For those following the proposed class action against Western Culinary Institute and Career Education Corp., we filed our opening brief on class certification today. WCI and CEC will file an opposition, and then we’ll file a reply. Judge Baldwin is scheduled to hear oral argument on the motion at a hearing in Portland on October 29, 2009.

The filing contains materials that are currently subject to a confidentiality order. For that reason, I can’t publish it at this time.  For those keeping track, this case generated rather heated criticism. I was comfortable with the decision we made to file the case. It’s fair to say that nothing that’s happened since has done anything other than to confirm my take on the case.

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

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

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

I started using Twitter a while ago on the recommendation of Matt Schulte, the guy who designed this web page. As with many of Matt’s suggestions, I wasn’t entirely sure that I could master it or–more important–whether it made sense.

Matt was so right for reasons that I’m only beginning to understand. On one level, the access to real-time information from other lawyers, consumers, media, and political sources gives me quick access to things that I wouldn’t normally see.  This smart explanation in the mobile New York Times provides better analysis.

There are downsides.  Who, for example, wants to read 140-character snarky posts from a self-proclaimed expert’s real time review of Dancing with the Stars? That happened to me last night as I had the feed going. After the third one, I simply stopped following the woman, saving myself from further wincing.

But at the same time, I can hear from a colleague in Georgia who is looking for an expert. I can post and respond to queries about matters that I’m seeing here in Oregon. The networks are fluid, and my query to those who follow me are often forwarded (”retweeted”) by others to their networks. I find people of interest to follow and can search for topical posts.

Over my public and private writing life, I’ve written stories, reports, court pleadings and briefs, a novel, op-ed pieces, law journal articles, news reports, and blogs. Each form of writing is its own thing.  So too with Twitter. The 140-character form requires concise writing. It also leads to its own syntax. It’s a beguiling form.

Twitter creates risks. Those include the attorney who wanted all of her followers to see her up-to-the-minute thoughts about Dancing with the Stars. But there are more serious risks, too. And of course, it could simply be a hot fad, like the CB radio.

I doubt that. Given the fluidity of the information and networks, I don’t think this is passing fancy. Seems more likely that some form of this medium will become an important source of information and communication.

David Sugerman

ps-I’m on Twitter as @DavidSug. Feel free to look me up.

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.

For those following the Providence Health System medical record data theft case, this is a summary of oral argument at the Oregon Court of Appeals last Friday. The three-judge panel, Judges Haselton, Armstrong, and Rosenblum were completely engaged and extremely well prepared.

There are several major legal issues. The first is whether Oregon law recognizes that patients may recover for emotional distress when a medical provider wrongfully fails to protect confidential patient information. Oregon has been pretty conservative in its approach to emotional distress damages.  The Court of Appeals earlier cases have generally required either physical injury or a very short list of exceptions.

While I would love to see a change in the Court’s framework, it’s not necessary to resolve this case. The law recognizes what are called “special relationships,” and that includes the relationship between patients and their medical providers. So the gist of the argument was that in a special relationship case like this one, patients can recover non-economic damages when medical providers wrongfully fail to keep patient records confidential.

Sounds kind of like a no-brainer, I suppose, but the Court was definitely grappling with how the lines are to be drawn.  These gray areas are perhaps more complicated for the Court because they have to decide this case but also think ahead to the implications of the ruling.

The other big legal issue arose under the Unlawful Trade Practices Act claim. The Court seemed to have no trouble understanding that patients who spent money to protect themselves suffered a recognizable loss for purposes of the Unlawful Trade Practices Act.

I have to say that the patients’ legal team felt like oral argument went well. But it’s important to not read too much into that. I’ve won cases where I felt good about oral argument and lost them, too.  So it’s not necessarily the best predictor. My best guess is that we’ll hear from the Court with a decision before the end of the year.

When that day comes, it will not be the end. Instead, it will simply be another day in this long fight.

David Sugerman

Updated: The end came today years after Jesse Williams died. It was a decade after a large verdict and years after many appeals and many briefs.  Today, the U.S. Supreme Court ended the Oregon smoker case, Williams v. Philip Morris, by refusing further review.

The end was somewhat anticlimactic, as the Court simply dismissed as improvidently granted its prior decision to review the case again. That means that the Oregon Supreme Court opinion stands, and Philip Morris must pay the judgment to the family.

While it was a small part of the overall effort, I take pride in my pro bono amicus work on this case. Last brief filed on behalf of retired Oregon Supreme Court justices can be found here. That’s also, I suppose, part of the whole full disclosure thing, as I can hardly claim objectivity when it comes to Philip Morris.

It’s a great day for the Williams family and their legal team. They deserve this win, even if it took years to make the point.

David Sugerman