/raid1/www/Hosts/bankrupt/CAR_Public/001226.MBX              C L A S S   A C T I O N   R E P O R T E R

            Tuesday, December 26, 2000, Vol. 2, No. 248


ASARCO INC: 8th Cir Dismisses Lawsuit Seeking Attorney-Paid Costs
AUTO FINANCE: Ap. Ct Decertifies Class Accusing BankAmerica under DTPA
BELL ATLANTIC: Monopoly Claim Is Dismissed Absent Willfulness
BREAST IMPLANT: Canadian Appellate Ct Upholds 2000 Women's Action
BRIDGESTONE CORP: S&P Cuts Rating to BBB+ from A-; Removes CreditWatch

BURGER KING: Black Businessman La-Van Hawkins Expected to Appeal
CANADIAN IMPERIAL: Bank and Pattison Face $500M Lawsuit; appeal Rejected
CUTTER BIOLOGICAL: LA Suits Over Hemophiliac's AIDS Affirmed As Untimely
FIRESTONE: First Trial Over Fatal Tread May Be In Coastal Bend
FIRST DATA: Subsidiariesí Settlement for Mexico Wire Transfer Finalized

GLAXO WELLCOME: Cohen Milstein Files Securities Lawsuit in West Virginia
HEARTLAND ADVISORS: Deadline Looms for Lawsuit to Set Legal Precedent
INMATES LITIGATION: Cir Ct Order New Counsel for MS System
MEDICAID HEALTH: Violates Medicaid Law in Restricting Therapy LA Ct Says
PACIFICARE HEALTH: Several Law Firms Have Filed Securities Lawsuits

PCORDER.COM, TRILOGY: Harvey Greenfield Announces on Amended Complaint
PCORDER.COM, TRIOLOGY: Stull, Stull Announces on Amended Complaint
PSINet INC: Court OKs Former Metamor Shareholders' Claims over Merger
SECRET SERVICE: Treasury Opposes Lawsuit By Black Agents
UNION PACIFIC: Clean-up Goes on 7 Mths. after Eunice Freight Train Crash

WATER HEATERS: Plumging Company Urges Owners to Check for Free Repairs
WEYERHAEUSER COMPANY: CA Judge OKs Settlement for Harbboard Siding


ASARCO INC: 8th Cir Dismisses Lawsuit Seeking Attorney-Paid Costs
In a class action seeking response costs under the CERCLA, the 8th U.S.
Circuit Court of Appeals held that the mere possibility that an obligation
to pay will arise in the future does not establish that a cost has been
incurred and dismissed the complaint for lack of subject matter
jurisdiction. (In re Trimble, No. 99-2894 (8th Cir. 11/28/00).)

A putative class of 30,000 residents owning or renting property near a
former lead smelter and refinery filed a class action against Asarco Inc.,
the owner and former operator of the site. The residents alleged that
pollutants from the Asarco site contaminated their properties and sought
recovery of response costs under the CERCLA. In addition, the residents
asserted various state law claims. Asarco admitted its operations at the
site caused lead and other particulates to be emitted into the air but
maintained that the particulates did not have adverse public health
effects. Asarco moved to dismiss for lack of subject matter jurisdiction.
It argued that the residents failed to allege that they incurred necessary
response costs.

The U.S. District Court for the District of Nebraska found that the
residents incurred no liability and no costs and, therefore, failed to
allege an essential element of a private cause of action under CERCLA. The
District Court also determined that under Nebraska law, an award for
property damage would be limited to the fair market value of the property
immediately preceding the damage. The court, thus, concluded that the cost
to remediate the residents' properties, limited by their market value,
could not meet the 75,000 jurisdictional amount-in-controversy requirement
for each resident. Additionally, the court found that the residents were
not entitled to damages for the costs of future medical monitoring. The
District Court granted Asarco's motion to dismiss the complaint for lack of
subject matter jurisdiction. The residents appealed.

                             Response costs

As the 8th Circuit explained, in order to prove their CERCLA claim, the
residents must establish: (1) the site was a facility; (2) there has been a
release or threatened release of a hazardous substance from the site; (3)
the release has caused them to incur necessary response costs; and
(4)Asarco falls within a category of responsible persons. The court noted
that the residents' attorneys paid the remediation expenses. However, as
the court noted, the residents will be obligated to reimburse their
attorneys only if they prevail in the litigation.

The residents argued that their contingent liability to their attorneys for
reimbursement of response costs was "legally sufficient to establish that
they, themselves, have 'incurred' response costs within the meaning of the
statute." They maintained that the District Court erred because the 8th
Circuit, in Farmland Industries Inc. v. Frazier-Parrott Commodities, 111
F.3d 588,591 (8th Cir. 1997), "has explicitly held that a party can 'incur'
expenses even if he or she does not actually pay for them."

The 8th Circuit stated, however, that "the mere possibility, even the
certainty, that an obligation to pay will arise in the future does not
establish that a cost has been incurred, but rather establishes that a cost
may be incurred, or will be incurred." The court held that the residents
failed to assert a legally viable private cost-recovery claim under CERCLA.

                      Diversity jurisdiction

The residents argued that the District Court erred in holding that it
lacked diversity jurisdiction over the state law claims because members of
the class could not satisfy the 75,000 requirement. The 8th Circuit noted,
however, that the U.S. Supreme Court held in Zahn v. International Paper
Co., 414 U.S. 291 (1973), each member of the class must satisfy the amount
in controversy requirement. Agreeing with the 10th U.S. Circuit Court of
Appeals, the court further held that 28 USC 1367 did not overrule Zahn. As
the court explained, "the 30,000-plus members of the putative class must
each satisfy the jurisdictional amount-in-controversy requirement under 28
U.S.C. 1332 for the district court to exercise subject matter jurisdiction
over their cognizable state law claims."

The residents also argued that the District Court erred in holding that
Nebraska law does not recognize common law liability for medical
monitoring. Noting the lack of any authority cited by the residents, the
8th Circuit stated, "Under the circumstances, it would be both imprudent
and improper for us to allow plaintiffs to pursue their medical monitoring

The residents further argued that Nebraska law did not limit recovery on
claims alleging property damage to the market value of their property.
Citing "L" Investments Ltd. v. Lynch, 322 N.W.2d 656 (Neb. 1982), the 8th
Circuit noted that the Nebraska Supreme Court stated, "It seems that one
ought not to be able to recover a greater amount for partial destruction
than one could recover for total destruction. To the extent that our
previous decisions on this matter ... are to the contrary, they are
overruled." The court concluded that the recoverable costs of remediating a
property are limited to its market value.

The court affirmed the District Court's decision dismissing the CERCLA and
state law claims for lack of subject matter jurisdiction. Opinion by: Judge
Theodore McMillian. (Real Estate/Environmental Liability News, December 22,

AUTO FINANCE: Ap. Ct Decertifies Class Accusing BankAmerica under DTPA
After a trial on the merits of several claims asserted by two class
representatives (the appellees), the jury found for Bank of America N.T. &
S.A., Bank of America Texas, N.A., BankAmerica Corporation and Peltier
Enterprises, Inc. However, the trial court refused to render judgment on
the verdict and certified a class action. The Bank and Peltier (the
Appellants), represented by Robert T. Mowrey et. al., file an interlocutory
appeal challenging the class action certification. The Twelfth Court of
Appeals District Tyler, Texas, reverse and remand for decertification.

The underlying suit is based upon allgations of fraudulent concealment and
Deceptive Trade Practices Act (DTPA violations of unconscionability and
failure to disclose against both the Bank and Peltier, and tortious
interference with a potential contract against Peltier.

The complaints are grounded upon Peltier's (and other unidentified car
dealerships') admitted practice of selling a car, providing dealer
financing, and "shopping" the paper to financial institutions (such as the
Bank), one of which purchases the paper at a discount. In other words, the
consumer is offered a particular rate of interest but the financial
institution charges a lower rate of interest, with the differential going
to the dealer. This payment is called a dealer participation fee, and the
consumer is never told about the money that goes to Peltier or about the
Bank's lower interest rate.

Peltier and the Bank describe the initial agreement between buyer and
seller as a retail installment transaction, which is specifically allowed
by Texas law. Tex. Fin. Code Ann. Section 348.001(7)(Vernon 1998). The bank
then purchases the retail installment contract from the seller after the
transaction with the buyer is consummated -  the bank is not a lender, but
a "buyer of the paper." The seller always sells the contract to the bank
for some compensation. The car buyer is not a party to this sccond
transaction. Peltier avers that it strictly complies with the Texas Finance
Code in regard to its retail installment contracts. It also maintains that
the Finance Code anticipates that a retail seller may sell its retail
installment contracts to a bank or other third party. Tex. Fin. Code Ann.
Section 348.003 (Vernon 1998). Peltier sometimes finds a lending
institution to buy its retail installment contracts before entering into
the transaction with thc consumer, a circumstance, which Peltier argues is
also specifically permitted by the Finance Code.

The Appellees, on the other hand, contend that Peltier never actually
enters into an installment contract with the car buyer, and thus the
"dealer participation fee" is really a kickback to the dealership for
giving the bank the financing business.

In two issues, the Bank and Peltier complain that the trial court abused
its discretion in certifying a class under Rule 42(b)(4) (predominance,
superiority, and manageability), and that the trial court abused its
discretion by certifying a mandatory injunction class action under Rule
42(b)(l)(A) (inconsistent or varying adjudications with respect to
individual members of the class which would establish incompatible
standards of conduct for the party opposing the class).

                     The Appellate Court's Ruling

It is the opinion of the Appellate Court that there was error in the
judgment as entered by the trial court. The Appellate Court therefore
ordered, adjudged and decreed that the judgment of the trial court be
reversed and the cause remanded to the trial court with instructions to
decertify the lawsuit as a class action in accordance with the opinion of
the Appellate Court, and that all costs of the appeal be adjudged against
the Appellees.

                    The Appellate Court's Analysis

The following is an extract from the Appellate Court's paper:

     "In the instant case, the trial court certified the class action with
respect to the claims asserted in Appellees' Petition on behalf of:

Subclass A(1). All persons who have made a motor vehicle payment on or
after June 12, 1994, pursuant to a Retail Installment Sales Contract in
which Bank of America paid a "dealer participation" fee to a motor vehicle
dealer in the State of Texas, who are not subject to a claim for deficiency
in the amount owed under their Retail Installment Sales Contract, and the
amount of the alleged deficiency is less than the amount of the "dealer
participation" fee.

Subclass A(2). All persons who have made a motor vehicle payment on or
after June 12, 1994, pursuant to a Retail Installment Sales Contract, in
which Bank of America paid a "dealer participation" fee to a motor vehicle
dealer in the State of Texas, who are subject to a claim for deficiency in
the amount owed under their Retail Installment Sales Contract and the
amount of the alleged deficiency is less than the amount of the "dealer
participation" fee.

Subclass B(1). All persons who have made a motor vehicle payment on or
after June 12, 1994, pursuant to a Retail Installment Sales Contract, in
which Bank of America paid "dealer participation" fee to Peltier
Enterprises, Inc. who are subject to a claim for deficiency in the amount
owed under their Retail Installment Sales Contract, and the amount of the
alleged deficiency is equal to or greater than the "dealer participation"

     In their first issue, the Bank and Peltier assert that the
predominance, superiority, and manageability requirements are not
satisfied; thus the trial court's certification of the class constitutes
error. Their main contention is that individual issues predominate, such as
what Plaintiffs knew about their transactions, whether the information was
material to them, which representation they relied upon, what Plaintiffs
were told or not told by Peltier, and whether Plaintiffs could obtain
alternative financing. Therefore, the court would have to do a case-by-case
analysis, which prc1udes the use of a class action. In their sccond issue,
Appellants maintain that the prosecution of separate actions by or against
individual members of the class would not create a risk of inconsistent or
varying adjudications which would establish incompatible standards of
conduct for the opposing party. Some plaintiffs would win and some would
lose, but that is not considered inconsistent or varying adjudications
under the law. We will consider each of these arguments in turn.


    Under Rule 42, "common" questions must predominate over questions
affecting only individual class members. TEX. R. CIV. P. 42(b)(4). A common
question exists when the answer as to one class member is the  same as to
all. Spera v. Fleming, Hovenkamp & Grayson, P.C. 4 S.W.3d 805. 810 (Tex.
App.-Houston 1999, no pet.). Common questions that do not produce common
answers do not satisfy the Rule 42 commonality requirement. Wente v.
Georgia-Pacific Corp., 712 S.W.2d 253, 257 (Tex. App-Austin 1986, no writ).
The "predominance requirement ... is one of the most stringent
prerequisites to class certification." Bernal, 22 S.W.3d at 433. Courts
determine if common issues predominate by identifying the substantive
issues that will control the outcome of the litigation, assessing which
issues will predominate, and determining if the predominating issues are,
in fact, common to the class. Id. At 434.  The test for predominance is not
whether common issues outnumber uncommon issues, but whether common or
individual issues will be the subject of most of the litigant's and court's
efforts. If, after common issues are resolved, presenting and resolving
individual issues is likely to be an overwhelming or unmanageable task for
a single jury, then common issues do not predominate. Bernal, 22 S.W.3d at
434. Ideally, a judgment in favor of the named plaintiffs should decisively
settle the entire controversy, and all that should remain is for other
class members to file proofs of claim Id. It is improper to certify a class
without knowing how the claims can and will likely be tried. Id. at 435.
Individual scrutiny by the trial court is necessary to ensure that
certification does not "restrict a party from presenting viable claims or
defenses without that party's consent." Id.

    Peltier and the Bank argue that common issues do not predominate over
individual issues in the instant case. They take the position that the
trial court will be forced to receive evidence at trial from both the
plaintiffs and the defendants pertaining to the factual, circumstances of
each putative class member's loan transaction. We will analyze the elements
of each cause of action pleaded to determine if, in fact, this contention
has merit.

    Appellees' first cause of action is common law fraud. The elements of
fraud are (1) that a material representation was made, (2) the
representation was false, (3) when the representation was made, the speaker
knew it was false or made it recklessly without any knowledge of the truth
and as a positive assertion, (4) the speaker made the representation with
the intent that the other party should act upon it, (5) the party acted in
reliance on the representation, and (6) the party thereby suffered injury.
Formasa Plastics Corp v. Presidio Engineers and Contractors, Inc., 960
S.W.2d 41, 47 (Tex. 1998). Fraudulent concealment, which is also one of
Appellees' causes of action, requires proof of the same elements, including
a showing of reliance. Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171,
181 (Tex. 1997). We believe that at least two of the above elements require
individualized proof: (1) the materiality of the misrepresentation or
concealment to that plaintiff and (2) each individual plaintiff's reliance
on that misrepresentation or concealment to his or her detriment. To
illustrate this point, we look to the juiy trial of the class
representatives. During the trial, it was shown that the "dealer
participation fee" equaled a 5.9% interest rate spread in one case, while
the difference in the second case amounted only to $4.OO per month. It
required cross-examination of each plaintiff to determine if the
dffferential was material to him or her. One of the plaintiffs testified
that she did not know what interest rate she was given, and that she did
not care. Her only concern was the monthly payments. However, there is no
presumption that simply because the differentail is neglible, it is not
material to the retail buyer. Conversely, a court cannot presume that
because the differential is substantial, it does matter to the buyer. For
example, even the 5.9% differential may not be material to someone who
cannot acquire financing elsewhere, and is simply happy to drive away in a
new vehicle. It is thus clear that answering the questions of materiality
and reliance as to one plaintiff does not answer the same question as to
other putative class members. See Spera, 4 S.W.3d at 811 (Tex. App.-Houston
1999, no pct.) (the causes of action listed above [fraud, intentonal and
negligent misrepresentation, and others] pose multiple individual issues,
such as determining which potential class members relied on any
misrepresentation . and what duty or duties were variously owed to whom.);
see also Castano v. American Tobacco Co. 84 F.3d 734,745 (5th Cir. 1996)("a
fraud class action cannot be certified when individual reliance will be an

    Another cause of action pleaded by Appellees is unconscionability under
the DTPA. Unconscionability requires proof of (1) an act or practice that,
(2) to a person's detriment, (3) takes advantage of his lack of knowledge,
ability, experience, or capacity, (4) to a grossly unfair degree. TEX. BUS.
& COM.CODE SNN. Section 17.45(5)(Vernon Supp. 1998). There must be a
showing of what the consumer could have or would have done if he had known
about the information. For example, if the consumer could not get financing
through any other source and still wanted the car, he may have purchased it
under the retail installment contract as written even if told of the
transaction with the Bank. Or if the difference in payments was very small,
the consumer might not have cared at all. Plus, there would need to be some
showing of each customer's "knowledge, ability, experience, or capacity." A
plaintiff with knowledge about indirect lending or with years of experience
in the car-selling business would not be able to show that Peltier did
anything that was "unconscionab1e."

    Under DTPA section 17.46(b)(23), Appellees' third cause of action, a
plaintiff must show that the defendant fai1ed to disclose facts known at
the time of the transaction with the intent to induce the plaintiff into a
transaction he would not have entered had the information been disclosed.
TEX. BUS. & COM. CODE ANN. section 17.46(23) (Vernon Supp. 1998). This
claim requires individualized proof because reliance is an essential
element of this DTPA claim. TEX. Bus. & COM.COE ANN. Section 17.50(a)(l)(B)
(Vernon Supp. 1998) (false, deceptive or misleading act must be "relied on
by consumer to the consumer's detriment"). A class member who could not
obtain credit elsewhere in a different circumstance than one who could.
Here, again, the question remains as to what each class member could or
would have done if he or she had known of the transaction between Peltier
and the Bank. It is not possible that any one individual's evidence on this
point could be substitute for another's. See Life Inc. Co. of the Southwest
v. Brister, 722 S.W.2d 764,774 (Tex. App.-Fort Worth 1986, no writ) (not
all situations involving fraud and misrepresentation claims are appropriate
for class treatment because of material variations in representations made
and in the kinds or degrees of reliance).

    Appellees' final cause of action - tortious interference with
prospective business re1ations requires proof that a reasonable probability
exists that putative class members would enter a contractual relationship
with the Bank, and that Peltier intentionally and maliciously prevented the
re1ationship from occurring with the purpose of harming the putative class
members. See Exxon Corp. v. Allsup, 808 S.W.2d 648, 659 (Tex. App.-Corpus
Christi 1991, writ denied). Again individualized proof would be necessary
to determine if there was a "reasonable probability" that each putative
class member and the Bank would have entered into a contractual
relationship but for Peltier's "interference." Also, there is the question
of whether Pettier maliciously intended to prevent the relationship from
occurring in order to harm each putative class member.

    In reviewing the causes of action brought by Appellees against the Bank
and Peltier, we conclude that the resolution of individual issues is likely
to be an overwhelming and unmanageable task for a single jury. We hold,
therefore, that because of the numerous fact issues raised by the
pleadings, which can only be determined by questioning each individnal
plaintiff; the common issues do not predominate over questions affecting
only individual class members.

Superiority and Manageability

    A class action is superior to other methods of adjudication where any
difficulties which might arise in the management of the class are
outweighed by the benefits of classwide resolution common issues. See
Weatherly v. Deloitte & Touche 905 S.W.2d 642,654 Tex. App.-Houston [14th
Dist.] 1995, writ dism'd w.o.j.). In assessing the superiority of a class
action, the court may consider (1) class members' interest in resolving the
common issues by class action, (2) the benefir
from discovery already commenced, and (3) the trial court's time and effort
invested in familiarizing itself with the dispute. See Tex. R. Civ. P.
42(b)(4); Weatherly, 905 S.W.2d at 654.

    In the instant ease, the overwhelming predominance of individual issues
make a class action unmanageabie and, therefore, not a superior method of
adjudication. In our opinion, the difficulties outweigh the benefits.
Because the putative class members' claims all arise out of face-to-face
transactions, any single class member's claim is subject to numerous
fact-specific defenses, which, if successful, would defeat that class
member's claim. Due process requires that Peltier and the Bank be permitted
to take appropriate discovery of absent class members and to present
evidence at trial reasonably calculated to defeat the class members'
claims. See Cimino v, Raymark Indus., Inc. 151 F.3d 297, 311-321 (5th Cir.)
(federal appellate court reversed trial court's refusal to allow defendants
to contest individual exposure and causation issues in asbestos case). A
class structure that would require taking discovery of all 69,000 putative
class members, followed by a trial where Peltier and the Bank would present
evidence on individual defenses for 69,000 class members, would make the
management of the class impossible. As an Alabama court so aptly put it,
"there is a seemingly endless permutation of facts which the court will
have to examine to determine the validity of each class member's claim.."
Mack v. GMAC, 169 F.R.D. 671, 678 (M.D. Ala. 1996). We hold, therefore,
that class certification in the instant case is inappropriate because a
class action is neither a superior method of adjudication, nor would it be
manageable by one jury as required by Rule 42(b)(4). Accordingly, we
sustain Peltier's and the Bank's first issue.

Inconsistent Adjudications

    Under Rule 42~b)(1)(A), when the only risk is that some plaintiffs may
win while othcrs may lose on identical facts, the problem of inconsistent
or varying adjudications is not raised. St. Louis Southwestern Ry. Co. v.
Voluntary Purchasing Groups, Inc., 929 S.W.2d 25, 32 (Tex. App. -Texarkana
1996. no writ). Rather, the rule applies "to situations where inconsistent
judgments in separate suits places a defendant in the position of not being
able to comply with one judgment without violating the terms of another. In
the instant case, a trial court could possibly render one of two orders:
enjoin Peltier and the Bank to disclose the dealer participation fee to the
retail buyer, or enjoin Peltier and the bank not to disclose the dealer
participation fee to the retail buyer. However, it is inconceivable that
any court would order the defendants not to disclose their relationship;
therefore, there is no risk of inconsistent adjudications in this case.
Accordingly, the trial court abused its discretion in certifying this
lawsuit as a class action under Rule 42(b)(l)(A). Therefore, we sustain
issue two, and reverse and remand to the trial court for decertification."

Attorneys For Appellees:

William Frank Carroll
Donohoe, Jameson & Carroll, P.C.
3400 Renaissance Tower
1201 Elm Street
Dallas, Texas 75270-2120

Attorneys For Appellants Bank Of America N.T. & S.A., Bank Of America
Texas, N.A., And Bankamerica Corporation:

Robert T. Mowrey
  State Bar No. 14607500
Thomas G. Yoxall
  State Bar No. 00785304
Michelle Hertzog
  State Bar No. 24004703
E. Lee Parsley
  State Bar No. 15544900
Locke Liddell & SAPP LLP
2200 Ross Avenue, Suite 2200
Dallas, Texas 75201-6776
(214) 740-8000 telephone
(214) 740-8800 facsimile

Ron Adkison
  State Bar No. 00921090
Welborn, Houston, Adkison
Mann, Sadler & Hill., L.L.P.
300 West Main Street-P.0. Box 1109
Henderson, Texas 75653-1109
(903)657-8544 telephone
(903) 657-6108 facsimile

Peltier Enterprises, Inc. and Bank of America, N.T. & S.A. Bank of America
Texas, N.A. BankAmerica Corporation, Appellants
Jonray A. Hilton and Kelly D. Gibson, individually, and on behalf of all
other persons similarly situated, Appellees

BELL ATLANTIC: Monopoly Claim Is Dismissed Absent Willfulness
Law firm alleged in this class action that Bell Atlantic Corp. did not
assist its local phone service competitors as required by the
Telecommunications Act of 1996. Plaintiff, a customer of one of defendant's
competitors in the local telephone service market, asserted, among other
things, a claim for unlawful monopolization in violation of @ 2 of the
Sherman Act. The court found that plaintiff had standing to bring the
Sherman Act claim, finding that the harm plaintiff alleged, damages
resulting from poorer service than it would otherwise have received had
defendant acted lawfully, is wholly distinct from the harm suffered by the
competitors. However, the court dismissed plaintiff's antitrust claim since
plaintiff failed to allege any "willful acquisition or maintenance" of
monopoly power by Bell Atlantic Corp.

Judge Stein

Defendant Bell Atlantic Corp. has moved to dismiss the complaint pursuant
to Fed. R. Civ. P. 12(b)(6) on the grounds that plaintiff lacks standing
and that the complaint fails to state a claim. For the reasons set forth
below, that motion is granted, with leave to replead in part.


Pursuant to the Telecommunications Act of 1996, local telephone companies
may enter the market for long-distance telephone service provided they face
competition in the local telephone service market. 47 U.S.C. @ 271(c). To
promote development of competition in local telephone service markets, the
Act requires that incumbent local telephone companies provide certain
services to new entrants, including permitting access to the incumbent
local telephone company's network by the new entrant - called
"interconnection" - and providing retail services to new entrants at
wholesale rates. 47 U.S.C. @ 251(c).

According to the complaint, Bell Atlantic, an incumbent local telephone
company, applied for and received regulatory approval to offer
long-distance telephone service in certain parts of the Northeast. Compl.
P11. Bell Atlantic has allegedly not, however, assisted its local phone
service competitors as required by the Telecommunications Act. Id P12,
Instead, Bell Atlantic is alleged to have:

fulfilled orders of other Local Phone Service providers' customers [only]
after fulfilling those for its own Local Phone Service, has failed to fill
a substantial number of orders for other Local Phone Service providers'
customers substantially identical in circumstances to its own Local Phone
Service customers for whom it has filled orders, and has systematically
failed to inform other Local Phone Service providers of the status of their
orders with Bell Atlantic concerning [the Local Phone Service providers']

On March 9, 2000, the Federal Communications Commission ("FCC") issued a
consent decree in which Bell Atlantic agreed to pay a $ 3 million fine to
end an investigation into its alleged failure to provide adequate access to
local phone service competitors in New York. Id. P32; Bell Atlantic - New
York Authorization Under Section 271 of the Communications Act to Provide
In-Region, InterLATA Service in the State of New York, 15 FCC Rec. 5413
(2000). Bell Atlantic also agreed to pay $ 10 million to competing local
telephone service providers for injuries resulting from its misconduct in
handling their orders. Compl. P32.

The next day, the Law Offices of Curtis V. Trinko, LLP, a law firm
organized as a limited liability partnership under New York law and a
customer of one of Bell Atlantic's competitors in the local telephone
service market, filed this action on behalf of itself and all others
similarly situated. The Trinko partnership alleges that the members of the
class have been damaged by Bell Atlantic's provision of "a level of service
that is materially below the level that is accorded customers of Bell
Atlantic's Local Phone Service in functionally identical circumstances."
Id. P12. The complaint asserts a claim for unlawful monopolization in
violation of section 2 of the Sherman Act, claims for violations of section
251 and 202 of the Communications Act, and a claim for tortious
interference with contract. The complaint alleges that the relevant market
is the provision of local, non-wireless telephone service in those areas in
which Bell Atlantic is the "incumbent local exchange carrier" within the
meaning of the 1996 Telecommunications Act, and that Bell Atlantic
possesses monopoly power in that market. Id. PP18-25.

Bell Atlantic now moves for dismissal of the complaint in its entirety on
the grounds that the Trinko partnership lacks standing to bring the Sherman
Act claim and the Communications Act claims, that plaintiffs Communications
Act claims are not cognizable, that plaintiff has failed to state a claim
for tortious interference with contract, that plaintiff has not
sufficiently pled damages, and that all of plaintiff's claims for damages
are barred by the filed tariff doctrine.


When deciding a motion to dismiss a claim pursuant to Fed. R. Civ. P.
12(b)(6), the Court must accept all of the well-pleaded facts as true and
draw all reasonable inferences from those allegations in favor of the
plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The complaint will
survive a motion to dismiss unless "it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would
entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

                      The Sherman Act Claim

Bell Atlantic contends that because its alleged anticompetitive conduct is
violating its duties to competing carriers under the Telecommunications
Act, any injury suffered by the alleged class, as customers of those
carriers, "is, by definition, indirect and derivative of the competing
carriers' alleged direct market injury." Def's Mem. at 12. Thus, according
to defendant, the Trinko partnership lacks standing to pursue its Sherman
Act claim. Bell Atlantic also argues that to hold otherwise would subject
it to the risk of duplicative recovery, i.e., Bell Atlantic might have to
compensate both the new entrants into the local telephone service market
and their customers for the same harm, assuming liability exists in the
first place.

Courts have consistently held that both competitors and consumers may
assert antitrust claims arising from harms that flow from anticompetitive
conduct. Eg., SAS Of Puerto Rico, Inc. v. Puerto Rico Tel. Co., 48 F.3d 39,
45 (1st Cir. 1995) ("[The] presumptively 'proper' [antitrust] plaintiff is
a Customer who obtains services in the threatened market or a competitor
who seeks to serve that market."); Continental Orthopedic Appliances, Inc.
v. Health Insurance Plan of Greater New York, 956 F. Supp. 367, 372
(E.D.N.Y. 1997) ("To have standing, a plaintiff must be a competitor,
participant, supplier or consumer in the relevant market."). Indeed, in
Associated General Contractors of California, Inc. v. California State
Council of Carpenters, 459 U.S. 519 (1982), upon which Bell Atlantic itself
relies, the United States Supreme Court found that the plaintiff lacked
standing because it "was neither a consumer nor a competitor in the market
in which trade was restrained." 459 U.S. at 539. Plaintiff, as a consumer
in the alleged relevant market, has standing to assert an antitrust claim.

Bell Atlantic cites the United States Supreme Court decision in Illinois
Brick Co. v. Illinois, 431 U.S. 720 (1977), for the proposition that
permitting the Trinko partnership to maintain this action would
impermissibly subject Bell Atlantic to the risk of duplicative recovery.
However, the issue in Illinois Brick was whether "indirect purchasers,"
i.e., customers of the monopolists' customers, could maintain an action on
the theory that all of the harm - supracompetitive prices - had been passed
on to them. Illinois Brick, 431 U.S. at 726-28. The Supreme Court held that
suits by such "indirect purchasers" were barred by the rule announced in
Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481 (1968),
prohibiting antitrust defendants from introducing evidence that the
antitrust plaintiff had passed on an illegal overcharge to others. Illinois
Brick, 431 U.S. at 745-47. The Court explained that permitting suits by
indirect purchasers "[injected] extremely complex issues into the case" as

Added to the uncertainty of how much of an overcharge could be established
at trial would be the uncertainty of how that overcharge would be
apportioned among the various plaintiffs. This additional uncertainty would
further reduce the incentive to sue. The combination of increasing the
costs and diffusing the benefits of bringing a treble-damages action could
seriously impair this important weapon of antitrust enforcement.

These problems of apportionment are not present here. Any harm to Bell
Atlantic's competitors would be harms from artificial barriers to entry
into the market place, eg., lost profits from customers either lost or
never obtained because of Bell Atlantic's alleged misconduct. The plaintiff
and other class members, though, were, by definition, not lost customers,
but customers from whom the competitors presumably profited in spite of
Bell Atlantic's misdeeds. The harm that these customers are alleging -
damages resulting from poorer service than they would otherwise have
received had Bell Atlantic acted lawfully is wholly distinct from the harm
suffered by the competitors. The rule of Illinois Brick does not apply to
this case.

Even though plaintiff has standing, however, its antitrust claim must
nevertheless be dismissed because the Trinko partnership has not pled facts
that would entitle it to relief. See Conley, 355 U.S. at 45-46. The
elements of a monopolization claim under section 2 of the Sherman Act are:
(1) possession of monopoly power in the relevant market; and (2) willful
acquisition or maintenance of that power, as distinguished from "business
growth or development as a consequence of superior product, business acumen
or historic accident." Tops Markets, Inc. v. Quality Markets, Inc., 142
F.3d 90, 97 (2d Cir. 1998) (citing United States v. Grinnell Corp., 384
U.S. 563, 570-71 (1966)). The complaint fails to establish the second

The complaint points to only one act or series of acts taken by Bell
Atlantic to maintain its monopoly power: Bell Atlantic's failure to
cooperate with local competitors as required by 47 U.S.C. @ 251. Even a
monopolist, however, has no general duty under the antitrust laws to
cooperate with competitors. Aspen Skiing Co. v. Aspen Highlands Skiing
Corp., 472, U.S. 585, 600 (1985); United States Football League v. National
Football League, 842 F.2d 1335, 1360-61 (2d Cir. 1988). Indeed, because all
competition necessarily involves impairing the opportunities of rivals,
liability under the antitrust laws arises only when such impairment "does
not further competition on the merits or does so in an unnecessarily
restrictive way." Aspen Skiing, 472 U.S. at 605 n.32; see also United
States Football League, 842 F.2d at 1359.

The affirmative duties imposed by the Telecommunications Act are not
coterminous with the duty of a monopolist to refrain from exclusionary
practices. Goldwasser v. Ameritech Corp., 222 F.3d 390, 400 (7th Cir.
2000). Moreover, the mere fact that a monopolist has violated another
statute does not transform such offense into a violation of the antitrust
laws. Id. Thus, plaintiff has failed to allege any "willful acquisition or
maintenance" of monopoly power by Bell Atlantic. See Tops Markets, 142 F.3d
at 97. Plaintiff's antitrust claim is dismissed.

B. Communications Act Claims

The Communications Act provides, in relevant part, that:

In case any common carrier shall do, or cause or permit to be done, any
act, matter, or thing in this chapter prohibited or declared to be
unlawful, or shall omit to do any act, matter, or thing in this chapter
required to be done, such common carrier shall be liable to the person or
persons injured thereby for the full amount of damages sustained in
consequence of any such violation of the provisions of this chapter,
together with a reasonable counsel or attorney's fee, to be fixed by the
Court in every case of recovery, which attorney's fee shall be taxed and
collected as part of the costs in the case. 47 U.S.C. @ 206. The Act also
provides that "Any person claiming to be damaged by any common carrier
subject to the provisions of this chapter ... may bring suit for the
recovery of the damages for which such common carrier may be liable under
the provisions of this chapter, in any district court of the United States
of competent jurisdiction." 47 U.S.C. @ 207.

The Trinko partnership has brought two claims pursuant to those sections.
First, it claims that it and the other class members have been damaged by
Bell Atlantic's failure to meet the obligations imposed on it by 47 U.S.C.
@ 251 to cooperate with competing local carriers, as discussed above.
Second, the Trinko partnership claims that it and the other class members
have been damaged by Bell Atlantic's unlawful discrimination in services
between its customers and customers of its local competitors in violation
section 202(a) of the Act, which provides that:

It shall be unlawful for any common carrier to make any unjust or
unreasonable discrimination in ... services ... , directly or indirectly,
by any means or device, or to make or give any undue or unreasonable
preference or advantage to any particular person, class of persons, or
locality, or to subject any particular person, class of persons, or
locality to any undue or unreasonable prejudice or disadvantage. 47 U.S.C.
@ 202(a).

1. Cognizability

Bell Atlantic contends that these claims are not cognizable. It notes that
sections 206 and 207 were part of the original 1934 Communications Act, and
argues that violations of provisions of the 1996 Telecommunications Act,
such as section 251, cannot form the basis of a section 207 claim because
those claims would interfere with the overarching regulatory scheme of the
1996 Act. Thus, says Bell Atlantic, no court has ever recognized an action
pursuant to section 207 based on a violation a provision of the 1996 Act.
Bell Atlantic further argues that because the Trinko partnership's claim
based on an alleged violation of section 202 - a provision of the 1934 Act
- is based on the same conduct that forms part of its claim based on
violation of section 251, it, too, must not be cognizable lest plaintiffs
"circumvent" the regulatory process prescribed by the 1996 Act.

However, violations of the 1996 Act can form the basis for liability
pursuant to sections 206 and 207. As the Supreme Court has noted, "the 1996
Act was adopted, not as a freestanding enactment, but as an amendment to,
and hence part of, [the 1934 Act]." AT & T Corp. v. Iowa Utilities Bd., 525
U.S. 366, 378 n.5 (1999). Accordingly, when Judge Ward of this district
considered a suit pursuant to sections 206 and 207 based on a violation
another provision of the 1996 Act, he recognized that "plaintiffs do have a
private right of action under Sections 206 and 207 of the
Telecommunications Act for damages suffered as a result of a violation of
the [1996] Act." Conboy v. AT & T Corp., 84 F. Supp. 2d 492, 500 (S.D.N.Y.

Moreover, contrary to Bell Atlantic's position, suits by consumer
plaintiffs are not per se incompatible with the regulatory scheme of the
1996 Act. Any incompatibility must be evaluated on a case-by-case basis and
will depend on the specific provision alleged to have been violated as well
as the identity of the party asserting the claim.

In this case, the specific provision of section 251 that Bell Atlantic is
alleged to have violated is 47 U.S.C. @ 251(c)(2)(C), which details an
incumbent carrier's duty to provide interconnection ... that is at least
equal in quality to that provided by the local exchange carrier to itself
... or any other party to which it provides interconnection." The parties
asserting the claim are customers of interconnected carriers. Such a claim
does not directly implicate the regulatory scheme Congress created to
govern the formation of interconnection agreements. See 47 U.S.C. @ 252.
Thus, the cases relied on by Bell Atlantic involving potential competitors
attempting to circumvent the provisions of 47 U.S.C. @ 252 are inapposite.
See Atlantic Alliance Telecommunications, Inc. v. Bell Atlantic, No. 99
CIV. 4915, slip op., (E.D.N.Y. April 17, 2000); Indiana Bell Tel. Co. v.
McCarty, 30 F. Supp.2d 1100, 1104 (S.D. Ind. 1998).

To the extent that this or a similar claim might indirectly implicate the
regulatory scheme, the filed tariff doctrine and the doctrine of primary
jurisdiction are available to insure that judicial action is consistent
with the regulatory process. See, e.g., Oh v. AT & T Corp., 76 F. Supp.2d
551, 554-58 (D.N.J. 1999). Application of these doctrines on a case-by-case
basis is superior to a per se rule that would have courts disregard the
explicit provision of a private right of action in 47 U.S.C. @ 207. Contra
Goldwasser v. Ameritech Corp., No. 97 C 6788, 1998 WL 60878, at *10 (N.D.
Ill. Feb. 4, 1998) ("[Because] of the potential for frustrating the goals
of the 1996 Act, Plaintiffs should not be permitted standing" to assert a
section 207 claim based on a violation of section 251.), affd on other
grounds, 222 F.3d 390 (7th Cir. 2000). Similarly, AT & T Communications of
Cal., Inc. v. Pacific Bell, 60 F. Supp.2d 997 (N.D. Cal. 1999), on which
Bell Atlantic relies, does not provide it with adequate succor. The holding
in that case is that an implied right of action does not exist pursuant to
section 206. 60 F. Supp.2d at 1000. In this case, plaintiff is proceeding
pursuant to the explicit private right of action created by section 207,
not an implied private right of action.

Plaintiffs other section 207 claim is based on a violation of section
202(a). Defendant does not point to a regulatory regime specific to section
202(a), but contends instead that because the section 202(a) claim "is
based on the very same conduct as Plaintiff's section 251 claim," the
section 202(a) claim would impermissibly interfere with the regulatory
process in the same manner as the section 251 claim. Def.'s Mem. at 8.
Because tile Court rejects Bell Atlantic's argument as to the section 251
claim, its argument as to the section 202(a) claim is rejected as well.

2. Standing

Bell Atlantic next argues that the Trinko partnership lacks standing to
bring the Communications Act claims because the rights created by sections
251 and 202 do not belong to plaintiff, but instead belong to the competing
local carriers. Thus, Bell Atlantic maintains, any injury suffered by
plaintiff and other class members is indirect and derivative of the injury
suffered by the competing local carriers through defendant's alleged
violation of those rights.

"The doctrine of standing incorporates both constitutional and prudential
limitations on federal court jurisdiction." Wight v. Bankamerica Corp., 219
F.3d 79, 86 (2d Cir. 2000) (quoting Lamont v. Woods, 948 F.2d 825, 829 (2d
Cir. 1991)); Comer v. Cisneros, 37 F.3d 775, 787 (2d Cir. 1994). The
constitutional dimension, which derives from the "case or controversy"
requirement of Article III, see Sullivan v. Syracuse Hous. Auth., 962 F.2d
1101, 1106 (2d Cir. 1992), "requires the party invoking the power of a
federal court to have at least a 'personal stake in the outcome of the
controversy.' " Wight, 219 F.3d at 86 (quoting Warth v. Seldin, 422 U.S.
490, 498 (1975)); see also Allen v. Wright,, 468 U.S. 737, 751 (1984).

There are also several judicially created "prudential" requirements.
Lamont, 948 F.2d at 829. These rules of judicial self-restraint are applied
to further preserve a " 'proper - and properly limited - role of the courts
in a democratic society.' " Allen, 468 U.S. at 750 (quoting Warth, 422 U.S.
at 498); see also Sullivan, 962 F. 2d at 1106. "Foremost among the
prudential requirements is the rule that a party must 'assert his own legal
rights and interests, and cannot rest his claim to relief the legal rights
or interests of third parties.' " Wight, 219 F.3d at 86 (quoting Warth, 422
U.S. at 499). Property understood, the "prudential" limit on standing to
raise the claims of another is a canon of statutory interpretation that
raises a presumption against such standing, which presumption Congress is
free to override. Fair Employment Council of Greater Washington, Inc. v.
BMC Marketing Corp., 28 F.3d 1268, 1278 (D.C. Cir. 1994).

Applying these principles to this case, plaintiff has satisfied the
constitutional standing requirements. As discussed above, the Trinko
partnership has alleged injuries to itself and other class members, which
injuries give it the "personal stake in the outcome of the controversy"
that Article III demands. See Warth, 422 U.S. at 498.

The prudential standing requirements are another matter. Section 251
imposes duties on incumbent carriers only as to local competitors, and
those rights are triggered only when a competing carrier requests
interconnection. 47 U.S.C. @@ 251, 252. Thus, the Trinko partnership's
section 251 claim is not a claim for damages resulting from a violation of
its rights, but rather a claim for damages resulting from a violation of a
third party's rights, i.e., the rights of the Trinko partnership's local
telephone company. Because the rule that a party cannot rest his claim to
relief on the legal rights or interests of third par-ties is the "foremost"
tenet of prudential standing, Wight, 219 F.3d at 86, the Trinko
partnership's section 207 claim based on a violation of section 251 must be

The duties imposed on carriers by section 202(a), on the other hand, do not
apply only to "competitors", but instead apply more broadly to "any
particular person, class of persons, or locality" to which that carrier
provides service. 47 U.S.C. @ 202(a). Thus, if plaintiff and other class
members receive service from Bell Atlantic, it owes them duties of
non-discrimination pursuant to section 202(a) even if Bell Atlantic is
acting on behalf of its competitors pursuant to an interconnection
agreement. If defendant has breached such duties, the Trinko partnership's
damages flowing from that breach arise from a violation of its rights, and
not the rights of any third party.

The complaint, however, contains no allegation that the Trinko partnership
or any other class member receives any service directly from Bell Atlantic.
Instead, the Trinko partnership alleges that Bell Atlantic has failed to
provide non-discriminatory service to its competitors. E.g., Compl. P31.
Accordingly, plaintiff's section 207 claim based on violations of section
202(a) is dismissed with leave to replead the direct provision of services
by Bell Atlantic to the Trinko partnership and other class members on
discriminatory terms.

3. Other Arguments

Having dismissed plaintiff's Communications Act claims for lack of
standing, the Court need not address Bell Atlantic's arguments that the
Trinko partnership has failed to sufficiently plead damages and that its
claims are barred by the filed tariff doctrine.

C. Tortious Interference Claim

As this Court has dismissed all of plaintiffs federal claims, there remains
no independent basis for federal jurisdiction over the remaining state law
claim for tortious interference. That claim, therefore, is dismissed. See
18 U.S.C. @ 1367(c)(3); Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350
(1988); Baylis v. Marriott Corp., 843 F.2d 658, 665 (2d Cir. 1988).
Accordingly, the Court need not address Bell Atlantic's arguments that the
Trinko partnership has failed to state a claim for tortious interference
and that the claim is also barred by the filed tariff doctrine.


For the reasons set forth above, the motion to dismiss the complaint is
granted. Plaintiff may replead its Communications Act claim based on
defendant's alleged violation of 47 U.S.C. @ 202(a) as well as its
supplemental claim for tortious interference with contract within 20 days
of this Opinion and Order. (New York Law Journal, December 14, 2000)

BREAST IMPLANT: Canadian Appellate Ct Upholds 2000 Women's Action
A Canadian appellate court has upheld the certification of a breast implant
class action on behalf of about 2,000 Canadian women, half of whom live in
British Columbia. No trial date has been set, but Vancouver attorney David
Klein is pleased because the certification means the plaintiffs can now
either settle or proceed to trial. Discovery, which involves examination of
company officials from Bristol-Myers Squib, 3M, Baxter Healthcare, and
other implant manufacturers, can commence, but Mr. Klein expects them to
appeal to the Supreme Court of Canada. The majority decision upheld a
ruling that an assessment of the risk of a breast implant was an issue
common to all members of the certified class. (Medical Legal Aspects of
Breast Implants, November 2000)

BRIDGESTONE CORP: S&P Cuts Rating to BBB+ from A-; Removes CreditWatch
Standard and Poor's said it has cut its rating on Bridgestone Corp to BBB+
from A-, and removed the tiremaker from CreditWatch. The rating agency said
the move reflects its expectations that Bridgestone will face mid-term
challenges stemming from a deterioration of the earnings fundamentals of
Bridgestone/Firestone due to the tire recall case. The move came after
Bridgestone said it would sustain a 7.5 bln usd special loss due to the
recall case.

The rating company also said that given the deteriorating relationship
between Ford Motor Co and Bridgestone/Firestone, the tiremaker will face
sustained declines in its sales and market share in the North American
market. S&P said the Bridgestone group may also face additional downward
pressure on its earnings if the North American automotive market falls into
a cyclical downtrend.

The agency also warned of a rising financial profile risk stemming from
declines in cash flows. S&P now expects Bridgestone's interest rate-bearing
debt to fall to below 30 pct of operating cash flows in 2000 from 70 pct in
1999. Even after the downgrade, the rating agency said the rating outlook
is negative, citing uncertainty over the prospect of a class action, as
well as expected cashflow and earnings problems. (AFX - Asia, December 22,

BURGER KING: Black Businessman La-Van Hawkins Expected to Appeal
An attorney for a black Detroit businessman whose lawsuit against Burger
King Corp. was thrown out by a federal court was expected to file an
appeal. The decision by the court cleared the world's No. 2 fast-food chain
of La-Van Hawkins' claims that it had backed out on an agreement to open
225 restaurants in urban areas. The decision was partly based on a
franchise agreement that prevented Hawkins from suing Burger King. Hawkins'
attorney, Willie Gary, said he would file the appeal last Friday December

"It's clear that La-Van Hawkins was abused and misused by Burger King to
the tune of millions and millions of dollars ... that power, that money and
that prestige will not keep us from fighting," Gary said.

Earlier this month, the Rev. Al Sharpton called for a boycott in front of a
Burger King restaurant in New York City. He described his move as a protest
against unfair treatment of blacks who were denied Burger King franchises.
Sharpton also said he planned to file a class-action lawsuit on behalf of
minorities who have been denied franchises, as well as stage sit-ins at
Burger King restaurants throughout New York City.

U.S. District Court Judge Marianne Battani in Ann Arbor ruled that Hawkins,
who sued after the fast-food chain stopped franchise negotiations, and
Burger King signed a "clear and unambiguous" agreement in July 1999.
Battani said that prevented Hawkins from suing the company for problems
that arose before then.

Robert Lowes, Burger King's former chief executive, said in court papers
that while he was with the company, he gave his approval for a business
plan and confidential memo that called for the chain to work with Hawkins
in opening the chains in five years.

Burger King has challenged Lowes' claims.

Hawkins' Urban City Group sued Burger King in federal court in April,
accusing the company of fraud and reneging on the 225-store deal. Burger
King argued it never made such a promise and countersued, seeking more than
$6.5 million it says Hawkins owes on a 1998 loan.

Hawkins sought at least $500 million and an injunction to prevent Burger
King from closing his 22 franchises nationwide in retaliation. Hawkins also
accused Burger King of courting him because of his race, then using it
against him to squelch his dream of owning a string of Burger Kings in
underserved communities.

Earlier this month, Burger King's chief legal counsel, Barry Blum, called
Battani's ruling "well-reasoned." He said it would allow the chain to focus
on pursuing a court order to force Hawkins to relinquish control of 22
restaurants in Detroit, Chicago, Atlanta, Baltimore and Washington, D.C.
(The Associated Press State & Local Wire, December 22, 2000)

CANADIAN IMPERIAL: Bank and Pattison Face $500M Lawsuit; appeal Rejected
Canada's highest court has cleared the way for a $500-million lawsuit
against Jimmy Pattison, a West Coast businessman, and Canadian Imperial
Bank of Commerce. The Supreme Court of Canada on December 21 dismissed
efforts to stay the proceedings, giving no reasons for its rejection of a
leave-to-appeal application.

Mr. Pattison restructured Westar Group Ltd., a coal operator, between 1994
and 1997. The company was mired in at least $220-million in debt by 1994.

Mr. Pattison and the bank are among several defendants named in a lawsuit
by Samos Investments Inc., a company controlled by Peter Pollen, a former
mayor of Victoria. It contends Mr. Pattison and the bank conspired to take
over Westar at less than fair market value.

Lawyers for Mr. Pattison and CIBC unsuccessfully argued in lower courts the
Samos claim is without merit because a judge approved Westar's

Mr. Pollen had minority shares in Westar, which was 'taken private' by
companies controlled by Mr. Pattison during the reorganization. Westar's
debt was restructured, shares were consolidated and Mr. Pattison's
companies increased their share ownership to 80% from 14%. Finally, the
remaining minority shares of Westar were obtained by Pattison's Great
Pacific Capital Corp. through a compulsory acquisition deal approved by a
chambers judge in June, 1997. The agreement allowed a price of $70 for each
minority share. Mr. Pollen appeared at the hearing to protest. Samos owned
eight shares of Westar when the acquisition deal was approved, and his
company launched its lawsuit on April 7, 1999.

Last February, Judge Robert Bauman of the B.C. Supreme Court said the court
approval for Westar's reorganization was limited in scope and didn't take
into account facts related to the Samos claims. He threw out the motion to
dismiss the case and said the claim could move forward.

Samos had hoped to certify the lawsuit as a class action.

Mr. Pattison and the bank also lost at the B.C. Court of Appeal in July.
(National Post (formerly The Financial Post), December 22, 2000)

CUTTER BIOLOGICAL: LA Suits Over Hemophiliac's AIDS Affirmed As Untimely
A Louisiana appeals court has affirmed a trial judge's findings that both a
negligence suit filed against four hemophilia concentrate makers by a man
who later died of transfusion-acquired AIDS, and a wrongful-death action by
his parents, were untimely because they were filed too late under Louisiana
law. Smith v. Cutter Biological, a Division of Miles Inc. et al., No.
99-CA-2068 (La. Ct. App., 4th Cir., Sept. 6, 2000).

Louisiana's Fourth Circuit Court of Appeal ruled that Orleans Parish Civil
District Court Judge Max N. Tobias Jr. was correct in declaring that the
suit filed in the case of the late Kenneth Dixon on May 10, 1993, fell
outside the applicable one-year prescription period. The panel said that
although Dixon had learned he was HIV-positive in November 1985, it was
reasonable for him to believe that the diagnosis would not necessarily mean
that he would develop AIDS and, thus, most certainly die.

Holding that belief, said the panel, would only have been reasonable until
mid-November 1989, when the record indicates Dixon received a letter from
an unidentified source which informed him, in certain terms, that the HIV
infection he acquired by using Factor VIII blood concentrate products
"would eventually lead to AIDS and ergo, death."

In order for Dixon's claims to remain valid and timely under Louisiana law,
said the panel, his suit against Cutter Laboratories, Alpha Therapeutic
Corp., Armour Pharmaceutical Corp. and Baxter Healthcare Corp. should have
been initiated by Nov. 15, 1990.

"Thus, under the scenario most favorable to Dixon , the one-year liberative
prescriptive period commenced to run, given time for the postal delivery
service to deliver, within two weeks of the Nov. 1, 1989, letter,"
concluded the appeals court. "His claims prescribe on or about Nov. 15,
1990. His May 19, 1983, filing is thus too late."

The panel said that the decision by Judge Tobias, reached after a Louisiana
jury had awarded $35.3 million in survival and wrongful-death damages, was
correct because evidence contradicted the assertions of both Dixon and his
parents that they were not fully aware of the severity of the HIV diagnosis
until less than a year before the young Dixon filed his suit.

Having reserved to himself the issue of the suit's timeliness, or its
"prescription," as it is referred to in Louisiana, Judge Tobias vacated the
jury verdict, saying that the exceptions of prescription filed by the
defendants "supersede rendition of a judgment on the verdict of the jury."

The panel added that parents Leo and Shirley Dixon's wrongful-death claims
also failed state timeliness standards because their period to amend the
suit to include the charges expired on June 3, 1996, one year after their
son's death of AIDS at age 28. They did not actually do so, according to
the court, until March 13, 1997.

The three-member appellate panel said that Judge Tobias had properly
rejected all of the claims offered by the plaintiffs as to why their delay
in filing suit was reasonable and why the November 1989 prescription period
commencement was incorrect.

In defense of their delay in filing suit, the Dixons' charged that the
defendants' fraudulently concealed wrongful conduct that caused their blood
coagulant products to become contaminated with HIV, and that general public
knowledge about the progression of HIV into AIDS remained undeveloped in
the late 1980s and early 1990.

Leo and Shirley Dixon, however, observed the appeals court, possessed
knowledge greater than the general public about the dangers of developing
AIDS from the use of hemophilia products because their two sons were
hemophiliacs. In an opinion written by Judge William H. Byrnes III, the
panel added that throughout the period in question, the Dixons attended
meetings of the Louisiana Chapter of the National Hemophilia Foundation
with their son and that they are active in hemophilia-related public health

The appeals court seconded Judge Tobias' finding that it would be
"incredible that Ken did not know about HIV and its relation to AIDS. His
parent's and his activity in the hemophilia community preponderates to the
reasonable conclusion that he knew more than the average person about AIDS.
That he tried in his own mind to believe he would beat the odds does not
excuse his failure to file suit to interrupt the statute of limitations."

Concluded the panel, " W e can find no manifest error in the trial court's
findings that the decedent knew or should have known that he had the HIV
infection caused by the infusion of Factor VIII; that he knew who the
manufacturers of the Factor VIII were because he kept logs; and that the
infection was progressing and progressively damaging his immune system,
regardless of whether he knew for certain that he would be developing full
blown AIDS."

Also rejected by the appeals court was the Dixon's assertion that the
tolling of their limitations period was suspended by certain out-of-state,
federal class actions related to hemophilia products.

Representing the appellees are Thomas W. Mull and Frances Phares of Mull &
Mull in Covington, La.; Michael L. Baum of Baum, Hedlund, Aresti, Guilford
& Downey in Los Angeles; James W. Orr of Bowers, Orr & Dougall of Columbia,
S.C.; and Mack E. Barham and Robert E. Arceneaux of Barham & Arceneaux in
New Orleans.

Cutter, subsequently acquired by Miles Inc. and later by Bayer Corp., is
represented by Jonathan C. McCall, John F. Olinde and Mary L. Meyer of
Chaffe, McCall, Phillips, Toler & Sarpy in New Orleans.

Baxter is represented by Charles F. Gay and E. Paige Sensenbrenner of Adams
& Reese in New Orleans.

Lawrence E. Abbott and Deborah D. Kuchler of Abbott, Simses, Knister &
Kuchler in New Orleans represents Alpha.

Representing Armour are James B. Irwin and Francis P . Accardo of
Montgomery, Barnett, Brown, Read, Hammond & Mintz in New Orleans and Sara
J. Gourley of Sidley & Austin in Chicago. (AIDS Litigation Reporter,
November 6, 2000)

FIRESTONE: First Trial Over Fatal Tread May Be In Coastal Bend
The Coastal Bend could be the venue for the first lawsuit to reach trial
over fatal tire tread separations that have been linked nationwide to more
than 200 accidents.

A lawsuit by attorneys for a paralyzed Portland woman is scheduled for
trial on Jan. 8 in Corpus Christi over allegedly defective
Bridgestone/Firestone tires on a Ford Explorer.

Donna Bailey was left paralyzed from the neck down after the Explorer in
which she was a passenger crashed March 10 on U.S. Highway 181 near Poth.
The case was scheduled to be heard by State District Judge Nanette Hasette
in her 28th District Court.

Attorneys on both sides said that although similar cases have been settled
out of court, none has proceeded to trial.

Paul LaValle, one of several attorneys representing Bailey and her family,
said the case is being monitored by Ford, Firestone and dozens of
plaintiffs around the country who have similar lawsuits pending against the
companies. "We have the full attention of the Ford board of directors and
Firestone and all the attorneys" suing the companies, LaValle of Texas City
told the Corpus Christi Caller-Times.

Executives of Nashville-based Bridgestone/Firestone Inc., who have recalled
millions of ATX and other tires, have denied that design and manufacturing
flaws were to blame for the accidents. The tire manufacturer cited Ford
Motor Co. for recommending a lower tire pressure and heavier load level
than is believed safe for the Explorer.

Ford, which continues its own investigation, maintains that its popular
sport utility vehicle isn't the problem, but said in a preliminary draft of
its report that it agreed with several of the tire maker's other findings.
(The Associated Press State & Local Wire, December 22, 2000)

FIRST DATA: Subsidiariesí Settlement for Mexico Wire Transfer Finalized
First Data Corporation (NYSE: FDC) announced on December 22 that its
subsidiaries, Western Union Financial Services, Inc. and Orlandi Valuta,
have received final approval on a settlement of all claims in a nationwide
class action lawsuit pertaining to the companies' United States-to-Mexico
money transfer businesses.

The United States District Court for the Northern District of Illinois
approved the terms of a settlement which include:

* Creating a $4 million charitable fund that will support Mexican and

* Mexican-American causes. Providing coupons to class members for
   discounts on future money

* transfers from the U.S. to Mexico.

* Enhancing the company's disclosure regarding foreign exchange.

Western Union and Orlandi Valuta are subsidiaries of Atlanta-based First
Data Corporation (NYSE: FDC), a company in electronic commerce and payment

GLAXO WELLCOME: Cohen Milstein Files Securities Lawsuit in West Virginia
On Friday, December 15, 2000, Cohen Milstein Hausfeld & Toll, Peirce
Raimond & Coulter and Levin, Fishbein, Sedran & Berman filed a class action
against Glaxo Wellcome, PLC and Glaxo Wellcome, Inc. in Brooke County, West
Virginia on behalf of all purchasers nationwide of the drug Lotronex.

Lotronex (the brand name for the drug alosetron) was introduced into the
United States market in February 2000. Within six months of the drug's
launch in the United States, approximately 450,000 prescriptions had been
written and filled. The suit, Gill, et al. v. Glaxo Wellcome, PLC, et al.
alleges that the defendants made and marketed Lotronex as safe and
effective in the treatment of Irritable Bowel Syndrome, but failed to alert
consumers to studies which called into question the drug's efficacy and
failed to warn consumers of the risk of serious and life-threatening side
effects, such as ischemic colitis. The drug was withdrawn from the market
on November 28, 2000 at the request of the Food and Drug Administration.

Contact: Cohen Milstein Hausfeld & Toll, PLLC Alexander E. Barnett,

HEARTLAND ADVISORS: Deadline Looms for Lawsuit to Set Legal Precedent
Because class action lawsuits against municipal bond funds are rare, the
case being assembled against Heartland Advisors Inc. and its two high-yield
muni funds that experienced dramatic losses earlier this year has the
potential to set legal-precedent.

Tuesday December 26 is the deadline for all motions proposing a lead
plaintiff that will ultimately be responsible for appointing a lead counsel
to represent a class of investors in a lawsuit against the mutual fund
complex -- and there is no shortage of applicants.

So far, at least 17 separate law firms have filed suit against the funds,
and each is seeking the role of lead counsel.

After Tuesday's deadline, U.S. District Court Judge William E. Callahan,
who was assigned to the case for the Eastern District of Wisconsin, is
expected to rule within 30 days over the consolidation of the suits and the
appointment of the lead plaintiff that will best represent the class of
investors suing the fund complex.

Most of the lawsuits charge that Heartland issued materially untrue and
misleading statements regarding the net asset value of the two funds, the
true risk of investing in them, their performance, and that the funds were
in violation of federal regulations.

Investors are seeking damages incurred through the mismanagement of the
Heartland High-Yield Municipal Bond Fund and the Heartland Short Duration
High-Yield Municipal Bond Fund that ultimately resulted in their one-day
net-asset value devaluations of 70% and 44%, respectively, on Oct. 13.

In a Nov. 14 supplement to its prospectus, Heartland stated that "some or
all of the amounts of such recoveries could be charged against the funds
.... Therefore the funds' assets are exposed to a risk of loss in
connection with these lawsuits and the potential loss could exceed the
assets of the funds."

In addition to Heartland Advisors and the funds, the lawsuits have named as
defendants the parent company Heartland Group Inc.; former portfolio
manager Thomas Conlin, who many market observers hold responsible for
mismanaging the mutual funds in the first place; his co-portfolio manager
Greg D. Winston, who has since assumed management of the funds; Heartland
president William J. Nasgovitz; the funds' board of directors, Hugh F.
Denison, Jon D. Hammes, A. Gary Shilling, Allan H. Stefl, and Linda F.
Stephenson; and even PricewaterhouseCoopers, the auditor of the funds'
financial statements during the period in question.

The list of claims being brought against the funds' management by most of
the law firms are almost as standard as the list of defendants -- but in
one suit, filed by Chestnut & Cambronne in Minneapolis, charges run a
little bit deeper.

                Calling Fund Practices Into Question

In addition to allegations that are similar to those cited in the other
filings, Chestnut & Cambronne charge that Heartland and the defendants
misled the investment community by failing to price the funds' portfolio
securities daily, in accordance with the Investment Company Act of 1940 and
the funds' own prospectuses. The firm's case raises the question of what it
exactly means to price a portfolio's securities daily.

Chestnut & Cambronne's complaint also alleges that investors in the
short-duration, high-yield fund were misled because of its failure to
adhere to a short duration of three years or less as targeted in the
prospectus, which is necessary to maintain the classification as an
intermediate fund.

According to the suit, the fund reported to the Securities and Exchange
Commission that on Dec. 31, 1999, its average weighed maturity was 7.4
years. However, if calculated based on the stated maturities of the fund's
portfolio securities and not on the call dates, the lawsuit alleges that
the fund's average weighted maturity as of Dec. 31, 1999, should have been
14.74 years.

The SEC permits the calculation of a bond's duration based on its call in
calculating a fund's average weighted maturity -- but only if "it is
probable that the issuer of the instrument will take advantage of a
maturity-shortening device such as a call," according to SEC form N-SAR.

Because interest rates tend to fluctuate without a certain level of
predictability, however, the lawsuit alleges that the fund repeatedly
misstated its duration or average weighted maturity by relying too heavily
on calls. There is no single, established standard for calculating weighted
average maturity in the industry, however.

Two managers of short-term municipal funds view the issue differently.

David Kerwin, a portfolio manager at American Express Asset Management
Group Inc., has been hesitant to push the system in calculating his short
duration fund's weighted average maturity -- relying on bonds' stated
maturity with the exception of those that have been pre-refunded or have a
mandatory put. When a bond is trading to its call, "at some point the
premium gets so large that the probability certainly goes up that it's
going to be called," Kerwin said. "But with respect to calculating a fund's
average maturity, I don't think you can start using the call until it
becomes a certainty ... which it is in the case of a pre-refunded bond and
a bond with a mandatory put."

Mark McCray, a senior vice president and portfolio manager of a
short-duration fund for PIMCO in Newport Beach, Calif., walks a much finer
line. McCray said he utilizes what he calls an "option-adjusted duration
measure," whereby he considers the role interest rates will play in
influencing an issuer to call a bond issue, and shortens his portfolio's
weighted average maturity accordingly. "If a bond is actually worth the
yield that causes it to be priced to the call, then that is indeed the
effective duration," McCray said. (The Bond Buyer, December 22, 2000)

INMATES LITIGATION: Cir Ct Order New Counsel for MS System
The American Civil Liberties Union's National Prison Project won the latest
round in a dispute over who should represent some 160 HIV-positive inmates
in Mississippi's prison system.

A federal appeals court took the unusual step of substituting counsel after
inmates complained about what they regard as lackadaisical and unfair
treatment from their previous attorney, Robert R. Welch. "Welch's
nonfeasance and mishandling of certain aspects of the case ... warrant his
substitution here," the 5th U.S. Circuit Court of Appeals said.

Welch, a sole practitioner in Jackson, represents all prison inmates in a
class action brought 20 years ago to correct living conditions in the
Mississippi prison system. The prison system continues to operate under
judicial supervision.

The HIV-positive inmates complained that Welch did virtually nothing in
four years to make the Department of Corrections end segregation by HIV
status and adhere to nationally recognized standards of care for HIV
treatment. The only relief Welch obtained was a requirement for "medically
necessary" diets.

According to the inmates, Welch told them he was too busy to pursue their
complaints and feared an attempt to overturn the state's segregation policy
might antagonize the rest of the inmates. Welch denied saying this.

The HIV-positive inmates then turned to the ACLU. Last year, the ACLU
intervened and obtained a preliminary injunction in federal court that
requires Mississippi prisons to adhere to treatment guidelines established
by the National Institutes of Health (see AIDS Policy & Law, Aug. 6, 1999,
p.1). Welch joined in the ACLU's motion for the preliminary injunction, but
did not contribute to its preparation.

After the injunction, the inmates continued to seek the ACLU's legal help,
and the ACLU moved for a substitution of counsel, buttressed by the
signatures of all 167 HIV-positive inmates at Parchman. Early this year,
the federal judge who issued the injunction denied the request, ordered the
ACLU to cease all contact with the inmates and refused to award the ACLU
legal costs. The ACLU appealed, arguing that Welch's relationship with the
state was too cozy.

In November, a divided three-judge panel decided that Welch's limited
resources and "his subjective belief that he was unable actively to
prosecute the HIV-positive prisoners' claims" necessitated a chance of

Welch failed to obtain outside expert review of the HIV-positive inmates'
medical care. The ACLU had to step in, paying for corrections health-care
experts that characterized the state's early attempts at improvement as
"abysmal" and "shocking."

Writing for the court, Circuit Judge Fortunato Benavides said Welch's
"direct admission" about his unwillingness to advocate on behalf of the
subclass of HIV-positive inmates strongly suggested that he recognized a
conflict of interest existed. The appeals panel also directed the judge to
hear the ACLU's motion for legal fees.

Circuit Judge Edith H. Jones dissented. Jones said precedents establish
that the court lacked jurisdiction in this particular situation to direct a
substitution of counsel. Moreover, the majority adopted the ACLU's
statement of facts as valid, even though the district judge implicitly
credited Welch's version of events and Welch denied the ACLU's key

Jones said the ruling "will encourage dissident prisoner groups to
second-guess class counsel and seek separate representation, effectively
harassing class counsel and wasting precious public resources on tangential
issues." Gates v. Cook, No. 99-60609 (5th Cir., 11/20/00). (AIDS Policy and
Law, December 22, 2000)

MEDICAID HEALTH: Violates Medicaid Law in Restricting Therapy LA Ct Says
In a class action, the U.S. District Court, Eastern District of Louisiana
agreed with a class of students with disabilities that the Louisiana
Department of Health and Hospitals violated Medicaid laws because it
restricted the provision of occupational, speech and audiological therapies
to those allowed by school districts. Chisholm v. Hood, 4 ECLPR 234 (E.D.
La. 2000).

The class of students was comprised of two groups. The first group was made
up of students who attended school and were required by the state to
receive their necessary therapy through the district. The second group was
comprised of students in homebound placement due to the severity of their
disabilities who could not obtain the therapies they required.

The court granted the class of students a partial summary judgment on the
issue of the restriction of the various therapies available to the students
receiving Medicaid funding. However, it deferred judgment on the state's
screening procedures and ability to arrange treatment for the students
because the class and the state had entered into a settlement agreement to
address those issues.

Under Medicaid's Early and Periodic Screening, Diagnostic and Treatment
services requirement, states are required to make available a variety of
individual and group providers qualified and willing to provide EPSDT
services. The state's policy violated the rights of class members in two
ways. First, it violated the homebound class members' rights. The court
elaborated, by strictly limiting these services to schools and prohibiting
inclusion of such services under home health services, DHH is not providing
or making available these medically necessary services to those who are
confined to the home.

Second, the state limitation of those services violated the entire class's
right to acquire those services from any institution or agency that is
qualified to provide such services. The court stated, restricting Medicaid
recipients to schools and (early intervention centers) for therapy services
that are traditionally included in the educational or family service plans
violates their statutory right to obtain these services from other
qualified providers. (The Special Educator, December 19, 2000)

PACIFICARE HEALTH: Several Law Firms Have Filed Securities Lawsuits
Several law firms have filed class-action suits against PacifiCare Health
Systems, Inc. alleging that the insurer misled investors. The cases allege
that PacifiCare executives gave misleading information about the firm's
financial condition, leading to artificially inflated stock prices. The
suits seek to represent those who held stock between Oct. 27, 1999 and Oct.
10, 2000 -- the date PacifiCare issued a warning to investors that earnings
would be lower than expected. Call (714) 825-5120. (Managed Care Week,
December 11, 2000)

PCORDER.COM, TRILOGY: Harvey Greenfield Announces on Amended Complaint
Notice is hereby given that a class action lawsuit was removed from the
District Court of Travis County, Texas on December 4, 2000, to the United
States District Court for the Western District of Texas, Austin Division,
which, as set forth in an Amended Class Action Complaint for Violations of
the Federal Securities Laws filed on December 6, 2000 was brought on behalf
of all persons who acquired the common stock of PCOrder.com (NASDAQ: PCOR)
pursuant to the registration statement dated February 25, 1999 or November
22, 1999 or who purchased shares of PCOR stock in the aftermarket that are
traceable to the Registration Statements; and on behalf of all security
holders of PCOR, who are or will be threatened with injury arising from
defendants' actions as more fully described in the Amended Complaint and
who were entitled to tender their shares of PCOR pursuant to an Offer to
Purchase for Cash Any and All Outstanding Shares of Class A Common Stock of
PCOR, at $6.375 Net Per share by Trilogy Software, Inc., dated November 6,

The Amended Complaint alleges, among other things, that PCOR and its Board
of Directors violated Section 11 of the Securities Act of 1933 by issuing
stock pursuant to materially false and misleading registration statements
on February 25, 1999 and November 22, 1999. The Amended Complaint also
alleges that Trilogy is liable as a controlling person of PCOR. The Amended
Complaint also alleges that PCOR's board of directors breached its
fiduciary duties to its shareholders for entering into an agreement to be
acquired by Trilogy for $6.375 per share and that Trilogy aided and abetted
the breach of fiduciary duty. The Amended Complaint also alleges that
Trilogy violated the Securities Exchange Act of 1934 by issuing a
materially false and misleading offer to purchase to PCOR's shareholders.

Contact: The Law Firm of Harvey Greenfield Harvey Greenfield, Esq.,
212/949-5500 toll free: 877/949-5500 facsimile: 212/949-0049

PCORDER.COM, TRIOLOGY: Stull, Stull Announces on Amended Complaint
The following is an announcement by the law firm Stull, Stull & Brody:

Notice is hereby given that a class action lawsuit was removed from
District Court of Travis County, Texas on December 4, 2000, to the United
States District Court for the Western District of Texas, Austin Division,
which, as set forth in an Amended Class Action Complaint for Violations of
the Federal Securities Laws filed on December 6, 2000, was brought on
behalf of all persons who acquired the common stock of PCOrder.com
(NASDAQ:PCOR) pursuant to the Registration Statements dated February 25,
1999 or November 22, 1999 or who purchased shares of PCOR stock in the
aftermarket that are traceable to the Registration Statements; and on
behalf of all security holders of PCOR, who are or will be threatened with
injury arising from defendants' actions as more fully described in the
Amended Complaint and who were entitled to tender their shares of PCOR
pursuant to an Offer to Purchase for Cash Any and All Outstanding Shares of
Class A Common Stock of PCOR, at $6.375 Net Per share by Trilogy Software,
Inc. ("Trilogy"), dated November 6, 2000.

The Amended Complaint alleges, among other things, that PCOR and its Board
of Directors violated Section 11 of the Securities Act of 1933 by issuing
stock pursuant to materially false and misleading registration statements
on February 25, 1999 and November 22, 1999. The Amended Complaint also
alleges that Trilogy is liable as a controlling person of PCOR. The Amended
Complaint also alleges that PCOR's board of directors breached its
fiduciary duties to its shareholders for entering into an agreement to be
acquired by Trilogy for $6.375 per share and that Trilogy aided and abetted
the breach of fiduciary duty. The Amended Complaint also alleges that
Trilogy violated the Securities Exchange Act of 1934 by issuing a
materially false and misleading offer to purchase to PCOR's shareholders.

Contact: Stull, Stull & Brody, New York Aaron Brody, Esq., 1-800-337-4983

PSINet INC: Court OKs Former Metamor Shareholders' Claims over Merger
On December 20, 2000, the United States District Court for the Eastern
District of Virginia denied defendants' motion to dismiss as to certain
claims contained in a complaint filed by the law firm of Berger & Montague,
P.C. (http://www.investorprotect.com)on behalf of all former shareholders
of Metamor Worldwide Inc. ("Metamor") who acquired PSINet Inc.'s (Nasdaq:
PSIX) stock through PSINet's merger with Metamor, which was consummated on
or about June 16, 2000.

The complaint charges PSINet and certain of its officers and directors with
violations of Sections 11, 12(a)(2) and 15 of the Securities Act of 1933.
The complaint alleges that Defendants made materially false and misleading
statements in the Registration Statement/Prospectus filed in connection
with the Metamor merger. The misrepresentations concerned whether the
businesses of Metamor and its subsidiary Xpedior Incorporated were
complementary in nature to the business of PSINet, and the effect that the
merger would have on PSINet.

Contact: Sherrie R. Savett, Esquire, or Michael T. Fantini, Esquire, or
Kimberly Walker, Investor Relations Manager, of Berger & Montague, P.C.,
888-891-2289 or 215-875-3000, or fax, 215-875-5715, or

SECRET SERVICE: Treasury Opposes Lawsuit By Black Agents
The Treasury Department asked a federal judge to throw out a class-action
lawsuit brought by black U.S. Secret Service agents who say they have been
subjected to a "racially hostile work environment."

The department, which oversees the Secret Service, said in court papers the
agents had failed to wait the required six months to file the lawsuit after
lodging a complaint against the agency with the Equal Employment
Opportunity Commission.

U.S. District Court Judge Richard Roberts in Washington was expected to
rule on the government motion as early as before Christmas.

The agents accused Secret Service officials of failing to promote blacks to
management positions despite job performance ratings showing they were
qualified for the posts.

They also charged that black agents, some of whom were assigned to protect
President Clinton and Vice President Al Gore, were subjected to a pervasive
pattern of discrimination involving performance evaluations, transfers,
assignments and training.

Further, they said the agency engaged in a pattern of racial prejudice and
that promotions were based on friendships rather than job qualification.

Secret Service officials have declined to discuss the case since the matter
is under litigation. But spokesman Jim Mackin has said that the agency
"takes very seriously any complaint of racial discrimination." He said the
Secret Service has "actively engaged in ensuring a diverse work environment
and affording equal opportunity to each of our employees."

Mr. Mackin said every effort has been made to ensure that minorities are
given equal opportunity for promotion and advancement, adding that of the
seven officials assigned as the top assistants to Secret Service Director
Brian L. Stafford, two are black.

He also said that seven of the agency's 10 largest field offices are headed
by minority agents, including four blacks. He noted that 17 percent of the
Secret Service's Senior Executive Service agents are black. The Executive
Service consists of agents considered as the agency's top management.

Handling the lawsuit for the black agents are Washington attorneys David J.
Shaffer, who was active in similar cases involving black agents at the FBI
and Bureau of Alcohol, Tobacco and Firearms, and John P. Relman, who
represented six black Secret Service agents in a discrimination lawsuit
against Denny's restaurants. That case was settled in favor of the agents
for $54 million.

At a press conference this year, the agents described what they said was a
"pervasive failure" within the Secret Service to respond to complaints of
discrimination, adding that both Mr. Clinton and Mr. Gore were told of
serious problems involving black agents but failed to respond.

The agents also said the agency rarely disciplined or corrected white
agents who used racial epithets or committed other racially hostile acts,
and allowed a racially hostile environment to flourish in its offices

"We're not talking about individual people or individual acts. We're
talking about a system that is flawed," said Agent Robert J. Moore, a
16-year veteran. "We need to fix this broken system or get rid of it."

Mr. Moore cited actions by Secret Service officials in Washington who
failed to punish white agents attending an annual whites-only "Good O' Boys
Roundup" in Tennessee. He said some of the agents who participated in the
event later were promoted to supervisory positions.

In the FBI case, black agents - who formed an organization known as Badge -
accused the bureau of racial discrimination and won a sweeping 1993 hiring
and promotions settlement. The ATF agreed in 1996 to a $5.9 million
settlement in a discrimination lawsuit brought by black agents.

The lawsuit has spawned the creation of an association known as BASS (Black
Agents in the Secret Service) that will represent the agency's minorities.

The lawsuit was filed by 10 agents on behalf of 225 active black agents and
as many as 200 retired agents. It seeks up to $300,000 each and back pay
for those unfairly denied promotions. The agents also are demanding the
agency put an end to racist remarks from other workers and change how
evaluations, assignments, promotions and transfers are carried out. (The
Washington Times, December 22, 2000)

UNION PACIFIC: Clean-up Goes on 7 Mths. after Eunice Freight Train Crash
Seven months after a freight train crashed in Eunice, the investigation,
cleanup and concern are still going on. For the most part, life is back to
normal. Burning chemicals kept more than one-quarter of the 11,500
residents out of their homes for six days after the wreck on May 27. "The
trains are going again," Mayor Kenneth Peart said. "We've asked that they
be slowed down. We've gotten no positive reactions. We've called our
congressmen, representatives, senators and everybody else."

Perhaps the most noticeable remainder is that City Lake, usually dotted
with boats, is still closed.  "I don't think anything's changed. ... You
hear a lot of stories, but I think that's all it is - stories," said Bobby
Daley, one of the 3,500 people evacuated. His house was near the edge of
the evacuation area.

Michael Simon, whose house is closest to the wreck site, still cannot
return home. He and his wife are living in an apartments they own, attorney
Jacques Pucheu said. He said Simon is among about 3,000 clients of a group
of 21 local attorneys. Thousands more are represented by other lawyers in
lawsuits consolidated for trial.

Not all were evacuees. The train crashed on a Saturday morning. Adults were
golfing at the nearby country club. Children were splashing in the city
pool, open for the first day of the season. Families were checking the
shelves and racks at two nearby shopping centers.

Thirty of the train's 113 cars derailed. Explosions belched fireballs
skyward and shattered glass a quarter-mile away. Several cars were loaded
with hazardous chemicals including methyl chloride, acrylic acid and

U.S. District Judge Richard T. Haik is expected to set a schedule early
next year for deciding whether to make the case a class action suit and who
should be in the class.

Claims include property and crop damage, inconvenience, and fear of
long-term health effects, attorney Jacque Pucheu said. People should get
the results of tests on soil and dust samples from their homes by early
2001, Union Pacific Railroad spokesman Mark Davis said. Results from three
houses in Eunice and a comparison house in Crowley found more harmful
chemicals in dust samples from the Eunice homes, though dirt samples were
about the same, New Iberia chemist Wilma Subra said earlier this year.

Pucheu said some of his clients disagreed with the railroad's assessment of
damages. Crawfish farmers whose ponds are within five miles of the
derailment site don't yet know if they'll be able to sell their crops for
as much as other farmers, he said. "The railroad's been fair to me," Daley
said. "They were real helpful."

The National Transportation Safety Board has not said what caused the

A Texas Railroad Commission official said last month that Federal Railroad
Administration officials have told him that the derailment was caused by
broken joint bars connecting sections of rail.

However, Davis said, FRA did not have anyone at the crash site.

City Lake in Eunice remains closed. The state Department of Environmental
Quality will not reopen it until final test results are in. Those will not
be in before the new year, Davis said, and DEQ's final decision could take
months. (The Associated Press State & Local Wire, December 22, 2000)

WATER HEATERS: Plumging Company Urges Owners to Check for Free Repairs
of appliances with the defective part must make claims quickly, though. A
local plumbing company is urging water heater owners to check whether they
are eligible for free repairs and replacement parts. But time is running

A federal court has approved a settlement in a class-action lawsuit. That
settlement provides for free replacement of defective dip tubes - as well
as free repair of problems caused by the tubes - in water heaters whose
tubes were manufactured by Perfection Corp. A dip tube carries cold water
into the heater.

To be eligible, heater owners must own a heater that was manufactured
between August 1993 and March 1997 by the following companies: American
Water Heater Co., A.O. Smith Corp., Rheem Manufacturing Co., Rudd, State
Industries and Lochinvar.

The product fault was blamed on the dip tube manufacturers, not the water
heater makers.

Bob Tsacrios Plumbing in Homosassa has encouraged people to check whether
they might have a water heater that fits this description. Claims must be
registered and postmarked by the end of the year. Consumers will receive a
certificate that they can redeem for free products or services.

The dip tubes are prone to disintegrate, which causes improper water
distribution, loss of hot water and excessive electricity costs, among
other problems.

Tsacrios Plumbing is one of the few authorized vendors that can carry out
the repair work. (St. Petersburg Times, December 22, 2000)

WEYERHAEUSER COMPANY: CA Judge OKs Settlement for Harbboard Siding
A California court on December 22 granted final approval of a settlement of
a nationwide class-action lawsuit between Weyerhaeuser Company, the
Washington State wood and paper giant, and homeowners who had Weyerhaeuser
hardboard siding installed on their structures from Jan. 1, 1981 to Dec.
13, 1999.

Judge Alfred G. Chiantelli of San Francisco Superior Court's final approval
order authorizes the establishment of an inspection and claims program that
will provide compensation for hundreds of thousands of property owners
nationwide who have failing Weyerhaeuser Company brand exterior hardboard
siding that has swollen, warped, buckled, or otherwise prematurely

Under the claims made settlement, Weyerhaeuser will pay all valid and
timely claims filed by property owners who own or owned a structure on
which Weyerhaeuser brand hardboard siding has been installed. Unlike other
similar settlements involving failing siding, this settlement is
open-ended, with no cap on the total amount that Weyerhaeuser could pay in

"The settlement agreement mandates that every timely and valid claim be
paid by Weyerhaeuser, not just those who register a claim first," said
Christopher I. Brain, a partner at co-lead counsel Tousley Brain Stephens
PLLC. "In addition, we also negotiated to have Weyerhaeuser pay for all
claims, administration costs and attorney fees at no expense to the
claimants, so every penny of the settlement goes to the claimants."

The settlement provides a compensation formula based on the cost of
replacing the siding in the claimant's geographic area. Once a claim is
filed, an independent inspector will inspect the siding to determine
whether it is damaged. Claimants who have previously paid to repair their
siding are also eligible to make a claim.

"This settlement is a tremendous victory for homeowners. It provides real
and immediate relief to homeowners with failing siding in a fair and
efficient manner. We are very proud of this settlement," said co-lead
counsel Jonathan D. Selbin of Lieff Cabraser Heimann & Bernstein, LLP.

Class members may call the Independent Claims Administrator toll free at
800/365-0697 or visit the website at www.weyerclaims.com to request a claim
form or receive additional settlement information.

"Although it's taken more than two years of hard fought litigation and
negotiation to attain this result, we couldn't be more pleased with the
settlement," noted co-lead counsel William M. Audet of Alexander Hawes &
Audet. "Now homeowners can rest assured knowing they will finally be fairly
compensated for their damaged siding."

The settlement does not provide compensation for damages caused by improper
installation, recklessness or negligent conduct after installation, or
damages resulting from natural disasters.


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
publication in any form (including e-mail forwarding, electronic
re-mailing and photocopying) is strictly prohibited without prior
written permission of the publishers.

Information contained herein is obtained from sources believed to be
reliable, but is not guaranteed.

The CAR subscription rate is $575 for six months delivered via e-mail.
Additional e-mail subscriptions for members of the same firm for the
term of the initial subscription or balance thereof are $25 each.  For
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