CAR_Public/001215.MBX              C L A S S   A C T I O N   R E P O R T E R

             Friday, December 15, 2000, Vol. 2, No. 243

                             Headlines

AA 261: Hearings on Alaska Air Crash Give Glimpse into Final 32 Seconds
ANIMAL VITAMIN: Farmer Sues Manufacturers Alleging Collusion
AMPLIDYNE INC: NJ Ct Denies Motion to Dismiss Securities Lawsuit
AOL: Wins FTC's Blessing to Antitrust Settlement & Time Warner Purchase
BARTELL DRUG: Women Win EEOC Ruling for Contraceptive Coverage

CA DHS: Foley & Lardner Secures Settlement in California Hospital Suit
DEUTSCHE TELEKOM: Milberg Weiss Announces Securities Suit in New York
GENERAL ELECTRIC: Offers Free Repairs on Dishwashers Posing Fire Hazards
HMOs: Judge Rules That Doctors Must Arbitrate Financial Disputes
JWGenesis FINANCIAL: Shareholders Lose Bid To Delay Vote In Palm Beach

N.Y. POLICE: Legal Setbacks Mount But City Officials See No Pattern
NYC: Summary Judgment Favors Police, Officials in Suit by Church
PAYDAY LENDERS: Fed Judge OKs Suit Accusing McKenzie Check of High Rates
RAZORFISH, INC: Milberg Weiss Announces Securities Suit Filed in N.Y.
SUNSHINE MINING: 10th Cir Sees ERISA Plan in Language in Incentive Offer

U OF MICHIGAN: Federal Judge Upholds Admissions Policy of Weighing Race
UPS: Judge Says One-Eyed Drivers Cannot Be Barree Automatically
VERMONT: Industry's Lawsuit Says Drug Cost Is of National Importance
WENDT BRISTOL: Settle with Stock Holders over Election of Directors
WENDT BRISTOL: Suit against Maintenance Vendor Calls for $20M Settlement

                            *********

AA 261: Hearings on Alaska Air Crash Give Glimpse into Final 32 Seconds
-----------------------------------------------------------------------
The pilots of Alaska Airlines' Flight 261 already had come back from the
brink of one nose dive when the fatal second descent began plunging 18,000
feet in 75 seconds into the Pacific Ocean.

``Mayday,'' co-pilot William Tansky said.

Three seconds before impact, pilot Ted Thompson gave his final order to
Tansky: ``Speedbrakes.''

``Got it,'' was the reply.

``Ah, here we go.''

With that, the airliner bound from Mexico to San Francisco slammed into the
water near Los Angeles, killed all 88 people aboard on Jan. 31.

Government investigators on Wednesday gave the public their first glimpse
into the final 32 minutes inside the cockpit. At the start of a four-day
hearing to collect information on the crash, the National Transportation
Safety Board released a series of reports including a transcript of the
cockpit voice recorder showing the pilots struggled vainly to the end. The
actual sound tape from such recorders is never made public.

The first nose dive that afternoon lasted two minutes, dropping the plane
from 31,000 feet down to 24,500 feet. Within six seconds of the final
plunge, the plane had reached an 80-degree pitch downward. Inverted, it
also rolled. Thompson said they should try to ``push, push, push. Push the
blue side up.'' He wanted his altitude indicator to show blue at the top,
with the plane right side up, instead of twisting and diving into the sky.
They struggled with the left rudder. Then the right rudder.

``Are we flyin'?'' Thompson asked. ``Gotta get it over again. At least
upside down we're flyin'.''

Then came Thompson's final order to Tansky about the brakes.

``The pilots never quit flying the airplane. Right to the end, they
remained calm and continued to work the problem,'' Alaska Airlines
spokesman Kevin Finan said.

But the transcript also shows the pilots initially came under pressure from
an Alaska Airlines dispatcher in Seattle not to divert the Puerto
Vallarta-San Francisco flight to Los Angeles.

``Just drives me nuts,'' Thompson complained to Tansky at one point.

The NTSB will not determine the cause of the accident until it completes
the public hearing and studies the investigative data and expert testimony.
Much of the first day focused on the possibility that Boeing Co.-approved
grease might have added to problems with a jackscrew that controls the
DC-9/MD-80 horizontal stabilizer system in the aircraft's tail.

Board member John Hammerschmidt, overseeing the hearing, sought to comfort
the families of some crash victims in the audience. ``I want to assure them
that the safety board will pursue every lead toward an ultimate solution,''
he said. During breaks, family members hugged and chatted among themselves.
Some were accompanied by attorneys who have filed suits seeking millions of
dollars in damages.

Real-estate agent Larry Nelson, 35, of Lynnwood, Wash., recounted losing
his mother, Charlene Larsen Sipe, 54, who lived nearby. Nelson said he had
told his twice-divorced mother, whose boyfriend suggested the Mexican trip
because he planned to propose to her, not to worry about calling him until
she returned. ``I regret that. I wish I could talk to my mom one more
time,'' he said, choking up. (AP, December 13, 2000)


ANIMAL VITAMIN: Farmer Sues Manufacturers Alleging Collusion
------------------------------------------------------------
A Dodge County farmer filed suit this week in Dane County Circuit Court
against three manufacturers of an animal nutrient, alleging that the firms
colluded to inflate the price of the substance.

The class-action lawsuit, filed Monday by rural Waupun hog farmer Pat Kluz,
mirrors similar lawsuits filed against vitamin manufacturers that were
recently settled in federal court.

The Dane County action involves the amino acid methionine, which is
manufactured commercially for use as a supplement feed for swine and
poultry and as a dietary supplement for dairy cattle, according to the
lawsuit.

The defendants, French-owned Rhone-Poulanc, Japanese-owned Novus and
German-owned Degussa, produce 88 percent of the methionine sold worldwide.
Each own manufacturing plants in the U.S.

According to the lawsuit, prices were stagnant between 1970 and 1985. But
from 1985 to 1991, the price nearly doubled because the three firms
colluded to suppress competition by artificially raising, fixing and
maintaining prices of methionine in Wisconsin and elsewhere, the lawsuit
states.

The lawsuit is similar to others pending or settled in state and federal
courts. In October, six European and Japanese pharmaceutical firms agreed
to pay U.S. states, including Wisconsin, $ 255 million for fixing the price
of vitamin pre-mixes containing vitamins A, B2, B5, C, E and beta cerotene
between 1990 and 1999.

Some food producers and other direct purchasers of the vitamin pre-mix
agreed to a $ 242 million class-action settlement in federal court in
March. (The Wisconsin State Journal, December 14, 2000)


AMPLIDYNE INC: NJ Ct Denies Motion to Dismiss Securities Lawsuit
----------------------------------------------------------------
In the fall of 1999, the Company was served with several class action
complaints on behalf of all purchasers of the Company's common stock and
warrants between September 9 and 14, 1999. By order of the District Court
for the District of New Jersey, the actions were consolidated and lead
plaintiffs were appointed. In March 2000, the Company was served with a
consolidated and amended class action complaint on behalf of all purchasers
of the Company's common stock and warrants between September 9 and 17,
1999. The complaint alleges that the Company and certain others violated
the Federal securities laws by, among other things, the issuance of a press
release on September 9, 1999. Recently, the Company's motion to dismiss the
consolidated and amended complaint was denied. The Company believes this
complaint has no merit and will vigorously contest it.


AOL: Wins FTC's Blessing to Antitrust Settlement & Time Warner Purchase
-----------------------------------------------------------------------
America Online (AOL.N) won the blessing of U.S. antitrust authorities on
Thursday to buy Time Warner (TWX.N) in a $112.5 billion deal that will
marry a new-economy Internet giant with a venerable old firm to create the
world's biggest media company.

Under the watchful eye of a federal monitor, the world's largest Internet
service provider will join up with Time Warner's movies, news, magazines
and television programming, in a huge bet that combining new and old media
will pay off.

The Federal Trade Commission voted 5-0 to approve the settlement -- lasting
five years -- with a raft of conditions opening up Time Warner's cable
lines to competition and ensuring consumers have a wide choice of content.

Eleven months after the biggest merger in U.S. history was announced, it
still faces the lower hurdle of gaining approval from the Federal
Communications Commission. This could come by year end with the deal
closing shortly thereafter.

Time Warner has the second-largest collection of cable systems in the
United States with 20 million households, behind AT&T Corp. (T.N). AOL has
close to 29 million subscribers, including 2.8 million CompuServe
subscribers.

The breadth of the merger raised fears among regulators and competitors
that AOL and Time Warner together would dominate the market for consumer
high-speed Internet service via cable and a vast array of news and
entertainment programming.

``In the broad sense, our concern was that the merger of these two powerful
companies would deny to competitors access to this amazing new broadband
technology,'' FTC Chairman Robert Pitofsky said.

``This order is intended to ensure that this new medium, characterized by
openness, diversity and freedom, will not be closed down as a result of
this merger,'' he said.

Approval came after AOL and Time Warner made a last-minute offer to appease
some FTC commissioners, who were ready to go to court to block the deal.

``This agreement advances the commitment the companies made last winter to
offer consumers a choice among multiple ISPs (Internet service providers)
on AOL Time Warner cable systems,'' the companies said in a joint
statement.

Shares of Dulles, Va.-based AOL closed $1.55 higher at $50, valuing Time
Warner at $112.5 billion under the terms of the deal. Shares of New
York-based Time Warner rose $1.90 to $74.50.

                      Conditions On Combination

The new AOL Time Warner must open its cable system to competing Internet
service providers, including one ISP before AOL launches its own cable
service, and at least two others within 90 days after that, according to
the agreement with the FTC.

Time Warner reached a deal last month with EarthLink Inc. (ELNK.O), the
nation's No. 2 ISP, to offer high-speed Internet service in the second half
of 2001, meaning AOL could not begin offering its own high-speed service on
Time Warner's pipeline until then.

If Time Warner fails to enter into agreements with rival Internet service
providers in the required time period, the FTC may appoint a trustee with
authority to agree on deals, the agency said.

``It's a win for consumers because they will finally get choice in Internet
providers that they can get over cable,'' said Dave Baker, a lawyer for
Atlanta-based EarthLink.

Under the settlement, that agreement becomes a benchmark for other
unaffiliated ISPs to negotiate agreements to access Time Warner's cable
system.

In Time Warner's smaller cable divisions, the cable operator will have to
sign agreements with at least three nonaffiliated ISPs within 90 days after
AOL's service becomes available, the agreement says.

The cable company can only refuse to carry more ISPs across the pipeline
because of capacity constraints and other technical limitations but cannot
refuse access to another ISP solely because it would hurt AOL Time Warner's
subscribers, the FTC said.

The agreement also prohibits the combined company, which will be called AOL
Time Warner, from interfering with content from unaffiliated companies that
passes through its system, a top concern raised by content providers like
The Walt Disney Co. (DIS.N).

AOL Time Warner would also be barred from interfering with a consumer's use
of interactive television (ITV) services provided by nonaffiliated
providers, including interactive signals, triggers, or other content the
merging companies agreed to carry. Complaints must be reported to the FTC.

The FTC was concerned that AOL might abandon its DSL service in regions
where it acquires Time Warner cable, so the agreement requires AOL to
continue to support DSL service and advertising at the same level in areas
where it has cable systems and in areas where it does not.

                       Major Fight From Rivals

Almost as soon as the AOL-Time Warner combination was announced in January,
rivals and consumer groups voiced fears the new company could push aside
competitors and they continued to drive home those concerns as late as this
week.

But after negotiations that Pitofsky said went down to the deadline, the
agreement that emerged satisfied some of the deal's severest critics.

``We think this is a huge step so that the Internet...will remain open and
diverse. It's a fundamental change from what Time Warner and AOL wanted to
do and what the cable industry hopes to do,'' said Jeff Chester, of the
Center for Media Education.

It appears there is a good mechanism for outside parties to resolve
disputes with the new company, Chester said.

The new company will marry Time Warner's Time, CNN, Warner Bros., People,
HBO, Sports Illustrated, Cartoon Network, Warner Music Group, Fortune,
Entertainment Weekly, and Looney Tunes with America Online's AOL,
CompuServe, Netscape, ICQ instant messaging, Digital City, and AOL
Moviefone.

AOL shareholders will hold 55 percent of the merged company, while Time
Warner shareholders will hold 45 percent once the deal closes. (Reuters)


BARTELL DRUG: Women Win EEOC Ruling for Contraceptive Coverage
--------------------------------------------------------------
It's against federal law for employers to exclude contraceptives from their
health insurance plans when they cover other preventive treatments, the
Equal Employment Opportunity Commission said.

The decision directly affects only two women who complained to the
commission, but it has implications for millions of others whose health
insurance plans exclude birth control pills, diaphragms and other forms of
prescription contraceptives.

"Our hope is that we announce a principle and employers want to comply with
the law," said Ellen J. Vargyas, an EEOC attorney who worked on the case.

Women's advocates have pushed for this coverage, but the EEOC ruling is the
first by a federal agency or court on whether it should be required by law.
In July, a female pharmacist filed suit in federal court in Seattle,
accusing her employer, Bartell Drug Co., of sexual discrimination for not
including contraceptives in its health care plan.

Jennifer Erickson, 26, was seeking class-action status for her lawsuit,
described by her lawyers and others as the first of its kind in the nation.

The debate over contraceptive coverage burst into public when the male
impotence drug Viagra came onto the market in April 1998. Women's groups
argued that it was unfair that many insurance companies covered Viagra and
did not cover birth control since both allow for sexual activity, albeit in
different ways.

Specifically, the EEOC said that excluding contraceptives is a violation of
the 1978 Pregnancy Discrimination Act, which requires equal treatment of
women " affected by pregnancy, childbirth or related medical conditions,"
in all aspects of employment, including fringe benefits. The law also
protects women against discrimination because they have the ability to
become pregnant, not just because they are already pregnant, the agency
noted.

The commission also found that excluding contraceptives also amounts to sex
discrimination because these prescriptions are available only for women.

Insurance companies argue that they are willing to cover contraceptives if
employers are willing to pay for it. Some employers do just that; others
say it's too expensive. "Employers and consumers are struggling in many
cases to be able to afford coverage," said Richard Coorsh, spokesman for
the Health Insurance Association of America.

But the EEOC rejected arguments based on cost.

In the Pregnancy Discrimination Act, Congress specified that cost is not a
defense, Vargyas said. She added that studies have found the cost is
actually minimal. "You can buy years and years of contraceptives for the
cost of one unintended pregnancy."

The health plan and employers involved in these cases - who were not
identified - also argued that their plans only covered "abnormal
conditions" and that it was not sex discrimination. The commission rejected
both of those arguments.

The ruling is specific to the two cases presented to the commission and
stops short of policy guidance that would apply to all employers. These
particular health plans must cover contraceptives, the ruling said, because
they already cover a wide range of preventive services, including
vaccinations, drugs to control blood pressure, weight loss medication and
preventive dental care. They also cover surgical sterilizations. Another
health plan - one that doesn't cover these services - might not be in
violation of the law.

But most health plans cover similar services, and the decision announced
Wednesday could be used by other women who seek coverage from their
employers. It could also provide ammunition in a lawsuit.

Congress has considered legislation explicitly requiring health plans to
cover contraceptives, but it hasn't gone anywhere.

A handful of states require insurers that cover other prescriptions to
include contraceptives, but those laws only apply to state-regulated
insurance plans. The states include Maryland, Vermont, Nevada, Maine,
Georgia and Connecticut.

A survey in 1994 by the Alan Guttmacher Institute, a New York-based
research group that focuses on reproductive issues, found that about half
of large group insurance plans cover no contraception and only a third
cover birth control pills. (The Associated Press State & Local Wire,
December 14, 2000)


CA DHS: Foley & Lardner Secures Settlement in California Hospital Suit
----------------------------------------------------------------------
Foley & Lardner represented the county hospitals in eight counties and the
class action suit that covered all of the California hospitals. The
settlement also included a third suit brought separately by the California
Hospital Association.

Under terms of the settlement, the State Department of Health Services will
pay $350 million to California hospitals, which have been arguing for years
that Medi-Cal's reimbursement rates are too low. In addition, under the
settlement, state hospitals will also receive a 30 percent increase in
reimbursements from Medi-Cal.

The 30% rate increase will take effect on July 1 and stand for one year.
Rates will then be increased 3.3% annually for the next three years. After
that, a new mechanism for determining fair rates will be established. The
increase will cover emergency room care, clinic visits and laboratory
tests.

The action began in 1990. The hospitals won the first round in the initial
case when a U.S. district judge ruled in 1992 that Medi-Cal's method of
negotiating reimbursement for outpatient care violated federal guidelines.
Then, in 1994, the same judge ruled that the Medi-Cal did indeed have a
fair system. In January 1997, however, the U.S. Court of Appeals in San
Francisco reversed the judge's ruling, finding that the state's rates have
"to bear some reasonable relationship" to a hospital's costs.

Contact: Robert C. Leventhal, 310-975-7734, or Robert A. Klein,
310-975-7708, both of Foley & Lardner


DEUTSCHE TELEKOM: Milberg Weiss Announces Securities Suit in New York
---------------------------------------------------------------------
The law firm of Milberg Weiss Bershad Hynes & Lerach LLP announces that a
class action lawsuit was filed on December 13, 2000 on behalf of persons
and entities who acquired Ordinary Shares of Deutsche Telekom AG (NYSE:DT)
stock, in the form of shares of American Depository Shares ("ADSs"),
pursuant to a Registration Statement filed with the SEC on or about May 22,
2000, and pursuant to a Prospectus dated June 17, 2000, or who acquired
ADSs in the aftermarket.

A copy of the complaint filed in this action is available from the Court,
or can be viewed on Milberg Weiss' website at:
http://www.milberg.com/deutsche/

The action, numbered, 00 CV 9475, is pending in the United States District
Court, Southern District of New York, located at 500 Pearl Street, New
York, NY, against defendants Deutsche Telekom AG, Kreditanstalt fur
Wiederaufbau ("KfW"), Deutsche Bank AG (Deutsche Bank"), Deutsche Bank
Alex. Brown ("Alex. Brown"), Dresdner Kleinwort Benson ("Kleinwort
Benson"), Dresdner Kleinwort Benson North America LLC ("Kleinwort Benson
North America"), Goldman Sachs & Co. ("Goldman Sachs") and Ron Sommer. The
Honorable Sidney H. Stein is the Judge presiding over the case.

The action alleges violations of Sections 11, 12(a)(2) and 15 of the
Securities Act of 1933 and alleges that the Registration and Prospectus
contained material misrepresentations and/or omissions. Defendants were
issuers of, sellers of or underwriters of the sale of ADSs sold pursuant to
the Registration and Prospectus.

The complaint alleges that the Registration and Prospectus were materially
false and/or misleading because they failed to disclose material facts that
were required to be disclosed. These material facts were, among others that
(a) by the effective date of the offering on June 17, 2000, the Company was
in the very advanced stages of merger negotiations with VoiceStream, a
telecommunications start up company with just 2.3 million subscribers and
(b) during the year 2000, up until the effective date of the stock
offering, Deutsche Telekom's profits had been significantly negatively
impacted by increasing costs incurred in competing for mobile phone
customers. The complaint alleges that on or about July 24, 2000, Deutsche
Telekom publicly announced its planned $50.7 billion takeover of
Voicestream. On news of the announcement, the Company's shares declined
almost seven points to $44 3/4 per share. On July 28, 2000, Deutsche
Telekom announced a 26 percent fall in profits for the first half of the
year and attributed the decline, in part, to the cost of competing for
mobile phone customers.

Contact: Milberg Weiss Bershad Hynes & Lerach LLP, New York Steven G.
Schulman or Samuel H. Rudman, 800/320-5081 deutschecase@milbergNY.com
http://www.milberg.com


GENERAL ELECTRIC: Offers Free Repairs on Dishwashers Posing Fire Hazards
------------------------------------------------------------------------
Reversing a 1999 recall decision that generated criticism and lawsuits,
General Electric Co. decided to begin offering free repairs on Thursday
December 14 to consumers who own one of 3.1 million dishwashers, made
between 1983 and 1989, that are considered fire hazards.

A GE spokesman said the company changed course after Consumer Product
Safety Commission officials, who will make the announcement, asked them to
do so.

Up to now, GE had refused to repair a faulty heating switch for certain GE
and Hotpoint models. The switch has caused no injuries but has been
implicated in about 90 fires, including 10 in the year since the recall was
announced. Instead GE offered rebates ranging from $ 25 to $ 125, with
higher amounts for consumers who bought new GE dishwashers.

That rebate offer was attacked as unfair in several class-action lawsuits
that accused GE of trying to turn a recall of a dangerous product into a
marketing campaign for new dishwashers.

New York Attorney General Eliot Spitzer also sued, saying the company
deceived consumers, getting them to buy new dishwashers by falsely saying
the old ones couldn't be repaired. At the same time, GE offered free
repairs to commercial customers, such as landlords and hotels.

GE officials said the repairs were offered to commercial customers because
they had qualified technicians on staff who could rewire the faulty switch
while consumers could not make the repairs safely. Spokesman Gary Sheffer
said the New York lawsuit was "irrelevant" to the company's decision to
start offering free repairs.

CPSC Chairman Ann Brown said the agency sought free repairs after it
learned that only 89,000 dishwashers had been replaced through the rebate
program. (An additional 540,000 had been repaired through the recall
program GE had been offering its commercial customers.)

"That needed to be improved," she said, adding that it took "a matter of
months" before GE agreed to the request.

In a telephone interview, Spitzer said GE's decision to offer free repairs
is "precisely the remedy we sued them to get."

"This is a forward step, but as so often is the case with GE, it only came
after litigation," he said.

With GE's reversal, the CPSC is getting what it initially asked for after
learning of the defective heating switch. Over time, the sliding switch
that lets users select between "heat drying" and "energy saver," or air
drying, can deteriorate, melt and ignite.

CPSC considers the problem so hazardous that it told consumers who have the
affected dishwashers to stop using them immediately and keep the doors
unlatched to prevent any electrical current from going to the defective
switch.

Jim Simons, a government employee who lives in Ellicott City, replaced his
machine shortly after the recall, when his daughter noticed it smoking
while running a load of dishes. He said he would have probably asked for a
free repair if he had had the option. "The rebate was not that significant"
to help cut the cost of a new machine, he said.

CPSC approved the initial rebate offer after GE refused to offer a free
repair. Under federal law, the commission couldn't force a repair as long
as GE selected a recall, rebate or repair.

CPSC officials are still looking into whether GE should be fined for
failing to report the problem switch to the agency sooner than late 1998.
Brown has said GE first learned of the fires in the late 1980s. GE
officials have said they reported the problem as soon as the company
realized the defective switch was a widespread problem.

The affected dishwashers have the model numbers GSD500D, GSD500G, GSD540,
HAD467, HDA477 and HDA487. These models are affected if the second letter
of the serial number is A, M, R, S, T, V or Z. Consumers can obtain more
information from GE at 800-599-2929 or the Web
sitewww.geappliancerecall.com. (The Washington Post, December 14, 2000)


HMOs: Judge Rules That Doctors Must Arbitrate Financial Disputes
----------------------------------------------------------------
In a significant development in the class-action lawsuit against the
nation's major HMOs, U.S. District Judge Federico Moreno has ruled that
doctors at war with managed care plans must arbitrate their financial
disputes. But Moreno also determined that allegations of conspiracy and
racketeering lodged against six managed care companies by three doctors
must remain in federal court.

In a hearing before Moreno in October, lawyers representing HMOs had asked
the judge to transfer the lawsuits to arbitration and to dismiss all
charges against the health plans. Moreno said he could rule within 60 days
on whether he will dismiss the charges.

On Monday, Moreno also decided that one of the HMOs, PacifiCare Health
Systems of Santa Ana, Calif., must arbitrate claims made by one of its
members in Oklahoma because her employer's health plan had an arbitration
provision with all the HMO's members. None of the other HMOs had such
member agreements.

Moreno's decisions come as a host of lawsuits consolidated in Miami earlier
this year prepare to move forward.

HMO members allege that managed care companies give financial incentives to
doctors in exchange for steering patients to less costly treatments.
Physicians said that HMOs arbitrarily reduce fees or stall on payments.

The HMOs have denied the charges.

The health plans being sued include Humana, Aetna, PacifiCare Health
Systems, Prudential Insurance Co. of America, WellPoint Health Networks,
United HealthCare, Cigna and Foundation Health Systems, which recently
changed its corporate name to Health Net, Inc.

The lawsuits had originally been filed in federal courts around the
country, including Miami, forcing the Judicial Panel on Multidistrict
Litigation to decide where the cases should be heard. The panel determined
that all the cases should be consolidated in Miami before Moreno.

High-profile lawyers handling the plaintiffs' cases include Richard Scruggs
of Mississippi, noted for successfully taking on the tobacco industry, and
David Bois of New York, who lead the government's case in the Microsoft
antitrust trial and most recently represented Vice President Al Gore in the
election dispute. (The Miami Herald, December 14, 2000)


JWGenesis FINANCIAL: Shareholders Lose Bid To Delay Vote In Palm Beach
----------------------------------------------------------------------
A Palm Beach Circuit judge on Tuesday denied a request by shareholders to
stop temporarily the planned acquisition of Boca Raton-based JWGenesis
Financial Corp. by First Union Corp.

The shareholders wanted Tuesday's meeting postponed until several issues
relating to the deal were clarified. Among them: Shareholders argued that
they cant make an informed decision because they dont know how much money
they will get once the deal is consummated.

The price -- $ 90 million to $ 110 million -- translates to $ 10 to $ 12
per share and ultimately will depend on how many of the companys 500 or so
independent brokers will move to First Union.

While the motion was denied, there is still the matter of a lawsuit that
has been filed by minority shareholders against JWGenesis. That suit
alleges they are being squeezed out and that the money they will be paid is
unconscionable, unfair and grossly inadequate.

The suit, which seeks class-action status, asks the court to direct the
companys executives to ensure that no conflict of interest exists and that
the shareholders are adequately compensated. (Broward Daily Business
Review, December 13, 2000)


N.Y. POLICE: Legal Setbacks Mount But City Officials See No Pattern
-------------------------------------------------------------------
In case after case, the Police Department has suffered significant legal
setbacks over the last two years in which its operations, policy and
personnel decisions were reversed by judges and juries or overhauled to
reach court settlements.

In at least nine cases, the department has been told by judges or juries
that it overstepped its authority in areas like limiting the free speech of
officers and withholding information from the public. And critics suggest
that the setbacks are symptomatic of a department that, in its zeal to
continue record crime reductions, has grown inattentive to the letter of
the law.

And while city lawyers say that the city keeps no statistics on such cases
and that the total number of lawsuits against the department has declined
for the last three years, they acknowledge that the number of high-profile
cases focusing on the department's management and operations -- and the
number of setbacks -- have gone up.

They are quick to add, however, that the increase in these lawsuits
reflects a trend in employment litigation in business, and that the city is
appealing most decisions. Daniel S. Connolly, a special counsel to the
city's Law Department, which defends the Police Department in such cases,
said it would be a mistake to draw conclusions about its management from a
series of what he said were unrelated lawsuits.

The lawsuits have focused on issues ranging from the department's sexual
harassment policies to the city's refusal to formally recognize a fraternal
officers group. And while most lawsuits against the department are by
citizens charging excessive force or false arrest, many that focus on
police operations are brought by officers themselves.

They include one in which a jury, in June, found that the city wrongly
transferred 24 black officers to the 70th Precinct in Brooklyn after Abner
Louima was tortured at its station house in 1997, and another, in July, in
which the city agreed to pay $1 million to a former senior police official
who said she was forced out for refusing to revise a report critical of
other police officials.

In another case, a judge found that the city wrongly barred uniformed
members of the Latino Officers Association from marching in parades. And a
decision in 1998 resulted in an agreement under which federal prosecutors
in Manhattan will monitor the department's policies on sexual harassment
until 2001.

In response to these and similar cases, the department set up the Special
Litigation Support Unit last month, with an 11-member staff of officers and
civilians, said Thomas Antenen, the deputy commissioner of public
information. He said the unit would aid city lawyers in defending against
suits involving police operations, which often require the retrieval and
review of many documents.

Mr. Connolly disputes the outcome of some lawsuits. He contends that the
race-based transfer suit was a victory for the city because, while the jury
found that the move violated the officers' constitutional rights, the judge
did not forbid the department to make similar transfers in an emergency.
And he attributes the spate of losses to coincidence, bad judges and
juries, and plaintiffs' lawyers, who he said had made a career of suing the
department.

"The global picture is positive," said Mr. Connolly, referring to what he
said was an overall decline in lawsuits. "Having said that, we still remain
in the most litigious area of the United States of America. We live in a
world where the president of the United States of America is going to be
selected through litigation, something that was inconceivable 30 years
ago."

Mr. Connolly contended that because several lawsuits had been decided in a
short period of time, there was a misperception that something was
"profoundly amiss," a view that he suggested was fueled by the news media.

"The truth is that in any large organization -- and this is a 55,000-person
organization -- you're going to have your share of lawsuits filed against
you for employment discrimination" and other matters, he said. "So you can
look at three or four cases and try to draw an inference about bad priests
and you would be wrong. You would be making the same error if you looked at
the cases that you named and drew the same inference against the N.Y.P.D."

He cited the use of nearly 10,000 officers for the peaceful New Year's Eve
celebration in Times Square and the United Nations Millennium Summit, along
with policies like seizing the cars of people arrested on drunken-driving
charges, as examples of management achievements.

But to critics, the setbacks support their contention that the Police
Department and Mayor Rudolph W. Giuliani's administration as a whole have
run roughshod over civil rights.

In several cases, judges and juries found that the department retaliated
against officers who spoke out or filed formal complaints of sexual
harassment. That practice of retaliation, several lawyers contend, is
ingrained in the highest levels of the department. Matthew D. Brinckerhoff,
who with his partner, Richard Emery, has represented plaintiffs in two
cases, said that that kind of harassment and retaliation send "the worst
possible message" to rank-and-file officers.

"If nothing else, by their actions, they are telling everyone else in the
Police Department that this is a proper way to behave," Mr. Brinckerhoff
said of senior police officials who have taken retaliatory action.

Among the recent cases in which judges or juries have found retaliation
include that of Yvette Walton, an officer who sharply criticized the
tactics of the Street Crime Unit after the 1999 shooting of Amadou Diallo.
Ms. Walton testified before the City Council wearing a hood; hours later
she was dismissed on the ground that she had misused sick leave while on
probation from an earlier infraction.

Last month, a federal judge found that the department had violated Ms.
Walton's First Amendment rights, rejecting its contention that Ms. Walton
was fired for reasons other than her decision to testify. The judge also
said he found "not credible" the statement by Howard Safir, then the police
commissioner, that he did not know Officer Walton had testified.

Several lawsuits and investigations that could have a significant impact on
the department are pending. They include the continuing inquiry by federal
prosecutors in Brooklyn seeking changes in how the department investigates
and disciplines officers accused of brutality, and an inquiry by federal
prosecutors in Manhattan that has concluded that members of the Street
Crime Unit engaged in racial profiling.

There is also a class-action suit pending in Federal District Court in
Manhattan brought by people who claim they were wrongly stopped and
searched by the police, and another class action in that court brought by
black and Latino officers who claim that the department discriminates
against them in the way it hands out discipline.

Norman Siegel, the executive director of the New York Civil Liberties
Union, which represented the Latino officers' group in both its suits, said
the cases were a sign that the federal courts in New York had begun to
intervene and overturn some of the Police Department's policies and
management practices.

"Hopefully, the higher echelons of management at the N.Y.P.D. will begin to
realize that grieved employees can and will redress their grievances in the
federal court and they just might prevail," he said. "Consequently, this
federal court option might act as a deterrent to future illegal and
unconstitutional actions by the N.Y.P.D. management, and if this happens,
that will be a big plus." (The New York Times, December 14, 2000)


NYC: Summary Judgment Favors Police, Officials in Suit by Church
----------------------------------------------------------------
The Court ruled on in limine summary judgment motions in nine separate
cases that were grouped together for purposes of trial, concerning events
that occurred in August 1995 between over 200 plaintiff members of the
Universal Calvary Church and 22 individually named police officers and City
officials. Summary judgment was granted as to all defendants on all of the
plaintiffs' @ 1983 claims of failure to supervise, failure to intervene or
protect, denial of medical treatment and unlawful retaliation for First
Amendment conduct. Summary judgment was granted on all claims of all
plaintiffs alleging that defendants conspired to deprive of certain rights
as no proof indicated a common scheme or plan. Also, summary judgment was
granted on all plaintiffs' claims for negligent infliction of emotional
distress and for negligence against all defendants.

Judge Patterson

UNIVERSAL CALVARY CHURCH v. CITY OF NEW YORK QDS:02763234-This Opinion
rules on in limine summary judgment motions made on June 30, 2000 in nine
separate cases, all of which have been grouped together and identified as
Group A-2 cases for the purposes of trial. The original action, Universal
Calvary Church v. City of New York, 96 Civ. 4606, was commenced as a class
action encompassing numerous claims concerning events that occurred on
August 20 and 21, 1995, between over two hundred Plaintiffs, all members of
the Universal Calvary Church ("UCC"), and Defendants, twenty-two
individually named police officers, officials of the City of New York, and
a number of unidentified defendants. n1 The parties have completed
discovery.

n1 The twenty-two named Defendants are as follows: Chief Louis Anemone
("Anemone"), Officer Charles Barberi ("Barberi), Deputy Chief George Brown
("Brown"), Officer Kevin Brunner ("Brunner"), Chief Wilbur Chapman
("Chapman"), Officer Kevin Craig ("Craig"), Officer Dominick De Lorenzo
("De Lorenzo"), Deputy Inspector Patrick Devlin ("Devlin"), Officer Richard
Difede ("Difede"), Officer Chris Lesiewicz ("Lesiewicz"), Deputy
Commissioner Jack Maple ("Maple"), Officer Michael Moloney ("Moloney"),
Officer Brian O'Connor ("O'Connor"), Officer James O'Hagan ("O'Hagan"),
Officer Alex Papagiannis ("Papagiannis"), Sergeant Phillip Parrish
("Parrish"), Officer Patrick Prendergast ("Prendergast"), Sergeant Walter
Picht ("Picht"), Officer Eric Single ("Single") , Detective Joanne Toole
("Toole"), Officer John Webber ("Webber"), and Detective Dennis Wiencko
("Wiencko"). For the purposes of this opinion, all of the Defendants' names
have been spelled according to the master list dated October 10, 2000,
which Corporation Counsel provided to the Court.

On January 9, 1998, the Court denied the UCC's motion for class
certification and ordered each individual Plaintiff to file individual
complaints. After some delay, Plaintiffs' counsel filed individual
complaints and, for some individuals, amended complaints, ending on or
about December 21, 1999. All the complaints, rather than constituting
individualized complaints, by and large, contain the same causes of action
and name all the same Defendants as did the proposed class action
complaint. Defendants have now moved for summary judgment with respect to
each of the complaints filed. n2 Most of the complaints contain some or all
of the following claims against various Defendants: 1) excessive force
(physical acts and noxious gas) under 42 U.S.C. @ 1983, in violation of the
Fourth and Fourteenth Amendments; 2) false imprisonment under 42 U.S.C. @
1983, in violation of the Fourth and Fourteenth Amendments; 3) failure to
intervene or protect Plaintiffs under 42 U.S.C. @ 1983, in violation of the
Fourth and Fourteenth Amendments; 4) failure to properly supervise under 42
U.S.C. @ 1983, in violation of the Fourth and Fourteenth Amendments; 5)
denial of medical treatment under 42 U.S.C. @ 1983, in violation of the
Fourteenth Amendment; 6) unlawful retaliation under 42 U.S.C. @ 1983 for
exercise of Plaintiff's right to free exercise of his or her religion, in
violation of the First Amendment; 7) municipal liability for policies,
customs, and practices causing the aforesaid unconstitutional conduct; 8)
assault and battery (physical acts and noxious gas) under state common law;
9) false imprisonment under state common law; 10) intentional infliction of
emotional distress under state common law; 11) negligent infliction of
emotional distress under state common law; 12) conspiracy under state
common law; 13) negligence under state common law; 14) negligence by the
City of New York in hiring, screening, retention, supervision, and training
under state law; 15) respondeat superior liability against the City for
state law violations; and 16) prima facie tort. The liability of the City
of New York for state and federal constitutional violations and negligent
hiring, screening, retention, supervision, and training has been severed
and is not at issue in this trial. n3 (Order dated May 31, 2000.) On July
19, 2000, all Plaintiffs withdrew all of their prima facie tort claims and
withdrew all claims as against Brown. (McCartney Decl. PP10-11.)

n2 The Defendants have made summary judgment motions for almost every
Defendant on almost every claim of every Plaintiff. The individual
complaints submitted by the Plaintiffs are, in some and substance, a
regurgitation of the initial class claim that was denied. They lack the
specificity of claims based on their individual factual situation that was
the very reason for denying class certification. The extensive summary
judgment motions are, therefore, necessary to get the individual complaints
into the proper form for the long scheduled trial.

n3 Upon consent of the parties, the May 31, 2000 Order severed all of the
Plaintiffs' Monell and negligent supervision etcetera claims. (May 31, 2000
Order P1.) As for the Plaintiffs' claims of respondeat superior liability
of the City for state law violations, the Court held, "In view of
defendants' failure to respond to plaintiffs' letter dated April 13, 2000,
defendants are deemed to have stipulated that each individual defendant
police officer was acting within the scope of his/her employment and that
any verdict against any police officer will permit a judgment to be entered
against the City of New York on the theory of respondeat superior." (Id.)

The general factual section below presents an overview of the case. To the
extent that each individual Plaintiff has facts specific to his or her own
case, they are outlined separately. n4

n4 Voluminous motions, papers, exhibits, and documents have been submitted
in this case. This footnote is to explain the various citations used
throughout the Opinion. When citing to papers submitted on behalf of all
the Plaintiffs, the citation will be to "Pls.' Gen. 56.1 Stmt.P1" or "Pls.'
Mot. in Opp. at 1." When citing to papers for the Defendants, the name of
the particular Plaintiff will also be designated, as in "Defs.' Mem. in
Supp. Chance at 1" or "Defs.' Reply Mem. Chance at 1."

In referencing the 56.1 statement, the Defendants' Statements are cited
when they are admitted by Plaintiffs or not properly denied by Plaintiffs
together with reference to evidentiary support. (For example, "Defs.' 56.1
Stmt. Chance P1" is cited as an admission of the statement if both sides
agree.) If the Plaintiff denies a statement in accordance with Rule 56.1,
then the citation to the denial is, "Chance's Resp. to Defs.' 56.1 Stmt.
P1." A citation to the Plaintiff's separate 56.1 Statements is "Chance's
56.1 Stmt. P1." The same is true for citations to exhibits attached to the
submitted statements. (For example, "Defs.' 56.1 Stmt. Chance, Ex. 1, at 1"
or "Chance's 56.1 Stmt., Ex. 1, at 1.") It was often necessary to look to
the exhibits directly for support because the parties, at times, misstated
the evidence in their 56.1 Statements.

Statement of Background Facts n5

n5 Federal Rule of Civil Procedure 56(e) states:

When a motion for summary judgment is made and supported as provided in
this rule, an adverse party may not rest upon the mere allegations or
denials of the adverse party's pleadings, but the adverse party's response,
by affidavits or as otherwise provided in this rule, must set forth
specific facts showing that there is a genuine issue for trial.

Furthermore, the Southern District of New York Local Rule 56.1 states:

Upon any motion for summary judgment pursuant to Rule 56 of the Federal
Rules of Civil Procedure, there shall be annexed to the notice of motion a
separate, short and concise statement of the material facts as to which the
moving party contends there is no genuine issue to be tried. Failure to
submit such a statement may constitute grounds for denial of the motion.

The papers opposing a motion for summary judgment shall include a separate,
short and concise statement of the material facts as to which it is
contended that there exists a genuine issue to be tried.

All material facts set forth in the statement required to be served by the
moving party will be deemed to be admitted unless controverted by the
statement required to be served by the opposing party.

Each statement of material fact by a movant or opponent must be followed by
citation to evidence which would be admissible, set forth as required by
Federal Rule of Civil Procedure 56(e).

In this case, Plaintiffs' papers are woefully short of specific facts and
evidence to support their various claims. Despite the clear language of
Rule 56 requiring specificity, Plaintiffs rarely offer an exact cite in
support of their version of the facts. In a majority of the allegations,
rather than citing to a particular paragraph of the Plaintiff's individual
56.1 statements or citing to a particular exhibit, Plaintiffs simply cite
to "Plaintiffs' General Rule 56.1 Statement and Exhibits." Given that the
General Rule 56.1 Statement is nonspecific and designed to be a general
description for all 21 of the Group A Plaintiffs, and given that 116
exhibits are attached to this general statement, a vague cite to all of the
exhibits is simply unacceptable. This places an immense burden on the Court
to sift through enormous amounts of evidence without any guidance or
direction from the Plaintiffs as to what evidence in particular, if any,
supports their claims. Furthermore, the inadequacy of citations by the
Plaintiffs is a main reason for both the problems in sorting out the
disputed facts and the difficulty in deciding the motions. Overall,
Plaintiffs have failed to satisfy the requirements of responding to a
summary judgment motion as defined by Fed. R. Civ. P. 56 and Local R. 56.1.

In addition, as Defendants point out in their September 13, 2000 Letter
from Norma Kerlin ("Kerlin Letter, 9/13/00"), an answer that "Plaintiff can
neither admit nor deny this statement based upon the factual record" is not
a sufficient response to establish a disputed fact. Local Rule 56.1 clearly
states that the moving party's 56.1 statement "will be deemed to be
admitted unless controverted," Rule 56.1 (c), and requires that such
denials be supported by a specific citation to admissible evidence, Rule
56.1(d). As such, any of the Defendants' 56.1 Statements that Plaintiffs do
not specifically deny and support such denial with specific evidence, and
any of Plaintiffs' 56.1 Statements not supported by reference to specific
evidence, will be deemed admitted for purposes of this summary judgment
motion. See Fed. R. Civ. P. 56; Local Civ. R. 56.1; see also Millus v.
D'Angelo, 224 F.3d 137, 138 (2d Cir. 2000) (noting that the district court
properly "granted summary judgment in favor of defendants following
Millus's failure to deny, in accordance with Rule 56.1 of the court's local
rules" various allegations of the defendants); Cooper v. Gottlieb, No. 95
Civ. 10543 (JGK), 2000 WL 1277593, at *4 (S.D.N.Y. Sept. 8, 2000) (holding
that a denial without evidence to support the denial is "conclusory" and
"wholly inadequate under Local Civil Rule 56.1(d)"); Wenzhou Wanli Food
Co., Ltd., v. Hop Chong Trading Co., Inc., No. 98 Civ. 5045 (JFK), 2000 WL
964944, at *3 (S.D.N.Y. July 11, 2000) (noting that "[unsupported]
allegations will not suffice" in responding to a motion for summary
judgment); Aztar Corp. v. NY Entertainment, LLC, 15 F. Supp.2d 252, 254 n.1
(E.D.N.Y. 1998) (noting that "Defendants' 56.1 Statement is replete with
responses of 'lack knowledge or information sufficient to either admit or
deny.' Defendants have not created any issues of fact through this
artifice."), aff'd 210 F.3d 354 (2d Cir. 2000).

The Plaintiffs in this case are some of a large number of persons who
attended an outdoor revival service at the Universal Calvary Church, an
evangelical fundamentalist church, on Sutphin Boulevard in Queens County,
New York, on August 20, 1995. During the service, a physical altercation
arose when a retired police detective named Clifford Warsop tried to enter
the church grounds. n6 During the altercation with several church ushers,
Warsop's gun was taken, and he was injured.

n6 Warsop is the estranged common law husband of a UCC member, Ms. Angela
Pennicooke. (Pls.' Gen. 56.1 Stmt., Ex. 27A, P3; Defs.' 56.1 Stmt. Bennett,
Ex J, P3.) Warsop attempted to enter the revival to visit his children.
(Pl.s' Gen. 27A, P3; Defs.' 56.1 Stmt. Bennett, Ex. J, P2.) Warsop
apparently is not and has never been a UCC member. (Pls.' Gen. Ex. 27A, P3;
Defs.' 56.1 Stmt. Bennett, Ex. J, P3.) He is not a party to this or any
other civil lawsuit in connection with the events of August 20-21, 1995.

A member of the congregation called 911 and reported "man with a gun."
Defendants Barberi and Difede responded to the 911 call in a police car,
called an ambulance for Warsop, retrieved the gun, tried to find out what
happened, and called for supervisory assistance. A supervisory sergeant
arrived and was denied interview with the church ushers, as the revival
meeting was still going on. The sergeant and his supervisor determined that
no arrests should be made at that time.

Barberi accompanied Warsop in the ambulance to the Mary Immaculate Hospital
and then returned to his precinct. He was ordered to give a report of the
incident to detectives for investigation. He did that, and Defendants
Detectives Toole and Wiencko were assigned to the case. They went with
Barberi to the hospital where Toole conducted an interview of Warsop.
Warsop was discharged from the hospital and expressed a desire to identify
the persons he said had participated in the attack on him. He had
twenty-three stitches around one of his eyes.

Toole, Wiencko, Barberi, and Warsop went back to the church. It was
approximately 11:20 p.m., and the revival meeting had just ended. The
detectives' car went around the block, and Warsop identified Nedley
Walters, a plaintiff in a related case, as the person who had head-butted
him, and Horace Gordon, a plaintiff in a related case, as the man who had
taken his gun.

Detectives Toole and Wiencko approached Gordon, and an altercation
occurred. When they attempted to arrest Gordon, a large number of persons
from the congregation came to his assistance, and another altercation
occurred. The officers made radio calls for assistance, and many police
arrived. Also, a police mobilization alert was announced, and several
church members who are plaintiffs in related cases were arrested. During
the altercation, blows were struck, mace or pepper spray was used, and
several Plaintiffs were injured. More police arrived, and the members of
the congregation ran back into the church grounds, which were fenced and
had a gate that was closed. During this time, mace was used by the police
around the gate. A helicopter hovered overhead.

Thereafter, Defendants Anemone, Maple, Chapman, and Devlin from the New
York City Police Department arrived, and the pastor of the church had
several talks with one or more of the police executives. The pastor and
police executives finally reached an agreement that remaining members of
the congregation and the police force could leave. They left around 4 to 5
a.m. on August 21, 1995.

Because of the similar legal claims made by each of the nine Plaintiffs,
this opinion will outline the testimony relating to each Plaintiff's
claims. It will then explain the grounds for granting Defendants' motion
for summary judgment as to certain claims brought by all the Plaintiffs and
proceed to individual decisions with respect to each Plaintiff's remaining
claims.

Summary of Each Plaintiff's Testimony

Garfield Chance

In his deposition, Plaintiff Garfield Chance testified that he arrived at
the UCC revival service around 8 p.m. on August 20, 1995. (Chance's 56.1
Stmt., Ex. 1, at 44.) He was stationed at the gate during the ceremony,
which was attended by 400-500 people. (Id. at 48.) About fifteen minutes
after the revival service ended, Chance heard a female church member
screaming, and he noticed a commotion at the corner of Ferndale Avenue and
Sutphin Boulevard. (Id. at 60.) He went to the corner, where the church
fence ended, and he saw officers wrestling with someone. (Id.) Chance
recognized the person wrestling with the police as Horace Gordon, a member
of the UCC. (Id. at 61.) According to Chance, the officers were attempting
to arrest Gordon, and Chance and other onlookers from the church approached
the arresting officers in an attempt to discover why Gordon was being
arrested. (Id.) "They had him, you know, in a neck lock and all kinds of
stuff. He was asking them why they were doing this and they kept telling
him you're under arrest and he was trying to find out for what. And they
were telling us to get back, but we stood there trying to find out what's
going on. And then the officer, the big officer said a couple of words and
then the next thing there were cops coming from everywhere." (Id.) Chance
later identified "the big officer" as Defendant Barberi. (Id. at 103.)

According to Chance, police officers with nightsticks clutched in their
hands came running toward the crowd. (Id. at 74.) A black officer hit
Chance with a nightstick, causing Chance to fall a few feet from where the
police officers were wrestling with Gordon. (Id.) This occurred
approximately twenty to thirty feet from the corner of Sutphin Boulevard
and Ferndale Avenue. (Defs.' 56.1 Stmt. Chance, Ex. B, at 75.) Chance
testified that he did not fall flat on the ground but that he may have
tripped over the officers' feet and fallen halfway. He characterized what
occurred as being "knocked to the ground sort of." n7 (Id. at 61.)

n7 Plaintiff Vince Hook has testified that Garfield Chance helped him pick
up Horace Gordon and Cornelius Caliz. (Defs.' 56.1 Stmt. Chance, Ex. C, at
78.)

After the fall, Chance decided to run back to the church, but the big
officer, who was later identified as Defendant Barberi, sprayed him with
mace in the eyes at close range. (Id. at 62.) Chance returned to the back
of the church and washed his face. (Id.) After a period of time, Chance
went to the back gate on Glassboro Avenue and heard a young officer tell
the pastor that he "[wouldn't] let anyone get out." (Id.) Chance also
observed Barberi at this gate and said to him, "[You] are the one that
maced me," to which Barberi replied, "[Yes]... where's your guts now." (Id.
at 63.) Chance also observed officers spraying mace through the Sutphin
Boulevard fence while the gate was closed. (Id. at 85.) Chance heard no
racial or religious derogatory comments. (Id. at 88.)

At no time did Chance did tell any of the police officers that he needed
medical attention. (Chance's 56.1 Stmt., Ex. 1, at 91.) Around 5 a.m.,
Chance left the church grounds to go to the ambulance, where he received
treatment for his eyes. (Id. at 64-65.) At this time, he observed the
arrest of a young man across the street from the ambulance. (Defs.' 56.1
Stmt. Chance, Ex. B, at 65.) Chance also sought medical treatment at Queens
General Hospital shortly after the incident. (Chance's 56.1 Stmt., Ex. 1,
at 93.) He was later examined by doctors at the Greater Metropolitan
Medical Services and diagnosed with post-traumatic headaches. (Chance 56.1
Stmt., Ex. 3.)

Merle Pierre Holder

Plaintiff Merle Pierre Holder arrived at the UCC around 7 p.m. on August
20, 1995. (Holder's 56.1 Stmt., Ex. 1, at 28.) Her children, Cheryl, 37,
and Andre, 34, and grandchildren were also members of the church and in
attendance that night. (Defs.' 56.1 Stmt. Holder, Ex. B, at 13.) Holder
testified that, after the revival service, she was outside the Sutphin
Boulevard gate, talking to her daughter, when she was hit with a nightstick
by a tall, white police officer. (Holder's 56.1 Stmt., Ex. 1, at 41-43.)
She testified that this officer was Defendant Barberi. (Id. at 42.) Barberi
hit her on the right shoulder, left knee, and left hip. Holder also
observed Woodrow Campbell get hit by an officer. (Id. at 43.)

After she was hit, Holder fell down and was pinned to her daughter's car,
which was parked on Sutphin Boulevard. (Defs.' 56.1 Stmt. Holder, Ex. B, at
44-47.) During this time, Holder observed people panicking and rushing
toward the gate, and the police were attempting to stop people from
entering the gate. (Id. at 44-45.) Holder managed to crawl to the gate on
her knees and get inside. (Id. at 45-46.) Approximately ten minutes elapsed
from the time Holder was pinned against the car until the time she crawled
inside the gate. (Id. at 47.) Once inside the gate, Holder observed many
church members close the gate, and she proceeded inside to the tent area.
(Id. at 45-46.)

Holder also testified that, after the gate was closed and she was near the
fence, a tall officer sprayed her with pepper spray. (Id. at 52.) She felt
the effects of the pepper spray that night and for many days after. (Id. at
51-53.) Holder maintains that she could not leave the church compound
during the night. "[We] were not allowed to go-nobody was allowed to come
out or come in the gate. (Id. at 54.)

Holder is currently under the care of several doctors for cardiac care,
hypertension, and orthopedic care at the HIP Center, 25 Schermerhorn St.,
Brooklyn. (Id. at 5). She claims that the incident has left her with
weakness in the right shoulder, weakness in her knee, and weakness in her
hips. (Id. at 57.) As a result, Holder claims that she cannot do many
simple tasks, such as holding a baby or combing her hair, and this has led
to her inability to remain employed. (Id.)

Franka Kerr

Plaintiff Franka Kerr arrived at the UCC around 6:45 p.m. on August 20,
1995. (Kerr's 56.1 Stmt., Ex. 1, at 48.) After the service, Kerr left the
church and walked on Sutphin Boulevard toward the corner of Ferndale Avenue
to Nedley Walters' car. (Id. at 74-81.) At Nedley Walters' car, she
received a cake from Walters and began walking back to the church. (Defs.'
56.1 Stmt. Kerr, Ex. B., at 76-77.) At this point, Kerr observed an
altercation between Gordon and two police officers, and she began running
toward the church. (Id. at 77.) Kerr notes that she saw Horace Gordon as
she was walking toward Nedley Walters' car. (Id.) According to Kerr, "two
cops scrambled Horace Gordon and pushed him against a fence" as he was
running from the police. (Id. at 77-78.) She describes the officers as
being two white, male police officers who were in uniform. (Id. at 78-79,
88.) Kerr also heard Gordon scream, but she did not hear the police say
anything. (Id. at 79.)

During the altercation with Gordon, one or both of the two officers pushed
Kerr, causing her to fall. (Kerr's 56.1 Stmt., Ex. 1, at 87-88.) Kerr was
pushed on the right side of her body on the shoulder while she was facing
Horace Gordon and the fence. (Id. at 87-88.) Her left side hit the ground
after the push. (Defs.' 56.1 Stmt. Kerr, Ex. B, at 93.) Kerr was close to
Gordon when she fell, and she saw other church members around her. (Id. at
97.) After the fall, Kerr lifted herself up and ran back into the church
grounds. (Id. at 97-98.) Once inside, she found her children, and they all
went into the church building. (Id. at 99-100.)

At some point during the evening, Kerr stood at the Sutphin Boulevard gate
and observed the pastor speaking with the police. (Id. at 105-07.) She also
observed police dogs in this area. (Id. at 109-10.) Kerr also testified
that she could not exit the gate to go home. (Id. at 103.) Kerr finally
went home at 5:30 a.m. (Id. at 108.)

In addition to being pushed, Kerr claims she felt the burning effects of a
substance on her face but did not see anyone spray anything. (Id. at
113-14.) Kerr does not make a claim that she was denied medical treatment.
(Id. at 115.) Her children had no injuries and did not require any medical
attention. (Id. at 115-16.) Kerr suffers from back pain and nightmares,
both of which she attributes to the incident. (Id. at 116-21.) Plaintiff
provides no medical diagnosis or cause of her lower back pain.

Morgan Stephen

Plaintiff Morgan Stephen arrived at the UCC around 7 p.m. on August 20,
1995. (Stephen's 56.1 Stmt., Ex. 1, at 23.) He was there to attend church
services, and he sat on the pulpit with Reverend Peter and the pastor from
7:30 p.m. to 10:45 p.m. (Id. at 25.) After the service, Stephen observed a
big commotion at the corner of Ferndale Avenue and Sutphin Boulevard and
heard a man screaming. (Defs.' 56.1 Stmt. Stephen, Ex. B, at 45.) People
were gravitating toward the commotion at the corner, and Stephen was
fifteen to twenty feet away from the corner when he saw officers "beating
on" parishioner Horace Gordon, who was against the door of a parked on
Sutphin Boulevard. (Id. at 46.) According to Stephen, there were more than
two officers present at the corner, and the officers had holsters, badges,
and riot sticks. (Id. at 47.) Stephen saw Gordon get struck many times (id.
at 47-48), and he also saw other people get hit (id. at 48).

While he was at the corner, an officer hit Stephen on the "shoulder back"
from either the back or the side. (Id. at 48.) He believes he was struck
with a riot stick. (Id. at 49.) Stephen could not identify who hit him
except to say that it was a police officer who was not in uniform. (Id. at
48.) Stephen immediately felt pain, and it continued through the next day.
(Id. at 49.)

Stephen testified that after he was struck, he went into the church and
called the pastor on the telephone. He estimates the time was between 11:15
and 11:30 p.m. (Id. at 42.) When he returned to the Sutphin gate, a medium
build white police officer said to Stephen "[You] black son of a bitch,
we're going to get you tonight." (Id. at 61.) While he was behind the fence
on church property, an officer sprayed Stephen in the face with pepper
spray. (Id. at 51.) He describes the spraying officer as a heavy set police
officer. (Id. at 51, 56-57). Later while Stephen was at the fence, an
officer said, "[Let's] see what your God is going to do for you tonight."
(Id. at 62.) Stephen finally left the church at 4:45 a.m. (Id. at 64.) He
remembers that some people had gone to the five or six ambulances earlier,
about 4 a.m. (id. at 63), and at least one ambulance was present at 11:45 -
12:00 p.m. (id. at 64).

Stephen did not seek medical treatment at the ambulances that night, but he
did go to a private doctor on Queens Boulevard the next day or so. (Id. at
49-50.) Stephen has had nightmares and sexual problems since the incident.
(Id. at 69.) He offers a diagnosis of post traumatic stress syndrome and
post traumatic headaches. (Stephen's 56.1 Stmt., Ex. 3, at 2.)

Oral Theobalds

Plaintiff Oral Theobalds arrived at the church to attend the revival at
approximately 6:30 p.m. on August 20, 1995. (Theobalds' 56.1 Stmt., Ex. 1,
at 33.) After the service ended, Theobalds was walking to his car when he
heard someone across the street screaming. (Id. at 48.) According to
Theobalds, "That's when I went over to see what was happening and that's
when I saw what was going on, that the police officers were beating this
young man and the girl and I-what I did-I went closer to see what was
happening. I saw they were beating up-I thought-I think it was Horace
Gordon and the girl. As I get closer that's when I was attacked." (Id.)
Theobalds describes the officer who attacked him as "short, about 5'5".
(Id. at 55.) The officer hit him on the left shoulder with a nightstick,
and then Theobalds fell to the ground, slashing his left knee. (Id.)

After he fell to the ground, Theobalds "scrambled" up and ran to the church
gate while the officer who hit him chased him. (Defs.' 56.1 Stmt.
Theobalds, Ex. B, at 56.) After church members closed the gate, Theobalds
observed officers banging on the gate and spraying pepper spray through the
fence. (Id. at 62-63.) Theobald himself was not pepper sprayed (id.), and
he withdraws this claim (Theobalds' Resp. to Defs.' 56.1 Stmt. P14).

Theobalds did not hear the pastor or anyone else tell church members not to
leave the church that night, and he maintains "Nobody could have left the
church whether the pastor said so or not." ((Defs.' 56.1 Stmt. Theobalds,
Ex. B, at 71.) Theobalds and his family finally left the church at noon on
August 21, 1995. (Id.) He explains that they did not leave earlier because
he heard that the police intended to arrest men from the church, and he did
not want to be arrested. (Id. at 74.)

Theobalds saw ambulances outside the church but did not ask for medical
help. (Id.) He also states that he does not know of anyone who was denied
medical attention that night. (Id.) Four days after the incident, Plaintiff
saw a private doctor. (Id. at 72.) He claims shoulder and knee pain as a
result of the incident but did not suffer any permanent injuries. (Id. at
75-76.)

Karen Wilson

Plaintiff Karen Wilson arrived at the UCC around 7:20 p.m. on August 20,
1995. (Wilson's 56.1 Stmt., Ex. 1, at 22.) After the service ended, between
10:55 and 11:05 p.m., Wilson and her mother walked across the street to the
Sutphin Boulevard bus stop. (Id. at 33.) Wilson noticed an unmarked police
car approach the corner of Sutphin Boulevard and Ferndale Avenue and saw
three police officers-one female and two males-jump out of the car. (Id. at
33-34.) The female officer put her hands on Horace Gordon's throat while
the two male officers held his hands behind his back, and then they
wrestled Gordon to the ground. (Id.) Wilson walked back across the street
and stood about seven to ten yards away from where the officers were
wrestling with Gordon. (Id.) Wilson observed the male officers beating
Gordon with a nightstick, punching him, and kicking him as the female
officer was standing by and also kicking Gordon. (Id. at 45.) Wilson claims
she observed Gordon being handcuffed before the beating began. (Id.) Wilson
also observed Jerry Bloomfield, Keno Reefer, and Cornelius Caliz in the
area. (Defs.' 56.1 Stmt. Wilson, Ex. B, at 50.)

Wilson did not see anyone other than Gordon get arrested. (Id. at 51.) She
saw seventy-five to eighty other officers arrive at the scene fifteen
minutes after she first observed the officers beating Gordon. (Id. at 52.)
Wilson then entered the church building and stayed there for fifteen
minutes, at which point she went back outside near the gate area. (Id. at
53-54.) At this point the fence was closed and locked. (Id. at 54.).
Although Wilson did not see police officers spray pepper spray, she felt
the effects of pepper spray in the air and, therefore, only stayed outside
for three to five minutes. (Id. at 55-57.) The pepper spray caused blurring
in her eyes, and the effects lasted for several hours. (Id. at 57.) Wilson
also heard an officer say, "[Here's] another soul for Satan." (Id.)

Wilson maintains that she was falsely imprisoned because she "was held
hostage against my own will." (Id. at 56.) Although she admits that an
officer never told her that she was not free to leave, she explains that
people did not feel safe to leave. (Id. at 56-69.) Wilson testified that
the pastor indicated to the parishioners that it was in their best interest
to stay together. (Id. at 59.) "Since we were surrounded by 75 to 80 police
officers and also helicopters, he was concerned about our safety. So he
instructed everyone just to say [sic] together until the situation was
resolved." (Id. at 60.)

Wilson did not ask any of the officers for medical attention and did not
seek help from the ambulances, but she did go to her doctor within days of
the incident. (Id. at 58.) In addition to the damages for false
imprisonment and noxious gas, Wilson is claiming financial loss and
emotional instability as a result of the incident. (Id. at 55-56.)
Specifically, Wilson claims that the incident left her without the ability
to "function properly," which caused her to lose her job ten days after the
incident and remain unemployed for a year, go into debt, lose a
relationship, suffer problems with her eating and sleeping habits, and
become isolated from family and friends. (Id.)

Kenrick Young

Plaintiff Kenrick Young, son of Michael and Neneita Young, attended the
revival services at the UCC on August 20, 1995. After the church services
ended, K. Young saw someone "being grabbed" at the corner of Sutphin
Boulevard and Ferndale Avenue, and he approached the corner. (Defs.' 56.1
Stmt. K. Young, Ex. B, at 26.) At the corner, K. Young saw more than one
white, male, uniformed police officer choking a church member with a baton.
(Id. at 26-28.) After observing the choking, K. Young returned to the
church. (Id. at 28-29.) K. Young heard unidentified police officers
screaming, "Niggers, we're gonna get you niggers and you're gonna die
tonight." (Id. at 29.) He did not see anyone videotaping, taking
photographs, or throwing objects. (Id. at 30.) In addition to observing
officers choke a church member on the corner of Sutphin and Ferndale, K.
Young saw police beating another church member on the street and sidewalk.
(Id. at 30-31.) He claims that "[more] than a hundred, two hundred police"
were involved in the general incident. (Id. at 31-32.)

While K. Young was outside the church, he was also sprayed with mace by a
police officer, after which he ran inside the church. (Id. at 32.) As a
result of being sprayed, K. Young suffered blurry vision, headaches, and
burning of the eyes. (Id. at 33, 38, 40.)

K. Young visited Jamaica Hospital Emergency Room shortly after the
incident. (Id. at 41.) He was also examined by Greater Metropolitan Medical
Services in 1996 and diagnosed as suffering from post-traumatic stress
disorder, persistent conjunctival irritation, cervical sprain, and
lumbosacral strain. (K. Young's 56.1 Stmt., Ex. 3.) He still suffers from
blurry vision as a result of the noxious gas. (K. Young's 56.1 Stmt., Ex.
2, at 39.) K. Young has experienced mental distress, including nightmares,
flashbacks, and a fear of the police, all of which he attributes to the
incident. (Id.)

Michael Young

Plaintiff Michael Young, husband of Neneita and father of Kenrick, arrived
at the UCC around 7 p.m. on August 20, 1995. (M. Young's 56.1 Stmt., Ex. 1,
at 32.) After the church service ended, M. Young was at the Sutphin
Boulevard gate, heading home with his family, when he heard someone shout,
"[They] are beating Horace," and he ran to see what was happening. (Defs.'
56.1 Stmt. M. Young, Ex. B, at 38.) M. Young saw two men beating Horace
Gordon. (Id. at 40.) According to M. Young, both men were white and in
plain clothes, and one man was very tall. M. Young asked the two men,
"[What] are you doing," and one of the two men sprayed him, causing his
eyes to burn. (Id. at 41.) Jerry Bloomfield was present at the corner with
M. Young. (Id. at 40.)

After being sprayed, M. Young went back to the church and washed his eyes
and face at a water fountain. (Id. at 41-42.) He stayed inside the church
for approximately one half an hour, but later he went outside of the church
to see what was going on. (Id. at 43.) M. Young could not go outside of the
gated area, however, because there were police there (id.) and "They said
no one leaving there" (id. at 46). According to M. Young, he tried to exit
through both gates, but the police were surrounding the entire church
grounds. (Id. at 46.) M. Young also heard police officers say, "We're gonna
kill you. We're gonna kill you fuckin' niggers tonight" and "Where's your
God? Call up on your God." (Id. at 44.)

M. Young finally left the church premises around 6 a.m. on August 21. (Id.
at 46.) He did not seek medical assistance that evening or the next day,
but he did seek medical attention from his family doctor sometime shortly
after the incident. (Id. at 58-60.) As a result of the incident, M. Young
has a scar on his head and blurry eyes. He also claims that his physical
behavior towards his wife is "still not the way it should be." (M. Young's
56.1 Stmt., Ex. 1, at 64, 86.) M. Young still experiences burning in his
eyes, has flashbacks, and has problems sleeping. (Id.)

Neneita Young

Plaintiff Neneita Young, wife of Michael and mother of Kenrick and others,
arrived at the UCC around 6:45 p.m. on August 20, 1995. (N. Young's 56.1
Stmt., Ex. 1, at 40.) After the service, N. Young and her family gathered
under the tent and proceeded to the gate to go home, when she heard a lady
screaming that one of the members of the church was being beaten by the
police. (Id. at 54.) N. Young walked over towards Ferndale Avenue and saw
Horace Gordon lying on the sidewalk close to the fence, screaming while the
police were beating him. (Id. at 54-58.) She observed more than two and
maybe more than five police officers beating Gordon, and she observed a
police car across the street. (Id. at 58.) According to N. Young, all of
the officers were in uniform, were male, and were white. (Id. at 58-59.)

When N. Young was approximately eight to ten feet away from Gordon, an
officer pushed her back in the stomach with his nightstick (id. at 59),
after which she ran back to the church (id. at 60). N. Young later
identified this "tall officer" as Defendant Barberi. (Id. at 116-17.) She
lost her shoe when this officer pushed her. (Defs.' 56.1 Stmt. N. Young,
Ex. B, at 85.) N. Young maintains that this same tall officer also
participated in beating Gordon. "He was also beating Horace and as soon as
I got there I was right beside him and that's when I turn around and told
me to move back and he use his nightstick to push me this way and I run
back to the church (indicating)." (Id. at 61.) At some point, N. Young also
heard Barberi say, "[You] fuckin' niggers, you are gonna die tonight." (Id.
at 117.)

On her way back to the gate, N. Young observed someone who she believes was
Oniel Thompson being beaten on the sidewalk near the fence by officers
identified only as white men in uniforms. (Id. at 64-65.) They were beating
him with nightsticks and kicking him. (Id.)

After N. Young ran back to the church, she told the other members that the
police were beating a church member outside. (Id. at 61.) At this point,
the cops were trying to force the Sutphin Boulevard gate open, and N. Young
and some other women from the church push the gate closed and padlocked it.
(Id. at 68-69.) After the gate was closed and padlocked, Defendant Barberi
sprayed something through the Sutphin fence that burned her face and neck.
(N. Young's 56.1 Stmt., Ex. 1, 85.)

N. Young later observed the pastor talking to a police officer in a white
shirt and saw that they went into a room in the church. (Defs.' 56.1 Stmt.
N. Young, Ex. B, at 79-80.) Someone inside the church said that the church
members needed medical attention, and when N. Young went outside, she saw
more than two ambulances on 109th Street. (Id. at 82.) Although she
observed ambulances, N. Young testified that she and the other members
could not get to them to receive treatment because, "We couldn't get out of
the church. The cops they were all standing, you know, they were still out
there blocking the gate." (Id. at 83.) Although N. Young did not hear any
officers say that she could not go outside the gate, she heard that the
cops said they could not leave. (Id.) N. Young finally left around 3:30 or
4 a.m. and went to an ambulance parked on 109th Street. (Id. at 84-85.)

As a result of the incident, N. Young received a prescription from Dr.
Worrell for her headaches and dizziness. (N. Young's 56.1 Stmt., Ex. 1, at
101). She was diagnosed by doctors at Greater Metropolitan Medical Services
on July 5, 1996 as having post traumatic headaches. Due to her pregnancy of
five months, however, no further diagnostic studies were ordered. (N.
Young's 56.1 Stmt., Ex. 3.)

General Discussion

In many cases, the Defendants' motions for summary judgment dismissing the
Section 1983 claims by the nine Plaintiffs in this Group A-2 are granted
for failure of the Plaintiffs to identify, either during discovery or by
opposing affidavits, any individual Defendant as having caused a
deprivation of the rights that a particular Plaintiff claims were violated.
See Blyden v. Mancusi, 186 F.3d 252, 264 (2d Cir. 1999) ("Because Section
1983 imposes liability only upon those who actually cause a deprivation of
rights, 'personal involvement of defendants in alleged constitutional
deprivations is a prerequisite to an award of damages under Section 1983.'
" (quoting Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (internal
quotations and citations omitted))).

With the exception of the false imprisonment claims, the claims of the nine
Plaintiffs are based on the actions of Defendants which occurred during the
arrest of Horace Gordon or very soon thereafter. During this time period,
however, Plaintiffs have failed to present any evidence that: (1) any
supervisory Defendant was present and was in a position to supervise an
offending police officer; (2) any Defendant had knowledge that adverse
action was being taken against a Plaintiff and had an opportunity to
intervene and protect a Plaintiff; (3) any Plaintiff requested medical
treatment of a Defendant and was denied treatment; or (4) any Defendant
retaliated against a Plaintiff because of the Plaintiff's exercise of his
or her religious beliefs. Accordingly, summary judgment is granted as to
all Defendants on all of the Plaintiffs' Section 1983 claims of failure to
supervise, failure to intervene or protect, denial of medical treatment,
and unlawful retaliation for First Amendment conduct. For a more extended
discussion of the legal authority for granting summary judgment on these
claims, the parties are referred to the Court's opinion regarding
Defendants' summary judgment motions as to the A-1 Group dated October 13,
2000. Universal Calvary Church v. City of New York, 96 Civ. 4606 and
related Group A-1 cases (RPP), 2000 WL 1538019 (S.D.N.Y. Oct. 17, 2000).

With respect to the Section 1983 and common law claims of false
imprisonment, the Plaintiffs have presented no evidence that the Glassboro
Avenue gate was closed until Inspector Devlin assigned a squad of police
officers to the Glassboro Avenue side of the church after he had been told
that persons were leaving the church grounds by use of the side gate on
Glassboro Avenue. (Pls.' Gen. 56.1 Stmt., Ex. 10, at 87.) At that time,
Devlin had assumed command and had directed that the officers be formed
into squads. (Id. at 55, 80.) The police officers and sergeants named as
Defendants were under Devlin's control, following what appeared to be a
lawful order, and therefore do not have personal liability to the nine
Plaintiffs for any positions around the gates or perimeter of the church
fence that they took pursuant to his commands. See Bilida v. McCleod, 211
F.3d 166, 174 (1st Cir. 2000) ("Plausible instructions from a superior or
fellow officer support qualified immunity where, viewed objectively in
light of the surrounding circumstances, they could lead a reasonable
officer to conclude that the necessary legal justification for his actions
exists."); Varrone v. Bilotti, 123 F.3d 75, 81 (2d Cir. 1997) ("Since the
four subordinate officers were merely carrying out Malone's instruction and
that of their immediate superior when they ordered the strip search, they
were entitled to [qualified] immunity.") Accordingly, these Plaintiffs'
Section 1983 and common law false imprisonment claims are dismissed against
all Defendants other than Anemone, Maple, Chapman, and Devlin. Plaintiffs
present no evidence that they were imprisoned until such time as Devlin's
squad took position at the Glassboro Avenue gate and did not allow anyone
to leave by the gate. Summary judgment is denied on the 1983 and common law
false imprisonment claims as to Defendants Anemone, Maple, Chapman, and
Devlin because Plaintiffs offer evidence that each of these Defendants were
present and in command during the time Plaintiffs claim they were
imprisoned.

Common Law Claims

Conspiracy

Summary judgment is granted on all of the claims of all Plaintiffs that
Defendants "conspired together and maliciously and willfully entered into a
scheme to deprive plaintiff... of [his or her] rights, liberty, well being
and to commit the above-alleged unlawful actions." (Chance Compl. P143.)
Plaintiffs have offered no proof that the acts of Defendants flowed from a
common scheme or plan, nor have they offered any other evidence to support
a claim of conspiracy. See Schlotthauer v. Sanders, 545 N.Y.S.2d 196, 197
(2d Dep't 1989). In addition, Plaintiffs' Memorandum of Law does not
respond to Defendants' motions to dismiss the conspiracy claims, and
Plaintiffs' General 56.1 Statement in response to Defendants' motions
contains no evidence to support conspiracy. Plaintiffs simply cite to all
their General 56.1 Statement and exhibits in the entirety without providing
any specific evidence or guidance for the Court. (Pls.' Responses to Defs.'
56.1 Stmt.) Accordingly, the Defendants' motion for summary judgment on the
conspiracy claim is granted for all Defendants on all Plaintiffs' claims.
Intentional Infliction of Emotional Distress

To maintain a claim for intentional infliction of emotional distress, a
plaintiff must show: (1) extreme and outrageous conduct; (2) with the
intent to cause, or with reckless disregard of the substantial probability
of causing, severe emotional distress; (3) a causal connection between the
conduct and injury; and (4) severe emotional distress. See Bender v. City
of New York, 78 F.3d 787, 790 (2d Cir. 1996) (citing Howell v. New York
Post Co., 596 N.Y.S.2d 350, 353 (1993)). The standard is very high, and the
law requires that the conduct be "so outrageous... and so extreme... as to
go beyond all possible bounds of decency." Id. (quoting Murphy v. Am. Home
Prods. Corp., 461 N.Y.S.2d 232, 236 (1983) (internal quotations omitted)).
Under the circumstances here, Plaintiffs' claims for intentional infliction
of emotional distress are subsumed under their excessive force, assault and
battery, and unlawful imprisonment claims. See id. at 790, 791-92
(acknowledging that traditional torts may encompass claims for emotional
distress); Anatsui v. Food Emporium, No. 99 Civ. 1337 (JGK), 2000 WL
1239068, at *7-8 (S.D.N.Y. Sept. 1, 2000) (holding that derogatory comments
and termination are "insufficient to constitute intentional infliction of
emotional distress under New York law" (citations omitted)); Muhlrad v.
Mitchell, No. 96 Civ. 3568 (DLC), 1997 WL 182614, at *8 (S.D.N.Y. Apr. 14,
1997) (holding that allegations were insufficient to satisfy the element of
outrageous conduct and noting "the New York Court of Appeals has never
upheld a claim for intentional infliction of emotional distress"); Fischer
v. Maloney, 43 N.Y.2d 553, 558-59 (1978) ("Indeed, it may be questioned
whether the doctrine of liability for intentional infliction of extreme
emotional distress should be applicable where the conduct complained of
falls well within the ambit of other traditional tort liability."). The
nine Plaintiffs' emotional distress resulting from the circumstances of the
use of excessive physical force or noxious gas against them by assault or
battery or their false imprisonment will be elements the jury may take into
account in awarding any damages on those other claims. n8 Accordingly,
summary judgment is granted for all Defendants on all Plaintiffs' claim of
intentional infliction of emotional distress.

n8 No Plaintiff presents evidence of what might be deemed intentional
outrageous conduct against him or her. To the extent that any Defendants'
actions support a claim for intentional infliction of emotional distress,
they are covered under Plaintiffs' other claims. Plaintiffs will be able to
present any evidence of emotional distress as a result of this event as
damages incurred in connection with their other claims. The emotional
damages many of the Plaintiffs claim include post traumatic stress
disorders, post traumatic headaches, sexual difficulties, flashbacks, and
fear of the police.

Claims of Negligent Infliction of Emotional Distress and Negligence

Summary judgment is granted on all Plaintiffs' claims for negligent
infliction of emotional distress and for negligence against all Defendants
because each Plaintiff's testimony does not bespeak of negligence but of
intentional conduct. Under New York State law, once intentional conduct
causing physical injury has been established, the actor is liable for
assault and battery and not negligence, even when physical injuries have
been inflicted inadvertently. See United Nat'l Ins. Co. v. Tunnel, Inc.,
988 F.2d 351, 353 (2d Cir. 1993) (recognizing "the mutual exclusivity of
negligence and battery"); Pravda v. City of Albany, 956 F. Supp. 174, 183,
n. 9 (N.D.N.Y. 1997) (holding plaintiff cannot proceed with an assault and
battery claim and a negligence claim based on the same facts); Mazzaferro
v. Albany Motel Enter., Inc., 515 N.Y.S.2d 631, 632-33 (3d Dep't 1987)
("New York has adopted the prevailing modern view that, once intentional
offensive contact has been established, the actor is liable for assault and
not negligence, even when the physical injuries may have been inflicted
inadvertently."). Furthermore, each Plaintiff has failed to identify for
the Court any evidence against any Defendant suggesting either a bystander
or a direct duty theory of negligent infliction of emotional distress as is
required under New York law. See Mortise v. United States, 102 F.3d 693,
696 (2d Cir. 1996). As for the claims of negligence against supervisors,
none of the nine Plaintiffs has offered specific evidence that any of the
individual supervisors were present or aware of the adverse actions of
police officers that Plaintiffs allege were taken against them.
Furthermore, the cause of action for negligent supervision has been severed
and is not an issue in this trial. (May 31, 2000 Order.) Summary judgment
is granted for all Defendants on these claims.

Defendants' Remaining Summary Judgment Motions

Garfield Chance

Garfield Chance makes no Section 1983 excessive force claim or common law
assault and battery claim based on the use of physical force. (Chance
Compl.)

Chance has provided evidence that Defendant Barberi sprayed him with pepper
spray, but he has not provided any evidence that he was sprayed or suffered
from exposure to pepper spray by any other Defendant. Accordingly,
Defendants' motion for summary judgment on Chance's Section 1983 and common
law assault and battery claims based on the use of noxious gas are denied
against Defendant Barberi, but Defendants' motion for summary judgment
dismissing those claims against Defendants Webber, Craig, Single,
Lesiewicz, De Lorenzo, Brunner, Papagiannis, Parrish, Anemone, Maple,
Chapman, and Devlin are granted.

Defendants' motion for summary judgment on Chance's Section 1983 and common
law false imprisonment claims are denied as to Defendants Anemone, Maple,
Chapman, and Devlin, but granted as to Defendants Picht, Parrish,
Prendergast, Toole, Wiencko, Barberi, Difede, Webber, Moloney, Craig,
Single, O'Connor, O'Hagan, Lesiewicz, De Lorenzo, Brunner, and Papagiannis
for the reasons stated, supra.

In all other respects, Defendants' motion for summary judgment is granted.

Merle Pierre Holder

Defendants' motion for summary judgment dismissing Merle Pierre Holder's
Section 1983 excessive physical force and common law assault and battery
claims against Defendant Barberi is denied. Plaintiff Holder has testified
that Defendant Barberi hit her on her right shoulder, left knee, and hip.
(Holder's 56.1 Stmt., Ex. 1, at 42-43.) This testimony identifies
sufficient evidence of physical force to present a factual question for a
jury on the amount of physical force used and its necessity. Therefore, the
summary judgment motions on the 1983 and common law claims based on
physical acts are denied as to Barberi. In view of this testimony by
Holder, her claims of excessive force and assault and battery by physical
force against the other Defendants are dismissed because she offers no
evidence that any one other than Barberi struck her.

Defendants' motion for summary judgment dismissing Holder's Section 1983
claim of excessive force by use of pepper spray is granted because
Plaintiff has failed to identify a Defendant who was personally involved in
the use of pepper spray. See Blyden v. Mancusi, 186 F.3d 252, 263 (2d Cir.
1999).

Defendant's motion for summary judgment dismissing Holder's common law
assault and battery by pepper spray claim is granted as to Defendants
Barberi, Webber, Craig, Single, Lesiewicz, De Lorenzo, Brunner,
Papagiannis, Parrish, Anemone, Maple, Chapman, and Devlin because she does
not identify any of these Defendants as the single police office who pepper
sprayed her. Holder's claim will continue against an unidentified police
officer.

Defendants' motion for summary judgment dismissing Holder's Section 1983
and common law claim for false imprisonment is denied as to Defendants
Anemone, Maple, Chapman, and Devlin, but granted as to the other Defendants
for the reasons stated supra.

Defendants' motion for summary judgment on all other claims of Holder is
granted in all other respects. Franka Kerr

Defendants' motion for summary judgment dismissing Franka Kerr's Section
1983 claim for use of excessive physical force is granted because Plaintiff
is unable to identify the police officers whom she claims pushed her.
Defendants' motion for summary judgment dismissing Kerr's claim for assault
and battery based on physical acts is denied because a genuine issue of
material fact exists as to whether Kerr was pushed. Because Kerr has
testified that a New York City police officer pushed her, the motion for
summary judgment on the assault and battery claim based on physical force
is denied as against unidentified police officers.

Defendants' motion for summary judgment dismissing Kerr's Section 1983
claim for being pepper sprayed is granted because she cannot show that a
Defendant personally sprayed her. Franka Kerr did not see anybody that
pepper sprayed her. (Defs.' 56.1 Stmt. Kerr, Ex. B, at 136-37.) She
testified that she was behind the fence when she felt the burning in her
face. (Id.)

Defendants' motion for summary judgment dismissing Kerr's common law
assault and battery claim is granted as to the claim of assault because
there is no evidence presented that any Defendant threatened to pepper
spray her by words or actions. The motion is denied as to Kerr's claim of
battery against Defendants Barberi, Webber, Craig, Single, Lesiewicz, De
Lorenzo, Brunner, Papagiannis, and Parrish because there is evidence that
each of these Defendants discharged their pepper spray canisters at some
point during the incident. (Pls.' Gen. 56.1 Stmt., Exs. 21, 22, 37, 47, 51,
55, 68, 71.) Kerr is entitled to present evidence that each of these
Defendants used their pepper spray and that this use caused her to suffer
the effects of pepper spray. The motion is granted as to Defendants
Anemone, Maple, Chapman, and Devlin because there is no evidence that they
ever discharged pepper spray or were in command when the pepper spray was
discharged.

Defendants' motion for summary judgment dismissing Kerr's Section 1983 and
common law claims for false imprisonment is denied as to Defendants
Anemone, Maple, Chapman, and Devlin, but granted as to all other Defendants
for the reasons stated supra. In all other respects, Defendants' motion for
summary judgment on the claims of Kerr is granted.

Morgan Stephens

Defendants' motion for summary judgment dismissing Morgan Stephen's Section
1983 claim for use of excessive physical force is granted because Stephen
offers no evidence that any named Defendant hit him on the "shoulder back."
(Stephen's 56.1 Stmt., Ex. 1, at 48.) Defendants' motion for summary
judgment dismissing Stephen's common law assault and battery claim for use
of physical force is granted as to the individually named Defendants but
will continue as against unidentified police officers.

Defendants' motion for summary judgment dismissing Stephen's Section 1983
claim of excessive force by use of noxious gas is granted because Stephen
does not identify the police officer who sprayed him. (Stephen's 56.1
Stmt., Ex. 1, at 52-57.) Defendants' motion for summary judgment on
Stephen's common law assault and battery claim is granted as to all named
Defendants - Barberi, Webber, Craig, Single, Lesiewicz, De Lorenzo,
Brunner, Papagiannis, Parrish, Anemone, Maple, Chapman, and Devlin -
because Stephen has not presented evidence identifying any Defendant as the
"heavy set" officer who sprayed him. Stephen's common law claim for assault
and battery by use of pepper spray will continue against an unidentified
police officer.

Defendants' motion for summary judgment dismissing Stephen's Section 1983
and common law claims for false imprisonment is denied as to Defendants
Anemone, Maple, Chapman, and Devlin, but granted as to Defendants Picht,
Parrish, Prendergast, Toole, Wiencko, Barberi, Difede, Webber, Moloney,
Craig, Single, O'Connor, O'Hagan, Lesiewicz, De Lorenzo, Brunner, and
Papagiannis for the reasons stated supra.

In all other respects, Defendants' motion for summary judgment on the
claims of Stephen is granted.

Oral Theobalds

Defendants' motion for summary judgment dismissing Oral Theobalds' Section
1983 claim for use of excessive physical force is granted because Theobalds
has offered no evidence to identify the police officer he alleges hit him
on the left shoulder.

Defendants' motion for summary judgment dismissing Theobalds' claim for
assault and battery against unidentified police officers is denied.
Theobalds has presented sufficient evidence of offensive or harmful contact
to proceed.

In his response to the summary judgment motions, Plaintiff withdrew his
Section 1983 excessive force and common law assault and battery claims for
the use of pepper spray. (Theobalds' Resp. to Defs.' 56.1 Stmt., PP14, 41.)

Defendants' motion for summary judgment dismissing Theobalds' Section 1983
and common law claims of false imprisonment is denied as to Defendants
Anemone, Maple, Chapman, and Devlin, but granted as to all other Defendants
for the reasons stated, supra. In all other respects, Defendants' motion
for summary judgment is granted.

Karen Wilson

Karen Wilson makes no Section 1983 claim for excessive physical force or
common law assault and battery based on physical acts. (Wilson Compl.)

Defendants' motion for summary judgment dismissing Wilson's Section 1983
claim of excessive force by use of pepper spray is granted. Wilson did not
see any police officers use pepper spray, and Plaintiff has not presented
evidence that she was sprayed with pepper spray by any named Defendant.
(Defs.' 56.1 Stmt. Wilson, Ex. B, at 55.) Wilson testified that she sensed
pepper spray in the air (id. at 55-57), and that she experienced difficulty
breathing and a burning sensation in her eyes (id.). This evidence is
insufficient for Karen Wilson to prove a Section 1983 claim for excessive
force by use of pepper spray against any Defendant named in the complaint.
See Blyden v. Mancusi, 186 F.3d 252, 263 (2d Cir. 1999).

Defendants' motion for summary judgment dismissing Wilson's claim for
assault is granted because there is no evidence that any officer threatened
her with the use of pepper spray. The motion for summary judgment on
Wilson's claim for battery is granted as to Defendants Anemone, Maple,
Chapman, and Devlin because there is no evidence they discharged pepper
spray or were present at the site when the police officers discharged
pepper spray. The motion is denied as to Defendants Barberi, Webber, Craig,
Single, Lesiewicz, De Lorenzo, Brunner, Papagiannis, and Parrish because
there is evidence that each of these Defendants discharged their pepper
spray canisters at some point during the incident. (Pls.' Gen. 56.1 Stmt.,
Exs. 21, 22, 37, 47, 51, 55, 68, 71.)

Defendants' motion for summary judgment dismissing Wilson's Section 1983
claim and common law claim for false imprisonment is denied as to
Defendants Anemone, Maple, Chapman, and Devlin, but granted as to all the
other individual Defendants for the reasons stated, supra.

All other motions of the individual Defendants for summary judgment
dismissing the claims of Karen Wilson are granted.

Kenrick Young

Kenrick Young does not assert a Section 1983 claim for excessive force or a
common law assault and battery claim based on the use of physical force.

Defendants' motion for summary judgment dismissing K. Young's Section 1983
excessive force claim for the use of pepper spray is granted because
Plaintiff does not identify, either in deposition or by affidavit in
opposition, any Defendant as using pepper spray on him. Summary judgement
is also granted on the common law claim against named Defendants because K.
Young does not identify any of the Defendants as the one officer who
sprayed him with mace. K. Young's claim for assault and battery by use of
pepper spray will continue against unidentified police officers.

Defendants' motion for summary judgment dismissing K. Young's Section 1983
and common law claims of false imprisonment is denied as to Defendants
Anemone, Maple, Chapman, and Devlin, and granted as to the remaining
Defendants for the reasons stated, supra.

In all other respects, Defendants' motion for summary judgment is granted.

Michael O. Young

Michael O. Young does not assert a Section 1983 claim for excessive use of
physical force or a common law claim of assault and battery for use of
physical force. (Defs.' 56.1 Stmt. M. Young PP1, 32.)

Defendants' motion for summary judgment dismissing M. Young's Section 1983
claim of excessive force and common law assault and battery claim based on
the use of pepper spray is granted as to all named Defendants. M. Young has
presented no evidence identifying any of the named Defendants as the
individual officer who sprayed him. M. Young will continue to have a common
law assault and battery claim against an unidentified police officer.

Defendants' motion for summary judgment dismissing M. Young's Section 1983
and common law claims for false imprisonment is denied as to Defendants
Anemone, Maple, Chapman, and Devlin, and granted as to all other individual
Defendants for the reasons stated supra.

In all other respects, the Defendants' motion for summary judgment on M.
Young's claims is granted.

Neneita Young

Defendants' motion for summary judgment on Neneita Young's Section 1983
claim against Defendant Barberi for use of excessive physical force is
granted. Plaintiff claims that while Defendant Barberi was engaged in
arresting Horace Gordon, he told her to move back and pushed her in her
stomach with a nightstick. (N. Young's 56.1 Stmt., Ex. 1, at 59-62.) N.
Young did not suffer any injuries as a result of this single push. No
reasonable jury would find that this action constitutes excessive force.
These actions by Barberi are insufficient to meet the Fourteenth Amendment
standard of excessive force because they do not "shock[] the conscience."
See Rodriguez v. Phillips, 66 F.3d 470, 477 (2d. Cir. 1995). Furthermore,
Defendant Barberi is entitled to qualified immunity for excessive force
claims of this sort. See id.

Defendants' motion for summary judgment dismissing N. Young's common law
claim against Defendant Barberi for assault and battery is denied because
the degree of force used is not relevant to a common law battery claim. See
United Nat'l Ins. Co. v. Waterfront New York Realty Corp., 994 F.2d 105,
108 (2d Cir. 1993). N. Young has offered sufficient evidence of harmful or
offensive contact to proceed with this claim.

Defendants' motion for summary judgment on N. Young's Section 1983 claim
and common law claim against Defendant Barberi for the use of pepper spray
is denied, but those same claims against Defendants Webber, Craig, Single,
Lesiewicz, De Lorenzo, Brunner, Papagiannis, Parrish, Anemone, Maple,
Chapman, and Devlin are granted because there is no evidence submitted
showing that N. Young was sprayed by those Defendants or that Defendants
Anemone, Maple, Chapman, or Devlin were present at the site at the time N.
Young testifies she was sprayed by Defendant Barberi.

Defendants' motion for summary judgment dismissing N. Young's Section 1983
and common law claims for false imprisonment are denied as to Defendants
Anemone, Maple, Chapman, and Devlin, but granted as to all other Defendants
for the reasons stated supra.

Defendants' motion for summary judgment dismissing all other claims of N.
Young is granted. (New York Law Journal, December 4, 2000)


PAYDAY LENDERS: Fed Judge OKs Suit Accusing McKenzie Check of High Rates
------------------------------------------------------------------------
A federal judge certified a class-action lawsuit claiming a payday loan
company charges "unconscionable" interest rates for cash advances.

The lawsuit targets McKenzie Check Advance of Wisconsin LLC, which operates
16 National Cash Advance stores in the state. The stores allow customers to
borrow up to $300 at a flat rate of 22 percent of the amount borrowed,
according to court documents.

The annual percentage rates for the short-term loans range from 500 percent
to more than 1,000 percent.

Attorney's for both sides said they approved of U.S. District Judge Charles
N. Clevert's ruling this week that a class-action lawsuit can go forward,
but that McKenzie Check customers who signed agreements to settle their
disputes through arbitration rather than the court will be excluded from
the class.

"We are very pleased that the court approved the class claim, that three
customers can proceed on behalf of 11,000 customers to prove that the loan
costs are unconscionable," said James Walrath, the executive director of
Legal Aid Society of Milwaukee Inc., which is co-counsel for the plaintiffs
in the lawsuit.

McKenzie Check began requiring customers to sign the arbitration agreements
after the lawsuit was filed in 1998, court documents show.

Attorney's for the Legal Aid Society had asked the court to include
customers who signed the arbitration agreement in the class. Attorney's for
McKenzie Check argued against their inclusion.

"The court agreed with us," said Claudia Callaway, an attorney for McKenzie
Check.

Callaway said McKenzie Check's stores provide a helpful service that often
helps people save money by avoiding bounced checks and late payments.

The three named plaintiffs in the case are Damien N Dienese and Luana Y.
Cook of Milwaukee and Lonnie E. Cummins of Sharon. (The Associated Press
State & Local Wire, December 14, 2000)


RAZORFISH, INC: Milberg Weiss Announces Securities Suit Filed in N.Y.
---------------------------------------------------------------------
The law firm of Milberg Weiss Bershad Hynes & Lerach LLP announces that a
class action lawsuit was filed on December 13, 2000, on behalf of
purchasers of the securities of Razorfish, Inc. (NASDAQ:RAZF) between
February 15, 2000 and October 5, 2000 inclusive (the "Class Period"). A
copy of the complaint filed in this action is available from the Court, or
can be viewed on Milberg Weiss' website at:
http://www.milberg.com/razorfish/

The action, numbered 00 CV 9474, is pending in the United States District
Court, Southern District of New York, located at 500 Pearl Street, New
York, NY, against defendants Razorfish, Inc., Jeffrey A. Dachis, Craik M.
Kanarick, Jean-Philippe Maheu, Michael Pehl and John J. Roberts. The
Honorable Jed S. Rakoff is the Judge presiding over the case.

The complaint alleges defendants violated Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934, and Rule 10b-5 promulgated thereunder by
using materially false and misleading statements throughout the Class
Period. For example, the complaint alleges that in its Form 10-K for the
year ended December 31, 1999, filed with the SEC on April 5, 2000, and in
news releases, the Company stated, among other things, that: (a) Razorfish
had been able to "quickly integrate its employees from its numerous
acquisitions and to attract top professionals"; (b) Razorfish had been
"hitting on all cylinders now that we have successfully integrated our
operations"; and (c) Razorfish "is better able to serve multi- national and
local clients because its local consultants understand the nuances of local
cultures, economies and business practices."

The truth began to emerge on October 5, 2000 when, after the close of
trading, the Company issued a corporate release warning that revenue and
earnings in the third quarter ended September 30, 2000 would fall far short
of defendants' previous projections. Upon news of the warning, the
Company's stock fell 43%, from $8.75 on October 5, 2000, to close at $5 per
share on October 6, 2000, down 91% from the Class Period high of $55 on
February 15, 2000. During the Class Period, insiders sold a total of
1,215,716 shares of Razorfish stock for proceeds of $12,763,815 before
disclosing the truth about the Company.

Contact: Milberg Weiss Bershad Hynes & Lerach LLP Steven G. Schulman or
Samuel H. Rudman 800/320-5081 razorfishcase@milbergNY.com


SUNSHINE MINING: 10th Cir Sees ERISA Plan in Language in Incentive Offer
------------------------------------------------------------------------
Court Turns Retirement Incentive Offer Into Guaranteed Lifetime Retiree
Health Benefits Plan (c) 2000-2001 Weil Gotshal & Manges LLP Andrew J.
Clark Summer 2000

In what stands as a warning to all employers that offer enhanced welfare
benefits as a retirement incentive during a reduction in force, in DeBoard
v. Sunshine Mining and Refining Co., 2000 U.S. App. LEXIS 6212 (10th Cir.
2000), the Tenth Circuit Court of Appeals recently held that the language
contained in an employer's early retirement incentive offer created a
"plan" under ERISA, providing those employees who accepted the early
retirement offer with lifetime medical benefits, leaving the employer with
no ability to terminate its retiree medical obligation to the individuals
who accepted the incentive.

The plaintiffs were employees of Woods Petroleum Corp. ("Woods") who were
sent letters stating that if they accepted Woods' early retirement offer,
they and their eligible dependents would be entitled to receive health care
under the company's group hospitalization plan, fully paid by the company
until the time of the retiree's death. The letters also stated that the
retirees would be allowed to continue group dental participation at the
company's expense and would also receive retiree and spouse life insurance
with the premiums paid by the company. Based upon these letters, the
plaintiffs voluntarily retired effective Oct. 31, 1985. The plaintiffs and
their spouses received medical, dental, and life insurance benefits, at no
cost, through July 1995.

At the time the letters were sent, the original employer, Woods, merged
with Sunshine Mining and Refining Company. The merger agreement provided
that Sunshine would not terminate or modify any existing welfare benefit
plans for a period of ten years. After the expiration of the stand-still
period, Sunshine attempted to terminate dental and life insurance coverage
and to impose $500 monthly health insurance premiums on retirees. The
individuals who retired based upon the early retirement incentive letter
brought suit to enforce the terms of the letters.

The plaintiffs sued Sunshine and Woods in the U.S. District Court for the
Western District of Oklahoma. The district court ruled in favor of the
plaintiffs on their claims for entitlement to no cost health insurance.
However, the court concluded that the letters did not contain an explicit
promise of company-paid premiums for dental and life insurance benefits.
The Tenth Circuit affirmed the district court's decision.

On appeal, the defendants argued that Woods did not intend to create a new
plan, but rather to describe the benefits to which the plaintiffs were
entitled under Woods' medical plan. The defendants argued that the existing
plan contained a clause reserving the company's right to amend or terminate
the plan at any time. Based upon that plan language, the defendants argued
that the plaintiffs could not vest in lifetime benefits.

The court rejected the defendants' argument, holding that the company had
intended to create a new welfare benefit plan for employees who elected to
retire under the early retirement program.

The court held that the letters from the company created a new and separate
ERISA welfare benefit plan. The letters satisfied the minimum requirements
for establishing an ERISA plan by describing:

          * intended benefits;
          * intended beneficiaries;
          * the source of financing;
          * procedures for receiving benefits; and
          * an ongoing administrative scheme.

The court found that a reasonable person would have interpreted the letters
to provide an ongoing commitment by the employer to provide the benefits,
and that the letters unambiguously guaranteed lifetime benefits to
employees who participated in the early retirement plan, but limited to the
level of coverage provided to the company's active employees.


U OF MICHIGAN: Federal Judge Upholds Admissions Policy of Weighing Race
-----------------------------------------------------------------------
A federal judge ruled Wednesday that the University of Michigan can
consider race as it picks its freshman class -- a ruling that upheld U-M's
argument about the importance of a racially and ethnically diverse student
body.

In a 51-page decision, U.S. District Judge Patrick Duggan found the
school's current affirmative action admissions program is constitutional,
but said the policy used from 1995-98 took race into account in an illegal
way. The old policy reserved a specific number of spots for minority
students.

"A racially and ethnically diverse student body produces significant
educational benefits such that diversity, in the context of higher
education, constitutes a compelling government interest," Duggan wrote in
his decision. Duggan did not hold a trial on the issue.

The closely watched ruling becomes another piece in the ongoing national
debate about the use of race in higher education. Wednesday's ruling
conflicts with previous court decisions in other parts of the country,
making it more likely the issue will eventually reach the U.S. Supreme
Court, legal experts said. U-M must still defend its Law School admissions
policies at a separate January trial.

"It is a victory for U-M, but more important it is a victory for higher
education and society," U-M President Lee Bollinger said. "It is really
tremendous. We have made such progress over the past two years in opening
the public debate on this issue."

The ruling was made in response to a class-action lawsuit filed in 1997 by
two white students who claim they were denied admission in favor of
less-qualified minority applicants. Both students applied under the old
policy and say they are now entitled to damages. Duggan will decide later
whether U-M, which already has spent $4.3 million defending its practices,
must compensate students rejected because of their race between 1995-98.

"It's nice that Michigan has to admit that their policies were
unconstitutional and that I was treated unfairly," said plaintiff Jennifer
Gratz, who applied in 1995 and graduated from U-M Dearborn last year.

The plaintiffs, represented by the conservative Washington, D.C., law firm
Center for Individual Rights, claim that an applicant's race illegally
becomes a deciding factor that discriminates against white students. They
also claim that getting a diverse student body doesn't justify using
affirmative action. "Obviously, we disagree with the judge's ruling that
the university has a constitutional right to engineer a racial mix of
students," said Terry Pell, executive director of the law firm. "To accept
that diversity rationale is to accept that skin color has an educational
value."

Duggan, who was appointed to the federal court by President Reagan in 1986,
did not answer a separate question about whether affirmative action can be
used to remedy present and past discrimination. That question was raised by
a group of minority students who intervened as defendants in the case. "We
are happy that diversity won. We see it as a victory," said Godfrey
Dillard, a Detroit attorney who represents the minority students. He said
he doesn't know whether the group would still try to get a legal decision
on the issue. "We'll deal with that, but as of right now, we are happy he
upheld the race-conscious admissions program. That was our overall goal."

                        Victory for Diversity

Duggan seemed to put great weight in the evidence gathered by U-M about the
educational benefits of a racially and ethnically diverse student body. It
was the first time a college defended its admissions policies with
extensive data instead of anecdotal evidence from students and professors.

A study by U-M psychology professor Patricia Gurin found that students
learn better and think more critically in diverse classrooms.

Virtually every educational association, the Justice Department, the
Michigan attorney general and more than 20 Fortune 500 companies backed
U-M's position that diversity leads to a richer educational experience for
students.

"GM has been on record as supporting policies that create a diverse student
body that ultimately is to the advantage of America and American business,"
Harry Pearce, vice-chairman of General Motors Corp., said. "We are pleased
that the court recognizes the benefits that diversity can bring to the
educational environment."

                        Plan for Appeal

The only group to support the plaintiffs was the National Association of
Scholars, an organization of 4,300 professors, graduate students,
administrators and trustees. The group said they will further rebut U-M's
social science research during the appeal process. "I am disappointed in
the opinion," said Thomas Wood, a member of the association who co-wrote
Proposition 209, the California voter referendum that struck down
affirmative action in that state. "We can defeat this on appeal because we
will be able to show that there is no correlation between racial diversity
and positive educational outcomes."

Duggan, however, wrote that diversity in higher education "is a permanent
and ongoing interest ... the need for diversity lives on perpetually." But
he differentiated between the legality of U-M's new and old policies.

Since 1998, U-M has used a 150-point system admissions system that gives
weight to grades, test scores and leadership. Underrepresented minority
students African Americans, Hispanics and Native Americans -- get an extra
20 points. If applicants reach 110 points, they're likely accepted,
university lawyers said.

While Duggan said that system is constitutional because it doesn't use
quotas or seek to admit a set number of minority students, he found the old
system unacceptable. In that policy, U-M held spaces open for minority
applicants. It also used a complex grid system to sort students by grades
and test scores, giving advantages to the minority applicants.

That was the system used when plaintiffs Jennifer Gratz and Patrick
Hamacher applied in 1995 and 1997, respectively.

U-M has said during the past two years that the two systems were
essentially the same. "In situations such as this, it is often a thin line
that divides the permissible from the impermissible," Duggan said. "(U-M's)
prior systems, when examined in their entirety, cross that thin line from
the permissible to the impermissible."

                    Affirmative Action Stance

U-M won this court battle during a time when affirmative action programs
are being struck down across the country.

In July, a federal court in Georgia found an admissions system there
unconstitutional. And in 1996, the 5th U.S. Circuit Court of Appeals
decided a case against the University of Texas Law School, which
effectively banned colleges from using race as an admissions factor in
Texas, Louisiana and Mississippi. The Supreme Court declined to review that
case because the school had already changed its policies.

The nation's high court has not addressed the issue in more than two
decades, but many colleges and universities consider race in admissions.

"Diversity is very important for the learning experience. How will you go
into the working world with all types of people if you haven't been exposed
to anyone except those who think and look like you?" Tamika Stewart, a U-M
senior, said after hearing the decision. "Now that there's been a decision
maybe there will be less tension on campus."

But Pell said Wednesday's decision is the first step of a long legal fight
that will almost certainly be headed next to the 6th U.S. Circuit Court of
Appeals in Cincinnati. "The diversity rationale is going to be on trial
again soon with the Law School. This is an early inning in a long
ballgame."

                    Affirmative Action on Trial

The Center for Individual Rights is considering an appeal of U.S. District
Judge Patrick Duggan's decision that the University of Michigan's current
admissions procedure is constitutional. It will also consider asking for
damages for students denied admission on account of race in the freshman
classes of 1995-1998. (The Detroit News, December 14, 2000)


UPS: Judge Says One-Eyed Drivers Cannot Be Barree Automatically
---------------------------------------------------------------
A federal judge on Wednesday struck down Atlanta-based United Parcel
Service Inc.'s nationwide policy automatically barring delivery drivers who
can see with only one eye.

U.S. District Court Judge William Alsup ruled in what was the Equal
Employment Opportunity Commission's first nationwide class-action suit
filed under the Americans with Disabilities Act.

The judge wrote that the world's largest package carrier must change its
1995 policy of automatically excluding driver applicants who can see with
only one eye. The ruling applies only in the United States. The judge wrote
that the applicants should be allowed to shuttle packages if, among other
things, they have good driving records, their vision isn't found to be
dangerous and they pass various UPS driving tests.

"This order makes clear that UPS need not employ any disabled driver posing
a greater safety risk than the unimpaired drivers it otherwise employees,"
Alsup wrote.

Alsup gave UPS until Jan. 31 to appeal its decision.

Company spokeswoman Peggy Gardner said UPS would appeal the decision that
she said the company found "confusing."

Even if UPS assessed applicants as the judge ordered, "the bottom line is
the individual would be disqualified from driving," Gardner said, adding
that "people who can see out of only one eye do present a traffic safety
risk."

The case is Equal Employment Opportunity Commission vs. United Parcel
Service, C97-00961WHA. (The Associated Press State & Local Wire, December
14, 2000)


VERMONT: Industry's Lawsuit Says Drug Cost Is of National Importance
--------------------------------------------------------------------
The pharmaceutical industry sued the federal government Wednesday in a bid
to block Vermont from offering cut-rate prescriptions to a broader range of
people through Medicaid.

Vermont is scheduled to begin signing people up for the new program on Jan.
1, but the industry asked a federal judge in Washington, D.C., to suspend
it while the lawsuit is pending.

Pharmaceutical Research and Manufacturers of America, a trade group
representing the industry, has opposed the program ever since it was
conceived by Howard Dean, Vermont's governor.

So, PhRMA has taken the same arguments it made to U.S. Health and Human
Services Secretary Donna Shalala's staff to U.S. District Court.

``The cost and financing of prescription drugs for lower income individuals
is an issue of national importance and has been the subject of extensive
debate in the legislative and executive branches of the federal government
and many state governments,'' PhRMA's lawsuit says.

Vermont's program relies on Medicaid, the federal-state health insurance
program for the poor, to help reduce prescription drug prices for thousands
of people who otherwise wouldn't qualify for Medicaid coverage.

Altogether, that would amount to a discount of an average of 30 percent.
The actual discount would be more or less, depending on the particular drug
that someone has to take.

Some of those provisions were ones that drew the industry's objections.

``One of the provisions in the Medicaid law says that Medicaid
beneficiaries can be charged no more than nominal co-payments for their
medical services,'' said Marjorie Powell, PhRMA's assistant general
counsel. ``Under the waiver as approved ... these new Medicaid
beneficiaries would be paying 82.5 percent of the cost of their drugs.
That's clearly more than a nominal co-payment.''

Vermont is the only state that has won federal approval for such a plan,
but other states are interested because it would transfer discounts for
which they qualify to a broader segment of their populations. New
Hampshire, for example, already has applied for approval of an identical
program.

Vermont Human Services Secretary Jane Kitchel said she had not been
informed of the lawsuit, but she said she was not surprised that the
industry would seek to block what would be a small program in a small
state.

``It's not because the numbers are large in Vermont,'' she said. ``It's the
precedent here.''

Mary Kahn, a spokeswoman with the federal agency, said she would not
comment because her department had not been notified of the lawsuit. (AP,
December 13, 2000)


WENDT BRISTOL: Settle with Stock Holders over Election of Directors
-------------------------------------------------------------------
On August 17, 2000, a group of individuals alleging ownership of 1,820,987
shares of common stock of Wendt Bristol Health Services Corp. filed a
Schedule 13D with the Securities and Exchange Commission indicating an
intention to elect a slate of directors which they intend to nominate. No
slate has, as of yet, been proposed by such parties.

On August 30, 2000 the Company filed a Complaint for Declaratory Injunctive
and Other Relief in the United States District Court for the Southern
District of Ohio, Eastern Division, Civil Action No. 200-996 against the
parties to the 13D, alleging, among other things (i) the intentional and
fraudulent omission of required information rendering the 13D statement
invalid and unenforceable and asking for a declaratory judgment and
injunctive relief and (ii) breach of fiduciary duty by defendants Clemente
Del Ponte, a past director, and McBridge Advisory Ltd., an affiliate of Del
Ponte, by disclosing confidential and proprietary financial and other
information to third parties, resulting in monetary damage to the Company.

In November 2000, the parties agreed to a settlement whereby all litigation
would be dismissed without prejudice and the schedule 13D('s) would be
re-filed to indicate such shareholders are currently holding shares for
investment purposes only.


WENDT BRISTOL: Suit against Maintenance Vendor Calls for $20M Settlement
------------------------------------------------------------------------
As a result of a class-action suit brought against one of the Company's
equipment and maintenance vendors (by third parties), a tentative
settlement has been proposed. The Company has not estimated its portion of
the proposed settlement (approximately $20 million total to all customers);
the proposed settlement is related to previously paid maintenance expenses
($2,000,000 paid over an 8 year period by the Company and affiliates). Such
amount, when resolved, might result in either a credit against its open
accounts payable or a credit toward future purchases, but no cash to be
issued by the Vendor. Due to the uncertainty, the Company has NOT ---
recorded the proposed settlement.


                             *********


S U B S C R I P T I O N  I N F O R M A T I O N

Class Action Reporter is a daily newsletter, co-published by Bankruptcy
Creditors' Service, Inc., Princeton, NJ, and Beard Group, Inc.,
Washington, DC. Theresa Cheuk, Managing Editor.

Copyright 1999.  All rights reserved.  ISSN 1525-2272.

This material is copyrighted and any commercial use, resale or
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Information contained herein is obtained from sources believed to be
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