Fighting the robber barons: Illegal debt card charges for overdrafts

News today that West Coast Bank reached an agreement with the FDIC relating to its “courtesy coverage” overdraft protection. According to Brent Hunsberger’s report in The Oregonian, the issue was ineffective opt outs. But there is a bigger problem with Oregon banks ordering transactions in a way that triggers a cascade of overdraft charges.

I’m particularly interested in this area and looking at various cases. If you have had multiple overdraft charges assessed by Umpqua Bank, I’m interested in talking to you about the problems.

While it’s good that the FDIC stepped in, I am concerned that they did not fully take care of consumers who were affected by West Coast Bank’s overdraft charges. Still, enforcement is essential. Failing that, those of us who dare to fight the robber barons provide the next best thing.

Feel free to contact me if you have a story about Umpqua or any other Oregon bank that is overcharging on overdraft fees.

David Sugerman

ARCO debit card fees–Again?

Oregon readers know about our gasoline rules. In Oregon, there is no self-service. So when you pull up to the pump and ask the attendant to gas it up, you commit to the purchase the minute the gas starts flowing into your tank.

ARCO does not take credit cards. Consumers can pay cash or with debit cards.

Over a decade ago, I did my first consumer class action against ARCO in Oregon. They were charging an undisclosed debit card fee for consumers who paid with debit cards.

After a hard-fought battle, we settled that class action case many years ago. Part of the settlement required ARCO to post debit card fee disclosure signs at the pump. We demanded the fee notices so that consumers would know before committing to the purchase that they were paying an extra charge.

That extra charge is now 45 cents per purchase. So when you buy five gallons worth of gas, it is nine cents per gallon more than the posted price if you pay with a debit card.

That’s right. It appears that ARCO, which is now a subsidiary of Gulf oil spill British Petroleum, is back to nickel and diming consumers. My annoyance knows no bounds…I really dislike nickel and diming consumers.

If you have had a problem with ARCO debit card charges in Oregon, I would appreciate a call or an email so that we can properly analyze and address this problem.

Inspector General critical of KBR conduct in Qarmat Ali Water Treatment Plant toxic injuries

The Inspector General of the Department of Defense released its long-awaited final report Exposure to Sodium Dichromate at Qarmat Alli Iraq in 2003: Part II Evaluation of Army and Contractor Actions Report No. SPO-2011-009 (September 28, 2011).

Here is the current report: Part II Qarmat Ali FINAL Report Sept 28

And here is a link to a pdf of Part 1, for those interested. The findings confirm much of what the vets in the Qarmat Ali cases have been saying in the their long fight against KBR for exposure injuries from sodium dichormate.

From the summary:

“Contractor recognition of, and response to, the health hazard represented by sodium dichromate contamination, once identified at the Qarmat Ali facility, was delayed. The delay occurred because KBR did not fully comply with occupational safety and health standards required by the contract, and Task Force Restore Iraqi Oil failed to enforce contractor compliance. As a result, a greater number of Service members and DoD civilian employees were exposed to sodium dichromate, and for longer periods, increasing the potential for chronic health effects and future liabilities.”

-DOD IG Qarmat Ali report, p. i.

The DOD IG report explains that KBR first became aware of the sodium dichromate contamination in late May 2003. Our evidence suggests that it was earlier and that KBR knew in April 2003.

The report includes a laundry-list of contract problems and safety violations. KBR did not do what it was supposed to in protecting people at the site. (Report, pp. 12-14). We made similar arguments in court here in Oregon when we briefed and won KBR’s motion to dismiss.

The IG report represents a good day for the sick vets. My view is that the IG acted because the Senate Democratic Policy Committee and Oregon Congressional delegatoin pressed the issue of Qarmat Ali exposures.

The Oregon Congressional delegation provides great leadership on these issues. Senator Wyden, Senator Merkley, Rep. Blumenaur, Rep. Schrader, and Rep. DeFazio have been particularly helpful to Oregon’s Qarmat Ali vets.

As the guy in the trenches, I can say that this day restores some of my lost faith in our government. Members of Congress pushed, and the Inspector General’s office did  their job in a frank and thorough fashion. We are pleased.

Meantime, here is today’s report on the Inspector General’s report from The Oregonian.  While it is a good day, nothing has changed. The vets are still sick, and KBR has still refused to reckon with the harms and the losses. Our fight for the vets continues.

Revised 29 Sept 2011

Providence data breach case: Oregon Supreme Court argument

I had the pleasure of watching my dear friend and colleague Maureen Leonard argue Paul v. Providence in the Oregon Supreme Court today. She did a fabulous job of articulating our position, both in her briefing and at oral argument.

The Oregon Supreme Court was not at full strength. Justice Durham has been out of town this week but will participate in decision of the case. Justice Kistler apparently recused himself. One of the things that struck me as I listened to argument and the questions from the bench is how lucky we are in Oregon to have the kind of judiciary that we do.

Don’t misunderstand me. We could easily lose this case. Some of the individual questions from the judges were not friendly to us or our theories about why Providence should have to account for breaching confidentiality of 350,000 patients’ medical records. But still, there is a genuine desire in the Supreme Court to get things right and an openness that strikes me as Oregon at its best.

The defense argued strongly. They have the benefit of having won at the trial court and Oregon Court of Appeals. Still, I like how things went today.

It can take the Supreme Court a long time to issue an opinion. All of us who toil in the courts know that how oral argument felt is often not much of a predictor of the outcome. So I don’t put a lot of significance in Maureen’s great day. Still, you have to feel good when it seems like the court understands your position.

All of this is from something of a skewed perspective. I am the guy who lost in both lower courts. My work was the basis of heavy defense criticism in oral argument today. Still, I am convinced that we are right. And of course we will see it through to the end.

 

And we have a winner

Congratulations to Candice Aiston who won the Timbers tickets in our drawing. Reached today by phone, she sounded surprised: She claims that she never wins anything. Now it’s up to Candice to cheer the Timbers on to victory. (Don’t blow it, kiddo. We’re counting on you!)

Our fabulous Portland Timbers ticket giveaway contest

So this is it. Two home games left for the Portland Timbers’ inaugural Major League Soccer season, and we want to use the opportunity to thank readers of our blog and Facebook and Twitter friends by doing a totally random drawing.

We’re giving away two tickets to the Timbers match Wednesday, September 21, 2011, 7.30 pm at Jeld-Wen field.

The rules are pretty simple.

1. You have to like us on Facebook at our law firm Facebook page; and

2. You have to send us an email using the contact information from this web page or the Facebook page to let us know you’re in.

Deadline: You have to have hit the like button on Facebook, and we have to receive your email by Tues. Sept. 20, 2011 at 10:00 a.m. Pacific. We’ll conduct the drawing and announce the winners between noon and 1:00 pm Tuesday and make arrangements to get tickets to the lucky winner before the Wednesday match.

Imagined FAQs:

1. There’s a catch, right? No. Someone will get the tickets.

2. Who are the Timbers? (aka the @AmyDerby question) This is definitely not for you. Last match–Friday night–against New England was awesome. There are only two more home matches this season, and there aren’t a lot of spare tickets out there. They’re in the playoff hunt, and Portland loves the Timbers.

3. These are dawg seats? Seriously? It’s the Timbers at Jeld-Wen, which means there are no bad seats. And by the way, these are club level, Section C5, Row I. There is a separate entrance for KeyBank club ticket holders, a roof in case of rain, and–if that’s not enough–free food, including Voodoo doughnuts at the end of the match.

4. And you’re doing this because? Good question. I would blame it on the kids in the social media department, but we have no social media department. Truth is that I can’t make the game. We wanted to do something for people who read our blog and follow us using social media.

#RCTID. Good luck to all!

David

Update: Western Culinary Institute/Le Cordon Bleu Portland and CEC consumer fraud class action

For those tracking this case, two updates worth noting.

1. As noted recently, Western Culinary/LCB Portland and Career Education Corp filed a motion to compel arbitration and to dismiss this case. More info on that motion here. The hearing date on the motion has been changed to October 7, 2011.

2. There have been many media reports on the settlement of California Culinary Academy (CCA) class action. Some have erroneously reported that the settlement includes this case against Western Culinary Institute. Not correct. I am not connected with the CCA case, so I don’t pretend to know what is going on there. But our case has not settled. That is why we are pushing forward toward trial.

Thanks for checking back and for your continuing patience and interest in the case. If you’re a class member, know that our team continues the long fight. Call or email if you have questions.

David

Western Culinary Institute class action update: Defendants seek another dismissal

This is an update on our culinary school consumer fraud class action against Western Culinary Institute, now known as Le Cordon Bleu Portland, and its parent corporation, Career Education Corporation.

A few weeks ago, defendants filed a motion to compel arbitration of Nathan Surrett and Jennifer Adams’ claims and to stay or dismiss the case.

Some background: Nate is the current class representative. The case is being pursued in his name and through his efforts. Before Nate, Jennifer Adams served as the class representative. She had to step down after the Court narrowed the scope of the class in a way that excluded Jennifer. (If that’s not confusing enough, Adams is Jennifer’s married name. She was previously Jennifer Schuster, which is why that name appears on some of the pleadings.)

Anyhow, back in April, the U.S. Supreme Court issued a really significant anti-consumer decision in the case of AT&T Mobility v. Concepcion. The case is bad for consumers because it strengthens big businesses’ ability to take away consumers’ rights to trial by jury through mandatory arbitration.

So four months after that decision, the lawyers for WCI/Le Cordon Bleu Portland/CEC decided to ask the trial court to dismiss our case because Nate and Jennifer were required to arbitrate their claims. Their motion is long and legally complex. It was filed under seal because it uses student records of the two named plaintiffs. That’s a long way of saying I can’t provide a copy.

While their arguments were complicated, there were a number of glaring problems. We filed our response on Friday. Here is a pdf copy: Response to Def Motion to Compel Arb and Dismiss

Fair warning: it’s a technical brief that may not make much sense if you don’t have a law degree and an interest in this very narrow area. The issues are important for this case and for other consumer cases. I’m posting it here for those following this case and, also, for consumer attorneys out there facing post-AT&T Mobility motions to compel arbitration.

I’m pleased with our opposition. Oral argument is scheduled for Friday, September 23 in front of Judge Baldwin. I don’t know whether Judge Baldwin will rule from the bench. We will update you when we know more.

 

Ten years after 9/11–what about the debts owed to our veterans?

Ten years after the 9/11 tragedy, I am thinking today of the first responders and veterans who volunteered for service. They did so understanding the dangers and the risks, and they did so as a matter of duty and conscience. In answering the call, they put themselves in harm’s way. It was not just them, of course. Their families have borne heavy costs from their service.

Against this backdrop, I continue to represent the sick veterans of the Oregon Army National Guard 1/162. They provided security at the heavily-contaminated Qarmat Ali Water Treatment Plant in Iraq. KBR was responsible for the facility as part of its secret, no-bid, multi-billion dollar Restore Iraqi Oil contract.

Many of the vets who provided security to KBR contractors at Qarmat Ali are sick. Some vets from other units have perished from cancer. All who served in that toxic facility are rightfully worried about the future.

I am something of a cynic–I suppose that’s part of my job. I usually distrust flag waving because it can distract us from what is important. So let’s commit to do more than wave flags. How about we resolve to take care of our sick and injured veterans and their families? How about we hold accountable those who profited from the war contracts and insist that they take responsibility for what they have wrought?

Debts are owed. It is time to pay.

Consumer fraud class action update: Western Culinary Institute, Le Cordon Bleu, Career Education Corp.

Late yesterday, Career Education Corp and Western Culinary Institute/Le Cordon Bleu Portland filed a motion to compel arbitration in our consumer fraud class action. More on the case here.

Short version is that three years after we filed the case, after the trial court certified a class action, after class notice went out, and after the opt out period ran, the defendants filed a motion to compel arbitration. The motion will require a lot of work from the class legal team, but of course, that is why we are here.

It’s a bit hard to fathom why the Career Education Corp and its school waited so long to file their motion. Their story is that they could not have won their motion until the U.S. Supreme Court decided AT&T Mobility v. Concepcion. For reasons best left to the briefing, they are so very wrong in a number of ways.

In many places in their brief, they make arguments that remind me of this video:

Inconceivable!

I suppose in the end we are talking about delay. But of course that’s a problem that bites them as hard as it bites the class. They are on the hook for prejudgment interest if we prevail. That means that every day of delay is more interest on the amounts at issue. With approximately 2500 in the class, we are talking about a lot of money.