Corporations love to demonize class action lawyers. Guess why? You can likely figure this out on your own, but I’ll spell it out here: Because a class action lawsuit is one of the most powerful tools that consumers have to make corporations accountable for their negligence. But the media doesn’t like to focus on the topic of class actions much because it’s not easy to digest via 10-second sound bites. Thus, witness another week of breathtaking, frenzied stories about the Trump administration. Reporters and talking heads gravitated to discussions about the abrupt departure of Flynn and Trump’s 77 minute presser. Meanwhile, a majority in the House worked in concert to destroy consumers’ most powerful tool to hold corporations accountable. That’s right, this past Wednesday the House Judiciary Committee voted on party lines to gut consumer protection class actions.
Interestingly, the corporate lobbyists’ anti-class-action talking points are eerily similar to the proposed “Fairness in Class Action Litigation Act of 2017,” introduced last week in the House of Representatives. Coincidence? Of course, not.
Most of the proposed procedural rule changes in Representative Bob Goodlatte’s are directly traceable to the business lobby’s anti-class-action talking points. Goodlatte – a Virginia Republican and chair of the House Judiciary Committee is seizing on the corporate-friendly climate. He’s expanded last year’s proposed changes in a similarly named bill that was approved in the House but died in the Senate. If Congress adopts Goodlatte’s bill in anything like its current form, class actions will lose much of its potency.
The bill will make class actions much more difficult to survive the most critical milestone–certification. And, for those class actions that would survive, the bill would make those automatically appealable. Moreover, the bill seeks to strip away attorneys’ fees so that fewer plaintiffs attorneys will pursue these.
Most consumers think that class actions are big, nebulous things that have little to do with their lives. But if you talk to regular people such like my class action clients, you’ll realize that the Congress needs to stop trying to striking fatal blows to this important vehicle for justice. Like my clients, consumers throughout this country need class action attorneys to fight for them because they can’t or don’t want to spend thousands of dollars and countless hours to fight a giant corporation. My class action clients are like your neighbors, your relatives, your colleagues, and your friends. They are Republicans, Democrats, and Independents. But, for them and for me, these lawsuits are not about politics. It’s about trying to hold a massive company accountable, when an individual consumer is wronged.
We all know that corporations are focused on maximizing profits. To maximize profits, these companies will cut corners, which often result in a harm to the consumers. When a consumer finds that they have a defective product or that their most private information has caused significant harm to them and their bank accounts, they are not sure who will go to bat for them. This is why class action attorneys play a critical role in leveling the field for the citizen who’s suffered injury because a manufacturer used shoddy material, security or processes.
Please, email/call/write your representatives and let them know that they represent your interests–not the corporations who’ve donated tens of thousands of dollars to their campaign.
For consumer class action attorneys like myself, we can continue to count our blessings for the moment. Indeed, a number of courts across the country continue to make commonsense and carefully crafted opinions that confer Art III standing for statutory damages claims.
I have much faith in the Ninth Circuit Court of Appeals. The panel just heard oral arguments, as the U.S. Supreme Court had remanded Spokeo (back on Dec. 13th). The 9th Cir.’s new challenge is to tackle the concreteness requirement with newfound gusto. Judge O’Scannlain found it difficult to move past her view that Mr. Robin’s allegations (the resulting inability to find work because of a grossly incorrect report about him) were ostensibly sufficiently concrete, tangible harm. However, Counsel for Plaintiff, William Consovoy kept focus on the issue that the Spokeo court harped on: Defendant was making this about an apparently intangible harm that has yet to run through the rigors of a concreteness test as the one that Alito pieced apart in his majority opinion…
Well, hang tight, as the panel will render its decision in the early portion of next year. From that, we’ll get more guidance about what that court thinks is needed to satisfy Art. III standing requirements…
We have some phenomenal judges, such as Judge Lucy Koh in the N.D. of CA in the 9th Circuit. She recently decided the Matera v. Google case, which laid out a clear, incredibly thoroughly reasoned opinion indicating why specific allegations are substantive violations. As such, these violations give rise to sufficiently concrete and particular injuries in fact. Stay tuned for a more detailed analysis of her 9/23/16 order. I hope to write more about that case here as I reflect on the year’s developments in privacy law.
I will also write more about this a couple of recent cases out of the E.D. Va, including my insights regarding Thomas v. FTS, which lays out some strong arguments that a statutory damages class action attorney may want to crib. A fun but rocky ride ahead of us is guaranteed…
Usually, when I hear about thousands of employees getting fired, my heart goes out to them. But when I learned about the recent firing of 5300 Wells Fargo employees, I wondered whether losing a job was a harsh enough consequence for unauthorized use of consumers’ personal information. After all, these WF employees opened up accounts that resulted in NSF/overdraft fines, fines from third party vendors (who may have billed via autopay), etc.
According to the CFPB, “Wells Fargo employees secretly opened unauthorized accounts to hit sales targets and receive bonuses.” A client had approached me several months ago, wondering why her accounts were multiplying without her recollection of signing any paperwork. Today’s CFPB press release clears up the mystery. Below is an excerpt.
Wells Fargo’s violations include:
- Opening deposit accounts and transferring funds without authorization: According to the bank’s own analysis, employees opened roughly 1.5 million deposit accounts that may not have been authorized by consumers. Employees then transferred funds from consumers’ authorized accounts to temporarily fund the new, unauthorized accounts. This widespread practice gave the employees credit for opening the new accounts, allowing them to earn additional compensation and to meet the bank’s sales goals. Consumers, in turn, were sometimes harmed because the bank charged them for insufficient funds or overdraft fees because the money was not in their original accounts.
- Applying for credit card accounts without authorization: According to the bank’s own analysis, Wells Fargo employees applied for roughly 565,000 credit card accounts that may not have been authorized by consumers. On those unauthorized credit cards, many consumers incurred annual fees, as well as associated finance or interest charges and other fees.
- Issuing and activating debit cards without authorization: Wells Fargo employees requested and issued debit cards without consumers’ knowledge or consent, going so far as to create PINs without telling consumers.
- Creating phony email addresses to enroll consumers in online-banking services: Wells Fargo employees created phony email addresses not belonging to consumers to enroll them in online-banking services without their knowledge or consent.
For anyone wondering how the CFPB helps consumers, this action against Wells Fargo’s deceptive acts should help illuminate the importance of this agency’s work.
Today, January 28, 2016, is Data Privacy Day. Big deal? It actually is: The first Data Privacy Day that occurred in the United States and Canada was in 2008, which was observed as an extension of the Data Protection Day celebration in Europe. Data Protection Day commemorates the Jan. 28, 1981 signing of Convention 108, which was the first legally binding international treaty dealing with privacy and data protection.
Now led by the National Cyber Security Alliance (NCSA), Data Privacy Day has become the signature event promoting privacy awareness. Without committed defenders of privacy, like the Electronics Frontier Foundation, we would not have seen a complaint filed with the FTC against Google for unauthorized collection of school aged children’s information, when they are using Google Apps and Chromebooks in their schools. Google’s unauthorized collection of personal information from school children via Chromebooks and Google Apps for Education (GAFE)—caught the attention of Senator Al Franken, a ranking member of the Senate Judiciary Subcommittee on Privacy, Technology and the Law. Franken responded by writing a letter to Google CEO Sundar Pichai asking for information about GAFE’s privacy practices.
The first step to ensure that our student privacy campaign succeeds, is to educate ourselves as parents. This way, we can direct our energy and knowledge effectively. On this Data Privacy Day, take the time to check out the resources that the Electronic Frontier Foundation compiled to regain control of your children’s privacy. Please spread the word about student privacy by sharing these and similar resources with other parents!
I can’t emphasize enough how important it is that parents understand their and their children’s rights. We live in a world where parents may be asked by schools to waive those rights before their youngsters are permitted to use technology in the classroom. Third parties will too often encourage parents to give schools consent to release their children’s information to those very third parties.
Interested in becoming part of the “privacy defender team?” There are many ways in which you can get involved.
- Create a culture of privacy at your organization.
- Own your personal online presence.
- Share your privacy knowledge with your local communities.
- Attend a Data Privacy Day event.
- Become a Data Privacy Day Champion.
NOTE: This blog post is republished from my PrivacyLawDiva blog post.
This past Thursday’s deadly Aurora Bridge crash is a wake up call. Some reporters are sounding the alarm. Thanks to these reporters and responsive lawmakers, I have hope that we will see big changes on the Aurora Bridge. My reason for this hope is in large part thanks to Glenn Farley’s investigative piece on KING5 and the article by Seattle Times reporters Mike Lindblom and Joseph O’Sullivan*. These reporters are pressing the important issue, rather than focusing entirely on the clumsy Ducks.
As I previously blogged, the City and the State have known for years that there are fixes to avoid more tragic accidents on the Aurora Bridge. Our firm learned this via depositions when representing victims from the 1998 incident on the bridge (that claimed six lives). Now, we are getting calls from victims and families from this past Thursday’s deadly crash, given our record settlements/verdicts with wrongful death/catastrophic injuries cases in Seattle against the government.
Skeptics claim that a jersey barrier wouldn’t have done anything to prevent this fatal crash between an amphibious Duck and a charter bus. I respectfully disagree, given experts’ reports (from the earlier Aurora Bridge case). These experts explain how certain jersey barriers would deflect and minimize the impact of oncoming traffic.
Times like this, in the aftermath of a horrific tragedy, help to provide us with important insights on how we may prevent more needless loss of lives.
NOTE: Nathan Wilson, KOMO TV, executive producer/director at KOMO News also did a story, interviewing our own Keith Kessler, who represented several victims from the previous, high profile Aurora Bridge crash. Check back soon to see a link to that story.
“I was meant to be a part of this place.”
That’s how Brad Moore, the newly elected President of the Public Justice Foundation, described the natural fit he sees between his work as a trial attorney and his commitment to Public Justice’s work.
Noting that his firm – Stritmatter Kessler Whelan – “has done three cases with Public Justice over the years,” Moore says that “The work that Public Justice does is right up my alley.”
The road leading to his year-long Presidency at the organization’s helm, which has just kicked off, began as early as Public Justice itself. He was introduced to the organization through his law partner and mentor, Paul Stritmatter, who is a founder of Public Justice. That, in turn, led to a close friendship with former president Jack Landskroner, who guided Moore on the path to his current leadership position on the board.
A career as a litigator, however, wasn’t always a sure thing.
Moore grew up with a lawyer for a dad (who would later become his law partner), and a mom who served as Majority Leader in the Washington State House of Representatives. His own journey to the law began, in part, as a tour guide through the Canadian Rockies. Moore led over 50, eight to ten day motorcoach tours throughout British Columbia and Alberta, and his stint as a tour guide revealed how comfortable he was with talking and engaging with people of varied backgrounds. As a result, “talking with and in front of jurors has come somewhat natural to me,” he says.
That, along with an influential Philosophy of Law class in college, led to Moore becoming a passionate advocate for insureds and consumers, injury victims and victims of defective products. His work fighting for those seeking justice makes him a perfect choice to lead Public Justice.
In addition to guiding Public Justice’s existing work in the States, Moore says another priority for his tenure as President will be finding ways to build relationships and associate with Canadian lawyers to pursue high impact public interest lawsuits in Canada.
“The things we care about as a public interest organization here in the States, Canadians also care about,” he notes. “Canadian trial attorneys are fighting so many important battles that are the same as we’re facing here: environmental degradation, preserving access to civil justice and civil rights advocacy, like this year’s Trial Lawyer of the Year finalist from Nova Scotia.”
“That’s why I’m looking into how we can create a strong presence up there.”
Reaching out across borders is another talent that comes naturally to Moore. Outside of his work and home in Seattle, he also has a home in Thailand. He has been fascinated by Southeast Asia since his first trip to the region in the mid-1980s, during which he became one of the first Americans to enter Vietnam following the end of the war.
Now Moore, who succeeds Esther Berezofsky as President of Public Justice, will turn that same passion for reaching out, building alliances and fighting for justice to his new role leading the organization into 2016.
NOTE: This article was republished from PublicJustice.net.
What a night at this evening’s 2015 Public Justice Gala in Montreal, Canada. More to come in future posts. However, I wanted to share with you the amazing moments between the new President of Public Justice, Brad J. Moore, and SKW partner Keith L. Kessler. The room was filled with dedicated advocates, who have fought tirelessly for consumer rights. I could go on and on right now, but it’s late. So, I will just put up a couple of wonderful photos.
The first photo (see top of this post) is of Brad Moore and Esther Berezhovsky (outgoing PJ president) on stage.
The next one is of Brad and Keith. Can you see the joy and pride in Keith’s eyes? What a proud father and tremendous mentor…
Brad’s mother, former State Senate House Majority Leader Lynn Kessler, did me the honor of sitting next to me and sharing a little about Brad before he started practicing law. I am truly proud to be a part of such a remarkable firm. We will continue to champion the rights of consumers everywhere.
If you have followed the work of Public Justice and its team of attorneys (including SKW attorney Brad Moore), you likely saw the news story this weekend about an important ruling that will improve the lives and public safety of the residents in the Yakima Valley.
Cow Palace, among a handful of other industrial dairy farms, have produced tons and tons of manure, calling it “nutrients” and selling it as fertilizer or letting it sit in miles of unlined lagoons. The massive amounts of manure inevitably leeched into the earth, causing an array of serious health problems for residents within miles of any of these farms.
But finally, the work of attorneys Charlie Tebbutt, Brad Moore, and Jessica Culpepper (among a larger legal team) has convinced U.S. District Judge Thomas O. Rice to call a spade a spade, redefining “nutrients” as “solid waste.”
“The cow waste is leeching nitrates into groundwater, posing “an imminent and substantial endangerment to human health,” according to the ruling. Bravo to Charlie Tebbutt, Brad Moore and the entire Public Justice team that has worked tirelessly on fighting for the rights of Yakima Valley residents.
Judge Coughenour said although a private agreement may have been reached between the parties before the start of the litigation, no deal has been presented to the court. Further, Nordstrom has only offered “vague” privacy concerns related to the release of the information that don’t trump the strong presumption that judicial documents be made public.
“It is possible that Plaintiff violated a private agreement by filing this lawsuit and converting non-public information into a judicial record,” Judge Coughenour said. “However, the Court is not presently tasked with interpreting or enforcing any promises made by Plaintiff to gain access to Nordstrom‘s records.”
Although the complaint was originally filed last month, specific figures detailing the approximate costs of the operation and other information is redacted in the complaint. Nordstrom, which sought to keep the data secret, argued that details related to the board’s “travel habits” should be kept private. The company said Burbrink, who obtained the information through a formal request for company records, agreed to keep the information a secret.
Nordstrom has maintained in SEC filings that the company charges the family market prices for services it provides them. Moreover, the company has stated that payments it receives from the family exceed the estimated costs of providing those services. It has denied the allegations in the complaint and said it will be vindicated in court.
However, the lawsuit claims that contrary to those filings, Nordstrom’s board “has never conducted any analysis of the costs of providing the services to the Nordstrom family.”
The complaint goes on to say that Nordstrom has been operating a “bloated and costly” flight department to manage company planes, as well as personal aircraft for the Nordstrom family. Burbrink claims the flight department has cost shareholders millions of dollars.
Nordstrom and an attorney representing Burbrink declined to comment on the order.
Burbrink is represented by Brad J. Moore of Stritmatter Kessler Whelan, Hung Ta, Natalia Williams and JooYun Kim of Hung G. Ta Esq. PLLC, Peter Safirstein and Roger Sachar of Morgan & Morgan PC and Konstantine W. Kyros of Kyros Law Offices.
Nordstrom is represented by David S. Keenan, Robert P. Varian and M. Todd Scott of Orrick Herrington & Sutcliffe LLP.
The case is Judith Burbank v. Phyllis J. Campbell et al., case number 2:15-cv-00377, in the U.S. District Court for the Western District of Washington.