Sallie Mae collections against Western Culinary Institute/Le Cordon Bleu Portland students?

In our ongoing case against Career Education Corp. and Western Culinary Institute/ Le Cordon Bleu Portland, we’re continuing our work on the appeal. Background here.

There is an interesting development that may or may not be related. We’re hearing occasional reports that Sallie Mae may be upping its collection activities.

Sallie Mae recently sued a family from the Southern California culinary school in court. We also know that Sallie Mae has been contacting WCI/Le Cordon Bleu Portland students about outstanding balances.

The team is on the lookout for cases in which Sallie Mae has filed a collection lawsuits in court against Western Culinary/Le Cordon Bleu-Portland graduates.  If Sallie Mae starts to sue Oregon culinary students in Oregon court, we want to hear about it. It could have major impact on our case and help many, many graduates of Western Culinary/Le Cordon Bleu Portland.

So this is a bit of a reach out to WCI/Le Cordon Bleu-Portland graduates: If you are sued in a collections case by Sallie Mae, please call or contact us immediately. While it would certainly be a frightening prospect if Sallie Mae sues, it may provide us with significant opportunities.

If you are sued, it is very important that you act act quickly upon receipt of the papers. Usually we have 30 days from the date you are served within which to file an appearance. So that would make quick action important.

Because of the importance of this issue, feel free to circulate this to other graduates of Western Culinary Institute/Le Cordon Bleu Portland who are facing collections from Sallie Mae.

Meanwhile, we continue our work on the case against CEC. They may have slowed down the process, but we remain confident that they will face their day of reckoning.

David Sugerman

 

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

 

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

Zippers, coffee, Twitter and very tender man parts

I don’t really have time for this. I have two briefs due this week. The first is an opposition to a motion for summary judgment in a product liability case. The second is a reply brief in our consumer fraud class action against BP for failing to disclose debit card charges to Oregon gas purchasers. And if that’s not enough, I have legislative meetings this week on consumer legislation that would help end insurance abuses by covering Oregon insurance companies under the Unlawful Trade Practices Act.

All of that is an over-long explanation of why this post is going to be quick and somewhat dirty. Too many things.

So on the Twitter, I wandered into a conversation–if you can call it that–between Nicole Augenti (@Nicole1515), a Connecticut trial lawyer, and Ted Frank, @tedfrank*, a lawyer who I understand devotes most of his practice to objections in consumer class actions. Ted also blogs at the Manhattan Institute’s Point of Law blog, a blog that is supported by the Manhattan Institute, a well-known corporate-funded think tank devoted to re-design of the U.S. civil justice system to make it more corporate friendly. “Corporate friendly” is a euphemism. These smart people reportedly funded by the Koch brothers and a number of large corporations are bent on destroying the civil justice system through radical restrictions of the right to trial by jury.They do so through a number of initiatives, with allies like The Federalist Society, think tanks, blogs, coordinated message points, etc.

They are doing this through “tort reform”–an insidious notion that they know better than juries whether corporations should be held responsible when they misbehave. They are doing so through mandatory arbitration to ensure that consumer and employee claims never make it into the courtroom. And they are doing it through allied media and public relations firms.

So against this backdrop, Mr. Frank is called out for this particularly inane blog post. Ms. Augenti comically tweets: “So, Ted Frank (TORT REFORMER!) is mad he can’t sue for penis zipper injuries?? http://www.pointoflaw.com/archives/2013/03/zippers-and-mcdonalds-hot-coffee.php … ” The Twitter back and forth starts with a very smart, accomplished intellectual of the caliber of Ted Frank accusing Ms. Augenti of illiteracy and wondering whether she isn’t a walking malpractice trap.

But the point, which he doesn’t want to address, is how messed up Mr. Frank is on the law of product liability. He is too busy taking swipes at another pal of mine, Susan Saladoff, for her seminal work on the great documentary, Hot Coffee, the Movie.

So now let’s get to the errors of Mr. Frank’s analysis. That’s why I am writing this, after all.

According to Ted Frank, if Stella Liebeck, the consumer in the McDonald’s case, can sue because she burned herself on hot coffee, so can men who suffer injuries to delicate organs (informally referred to as the Johnson, the little brain, the schlong; more formally known as the penis) when using zippers.

How does Mr. Frank get to the schlong injury claim? He oversimplifies and misstates the law of product liability.  According to Mr. Frank, Susan Saladoff, who had a great run as a capable Oregon trial lawyer, advances the theory that product liability claims exist anytime someone or many people get injured by a product. He knows that he has oversimplified Susan’s point. She doesn’t say that.

What Mr. Frank ignores is that the consumer must prove that a product is unreasonably dangerous to pursue a product liability case. “So coffee is hot and everyone knows that,” is the prevailing knock on the McDonald’s case. What people don’t realize is that the coffee temperature was not hot, it was HOT. McDonald’s sold it at a temperature that caused major, horrible burns when spilled on humans. And they did it knowing that this was a problem, based on the hundreds of prior injuries.So it’s not that coffee can burn, but that McDonalds set the temperature at an unexpected and unreasonably high temperature that is a danger.

And now Mr. Frank wants to talk about zipper injuries to the schlong. So let’s talk. Here is how it works. If the manufacturer sells a dangerous product and the danger could be eliminated by design, then the manufacturer is responsible. After all, it is up to manufacturers who profit from selling products to take steps to avoid needlessly injuring consumers. I assume even the Manhattan Institute agrees with that basic principle, but maybe I am wrong.

So if a manufacturer uses razor sharp edges on his new, hip jeans, and Mr. Frank slices off his Johnson, he can sue. I imagine every guy would agree that such an injury would be horrifying…. But apart from the sensitive topics, the consumer–here Mr. Frank–must prove that the product was dangerously defective, usually by design. Mr. Frank knows this. He simply does not like that such cases exist.

Worse, he chides Saladoff and those of us who dare to call out corporations for misconduct by misstating what we must do to prove our cases. It’s not enough to show that 700 or thousands are injured while using a product. While that fact is interesting, and it may bear on what the corporation should have known, it does not prove the case. The 700 instances in McDonald’s coffee litigation was part of the factual showing, but if that’s all that was proved, the case would not have gone to the jury.

Two things gall me about the Manhattan Institute and their ilk. First, they invariably think they know better than juries. Ted Frank is a smart guy. I mean that genuinely and in a non-snarky fashion. He is accomplished, well-educated and highly credentialed. That said, he is not smarter than a jury. No single person is.

I say that as someone who has won and lost case. I’ve won very big verdicts, and I’ve lost in heartbreaking fashion. But at the end of the day, I am prepared to accept the judgment of the jury. That was the genius of our founders. It is what is enshrined in the Seventh Amendment. In my experience, those who try cases on both sides recognize the wisdom of the jury. This is true of my colleagues who represent corporations in the courtroom.

Along those lines, I would be surprised if Mr. Frank or anyone else at Point of Law has much jury trial experience. (Open invitation: Please let me know if I am wrong.) But even so, they are smarter than juries?

I said there were two things that galled me. The second is something I’ve seen many times in the decades in my law practice. A person is injured,  a consumer is wronged, a family is harmed. The injury may be a result of something as simple as a dangerous, inattentive driver causing a wreck, or a corporation wrongfully taking money to which it not entitled. Or it may be something as complicated as injury from toxic chemicals. The injured person often looks at me and says, “Well, I’m really injured, not like so many of those people you hear about….” I try to remain neutral and gracious and ultimately attribute it to an old adage: Comedy is when you slip on a banana peel; tragedy is when I slip on a banana peel.

So all this is the long answer to Ted Frank and why from time-to-time he gets push back from me on Twitter. Ted is obviously a true believer. But he is wrong to believe that he knows better than the founders who gave us the Seventh Amendment and more than a group of jurors who listen to the evidence and render decisions.

___

*Was going to provide a link to Ted Frank’s Twitter feed, but apparently he blocked me. Sadz, as the kids say.

Update: Le Cordon Bleu Portland/Western Culinary Int. and Career Education Corp case on hold for appeal

From a recent blog comment and email, I realized that we did not update our blog on this case. The Court of Appeals denied our motion to dismiss. As a result, the case is on hold, and the January trial date is off.

The news came while I was in trial on Bixby v. KBR and in the tumult of that case, the need to update readers here fell of my radar. My apologies to all who are waiting for news.

The Court of Appeals’ denial of our motion to dismiss means that we must go through the long process of appeals. My guess is that we’ll have the case briefed and argued this year, but a decision and final return to the trial court might not happen until 2014 or even possibly later.

The appeal is over whether some people in the class–those who signed later enrollment agreements–must go to arbitration. It’s particularly aggravating because approximately half the the class who signed early versions of the enrollment agreement are not impacted by the appeal.

We are disappointed, of course. This early appeal appears to be part of Career Education Corp’s plan of delay. While the case may be delayed, the legal team remains fully engaged and committed. Our day will come.

Please let us know if you have questions. But keep in mind that we don’t provide legal advice via blog comment.

David Sugerman

Moving to dismiss the appeal brought by Career Education Corp and Western Culinary

For those interested, I’m posting our recent motion to dismiss and motion for reconsideration in Surrett v. Career Education Corp., our consumer fraud class against Career Education Corp for Western Culinary Institute/Le Cordon Bleu Portland students.

We had cleared all pretrial motions and were steaming toward our January trial date when the Career Education Corp defendants filed an appeal of a ruling made by the trial judge. The problem with that is that if the appeal is allowed to go forward, we will lose our trial date. We’ve asked the Court of Appeals to dismiss the appeal. Barring that, we’ve asked the Court to release those class members who aren’t affected by the appeal from the holding pattern so that they can go to trial.

Lots more about it than all that. But that’s the short version.

It’s dry and complicated, but it gives those who are in the class some idea of what the legal team is up to. Here it is in PDF: Plaintiff-Respondent Surrett’s Petition for Reconsideration and Motion to Dismiss Appeal

We will update when we hear from the Court of Appeals. Meanwhile, know that the fight goes on.

 

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.

Update: Consumer fraud class action Career Ed Corp and Western Culinary Institute

In blog comments, we have been asked for updates on this case, which is below. A few things. First. A better source of quick update is our firm Facebook page. Assuming you are an FB user, simply go here and like the page, and you’ll get more timely information. Second. We have to be mindful of  what we post here. It’s a public page. No doubt that counsel for Career Education Corp and Western Culinary/Le Cordon Bleu Portland read this blog–greetings, Mr. Nylen–so we act accordingly.

And now to the specifics. Last Friday we appeared in front of Judge Baldwin for a long hearing on defendants’ motions to decertify the class and for summary judgment. For people keeping track at home, if granted, the first motion would end the class action and require everyone to go forward individually. If granted, the second motion would end the case, with a victory for the defendants.

Judge Baldwin did not rule from the bench and instead took the motions under advisement. This was not a surprise–there were many pages of pleadings and exhibits to review. It’s a big job digesting all of it.

I handled oral argument for the class, which went approximately two hours. While it’s not a particularly good predictor of outcomes, I felt good about how oral argument went. The defendants have since filed another motion, asking the Court to take into account a recent decision in New York dismissing a law school fraud class action. We’re not particularly impressed with the new argument–New York law is different. So are law schools.

While there is no fixed deadline, I would expect to hear back from Judge Baldwin by early or mid-April. He instructed the sides to come up with a proposed schedule for the rest of the case as well.

Meanwhile, we are preparing for trial of this large and complicated case. It’s been an interesting ride over the last four years. The legal team for the class has put in thousands of hours of work. (Yes, you read that correctly.)  The case continues to present many challenges. Our task remains to overcome each obstacle and get the case to trial.  No one said this case would be easy, but I remain pleased with our progress. And while it may look like nothing is happening, behind the scenes we continue to push forward to our day in court.