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

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

This is for all tort reform advocates, like those smart folks at the Wall Street Journal, who spout the simplistic suggestion that a loser pay rule would improve the American civil justice system. The Times Online reports on Lord Justice Jackson’s lengthy report on the United Kingdom’s civil justice system. The upshot is that Lord Justice Jackson recommends ending the United Kingdom’s loser pays rule.

Leave it to The Times to get to the heart of the matter: “The civil justice system has priced itself out of the reach of ordinary people; they face financial ruin if they venture into court and lose.”

The issue is access to justice. In a loser pay system, only the wealthy can access the courts. That is so contrary to the American way. Let’s all mark this lesson as a response when the smart folks at the Wall Street Journal start pushing for limits that treat justice as a luxury item.

David Sugerman

It’s one of those cases that causes those of us who represent consumers to shake our heads. An affluent woman who has been bleaching her hair since childhood sues an upscale salon for botched hair treatment. She seeks $50,000 in humiliation damages, plus substantial out-of-pocket expenses for hair treatment and childcare.

Deliberating for just an hour, the jury found against her by a margin of 11-1.  That’s about as quick and complete a rejection as you see in a jury trial case.

The lawyer representing the dissatisfied salon patron, Leta Gorman, is a shareholder at Bullivant Houser, a large west-coast law firm.  She  typically defends manufacturers in injury cases.  According to the news account, the lawyer defending the salon argued that this was a “frivolous lawsuit.”

Oddball cases get twisted, and I imagine this one will show up in the echo chamber of distortion. What the Chamber of Commerce and others who decry lawsuit abuse miss is this: most damage lawsuits are filed by businesses. Here, an affluent and sophisticated consumer seeking beauty in a bottle sued when things went bad. It’s fine for the Chamber of Commerce to complain, but it ought to be truthful about how only the wealthy can afford the luxury of litigation of thin cases.

For those of us who represent injured people, this is one of those eye rollers. It’s an eye roller because cases for people with profound injuries have to wait in line behind luxury litigators. It’s an eye roller because our judicial system–which is strained and underfunded–has to deal with this type of claim. And it’s an eye roller because it gives squawk box material to those who can’t discern between claims for those wrongfully injured and those who litigate simply because they can afford to do so.

For all the heat and the noise, the true story is about quiet wisdom. That wisdom came from the jury. One of the jurors, Del Shaw, was quoted in The Oregonian. His simple assessment is the real story: “We took a look at the facts and didn’t feel the facts supported the claim.” That left me smiling because it simply shows that the jury considered the evidence and made a decision based upon the merits.

In that way, the case proves what those of us who work in the trenches know. Juries generally get it right.

David Sugerman

From Oregonlive, here’s an update on HB 2726, the bill that would require chain restaurants to disclose calorie and nutrition information to consumers. The bill reportedly passed out of committee. Here’s the interesting thing. It passed out of committee on straight party lines. All the D’s voted in favor, and all R’s voted against.

Next stop, the House floor. I don’t have any idea what the vote count looks like on this one.

I have to go back to my original question on this. How could anyone oppose giving consumers more information so that consumers can make informed food choices? After all, we’re told that people need to take responsibility for their own decisions. I get that. But for every mouth that’s uttered those words, tell me how voting against more information for consumers helps accomplish this?

I’m listening for answers.

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

A new proposed law pending in the Oregon Legislature, HB 2726, would require chain restaurants to provide Oregon consumers with calorie and nutrition information on items on the menu. Onward Oregon is pushing the bill. As I’ve noted before, giving consumers calorie and nutrition information is a great idea.

Those who are critical of obesity fast-food lawsuits should be quick to hop on board.  Legislative regulation is a great alternative to regulation by litigation.  After all, if you give a consumers truthful and timely information about the food they are buying, they can’t claim that they were misled by the seller.

Some are critical of this approach. After all, we’re told, some warnings are ridiculous. True, a warning like, “Be careful, don’t hit your finger,” on the side of a hammer is goofy or worse. But when–due to its design–the same hammer can shatter into a thousand pieces and project metal splinters, you better believe that consumers should be informed.

If you’re interested in supporting HB 2726, go here and let your legislator know.

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