BP ARCO class action: A straight-up win for consumers

On Friday, January 31, 2014, the jury returned its verdict in favor of BP Oregon ARCO and am-pm minimarket gas purchasers. The jury found that BP recklessly violated the Oregon Unlawful Trade Practices Act. The 2.9 million class members are each entitled to make claims for $200. Media reports are here (OregonLive), here (KOIN-6), and here (KATU-2 pretrial)

Yes, that is a $580 million result. It is fair to say we are pleased. And proud.

We’re getting a lot of questions. I’ll try to answer some here.

So what’s next?

We are due back in court on March 7 to discuss the next round of proceedings. In the near future, we’ll start a claim form process. It’s really important that you file a claim form once the claim process opens. We do not know yet when that will happen, but we’ll note a number of resources for you here.

How do I stay informed?

We’ll continue to post updates here on this blog. We also add updates on our Facebook page. If you’re a user, like us there, and you’ll get updates and links back to the longer updates here.

You should also register with the official information page to receive official update information.

Do I need to take any action to protect my rights?

If you meet the class definition, you do not. We don’t know what requirements the court will set to prove claims. If you have access to receipts or bank records showing a gas debit card purchase with a transaction fee at Oregon ARCO or am-pm stations, it would be wise to save those documents. It may help you prove your claim.

When will consumers see their money?

Good question. BP has announced its intention to appeal. While the claim process could start as early as March (or maybe later), an appeal could string this out for years. That is why registration is important.


A few parting thoughts

We are deeply appreciative of the service provided by the jurors who served for three weeks in the trial in front of Hon. Jerome LaBarre. The entire case shows that a small group of determined consumers can take on a corporate giant like BP and have a fair trial in Oregon.

Further updates?

Well sure. When we know more, we’ll post it.

David Sugerman

Oregon Court Confirms Jury Verdict for Oregon Qarmat Ali Veterans

It’s a good day for the Oregon Qarmat Ali veterans.

Today,  the Court confirmed the jury verdict in favor of the first 12 Oregon Army National Guard veterans who suffered contamination injuries at the Qarmat Ali Water Treatment Plant in Iraq in 2003.  Here is a link to the PDF opinion:  724 – opinion & order re trial

Judge Papak denied virtually all of KBR’s motions for which it sought a new a trial. Judge Papak left intact each veteran’s $6,250,000  punitive damage assessment and reduced each veteran’s compensatory damage assessment from $850,000 to $500,000. Judge Papak reduced those damages based on a case that came down after argument, Howell v. Boyle, 353 Or. 359, 298 P.3d 1 (2013). Just so we’re clear, the veterans disagree with the reduction part of Judge Papak’s legal ruling.

In any event, this is a great day for the veterans and their families. They told their stories to the jury, and the jury did justice. After a detailed, independent review, Judge Papak confirmed the jury’s findings.

For my part, I could not be happier for these vets and their families. When our system of justice works, it is a thing of beauty.

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

KBR’s concealment of discovery

Yesterday in our Qarmat Ali Vets case against KBR, we filed a motion for sanctions. The filing is here (pdf). The Memorandum (toward the bottom) lays it out in detail. Turns out that KBR concealed critically-important information about the Qarmat Ali Water Treatment Plant and its extreme level of contamination. They knew about that in 2002 or early 2003, long before Oregon Army National Guard veterans went into the site.

Today’s Oregonian reports the story here, including rather colorful big words (“histrionic” and “hyperbolic”) bandied about by lead counsel for KBR. One wonders why KBR hurls big words and accusations when they simply could have avoided this problem by coming clean.

I suppose we could respond in kind. Not going to happen because not much is served by doing so. For readers who might wonder about the lack of response, let me just say that this is neither the time nor the place. We are scheduled for our first trial in Oregon in October. Fair to say I am looking forward to it. I hope that’s not too histrionic or hyperbolic.

Sen. Santorum and the hyporcisy of damage caps

I’ve heard so much about the Santorum surge and how he is a man of principle–a values candidate, a different kind of politician.

Senator Santorum has been part of the echo chamber for caps on damages in medical injury lawsuits. He hits all the rhetoric about how caps are necessary because of frivolous lawsuits, rising health care costs, etc. According to Senator Santorum, Congress knows better than a jury the value of all patient injury cases, and no patient should ever recover more than $250,000 in non-economic harms when the defendant is a doctor or a hospital.

Yes, that includes the drunken doctor botching a surgery, sex abusers in the exam room, and hospitals that dump patients on the streets. Never more than $250,000 because Senator Santorum and Congress know better than a jury.

So imagine my surprise when a colleague in New York, Andy Barovick (@AndyBarovick), posted a link on Twitter to a news report about Senator Santorum’s wife’s malpractice claim against her chiropractor in which she sought $500,000 in non-economic harms. For those playing at home, that’s twice the amount of the cap Senator Santorum and Congress want to impose on the rest of us.

Here’s the corrected link to the news report (second video)Well worth watching.

Senator, On the off chance that you or your staff are reading this: Shame on you.

Update 7 Jan 2012: Law blogger, Eric Turkewitz, New York Personal Injury Law Blog, takes a different approach in defense of Senator Santorum here. While he makes a good point that Senator Santorum is not responsible for his wife’s choices, he misses the mark. Senator Santorum participated in the case, testifying as a damages witness. In the linked interview (above), Senator Santorum claims that the verdict included a substantial amount of economic damages that would not be subject to the cap. The news report debunks that excuse and lie. At bottom, Senator Santorum knows from personal experience that the proposed cap is wrong because one size justice does not fit all. We need to trust juries to do what is right and not put in Congress’s hands the ability to determine damages in all cases.

On Veterans’ Day, let’s hold KBR accountable

So here is what is happening in my law office today, Veteran’s Day, 2011: Kevin Stanger is giving a deposition in Bixby v. KBR, the case in U.S. District Court here in Oregon where veterans dare to call corporate giant KBR to account.

Mr. Stanger is one of the vets sickened by exposure to sodium dichromate at the Qarmat Ali Water Treatment Plant. The Vets dare to demand an accounting and justice from KBR.

In 2003, Mr. Stanger was in the command unit of the Oregon Army National Guard. He was one of the many soldiers who relied on KBR to be straight about the dangers at Qarmat Ali. KBR failed to do its job, and now Mr. Stanger and many of his brothers in arms are sick.

The vets’ depositions are grueling. Each vet sits in our conference room for a day. answering KBR lawyers’ questions under oath. I’ve had to apologize to the guys–it’s a lousy process.

Even so, there is some beauty and irony in Mr. Stanger’s deposition today. Our soldiers swear to defend and protect the United State Constitution when they take their enlistment oaths. When they enlisted, I doubt any of the Qarmat Ali vets thought for a moment that they might be the ones who needed their constitutional rights to trial by jury. Thankfully, that right endures because of each veteran’s commitment to the constitution.

While Mr. Stanger is giving his deposition, I am head-down working on our opposition to KBR’s latest motion to have the case thrown out of court. The Vets’ legal team’s hard work on this Veterans’ Day is all that we can give toward repayment of the vast debt owed to our veterans. It is not enough, of course, but I hope that it is a modest start.

 

Reviving the plutocracy–U.S. Supreme Court ends consumer class actions

 

A win for the plutocracy*

Yesterday’s decision in AT&T Mobility LLC v. Concepcion represents a breathtakingly bad opinion that does profound harm to consumers. It’s a bit geeky, but the takeaway is that this is a huge win for the rich and powerful.

The problem-One of the favorite great business abuses of consumers is the nickel and dime charge. It’s no doubt happened to you. Your bank, credit card company, phone provider, utility, car dealer or cable company has incorrectly charged you a few bucks. Maybe it was a one-time $10 fee on your checking account, or maybe the cable TV company illegally collected a six dollar late fee. But of course, in this era of massive corporate sizing, you are one of a million customers. So at the same time you got billed ten bucks, so did a million other customers. And zotz…just like that…the bank has collected $10 million illegally from its customers.

Here is the tally for those keeping score at home: Bank illegally enriched $10 million. Consumers hosed. That’s why consumers have class actions. With capable counsel and a willing representative, consumers had the tools to fight the nickel and diming problem.

The ruling: The Court effectively ended future consumer class actions with yesterday’s decision. The Court broadly interpreted federal preemption under the Federal Arbitration Act. The Federal Arbitration Act requires courts to enforce valid arbitration agreements. State courts have been ruling that arbitration agreements that limit consumer remedies and ban class actions are not valid under state law. The U.S. Supreme Court decided that those state law rulings were entitled to no deference and were of no effect. Here is the bottom line: No state law may prevent a corporation from: 1) requiring arbitration of all disputes between the consumer and the business; and 2) from prohibiting class actions for those disputes.

What it means for consumers. The problem is that now there will be no class actions for nickel and diming cases, so when a bank, cable company, cell phone provider or car dealer illegally charges a million customers $10, their arbitration clause will be upheld, and consumers will not be able to band together into a class to recover the money.

This will take place soon with emails and letters from cable companies, credit card providers, banks, cell phone companies and the like. It will start with revisions to your credit card agreements, cell phone terms and conditions, and cable terms of service. Buried in that long document will be a change in terms that will add or change the arbitration clause. They will all contain class action bans. Thanks to the Supreme Court, they will likely be enforceable.

Consumers have now been stripped of their abilities to enforce state consumer laws by an over-zealous Supreme Court. Consumer protection will stand and fall on state regulation and state enforcement. Have you seen the state budget lately? I’m sure there’s plenty of extra cash available for consumer protection enforcement. Even with those states that can afford enforcement, the Supreme Court has forced states to increase regulation if states want to have consumer protection. Because God knows–or at least the Roberts Court knows–that private enforcement by consumer class action lawyers is bad for business.

We will either see more regulation, or–more likely–we will see no control. Most businesses operate rationally. If you tell someone that ripping off consumers for $10 million may subject them to a class action case that will cost them that much or more, they will act to avoid facing that liability. But if bending the rules gets you $10 million without consequences, we all know how it ends.

Load up the troughs and get out of the way. Those hogs are hungry!

It’s a win for the plutocrats.

____

*Plutocracy: “[Gk ploutokratia, fr. ploutos wealth] 1: government by the wealthy 2: a controlling class of rich men.” Webster’s New Collegiate Dictionary, p. 878 (1979)

 

Smoking gun in toxic injury case against KBR and Halliburton

In today’s Oregonian, Julie Sullivan reports here about a document provided to the soldiers in discovery that is one of those classic smoking guns. In our case, Bixby v. KBR, KBR and Halliburton claim that they didn’t know about the sodium dichromate until late July or August, they claim that they told the Army immediately, they claim that they never used sodium dichromate, and they claim that no one was injured from the exposure.

Against those claims, this pdf document,  Team RIO Mtg Min 02 Oct 2003 MCM00739, tells a very different story. The document is a summary of a meeting in Oct 2003 of members of Team RIO (Restore Iraqi Oil). Representatives from KBR, the Army Corp of Engineers (“USACE”) and Iraq’s Southern Oil Company (“SOC”) were discussing the sodium dichromate contamination of the Qarmat Ali Water Treatment Plant.

Qarmat Ali is where our troops provided security to KBR employees as they worked under their secret, no-bid, $7 billion, cost-plus contract to rebuild Iraqi oil production. The document raises a few questions.   No doubt the soldiers’ legal team will be exploring those questions when we get to trial.

Thinking about our veterans today

I’m not a flag waver.  Never have been. Like the vast majority of Americans, I have treated Veterans Day as one of those days in the fall that I might have off from work. No thought to the meaning; no thought to the sacrifices that lie beneath.

That changed in a profound way last year when I agreed to help sick soldiers and vets from the Oregon Army National Guard’s 1/162. These men were poisoned by exposures to sodium dichromate while providing security to KBR and Halliburton employees. They came back hurt and sick.

In working on their legal team, I’ve come to learn about the soldiers and vets and their families.  Their sacrifices are so great. They served for all the right reasons.  And now they are wounded and hurting.

Seems to me that every vet deserves our appreciation today. For those who have come back from service broken and hurt, we the people owe them.  And for those who are broken and hurt because a greedy contractor violated safety rules in pursuit of profits, well, let’s just say that I’m doing my best to make sure your day of reckoning comes.

Thanks vets.

KBR update: Halliburton joined in Bixby v. KBR

Yesterday, we filed an updated complaint in Bixby v. KBR. Here’s a copy Bixby Fourth amended complaint. The new complaint adds Halliburton defendants.

For those interested, here’s what happened. The legal team representing the sick veterans made Freedom of Information Act requests to the U.S. Army. It took a long time to get the requested documents, but we did. Once we reviewed them, we learned that Halliburton had been at the site pumping water at Qarmat Ali.

Additional documents produced at the same time suggest that Halliburton and KBR were actually bringing sodium dichromate to Qarmat Ali and using it for water pumping. That would be a big additional problem for them.

There is much more to the update, but I wanted to post this for those who are interested.