CAR_Public/010202.MBX               C L A S S   A C T I O N   R E P O R T E R

              Friday, February 2, 2001, Vol. 3, No. 24

                             Headlines

18-B REPRESENTATION: Suit Seeks Equal Protection for Criminal Suspects
ALABAMA: Ruling on Franchise Tax Refunds Sets Stage for More Suits
ALLEGHENY COUNTY: Murphy Wages Suit against Land Value Reassessments
AOL TIME: Former Volunteers Sue Alleging FLSA Violations
ASCENDANT SOLUTIONS: Brodsky & Smith Announces Securities Suits

ATLANTA: Class of Out-of-city Water Users Get Rates Reduction
BIG ISLAND: Judge Awards More Than $4 Mil For Rigged Police Promotions
BLOCKBUSTER INC: Private Video Stores File Suit in CA Alleging Monopoly
BOARD OF TRADE: Antitrust Suit By Soybean Farmers in 1089 Still Pending
CINAR CORP: RCMP to File Brief against 5 Suspects in Alleged Tax Fraud

E.SPIRE: Announces Dismissal of Securities Suit with Prejudice in MD
HMOs: HealthOptions Agrees to Pay Woman Whose Brother Has Battled
HOLOCAUST VICTIMS: Return Assets Eligibility Ban on Non-Poles Criticized
INVESTMENT FIRMS: CA Suit Alleges of Looting Trusts for Personal Injury
LOCKFORMER CO: Lisle Residents Argue for Class Cert. in Metal Plant Case

MET LIFE AGENTS: Chinese Americans Accuse Chinese Americans of Fraud
NEFF-UNITED: Dissident shareholders say Big Guys Get Sweeter Deal
OREGON: Board of Ed. Settles with Students with Learning Disabilities
PRESIDENTIAL ELECTION: Trial Lawyers and Experts Issue Split Opinion
TOBACCO LITIGATION: Sp Ct in FL Denies B&W Appeal of $750,000 Damages

WASTE MANAGEMENT: Former Executives to Chip in $23M for Securities Fraud

* Class Counsel Selection Grabs Attention of 3rd Cir; Task Force Formed

                           *********

18-B REPRESENTATION: Suit Seeks Equal Protection for Criminal Suspects
----------------------------------------------------------------------
In conjunction with a strike on the steps of the Nassau County Courthouse
by 18-B attorneys who refused to accept cases due to low fees, the
Criminal Courts Bar Association of Nassau County has filed a federal
lawsuit on behalf of criminal defendants, alleging equal protection
violations. The lawsuit, brought in the Eastern District, seeks
class-action status for 18-B criminal defendants, whom the complaint
states are overwhelmingly comprised of blacks and Hispanics. The action
alleges that those minority defendants receive inadequate representation
from lawyers who suffer a financial loss when accepting court-assigned
cases. Named as defendants are Governor Pataki and Nassau County.

Conferences to determine that discovery is proceeding on schedule will
now be handled by a single judge in Queens Supreme Court. Queens
Administrative Judge Steven W. Fisher appointed Acting Justice Martin E.
Ritholtz to preside over a new part, starting Feb. 5. At the conferences,
Justice Ritholtz will attempt settlement and take appropriate action to
assure that discovery is completed. In Queens, the handling of
preliminary conferences, required within 45 days after the first motion
in a case is filed, has been consolidated before Referee Elizabeth
Yablon. In addition, two justices - David Goldstein and Alan LeVine -
have been assigned to hold conferences in cases before they are sent out
to trial. Individual judges in Queens will continue to handle all other
pretrial motions. Once a case is sent out to trial, it will be assigned
to the judge who had it for pretrial purposes, if that judge is free. The
new rule consolidating compliance conferences is published in the "Court
Notes" section on page 14.

Attorneys appointed to represent federal criminal defendants will receive
a nominal pay increase as President Clinton last month signed an
appropriations bill raising the hourly Criminal Justice Act rate from $
50 to $ 55 for out-of-court time and from $ 70 to $ 75 for time in court.
The bill follows a recent amendment to the Criminal Justice Act raising
the allowable fees in felony cases from $ 3,500 to $ 5,200, with
proportional increases for other categories.

The Albany County Bar Association has elected new officers for 2001. They
are: Thomas P. Connolly of McNamee, Lochner, Titus & Williams, president;
Theresa L. Egan of Stephen J. Waite & Associates, president-elect;
Michael P. Friedman of Friedman & Molinsek, vice president; Cynthia
LaFave of LaFave & Higgins, treasurer; and John B. Kinum of McNamee,
Lochner, Titus & Williams, secretary. Elected to three-year terms on the
Board of Directors were Phillip G. Steck, of Cooper, Erving, Savage,
Nolan & Heller, and Randolph F. Treece, counsel to the State Comptroller.

Pillsbury Winthrop has become the second San Francisco-based firm to
raise the bar on associate salaries in New York through a firmwide
increase. In a move previously made by Brobeck, Phleger & Harrison, the
firm raised its salary for first-year associates to $ 135,000 from $
125,000, which remains the going rate among Manhattan's top firms. At
Pillsbury Winthrop, the offspring of the merger between Pillsbury Madison
& Sutro and Manhattan's Winthrop, Stimson, Putnam & Roberts, first-years
who bill more than 2,400 hours could make as much as $ 170,000 under a
system of merit and hours-based bonuses. (New York Law Journal, January
24, 2001)


ALABAMA: Ruling on Franchise Tax Refunds Sets Stage for More Suits
------------------------------------------------------------------
Yet another financial problem has surfaced for Alabama officials now that
a judge has ruled in the first of many franchise tax lawsuits, ordering
refunds for two companies and setting the stage for many similar
lawsuits.

The settlement surrounds the state's attempt to tax out-of-state
companies at a higher rate than businesses in Alabama -- a move that was
struck down by the U.S. Supreme Court. The state settled with two
companies that brought suit against the tax, paying BellSouth Corp. $40
million in tax credits and CSX Transportation Inc. nearly $3 million.

In the first of hundreds of lawsuits now in the courts, tax refunds have
been ordered for two other companies and more court hearings are
scheduled. State officials estimate that nearly $700 million in refunds
could be at stake and a request to consolidate the cases into a class
action is pending. (The Bond Buyer, February 1, 2001)


ALLEGHENY COUNTY: Murphy Wages Suit against Land Value Reassessments
--------------------------------------------------------------------
Mayor Tom Murphy will spearhead a class-action lawsuit challenging the
countywide reassessments, he said, unless an Allegheny County Common
Pleas Court judge agrees to his 11th hour plea to reset the city's
residential land values.

The so-called "taxpayer lawsuit" could be Murphy's latest challenge to
what he has said are unfair and inequitable revaluations by assessors
Sabre Systems and Service, following the city's other forays into court
and Murphy's own appeal of the assessment of his Perry South home.

At the same time as Murphy addressed council, a city lawyer was on
another floor of the City-County Building challenging Sabre's valuations
in a hearing before Judge R. Stanton Wettick Jr.

Murphy wants Wettick to set residential city land values at a flat 15
percent of their overall valuations, but the judge seemed wary of the
city's argument. A ruling should come by early next week.

The class-action suit will be filed if Wettick does not rule in the
city's favor, Murphy said.

"If we're not successful in getting at least temporary relief on the land
and building value, we'll pursue this in a more aggressive way," Murphy
said.

Sabre increased many city land values in the reassessment it performed
over the last three years. The city currently taxes land at a rate nearly
six times higher than buildings, which would mean tax increases for many
city homeowners.

It also has given a political headache to Murphy and City Council, who
have been scrambling legislatively and legally to battle the tax
increases and land values they consider to be excessive or wildly
divergent from property to property, street to street, and neighborhood
to neighborhood.

Wettick has overseen the reassessment effort since 1996, when taxpayers
from the Quaker Valley School District challenged an assessment freeze,
arguing that it locked in disparities in property values. Wettick ordered
the reassessment after ruling that the freeze was illegal.

Murphy said the system remains inequitable and Wettick needs to keep
working on it.

"We would initiate the taxpayer lawsuit to go back to Judge Wettick and
ask him to do, in effect, what he said in 1997 in an opinion, which was
to create a fair system," Murphy said.

"The overall assessments and the division between land and buildings
don't work, not in individual, isolated cases, which could be taken care
of through the appeal process, but in large numbers. We believe, and
we're trying to document this, that they're as far off with the new
system as we were with the old system."

Murphy's threatened suit has not been prepared and there are no
plaintiffs on board to file it, said Murphy's spokesman Craig Kwiecinski.
They will be "regular citizens," he said.

In court, Wettick said the city would have to meet a "heavy burden" in
proving that the $ 23.9 million reassessment was so flawed that it
merited, in essence, a second reassessment of city land.

Ordering the initial reassessment was easy, he said, because virtually
everybody agreed that the system was "broken."

But the county has defended the Sabre values, as has the firm. An
independent audit, after analyzing Sabre's methodology and randomly
sampling its work, also gave the firm high marks.

While assistant city Solicitor Ron Pferdehirt noted that many property
owners have complained about their land values, he conceded during
questioning from Wettick that the city had not done a study to determine
the quality of Sabre's work.

"You at least have to have a prima facie case, based on a study, that
what they have in place is basically wrong," Wettick said.

But Pferdehirt said such a study would take months to do and would cost
thousands, if not hundreds of thousands of dollars, to do.

He said the "fair temporary solution" would be Murphy's proposal to
adjust the land values of all residential property in the city this year
so that they equal 15 percent of the property's total market value.

The mayor also wants the county to revisit the land values assigned to
residential properties by Sabre to correct mistakes in time for 2002.

This week, the city produced a ward-by-ward breakdown showing the
percentage of land to the total market value in 2000 and this year. In
many cases, though not all, the land ratio increased from 2000 to 2001,
sometimes significantly.

Two areas cited by the city were Shadyside's 7th Ward, where the land
ratio increased from 14 percent to 28 percent, and Squirrel Hill's 14th
Ward, where it jumped from 12 to 28 percent.

"Maybe that's right," Wettick countered. "It may be that people are far
more interested in building in the 14th Ward than in [some of the other
wards]. Maybe that's all that's saying."

He also pointed out that land values in the 13th Ward dropped from 22
percent to 16 percent of the overall market value. They also dropped in
the Downtown wards and a handful of others.

At the same time, Wettick questioned Murphy's rationale for asking that
all residential land be assessed at 15 percent of the overall value.

"There are certain neighborhoods where I know there are vacant lots and
lots of vacant lots and people can't give them away. ... I'm supposed to
say [the land's] at 15 percent. And in another neighborhood, where people
die for a vacant lot, I'm supposed to say it's at 15 percent?" he asked.

Pferdehirt told Wettick that Murphy's proposal was "not the perfect
remedy." But he said it was a temporary solution to give the county time
to correct inequities.

Pferdehirt also cited in court an emergency petition to intervene filed
by the homeowners association for townhouse owners on Washington's
Landing. The Village at Washington's Landing Community Association wants
land values set at 17 percent of the overall assessment in the city and
Mount Oliver and at 20 percent in all other areas of the county.

The association said land values on Washington's Landing fluctuated from
24 percent to 53 percent of the total assessment and that the average was
35. They were "significantly at odds with common wisdom and experience
regarding the relative value of land to buildings in developed
residential property.

"The court can take note that while these levels of alleged residential
land values might make sense in Manhattan or the San Francisco
waterfront, they have no place in the Pittsburgh market," the petition
says.

Wettick said that while he understood such concerns, "I don't know that
the system is flawed."

He added that if he were to grant the city's request to assess all land
at 15 percent of its overall value, there probably would be a
class-action lawsuit within a week "asking it to be set aside."

Wettick also questioned the wisdom of comparing land values this year to
those last year or in other years, saying that in the last 15 years, any
increases assigned to city properties were "placed on the building and
not the land."

Sabre officials, in defending their values, have said that land
assessments in the city were artificially low.

Despite the skepticism, Pferdehirt pressed Murphy's case that the only
way to resolve inequities was to temporarily readjust and fix land values
while the county made long-term corrections. "We think it's that bad," he
said of the reassessment in the city. (Pittsburgh Post-Gazette, February
1, 2001)


AOL TIME: Former Volunteers Sue Alleging FLSA Violations
--------------------------------------------------------
In the spring of 1999, the Department of Labor ("DOL") began an
investigation of the applicability of the Fair Labor Standards Act
("FLSA") to the Community Leader program of AOL Time Warner Inc. The
Company believes the Community Leaders are volunteers, not employees,
that the Community Leader program reflects industry practices, and that
its actions comply with the law. The Company is cooperating with the
DOL's inquiry, but is unable to predict the outcome of the DOL's
investigation and cannot reasonably estimate a range of possible loss
given the current status of the DOL's investigation.

Former volunteers have sued the Company on behalf of an alleged class
consisting of current and former volunteers, alleging violations of the
FLSA and comparable state statutes.

The Company believes the claims have no merit and intends to defend them
vigorously. The Company cannot predict the outcome of the claims or
whether other former or current volunteers will file additional actions,
nor can the Company reasonably estimate a range of possible loss given
the current status of the litigation.


ASCENDANT SOLUTIONS: Brodsky & Smith Announces Securities Suits
---------------------------------------------------------------
Brodsky & Smith, L.L.C., of Bala Cynwyd, PA, announced on February 1 that
class action lawsuits have been initiated in federal courts across the
country alleging violations of the federal and/or state securities laws
involving the purchase of stock of Ascendant Solutions, Inc.
(NASDAQ:ASDS) for the proposed period 11-11-99 to 01-24-00.

The class has not been certified by the court for this stock, and until
certified, an investor is not represented.

Contact: Brodsky & Smith, L.L.C., Bala Cynwyd Jason L. Brodsky, Esquire
or Evan J. Smith, Esquire 877/LEGAL90 esmith@brodsky-smith.com


ATLANTA: Class of Out-of-city Water Users Get Rates Reduction
-------------------------------------------------------------
Fulton residents who live outside Atlanta but use city water have won a
significant victory toward getting their water rates reduced.

A Fulton judge has given all out-of-city water customers class-action
status in a lawsuit filed by five north Fulton residents who claim the
city has been unfairly charging higher rates outside the city for years.
The certification means if the city loses, it may have to refund millions
in overcharges to more than 33,500 Fulton County customers.

Without class status, the city would have only been on the hook for the
costs to the plaintiffs.

"We have tried and tried to get the city to sit down and talk with us
about this, but we haven't had any luck," said David Pope, a lawyer
representing the five plaintiffs.

The suit involves a surcharge the city slaps on water bills for customers
who don't live inside city limits. Before the suit, the city charged
outside residents 34 percent more than city residents.

Pope said most of the residents and businesses in the class are in the
Sandy Springs area, but there are also a considerable number south of
Atlanta as well.

"Our plaintiffs just happen to be from Sandy Springs," Pope said.

The lawsuit seeks to eliminate the rate surcharge and refund users for
the prior four years. The refund could be more than $ 6 million. Fulton
County government filed a similar suit opposing only the surcharge. It
has been consolidated with Pope's complaint.

The rate differential was a bone of contention between the two
governments last year when the two negotiated over service delivery as
mandated under state law.

County officials believe no rate hike could be justified. A study was
commissioned and said Atlanta could justify a difference of 5 percent.
Atlanta submitted more information to the consultant, who then said the
city could charge 21 percent more outside its boundaries.

The Atlanta City Council voted in May to drop its rate to 21 percent.

Robert Godfrey, deputy city attorney, said Atlanta's rate differential is
common policy around the country. He expects it to be upheld at trial.

"It's the taxpayers of the city and water customers who have paid for the
system over the years," Godfrey said. "I don't see how it's unfair to ask
someone who came along later and was added to the system to help those
who paid for it to recoup some of that cost."

Pope, though, said statistics given to the consultant were flawed because
much of the expense that Atlanta declared to get the higher cost had
actually been borne by developers and Fulton County.

"We contend there is no justification for any differential," Pope said.
Godfrey said he's expecting trial later this year.

"I guess it will be a battle of the expert engineers," he said. (The
Atlanta Journal and Constitution, February 1, 2001)


BIG ISLAND: Judge Awards More Than $4 Mil For Rigged Police Promotions
----------------------------------------------------------------------
A Circuit Judge has filed a judgment awarding more than $4 million in
damages to 19 retired and current Big Island police officers who sued
over rigged promotions.

Judge Riki May Amano's action was filed last week, 13 months after a jury
verdict in the case.

"Finally, one chapter is finally done," said lead plaintiff William
Silva, a retired lieutenant.

In 1999, a jury awarded $4.6 million to the 19 plaintiffs, who said they
were denied promotions because of fixed interviews by De Morales. They
claim they were wrongly passed by in favor of candidates preferred by
former Chief Guy Paul.

Amano's judgment reduced the amount to $4.1 million.

The judgment cleared the way for the defendants to pursue an appeal. The
defendants are retired Police Chief Wayne Carvalho, retired Deputy Chief
Francis De Morales and Hawaii County. (The Associated Press State & Local
Wire, February 1, 2001)


BLOCKBUSTER INC: Private Video Stores File Suit in CA Alleging Monopoly
-----------------------------------------------------------------------
A group of some 150 owners of private video stores has sued Blockbuster
Inc., claiming the company is monopolizing the video rental market and
trying to drive independent stores out of business.

The lawsuit filed in Los Angeles Superior Court on Wednesday claims that
because Blockbuster is owned by media giant Viacom Inc., the chain has
"substantial market power and influence with the Hollywood studios" and
has entered into "secret 'revenue sharing' agreements" with them.

The lawsuit claims that under the alleged secret agreements entered into
in late 1997 and early 1998, studios share in rental revenues generated
by Blockbuster, and in exchange provide the chain with videos for
fractions less than independent stores pay.

The deals were made to increase Blockbuster's market share and drive
competitors out of the market, the suit alleges. The plaintiffs, who are
seeking class-action status, include the owners of video stores around
the country, including California, Hawaii and New Jersey.

Blockbuster, headquartered in Dallas, is the leading video rental chain,
with some 7,500 stores worldwide.

The claims against Blockbuster are similar to accusations in a federal
antitrust lawsuit filed in 1999 against Borders and Barnes & Noble by the
American Booksellers Association. That suit alleged an attempt to run
independent bookstores out of business by illegally arranging favorable
terms from publishers. (The Associated Press State & Local Wire, February
1, 2001)


BOARD OF TRADE: Antitrust Suit By Soybean Farmers in 1089 Still Pending
-----------------------------------------------------------------------
The Board of Trade of the City of Chicago Inc. reveals in its report to
the SEC that, on November 14, 1989, plaintiff Sanner brought suit against
the company.

This case is pending in federal court in the Northern District of
Illinois, Eastern Division. The one remaining count in this case is an
antitrust claim for monetary damages brought on behalf of a class of
soybean farmers alleging a conspiracy to fix the price of cash soybeans.

The claim is based on an emergency order promulgated by Board of Trade’s
board of directors in connection with the July 1989 soybean futures
contract. The other defendants in this suit are certain individuals
alleged to have been involved in recommending or implementing the
emergency order. All of the other claims brought in plaintiff's original
complaint, which was filed in 1989, have been dismissed.

The court certified the Sanner case as a class action, but Board of
Trade’s motion for reconsideration of this decision, and requesting
summary judgment, is still pending, and discovery is complete. The court
denied the defendant’s motion for summary judgment but without prejudice
to reassert a motion for summary judgment on the issues of market power
and antitrust injury. The company has also filed a motion to reconsider
the court's certification of a class which has been pending for some
time. At the request of this court, the motion is being withdrawn without
prejudice and will be refiled after the court rules on another motion in
the case. No trial date has been set.


CINAR CORP: RCMP to File Brief against 5 Suspects in Alleged Tax Fraud
----------------------------------------------------------------------
The RCMP has completed its lengthy investigation into alleged tax fraud
at Cinar Corp., and plans to file a court brief with the Crown next month
seeking criminal charges against five suspects.

A Montreal-based spokesman for the Mounties confirmed at least four of
the suspects are current or former executives of the beleaguered
animation house and said the testimony of as many as 50 witnesses could
appear in the brief.

'We believe there's enough [evidence to support charges], but I don't
know if the Crown will agree with us,' said Corporal Norman Denis. 'We
have five suspects and  the Crown Attorney will decide if there's
sufficient [evidence] to charge all the people or not.'

The investigation stems from allegations raised in the House of Commons
in October, 1999, that Cinar was falsely attributing U.S. scripts to
Canadian writers in order to grab millions of dollars worth of federal
and provincial tax credits.

Last month, Cinar settled the tax-credit affair with the federal and
Quebec tax authorities for $27.5-million, a sum that includes both
penalties and relinquished claims.

Cinar, the erstwhile darling of Canadian entertainment stocks, is now on
the auction block and on Tuesday launched its own lawsuit: a
$28.6-million claim against company founders Micheline Charest and Ronald
Weinberg -- along with former chief financial officer Hasanain Panju --
that outlines a slew of related-party transactions.

The suit, filed in Quebec Superior Court, alleges the three former
executives treated Cinar like a 'private bank,' and dipped into company
funds to finance home renovations, personal investments, a nanny's
salary, and tuition for one of the couple's children.

All three of the defendants were fired by the company last spring, after
an internal audit committee discovered that US$122-million of company
money had been invested without board approval. That revelation halted
the company's stock on the Nasdaq and Toronto stock exchanges, incited
probes by regulatory bodies, and prompted a number of class action
lawsuits.

The RCMP, however, has thus far only investigated the script-writing
allegations. The Mounties did offer assistance to Cinar nearly a year ago
when news of the investing irregularities surfaced, but the company
refused, said Mr. Denis.

'The lawyers from Cinar said they would take care of it and they're doing
it this way, on a civil matter.'

In a statement released last night, Ms. Charest and Mr. Weinberg said
they were 'extremely disappointed' by the lawsuit, adding it came just
days after they had served Cinar with a demand claiming the company in
fact owed them more than $8.2-million. The couple were to meet with legal
counsel, and plan to issue an additional statement.

Jacques Rossignol, a lawyer for Mr. Panju, said they will contest the
suit and could file their own proceedings within the next 10 to 15 days.
According to Mr. Rossignol, Mr. Panju maintains his superiors at Cinar
were aware of his actions at all times.

In the midst of this bickering, Cinar's current management is attempting
to shop the company to potential buyers. Although the company's auditors,
Ernst & Young LLP, resigned last Friday without signing off on Cinar's
delinquent books, management plans to release unaudited statements to the
public by the end of this week.

The statements, which include numbers for 1999 and the first six months
of fiscal 2001, as well as restatements for 1997 and 1998, are being
offered to give buyers a better picture of Cinar's uncertain financial
situation.

So far, about 30 companies from Canada, the United States and Europe have
shown interest in buying all or part of the company, which is most valued
for its animation library, 20% stake in cartoon channel Teletoon and
educational publishing division. (National Post (formerly The Financial
Post), February 01, 2001)


E.SPIRE: Announces Dismissal of Securities Suit with Prejudice in MD
--------------------------------------------------------------------
e.spire Communications, Inc. (Nasdaq:ESPI) announced on January 31 that
the United States District Court for the District of Maryland has
dismissed with prejudice the consolidated securities class action
complaint filed against e.spire and certain of its former officers and
directors.

The complaint, originally filed on April 19, 2000, alleged that e.spire
violated provisions of the federal securities laws by making false
statements and failing to disclose material information during the period
of August 12, 1999 through March 30, 2000.

According to the court's order, the complaint charged e.spire with
"intentionally and recklessly utilizing improper accounting methods in
violation of Generally Accepted Accounting Principles ("GAAP") in order
to materially overstate e.spire's earnings for 1999." In response, the
order states that "The facts alleged by the plaintiffs in the complaint
do not show that the defendants' acts were highly unreasonable nor that
they amounted to an extreme departure from the standard of ordinary care
under the circumstances." The order also states that the plaintiffs
failed to establish that the defendants had a motive to commit fraud or
to provide sufficient evidence of either reckless or conscious behavior.

e.spire's motion to dismiss was granted and the action was dismissed by
the order of the Honorable Alexander Harvey, II, Senior United States
District Judge for the District of Maryland.

e.spire was represented in this litigation by the Washington, D.C. office
of Brobeck, Phleger & Harrison, LLP.


HMOs: HealthOptions Agrees to Pay Woman Whose Brother Has Battled
-----------------------------------------------------------------
When Palm Beach veterinarian Michelle Cunio got a letter from her HMO
saying it wouldn’t pay for her expensive diagnostic test, she called and
asked for a more detailed explanation. She never got one.

Blue Cross/Blue Shields HealthOptions plan had denied coverage in
December 1999 on the grounds that the medical problem in question was a
pre-existing condition.

Facing nearly $ 4,000 in medical bills and the prospect of being pursued
by a collection agency, Cunio called her brother, David Durkee.

Durkee, an associate with Angones Hunter McClure Lynch & Williams in
Miami, had experience battling health maintenance organizations. Two
years ago, he pressured a Boynton Beach mans HMO to pay for a
liver/pancreas transplant after the HMO had denied coverage on the
grounds that the procedure was experimental.

Convinced that HealthOptions handling of Cunios case was standard
practice in the HMO industry, Durkee filed a lawsuit on Cunios behalf in
Miami-Dade Circuit Court last September against HealthOptions, seeking
class-action status. It alleges that the HMO breached its contract with
her and violated the state Health Maintenance Organization Act by
providing a vague and ambiguous explanation of benefits in denying her
claim. The suit asks that HealthOptions be required to comply with the
law. It seeks damages for any losses incurred as a result of the alleged
violation.

Rather than providing patients with explanations for denials that are
specific to their cases, HMOs hit a button and a little pre-fabricated
response comes out, Durkee says. The automated and brief response that is
sent to thousands of subscribers fails completely to state how a certain
contract provision relates to the facts or applicable law, he wrote in
court documents.

Florida Statute 641 states that a health plan must promptly provide a
reasonable explanation in writing to the subscriber of the basis in the
health maintenance contract in relation to the facts or applicable law
for denial of a claim.

Without specifics, HMO subscribers dont know whether they have enough
ammunition to continue to fight for payment, Durkee contends.

In its motion to dismiss, HealthOptions argued that the statute does not
impose any duty to create a personally tailored explanation of denial.

HMOs generally argue that requiring them to provide specific coverage
explanations would drive up administrative costs and premiums.

In Cunios case, she underwent an MRI after complaining of facial
twitching. Because of her age, her neurologist wanted to rule out
multiple sclerosis, a condition that generally strikes women in their
late 20s and early 30s. None of my doctors thought it was pre-existing,
she says, adding that the MRI ruled out multiple sclerosis.

HealthOptions also argued in its motion to dismiss that Cunio, as a
private party, did not have a cause of action under the statute to
enforce its terms. Had the Legislature intended to allow a private cause
of action for the breach of any provisions found within the [act], it
would have done so explicitly, wrote W. Edward McIntyre, a partner at
Fort Lauderdales Bunnell Woulfe Kirschbaum Kellner & McIntyre, who
represents HealthOptions.

In December, Miami-Dade Circuit Judge Philip Bloom denied HealthOptions
motion to dismiss, ruling that state law requires a prompt and reasonable
explanation for denial of claims and that the HMOs brief explanation did
not appear to meet that requirement.

While Bloom did not rule on the merits of Cunios allegations, he found
that they stated a viable cause of action under Florida law.

On Tuesday, Blue Cross/Blue Shield of Florida filed a motion for summary
judgment based on a technicality. It claims that Cunio is insured by Blue
Cross/Blue Shield of Florida Inc., not HealthOptions a Blues subsidiary
-- and therefore the HMO is improperly named as the defendant. That may
require Durkee to amend his pleadings.

HMOs allow subscribers to file grievances over claims denials, but
patients are at a disadvantage in appealing if they arent told the
specific grounds for the denial, explains Lawrence Bache, a Pembroke
Pines solo attorney who specializes in HMO cases. Bache is vice president
of the Florida Patient Bill of Rights coalition, a group which advocates
for patients in managed care plans.

Its like chasing windmills, Bache says. People get tired of trying to
fight their HMO, so they just give up.

Not Cunio. Last month, HealthOptions sent her a letter saying it had
reviewed her claim and decided to pay not only her medical bill, but also
the accrued interest.

While that may mean Cunio will have to be dropped as the named plaintiff,
Durkee doesn’t plan to give up the fight. He says he has other potential
plaintiffs.

Even if the court finds that Ms. Cunio is not the appropriate person to
bring this case, this is not going to go away, he warns. Someone is going
to try to enforce this provision. (Broward Daily Business Review,
February 1, 2001)


HOLOCAUST VICTIMS: Return Assets Eligibility Ban on Non-Poles Criticized
------------------------------------------------------------------------
Marta Juskowiak stood outside an elegant four-story apartment building
confiscated from her family by Poland's communist government in 1956, and
recalled a much earlier day when she first saw the Nazi soldiers who
changed her world forever. "In 1939 I was lying there on this balcony,"
said Juskowiak, "and I was watching how the columns of Germans were
walking on the street after Warsaw was besieged and surrendered."

Juskowiak, 70, has tried, since the 1989 collapse of communism, to
recover the property. Now legal help, of sorts, is on the way: Poland's
powerful lower house of parliament passed a bill this month that would
return to original owners or heirs half - but only half - of the value of
the property seized by the Nazis and communists.

The legislation may be amended by the Senate, but is expected to go, in
some form, to President Aleksander Kwasniewski, who has not said whether
he would sign or veto it. As currently written, only people who were
Polish citizens at the end of 1999 would receive restitution.

Juskowiak sees the legislation as a flawed step forward. "It's 10 years
too late," she said. "The fact that Poland took so long to take action on
the ownership issue is a world scandal. If (the president) doesn't sign
it despite its weak points, then we won't have any law at all."

She also predicted that the eligibility ban on non- Poles will not
withstand international scrutiny and will be changed.

The government of Prime Minister Jerzy Buzek had drafted the bill without
imposing citizenship restrictions, but it was amended at the insistence
of right-wing lawmakers.

Tomasz Wojcik, a member of parliament who pushed hard for the bill, said
its passage "will introduce justice and at least in part compensate those
who lost their property after the war." The Treasury Ministry has
estimated that claims under the law could cost the government $ 11
billion, compared with potential lawsuit compensation claims of as much
as $ 67 billion if no action is taken.

SUPPORTERS OF the bill argue that, besides meeting demands of fairness
and justice, the law will encourage investment by clearing up title to
properties under dispute. In central Warsaw, for example, development of
a huge square surrounding the communist-era Palace of Culture has been
stymied in part by claims of former property owners.

Critics, who say the bill goes too far, argue that Poland cannot afford
the cost. They stress that many people suffered in different ways under
the Nazis and communists, and suggest that the money could be better
spent on education, health care or other pressing social needs.

Others blast the bill for leaving out non-Poles and for returning only
half of confiscated assets. They say beneficiaries may need to choose
between buying back the other 50 percent of their property from the
current owners or accepting compensation coupons of uncertain value from
the government.

"This law deprives about 40,000 to 50,000 people of their rights," argued
Miroslaw Szypowski, president of the Polish Union of Property Owners.

"And who are these people? Polish emigres who left Poland, not because
they wanted to, but for political reasons, because of what happened here
after World War II. Today their children and grandchildren cannot get
their property back. This is absurd. It's a slap in the face." The
citizenship requirement hits especially hard at the heirs of Polish Jews,
Szypowski added.

"This is really disgusting," he said. "It's a group of people who
suffered the most. The Nazis killed them. Then the Polish state took
their property away and now doesn't want to give it back."

Melvyn Weiss, an attorney involved in a high-profile class-action suit in
the US District Court in New York that seeks the return of Polish assets
to Holocaust survivors or their heirs, called the law "a first step in
the right direction."

"For Poland to take its proper place in the international community,
making a gesture only to its own citizens... doesn't serve the purpose,"
he said. (The Jerusalem Post, February 1, 2001)


INVESTMENT FIRMS: CA Suit Alleges of Looting Trusts for Personal Injury
-----------------------------------------------------------------------
A major class action lawsuit has been filed against some of Wall Street's
most prestigious financial and investment firms, including Merrill Lynch,
Bank of America and Morgan Stanley Dean Witter, by the Los Angeles office
of one of the nation's leading litigation firms.

The class action lawsuit alleges that more than a dozen top investment
companies were involved in looting trusts set up on behalf of personal
injury victims, including many quadriplegics or brain injury victims of
negligence, who are now left without the funds that were intended to
provide their medical care and lifetime support. Roman Silberfeld, a
partner in Robins, Kaplan, Miller & Ciresi, together with Franck Gooch, a
partner in the law firm of Gilchrist & Rutter, a Professional
Corporation, seek recovery on behalf of potentially hundreds of injury
victims on the basis of fraud, conversion and breach of contract.

The lawsuit was filed in Los Angeles County Superior Court Monday on
behalf of Richard M. and Linda Stuber, a Los Angeles couple who were
seriously injured in an auto accident, and a class of similarly situated
personal injury plaintiffs. The scheme at issue involves more than $100
million in U.S. Treasury bonds that were purchased under the structured
settlement agreements set up and managed by these major investment and
banking institutions.

"The real tragedy is that these people have been twice victimized," said
Roman Silberfeld, "once through the negligence and carelessness of others
and again by the greed and self-interest of people intent on making a
profit from their suffering. This situation is simply outrageous." Frank
Gooch added, "This lawsuit is not an indictment of the structured
settlement industry, which is a solid and reputable industry where life
insurance company-issued-annuities, used to pay injured parties,
predominate and are safe and secure payment vehicles. The subject of this
lawsuit is the alternative Bond Trust Agreements, used here by the
defendants."

Plaintiffs Richard M. and Linda Stuber were seriously and permanently
injured in an automobile-truck accident in 1981. Following the accident,
the Stubers filed suit against the parties responsible for their injuries
in the Superior Court of Santa Barbara County and subsequently, in 1984,
a settlement agreement was drawn up between the Stubers and the parties
they sued.

The settlement provided that compensation would be made to the Stubers in
a series of tax-free payments from 1984 through 2004. To secure the
future flow of payments, Merrill Lynch Settlement Services, Inc., who,
for a fee, had advised the Stubers on the settlement, and Bank of America
entered into an irrevocable Master Trust Agreement, naming Merrill Lynch
Settlement Services, Inc. as the obligor of the settling defendants'
payment obligations and Bank of America as the permanent trustee. The
funds would be used to purchase U.S. Treasury bonds and Bank of America
would hold those bonds in a trust, for the benefit of the Stubers.

The Stubers agreed to the Bond Settlement Trust Agreement based on the
assurances made by the financial institutions that the settlement
payments would be made, the funds would be secure in U.S. Treasury bonds
held in an irrevocable trust, that nothing would interfere with their
receipt of the payments, and finally that Merrill Lynch and Bank of
America, as financially sound and reputable corporations, were
trustworthy.

The Stubers learned in December 2000 that the bonds in their trust had
been improperly dissipated, lost and removed without their knowledge or
authorization.

Merrill Lynch Settlement Services, Inc. and Bank of America had both
attempted to transfer their duties and obligations under the Bond Trust
Settlement Agreement and the Master Agreement to other institutions,
which began a succession of unauthorized transfers.

Another Merrill Lynch subsidiary, Merrill Lynch IBAR, Inc. and then
Jonathan Pardee, acquired the assignment as obligor to the trust from
Merrill Lynch Settlement Services, Inc.; and subsequently,
Connecticut-based Stanwich Financial Services Inc., its wholly-owned
Rhode Island-based subsidiary, Settlement Services Treasury Assignments,
Inc., and/or owners Charles E. Bradley, Sr. and Charles Bradley, Jr.
purchased the assignment as obligor from Merrill Lynch IBAR, Inc. and
Jonathan Pardee, who used the bonds to secure a loan from Morgan Stanley
Dean Witter. However, the loans were not repaid and the bonds, as
collateral, were foreclosed on in March 1998, all without notice to the
injured victims.

Bank of America transferred its trust duties to Wells Fargo Bank, which
transferred its duties to Banker's Trust, which was subsequently acquired
by Deutsche Bank and Banker's Trust purported to transfer its obligations
to U.S. Trust.

Plaintiff attorneys are alleging 17 Causes of Action against the
defendants in a class action lawsuit, including demands for full
restitution of assets, preservation of the tax status of the payments to
the plaintiffs, unspecified damage awards and to enjoin defendants from
engaging in such future practices and conduct.

For additional information, visit www.rkmc.com.

Source: Gilchrist & Rutter; Robins, Kaplan, Miller & Ciresi LLP

Contact: Patty Bourne or Nadene Bristow of Gilchrist & Rutter,
310-445-7722, fax, 310-445-7787, pbourne@naturalmarketing.com


LOCKFORMER CO: Lisle Residents Argue for Class Cert. in Metal Plant Case
------------------------------------------------------------------------
A group of Lisle residents filed court papers Wednesday arguing a lawsuit
against a metal fabricating plant should be classified as class action
because their wells are being contaminated by the same source and they
are seeking the same resolution.

Last month Lockformer, which operates a plant at 711 Ogden Ave., Lisle,
where the solvent tricholorethene, or TCE, was spilled, argued in court
documents that the residents' lawsuit should be denied the status in part
because the suit didn't meet federal requirements for class action, which
covers a common experience. The company contends varying levels of
contamination were found in the wells, so the experience is not common.

But residents say case law states there only needs to be one common issue
for all members to become a class. In this case, they say, the harm was
caused by chemical spills over decades generated by Lockformer.

The class-action request was part of a seven-count federal suit filed in
November by residents who live south of the plant. The legal action came
after residents had their wells tested and TCE, a possible carcinogen,
was found in 21 of 33 homes.

The suit alleges that more than 100 homes, all south of St. Joseph Creek,
could be contaminated by the manmade degreaser used for nearly 30 years
by the metal-forming and fabricating company. The chemical contaminated
private wells, damaged property and permanently diminished property
values, according to the suit.

In arguing against class-action certification, Lockformer contends the
residents' definition of who should be included in the class is vague.
The lawsuit stated it to be those who own or live on property in the
"area near" the company's site and whose property "has been impacted or a
threat exists that it will be impacted."

But the residents' reply said the area is clearly defined as streets
between the company's site and Maple Avenue and from Kingston Avenue to
U.S. Highway 355. The assessment is strengthened, residents say, because
those boundaries coincide with the area defined in an agreement between
Lockformer and the state requiring the company to provide alternate water
supply to residents within that area.

Lockformer also claimed certification should by denied because two of the
plaintiffs' interests differ from the others because they are homeowners
and landlords to two other plaintiffs. But the residents say the
company's contention that there could be any antagonism between those
parties is based on "pure speculation" and case law says that is not
sufficient reason for denial.

Lockformer also notes that federal law disallows extending such status to
those who are seeking primarily monetary damages, which it contends the
residents are doing by asking the company to pay for hooking them up to
village water.

But, residents say, their lawsuit asked for hook-ups "side-by-side" with
requesting the court to stop the company from more spills and
contamination. And if need be, courts are allowed to use several
alternatives to divide the lawsuit into different classes, the residents
argue. (Chicago Tribune, February 1, 2001)


MET LIFE AGENTS: Chinese Americans Accuse Chinese Americans of Fraud
--------------------------------------------------------------------
Thirty Chinese-Americans who bought life insurance are pressing a claim
that Chinese-American agents preyed on their trust by selling them
policies they could not read, let alone understand.

Cultural differences are central to the cases, a dozen of which
Metropolitan Life Insurance Co. sought recently to move to federal court
in Pittsburgh. Another 18 of the fraud cases remain in Allegheny County
Court.

Life insurance gained widespread acceptance in China only in the
mid-1990s, and lawyers for the plaintiffs say immigrants were ill
equipped to deal with insurance agents of their own nationality.

"We believe these sales are good sales. We have agents who specialize in
ethnic markets. They do a good job, and they're good agents," John
Calagna, a Met Life spokesman in New York, said. "Obviously, we don't
believe these charges are true."

The Chinese-American customers opted out of a $1.7 billion class-action
settlement in 1999 to try to get better individual settlements. U.S.
District Judge Donetta Ambrose in Pittsburgh approved the settlement on
behalf of up to 6 million holders of Met Life policies from the 1980s and
1990s.

The policy holders say Met Life aggressively marketed policies in
Chinese-American neighborhoods, businesses and publications. In a
newspaper ad to be offered as evidence, company mascot Snoopy wears a
traditional Chinese outfit.

Chinese-American agents had an unfair advantage because their customers
did not speak English, said Jonathan Koerth, an attorney for the policy
holders. Koerth and his Chinese-American partner, Jack Xiao, represent
the 30 policy holders and about 20 of their beneficiaries.

Most clients are recent immigrants to Philadelphia's Chinatown and
Pittsburgh's Chinese-American community. Met Life agents "would literally
go from Chinese restaurant to Chinese restaurant, Chinese business to
Chinese business, trying to sell policies," Koerth said.

The policy holders allege they were duped into thinking they could stop
paying premiums in as little as six years, but changes in interest rates
made that impossible. Some believed policies were pensions.

"It's not a case of 'let the buyer beware' if you are being lied to,"
Koerth said.

Customers say they trusted the agents just because they were Chinese.
Deals in China and among Chinese-Americans often rely on no more than a
handshake, according to lawyers for the policy holders and consumer
advocates.

"The Chinese do tend to sell to each other," said Linda Sherry, a
researcher for the Consumer Action nonprofit group whose pamphlet on
insurance was translated into Chinese, Tagalog, Vietnamese and other
languages.

"Life insurance is one of the most complicated purchases that people are
ever going to make," she said. "The different layers are mind-boggling.
It's hard to understand in English."

Someone could take a friend who speaks English to a meeting with an
insurance agent for backup, Sherry said. But that's atypical in Chinese
dealings.

"There is that sort of sense that, 'We are part of the same community -
of course you should trust me,"' said Victor Hwang, a staff attorney at
the Asian Legal Caucus in San Francisco. "If you have someone there to
monitor it, that's a sign of disrespect."

Tin-Mie Cheung of Philadelphia, a restaurant owner and plaintiff, allowed
an agent to translate his Chinese responses into English for insurance
papers, Cheung's lawsuit alleged.

Cheung, who had rebuffed the agent on the first of two visits to Cheung's
previous restaurant in Cranbury, N.J., alleged he was told incorrectly he
could receive $100,000 in benefits for an investment of only $12,600.

Ni Lin Lisa Yu, formerly of Pittsburgh and now of Mission Viejo, Calif.,
said she was told in 1990 she would have to pay $816 a year for only ten
years for $ 100,000 in benefits. She learned last year that she had to
keep paying.

"It would be like you or I going to Beijing and having someone who speaks
English sell us a policy that was written entirely in Chinese," Koerth
said of the Met Life's agents. (The Associated Press State & Local Wire,
January 31, 2001)


NEFF-UNITED: Dissident shareholders say Big Guys Get Sweeter Deal
-----------------------------------------------------------------
A Friday deadline is looming for a controversial takeover proposal for
Miami-based Neff Corp. by United Rental Inc., the largest equipment
rental company in the country.

Minority shareholders in Neff protest the deal, alleging that the
proposed merger favors large shareholders such as the Mas family and
General Electric Capital Corp. The big guys, contend nine shareholders in
lawsuits, are getting a sweeter deal at the expense of the little guys.

This Fridays deadline for United Rentals nonbinding offer to acquire a
controlling stake in Neff, the seventh-largest equipment rental company
in the country, has already been extended from an initial cutoff date of
Jan. 19.

As of Tuesday, negotiations continued between United Rental and a special
committee representing Neff Corp., according to Mark Irion, chief
financial officer for Neff.

I imagine theyre working to get this wrapped up within the deadline,
Irion said. He noted, however, that it is definitely possible that the
deadline could be extended again if the negotiations proceed
satisfactorily and more time is needed.

Stay tuned, said Rich Grossman, an attorney with Skadden Arps Slate
Meagher & Flom who represents United Rental. Without a signed agreement,
negotiations are at a delicate phase, he said. He declined further
comment, adding: Its not a time when a lot can be said.

Under the proposed transaction, United Rental is seeking to buy a 72
percent stake in Neff for $ 37 million in stock. The buyer would also
assume Neffs debt of $ 277 million, thereby boosting the total value of
the transaction to $ 314 million.

On a per-share basis, this latest offer is significantly below the price
of last years failed management buyout of Neff. In that deal, the buyers
were offering $ 9 a share -- compared with $ 2.43 in the new offer. The
previous offer, however, also generated shareholder suits.

Neff traded midday Tuesday at $ 2.51 a share, compared with a 52-week
high of $ 9.37 last February. On Dec. 27, the stock hit a new 52-week low
of 75 cents. Since then, the stock has rebounded on news of the latest
buyout proposal. On the day the buyout was announced Neff picked up 75
cents to close at $ 2 a share, a gain of 60 percent in one day.

The latest offer is for only $ 2.43 a share in a stock-for-stock-exchange
in which each share of Neff is worth .18 shares of United Rental.

The dissident shareholders, who are seeking class-action status for their
lawsuits, contend that United Rental is offering a sweet deal to the Mas
shareholders and to General Electric Capital at their expense.

Filed last month in Delaware Chancery Court, the suits name as defendants
Neff, United Rental, GE Capital, Neff directors and an investment fund
controlled by the Mas family.

The suits allege that Neff chairman Jorge Mas and board members Juan
Carlos Mas and Jose Ramon Mas breached their fiduciary duty owed to the
other Neff shareholders. The plaintiffs also allege that United Rental
aided and abetted Neff directors in shirking their fiduciary duty. The
suits seek to stop the merger.

The merger partners see it differently. The complaints are without merit,
Neff officials said in a prepared statement.

But in documents filed with the Securities and Exchange Commission, it
appears that the Mas family and GE Capital are treated differently than
other shareholders in the proposed transaction.

Class A common stock held by the general public will be exchanged into
newly issued United Rental shares at a rate in which each Neff share will
turn into 0.18 United Rental share.

However, the 8.6 million shares of Class A common stock owned by the Mas
family will be converted into newly issued convertible preferred shares
in United Rental. Likewise, the 900,000 shares of Class A common stock
held by the Santos Fund, which is owned by the Mas family, will be
converted into 900,000 Class B common shares in the surviving company.
And after the transaction closes, GE Capital will maintain ownership of
its 5.1 million shares of Neff Class B common stock.

After the transaction closes, GE Capital and Santos will together own 6
million shares of Class B stock in the surviving company. The parties
have the right to subsequently sell that stake to United Rental for $ 96
million starting next year.

SEC documents show that United Rental courted both the Mas family and GE
Capital.

We have no intention of proceeding with any proposal to Neff without the
approval of each of you, wrote John Milne, United Rentals vice chairman,
in a Dec. 29 letter addressed to GE Capital, the Santos Fund and members
of the Mas family.

Neff has 84 rental locations in 18 states.

With 740 locations in 47 states, Canada and Mexico, Connecticut-based
United Rental is the largest equipment rental company in North America.
(Broward Daily Business Review, January 31, 2001)


OREGON: Board of Ed. Settles with Students with Learning Disabilities
---------------------------------------------------------------------
Lawyers for children with learning disabilities announced on February 1
the settlement of a class action lawsuit against the Oregon State Board
of Education, which alleged that Oregon's assessment system discriminated
against learning disabled students.

A 42-page report by a panel of experts, containing 30 recommendations to
ensure that students with learning disabilities are treated fairly on
high stakes tests, formed the basis of the settlement of the class
action. According to lawyers for the plaintiffs, both the expert report
and the settlement are unprecedented and have national implications.

"Under the settlement, Oregon will modify its current testing system so
that students with learning disabilities will be able to demonstrate
their abilities and are not tested on their disabilities," said Alison
Aubry, an attorney with Disability Rights Advocates. "By entering into
this constructive resolution, Oregon has put itself at the forefront of
treating all of its students fairly."

The expert panel's report is part of Disability Rights Advocates' new
publication, "Do No Harm: High Stakes Testing and Students with Learning
Disabilities." The report analyzes the issues surrounding high stakes
testing and students with learning disabilities, including the legal
implications of such tests and the safeguards needed to protect the
rights of learning disabled students. (Do No Harm is available at
www.dralegal.org/publications.)

The Oregon settlement includes provisions outlined in the expert panel's
report and provides for the appointment of a facilitator who will monitor
the State's compliance with the agreement. The panel received extensive
amounts of information from the State and the plaintiffs, and studied the
assessment system for approximately one year before issuing their
recommendations. "We filed this case because our children were in danger
of having their educational opportunities destroyed by these tests," said
Cathy Wyrick, a Portland mother of one of the plaintiffs. "Smart and
talented students were failing the tests because they weren't provided
with the accommodations that they needed in order to show their actual
knowledge. With this settlement, kids with learning disabilities will now
have an equal chance on the assessments."

According to DRA, this is the first time an expert panel has been
convened to analyze a testing system specifically concerning the impact
on students with learning disabilities. "Although virtually every state
in the nation has adopted or plans to adopt high stakes tests, no one
until now has focused on how these tests affect students with learning
disabilities," said Sid Wolinsky of DRA. "The panel's work will be
invaluable not only in Oregon, but across the country because it lays a
blueprint for all states to follow in order to make sure that their
assessment systems are fair to learning disabled students."

"The President and Congress have both announced plans to increase high
stakes testing at all levels of education," according to Jeffrey Foote, a
Portland lawyer with Trial Lawyers for Public Justice. "Unfortunately,
high stakes tests can be extremely harmful because they are generally
developed and implemented without any attention to the impact these tests
have on students with disabilities. As a result, the tests often directly
test the area of a student's disability and test students on material
that they have never been taught." (Source: BS Limited)


PRESIDENTIAL ELECTION: Trial Lawyers and Experts Issue Split Opinion
--------------------------------------------------------------------
When it handed down the ruling that resulted in an end to the 2000
presidential election, the U.S. Supreme Court was as divided as the rest
of the country.

In a 5-4 vote in Bush v. Gore, the Supreme Court reversed the Florida
Supreme Court's decision to hand-count 9,000 undervotes, which are
ballots in which a no-vote was recorded in the presidential race.

The ruling put George W. Bush in the White House and the highest court of
the land in the hot seat.

This presidential election ...... tested our Constitutional system in
ways it has never been tested before," Chief Justice William H. Rehnquist
wrote in a report on the federal judiciary released Jan. 1. The Florida
State courts, the lower federal courts and the Supreme Court of the
United States became involved in a way that one hopes will seldom, if
ever, be necessary in the future."

Interviews with trial attorneys and law professors resulted in a variety
of views about the Supreme Court opinion and its implications.

Supporters of the opinion said the court had no choice and was correct in
reversing a state court that overstepped its bounds.

Among the common criticisms was that the Supreme Court majority's use of
the equal protection clause of the 14th Amendment was inconsistent with
its jurisprudence, fueling speculation that the court stood divided along
political lines.

Rehnquist, 76, and Justices Antonin Scalia, 64; Clarence Thomas, 52;
Anthony M. Kennedy, 64; and Sandra Day O'Connor, 70, made up the
majority. Dissenting were Justices John Paul Stevens, 80; Stephen G.
Breyer, 62; David H. Souter, 61; and Ruth Bader Ginsburg, 67.

Rehnquist filed a concurring opinion that Scalia and Thomas joined; while
Stevens, Souter, Ginsburg and Breyer all filed dissenting opinions.
Neither O'Connor nor Kennedy signed a separate opinion.

Democratic President William J. Clinton nominated Breyer and Ginsburg;
the other justices were Republican nominees.

Some who supported the ruling viewed it as a unique response to a unique
situation.

University of Chicago Law School Professor Elizabeth Garrett found the
ruling particularly interesting" because it is opened the court up to
charges that the ruling was driven by political concerns rather than
legal concerns.

And, the reason for that is the holding and the reasoning are not
consistent with these five justices' other jurisprudence," she said.
That's true in two ways: These justices have not been very hospitable to
equal protection claims or voter rights cases, but here they accepted a
novel equal protection argument. Secondly, these five justices have been
very protective of states' rights, but here they were dismissive of the
state courts."

Garrett questioned why the court didn't remand the case to the state
courts to clarify its holding or cure the constitutional defect."

She also said the court's use of the equal protection clause was curious.
There is language in the per curiam that says the basis of the equal
protection holding is limited to instances of a statewide remedy being
ordered by a state judge. But, I don't know why the logic of the opinion
is limited to such narrow circumstances.

Maybe closure was important here; but legal opinions are supposed to be
analyzed on the basis of their reasoning, and the justices' opinions are
analyzed with respect to their consistency to their jurisprudence, and on
those grounds the opinion doesn't get very high marks."

The ruling casts into doubt the election statutes in more than half of
the country's states, Garrett said. Good lawyers are going to use Bush v.
Gore to challenge state election practices," she said.

Dissenting Justice Stevens listed 33 states, including Illinois, that
have election laws similar to Florida's. Garrett said although some of
the states have catch-all provisions for voter intent," they are still
susceptible to challenges.

Any state practice that varies across all the counties and affects the
value of a vote may be challenged under Bush v. Gore," she said. You have
to wait and see ...... how the courts handle it. What is interesting is
the language. They tried to narrow it as much as they could."

In addition to election law changes, Garrett said she would like to see
federal, state and local officials invest in state of the art voting
machines because part of the problem here was that people were voting on
machines from the 1950s that did not work well."

In his dissent, Justice Stevens wrote that it was perfectly clear" who
the loser of the election was: the nation's confidence in the judge as an
impartial guardian of the rule of law."

Garrett said Stevens dissent was hyperbolic" and exaggerated."

It's clear that the dissenters were very upset and angry, and Stevens'
dissent reflects that," she said.

                           Inconsistency

DePaul University College of Law Professor Marlene Arnold Nicholson said
she hopes the ruling doesn't create apathy among her students.

I am concerned it is going to be more difficult to get students
interested to think seriously about doctrine because it was such a
basically blatant political decision," Nicholson said. It's just
inconsistent with their doctrine. It just makes the court look extremely
political," she said.

Nicholson, who teaches constitutional and election law, found the
majority's decision to be inconsistent with the direction they have been
going for the last several years."

She said the ruling and its treatment of the equal protection clause puts
the Supreme Court between a rock and a hard place. Eventually, the court
will be faced with another election contest based on its recent ruling,
and the justices will have to decide between upholding an interpretation
of the clause that is inconsistent with their philosophies or reversing
themselves.

I don't think the court is ultimately going to go along with this,"
Nicholson said. When they do come up with a way to stop the cases, I
don't think it will be principled. I don't see a principled way of
distinguishing those cases from this theory. This decision was
outcome-motivated and very political and not a principled decision
itself."

Some of the critics predicted an increase in the number of election
contests filed in federal court. In response, the Supreme Court may
eventually nullify the impact of Bush v. Gore, Nicholson said. Such a
move, however, would open up the court to further criticism.

The court has been deferential to the states and state law. The
ramifications of the ruling could open up equal protection challenges to
the state handling of elections," Nicholson said. After these cases
challenging local administration of elections work their way through the
lower courts and over to the Supreme Court, the court will have to find a
way to put a lid on their new equal protection theory; but I think that
will just deepen cynicism about the original ruling."

In the per curiam opinion, the majority agreed with Bush's argument that
the manual recounts of undervotes in select counties ordered by the
Florida Supreme Court was a violation of the equal protection clause,
mainly because there was no uniform standard to determine voter intent.

The recount process ...... is inconsistent with the minimum procedures
necessary to protect the fundamental right of each voter in the special
instance of a statewide recount under the authority of a single state
judicial officer," the majority wrote. When a court orders a statewide
remedy, there must be at least some assurances that the rudimentary
requirements of equal treatment and fundamental fairness are satisfied."

Nicholson said the majority's use of the equal protection clause is
suspect.

The equal protection clause has been a mainstay of election law for many
years. But, the current court has not been one that has used the equal
protection clause to expand voting rights," she said. This court has
generally not been too interested in expanding anyone's voting rights."

With the exception of the one lawyer who couldn't get the justices' names
straight," which she found a little shocking," Nicholson said the
lawyering was pretty good on both sides.

I thought the lawyering was quite good and the theories were not off the
wall; it's just the Supreme Court being inconsistent with its previous
rulings and interpretations of state law and the conservative justices'
lack of willingness to second-guess state law in the last few years."

Locally, Nicholson believes the ruling will lead to a review of election
laws.

I suspect people will be looking at the same types of things in Illinois
that they will be looking at across the country," she said. The only good
part of this, and hopefully it will be the most important part, is people
across the country will be looking at their election procedures."

As for the historical value of the ruling, I don't think this case is
going to be very historic. I think it will always raise cynicism about
the Supreme Court," she said. Certainly, people who study constitutional
law will look at this in the future and realize the Supreme Court is a
political institution just like the others."

                           Bush Appointees

The wounds may heal, but some critics said the scarring caused by Bush v.
Gore will show when Bush considers Supreme Court appointments.

I think the Democrats are not all going to be cooperative if they try to
appoint any conservatives to the Supreme Court," Nicholson said.

Robert W. Bennett, a professor and former dean of Northwestern University
School of Law, said Bush probably will make an appointment to the Supreme
Court.

One of them is 80 years old, one is said to have his health problems and
O'Connor is rumored to have said during a party that she was upset that
Gore was winning because that meant she couldn't retire for another four
years," he said. So, I would think the chance of one or two appointments
- or vacancies, I should say - in the next four years are high."

Given the impact of the ruling and the evenly divided bench, any
appointments to the Supreme Court should raise eyebrows.

I fear that appointments to the Supreme Court will become even more
controversial than they have been in the past," Bennett said. There's
nothing wrong with serious scrutiny of nominees, but I could at least
imagine that there will be great difficulty in making any appointments at
all."

Bennett said the opinion bothered him because it was lacking a key
ingredient.

I thought it was short on law as a justification for what it did and,
hence, I supposed, quite troubling," he said. The more serious question
is what this does to the credibility of the Court as an instrument of
neutral decision making."

He added that it was ironic that the majority faulted the Florida Supreme
Court for making new law" and taking part in interpretational frolics"
since their use of the equal protection clause may forever change the way
election law is practiced.

It has the potential to open up a whole new field about inequalities in
the voting process," he said. The invitation to do it is pretty clear
from the opinion."

Bennett found the arguments used by attorneys for both sides to be very
unique, very unusual."

Bush's winning argument that the Florida Supreme Court's ordering a
recount of undervotes to determine voter intent went beyond normal
interpretation of Florida law was a long stretch, Bennett said. The
majority does cite some prior instances where changes in the
interpretation of state law were found to be constitutional violations,
but they seemed to be a great deal more extreme than this."

Although the long-term legal impact of the ruling has not yet been
determined, Bennett said the effect it has had on the public perception
of the judicial system is clear: There is a lot of cynicism ...... about
the Supreme Court putting itself right in the middle of a political
contest without any solid law to go on."

University of Chicago Law School Professor Dennis J. Hutchinson said it
is difficult to put the U.S. Supreme Court's ruling in perspective
because it was an atypical situation.

It's hard to find a consistency in anything because it was such a unique
situation. It's hard to tell how the court is going to manage this
precedent," he said. I don't think they even know how they are going to
handle it.

It's holding them up to a straw man's standard to say they have not been
consistent with how they have ruled in the past."

Hutchinson said he supported the majority's decision because the recount
of undervotes ordered by the Florida Supreme Court was made in error,
especially since there was no across-the-board standard for determining
voter intent.

One would think a dimple in one place should count in another place. How
can you defend the integrity of a vote when a perforation counts on one
side of the street and not on the other?" Hutchinson said. This Florida
Supreme Court was terribly wrong and there was nowhere to go to
straighten it out but the Supreme Court.

The problem is we're dealing with a statewide regime that is not designed
to handle presidential elections but to do multi-county or statewide
recounts."

It is unfortunate that Bush v. Gore raised questions for which there were
no clear answers, Hutchinson said.

The decision looks like they are sinning against their rights for the
benefit of somebody for whom they are sympathetic," he said. The problem
is the court does not have a mechanism for dealing with this."

                           A Lawyer's View

James C. Franczek Jr. of Franczek Sullivan P.C., who argued a
desegregation case about 20 years ago before the Supreme Court, thought
the election ruling was out of the ordinary.

It was, legally, very peculiar in the sense that the five conservative
judges, whose normal inclinations are to support the rights of state
courts, intervened," he said. It's going to be an invitation for lawyers
to expand upon this decision in non-presidential cases and how that is
going to go is going to be very interesting."

For the most part, Franczek thought the lawyering in Bush v. Gore was
unbelievable." He noted that in an extremely unusual" break from
etiquette, Chief Justice Rehnquist complimented the lawyers on their
briefs before arguments began at the last hearing.

I read the transcripts of the oral argument, which I thought was
absolutely compelling," Franczek said. I mean, you get up before the
United States Supreme Court and I don't care how experienced you are, it
is an absolutely intimidating position to be in."

Because of the way it is written and the narrow bounds of the case,
Franzcek said Bush v. Gore will probably not become a popular citation.

The court went out of its way to limit the decision to Florida, but all
over the country - even in Cook County - there are differences," he said.
This decision may very well end up being just a unique decision limited
to this presidential election."

Former U.S. District Court Judge Frank McGarr, now of Foley & Lardner,
thinks voter error has cursed elections in the past and will continue to
do so in the future. No election is foolproof.

It seems to me that years ago when I was young, we had paper ballots and
there was a great deal of confusion and fraud," he said. I don't think
there will ever be a perfect count; but Florida law set a deadline for
the recount - and Florida Secretary of State Katherine Harris
appropriately certified the totals, and that should have been the end of
it."

                         A Supportive View

In McGarr's opinion, the Supreme Court did what it was supposed to do:
The Florida Supreme Court reached out for jurisdiction they didn't have,
and the U.S. Supreme Court straightened it out.

You can say that the U.S. Supreme Court reached out with perhaps
challengeable jurisdiction to bring an end to what was becoming a crisis;
and I think it did so because the Florida Supreme Court was totally
wrong, and all of these recounts were a total charade and opened
themselves up to a great deal of fraud."

Like Franczek, McGarr said the circumstances surrounding Bush v. Gore may
be so distinct that it's doubtful the case will be useful for election
law attorneys.

I'm not sure the ruling sets any precedent because it might never happen
again," McGarr said. It was such a unique case that I don't think it will
set any kind of precedent at all - it's all over, behind us."

University of Illinois College of Law Professor Ronald Rotunda proudly
claims he predicted the Supreme Court outcome while appearing on a cable
television show.

You can't always predict what the court will do from the arguments, but
you can predict what a judge will do," he said.

Rotunda said the majority's opinion was grounded in law" and took issue
with the Florida Supreme Court's handling of the recounts.

I don't see how you can have an election and take exactly the same ballot
in one county and count it and not count it in another," he said. They
had different standards in the same precincts."

The lack of definitive guidelines for determining voter intent would have
undermined the voting process, had it been allowed to continue, because
that gives power not to the voters, but the people who count the votes,"
he said. If we would ever create a system for conducting a recount, we
wouldn't implement one like the Florida Supreme Court ordered."

Rotunda questioned the partiality of a ruling that focused recounts in
only cherry-picked" pro-Gore precincts.

If we talk about intent, you usually put someone on the stand and ask
them; you can't put a piece of paper on the stand," he said. So, you were
more likely to find votes for Gore."

The 5-4 vote stopping the recount made the court appear more divided on
the issue than it actually was, Rotunda said.

According to the per curiam, dissenting Justices Souter and Breyer agreed
with the majority that there were constitutional problems" with the
recount, but they disagreed on the remedy.

Rotunda said Souter and Breyer were really concurring in part and
dissenting in judgment."

Additionally, Rotunda did not think the ruling signaled a shift in the
majority's jurisprudence.

The cases go back for decades or even a few months, where they have
imposed federal restrictions on the states," he said. The Supreme Court
has invalidated one case after another, one election law after another,
when the state law interfered with the constitution.

The problem is we have this thing called the 14th Amendment, and states
have not had much control over their elections since the 14th Amendment,"
he added. And, I can't think of anything more federal than an election
for a federal office. The idea that this should be immune from federal
jurisdiction is mind-boggling."

                            Party Lines

Jerold S. Solovy of Jenner & Block said it was unfortunate that the
public would look at the ruling and see the High Court divided along what
looked like party lines.

I thought it was very unfortunate because it was a highly splintered
court," Solovy said. I guess the court wasn't exempt from what the rest
of the country was going through: Nobody could decide."

Solovy would have liked to see the recounts continue. It was particularly
unfortunate for them to stop the game and then call it for darkness."

Tyrone C. Fahner of Mayer Brown & Platt, a Republican and former Illinois
Attorney General, argued that his opinion about the ruling's being
entirely correct" stems from legal reasoning and not his political
leanings.

They reacted in a appropriate manner," he said. The only thing that would
have been preferable is, if given the time, the two extremes, Scalia and
Stevens, had found a softer way to express their conclusion. I
appreciated their viewpoints, but it may have made the court look less
divided."

Fahner said he does not think the Supreme Court was split along party
lines.

All this talk about it being a political decision is really nonsense -
even though it turned out the way I wanted it to," he said. I don't think
it could have turned out any another way; and I say this not as a
Republican, but as a lawyer."

The idea that the majority uncharacteristically refused to remand the
issue is a fallacy reinforced by an opinion that was written with a tight
deadline looming, Fahner said.

They have been deferential to state's rights; but with the timing and the
way this all unfolded, they didn't have the luxury to write an opinion
for the ages."

All leanings aside, it was the illogical recount of undervotes with no
clear definition of intent that led Fahner to support the Supreme Court
ruling.

I am what I am, but I thought it was an absurdity," Fahner said. It
defies common sense to suggest that, no matter how well-intending, they
could hold up a ballot and define what a voter intended to do."

An undervote is an undervote, in Fahner's mind, regardless of which way
the intent might have gone. We are a country that should still have
improperly cast votes not count. It's the responsibility of the voter to
vote according to the rules," he said.

In fact, Fahner has his own theory about the undervotes: People simply
just didn't vote.

I just think a lot of people didn't have confidence in or like either one
of them and didn't vote," he said.

One positive impact of the ruling and the litigation that led up to it is
the increased awareness among the general public on election issues. I've
never seen so many laymen having an informed opinion," Fahner said.

Also, the television cameras allowed in the Florida courtrooms let the
public watch the story unfold.

Fahner said he was most impressed with Chicago attorney Philip S. Beck of
Bartlit Beck Herman Palenchar & Scott, who worked on Bush's legal team.
He said the way Beck carried himself is the way it's done by real lawyers
in real courtrooms."

Gore attorney David Boies is currently Fahner's principal opponent in a
class action lawsuit unrelated to the election. Even though I didn't like
what he was selling," Fahner said, he enjoyed watching Boies plead Gore's
case.

I thought those guys were the epitome of the very best of our profession,
our craft," he said. (Chicago Lawyer, February, 2001)


TOBACCO LITIGATION: Sp Ct in FL Denies B&W Appeal of $750,000 Damages
---------------------------------------------------------------------
The state Supreme Court has denied Brown & Williamson Tobacco Corp.'s
appeal of a $750,000 judgement to a Florida man who is a former smoker.

Four years ago, a jury decided cigarettes were defective and Brown &
Williamson was negligent. An appeal of the jury's judgement was
overturned, but the Florida Supreme Court reversed that determination and
refused to reconsider it last week. The Florida man would be the first
person to collect damages in such a case.

Brown & Williamson is one of the companies named in a class-action suit
in Miami last year in which a jury awarded a record $145 billion. That
case is being appealed.

A growing number of judgements and huge monetary awards are among the
reasons that some states are securitizing their tobacco settlements out
of fear that tobacco companies could be bankrupted. (The Bond Buyer,
February 1, 2001)


WASTE MANAGEMENT: Former Executives to Chip in $23M for Securities Fraud
------------------------------------------------------------------------
The No. 1 U.S. trash hauler, Waste Management Inc., said it would get $23
million in settlement of a case against former executives.

The executives restated seven years of earnings of Waste Management
Holdings Inc., reducing them by $1.8 billion, in February 1998, just
before its merger in July 1998 with a subsidiary of USA Waste Services
Inc. to form the current company.

That restatement led to a plunge in the share price and a class-action
lawsuit by shareholders, who won a $220 million settlement paid by the
new company in September 1999.

The latest lawsuit sought to recoup some of the costs of the 1999
payment.

"Waste Management had to pay out to settle the class action suit and we
felt that executives should chip in," said David Bershad, senior partner
at the New York law firm Milberg, Weiss, Bershad, Hynes & Lerach and the
lead counsel in the case against the former executives.

"We were looking for a lot more, but we think it's an outstanding
settlement and should be considered found money for the company," Bershad
said.

The insurers of the former Waste Management Holdings would pay $15
million of the $23 million total, Waste Management Inc. said in a
statement. The statement did not identify the insurers.

The remaining $8 million would be deducted from the pensions of the
former executives, said Cherie Rice, a Waste Management Inc. investor
relations official.

"The proposed settlement is in the best interests of Waste Management and
its shareholders," said Maurice, Myers, chairman, president and chief
executive officer. (Chicago Tribune, February 1, 2001)


* Class Counsel Selection Grabs Attention of 3rd Cir; Task Force Formed
-----------------------------------------------------------------------
The glimmering prize in a federal class action is the court order that
awards the lucrative status of "lead counsel" to one lawyer, a group of
lawyers from a single firm or, at times, a team from more than one firm.

Until recently, the choice of lead counsel was at the absolute discretion
of the trial judge.

But in recent years, some judges have begun using a bidding process to
select the lawyer or firm that promises to handle the case for the
smallest percentage of whatever settlement or judgment is secured in the
end. Bidding wars, however, have led to strong criticisms from some
lawyers and judges who insist that the system was never broken and didn't
need fixing and that cheaper lawyers aren't necessarily better for the
class and, in some cases, could prove worse. Proponents of bidding,
however, argue that it does away with the unfairness that results in
nearly all large class actions going to a small number of firms with
prominence and connections to judges while equally capable firms never
get the chance to establish a reputation.

The current state of affairs apparently grabbed the attention of 3rd
Circuit Chief Judge Edward R. Becker who announced that he has formed a
task force to study the issue. The 20-member Task Force on Selection of
Class Counsel is comprised of three judges, four law professors, 10
lawyers, three researchers and 3rd Circuit Executive Toby D. Slawsky as
its secretary. Serving as co-chairs are attorney Gregory P. Joseph of
Fried Frank in New York and Professor Stephen A. Saltzburg of George
Washington University Law School. The task force will hold hearings on
March 16, May 5 and June 1 and will publish a draft report by October
2001 that will be the main subject of discussion at the 3rd Circuit's
judicial conference the following month.

Becker said the decision to convene a task force was sparked by accounts
of the increasing use of a bidding process to choose class counsel.
"Despite the apparent success of such a [bidding] process in terms of
lowering transaction costs with seemingly greater benefit for the class,
many respected judges and lawyers have opined that the bidding process is
flawed in concept and practice, and that it presents professional
responsibility problems," Becker said.

Critics of the bidding process, Becker said, "believe that the
conventional method of selection of class counsel at the discretion of
the assigned judge has not only proved successful, but has achieved
excellent results for the class and is preferable." Becker said he was
concerned that, without guidance, a "newly minted" trial judge "will face
a quandary as to how to proceed" because the current literature on the
bidding process includes no empirical studies nor any "normative
evaluation of the relative merits of the competing methodologies." There
also has never been any serious study of the special problems in
securities class actions brought under the Private Securities Litigation
Reform Act, Becker noted.

Attorney Michael D. Fishbein of Levin Fishbein Sedran & Berman said he
believes the task force is a good idea because the bidding process "is a
horrendously bad idea." Fishbein and his partner, Arnold Levin, have
served as lead counsel in some of the biggest class actions in recent
memory including the fen-phen diet drug case and the massive pedicle
bone-screw cases. Although he is not a member of the task force, Fishbein
said he intends to testify or at least submit detailed comments. While
Becker hinted at numerous criticisms of the bidding process, Fishbein
minces no words in condemning it as a bad idea. The concept, Fishbein
says, started in academia, and the idea was to "mimic" the way lawyers
are chosen in private settings. But Fishbein said the comparison simply
doesn't work since private counsel are chosen by their clients for a host
of reasons price being only one of them. And neither the fee for service
nor the contingent fee in private settings offers an apt comparison to
the class counsel's percentage-of-the-fund fee, he said.The "biggest
danger" in using a bidding process, he said, is that it can "incentivize"
the lawyer to "settle early, fast and cheap." In one instance, Fishbein
said, the lawyers who lost a bidding process said they believed their
competitor had approached the defendant with a "pre-packaged settlement"
that allowed the firm to enter a low bid knowing that it would do minimal
work. "I don't know why we're tinkering with something that works well,"
Fishbein said, noting that the system for awarding fees in the 3rd
Circuit is laudable for its ability to compensate a class action lawyer's
success.

By awarding a percentage of the fund and then cross-checking that award
under what is known as the Lindy lodestar a figure that captures the
lawyer's reasonable hourly rate multiplied by the number of hours spent
on the case Fishbein said the courts have consistently ensured that the
fees are fair. That system, Fishbein noted, is the direct result of an
earlier 3rd Circuit task force on attorney fees that recommended the
percentage-of-the-fund method in class actions. That task force's final
report was very influential nationally."The 3rd Circuit has been in the
vanguard both decisionally and in the task force approach first on
attorney fees and now on selection of class counsel," Fishbein said. (The
Legal Intelligencer, January 31, 2001)


                             *********


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

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