Wallace of Wallace, King,
Marraro & Benson in Washington, D.C., represent the defendants. (Mealey's
Emerging Toxic Torts, November 3, 2000)
MULTIMEDIA GAMES: Announces Dismissal of Shareholder Lawsuit in Oklahoma
------------------------------------------------------------------------
Multimedia Games Inc. (Nasdaq:MGAM) announced today that the United States
District Court for the Northern District of Oklahoma has issued an order
dismissing all claims of the plaintiffs in two consolidated shareholder
class action lawsuits against the Company (Guarino v. MGAM; Conners v.
MGAM).
These lawsuits alleged that the Company had failed to disclose specific
information relating to the Company's business operation.
MGAM tells readers provides system services to gaming establishments. These
services include designing and developing video lottery and interactive
bingo games and TV game shows, delivering them over Betnet(tm), MGAM's
proprietary broadband communication network, and providing interconnected
electronic terminals for presenting these games to players. Betnet(tm) is a
multi-channel network using intranets, local area networks, the Internet,
closed-circuit satellite TV and telephone lines.
PRESIDENTIAL ELECTION: British Paper Shifts Spotlight to the Boieses
--------------------------------------------------------------------
THE battle engulfing the presidential election has proved a bonanza for
America's most famous lawyers, with warriors from Washington's ideological
dogfights of the past 20 years facing each other again.
The latest recruit on the Democratic side is David Boies, the first
anti-trust lawyer to be profiled in Vanity Fair.
Mr Boies, a youthful 59, is a renegade, best known as the slayer of
Microsoft. His cross-examination of Bill Gates in court, which painted the
Microsoft founder as an evasive, bulldozing monopolist, led to a ruling
this year that the software giant should be broken up.
In one stunning week in November, he forced the biggest anti-trust class
action settlement in history, when seven pharmaceutical companies were told
to pay pounds 1.1 billion for fixing the price of vitamins. He then stared
down BP on behalf of the state of Alaska, forcing the company to pull out
of America's second largest oil field. The week culminated with the initial
ruling charging Microsoft with monopolistic behaviour.
In court, he marks himself out from the slicks around him by wearing cheap
blue suits bought from the Land's End catalogue, rubber-soled shoes and the
same blue-knit tie every day. He arrives at the courthouse in a scruffy
anorak, carrying his documents in a plastic bag, and checking his Timex
watch, worn outside his cuff.
He prefers to spend his pounds 3 million a year salary on gambling binges
in Las Vegas and classic cars.
He joins another star on the Gore team: Laurence Tribe, Harvard
University's professor of constitutional law. Mr Tribe destroyed the
Republicans' attempt to block manual recounts in the federal court in Miami
on Monday.
Despite his academic demeanour, Mr Tribe bears the scars of one of the most
vicious political battles of the past two decades. He led the Democratic
opposition to the appointment to the Supreme Court of Robert Bork, a
conservative judge nominated by Ronald Reagan. Mr Tribe emerged on the
winning side.
Leading the Republican fight is Ted Olson, a close friend of Mr Bork and a
man charged by some Democrats with being a crucial figure in the so-called
"vast Right-wing conspiracy" against President Clinton. Mr Olson was a
member of the Justice Department under President Reagan and a supporter of
Mr Bork's nomination to the Supreme Court. He found himself beaten again by
Mr Tribe as they faced each other in court in Miami on Monday.
Now in private practice with the Washington office of the Gibson Dunn law
firm, he is the Republican Right's first port of call in a legal crisis. He
offered constant advice and suggested staff to his old friend Kenneth Starr
during the investigation of President Clinton.
The joker in the Democrats' pack is Alan Dershowitz who made his name
defending Claus von Bulow in his second trial on charges of killing his
wife.
His last great performance was helping to defend O J Simpson, who was
likewise charged with killing his wife and likewise acquitted. (The Daily
Telegraph(London), November 16, 2000)
PRESIDENTIAL ELECTION: Issue on Florida Ballot Recount Back to the Court
------------------------------------------------------------------------
Al Gore and George Bush clashed in courts of law and public opinion on
Thursday, the vice president saying hand recounts were needed in Florida to
avert a ``short-circuited'' election and the GOP arguing that state law
sets a deadline of midnight Friday that ``must be respected.'' Don Evans,
Bush's campaign chairman, told a news conference in Austin, Texas, that
once overseas ballots are counted in Florida, ``win or lose, this election
will be over.''
The public sparring played out as lawyers for the vice president sought a
ruling in state court that would allow recounts to continue and require
Florida officials to use them in certifying a statewide winner. Judge Terry
Lewis said a ruling by late afternoon was possible, but not certain.
Bush's attorneys looked to a federal appeals court in Atlanta to shut down
the recounting altogether.
Nine days after the nation voted, manual recounting resumed in one heavily
Democratic county around Ft. Lauderdale and Republicans ferried fresh
political troops to the state.
Bush began the day with a 300-vote margin statewide, with about 2,500
overseas absentee ballots to be counted Friday night. Gore hoped the
additional hand recounting would vault him ahead of the Texas governor in
the race for the state's 25 electoral votes and the White House.
The focus on Florida shifted fleetingly during the day to Iowa, when the
Bush campaign said it would allow a 5 p.m. deadline to pass without seeking
a recount in a state that Gore won narrowly.
Evans said Bush had decided to ``do his part to ensure the fairness,
accuracy and finality of this election'' by skipping a recount - an obvious
attempt to draw a contrast to the Gore campaign's efforts in Florida.
In one striking development, when officials in Broward County arrived to
resume their hand counting of 588,000 votes, they found a manila police
envelope emblazoned with the words: ``Crime. Found Property.''
Inside were 78 ``chads,'' the bits of paper produced when holes are made in
punchcard ballots, found on the counting room floor when the recanvassing
stopped Wednesday night. ``We go with the saying, `Let the chads fall as
they may,''' said County Elections Supervisor Jane Carroll, a Republican
member of the canvassing board. ``Chads are not partisan.''
Up the coast in West Palm Beach, about 100 demonstrators turned out to
rally support for recounts. Some held signs that read ``Honk for Dimples,''
a reference to indentations made in punchcard ballots.
Officials in yet a third county, Miami-Dade, disclosed plans to meet Friday
to reconsider their earlier refusal of Gore's request for a hand recount of
all 654,000 ballots there.
The developments came on the day after Gore and Bush had made dueling
television appearances, the vice president suggesting a statewide hand
recount to settle the election, the Texas governor firmly rejecting the
offer.
Democrats resumed their public relations offensive in the morning. ``The
choice really is whether the voters are going to decide this election by
having every vote count,'' Gore said on a radio call-in program, ``or
whether that process is going to be short-circuited without all the votes
being examined.''
His running mate, Sen. Joseph Lieberman, was on the morning television
programs, telling ABC he was ``disappointed by Governor Bush's response to
the offer last night.'' He expressed his disappointment, too, with
Florida's Republican secretary of state, Katherine Harris, who announced
Wednesday night she would not allow the certified vote totals to be
adjusted with the results of the hand counts.
Florida's governor, Jeb Bush, brother of the GOP presidential hopeful, had
words of support for his secretary of state. ``Subject to the courts
weighing in on this,'' he said, ``Saturday morning we'll know who won the
state.''
That left plenty of time for the courts, and there was no shortage of
opportunity. Florida Circuit Judge Terry Lewis was weighing the Gore team's
request for the results of hand recounts to be certified, and convened an
early afternoon hearing on the case.
Both sides filed written briefs with the federal appeals court in Atlanta,
where Bush was hoping for legal relief. ``The Florida manual recount
process is being used to eliminate any possibility of an orderly, rational
and final end to the election.'' Countered the Gore legal team, ``This case
is simply not appropriate for federal court intervention of any kind at
this point in the proceeding.''
Radio show host Tom Joyner, recipient of Gore's morning telephone call,
tried to draw the vice president into talk of a stolen election but the
vice president wouldn't bite. ``I would discourage the use of that word
because, however it comes out, we're going to come behind the winner,'' he
said, cautioning that there are ``high emotions on the other side,'' too.
Bush and his campaign aides were silent during the morning, following the
Texas governor's firm rejection of Gore's proposal Wednesday night. ``The
outcome of this election will not be the result of deals or efforts to mold
public opinion,'' Bush said. Hand recounting ``introduces human error and
politics into the vote-counting process.''
At the same time, GOP sources, speaking on condition of anonymity, said
Republicans were rushing additional political troops to the state in case
the courts rule the hand recounts may proceed.
With Gore urging them on, officials in Broward County said they intended to
continue recounting 588,000 ballots by hand Thursday. Just up the Florida
coast, Palm Beach County officials said they, too, intended to review
ballots cast on Election Day.
Just over the legal horizon was the U.S. Supreme Court, and already there
were predictions the election to pick the nation's 43rd president would
wind up there. ``Anything this important is going to find its way to the
most important court in the land,'' former Sen. Alan Simpson of Wyoming, a
longtime friend of Bush's running mate Dick Cheney, said in an interview.
(AP, November 17, 2000)
PRINCIPAL MUTUAL: Lawsuit over Insurer's Claims-Review Process Okayed
---------------------------------------------------------------------
Adrian and Jill Selby were able to convince the U.S. District Court for the
Southern District of New York that they should be allowed to maintain at
least one of their claims in their class-action lawsuit against Principal
Life Insurance Company alleging violations of the Employee Retirement
Income Security Act (ERISA) due to the manner in which the insurer
administered its "on-line review" of medical insurance claims. Selby v.
Principal Mutual Life Insurance Co., No. 98 Civ. 5283 (RLC) (S.D.N.Y.,
Sept. 15, 2000).
The Selbys participated in a Principal-sponsored health plan through Adrian
Selby's employer. They submitted medical bills for medical treatments that
Jill Selby received to maintain her pregnancies. Jill Selby's doctor
concluded that she was not infertile, and the treatments were not
infertility treatments which were expressly excluded from the Selbys'
health plan for reimbursement.
Principal denied reimbursement for all of the claims, claiming they were
excluded from coverage. The company denied the claims on the basis that
reimbursement for services related to the restoration of fertility or the
promotion of conception were disallowed under the plan unless required by
state law, and New York had no such requirement. Principal rejected the
arguments made by the Selbys and their doctor that the treatments were
covered as treatments for endocrine dysfunction and cervicitis.
The Selbys reviewed numerous claims that they had submitted to Principal
and discovered that the claims had been denied during an "on-line review"
process. Under this process, a claim was assigned a diagnosis code based on
the illness or condition identified by an insured's doctor.
The Selbys discovered that if a doctor identifies several diagnoses in
connection with a service or procedure, the claims worker conducting the
on-line review nonetheless only assigned a single diagnosis code based on
the first diagnosis listed on the doctor's list. They also discovered that
several of the claims they submitted were altered during the on-line
reviews and then denied.
The Selbys filed a five-count lawsuit in the U.S. District Court for the
Southern District of New York, charging that Principal's claims review and
claims appeal procedures violated ERISA guidelines. They sought class
certification, identifying five separate classes on whose behalf the suit
was brought.
The court denied class certification on several of the counts. But, the
court agreed that the Selbys had sufficiently established the requirements
for class certification for their claim that Principal's on-line review
procedures violated ERISA's prohibition on administration of claims in a
manner which "unduly inhibits or hampers the processing of claims."
The Selbys alleged that the on-line review's policy of disregarding the
diagnoses listed in an insured's claim for benefits when the insured's
doctor identified several diagnoses as a basis for treatment, and, instead,
considering only first listed diagnosis, created an unreasonable barrier to
an insured's ability to access health benefits.
The Selbys defined the class as: all plan participants and beneficiaries in
ERISA covered medical benefit plans insured or administered by Principal
throughout the United States who have been denied benefits for reasons
related to the diagnosis submitted by their physician where a single
diagnosis was input by Principal into its computer system even though the
submitting physician submitted more than one diagnosis as the basis for
payment of the claim.
Principal challenged the proposed class on the basis that the definition
was unworkable because it required the court to inquire into the merits of
the potential class members' claims in order to determine whether they are
members of the class.
The court rejected Principal's objection, concluding that the definition
did not require inquiry into the central issue of liability, but, rather,
allowed the court to identify class members based on fact determinations
discernible from Principal's computer and microfilm files. This could be
done by searching Principal's computers for insureds who had been sent
denial letter, generating a list of the diagnoses that were assigned to
their claims, and comparing the list against Principal's microfilmed files
to identify those whose original claims listed multiple diagnoses.
The court did agree, however that the time frame for identifying the class
had to be limited, and limited it to the period of 1995 to 1997, the time
period during which the Selby's had established that they had been injured
by the on-line review policy.
The court also rejected Prinicpal's assertion that the Selbys lacked
standing to represent the class because they had not suffered the injury
raised on behalf of the potential class members. To the contrary, the court
found that the Selbys' pleadings established that they had indeed suffered
the same injury, since several of their doctors submitted claims with
multiple diagnoses, the claims were altered to list a single diagnosis
during the on-line review, and were then denied.
The court also rejected Principal's assertion that the proposed class did
not satisfy the numerosity requirement for certification because
Principal's own statements, submitted in an affidavit by one of their
information technology analysts, established that the on-line review was
used for all of the claims submitted from 1995 to 1997.
It also found that a common question of law united the class, and that the
common questions predominated over any questions affecting only individual
members.
The court ruled that the class as identified by the Selbys should be
certified and directed the parties to submit paper detailing the type of
notice most suitable for the class. The Selbys are represented by Sheldon
V. Burman of The Law Offices of Sheldon V. Burman in New York and Ellen M.
Doyle of Malakoff Doyle & Fineberg in Pittsburgh. Principal Mutual is
represented by Michael Lesch and Stephen H . Orel of Leboeuf Lamb Greene &
Macrae in New York. (e-Discovery & Procedure, October 2000)
QUINTUS CORP: Barrack, Rodos Announces Securities Suit Filed
------------------------------------------------------------
Barrack, Rodos & Bacine announces that lawsuits alleging violations of the
securities laws have been filed against Quintus Corp. (Nasdaq: QNTS) on
behalf of investors who purchased the Company's stock between November 15,
1999 and November 15, 2000 (the "Class Period").
CONTACT: Barrack, Rodos & Bacine, Maxine S. Goldman, Shareholder Relations
Manager, 800-417-7305 or 215-963-0600, or fax 888-417-7306 or 215-963-0838,
or e-mail, msgoldman@barrack.com.
Contact: Barrack, Rodos & Bacine, Maxine S. Goldman, Shareholder Relations
Manager, 800-417-7305 or 215-963-0600, or fax 888-417-7306 or 215-963-0838,
or e-mail, msgoldman@barrack.com
QUINTUS CORP: Wolf Popper Files Securities Suit in California
-------------------------------------------------------------
Quintus Corporation (Nasdaq: QNTS) and certain of its senior officers have
been charged with violations of the federal securities laws by Wolf Popper
LLP in a class action lawsuit brought on behalf of all persons who
purchased Quintus common stock on the open market during the period July
20, 2000 through November 14, 2000, inclusive, brought in the United States
District Court for the Northern District of California.
The Complaint charges that defendants artificially inflated Quintus's stock
price by improper accounting practices. Quintus has announced that it has
delayed filing with the Securities and Exchange Commission its Form 10-Q
for the quarter ended September 30, 2000, pending completion of the
investigation of revenue and accounts receivable for that period and
earlier periods. The Company also announced that the chief executive
officer of Quintus has been placed on "administrative leave" by the
Company's Board of Directors.
The Complaint alleges that defendants' statements regarding receivables
allegedly collected from an outsourcing company and the Company's financial
results for its first and second quarters ending June 30, 2000 and
September 30, 2000 were materially false and misleading because defendants
knew or recklessly disregarded that revenue and accounts receivable during
these two quarters were improperly accounted for in violation of generally
accepted accounting principles and the Company's accounting policies.
The Complaint alleges that as a result of such improper accounting
practices, the Company will be required to restate the Company's financial
results for these, and possibly other, periods. Wolf Popper has extensive
experience representing shareholders in class actions and has successfully
recovered billions of dollars for defrauded investors and shareholders. The
reputation and expertise of the firm in shareholder and other class action
litigation has been repeatedly recognized by the courts, which have
appointed the firm to major positions in complex multi-district and
consolidated litigations.
Any member of the proposed class who desires to be appointed lead plaintiff
in this action must file a motion with the Court no later than January 15,
Class members must meet certain legal requirements to serve as a lead
plaintiff.
Contact: Patricia I. Avery, Esq., 212-451-9668, Carl L. Stine, Esq.,
212-451-9642 or Douglas Rotela, Investor Relations Representative,
212-451-9625, all of Wolf Popper LLP
QUINTUS CORPORATION: Bernstein Liebhard Files Securities Suit in CA
-------------------------------------------------------------------
A securities class action lawsuit was commenced on behalf of purchasers of
the publicly-traded securities of Quintus Corporation (Nasdaq: QNTS),
between November 15, 1999 and November 15, 2000, inclusive (the "Class
Period"). A copy of the complaint is available from the Court or from
Bernstein Liebhard & Lifshitz, LLP. Please visit the firm's website at
http://www.bernlieb.com.
The case is pending in the United States District Court for the Northern
District of California. Named as defendants in the complaint are Quintus,
Alan Anderson (Chairman and Chief Executive Officer) and Susan Salvesen
(Chief Financial Officer).
The complaint charges defendants with violations of the Securities Exchange
Act of 1934 and Rule 10b-5 promulgated thereunder. The complaint alleges
that the defendants issued materially false and misleading financial
statements that misstated the Company's revenue and under-reported the
Company's losses during the Class Period. As a result, the complaint
alleges, the Company may be forced to restate its previously issued
financial statements for the first and second quarters of the fiscal year
2001 which ended June 30, 2000 and September 30, 2000, respectively.
The dissemination of this materially misleading information caused
Quintus's common stock to be artificially inflated throughout the Class
Period. Indeed, when the Company disclosed that the Audit Committee was
investing possible accounting irregularities, the stock price collapsed
from $6.00 to as low as $ 2-7/8 per share, a loss of over 50% of its value,
before trading was halted by NASDAQ. Plaintiff seeks to recover damages on
behalf of all those who purchased or otherwise acquired Quintus securities
during the Class Period.
Contact: Linda Flood, Director of Shareholder Relations, Bernstein Liebhard
& Lifshitz, LLP, 800-217-1522, 212-779-1414, QNTS@bernlieb.com
QUINTUS CORPORATION: Milberg Weiss Files Securities Suit in California
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Milberg Weiss (http://www.milberg.com/quintus/)today announced that a
class action has been commenced in the United States District Court for the
Northern District of California on behalf of purchasers of Quintus
Corporation (NASDAQ:QNTS) common stock who purchased the stock pursuant to
the Company's initial public offering on November 15, 1999 through and
including November 15, 2000 (the "Class Period").
The complaint charges Quintus and certain of its officers and directors
with violations of the Securities Exchange Act of 1934. The complaint
alleges that during the Class Period, defendants issued a series of false
and misleading financial statements and press releases concerning Quintus's
publicly reported revenue and net income. These materially false and
misleading statements allowed the Company to engage in a number of
acquisitions in which it acquired target companies for Quintus stock. Such
acquisitions would have been impossible without the Company's artificial
inflation of its stock price.
On November 15, 2000, Quintus shocked the investment community when it
announced that it would delay filing its Form 10-Q for the quarter ended
September 30, 2000 pending completion of an "investigation of revenue and
accounts receivable for that period." The Company further stated that
"(a)mong the issues under review is Quintus' statement, on October 17,
2000, that it had collected a receivable from an outsourcing company.
Subsequent to that announcement, it has become unclear whether funds
received by Quintus, apparently in satisfaction of that receivable, were in
fact paid by or on behalf of the outsourcing company." The Company also
announced that it had placed Chief Executive Officer and Chairman of the
Board of Directors Alan Anderson on administrative leave and had hired
PricewaterhouseCoopers LLP to investigate these financial reporting
matters. Upon the announcement of the "bad news," the price of Quintus
stock fell by 50% before NASDAQ halted trading in Quintus stock, requesting
more information.
Contact: Milberg Weiss William Lerach, 800/449-4900 wsl@mwbhl.com
QUINTUS CORPORATION: Schoengold & Sporn Files Securities Suit in CA
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Schoengold & Sporn, P.C. announced today that a lawsuit is being filed in
the United States District Court for the Northern District of California
against Quintus Corporation (Nasdaq: QNTS) and certain of the Company's key
officers and directors on behalf of all purchasers of the common stock of
Quintus during the period November 15, 1999 through and including November
15, 2000. If you purchased Quintus stock during the Time Period, you may
contact the undersigned at (212) 964-0046 (call collect) or by e-mail at
quintuslawsuit@aol.com to obtain more information to determine if you would
like to participate in the lawsuit.
The complaint charges the defendants with violations of the Securities Act
of 1933 and the Securities Exchange Act of 1934, by, among other things,
omitting material information and disseminating materially false and
misleading statements concerning the Company and its financial condition,
contained in public statements, filings with the Securities and Exchange
Commission ("SEC") and press releases. On November 15, 2000, Quintus
shocked the investment community when it announced that Pricewaterhouse
Coopers had been retained to investigate certain financial reporting
matters relating to revenue and accounts receivable and that it would delay
the filing of its Form 10-Q for the quarter ended September 30, 2000.
The complaint alleges that throughout the Time Period, Quintus' financial
statements were materially false and misleading in that they overstated
revenue and net income. Following this announcement, the Company's share
price dropped dramatically before the NASD suspended trading.
Contact: Jay Saltzman or Ashley Kim of Schoengold & Sporn, P.C.,
212-964-0046, Fax - 212-267-8137, or QUINTUSLAWSUIT@AOL.COM
SOTHEBY'S HOLDINGS: Shares Down on Report; Settlement Hearing Postponed
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With revenue of only $42.6 million, Sotheby's Holdings experienced major
losses in the third quarter, a time of minimal auction sales but also the
focus of much of the legal action. The net loss for the third quarter was
$184.2 million, or $3.13 a share, compared with a loss of $23.8 million, or
41 cents a share, in the quarter a year earlier. The pretax special charges
in the most recent quarter totaled $184.8 million. Excluding the charges,
the auction house reported a third-quarter loss of 45 cents a share.
Results for the first nine months of 2000 yesterday represents a
significant loss, attributed largely to the special charges associated with
the Justice Department's antitrust investigation into price-fixing and
pending settlements of class-action and shareholders' lawsuits.
Earnings for the fourth quarter and full year will also be down
significantly, said William Ruprecht, president and chief executive of
Sotheby's Holdings, parent of the auction giant.
The New York Times reports that shares of Sotheby's fell $2.06 on
Wednesday, or 8.5 percent, to $22.25.
A sharp drop in major single-owner sales -- $107 million for the first nine
months of 2000 compared with $239.3 million in 1999 -- added to the losses,
as did disappointing results for Sotheby's Internet initiatives. Internet
losses for the nine months were put at $24.1 million, the New York Times
says. "Clearly sales and revenue growth are below initial expectations,"
Mr. Ruprecht said of the Internet results in a conference call. But he said
the company, which recently merged Sothebys.amazon.com into its
Sothebys.com site, remained committed to Internet commerce.
According to the New York Time, the company, which dominates the worldwide
online and live auction business along with its privately held archrival,
Christie's, put net losses for the year through Sept. 30 at $183.2 million,
or $3.11 a share, compared with a net loss of $1.6 million, or 3 cents a
share, in the period a year earlier. For the first nine months of the year,
Sotheby's recorded pretax special charges of $188.6 million. But even
without the special charges, the company recorded a per-share loss of 39
cents.
Total revenue of $254.7 million for the nine months was essentially flat
compared with figures for the period a year earlier. For the third quarter,
revenue was $42.6 million, down from $45.3 million.
"It is fair to say that the business environment in which we operate
remains challenging," Mr. Ruprecht said.
On the brighter side, he said, were last week's Impressionist and modern
art sales that brought in "a satisfactory $144.4 million," the
third-highest total for a various owners' sale in 10 years.
The special charges are to go toward paying Sotheby's share of a proposed
$512 million civil settlement with more than 100,000 customers of Sotheby's
and Christie's who contend in a federal class-action lawsuit that the
auction houses colluded to raise fees. With Sotheby's former chairman, A.
Alfred Taubman, having agreed to pay $156 million of Sotheby's $256
million, and another $50 million to be in the form of discount coupons,
Sotheby's needs to come up with only $50 million in cash. But it has also
agreed to plead guilty to a criminal antitrust charge and pay a $45 million
fine, spread over five years, and it faces huge legal bills.
Judge Lewis A. Kaplan of the Southern District of New York postponed a
hearing on the final class-action settlement to Feb. 2 from Jan. 8.
Sotheby's and Christie's both face lawsuits from clients in overseas
transactions. But Mr. Ruprecht said yesterday, "We believe it is
inappropriate for U.S. courts to apply to transactions outside the U.S.,
and on Nov. 20 we will file to dismiss." (The New York Times, November 16,
2000)
TAINTED BLOOD: Victims in Canada Seek Fair Share in Compensation Package
------------------------------------------------------------------------
The Canadian Hemophilia Society wants federal party leaders to provide a
fair settlement for all victims of the tainted blood scandal, regardless of
when they were infected.
The CHS says it's been three years since Justice Horace Krever's report was
released and the federal government has failed to address Krever's
recommendation of no-fault compensation for all victims of tainted blood.
"We want to know which party leader is going to support equal compensation
for all individuals infected with hepatitis C and support it when
Parliament reconvenes," John Plater, director of the CHS, said yesterday.
In June 1999, the federal government announced a $ 1.2-billion compensation
package for Canadians who became infected with hepatitis C after receiving
blood from the public blood services system from Jan 1, 1986 to July 1,
1990. Victims will receive $ 10,000 to a maximum of $ 1 million.
Premier Mike Harris announced in May that his government will top up
payments to blood victims who contracted the potentially fatal condition
and were left out of the federal deal.
The CHS says an estimated 5,000 Canadians were infected before 1986 and
after July 1, 1990.
As Canadians prepare to go to the polls Nov. 27, the Canadian Hemophilia
Society is demanding federal party leaders tell voters where they stand on
the issue of all-out compensation.
Mike McCarthy, vice-president of the CHS, said he was infected in 1984 and
hasn't been able to work in his nursing position because of his hepatitis C
condition. "I'm looking for compensation to protect my family. I'm still
trying to have a life," the 42-year-old father of two said.
Toronto lawyer David Harvey, who is leading a class-action suit for people
infected before 1986 and after July 1, 1990, said the Red Cross, through an
insolvency proceeding, has proposed a settlement of $ 63 million. However,
the settlement is still awaiting approval by the class-action judges
overseeing the insolvency proceeding. "The federal government has been
involved in discussions, but they have refused to provide any money towards
this settlement, so class actions will continue," Harvey said. (The Toronto
Sun, November 16, 2000)
THOMSON CONSUMER: IL App Ct Agrees to TV Purchasers' Proof under Act
--------------------------------------------------------------------
Trial court erred in applying clear and convincing' standard of proof to
statutory fraud claim because statute requires proof only by preponderance
of evidence; plaintiffs therefore were prejudiced by application of tougher
standard of proof.
The Illinois Appellate Court, 1st District, 3d Division, has reversed a
ruling by Judge Thomas A. Hett.
Plaintiffs Nancy and Donald Cuculich filed a class action on behalf of
themselves and others who bought televisions that defendant Thomson
Consumer Electronics Inc. had manufactured. The plaintiffs alleged that the
defendant sold televisions under the RCA and GE brand names and that in
August 1991 they purchased a Thomson-manufactured television advertised as
stereo" and labeled as a ColorTrack Stereo Monitor."
The plaintiffs alleged that a key element of stereo reproduction is signal
separation, between the left and right audio channels, and that the
defendant's system lacked the capacity to produce more than 7 decibels of
separation, which is less than half the industry standard of 15 decibels.
The plaintiffs alleged that by placing the stereo" label on its equipment,
the defendant had intentionally or recklessly made false statements about
the capabilities of its televisions to induce members of the class to
purchase them and that they relied on these statements. The plaintiffs also
charged violations of the Consumer Fraud Act on the basis that the
defendant made false representations of material fact about the capability
of its televisions. The lawsuit sought actual and punitive damages.
During a bench trial on the Consumer Fraud Act claim, the plaintiffs did
not contest the defendant's argument or the judge's statement that the
burden of proof under the Consumer Fraud Act is clear and convincing
evidence. The trial judge eventually granted the defendant's motion for
judgment.
On appeal, the plaintiffs argued that the judge applied the wrong legal
standard in considering the defendant's motion for judgment in its favor.
The plaintiffs contended that the standard of clear and convincing was
improper for their claim under the Consumer Fraud Act. They argued that the
statute requires proof only by a preponderance of the evidence and that
they were prejudiced by the application of the higher standard.
The appeals court agreed and reversed. The court said the statute does not
specifically state the standard of proof required to succeed on claims
under the act. And while the parties agreed that a claim for common-law
fraud must be proved by clear and convincing evidence, the plaintiffs
withdrew their common law claim before trial, meaning the only issue was
the standard required for proving a Consumer Fraud Act violation.
The appeals court cited a 1993 decision in a similar case holding that the
Consumer Fraud Act should be liberally construed and that there is an
easier" burden to establish a claim under the statute than under common
law. The 1993 case concluded that it was consistent with the legislative
intent to establish the standard of proof as a preponderance of the
evidence.
The appeals court in this case adopted that reasoning and held that the
trial judge erred in requiring the plaintiffs to present clear and
convincing evidence of a violation to defeat the defendant's motion for
judgment. Although the judge ruled that the plaintiffs' evidence did not
establish a violation of the statute by clear and convincing evidence,
nothing in the record indicated that the judge considered whether the
evidence at least established a violation by a preponderance of the
evidence.
The case was remanded for a new trial.
Nancy and Donald Cuculich v. Thomson Consumer Electronics Inc., No.
1-99-1672. Justice Anne M. Burke wrote the court's opinion with Justices
Robert Cahill and Warren D. Wolfson concurring. (Chicago Daily Law
Bulletin, November 15, 2000)
TOBACCO LITIGATION: Justice Ministry in Israel Angry at Dubek Settlement
------------------------------------------------------------------------
The Justice Ministry on November 15 condemned an out-of- court settlement
between the Dubek tobacco monopoly and lawyers representing 80 smokers in a
class-action suit, which ministry officials learned of only earlier this
week.
Under the agreement, which requires government approval and probably new
legislation, a public compensation fund for victims of Dubek's products and
their families would be established and dispense billions of shekels to
tens of thousands of individuals over the next 20 years.
Government price ceilings on tobacco products would be eliminated, allowing
the company to charge as much as needed to cover the cost of compensation
each year, minimum prices would be set for imported cigarettes, so that
they would continue to cost significantly more than local brands.
Since over 80 percent of the current price of cigarettes is tax, much of
any increase would have otherwise gone to the Finance Ministry. Under the
terms of the settlement, Dubek does not concede any guilt for causing
disease, but declares that it volunteers to funnel the money out of
"humanitarian, humane reasons."
Due to the statute of limitations the Dubek compromise, reached by lawyers
Gidi Frishtik for the plaintiffs and Yehiel Gutman for Dubek, confines
compensation to individuals who contracted disease because of their
addiction during the past seven years.
Frishtik originally represented 15 families whose members, he said,
suffered disease or death due to their smoking Dubek products. Another 65
families joined later.
The State Attorney's Office said, "Dubek is not offering or agreeing to pay
anything from its own pocket. According to the proposed agreement,
compensation will be financed by the public, by raising the price of
cigarettes and from tax money. And Dubek will in effect get immunity
against lawsuits by individuals, health funds, and the state for damages
suffered as a result of smoking.
"Over many years, Dubek committed intentional injustices in the
manufacture, advertising, and marketing of cigarettes. As a result, severe
harm was done to (smokers), while Dubek grabbed the profits. And now a
settlement is proposed in which Dubek, in effect, contributes nothing."
The Justice Ministry said that the draft deal seems to raise major social
and legal problems with implications for state income and expenses, and it
would make a thorough study of the issue, together with the Health Ministry
and the State Attorney's Office.
Under the proposal, a person whose health has been permanently harmed by
Dubek cigarettes would apply to a committee supervised by a Supreme Court
justice. The applicant would have to prove a history of smoking Dubek
products. Frishtik's clients submitted photo albums showing them smoking
from packs with Dubek brand names. The maximum compensation per case would
be NIS 600,000, while the minimum would be NIS 225,000. Since 90 percent of
lung cancers are caused by smoking, sufferers would be eligible for high
levels of compensation. Those with conditions which may have a number of
causes would receive considerably less. Anyone who smokes after the
agreement goes into effect and then gets sick would be eligible for only
reduced compensation, so as not to give smokers the feeling they can
indulge themselves and be rewarded later.
Clalit Health Services, which has filed the country's largest single
lawsuit against Dubek, local tobacco importers, and foreign manufacturers
(NIS 7.6 billion), said yesterday that it opposes the proposed arrangement,
about which it was not consulted, and will continue to fight in the courts
for compensation from cigarette companies for the costs of treating members
made ill by tobacco. It added that the agreement omits much-needed
restrictions on tobacco additives, addiction, advertising, and sales to
children and teenagers, which were important considerations in its suit.
Dubek lawyer Gutman said that other potential settlements would have
bankrupted the company, which he said was valued at $ 40 million. "It is a
publicly traded company, and its profits are limited by price controls...
This deal is more humane than the US agreement, in which only health
providers got compensation."
Frishtik said the proposed agreement is a pioneering step which had aroused
interest in other countries involved in similar lawsuits.
"It's not perfect, but I had to decide what is best for my clients," he
said. "I would hope it would take only months before implementation, but it
may well require several years." (The Jerusalem Post, November 16, 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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