Gassing protesters is bad. Gassing prisoners is worse

During the protests outside the Hatfield Courthouse in downtown Portland this summer, federal agents and police indiscriminately deployed chemical weapons designed to stop the protests.

Chemical weapons are designed to inflict pain. And they do that well. They were used to quell protests and inflict pain on protesters. In that sense, their use is indefensible.

But it gets worse.

The county jail is adjacent to the protest site. Most of the people held there are being detained pending trial.

The chemical weapons repeatedly entered the jail through the ventilation system, and people incarcerated there were repeatedly contaminated by these chemicals. Unlike protesters who could run away from gas, people incarcerated while awaiting trial can’t move. Their stories are harrowing.

We filed suit today to stand up for people who were harmed by chemical weapons while being held at the Multnomah County jail. The case is Davis v. Multnomah County, US District Court Case No. 3:20-CV-2041. A copy of the complaint, which provides much more detail, is here: Davis v. Multnomah Co Complaint



Dean Innovations and Toxic Soil Amendments

Along with Portland attorney Nadia Dahab, we’ve filed a consumer fraud class action case against Dean Innovations arising from the widely reported toxic contamination of soil amendment products sold to Portland area gardeners. I’ve attached a copy of the complaint. It has been filed and served.  Complaint – FIled.

In a nutshell, we’re pursuing claims under the Oregon Unlawful Trade Practices Act. We’re demanding that Deans make it right. They need to refund purchase prices for all sales of the tainted products and cover remediation costs, including removal, hauling, and disposal of tainted soils. There are other claims that will be presented, as well.

I expect this will be another long case. But we’re committed to doing what is necessary because those of us who garden should never have to worry if the garden supply seller is delivering a load of the healthful, beneficial product that they promised or a load of poison.


BP class action update: Claim time!

The claim process has started in our consumer fraud class action against BP for illegal debit card fees at Oregon ARCO stations. We’re getting a lot of calls, emails, and questions on our Facebook page.

And on top of it all, ice and snow have moved into Portland. So it looks like I may not be able to get to my office to answer calls today.

A few details and updates.

1) One common question is “How do I make a claim?

There are two ways. If we recover your name and address, you’ll get a notice that says you’re in. If you get a letter, you don’t have to do anything more to make your claim.

The notices are starting to go out this week and will continue as we get more names and addresses. We have about 500,000 letters going out this week. I’m hoping that we’ll get another million names and addresses.

To keep your data secure, I do not have direct access to it, so I can’t look up whether we’ve recovered your data.

For those people whose records we do not recover, you will need to file a claim form. Very important: We can’t file for you because you need to fill out the form.

Here is the link to the claim form

2) More information

The official court-approved website is here

FAQ’s on the official website are here.

If you want more of a flavor of the history of this fight, you can read blog posts collected here.

3) What will consumers who make claims get?

The jury verdict means a maximum of $200 for each consumer who paid the illegal debit card fee between January 1, 2011 and August 30, 2013. The court may deduct up to $40 from each claim to contribute to fees and expenses. We’re asking the court to order BP to pay all the fees–we don’t know how the court will rule. Bottom line: Depending on the court’s ruling, each person who makes a valid claim will get $160-200.

4) When do I get my money?

Great question. Don’t go spending it yet. BP tells us they will appeal. That may well take years. If BP wins on appeal, we may not collect a dime. (And by “we,” I mean you and me!) But if we keep winning, you also get interest at 9 percent on your claim.

5) What’s next?

We hope to finish the claim process by December 31. There is an attorney fee hearing in February. (Sorry, I don’t have the date at fingertips but will make sure it gets posted on the official site.)

We’re pleased with our progress, but there is far to go. My promise to you: Our legal team will keep fighting until we see this thing through.  We’ll also do our best to answer questions and get back to you, but we’re buried in this, so please be patient.

Best contact for me is or by phone 503.228.6474. Thanks for you patience and your support.

David Sugerman

Robert Neuberger and the hard farewell

Yesterday, Portland started cold and rainy. The rain lifted by mid morning, and we were graced with sun breaks and a crisp December day. And on that day, we said farewell to our friend, my office mate and colleague,  Robert Neuberger.

Robert and I started sharing office space a couple of years ago. I’ve known him and looked up to him since I was a young lawyer. He cut a large swath through the Oregon legal community. We’ve handled a number of cases together over the years. We’ve laughed and fought, but always we had each other’s back. And that is a rare, precious thing.

Robert lost his fight with cancer on Saturday. We all knew it was coming–he’s been sick for four years. Even as his time drew near, Robert maintained a positive, loving attitude and enjoyed finding humor in the tough circumstances.

When Robert first received the cancer diagnosis, he shrugged his shoulders and chose to dwell on the upside. “You know,” he said, “It could have been a piano falling out of a fourth floor window. Or a TriMet bus. In a crosswalk.”

It’s been a sad time for the family and many friends Robert left behind. We smiled and laughed through the tears yesterday and resolved to keep his memory alive. But I would be lying if I did not admit to a case of the blues. It’s a big rip out of the fabric of many lives.

Robert’s family plans a public memorial service. If you knew Robert and want details on the public memorial, feel free to contact me privately.

I don’t much believe in the idea of an afterlife, but I’m always quick to hedge my bets. So, Robert, if you’re somehow seeing this, you can chide me later or bust my chops for failing to find more laughs. I know how you hate my excuses, but see, a dear friend just died, and I’m damned short on humor. I suppose I should apologize. Or not.


Straka v. Townsend Farms–Hepatits A Class Action

Working with Bill Marler and the talented team at Marler Clark, we filed today the class action complaint in Straka v. Townsend Farms, State of Oregon, Multnomah County Circuit Court Case No.  13060-8425

Further background is here, including links to the CDC recall and related information. For those interested, here is the PDF version of the Complaint.

Oregon Court Confirms Jury Verdict for Oregon Qarmat Ali Veterans

It’s a good day for the Oregon Qarmat Ali veterans.

Today,  the Court confirmed the jury verdict in favor of the first 12 Oregon Army National Guard veterans who suffered contamination injuries at the Qarmat Ali Water Treatment Plant in Iraq in 2003.  Here is a link to the PDF opinion:  724 – opinion & order re trial

Judge Papak denied virtually all of KBR’s motions for which it sought a new a trial. Judge Papak left intact each veteran’s $6,250,000  punitive damage assessment and reduced each veteran’s compensatory damage assessment from $850,000 to $500,000. Judge Papak reduced those damages based on a case that came down after argument, Howell v. Boyle, 353 Or. 359, 298 P.3d 1 (2013). Just so we’re clear, the veterans disagree with the reduction part of Judge Papak’s legal ruling.

In any event, this is a great day for the veterans and their families. They told their stories to the jury, and the jury did justice. After a detailed, independent review, Judge Papak confirmed the jury’s findings.

For my part, I could not be happier for these vets and their families. When our system of justice works, it is a thing of beauty.

For those facing collections efforts from Sallie Mae for Western Culinary Inst./Le Cordon Bleu Portland tuition

So we’ve been hearing a lot from class members about Sallie Mae efforts at collection of debts arising from loans for those who attended Western Culinary Institute and Le Cordon Bleu Portland who are part of the class action against those defendants.

If you are in that situation, please understand that our role is limited to serving as class counsel to seek recovery in the current case, Adams, et al. v. Western Culinary Institute, et al., State of Oregon, Multnomah County Circuit Court Case No. 0803-03530. That said, I took the liberty of drafting a letter that class members who are facing collection may want to send.

I’ve pasted the letter below, but there is some important information:

1) We cannot and are not representing class members on collection issues. If you are in a collection situation, I strongly urge you to to confer with separate counsel in your state about your rights and remedies. If you do so, please provide them with information about this lawsuit.

2) This letter is specifically intended only for the use of those members of this class who are facing collection claims from Sallie Mae. It is not meant for generic use. If you are not part of this case, use of this letter might create very serious problems for you. I strongly suggest that you confer with counsel about your own unique circumstances.


I understand that you represent Sallie Mae and that you are attempting to collect student loan debts related to my attendance at Western Culinary Institute, now known as Le Cordon Bleu Portland. I am writing to make clear that I dispute the debt.

I borrowed money from Sallie Mae to attend the school, and in doing so signed an agreement that included a holder in due course provision. As part of a class action pending in the State of Oregon, Adams v. Western Culinary Institute, State of Oregon, Multnomah County Circuit Court Case No. 0803-03530, I am pursuing claims for tuition refunds based upon fraud and violations of the Oregon Unlawful Trade Practices Act. The defendants are Career Education Corp. and Western Culinary Institute/Le Cordon Bleu Portland.

Sallie Mae has no right to seek collection of a debt incurred by fraud. If you persist in your collection efforts, I reserve all rights, including the right to make a counterclaim and seek class adjudication of Sallie Mae’s rights to collect on this disputed debt.

You may be aware that the Federal Trade Commission recently indicated that lenders may be held financially responsible for monetary damages to the extent the underlying seller—here Career Education Corp.—is unable to satisfy its obligations.

If you have questions about the underlying case, I suggest you contact lead counsel, David F. Sugerman, 707 SW Washington St., Suite 600 Portland, OR 97205; 503.228.6474.


Moving to dismiss the appeal brought by Career Education Corp and Western Culinary

For those interested, I’m posting our recent motion to dismiss and motion for reconsideration in Surrett v. Career Education Corp., our consumer fraud class against Career Education Corp for Western Culinary Institute/Le Cordon Bleu Portland students.

We had cleared all pretrial motions and were steaming toward our January trial date when the Career Education Corp defendants filed an appeal of a ruling made by the trial judge. The problem with that is that if the appeal is allowed to go forward, we will lose our trial date. We’ve asked the Court of Appeals to dismiss the appeal. Barring that, we’ve asked the Court to release those class members who aren’t affected by the appeal from the holding pattern so that they can go to trial.

Lots more about it than all that. But that’s the short version.

It’s dry and complicated, but it gives those who are in the class some idea of what the legal team is up to. Here it is in PDF: Plaintiff-Respondent Surrett’s Petition for Reconsideration and Motion to Dismiss Appeal

We will update when we hear from the Court of Appeals. Meanwhile, know that the fight goes on.


Wal-Mart v Dukes: Supreme Court changes rules on class actions

I was not surprised by the U.S. Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, No. 10-277 (June 20, 2011). Even so, how the Court got there reveals more agendas. It also bodes poorly for consumers.

About class actions: While class actions are often criticized, the reality is that they are one of the few tools available to consumers and middle-income Americans to fight wide-spread corporate abuse. When a bad corporate actor engages in a pattern of misconduct, the class action device allows consumers to band together to fight abuse.

About the case: The story about the case has been widely told. Wal-Mart’s female employees sought to proceed in a class action to address corporate-wide wage disparities. They claimed that Wal-Mart engaged in a pattern and practice of gender discrimination by paying female employees less and providing fewer promotions. That’s illegal discrimination under Title VII, the federal Civil Rights Act of 1964.

What the Court decided: The Court decided that the case could not go forward as a class action. Part of the opinion was unanimous, but the guts of the problem are in Part II of the Court’s opinion, and that part was 5-4. Part II radically revised class action rules, and that’s where consumers are at risk.

A new standard: Class actions are complicated. But at the front end, a class action has several requirements. They are that the class is numerous (“numerosity”) , that the named-plaintiffs’ (people who bring the lawsuit) claims are typical (“typicality”), and that there are one or more common questions of fact or law (“commonality”). Depending on the type of class, there are other requirements, but the Court did not reach those additional requirements.

Writing for the majority, Justice Scalia announced a new standard, deciding that commonality–which was always a simple showing–would now become very complicated. Now, it’s not just that there must be common questions, but, says the Court, there must also be common answers.

Ironically: For years, Justice Scalia has harangued the Court and the profession about the need to limit decisions to the text of the written law. The judicial philosophy is known as strict constructism. Funny thing: The text of the applicable part of the rule makes no mention about answers to questions. Instead it reads, “[T]here are questions of law or fact common to class.” FRCP 23(a)(2). The lack of textual support for an anti-consumer ruling causes Justice Scalia little pause, as the Court engaged in similar over-reading of federal law in AT&T Mobility LLC v. Concepcion, the case that likely ended consumer class actions.

The bigger problem: This is a tough day for the women from Wal-Mart. But apart from that the Court is slamming the door on class actions. When you add this ruling to AT&T Mobility and then add on a few other doctrines, it’s clear that the goal is to radically curtail class actions. Before Wal-Mart, the U.S. Supreme Court made clear that the merits of a consumer’s claims did not enter in to the consideration of class certification. That day is over. Without overruling prior case law, the U.S. Supreme Court examined, weighed and determined the sufficiency of the Wal-Mart plaintiffs’ evidence.

Some years ago, Congress caved to corporate interests and passed the so-called Class Action Fairness Act (“CAFA”). CAFA provides that most class actions may be removed to federal court. A few years later, the U.S. Supreme Court changed the rules on pleadings and required more specificity of those who file cases in federal court. The new pleading standards under Iqbal make it harder for consumers to proceed in federal court.

For years, federal courts have limited discovery in class action cases to issues related only class certification. But now consumers seeking to pursue class actions must make a showing on the merits. Between CAFA, Iqbal, Daubert (scientific evidence case), AT&T Mobility (mandatory arbitration) and Wal-Mart, the Court has erected great barriers to consumers seeking to proceed in class actions.

Lousy day.


Quick away

Maybe the hardest thing about my busy solo law practice is taking time off. Between one child still at home, a busy, hard-working spouse and the demands of my case load, I am hard-pressed to get away.

So I jumped at the chance when our schedules aligned. Even with all we have going in our professional lives, Janet and I decided that we could squeeze out a 5-day vacation.

I’m not sure exactly who said it first–maybe it was me, “When the going gets tough, the tough go on a road trip.”

We’re off to Southern Oregon. We won’t go too far–a lodge on the Rogue River and a few nights in Ashland–but I’m sure it will be the perfect tonic for two overly-busy people who share a life. So I’ll be dark and quiet from my usual interwebz haunts for the next several days.

I won’t be far or gone for long. While I’m away, I know that Marla and Kristen, my awesome and reliable team, will keep things on track. They’re good that way. Very, very good.