/raid1/www/Hosts/bankrupt/CAR_Public/010410.MBX               C L A S S   A C T I O N   R E P O R T E R

               Tuesday, April 10, 2001, Vol. 3, No. 70


AHM CGH: Class Certification Granted In Title III Accessibility Case
BLOCKBUSTER INC: CA Ct Certifies Class of Store Managers Seeking OT Pay
BLOCKBUSTER INC: Contests Customers’ Suits Re Penalties in State Courts
BRUSH WELLMAN: 23 Asbestos Lawsuits Pending v. Egbert Subsidiary
BRUSH WELLMAN: Workers File Claims over Chronic Beryllium Disease (CBD)

DOW CORNING: Is a Nondebtor Parent Entitled to Injunction under Ch 11
ECHOCATH INC: 3d Cir. Reverses Medical Device Makers' Securities Action
GARRETT: Sp Ct Finds Trial Judge Abuses Discretion over Usury Claims
GREEN TREE: 11th Cir Holds Provision to Arbitrate TILA Enforceable
INDIANA A.G: Sued for Filing Complaints v. Nursing Home Administrators

MBNA AMERICA: Failure To Opt Out Subjects Cardholder To Arbitration
NAPSTER: Back in Court over Compliance with Order to Halt Swapping
NIGERIAN UNIVERSAL: African Ct Will Hear Investors' Complaint Vs. Bank
PENSION BENEFIT: About 85,000 Former Pan Am Employees Join Class Action
RICHARD CROSFIELD: Suit Accuses of Bilking Low-Income Minority Consumers

STRIP SEARCHES: Fd Judge Denies NY Nassau County Plaintiffs Class Status
TICKET RESALE: Injunction Protects Fans Who Resell Tickets at Face Value
TRI VALLEY: CA Suit Accuses Insurance Broker Of Unfair Practices
TWA: PA Ap Ct Halts Sale to AMR upon Israeli Workers' Protest over Jobs
VOTING: Disabled Point To Problems At The Polls; Advocates Seek Change


AHM CGH: Class Certification Granted In Title III Accessibility Case
A federal District Court in Florida granted class certification in a case
arising under Title III of the ADA. The case involved claims that medical
facilities throughout the country failed to comply with the ADA's
accessibility requirements. Access Now Inc. v. AHM CGH Inc., 20 NDLR 51
(S.D. Fla. 2000) (No. 983004CIV).

Plaintiffs with disabilities alleged that affiliated acute care
hospitals, ambulatory surgical centers, specialty clinics and medical
office buildings throughout the country violated Title III of the ADA by
failing to remove structural and communication barriers to access. The
plaintiffs filed an amended motion for class certification, seeking
injunctive relief that would require the defendant medical facilities to
comply with the ADA's accessibility requirements. The proposed class
would consist of all individuals with disabilities within the United
States, as that term is defined under the ADA.

Plaintiffs sought injunctive relief . . . First, the court found that it
was administratively feasible to determine whether an individual was a
member of the plaintiff class.

Next, the court determined that the numerosity requirement for class
certification was satisfied since joinder of the class members was
impracticable. The plaintiffs also satisfied the commonality and
typicality requirements for class certification since each individual
class member would raise the same claims against the same defendants and
seek the same remedy. Further, the court found that the class
representatives would fairly and adequately protect the interests of
absent class members.

Thus, the plaintiffs satisfied the requirements for class certification
pursuant to Fed. R. Civ. P. 23(a). Because the putative class sought
injunctive relief exclusively, the court found that the plaintiffs also
satisfied the requirements for class certification pursuant to Fed. R.
Civ. P. 23(b). Therefore, the court granted the plaintiffs' amended
motion for class certification. (Disability Compliance Bulletin, April
06, 2001)

BLOCKBUSTER INC: CA Ct Certifies Class of Store Managers Seeking OT Pay
On May 7, 1999, Lynn Adams, Khristine Schoggins, and Debbie Lenke,
purporting to act as class representatives on behalf of themselves and
for a class comprised of certain Blockbuster store managers who worked in
California, filed a complaint in District Court in Orange County,
California against Blockbuster. The plaintiffs claim that they should be
classified as non-exempt and are thus owed overtime payments under
California law. The dollar amount that plaintiffs seek as damages to
themselves and those similarly situated is not set forth in the

In January 2001, the trial court judge certified a class. In February
2001, the California Court of Appeals denied Blockbuster's petition for a
writ of mandate. Blockbuster's petition for review is pending before the
Supreme Court of California. Blockbuster believes the plaintiffs'
position is without merit and intends to vigorously defend itself in the

BLOCKBUSTER INC: Contests Customers’ Suits Re Penalties in State Courts
Blockbuster is a defendant in 13 putative class action lawsuits filed by
customers in state courts in Illinois, California, Ohio, Maryland, Texas
and New York between February 1999 and March 2001. These cases allege
common law and statutory claims for fraud and/or deceptive practices
and/or unlawful business practices regarding Blockbuster's policies for
customers who choose to keep rental product beyond the initial rental
term. Some of the cases also allege that these policies impose unlawful
penalties and/or result in unjust enrichment. The dollar amounts that
plaintiffs seek as damages to themselves and those similarly situated are
not set forth in the complaints. Blockbuster believes the plaintiffs'
positions in these suits are without merit and intends to vigorously
defend itself in the litigation.

BRUSH WELLMAN: 23 Asbestos Lawsuits Pending v. Egbert Subsidiary
Brush Wellman's Egbert subsidiary has been named as a defendant in a
number of lawsuits alleging asbestos-induced illness, arising out of the
conduct of a friction materials business whose operating assets Egbert
sold in 1986. In each of the pending cases, Egbert is one of a large
number of defendants named in the respective complaints.

Egbert is a party to an agreement with the predecessor owner of its
operating assets, Pneumo Abex Corporation (formerly Abex Corporation),
and five insurers, regarding the handling of these cases. Under the
agreement, the insurers share some expenses of defense, and Egbert,
Pneumo Abex Corporation and the insurers share payment of settlements
and/or judgments. In each of the pending cases, both expenses of defense
and payment of settlements and/or judgments are subject to a limited,
separate reimbursement agreement under which a successor owner of the
business is obligated. A number of cases of this type have been disposed
of to date, some by voluntary dismissal, others by summary judgment, one
by jury verdict of no liability, and still others upon payment of nominal
amounts in settlement. There are at present 23 asbestos cases pending.

BRUSH WELLMAN: Workers File Claims over Chronic Beryllium Disease (CBD)
There are claims pending in various state and federal courts against
Brush Wellman, one of the subsidiaries of Brush Engineered Materials Inc.
by its employees, former employees or surviving spouses and third party
individuals alleging that they contracted, or have been placed at risk of
contracting, chronic beryllium disease ("CBD") or related ailments as a
result of exposure to beryllium. Plaintiffs in CBD cases seek recovery
under theories of intentional tort and various other legal theories and
seek compensatory and punitive damages, in many cases of an unspecified
sum. Spouses, if any, claim loss of consortium.

During 2000, the number of CBD cases grew from 37 (involving 119
plaintiffs), as of December 31, 1999, to 71 cases (involving 192
plaintiffs), as of December 31, 2000. During 2000, an aggregate of two
cases involving five plaintiffs were settled; however, the Company is
awaiting final court dismissal on one of those cases. One case involving
two plaintiffs was voluntarily dismissed by the plaintiffs. The courts
granted favorable summary judgments in two cases, which have been
appealed by the plaintiffs. One purported class action involving four
named plaintiffs was dismissed; the time for filing an appeal has passed.
No other cases were dismissed in 2000.

The 71 pending CBD cases fall into three categories: 38 "employee cases"
involving an aggregate of 38 Brush Wellman employees, former employees or
surviving spouses (in 23 of these cases, a spouse has also filed claims
as part of his or her spouse's case); 30 cases involving third party
individual plaintiffs, with 65 individuals (and 44 spouses who have filed
claims as part of their spouse's case, and six children who have filed
claims as part of their parent's case); and three purported class
actions, involving 14 individuals (and two spouses who have filed claims
as part of their spouse's case), as discussed more fully below. Employee
cases, in which plaintiffs have a high burden of proof, have historically
involved relatively small losses to the Company. Third party plaintiffs
(typically employees of customers) face a lower burden of proof than do
employees or former employees, but these cases are generally covered by
insurance, at least partially.

In the three purported class actions that are pending against Brush
Wellman, the named plaintiffs allege that past exposure to beryllium has
increased their risk of contracting CBD, though most of them do not claim
to have actually contracted it. They seek medical monitoring funds to be
used to detect medical problems that they believe may develop as a result
of their exposure and, in some cases, also seek compensatory and punitive

One of the three purported class actions pending against Brush Wellman
was brought by named plaintiffs on behalf of tradesmen who worked in one
of Brush Wellman's facilities as employees of independent contractors.
The two others were brought on behalf of current and former employees of
Brush Wellman's present and former customers and vendors.

A fourth purported class action, brought against Brush Wellman by named
plaintiffs on behalf of current and former employees of Brush Wellman's
present and former customers, was dismissed during the third quarter.
That dismissal became final during the fourth quarter. The allegations
made and the relief sought by the named plaintiffs in that case were
similar to the allegations made and the relief sought in the purported
class actions that are still pending.

From January 1, 2001 to March 28, 2001, four additional CBD claims were
served on Brush Wellman. Three claims are employee cases, and the other
claim is a third party case. In all of these cases, the plaintiffs
generally assert the same types of claims and seek the same damages under
the same theories as discussed above for the year ended December 31,

DOW CORNING: Is a Nondebtor Parent Entitled to Injunction under Ch 11
This question is on appeal in the Chapter 11s of Dow Corning and of A.G.
Financial, a case we profiled in the March 13 issue of BCD.

We wondered what you thought - so we asked attorneys who have dealt with
this issue in mass tort cases. Here's what they said:

  -- Neal Batson of Alston & Bird in Atlanta:

"This whole area of future claims is a very gray area and it really
depends to an extent on your court and your circuit. The 4th Circuit
approved it in the A.H. Robins plan. But a well-known bankruptcy jurist
on the 7th Circuit said the bankruptcy court did not have the
jurisdiction to deal with those third-party claims that might arise in
the future. The 2nd Circuit has approved them, but the 9th Circuit is
more difficult to deal with.

"There's a quid pro quo for getting the release. My clients put in 10
million. They got releases. Usually you get a combination of releases and
injunctions rather than one standing alone."

  -- Boe W. Martin of Bell, Nunnally & Martin LLP in Dallas:

"Dow Corning got an injunction that barred claims against the debtor, Dow
Corning, and the parent, Dow Chemical, a nonbankruptcy shareholder. The
bankruptcy court said that injunction was only good for those claimants
who affirmatively voted for the plan. Those who didn't vote at all or who
voted against it are not bound. It's on appeal now to District Court
Judge Hood. It will probably go to the 6th Circuit.

"You can argue that if you voted for the plan, you consented to the
injunction. Some courts make you put a block on the ballot as to the
injunction: I consent or I reject. You can vote for the plan, but not be
bound by the injunction. That happened in the National Gypsum case.

"You can provide that unless you get x amount of votes for this plan with
this injunction, you can withdraw the plan.

"[But a] lot of courts believe you can't enter those injunctions. You're
trying to impose a settlement on people and they haven't agreed to it.
That's the issue there. In the 5th Circuit, it would be a big problem.
Other courts see it differently. It's a tough issue."

  -- Michael St. Patrick Baxter of Covington & Burling in Washinton:

Baxter knows a lot about this question having moderated an American Bar
Association panel last spring on a very similar question: "Do bankruptcy
courts have the power to issue third-party injunctions in Chapter 11?"

"A lot of people think bankruptcy courts have no jurisdiction to issue
third-party injunctions. Their view is that the code only authorizes
actions against debtors. Professor Ralph Brubaker at Emory University
School of Law holds that position. He has published one or two leading
articles on this subject. On the other hand, you will find practitioners
who think it's absolutely essential. [Judge] Barbara Houser [who served
as lead bankruptcy counsel to Dow Corning prior to her appointment to the
bench] was on my program. She said you're never going to be able to
resolve a mass tort case unless you can enjoin the world.

"There are also courts in the middle who say, 'If you want a third-party
injunction, you will have to give substantial consideration that benefits
the people you're going to be enjoining. You can't get it as a matter of

Baxter believes the practice of obtaining third-party injunctions is
starting to get more standardized across the country. He thinks the
"middle view" - that you can obtain such injunctions under certain
circumstances - will win out.

In the bankruptcy of the law firm Laventhol & Horwath, Baxter said the
court issued an injunction "that barred the world from suing the
partners." At the time, Baxter said several courts said the only way they
would have issued that kind of injunction was pursuant to adversary
proceedings and not in the context of a plan.

"It's a case-by-case approach where value is being paid by those people
getting the value of the injunction," he said. "In Manville, you had
future claimants who were not yet identifiable. If you're going to enjoin
them from bringing actions against the debtors and nondebtors, you have
to set up a trust that's going to pay something to these future
claimants. It seems inequitable to say we're barring all these people who
may never have had notice of what's going on."

  -- Robin Phelan of Haynes & Boone in Dallas:

"There are reasonable arguments on both sides. Giving a nondebtor a
discharge is what it boils down to. The other side is that the bankruptcy
court has fairly broad jurisdiction to do what's required under the
circumstances and if [someone is putting in money in order to make the
plan work] then you need to have those kinds of powers. But I have
trouble seeing it go that far. I don't see anything in the code saying
you can abrogate third-party or tort relationships."

  -- Charles M. Tatelbaum of Cummings & Lockwood in Naples, Fla.:

"Legally, I think the court can do it," Tatelbaum said. "It's a question
of whether the nondebtor parties are providing adequate consideration to
be entitled to the release. All Section 524(g) says is that if you are
going to [allow such injunctions] in asbestos cases, this is how it must
be done. In Johns-Manville, they did not have 524(g), but there were
third-party releases/injunctions/channeling orders and the 2nd Circuit
upheld it based upon the courts' inherent power to do so. Just because
524(g) is limited to asbestos cases, it does not mean you can't use the
common law on other cases."

  -- UCLA Law School Professor Ken Klee of Klee, Tuchin, Bogdanoff &
Stern in Los Angeles:

"I think most bankruptcy courts will grant broad relief to make cases
work and it's up to the Courts of Appeal to tell them if they've gone too
far. It's just human nature. ... You really have to look at the fact

There are a number of questions Klee said should be asked in granting an

Is there a prepetition legal relationship? If there isn't, there can't be
a discharge, he said.

If the debtor has done something prepetition that has the potential to
harm people, to what extent do the people who can be harmed have to have
knowledge of that before they can be discharged? For example, in asbestos
cases, do I have to have manifested some form of the disease or is it
sufficient to know I went to an elementary school where I think the
ceiling tiles had asbestos in them?

Who's going to pay for this?

However, Klee noted that Section 708 of the pending bankruptcy
legislation would make certain types of claims, such as fraud claims,
nondischargeable. (At least that's what the legislation said at the time
Klee spoke to BCD.) So in a large class action suit involving allegations
of fraud, the debtor could be prevented from rehabilitating.

Said Klee: "What about the jobs? What about the tort victims? There are
difficult decisions for Congress to make, yet most people in Congress
don't have any clue these issues even exist." (BCD News and Comment,
April 04, 2001)

ECHOCATH INC: 3d Cir. Reverses Medical Device Makers' Securities Action
The U.S. Court of Appeals for the Third Circuit has reversed a district
court order that dismissed a medical device manufacturer's securities
action against another manufacturer. The two manufacturers were engaged
in a $1.4 million investment agreement. EP MedSystems Inc. v. EchoCath
Inc., No. 98-6461 (3d Cir., Dec. 26, 2000).

EchoCath is a small research and development company engaged in
developing, manufacturing and marketing medical devices to enhance and
expand the use of ultrasound technology for medical applications and
procedures. Among their products are ColorMark, which highlights metallic
objects such as needles and other interventional instruments in color to
permit them to be seen on existing ultrasound imaging screens, and
EchoMark, which electronically marks and displays the position of
non-metallic objects such as catheters within the body. EchoCath's
products enable physicians to perform procedures such as needle biopsies,
catheterizations and intravascular imaging more safely and efficiently.

On Jan. 17, 1996, EchoCath issued a lengthy prospectus that included
details of the company's technologies, future plans, capitalization,
collaborative agreements and selected financial data. The prospectus also
included the caution that the company "intend ed to pursue licensing,
joint development and other collaborative arrangements with other
strategic partners   but t here can be no assurance   that the company
will be able to successfully reach agreements with any strategic
partners, or that other strategic partners will ever devote sufficient
resources to the Company's technologies."

After the public offering, EP MedSystems Inc. began consideration of a
sizable investment in EchoCath. MedSystems is itself a small company
involved in the development, marketing and sales of cardiac
electrophysiology products used to diagnose and treat certain cardiac
disorders. In August 1996, the chief executive officers of the two
companies met at EchoCath's plant, where MedSystems management toured
EchoCath's facilities to evaluate the technology under development.

According to the complaint, the CEO of EchoCath enticed MedSystems into
investing $1.4 million in EchoCath by assuring MedSystems that lengthy
negotiations had already taken place with four prominent companies to
market certain new EchoCath products and that contracts with these
companies were "imminent."

In the 15 months after MedSystems made its investment, EchoCath failed to
enter into a single contract or to receive any income in connection with
the marketing and development of the products. It also did not receive
the expected payments from license fees. In September 1997, EchoCath
advised MedSystems that EchoCath would run out of operating funds in 90
days if new investment in the company was not forthcoming.

MedSystems filed suit in U.S. District Court for the District of New
Jersey, alleging that EchoCath intentionally or recklessly made
misrepresentations to MedSystems in connection with the sale of
securities in an effort to induce MedSystems to purchase its securities,
in violation of Section 10 of the Securities Exchange Act of 1934, 15
U.S.C. @ 78j, and Rule 10b-5. MedSystems also alleged a supplemental
state-law fraud claim. MedSystems alleged that EchoCath was not on the
verge of signing contracts with any company to develop its line of
products in August of 1996, or any other time. MedSystems also alleged
that EchoCath knew when it drew up the operating model that it was highly
unlikely the company would meet the performance requirements on which the
milestone payments were contingent. It further alleged that EchoCath made
this misleading projection in an effort to conceal EchoCath's true
financial condition and to induce MedSystems to invest in the company.
EchoCath moved to dismiss the complaint

The district court concluded as an initial matter that it was appropriate
to examine the documents submitted by EchoCath without transforming the
motion to dismiss into a motion for summary judgment, as they were relied
upon by MedSystems in its complaint.

The district court then dismissed the complaint with prejudice. The court
concluded that the representations were immaterial as a matter of law
under the "bespeaks caution" doctrine because of the cautionary language
accompanying these alleged misrepresentations. The court found that
MedSystems could not have reasonably relied on EchoCath's optimistic
financial projections.

MedSystems filed an appeal of the dismissal with prejudice of its
securities action in the U.S. Court of Appeals for the Third Circuit. The
circuit court said, "The District Court, in its scholarly opinion leading
to its conclusion to dismiss MedSystems' complaint in its entirety as a
matter of law, applied the law of the circuit as to some of the
requirements of a securities action too restrictively. While Congress and
some judicial decisions have tended to cabin the large securities class
actions that may have been filed without adequate basis, some of the
District Court's conclusions do not withstand our analysis. We are
informed by more recent precedent of this court that was not available to
the District Court. Moreover, the District Court failed to recognize that
this complaint by MedSystems does not fall into the pattern of the usual
securities action and that application of certain legal requirements must
be adjusted to fit the particular action."

The circuit court concluded that MedSystems' central allegation, that
EchoCath's CEO gave MedSystems' executives assurances that, after lengthy
negotiations, contracts with four identified companies were "imminent"
and provided sales projections that were an integral part of these
assurances, should not have been dismissed. Conversely, the circuit court
stated that the district court did not err in dismissing the allegations
as to certain other expected income and anticipated sufficiency of funds
because there was qualifying language that should have put a reasonable
investor on notice of the risk.

The court reversed the dismissal of the complaint, and also direct
reinstatement of the state fraud count.

EP MedSystems was represented by John J. Murphy III of Stradley, Ronon,
Stevens & Young in Cherry Hill, N.J.

EchoCath was represented by Richard G. Primoff of Rubin, Baum, Levin,
Constant & Friedman in New York. (Breast Implant Litigation Reporter,
January 22, 2001)

GARRETT: Sp Ct Finds Trial Judge Abuses Discretion over Usury Claims
The Arkansas Supreme Court ruled a trial court, addressing the procedural
issues of class certification, abused its discretion when it issued a
finding of fact on the underlying claims of usury. (Advance America, Cash
Advance Centers of Arkansas Inc. v. Garrett, No. 00-1287 (Ark. 3/8/01).)

Advance America, Cash Advance Centers of Arkansas Inc. is engaged in the
check cashing business. Phyllis Garrett received cash advances from
Advance America on various occasions including one for 150 against a
personal check for 195. Garrett had trouble paying off the cash advance,
and Advance America extended the deadline several times. Garrett incurred
additional fees of 45 for each extension. On each of the loans Garrett
signed documents related to the transaction, and on one occasions she
signed an agreement to resolve all disputes with the company in binding
arbitration pursuant to the Federal Arbitration Act.

Garrett sued Advance America for usury in Clark County Circuit Court. She
alleged she paid Advance America over 300 in fees for loans without
reducing the underlying cash advance. She claimed the cash advances were
actually loans with annual percentage rates of between 300 and 720
percent. She alleged one transaction had an effective interest rate of
2,920 percent. On April 20, 2000, Garret moved for class certification.
The trial court granted the request for class certification and denied a
motion by Advance America to compel arbitration.

Judge John Thomas concluded Advance America's cash advance transactions
were usurious on their face, void ab initio, and unenforceable. The trial
court ruled the transactions were loans and the fees charged were deemed
interest. It considered the contract signed by Garrett to be an adhesion
contract and concluded the activity of Advance America violated the
Arkansas Constitution, which sets maximum rates on interest.

                          Finality principles

Advance America appealed to the Arkansas Supreme Court arguing the trial
court erred when it addressed the underlying claims of usury when
considering the procedural questions of granting class certification. The
Supreme Court stated Judge Thomas "improperly delved into the merits of
Garrett's underlying usury claim and the validity of Advance America's
defenses." It contended Judge Thomas went beyond determining whether
Garrett satisfied class action elements and "implicitly and prematurely
rejected [Advance America's] argument that the Arkansas Check-cashers Act
applied to the disputed transactions and expressly authorized collection
of the challenged fees." The Supreme Court held "finality principles do
not apply to class-certification rulings" and remanded the case with
instructions for the trial court to resolve the strict procedural
questions of the appropriateness of class certification. (Consumer
Financial Services Law Report, April 02, 2001)

GREEN TREE: 11th Cir Holds Provision to Arbitrate TILA Enforceable
The 11th U.S. Circuit Court of Appeals, in a case on remand from the U.S.
Supreme Court, held that a contractual provision to arbitrate Truth in
Lending Act claims is enforceable even if it precludes a plaintiff from
utilizing class action procedures to vindicate statutory rights under the
TILA. Congress did not intend to create a non-waivable right to file a
TILA class action, the court ruled. (Randolph v. Green Tree Financial
Corp., No. 98-6055 (11th Cir. 3/13/01).)

Larketta Randolph financed the purchase of a mobile home through Green
Tree Financial Corp., a subsidiary of Conseco Inc. in 1994. Randolph
claimed the lender failed to disclose a 15 vendor's single interest
insurance premium and sued Green in 1996 under the TILA and the Equal
Credit Opportunities Act. Randolph's contract contained a mandatory
arbitration clause and Greentree moved to compel arbitration.

The U.S. District Court, Middle District of Alabama compelled
arbitration. The 11th Circuit reversed the District Court. It held the
arbitration clause did not list possible costs, and therefore interfered
with the consumer's ability to exercise her statutory rights under the

Green Tree appealed to the Supreme Court. The Court in Randolph v. Green
Tree Financial Corp., No. 99-1235 (U.S. 12/11/00) (see Consumer Financial
Services Law Report, Dec. 22, 2000, p.1), reversed the 11th Circuit,
refusing to invalidate the arbitration provision for its failure to
disclose the potential costs of arbitration. The Court explained the
invalidation would undermine the "liberal federal policy favoring
arbitration agreements." However, the Court did note that high
arbitration fees could preclude a consumer from vindicating her statutory
rights, but the party contesting arbitration bore the burden of proving
the costs were prohibitive. The Supreme Court remanded the case back to
the 11th Circuit.

                          Classwide arbitration

On remand, Randolph argued she should be allowed to proceed with
classwide arbitration because the language of the arbitration agreement
did not foreclose it. Randolph argued since the arbitration agreement was
silent on classwide arbitration, silence equated permission. However, the
court noted in the first appeal Randolph assured the court "no provision
in the Green Tree contract [existed] for a class or a consolidation of
actions." The court concluded Randolph must proceed with her original
argument and held that no classwide relief was available to her in the
arbitration proceeding.

                                Bowen decision

Randolph next argued the arbitration agreement was unenforceable because
it did not permit classwide arbitration. The 11th Circuit reviewed its
decision in Bowen v. First Family Financial Services Inc., 233 F.3d 1331
(11th Cir. 2000), where it observed that a class action is "an available,
important means of remedying violations of the TILA. However, there
exists a difference between the availability of class action tool, and
possessing a blanket right to that tool under any circumstances."

In Bowen, the court examined the legislative history of the TILA. It
noted while "Congress thought class actions were a significant means of
achieving compliance with the TILA, it [did] not indicate that Congress
intended to confer upon individuals a non-waivable right, to pursue a
class action nor does it even address the issue of arbitration."

The 11th Circuit, relying on Bowen, concluded Randolph failed to meet
"her burden of showing either that Congress intended to create a
non-waivable right to bring TILA claims in the form of a class action, or
that arbitration is 'inherently inconsistent' with the TILA enforcement
scheme." The court observed that many of Randolph's arguments were merely
restatements of those considered in Bowen.

The 11th Circuit noted the Supreme Court found it gave too little weight
to the Federal Arbitration Act's pro-arbitration policy and vowed not to
repeat that mistake. In affirming the District Court, the 11th Circuit
held "that a contractual provision to arbitrate TILA claims is
enforceable even if it precludes a plaintiff from utilizing class action
procedures in vindicating statutory rights under TILA." (Consumer
Financial Services Law Report, April 02, 2001)

INDIANA A.G: Sued for Filing Complaints v. Nursing Home Administrators
Two nursing home administrators, joined by the Indiana Health Care
Association, have filed a proposed class-action lawsuit alleging that
former Indiana Attorney General Karen Freeman-Wilson violated federal and
state law in filing complaints against them and 82 other administrators.

The suit alleges that the attorney general, faced with re-election and a
media investigation, lodged the complaints without first investigating
the merits of the charges. Trumbauer et al. v. Freeman-Wilson et al., No.
IP00-1975-C, removal order issued (S.D. Ind., Dec. 27, 2000). The
attorney general "repeatedly ignored basic, fundamental rights we all
enjoy as she tried to keep her job," Art Logsdon, president of the IHCA,
said in a press release. Freeman-Wilson was "politically motivated" to
expedite the filing of the actions because she was running for
re-election, explained J. Michael Grubbs of Barnes & Thornburg in
Indianapolis, the attorney representing the named plaintiffs in case.

The first set of charges, he said, were filed on the heels of an expose
published by the Indianapolis Star based on an extensive backlog of
complaints of substandard nursing home care. Freeman-Wilson lost her bid
in the November election to Republican Steve Carter. IHCA, an affiliate
of the industry's national organization, the American Health Care
Association, is a nonprofit corporation whose members include licensed
nursing homes in Indiana. The suit, originally filed in state court on
Dec. 5, was subsequently removed to federal court pursuant to a petition
filed by the attorney general's office.

The plaintiffs, Grubbs said, have decided not to seek a remand to state

According to the complaint, Freeman-Wilson filed administrative actions
against 84 nursing home administrators to suspend or revoke their health
facility administrator licenses without first following proper
procedures. Each of the administrators worked for a facility that the
Indiana State Department of Health found to be providing substandard
quality of care.

Medicaid regulations provide that inspection reports are to be turned
over to the Indiana Board of Health Facility Administrators within 10
days so that the board can independently investigate whether the
administrator violated the Standards of Competent Practice, 840 Ind. Code
Ann. @ 2-1 et seq. , for administrators. The board, in turn, is to send
any complaints to the attorney general's Consumer Protection Division for
further investigation. After an investigation, the director of the
Consumer Protection Division reports the matter to the attorney general
if a sanction is warranted. The attorney general can then opt to
prosecute the licensee but only after a majority vote by the board.

The complaint alleges that more than 130 of these complaints of
substandard care were sent to the board by the health department in 1998
and 1999. The board, however, allegedly failed to do anything with them
until the Indianapolis Star started looking into the two-year backlog. On
June 12, 2000, one day after the Star published an article titled "State
Vows to Remedy Backlog of Complaints on Nursing Home Care,"
Freeman-Wilson filed administrative complaints with the board against 14
administrators. The next day, complaints were filed against 54
administrators. Another 16 complaints were filed 10 days before the
election. The plaintiffs allege that the complaints were filed "without
any investigation whatsoever."

In addition to Freeman-Wilson, the complaint names the director of the
Consumer Protection Division, Gregory Thomas, for allegedly failing to
investigate the complaints received by the board to determine whether the
administrators should be subject to disciplinary actions.

The suit seeks "prospective relief only," Grubbs said. The complaint asks
the court to enter a declaratory judgment finding that defendants failed
to follow Medicaid regulations, 42 C.F.R. @ 431.700-.715, and Ind. Code @
25-1-7-7 and misrepresented that they have the authority to recommend
sanctions without first following proper procedure. The complaint also
seeks to permanently enjoin the defendants from asserting that the board
has jurisdiction over the pending charges. The defendants should be
barred from filing future charges without first conducting an
investigation, the complaint says, and a declaratory judgment should be
entered stating that the plaintiffs' were charged without due process of
law in violation of 42 U.S.C. @ 1983. "These cases should be thrown out
by the licensing Board and refiled only in those very few cases where an
appropriate investigation may find that an administrator committed a
knowing violation of the standards of competent practice," Logsdon said.
(Nursing Home Litigation Reporter, January 26, 2001)

MBNA AMERICA: Failure To Opt Out Subjects Cardholder To Arbitration
The U.S. District Court, District of Delaware granted a bank's request
for binding arbitration against a consumer alleging violations of the
Truth in Lending Act, finding that the credit cardholder agreed to
arbitrate all claims when he did not "opt out" of the agreement. (Lloyd
v. MBNA America Bank, No. Civ.A. 00-109-SLR (D. Del. 2/22/01).)

Jason Lloyd held a credit card issued by MBNA America Bank. Lloyd claimed
MBNA failed to credit his account on the day his payment was received. He
claimed MBNA created an artificial cutoff time for receiving payments
that caused his payment to be improperly credited the following business
day and caused additional finance charges to be posted to his account.

                   Amended Cardholder Agreement

In December 1999, MBNA amended its cardholder agreement, informing
cardholders that it was adding an arbitration provision. Cardholders were
notified that if they wished to opt out of the arbitration provision they
had to respond in writing by Jan. 25, 2000. A failure to notify MBNA
constituted acceptance and the section took effect at the time of their
next statement. Lloyd never responded to the request and the arbitration
provision went into effect on his February 2000 statement.

Lloyd and a putative class of MBNA cardholders sued MBNA on Feb. 22,
2000, in the U.S. District Court, District of Delaware. Lloyd claimed
MBNA's payment processing practices violated the TILA and amounted to
consumer fraud and breach of contract. MBNA moved to either dismiss
Lloyd's complaint or compel arbitration pursuant to the Federal
Arbitration Act.

                       Arbitration Provision

Lloyd raised several arguments to support his position. Lloyd contended
that the arbitration section was unenforceable because discouraging class
actions conflicted with the TILA. The court noted, however, that the 3rd
Circuit, in Johnson v. West Suburban Bank, 225 F.3d 366 (3rd Cir. 2000),
concluded there was no congressional intent to prevent arbitration under
the TILA. It held arbitration could proceed against a plaintiff
representing multiple claimants even though the arbitration would make
the class action claims unavailable. The District Court followed this

Lloyd argued the cost allocation and the choice of forum clauses of the
arbitration provision did not ensure the vindication of a plaintiff's
rights under the TILA and made the provision unenforceable. The court
stated that case law placed the burden on the consumer to prove that
arbitration was not suitable. MBNA's arbitration section provided that
the arbitrator would decide who paid the arbitration fee. It also capped
fees to those imposed by a state court with jurisdiction. MBNA also
agreed to advance the arbitration costs upon the request of the
cardholder. In addition, the District Court noted the choice of forum
clause required the arbitration to take place in the federal judicial
district that served the consumer's zip code.

The District Court ruled Lloyd failed to offer evidence that the cost
allocation or the choice of forum clauses in the arbitration provision
were prohibitive in a way to make it unenforceable.

Lloyd next contended the arbitration provision did not cover claims
arising before Feb. 1, 2000, and because his claim precluded that date,
the arbitration clause did not control his claims. The court, however,
did not agree, noting that the opt-out provision of the agreement covered
"all claims now in existence or that may arise in the future."

The District Court dismissed the case in favor of binding arbitration.
The court did not retain jurisdiction pending completion of the
arbitration on the consumer fraud and breach of contract claims, because
they were covered by the arbitration agreement.

John Spadaro and Jonathan Parshall of Murphy, Spadaro & Landon in
Wilmington, Del., and Brian Strange and Gretchen Carpenter of Strange &
Hoey in Los Angeles represented Lloyd. Kathleen Jennings of Oberly &
Jennings in Wilmington, Del., and Richard Pepperman, Sharon Nelles and
Elizabeth Martin of Sullivan & Cromwell in New York represented MBNA.
(Consumer Financial Services Law Report, April 02, 2001)

NAPSTER: Back in Court over Compliance with Order to Halt Swapping
Napster and its recording industry foes return before a federal judge
Tuesday in a hearing on whether the music website is complying with an
order to halt swapping of copyrighted songs.

The Recording Industry Association of America (RIAA), a record company
trade group, has accused Napster of flouting a March 5 order by US
District Court Judge Marilyn Hall Patel, commanding the site to cull
copyrighted music from the site.

The judge had previously ruled that the site was letting its users engage
in wholesale copyright infringement and her order prompted Napster to
install "filtering" software to block out restricted songs.

"Calling this type of filter effective is like calling an umbrella full
of holes a hurricane shelter," RIAA president Hilary Rosen said recently.

Napster has countered that it is doing everything possible to comply with
the order, and has accused the record companies of trying to cripple the
site's technology by submitting confusing lists of copyrighted songs.

"Their goal is to have Napster shut down," said Napster vice president
Manus Cooney during a Washington symposium on online copyrights in March.

Napster claims 60 million-plus users, and as it continues its battle with
the record industry, online giants like Microsoft, Yahoo, Universal
Music/Vivendi and others are rushing into to exploit this potential

According to the Jupiter Media Metrix high tech consultancy, a quarter of
US music purchases will be done online -- a 5.4 billion dollar market.

Also scheduled for Tuesday' are various pretrial motions, including
requests by record music publishers to obtain class action status and
motions to dismiss various parties from the legal battle, including
Hummer Winblad, the venture capital firm which has funded Napster.
(Agence France Presse, April 9, 2001)

NIGERIAN UNIVERSAL: African Ct Will Hear Investors' Complaint Vs. Bank
The efforts by some investors to bring the distressed Nigerian Universal
Bank Limited (NUB) back to full activity through recapitalisation of
about N800 million have been stalled.

This follows an interim injunction restraining other investors and the
CBN from proceeding with the recapitalisation which was secured, upon a
motion ex-parte at the Kaduna High Court, by a group of other investors
who feel aggrieved by a decision of the Central Bank to reject their
investments in the bank..

In a suit no KDH/Kad/212/2001 which will come up for hearing on April 17
at the Kaduna High Court, the plaintiffs - Alhaji Sani Dauda, Abdulahi
Yusuf, Mansar Ahmed Kurfi and Sani Zangon Dauda - are asking the court to
restrain Cuvest Investment Limited, Alhaji M. I Yahaya, CBN and NUB
International Bank (formally Nigerian Universal Bank) from effecting any
action that does not carry them along in the recapitalisation process.

The court has ordered the defendants to be restrained from rejecting the
shareholding of the plaintiffs pending the hearing and determination of
the motion on notice. It also restrained the defendants from altering in
any manner the shareholding already agreed between the parties and duly
executed on the 8 January 2001 pending the hearing and the determination
of the motion on notice.

The CBN had early last year sold the bank to the new investors on
presentation of a proposal after the bank had been in receivership by the
apex bank for five years.

According to a court order now before the High Court judge in Kaduna, the
plaintiffs alleged that the defendants and the CBN may have been misled
by information capable of obstructing them from participating in the
recapitalisation to which they had all been party and had signed an
agreement to effect a smooth process for the return of the bank to active
banking services.

The plaintiffs are collectively contesting the rejection of the their
investments by the CBN on the grounds that they got their funds through
bank loans contrary to the guideline that investment in the bank must not
be through facility from any bank. The plaintiffs, who are part of an
investing group for 20.77 per cent of the bank's shares, are said to have
been indicted by an alleged investigation which indicated that they
contravened the guidelines on recapitalisation.

However, the writ of summons noted that one of the investors, MFB
Holdings Limited, through a letter dated November 28, 2000 investigated
and confirmed to the CBN the fact that all the four plaintiffs had
liquidated their loans, or repaid more than the amount used in proposing
for the purchase of the shares. In disregard to the explanation on the
said investigation, the CBN was said to have written the chairman of NUB
International Bank Limited rejecting the four plaintiffs as proposed

The unit had equally alleged that some of the defendants whose motives
were to own some 60 per cent shares of the bank may have frustrated the
efforts of the four plaintiffs so as to buy over controlling shares of
the bank.

A seven-point affidavit submitted to the court by Yahaha Mahmood and
Company, solicitors to the plaintiffs, said if the defendants were not
restrained, the plaintiffs would be prejudiced as the action of the
defendants was in bad faith and was not based on facts. He also claimed
that if the defendants were not restrained, the plaintiffs would suffer
irreparable damage which cannot be compensated by damages.

The plaintiffs have claimed through several bank statements that their
various loans raised from Habib Nigeria Bank Limited and Intercity Bank
were not principally for the purchase of shares but for their various
other businesses which had since been fully repaid.

Last month, the CBN alleged -ly told NUB International Limited that it
had credited only N624.7 million with accumulated interest to its current
account while N89.2 million would be refunded to the other four
applicants through the Intercity Bank, Kaduna. The CBN had also allegedly
notified the bank that it had only recognised five investors made up of
Cuvest Group (N382.5 million) Katsina State government (N100 million),
Kaduna State government ( N20 million), Alhaji Falalu Bello Group (N60.5
million) and indigenous investors (N61.7 million.) Both plaintiffs and
defendants were believed to have arrived at "a shareholders agreement"
which took care of per cent share holding per investor or group.

Allotting 51 to curvest investment believed to be owned by Alhaji
Mohammed Imam Yahaya, former chief executive of Union Bank Plc, 20.77 to
Falalu Bello Group, 20 to Katsina and Kaduna State Governments and 8.23
per cent to Hikima Group.

They had also agreed that cuvest investment will have five members on the
board of the new bank while two will go to Falalu Group while Katsina,
Kaduna and Hikima will have one member each. The chairman of the Board
would be appointed from the nominees of curvest investment while the
Managing Director and other line managers will be appointed by the board
on the recommendation of cuvest investment Limited.

Already, about 150 workers have been believed to have been offered
temporary employment in the bank while the Head office building of the
bank is already undergoing renovation on Yakubu Gowon Roud in Kaduna.

The court has ordered that further activities in relationship with the
reapitalisation exercise should stop pending the hearing on April 17,
2001. (Africa News Service, April 4, 2001)

PENSION BENEFIT: About 85,000 Former Pan Am Employees Join Class Action
Richard A. Brooks, the President of the Association of Former Pan Am
Employees (AFPAE INC.) announced on April 9 that the number of employees
covered under the Class Action Suit brought against the Pension Benefit
Guaranty Corporation (PBGC) on November 24,1997, has almost doubled. With
the advent of adding almost 40,000 former National Airline employees to
the existing suit of 45,000 former Pan Am employees, brings the total
group to approximately 85,000.

AFPAE's President Richard A. Brooks stated, that "it was outrageous for
both PBGC headquarters and two of their Field Benefit Administrators to
misinform former NAL employees who had called them, with questions about
their pension benefits." That the former National Airline employees
desperate experiences with the PBGC, a government agency set up to help
and protect the retirees' pensions and their interest, came as no
surprise to AFPAE, stated Mr. Brooks." We are used to being misinformed,
lied to, and denied the rights that any other retiree is granted under
ERISA law. We knew instinctively that the hundreds of former NAL
employees who did not work for Pan Am, who contacted us for help, were
being deceived by the PBGC. Till recently, we just could not get the
agency to admit that they in fact were administering former National
pension plans. Very few, if any, of these former NAL employees who did
not also work for PAA, have yet received their Initial Determination
Letters (IDL's). Thus, a decade or so later, IDL's setting forth the
final determination of benefits they were to receive, have not been
issued by this US government agency.

Additionally, due process such as their right to appeal the PBGC's
decision on their pension payments has been denied. Based on the Pan
Amer's experiences, many of PBGC's computations have been found to be
flawed and in significant error.

Mr. Brooks stated that the 2nd US Circuit Court of Appeals is now in the
process of hearing the PBGC's appeal of Judge Preskas third decision in
AFPAE's favor. If the agency's appeal is denied, AFPAE's lawyers will go
right to Discovery.

In other legal action, Mr. Brooks also stated that "AFPAE has just been
informed that a Washington, DC judge has ruled against Office Specialists
(PBGC's outside contractor who administered the Pan Am pension plans from
1991- 1998) on their motion to "dismiss" in AFPAE's "False Claims

The false claims suit is based on allegations that certain Office
Specialist Officers had a cozy relationship with certain PBGC Officials
awarding the contract to administer the Pan Am and other terminated
pension plans, as verified by the PBGC-IG's office, and the criminal
investigations division of the GAO (Mr. Robert Hast) during joint Senate
Committee hearings in September of 2000.

"We will continue to press forward on all fronts with our two lawsuits
and support legislation which needs to bring about profound changes in
the administration of the PBGC. In the meantime, we want to hear from as
many former National Airlines employees who are now part of the "suit."
They need to contact us to protect themselves and their families.

RICHARD CROSFIELD: Suit Accuses of Bilking Low-Income Minority Consumers
The owner of Sir Richard's Car Store Outlet in San Leandro is accused of
selling defective cars and using inflated leases to bilk low-income and
ethnic minority consumers.

One lease deal on a 15-year-old Chevy Blazer worth $3,300 required San
Leandro residents Paul Stuckey, 26, and his 21-year-old wife, Donna, to
pay a down payment of nearly $2,500 and another $9,700 over 42 months,
according to the class action suit filed March 23 in Alameda County
Superior Court.

The lawsuit states that Richard Crosfield, a.k.a. Sir Richard, also
misled the couple about the car's mileage and mechanical condition.

"Sir Richard claimed the car had a little more than 34,000 miles when our
investigators determined that as of 1996 the actual mileage was more than
97,000 miles," explained John L. Fallat, attorney for the Stuckeys.

In addition, the horn, a door lock and three seat belts were defective at
the time of sale, according to Fallat, who notes that, "The brakes failed
on Interstate 580 just two weeks after the lease signing, causing the
Stuckeys to crash into a freeway divider, totaling their car. Luckily, no
one was seriously hurt."

The insurance adjuster offered the Stuckeys just $1,134 for their totaled
Chevy Blazer based on a fair market value of $3,300 -- less than one
third of the lease amount, Fallat explained.

"We believe that Sir Richard is taking unfair and illegal advantage of
low-income and primarily minority consumers in the East Bay by selling or
leasing them defective cars at an inflated value and/or financing them at
exorbitant rates," said Fallat. He added: "Sir Richard markets his
dealership through an aggressive, outrageous style."

The suit contends Sir Richard violated the California Vehicle Leasing
Act, Consumer Legal Remedies Act, executed an unconscionable contract,
committed civil conspiracy and engaged in unfair business practices.

Fallat says his suit demands a jury trial in a effort to seek relief for
the Stuckeys and other customers of Sir Richard from 1996 to the present.
He is urging anyone who believes they have fallen victim to Sir Richard
to contact his office at 415-457-3773.

The Law Offices of John L. Fallat, with offices in Marin, San Francisco
and Pasadena, specializes in consumer class actions.

Contact: Bruce Lewis of Lewis & Summers Public Relations, 707-937-3600,
or bruce@prwebsite.com, for Law Offices of John L. Fallat; or John L.
Fallat, Attorney At Law of Law Offices of John L. Fallat, 415-457-3773,
or jfallat@fallat.com

STRIP SEARCHES: Fd Judge Denies NY Nassau County Plaintiffs Class Status
Class certification has been denied to plaintiffs who sued the Nassau
County Sheriff for being subjected to routine strip searches on arrest.

The federal decision by Eastern District Judge Denis R. Hurley means that
individual plaintiffs will have to seek damages in separate suits.

Judge Hurley, in a 31-page opinion, said that individual questions of
damages predominated over class-wide issues of liability, and that each
case would have to be heard separately.

In Augustin v. Jablonsky, 99-CV-3126 (DRH) (ARL), three representative
plaintiffs filed a complaint arguing that their civil rights were
violated by the Nassau County Sheriff's former "blanket policy" to strip
search all persons under arrest coming into the Nassau County
Correctional Center.

The proposed class was all persons who were subjected to strip searches
at the center after being held on non-felony offenses, and all those who
returned to the center after arraignment and were strip searched.

In 1999, Eastern District Judge Leonard D. Wexler declared the policy a
violation of the Fourth Amendment ban on unreasonable searches. Judge
Wexler's decision is still under consideration by the U.S. Court of
Appeals for the Second Circuit.

Plaintiffs in the Augustin litigation argue that persons charged with
misdemeanors and minor offenses may not be strip searched absent a
reasonable suspicion that they may be concealing a weapon or contraband
such as drugs.

In a class settlement announced early this year, New York City may be
required to pay more than $ 50 million in claims by as many as 60,000
persons who were strip-searched illegally by Department of Corrections

The proposed class in the Nassau County case could consist of more than
19,000 persons, the court said. So the denial of certification could save
the County from a single-lawsuit exposure to more than $ 10 million in
liability, using the New York City settlement as a yardstick.

Judge Hurley said that each of the three representative parties could
bring a suit against the county sheriff, but that a class could not be

Even though liability issues could be litigated on a class-wide,
wholesale basis, the predominant issues in the case would be the level of
damages suffered by each plaintiff.

Judge Hurley therefore reasoned that under federal rules, the class
action would not be superior to other methods for the fair and efficient
adjudication of the controversy.

If the case were to be pursued as a class action, a finding of liability
would lead to a series of "mini-trials" to ascertain each class member's
proof of compensatory damages, Judge Hurley said.

                        Consolidated Actions

At the same time it denied class certification, the court consolidated
the cases brought by the three representative parties, in an effort to
avoid inconsistent adjudications. Future plaintiffs will need to file
their own cases, but the County's liability could be determined by the
result of the consolidated case.

The lead attorney for the plaintiffs is Robert L. Herbst, of Herbst &
Greenwald. Counsel for the Nassau County Sheriff is Paul F. Millus of
Snitow & Cunningham.

Another defendant, the Port Washington Police District, was represented
by L. Lynette Sarno of Thurm & Heller. (New York Law Journal, March 27,

TICKET RESALE: Injunction Protects Fans Who Resell Tickets at Face Value
It's Opening Day at Fenway Park, but Boston police apparently did not get
the pitch from a federal judge who has ruled they cannot arrest a casual
fan who resells a Red Sox ticket for face value.

"It's still a crime to resell," said Sergeant James Giardina, whose
district includes the ballpark. "They might be arrested."

That's not the understanding of city counsel Merita A. Hopkins, who said
that a permanent injunction by US District Judge Joseph L. Tauro protects
fans who attempt to resell unused tickets near Fenway Park for face value
or less.

"I think you have to apply some common sense here," Hopkins said. "I
think the judge is basically saying that . . . you've got to be a little

The issue arose after Gary Lainer, a Canton veterinarian, was arrested
outside the park in 1999 after he sold an absent friend's $18 ticket for
face value. Three plainclothes officers arrested Lainer, who was
handcuffed, jailed, and chained to a police station wall during booking.

Before Opening Day last year, Tauro issued a preliminary injunction
against such arrests. Last month, Tauro made the injunction permanent and
demanded the city pay $55,000 in attorney's fees and damages to Lainer.

"Score one for the common man," Lainer said after his class-action suit
prompted the first injunction.

But the city's lawyers, while accepting Tauro's ruling, saw the law
differently. Their interpretation had been that any resale of tickets
outside Fenway, no matter how innocent, violates a 1924 anti-scalping
statute that bans such deals by unlicensed sellers.

Lainer, however, argued that an innocent resale does not constitute a
business transaction and therefore is exempt from the law.

Red Sox officials said that the permanent injunction is news to them. The
team routinely hires plainclothes Boston police officers to patrol the
area around the ballpark for scalpers. And, according to Red Sox vice
president Dick Bresciani, the team did not know of any change in police

"We've been working with the police," Bresciani said. "It's not our law;
it's the state law."

Giardina said police are approaching the season with the mind-set that
the statute itself has not been changed. "We haven't been tutored on it,"
Giardina said of the injunction's effect. "My assumption is that they're
still going to go with the old law on the resale of tickets."

Police will approach any resales on a case-by-case basis, Giardina said.
And, judging by a lack of complaints last season, police appear to be
using more discretion in their arrests. "We might be lenient to some
extent on an individual basis," the sergeant said of this year's
approach. "But as far as the law, the law still states you cannot resell
a ticket."

Boston police provide about 30 officers to the Red Sox detail for
important dates such as Opening Day, Giardina said. A handful of those
officers will be plainclothes police who will mingle with the crowd and
watch for scalpers.

The streets will be buzzing with plenty of regular scalpers seeking a big
markup from baseball-starved fans who, in the words of Lainer's attorney,
Robert Mendillo, consider the home opener a "holy day of obligation."

But they had better be mindful of undercover police who, as the Fenway
faithful approach their mecca, will be watching for the quick exchange of
cash and tickets. (The Boston Globe, April 6, 2001)

TRI VALLEY: CA Suit Accuses Insurance Broker Of Unfair Practices
A Carmichael man lost his mandatory car insurance and coverage for an
accident when he was misled and overcharged by independent insurance
broker Tri Valley Insurance Services, a class action suit filed March 26
in Sacramento Superior Court claims.

John Phillips, 26, signed up for insurance last April, paying more than
$460 for two months coverage, according to the civil suit, then lost his
coverage when the broker and insurer TIG Specialty Insurance Company
deducted non-refundable fees from the insurance payment. Phillips thought
he had paid for two full months of insurance coverage, only to learn when
he called to make a claim for a June 11 accident that the deductions made
by the broker left him a month short, the suit states.

"Tri Valley takes so much off the top that when one of these individuals
appears and is mislead through the monthly payment program, policies get
cancelled and leave their victims without car insurance," explained John
L. Fallat, Phillips' attorney.

"We think it is unconscionable to charge a non-refundable fee of $235 --
equal to what Mr. Phillips paid for a full month of insurance," said
Fallat. "This charge is made even if a person is never actually given an
insurance policy."

The class action, which includes Phillips and other Tri Valley customers,
claims "unconscionable contract, breach of fiduciary duty and implied
covenant of good faith and fair dealing, violation of the Consumer Legal
Remedies Act, unfair business practices, and civil conspiracy."

Fallat is urging anyone who believes they have fallen victim to Tri
Valley Services to contact his office at 415-457-3773.

The Law Offices of John L. Fallat, with offices in Marin, San Francisco
and Pasadena, specializes in consumer class actions.

Contact: Bruce Lewis of Lewis & Summers Public Relations, 707-937-3600,
or bruce@prwebsite.com, for Law Offices of John L. Fallat; or John L.
Fallat, Attorney At Law, of Law Offices of John L. Fallat, 415-457-3773,
or jfallat@fallat.com

TWA: PA Ap Ct Halts Sale to AMR upon Israeli Workers' Protest over Jobs
A federal appeals court halted the planned sale of Trans World Airline's
assets to American Airlines' parent company after a group of TWA workers
from Israel protested, saying they were losing their jobs without
adequate compensation.

The 3rd U.S. Circuit Court of Appeals in Philadelphia issued a temporary
stay over the weekend in response to a petition from the Jewish Labor
Federation, court clerk Marci Waldron said. The deal was to have been
closed Monday.

The labor federation, which represents about 100 Israeli TWA employees
and retirees, wants the appeals court to send the case back to federal
bankruptcy court for further consideration, said Bruce Zabarauskas, the
lawyer representing the workers.

Zabarauskas said he expects the court to decide Monday whether or not to
send the case back to a bankruptcy judge, or allow the sale to proceed.

The workers are owed about dlrs 18 million in salaries and severance
benefits, he said.

''Basically they are losing their jobs and they're not getting any
payments,'' Zabarauskas said. ''We're seeking to prevent the sale from
going forward.''

Fort Worth, Texas-based AMR Corp.'s deal to pay dlrs 742 million for the
airline, plus the assumption of dlrs 3.5 billion in debt, does not
include funds for TWA's unsecured creditors.

TWA said last month that it was indefinitely suspending its route between
Tel Aviv, Israel, and New York's JFK Airport, saying that route would not
be part of the deal.

News of the stay came as a surprise after TWA and American officials had
previously said it appeared that all potential roadblocks to the deal had
been lifted.

The court is still ''considering those briefs, so they have not issued a
permanent stay,'' said Marty Heires, an American Airlines spokesman.

TWA officials did not immediately respond to phone calls seeking comment.

U.S. District Judge Sue Robinson denied the creditors' request to delay
the sale. Regulatory approval was granted by the U.S. Department of

In a move unrelated to the Philadelphia court action, a New York rabbi is
currently seeking class-action status for a suit against TWA seeking
damages for those who were not able to obtain reasonable alternative
solutions for planned flights to Tel Aviv. TWA has said, however, that it
does not believe the suit has merit.

American, the No. 2 carrier before the deal, will swap positions with No.
1 United Airlines if the deal goes through. American's newfound supremacy
could be short-lived, though. The airlines will reverse positions again
if United succeeds in its bid to obtain most of US Airways.

The American-TWA deal still has some other obstacles ahead. Leaders of
American's three unions are withholding support for the purchase because
they fear the difficulty of absorbing TWA's workers could cause turmoil.

But TWA's unions, including the International Association of Machinists
and Aerospace Workers the Air Line Pilots Association, have agreed to the
sale to AMR. (AP Worldstream, April 9, 2001)

VOTING: Disabled Point To Problems At The Polls; Advocates Seek Change
Voting is a sacred right; it can also be a humiliation. Try it if you're
blind or in a wheelchair. You can't punch a chad you don't see. Or read a
ballot that reaches your chin when you roll up in a chair.

You could be like Gayle Krause -- too embarrassed to vote.

Floridians with disabilities are frustrated by the hurdles of voting and
worried about a disinterested Legislature. They're reaching for the
courts in a barrage of lawsuits they hope will establish an easy-to-use
audio system for the state's 250,000 blind, and easy-to-enter polls for
the physically impaired, an estimated 100,000 of whom use wheelchairs.

Krause doesn't agree with the litigation strategy -- yet. As a specialist
in Miami-Dade County's coordination office for the Americans with
Disabilities Act, she'd rather educate and negotiate. But, as a blind
woman, she understands the humiliation of many of Florida's visually
impaired residents who cannot vote independently or secretly. So she
chooses to avoid it.

Under state law, blind voters have two options at the polls: They can
bring someone of their own choosing to help them, or they can rely on two
poll workers who are supposed to assist "without suggestion or
interference." Problem is, Krause said, they often don't follow the law.

"They tell you how to vote," Krause said. "I've had someone, when I voted
for a woman at one point, say: 'Well, why don't you just go down and mark
all the women?' I don't know if these people marked my ballot correctly
or not, so I stopped voting."

Fred Shotz, an ADA consultant in Broward County, is sighted, but he still
couldn't see the ballot after he managed to maneuver his wheelchair over
the threshold of his Dania Beach precinct last November. Someone had
lowered just the back legs of the punch-card machine designated for
handicapped voters, and it came up to Shotz's nose when he wheeled up to
it. To read the ballot, he had to raise himself up from his chair using
his surgically reconstructed shoulders, hands and wrists.

"How'd I vote? With a lot of pain," Shotz said.

Advocates think stories like these should persuade elections officials
and legislators to consider Florida's many disabled residents in their
debate over election reforms. If not, the disabled are ready to wage
legal war. First choice rejected

For the state's visually impaired, they support the kind of
state-of-the-art voting system Secretary of State Katherine Harris
proposed last month. Harris recommended that Florida develop a unified,
real-time, interactive system akin to an ATM by the 2004 election cycle.
She noted that such technology could be easily modified with earphones
and voice synthesizers to read ballots privately to people who have
trouble seeing.

But her $ 199 million proposal was pronounced dead on arrival by
cash-strapped legislators, who are leaning toward leasing precinct-based
optical scanners statewide for the 2002 election. The scanners allow
voters to fill in the bubble next to their choice, then feed their
ballots into a machine that spits out mistakes. But optical scanners
would do nothing to improve voting for visually impaired Floridians. They
still couldn't cast a secret ballot.

Wayne Davis, a blues guitarist on Miami Beach, said voting is

Davis, who heads the National Federation of the Blind of Florida, said
his precinct usually assigns two "little old ladies" to help him vote --
one Republican and one Democrat.

"They bicker with each other and tell you how to vote," Davis,
remembering a vote he cast a few years ago in favor of casino gambling.
"As a musician, I thought it would be good for business, but one of them
asked, 'Does that mean you don't love God?'"

Stephen Cody is taking no chances. The civil rights lawyer is drafting a
federal class-action suit demanding equal-access voting for the state's
visually impaired.

"The blind are required to vote in an unequal manner, and that is a
violation of the ADA, but until now there really was no good solution,"
Cody said. "Now the technology is available, and we're standing on the
cusp of moving from one inaccessible voting system to another
inaccessible voting system. We think that's inappropriate."

For the estimated 100,000 Floridians who use wheelchairs and the scores
of others with mobility problems, teams of lawyers and disability
advocates are surveying every precinct in every county. They say many
polling places fail to meet parking, access and other ADA requirements.
If they do, there are plans for a barrage of individual lawsuits against
any of the 67 county supervisors of elections whose polling places are
not in substantial compliance.

Joy Cohen discovered her longtime Valencia Village precinct in Davie
wasn't even close when she showed up to vote in a wheelchair last
November. A poll worker had to pick her up and carry her up the steps and
then down a staircase.

"I can't tell you how embarrassed I was," Cohen, who has osteoarthritis,
told the U.S. Commission on Civil Rights recently. "It's a very demeaning
thing to have to do."

Broward County's elections operations supervisor, Jack Picone, said
Broward grapples with the same problem many other counties face:
recruiting enough polling places within the required boundaries and with
the required amenities. Churches, for example, don't have to meet ADA
regulations and are often the only buildings available.

"We don't own those facilities, and we have to beg, borrow and steal to
meet other requirements," Picone said. A long wait

Julie Shaw, the executive director of Gov. Jeb Bush's ADA working group,
agrees there's room to improve access for Florida's disabled voters, but
she begs for patience rather than litigation.

"If you look at it from the perspective of a person with a disability,
they've waited a long time. The ADA is 11 years old, so I can understand
their frustration, but we have the same goal: to improve access. So it
would be better to spend the money on resolving issues, rather than
litigating them."

For now, Krause agrees. "As long as people have begun to talk, then suing
is premature," she said. "If things don't move forward, then we should

And if they move forward enough, Krause just might get up the nerve to
vote again. (Sun-Sentinel (Fort Lauderdale, FL), April 9, 2001)


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