/raid1/www/Hosts/bankrupt/CAR_Public/990915.MBX                   C L A S S   A C T I O N   R E P O R T E R

                Wednesday, September 15, 1999, Vol. 1, No. 156


2THEMART.COM INC: Stull, Stull Files Securities Fraud Suit In Dist Ct
AQUARION COMPANY: Announces Suit Over Merger With Kelda In Delaware
BERGEN BRUNSWIG: CA Ct Struck Claims Of Drug-Maker’s Unfair Practices
BERGEN BRUNSWIG: PharMerica Faces Securities Suit In Florida
BERGEN BRUNSWIG: PharMerica Faces Suit Re Medicare Or Medicaid Monies

BERGEN BRUNSWIG: Settles For Drug Price-Fixing Suits In Mississippi
BERGEN BRUNSWIG: Stadtlander Probed For Possible Violations Re Medicare
BERGUN BRUNSWIG: Ill. Ct. Oks Class For MDL Against Drug Price-Fixing
BERGUN BRUNSWIG: Suit Over Drug Price-Fixing Pending In Alabama
CHEMICAL BANKING: Panic Attack Not To Sustain ADA Claim, N.Y. Ct. Says

CYBERGUARD CORP: Expects Consolidation For Securities Suits In Florida
FIRST UNION: Penn Ct Orders For Class Redefinition For FDCPA Settlement
HARBINGER CORP.: Milberg Weiss Files Securities Suit In Georgia
HOLOCAUST VICTIMS: NJ Fd Ct Dismisses 4 Suits Outside Judicial Realm
HOLOCAUST VICTIMS: French Jews and Banks Fight Holocaust Lawsuits

MICROWORKZ: Consumers Complain In Washington Against Computer Maker
PPG: 4th Cir. Upholds Economic Conditions May Determine Value Estimation

RICHARDSON ELECTRONICS: Buyers Of Power Tubes Sue In Ill Over Antitrust
TOBACCO LITIGATION: Aussi Fd Ct Rules Against Advertising On Disease
TOBACCO LITIGATION: Florida The Anomaly To Allow Statewide Class Action

UICI: Files Appeal In Sun Litigation In Texas Re Proceeds & Securities
VITAMIN PRICE-FIXING: Plaintiffs’ Attorneys Say Settlement Near
WORLD ACCESS: Securities Suit Lead Plaintiffs & Counsel To Be Appointed


2THEMART.COM INC: Stull, Stull Files Securities Fraud Suit In Dist Ct
The following is an announcement made by the law firm of Stull, Stull &

A class action lawsuit was filed in U.S. District Court on behalf of
purchasers of 2TheMart.Com Inc., (OTC:TMRT) common stock between January
19, 1999 and August 26, 1999.

2TheMart is an Internet based electronic commerce company which claims
to be developing an auction web site in which parties will be brought
together to buy and sell a variety of goods. Once fully functional,
2TheMart web site users will be able to browse through all items in a
fully automated, topically arranged online service that is expected to
be available 24 hours a day, seven days a week. The defendants include
2TheMart, Steven W. Rebeil and Dominic J. Magliarditi.

The Complaint harges that defendants violated Sections 10(b) and 20(a)
of the Securities Exchange Act of 1934 and Rule 10-b(5). The action
arises from damages incurred by the Class as a result of a scheme and
common course of conduct by defendants which operated as a fraud and
deceit on the Class during the Class Period. Defendants' scheme included
rendering false and misleading statements and/or omissions concerning
the present and future financial condition and business prospects of the
Company, as well as the financial benefits that would enure to 2TheMart
and its shareholders.

Plaintiff is represented by the law firms of Stull, Stull & Brody and
Weiss & Yourman. If you are a member of the class described above, you
may, no later than sixty days from the date of this notice, move the
Court to serve as lead plaintiff, if you so choose. In order to serve as
lead plaintiff, however, you must meet certain legal requirements.
Contact Stull, Stull & Brody Michael D. Braun, Esq. 888-388-4605
mdb@secfraud.com TICKERS: OTC BB:TMRT

AQUARION COMPANY: Announces Suit Over Merger With Kelda In Delaware
Aquarion Company (NYSE:WTR) announced that a purported class action
complaint relating to the company's proposed merger with Kelda Group plc
(formerly Yorkshire Water plc) was filed in Delaware Chancery Court late
in the afternoon on September 10, 1999. The action was brought by
Herbert E. Behrens, names Aquarion and its directors as defendants, and
requests, if Aquarion's pending merger with Kelda is consummated,
recission or the awarding of recissory damages along with the costs and
fees and expenses of plaintiff's attorneys and experts.

While the complaint also requests injunctive relief, no application for
temporary or preliminary relief has been sought and Aquarion expects
that its shareholder meeting to vote on the merger, called for 9:30 a.m.
on September 21, 1999, at People's Bank, 850 Main Street, will proceed
as scheduled.

The complaint generally alleges flaws in the auction process. Aquarion
and its directors believe that the complaint is wholly without merit and
intend to vigorously fight the claim. The filing of the complaint will
not affect the timing of the completion of the merger. The Boards of
Directors of Aquarion and Kelda of Leeds, England, on June 1, jointly
announced that they had approved an agreement for Kelda to acquire all
of the outstanding shares of Aquarion Company for $ 37.05 per share. As
a result, Aquarion will be merged with a subsidiary of Kelda.

Aquarion Company's principal business is public water supply. Through
its BHC and Sea Cliff Water Company subsidiaries, it is one of the 10
largest investor-owned water utilities in the U.S. and serves 141,000
customers, or a population of more than 500,000, in 30 Connecticut and
Long Island, NY communities. Other businesses include real estate
through the sale of surplus water company land, and contract management
of municipal water systems. Aquarion also owns a timber processing

BERGEN BRUNSWIG: CA Ct Struck Claims Of Drug-Maker’s Unfair Practices
Between August 3, 1993 and February 14, 1994, Bergen Brunswig Corp.,
along with various other pharmaceutical industry-related companies, was
named as a defendant in eight separate state antitrust actions in three
courts in California. In April 1994, these California state actions were
all coordinated as Pharmaceutical Cases I, II and III, and assigned to a
single judge in San Francisco Superior Court. On August 22, 1994, a
Consolidated Amended Complaint ("California Complaint"), which
supersedes and amends the eight prior complaints, was filed in these

The California Complaint alleges that the Company and 35 other
pharmaceutical industry-related companies violated California's
Cartwright Act, Unfair Practices Act, and the Business and Professions
Code unfair competition statute. The California Complaint alleges that
defendants jointly and separately engaged in secret rebating, price
fixing and price discrimination between plaintiffs and plaintiffs'
alleged competitors who sell pharmaceuticals to patients or retail
customers. Plaintiffs seek, on behalf of themselves and a class of
similarly situated California pharmacies, injunctive relief and treble
damages in an amount to be determined at trial.

The judge struck the class allegations from the Unfair Practices Act

BERGEN BRUNSWIG: PharMerica Faces Securities Suit In Florida
On April 26, 1999, Bergen Brunswig completed its acquisition of
PharMerica, one of the nation's largest providers of pharmaceutical
products and pharmacy management services to long-term care and
alternate site settings, headquartered in Tampa, Florida. The Company
issued approximately 24.7 million shares of common Stock valued at
approximately $670 million, acquired net assets (excluding debt)
at fair value of approximately $335 million, assumed debt of
approximately $600 million and incurred costs of approximately $25
million. The Company recorded goodwill of approximately $960 million in
the transaction.

In November 1998 and February 1999, two putative securities class
actions were filed against PharMerica and certain individuals in the
United States District Court for the Middle District of Florida. The
proposed classes consist of all persons who purchased or acquired stock
of PharMerica between January 7, 1998 and July 24, 1998. The complaints
seek monetary damages but do not specify an amount. In general, the
complaints allege that the defendants made material omissions by
withholding from the market information related to the costs associated
with certain acquisitions. The complaints allege claims under Section
10(b) and 20(a) of the Securities Exchange Act of 1934. A motion to
dismiss both actions was filed on March 2, 1999, and the motion is
currently under review.

BERGEN BRUNSWIG: PharMerica Faces Suit Re Medicare Or Medicaid Monies
PharMerica is also subject to investigations, claims and suits arising
out of its institutional pharmacy business, including matters relating
to the repayment of monies paid to PharMerica under Medicare or
Medicaid. Prior to the acquisition of PharMerica by the Company, the
United States Department of Health and Human Services ("HHS"), during
the course of a Medicare Audit of various nursing homes, requested
PharMerica to produce records related to intravenous pharmaceuticals
provided to particular nursing homes in 1997 and 1998. PharMerica
cooperated with the audit and complied with the request. Subsequently,
PharMerica learned that HHS auditors alleged that during the 1997-98
time frame, certain nursing homes, primarily operating in Texas,
improperly billed Medicare for intravenous pharmaceuticals and related
services. The government has been made aware that PharMerica did not
bill the Medicare program for the goods and services it sold to nursing
homes. The government has not revealed the extent of any investigation
that may be ongoing against PharMerica or entities that, unlike
PharMerica, billed Medicare, or any legal basis upon which to seek
reimbursement from PharMerica for overpayments the government alleges
the Medicare program made to customers of PharMerica.

On or about March 2, 1999, the Company was served with a Summons and
Complaint filed by the Office of the State's Attorney General on behalf
of the People of the State of California alleging that the Company and
twenty-two other defendants engaged in the manufacture, distribution
and/or selling of coal tar products to consumers within the State of
California and that these activities constituted a violation of
California's Safe Drinking Water and Toxic Enforcement Act of 1986 and
Unfair Competition Act. In addition, on or about March 20, 1999, the
Company was served with a Summons and First Amended Complaint filed by
Perry Gottesfeld alleging that the Company and sixteen other defendants
engaged in various activities that violated the Acts cited by the
State's Attorney General in the Complaint referenced above. The Company,
through its counsel, has been in negotiations with both these
plaintiffs. Responsive pleadings were filed in April 1999 and the
parties are conducting discovery.

BERGEN BRUNSWIG: Settles For Drug Price-Fixing Suits In Mississippi
Similar actions were also filed against the Company and other
wholesalers and manufacturers in Mississippi, Montgomery Drug v. UpJohn,
et. al., No. 97-0103, and in Tennessee, Graves v. Abbott, et. al., No.
25,109-II. The various state actions have not yet been set for trial.

On October 21, 1994, the Company entered into a sharing agreement with
five other wholesalers and 26 pharmaceutical manufacturers. Among other
things, the agreement provides that: (a) if a judgment is entered
against both the manufacturer and wholesaler defendants, the total
exposure for joint and several liability of the Company is limited to
$1.0 million; (b) if a settlement is entered into by, between, and among
the manufacturer and wholesaler defendants, the Company has no monetary
exposure for such settlement amount; (c) the six wholesaler defendants
will be reimbursed by the 26 pharmaceutical defendants for related legal
fees and expenses up to $9.0 million total (of which the Company will
receive a proportionate share); and (d) the Company is to release
certain claims which it might have had against the manufacturer
defendants for the claims presented by the plaintiffs in these cases.
The agreement covers the Federal court litigation, as well as the cases
which have been filed in various state courts.

In December 1994, plaintiffs in the Federal action had moved to set
aside the agreement, but plaintiffs' motion was denied on April 25,
1995. In 1996, the class plaintiffs filed a motion for approval of a
settlement with 12 of the manufacturer defendants, which would result in
dismissal of claims against those manufacturers and a reduction of the
potential claims against the remaining defendants, including those
against the Company. The Court granted approval for the settlement. In
1998, an additional four of the manufacturer defendants settled. The
effect of the settlements on the sharing agreement is that the Company's
maximum potential loss would be $1.0 million, regardless of the outcome
of the lawsuits, plus possible legal fee expenses in excess of the
Company's proportionate share of the $9.0 million reimbursement of such
fees or any additional amounts to be paid by the manufacturer

In September 1998, a jury trial of this action commenced in Federal
Court. On November 30, 1998, the Court granted all remaining defendants
a directed verdict, dismissing all class claims against the Company and
other defendants. On July 13, 1999, the Court of Appeals for the Seventh
Circuit affirmed the dismissal of the Company and the other wholesaler
defendants from the class action litigation. Plaintiffs petition for
rehearing on this issue was denied on August 9, 1999.

In addition to the above-mentioned Federal class action and state court
actions, the Company and other wholesale defendants have been added as
defendants in a series of related antitrust lawsuits brought by certain
independent pharmacies who have opted out of the class action cases and
by certain chain drug and grocery stores. After a successful motion by
the Company and other wholesalers, the damage period in these cases has
been limited to October 1993 to the present. These lawsuits are also
covered by the sharing agreement described above. Plaintiffs in these
suits have requested remand to various federal courts nationwide for
purposes of trial. A decision on the remand motion is pending, and no
trial dates have been set.

BERGEN BRUNSWIG: Stadtlander Probed For Possible Violations Re Medicare
On January 21, 1999, Bergen Brunswig completed the acquisition of
Stadtlander Drug Co., a provider of disease-specific pharmaceutical care
delivery for transplant, HIV, infertility and serious mental illness
patient populations and a provider of pharmaceutical care to the
privatized corrections market, headquartered in Pittsburgh,
Pennsylvania. The Company paid approximately $195 million in cash and
issued approximately 5.7 million shares of Common Stock, previously held
as Treasury shares, valued at approximately $140 million. The Company
acquired net assets (excluding debt) at fair value of approximately $55
million, assumed debt of approximately $100 million and incurred costs
of approximately $10 million. The Company recorded goodwill of
approximately $390 million in the transaction.

A United States federal investigation of Stadtlander with respect to
possible violations of the Medicare provisions of the Social Security
Act is being conducted. The activities under investigation predated the
ownership of Stadtlander by Counsel Corporation, the entity that sold
Stadtlander to the Company. The Company has been advised that while
owned by Counsel Corporation, Stadtlander cooperated fully with the
authorities investigating this matter.

BERGUN BRUNSWIG: Ill. Ct. Oks Class For MDL Against Drug Price-Fixing
Between August 12, 1993 and November 29, 1993, the Company was named in
11 separate Federal antitrust actions. All 11 actions were consolidated
into one multidistrict action in the Northern District of Illinois
entitled, In Re Brand-Name Prescription Drugs Antitrust Litigation, No.
94 C. 897 (MDL 997). On March 7, 1994, plaintiffs in these 11 actions
filed a consolidated amended class action complaint ("Federal
Complaint") which amended and superseded all previously filed Federal
complaints against the Company. The Federal Complaint names as
defendants the Company and 30 other pharmaceutical industry-related

The Federal Complaint alleges, on behalf of a nationwide class of retail
pharmacies, that the Company conspired with other wholesalers and
manufacturers to discriminatorily fix prices in violation of Section 1
of the Sherman Act. The Federal Complaint seeks injunctive relief and
treble damages. On November 15, 1994, the Federal court certified the
class defined in the Federal Complaint for the time period October 15,
1989 to the present.

BERGUN BRUNSWIG: Suit Over Drug Price-Fixing Pending In Alabama
On May 2, 1994, the Company and Durr Drug Company were named as
defendants, along with 25 other pharmaceutical related-industry
companies, in a state antitrust class action in the Circuit Court of
Greene County, Alabama entitled Durrett v. UpJohn Company, et al., No.
94-029 ("Alabama Complaint"). The Alabama Complaint alleges on behalf of
a class of Alabama retail pharmacies and a class of Alabama consumers
that the defendants conspired to discriminatorily fix prices to
plaintiffs at artificially high levels. The Alabama Complaint seeks
injunctive relief and treble damages. On June 25, 1999, the Alabama
Supreme Court held that plaintiffs' claims are not valid under the
Alabama antitrust statute. Further litigation on this issue in currently

CHEMICAL BANKING: Panic Attack Not To Sustain ADA Claim, N.Y. Ct. Says
Plaintiff former employee of defendant bank suffered from a panic
disorder, and allegedly endured racial discrimination and harassment
from a supervisor. Plaintiff was in fear of his life after a particular
incident and called the police. Thereafter, plaintiff was placed on
administrative leave by his department manager. During that time,
plaintiff took medical leave because of a panic attack caused by his
"employment difficulties" and remained on leave for over 27 weeks until
he was terminated. Plaintiff sued, alleging disability discrimination in
violation of the Americans with Disabilities Act, among other claims.
Granting defendant's motion for summary judgment, the court concluded
that plaintiff could not sustain a claim under the ADA by claiming that
his panic attacks impaired his ability to think "normally" and to

Plaintiff Donahue Francis brings this action against his former employer
defendant Chase Manhattan Bank, alleging discrimination and hostile work
environment on the basis of his race in violation of Title VII of the
Civil Rights Act of 1964 ("Title VII") as amended, 42 U.S.C. @@ 2000(e)
et seq., and the New York State Human Rights Law ("HRL"), New York State
Executive Law @@ 290 et seq.; discrimination on the basis of a
disability and failure to accommodate his disability in violation of the
Americans with Disabilities Act ("ADA"), 42 U.S.C. @@ 12112-12117, and
the New York State Human Rights Law, New York State Executive Law @@ 290
et seq.; and intentional infliction of emotional distress. Plaintiff
asserts his disability is a mental condition known as panic disorder
with or without agoraphobia.

Defendant moves for summary judgment pursuant to Federal Rule of Civil
Procedure 56(b) to dismiss plaintiff's claims in their entirety.
Defendant argues that plaintiff has failed to establish a prima facie
case of discrimination or hostile work environment in violation of Title
VII and the HRL, or a protected disability under the ADA. Defendant
further argues that plaintiff's claim of intentional infliction of
emotional distress must fail as he cannot establish the elements of such
a claim. Defendant also opposes plaintiff 's retaliation claim,
articulated for the first time in his opposition, as procedurally barred
and, alternatively, meritless as a matter of law.


Unless otherwise indicated, the following facts are undisputed.

Plaintiff Donahue Francis is a 36 year old African-American man.
Defendant Chase Manhattan Bank, then known as Chemical Bank, hired
plaintiff in May 1990 as a Lundy machine operator in its MICRO Data
Processing Department ("MDP Department"). The Lundy operator position
requires sitting at a machine, typing microencoding strips and gluing
them onto damaged checks. Throughout plaintiff's tenure as a Lundy
operator, Conrad Francis, an African-American man, supervised the MDP
Department's evening shift, which included the Lundy machine operators,
check sorters, and a printer operator. Conrad Francis rated plaintiff's
performance as "Competent," an average rating, and in April and May
1992, issued oral and written warnings to plaintiff for remaining on
bank premises after his shift. Plaintiff received two raises while
working as a Lundy operator, which increased his salary by approximately
8 percent.

In January 1993, plaintiff's salary grade was increased and he was
transferred to the position of printer operator. The printer operator
receives, separates and delivers printouts of lists of checks to the
check sorting machine operators and, when there is time, also assists
the sorter operator. Plaintiff also began reporting to Gina Reis, a
white woman. Ms. Reis consistently rated plaintiff's performance as
"Competent" or "Commendable" in his position as printer operator. While
Ms. Reis served as plaintiffs supervisor, plaintiff received at least
three salary increases, which raised his salary by 20 percent.

  Allegations of Racial Harassment and Hostile Work Environment

In early 1992, as a consequence of the merger of the Manufacturers
Hanover Trust Company and Chemical Bank, Robert Mills, a white man,
joined the MDP Department as a supervisor. Plaintiff alleges that
beginning sometime in June 1993, Mr. Mills began to behave in an
"obnoxious" manner. Plaintiff concedes that Mr. Mills behaved
obnoxiously towards employees of various races and that, prior to May
1994, he did not interpret any of Mr. Mills's alleged obnoxious behavior
towards him to be based upon his race or disability. Plaintiff believes,
however, that beginning in 1994, "it soon became increasingly clear that
my African-American heritage was the basis for his offensive harassing
conduct." Francis Aff. at P 4.

Plaintiff describes three specific incidents as evidence of Mr. Mills's
racial harassment of him. He states that Mr. Mills told him, regarding
Harry Fry Noriega, another African-American employee, "that nigger is a
disgrace to all of yous." Francis Dep. at 118. Plaintiff also recalls
that sometime in early 1995, in response to the distribution of United
Negro College Fund brochures, Mr. Mills held up one of the brochures and
stated, "why should I give money to those fucking - ? What have they
ever done for me?" Plaintiff could not say whether Mr. Mills used the
word Negroes or a racial epithet, admitting that he did not hear
clearly. In March 1995, plaintiff found scribbled in pen on his desk,
"All niggers should go back to Africa with a Jew under each arm,"
written in what he describes as "the unmistakable handwriting of Robert
Mills." He believes that the comment was directed at him because he was
the only black person working at that particular desk. Francis Aff. at P

Plaintiff further claims that Mr. Mills and Ms. Reis acted in other ways
to create a racially hostile work environment. He describes Mr. Mills's
racially harassing conduct as including raising his middle finger at
him, slamming his hand down on plaintiff's work station while yelling
"fuck you, asshole," and "you piece of shit," and eventually, stalking
plaintiff and eavesdropping on his phone calls. Plaintiff also describes
an instance sometime in either 1993 or 1994 when he overheard Ms. Reis
saying, "Look at these fucking moolies" as she looked out into the MDP
area, in which, plaintiff stated, there were numerous African-Americans.
Francis Dep. at 244-45.

(Ms. Reis denies ever using the term "moolies" and states that she does
not know what it means. Reis Aff. at P 22. Mr. Mills admits that he has
used the term "nigger" in conversation, but insists that he has never
used the term in the workplace generally, nor in reference to Mr.
Noriega specifically. He also denies ever following or stalking
plaintiff. Mills Dep. at 17-18, 57. He received an oral counseling
session from Farook Ali, an MDP Department manager, for the use of
inappropriate, but not racial, language and was warned that he could be
fired if he persisted in the use of such language. For purposes of the
motion, plaintiff's account is taken as true.)

                        Chase's Investigations

In March 1994, all members of the MDP Department, including plaintiff,
received and signed a notice stating that an unauthorized presence in
any other department was a violation of bank policy. This notice
resulted after complaints from other departments that MDP Department
employees were using their telephones and offices for personal
activities. On March 3, 1995, plaintiff received a written warning for
violating this directive by allegedly entering an unauthorized area in
another department. Plaintiff responded by going to speak with Nancy
Brennan, an Assistant Vice President in Human Resources, and complaining
that the warning was unfair and that he was being "targeted." Ms.
Brennan met with plaintiff, Ms. Reis, Mr. Mills, and Stanley Koslowski
(the Vice President responsible for all of Check Processing) on three
separate occasions on March 6, 7, and 9, 1995. At these meetings,
plaintiff admitted that he had been in another department, but objected
to the warning as he contended that Mr. Mills had authorized him to go
to the other department. Mr. Mills denied any such authorization. At the
conclusion of these meetings, Ms. Brennan directed plaintiff to sign the
warning with the understanding that he could respond to it in writing.
Plaintiff signed the warning under protest, but did not mention race or
disability in his objection.

On March 10, 1995, plaintiff told his co-worker Mr. Noriega that he was
concerned that Mr. Mills might be racist. Mr. Noriega responded by
telling him to raise these allegations with Chase management. Defendant
states that Mr. Ali overheard this conversation and promptly relayed
this information to Ms. Brennan. Defendant claims that Ms. Brennan
responded immediately with another investigation, notifying Mr.
Koslowski, Josephine Giampiccolo, and Lorraine Doyle, the Human
Resources generalist responsible for the MDP Department. Ms. Brennan
attempted to meet with plaintiff, who was out on vacation the week of
March 13-17, 1995. It is undisputed that plaintiff contacted Staff
Relations on his own on March 21, 1995, and spoke with a Janet Bevers,
who also started an investigation, defendant contends, and informed Mr.
Burchfield Moore, a senior level Staff Relations officer.

Mr. Moore interviewed plaintiff on March 28, 1995. At this interview,
plaintiff told Mr. Moore that: 1) in 1993, Mr. Mills would mutter
non-racial obscenities as he passed his work area; 2) Mr. Mills made a
racial comment in 1994 about Mr. Noriega; 3) Mr. Mills made the
above-described comment about the United Negro College Fund; 4) starting
in early 1995, Mr. Mills followed him around and glared at him from time
to time; and 5) Mr. Mills eavesdropped on his telephone calls. Plaintiff
claims that he additionally told Mr. Moore about his belief that he was
not being properly promoted and that he was being discriminated against
by Ms. Reis and Mr. Mills.

On March 31, 1995, Mr. Mills told plaintiff that he had changed
plaintiff's sign-out time from the previous evening to reflect the
earlier time he had observed plaintiff leaving work. Plaintiff objected
and disputed Mr. Mills's contention. Plaintiff claims that he also
"quietly advised him that I objected to his harassing me and following
me around and that I wanted him to stop," before walking away. He states
that Mr. Mills came into his department soon after and "lunged at me and
I reacted by recoiling back." He claims that Mr. Mills then followed him
into the bathroom and brushed his hand against plaintiff's buttocks. He
felt so "in fear for my life that Robert Mills would attack and kill me"
that he called the police and asked them to arrest Mr. Mills for
touching him. The police declined, recommending instead that he make a
complaint to the "Human Rights Commission in Mineola." Mr. Ali told him
to take the remainder of the evening off, thereby placing him on
administrative leave. Francis Aff. at PP 15-16.

Plaintiff met with Mr. Moore again on April 11, 1995, and described the
occurrences of March 31, 1995. On April 19, 1995, Mr. Moore told
plaintiff that his determination was that he had not been the subject of
any harassment and asked him to return to work. When plaintiff replied
that he was ill, Mr. Moore took him to the Medical Department.

Allegations Regarding Plaintiff's Disability, Medical Treatment, and

The first indication of plaintiff's disability came when he suffered a
panic attack on May 12, 1994, which prompted him to take medical leave
from that day until July 5, 1994. Plaintiff sought treatment from Dr.
Roxanne Fahrenwald, an internist, at Stony Brook Hospital, who in turn
referred him to Richard Murdocco, a psychotherapist. According to Mr.
Murdocco's notes from his first session with plaintiff, plaintiff
appeared "anxious, wringing his hands, stating he has been suffering
what he defines as panic attacks. Patient states that he has been unable
to assume daily activities due to his panic disorder." Murdocco Dep. at
60. Mr. Murdocco saw plaintiff on nine separate occasions over a seven
week period, and diagnosed him as suffering the beginning stages of
anxiety disorder with elements of agoraphobia. Mr. Murdocco describes
agoraphobia as a fear of going outdoors and as a very debilitating

Plaintiff returned to work in July 1994. He states that he informed the
nurses at the nurses department at Chase that he was suffering from
panic attacks. He further states that he told Ms. Reis, his supervisor,
as early as July 1994 that he suffered from a disorder, but acknowledges
that he may not have specified that he had an anxiety disorder until
November or December 1994, when he expressly requested from her a
reasonable accommodation. Plaintiff states that he told Ms. Reis that he
often grew dizzy from standing up at the printing area and had fallen
down and hit the side of his head; therefore, he wished to be seated
during the performance of his work.

Ms. Reis states that she never knew at any point in time during
plaintiff's employment that he suffered from any health condition that
substantially impacted his life and never regarded him as suffering from
such a condition. She states that, aside from his medical leaves,
plaintiff always reported to work on a regular basis and always
performed his assigned job functions satisfactorily. She recalls only
one request for any accommodation, which was made on January 9, 1995,
the day plaintiff returned from another medical leave. (It is undisputed
that plaintiff took another medical leave from January 3 to January 6,
1995.) According to Ms. Reis, plaintiff asked her if he could sit down
during part of his shift, and she acquiesced by allowing him to sit down
and perform a different function for that shift; she recalled no other
occasion when plaintiff asked to sit down or otherwise modify his job
functions. Plaintiff asserts that he cannot recall Ms. Reis making any
accommodation whatsoever in response to his requests and that he made a
request for accommodation to Lorraine Doyle as well, who never responded
to him.

Plaintiff took another medical leave beginning on April 24,1995, which
ultimately continued until plaintiff was finally terminated in October
1995. In May 1995, he began receiving treatment from Dr. Tsu Loo. Dr.
Loo, who continues to treat plaintiff presently, diagnosed him as
suffering from panic disorder with agoraphobia and, after hearing
plaintiff describe his work environment and his perception of Mr. Mills,
found that "causation is related to employment difficulties at Chemical
Bank." Loo Dep. at 67. Dr. Loo has ruled out persecutory delusion
because plaintiff has persistently spoken only of Mr. Mills and feeling
persecuted by him. Between June and September 1995, plaintiff submitted
numerous forms certified by Dr. Loo to Chase stating that he was
"medically disabled" and "totally incapacitated to perform his duty as
operation specialist." On these forms, Dr. Loo stated that plaintiff was
disabled but projected that he could return to work within eight months
or so. These forms made no specific requests for any accommodation and
did not describe any accommodation that would allow plaintiff to return
to work. Plaintiff also applied for Social Security disability benefits,
which were granted as of September 1995 and continue to date. Plaintiff
receives $ 720.00 in disability benefits every month.

Plaintiff was terminated by Chase on October 24, 1995 for the stated
reason that, in accordance with Chase policy, plaintiff had been on a
leave of absence for more than 27 weeks, had used all allotted sick
days, and had not elected long term disability coverage. Defendant
asserts, and plaintiff does not dispute, that temporary workers of
different races, including African-American workers have worked as
printer operators, plaintiff's former position. The present printer
operator is also African-American. It is undisputed that plaintiff has
not worked since April 1995, nor has he looked for work or pursued any
job training.

                         Procedural Background

On July 13, 1995, plaintiff filed a charge alleging disability
discrimination with the Equal Employment Opportunity Commission
("EEOC"). On August 8, 1995, the EEOC dismissed the disability charge
and issued a Right to Sue Letter. On October 30, 1995, plaintiff filed a
pro se complaint initiating this action. On the pro se form, he checked
the boxes for discrimination and retaliation based on race in violation
of Title VII, and alleged intentional infliction of emotional distress.
He filed a second charge with the EEOC on November 30, 1995, alleging
race discrimination. The EEOC issued a Right to Sue Letter in response
on May 28, 1996 on the race discrimination charge. Plaintiff has since
retained counsel. Discovery has been completed

                        Summary Judgment Standards

Motions for summary judgment are granted if there is no genuine issue as
to any material fact, and the moving party is entitled to judgment as a
matter of law. See Lipton v. Nature Co., 71 F.3d 464, 469 (2d Cir.
1995). The moving party must demonstrate the absence of any material
factual issue genuinely in dispute. See id. The court must view the
inferences to be drawn from the facts in the light most favorable to the
party opposing the motion. See Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, the non-moving
party may not "rely on mere speculation or conjecture as to the true
nature of the facts to overcome a motion for summary judgment." Knight
v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986). The party must
produce specific facts sufficient to establish that there is a genuine
factual issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986).

In a discrimination action such as this, it is important to note that:

[a] victim of discrimination is... seldom able to prove his or her claim
by direct evidence and is usually constrained to rely on the cumulative
weight of circumstantial evidence.... Consequently, in a Title VII
action, where a defendant's intent and state of mind are placed at
issue, summary judgment is ordinarily inappropriate.

Rosen v. Thornburgh, 928 F.2d 528, 533 (2d Cir. 1991) (citations
omitted). On the other hand, "the summary judgment rule would be
rendered sterile... if the mere incantation of intent or state of mind
would operate as a talisman to defeat an otherwise valid motion." Meiri
v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985).

                    Race Discrimination Under Tit

In order to establish a prima facie case of employment discrimination
under Title VII, a plaintiff must demonstrate that: (1) he belongs to a
protected class; (2) he was performing satisfactorily; (3) his employer
made a decision adverse to his interests; and (4) the decision raises an
inference of discrimination based on his membership in the protected
class. See Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir.
1994). Once a prima facie case has been made, the employer must
articulate a legitimate, non-discriminatory reason for having taken the
action of which the plaintiff complains. See Texas Dept. of Community
Affairs v. Burdine, 450 U.S. 248, 254-55 (1981); McDonnell-Douglas Corp.
v. Green, 411 U.S. 792, 802-03 (1973). If this is done, the burden
shifts back to the plaintiff to prove that the allegedly legitimate
reason is merely a pretext for discrimination. Id. at 804. However, "a
reason cannot be proved to be a 'pretext for discrimination' unless it
is shown both that the reason was false, and that discrimination was the
real reason." St. Mary's Honor Or. v. Hicks, 509 U.S. 502, 515 (1993)
(citation omitted). In the summary judgment context, St. Mary's requires
a plaintiff to "establish a genuine issue of material fact either
through direct, statistical or circumstantial evidence as to whether the
employer's reason for discharging [him] is false and as to whether it is
more likely that a discriminatory reason motivated the employer to make
the adverse employment decision." Gallo v. Prudential Residential
Services Ltd., Partnership, 22 F.3d 1219, 1225 (2d Cir. 1994). The
standards of proof governing an employment discrimination claim raised
under the New York HRL are the same as for a Title VII claim. See Sogg
v. American Airlines, Inc., 193 A.D.2d 153, 155-56 (1st Dep't 1993).

Here, plaintiff has met his initial burden of proof by establishing that
he was performing satisfactorily before he was terminated and that this
termination raises an inference of discrimination. Both parties agree
that plaintiff received performance ratings of "competent" or
"commendable" in the years of employment prior to his termination and
while he was supervised by Ms. Reis. Plaintiff, however, has failed to
raise a material issue of fact as to whether Chase's stated
nondiscriminatory reason for termination was merely pretextual.
Defendant attaches copies of Chemical/Chase company policies which
clearly state that it is the company's policy to terminate any employee
who has not returned to work after all allowable periods of paid and
unpaid sick leave have been used and that disabled employees may apply
for long term disability benefits if they have been out of work
continuously for twenty seven weeks or more. In response, plaintiff
attempts to raise two material issues of fact that he believes suggest
that the stated reason for termination was merely pretextual. Neither of
these arguments are convincing.

First, plaintiff offers a document, attached as Exhibit A to his
affidavit, which was produced by defendant and which lists the names of
employees in the MDP Department. Next to a handful of names, including
that of plaintiff, is an asterisk designating those employees who have
been "downsized." Plaintiff states that, based upon his own knowledge,
all of the employees with asterisks are either African-American or Asian
and, thus, their termination constitutes not downsizing but "racial
discrimination of the worst sort." Francis Aff. at P 40. This document
standing alone is not enough to suggest that plaintiff's termination was
motivated by discriminatory animus. Although defendant concedes that
this document was produced by Chase during discovery, plaintiff has not
authenticated the document as a business record, nor has he requested
from defendant statistical or other evidence regarding the race of all
of the other employees who continue to work in the MDP Department. As
plaintiff himself has noted, there are numerous African-Americans in the
MDP Department; therefore, the mere fact that plaintiff believes that
most or all of a handful of employees who were terminated were also
minorities is not enough to suggest that Chase's stated reason for
plaintiff's own termination was merely pretextual.

Secondly, plaintiff asserts that Ms. Reis, plaintiff's supervisor, has
also taken extended medical leave, was out of work for more than
twenty-seven weeks, did not elect long-term disability leave, yet was
not terminated and remains an employee at Chase. Plaintiff argues that
this calls into question Chase's stated policy of automatic termination
for any employee who is out on leave for more than twenty-seven weeks
without electing long term disability leave. In response, defendant
submits a supplemental affidavit from Ms. Reis, in which she states that
she requested and received permission to take an unpaid leave of absence
of approximately six months in 1987 to care for her first child. Chase
informed her that her position would not be held open for her and that
she would have to seek another position upon her return. At the end of
her leave, Chase advised her that her prior position was no longer
available and that if she did not locate a position that was open, she
would be terminated. Ms. Reis applied for and obtained a position as
reconciling clerk, a position involving reduced responsibilities, less
pay, a lower job grade and later hours than her previous position.
Unlike Ms. Reis, for whom long term disability coverage was not
applicable, plaintiff did not apply for long term disability leave nor
did he seek to return to work or take any other measures to avoid
termination. Thus, plaintiff cannot establish that Chase treated Ms.
Reis preferentially. Nor has plaintiff submitted any other evidence to
suggest that Chase's stated policy as it was applied to him differed
from his employer's treatment of a white employee who was similarly
situated. As such, plaintiff has not shown that Chase's stated reason
for terminating him was in fact pretextual and his claims of racial
discrimination under Title VII and the HRL are dismissed.

                  Racially Hostile Work Environment

In Harris v. Forklift Systems, 510 U.S. 17 (1993), the Supreme Court
held that, when considering a hostile work environment claim, courts
must consider the "frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with an
employee's work performance." Id. at 23. These factors are to be
measured by the totality of the circumstances, see Williams v. County of
Westchester, 171 F.3d 98, 100 (2d Cir. 1999) (citing Harris, 510 U.S. at
23), and must also be evaluated from both a subjective and an objective
viewpoint, see Distasio v. Perkin Elmer Corp., 157 F.3d 55, 62 (2d Cir.
1998) (citing Harris, 510 U.S. at 21-22). As there is no dispute here
that Mr. Francis subjectively perceived his work environment to be
hostile and abusive, the question here reduces to "whether a reasonable
person who is the target of discrimination would find the working
conditions so severe or pervasive as to alter the terms and conditions
of employment for the worse." Richardson v. New York State Dept of
Correctional Serv., _ F.3d _, 1999 WL 391551, at 5 (2d Cir. 1999). To
prevail on a racially hostile work environment claim, a plaintiff must
demonstrate "more than a few isolated incidents of racial emnity;" Snell
v. Suffolk County, 782 F.2d 1094, 1103 (2d Cir. 1986); "instead of
sporadic racial slurs, there must be a steady barrage of opprobrious
racial comments." Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir.
1997). "Casual comments, or accidental or sporadic conversation, will
not trigger equitable relief...." Snell, 782 F.2d at 1103. This standard
of proof applies for claims of hostile work environment brought under
Title VII as well as the HRL. See Tomka v. Seiler Corp., 66 F.3d 1295,
1304 n. 4 (2d Cir. 1995).

The timely filing of a charge with the EEOC is a prerequisite to the
maintenance of a Title VII action. See Butts v. City of New York, 990
F.2d 1397,1401 (2d Cir. 1993). In New York, where a state agency exists
to investigate charges of employment discrimination, a charge of
discrimination under Title VII must be filed within 300 days of the
occurrence of the conduct of which the charging party complains. See
Lambert v. Gennesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993). In contrast, a
state claim pursuant to the HRL is subject to a three year statute of
limitations. See Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2d
Cir. 1998).

Defendant argues that plaintiff has identified only four isolated
incidents in support of his hostile work environment claim: 1) Ms.
Reis's late 1993 or 1994 description of a group of African-American
employees (not including plaintiff) as "fucking moolies;" 2) Mr. Mills's
1994 reference regarding Mr. Noriega: "that nigger is a disgrace to all
of yous; 3) Mr. Mills's early 1995 remark regarding the United Negro
College Fund; and 4) the written statement plaintiff found on his desk
in mid-March 1995 stating, "All niggers should go back to Africa with a
Jew under each arm." Defendant contends that the first two incidents are
time-barred with regard to his federal claim as plaintiff failed to file
an EEOC claim alleging race discrimination until November 30, 1995, more
than 300 days after the first two incidents. The isolated occurrence of
two allegedly racial comments, defendant argues, is not enough to create
a hostile work environment.

Indeed, the first two incidents described by plaintiff are time-barred
under Title VII and, even if plaintiffs allegations were considered in
their entirety, these allegations are not enough to give rise to a
hostile work environment. Construing plaintiff's allegations of Ms. Reis
and Mr. Mills's conduct liberally, plaintiff has described only four
specific incidents involving racial comments, as opposed to a "steady
barrage of opprobrious racial comments," Schwapp, 118 F. 3 3d at 110,
and a number of more vague descriptions of offensive language and
conduct by Mr. Mills that cannot be readily attributed to racial animus.
The only other specific incident described by plaintiff occurred on
March 31, 1995, when Mr. Mills lunged at him and then, following him
into the bathroom, brushed his hand against plaintiff's buttocks.
Plaintiff states that he felt so threatened by these actions that he
felt compelled to call the police. The law is clear that "even a single
incident of sexual assault sufficiently alters the conditions of the
victim's employment and clearly creates an abusive work environment for
purposes of Title VII liability." Quinn, 159 F.3d at 768 (citing Tomka,
66 F.3d at 1305). Here, however, while plaintiff subjectively may have
feared for his physical safety, Mr. Mills's conduct in connection with
the March 31, 1995 incident fails to rise to the same level of severity
as sexual assault, and objectively carried no racial overtones.
Considering the totality of the circumstances, plaintiff has suggested
at most that Mr. Mills uses offensive language and has evinced a dislike
for plaintiff, plaintiff has not, however, sufficiently established a
hostile work environment. Plaintiff's claims of hostile work environment
under both Title VII and the HRL are therefore dismissed.

                       Constructive Discharge

In his opposition papers, plaintiff suggests that he was arguably
constructively discharged because the allegedly hostile work environment
caused the onset of his mental disorder which in turn left him incapable
of returning to work, which in turn led to his discharge. Any claim of
constructive discharge that plaintiff attempts to make cannot survive
this motion for summary judgment as he cannot show that the racial
animus and harassment he subjectively perceived was objectively
pervasive and severe enough to give rise to a hostile work environment.
As stated in Shabat v. Blue Cross Blue Shield, 925 F. Supp. 977, 982-83
(W.D.N.Y. 1996):

Plaintiff may have believed that he was being subjected to abuse because
of his national origin, religion, or disability. His subjective reaction
to his coworkers' actions has allegedly been so severe that he has been
on disability leave since 1992. Plaintiff's own perception that his work
environment was hostile is not enough, however: to prevail on this
claim, it is also necessary that plaintiff's work environment be
objectively hostile.

Thus, even if plaintiff can show a causal link among his conflict with
Mr. Mills, the onset of a debilitating medical condition, and his
discharge as a result of extended medical leave, plaintiff must also
show, which he fails to do, that his work environment was indeed hostile
to a reasonable person and not just merely intolerable to him.

           Failure to Promote and Denial of Salary Increases

Defendant asserts that plaintiff cannot establish a prima facie case of
failure to promote and that the undisputed facts show that plaintiff
received a salary increase every year of his employment with Chase.
Plaintiff fails to address directly either of these claims in his
opposition papers, but if one were to read his papers broadly, he
appears to claim generally that he had made requests for advancement to
Ms. Reis and that she ignored these requests. However, plaintiff does
not list specific positions to which he applied and was denied, and Ms.
Reis specifically stated at her deposition that there was no open
position to consider him for during his tenure. The Court of Appeals for
the Second Circuit has held that a plaintiff must "allege that she or he
applied for a specific position or positions and was rejected therefrom,
rather than merely asserting that on several occasions she or he
generally requested promotion." Brown v. Coach Stores, Inc., 163 F.3d
706, 710 (2d Cir. 1998). Plaintiff falls far short of his burden of
proof and his claims of failure to promote and denial of salary
increases must be dismissed.

                      Retaliation Under Title VII

Plaintiff raises, for the first time, in his opposition papers a
retaliation claim under Title VII. Specifically, plaintiff alleges that
Reis failed to consider him for a promotion and that he was excluded
from certain meetings. Plaintiff states that he may now raise this claim
because it is "reasonably related" to the Title VII claims made in his
EEOC charge of discrimination based on race filed on November 30, 1995,
and he cites Butts v. City of New York Dep't of Housing Preservation and
Dev., 990 F.2d 1397,1401-02 (2d Cir. 1993) for this position. Defendant
contends that the retaliation claim must be dismissed as time-barred and
for failure to exhaust administrative remedies as plaintiff failed to
raise this claim in either of his EEOC charges.

Although failure to exhaust administrative remedies is ground for
dismissal of a Title VII claim, see, e.g., Stewart v. U.S. I.N.S., 762
F.2d 193, 197-98 (2d Cir. 1985), it is well-established that a district
court "has jurisdiction to hear Title VII claims that either are
included in an EEOC charge or are based on conduct subsequent to the
EEOC charge which is 'reasonably related' to that alleged in the EEOC
charge." Butts, 990 F.2d at 1401. In Butts, the Court of Appeals for the
Second Circuit expressly stated that such reasonably related claims
include those alleging retaliation in response to a plaintiff's filing
of an EEOC charge of discrimination. See Shah v. New York State Dep't of
Civil Service, 168 F.3d 610 (2d Cir. 1999) (citing Butts, 990 F.2d at

Here, plaintiff fails to qualify for this type of exception to the
exhaustion of administrative remedies requirement under Title VII.
Plaintiff filed his first EEOC Charge alleging race discrimination and
harassment on November 30, However, plaintiff had already been
terminated by Chase on October 24, 1995, and thus, the retaliatory
actions alleged by plaintiff could not have occurred in response to his
EEOC filing. As plaintiff fails to state a claim "reasonably related" to
his EEOC claims, the retaliation claim must be dismissed for
non-exhaustion of administrative remedies.

Even on the merits, plaintiff's retaliation claim must be dismissed for
failure to establish a prima facie case of retaliation. A plaintiff must
show: participation in a protected activity known to the defendant; (2)
an adverse employment action; and (3) a causal connection between the
protected activity and the adverse employment action. See Quinn, 159
F.3d at 769 (citing Tomka, 66 F.3d at 1308). Protected activities
include the filing of a complaint with the EEOC and opposition by
employees against an employer's discriminatory practices. See Parker v.
Sony Pictures Entertainment, Inc., 19 F. Supp.2d 141, 152 (S.D.N.Y.
1998). An adverse action must affect the "terms, privileges, duration,
or conditions of [his] employment." Dortz v. City of New York, 904 F.
Supp. 127, 156 (S.D.N.Y. 1995). A causal connection between the
protected activity and the adverse employment action can be "established
indirectly with circumstantial evidence" by showing that "the protected
activity was followed by discriminatory treatment... or directly through
evidence of retaliatory animus." Sumner v. United States Postal Serv.,
899 F.2d 203, 209 (2d Cir. 1990). The plaintiff's burden in stating a
retaliation claim is slight; he may establish a prima facie case with de
minimis evidence. See Wanamaker v. Columbian Rope Co., 108 F.3d 462,465
(2d Cir. 1997).

Here, plaintiff fails to direct the court's attention to any evidence in
the record showing that he was denied promotions or salary increases or
that any adverse employment action was causally linked to his complaints
of racial discrimination. Plaintiff claims that Ms. Reis acknowledged
that she never considered plaintiff for a promotion because of
retaliatory animus. However, in the deposition pages cited by plaintiff,
Ms. Reis stated that there simply was "no other position to consider him
for. He was a grade 6, I believe, and the next step would be a
coordinator and there was no open position." Reis Dep. at Plaintiff
offers no other evidence that he suffered any adverse employment action,
or that any such actions can be causally linked to protected activities
by a showing of discriminatory treatment or retaliatory animus.

                       Disability Under the ADA

The ADA provides that "no covered entity shall discriminate against a
qualified individual with a disability because of the disability of such
individual in regard to... discharge of employees...." 42 U.S.C. @
12112(a). A plaintiff bringing a claim of discriminatory discharge under
the ADA bears the initial burden of establishing a prima facie case of
discrimination. To meet this burden, a plaintiff must show that: (1) his
employer is subject to the ADA; he suffers from a disability within the
meaning of the ADA; (3) he could perform the essential functions of his
job with or without reasonable accommodation; and (4) he was fired
because of his disability. See Ryan v. Grae & Rybicki, P.C., 135 F.3d
867, 869-70 (2d Cir. 1998). The ADA describes an individual as suffering
from a "disability" if he makes a showing of any one of the following:
"(A) a physical or mental impairment that substantially limits one or
more of the major life activities of such individual; (B) a record of
such an impairment; or (C) being regarded as having such an impairment."
42 U.S.C. @ 12102(2). "Only a 'qualified individual with a disability'
may state a claim for discrimination under the ADA;" even if a plaintiff
alleges a firing because of a medical condition, he can bring a claim
under the ADA only if his medical condition rises to the level of a
"disability." Parker, 19 F. Supp.2d at 147.

Plaintiff does not allege that he was unjustly regarded as having a
medical impairment when he in fact was not disabled. Therefore, the
court's analysis focuses on the legal standard required in order to
establish a "disability" as defined under either subsection A or B of
Section 12102(2) of the ADA and whether plaintiff proffers sufficient
facts to meet this standard. In a recent decision, the Supreme Court
articulated a three step process for evaluating a claim of "disability"
as defined under the ADA. See Bragdon v. Abbott, _ U.S _, 118 S.Ct.
2196, 2202 (1998). First, the Court determined whether the plaintiff
suffered from a physical or a mental impairment. Second, the Court
identified the life activity indicated by the plaintiff and considered
whether it qualified as a "major life activity" under the ADA. Finally,
the Court determined whether the claimed impairment substantially
limited the major life activity. See id. Under this analysis, "a
plaintiff who showed that he had an impairment and that the impairment
affected a major life activity would nonetheless be ineligible if the
limitation of the major life activity was not substantial." Colwell v.
Suffolk County Police Dep't, 158 F.3d 635, 641 (2d Cir. 1998).

Although the ADA does not define "major life activities" or "substantial
limitation," the regulations promulgated by the EEOC under the ADA
provide guidance in interpreting the ADA. See, e.g., Ryan, 135 F.3d at
870; Francis v. City of Meriden, 129 F.3d 281, 283 n.1 (2d Cir. 1997).
"Major life activities" are defined under the regulations as "functions
such as caring for oneself, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and working." 29 C.F.R. @
1630.2(i). "Substantially limits" is defined as:

unable to perform a major life activity that the average person in the
general population can perform; or (ii) significantly restricted as to
the condition, manner or duration under which an individual can perform
a particular major life activity as compared to the condition, manner,
or duration under which the average person in the general population can
perform that same major life activity.

Here, plaintiff fails to show that his panic disorder substantially
limits a major life activity and therefore cannot sustain a claim under
the ADA. Plaintiff makes only a conclusory claim that his ability to
"think as a normal person" is impaired. He explains that he would become
dizzy at work, and that his panic attacks impede some of his social
activities, including his sexual activity. Specifically, plaintiff
stated at his deposition that on occasion he cannot "ejaculate with her
as hard" as he would like, and that he feels "humiliated" that he is
unable to "go out of state somewhere" with a woman because he would not
know where the closest hospital was in the event that he suffered a
panic attack. As described by plaintiff, the activities of "thinking
normally" and "socializing" do not constitute major life activities as
contemplated under the ADA. Therefore, plaintiff falls to show that he
suffered a disability under the ADA and his claim is dismissed.

                        Remaining State Claims

Plaintiff has two remaining state claims, discrimination on the basis of
his disability under the HRL and intentional infliction of emotional
distress. As all of plaintiff's federal claims have been dismissed, the
court declines to exercise supplemental jurisdiction over the remaining
state law claims, see 28 U.S.C. @ 13677(c)(3), and these claims are
dismissed without prejudice.


Defendant's motion for summary judgment is granted and all of
plaintiff's federal claims are dismissed, as are his identical claims of
race discrimination and hostile work environment under the HRL. The
court declines to exercise supplemental jurisdiction over the remaining
state law claims of disability discrimination and intentional infliction
of emotional distress, and these claims are dismissed without prejudice.

CYBERGUARD CORP: Expects Consolidation For Securities Suits In Florida
On August 24, 1998, the Company announced, among other things, that due
to a review of its revenue recognition policies relating to distributors
and resellers, it would restate prior financial results. After the
August 24, 1998 announcement, twenty-five purported class action
lawsuits were filed by alleged shareholders against the Company and
certain current and former officers and directors. Each of these
lawsuits was filed in the United States District Court for the Southern
District of Florida. These actions seek damages purportedly on behalf of
all persons who purchased or otherwise acquired the Company's common
stock during various periods from October 7, 1997 through August 24,

The complaints allege, among other things, that as a result of
accounting irregularities relating to the Company's revenue recognition
policies, the Company's previously issued financial statements were
materially false and misleading and that the defendants knowingly or
recklessly published these financial statements which caused the
Company's common stock prices to rise artificially. The actions allege
violations of Section 10(b) of the Securities Exchange Act of 1934 (the
"Exchange Act") and SEC Rule 10b-5 promulgated thereunder and Section
20(a) of the Exchange Act. One action also alleges violations of common
law. Pursuant to an order issued by the Court, these actions have been
consolidated into one action, styled STEPHEN CHENEY, ET AL. V.
No. 98-6879-CIV-Gold, in the United States District Court, Southern
District of Florida. An amended consolidated complaint is expected
within 45 days after the filing of the Company's restated financial

In August, 1998, the Securities and Exchange Commission (the "SEC")
began an informal investigation into certain accounting and financial
reporting practices of the Company and certain members of Company's

FIRST UNION: Penn Ct Orders For Class Redefinition For FDCPA Settlement
A proposed Fair Debt Collection Practices Act class action settlement
that failed to clarify the eligibility of potential future class members
and included an excessive attorney's fee provision, did not receive
preliminary approval from the U.S. District Court for the Eastern
District of Pennsylvania. The court ordered the parties to either
redefine the class of debtors who challenged the dunning collection
letters or explain the eligibility of future class members. Smith v.
First Union Mortgage Corp., et al., No. 98-5360 (E.D. Pa. 7/19/99).

The plaintiffs filed a class action under the FDCPA against First Union
Mortgage Corp. and Hutchens, McCalla, Raymer & Echevarria after
receiving virtually identical debt collection notices. The plaintiffs,
who initially included claims for declaratory and injunctive relief,
filed an unopposed motion for preliminary approval of settlement and
notice to class with the District Court. Additionally, the plaintiffs
sought provisional certification of a class of approximately 288 members
under Fed. R. Civ. P. 23(b)(3) for the purpose of settlement and
preliminary approval of the parties' agreement.

Although the District Court concluded that the class satisfied Fed. R.
Civ. P. 23(a)'s numerosity, commonality, typicality and adequacy of
representation requirements, it found problems with the class fulfilling
the prerequisites of Rule 23(b). The District Court found that questions
of law and fact predominated due to the similarity between the factual
and legal predicates of each class member's claim and ruled that the
class met the predominance requirement of Rule 23(b)(3). Similarly, the
court found that a class action would fairly and efficiently address
class members claims and thus, the superiority requirement was

However, the court voiced its concern about the settlement's treatment
of the class of future debtors who may receive an improper letter from
the defendants. The settlement provides for the payment of damages in
"satisfaction of all claims," yet contains no consent of an injunction
or other prospective relief for the class, which includes person who may
receive improper letters from the defendant after certification,
settlement and settlement approval. The court found that the lack of
consent to an injunction or other relief hindered the ability of
identified class members to make an informed opt-out decision. It also
interfered with the court's ability to determine the fairness of the

The District Court delayed ruling on the motion and ordered the parties
to consider redefining the class. It also directed the parties to file
briefs on the issue of the eligibility of future class members.

The District Court further advised the parties to reconsider the
settlement's ceiling for attorney's fees as it found "a 70 [percent] fee
in a common fund case" to be "excessive." (Consumer Financial Services
Law Report 8-24-1999)

HARBINGER CORP.: Milberg Weiss Files Securities Suit In Georgia
The following was released by Milberg Weiss Bershad Hynes & Lerach LLP:

Notice is hereby given that a class action lawsuit was filed on
September 13, 1999, in the United States District Court for the Northern
District of Georgia, on behalf of all persons and entities who purchased
the common stock of Harbinger Corporation (NASDAQ: HRBC) between
February 4, 1998 and October 1, 1998, inclusive.

The complaint charges Harbinger and certain of its officers and
directors with violations of Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934 as well as Rule 10b-5 promulgated thereunder. The
complaint alleges that Harbinger and certain of its officers and
directors issued a series of materially false and misleading statements
regarding its business, operations and integration of certain
acquisitions. As a result of these materially false and misleading
statements, plaintiff alleges that the price of Harbinger common stock
was artificially inflated during the Class Period. Prior to the
disclosure of the adverse facts described above, certain insiders of
Harbinger sold thousands of shares of their personally-held Harbinger
stock to the unsuspecting investing public at artificially inflated
prices and the Company was able to complete several corporate
acquisitions using its artificially inflated common stock as currency.

Plaintiff is represented by the law firm of Milberg Weiss and the Law
Offices of Bruce Murphy, among others. If you are a member of the class
described above you may, not later than sixty days from September 13,
1999, move the Court to serve as lead plaintiff of the class, if you so
choose. In order to serve as lead plaintiff, however, you must meet
certain legal requirements. Contact, at Milberg Weiss Bershad Hynes &
Lerach, Steven G. Schulman or Samuel H. Rudman at One Pennsylvania
Plaza, 49th Floor, New York, New York 10119-0165, by telephone
1-800-320-5081 or via e-mail: endfraud@mwbhlny.com or visit our website
at www.milberg.com TICKERS: NASDAQ:HRBC

HOLOCAUST VICTIMS: NJ Fd Ct Dismisses 4 Suits Outside Judicial Realm
Newark, N.J. Reparation demands for Nazi-era slave labor cannot be
handled by U.S. courts, a federal judge ruled as he dismissed four
lawsuits seeking compensation from two German companies. U.S. District
Judge Dickinson R. Debevoise said postwar treaties leave the question of
payments to victims for nations to decide, and "to structure a
reparations scheme would be to express the ultimate lack of respect" for
the U.S. government leaders who ratified those pacts.

"Every human instinct yearns to remediate in some way the immeasurable
wrongs inflicted upon so many millions of people by Nazi Germany so many
years ago, wrongs in which corporate Germany unquestionably
participated," Debevoise wrote in a 78-page opinion. But, he added,
"This court does not have the power to engage in such remediation."

Experts in Holocaust litigation said the ruling, in lawsuits against
Degussa AG and Siemens AG, is probably the most significant decision by
a U.S. court regarding German industrial concerns and their use of slave
labor. The companies, which became multibillion-dollar global concerns
after World War II, sought to have the lawsuits dismissed on several
grounds, and Debevoise agreed with the argument that war-related claims
should be handled between nations.

A lawyer for former slave laborers, Burt Neuborne, promised an appeal,
asserting the judge misread the intent of the treaties. Debevoise found
that, under the last treaty to mention reparations, the Transition
Agreement of 1954, the courts are closed to those suing German firms
regarding wartime actions. The treaty postponed compensation to focus on
rebuilding Germany. Neuborne said he would try to persuade the appeals
courts that the international community never intended to ignore these
claims, merely to postpone them. In addition, advocates for Holocaust
victims will put pressure on the State Department to persuade Germany to
meet its obligations, he said.

A message left for a Siemens lawyer was not returned Monday, and its
offices in Germany had closed for the day when the decision came out.
Degussa, which recently became Degussa-Huels AG, issued a statement from
its base in Frankfurt, Germany, saying the ruling confirmed the opinion
of Degussa and other German companies. It added, "Without regard to this
decision, Degussa-Huels AG, in awareness of its historical
responsibility, will further actively take part in the foundation
initiative of German industry, 'Remembrance, Responsibility and
Future.'" The initiative refers to ongoing talks among victims'
advocates, governments and 16 German companies to create a fund to
compensate slave laborers. The companies, including Degussa and Siemens
as well as DaimlerChrysler, Bayer and other major industrial concerns,
agreed to establish the fund to quash class action suits filed in the
United States on behalf of hundreds of thousands of people forced to
work for the Nazi war machine.

The ruling "can't help but have some psychological implications on the
ongoing negotiations," said Rabbi Abraham Cooper, associate dean of the
Simon Wiesenthal Center and Museum of Tolerance in Los Angeles. "The
companies are only going to cooperate to the extent that we can force
them to," Cooper said. Gideon Taylor, executive vice president of the
Conference on Jewish Material Claims Against Germany, the New York-based
umbrella body involved in the talks, said the issue is morality. "For
us, the process of finding a just and a fair resolution of these issues
for slave laborers is one that will continue regardless of court
decisions," Taylor said.

An expert retained by the German government estimated 2.2 million people
survive today of those pressed into slave or forced labor under the
Nazis. Most are not Jews, but citizens of nations overrun by Germany.

The two suits against Degussa, a chemical and precious metals processor,
charged that it used slave labor, willingly helped the Nazis produce the
gas used in death camps and assisted in processing gold seized from
Jews, including fillings yanked from their mouths. Siemens, whose core
business is electrical engineering, was charged with profiting from
unpaid slave labor provided by the Nazi regime, exploiting nearly
100,000 foreign workers, war prisoners and concentration camp inmates
through beatings and inhumane living conditions. "The firms receiving
slave laborers must have known the origins of these workers," Debevoise
wrote. "Degussa must have known the use to which its [Zyklon-B gas] was
being put and the sources of much of the gold which it was refining for
the German authorities. "The Degussa lawsuit was filed here because its
U.S. subsidiary, Degussa Corp., is based in Ridgefield Park, N.J.
Siemens has several subsidiaries based in New Jersey. (The Legal
Intelligencer 9-14-1999)

HOLOCAUST VICTIMS: French Jews and Banks Fight Holocaust Lawsuits
The furor that enveloped Swiss banks over their failure to restore
dormant accounts to heirs of Holocaust victims is spreading to French

Two parallel class action suits in New York are demanding restitution
and costs from seven French banks that froze and confiscated
Jewish-owned accounts during the wartime occupation of France. Similar
suits against Swiss banks, plus the threat of economic sanctions, forced
them to agree to a $ 1.25 billion settlement for victims.

A hearing of the House Banking Committee in Washington Tuesday is seen
here as a way to pressure French banks to settle the lawsuits, as is a
state hearing in New York later in the week.

The French government and the banks are fighting the suits, contending
they violate France's sovereignty. The government and banks also have a
surprising ally: French Jewish organizations, which resent what they say
is U.S. interference in French affairs, including what they see as
meddling by U.S. Jewish groups.

"Our concern is to have [French] society revisit its history and accept
its responsibility. That's much more important than receiving a billion
francs," said Henri Hajdenberg, president of the Representative Council
of Jewish Institutions in France. "We are revisiting the history of the
last 50 years. All that is not entirely understood by the American
Jewish community."

The episode has opened a deep and painful rift between the French Jewish
community and such organizations as the World Jewish Congress.
To the Jewish groups outside France, the French are protecting their own
at the expense of other Holocaust victims. "There are differences of
opinion," said Elan Steinberg, executive director of the World Jewish
Congress in New York. "On the core issues, our view is that the French
banks and government have to relate both to the French Jewish community
and the world Jewish community."

In France, all sides place their trust in a blue-ribbon commission
established two years ago to account for assets taken from the rightful
owners of wartime bank accounts, stocks, artworks and businesses.
The nine-member commission and its hundreds of staffers are examining
wartime records of 100 banks, 20 insurance companies and numerous
government ministries. Its goal is to find what was taken, what was
restored and what was not, but it is not designed to make reparations.
Another panel will be created to do that.

Historian Claire Andrieu, a commission member who will testify before
the banking committee Tuesday, said France is different from
Switzerland, which was officially neutral during World War II and was
not invaded by the Nazis. When French banks were ordered to turn over
names and account balances of Jewish clients, they
complied--uncomplainingly, but with the knowledge that they had no
choice, according to the banks' defenders. And when they were told to
freeze and then confiscate those 68,000 accounts, they did that too.
(The Washington Post 9-14-1999)

MICROWORKZ: Consumers Complain In Washington Against Computer Maker
Trouble follows computer maker’s fast start. Not long ago, Rick Latman
and his upstart computer company, Microworkz.com, were riding high. A
charismatic figure who seemed to come out of nowhere, Latman was showing
up in all the right places, saying all the right things.

In March, Microworkz introduced a personal computer that sold for less
than $ 500 and received a nice splash of publicity. National stories
highlighted the company -- originally based in Seattle but since moved
to Lynnwood -- and Latman made television appearances on Fox and CNBC.
Later, there was talk of a possible deal with America Online and a
relationship with AT&T.

Things have since gone far south. Microworkz is the subject of at least
two inquiries into its treatment of consumers. Both the Washington state
attorney general and the Federal Trade Commission (FTC) are
investigating, with an eye on whether consumers received computers
within 30 days of when they were ordered and whether refunds were paid
in a timely manner.

The Attorney General's Office has logged more than 60 consumer
complaints against Microworkz, and a spokeswoman for the Better Business
Bureau of Oregon and Western Washington said her agency has logged a
like amount, though some of the complaints could be redundant. The FTC
wouldn't say how many complaints it has received.

Latman and Lance Rosen, the company's interim chief operating officer,
acknowledge the FTC and attorney general have asked for company records.
The regulatory bodies have requested detailed business records,
including information on sales, managerial responsibilities,
advertisements, refunds, credit slips and notices sent to consumers
regarding shipping delays. The investigation has been pending at least
since June, and has been slowed partly because the company has had
trouble producing records.

To top things off, Microworkz recently may have become a victim of its
own bookkeeping practices. Lynnwood detectives are investigating
possible employee theft. The losses are not substantial enough to
account for the company's problems, but some attribute them in part to
lack of internal controls.

In the product arena, the company faces serious problems, too.
Production of a new computer called the iToaster, which some saw as the
company's salvation, has stalled because of need for additional
development, lack of money and unresolved distribution issues, according
to sources inside and outside the company. Today, Latman disputed that
the iToaster is stalled at all.

Like many small companies in the technology industry, Microworkz had
large ambitions, in its case to make low-priced computers and provide
Internet service. But its reach may have exceeded its grasp. Last month,
in what amounted to a last-ditch effort to save the company, Latman
announced that effective Nov. 15, he would step down as CEO and turn
power over to Rosen. An attorney, Rosen most recently worked for an
independent film company that is part of Microsoft co-founder Paul
Allen's financial empire. In moving aside, Latman conceded his company,
formed in 1998 according to state records, lacked "seasoned management."

But interviews with nearly a dozen former Microworkz employees --
several of them highly placed -- together with a review of public
records and a series of interviews with Latman, place him at the center
of Microworkz's problems. In addition, Latman's accounts of events often
are at odds with those of others.

Among other things:

In an interview in June, Latman pledged that, to avoid problems that
previously hurt customers, the company would not charge iToaster
customers until the units were shipped. But customers have produced
records showing they were charged for iToasters they never received.

In an Aug. 24 letter to Microworkz, Ron Meshew of Rocky Mount, N.C.,
recounted his story, which started with his June 22 order of three
iToasters. Meshew noted that his records showed Microworkz had received
his June 23 check for $ 704.85 and cashed it June 29. "I have been the
owner of a business and know the rigors of cash-flow problems," Meshew
wrote. "I feel that I have been more than generous with my patience.
Secondly, your personnel that I have talked to were very courteous, and
genuine, in their handling of my attempts to get this matter resolved.
Unfortunately, it has been to no avail."

Last week, Latman challenged the notion that any iToaster customers had
been charged for units they had not received. He was given Meshew's name
and that of another similarly aggrieved customer. Latman said he would
check into the cases and get back. He has not.

Today, Latman said Meshew "sent a check in here unsolicited and very
early. It is not our policy to allow negotiable instruments to just lie

Last fall, Latman partnered with a group of Seattle businessmen to form
a venture called Dreamhaus. Latman maintains he pulled out as soon as he
learned the enterprise was going to include an adult-oriented Web site.
One of the partners is Frank Colacurcio Jr., a convicted felon who,
along with others, has run a chain of area strip clubs for years.

The former partners say the adult site was Latman's idea. (They ended up
suing him, though a settlement is in the works.) Kurt Lieber, a former
Dreamhaus employee who later worked for Latman at Microworkz, says that
when Latman first hired him, he asked if "I had any problem working with
adult content." Latman dismisses the allegation as "ridiculous" and
characterized Lieber as a disgruntled ex-employee.

After a barrage of negative publicity in June that included references
to more than $ 277,000 in liens filed against him by the Internal
Revenue Service and the state of California, Latman appeared to open the
door to his past. In a letter to customers and friends posted on the
Microworkz Web site, Latman wrote: "Five years ago, my family had a
small business selling wedding gowns. It failed and we got hurt. ... At
that time, we had two routes we could have taken; file bankruptcy or
stick it out and pay people back. ... We decided to pay everyone back."
But in a recent interview, Latman said he would not discuss his past
because it was "not applicable" to Microworkz.

Records show the bridal-gown business, Romantique Bridal, did file for
bankruptcy in Los Angeles. Also, small-claims-court records show default
judgments won against the business by numerous individuals totaling
thousands of dollars. The plaintiffs sued Latman and his wife, Bettina
Latman, the co-owner.

One of those who won, but has not collected, is Morton Wexler, a retired
radiologist living in a Los Angeles suburb. In summer 1995, he put a $
1,500 deposit on a dress for his daughter's Feb. 24, 1996, wedding. "I
called (Latman) 10 or 25 times," Wexler recalled. "He said he'd never
had a bride walk down the aisle without a wedding gown.' ... That was
one of his cliches. ... We called him up the day of the wedding. He
assured us. The truth is, he never delivered the dress."
Latman said he has no recollection of Wexler.

Heidi Kurtz, the court-appointed trustee who handled the Romantique
bankruptcy filing, yesterday said she distinctly recalls the case,
though she has handled 5,000 or 6,000 bankruptcies since. The case, she
said, was dismissed because Latman didn't show up for a scheduled

As a consequence, Kurtz said, it's as if the voluntary bankruptcy was
never filed, giving creditors the option to pursue the business. "It
really was outrageous," Kurtz recalled, adding that even though the file
has been destroyed, she's fairly confident she wrote a letter of
referral to the local U.S. attorney to investigate the case for
"potential fraud and abuse." Apparently, nothing came of it. Kurtz noted
that federal prosecutors are barred from disclosing the existence of
such referral letters, a point confirmed by the U.S. Attorney's Office
in Seattle.

The New York Times last March referred to Latman's prior position as a
bond trader at Merrill Lynch. Latman now admits he never held such a job
and can't explain how the information got into the story. He
complimented the writer, Laurie Flynn, as a "great reporter." "I don't
think she got it from me," Latman said, adding that "perhaps one of our
(Microworkz) press people gave it to her." He indicated he did not try
to correct the error.

Flynn said today she is certain she got the reference to the bond-trader
job directly from Latman. "My period in the limelight has hurt this
company more than it's helped," Latman said.

He declined to say how much Microworkz owes to commercial creditors for
products and services, and to consumers seeking refunds for computers
never received or not wanted. Two creditors -- PC World Magazine and
Rainier, a Massachusetts-based public-relations company -- each say
Microworkz's debt with each is in the "six figures."

Latman said he was unaware of "any problem" with PC World. But Roy Kops,
Western ad director for the magazine's print edition, said recently,
"We've tried to contact them over the last couple months, and we've
received no responses."

Of the debt to Rainier, Latman said only that there's a billing dispute.
Rainier president Steve Schuster maintains its billing practices are
state-of-the-art. "We felt we'd done a great job in all good faith, and
with full authorization," he said. "And then the money just wasn't

Latman, 33, grew up in Southern California and lives in Lake Forest Park
with his wife and children. He is guarded about his past but
acknowledges he is the grandson of Leon Schwab, whose famous Sunset
Boulevard pharmacy was frequented by movie stars such as Charlie Chaplin
and Marilyn Monroe.

Latman's father is Barry Latman, a former Major League Baseball pitcher
who was picked for the 1961 All-Star Game when he was with the Cleveland
Indians. Rick Latman apparently moved to this area in the mid-'90s and
opened a shop in Lake City last fall.

Based on records and interviews with former associates, it appears
Latman made a transition to computer-hardware sales after he developed
Retail Trac, a program to help bridal businesses track sales and orders.
Asked how he learned about computers, Latman said he was "self-taught."
(The Morning Call (Allentown) 9-9-1999)

PPG: 4th Cir. Upholds Economic Conditions May Determine Value Estimation
As a matter of law, economic conditions may determine what are "usual
and ordinary circumstances" for purposes of estimating market value.
Vela v. Plaquemines Parish Government. 729 So.2d 178 (La. App. 4 Cir.
1999 (March 10; rehearing denied, April 14)).

Seven-hundred parcels were appropriated for a hurricane protection levee
improvement. Separate actions for compensation and damages were
consolidated and certified as a class action. The trial court awarded $
1.00 per square foot of property to owners of parent parcels without
improvements and $ 1.35 per square foot to owners of parent parcels
containing improvements, with interest from the dates of the
appropriations (March 9, 1989, to October 3, 1991). Both parties used
mass appraisal to arrive at per-square-foot values.

Plaquemines Parish Government (PPG) appealed the values set by the trial
court. According to statute, when land is appropriated, owners are
entitled to compensation based on a fair market value standard, defined
by LSA-R.S. 47:2321 et seq.: "the price for property which would be
agreed upon between a willing and informed buyer and a willing and
informed seller under usual and ordinary circumstances...." (Emphasis
added.) The properties were appropriated during a period of four years
(1987-91) of severe contraction of the parish economy and depressed land
prices, compared with the periods immediately before and after. The
landowners contend that the depressed economic situation was an
aberration and not reflective of "usual and ordinary circumstances."
They argued that comparables should be chosen from the periods before
and after. PPG argued that "usual and ordinary circumstances" referred
to negotiations between buyer and seller, not the time of the
appropriation, and that comparables must be chosen from the market at
the time of the appropriation.

The appeal court determined that, as a matter of law, economic
conditions may determine what are "usual and ordinary circumstances." As
a matter of fact, the appeal court gave deference to the trial court's
finding that the period in question was "sufficiently short as to be
considered transitory and anomalous, but limited the holding to this
case. Influencing the trial court's decision was that the motive for
compensation in appropriations is fairness and that landowners cannot
control the timing of the appropriation and thus are not "willing
sellers." Unlike the standard definition of market value, the definition
in the statute affecting compensation calls for the "highest price"
rather than the "most probable price." The highest price is not
necessarily the peak price, however.

PPG also raised the issue of variation in size of the parcels.
Appraisers for both sides agreed that the value per square foot would
vary with size. However, the appeal court found reasonable the trial
judge's choice to use an average price per square foot in the absence of
individual valuations. A final issue was the higher value awarded for
parent parcels with improvements (the appropriated land itself did not
have improvements). Expert testimony in the record of the trial court
showed that the presence of improvements increases the value of land by
27-57 percent. The appeal court did not find the trial court's 35
percent differential manifestly erroneous. Therefore, the appeal court
affirmed the judgment of the trial court. (Assessment Journal,
July/August 1999)

RICHARDSON ELECTRONICS: Buyers Of Power Tubes Sue In Ill Over Antitrust
The Company is a defendant in Panache Broadcasting of Pennsylvania v.
Richardson Electronics, Ltd. in United States District Court, Northern
District of Illinois, filed in 1990. The complaint is a class action for
purposes of liability determination on behalf of all persons and
businesses in the United States who purchased electron power tubes from
one or more of the defendant corporations at any time since February 26,
1986. The complaint alleges antitrust violations and seeks treble
damages, injunctive relief and attorneys fees. The Company has denied
the material allegations. The case remains primarily in the preliminary
discovery stage.

TOBACCO LITIGATION: Aussi Fd Ct Rules Against Advertising On Disease
Tobacco giant Philip Morris welcomed a Federal Court ruling preventing
lawyers advertising for clients who had contracted a smoking-related
disease. In a highly unusual move, Justice Murray Wilcox temporarily
waived a provision in class action legislation that requires advertising
the details of a case before it proceeds.

Philip Morris is maintaining the tobacco litigation should not proceed
as a class action but be determined on an case by case basis.

They are planning to appeal an earlier court decision that allowed
solicitors Slater & Gordon to launch an action on behalf of all
Australians, who between April 16, 1996, and April 16, 1999, contracted
a smoking-induced disease.

Justice Wilcox has now said no advertising should be placed in the media
until any potential appeals had been heard, Phillip Morris said in a
statement. "Today's stay is recognition by the full court that aspects
of the case should not progress until the applications for leave to
appeal and appeals currently under way are heard and resolved," Philip
Morris said.

Solicitors for Australian smokers claim they have suffered diseases such
as lung cancer because of alleged misleading and deceptive conduct by
the tobacco companies since 1960. (AAP 9-14-1999)

TOBACCO LITIGATION: Florida The Anomaly To Allow Statewide Class Action
Experts say ruling aids smokers' case but awards may be long way off. If
you're a smoker suffering from tobacco-related illness, Florida is the
place to be.

Experts say a recent ruling in a massive anti-tobacco trial to be heard
next month in Miami should make it easier for ailing smokers to pursue
damage claims against Big Tobacco. "All they have to do is show up with
their medical bills and proof of lost wages," said Clark Freshman, an
associate law professor at the University of Miami. "You or anyone with
any moderate verbal abilities can just show up in court and win money
from the tobacco companies."

But it won't be a simple walk to the bank. Tobacco companies will still
dispatch lawyers to court to contest any smoker's claim. Big Tobacco is
fighting claims in Miami-Dade Circuit Court from as many as 500,000 sick
Florida smokers in a class-action suit, the first such suit in the
nation to get to trial.

In July, the Miami-Dade jury decided that cigarettes cause disease and
the tobacco industry was responsible for concealing that fact. Having
issued their verdict, the same jurors are scheduled to return next month
to determine how much money should be awarded to the smokers.

On Sept. 3, however, the 3rd District Court of Appeal in Miami ruled
that the money awards should be decided individually rather than as a
class, while maintaining the suit's class-action designation. But the
ruling raises many questions about how to proceed with those individual
claims. "I personally am confused by that decision,'' Miami-Dade Circuit
Judge Robert Kaye said, postponing the second phase of the trial while
lawyers seek a clarification.

The tobacco industry initially hailed the Sept. 3 decision as a victory,
one that precluded any chance of a one-shot, sky-high judgment that
could reach $ 200 billion.

But some legal experts say the Big Tobacco victory is a limited one, and
short-lived. Because the jury has already determined the industry was at
fault, individuals need only prove they were hurt by tobacco to receive
damages. "I think it's going to be a great encouragement to other
plaintiffs," said Richard Daynard, a law professor who heads an
anti-tobacco center at Northeastern University in Boston. "Generally,
things are looking as good as ever for plaintiffs."

Howard Acosta, a Tampa attorney who represents about 25 sick smokers,
said the ruling won't affect his strategy. "We always assumed the damage
claims would have to be tried individually," he said. "We think the
ruling leaves open the possibility of repeated damages."

While individual plaintiffs will argue for damages to pay them for their
medical bills, lost wages and pain, whether they can seek punitive
damages is up to the courts, said John Coale, a Washington, D.C.,
attorney who has been involved in previous Florida tobacco cases.

Judges, Coale said, may limit the amount of such awards, which are meant
to punish, but not necessarily put the party out of business. "You can't
have an $ 800 million punitive in each case," he said. Initially, Coale
doesn't expect Florida's courtrooms to be flooded with sick smokers
seeking tobacco company cash. "I doubt if you're going to see droves of
people in the first round," he said. Should the Miami case stir a rush
to judgment, "you're going to have to take a look at a special court
system," Coale said.

Law professor Freshman predicts the tobacco case is heading toward the
kind of resolution found in other so-called mass tort cases, such as
breast implants and asbestos. "They will set up a claims procedure," he
said. "They will likely appoint special masters who will conduct these
small, simplified hearings." Special masters are experienced lawyers or
professors who act as judges in certain cases.

Freshman estimated the entire process could take three or four years.
When it will start is "an open question" to be decided by the courts. If
judges wait until the tobacco industry's expected appeal of the current
case runs its course, it could be two years before any special smokers'
courts are established, Freshman said.

And the tobacco companies could settle the current case, he added. Any
agreement would likely include a cap on the total amount that can be
awarded all plaintiffs.

In any event, even in the case of small, specialized hearings, the
tobacco companies would mightily resist any payouts. "You've got an
industry that is committed to defending itself," said Martin Feldman, a
tobacco investment analyst with Salomon Smith Barney in New York. "To
date, the industry has never paid out a cent as a result of a court

Feldman said there are "overwhelming odds" that an appeals court or even
the state Supreme Court will reclassify the current case to remove its
class-action designation. In 20 out of 23 cases nationwide, courts have
refused to allow smokers to sue as a class.

But Florida, and particularly the 3rd District, has been an anomaly. It
was the only court to allow a statewide class action to go forward,
rejecting arguments that the case was too big and unwieldy for any court
system to handle.

Still, smokers will continue to face tough resistance from the tobacco
industry. Industry lawyers traditionally argue that smokers make a
personal choice to use tobacco, and are in part responsible for their
own illness. All but a few juries have agreed. (Sun-Sentinel (Fort
Lauderdale, FL) 9-13-1999)

UICI: Files Appeal In Sun Litigation In Texas Re Proceeds & Securities
UICI (NYSE: UCI) announced that, on September 10, 1999, it filed an
appeal of certain portions of the trial court's December 1998 ruling in
Sun Communications, Inc. v. SunTech Processing Systems, LLC, UICI,
Ronald L. Jensen, et al (the "Sun Litigation"). In addition, the Company
has been advised that Ronald L. Jensen (Chairman of the Board of the
Company) has filed an appeal of the trial court's December 1998 finding
in the Sun Litigation that Mr. Jensen was not entitled to any of the
proceeds from the sale of SunTech Processing Systems, LLC ("STP") assets
in February 1998.

As previously disclosed, UICI and Mr. Jensen are involved in litigation
with a third party concerning the distribution of the cash proceeds from
the sale and liquidation of STP. The Dallas County, Texas District Court
ruled in December 1998 that, as a matter of law, a March 1997 agreement
governing the distribution of such cash proceeds should be read in the
manner urged by Sun Communications, Inc. ("Sun") and consistent with a
court-appointed liquidator's previous ruling. The District Court entered
a judgment directing distribution of the sales proceeds in the manner
urged by Sun. The District Court also entered a finding that UICI
violated Texas securities disclosure laws and breached a fiduciary duty
owed to Sun, and the District Court awarded the plaintiff $1.7 million
in attorneys' fees, which amount could be increased to $2.1 million
under certain circumstances. UICI believes that the District Court was
incorrect in the awarding of attorneys' fees and in its finding that
UICI violated Texas securities laws and breached a fiduciary duty, and
UICI has appealed the District Court's decision as to those issues.
However, the Company has not appealed the District Court's ruling with
regard to the interpretation of the March 1997 agreement.

In the brief filed in his appeal of the District Court's December 1998
finding, Mr. Jensen has reasserted that the March 1997 agreement
requires that, before STP can make a distribution to UICI and Sun, it
must advance approximately $10.0 million to Mr. Jensen in satisfaction
of certain creditor and preferred equity claims. If and to the extent
that Mr. Jensen's interpretation of the March 1997 agreement is
ultimately adopted in the Sun Litigation after all rights to appeal have
been exhausted, the amount of such proceeds which UICI may ultimately
receive directly from STP may be reduced. However, in such event and in
accordance with an agreement reached with the Company in June 1998 (the
"Assurances Agreement"), Mr. Jensen has agreed to fully reimburse the
Company to the extent of any reduction in cash proceeds from the amount
determined by the District Court to be due the Company directly from

The Company cannot at this time predict how, when or in what fashion the
appellate court will dispose of the various claims of the Company and
Mr. Jensen on appeal. The appellate court may affirm the District
Court's judgment, may return the case to the District Court for trial,
or may reverse the District Court's decision and render a judgment. In
addition, there can be no assurances as to the time period during which
the appeals filed by Mr. Jensen or the Company in the Sun Litigation may
be heard and a final judgment rendered which affords no party in the Sun
Litigation the right to further appeal. However, for financial reporting
purposes, any cash ultimately received by the Company from Mr. Jensen
pursuant to the Assurances Agreement would be treated as a capital
contribution to the Company, and the Company's pre-tax operating results
would be reduced by a corresponding amount. In such case, however, the
Company's consolidated stockholders' equity would not be negatively
affected. In 1998, the Company's results of operations reflected a
pre-tax gain from the STP sale of $9.7 million ($6.7 million after-tax,
or $0.15 per share).

Based on the current caseload in the Texas appellate courts, the Company
does not currently believe that a final judgment in the Sun Litigation
will be rendered prior to 2001.

UICI is a diversified financial services company headquartered in
Dallas, Texas. Through its subsidiaries, UICI offers insurance and
financial services to niche consumer and institutional markets. UICI's
primary businesses are providing health insurance to the self-employed
and student markets, issuing credit cards to individuals with no credit
or troubled credit experience; originating, funding, and servicing
federally guaranteed student loans, and writing and managing blocks of
life insurance. UICI companies also provide technology and outsourcing
solutions to the insurance and healthcare community.

VITAMIN PRICE-FIXING: Plaintiffs’ Attorneys Say Settlement Near
Plaintiffs' attorneys in a civil class-action lawsuit over vitamin
price-fixing told CNI that settlement of the Dollars 1.1bn (Euro1.05bn)
suit against six European and Japanese firms "is close" and could be
reached "within a month."

Attorney Jonathan Schiller of the firm Boies & Schiller, which has
offices in New York City and Washington, DC, said however that "there
are still important issues to be worked out." But Schiller told CNI he
is hopeful that "the substantial money damages for the class, more than
any class has ever received in an antitrust case, together with the
Normal Trade Relations clause (formerly known as the Most Favored Nation
clause) - which will ensure that the class receives the best settlement
defendants may offer - are the subject of a final settlement toward
which we have been pursuing this litigation for more than two years."

And attorney Barry Barnett said: "We do not have an agreement yet, but
we are working toward settling the case with six vitamins
manufacturers." Barnett works with Dallas law firm Susman Godfrey, one
of three firms designated as lead counsel in the case. His firm
represents more than a dozen class plaintiffs, he said, including Texas'
Animal Science Products and Allied Feeds.

All cases in the US have been transferred to US District Court Judge
Thomas Hogan's court, he said.

The suit targets German chemicals group BASF, France's Rhone-Poulenc,
Swiss group Roche, and Japanese firms Eisai Co, Daichi Pharmaceutical
and Takeda Chemical Industries.

Schiller said the attorneys plan to pursue "more defendants that are not
already in settlement discussions with us and seek further damages to
the class." He did not elaborate on those defendants but noted that the
six already involved in litigation represent 90% of the sales of all
vitamin manufacturers involved.

Earlier, CNI reported that the three Japanese firms had agreed to plead
guilty and pay fines totalling Dollars 137m for participating in the
global conspiracy to raise and fix prices and allocate market shares of
certain vitamins sold in the US and elsewhere. That settlement by the
Japanese firms is completely unrelated to the pending civil litigation,
according to the US Department of Justice (DoJ).

In May, Roche settled for Dollars 500m with the DoJ over the
price-fixing. And BASF earlier this year was fined Dollars 225m in the
same case.

Barnett declined to reveal specifics of the case nor would he confirm
the reported Dollars 1.1bn settlement figure, but Schiller called the
figure "a fairly accurate one."

Schiller said he first began the civil litigation in 1997: "I was
between one and two years ahead of the government and both discovered
and pled it." In regard to the remaining issues, Schiller said that
plaintiffs' attorneys have asked that discovery would be permitted to
continue. (Chemical News & Intelligence 9-10-1999)

WORLD ACCESS: Securities Suit Lead Plaintiffs & Counsel To Be Appointed
Following the Company's announcement in January 1999 regarding earnings
expectations for the quarter and year ended December 31, 1998 and the
subsequent decline in the price of the Company's common stock, 22
putative class action complaints were filed against the Company. The
Company and certain of its then current officers and directors were
named as defendants. A second decline in the Company's stock price
occurred shortly after actual earnings were announced in February 1999,
and a few of these cases were amended, and additional similar complaints
were filed. The 22 cases were consolidated pursuant to a court order
entered on April 28, 1999. The Company expects that an amended
consolidated complaint will be filed in May 1999. The court has deferred
ruling on a pending motion regarding the appointment of lead plaintiffs
and lead counsel.

Although the 22 complaints differ in some respects, the plaintiffs,
generally, have alleged violations of the federal securities laws
arising from misstatements of material information in and/or omissions
of material information from certain of the Company's securities filings
and other public disclosures, principally related to inventory and sales
activities during the fourth quarter of 1998. In general, the complaints
are filed on behalf of: (a) persons who purchased shares of the
Company's common stock between October 7, 1998 and February 11, 1999;
(b) shareholders of Telco who received shares of common stock of the
Company as a result of the Company's acquisition of Telco that closed on
November 30, 1998; and (c) shareholders of NACT who received shares of
common stock of the Company as a result of the Company's acquisition of
NACT that closed on October 28, 1998. Plaintiffs have requested damages
in an unspecified amount in their complaints. Although the Company and
the individuals named as defendants deny that they have violated any of
the requirements or obligations of the federal securities laws, there
can be no assurance the Company will not sustain material liability as a
result of or related to these shareholder suits.

In addition to the proceedings described above, on March 18, 1999
plaintiffs Craig Illausky, John Ufkes and Steven R. Mason filed an
additional putative class action complaint in the United States District
Court for the Northern District of Georgia. The Company and certain of
its officers, directors and former directors were named as defendants.
The complaint is similar to the complaints filed in the proceedings
described above, alleging violations of federal securities laws arising
from misstatements of material information in and/or omissions of
material information from certain of the Company's securities filings
and other public disclosures. The Company expects to file a motion
requesting that this action be consolidated with the other pending

On April 21, 1999, the Company sold 50,000 newly issued shares of 4.25%
Cumulative Senior Perpetual Convertible Preferred Stock, Series A (the
"Preferred Stock") to The 1818 Fund III, L.P. The Preferred Stock ranks
senior to the Company's Common Stock with respect to dividend rights and
rights on liquidation, dissolution or winding up.


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

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

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

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