Food Poisoning: Townsend Farms

Very pleased to be working with Bill Marler, aka @bmarler, of Seattle’s Marler Clark LLC on a food poisoning Hepatitis A contamination case against Townsend Farms to be filed here in Oregon. I’ve long been a fan of Bill’s work. When I told my family I would be jumping this weekend, my teenage daughter described my excitement as a “man crush.” (Yikes!-that sounds kinda creepy.)

The case involves Hepatitis A contaminated fruit products sold through Costco stores. Townsend Farms manufactured the product. CDC recall information is here.

We will be filing a class action State court here in Oregon. Bill’s firm and the the Food Safety News blog are the best source of information on this litigation, though we will from time-to-time provide updates here as well.

Feel free to contact me if you have questions.

David Sugerman

 

Case update: Consumer fraud case against BP headed to trial

Yesterday, Judge LaBarre ruled from the bench on the parties’ motions for summary judgment in our pending consumer fraud against BP. He denied all motions. The case is going to trial.

Background on the case is here, here, and here. It arises out of BP gas sales at ARCO and am-pm mini-markets.

BP charges debit card customers a $.35 debit card fee but does not disclose the charge on its street signs, on its price signs or on its pumps.

Consumers argue that BP’s undisclosed debit card charge violates Oregon rules on gasoline sales.  The consumer fraud claim arises under the Oregon Unlawful Trade Practices Act, ORS 646.608(1)(u).

The Court deferred hearing the class certification motion until August 30, but that motion is fully briefed and ready to go. The Court took up the summary judgment motions. BP argued that it was entitled to summary judgment for a number of reasons, including that it wasn’t required to tell consumers that debit card users would be charged a fee on gas purchases.

A three-hour oral argument put both parties’ positions to the test.

Judge LaBarre announced his decision from the bench, ordered BP to obtain electronic data, and set a schedule for the remainder of the case, including a trial that starts January 13, 2014.

Good progress, to be sure. But far to go.

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

Economic Fairness Oregon weighs in on ending the consumer fraud exemption for insurance companies

Nice piece here at Blue Oregon from Economic Fairness of Oregon relating to the need to end the consumer fraud exemption for insurance companies. Disclosure: When it comes to EFO, I’ve long been an unabashed  fanboy–they do tremendous pro-consumer work.

HB 3160-A is pending in the Oregon Senate. To my way of thinking this isn’t a blue or red issue. Last I checked, insurance companies don’t discriminate based on political affiliation. They hose the D’s and the R’s, those who live in the city and those who live in the country, the rich and the poor. The things that divide us simply do not matter when it comes to insurance companies taking advantage.

Let’s hope our State senate is listening to EFO and constituents who are pushing on this issue. It’s time to end the special break for insurance companies. Like every other business, they should be covered by Oregon consumer fraud laws.

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.

A Juror Speaks Out: More on Bixby v KBR

A follow up  on a recent post. Our story so far:  Judge Papak issued a comprehensive 63-page opinion on Friday affirming the jury verdict in favor of 12 Oregon Army National Guard veterans against KBR. The men were injured by sodium dichromate contamination, while providing security at a KBR work site, the Qarmat Ali Water Treatment Plant, in Iraq in 2003.  My work on the team representing the veterans has consumed a good part of my professional life.

Under the rules that govern the conduct of Oregon lawyers, I am not allowed to approach jurors and ask them for feedback on their service in a case I have tried. The rule exists for good reasons. We don’t want lawyers to be able to use jurors’ statements to undermine verdicts, and we never want to add additional burden to the difficult duty of serving on a jury. The rule is straightforward: We can talk if a juror initiates contact but cannot contact jurors.

That said, I am always incredibly interested in what jurors think. (Most every trial lawyer is, so in that regard I’m not special.)

That’s why I found this follow up news report so exciting. Mike Francis, The Oregonian reporter, is not under the same restrictions. He can ask jurors for feedback and comments after the trial, and he got a response from Ken Howe, the presiding juror.

Very cool to hear Mr. Howe’s take. I was initially blown away to read that Mr. Howe had gotten a copy of the opinion and read it over the weekend. Then I was appreciative all over again of how hard this jury worked.

While there is a lot of law in the opinion–that’s required with what we do–Judge Papak’s  opinion focuses on the evidence in detail. From  The Oregonian, it appears that Mr. Howe and Judge Papak viewed the evidence in similar fashion.

As Mike Francis reports, Mr. Howe explained:

“‘His [Judge Papak’s] analysis of the evidence closely echoed our discussions during deliberations,” *** “Not being trained in the legal profession, I don’t fully understand the reduction of the non-economic damages award, but I was pleased to see that Judge Papak let the punitive damages stand — another confirmation of our verdict.'”

As Mike Francis noted:

“Papak’s opinion amounts to a point-by-point refutation of KBR’s legal arguments during the trial.”

There are many reasons why this case is important. There are many pieces to this big story that will be told for a while and remembered for the rest of our lives. That said, every hour, every sleepless night, every worry has been worthwhile for these veterans. When our system of justice works, it is a sweet thing.

I’m sure the jurors who served know that the veterans, and those of us who served as counsel, stand in awe. Their service, too, is a huge part of this story. It’s one I imagine I’ll never get to hear or tell, but that’s the life of a trial lawyer.

-David Sugerman

Oregon Qarmat Ali vets’ case against KBR headed to trial

Today, Judge Papak issued another summary judgment opinion denying KBR’s motions for summary judgment on fraud and negligence. Here is a PDF copy: 512 – opinion & order – fraud and neglig It’s a long opinion, but it provides a really clear view of some of the information that has come out during the course of our work on behalf of the Oregon Army National Guard veterans.

Trial begins October 9, 2012. We are looking forward to our day in court.

David Sugerman

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

This is a longer update on our case against Career Education Corp. and Western Culinary Institute/Le Cordon Bleu Portland. It’s an update for those following the case, including members of the class.

Brian Campf and I were back in court Friday. Judge Baldwin issued a number of rulings from the bench.  As well, Career Education Corp. defendants are trying to appeal Judge Baldwin’s previous decision denying their motion to compel arbitration of the claims of roughly half of the class. Let’s take these dense things one at a time.

1) The Friday motions and rulings: Judge Baldwin heard and decided three motions on Friday. First, he granted in part our motion to compel production of discovery from an investigation report of Career Education Corp placement practices that had been disclosed earlier. This is a win for the class. We’re looking forward to reviewing this information.

The class lost two motions filed by Career Education Corp. Judge Baldwin granted in part a motion to allow the Career Education to do a survey of class members by mailing a questionnaire to members of the class. We opposed only because we believe that the form of the survey was confusing and potentially misleading. Judge Baldwin limited the questionnaire but has allowed them to go forward. While we disagree with Judge Baldwin’s ruling, we respect his authority and will cooperate with the process so that we can move forward to trial.

Judge Baldwin also granted a motion that removes approximately 300 people from the class. The 300 or so stopped attending and did not withdraw and thus were dismissed for attendance or academic reasons. The Court concluded that they should not be part of the class. We argued against the motion. While we disagree with this ruling, we recognize that Judge Baldwin has authority to make the choices that he made. As part of the process, those who are no longer part of the class will be sent notice informing them that they are out.

2) The new appeal: We learned on Friday that the Career Education defendants are appealing Judge Baldwin’s prior ruling denying their motion to move approximately half of the class into individual one-case-at-a-time arbitration. We won that argument and believe that Judge Baldwin correctly denied their motion. At the same time, the Career Education defendants sought to stay proceedings in the trial court while the appeal goes on. Appeals can take years, so it’s pretty apparent that they are simply trying to avoid our January trial date.

We’re in the process of moving to dismiss the appeal. We believe that they are not allowed to appeal the order in question. This is a technical, dry area of the law involving concepts of procedure and jurisdiction. We remain optimistic that the appeal will be dismissed and that we will stay on schedule. But even if the appeal goes forward, we will fight there too. So the bottom line on this is know that we are continuing forward, that we remain confident, and that Career Education Corp. can hire more lawyers, file more motions, and try to delay more. But they will not shake us off this case.

3) Parting thoughts: One of the things about the cases that we handle is that I have the luxury of choice. I will not take on a case unless I believe that it is right, and I will not pursue a case unless I believe it is important. But once we commit, we dig in. Stonewalling only makes us more determined. And so we dig deeper. And so we go on.

I’ll update when we have more news. By the way, we do more frequent and shorter updates on our major cases on Facebook. You can get that news if you are a Facebook user by liking us here. When I post on this blog, I generally leave a note on the FB page, so it’s also an easy way to keep up with this blog. As well, you can always follow me on Twitter @DavidSug, though that’s more of a personal account. I don’t always self-censor, so it’s definitely not for everyone.

Thanks for your continuing interest in this case and our work. We’ll let you know when we know more.

David

Judge denies defense motions in Career Education Corp Western Culinary Institute class action

Happy to report that Judge Baldwin denied defendants’ motions for summary judgment and to decertify the class in Surrett v. Western Culinary Institute, our consumer fraud class action for former Western Culinary Institute/Le Cordon Bleu Portland students. We’re very pleased.

The gist of Judge Baldwin’s ruling is that there is sufficient evidence for a jury to decide whether the school and its parent corporation, Career Education Corp., defrauded students by failing to disclose important information. We’re very pleased. Now a bit more discovery and then full-on trial preparation.

It does look like we will be moving into mediation later this month. We had an early attempt at mediation long ago, and it failed miserably. Much  has happened since. Watch this space for updates or–for quicker information–like us at on Facebook here. We tend to post quicker updates there.