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/raid1/www/Hosts/bankrupt/CAR_Public/991105.MBX C L A S S A C T I O N R E P O R T E R Friday, November 5, 1999, Vol. 1, No. 193 Headlines ABERCROMBIE & FITCH: Berger & Montague File Securities Suit In Ohio ADVANCE STORES: Faces Tenn. Suit Over Sale Of Automobile Batteries ALLIED PRODUCTS: Faces Securities Suit In Illinois AMPLIDYNE INC: Weinstein Kitchenoff Files Securities Suit In New Jersey AMPLIDYNE: San Diego Law Firm Finkelstein & Krinsk File Securities Suit BASF: Agrees to Participate in US Settlement Re Direct Sale Of Vitamins BIG FLOWER: Announces Agreement To Settle Shareholder Suit Over Merger CAREMATRIX CORP: Milberg Weiss Files Securities Suit In Massachusetts CRACKER BARREL: Tenn-Based Chain Insists No Bias Against Black Workers DALLAS COUNTY: Pays Big Class Small Cash For Case Over Suit Filing Fee DIAL CORP: Judge Limits Contact With Workers About Sex Harrassment Case ELBIT MEDICAL: Announces And Decries Merit Of Shareholders Suit ELSCINT LTD: Announces And Decries Merit Of Shareholders Suit GIO: Australia's Leighton Rejects To Remove Board Member For GIO Case HOLOCAUST VICTIMS: Discussions Go On To Keep Slave Labor Talks On Track HUDSON TECHNOLOGIES: Announces Dismissal Of NY Lawsuit In Its Entirety INT'L FIDELITY: NY Sp Ct Suit Over Illegal Bail Fees Goes Forward LEAD PAINT: NY Health Dept Responds To Claims Over Denial Of Violation PHILIP SERVICES: Expects to Emerge from Chapter 11 REVLON INC: Spector & Roseman File Securities Suit Over GAAP Violations REVLON INC: Wolf Haldenstein Files Securities Suit In New York RHONE-POULENC: Announces Settlement For Lawsuit Re Animal Vitamins STATE BOARD: Fights Against CA Cosmetology Licensing Regulators TOBACCO LITIGATION: Ex-Surgeon Rips Tobacco In 2nd Phase Of Fla Hearing TOBACCO LITIGATION: Fd Ct Dismisses Case To Recover Asbestos Settlement TOBACCO LITIGATION: Fla. Sp. Ct. Might Head Off Lump-Sum Damages TOBACCO LITIGATION: NYC's Tobacco Settlement Bonds Ready to Price UNUMPROVIDENT CORP: May Be Added In MA Suits V. Provident, Says Berman US WEST: Colo. Suit Alleges Carrier Of Preferential Service VITAMIN PRICE-FIXING: 7 Makers Settle With Corporate Buyers For $1.18B WEST PUBLISHING: Female Executives Sue In Florida For Equal Options ********* ABERCROMBIE & FITCH: Berger & Montague File Securities Suit In Ohio ------------------------------------------------------------------- Berger and Montague P.C. filed a class action lawsuit for violations of the federal securities laws in the United States District Court for the Southern District of Ohio against Abercrombie & Fitch Co. (NYSE: ANF), and its officers, Michael S. Jeffries and Seth R. Johnson; and Lazard Freres & Co., LLC, and its securities analyst, Todd Slater. This case is filed as a class action on behalf of all persons who purchased Abercrombie & Fitch Co. ("A&F") common stock between October 8 and October 13, 1999, inclusive. The Complaint alleges that Abercrombie & Fitch Co. and its highest officers violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. The Complaint alleges that the Abercrombie & Fitch defendants issued materially false and misleading statements while selectively disclosing only to defendant Slater, a securities analyst at Lazard Freres & Co., that A&F expected only 12% growth in same-store revenues, far lower growth than what had been communicated to other securities analysts. As a result of this selective disclosure, Lazard's top clients were able to sell significant holdings in A&F's stock prior to the October 13, 1999 public disclosure of A&F's true financial condition. After revelation of A&F's true financial condition and its selective disclosure of the poorer results to Lazard's analyst, A&F's stock price plummeted from its Class Period high above $39 per share to below $24 per share. If you purchased Abercrombie & Fitch common stock between October 8 and October 13, 1999 you may wish to join the action. You may move the court to serve as a lead plaintiff no later than 60 days from October 19, 1999. If you wish to discuss this action or have any questions concerning this notice or your rights with respect to this matter, you may call or write to: Susan Kutcher Investor Relations Email: Investorprotect@bm.net Berger & Montague, P.C. 1622 Locust Street Philadelphia, PA 19103 Phone: 888-891-2289 or 215-875-3000 Fax: 215-875-4636 Website: http://home.bm.netor Sherrie R. Savett, Esquire Lawrence Deutsch, Esq. Direct phone: 215-875-3062 Fax: 215-875-4674 Email: LDeutsch@bm.net ADVANCE STORES: Faces Tenn. Suit Over Sale Of Automobile Batteries ------------------------------------------------------------------ In November 1997, a plaintiff, on behalf of himself and others similarly situated, filed a class action complaint and motion of class certification against the Company in the circuit court for Jefferson County, Tennessee, alleging misconduct in the sale of automobile batteries. The complaint seeks compensatory and punitive damages. The case is in the discovery stage and management plans a vigorous defense. ALLIED PRODUCTS: Faces Securities Suit In Illinois -------------------------------------------------- In May 1999 and June 1999, the Company was served with two complaints purporting to be class action lawsuits on behalf of shareholders who purchased Allied Products' common stock between February 6, 1997 and March 11, 1999. The two complaints, which were filed in the United States District Court for the Northern District of Illinois, appear to be virtually identical. They allege various violations of the federal securities laws, including misrepresentation or failure to disclose material information about the Company's results of operations, financial condition, weaknesses in its financial internal controls, accounting for long-term construction contracts and employee stock option compensation expense. AMPLIDYNE INC: Weinstein Kitchenoff Files Securities Suit In New Jersey ----------------------------------------------------------------------- Weinstein Kitchenoff Scarlato & Goldman Ltd. announce that a class action lawsuit has been commenced on behalf of persons who purchased shares of Amplidyne, Inc. (Nasdaq: AMPD) common stock between September 9, 1999 and September 14, 1999. The lawsuit has been commenced in the United States District Court for the District of New Jersey. It charges Amplidyne and its Chief Executive Officer, Devendar S. Bains, with violating the federal securities laws by misrepresenting material information regarding technology the Company was developing. Specifically, the complaint alleges that defendants misrepresented its introduction of wireless Internet access equipment as "new technology," when in fact such technology was already offered by Amplidyne's competitors. It further alleges that defendants' violations of law caused the price of Amplidyne common stock to be artificially inflated. When defendants' claims were disputed by a report on a newswire service a few days later, the price of Amplidyne shares plummeted, and investors who purchased shares of Amplidyne common stock during the Class Period were damaged thereby. If you purchased Amplidyne common stock between September 9, 1999 and September 14, 1999, and if you meet certain other legal requirements, you may, not later than November 15, 1999, seek to serve as a lead plaintiff in the action. If you wish to discuss this lawsuit, or have any questions concerning this notice or your rights or interests, please contact Mark Goldman, Esquire toll free at 888-545-7201 or by e-mail to msgoldman@wksg.com. Callers in the Philadelphia area can reach them at 215-545-7200. AMPLIDYNE: San Diego Law Firm Finkelstein & Krinsk File Securities Suit ----------------------------------------------------------------------- Amplidyne, Inc. (Nasdaq:AMPD) is accused in a class action lawsuit filed by the San Diego law firm Finkelstein & Krinsk of fraudulently misrepresenting the Company's condition, products and technologies in order to inflate the price of the Company's stock. According to the Complaint, in a desperate bid to reap huge financial gains, Amplidyne embarked on a scheme to artificially inflate the price of the Company's stock, eventually by over 400 percent in two days (Amplidyne stock rose from $ 3.13 per share on September 9, 1999, to a high of $ 16.75 per share on September 10, 1999), by issuing a materially false and misleading press release, which, among other things, mischaracterized the uniqueness of the Company's technology and its efficacy. The Complaint further alleges that defendants made these false representations knowing that the Company was not introducing new or unique technology to the market and, in fact, had never beta or field -- tested its purportedly "new" products. Defendants' statements were false and caused Amplidyne stock to trade at artificially inflated levels during the Class Period (Sept. 9, 1999-Sept. 14, 1999). When the truth about defendants' misrepresentation became known to investors, the price of Amplidyne shares dropped dramatically, reaching a low of $ 6.59 per share in intra-day trading on September 14, 1999. "Amplidyne's conduct represents a gross violation of the federal securities laws," stated Jeffrey R. Krinsk, Esq., of Finkelstein and Krinsk. "We are particularly pleased that institutional investors have contacted us as we are recognized as the resource of choice for these large investors who appreciate that the quality of our research and our willingness to include their own attorneys in the process reflects our flexible approach." If you purchased or acquired a significant amount of Amplidyne stock during the Class Period, you can join in the action on favorable terms without cost or expense to you by contacting Finkelstein & Krinsk. Members of the Class who wish to actively participate must act by not later than November 15, 1999. Contact: Jeffrey R. Krinsk at Finkelstein & Krinsk, the Koll Center, 501 West Broadway, Suite 1250, San Diego, CA 92101 by calling toll free 877-493-5366 fax 619/238-5425 or E-Mail - fk@class-action-law.com TICKERS: NASDAQ:AMPD BASF: Agrees to Participate in US Settlement Re Direct Sale Of Vitamins ----------------------------------------------------------------------- BASF announced on November 3, 1999 that it had agreed to settle class-action lawsuits filed in the United States by companies that purchased products directly from vitamin manufacturers. The lawsuits were filed in response to an antitrust investigation of the vitamins industry by the United States Department of Justice. Terms of the agreement call for seven vitamin manufacturers to contribute $ 1.17 billion, including plaintiffs' legal costs. BASF will contribute $ 287 million of the total. Documents seeking approval of the settlement will be filed shortly in a federal court in Washington, D.C. Upon approval, the court will appoint a settlement administrator who will process claim forms submitted by eligible members of the class. This class includes companies that purchased certain vitamin products in the United States directly from vitamin manufacturers within designated years. Payments to eligible members of the class will be made on a vitamin-by-vitamin and on a company-by-company case. BIG FLOWER: Announces Agreement To Settle Shareholder Suit Over Merger ---------------------------------------------------------------------- Big Flower Holdings, Inc. (NYSE:BGF) announced on November 4 that it has mailed supplemental proxy materials in connection with its previously announced November 23, 1999 annual meeting of stockholders, at which stockholders will be asked to vote on a proposal to merge Big Flower with BFH Merger Corp., an affiliate of Thomas H. Lee Company and Evercore Capital Partners LP, pursuant to the Amended and Restated Agreement and Plan of Merger, dated as of October 11, 1999, between BFH Merger Corp. and Big Flower. Big Flower also announced that it reached an agreement in principle to settle the shareholder class action litigation arising out of the Merger. CAREMATRIX CORP: Milberg Weiss Files Securities Suit In Massachusetts --------------------------------------------------------------------- The following is an announcement by the law firm of Milberg Weiss Bershad Hynes & Lerach LLP: Notice is hereby given that a class action lawsuit was filed in the United States District Court for the District of Massachusetts, on behalf of all persons who purchased the common stock of CareMatrix Corp. (Nasdaq: CMDC) between October 28, 1998, and October 7, 1999, inclusive. The complaint charges CareMatrix 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 defendants issued a series of materially false and misleading statements concerning the Company's business, financial condition, earnings and prospects. As a result of these materially false and misleading statements and omissions, plaintiff alleges that the price of CareMatrix common stock was artificially inflated during the Class Period. If you are a member of the class described above you may, not later than sixty days from November 3, 1999, move the Court to serve as lead plaintiff of the class, if you so choose. In order to serve as lead plaintiff, however, you must meet certain legal requirements. If you wish to discuss this action or have any questions concerning this notice or your rights or interests with respect to these matters, please contact, at Milberg Weiss Bershad Hynes & Lerach ("Milberg Weiss"), 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 website at http://www.milberg.com TICKERS: NASDAQ:CMDC CRACKER BARREL: Tenn-Based Chain Insists No Bias Against Black Workers ---------------------------------------------------------------------- Cracker Barrel Old Country Store says it doesn't discriminate against black employees. The assertion comes in a court filing that responds to a discrimination lawsuit filed in July. The Lebanon, Tenn.-based restaurant chain also asked a U.S. District Court judge to deny the plaintiffs' efforts to have the suit granted class-action status. The lawsuit, filed in U.S. District Court in Rome, alleges Cracker Barrel systematically discriminated against blacks in such areas as hiring, promotions and pay. The lawsuit was filed on behalf of a dozen current and former employees. Lawyers for the plaintiffs could not be reached for comment. In its answer, Cracker Barrel said some of the actions taken against employees "were based upon legitimate, nondiscriminatory factors" other than race. The company also said it acted to prevent and correct any alleged racial harassment and that it has a policy against such behavior. It addresses some specifics, though it is vague in its answers. For instance, Stephen Wilson, a grill cook in Dalton, alleged in the original complaint that he was paid less than white cooks, given unequal work schedules and subjected to unfair discipline. Wilson said he requested and was denied time off July 4, 1998. When he disregarded the schedule and failed to appear for work, he was suspended and reprimanded. But Wilson claims in the lawsuit that when a white employee did the same, he was not disciplined. He also said a white manager frequently referred to blacks as "boy." Cracker Barrel admits Wilson was reprimanded and suspended for taking the day off without permission, but it said it did not have sufficient information to determine whether a white employee wasn't disciplined for also taking the day off. The answer filed this week "strongly" disputes the claims made by the plaintiffs, said Julie Davis, a Cracker Barrel spokeswoman. "As the case unfolds, we will demonstrate that Cracker Barrel is strongly committed to fairness and opportunity for all employees," Davis said. (The Atlanta Journal and Constitution 11-4-1999) DALLAS COUNTY: Pays Big Class Small Cash For Case Over Suit Filing Fee ---------------------------------------------------------------------- If you filed a civil suit in Dallas County between Sept. 28, 1996 and July 28, 1998, chances are that Tim Kelley has 30 bucks waiting for you. What started out a decade ago as an effort by a handful of family lawyers to recover some suspicious filing fees collected by the county has ended up as a class action settlement that could pay out small dividends to over 80,000 people. Litigants who filed civil suits during the 22-month period have until Nov. 24 to claim their $ 30 as part of the settlement in Phillips, et al. v. Dallas County. For Kelley, 75, a former Dallas Bar Association president, the case has been a personal crusade - one most lawyers wouldn't think was worth the money, time and effort. But it was the principle of the case that mattered to Kelley - that and the estimated $ 1 million in fees he'd receive for his decade of work. One case eventually split into three - two individual suits and the class action. They've essentially kept Kelley out of retirement, he says, all in pursuit of what amounts to beer money for the many people who've filed everything from divorce to car wreck cases in Dallas County. "It's just something I kept working on," says Kelley, who's of counsel to the Law Offices of Vic Terry in Dallas. "Why give up?" He estimates he's put 3,500 hours into the cases and has spent close to $ 200,000 litigating the matters. To reach the class settlement, the three cases have gone through a long and strange history. The main claim in the cases has already been poured out by Dallas' 5th Court of Appeals, only to be resurrected by the Texas Supreme Court. The original case was dismissed; a subsequent case is on appeal before the high court although some parties have settled. The dispute in the cases center on a "sheriff's fee" or "bailiff's fee" that courthouse clerks have collected on all civil suits filed for years. Appellate courts eventually ruled that it was illegal to deposit those fees directly into the county's general fund. So people who paid the fee for a two-year period during a time the county ignored court rulings on the issue are eligible for a small pay day. The county is expected to pay about $ 1 million to litigants as part of the class action settlement. It has been stipulated that Kelley's $ 1 million in attorneys' fees will not take away from money due to class members. Bouncing Around For now, the most interesting question is how many lawyers will respond to collect a measly $ 30 for their clients? A legal notice Kelley posted in The Dallas Morning News received a tepid response from the public, Kelley says. But he's hopeful that lawyers will act on behalf of their clients. He recently sent out 2,000 letters to trial lawyers in Dallas advising them that their clients may be due some settlement money. "I've heard from 30 or 40 lawyers speaking for firms," Kelley says. "If they are really representing their clients, they should [respond]." When the late H. Averil Sweitzer, a Dallas family lawyer, approached Kelley in 1990 about suing the county, he had an intriguing proposition. Sweitzer believed that the Dallas County clerk was collecting a variety of fees illegally. He found a Reconstruction-era law that allowed for quadruple damages when a district clerk charged illegal fees. "That went back to carpetbagger days when Yankees were sent down to run the counties," Kelley notes. He says he believed the old law was enforceable. "It was pretty good on the books." The case was attractive to Kelley because he stood to make a fortune from the quadruple damages. He took the case on a contingent-fee basis. District Judge John McClellan Marshall of Dallas agreed with the plaintiffs and allowed quadruple damages in 1992. But a 1994 decision by the 5th Court of Appeals found that quadruple damages applied only to fees for services the district clerk provided, not to sheriff's fees. That ruling held that depositing the sheriff's fees in the general fund did violate the open-courts provision of the state constitution. Therefore, the 5th Court essentially eliminated the damages award. If the county had stopped depositing the fee in the general fund, the suit would have ended there, says John Long, chief of the civil division in the Dallas County Office of the District Attorney. But that didn't happen, says Long, who's represented the county in the matter since 1997. Long says he didn't realize the county was still collecting the fee improperly until 5th Court justices asked about it in 1998 during arguments in one of the individual cases. "I was in disbelief," says Long. "It really did not occur to me until oral arguments that it would still be collected." Long came to the DA's civil division in mid-1997 after then-District Attorney John Vance asked for the resignation of a number of assistants in the division. "My heart goes out to the district clerk and even some of the county commissioners," Long says. "I don't know that they were fully cognizant of what the courts were saying and what that meant." But it was a writ of mandamus filed by the county that ultimately led to the success in the class action suit, Kelley says. A July 1998 ruling in one of the individual cases left intact a trial court contempt judgment for illegally charging a "bailiff's fee" in place of a "sheriff's fee," which the trial court found was a "sham." "It was the July decision that made me believe that I had a solid ground," Kelley says. Then the county settled in the class case, Kelley says. Come and Get It County officials say they expect about one-third of the people eligible for the settlement to come forward. About 40,000 civil cases are filed in Dallas County district courts each year. Kelley's fees will be paid out of money that isn't collected. People who don't make a claim by the deadline are out of luck and won't receive a refund as part of the class. Tracking down clients who filed suits between 1996 and 1998 seems like a big job for lawyers who don't have a lot of time on their hands. But it's not an impossible task, says Judge Marshall, who ruled on some of the cases. "The county was computerized during this period, so everything can be verified," Marshall says. "It's not quite the catastrophe that it looks like at first blush." Some solos and small-firm lawyers say they probably won't bother with recovering the meager refunds. And depending on how much it costs a lawyer to track down a long-forgotten client, it's probably OK not to inform them, especially if there's already been a legal notice posted in a newspaper, says Austin's Chuck Herring Jr., a legal ethics expert. "My guess is it's unlikely that lawyers would be taken to task for failing to notify a client about $ 30," Herring says. "But to lawyers who have a high-volume practice and depend on repeat business, it may be important to them." Fred Baron, a Dallas toxic-torts lawyer whose firm has hundreds of plaintiffs cases pending in Dallas district courts, says he'll go after the settlement money for his clients. "It's not much to you and me, but 30 bucks is important to our clients," says Baron, a partner. (Texas Lawyer 10-25-1999) DIAL CORP: Judge Limits Contact With Workers About Sex Harrassment Case ----------------------------------------------------------------------- Last May, the Equal Employment Opportunity Commission accused Dial Corp. of widespread sexual harassment, and then set out to further investigate the workplace conditions. Amid the agency's probe, the soapmaker sent employees a letter in September saying, "You are under no obligation to speak to anyone from the EEOC unless you are subpoenaed to do so." Was anything wrong with that? U.S. Magistrate Judge Ian Levin on Wednesday ruled that Dial had crossed the line, resolving some of the legal wrangling between the company and the EEOC, which is pursuing a class action on behalf of women employees at Dial's factory in Montgomery, near Aurora. After the workers received the company's letter, the agency went to the court in Chicago, asking Levin to stop Dial from communicating with its workers in such a manner. The agency's attorneys said they were concerned that the women would be intimidated and might not step forward to file complaints. Levin agreed with the EEOC's request, saying the company had to back off for two weeks from contacting workers about the lawsuit. Looking ahead, he also advised the company that it should deliver any subpoenas involved in the lawsuit to workers at their homes, and not on the job as it had been doing. During the coming two weeks, the judge said the federal agency could continue to investigate the firm's soap plant and find out how many workers will join the lawsuit. Robert Jackson, an attorney for Scottsdale, Ariz.-based Dial, said the letters were intended only to advise workers' of their rights, and not to intimidate them. The EEOC has identified 96 women so far as alleged victims of sexual harassment, and EEOC attorney Ines Monte said she expected the number to increase. The plant, she noted, has about 400 female workers. In granting the EEOC's emergency motion, Levin said, "A judge cannot ignore some pressures and realities when you are talking about victims of harassment." Monte called the decision a clear victory for the workers, " who are susceptible to all kinds of intimidation." EEOC attorney Noelle Brennan told the court that the agency was especially concerned about intimidation after it heard that a woman who had complained about harassment on the job was thinking about not taking part in the suit. The agency pointed out that the woman had complained that she had been groped and grabbed and told about pornographic movies while on the job. (Chicago Tribune 11-4-1999) ELBIT MEDICAL: Announces And Decries Merit Of Shareholders Suit --------------------------------------------------------------- Elbit Medical Imaging Ltd. (Nasdaq: EMITF) ("EMI") announced on Nov. 3 that on November 2nd, 1999 it was served with a copy of a Statement of Claim and an Application to have the said Statement of Claim recognized as a Representative (Class Action) Claim ("the Application"), which were submitted against the Company, Elscint Ltd. (in which the Company holds approximately 56%) ("Elscint"), Europe-Israel (M.M.S.) Ltd. (the controlling shareholder of the Company) ("Europe Israel"), Control Centers Ltd. (the controlling shareholder of Europe Israel), Marina Herzlia Limited Partnership 1988 (which is controlled by Control Centers Ltd.), Elron Electronics Industry Ltd. (the previous controlling shareholder of the Company), and against 25 past and present office holders in the above companies. The claim was submitted by a number of investors and others who hold shares in Elscint, while the Application was submitted on behalf of those who held shares in Elscint on September 6th, 1999 and continue to hold such shares on the date of the Application, excluding the respondents. The claimants allege that the minority shareholders of Elscint have been discriminated against as a result of various activities carried out by the controlling shareholders of Elscint and its Board of Directors. The allegations raised by the claimants include, inter alia, that the controlling shareholders of Elscint at the date of the sale of the assets of Elscint did not act in order to enable the public to participate in the proceeds of the sale, that the Company undertook to execute an alleged buy-out of the shares of Elscint which was subsequently cancelled, that the transaction in terms of which Elscint acquired the shares of a previous manager was executed on the basis of unsound commercial considerations, and that the acquisition by Elscint of the hotel businesses of Europe Israel and the commercial and entertainment center project at the Herzlia Marina from Control Centers Ltd. caused damage to be suffered by Elscint and by its minority shareholders. The remedy which has been requested by the claimants is that the Company be compelled to execute the alleged buy-out of shares at $14 per share. Alternatively, the claimants have requested remedies set forth in the Statement of Claim regarding compensation for the damages which they allege were suffered by them and the non-execution of the transactions with interested parties. Certain of the remedies have been requested also as derivative claims on behalf of Elscint. The Company is of the opinion that it acted lawfully in all matters pertaining to the allegations which have been raised in the Statement of Claim and the Application, that the Claim is baseless and without merit, and intends to vigorously oppose same. ELSCINT LTD: Announces And Decries Merit Of Shareholders Suit ------------------------------------------------------------- Elscint Ltd. (NYSE: ELT), a subsidiary of Elbit Medical Imaging Ltd. (Nasdaq: EMITF) ("EMI") announced on Nov. 3 that on November 2nd, 1999 it was served with a copy of a Statement of Claim and an Application to have the said Statement of Claim recognized as a Representative ( Class Action) Claim, which were submitted against the Company, EMI (the controlling shareholder of the Company), Europe-Israel (M.M.S.) Ltd. (the controlling shareholder of EMI) ("Europe Israel"), Control Centers Ltd. (the controlling shareholder of Europe Israel), Marina Herzlia Limited Partnership 1988 (which is controlled by Control Centers Ltd.), Elron Electronics Industry Ltd. (the previous controlling shareholder of EMI), and against 25 past and present office holders in the above companies. The claim was submitted by a number of investors and others who hold shares in the Company, while the Application was submitted on behalf of those who held shares in the Company on September 6th, 1999 and continue to hold such shares on the date of the Application, excluding the respondents. The claimants allege that the minority shareholders of the Company have been discriminated against as a result of various activities carried out by its controlling shareholders and its Board of Directors. The allegations raised by the claimants include, inter alia, that the controlling shareholders of the Company at the date of the sale of the assets of the Company did not act in order to enable the public to participate in the proceeds of the sale, that EMI undertook to execute an alleged buy-out of the shares of the Company which was subsequently cancelled, that the transaction in terms of which the Company acquired the shares of a previous manager was executed on the basis of unsound commercial considerations, and that the acquisition by the Company of the hotel businesses of Europe Israel and the commercial and entertainment center project at the Herzlia Marina from Control Centers Ltd. caused damage to be suffered by the Company and by its minority shareholders. The remedy which has been requested by the claimants is that EMI be compelled to execute the alleged buy-out of shares at $14 per share. Alternatively, the claimants have requested remedies set forth in the Statement of Claim regarding the compensation for the damages which they allege were suffered by them and the non-execution of the transactions with interested parties. Certain of the remedies have been requested also as derivative claims on behalf of the Company. The Company is of the opinion that it acted lawfully in all matters pertaining to the allegations which have been raised in the Statement of Claim and the Application, that the Claim is baseless and without merit, and intends to vigorously oppose same. GIO: Australia's Leighton Rejects To Remove Board Member For GIO Case --------------------------------------------------------------------- Leighton Holdings Ltd chairman Tim Besley has refused a shareholder request to remove board member David Mortimer from the company's board. Shareholder Jack Tilburn made the request at the annual general meeting on November 4. He said Mortimer should be removed because of his involvement with the board of GIO Australia Holdings Ltd. Mortimer is a former chairman of GIO. Tilburn also said Mortimer had failed to disclose 13 of his directorships in Leighton's annual report. Mortimer was not called on to respond. Besley refused to take any action on Mortimer, who was not up for re-election at the meeting. "This matter you have raised is a matter between GIO, its current and former directors and its officers and stakeholders," he told Tilburn. "Furthermore it's now sub judice and I am not prepared to comment on issues surrounding GIO. "As far as the Leighton board is concerned Mr Mortimer is a contributing member and a good director and that is what matters." GIO is involved in a class action brought on by shareholders. The class action is against GIO, nine former directors and consultants Grant Samuels. (Asia Pulse 11-4-1999) HOLOCAUST VICTIMS: Discussions Go On To Keep Slave Labor Talks On Track ----------------------------------------------------------------------- German industry representatives, government envoys and lawyers for victims were trying to keep a planned meeting later this month on track by coming up with a compromise on the money amount for compensation to Nazi laborers, participants in the talks said. All sides have expressed serious doubts whether the Nov. 16-17 talks in Bonn will go on as scheduled. The meeting is being viewed as a pivotal turning point to resolve the Nazi labor issue and the discussions that have been oscillating between Washington and Bonn this year. Industry has stuck firm to its offer of 4 billion marks ($ 2.15 billion), to be added to another 2 billion marks ($ 1.05 billion) from government. The German companies, which announced the initiative for a compensation fund under pressure from class-action suits in the United States, also want to make sure that they are protected from future lawsuits. But lawyers have been adamant that the companies' figure is nowhere near their demands, now in the $ 10 billion range. ''The feeling on our side is that it's not worth it to go there and get the same answer from the industry,'' Michael Witti, a German lawyer representing the victims, said Thursday of the planned Bonn meeting. ''It's better to postpone than have another unsuccessful round.'' Wolfgang Gibowski, spokesman for the industry's compensation fund, said several working groups have been discussing issues ahead of the meeting. ''If they finish their work in time, the meeting will happen,'' he said. However, Gibowski maintained that industry had no plans to sweeten its 4 billion mark offer. The German government's envoy to the talks has said the fund is having problems even coming up with that amount. After a meeting Wednesday with a parliament committee, Otto Lambsdorff said he was trying to recruit more companies to join the 16 firms committed to the fund. ''We need more time and money to reach a solution,'' he said. The companies already in the fund include Volkswagen, Deutsche Bank, Siemens and DaimlerChrysler. A spokesman in Lambsdorff's office, who refused to be named, said Thursday a decision would likely be made next week on whether the talks would be officially canceled. ''It is still planned, but it is of course conditioned on improvement of industry's offer,'' the spokesman said. Previous German governments have excluded compensation for slave labor from the more than dlrs 60 billion in reparations paid to Nazi victims, arguing that the victims were technically working for private companies. (AP Worldstream 11-4-1999) HUDSON TECHNOLOGIES: Announces Dismissal Of NY Lawsuit In Its Entirety ---------------------------------------------------------------------- United States District Court for the Southern District of New York Dismisses Claims Filed Against Hudson In 1998. Plaintiffs elected not to file amended complaint within court-granted 30-day period. Hudson Technologies, Inc., (NASDAQ: HDSN), a service provider to the comfort cooling and refrigeration industry, announced that the plaintiffs in the class action lawsuit filed against the Company have elected not to file an amended complaint following the September 26, 1999 Opinion and Order of the United States District Court for the Southern District of New York. The Company said the Court's decision dismissed all of the claims asserted against the Company, but granted the plaintiff's 30 days to serve an amended complaint to cure the deficiencies found by the Court with regard to two of those claims. The plaintiff's determination not to serve an amended complaint results in a final and complete dismissal of all claims asserted against Hudson Technologies. The Court noted in its decision that, in evaluating the Company's motion to dismiss, "all reasonable inferences must be drawn in the plaintiff's favor" and that the Company's motion "should only be granted if it appears that the plaintiffs can prove no set of facts in support of their claim that would entitle them to relief." Applying that standard to the plaintiffs' complaint, the Court held: "In each instance, however, the plaintiffs' allegations fall far short of the showing that is required." INT'L FIDELITY: NY Sp Ct Suit Over Illegal Bail Fees Goes Forward ----------------------------------------------------------------- A proposed class action on behalf of people who posted bail for their loved ones and were charged allegedly illegal and excessive fees by bail bondsmen may go forward, a Manhattan judge has ruled. The claims surviving in the suit, McKinnon v. International Fidelity Insurance Co., filed last week in Supreme Court, New York County, IA Part 3, were fraud, deceptive business practices and unjust enrichment. Justice Barry A. Cozier denied a motion by the defendant International Fidelity Insurance Co's (IFIC) to dismiss the complaint. But he did throw out a cause of action alleging a violation of Insurance Law @ 6804, which limits the premium amount that can be charged for a bail bond. The judge said there was no private right of action for violation of that statute; enforcement of the law was within the state Superintendent of Insurance's jurisdiction. Belinda G. McKinnon hopes to represent as lead plaintiff a class of people who paid fees in addition to a premium when posting bail. Plaintiffs' attorneys claim the extra fees, improperly designated as "expenses," allow the defendant to circumvent strict limits on bail bond premiums set forth in the Insurance Law. Ms. McKinnon claims the defendants routinely charge fees of at least 10 to 15 percent of the total bail amount, despite the statutory limits. She claims she paid $ 5,000 to secure a $ 50,000 bail bond for the release of her son, Terrence Outlaw, after his June 1997 arrest in Brooklyn for robbery. She was given a receipt by IFIC agents, bail bondsmen Montgomery R. Carlin and David Morgan, showing the bail bond premium was $ 1,500, expenses were $ 3,200 and a "transcript delivery fee" to a courier company was $ 300. Justice Cozier rejected IFIC's contention that @ 2119(a) allows charges by an agent for service fees in addition to the sliding scale of maximum rates for premiums set in @ 6804. "To interpret [@ 2119] as allowing additional compensation for bail bonds would render @ 6804 a nullity," the judge wrote. "[Section] 2119 applies to licensed insurance agents, brokers or consultants receiving fees or commissions for designated services, and does not include bail bondsmen within its ambit." The complaint's allegations of fraud, unjust enrichment and violation of General Business Law @ 349 (deceptive business practices) were adequately pled, the judge said. "Plaintiff has alleged that she relied to her detriment on the false representations made by the defendant as to the amounts defendant was authorized to charge for bail premiums, which exceeded the statutory maximum, and that defendant falsely represented expenses which had no relation to actual expenses," Justice Cozier said. IFIC's fee practices also have come under scrutiny recently in Supreme Court in the Bronx, where Justice Richard Lee Price found that although fees charged by an IFIC agent were excessive and violated the state's Insurance Law, the bond posted for the defendant did not contravene public policy, and thus the bail arrangement was approved. (People v. Ian James, NYLJ, June 3, 1999, page 31, column 2.) The plaintiff Ms. McKinnon was represented by Brad N. Friedman and Elaine Kusel, of Milberg Weiss Bershad Hynes & Lerach, and Ronald G. Blum, of Kalkines, Arky, Zall & Bernstein. Beth D. Jacob, of Brobeck, Phleger & Harrison, appeared for IFIC. (New York Law Journal 10-25-1999) LEAD PAINT: NY Health Dept Responds To Claims Over Denial Of Violation ---------------------------------------------------------------------- In response to claims that an unwritten policy exists to deny all landlords' challenges to lead paint violations, the New York City Department of Health argues that the proper procedures were followed, some violations were rescinded and the complaint is time-barred (Morris Avenue Equities, et al. v. New York City Department of Health, No. 16970-99, N.Y. Sup., Bronx Co.; See 6/25/99, Page 3). (Text of Answer in Section C. Mealey's Document # 14-990924-103.) Landlord Morris Avenue Equities alleges the New York City Health Department has an unwritten policy of arbitrarily denying challenges to lead paint violations. The landlord asks the Bronx County Supreme Court to issue an order rescinding the alleged violations found on the property. Morris Avenue asks the court to vacate a decision by the health department's Contested Violations Unit to deny the challenge to the violations. Also sought is class certification for all city landlords whose challenges were erroneously denied. Affirmative Defenses In its July 1 answer, the health department raises several affirmative defenses. The health department first argues that the mere fact that an inspection company retained by the landlord came to a different conclusion does not prove that the Contested Violations Unit made an arbitrary or capricious decision. The health department maintains it does not have a policy of rejecting all challenges to lead paint violations and notes that orders were rescinded "in a number of instances." All guidelines set by the U.S. Department of Housing and Urban Development and the Environmental Protection Agency regarding the use of X-ray fluorescence (XRF) equipment are followed, the defendant says. The Contested Violations Unit considered all relevant information when considering Morris Avenue's challenge, adds the health department. The health department additionally argues that the complaint is barred under General Municipal Law Section 50-e for failure to file a timely notice of claim. Regarding the bid for class status, the health department maintains that the request for class status is premature and should not be granted because of the individualized nature of the proposed class members' claims. Certification is precluded by the "governmental operations rule," the health department adds. Discovery Necessary Morris Avenue contends in its Aug. 19 reply brief that the Contested Violations Unit has denied "each and every" challenge to lead violations since implementing its unwritten policy to deny landlords' challenges in or around January 1997. "On many occasions various employees of the Department of Health have openly discussed this unwritten policy with landlords who were trying to understand why their proof was rejected as 'insufficient.' Appropriate discovery will reveal the extent of the practice," maintains the landlord. The health department does not provide for a hearing after a violation is contested and no minutes are taken, as required by Administrative Code Section 17-146, says Morris Avenue. Citing Butler v. Wing (677 NYS2d 216, 177 Misc.2d 779 [1st Dept. 1998]), Morris Avenue argues that the governmental operations rule has not prevented the certification of other class actions against a municipality. Representing Morris Avenue is Charles N. Rock of The Rock Law firm in White Plains, N.Y. The health department is represented by Daniel Richmond of the Office of Corporation Counsel. (Mealey's Litigation Report: Lead 9-24-1999) PHILIP SERVICES: Expects to Emerge from Chapter 11 -------------------------------------------------- Philip Services Corp. (TSE/ME: PHV) announced on Nov. 3 that the U.S. Bankruptcy Court overseeing the Company's U.S. financial reorganization has indicated its approval of Philip's U.S. Plan of Reorganization (the "U.S. Plan"), subject to satisfactory completion of negotiations regarding Philip's exit financing facility. Other than finalizing the terms of the exit financing facility, the Judge has confirmed that the Company's U.S. Plan addresses the required elements to obtain final confirmation under Chapter 11 of the U.S. Bankruptcy Code. No objections remain outstanding from parties affected by the Company's U.S. financial restructuring. The Company expects to complete negotiations regarding its exit financing facility shortly and to emerge from U.S. bankruptcy protection on schedule within thirty days. "On behalf of our more than 10,000 employees we are pleased that the Court has accepted the principle terms of our U.S. Plan," said Tony Fernandes, President and CEO. "We will emerge a healthy corporation and a strong competitor in both the metals and industrial services markets. Through the hard work of our employees and the ongoing support of our clients and suppliers, we have a sound platform from which to build a profitable future." Philip expects to have access to exit financing in excess of US$ 125 million, in addition to proceeds from the previous sale of assets, which will provide the Company with sufficient resources to support its ongoing working capital requirements. Under the Company's Plan approximately US$ 1 billion in existing debt will be converted into US$ 250 million in senior secured debt, US$ 100 million in convertible payment in-kind debt and 91% of the shares of the restructured company. Holders of impaired unsecured debt, who voted over 90% in favor of the U.S. Plan, will receive a pro rata share of US$ 60 million in unsecured payment in-kind notes and 5% of the common shares of the restructured company. Under Philip's Amended Canadian Plan of Reorganization, substantially all the assets of Philip Services Corp. and its Canadian subsidiaries will be transferred to new Canadian subsidiaries of Philip Services (Delaware), Inc. Upon implementation of the U.S. Plan, Philip Services (Delaware), Inc. will issue and distribute 24 million new shares of common stock on a pro rata basis to its secured lenders, unsecured creditors, existing shareholders, class action claimants and other equity claimants, as set forth in the Company's U.S. Plan. Shareholders of record of the Company on the date of implementation of the U.S. Plan will receive their pro rata share of 480,000 common shares of the restructured company. There are currently approximately 131 million common shares of the Company issued and outstanding. Philip has applied for a U.S. listing on the NASDAQ National Market, following a decision made by the review committee of the New York Stock Exchange to proceed with the de-listing of the Company's securities. Philip's lenders, as majority shareholders, will appoint a new Board of Directors upon Plan implementation, at least two of who will be members of the existing Board of the Company. Philip Services is an integrated metals recovery and industrial services company with operations throughout the United States, Canada and Europe. Philip provides diversified metals services, together with by-products management and industrial outsourcing services, to all major industry sectors. REVLON INC: Spector & Roseman File Securities Suit Over GAAP Violations ----------------------------------------------------------------------- Spector & Roseman, P.C. announced that on November 1, 1999, it filed a Class Action lawsuit against Revlon, Inc. (NYSE:REV) and certain of its officers and directors. The suit is brought on behalf of all persons or entities who purchased or otherwise acquired the common stock of Revlon, Inc. between October 29, 1997 and October 2, 1998, inclusive. The lawsuit charges Revlon, Inc. and certain of its top officers and directors with violations of the securities laws and regulations of the United States. The Complaint alleges, among other things, that defendants defrauded the investing public by recognizing revenue in violation of Generally Accepted Accounting Principles ("GAAP"). In addition, the Complaint charges that the defendants deliberately shipped excessive amounts of Revlon products and improperly recognized revenues on such shipments. If you purchased or acquired Revlon stock between October 29, 1997 and October 2, 1998, inclusive, you may wish to join the action. You may move the Court to serve as a lead plaintiff no later than 60 days from October 4, 1999. In order to serve as a lead plaintiff, you must meet certain legal requirements. If you wish to discuss this action or have any questions concerning this notice or your rights or interests, please contact plaintiff's counsel Robert M. Roseman toll-free at 888/844-5862 or via E-mail at classaction@spectorandroseman.com or visit website at http://www.spectorandroseman.comTICKERS: NYSE:REV REVLON INC: Wolf Haldenstein Files Securities Suit In New York -------------------------------------------------------------- The Following is an Announcement by the law firm of Wolf Haldenstein Adler Freeman & Herz LLP: Wolf Haldenstein Adler Freeman & Herz LLP announces that it filed a class action lawsuit in the United States District Court for the Southern District of New York on behalf of investors who bought Revlon, Inc. (NYSE: REV) stock between October 29, 1997 and October 2, 1998. The lawsuit charges Revlon and several of its top officers with violations of the securities laws and regulations of the United States. The complaint alleges, among other things, that defendants defrauded the investing public by recognizing revenue in violation of Generally Accepted Accounting Principles ("GAAP"). In addition, the Complaint charges that the defendants deliberately shipped excessive amounts of Revlon products and improperly recognized revenues on such shipments. Plaintiffs is represented by the law firm of Wolf Haldenstein Adler Freeman & Herz LLP. If you purchased Revlon stock during the Class Period, you have until December 3, 1999 to participate in the case and ask the Court to appoint you as one of the lead plaintiffs for the Class. In order to serve as lead plaintiff, you must meet certain legal requirements. If you wish to discuss this action or have any questions, please contact Wolf Haldenstein Adler Freeman & Herz LLP at 270 Madison Avenue, New York, New York 10016, by telephone at (800) 575-0735 (Michael Miske, Gregory Nespole, Esq., Fred Taylor Isquith, Esq. or Shane T. Rowley, Esq.), via e-mail at classmember@whafh.com or whafh@aol.com or visit website at http://www.whafh.comTICKERS: NYSE:REV All e-mail correspondence should make reference to Revlon. RHONE-POULENC: Announces Settlement For Lawsuit Re Animal Vitamins ------------------------------------------------------------------ Rhone-Poulenc S.A. (NYSE: RP) through its wholly owned subsidiary, Rhone-Poulenc Animal Nutrition, confirms on Nov. 3 that it has reached an out-of-court settlement with plaintiffs in civil lawsuits involving vitamins. The Rhone-Poulenc affiliate has agreed to pay the plaintiffs $86.8 million. The settlement will be subject to approval of the U.S. federal judge. The cost of the settlement announced has already been accounted for as part of a non-recurring charge of approximately $100 million euros ($109 million USD) that Rhone-Poulenc took in the second quarter of 1999 for litigation related to animal vitamins. The lawsuits stem from a U.S. Department of Justice investigation of the vitamin industry. Rhone-Poulenc said it cooperated fully and voluntarily with the Justice Department and because of Rhone-Poulenc's cooperation and assistance, it was accepted into the Anti-Trust Division's Corporate Leniency Program and no action of any kind, including fines, was taken against the company. STATE BOARD: Fights Against CA Cosmetology Licensing Regulators --------------------------------------------------------------- JoAnne Cornwell is an associate professor at San Diego State University who has taught French and African studies since 1984. She, like most African American women, found that her hair-care needs were not being met by mainstream cosmetology, so she began experimenting with natural hair styling herself, developing a hair-locking method based on certain cultural traditions. But when she began teaching other people how to style tightly coiled hair, she realized that her business could be shut down by state regulators unless she got a cosmetology license. She joined a legal fight against the licensing requirement after a San Diego braiding salon was cited by the Board of Cosmetology. As a member of the American Hair Braiders and Natural Hair Care Assn., she met with lawyers who named her business lead plaintiff because they felt the cosmetology licensing regulations unfairly restricted her business from growing past the home salon stage into the professional arena. Although the judgment, handed down last August in U.S. District Court in San Diego, is limited to her business, it is expected to set a strong precedent for similar businesses in the future. Winning a legal battle against regulation is a costly--and time-consuming--trial for a small business, says Cornwell. The main drive of my business is to empower people. Along with styling hair and training others to do it, I sell a small line of hair-care products and accessories. For African Americans in this country, the norm is to alter our hair, either by chemical- or heat-straightening. My method embraces the natural texture of African hair with braiding and hair-locking techniques that are really beautiful but not widely known. In 1997, I and the owners of a local braiding salon met with a public-interest law firm based in Washington, the Institute for Justice. The braiding salon had been cited by the California Board of Cosmetology for not being licensed. The problem is that in order to get a license, you have to take 1,600 hours of training in hair care that is totally unrelated to what we do. Most of the training relates to working with chemicals, which we don't do at all, and the braiding techniques they teach are for straight hair. We would also have to learn nail care, pedicures, eyebrow arching and other services that I would never do. Less than 1% of the training, which can cost between $ 5,000 to $ 7,000 and take up to two years, has anything to do with general hygiene or sanitation. We filed a lawsuit in federal court against the state board in mid-1997, alleging that the cosmetology regulations were unconstitutional as applied to people who practice hair care as we do, with nonchemical and noninvasive methods. I was named as a principal plaintiff. We used my home-based business as an example of why we don't need over-regulation when our industry has the potential of growing and thriving on its own. The case went on for more than two years. I had to turn over my training materials to the board and fight to get an order from the judge requiring them to promise not to disclose any of my trade secrets. The final ruling was Aug. 18. We won the case on a summary judgment. If I hadn't had a law firm willing to do the work pro bono, I would never have been able to pursue the lawsuit. I would have been put out of business. As it is, I've been unable to open a public place of business, though now I have the potential to do that. I think the business is going to grow and realize its full potential now that I don't have to deal with the stress and financial strain of the legal case. Even though the attorneys' fees were covered, I had to go to Sacramento to speak on behalf of bills that were being proposed to exempt businesses like mine from the regulatory process, and each trip cost me at least $ 500 out of pocket. Thankfully, I do have my university job. Lots of businesses that fall outside of the mainstream--from vendors to taxi drivers--may find themselves overburdened by government regulations. Fighting battles like this is really for the common good, and it helps break down barriers, especially for other small start-up businesses. It's difficult and time-consuming, but in the long run, it's worth it. (Los Angeles Times 11-3-1999) TOBACCO LITIGATION: Ex-Surgeon Rips Tobacco In 2nd Phase Of Fla Hearing ----------------------------------------------------------------------- A former U.S. Surgeon General said that smoking for more than 30 years caused the cancer that plagues the two people representing the thousands of Florida smokers who are part of a landmark class action lawsuit against Big Tobacco. Dr. Julius Richmond, the surgeon general during Jimmy Carter's presidency and the founder of the Head Start program, was the first witness to take the stand in Miami-Dade Circuit Court on Wednesday. He contradicted the tobacco industry's claims that something other than smoking could have caused the lung and brain cancer that Mary Farnan, 44, suffers. And it caused the throat and tongue cancer that has prevented Frank Amodeo from eating or drinking anything during the past 12 years, Richmond said. "In my opinion, (Mary Farnan's) long history of 30 years of cigarette smoking was causally related to her lung cancer," Richmond said Wednesday under direct questioning by Stanley Rosenblatt, a Miami lawyer representing the smokers. "In my opinion, she was addicted to nicotine," Richmond said. Her "powerful" addiction, he said, developed gradually, from when she began smoking at 11 years old , until she was about 14. Richmond also testified that Frank Amodeo, 60, of Orlando, "can be regarded as kind of a classic textbook case of how cancer evolves as a result of smoking." But in their opening statements to the jury on Tuesday, several tobacco company lawyers said there was no proof that it was the smoking, and not something else, that caused Farnan's and Amodeo's cancers. And there is nothing in cigarettes that prevented either of them from quitting smoking once they had started, said Dan Webb, the attorney representing Philip Morris, one of the five tobacco companies and two industry groups being sued. Webb spent about four hours cross-examining Richmond on Wednesday, attempting to discredit the doctor's opinion that there is a link between cigarette smoking and Amodeo's and Farnan's illnesses. Webb repeatedly hammered away at the way Richmond reached his opinion. The doctor said he formed the opinion after reading the clinical medical records of both Farnan and Amodeo and their depositions. He said he did not perform physical examinations on either of them, nor did he interview them about their medical history. As a professor emeritus at Harvard University's medical school, Richmond said, he often serves as a consultant to other doctors and does not see their patients, nor interview them before rendering an opinion. The jury found Big Tobacco guilty last July of producing a "defective product" that is addictive and causes cancer and other illnesses. And the tobacco industry engaged in "extreme and outrageous conduct" in selling and marketing their product while concealing its health hazards, the jury found in the first phase of the trial. In this second phase, if the jury finds that cigarettes are responsible for the cancer, they will be asked to determine an amount Big Tobacco must pay Amodeo and Farnan to compensate them for their illnesses. And the jury would then decide how much the tobacco industry should pay in punitive damages to the estimated 500,000 Floridians who could be covered by the class action. Also on Wednesday, defendant R.J. Reynolds asked the Florida Supreme Court to prevent the jury from making a lump-sum punitive award. The court is weighing whether to review a decision of the 3rd District Court of Appeal in Miami, which allowed the lump-sum damages. The high court asked the smokers' attorneys to respond to the company's request but has not decided whether it will review the case. (Sun-Sentinel (Fort Lauderdale, FL) 11-4-1999. The Associated Press contributed to this report.) TOBACCO LITIGATION: Fd Ct Dismisses Case To Recover Asbestos Settlement ----------------------------------------------------------------------- A federal court in New York has dismissed the massive Falise case filed against the tobacco industry by the Johns-Manville Trust, ruling there was no federal court jurisdiction. Members of the trust sued the major tobacco companies to recover money paid by asbestos manufacturers to asbestos claimants in settlement or judgments, alleging that some of the claimants' injuries had been caused by a combination of smoking and asbestos exposure. `We believed from the outset that this case had no legal or factual basis, and we're pleased by this dismissal,` said John J. Mulderig, associate general counsel for Philip Morris, one of the defendants. In the court's 36-page opinion, U.S. District Judge Jack B. Weinstein said the court lacked jurisdiction over the dispute. `Continuing jurisdiction of federal courts over litigation affecting a long-established (bankruptcy) trust such as this one is limited to relatively minor matters such as interpreting prior orders and regulating the processing of claims,` Weinstein said in his order released late Monday. `It does not extend to a major suit brought by the Trust against those not a party to the bankruptcy or to any closely related proceeding.` Judge Weinstein said his ruling made it unnecessary to address other grounds for the tobacco companies' motion for summary judgment. That motion was based on the overwhelming legal authority that concludes third-party payor suits brought by asbestos manufacturers, labor funds and other third-party payors lack any legal or factual basis and should be dismissed. The case is Falise et al. v. The American Tobacco Co. et al., CV 97-7640 (JBW), U.S. District Court, Eastern District of New York. TOBACCO LITIGATION: Fla. Sp. Ct. Might Head Off Lump-Sum Damages ---------------------------------------------------------------- Florida's highest court signaled Wednesday that it might head off a lump-sum damage award that could exceed $ 100 billion in a smokers' health class-action suit against Philip Morris Cos. and other tobacco makers. In an unexpected move, the Florida Supreme Court ordered lawyers for the smokers to respond to a bid filed Friday by the companies that would keep the jury from awarding a lump-sum award. The tobacco industry wants damages decided on a smoker-by-smoker basis. The court said it will allow the current damages phase of the case to continue in a Miami courtroom as it awaits the plaintiffs' response. "If the Florida Supreme Court is willing to get involved in this one issue, it improves the chances they'll review the entire case later," said analyst Roy Burry at Brown Bros. Harriman & Co. The news sent shares of tobacco stocks higher on the New York Stock Exchange. Philip Morris, maker of the top-selling Marlboro cigarettes, gained $ 2.94 to close at $ 26.94, and R.J. Reynolds Tobacco Holdings Inc. rose $ 1.81 to close at $ 21.88. The six-person jury in July found the industry liable for causing death and disease among smokers. A Florida appeals court briefly overturned Judge Robert Kaye's decision to permit a lump-sum award, which some analysts said could bankrupt smaller tobacco companies. The appeals court reversed itself Oct. 20, and Friday, the industry turned to the state's highest court for help. In its appeal, the industry said that allowing a lump-sum ruling is unconstitutional and would cause "irreparable harm" to companies. "The Florida courts should not be perceived as permitting corporate defendants to be terrorized into blackmail settlements," the industry said in the filing. The state high court asked attorneys for the Florida smokers to respond to its order by Nov. 15. The class of plaintiffs represented by the suit could include as many as 500,000 Florida smokers; analysts said a class that large could lead to hundreds of billions of dollars in damages against the industry. Analysts have said it is unlikely the Florida Supreme Court will block a lump-sum award while the trial is in progress. The fact that the companies are attempting now to have the high court hear their appeal shows that "tobacco lawyers are leaving no stone unturned," analyst Marc Cohen at Goldman, Sachs & Co. said Wednesday in a research report. The high court review at this juncture is a "well put-together longshot," Cohen said. A gag order bars lawyers in the case from commenting. Defendants include Philip Morris, R.J. Reynolds, Loews Corp.'s Lorillard Tobacco, British American Tobacco's Brown & Williamson, Brooke Group Ltd. and two industry trade groups. (Los Angeles Times 11-4-1999) TOBACCO LITIGATION: NYC's Tobacco Settlement Bonds Ready to Price ----------------------------------------------------------------- After 10 months of constructing the deal, Salomon Smith Barney Inc. is set to price New York City's $705 million of tobacco settlement bonds for an investor community still trying to answer questions about the groundbreaking structure that perhaps only actual trading can resolve. Before the deal hit the market, potential buyers asked one last round of questions, focusing on liquidity, the size of the market, and legal and regulatory concerns, some intending to produce insight, others hoping to extract additional yield on the bonds. Salomon Smith Barney officials have said they are seeing strong interest from many fund companies and pointed to the Tobacco Settlement Asset Securitization Corp.'s ratings, which the agencies placed in the single-A and double-A range. But with a new sector that has bankruptcy and legal questions that upend traditional risks in the municipal market, mutual fund portfolio managers are leaving their questions open right down to the wire. "The agencies had three months to figure this out -- I got the OS yesterday," said one investor Tuesday. "We're really trying to figure out if we can understand the political and legal risk." Retail investors also appear to be slow to warm to the tobacco credits. The city sold $50 million of bonds in a two-day retail order period, $37 million Tuesday and $13 million yesterday. That amount fell short of its goal of placing between 10% and 20% of the deal with individual investors. Now fund managers are trying to figure out where and if these tobacco bonds fit within their portfolios. Indeed, for most institutions, price is a secondary concern at this point. "You want to make sure there is liquidity to protect the value of the security because we have to mark our portfolios to market and it would be kind of hard to justify a good price on a bond if there is no market for the bond," said Stephanie Peterson, director of municipal research with Charles Schwab & Co. Bill Veronda, a portfolio manager with Mitchell Hutchins Asset Management -- a subsidiary of PaineWebber Inc. -- said the development of a secondary market is also "our main worry," though he cites different reasoning. Veronda said he thinks the appropriate way to view all tobacco settlement bonds, whether issued by New York City or any other municipality, is as "one pool, essentially the same." With that in mind, his first question about that secondary market is at what point investor portfolios become saturated with tobacco-backed debt. "A very substantial list of issuers that is greater than what I expected" are considering selling tobacco settlement bonds, he said. If investment companies that have approved tobacco bonds for their funds treat the various deals as essentially one credit backed by the same revenue stream, and maintain their tobacco bond holdings at under 5% of their portfolios, it may not take long for the market to hit the saturation point, he said. James F. Haddon, a managing director with Salomon Smith Barney, said the firm will be making a secondary market for New York City's tobacco bonds, and he expects other underwriting firms in the city's syndicate also will help make that market. How that market develops depends on overall market conditions, the volume of tobacco securitization bonds, and overall municipal bond volume, as well as other factors, he said. Salomon Smith Barney is aware of the potential for the market to become saturated with tobacco bonds, but "we don't see that happening any time soon," Haddon said. After New York and Nassau County, Virginia is the only other issuer who has said it wants to sell tobacco bonds, and Virginia is waiting until next year, he said. "We don't see that as an issue, we really don't." While "the fundamental underlying credit" behind all tobacco settlement securitizations will be the tobacco industry, there will be some differentiation between credits based on coverage levels, what kind of trapping events issuers build into their deals, and the use of various amortization structures, Haddon said. Other questions about the secondary market arise when high-yield funds are in question. Despite yields that are much higher than the scale for A-rated bonds in the municipal market, some high-yield funds may avoid tobacco-settlement debt because of the free- and fast-flowing nature of information about the tobacco industry, said Michael J. Schroeder, who follows both the tobacco companies and the municipal market as an analyst and money manager with Wasmer, Schroeder & Co. Investors derive no benefit from their ability to analyze a credit when information is widely available, Schroeder said, pointing to the rapid decline in the stock prices that followed a Florida Supreme Court ruling awarding lump-sum punitive damages in the Engle class-action suit against the tobacco companies. He contrasted that with the release of unfavorable news on a non-rated retirement home deal where only bondholders will care about the news "and it may take a month to two months before all the muni traders get wind of it and figure out whether or not it's anything that should be factored into the bid level on those bonds." For many managers of high-yield portfolios, tobacco bonds may not meet their need for total return from asset appreciation, Veronda said. If Veronda were buying bonds for a high-yield portfolio he would look to bonds with similar or higher yields but where "we think that over the next five or 10 years they have a significant chance of improvement, whereas here we think the risks are on the downside." Much of the market remains fixated on those downsides as New York City's deal comes into view, followed by a $323 million tobacco bond offering by Nassau County's Tobacco Settlement Corp. next week. Market participants cite two reasons for the negative tone of investor discussions. Investors that want to buy the bonds do not want to talk about their strengths until they have the bonds securely ensconced in their portfolios, while they are happy to let bad news drag down the potential price on the deal. The other is that bad news and unanswered questions still hover over the tobacco industry. New York City financial officials were pleased that the rating agencies rated the city's tobacco bonds backed by revenues flowing from the Master Settlement Agreement at levels higher than the ratings on the tobacco companies' own senior debt. Moody's Investors Service and Standard & Poor's gave the bonds split ratings that differ based on the maturity of the bonds. Moody's ratings ranged from Aa1 to Aa3, while Standard & Poor's fell from AA-minus to A. Fitch IBCA Inc. gave all maturities on the deal an A-plus rating while Duff & Phelps Credit Rating Co. rated the deal AA. The ratings on most tobacco corporate debt fall in a range between single-A and triple-B. But the ratings the agencies released did not answer many of the questions investors are still grappling with. Ron Fielding, who manages a New York municipal bond fund for OppenheimerFunds Inc.'s Rochester division, said he does not think the economic models used by New York City's tobacco bond finance team to forecast future cigarette consumption have appropriately taken into account that "the smaller the number of smokers, the easier it is for the non-smoker extremists to ostracize the smokers" and limit their ability to smoke. "Not only do people in New York have to go outside in the cold and wet to smoke, but I think it's more serious than that," Fielding said, noting there is a social stigma attached to smoking. "I don't think you're vice president material at a brokerage firm if you smoke." He is also concerned about the tobacco industry's exposure to damage claims from individuals and classes of individuals, as in the Engle case in Florida. He said he expects the cigarette companies to appeal any monetary judgment against them as far as the U.S. Supreme Court. In looking at the Engle class-action suit against the tobacco companies in Florida, Schroeder suggested the companies may try to reach a global settlement with smokers to address that potential liability. With estimates that a lump-sum award for the plaintiffs in the Engle case could reach $200 billion to $300 billion, the companies might want to address potential claims en mass as they did with state claims through the MSA, he said. But the cigarette industry is still vigorously fighting individual litigation, Haddon said, adding that the Engle case is the only case to be certified as a class-action, and many industry observers believe there are strong grounds for appealing the Engle decision. "We don't believe the industry will settle and we don't have any reason to believe that there will be some global settlement that's going to pick up all this litigation," Haddon said. While litigation is a risk to tobacco settlement bonds, "we don't think that's an inordinate risk to this credit," he said. (The Bond Buyer 11-4-1999) UNUMPROVIDENT CORP: May Be Added In MA Suits V. Provident, Says Berman ---------------------------------------------------------------------- Plaintiffs in 45 state court suits pending in the Worcester Superior Court against Provident Companies, Inc. and the Paul Revere Corporation have served legal papers requesting that the Court add UNUMProvident Corporation as a defendant after Provident changed its name to UNUMProvident in connection with the recent merger of Chattanooga- based Provident and UNUM Corporation, based in Portland, Maine. In addition, three more former Paul Revere General Managers are preparing to file suit, which will bring the total number of Paul Revere General Manager wrongful termination suits to 46. The new suits will name UNUMProvident as a defendant. On June 30, 1999, Provident and UNUM merged, with Provident as only surviving corporation. In accordance with the merger agreement between the companies, Provident was renamed UNUMProvident Corporation. "Plaintiffs contend that the newly renamed corporation remains responsible for the liabilities of its predecessor in the Worcester litigation," said Michael G. Lange, of Boston's Berman, DeValerio & Pease, LLP, one of the firms representing the plaintiffs. Two of the 45 suits currently pending against Provident and Paul Revere are class actions. The first was filed on behalf of some 400 former Paul Revere Life "career agents" whose employment was terminated by Provident and Paul Revere as a result of the 1997 merger of the two disability insurers. The second suit seeks class treatment for some 10,000 former Paul Revere brokers in the United States. According to James Hubbard, another of the attorneys representing the plaintiffs, "the class actions seek compensatory and treble damages, and allege that in 1995, out of financial desperation, Paul Revere cut agent and broker commissions by 80% on automatic benefit increases included in polices in force before the cuts were announced, despite contracts with the plaintiffs that restricted commission reductions to newly issued policies." Provident's motions to dismiss the class action suits, and the pending General Manager suits, have been denied by the state court. Both the state and federal courts in Worcester have denied petitions by Provident to compel a number of the General Manager plaintiffs to arbitrate their claims. In federal court, fifteen of Provident's petitions to compel arbitration have already been denied or dismissed; the General Manager's motions to dismiss the petitions in four other cases remain under consideration by the court. Plaintiffs' motions to certify the agent and broker classes for class action treatment and trial are scheduled to be heard by the state court in Worcester on December 20, 1999. Plaintiffs in all of these suits are represented by James R. Hubbard and Duncan J. Farmer of Ricci, Hubbard, Leopold, Frankel & Farmer, West Palm Beach, FL (561-684-6500); Glen DeValerio and Michael G. Lange of Berman, DeValerio & Pease, LLP, Boston, MA (617-542-8300); and Francis A. Ford, Worcester, MA (508-791-7776). Source: Berman, DeValerio & Pease LLP. Contact: James R. Hubbard and Duncan J. Farmer of Ricci of Hubbard, Leopold, Frankel & Farmer, West Palm Beach, FL, 561-684-6500; or Glen DeValerio and Michael G. Lange of Berman, DeValerio & Pease, LLP, Boston, MA 617-542-8300; or Francis A. Ford, Worcester, MA, 508-791-7776 US WEST: Colo. Suit Alleges Carrier Of Preferential Service ----------------------------------------------------------- Details of complaint unsealed in Colo. service quality lawsuit against U S West allege carrier not only deliberately skimped on service quality to increase profit, but did so selectively, concentrating diminished service resources on satisfying telco's largest, most influential residential and business customers. Suit in Larimer County (Colo.) Dist. Court seeking class action status alleged USW engaged in "corporate- level misconduct" by intentionally misleading customers and regulators on growing service problems. Plaintiffs charged USW used internal ranking system to identify wire centers with wealthiest and most influential customers, who reportedly received preferential service to minimize complaints. Complaint also contends USW in 1997 sent internal memo telling service representatives not to advise customers who were calling from areas known to have facility shortages of possible delays providing service. In further attempt to increase revenue and make company more attractive merger candidate, complaint said, USW began reengineering plan that included layoffs and cost cuts that made held-order problem worse. Lawyers for suit's 7 plaintiffs said allegations are based on documents provided by USW under court orders. But USW said complaint's statements "are inflammatory allegations and not facts. When the evidence is presented, it will show we made every reasonable effort to serve all our customers." Details of complaint had been concealed at USW's request, but were revealed under agreement that kept under seal 200,000 pages of USW documents that plaintiffs said support their claims but that USW said contain proprietary information valuable to its competitors. (Communications Daily 11-4-1999) VITAMIN PRICE-FIXING: 7 Makers Settle With Corporate Buyers For $1.18B ---------------------------------------------------------------------- Seven leading vitamin makers based in Europe and Japan agreed Wednesday to pay a record $ 1.18 billion to settle allegations that they engaged in a years-long conspiracy to fix prices, inflating the cost of everything from dietary supplements to fortified cereals. Attorneys for the food producers and farming interests who sued the companies said that the agreement marks the biggest class-action antitrust settlement in U.S. history, surpassing a $ 1.03-billion pact won last year by investors who accused 37 brokerages of overcharging them for Nasdaq-listed stocks. "We have helped stop this conspiracy," said Jonathan D. Schiller, a Washington lawyer who helped represent about 300 food producers and other corporate buyers who claimed that the seven companies cheated them on bulk vitamin sales throughout the 1990s. In May, five of the companies pleaded guilty to criminal charges of conspiracy to fix and inflate vitamin prices. Hit hardest by the federal criminal charges were F. Hoffman-LaRoche, which agreed in May to pay $ 500 million--the biggest criminal fine in U.S. Justice Department history--and BASF, which agreed to pay a $ 225-million fine. Some citizens groups are worried that consumers who ultimately footed the bill for the marked-up vitamins--but were not a party to Wednesday's corporate settlement--have not had their day in court and must await the outcome of other pending lawsuits against the vitamin giants. "Consumers have been getting ripped off too and they should be getting some money out of this," said Dr. Sidney Wolfe, director of Public Citizen's Health Research Group in Washington, an advocacy group. Agreeing to the settlement were pharmaceutical companies F. Hoffman-LaRoche of Switzerland, Rhone-Poulenc Rorer of France, BASF and Hoechst Marion Roussel of Germany and Daiichi Pharmaceutical Co., Eisai Co. and Takeda Chemical Industries of Japan. The agreement, which includes more than $ 120 million in attorney fees, must still be approved by a federal judge. Attorneys said that preliminary approval could come soon. "We wanted to resolve this lawsuit, and this settlement is a substantial step for us in resolving the pending lawsuits from our customers," said Bill Pagano, a BASF spokesman in New Jersey. "If this isn't the biggest antitrust settlement ever, it's certainly one of the very, very biggest," said Daniel Wall, a San Francisco lawyer and past editor of the American Bar Assn.'s Antitrust magazine. "It's a testament to the fact that very large, very serious price-fixing conspiracies can go undetected for a very long time, and they cost consumers millions and millions of dollars a year." Government officials said Hoffman-LaRoche and BASF, in concert with their supposed competitors, met annually to fix prices and carve up the $ 3-billion-a-year worldwide market. They manipulated the markets for those vitamins used most commonly as nutritional supplements for humans and animals--A, B2, B5, C, E and beta carotene--and inflated prices significantly for over-the-counter vitamins, fortified cereals, cattle nutrients and other products. Schiller said that since his corporate clients brought their first price-fixing suit against the vitamin makers in 1997, bulk prices reportedly have dropped as much as 15% to 20% in some areas. That, in turn, has helped the pocketbooks of consumers, who have paid lower prices at the grocery store--even if they will not reap a share of the $ 1.18-billion settlement, he said. At a court hearing on the agreement Wednesday, former Ohio Democratic Sen. Howard Metzenbaum, now chairman of the Consumer Federation of America, asked to be heard on behalf of consumers who are being left out of the settlement. But U.S. District Judge Thomas F. Hogan said this was not the proper time, Schiller recounted. Under federal statute, only corporations that bought vitamins directly from the makers could be included in the class-action suit that led to Wednesday's settlement. But Schiller said that consumers will be represented in 18 other class-action suits that have been filed around the country and are being consolidated by a mediator in Washington. "This isn't over yet," he said. (Los Angeles Times 11-4-1999) In Japan, action for right to high court action for cartel victims has been sought. A study group of the Fair Trade Commission (FTC) proposed in October giving consumers and businesses the legal right to file a high-court suit demanding corporate offenders of the Antimonopoly Law halt their anticompetitive practices. The group, in a report, also urged that such victims be authorized to file suit at any high court in Japan to demand the offenders provide compensation. The FTC is contemplating drawing up an amendment to the Antimonopoly Law by next March in order to add clauses providing for the proposals, FTC sources said. There have been contentions that to merely allow the victims of anticompetitive practices to demand financial compensation would not be enough to deal with offenders of the law, according to the sources. The proposed power to file complaints at a high court to demand an end to an anticompetitive practice would scare away would-be offenders, they said. Actions that would be made punishable by the proposed amendment would include the formation of cartels to fix prices and arranging secret consultations among business competitors to rig prices or bids for public contracts. The report stopped short of proposing that civic groups or other third-party groups -- whose interests were not directly injured by such anticompetitive practices -- be able to file a class-action suit to protect those whose interests were directly affected. (Japan Weekly Monitor 10-25-199) WEST PUBLISHING: Female Executives Sue In Florida For Equal Options ------------------------------------------------------------------- As women began to swell the professional ranks and company stock plans became the rage in recent decades, a gender-bias collision between the two probably was inevitable. When the smashup occurred, the nation's largest commercial legal publisher found itself in the crunch, defending itself against claims that its former owners denied female employees equal participation in a stock ownership program worth nearly $ 3 billion to the company's male workers. The women hope to take their class action lawsuit against West Publishing Co. to trial late this year or early next year in U.S. District Court in Tampa, Fla. Carter v. West Publishing Co., No. 97-2537-CIV-T-99A (M.D. Fla). The complaint alleges that most women executives, managers and salespeople -- many of them lawyers -- either were excluded from the stock program or received far fewer shares than men in similar positions at the St. Paul and Eagan, Minn.-based company. Women Shareholders in the Minority When the closely held company was sold for $ 3.4 billion to Canadian competitor Thomson Corp. in 1996, out of West's 181 shareholders only 30 were women, and they owned less than 3 percent of the stock, according to the complaint. The male stockholders cashed in their shares for almost $ 3 billion, while the women say they received less than $ 100 million. At the time of the sale, 60 percent of West's 6,000 workers in Minnesota were women. Thomson, which runs the company's publishing and electronic database operations under the name West Group, was not named as a defendant. Plaintiffs lawyers say the allegations involve only prior management. As the purchaser, Thomson nevertheless is responsible for defending the suit. "We will vigorously defend our position against this litigation," Thomson said in a statement. About 60 women had joined the class action as of mid-June, and lead plaintiffs lawyer Guy M. Burns of Tampa says he expects the number to grow to about 150 by the time the case goes to trial. Damages could exceed $ 500 million, Burns says. The case, filed under Title VII of the 1964 Civil Rights Act and the 1963 Equal Pay Act, largely results from the parallel increases of women holding executive positions and in the popularity of various stock ownership programs as rewards for employees in such jobs, Burns says. "Whatever you call these, they are part of the compensation package," he says. "It is a case that is on the leading edge of things to come." The complaint also alleges that male senior executives and supervisors under West's former management sexually harassed and propositioned women employees, sometimes with offers to "take care of them" financially. No individual executives or supervisors were named as defendants. Sexual Harassment Charges Over West's objections, U.S. District Judge Richard A. Lazzara allowed the sexual harassment accusations to stand in February, stating, "Undoubtedly, these allegations explain the original charge" of discrimination in the stock plan. The judge stressed, however, that he would allow the sexual harassment allegations only to support the claims over the stock dispute and not as a separate basis for damages. Lazzara certified the class in late May. In June, the 11th U.S. Circuit Court of Appeals at Atlanta granted West permission to challenge the certification. (ABA Journal, August, 1999, 85 A.B.A.J. 26) ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Princeton, NJ, and Beard Group, Inc., Washington, DC. Theresa Cheuk and Peter A. Chapman, editors. Copyright 1999. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $575 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Christopher Beard at 301/951-6400. * * * End of Transmission * * *