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.

Comcast Oregon cable TV late fee class action settlement update

This seven year old consumer class action case is coming into its final stages. The time to file claims ended. Next Monday, July 11, the money for fees and charitable contributions gets paid. A month later, August 11, 2011, consumers who made claims should begin to see credits on their bills for those who continue as Comcast subscribers and checks for those who are former subscribers.

Keep in mind that Comcast can dispute claims. We have not been notified that Comcast intends to do so. We continue to serve the class through the claims process in case there are any problems.

We’ll keep watching, of course. If you made a claim and do not receive your credit or check. Keep in mind that Comcast is entitled to off set unpaid balances.

Feel free to contact us if you have questions.

 

At the tipping point: Have our rights to trial by jury been taken away?

Last night’s HBO premier of Hot Coffee, The Movie provided a great summary of all the ways in which the U.S. Chamber of Commerce, large foreign corporations, and political operatives have banded together to end the right to trial by jury. Filmmaker Susan Saladoff did a masterful job of showing how deliberately falsified talking points, loaded memes, anti-consumer legislation, court packing, and forced mandatory arbitration have been used to deprive consumers of their rights to trial by jury.

Things have only gotten worse since production of Hot Coffee. As I have noted previously, the U.S. Supreme Court rendered two pro-business/anti-consumer opinions this term. This one makes consumer class actions even harder to maintain, and this one makes forced mandatory arbitration even harder to avoid. The picture painted by by Susan Saladoff’s brilliant film gets more finely defined by the Supreme Court’s recent term.

At home, I watched Hot Coffee with my beloved, who has been my biggest supporter for all of the years I have struggled to do what is right for consumers in our civil justice system. She also took me to task over language in my recent blog posts–she’s something of a message genius. She points out, correctly, that I must stop using the language and the memes of the corporate shills who seek to corrupt the civil justice system.

Okay my beloved. You win. I will listen to your wise counsel. So no more use of their memes, talking points and phrases.

Instead, let’s focus on what they have done. Through a deliberate campaign hatched by the cynical pro-corporate strategists, our precious right to trial by jury hangs on the edge.

They cannot accept a justice system that grants consumers and ordinary citizens the power to call corporate wrongdoers to account. They cannot allow the rest of us to have access to justice.  By a cold and deliberate strategy, they have simply chosen to nullify the Seventh Amendment, in order to eliminate consumers’ rights to trial by jury.  The question becomes whether we allow this to happen or fight back to protect our rights.

One of my heroes, Erin Brockovich, pointed out long ago that the problem with giving up constitutional rights is that they are gone forever. The right to trial by jury protects us from government abuse and from corporate misconduct. It looks to me like we are in fact tipping back, and consumers are beginning to to understand the importance of these issues. We can only hope.