Catching up some more…can one blogger ever go on vacation?! Here’s a neat piece from the Oregon Supreme Court on Bill Sizemore, racketeer.  It’s a court opinion, so a lot of it is in legalese. But there are sections worth lifting from Justice Balmer’s opinion for the unanimous court:

“A jury found that defendants–a political action committee and a nonprofit corporation controlled by the same individuals–engaged with others in a pattern of racketeering activity, as defined in ORICO, by forging signatures to qualify two ballot measures for the 2000 general election and by filing false statements with the state from 1998 through 2000 concerning their expenditures and contributions. The jury also found that defendants’ illegal conduct injured plaintiffs–two labor organizations–that spent substantial amounts of money opposing the ballot measures. The jury determined that plaintiffs had suffered damages of approximately $840,000….”

The Court goes on to explain that a jury found that an enterprise that included Bill Sizemore engaged in racketeering. Mr. Sizemore–for those who don’t know–makes a living submitting poorly written and confusing initiatives to Oregon voters.  Turns out he does this by way of fraud and forgery.

As the Court explained, Sizemore’s group, Oregon Taxpayers United and the rest of the defendants, did not, “challenge the jury’s findings that they did, in fact, forge sponsorship and petition signatures or that OTU-EF submitted false reports to the Attorney General regarding its charitable activities.” Instead, the defendants made a number of technical arguments that the Oregon Supreme Court rejected.

So maybe now Bill Sizemore, Racketeer, becomes the name rightfully attached to all these horrible-idea initiatives. For years, I’ve had a sense that some people were using the Oregon initative process in inappropriate ways. But it’s only as a result of this case that I’ve come to understand that Oregonians are being played by a bunch of corrupt racketeers who are intent on hijacking our initiative system.  There ought to be a law.

Kudos to the people who pursued this case and shined a light on Bill Sizemore, Racketeer. The legal team handling the challenge includes a number of friends who should be proud of their great work for Oregonians. Two of the lawyers, Mike Morris and Gene Mechanic, are old friends who do top-flight work.  It’s particularly gratifying to see that they nailed Bill Sizemore, Racketeer. Maybe this is a lesson to Bill Sizemore, Racketeer that his days of pushing his corrupt agenda on us are coming to a close.

You can be a part of saying no more to Bill Sizemore, Racketeer.  Next time you see a petitioner circulating one of those initiative petitions, be sure to ask whether Bill Sizemore, Racketeer is involved.  And if he is, tell them that we don’t do business with Bill Sizemore, Racketeer.  And then don’t sign. Because I imagine that you agree that there’s no place in Oregon for Bill Sizemore, Racketeer.

David Sugerman

I’m totally transfixed by news reports on the Craig Berkman trial. According to this report, Mr. Berkman admitted that he falsified his personal financial statement. It wasn’t one of those tiny little white lies, either. Apparently, he circulated financial statements showing his net worth to be $25 million when he was actually $5 million in debt.

Short version backstory: Craig Berkman is a former Oregon guberntorial candidate who lived the good life as a way wealth investment hotshot. Apparently, that living came either from self-lending made without investors’ knowledge or from outright theft. (Or maybe it’s somewhere in between?)

There are a number of other misstatements set forth in the article, too. But let’s not rush to judgment. Mr. Berkman apparently still denies that he stole money, claiming, instead, that the borrowed it and paid it back with interest.

One of the striking things about the news report is that it shows that it took a lawsuit to get to the bottom of his dealings. Until lawyers at Bullivant Houser filed a lawsuit, the investors couldn’t get the records that sheds the light that forced Mr. Berkman’s admissions.  I wonder what the story would be today if the lawyers for the investors hadn’t dug deep to get the records?

Can’t wait to see how this one turns out, but if I had to bet money–and I don’t–I wouldn’t be betting on Mr. Berkman here. At least not from what I read in the press.

David Sugerman

Just announced today: The Oregon Attorney General’s office led the way in a multi-state settlement with Merk over its marketing of Vioxx.  The settlement includes a payment of $58 million to the participating states. As well, the settlement requires Merk to get pre-approval of its advertising from the FDA.

Merck aggressively promoted Vioxx in direct consumer ads. Based on the Oregon press release, it looks like Merck’s marketeers may have been a tad…uh…aggressive.

No word on how the money from the settlement will be distributed.

Kudos to the folks in the Department of Justice consumer section for pushing.  Proper enforcement of consumer laws is especially important when a drug that can cause serious injury is oversold by a drug company.

David Sugerman

Those of us who handle wage and hour cases learned yesterday that the Oregon Supreme Court issued a major decision denying employees the right to collect wages. In the case, Gafur v. Legacy Good Sam Hospital, workers who did not get mandatory rest breaks sued to collect unpaid wages.

Oregon law provides that employees get 10 minutes of rest for every four hours worked, and no pay may be deducted for the rest break. The employees argued that Oregon’s rest break rules means that they should have been paid 10 minutes’ wages when they were denied rest breaks. The logic to the argument is sound, in that for employees time is money. So if you’re not allowed to take the time provided to you, you should at least get the money.

But logic and law don’t always mesh. The Court got there by finding that the regulations are for health and safety and don’t create an entitlement to pay.

The other interesting thing is that the State Bureau of Labor and Industries–”BOLI”–filed an amicus, or friend of the court, brief that supported the employees. So the employees had both logic and BOLI on their side. Neither swung it with the Court.

The last interesting point is that the Court–as is common–was unanimous in its decision. At least two of the Oregon Supreme Court justices had significant background representing employees before they became judges. And most of the rest of the court had substantial experience representing the State–here BOLI. But as is common with our court, the judges’ pre-appointment backgrounds proved to be poor predictors of the outcome. This is one of those other measures of judicial integrity and judicial independence–two critically important features of our courts.

I can say as much, even though I believe the Court got it wrong. No doubt this is because I represent employees in wage claims and see these issues through a partisan filter.

David Sugerman

The legal term “preemption” is one of those boring sounding words that makes eyes glaze over and starts the snoozefest. Seems like the Bush administration is counting on that reaction in its latest threat to consumer safety.

Preemption is a concept that provides that federal law can trump or overrule state standards when Congress passes a law and intends that its law displaces inconsistent state law. Like I said, it’s a yawner. But in this era of anything goes, hands-off deregulation, the ability to thwart state law claims means a lot to powerful corporate interests that don’t want to face juries.

And that’s how consumers get hurt.

The latest story is that now federal agencies are trying to grab power and extend preemption, claiming the right to do so. So when–for example–the FDA passes a rule that only federal standards regulate medical devices, the agency is grabbing power to claim preemption. Here is a more detailed account of how it’s being done.

What a sad and cynical world. At some point you have to conclude that this is just about greed. If you want to deregulate the world, then you have to have a means of giving injured consumers the ability to obtain compensation for their harms and losses. Or alternatively, you could create a truly effective safety scheme. But this current administration wants none of it. No regulations. No way for injured consumers to cover their harms and losses. No answering to a jury in court.

There’s that popular culture thingy–not really a saying, so much as a signifier, “Don’t worry; I’ve got your back.” It almost applies here, but you have to edit or tweak it just a tad to achieve accuracy. I worked on it some. Took some thought, actually. With a little re-working, it applies beautifully here. I’ve edited down to, “Worry.”

David Sugerman

Boy, here’s some righteous indignation for you. I just saw the new attack ad in the Oregon Attorney General race. Greg MacPherson chose to run ads attacking John Kroger’s lack of qualifications. I previously explained that it was an interesting choice in this race, and that both were qualified for the position. I also made it clear that I wouldn’t take a position on the race.

I was wrong.

Rep. MacPherson’s ad demonstrates a lack of judgment and candor that leads me to think he would be a poor choice for AG. His attack ad is misleading, in that it implies that John Kroger has no experience practicing law. The ad compares Kroger to a newly-licensed driver who wants to drive a bus and a newly-minted M.D. who wants to perform surgery. The reality is that Kroger has substantial trial experience as a criminal prosecutor. That includes taking on Enron.

I had a few rules going into this whole Davids’ Blog thing, and one of the main ones is that this blog wouldn’t become a platform for what Davids think about political issues. Most every rule comes with exceptions, and this one is, well, no exception.

I’m not reluctant to call out politicians who are out to stain or damage the justice system. I’ve done it with wanna-be presidents and sitting presidents and former Attorney Generals.

When I saw that commercial today, I spit out the gag. I think all of Oregon deserves an attorney general who won’t try to mislead the voters.

That would be John Kroger.

David Sugerman

Interesting write up today in The Oregonian about the civil trial in a case brought by former investors against formerly high flying financier, party activist, Republican gubernatorial candidate, Craig Berkman. This is another one of those cases where I just want to grab a big tub of popcorn, plop down in an easy chair and enjoy the show.

At the front end, Mr. Berkman apparently admits that he secretly took $3.8 million in investors’ money. Apparently, his lawyer plans to claim that the investors losses of $20 million came from market conditions, not the secret taking of cash.

I’m taken with several parts to this.  Most notably is the repeat of the realization from the Adidas verdict that no one rants about businesses suing businesses for large sums of money.  Same is true about investors, I guess. And I don’t really have a beef with that, but I have to wonder why a double standard applies when a profoundly injured person dares to sue for damages.

The Big O article closes with a specific description of Jordan Schnitzer’s experience. All of Portland knows the Schnitzer family–they are successful, high profile civic leaders who have given large sums of money to many Portland institutions. I assume that Mr. Schnitzer’s net worth is such that his million dollar loss has relatively little impact on his overall wealth. I don’t mean to sound petty–it’s more that you need a sense of perspective about these things. But of course, it’s an interesting part of the story.  And regardless of his wealth and status, Mr. Schnitzer has every right to press his proper claims forward.

The other interesting piece is that Bullivant Houser’s Steve English leads the team representing the investors. He’s an accomplished trial lawyer from a law firm that focuses mostly on business and defense of claims.  It’s a large law firm by Portland standards.

While I suppose it’s easy to write it all off as a big-firm lawyer representing some pissed off rich people against a wrongdoing rich guy, the lesson underneath is that we all need a civil justice system. We all need access to the courts. We all need to be able to hold wrondoers accountable. That should be true whether the case involves multi-millionaires fighting over who owes what to whom or whether the case involves a working person who suffered profound injury caused by a dangerous product.

David Sugerman

Today, the Oregon Supreme Court held that Oregon smokers could not compel tobacco companies to fund medical tests that would help with early detection of smoking-related diseases. The case–Lowe v. Philip Morris–is important in a few ways.

First, by way of full disclosure, I was one of the lawyers representing Patricia Lowe, the smoker who sought to create a medical monitoring fund. While we did not win the case, I had the distinct pleasure and privilege of working on the case with my friends and colleagues, Bill Gaylord, Jim Coon, Chuck Tauman and Ray Thomas.

On a political level, the case is important because the Oregon Supreme Court demonstrated that sometimes–like in this case–Philip Morris wins in Oregon, and sometimes Philip Morris loses. That provides a powerful rebuttal to those who claim that Oregon courts are unfair to Philip Morris.

But the other thing is that the lawyers who pursued this case dared to advance the radical proposition that Oregon courts should provide a means of limiting harm and protecting those who are wrongfully endangered by dangerous products. For reasons that it articulated with clarity, the Oregon court declined to do adopt that proposition in this case. So be it. (That’s not a knock on the Court; rather, it’s an acknowledgment of its role, power and authority in our beloved state.)

Update 2 May 2008: Here’s the story reported in The Oregonian and on Oregonlive.com. Jim Coon, lead for smokers on the appeal, did his usual great job of explaining the case.

In the end, it comes to this–at least to my way of thinking:  Patricia Lowe, the smoker who bravely pursued this case, tried to do something that would make a difference by creating a program for medical screening that would limit the harm. Next time Philip Morris or its friends at the Chamber of Commerce complain about injury lawsuits, please remember this case. And then ask the complainers about their vision of alternatives, as they apparently don’t want to fund injury prevention.

David Sugerman

Interesting piece in Willamette Week covering the Oregon Attorney General race. I have met both candidates. Both are skilled, ethical, and professional. Both have the chops to serve as Attorney General. As my friend and colleague, Oregon trial attorney Mike Williams noted in the article, Greg Macpherson would no doubt be a good attorney general. But John Kroger has the potential to be a great one.

Interesting race because both candidates have great strengths.

This matters to average Oregonians because the Attorney General sets the agenda for the Oregon Department of Justice. Who is at the helm determines the Department’s priorities. I have a definite preference here. But it’s not as clear cut as many races–strong arguments can be made in support of either candidate.

Seems to me that this is one of those races that Oregonians can decide based on the merits. I imagine that the candidates’ voters pamphlet statements and supporters’ statements will be important in how this one comes out. But make no mistake. It matters.

David Sugerman

So this is an interesting piece on medical errors in Oregon. According to a summary on Oregon Live, 83 reported medical mistakes killed at least 24 people in Oregon hospitals in 2007. By all accounts, the numbers underreported. The numbers have increased since the 2006 report (65 cases reported).

The mistakes range from medication errors to wrong-site surgeries to objects left in patients during surgery. Of the reported errors, 30 resulted in serious injury, though “serious” is not defined.

Perhaps the biggest concern is the increase in numbers. While the numbers look low, the number of reported mistakes increased by 25 percent. Perhaps this means only that more are being reported. Still, you have to hope that we’re getting better at identifying and eliminating causes of preventable error.

The good news is that reporting systems can help increase patient safety, as long as they are properly used. Let’s hope that the reporting process starts to take the trend of cases downward.

David F. Sugerman