Most of us have no trouble seeing the divide between cars and bikes from both sides, as most of us are both cyclists and drivers. Sure, there are a few purists on both sides. And among the purists, there are even some nut cases.

I’ve used that label in the past freely, but now it looks like the question will get its day in court. Story today about the motorist charged with attempted homicide in Multnomah County. It seems that Johhny Eschweiler may have gone all mental in a road rage incident.  According to the news report, a near miss by the driver led the cyclist to confront the driver shortly after. Apparently, Mr. Eschweiler then tried to kill the cyclists.

At least, that’s the implication, because his attorney indicated that he will plead guilty except for insanity defense.  I’m no expert on criminal law, but I assume that means more than road rage.

It’s tough on the roads. Despite Pdx’s great rah-rah rep as a bike friendly place, cyclists are exposed in most parts of our beloved city. We’re at the mercy of behemouths out there.  And of course, those of us who drive have had to dodge cyclists doing amazingly stupid things, like the guy who blew through the stop sign in front of me yesterday on his bike, carrying bags, no helmet, maybe an i-pod…. Thanks for that scare, pal.

If you find this annoying because you’re on one side or the other, know that I sit on both sides. I ride, I drive, and I represent cyclists and drivers.  Still, road rage is a killer. Maybe the lesson here is that we can all stand to take a deep breath and try to share the road?

David Sugerman

Kudos to MSNBC’s Red Tape Chronicles for reporting again on a quiet but important consumer issue.  As the good people at Public Justice explain, the U.S. Court of Appeals reversed a federal court’s dismissal of a claim brought against a who’s who of credit card companies, claiming that they colluded to require subscribers to take to arbitration any dispute with each company. (Public Justice posted a copy of the case, Ross v. B of A in pdf; you’ll find it in the linked post.)

As I’ve noted before, the problem with arbitration clauses isn’t arbitration, as much as the limitations on claims and rights that consumers face in that forum. In credit card cases, for example, a common feature of the arbitration clause is that it prohibits class actions.  When a class action ban is enforced in a credit card case, it gives free license to banks to rip off small amounts from millions of consumers. When a credit card company dings you five dollars illegally, you simply can’t afford to do anything about it by yourself. And if you’re one of five million card holders, congratulations, the bank pulled in $25 million illegally and did so simply by making it impossible for consumers to enforce their rights.

So this case–which is in the early stages–may lead to a re-balancing. After all, if the banks got together to collude in a way that prevented consumers from opting out of arbitration clauses, they should be held to answer.

David Sugerman

So this is last week’s news, but it’s important. As was widely reported, the Senate killed amendments to the Equal Pay Act. I’m only getting to it now because I was away last week.

Here’s some background on the Lebetter case, the horrible U.S. Supreme Court ruling that made this an issue. The gist is that women who get paid less than men must file their discrimination claims within 180 days of the first pay-setting act, or their rights to pursue claims are lost.

Interesting study in Senate conduct. For example, Senator McCain opposed the bill because it would, “open us to lawsuits.”  Sorry, but I have to call you on that one, Senator.  The law requires equal pay for equal work. Lawsuits happen only when employers fail to comply with anti-discrimination laws.  Or to simplify: pay equally, and you get no lawsuit.  So what you really meant was, “This change would mean that all employers who discriminate in their pay practices would have to face the consequences of illegal discrimination.”

Kudos to Oregon Senator Gordon Smith who correctly saw this as a non-partisan issue and broke with his party to vote in favor of the change. I periodically disagree with Senator Smith, but here I think he did the right thing. I would be remiss in failing to recognize his courage in doing so. I suppose some might suggest that Senator Smith voted in favor of the changes only because he faces a tough re-election in a blue state. I don’t particularly care how he got there. He did the right thing here.

My guess is that the opponents, which is to say most of the rest of the Senate Republicans, are playing with fire. The outcome is that women who are paid less than men for the same work have a very short time window for filing claims. Either the Republicans are encouraging people to file claims early on, or they are assuming that women don’t care. Bad message either way.

David Sugerman

This news article seems so appropriate for an Earth Day item. The U.S. Attorney in Oregon announced a major victory in a case against a tenant of our own local port. That’s right. The port, a public body, leases a portion of the Port of Portland to a company called Kinder Morgan.

Kinder Morgan imports and exports stuff. Tons of stuff.  Stuff that gets in the river but should go to toxic waste dumps. Stuff that accumlates in piles. Stuff like potassium chloride or potash.

Ships hold a lot of this fluffy stuff. Rail car loads full of stuff disappear into these ships. As the ships go down the river, and out to sea, there is a problem if the stuff is spilled into the ocean. There is also a bigger problem if it is intentionally piled on deck and washed overboard.

Well, it ends up one heroic long shoreman in town got tired of seeing the stuff mishandled. In at least one case (that we know of at this time) Kinder Morgan personnel allegedly piled stuff on the deck, not in the holds. Then, when the ship got down the river, the crew simply washed the potash off as the ship entered the sea.  At least that is what the U.S. Attorney felt it could prove.

There were witnesses. There was proof.  The charges accused the company of violating laws prohibiting ocean dumping.   So much proof that the company actually pled guilty!
Now they must pay a little bit. The total fine… $240,000.

Oh and in the interest of full disclosure, I previously filed and settled a federal case on behalf of the Oregon Center for Environmental Health that accused the same folks, Kinder Morgan, of violations of the Clean Water Act. To settle that case we required that Kinder Morgan achieve dramatic reductions of the emissions of soda ash from the facility at Terminal 4 here in Portland. That made my clients feel that we accomplished something for the environmental protection of our neighbors in North Portland and elsewhere.

Here is a link to the little story in the paper.  link

Next time you think no one is looking, remember folks like longshoreworkers have eyes. And they know whom to call.
Earth day is just a little sweeter this year. Hope you enjoy it.

David Paul

PAUL & SUGERMAN, PC.

Somehow I’m not surprised. But this report summarizes a new study indicating that employers fare better than employees when an arbitration result is challenged in court. The author describes the employees’ chances in arbitration reviews as “snowballing futility.” Nice phrase; horrible condition.

Congress is set to revisit the mandatory arbitration system abuses. Those who benefit from mandatory arbitration describe it as a fair, cheap, fast, less formal dispute resolution system. It’s often more expensive. Sometimes it’s faster, but often not. Whether arbitration is quicker depends on the speed of the various States’ court systems.

But the real lie is that it’s fair. While that is true at times, there is a perception–based on data points like this one–that it’s closer to a ring toss game at a carnival. What looks to be a fair and even chance at taking home that big teddy bear is just an illusion.

David Sugerman

One of the criticisms of class actions is that often they lead to little real benefit for consumers. Often, that criticism isn’t very accurate because consumers who suffer small economic injuries aren’t going to see much benefit individually. But taking money from the wrongdoer penalizes them for misconduct and restores the money lost–even small amounts–to consumers.

But one of the problem areas is coupon settlements. In a coupon settlement, consumers who are part of a class receive a discount on future goods or services as part of a settlement. Sometimes that’s an okay outcome when, for example, the rip off is done on low-cost commonly used goods, like–say–gasoline. Or if the coupon can be redeemed for cash, then that’s fine, too.

But when the coupon gives a discount on a high cost item, that’s generally bad. And that takes us to the recently announced Ford Explorer settlement in California. In that class action, consumers who bought Ford Explorers can receive a coupon for $500 for future purchases of Ford Explorers.

While I don’t have all the details on the settlement and have no first-hand knowlege of the case, that seems like a lousy outcome. If the coupons are redeemable for cash or if they can be sold, that’s not so bad. But if they can only be used by buying a new Ford Explorer, that’s one of those class settlements that doesn’t do consumers a lot of good.

There are times when coupon settlements make sense. And maybe more information would lead me to think differently about this. Still, it’s got a kind of smell to it.

David Sugerman

ps-I’ll be out of town next week, so things may slow on Davids’ blog for the week. Though I guess they have an internet in that town, too.

Happened sooner than I expected, but today Sallie Mae’s CEO predicted an impending train wreck. Sallie Mae lost $104 million in the first quarter, reportedly due to drying up funds. My guess is that this is going to wreak major havoc on the trade-school-for-profit industry. And while I’m no industry analyst or smart guy, I can’t help but wonder if there’s going to be a double whammy. Maybe Sallie Mae sold all the paper after it wrote a bunch of high interest student loans, but some entity is holding the bag. Students graduating $50,000-100,000 in high-interest debt are coming into a dismal economy. And worse, many have attended notorious culinary programs that qualify them for low-paying kitchen jobs. So what happens when student borrowers start to defer or even default on their loans? So the private trade-school-for-profit industry seems to have made out pretty well in this deal. They got their money. Maybe I’m missing something, but it seems like the students and lenders are left in a tough position. David Sugerman

Great piece on the recent closing of a trade school for profit that left students holding the bag. New America Foundation’s Higher Ed Watch chronicles the closing of the Silver State Helicopters school in California. Higher Ed Watch makes it clear that this is simply one example of a much bigger problem. Looks like the California Culinary Academy case and our own Western Culinary/CEC case fit into the same framework.

Good to know that Higher Ed Watch is taking a broader view of the problems.

David Sugerman

Interesting brouhaha reportedly brewing over new ethics rules taking effect. It seems that the Oregon legislature voted to apply long-standing ethics disclosure rules to local government officials, and some are walking away angry, or at least questioning the wisdom.

I haven’t reviewed the ethics rules first hand, but according to news reports, they require disclosures of government officials’ sources of income (but not amounts), business ownership interests, adult family relatives, and property owned within the jurisdiction. The theory behind the disclosure requirements is that we who are mere citizens would like to know that the multi-million dollar consulting contract or controversial zoning change isn’t quietly benefiting your family or your pocketbook.

Some are objecting to what they see as an invasion of privacy. I have to say that in this era of the internet, computer data, and domestic spying, I have grown more concerned about privacy concerns. But even so, I don’t think these disclosures are problematic for a couple of reasons.

The whole government office thing is a privilege and not an entitlement. For those who are unhappy with the disclosures, the right choice is to pull a Johnny Paycheck (I’m dating myself–country and western anthem, with the famous chorus, “Take this job and shove it. I ain’t workin’ here no more.”) or to not seek office. The disclosures here provide a means for ordinary citizens to monitor government officials’ decisions. Transparency provides for clean government, and for that reason, it seems to me that this is the right thing.

David Sugerman

On his U.S. visit, Pope Benedict XVI took pains to publicly declare his shame and embarrassment over the Catholic Church sex abuse scandals.  I have not handled any of the priest sex abuse cases, but I’ve watched them with interest because I’ve handled my share of other sex abuse cases by people in power.

The good part of this is that a reckoning happened, though it took decades and came too late for many who survived the horror of childhood sex abuse.  The reality is that this problem did not magically appear out of nowhere. The complaints about priests were made for years, and Church officials sheltered and shuffled those who had been the subject of complaints.

The reality is that it took lawsuits from within the civil justice system to visit shame and embarrassment upon the Pope.  I suppose that it’s human nature to deny and avoid the responsibility for causing horrifying injuries. Still, but for these lawsuits, we would be living in a continuing era of silence.

When people rant about the evils of the civil justice system, I always want to ask how they think the dark secret of church sex abuse would have been exposed without our system of justice.  Because if they have an answer, I surely want to know.

David Sugerman