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.

 

Hot Coffee, frivolous lawsuits and HBO

HBO premiers Hot Coffee, The Movie tonight. The documentary is Oregon attorney Susan Saladoff’s labor of love. Susan put aside her law practice to will this film into being. She is a force of nature.

Susan makes no bones about her point of view. Like me, she is an Oregon consumer-side attorney who represents injured Oregonians in tough cases. I’ve tracked her cases over the years–we’re buddies–and she is the real deal. Susan grew weary of the fog machine’s distortion of the civil justice system. So she set out to make a film to publicize some of the misconceptions of our system.

By all accounts, she had no real experience as a filmmaker. I imagine that many thought her to be a modern-day Quixote riding off to do battle with the menacing windmills. As with any audacious plan, there are many ways to fail. But she is a force, and her improbable work wound up at Sundance with great recognition.

The well-known McDonald’s hot coffee case serves as a starting point for her film. While everyone knows the McDonald’s case, Susan gets the evidence and shows why the jury correctly decided it and how the pro-corporate fog-machine turned it into a cause by totally misrepresenting the facts. After watching some of the early cuts of the film-in-progress, I was awed by how she brought the evidence to life. Once you see this movie, you will never think about the McDonald’s hot coffee case the same way again.

The corporate fog machine’s favorite catch phrase, “frivolous lawsuit,” is at issue here. It’s a bastardized meme, arising from the rules of civil procedure. It used to mean that a case had no legal or factual basis and that the lawyer pursuing the matter did so in bad faith. Now it has come to mean any case in which a consumer seeks justice for wrongs heaped upon them.

Corporate interests took aim at the civil justice system because our civil justice system provided the only means through which consumers and members of the middle class could hold wrongdoers accountable. In doing so, the frivolous lawsuit meme has nullified the Seventh Amendment right to trial by jury. The film is part of a growing movement to restore the Seventh Amendment and consumers’ access to the civil justice system.

I am planning to watch it tonight and planning to record it as well. Susan is a jewel for her commitment and her achievement. All of us who work in the trenches of the civil justice system are indebted to her.

Wal-Mart v Dukes: Supreme Court changes rules on class actions

I was not surprised by the U.S. Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, No. 10-277 (June 20, 2011). Even so, how the Court got there reveals more agendas. It also bodes poorly for consumers.

About class actions: While class actions are often criticized, the reality is that they are one of the few tools available to consumers and middle-income Americans to fight wide-spread corporate abuse. When a bad corporate actor engages in a pattern of misconduct, the class action device allows consumers to band together to fight abuse.

About the case: The story about the case has been widely told. Wal-Mart’s female employees sought to proceed in a class action to address corporate-wide wage disparities. They claimed that Wal-Mart engaged in a pattern and practice of gender discrimination by paying female employees less and providing fewer promotions. That’s illegal discrimination under Title VII, the federal Civil Rights Act of 1964.

What the Court decided: The Court decided that the case could not go forward as a class action. Part of the opinion was unanimous, but the guts of the problem are in Part II of the Court’s opinion, and that part was 5-4. Part II radically revised class action rules, and that’s where consumers are at risk.

A new standard: Class actions are complicated. But at the front end, a class action has several requirements. They are that the class is numerous (“numerosity”) , that the named-plaintiffs’ (people who bring the lawsuit) claims are typical (“typicality”), and that there are one or more common questions of fact or law (“commonality”). Depending on the type of class, there are other requirements, but the Court did not reach those additional requirements.

Writing for the majority, Justice Scalia announced a new standard, deciding that commonality–which was always a simple showing–would now become very complicated. Now, it’s not just that there must be common questions, but, says the Court, there must also be common answers.

Ironically: For years, Justice Scalia has harangued the Court and the profession about the need to limit decisions to the text of the written law. The judicial philosophy is known as strict constructism. Funny thing: The text of the applicable part of the rule makes no mention about answers to questions. Instead it reads, “[T]here are questions of law or fact common to class.” FRCP 23(a)(2). The lack of textual support for an anti-consumer ruling causes Justice Scalia little pause, as the Court engaged in similar over-reading of federal law in AT&T Mobility LLC v. Concepcion, the case that likely ended consumer class actions.

The bigger problem: This is a tough day for the women from Wal-Mart. But apart from that the Court is slamming the door on class actions. When you add this ruling to AT&T Mobility and then add on a few other doctrines, it’s clear that the goal is to radically curtail class actions. Before Wal-Mart, the U.S. Supreme Court made clear that the merits of a consumer’s claims did not enter in to the consideration of class certification. That day is over. Without overruling prior case law, the U.S. Supreme Court examined, weighed and determined the sufficiency of the Wal-Mart plaintiffs’ evidence.

Some years ago, Congress caved to corporate interests and passed the so-called Class Action Fairness Act (“CAFA”). CAFA provides that most class actions may be removed to federal court. A few years later, the U.S. Supreme Court changed the rules on pleadings and required more specificity of those who file cases in federal court. The new pleading standards under Iqbal make it harder for consumers to proceed in federal court.

For years, federal courts have limited discovery in class action cases to issues related only class certification. But now consumers seeking to pursue class actions must make a showing on the merits. Between CAFA, Iqbal, Daubert (scientific evidence case), AT&T Mobility (mandatory arbitration) and Wal-Mart, the Court has erected great barriers to consumers seeking to proceed in class actions.

Lousy day.