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.

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.


Scam Alert: Oregon vote by mail scam using fake look-alike ballot

Imagine my surprise when I got home Friday night and looked at the mail. I received a “Secret Straw Ballot” from the “Nelson Report” as a “representative of the average voter.”  The enclosure looks like the exact ballot that is not coincidentally being sent to Oregon voters for a special tax election happening right now.

Turns out the “secret straw ballot” was mailed to approximately 50,000 Oregon voters. It was mailed by the leader of the opposition to Ballot Measures 66 and 67, Mark Nelson, as the linked article notes. While Mark Nelson won’t face a fine for sending out fake ballots, Secretary of State Kate Brown admonished him and indicated that her office will tighten regulations in the future.

Most of the focus has been on the ballot itself, but it’s the accompanying card that’s arguably worse. It contains this misleading statement, “The Nelson Report does not advocate the support of any candidate, nor does it advance the affirmative or negative side of any measure.” Mark Nelson leads the ballot measure opposition I’m supposed to believe that the Nelson Report doesn’t advance his objectives? Please.

It’s fabrication to represent the fake ballot as a poll. No pollster worth his or her salt would use a method like this to gather opinion. None would send it to 50,000 Oregon voters for a state wide ballot measure poll. The results would be garbage because of a selected, non-representative sample, a method that may or may not garner a response, a lack of any control over who responds, and an over-large sample size. These inconsistencies provide strong evidence of Nelson’s true intent.

It’s a hotly contested election. A vocal minority of Oregonians rabidly oppose increased taxes of any kind, for any reason. My own take is that our state is falling apart for lack of revenue. I see it everyday in the number of homeless on the street. I feel it with every tuition increase for my son who attends an “affordable” state university. I hear it with each ever-more depressing report of increased foreclosures and food scarcity. So my own take is clear–we need this.

To be fair, I understand the opposition arguments and don’t presume that anyone opposed to the tax increase is “stupid” or “heartless.”  There are people of good will on the other side of this issue. I strongly believe they’re wrong and that they don’t understand the costs and requirements of citizenship, but that doesn’t make the opposition evil.

Still, the opponents–and specifically Mark Nelson–owe us better. So here is a modest plea: How about you run a race on the merits and leave the voter fraud tricks out of it? If only a small percentage of those of us who received the fake ballot confuse it for the real one, a close election is decided on deceit. That’s intolerable.

David Sugerman

Downfall of Bobby DeLaughter, a civil rights legend

Sad to read this morning’s news about famed civil rights prosecutor, Bobby DeLaughter. He was the Mississippi lawyer who obtained a criminal conviction in the Medgar Evers civil rights murder case some 30 years after the fact. His work inspired the movie, “Ghosts of Mississippi.”

DeLaughter went on to become a judge in Mississippi, and he’s been caught up in that state’s judicial corruption scandal.  Much of it goes back to disgraced trial lawyer Dicke Scruggs.  But that’s beside the fact.

Corruption on the bench is the hallmark of a corrupt state. For obvious reasons, we can’t tolerate it.  Still, it’s hard not to be witsful about this one.  DeLaughter’s work on the Evers case is the stuff of legends. For his sake and for the sake of the Evers family, I hope he’s remembered for that work and not what came after.