Yesterday, Judge Richard Baldwin ruled that Comcast Oregon’s cable TV subscribers may seek statutory damages in their pending class action. Here is a pdf copy of the trial court’s opinion: Judge Baldwin Order & Opinion re amended class cert order.  The upshot is that subscribers included in the late fee class action can seek $200, if they can prove that Comcast knowingly or recklessly violated Oregon’s late fee billing requirements.

As with other rulings in the case, it’s important to keep this in context. Judge Baldwin ruled only that the class can make the claim for statutory damages of $200 per class member. He did not rule on the merits. It will be up to a jury to decide whether Comcast knowingly or recklessly violated Oregon law.

Still, it’s great progress on the case. Of course, it raises the stakes substantially, so I imagine this means that Comcast will continue the long fight in this case that was first filed in 2004. For the present, Tim Quenelle and I are simply pushing ahead on case preparation and looking forward to our day in court.

David Sugerman

Here’s a nice summary of the case from a KGW8 news report. The story aired yesterday on Channel 8. The link is to their web version. Kudos to Anne Yaeger at KGW who did a heck of a job putting together a substantive story so quickly. Interestingly, the students interviewed are eager about their prospects. But it’s not clear whether they realize their repayment obligations and what their likely future wages are yet, as they haven’t yet gotten out into the field.

In the story, the school continues to claim that it sells entry level training. Their ads don’t really say that, though if you look carefully through their recent catalogues, you’ll find that disclaimer. But the entry level training argument is a problem.

The problem is that they don’t tell students that their training provides no meaningful advantage in getting an entry level job in the trade. Those are jobs that are available to people who have no culinary training. And of course, when you get an entry level job off the street, you don’t have high interest debts of $40,000 or more.

What’s missing here is that higher education is supposed to be about opportunities. When students take on massive debt to pursue a college or technical degree, shouldn’t they be able to trust that the school is giving them a straight story?

David Sugerman

P.S.-If you attended Western Culinary Institute on or after March of 2006 and you want more information about the case, feel free to contact us using the links on this web page. I can’t respond to questions about the case in our comments section.

Yesterday, Judge Baldwin issued his decision allowing the consumer fraud case against Western Culinary Institute to go forward as a class action. It’s a long opinion that focuses on the details of class action rules, but it also provides information on what the students claim in the case. I’ve uploaded a pdf scan of the court’s letter opinion here: Judge Baldwin ltr opinion class cert 3 Dec 2009

This is a big victory for former students of the school. Now the case will move forward as a class action.

A few things to understand about Judge Baldwin’s ruling. He certified only the Unlawful Trade Practice Act and common law fraud claims. He denied certification on the breach of contract and unjust enrichment claims. What that means is that the class action will be limited to students who were enrolled at the Portland campus of Western Culinary Institute on or after March 2006. Students who graduated before March 2006 are not eligible to participate in the class action.

The other thing is that Judge Baldwin’s ruling isn’t a decision on the merits of the case. All that he been decided is that the students may pursue the case as a class action. It will be up to a Multnomah County jury to decide the issues at a trial that will be scheduled sometime down the road.

The next steps include getting a signed order and then starting the process of giving notice to the class. If you have not been in touch with us and you’re a former WCI student who wants more information, please feel free to contact me using the links here.

David Sugerman

Wonders never cease. Here’s a blog post at the Oregon Class Action blog about the California tort reform advocate who filed a class action against the City of Sacramento for towing his illegally parked car. Can’t hardly wait to see how this one comes out!

David Sugerman

Just came across this informative article from Rust Consulting on claim rates in class action settlements.

It’s a bit geeky or at least specialized, but the issue is important for lawyers who handle class actions and judges who oversee them. And actually, it’s important to consumers and businesses, too.

The question is: When a class action settles, how many people who are entitled to recover money will actually file claims? The article correctly explains that the rates vary, but there are some factors that allow for a prediction.

The claim process is one of those misunderstood things that leads to a lot of complaints about class actions. When a class action settles, and a consumer gets a claim form that will yield $6.26, it hardly seems worth the effort. It also leads to complaints that the lawyers earned “millions,” but the consumer only got $6.26.

I suppose it’s a predictable response, but it’s simply wrong. That hypothetical $6.26 must be multiplied by the number of consumers to look at the value of the class recovery. In other words, the true measure of damages is how much did wrongdoer have to pay out?

The other thing that consumers often miss is that class settlements frequently leave unclaimed money to the wrongdoer. That’s a problem because the wrongdoer profits for every claim form not returned. That’s a good reason for consumers to make claims, as businesses that act illegally shouldn’t profit from their gains, even if those gains are $6.26 at a time. One way to think about it is that it’s easy to make millions in nickels if you simply illegally collect enough nickels. It’s also important to file claims so that we can all stop illegal shakedowns of the middle class that drag all of us down.

David Sugerman

Kudos to Public Citizen and Brian Wolfman for this update and all the hard work on an important consumer class action issue. Brian was a stalwart in getting published the National Association of Consumer Advocates “Standards and Guidelines for LItigating and Settling Consumer Class Actions.”

The updated guidelines appear at 255 FRD 215 (2009). As with the 1997 version, I imagine that lawyers and judges who are involved in consumer class actions will pay close attention to these consensus views of best practices. The Guidelines serve as a best practices guide to make sure that consumer class actions are pushed forward appropriately and settled with proper protections for consumers.

For those who don’t know, NACA is one of a handful of organizations that put consumers first.  I have been a member for several years, and I’m invariably impressed by the quality of the lawyer members of NACA and the collective commitment toward justice on behalf of consumers.

The opinion is not yet up on Lexis, and I don’t have a public domain link yet, either. But I’m looking forward to seeing it in full.

David Sugerman

Here’s a disconcerting story about anti-consumer legislation pending in California. The bill would limit consumer class actions by allowing unhappy defendants to appeal pro-consumer rulings. There are multiple levels of irony in California’s AB298.

It’s being pushed by the “Civil Justice Association.”  Turns out that the Civil justice Association is controlled by AIG, bailed out banks and big tobacco reps. George Orwell is having a heckuva of laugh over that one.

Consumer class actions are one of the few remaining methods that the rest of us use to exercise control over corporate profiteers gone wild. They provide consumers with the ability to obtain civil justice by forcing rogue corporations to refund ill-gotten profits from illegal schemes.

Automatic appeals slow cases. We’ve seen this problem in Oregon, as our Comcast late fee class action has taken almost five years to date, and it’s nowhere near over. And that five years inclued one automatic appeal already. Brought to you by AIG should be enough to kill this. But of course, that only happens if consumers make noise.

David Sugerman

No one said it would be quick or easy, and no one was right on both counts.

We’ve finally gotten an order entered certifying a class action in Martin v. Comcast. It’s an Oregon class action in which the class claims that Comcast illegally charged TV cable service late fees in Oregon.

Here is the link to the order for those who collect such things: Martin v. Comcast Oregon order certifying class action

We filed the case in 2004. We’ve been up and back to the Oregon Court of Appeals. Now that the class is certified, it’s time to push forward.

My thanks and appreciation to my co-counsel Tim Quenelle. I don’t think he quite imagined that any case could go this long when he asked me to take it on with him.

It’s one of those classic nickel-and-dime cases. Each consumer was hit for only a $6.00 late fee.  But those $6.00 late fees add up when you hit hundreds of thousands of consumers over the years.

Under Oregon’s Unlawful Trade Practices Act, the class can recover the money, together with interest and attorney fees. So while it’s been a long slog, my hope is that we will succeed in getting Comcast to cough up the money and return it to consumers who were illegally charged.

For those who are crtical of class actions, I can only pose a simple question. When a large business like Comcast illegally collects small fees, who should keep the money? Should a bad actor retain millions of illegally collected small fees, or should we do our best to make sure that bad actors don’t profit by returning the money to the pockets from which it came?

David Sugerman

For those following Gibson v. Providence, State of Oregon Court of Appeals, Case No. CA A137930, we’re scheduled to argue in front of the Court of Appeals next Thursday, April 2. The question is whether the trial court erroneously dismissed the proposed class action.

It’s been a long haul, and there is far to go. No one said this would be easy, but then that’s usually how it works. I’ll post an update on oral argument. Meantime, if you want to review a copy of the first brief that we filed for the patients, you can find it archived here. But you should only do so if you’re into the whole law geek thing.

David Sugerman

Today’s news brings this report on Comcast Oregon’s rate hike.  Kind of interesting that Comcast is raising cable rates amidst the economic meltdown that is now slamming Oregon.

At the same time, Comcast is facing a class action in Oregon over claims that it has illegally billed late fees to Oregon Comcast cable subscribers. Full disclosure: I am counsel for the class.

The most recent development in the Comcast Oregon late fee litigation is that Multnomah County Circuit Court Judge Baldwin indicated that he will certify a class. The parties are arguing about the form of the order, which is mostly an argument over the scope and size of the class. The parties are also arguing over whether the trial court should allow Comcast to seek another appeal.

The parties are scheduled for another hearing before Judge Baldwin on Friday, Feb. 27.  I imagine that sometime after the hearing, Judge Baldwin will sign an order that makes it all official, and we’ll know more about what the future holds on the Oregon illegal late fee case.

David Sugerman