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/raid1/www/Hosts/bankrupt/CAR_Public/991026.MBX C L A S S A C T I O N R E P O R T E R Tuesday, October 24, 1999, Vol. 1, No. 185 Headlines 3COM CORP: Discloses Securities Suits In CA In SEC Filing BERGEN BRUNSWIG: Catanzarite Law Files Securities Suit In California BERGEN BRUNSWIG: Lionel Z. Glancy Files Securities Suit In California BRESNAN COMMUNICATIONS: Discloses Suit Over Admin Fee To Subscribers CHICAGO HOUSING: Police Sue Over Lay-Off; Residents Attack Relocation CHILDREN'S PLACE: NJ Ct Oks Secondary Market Class Over Fraud In IPO CLOROX COMPANY: Cohen, Milstein Files Securities Fraud Suit In CA COMPUTER LEARNING: Fed Judge Sends Students' Action Back To Phil. State CONCORDE CAREER: Contests Fla. Suit Over Misrepresentation Of Course FUNDTECH LID: Kirby McInerney Files Securities Suit In New Jersey FUNDTECH LTD: Lionel Z. Glancy and Dekel-Sabo File NJ Securities Suit GST TELECOMMUNICATIONS: Alfred G. Files Securities Suit In Washington GST TELECOMMUNICATIONS: Dyer Donnelly Files Washington Securities Suit HOLOCAUST VICTIMS: Negotiators In Talks For "Legal Peace" Framework MAXIM GROUP: Discloses In SEC Filing Securities Suit Filed In Georgia MEDICAL PRODUCTS: Georgia Ct Dismisses Shareholder Suit NATIONAL LIFE: Strauss & Troy File Securities Suit In Vermont NICHIEI CO: In Japan Shoko Loan Companies Named In 149 Lawsuits NORTHEAST UTILITIES: Shareholders Sue In NY Over Acquisition By Edison REYNOLDS METALS: Reports On Dismissal Of Aluminium Antitrust Suit In CA ST. JOHN KNITS: Milberg Weiss Files Securities Suit, Class Certified ULTRALIFE BATTERIES: NJ Ct Dismissed On Sept 28 Securities Suit Re IPO YWCA: Japanese-Americans' Suit Over CA Property Stir Memories Of Racism ********* 3COM CORP: Discloses Securities Suits In CA In SEC Filing --------------------------------------------------------- The Company discloses the following lawsuits in its SEC filing for the quarterly period ended August 27, 1999 (Commission File No. 0-12867): On March 24 and May 5, 1997, securities class action lawsuits, captioned HIRSCH V. 3COM CORPORATION, ET AL., Civil Action No. CV764977 (HIRSCH), and KRAVITZ V. 3COM CORPORATION, ET AL., Civil Action No. CV765962 (KRAVITZ), respectively, were filed against 3Com and certain of its officers and directors in the California Superior Court, Santa Clara County. The complaints allege violations of Sections 25400 and 25500 of the California Corporations Code and seek unspecified damages on behalf of a class of purchasers of 3Com common stock during the period from September 24, 1996 through February 10, 1997. The actions are in discovery. No trial date has been set. On February 10, 1998, a securities class action, captioned EUREDJIAN V. 3COM CORPORATION, ET AL., Civil Action No. C-98-00508CRB (EUREDJIAN), was filed against 3Com and several of its present and former officers and directors in United States District Court for the Northern District of California asserting the same class period and factual allegations as the HIRSCH and KRAVITZ actions. The complaint alleges violations of the federal securities laws, specifically Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and seeks unspecified damages. The plaintiffs have filed an amended complaint. 3Com has filed an answer to the amended complaint. No trial date has been set. In December 1997, a securities class action, captioned REIVER V. 3COM CORPORATION, ET AL., Civil Action No. C-97-21083JW (REIVER), was filed in the United States District Court for the Northern District of California. Several similar actions have been consolidated into this action, including FLORIDA STATE BOARD OF ADMINISTRATION AND TEACHERS RETIREMENT SYSTEM OF LOUISIANA V. 3COM CORPORATION, ET AL., Civil Action No. C-98-1355. On August 17, 1998, the plaintiffs filed a consolidated amended complaint which alleges violations of the federal securities laws, specifically Sections 10(b) and 20(a) of the Securities and Exchange Act of 1934, and which seeks unspecified damages on behalf of a purported class of purchasers of 3Com common stock during the period from April 23, 1997 through November 5, 1997. In July 1999, the court dismissed the complaint and granted the plaintiffs the right to file an amended complaint. Plaintiffs have filed an amended complaint and defendants have filed a motion to dismiss. In October 1998, a securities class action lawsuit, captioned ADLER V. 3COM CORPORATION, ET AL., Civil Action No. CV777368 (ADLER), was filed against 3Com and certain of its officers and directors in the California Superior Court, Santa Clara County, asserting the same class period and factual allegations as the REIVER action. The complaint alleges violations of Sections 25400 and 25500 of the California Corporations Code and seeks unspecified damages. The action is in discovery. No trial date has been set. In October 1998, two shareholder derivative actions purportedly on behalf of 3Com, captioned SHAEV V. BARKSDALE, ET AL., Civil Action No. 16721-NC, and BLUM V. BARKSDALE, ET AL., Civil Action No. 16733-NC, were filed in Delaware Chancery Court. The complaints allege that 3Com's directors breached their fiduciary duties to 3Com through the issuance of and disclosures concerning director stock options. 3Com is named solely as a nominal defendant, against whom the plaintiffs seek no recovery. 3Com and the individual defendants have filed a motion to dismiss these actions. On May 11, 1999, a securities class action, captioned GAYLINN V. 3COM CORPORATION, ET AL., Civil Action No. C-99-2185 MMC (GAYLINN), was filed against 3Com and several of its present and former officers and directors in United States District Court for the Northern District of California. Several similar actions have been consolidated into the GAYLINN action. On September 10, 1999, the plaintiffs filed a consolidated complaint which alleges violations of the federal securities laws, specifically Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and seeks unspecified damages on behalf of a purported class of purchasers of 3Com common stock during the period from September 22, 1998 through March 2, 1999. 3Com has not responded to the complaint. BERGEN BRUNSWIG: Catanzarite Law Files Securities Suit In California -------------------------------------------------------------------- The Catanzarite Law Corp. announced that it has filed a class action in the United States District Court for the Central District of California on behalf of a class consisting of all persons who purchased or otherwise acquired the common stock of Bergen Brunswig Corp. (NYSE:BBC) between March 16, 1999 and Oct. 14, 1999, inclusive. The suit claims that Bergen and some of its officers violated the federal securities laws by issuing false and misleading statements or by failing to disclose certain material facts about, among other things, the acquisition of Stadtlander Drug Co. Inc. ("Stadtlander"), formerly a wholly owned subsidiary of Counsel Corp., and the acquisition of PharMerica Inc. Furthermore, in completing the acquisition of PharMerica, defendants made no mention of any "gross" accounting irregularities or fraud in the financial statements of the then recently acquired Stadtlander business unit. However, on Oct. 14, 1999, Bergen raised anxieties in the marketplace by announcing that it would not meet analysts' consensus estimates for its fourth quarter and fiscal year ended Sept. 30, 1999, blaming the shortfall on "(l)ower than expected results at Stadtlander." That same day, Bloomberg, Dow Jones and other news services reported the stunning news that Bergen had filed a lawsuit against Counsel Corp., claiming that Counsel Corp. had "fraudulently induced" the company into paying an "inflated purchase price" for Stadtlander by "grossly overstat(ing) the specialty-drug unit's earnings and net income during periods when it actually had little or no income." On this news, the price of Bergen common stock, which had attained a Class Period high of $ 25-9/16 on March 17, 1999 and which had been trading in the range of $ 10 to $ 11 per share in the weeks preceding this news, fell precipitously, closing at $ 7-9/16 per share on Oct. 15, 1999. Further, on Oct. 19, 1999, upon the market's more fully absorbing the news, it closed at $ 6-3/4. This drop caused severe damages to plaintiffs and the Class. If you are a member of the Class described above, you may move the court, not later than 60 days from Oct. 22, 1999 to serve as lead plaintiff; however, you must meet certain legal requirements. Plaintiff is represented by the Catanzarite Law Corp. If you wish to discuss this action or have any questions concerning this notice or your rights or interests with respect to these matters, contact Kenneth J. Catanzarite, Esquire, or Ralph Ascher, Esquire, of the Catanzarite Law Corp., 2331 W. Lincoln Ave., Anaheim, Calif. 92801, by telephone at 714/520-5544 or by e-mail to kcatanzarite@catanzarite.com TICKERS: NYSE:BBC BERGEN BRUNSWIG: Lionel Z. Glancy Files Securities Suit In California --------------------------------------------------------------------- Pursuant to Section 21(D)(A)(3)(a)(i) of the Securities Exchange Act of 1934, Notice is hereby given that a Class Action has been commenced in the United States District Court for the Central District of California on behalf of a class consisting of all persons who purchased or otherwise acquired the common stock of Bergen Brunswig Corp. (NYSE:BBC) between March 16, 1999, and Oct. 14, 1999, inclusive. The Complaint charges Bergen and certain of its officers with violations of federal securities laws. Among other things, plaintiff claims that the defendants caused material omissions and the dissemination of materially false and misleading statements regarding the acquisition of Stadtlander Drug Co. Inc. ("Stadtlander"), formerly a wholly owned subsidiary of Counsel Corp., and the acquisition of PharMerica Inc. Moreover, in completing the acquisition of PharMerica, defendants made no mention of any "gross" accounting irregularities or fraud in the financial statements of the then recently acquired Stadtlander business unit. Nevertheless, on Oct. 14, 1999, Bergen raised anxieties in the marketplace by announcing that it would not meet analysts' consensus estimates for its fourth quarter and fiscal year ended Sept. 30, 1999, blaming the shortfall on "(l)ower than expected results at Stadtlander." That same day, Bloomberg, Dow Jones and other news services reported the stunning news that Bergen had filed a lawsuit against Counsel Corp., claiming that Counsel Corp. had "fraudulently induced" the Company into paying an "inflated purchase price" for Stadtlander by "grossly overstat(ing) the specialty-drug unit's earnings and net income during periods when it actually had little or no income." On this news, the price of Bergen common stock, which had attained a Class Period high of $ 25-9/16 on March 17, 1999, and which had been trading in the range of $ 10 to $ 11 per share in the weeks preceding this news, fell precipitously, closing at $ 7-9/16 per share on Oct. 15, 1999. Further, on Oct. 19, 1999, upon the market's more fully absorbing the news, it closed at $ 6-3/4. This drop caused severe damages to plaintiffs and the Class. Plaintiff is represented by the Law Offices of Lionel Z. Glancy. If you are a member of the Class described above, you may move the Court, not later than 60 days from Oct. 22, 1999, to serve as lead plaintiff, however, you must meet certain legal requirements. If you wish to discuss this action or have any questions concerning this Notice or your rights or interests with respect to these matters, please contact Lionel Z. Glancy, Esquire, or Michael Goldberg, Esquire, of the Law Offices of Lionel Z. Glancy, 1801 Avenue of the Stars, Suite 311, Los Angeles, Calif. 90067, by telephone at 310/201-9150, toll free at 888/773-9224 or by e-mail to info@glancylaw.com TICKERS: NYSE:BBC BRESNAN COMMUNICATIONS: Discloses Suit Over Admin Fee To Subscribers -------------------------------------------------------------------- In its report for the quarter ended June 30, 1999 filed with the Securities and Exchange Commission as of October 19, 1999, Bresnan Communications Group LLC discloses the following consumers' class action complaints over administrative fee to subscribers. Certain plaintiffs have filed or threatened separate class action complaints against certain of the systems of BCG, alleging that the systems' practice of assessing an administrative fee to the subscribers whose payments are delinquent constitutes an invalid liquidated damage provision and a breach of contract, and violates local consumer protection statutes. Plaintiffs seek recovery of all late fees paid to the subject systems as a class purporting to consist of all subscribers who were assessed such fees during the applicable limitation period, plus attorney fees and costs. BCG has contingent liabilities related to legal proceedings and other matters arising in the ordinary course of business. Although it is possible that BCG may incur losses upon conclusion of the matters referred to above, an estimate of any loss or range of loss cannot presently be made. Based upon the facts available, management believes that, although no assurance can be given as to the outcome of these actions, the ultimate disposition should not have material adverse effect upon the combined financial condition of BCG. In June 1999, the Partners of BCCLP entered into an agreement to sell all of their partnership interests in BCCLP to Charter Communications Holding Company, LLC for a purchase price of approximately $3.1 billion in cash and equity which will be reduced by the assumption of BCCLP's debt at closing. BCCLP anticipates that this transaction will close in the first half of 2000. CHICAGO HOUSING: Police Sue Over Lay-Off; Residents Attack Relocation --------------------------------------------------------------------- The Chicago Housing Authority came under attack on two different fronts. The first volley was fired by the recently released police officers, who filed a class-action lawsuit against the CHA, claiming, among other things, that the agency did not give them 60 days' notice before announcing a layoff of the approximately 270 officers. The second round was fired by some soon-to-be-displaced Stateway Gardens residents at a public hearing in the Stateway Park field house, 3658 S. State St. The residents said they wanted guarantees that they could move back into the neighborhood, and many were upset with what they called a lack of input in a $1.5 billion citywide CHA makeover that includes tearing down 52 high-rises, rebuilding or renovating 24,000 apartments and privatizing the bulk of the agency's jobs. "We are tired of people coming in here saying they want us to help them make plans when the plans have already been made," said Rev. Learna Solsberry. Residents also said they want to know why their own alternative plan was not approved. CHA officials, including Sharon Gist Gilliam, chairman of the CHA's Board of Commissioners, said the alternative plan, which was put together several years ago when the housing authority was under direct control of the U.S. Department of Housing and Urban Development, did not have funding in place and did not take into account conditions set by the federal government. Several weeks ago, four months after the city regained control of the agency from HUD, the CHA announced its 10-year makeover plan when it unveiled its 2000 budget. The budget calls for laying off 636 CHA employees--roughly 26 percent of the agency's workforce of 2,454--by Jan. 1. The cutback in employees included disbanding the CHA police force. The move came earlier than expected, officials said, because of high absenteeism among CHA officers since the announcement was made last week that the officers would be laid off on Oct. 29. Harvey Radney, a Chicago police officer who is acting chief of CHA police, said the CHA force would go on fully paid administrative leave until they were scheduled to be laid off (Oct. 29). They are being replaced by Chicago police officers from the special operations unit until permanent replacements are moved into the jobs, Radney said. A $30 million federal grant will be used to hire 375 new Chicago police officers, who will patrol CHA developments citywide. Karen Bates, a spokeswoman for the CHA, said she had not seen the lawsuit filed and could not comment. (Chicago Tribune 10-22-1999) CHILDREN'S PLACE: NJ Ct Oks Secondary Market Class Over Fraud In IPO -------------------------------------------------------------------- BROSIOUS v. CHILDREN'S PLACE RETAIL STORES, U.S. District Court (DNJ), Civil Action No. 97-5021 (JCL), August 23, 1999. By Lifland, U.S.D.J. (16 pages). Facts-on-Call Order Number 5278 In this securities-fraud case based on an initial public offering, a subclass of plaintiffs who did not purchase directly in the IPO were certified as to their claims under @@ 12(a)(2) and 15 of the Securities Act of 1933 because the secondary market transactions for which the distribution of the prospectus was statutorily required were redistributions that took on the characteristics of a new offering. The Children's Place Retail Stores (CPRS) is a specialty retailer of children's apparel and accessories. On September 18, 1997, pursuant to a registration statement and a prospectus incorporated into the registration statement, CPRS sold 4 million shares of company stock in an initial public offering at $ 14 per share. Before the market opened on October 14, 1997, CPRS announced that its third-quarter sales would be significantly lower than anticipated and that future earnings would be affected adversely by excessive inventory. As a result, the price of the company's stock fell to $ 7.53 per share, a drop of 46 percent in value in less than a month. The U.S. District Court for the District of New Jersey consolidated the various complaints that were filed after the October 14 announcement. On February 26, 1998, the first consolidated amended complaint was filed on behalf of certain named plaintiffs individually and on behalf of a class of persons who had purchased shares of CPRS common stock pursuant to the prospectus in connection with the IPO. On October 5, 1998, a second consolidated amended class action complaint was filed. The second amended complaint alleged that the prospectus had contained misleading statements or omissions in violation of @@ 11, 12(a)(2), and 15 of the Securities Act of 1933. Some of those statements or omissions concerned the ability of CPRS to monitor its sales and inventory through the use of its "highly touted" point-of-sale tracking system. The system was supposed to monitor the company's sales and inventory levels at each of its 140 stores. The plaintiffs alleged that there had been widespread problems with the tracking system before the IPO and that the IPO had failed to disclose those problems. The plaintiffs moved for certification of the proposed class. They sought to represent a class consisting of all persons who had purchased or otherwise acquired CPRS common stock between September 18 and October 13, 1997 because of the false and misleading prospectus and registration statement issued in connection with the IPO. CPRS conceded that a class should be certified, but it argued that the class should be limited to initial purchasers and should not include secondary purchasers of common stock in the IPO. According to CPRS, @@ 11 and 12 of the Securities Act regulate new public offerings and do not provide a remedy for secondary purchasers. CPRS also objected to Daniel T. Polner as one of the proposed class representatives. Polner was a former employee of one of the underwriters of the IPO. CPRS contended that Polner had unique access to information about the underwriter and, therefore, that his claims were not typical of the ordinary investor. The District Court granted the plaintiffs' motion in part and denied it in part. The court first considered @ 12 of the Securities Act to determine the scope of the class. In this regard, the District Court observed that Gustafson v. Alloyd Co., 513 U.S. 561 (1995), held that Congress intended that liability under the predecessor of @ 12(a)(2) be limited to public offerings. The Gustafson court further noted that the legislative history indicated that the predecessor of @ 12(a)(2) "affects only new offerings of securities" and "does not affect the ordinary redistribution of securities unless such redistribution takes on the characteristics of a new offering." The plaintiffs contended that a redistribution took on the characteristics of a new offering if a person purchased within the 25-day mandatory prospectus delivery period. They also pointed out that Congress has recognized that secondary market transactions must involve a prospectus when they are temporarily close to the inception of an IPO. The plaintiffs reasoned that the secondary market transactions at issue in this case had transpired between September 18, 1997, the date of the IPO inception, and October 13, 1997, "thereby rendering them subject to both the prospectus requirement of 15 U.S.C. @ 77d(3)(B) and the reduced, 25-day mandatory prospectus period defined" by the Securities and Exchange Commission. The District Court was persuaded that secondary market transactions for which the distribution of a prospectus is statutorily required are redistributions that take on the characteristics of a new offering. The court added that congressional concern about prospectus requirements and the influence of a prospectus on price and purchasers should govern the scope of @ 12(a)(2) liability more than should the "mere primary or secondary status of the transaction." Therefore, the court concluded that, because the secondary market transactions in this case were sufficiently analogous to IPOs as to carry the same duties of disclosure, those duties in turn should be enforced by @ 12(a)(2). Consequently, the court held that all of the proposed class members had standing under that statute. By virtue of such standing, the class members also had standing under @ 15. However, the District Court found that Congress has not required the distribution of the registration statement for a period after an IPO as a necessary safe-guard of secondary market transactions. Therefore, the court held that secondary purchasers did not have standing to sue under @ 11 of the Securities Act and, therefore, that they could not be included in the class with respect to such claims. The court proceeded to find that all of the requirements for class certification of the class and subclass were met. The court also found that Polner's claims were not atypical of those of the proposed class. The court assumed that Polner had purchased stock with the belief that the prospects of CPRS were good. Moreover, because liability is not based on a plaintiff's actual exposure to a particular prospectus in making a purchase decision and instead is based on his purchase of a security in a "price environment" based on that prospectus, the District Court concluded that Polner stood in the same place as other class members. (New Jersey Lawyer 9-27-1999) CLOROX COMPANY: Cohen, Milstein Files Securities Fraud Suit In CA ----------------------------------------------------------------- The law firm of Cohen, Milstein, Hausfeld & Toll, P.L.L.C., has announced that, on behalf of its client, it has filed a class action lawsuit on behalf of all persons who purchased the common stock of Clorox Company (NYSE:CLX) between Oct. 19, 1998 through Aug. 11, 1999. The suit was filed in the U.S. District Court for the Northern District of California. The suit alleges that Clorox violated Section 10(b) of the Securities Exchange Act of 1934 by making misrepresentations about Clorox's business, earnings growth and financial results, and its ability to continue to achieve profitable growth. The complaint alleges that these false and misleading statements inflated the price of Clorox stock, which traded as high as $ 132-5/16 per share during the class period. When Clorox disclosed that its fourth quarter revenues had actually declined, the stock tumbled to just over $ 83 per share, inflicting massive damages on shareholders. Persons who are members of the Class described above have sixty days from October 6, 1999 to move the court if they desire to serve as lead plaintiffs in the case. In order to serve as a lead plaintiff, you must met certain legal requirements. Counsel for the plaintiff is the law firm of Cohen, Milstein, Hausfeld & Toll, P.L.L.C. (http://www.cmht.com). Contact: Steven J. Toll (stoll@cmht.com), Matthew J. Ide (mide@cmht.com) or Tamara J. Driscoll (tdriscoll@cmht.com) of Cohen, Milstein, Hausfeld & Toll, P.L.L.C., 999 Third Ave., Suite 3600, Seattle, WA 98104, 888/240-1238 or 206/521-0080. TICKERS: NYSE:CLX COMPUTER LEARNING: Fed Judge Sends Students' Action Back To Phil. State ----------------------------------------------------------------------- A class action against Computer Learning Center must stay in the state courts, a federal judge has ruled, since none of the individual plaintiffs has a claim for more than $ 75,000. In his nine-page opinion in Robinson v. Computer Learning Center Inc., U.S. District Judge Jay C. Waldman remanded the case to the Philadelphia Court of Common Pleas, saying the defense lawyers had misconstrued the legal test for establishing the right to remove a case to federal court. Waldman said the defense argued that removal to federal court was proper if each of the plaintiffs' claims "could conceivably" exceed $ 75,000. Courts, Waldman said, "require a removing defendant to prove to a legal certainty that the plaintiffs' claims are not less than the jurisdictional amount." But Waldman refused to sanction the defense lawyers, saying their notice of removal was "not so implausible, insubstantial or frivolous as to warrant the imposition of attorney's fees and costs." In the suit, a group of students complain that officials in CLC's Philadelphia office breached the school's contracts with thousands of students who have been unable to find employment after graduation. Attorneys Howard K. Trubman and Jeanne P. Wrobleski filed the suit alleging that Fairfax, Va.-based CLC fraudulently and negligently misrepresented the quality of its course offerings to students who paid an average of $ 9,000 each to attend classes. Trubman has estimated the class at 2,000 to 3,000 individuals. The school's catalog, he said, constitutes a contract with the students and implies the school will find a job for every student. According to the suit, the catalog states that "while placement is not guaranteed, the staff works with each graduate until he/she is placed with the CLC marketplace." "That's pretty close to a guarantee," Trubman said. The suit says CLC operates 27 schools nationwide, including several in the Philadelphia area. All of the schools award degrees to adults seeking entry-level information technology employment. CLC's lawyers, Marguerite J. Ayres of Hunt & Ayres and Leslie H. Weisenfelder of Dow Lohnes & Albertson in Washington, removed the case to federal court based on diversity of citizenship. While they agreed that their clients were all legally "diverse" from CLC by virtue of residing in states other than Virginia, Trubman and Wrobleski argued that the case should be remanded since none of the individual plaintiffs could meet the second prong of diversity jurisdiction, which looks to the amount of money sought. Waldman found that the complaint alleged claims for both liquidated and unliquidated damages. But the burden of proving the value of those claims is on the defense, Waldman said. Two of the named plaintiffs filed claims for $ 8,800 in liquidated damages and a third sought $ 16,500. If they won, the awards could be trebled under the Unfair Trade Practices and Consumer Protection Law. But Waldman found that even if the plaintiff with the highest loss were to win, an additional award of more than $ 25,000 in punitive damages and/or attorneys fees would be needed to bring the award over the $ 75,000 mark. "Defendant has made no showing from which the court conscientiously could conclude that such a result is likely or even realistically possible," Waldman wrote.(Copies of the nine-page opinion in Robinson v. Computer Learning Centers, PICS NO. 99-1967, are available from The Legal Intelligencer. (The Legal Intelligencer 10-21-1999) CONCORDE CAREER: Contests Fla. Suit Over Misrepresentation Of Course -------------------------------------------------------------------- Quarterly report of Concorde Career Colleges Inc for the period ended September 30, 1999 filed with the Securities and Exchange Commission as of October 20, 1999: During July 1993, nine former students of the Jacksonville, Florida Campus filed individual lawsuits against the Campus, alleging deceptive trade practices, breach of contract, and fraud and misrepresentation. These suits have since been dismissed by the plaintiffs; however, over time, three other cases were filed seeking similar relief on behalf of a total of 95 plaintiffs. Conversion of one of the three cases to a class action was attempted; however, the plaintiff's motion for class certification was denied on April 18, 1997. On May 19, 1997, the plaintiff appealed the order denying certification of the class. On February 5, 1998, the appellate court issued a per curiam decision without opinion affirming the trial court's denial of class certification. The appellate opinion is now final, and no further appeal is available on the class certification issue. During the appeal, all activity and progress in the other cases was stayed. The plaintiffs have initiated efforts to begin to move the cases forward; however, pleadings are not resolved and none are close to being ready for trial. Several plaintiffs have recently dropped from the case. The total number of plaintiffs is currently 82. The amount of damages sought is not determinable. The Company believes these suits are without merit, and will continue to defend them vigorously. The Company's Campuses are sued from time to time by a student or students who claim to be dissatisfied with the results of their program of study. Typically, the claims allege a breach of contract, deceptive advertising and misrepresentation and the student or students seek reimbursement of tuition. Punitive damages sometimes are also sought. In addition, ED may allege regulatory violations found during routine program reviews. The Company has, and will continue to dispute these findings as appropriate in the normal course of business. In the opinion of the Company's management such pending litigation and disputed findings are not material to the Company's financial condition or its results of operation. FUNDTECH LID: Kirby McInerney Files Securities Suit In New Jersey ----------------------------------------------------------------- The following is an announcement by the law firm of Kirby McInerney & Squire, LLP: A class action lawsuit has been commenced in the United States District Court for the District of New Jersey on behalf of all purchasers of Fundtech Ltd. Inc. (NASDAQ: FNDT) common stock on October 6, 1999, prior to 2:45 p.m. EDT. The action asserts a claim against Fundtech for violations of Section 10(b) of the Securities Exchange Act of 1934 and SEC Rule 10b-5 by reason of material misrepresentations and/or omissions at an analyst conference, prior to the start of trading on October 6, concerning the Company's financial condition. Investors were shocked by Fundtech's admission at 2:46 p.m. EDT that the Company's third quarter earnings and revenues would be significantly below expectations. This "bombshell" caused Fundtech's stock price to plummet to $ 10.5625 per share at the close of trading on October 6, 1999, nearly 50% off the opening price of $ 20. Plaintiff is represented by Kirby McInerney & Squire, LLP. If you are a member of the class described above, you may, not later than sixty days from October 22, 1999, move the Court to serve as lead plaintiff of the class, if you so choose. In order to serve as lead plaintiff, however, you must meet certain legal requirements. If you wish to discuss this action, or have any questions concerning this notice or your rights, please contact: Ira M. Press, Esq. Robert Feinstein, Paralegal KIRBY McINERNEY & SQUIRE, LLP 830 Third Avenue 10th Floor New York, New York 10022 Telephone: (212) 317-2300 or Toll Free (888) 529-4787 E-Mail: kms@kmslaw.com TICKERS: NASDAQ:FNDT FUNDTECH LTD: Lionel Z. Glancy and Dekel-Sabo File NJ Securities Suit --------------------------------------------------------------------- Pursuant to Section 21(D)(A)(3)(a)(i) of the Securities Exchange Act of 1934, Notice is hereby given that a Class Action has been commenced in the United States District Court for the District of New Jersey on behalf of a class consisting of all persons who purchased the common stock of Fundtech, Ltd., Inc. (NASDAQ: FNDT) on Wednesday, October 6, 1999 prior to 2:46 p.m. EDT. On October 6, 1999, Fundtech's stock started trading when the market opened at $ 20 and closed at $ 10.5625, a loss of almost 50% in one day. The Complaint charges Fundtech with violations of federal securities laws. More specifically, this action centers around Fundtech's reckless statements at a Hambrecht & Quist ("H&Q") analysts' conference in Tel Aviv earlier in the day on October 6, 1999 where the Company promoted the stock without disclosing the severe shortfall earnings that it would announce only hours later. During the H&Q conference at the Tel-Aviv Hilton, Fundtech management represented and left investors with the impression that Fundtech is in "good shape". Fundtech never disclosed the existence or true nature of the Company's poor results for 3Q99, which Fundtech management knew of prior to the conference and would announce only hours after the conference. Only at approximately 2:46 p.m. EDT on October 6, 1999 did Fundtech disseminate the Company's poor 3Q99 results to the investing public. In a release, Fundtech stated that "based upon our preliminary assessment of the third quarter, Fundtech expects revenues to be approximately $ 7.0 million, with diluted EPS to be a loss of approximately $ 0.10 per share for the quarter." If you are a member of the Class described above, you may move the Court, not later than 60 days from October 22, 1999, to serve as lead plaintiff, however, you must meet certain legal requirements. Plaintiff is represented by the Law Offices of Lionel Z. Glancy, and by Dekel-Sabo Law Office. Please contact, in the United States, Lionel Z. Glancy, Esquire, or Michael Goldberg, Esquire, of the Law Offices of Lionel Z. Glancy, 1801 Avenue of the Stars, Suite 311, Los Angeles, Calif. 90067, by telephone at 310/201-9150 or toll-free 888/773-9224 or by e-mail to info@glancylaw.com In Israel please contact Jacob Sabo, of Dekel-Sabo Law Office, Twin Towers 1, 33 Jabotinsky Street, Ramat-Gan 52511, P.O. Box 21119, Tel-Aviv, Israel 61210, by telephone at 0119723-613-3310 or by fax at 0119723-613-3321, or by email to sabolaw@inter.net.il TICKERS: NASDAQ:FNDT GST TELECOMMUNICATIONS: Alfred G. Files Securities Suit In Washington --------------------------------------------------------------------- The following is an announcement by the Law Office of Attorney Alfred G. Yates Jr: Attention: GST Telecommunications, Inc. Shareholders YOU ARE HEREBY NOTIFIED that a class action has been commenced in the United States District Court for the Western District of Washington on behalf of all purchases of GST Telecommunications, Inc. (Nasdaq: GSTX) common stock during the period Nov. 4, 1996 through Oct. 22, 1998. The complaint charges GST and certain of its former officers and directors with violations of the federal securities laws. Specifically, plaintiffs have brought claims under sections 10(b) and 20 of the Securities Exchange Act of 1934. The complaint alleges that GST and certain of its former officers and directors participated in a fraudulent scheme by failing to disclose that these officers and directors had improperly diverted more than $200 million in assets belonging to GST to another corporation owned in large part by these former officers and directors. Defendants' scheme enabled them to enrich themselves personally at the expense of GST's shareholders. Before the truth about this misappropriation of GST's assets was disclosed to the market, GST shares traded as high as $16-5/8 per share. After GST was finally forced to publicly acknowledge the extent of the looting of GST's assets -- and the fact that the company had filed a lawsuit against the former officers and directors alleging fraud related to the misappropriation of these assets -- GST's shares traded at less then $7.00 per share. If you are a member of the class, you may, not later than 60 days from October 21, 1999, move the court to serve as a lead plaintiff of the class, if you so choose. In order to serve as a lead plaintiff, however, you must meet certain legal requirements. Plaintiffs are represented by the Law Office of Alfred G. Yates Jr. If you wish to discuss this action, or have any questions concerning this notice or your rights or interests, please contact: Alfred G. Yates Jr, Esq. 519 Allegheny Building 429 Forbes Avenue Pittsburgh, Pennsylvania 15219 Telephone: 800-391-5164 or 412-391-5164 e-mail: yateslaw@aol.com GST TELECOMMUNICATIONS: Dyer Donnelly Files Washington Securities Suit ---------------------------------------------------------------------- A class action has been commenced in the United States District Court for the Western District of Washington on behalf of all purchasers of GST Telecommunications, Inc. common stock during the period November 4, 1996, through October 22, 1998. The complaint charges GST and certain of its former officers and directors with violations of the federal securities laws. Specifically, the plaintiff has brought claims under sections 10(b) and 20 of the Securities Exchange Act of 1934. The complaint alleges that GST and certain of its former officers and directors participated in a fraudulent scheme by failing to disclose that these officers and directors had improperly diverted more than $ 200 million in assets belonging to GST to another corporation owned in large part by these former officers and directors. Defendants' scheme enabled them to enrich themselves personally at the expense of GST's shareholders. Before the truth about this misappropriation of GST's assets was disclosed to the market, GST shares traded as high as $ 16-5/8 per share. After GST was finally forced to publicly acknowledge the extent of the looting of GST's assets and the fact that the company had filed a lawsuit against the former officers and directors alleging fraud related to the misappropriation of these assets -- GST's shares traded at less then $ 7.00 per share. If you are a member of the Class described above, you may, no later than 60 days from October 21, 1999, move the Court to serve as lead plaintiff of the Class, if you so choose. In order to serve as lead plaintiff, however, you must meet certain legal requirements. The plaintiff is represented by Dyer Donnelly. If you wish to discuss this action or have any questions concerning this notice or your rights or interests, please contact plaintiff's counsel, Robert J. Dyer III or Kip B. Shuman at Dyer Donnelly at 303/861-3003 or toll-free at 800/711-6483 or via e-mail at KShuman@DyerDonnelly.com TICKERS: NASDAQ:GSTX HOLOCAUST VICTIMS: Negotiators In Talks For "Legal Peace" Framework ------------------------------------------------------------------- On the eve of talks in Washington, German firms and lawyers for Holocaust victims have devised a framework to address the firms' fears that they will pay billions of dollars to ex-slave laborers only to face new claims, a source close to the talks said. A number of leading German industrial and financial companies have been sued in U.S. courts by attorneys who represent a range of Holocaust victims, from people the Nazis forced to work, to people whose assets were looted while they were imprisoned. Sixteen of those firms have agreed to set up a new fund, initially estimated at $1.7 billion, which aims to settle the U.S. class-action lawsuits in return for an agreement that the German firms will not face any more liabilities in the future. Whether an accord on "legal peace" is reached should help determine if Germany can get the fund up and running by Sept. 1, the deadline that it chose because it is the 60th anniversary of the start of World War II. Representing the German government is the top new negotiator for Holocaust issues, Otto Lambsdorff, 72, a lawyer and former economics minister. The Clinton administration's top negotiator for Holocaust issues is Deputy Treasury Secretary Stuart Eizenstat, a former State Department official. Michael Hausfeld, a Washington-based attorney who has brought a number of Holocaust suits against German firms, explained the process would begin with a court hearing. A comprehensive resolution would then be presented to the court, and potential claimants notified. Next, the U.S. government would file its statement of interest with the court. "That statement would say that in light of all the circumstances this comprehensive resolution represents the most fair and best settlement of these issues," Hausfeld said. If the court agreed, it would dispose of the class actions for the named plaintiffs only. Bilateral agreements between the United States and Germany would require Washington to file its statement in any suit that was brought in future, he said. This agreement on a legal peace framework is as far as negotiators can proceed until they wrap up other issues, he added. "There's nothing more we can do. We can't get to the details until we define more parameters," Hausfeld said. His main criticism is that German industry wants sweeping legal protections from any future suits that might be brought by any number of Holocaust survivors, but is only willing to pay reparations to narrowly limited groups. For example, ex-slave laborers who did not work at least six months would not get any money. (Reuters in New York) MAXIM GROUP: Discloses In SEC Filing Securities Suit Filed In Georgia --------------------------------------------------------------------- Report by the company filed with the Securities and Exchange Commission for the fiscal year ended January 31, 1999: Since the May 18, 1999 announcement that Maxim would be restating financial results for fiscal 1999 and certain of the quarters therein, eleven lawsuits claiming to be class actions have been filed against Maxim and certain of its current and former executive officers and directors. Each of these actions was filed in the U. S. District Court for the Northern District of Georgia. The plaintiffs in these actions purport to represent a class of all persons who purchased or otherwise acquired the common stock of Maxim between August 31, 1998 and May 19, 1999. The Complaints allege that Maxim and certain of its current and former officers and directors violated the federal securities laws by, among other things, issuing materially false and misleading statements regarding Maxim's financial results for fiscal 1999 and for certain quarters therein, which had the effect of artificially inflating the market price of Maxim's common stock. The Complaints allege that by virtue of this conduct the defendants violated Section 10(b) of the Securities Exchange Act of 1934 (the "34 Act") and SEC Rule 10b-5 thereunder. The Complaints also allege that the individual defendants were controlling persons within the meaning of Section 20 of the 1934 Act and are therefore liable to the plaintiffs on that basis as well. The Complaints seek compensatory and punitive damages along with pre-judgment interest, reasonable attorneys fees, expert witness fees and other costs. On August 16, 1999, the defendants moved to dismiss all the complaints on the grounds that they do not plead sufficient facts to set forth a fraud claim. The proposed lead plaintiff, Rudman Partners, LP, has opposed the motion and sought leave to file a consolidated, amended complaint. Maxim and its named officers and directors intend to vigorously defend these claims. These actions have only recently been filed, however, and it is not possible at this time to determine the outcome of these lawsuits or the effect of their resolution on Maxim's financial position or operating results. Management believes that Maxim's defenses have merit; however, there can be no assurance that Maxim will be successful in its defense or that these lawsuits will not have a material adverse effect on Maxim's results of operations for some period or on Maxim's financial position. Maxim has made a claim under its directors and officers liability insurance policy with respect to the litigation. There can be no assurance, however, that this policy will be sufficient to cover all liability in the event of an adverse outcome in the lawsuits. The SEC may convert the informal inquiry into a formal investigation of the matters relating to the restatement. The staff of the SEC has advised Maxim that its inquiry should not be construed as an indication by the SEC or its staff that any violations of law have occurred. On April 6, 1999, Maxim issued a press release announcing revenues of $684.4 million, a net loss of $3.0 million and a loss per diluted share of $0.17 for the year ended January 31, 1999. On May 18, 1999, Maxim announced that, as a result of the year-end financial audit process, Maxim would record certain adjustments to these previously reported financial results for fiscal 1999, as well as for certain of the quarters therein. In response, and after considering the recommendations of Maxim's auditors, the Audit Committee of Maxim's Board of Directors in turn recommended to the Maxim Board that a Special Committee of the Board be appointed to, among other things, initiate a formal inquiry into Maxim's accounting practices. The Special Committee was appointed and so authorized by Maxim's Board and retained the law firm of Smith, Gambrell & Russell, LLP to assist in the investigation, which, in turn, retained the forensic audit group of Arthur Andersen LLP to assist in conducting the review and to provide advice on accounting matters. As a result of a review of accounting records performed under the direction of the Special Committee and completion of the year-end audit process, Maxim announced restated financial results for the fiscal year ended January 31, 1999 and each of the quarters therein on October 11, 1999. For the year ended January 31, 1999, Maxim reported restated revenues of $664.4 million, a net loss of $19.6 million and a loss per diluted share of $1.10. These restated results included changes in recognition and/or timing of certain vendor support funds, certain expense accruals and asset write-downs. No adjustments are necessary for periods prior to fiscal 1999. Maxim has restated its previously issued financial statements for the three quarters ended April 30, 1998, July 31, 1998 and October 31, 1998 by filing amended Quarterly Reports on Form 10-Q/A for the three quarters ended April 30, 1998, July 31, 1998 and October 31, 1998, respectively. Maxim has undertaken steps to improve controls and procedures to ensure the integrity of its financial reporting, and that process will continue under the direction of its new Chief Financial Officer. The Special Committee is currently completing its review of information in anticipation of making a final report to the Board of Directors as soon as practicable. MEDICAL PRODUCTS: Georgia Ct Dismisses Shareholder Suit ------------------------------------------------------- The United States District Court for the Northern District of Georgia yesterday dismissed the consolidated shareholder class action lawsuits filed against Horizon Medical Products, Inc. (Nasdaq: HMPS) The plaintiffs alleged that the prospectus and registration statement used by the Company in connection with the April 1998 initial public offering of the Company's common stock contained material omissions and misstatements. In dismissing the suits, the Court held that the plaintiffs failed to state an actionable claim of material misrepresentation under the federal securities laws. The Court found that the risks of which the plaintiffs complained, those associated with the Company's transition of certain manufacturing operations to its Manchester, Georgia facility, were specifically disclosed by the prospectus. The Court also rejected plaintiffs' claim that the prospectus described certain unfavorable events as mere risks, when in fact those events had already occurred. The Court held that the prospectus contained ample and meaningful cautionary language specifically directed to the substance of the plaintiffs' alleged misstatements. The plaintiffs have thirty days in which to file a notice of appeal. NATIONAL LIFE: Strauss & Troy File Securities Suit In Vermont ------------------------------------------------------------- On October 22, 1999, a class action lawsuit was filed in the United States District Court for the District of Vermont on behalf of all participating policyholders as of November 30, 1998 in the National Life Insurance Company of Vermont. The Complaint alleges that defendant National Life, a mutual insurance company, solely owned by its policyholders, has converted to a stock insurance company, while paying no consideration to compensate policyholders for their ownership interests. The Complaint alleges a violation of federal constitutional rights of impairment of contract, due process of law and taking property without just compensation. The Complaint also alleges that the directors and/or officers will profit from this conversion through the issuance of valuable stock options at the expense of the policyholders, and that such officers and directors actions are in breach of the fiduciary duties that they owe to policyholders. Plaintiffs seek an injunction prohibiting National Life from completing its reorganization into a stock insurance company and also seek damages from National Life's officers and directors for their inadequate disclosures and the breach of fiduciary duties they owe to policyholders. If you wish to discuss this action or have any questions concerning this litigation contact Richard S. Wayne with Strauss & Troy at 800-669-9341, or 513-621-2120, or by e-mail at classactions@strauss-troy.com or Robert Steinberg at 800-543-6862 or 513-621-0267. NICHIEI CO: In Japan Shoko Loan Companies Named In 149 Lawsuits --------------------------------------------------------------- Borrowers and guarantors in 26 prefectures have filed at least 149 lawsuits against Nichiei Co. and Shohkoh Fund and Co., the No. 1 and 2 so-called shoko loan companies for small businesses, a nationwide Yomiuri Shimbun survey revealed. Plaintiffs in most cases are demanding the return of money paid as interest, which was higher than the maximum allowed under the Interest Restriction Law. Others asked courts to cancel their debts. Lawyers throughout the nation have established associations to deal with the extremely high interest rates and ruthless debt collection activities of shoko lenders. Bar associations in 34 prefectures have received a total of 451 complaints about shoko firms, and the Financial Supervisory Agency has given the industry administrative guidance. Shoko loan companies increasingly have been targeting small companies and businesses run by individuals that cannot borrow money from banks. Nichiei posted an annual pretax profit of 63.9 billion yen, its highest ever, as of March this year. Shohkoh Fund's pretax profit as of January this year stood at 41 billion yen--six times that of four years ago. Shoko loan companies extend unsecured loans with interest rates of 30 to 40 percent a year. Borrowers' family members and acquaintances can act as guarantors. The civil courts, however, have been seeing many cases in which shoko firms allegedly have extended further loans without the knowledge of the guarantors or used intimidation tactics to collect outstanding debt payments. Between May and September, a group of 18 business owners in Miyagi, Akita and Yamagata prefectures brought a class action against Nichiei with the Sendai District Court. The plaintiffs claimed the company charged them illegally high interest rates, and demanded refunds from the firm. The number of lawsuits filed against the two companies is largest in Tokyo, at 53, followed by Hokkaido at 17 and Miyagi, Fukushima and Hiroshima prefectures at nine each. Plaintiffs in 50 lawsuits--42 against Nichiei and eight against Shohkoh Fund--are demanding that the companies refund interest paid in excess of the legal limit. They are seeking a total of 331.07 million yen. In 70 lawsuits, plaintiffs are asking the courts to cancel their debts, claiming their payments have already covered the principal and the maximum legal amount payable in interest. In eight suits, plaintiffs are seeking compensation for being subjected to excessive debt collection methods. The total amount of demanded consolation money is 176.61 million yen. Norio Chihara, chief of the general affairs department of Nichiei, refused to comment on the increase in the number of suits, but said, "We are considering improvements, such as notifying guarantors of each additional loan." Toshihito Obi, vice chief of operations at Shohkoh Fund's management department, said: "Though we have not profited unfairly, there may have been cases in which insufficient explanations were given at the time of signing contracts. We will do our best to improve what needs to be improved." The Interest Restriction Law was enacted in 1954 as part of the Civil Law. It limits interest rates to between 15 and 20 percent, but does not specify a penalty for violation. Many shoko loan companies charge interest at rates higher than the maximum limit, and lower than the 40 percent stipulated in the Subscription Law, which does have a penalty clause. Shoko loans are short-term loans extended using promissory notes as collateral. Some companies impose actual interest rates of between 30 and 39 percent, including processing fees. (The Daily Yomiuri 10-22-1999) NORTHEAST UTILITIES: Shareholders Sue In NY Over Acquisition By Edison ---------------------------------------------------------------------- On October 13, 1999, a Northeast Utilities System shareholder class action complaint was filed in New York Supreme Court for the County of New York. The complaint names as defendants NU and ten individual Trustees of NU. The complaint alleges that the defendant Trustees of NU breached their duties to NU's shareholders by agreeing to be acquired by Consolidated Edison Inc. without fully considering other possible offers for NU. The plaintiffs seek equitable relief, including an order that NU consider other offers for NU. The plaintiffs also seek to recover costs and attorneys' fees incurred in this action. NU is presently reviewing the complaint, and intends to vigorously oppose it. REYNOLDS METALS: Reports On Dismissal Of Aluminium Antitrust Suit In CA ----------------------------------------------------------------------- The following is reported by Reynolds Metals Co. in its annual report for year ended December 31, 1998 filed with the Securities and Exchange Commission as of October 20, 1999: A private antitrust lawsuit styled Hammons v. Alcan Aluminum Corp. et al. was filed in the Superior Court of California for the County of Los Angeles on March 5, 1996 against the Registrant and other aluminum producers. The lawsuit alleged a conspiracy to reduce worldwide and U.S. aluminum production. Estimated damages of approximately $26 billion were sought in the lawsuit, which claimed class action status. Defendants removed the case to the U.S. District Court for the Central District of California (the "District Court"). The District Court granted summary judgment for defendants. On December 11, 1997, the U.S. Court of Appeals for the Ninth Circuit sustained the District Court's dismissal of the case. The plaintiff filed a motion seeking review of the decision by all the judges of the Ninth Circuit. The motion was denied on May 14, 1998. On August 12, 1998, the plaintiff filed a petition for a writ of certiorari in the U.S. Supreme Court. On October 19, 1998, the Supreme Court denied the petition and declined to review the case. On November 10, 1998, the plaintiff requested a rehearing but the Supreme Court denied that request on December 7, 1998. ST. JOHN KNITS: Milberg Weiss Files Securities Suit, Class Certified -------------------------------------------------------------------- Milberg Weiss announced that on October 20, 1999, the Honorable William F. McDonald of the Orange County Superior Court certified a class action on behalf of all common stockholders of St. John Knits, Inc. ("SJK"), who were harmed by the conduct of SJK, its CEO and Chairman Robert Gray, and other SJK officers and directors, in connection with their undertaking of a management-led buyout of SJK at the allegedly unfair and inadequate price of $ 30 per share earlier in 1999. On October 20th, the Court also appointed six Class representatives who had voted against the management-led buyout and/or abstained from voting. These six Class representatives are the plaintiffs who initially filed this class action for breach of fiduciary duty, self-dealing and negligence on December 9, 1998, when the management-led buyout was first announced at $ 28 per share. Milberg Weiss seeks information from Class members who voted in favor of the management-led buyout, and who are interested in serving as Class representatives to monitor the litigation and represent the interests of those stockholders who voted in favor of the transaction, to help them get a fair price for their shares. If you are a former SJK stockholder who voted in favor of the management-led buyout at $ 30 per share, please contact plaintiffs' counsel, William S. Lerach or Darren Robbins of Milberg Weiss at 800/449-4900 or via e-mail at wsl@mwbhl.com ULTRALIFE BATTERIES: NJ Ct Dismissed On Sept 28 Securities Suit Re IPO ---------------------------------------------------------------------- By Opinion and Order dated September 28, 1999, the United States District Court for the District of New Jersey dismissed a putative class action filed in August 1998 against the Company, certain of its officers and directors, and the underwriters of the Company's June 1998 public offering of securities. In the Action, captioned Castlerock Management, Ltd., et al. V. Ultralife Batteries, Inc., et al., No. 98-3619 (MTB), plaintiffs, who claimed to have purchased shares of the Company's common stock in connection with the 1998 Offering, asserted claims for unspecified damages under the federal securities laws based upon allegations that the Company's 1998 Offering documents misrepresented or failed to disclose material facts regarding the Company's 9-volt lithium battery production capabilities. The Company and its co-defendants all moved to dismiss the Action during the Summer of 1999 for failure to state a claim for relief as a matter of law. In its September 28, 1999 Order, the Court granted the Company's motion and dismissed plaintiffs' Amended Complaint without prejudice, and granted plaintiffs leave to amend their Amended Complaint within thirty days of the date of the Order. YWCA: Japanese-Americans' Suit Over CA Property Stir Memories Of Racism ----------------------------------------------------------------------- Japanese-Americans in San Francisco accuse YWCA of exploiting Alien Land Law. The case of Soko Bukai v. YWCA of San Francisco is part detective story and part history lesson, wrapped in an emotional court fight that is dredging up 80-year-old memories of institutional racism against Japanese immigrants in California. At its simplest, the case asks: Who owns the two-story, wood-and-stucco building at 1830 Sutter St., which used to be the Japanese YWCA? Is it the Japanese-Americans living in the neighborhood, or the city YWCA, which officially holds title to the structure and tried to sell it? Some 700 members of the Japanese-American community in San Francisco, represented by a federation of Christian churches known as the Soko Bukai, are accusing the mainstream YWCA of trying to make money from turn-of-the-century discrimination. At that time, the 1913 Alien Land Law, in effect, barred Japanese immigrants from owning land in the United States. The community claims that the San Francisco Y agreed to hold the Sutter Street property in trust for decades for the Japanese community. Therefore, they argue, an attempt by the Y to sell the property in 1996 is a breach of that trust. "I think it's all about money," says Donald Tamaki, of San Francisco's Minami, Lew & Tamaki L.L.P., one of the four lead plaintiffs' attorneys working pro bono. "At best, it amounts to ignorance of the past. At worst, it's the [YWCA's] board trying to benefit from racist laws long dead and gone." Mr. Tamaki's group filed the case in September 1997. Both the San Francisco Board of Supervisors and the California Legislature are supporting the Japanese-American community. In a resolution in April, the Legislature said that the state's policy is to "eradicate any vestiges of the racism" of the Alien Land Law and that the YWCA's "refusal to honor the trust agreement...allows the YWCA to profit from the racist" law. YWCA officials and their attorneys unequivocally say that these allegations are false. There never was a trust, they argue, and insinuations of racism contradict the very mission of the Y, which over the years has dedicated itself to helping girls and women of all ethnic groups. "At bottom, factual allegations and legal theories add up to nothing more than imaginative pleadings," the YWCA said in a failed motion for summary judgment. "And rarely have accusations of racism been leveled with less thought or more unintended irony." Early 1900s San Francisco In 1912, the Soko Bukai established the Japanese YWCA. In 1920, the group decided that its facility was inadequate and that it needed a new one. At the time, the mainstream Y was segregated and would not admit Asians. As was common practice at the time, says Yuji Ichioka, a history professor at the UCLA and a consultant for the plaintiffs, the Japanese community turned to an individual or organization that legally could own property -- in this case, the San Francisco YWCA, the parent Y in the community, which was already helping the Japanese and other ethnic groups establish Y programs. What's undisputed is that the Sutter Street property, in the heart of the city's Japantown, was purchased for a Japanese YWCA. In 1932, that structure was torn down to make way for a new Japanese Y, which is the building currently on the site. The San Francisco Y has always held title to this property. If there was a trust arrangement between the Soko Bukai and the San Francisco YWCA, apparently it was never formalized in writing, or at least no such document can be found. Now fast-forward several decades. Memories have long faded, the founders of the Japanese Y are no longer living and the Sutter Street building is called the Western Addition YWCA. It houses -- as it has mostly since 1942, when Japanese-Americans were sent to internment camps -- social service programs serving Japanese, blacks and other minorities in the area. Throughout the postwar period, the San Francisco Y has continued to act as landlord for the building. But in April 1996, the financially strapped Y said that it had to sell the property. The asking price was $ 1.65 million, with community groups, including Japanese-Americans, given the first shot at buying it. "But we could not afford it," said Karen Kai, one of the plaintiffs' pro bono lawyers. "The price was not realistic." The defendants contend that the building officially has not been the Japanese YWCA branch since 1946. But the plaintiffs say that doesn't matter because it has continued to provide the Japanese-American community with services, including the day care center now operating out of the facility. Perhaps more important, the building has sentimental value to the Soko Bukai and its members. According to community members, the property represents the determination and success of first generation Japanese-American women during their struggle against racism and repression. There is also a strong belief that the Japanese-American community 70 years ago paid for the building, although that is in dispute. "Gee, not a week goes by that someone doesn't ask me what's going on with the Y building," says Rev. Gary Barbaree, senior pastor at Pine United Methodist Church and vice president of the Soko Bukai. But sentiment will get you only so far in real estate or court. The Japanese-American community offered to buy the property for $ 1.25 million, an offer the San Francisco Y rejected. The plaintiffs' lawyers called this offer a "desperate move" by the community to retain possession of the building. However, it was inconsistent with the community's claim that it owns the building. A 'smoking gun'? After looking through decades of materials, researchers discovered what plaintiffs' lawyers have called their "smoking gun": typed minutes from old YWCA board meetings which plaintiffs claim conclusively show that the San Francisco Y agreed to hold the Sutter Street property in trust for the Soko Bukai. In fact, in court briefs they claim that this approval was arranged during at least five different board meetings in the 1920s and 1930s. This process, they say, began on May 28, 1920, when a representative of the Japanese YWCA proposed that the San Francisco Y buy property to be "held in trust for the Japanese YWCA." At a Feb. 4, 1921, meeting, the San Francisco Y's board appears to approve the purchase of a property on Pine Street to be held "in trust for the exclusive use of the Japanese YWCA." However, the plaintiffs point to the minutes of a June 10, 1921, meeting, when the Sutter Street property was bought instead, as evidence that the trust language carried over: "The same recommendation that was made in regard to purchase of the property on Pine Street be made to apply to the purchase of the property on Sutter Street for this association to carry on its Japanese work." Even after the new Japanese YWCA was constructed at Sutter Street, the plaintiffs are confident, the trust still held. The San Francisco Y approved a resolution on March 23, 1934, that states, in part, "that the building continue to be used for the purposes of the Japanese YWCA and if at some future time, any change in the use of the building should be considered, such change would be submitted to the Japanese Board of Directors and its approval be secured before the change should be considered to be in effect." Says plaintiffs' lawyer Robert Rusky, of Hanson, Bridget, Marcus, Vlahos & Rudy and co-counsel Ms. Kai's husband, "They did the right thing back then -- helping a minority community evade a racist law. The present board is abandoning its own history." Last November, Judge Laurence Kay denied the defense motion for summary judgment and ruled that the trust issue is a triable issue of fact. The counsel for the San Francisco YWCA, James Nielsen, of the San Francisco office of Richmond, Va.'s Wright, Robinson, Osthimer & Tatum, says winning that motion is a far cry from winning at trial, which he is confident his client will do if the case gets that far. Contrary to what the plaintiffs contend, he says, there's no evidence a trust was established and the Y has owned the Sutter Street property since it was bought in 1921. Among the reasons, he says, is that the use of the word "trust" by a nonlawyer does not establish a trust; the actual word "trust" was never used in connection with the Sutter Street property; and under the YWCA's parliamentary rules, the motions and resolutions referred to by the plaintiffs are not legally binding. In addition, Mr. Nielsen adds, the so-called Japanese Y was never a separate entity from the San Francisco Y, and the plaintiffs are taking facts -- the minutes from the board meetings -- out of context to make it appear otherwise. "The transaction here was virtually identical to other transactions for other Y property," he says, referring to the San Francisco YWCA's role in assisting and raising money for programs and branches to serve other communities, such as the Chinese and the Russians. In the 1920s, says Carol Newkirk, executive director of the YWCAs of San Francisco and Marin County, the San Francisco organization oversaw 11 buildings, serving eight or more ethnic groups, in its efforts to provide housing and education for girls and women of that era. The YWCA continues to do that today, says Ms. Newkirk, but by focusing on programs outside the Y buildings. She says that the Y wants to sell the Sutter Street property because it is expensive to maintain and because the money could go into other programs. While clearly troubled by the suit and the animosity caused by the three-year dispute, Ms. Newkirk and Michele Stratton, a San Francisco Y board member, say that they are ready to put it behind them. "We are looking for a solution that is good for the Japanese-American community and good for the YWCA...because we want to regain that relationship we had with the Japanese-American community for so long," says Ms. Stratton. She says that the Y has spoken with a potential mediator and with representatives of the Japanese-American community about resuming mediation. Mr. Nielsen says that the property is off the market pending the outcome of the litigation. A spokeswoman for the YWCA of the U.S.A. -- the national Y organization, which is not a party to the suit -- says it is "saddened by the conflict" and hopes "the situation is resolved as soon as possible to the benefit of all parties." The plaintiffs' lawyers say that a settlement is possible, although Mr. Rusky adds, "It's pretty hard to talk to an organization that is in such denial." He, Ms. Kai and Mr. Tanaki have been joined on the pro bono team by Michael Begert, a partner, and two associates at San Francisco's McCutchen, Doyle, Brown & Enersen L.L.P. Mr. Begert, a litigator who is board president of the Asian Law Caucus in San Francisco, joined the case before the summary judgment motion was argued, to lend experience and big-firm litigation support. The plaintiffs' legal team is scheduled to begin deposing San Francisco Y officials on Oct. 5. Its ultimate goal: the building's transfer back to the Japanese-American community. The plaintiffs' lawyers hold out some hope that the case can be settled. For that to happen, Mr. Begert suggests, "there has to be some healing between the communities." (The National Law Journal 10-4-1999) ********* 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 and Peter A. Chapman, editors. Copyright 1999. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $575 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Christopher Beard at 301/951-6400. * * * End of Transmission * * *