Update: Western Culinary Inst. Career Education Corp. class action moves forward

Recently, Multnomah County Circuit Court Judge Richard Baldwin signed this order (pdf) certifying an Oregon consumer fraud class action against Western Culinary Institute and Career Education Corp. It took us a while to get to an order. That’s not unusual in class action cases.

There is a quiet feature to his ruling that has an important impact on the case. Judge Baldwin refused Western Culinary Institute and Career Education Corp’s request to allow an immediate appeal of his decision.

That’s important for class members because each appeal can add years to the life of a case.  Judge Baldwin also ordered the parties to present a proposed notice plan, so the next step on the case should be notice to the class.

It’s good news for Western Culinary Institute alums who are drowning in debt.  For our part, it’s a great day. Brian Campf and I continue to push forward. It’s been a long road. There is still far to go. Onward.

If you attended WCI (now known as Le Cordon Bleu Portland) on or after March 2006, and you haven’t been in touch, feel free to use the contact information to connect. We can answer questions about the status of the case and also get you into our tracking system.

David Sugerman

Oregon injury claims–what Oregon consumers need to know (Part 1)

This is one of those posts that is read only by those who need to know. So first, I am sorry that you find yourself needing to review this information.

There is a lot of misinformation out there. This is a summary of what I’ve learned as an injury attorney in Oregon over the last two decades.

So let’s start with the big picture. Here are three things you need to understand about the Oregon injury system.

1. Nothing that happens here will leave you better off. You are not reading this to get rich and that’s a good thing because that won’t happen. The Oregon system is conservative.

2. The Oregon injury system shouldn’t be used for small injuries or near-misses. While near misses are scary and traumatic, the reality is that resources are limited and need to be available for those who are badly injured.

3. Injury claims stand or fall on three basic elements: 1) fault, 2) “causation;” and 3) harm. That means that compensation is available only if someone else was at fault, that fault caused harm, and the harm was significant.

So how do these principles apply? Motor vehicle collisions  provide a good way of illustrating the principles.

1. The system is conservative; you’re not going to get rich

Let’s look at the first one. If you were injured in a motor vehicle collision, you know this truth in a fundamental way. Given a choice between health and money, you would choose health every time. Put another way, you didn’t choose to be in this system. If you didn’t have to worry about your medical bills, or your damaged neck or back, you would be less stressed. And without the pain and limitations, you would be healthier and happier.

If your body worked like it did before the crash, you would be out there living your life and not dealing with the uncertainty that comes with injury. You certainly don’t think of this as a lottery win, and anyone who thinks otherwise probably doesn’t understand your life.

The lottery comments are particularly offensive. When you pay two bucks to play the lottery, you choose the entertainment and the fun. When an inattentive driver takes away your health,  you didn’t make a choice, and it certainly cost you more than two bucks.  Having said all that, Oregonians are thrifty by nature and rarely provide large money assessments when cases go to trial. They expect you to get by on less and to not be defeated by your challenges. You understand that, of course. The rare cases of large damage assessments simply mean that the consumer is badly injured. That’s cold comfort, at best.

2. Near misses

I imagine this has happened to you. A crazy driver blows a stop sign or a red light. Or maybe an inattentive driver turns in front of you. Through a combination of your vigilance, skill, and luck, you manage to avoid the collision. “That jerk could have killed me,” you think. And you’re right of course. Still, we don’t dabble in near misses. In Oregon, we expect you to gather yourself and go on. The same is true of trivial injuries. The bruise that heals in a few days isn’t worth troubling over. We teach our young kids to pick themselves up and dust themselves off and go on. The same is true here.

3. The three elements

To pursue a claim, we must prove that someone’s fault caused your harms and losses. Sometimes it’s obvious. A drunk driver runs a stop sign and plows into your car. You’re badly injured. Medical expense, time lost from work, and uncertain future of pain and disability result. That’s the easy case.

But cases are often harder than all that. Fault is often the easiest part of the case. It is proving the connection between the fault and the harms and losses and the extent of those harms that gets harder. So, for example, sometimes the injured person has been injured before. After all, few of us get through life without some prior history. The at-fault driver will often argue that your neck injury was “actually” something that existed before. The law says that the fact you were more susceptible doesn’t let the unsafe driver off the hook.  But it’s easy to sow doubts.

This is particularly challenging when, for example, a doctor makes an error and a patient suffers profound injury. The error part is generally the easy part of the case. But showing how the error led to the result is hard, especially when the patient was sick or otherwise compromised to start.

***

That’s enough for this post.  There are often many challenges in pursuing an injury case, so don’t mistake this summary for all the detail that goes into investigating and proving a claim. Want more? Part 2 is here. And Part 3 is here.

David Sugerman

Comcast late fee class action update–reflections of a consumer class action lawyer

For those interested, here is an update on the Oregon late fee class action against Comcast. The short version is that with my co-counsel, Tim Quenelle, I filed a class action against Comcast for its illegal assessment of cable TV late fees in Oregon.

We filed this case in July 2004. No, that’s not a typo. The case will turn six this summer. More background on the history of the case  here and here.

While Comcast disputes this, the class claims that Comcast illegally billed cable TV late fees in Oregon for years. Comcast claims that it’s done nothing wrong, or if it did, these were simply technical violations. Comcast has many other defenses. That’s their choice, of course.

So the latest–the update–is that Comcast is asking the court to allow it another appeal. This time Comcast wants to appeal the court’s decision to allow the class to seek statutory damages of $200 per person.  Comcast already lost an earlier appeal on whether it could require mandatory arbitration of these claims.

While no one has said this directly to me, it’s pretty apparent that the defense is really to drag this out as long as possible. In that respect, the litigation strategy is ironically the opposite of the speedy internet service that Comcast advertises.  But of course, Comcast makes those choices. I suppose it makes sense if the alternative is facing the prospect of payment of millions to Oregon subscribers.

To hear some self-appointed experts talk, consumer class actions are nothing more than stick-’em-up get-rich opportunities. The damages at issue in this case are calculated in the millions. Comcast billed late fees in six dollar increments. While few consumers lost large sums of money, when you total the numbers you come to realize that billing six bucks a pop from many people is a great way to make money.

Meantime, of course, the lawyers pushing the case soldier on. We get paid if and when we bring the case to a successful conclusion, based on a fee that the court must approve as reasonable and fair. And in the six years we’ve been pushing the case, we’ve invested time and money to move it forward.

If you doubt the wisdom of that, let’s consider the alternatives. We deregulated our economy beginning in the 1980s.  So regulation isn’t an option. Even so, I imagine we can all agree that allowing businesses to illegally collect money is unacceptable.  So what’s left, other than the courthouse, when corporations rip off consumers?

For Comcast Oregon cable TV subscribers who paid late fees, all I can say is that we’ll see this through to the end. That may be another 10 years, but so be it.  My son and I were talking the other day, and he related that he’s been accused of being stubborn. “You come by it honestly,” I replied. The reality of our world is that obstinate consumer class action lawyers are one of consumers’ best weapons against corporate greed running amok.

Oregon tax policy: It’s time to repeal the kicker

I have to admit to surprise over yesterday’s vote that passed income tax increases. Oregonians don’t generally like to raise taxes and historically vote against increases in income tax.  That one is past, and now it’s time to get real about Oregon’s tax policy.

It is often said of families that all are unique and strange. I suppose the same is true for the various states and how they fund their operations. Oregon is its own place. We don’t have a sales tax and won’t anytime soon. We rely heavily on income tax to fund our state’s services, and we have capped taxes on real property so that property owners’ tax levels are limited.

There is one other unique feature of Oregon tax law, and that is the kicker. The kicker is a provision in the Oregon constitution that requires return of income tax revenues collected that exceed the revenue forecast by more than two percent.  Oregon Constitution, Art IX, Sec. 14(3).  So in the years in which the Oregon economy hums along, many people work, and we all earn well, Oregon’s is adequately funded by tax revenues.

But what’s missing is any planning for the lean times.  They are inevitable, as anyone who is cash strapped or unemployed  in this recession can tell you.  Under the Oregon kicker, we empty the treasury in the good years and don’t set aside money for the bad ones.

It’s a policy that ignores every wisdom teaching in Western civilization. Through Aesop’s fable of the Ant and the Grasshopper, we teach our children to plan for the lean times. The same message is found in the Bible’s narrative of Joseph (Genesis:41), who advised the Pharoh to collect and save excess grain to prepare for the lean times.

I imagine that the same teachings exist in virtually ever wisdom tradition, regardless of religion, culture, or location. And if you doubt that these are lean times, come wander the streets of downtown Portland, or talk to the people who work on food scarcity in Lane County, or look at this snapshot homeless Oregonians from a day in May.  Those basics of food and shelter don’t even get us to class sizes for K-12, protection of kids in foster care, or the staggering cost of college education at Oregon’s public universities.

Fortunatley, I’m not alone in my thinking.  In this op-ed piece in today’s Oregonian, two prominent Oregon republicans, Lane Shetterly and Tony VanVliet, share their take on the need for a rainy day fund.  Interestingly, they wrote the piece before the historic vote on Measures 66 and 67.  They call for a constitutional amendment that would take excess revenue collected above the forecasted amount and put it in a rainy day fund. They point out that the concept of a rainy day fund has broad support among republicans and democrats.

It’s a breath of fresh air because it takes fiscal responsibility seriously and writes it into the constitution. They are spot on.

There are those who will say, “But it’s my money,” or “But I don’t trust the government and don’t want to give them more money to waste.” Those concerns are real, but they miss the mark. We have to plan for the days when income falls because we all know that the thin days will return.  As long as we’re committed to an income tax as the means through which we fund our state, we would do well to follow the wisdom of Aesop and Joseph and plan for the lean days.

Without changes, our seniors, kids, and those who have fallen on hard times will always be at risk in these lean days come.  We are better than all that, aren’t we?

David Sugerman

Health club waivers gone wild–why I won’t do business with Westside Athletic Club

After settling into my current schedule, I realized that I would probably work out more frequently if I joined a health club near my office. Westside Athletic Club has a location near my office in Big Pink, Portland’ s US Bank building. So I headed over to check it out. At the front desk, the peppy staff member enthusiastically endorsed my plan. And then she handed me a form that I needed to fill out and sign.

The form included a waiver of claims that appeared to immunize the health club from harms and losses caused by its fault. I told her I wouldn’t sign, and for her part she told me that she couldn’t allow me to look at the club. I asked her to tell management that they had just lost a sale. She was very polite and apologetic and promised to pass along my refusal.

So what’s the problem here, and why am I so snippy about such things?

Some legal background, first. Oregon generally enforces waivers and releases. In other words, if I sign a waiver, it will generally be enforced. There are a few exceptions, but you’re not reading this for details or even advice, so we won’t get too geeky about all this. Also, in the proper situation, I don’t have much of a problem with a waiver. For those of us who choose high risk activities like skydiving, skiing off the groomed portion of the mountain, scuba diving, and white water rafting, we have to accept that hazards exist and grievous injuries are possible. A properly balanced waiver isn’t particularly offensive in those settings.

But Westside wanted way more than that. While it wants people as customers, it refuses to take responsibility for something as simple as the safety of its club. If, for example, a Westside employee spilled oil all over a floor and didn’t clean it up, and the waiver-signing patron slipped and shattered her knee-cap, Westside would be off the hook for all harms and losses.

That’s a line that it should not cross and why I won’t do business with them. As a customer, I think I should be able to expect that the health club will keep the place properly maintained. Failing that, I won’t join a club that hides from its responsibility.

Now let’s be clear, injuries don’t happen often. As well, I’m going to guess that Westside was simply following legal advice. I wouldn’t be surprised if other athletic clubs foist the same provisions on their visitors. Still, those are excuses, and they don’t overcome the basic problem of taking responsibility for our actions. So Westside, if you want me to visit or join your health club, please offer me a deal we can both live with. I know business is tough, but that’s true for both businesses and consumers. I’m not interested in paying dues if you’re not willing to take responsibility for the safety of your club.

David Sugerman

Update on Western Culinary Institute/Career Education Corp. class action

This is an update on the Oregon consumer fraud class action against Western Culinary Institute and Career Education Corp. that I am handling with co-counsel, Brian Campf.  Lots of background here and here.  I know many people have questions about where we are on this.

We’re in the process of getting an order signed that’s the next step forward. It’s a bit of a slow process. My hope is that we’ll have the formal order entered in the next week or two and will start the process of providing notice to the class.

If you attended Western Culinary Institute/Le Cordon Bleu Portland after March 2006, you may be eligible to particpate in the case. If you haven’t contacted us, it would be helpful to hear from you. Feel free to use the contact button to find us.

I’ll continue to post updates on this site.

David Sugerman

Iraq-era veterans losing a champion in the Senate

Senator Byron Dorgan (D.  N.D.) announced yesterday that he will not seek re-election.  I’ve never been to North Dakota, and I had only passing awareness of Senator Dorgan until this summer.  That changed as a result of my work on behalf of Oregon National Guard soldiers exposed to sodium dichromate in Iraq.

Senator Dorgan has chaired the Democratic Policy Committee. In that role, he has held hearings on Army and Army National Guard soldiers’  exposures to sodium dichromate at the Qarmat Ali facility.  Those hearings have been instrumental in exposing wrongdoing by KBR and others.

Senator Dorgan has proved himself a friend of our soldiers and their families.  This is not simple bumper sticker “support our troops,” stuff.  In comments made at the hearing in August 2009, Senator Dorgan made it clear that he is motivated by the simple proposition that we owe our vets more than pats on the back.

So I read this news with a heavy heart.  Those of us who dare to challenge KBR for their misconduct have taken on a big and powerful foe. As every guy knows, when you’re in a barroom brawl, there’s nothing more welcome than a friend by your side.  Thanks Senator Dorgan for your great work. We’ll miss you as we push forward.

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.

Welcome

January 1, 2010 marks the official starting date of my new law firm, David F. Sugerman, Attorney, PC.  It’s a new year, a new law practice, and a new blog. Welcome, and thanks for stopping by.

A bit of history: I am an Oregon lawyer representing consumers in injury and class action cases.  I’ve been practicing law in Oregon since 1986. For most of that time, I was a shareholder in the law firm of Paul & Sugerman, PC. The firm ended its operations recently. Continue reading “Welcome”

NBC story on National Guard soldiers toxic chemical exposures in Iraq

Here is a link to a video of a recent NBC Nightly News’ story on the Army National Guard soldiers’ exposures to sodium dichromate while serving in Iraq. I’ve been representing Oregon National Guard soldiers on this matter. Larry Roberta, the first soldier interviewed, is one of my clients. Continue reading “NBC story on National Guard soldiers toxic chemical exposures in Iraq”