KOIN-6 covers the Western Culinary Institute/Le Cordon Bleu Portland class action

Portland’s KOIN 6 did this report KOIN 6 News Report on Trade Schools covering our consumer fraud class action against Western Culinary Institute/Le Cordon Bleu Portland and their parent, Career Education Corp. The coverage helps tell the story, though it maybe compresses the issues a bit too much. I guess that’s television.

Meanwhile, we’re pushing forward on the case. The next step–class notice–is tied up a bit in the details. I’m hoping we’ll get that moving soon.

KBR’s next motion to dismiss-subject matter jurisdiction

Late Friday, KBR filed its next motion to dismiss in Bixby v. KBR, Inc., 3:09 cv 00632-PK (D. Or.). Now the KBR defendants argue that the court lacks subject matter jurisdiction. KBR raises the political question doctrine, sovereign immunity and the Federal Tort Claims Act, and combatant activities doctrine. I’m especially tickled by the political question doctrine, as it cites Marbury v. Madison and Baker v. Carr.

For those whose geekiness knows no bounds, here is a pdf version of the memorandum: 46-1 KBR memo in support of motion to dismiss subj matter jur

No one said this case would be easy. (No one was right.)

My dear friend and frequent collaborator Robert Neuberger tells me that a really good case demands a theme song. I’m sure it’s pure happenstance, but I’ve already settled on a theme song for this case.  In the words of Tom Petty, “I won’t back down.”

I Won’t Back Down

A boy and his dog

A Boy and His Dog was a mid-1970’s science fiction movie set in the rubble of the U.S. destroyed by nuclear war. It features a young Don Johnson and his telepathic dog. The title is fetching. The film–while flawed and violent–is darkly comic and memorable.

I’m reminded of the relationship between the boy and his dog after impulsively giving into my longstanding dog lust. A beautiful German Shepard puppy needed a home, and we adopted her a few weeks ago. I call our pup the toddler-bomb because we went from a calm and sedate mid-life household to the chaos of owning a large eight-month old Shepard.

It’s been two weeks, and life has changed. Lots of long walks. Lots of lost sleep. A mountain of dog hair. Two pissed off cats. The gamy smell of a house inhabited by a dog.  Most of my friends and family shake their heads, roll their eyes, and question my sanity.

I guess that’s a reasonable reaction. She’s turned the world upside down. For those who have noticed a slowing my blogging, blame the pup.

She’s a challenge for a 50-year old guy, but she comes with laughs and love. The best laugh came via my beloved, who pointed out that while I was at low risk for running off with a young trophy wife, the pup would be the best prophylactic for any notion of having babies in a new life. “You’re too old!” she snorted. She’s so right.

We’ve had our ups and downs.  The worst was when she lunged at my beloved’s best friend. And then there are the p.o.’d cats and the barking. But on the upside, the long walks get my out of my head, and they have helped to melt the excesses of my bulging middle. And she’s filled us with love and laughter. So yeah, it’s good.

The wise ones at doggy obedience school–yes, we’re doing that–tell me that Shepards need a job. Ellie has a job, which is getting this middle aged guy out of his head and off of his couch. She’s doing it beautifully.  And so a middle aged boy and his dog are doing well.

Ruling allows Oregon National Guard toxic exposure case against KBR to go forward

This is an update on our case, Bixby v. KBR, U.S. District Court Case No. CV 09-632-PK  (D. Or.).  In the case, soldiers serving in the Oregon National Guard claim that KBR defendants  are responsible for their exposures to hexavalent chromium, a cancer-causing toxic chemical. The soldiers claim that KBR knew or should have known that the Qarmat Ali site was contaminated. They claim that KBR officials knowingly sent the soldiers into harm’s way when KBR repeatedly requested security at the site.

The KBR defendants moved to dismiss the case, arguing that the Oregon court lacked jurisdiction over them.  Today, Judge Papak denied the motions. For those interested, I’ve uploaded (pdf) his opinion: 44 – Opinion and Order re def’s motion to dismiss. It’s fairly technical. I wouldn’t recommend it unless you’re interested in the nuances of personal jurisdiction.

Judge Papak did not pass on the merits of the case. That is for the jury. Rather, he simply decided that the Oregon soldiers will have their day in court in Oregon. Judge Papak ruled based upon case law (precedent) from the Ninth Circuit setting out and applying the effects test.

It’s a particularly important ruling because there was a major risk that if he dismissed the case, no court would have the authority to hear the case against all of the defendants.  I am pleased with the ruling, though of course there is far to go.

Up is down-Republican leaders call for judicial restraint from Obama Supreme Court nominee

It’s official. Justice Stevens announced his retirement from the U.S. Supreme Court effective the end of this term. Court watchers have been speculating for a while that this would happen.

Here is one of many news reports. I’m taken by this quote from the linked MSNBC report by Senator Mitch McConnell (R Ky):

“Americans can expect Senate Republicans to make a sustained and vigorous case for judicial restraint and the fundamental importance of an evenhanded reading of the law.”

This is great news, as the Senate Republicans are now ready to reign in the activist Roberts Court. This is the activist Court that brought us Citizens United.  And that’s only the most recent overreach.  Senator McConnell’s talking-point quote seems oddly ironic, given that he supported Justices Alito and Roberts and the rest of the activist wing of the Court. But then I suppose one could pointedly say that it’s all about whose ox is getting gored.

Here are a few thin suggestions from a simple consumer attorney toiling in the hinterland:

1. How about we jettison the labels? The reality is that Justice Stevens was hardly liberal by comparison to many of his predecessors. Labeling him as a leader of the “liberal wing” of the Court is media hype and talking-point noise. There is no liberal wing to the Court. And those who claim to be the conservative wing are pretenders. I can imagine Justices Frankfurter and Harlan turning over in their graves.

2. Let’s not forget history: Justice Stevens is one of many Supreme Court justices who proved to be different than presumed. Justice Stevens voted differently than expected on major issues.  Same was true of Justice Brennan.

3.  I suppose the posturing is inevitable. Still, is it too much to ask that you deal truthfully? If Sen. McConnell truly supports judicial restraint, where was he during the Roberts confirmation hearing? Meantime, maybe he can take steps to make it up to us by truly working for a non-activist majority on the Court.

Wells’ Fargo class action flop in California via Complex Litigator

For those of us in the trenches representing consumers in class actions, it’s always nice to find good information resources in the law blog world. I’ve stopped by the Complex Litigator a few times. I only caught this post on a consumer class against Wells Fargo because of a Twitter post alerting me to it.

The case, Gutierrez v. Wells Fargo Co., 2010 WL 1233810, 2010 U.S. Dist. Lexis 29082 (N.D.  Cal.  Mar. 26, 2010), arises out of allegedly illegal banking practices that led to improper assessment of overdraft fees. The federal court certified a class, and Wells Fargo filed a motion to decertify the class.

Digression: In representing consumers in class action cases, I privately think of motions to decertify as “Waah! motions,” as they often stand on the same arguments that didn’t succeed, and they frequently employ heated prose to attempt to change the Court’s mind on a decision previously rendered.  In my experience, they are often an expensive waste of time.

Complex Litigator points out that the court found the small amounts at stake to be important in finding a class action would be superior. This was true when the court certified the class and remained true in the decertification motion. The small-stake problem is an important concept that sometimes gets lost in the heated U.S. Chamber of Commerce talking-point criticisms of class actions.

The nickel and diming effect is one that I’ve written about before, but the short version is that consumer class actions provide a means of stopping illegal practices that take small amounts from a large number of people. A corporation that illegally takes a few bucks from a million people makes a few million. Handsome profit if it’s not stopped.

The more interesting part of the CL blog post quotes the court.  As a side note, I’m a bit confused, as it appears to be a quote from an earlier opinion in the case, or maybe I’m missing something. I don’t see the quoted language in the cited Lexis opinion. Likely, it’s my confusion due to insufficient coffee. Nevertheless, I’ll take as a given that CL correctly quotes the court.

Wells Fargo sought decertification because–it argued–the class did a poor job of modeling class-wide damages.  As CL explains,

“It is interesting that the weaknesses in defendant’s transaction data was used by the court to nullify challenges to the methodology used by plaintiffs’ expert to assess damages for the class.  The court found that the same flaws in data would impact an individual’s attempt to prove damages.  The opinion contains a detailed discussion, with an example, of the allged (sic) practices and the damage extrapolation methodology used by plaintiffs’ expert.”

The underlying data problem is one that I see from time-to-time in consumer class actions.  Defendants often resist production of class membership and damage data in large consumer class actions. And once they produce it , they sometimes go so far as to attack the class’s damages model because of the insufficient underlying data. That’s  one of those ironic arguments that I love to see defendants make.

Anyway, kudos to Complex Litigator for pointing out the opinion. Interesting reading for class action practitioners, especially those who handle consumer class actions.

Church sex abuse–Oregon deposition of Cardinal Levada

Sex abuse is one of those challenging areas where lawyers have to tread. I have handled several civil cases for sex abuse victims over the years. They’re tough.  The victims lives are often trashed. The amount of denial and levels to which some will go to protect predators is horrifying.

These topics cause fires, so I’ll lay out my background and biases here. First, I write this as someone with experience representing sex abuse victims, though I have not handled any cases against the Church. I am not Catholic, though I have friends who are engaged in the Church and friends who have left it over the years.  My daughter attends St. Mary’s Academy, a fabulous Catholic school here in Portland. The school is particularly welcoming to those of us who are not Christian.

Today’s story focuses on Cardinal Levada, a high ranking Vatican official who has been extremely critical of press editorials regarding the Church’s failures in dealing with child sex abuse problems. Cardinal Levada previously served as Archbishop in Portland.  Oregon attorney Erin Olson deposed then-Archbishop Levada in connection with Church sex abuse cases here.  (Technical law term: A “deposition” is pre-trial testimony taken under oath.)

Ms. Olson–who has handled many of the Oregon church sex abuse cases–had the deposition transcript in her files, and she released it yesterday to The Oregonian. According to the news report, Ms. Olson explains that Cardinal Levada reinstated an Oregon priest who was a child sex abuser.  The story quotes from the transcript. While there are always differences in how people interpret evidence or testimony, my own take is that the quoted testimony suggests that Cardinal Levada was at least inattentive to the horrible risks of priest sex abuse.  At a minimum, it’s easy to see that Cardinal Levada’s own experience in the civil justice system might undercut his criticism of those who question the Church’s actions.

I suppose some legitimately may feel that the Church has been unfairly criticized and that it has done enough to confront and repair this awful black chapter in its history. On the other extreme, there are those who see what the Church did and what it failed to do as unforgivable, no matter what. I tend to fall toward the middle.

The Church has confronted some of the misdeeds from these dark times. But that only happened because the victims mustered the immense courage to come forward to challenge the Church. As well, the civil justice system and dedicated and tough attorneys like Erin Olson refused to back down. And facing those things and the awful and immutable truth beneath, the Church had some of its reckoning.  I use “some” deliberately here, as it looks to me like there is far to go.

Perhaps I’m naive, but I don’t accept that any group of people, any nation, any religion or any institution is beyond redemption. So I hope that those in the Church committed to healing and reconciliation continue their efforts.  I also hope that leadership of the Church stops the circling of wagons and defensiveness, as these are legitimate criticisms and questions.  Denouncing the critics like The New York Times or the victims or their attorneys seems to me to be the opposite of reconciliation.

U.S. sues KBR, Inc. over its Iraq billings

I haven’t seen the complaint yet, but multiple media reports indicate that the U.S. Department of Justice filed a False Claims Act case against KBR, Inc. and its subcontractors over allegedly improper bills for security in Iraq. Here is the CNN report.

I’m taken by this KBR quote reprinted from the linked article:

“The government fails to acknowledge that the Army breached the contract by repeatedly failing to provide the necessary force protection and, in fact, frequently left KBR, its employees and its subcontractors unprotected,” KBR said.

As one of the lawyers representing Oregon National Guard soldiers who claim to have suffered toxic exposure injuries while protecting KBR employees in Iraq, I have a point of view. Regardless, I’m guessing that National Guard soldiers who provided security to KBR employees at Qarmat Ali site in Iraq might have a slightly different view.  Or perhaps KBR is forgetting about the soldiers that provided security at the Qarmat Ali site?

Fair to say I’ll be interested in how this one turns out.

Health care reform rhetoric, vandalism and violence: what are the legal options?

Here is a disturbing CNN report on threats of violence and acts of vandalism triggered by heated rhetoric of the health care reform debate. I have to say that I’m especially troubled by Rep. Steve King (R-Iowa) and his smug admission that this is all melodrama.

Thanks, sir. Glad that putting your opponents in harm’s way is “just” a little game.

I’ve seen questions floating through blogs and social media about why these people can’t be stopped from abusive rhetoric.  Short answer is that the First Amendment generally prevents a court from telling someone that they can’t speak.

So the demigods, sideshow freaks, and rodeo clowns are free to continue heating things up with half baked allegations and over-heated rhetoric. But when violence results in injury, lines have been crossed. Only then will we be able to hold people accountable in court. Only then will an irresponsible speaker face a reckoning.

Not pretty, I know–especially when you see and hear the kind of stuff that we’ve faced over the last few days. But it’s a line that we have to honor.

A similar thing happened here in Oregon many years ago. When the White Aryan Resistance leader, Tom Metzger, incited a trio of skinheads to violence, he faced a wrongful death claim brought by the Seraw family, who lost their son in a senseless hate-filled attack.

If any wingnut is crazy enough to start firing shots or throwing bombs, there will be a reckoning. And it will be epic.The threats of violence aren’t going to shout the rest of us down. We’re going to have health care reform. Now maybe it’s time to act like grown ups and get on with the business of living in a democracy.

Letter to Governor Perry-stay the Hank Skinner execution-updated

The Hank Skinner execution is slated to take place today in Texas. My criminal defense pals who frequent Twitter pointed out the problem with this case. Most notably, there hasn’t been DNA testing of evidence in the DA’s possession. Interestingly, by pushing forward without DNA testing the State of Texas is giving death penalty opponents another great case for their strongest argument against the death penalty.

I laid that out in a faxed letter to Governor Rick Perry (512 463-1849) today. I’ve pasted it below:

RE: Inmate Hank Skinner-Scheduled Execution March 24, 2010, 6 p.m. CDT

Dear Governor Perry;

I write to join those asking you to order a stay execution in this matter to allow DNA testing for Hank Skinner. The various reports on Mr. Skinner’s conviction are troubling. The biggest problem appears to be a lack of confirmatory DNA testing.

Those who oppose the death penalty make their strongest arguments by pointing to executions of prisoners who may be innocent of their crimes, notwithstanding their convictions. Death penalty opponents make their most compelling case when they point to major irregularities in proceedings. In short, execution of Hank Skinner without confirming DNA testing assists those who oppose the death penalty.

If DNA testing confirms Mr. Skinner’s guilt, nothing is lost by the stay. If on the other hand the testing establishes wrongful conviction, then avoiding his execution demonstrates the integrity of the Texas criminal justice system.

Thanks for your careful consideration of these issues.

***

More: My Twitter buddy @thetrialwarrior, known in real life as Antonin Pribetic, provides a much more thorough take here. Antonin is a jewel. Great blog on Canada and U.S. justice issues and Twitter amusement to virtually no end.

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Last word for now: Late in the day the U.S. Supreme Court issued an order staying the execution so that it could decide whether it wants to consider Skinner’s civil rights claim that he is entitled to DNA testing under federal civil rights law. Here is more detail at SCOTUSblog laying out the order. It’s a tenuous halt, but a stop all the same. Let’s hope that Texas does the right thing in the meantime and provides access to the evidence for DNA testing.