KBR gets slapped down by National Arbitration Forum over domain name dispute

I always enjoy a good smack down. Especially when it is well-deserved. Today, the National Arbitration Forum issued its decision in KBR, Inc. v. Jeffery L. Raizner, Claim Number FA1110001413439.  For those playing along at home, here is a pdf copy National Arbitration Forum Decision on kbrlitigation (2)

Backstory and full disclosure: Jeff Raizner is a partner in the Doyle Raizner firm. Jeff and his partner Mike Doyle are pursuing claims for sick veterans who claim to have been exposed to sodium dichromate at the Qarmat Ali Water Treatment Plant in Iraq in 2003. I am co-counsel for the Oregon vets in Bixby v. KBR, a case pending here in Portland. In connection with the litigation, Jeff registered an active web page, kbrlitigation.com.

The dispute: KBR rattled sabers and ultimately disputed the registration through NAF. KBR sought to take the domain name from Jeff, claiming that kbrlitigation.com infringed on its mark. The panel ultimately found that the site represented a nominative fair use of KBR’s mark. Putting it into English, this translates to roughly: “No, KBR. No. You do  not get to use the legal system to censor those who dare to criticize your misconduct. Go away and darken our doors no more.” (Note: This is a rough translation. I am, after all, not fluent in the odd language of intellectual property.)

I can’t help but wonder how much KBR spent on this little escapade. I am a simple in-the-trenches trial lawyer–the world of intellectual property is fairly alien to me. To use a technical legal term, this seemed like a no-brainer. Guess KBR has extra money to spend and wants to do whatever it can to stop trial lawyers from communicating with sick vets. Total failure. But worse, a public one.

So congrats to Jeff and Mike and their IP legal team. It’s a nice and well-deserved win.

Honda civic hybrid class action settlement faces social media backlash

It sounds like a lousy class action settlement, though it is possible that it is not as bad as it sounds. This report in the LA Times, about a pending class action settlement on behalf of consumers who bought the Honda Civic Hybrid, raises some eyebrows.

I don’t know anything about the case or the settlement, but a class action for car buyers that gives class members a coupon for purchases on future cars is almost always a problem. If the problem isn’t apparent, here is a stupid question: How often do you buy a new car? Consumers also get cash, but it’s apparently as low as $100 per purchaser.

Lest anyone accuse me of being totally one-sided, it’s worth noting that there are times when cases don’t work for one reason or another, and a modest settlement is appropriate. I doubt this is how the case went because the attorneys for the consumers are getting a large fee, according to the same report. Even so, I am not licensed in California, and I have no information on the case. I haven’t seen the notice or the settlement agreement, so I’m not very informed.

So all this background leads me to Heather Peters, one of the consumers who is not happy with the settlement. Through her website, Ms. Peters is campaigning to get the word out to consumers who are affected by the settlement. She’s also on Twitter here.

Props to Ms. Peters for a few reasons. First, bad class action settlements are a problem. While I still don’t know enough to know about this one, it smells bad from here. More important, Ms. Peters is apparently providing consumers with information about alternatives, including opting out and small claims.

I’m intrigued by Ms. Peters’ campaign. I hope to learn more about the merits of the settlement and whether it’s as bad as it sounds. My guess is that her pioneering use of social media may become a model for future problem class action settlements.

Update: My Twitter pal, George Wallace, aka @foolintheforest, provides helpful California law context here at his Declarations and Exclusions blog. Besides being endlessly amusing on Twitter, George brings his A-game to the world of California insurance law and civil law issues beyond. In the linked post, George asks some compelling questions about things lurking in the shadows of the LA Times report.

 

 

For-profit colleges apparently prefer lawsuits to increased regulation

When the Obama administration announced stricter regulations on for-profit trade schools, the lucrative industry went on the offensive, hiring the best lobbyists money could buy. “Best,” of course, means most effective and should not be confused with doing what is right.

The heavy investment paid off, as this report in The New York Times explains. The for-profit trade school industry succeeded in diluting the regulations that would have set real standards for these programs.

Consumer advocates should be outraged. But of course, the U.S. Supreme Court believes that corporations are people, too, at least when it comes to spending gobs of money on political advocacy. So outrage is probably wasted. Instead, I’m going with cynicism.

See, there is a certain level of irony here. Strong consumer protection regulations set standards. When businesses follow strong rules, consumers can purchase what businesses sell. Businesses make money. The market economy works.

But when there are thin rules or no rules at all, temptation and greed lead businesses down the wrong path. This era of deregulation has created a consumer fraud monster. Banking practices, mortgage scams, and trade school fraud are not coincidence. They are the result of the triumph of deregulation.

When corporate actors go too far and rip off too many for too much, those of us who dare to represent consumers can fight back. But that seems like a lousy way for our system to run. I hear a lot of carping from certain politicians about lawsuits. But isn’t that what corporations choose when they fight meaningful regulations?

They don’t, really, as many members of the plutocracy believe they are entitled to both no regulation and no exposure to lawsuits for misconduct. I only hope there is a special place in Hell for those miscreants.

I’m spending my Sunday preparing for more depositions in our ongoing trade school fraud case against Western Culinary Institute/Le Cordon Bleu Portland and its parent, Career Education Corp. My guess is that no real rules means many more of these cases in the future. I suppose I should not complain about regulatory failure because it means more business for me. In reality, I would be just as happy if I never saw another for-profit trade school fraud problem again. That’s clearly not in the cards. So be it.

Update: Consumer fraud class action against Career Education Corp and Western Culinary

This is a short update for all following our consumer fraud class action against Career Education Corporation and its Portland culinary school, Western Culinary Institute/Le Cordon Bleu Portland.

We’ve been waiting for a ruling from Judge Baldwin on Career Education Corp’s motion to compel arbitration and to dismiss this long-running class action. Judge Baldwin denied the motion, which is another battle won for consumers and members of the class. I am pleased with the ruling, but there is still far to go.

We’re moving now to complete discovery on the merits of the class’s claims. More news as it happens.

 

On Veterans’ Day, let’s hold KBR accountable

So here is what is happening in my law office today, Veteran’s Day, 2011: Kevin Stanger is giving a deposition in Bixby v. KBR, the case in U.S. District Court here in Oregon where veterans dare to call corporate giant KBR to account.

Mr. Stanger is one of the vets sickened by exposure to sodium dichromate at the Qarmat Ali Water Treatment Plant. The Vets dare to demand an accounting and justice from KBR.

In 2003, Mr. Stanger was in the command unit of the Oregon Army National Guard. He was one of the many soldiers who relied on KBR to be straight about the dangers at Qarmat Ali. KBR failed to do its job, and now Mr. Stanger and many of his brothers in arms are sick.

The vets’ depositions are grueling. Each vet sits in our conference room for a day. answering KBR lawyers’ questions under oath. I’ve had to apologize to the guys–it’s a lousy process.

Even so, there is some beauty and irony in Mr. Stanger’s deposition today. Our soldiers swear to defend and protect the United State Constitution when they take their enlistment oaths. When they enlisted, I doubt any of the Qarmat Ali vets thought for a moment that they might be the ones who needed their constitutional rights to trial by jury. Thankfully, that right endures because of each veteran’s commitment to the constitution.

While Mr. Stanger is giving his deposition, I am head-down working on our opposition to KBR’s latest motion to have the case thrown out of court. The Vets’ legal team’s hard work on this Veterans’ Day is all that we can give toward repayment of the vast debt owed to our veterans. It is not enough, of course, but I hope that it is a modest start.

 

Career Education Corporation and the terrible, horrible, no good, very bad day

Last week, Career Education Corporation’s stock took a breathtaking fall. It started with the resignation of Gary McCullough, the CEO. That happened so quickly, he did not even have time to offer the usual walk-the-plank rap that he was leaving to spend more time with his family.

The next day, November 2, the company provided earnings information to investors in their earnings call. The earnings call reportedly included revelations that about an internal  investigation by outside counsel.

It seems that independent counsel reviewed the calculation of placement rates at some of CEC’s schools. CEC revealed that placement rates at some of its schools were improperly calculated. That is when CEC’s stock took its breathtaking fall.

The upshot is that Career Education Corporation is facing serious problems. Or, in the words of a favorite kid’s book, CEC had a terrible, horrible, no good, very bad day. Against this backdrop, we continue to pursue our consumer fraud class action against Career Education Corp. and the Western Culinary Institute/Le Cordon Bleu Portland for former culinary students at the Portland campus. The calculation of placement rates is one of the major issues in our case.

I’ll be interested to see what else comes out from these investigations. Regardless of what else comes out, we’re getting ready to complete depositions and get ready for trial.

Update: NPR did a story two days ago. Access it here

Updated: 9 Nov 2011

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.