Archive for the ‘class actions’ Category

Tuesday, September 1st, 2009

Update: Proposed class action against Western Culinary Institute and Career Education Corp.

We filed our opening brief today in the proposed consumer class action against Western Culinary Institute and Career Education Corp. In support of the brief, we submitted confidential documents, so at least for the present, I can’t post the brief on line. We’re going to seek to remove the confidential designation from the exhibits that we used. If the court agrees, we’ll be able to post it and will do so.

I’m working on the case with Portland attorney Brian Campf. We filed in March 2008. Under our current schedule, Judge Baldwin will hear oral argument on the motion to certify the class action on October 29, 2009.  Interestingly, the case generated a rather heated reaction.  We’ve since updated the complaint, but owing to some sort of software issues, I can’t seem to upload the new complaint. Working on it.

Meanwhile, if you were a student at Western Culinary Institute and you have questions about this matter, please feel free to find my contact info above and drop me a line.

Posted in Career Education Corp., Oregon class action attorney, Sugerman, Western Culinary Institute, class actions, consumer

Monday, August 17th, 2009

Critic of civil just system files class action after his ox gets gored

You’ve probably heard various explanations of the difference between comedy and tragedy. My favorite is that comedy is when you slip on a banana peel and fall, but when I slip on a banana peel and fall, that’s a tragedy. I’m reminded of that explanation by this report that a critic of the civil justice system has filed his very own class action.

It seems that Fred Hiestand, the General Counsel of the California Civil Justice Association, recently filed a class action against the City of Sacramento because they City illegally towed his car. The oddly named California Civil Justice Association is one of those slick corporate funded organizations that advocates for closing the courts to ordinary consumers.  Sure, they talk a good game. They claim to be about reducing costs of frivolous lawsuits and the like. But it doesn’t take too much digging to see that they simply want to take away the right to trial by jury.

The facts of Mr. Hiestand’s case make for interesting reading. According to the linked report, Mr. Hiestand parked his car in a spot marked by a “No Parking” sign so that he and his family could eat at a fast food restaurant. He figured it was okay because they wouldn’t be gone for an hour.

He returned to find his car towed, and Mr. Hiestand reportedly became upset. He seeks damages because the City failed to follow the law when it towed the car.

So good luck with that, Mr. Hiestand. Those of us who actually try cases know that you’re going to have a tough time convincing a jury that your decision to park in a no-parking zone entitles you to a free pass.  But I’ll be curious to know how the California Civil Justice Association is dealing with this one.  See, when a consumer files a case that offends you or your association, it’s “frivolous.” But of course, when you get upset and decide to file a case to remedy a wrong, your case isn’t frivolous.

One of my favorite Yiddish words is “chutzpah.” I’m not a scholar of the language and only know a few words and phrases of that dead language spoken by my ancestors. But the word is commonly translated as “nerve,” though scholars tell us that it’s not a great translation. The example commonly given is that when a man kills his parents and throws himself at the mercy of the court as an orphan, that’s chutzpah. I think I now have a new and updated example. Thanks for that Mr. Hiestand and best of luck to you.

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Posted in Oregon class action attorney, Sugerman, class actions, consumer, frivolous lawsuits

Monday, July 27th, 2009

Death by a Thousand Paper Cuts-Denver Post takes on Late Fees

When I first heard about the case five years ago, I was somewhat annoyed. Over the years, the trifling annoyance has bloomed into a cool white heat of studied anger.

The issue is late fees charged to consumers. The Denver Post did this nice brief story on consumer late fees.

The white-heat case is Martin v. Comcast, an Oregon consumer class action that seeks damages for Comcast’s illegal cable late fee charges in Oregon. Due to the magic of the internet, the reporter writing the story found our Comcast late fee class action and called to talk about the problem.

One of the untold stories with late fees is that they are a revenue source for companies that charge them. When you look at the accounting, you can see that those small paper-cut late fees of a few dollars add up into millions in revenue.

The $6 late fee problem provides the best illustration of the need for consumer class actions. No consumer can fight a $6 charge, and no one in their right mind would. But when the company charging an illegal late fee takes millions per year in illegal revenue, consumer class actions provide the best means of re-balancing the scales.

So Martin v. Comcast continues. We’ve come this far, and of course we’ll be seeing it through to the end.  The ink in the Denver Post is nice, of course. But the nicer day will be the day we prevail.

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Posted in Oregon class action attorney, Sugerman, class actions, consumer

Thursday, July 23rd, 2009

Court rejects veterans’ data breach case (via Spam Notes)

Good post at the always interesting blog, Spam Notes here on a disappointing ruling by the 11th Circuit Court of Appeals rejecting veterans’ claims under the Privacy Act. I had missed the original opinion–here is a link to the slip opinion in Perkins v. Department of Veterans’ Affairs

The facts of the case echo our pending class action against the Providence System here in Oregon over the loss of unencrypted patient records. But there’s an important legal difference.  In Perkins, the veterans sought relief under the federal Privacy Act. The Court decided the case under that statute and federal law.

The proposed class action in the Providence case arises under Oregon’s Unlawful Trade Practices Act and on a negligence theory based on Oregon common law rules.  Oregon law provides that disclosures of medical records give rise to a claim because of the special relationship between physician and patient.  The ruling in Perkins didn’t address these different theories.

We’re still awaiting a ruling from the Oregon Court of Appeals on whether the Oregon case can go forward. I argued the Providence appeal back in April. No telling when we’ll get a ruling.

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Posted in Oregon class action attorney, Sugerman, class actions, consumer

Wednesday, July 22nd, 2009

Trade school class action settlement-Academy of Court Reporting

Here is a report in the Detroit Free Press about a class action settlement for court reporting trade school students at the Academy of Court Reporting, which is owned Delta Career Education Corp. The report is a bit sketchy. I’m assuming that the school is in Michigan, though that’s by no means clear. The settlement for more than 3200 students is valued at $32 million. The report indicates that the case was filed in 2007.

The settlement caught my eye because I continue to represent trade schools students pursuing claims against Western Culinary Institute, which is owned by Career Education Corp. I hope to do a brief update on the progress of that case later this week.

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Posted in Oregon class action attorney, Sugerman, class actions, consumer

Friday, July 17th, 2009

Massachusetts court nixes Wal-Mart’s bargain hunting efforts in class action settlement

Via Bloomberg comes this story of how Wal-Mart tried an end-around strategy to settle an unpaid wage class action in Massachusetts.  Apparently, Wal-Mart was unhappy with the high settlement demand received from lawyers representing the workers. According to the news report, Wal-Mart simply located other lawyers who were not actively involved in the case and engineered a settlement that was far below the demand provided by the named plaintiffs.

The Superior Court Judge Murtagh apparently described the settlement as “tainted.” Judge Murtagh refused to approve the settlement.

So this raises interesting questions.  Class actions on behalf of consumers and employees are widely condemned for all sorts of reasons. Charges of abuse are almost always heaped upon those of us who represent consumers. But here, it’s clear that Wal-Mart tried to pull a fast one by failing to make settlement offers to the named plaintiffs–the people responsible for prosecuting the lawsuit. Wal-Mart acted inapprorpiately in trying to settle the case.

So maybe we should all to expect to hear criticism from the talking heads who are awfully quick to criticize consumers and trial lawyers.  That would be the right thing because Wal-Mart engaged in lawsuit abuse here. But I’m not holding my breath.

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Posted in Oregon class action attorney, Sugerman, class actions

Monday, July 6th, 2009

Dell’s class action ban rejected in Massachusetts

It looks like Massachusetts joins New Jersy and California in rejecting form contracts that ban consumer class actions. I haven’t seen the opinion, and the linked Wall Street Journal article doesn’t cite it by name, so this analysis is second hand.

According the the WSJ report, the Massachusetts court rejected only the class action ban and not the mandatory arbitration provision. This is a middle-ground approach that allows businesses to refer consumer claims to arbitration, so long as consumers remain free to pursue their claims as class actions in arbitration.

As a consumer-side lawyer, I remain concerned about mandatory arbitration clauses. After all, most of us didn’t mean to surrender our rights to trial by jury when applying for a credit card, subscribing to cell service, or buying a computer.

Consumers are often left with no choice in the matter, as mandatory arbitration clauses are often adopted across industries. It’s on toward impossible to get a credit card without one or cell service.

The problem with mandatory arbitration clauses is that they are often packed with all sorts of other features that turn consumer claims into a you-can’t-win-this-case proposition. So this mid-ground position represents something of a compromise that is workable for consumers. A mandatory arbitration that simply requires consumers to arbitrate in a fair setting is a lot less offensive when consumers don’t give up other rights.

It looks like this emerging trend may re-write the rules of arbitration clauses. If all state courts demand fair procedures in arbitration, I’m betting that mandatory arbitration clauses will become a thing of the past.

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Posted in class actions, consumer

Saturday, June 27th, 2009

Oregon consumer class action law enters modern era

Apologies, but I’m having a law geek moment in this post. I’ve been wondering whether it was really going to happen, but I received unofficial confirmation that the Governor signed HB 2585 yesterday.

It’s one of those technical bills on its face. But it makes major pro-consumer changes to class action procedure rules in Oregon. The bill simply eliminates Oregon Rule of Civil Procedure 32K.

That rule created a major barrier to consumer class actions. Under Oregon’s Unlawful Trade Practices Act, a defrauded consumer can sue for the greater of actual damages or $200. Before passage of HB 2585, consumers in class actions could only recover their actual damages. That was the killer provision in ORCP 32K that HB 2585 eliminated.

ORCP 32K effectively stopped most consumer class actions in small-damage claims. Now consumers will be allowed to recover their statutory damages of $200 simply by showing that they suffered a loss of money as a result of a reckless violation of the Unlawful Trade Practices Act. The change applies to all cases in which a judgment has not been entered.

The change means that consumers will have a powerful tool to fight the nickle and diming method of illegal charges that bleed us dry and enrich bad actors.

Big yay from these quarters.

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Posted in Legislation, class actions, consumer

Tuesday, June 23rd, 2009

Crunchberry class action lawyers slapped down

As a lawyer handling consumer class actions, I know that I have to be willing to blow the whistle when someone files a lousy case. Here–in all it’s glory–is the worst I’ve seen in a long time. Follow this link to read the judicial opinion in the dread  crunchberry class action case.

In a case that can only be described accurately by the sound of a palm slapping a forehead, some “consumer” lawyers decided to sue Quaker Oats for its marketing of Captain Crunch with Crunchberries. Apparently, these legal professionals with very tiny brains decided that the product advertising is misleading because–yes, I’m not making this up–there is NO fruit in Cap’n Crunch with Crunchberries.

“In actuality, the Product contains no berries of any kind,” said the understated trial judge. I’ll have to figure out a way to cite this opinion in one of my next briefs. The quote is simply too precious to waste.

Thank God the judge stopped their stupidity. Could you imagine their next case claiming deceit because of the lack of rocks in Fruity Pebbles?

The sad thing is that people who file crunchberry class action cases do a grave disservice to those of us who represent consumers on real cases. Because it’s easy to use the outrageous few cases to trash claims that have merit. I hope that these guys get slapped very hard so that they learn to stop filing meritless cases.

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Posted in Uncategorized, class actions, consumer, frivolous lawsuits

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