VW Diesel Fraud–New filing: Bricker v. Volkswagen Group of America, Inc.

Catching up. Last week, we filed Bricker v. Volkswagen Group of America, Inc., U.S. District Court Case No. 3:15-cv-01785-PK (D. Or.) Along with my frequent collaborator, Oregon attorney Tim Quenelle, I joined forces with my friends at colleagues at Cohen & Malad from Indianapolis.

For those who like such things, here is a copy of the complaint: 1 – Complaint. The case is filed as a national class action. It protects the interests of anyone who purchased or leased one of the affected VW Group vehicles.

The case arises out of the well-publicized diesel engine fraud for Volkswagen “clean diesel” vehicles. In selling various VW and Audi diesel vehicles, the Volkswagen Group represented that these vehicles were high mileage and way low on emissions. As has been widely noted in the press, the high-dollar fraud rested upon sophisticated cheat code or defeat device that switched the vehicles’ operating modes when they were being operated in a parked condition for emissions testing.

The “clean” low-emissions mode did not and could not operate while actual consumers drove the vehicles. Instead of driving green, clean diesel cars, class members were driving dirty diesel vehicles that violated pollution standards.

People paid premium prices for these clean vehicles. In Oregon and Washington, especially, green consumers pay extra for earth-friendly products. VW hyped that clean, green technology in its sales and marketing efforts, and they made a mint. The clean diesel products pushed VW to the number one position in worldwide car sales.

No surprise that we’re hearing from a lot of people. We’ve developed an initial information email for those who have questions. Feel free to email me at david@davidsugerman.com if you need more information, and we’ll mail out the initial information. (I have not posted it here because doing so destroys confidentiality. And we really, really don’t want to do that.)

The case is almost certainly going to be treated as a multi-district litigation (“MDL”) case. When cases are assigned to the MDL, the rules and processes are different. Once it is assigned–probably not for a few months–I’ll update with more information.

In addition to our email packet, I would recommend connecting with us on Facebook if you are concerned about these issues. We tend to post there more frequently.  And of course, if our information and FB posts don’t answer your questions, feel free to call or email.

-David

BP Class Action Update: Class Notice

Finally. Class notice has started in our class action against BP. The case involves illegal debit card charges levied on Oregon gas purchasers. We’re suing under the Unlawful Trade Practices Act because BP violates the Oregon rules governing gasoline price advertising.

Here is a link to the class action notice website.

Trial is set to begin January 14, 2014. If we win, members of the class may be eligible to claim up to $200 for these illegal transactions. More detail as it becomes available. For those in the class, please visit the website. You might want to register there so that the administrator can contact you if that becomes important.

Want more information about the case? Go here and here.

Feel free to call us or email if you think you might be part of the class or if you have stories to share. I am lead counsel for the class.

 

David Sugerman

Update: Career Education Corp files its appeal brief

For those interested, Career Education Corp and Western Culinary Institute/Le Cordon Bleu Portland filed their appeal brief in our long-running consumer fraud class action, Surrett v. Western Culinary Institute. The brief is long and technical. It focuses on things like arbitration clauses and class action procedure. If you’re really interested, I’ve uploaded it here: Brief – CEC WCI Opening Brief.   (Note: if you’re interested enough to read it for fun, it occurs to me that you might need a hobby. But I digress.)

We are fortunate to have recruited Portland attorney Maureen Leonard to lead on the appeal. In addition to being a dear friend, Maureen is a talented and well-respected lawyer who limits her practice to appeals. We will file a responding brief, and then CEC/WCI files a reply. After their final brief, the appeal will be set for oral argument. There is no firm timeline for when we will be through the appeal process. That said, we are committed to the case and will see it through to the end.

I will post our completed brief once it is up and the occasional update when we have more news. Meantime, thanks for your interest and patience.

David

Let’s end Oregon insurance companies exemption from Oregon consumer protection laws

Great KOIN-6 News report here KOIN-6 Iteam Hold Oregon insurers accountable highlighting the loophole that gives Oregon insurance companies a pass on Oregon’s Unlawful Trade Practice Act, our signature consumer protection law.

A pending bill, HB 3160-A would close the loophole. The bill amends the Oregon Unlawful Trade Practices Act to cover insurance companies.  Like all other Oregon businesses, insurance companies should be held to basic levels of fairness when dealing with consumers. It is time that our legislators act to rein in those insurance companies that engage in fraud and abuse.

That’s why we support HB 3160-A. You should too.

BP faces Oregon consumer fraud class action

You pull into one of BP’s Oregon ARCO or AM?PM stations, and fill up with gas. The street signs tells you that gas costs a specific amount; maybe $3.50 per gallon. BP’s ARCO and AM-PM advertise some of the lowest gas prices in Oregon. At the pump, the price per gallon matches the sign you saw from the road.

So maybe you buy five gallons. But when you pay with your debit card, you’re assessed a debit card charge of $.35 or .45. So the price per gallon just went up seven to nine cents per gallon over the amount advertised.

BP markets ARCO gas as lower cost. The debit card fee does more than just hurt consumers. It also puts honest competitors at a disadvantage.

Oregon law is clear. Street signs advertising gas prices are supposed to be truthful. The prices charged at the pump are supposed to be the prices that Oregon consumers actually pay. Gas stations have to disclose add-on charges or conditions on their prices.

Oregon BP ARCO and AM PM mini-markets are not doing it. They’re violating Oregon law with every debit card charge.

Yes, it’s only a small charge. But lots of small charges add up to a lot of money. And BP is a master at collecting a lot of money.

Somewhere along the way, things went wrong. And somehow BP and its ilk decided that they were entitled to ignore state law and charge illegal add-on charges. For consumers, this nickel and diming amounts to a series of bites out of us and our bank accounts. It’s dishonest.  To my way of thinking, the undisclosed add-on is a form of corporate corruption.

Fortunately, Oregon’s Unlawful Trade Practices Act provides a means of stopping this type of behavior. And yes, we filed the consumer fraud class action this week against BP because Oregon consumers deserve better. For those interested here is a pdf version of the complaint: Complaint Scharfstein v BP

One of the things about our commitment to handling consumer fraud class actions is that there never seems to be shortage of work for me and my law firm. Consumer fraud class actions are challenging cases, but there is something satisfying about being part of a small group of consumer lawyers willing to stand up against predation by the likes of BP. That’s why we are working late into the waning hours of 2011.

I am pleased to be joined on the case by my friend and frequent collaborator, Oregon consumer attorney Tim Quenelle. Tim and I handled the Comcast late fee class action together. We make a good team.

As with all of our major impact and consumer fraud class actions, I imagine this will be a long and hard-fought case. So this is how we close out 2011 and roll into 2012. We’ll report on it from time-to-time here. Feel free to check back for updates.

Also, if you have been bitten by the BP debit card charge in Oregon, please feel free to let us know via comment or through contact. We would love to hear your story.

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.

 

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.

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.

 

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.