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Key Cases

Here are descriptions of some key cases and landmark victories in Public Justice's wide-ranging litigation docket. For recent news about our cases, see our News Page. For historical background information about our public interest cases, see our Overview. We invite you to sign up for free E-lerts to receive occasional updates on our important cases.

Access to Justice

Class Action Preservation Project

Federal Preemption Project

Mandatory Arbitration Abuse Prevention Project

Project ACCESS (fighting unnecessary court secrecy)

Civil Rights

Consumer Rights

Environmental Enforcement Project

Toxic Torts


Access to Justice

Class Action Preservation Project

Baker v. Washington Mutual Finance Group (U.S. Court of Appeals for the Fifth Circuit)

TLPJ is challenging a proposed class action settlement of predatory lending claims by Mississippi homeowners against Washington Mutual Finance Group, LLC, and other affiliated financial institutions, as an abuse of both the class action device and class members' rights. In objections filed on behalf of class members on September 16, 2004, and now on appeal before the U.S. Court of Appeals for the Fifth Circuit, TLPJ contends that the proposed settlement unconstitutionally attempts to cap the defendants' liability by preventing class members from opting their punitive damages claims out of the class action settlement. TLPJ's objections to the settlement in Baker were filed as part of its Class Action Preservation Project, a nationwide campaign dedicated to preserving and protecting the integrity of the class action device. TLPJ’s Richard Frankel is lead counsel on the appeal, along with TLPJ’s Leslie Brueckner. Co-counsel are Charles Mullins of Jackson, Mississippi, and Peter T. Martin of Aberdeen, Mississippi.

Opening Brief in the Fifth Circuit (Oct. 25, 2005) (link)

Reply Brief in the Fifth Circuit (Feb. 9, 2006) (link)

Statement of Objections in the United States District Court for the Southern District of Mississippi (Sept. 16, 2004) (link)

Press Release (link)

Chavez v. Netflix, Inc. (California Superior Court, San Francisco County)

TLPJ objected to a class action settlement in a lawsuit alleging that the online DVD rental company Netflix engaged in false advertising and deceptive practices concerning the speed of delivery of its DVDs to customers. The original settlement contained an "automatic renewal" provision that would have increased Netflix’s revenues and harmed class members by deceptively steering class members into higher priced memberships, while giving class counsel more than $2.5 million in attorneys’ fees. After TLPJ filed its objections to the settlement, the parties changed the settlement to eliminate the "automatic renewal" provision, eliminate the risk that class members would lose more money than they would gain, and further bolster the class relief and class notice. Co-counsel are TLPJ’s Richard Frankel and Mark Chavez (no relation to the named plaintiff) of Mill Valley, California.

Statement of Objections (Jan. 5, 2006) (link)

Press Release (link)

Discover Bank v. Superior Court (California Supreme Court)

This is a putative class action against a credit card issuer for improper charges relating to late fees. The credit card issuer defended against the case by invoking its arbitration clause, which barred customers from proceeding with their claims on a class action basis. On June 27, 2005, the California Supreme Court held that it is unconscionable under California law for a corporation, by way of a contract of adhesion, to bar customers with small individual claims from bringing or participating in a class action. On remand, however, the California Court of Appeals upheld the Delaware choice of law clause in the credit card contract and found that Delaware law would allow the contractual ban on class actions. Co-counsel in the case were TLPJ’s Paul Bland, Leslie A. Bailey, Victoria Ni, and Arthur Bryant, along with Brian Strange and Gretchen Carpenter of Los Angeles.

Press Release (link)

California Supreme Court Decision (PDF) (link)

TLPJ's Reply Brief to the California Supreme Court (PDF) (link)

Dotson v. Bell Atlantic (Maryland State Court)

TLPJ challenged a proposed class action settlement of late fee claims by Bell Atlantic (now Verizon) customers in Maryland. The original settlement reached with the phone company would have paid $156,000 in relief to the class, but $13 million to the plaintiffs’ lawyers with the firm of Beins, Goldberg & Gleiberman. TLPJ represented objectors to this settlement and the state court rejected the settlement. As a result of three years of hard-fought litigation by TLPJ and other objectors’ counsel, a new settlement was reached that increases the amount paid to consumers to almost $17 million, while reducing the attorneys’ fees paid to class counsel to $6.1 million. TLPJ’s Michael Quirk was lead counsel for two objectors to the settlement; Kieron F. Quinn of Quinn, Gordon & Wolf, Chtd. in Baltimore, was lead counsel for ten objectors. The objectors in this case were also represented by TLPJ’s Paul Bland, Baltimore’s Richard Gordon and Martin Wolf, Philip Foard of Towson, Maryland, and Philip Friedman of Washington, D.C.

Press Release Regarding Final Court Approval of Improved Second Settlement (May 23, 2006) (link)

Maryland Circuit Court, Prince George's County, Final Approval Order (March 21, 2006) (link)

TLPJ’s Brief on the Merits to Maryland Court of Appeals Challenging Approval of Second Settlement (June 20, 2005) (link)

Maryland Circuit Court, Prince George’s County, Opinion and Order Denying Final Approval of Proposed Class Action Settlement (November 13, 2003) (link)

TLPJ's Reply Brief (May 2, 2003) (link)

TLPJ's Initial Objections (April 11, 2003) (link)

Drelles v. Metropolitan Life Insurance Co. (U.S. Court of Appeals for the Third Circuit)

The United States Court of Appeals for the Third Circuit issued a decision agreeing with TLPJ that consumers who opted all of their claims out of a nationwide class action settlement with Metropolitan Life Insurance Company (MetLife) cannot be barred from fully prosecuting their individual cases against the company. MetLife had sought an injunction preventing the opt-out litigants from taking any discovery or asserting any claims in their individual cases against MetLife relating to illegal nationwide sales practices at issue in the class action settlement. TLPJ’s Leslie Brueckner and Ken R. Behrend of Pittsburgh were co-counsel.

Opening Brief to the Third Circuit (link)

Reply Brief to the Third Circuit (link)

Third Circuit Decision (link)

Press Release announcing Third Circuit Decision (link)

Engle v. Liggett Group (Supreme Court of Florida)

A class of tobacco victims won a landmark $145 billion verdict against the tobacco industry for its deceptive practices in marketing addictive and harmful tobacco products to consumers. The Florida Court of Appeals threw out the verdict, in part on the ground that the punitive damages verdict was barred as a result of the State of Florida’s previous settlement with the tobacco industry involving a different lawsuit with different claims. TLPJ, along with Public Citizen, the Campaign for Tobacco-Free Kids, and the American Cancer Society, filed an amici curiae brief with the Supreme Court of Florida, arguing that it was improper to deny the class members their day in court for punitive damages on the basis of a previous lawsuit in which they played no part. TLPJ’s Richard Frankel authored the brief, with assistance from TLPJ’s LBE Brueckner and Arthur Bryant, as well as counsel for the other amici. A decision by the Supreme Court of Florida is expected soon.

TLPJ’s amici curiae brief

Hayes v. County Bank (New York Supreme Court, Appellate Division, Second Department)

This is a putative class action by borrowers alleging that a payday lending company violated New York civil rights and usury laws by targeting low-income and predominantly African-American communities for the marketing and issuance of short-term loans with annual interest rates in excess of 900%. A New York state trial court held that the payday lender’s mandatory arbitration clause barring claims for class-wide relief was enforceable, and ordered the plaintiffs to arbitrate their claims. The plaintiffs appealed. On April 27, 2004, TLPJ filed an amici brief on behalf of a coalition of public interest groups, arguing that the Federal Arbitration Act ("FAA") does not preempt New York’s rule allowing direct appeals from orders compelling arbitration, the arbitration clause is unconscionable under New York contract law because it bars claims for class-wide relief, and the FAA does not preempt this application of state contract law. On February 27, 2006, the Appellate Division held the FAA does not preempt New York’s procedural rule allowing the appeal, but that the arbitration clause and its class action prohibition were enforceable under New York law. TLPJ Michael Quirk and Richard Frankel wrote the amici brief with input from TLPJ’s Paul Bland and co-counsel Deborah Zuckerman of AARP, Russ Hayes of New York Public Interest Research Group, and Rachel Weintraub of Consumer Federation of America.

TLPJ's Amici Brief: (link)

McKee v. AT&T (Washington Court of Appeals)

TLPJ represents a putative class of AT&T long-distance customers in this appeal of a trial court decision denying AT&T's motion to compel arbitration. The trial court held that the corporation's mandatory arbitration clause, which bans class actions, is unconscionable under Washington law; the New York choice of law clause in AT&T's contract is unenforceable; and the Federal Communications Act does not preempt the plaintiffs' state-law unconscionability challenges. The plaintiffs allege that AT&T charged them usurious interest rates and municipal utility taxes, despite that fact that they do not live in any municipality. TLPJ’s Paul Bland and Leslie Bailey are lead counsel on appeal. Scott Kane of East Wenatchee, Washington, is co-counsel.

TLPJ’s Response Brief: (link)

McQuillan v. Check ’N Go of North Carolina, Inc., Hager v. Check into Cash of North Carolina, Inc., and Kucan v. Advance America (North Carolina Court of Appeals)

Consumers filed a series of lawsuits on July 27, 2004 against three of North Carolina's largest payday lenders -- Advance America, Check into Cash, and Check 'N Go -- alleging that the lenders exploit poor people by luring them into quick loans that carry exorbitantly high interest rates up to 500 percent. Subsequently, additional cases were filed against two more North Carolina payday lenders. The plaintiffs argued that contractual terms embedded in the payday lenders’ arbitration clauses that ban class actions violate North Carolina public policy and are unconscionable under state law. On December 30, 2005, the court ordered the plaintiffs into individual arbitration on their claims against Advance America, Check into Cash and Check ‘N Go. The plaintiffs have appealed that order to the North Carolina Court of Appeals. Counsel in the case are Carlene McNulty of the North Carolina Justice Center; Mal Maynard of the Financial Protection Law Center; Mona Wallace and John Hughes of Salisbury, North Carolina; Jerry Hartzell of Raleigh, North Carolina; Richard Fisher of Cleveland, Tennessee, and TLPJ’s Paul Bland, Michael Quirk, and Leslie Bailey.

Press Release: (link)

Letter to North Carolina Commissioner of Banks re Payday Lending (November 9, 2004): (link)

Muhammad v. County Bank of Rehoboth Beach (New Jersey Supreme Court)

TLPJ represents a putative class of payday loan borrowers in this appeal of two lower court decisions granting the defendants’ motion to compel arbitration under a mandatory arbitration clause that prohibits consumers from asserting claims as a class. The New Jersey Supreme Court granted our petition for interlocutory appeal on September 21, 2005. We are arguing that the non-negotiable class action prohibition renders the defendants’ arbitration clause unconscionable under New Jersey law, and that the Federal Arbitration Act does not preempt this application of state law. TLPJ’s Michael Quirk wrote the briefs and argued the appeal, with assistance from TLPJ’s Paul Bland. Our co-counsel are Mark Cuker of Philadelphia and Cherry Hill, New Jersey, and Donna Siegel Moffa of Haddonfield, New Jersey.

Video archive or oral argument before New Jersey Supreme Court, February 14, 2006 (link)

Plaintiff’s Brief in Response to Amicus Curiae New Jersey Business and Industry Association (March 3, 2006) (link)

Plaintiff’s Brief in Response to Amicus Curiae Chamber of Commerce of the United States of America (February 3, 2006) (link)

Amicus Curiae Brief of Legal Services of New Jersey in Support of Plaintiff (November 17, 2005) (link)

Plaintiff’s Brief on the Merits to New Jersey Supreme Court (November 23, 2005) (link)

Plaintiff’s Brief in Support of Motion for Interlocutory Appeal (August 3, 2005) (link)

Scott v. Cingular Wireless LLC (Washington Supreme Court)

TLPJ represents a putative class of Cingular Wireless customers appealing a trial court’s order compelling them to arbitrate their claims individually. TLPJ argues on appeal that the company’s arbitration clause, which bans customers from filing class actions against it, is one-sided and effectively exculpates the corporation from liability, and thus is unconscionable under generally-applicable principles of Washington State contract law. The plaintiffs allege that Cingular charged them for roaming and long-distance calls despite the fact that their contracts provided that these services would be free of charge. TLPJ’s Paul Bland and Leslie Bailey are lead counsel on appeal. Our co-counsel are Seattle’s Douglas Dunham, Stephen Crane, and Steven Rosen.

Video archive of oral argument before Washington Supreme Court, February 28, 2006 

TLPJ’s Response to Amicus Briefs in Support of Respondent

Amicus Briefs of (1) the Washington Attorney General, (2) the Washington State Trial Lawyers’ Association, and (3) AARP and NACA

TLPJ’s Supplemental Brief (link)

TLPJ’s Reply Brief on the Merits (Court of Appeals) April 22, 2005 (link)

TLPJ’s Opening Brief on the Merits (Court of Appeals) January 21, 2005 (link)
 

Stephenson v. Dow Chemical Co. (U.S. Supreme Court)

In an important ruling for Vietnam veterans’ injured by exposure to Agent Orange, on June 9, 2003, the U.S. Supreme Court in Stephenson v. Dow Chemical declined to overturn a landmark decision of the U.S. Court of Appeals for the Second Circuit that the 1984 class action settlement of Vietnam veterans’ claims against the manufacturers of the toxic defoliant Agent Orange does not bar a suit by veterans who would not obtain any relief under the settlement. TLPJ had filed an amicus brief urging the Supreme Court to affirm the Second Circuit’s decision, which recognized the veterans’ right to sue for their injuries. TLPJ’s lead counsel was Brent Rosenthal of Dallas. TLPJ’s Leslie Brueckner assisted on the brief.

TLPJ’s Amicus Brief to the Second Circuit (link)

TLPJ's Amicus Brief to the U.S. Supreme Court (PDF) (link)

Tamayo v. Brainstorm USA (U.S. Court of Appeals for the Ninth Circuit)

TLPJ briefed and argued this appeal where the U.S. Court of Appeals for the Ninth Circuit held that the lender’s mandatory arbitration clause barring class claims by consumers was unconscionable under California law, and that lender’s Ohio choice-of-law clause could not be used to evade California law on this issue. TLPJ’s Paul Bland and Michael Quirk were lead appellate counsel. Our co-counsel are Bryan Kemnitzer and Kevin Mallon of San Francisco; Scott Maurer of the Alexander Community Law Center in East San Jose; and Eric Wayne Wright of Los Gatos, California.

Plaintiffs-Appellees’ Brief on the Merits (link)

Tillman v. Commercial Credit, Inc. (North Carolina Court of Appeals)

This putative class action alleges that a predatory lender deceived its customers into buying and financing worthless credit insurance products. The trial court denied the defendant’s motion to compel arbitration, finding that a provision in the arbitration clause banning class actions denied the class members of any meaningful opportunity for relief. The defendant appealed. TLPJ, the North Carolina Justice Center, and the Financial Protection Law Center, filed an amici brief urging the North Carolina Court of Appeals to find that arbitration clauses banning class actions violate North Carolina law. On June 6, 2006, the Court of Appeals reversed, and held by a 2-1 vote that the class action ban was not illegal. TLPJ’s Richard Frankel wrote the brief, with assistance from TLPJ’s Paul Bland, and co-counsel Carlene McNulty of the North Carolina Justice Center in Raleigh, NC, and Mallam J. Maynard of the Financial Protection Law Center in Wilmington, NC.

TLPJ’s Amici Curiae Brief (link)

Ting v. AT&T (U.S. Court of Appeals for the Ninth Circuit)

In this case, TLPJ won an important ruling for California long distance phone customers. Phone giant AT&T attempted to impose upon its customers an unfair, one-sided arbitration system, but on February 11, 2003, the U.S. Court of Appeals for the Ninth Circuit struck down provisions in AT&T’s arbitration clause that (a) stripped consumers of the right to file or participate in a class action; (b) stripped consumers of various rights and shielded AT&T from damages for willful misconduct under California’s consumer protection laws; (c) required consumers to pay expensive fees for arbitration; and (d) contained a gag rule requiring consumers to keep secret any dispute they might have against AT&T. On October 6, 2003, the Supreme Court let stand TLPJ's major victory for consumers against AT&T.

TLPJ's Press Release (link)

Opinion (link)

TLPJ's Reply Brief (Court of Appeals, Ninth Circuit, July 15, 2002) (link)

Findings of Fact and Conclusions of Law (Northern District of California, Jan. 15, 2002) (link)

Plaintiffs' post-trial reply brief (Northern District of California, December 3, 2001) (link)

Plaintiffs' post-trial brief (Northern District of California, November 28, 2001) (link)

Plaintiffs' trial brief (Northern District of California, October 19, 2001) (link)

Complaint in a representative and class action (Superior Court of California, Alameda, July 30, 2001) (link)

Wilson v. Massachusetts Mutual Life Insurance Company (New Mexico State Court)

A proposed national class action settlement of consumer protection claims by the Massachusetts Mutual Life Insurance Company (MassMutual) was withdrawn and a hearing on the fairness of the settlement was cancelled after TLPJ challenged the deal as an abuse of both the class action device and class members. The formal notice withdrawing the settlement was filed on February 19, 2001. The withdrawn settlement proposal in Wilson v. Massachusetts Mutual Life Insurance Company, which had been pending in the First Judicial District Court of New Mexico in Santa Fe County, would have paid nothing to the 6.5 million class members. The two class representatives, however, would have received a total of $350,000 and class counsel would have been paid $5 million in cash, a $3 million life insurance policy, and annual payments of $250,000 for life.

Press Release: (link)

TLPJ’s Objections: (link)

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Federal Preemption Project

Brailsford v. Nissan Motor Company (Seventeenth Judicial Circuit, Broward County, Florida)

TLPJ won the first decision in the country to uphold a plaintiff's right to sue an auto maker for its failure to install a lap/shoulder belt in the rear-center seat of a passenger car. The plaintiff in this case was a four-year-old boy who was permanently paralyzed after a car crash. A Florida court rejected Nissan's argument that common-law tort claims alleging that a car maker should have installed three-point lap/shoulder belts, rather than two-point lap belts, in the rear-center seats of its 1998 Nissan Sentra cars are preempted by a federal regulation that gave car makers the option of installing either lap/shoulder belts or lap belts in rear-center seats. This decision came in response to TLPJ's arguments that the mere existence of a regulatory option does not exert any preemptive effect and that the plaintiffs' claims did not undermine any specific federal regulatory purpose. Shortly after this decision, the case settled. TLPJ’s Leslie Brueckner was lead counsel on the preemption issue. Co-counsel was Theodore Leopold of West Palm Beach, Florida.


Plaintiffs’ opposition to defendant's motion for partial summary judgment.  (link)

Sprietsma v. Mercury Marine (U.S. Supreme Court)

On December 3, 2002, the U.S. Supreme Court issued a 9-0 ruling in Sprietsma v. Mercury Marine, holding that neither the Federal Boat Safety Act of 1971 nor a 1990 decision by the U.S. Coast Guard not to require propeller guards on recreational motor boats bars injury victims from suing recreational boat engine manufacturers under state law for failing to install propeller guards on their boats. The Court unanimously rejected the engine manufacturer's preemption defense, holding that a lawsuit seeking damages for injuries caused by an unguarded boat propeller does not conflict with any federal purposes. TLPJ handled this federal preemption appeal on behalf of a man whose wife was killed when she came into contact with an unguarded boat propeller. 

Press Release: <www.tlpj.org/pr/sprietsma_12-03-02.htm>

U.S. Supreme Court Decision (PDF): <www.tlpj.org/briefs/sprietsma_decision_12-03-02.pdf>

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Mandatory Arbitration Abuse Prevention Project

Boghos v. Lloyds of London (California Supreme Court)

The court will decide whether a mandatory arbitration clause can be enforced against a severely disabled man by an insurance company trying to avoid paying his disability insurance, where (a) the arbitration clause would require the man to pay prohibitive fees to the arbitrators; and (b) the insurance company agreed to submit to the jurisdiction of California courts. TLPJ prevailed on both issues in the Court of Appeals, and briefing is complete in the case.

TLPJ's Brief to the California Court of Appeal: <www.tlpj.org/briefs/lloyds.brief.pdf>

TLPJ's Brief to the California Supreme Court: <www.tlpj.org/briefs/Boghosanswerbrief.pdf>

Discover Bank v. Superior Court (California Supreme Court)

The court will decide whether a mandatory arbitration clause can also bar consumers from bringing their claims on a class action basis. TLPJ’s client argues that the ban on class actions has the effect of leaving consumers with no meaningful remedy for being cheated out of small sums of money, and is thus unconscionable. Briefing is complete in the case.

TLPJ's Reply Brief: <www.tlpj.org/briefs/discover_reply.pdf>

TLPJ's Opening Brief: <www.tlpj.org/briefs/discover_brief_5-9-03.pdf>

Cardegna v. Buckeye Check Cashing (Florida Supreme Court)

The court will decide whether a mandatory arbitration clause may be enforced when it is embedded in a contract that is alleged to violate Florida’s criminal laws against usury and loan sharking. TLPJ’s client argues that where an entire contract is void ab initio under a state’s normal principles of contract law, that it never comes into existence and no part of it can be enforced.

TLPJ's Brief: <www.tlpj.org/briefs/buckeye_opening.pdf>

Hayes v. County Bank (New York Supreme Court Appellate Division, Second Department)

This is a putative class action by borrowers alleging that a payday lending company violated New York civil rights and usury laws by targeting low-income and predominantly African-American communities for the marketing and issuance of short-term loans with annual interest rates in excess of 900%. A New York state trial court held that the payday lender’s mandatory arbitration clause barring claims for class-wide relief was enforceable, and ordered the plaintiffs to arbitrate their claims. The plaintiffs appealed. On April 27, 2004, TLPJ filed an amici brief on behalf of a coalition of public interest groups that include the New York Public Interest Research Group, the Greater Upstate Law Project, the Neighborhood Economic Development Advocacy Project, Consumer Federation of America, and AARP. The public interest groups’ brief argues that: (1) the court has jurisdiction to hear the plaintiffs’ appeal because the Federal Arbitration Act does not preempt New York’s rule allowing direct appeals from orders compelling arbitration; (2) the arbitration clause is unconscionable under New York contract law because it bars claims for class-wide relief; and (3) the Federal Arbitration Act does not preempt this application of New York contract law. TLPJ’s Michael Quirk and Richard Frankel wrote the amicus brief with input from Paul Bland and co-counsel Deborah Zuckerman of AARP, Russ Hayes of NYPIRG, and Rachel Weintraub of CFA.

TLPJ's Amici Brief: <www.tlpj.org/briefs/hayes_amici_040704.PDF>

Leeman v. Cook’s Pest Control (Alabama Supreme Court)

The court will decide whether a mandatory arbitration clause can require homeowners with modest claims against pest control companies to pay fees of $10,000 or more to the American Arbitration Association under its commercial rules. TLPJ’s client argues that these costs are prohibitive and will prevent the plaintiffs from vindicating their rights.

TLPJ's Reply Brief: <www.tlpj.org/briefs/leeman_reply.pdf>

TLPJ's Opening Brief: <www.tlpj.org/briefs/cooks_opening.pdf>

Saldukas v. Raymond James (Florida Supreme Court)

The court will decide whether a corporation may flatly refuse to arbitrate a case with an individual, and ask a court to dismiss the case with prejudice, and then after the court rejects its argument go on to change its mind and demand arbitration of the case after all. TLPJ’s client argues that the corporation has waived its right to arbitrate, even if the individual does not prove that they suffered some form of prejudice as a result of the corporation’s dilatory tactics.

TLPJ's Opening Brief: <www.tlpj.org/briefs/saldukas_opening.pdf>


Sanderson Farms, Inc. v. Gatlin
(Mississippi Supreme Court)

The Supreme Court of Mississippi ruled on June 26, 2003 that Sanderson Farms, Inc. (Sanderson) - one of the top seven poultry producers in the United States - wrongfully denied family farmers Roy and Nelda Gatlin of Jones County, Mississippi, the right to have their day in court, when the company terminated the couple’s production contract prematurely, then breached its promise to pay half the $11,000 estimated costs for an arbitration hearing. The Court affirmed by a 6-3 vote the ruling of the Circuit Court of Jones County, which found that Sanderson had violated its own arbitration clause and, in so doing, waived its ability to force the farmers into arbitration. TLPJ wrote the Gatlins’ brief on appeal, which was filed on July 3, 2001. TLPJ’s brief argued that the trial court was correct and, alternatively, that the arbitration clause was unconscionable for imposing significant costs and depriving the farmers of their right to recover punitive damages or participate in class actions.

TLPJ’s Opposition Brief: <www.tlpj.org/briefs/54729_1.htm>

TLPJ's Press Release: <www.tlpj.org/pr/sanderson_6-27-03.htm>

Ting v. AT&T
(U.S. Supreme Court)

California long distance phone customers won the right to challenge phone giant AT&T in court instead of being forced into an unfair, one-sided arbitration system, after the U.S. Supreme Court refused to hear the corporation’s appeal. On October 6, 2003, the Supreme Court let stand TLPJ's major victory for consumers against AT&T, declining to review a decision by the U.S. Court of Appeals for the Ninth Circuit which held that provisions in AT&T’s standard form contract requiring long distance customers to submit their claims to mandatory arbitration are unconscionable and unenforceable. The denial of certiorari in Ting v. AT&T finalizes a significant legal victory for seven million California long distance customers of AT&T who filed a class action lawsuit challenging the corporation’s new mandatory arbitration provision. On February 11, 2003, the Court of Appeals struck down provisions in AT&T’s arbitration clause that (a) stripped consumers of the right to file or participate in a class action; (b) stripped consumers of various rights and shielded AT&T from damages for willful misconduct under California’s consumer protection laws; (c) required consumers to pay expensive fees for arbitration; and (d) contained a gag rule requiring consumers to keep secret any dispute they might have against AT&T.

Press Release: <www.tlpj.org/News_HTM/ting_att_10-6-03.htm>

Opinion (PDF): <www.tlpj.org/briefs/ting_att_2-11-03.pdf>

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Project ACCESS (Fighting Unnecessary Court Secrecy)

Foltz v. State Farm (U.S. Court of Appeals for the Ninth Circuit)

The U.S. Court of Appeals for the Ninth Circuit has ordered a federal district court in Oregon to determine whether the public can see court records and evidence in a consumer fraud case that State Farm Insurance Company has battled for eight years to keep secret. On June 18, 2003, the Court of Appeals issued a long-awaited decision in State Farm v. Foltz reversing a trial court ruling that permitted the blanket sealing of discovery materials and court records in a consumer fraud case against State Farm Insurance Company. TLPJ, which intervened in the case on behalf of several non-profit groups that monitor insurance fraud, had urged the Court to rule as it did. The information, which has been under seal since the underlying case against State Farm settled in 1998, may contain important evidence of abusive insurance practices. The Court of Appeals ruled that the documents were improperly sealed without any demonstration of a legitimate need for secrecy, and sent the case back to the trial court to decide whether a compelling interest exists to justify sealing evidence of State Farm’s misconduct.

Press Release: <www.tlpj.org/pr/foltz_statefarm_6-20-03.htm>

TLPJ’s Renewed Motion to unseal court records: <www.tlpj.org/briefs/renew_mem.htm>

Memorandum in Support of Motion: <www.tlpj.org/briefs/renew_mem.htm>

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Civil Rights

TOP

Chiras v. Miller (U.S. Court of Appeals for the Fifth Circuit)

This First Amendment lawsuit charges that Texas State Board of Education officials’ rejection of an environmental science textbook for use in public high schools constitutes censorship in violation of the U.S. Constitution. The lawsuit was filed in October 2003 on behalf of the author and a putative class of Texas public high school students who have been denied access to the textbook. Plaintiffs seek a court order declaring that the Board members’ rejection of the book was unconstitutional and requiring the book’s inclusion on the list of state-approved texts. The author also seeks damages from several current and former Board members in their personal capacities, stemming from lost sales caused by their censorship. Defendants filed a motion to dismiss on December 19, 2003. The court ordered dismissal of the case on August 4, 2004, and plaintiffs appealed to the U.S. Court of Appeals for the Fifth Circuit. Plaintiffs’ opening brief was filed on November 15, 2004.

Press Release: <https://www.tlpj.org/pr/texas_103003.htm>

Hickey v. City of Seattle (U.S. District Court, Western District of Washington)

The City of Seattle agreed to pay $250,000 to settle the wrongful arrest claims of 155 peaceful protesters and bystanders arrested during the World Trade Organization (WTO) conference in December 1999. The plaintiffs charged that the City violated their right to be free from unreasonable seizures when it herded, trapped, and arrested them on December 1, 1999, without giving them a meaningful opportunity to disperse. All of them were outside a "no-protest zone" in downtown Seattle created by then-Mayor Paul Schell in response to massive protests against the WTO. And all of them were booked using the same photocopied arrest warrant, listing an arresting officer who later admitted that - contrary to what the warrants state - he neither gave any warnings nor made any of the arrests. On the eve of trial in this civil rights class action, entitled Hickey v. City of Seattle, a federal judge held that Seattle police had no probable cause for the arrests.

TLPJ also represents a putative class of approximately 500 peaceful protesters who were arrested within the boundaries of the "no-protest zone." Their claim that the "no-protest zone" policy violated their First Amendment rights is currently on appeal.

Press Release: <www.tlpj.org/pr/wto_1-23-04.htm>

Plaintiffs' Reply Brief (PDF): <www.tlpj.org/briefs/wto_reply_103103.pdf>

Notice to Protestors (PDF): <www.tlpj.org/briefs/wto_notice_12-17-02.pdf>

Parents Against Disability Discrimination v. Equity Residential (U.S. District Court, Western District of Washington)

This class action lawsuit seeks to stop disability discrimination by a private contractor that provides housing for military families living on the U.S. Army base at Fort Lewis, Washington. The lawsuit alleges that the private contractor, known as "Equity," has violated federal and state civil rights laws by failing to make reasonable physical modifications to housing units as needed by disabled individuals; failing to make reasonable accommodations to policies, practices, and procedures needed by the disabled; failing to make common areas accessible to the disabled; making unlawful inquiries about individuals’ disabilities; and harassing and intimidating families with members who are disabled. Sid Wolinsky and Monica Goracke of Disability Rights Advocates in Oakland, CA are lead counsel. Michael Withey of Seattle, WA, Christopher Brancart of Pescadero, CA, and TLPJ’s Victoria Ni are co-counsel.

For Factual Background on Fort Lewis Housing Discrimination, click here.

TLPJ's Complaint: click here.


Singleton v. Regents of the University of California
(California State Court)

In February 2004, the Alameda Superior Court in Oakland, California approved a settlement agreement that resolves a class action lawsuit charging that thousands of female employees were denied equal pay and promotional opportunities at Lawrence Livermore National Laboratory (the “Lab”), a national security research facility managed by the Regents for the U.S. Department of Energy. More than 3,000 female Lab employees were represented by four law firms, including lead counsel The Sturdevant Law Firm in San Francisco and TLPJ. The settlement provides for significant injunctive and monetary relief, including $9.7 million for class members and a 1% increase in base pay for female employees. The legal team includes lead counsel James Sturdevant, Mark Johnson, and Karen Hindin of San Francisco; co-counsel Gary Gwilliam of Oakland, California; co-counsel Todd Schneider and Guy Wallace of San Francisco; and TLPJ's Arthur Bryant and Victoria Ni.

Press Release: <www.tlpj.org/pr/llnl_settlement_112003.htm>

Motion to Compel: <www.tlpj.org/briefs/singleton_motion.htm>

Smith v. City of Jackson (U.S. Supreme Court)

TLPJ joined an amici brief by the National Employment Lawyers Association urging the U.S. Supreme Court to rule that the Age Discrimination in Employment Act (ADEA) prohibits not only intentional discrimination, but also disparate impact discrimination, against people 40 and over. The brief, filed on June 14, 2004, argues that employers are liable for disparate impact discrimination on the basis of age under the ADEA, just as they are liable for disparate impact discrimination on the basis of race, color, religion, sex, and national origin under Title VII of the Civil Rights Act of 1964.

White v. Engler (U.S. District Court, District of Michigan)

TLPJ is co-counsel with the ACLU Fund of Michigan, the NAACP-Michigan State Conference, and MALDEF in this federal class action challenging a Michigan college scholarship program as discriminatory. The suit charges that the state's reliance on the Michigan Educational Assessment Program (MEAP) test as the sole criterion for awarding scholarships discriminates against racial and ethnic minorities, as well as economically disadvantaged students. Recent U.S. Supreme Court decisions in unrelated cases eviscerated plaintiffs' disparate impact claim. As a result, plaintiffs agreed to dismiss that claim and to proceed with their intentional discrimination claim based on a "deliberate indifference" standard. Plaintiffs have completed discovery on their remaining claim. The court has not yet set a trial date. TLPJ State Coordinator Michael Pitt of Royal Oak, MI and Kary Moss of Detroit's ACLU are co-lead counsel.  Co-counsel are Michael Steinberg of Detroit's ACLU; Alonzo Rivas of Chicago's MALDEF; Peggy Goldberg of Royal Oak, MI; Judith Martin of Okemos, MI; John Johnson of Detroit's NAACP; and TLPJ's Adele Kimmel and Rebecca Epstein.

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Consumer Rights

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Dua v. Comcast Cable of Maryland, Inc. and Harvey v. Glendening and Kaiser Foundation (Maryland Court of Appeals)

TLPJ filed an amicus brief in this case challenging the constitutionality of legislation that would retroactively overturn a Maryland Court of Appeals decision that a cable TV company had charged illegal and excessive late fees. On February 6, 2001, the Maryland Court of Appeals heard argument in this case. On August 30, 2002, in the consolidated case of Dua v. Comcast/Harvey v. Kaiser, Maryland’s Court of Appeals held that the law’s retroactive application was unconstitutional.

Press Release: <www.tlpj.org/pr/cmp_060303.htm>

McQuillan v. Check 'N Go of North Carolina, Inc., Hager v. Check into Cash of North Carolina, Inc., and Kucan v. Advance America (New Hanover County Superior Court in North Carolina)

Consumers filed a series of lawsuits on July 27, 2004 against three of North Carolina's largest payday lenders -- Advance America, Check into Cash, and Check 'N Go -- alleging that the lenders exploit poor people by luring them into quick loans that carry exorbitantly high interest rates up to 500 percent. The lawsuits were filed by a team of consumer advocates, including three public interest organizations -- North Carolina Justice Center, Financial Protection Law Center, and TLPJ -- as well as a number of public interest lawyers.

Press Release: <https://www.tlpj.org/pr/nc_payday_072804.htm>

Letter to North Carolina Commissioner of Banks re Payday Lending (November 9, 2004).

Riemer v. Columbia Medical Plan (U.S. Court of Appeals for the Fourth Circuit)

In an important victory for consumers’ rights, the Circuit Court of Howard County, Maryland ruled in Riemer v. Columbia Medical Plan that a Maryland HMO must repay its members for illegally double-billing them. The HMO members’ task of proving their damages, however, will be complicated because Columbia Medical Plan (CMP) recently admitted that it has destroyed much of the evidence of its wrongdoing. TLPJ and a team of consumer lawyers filed the class action lawsuit in 1996, challenging the Maryland HMO’s practice of double-billing its members whenever they recover damages from a third party (also known as "subrogation"). Judge James B. Dudley’s two-page order dated May 28, 2003 denied all of CMP’s defenses in the case, ensuring that the HMO will be held liable for its illegal double charges to hundreds, if not thousands, of consumers.

Press Release: <www.tlpj.org/pr/cmp_060303_test.htm>

Ryan v. Koehler International, Inc.
(Pennsylvania State Court)

This products liability lawsuit alleges that Smith & Wesson defectively designed and failed to child-proof a nine-millimeter semi-automatic handgun. The suit seeks damages for an eight-year-old boy who was accidentally shot in the face by another boy playing with a gun he thought was unloaded. The plaintiffs are represented by co-lead counsel Robert L. Pottroff of Manhattan, KS and Robert J. Mongeluzzi of Philadelphia; co-counsel Stephen W. Brown of Pratt, KS; and TLPJ’s Arthur Bryant and Victoria Ni.

Press Release: https://www.tlpj.org/pr/ryan_gun_safety.htm

Timmis v. Kaiser Permanente (California Court of Appeal, First Appellate District)

This lawsuit seeks to enjoin Kaiser Permanente, California's largest HMO, from forcing its members to accept and manually split prescription pills that are twice the members' prescribed doses. The suit charges that Kaiser's policy endangers the health of patients, who may receive uneven medication doses, solely to improve Kaiser's bottom line. In July 2001, the plaintiffs defeated, in large part, the defendant's efforts to compel arbitration of the case. In April 2003, the trial court granted Kaiser's motion for summary judgment on grounds of judicial abstention. The plaintiffs appealed. Oral argument was held on October 19, 2004 before the First Appellate District of the California Court of Appeal. The plaintiffs are represented by lead counsel Mark P. Robinson, Jr., and Sharon J. Arkin of Newport Beach, California; co-counsel Thomas R. Grande of Honolulu; and TLPJ's Arthur Bryant and Victoria Ni.

Press Release: <www.tlpj.org/pr/kaiser_split.htm>

Complaint: <www.tlpj.org/briefs/timmis_kaiser.htm>

Wells v. Chevy Chase Bank (Maryland State Court)

Maryland’s highest court issued a ruling on September 23, 2003 that gives credit cardholders the green light to proceed with the national class action lawsuit that TLPJ filed against Chevy Chase Bank for breaking its promise “never” to charge more than 24 percent interest. In a 44-page decision with a 1-page dissent, Maryland’s Court of Appeals ruled 6-1 in Wells v. Chevy Chase Bank that the federal Home Owners' Loan Act (HOLA) does not preempt cardholders’ breach of contract claims. As a result, the cardholders will get their day in court to challenge Chevy Chase’s 1996 decision to increase interest rates well above the promised 24 percent ceiling.

Press Release: <www.tlpj.org/pr/53291_1.htm>

TLPJ’s Amended Complaint: <www.tlpj.org/briefs/chch.htm>

TLPJ’s Reply Brief Opposing Arbitration: <www.tlpj.org/briefs/51246_2.htm>

TLPJ’s Opposition to Defendant’s Motion to Compel Arbitration: <www.tlpj.org/briefs/chch2.htm>

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Environmental Enforcement Project

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Bragg v. Robertson (U.S. District Court, Southern District of West Virginia)

TLPJ filed a lawsuit in July 1998 on behalf of ten West Virginia citizens and the West Virginia Highlands Conservancy to stop coal mining companies from shearing the tops off the state’s mountains and dumping them into the valleys and streams below. The lawsuit charges that West Virginia’s Department of Environmental Protection and the U.S. Army Corps of Engineers are violating federal environmental laws by issuing permits that allow the extraordinarily destructive mountaintop removal mining process now taking place.

In December 1998, the plaintiffs reached a landmark settlement with the federal defendants requiring preparation an Environmental Impact Statement and imposing interim controls on federal permitting practices. In March 1999, the court granted a preliminary injunction to stop permitting of the Hobet Spruce Mine, which was the largest proposed mining permit in state history. In June 1999, the Corps withdrew the permit for the Spruce Mine and Hobet agreed to seek a new permit under more stringent procedures. In October 2000, the court blocked the filling of larger WV streams with mining waste. In February 2000, the court approved a consent decree with the state that required it to reform significantly its permitting system. In April 2001, the U.S. Court of Appeals for the Fourth Circuit reversed the district court’s October 2000 injunction and dismissed the case for lack of federal jurisdiction. The U.S. Supreme Court denied review of the case.

TLPJ’s Appellate Brief urging Court to uphold the district court's decision to grant summary judgment and injunctive relief on buffer zone claims: <www.tlpj.org/briefs/bragg.htm>

Citizens Against Pollution v. American Electric Power Company (U.S. District Court, Southern District of Ohio)

TLPJ's lawsuit on behalf of 82 Ohio residents to force American Electric Power Company (AEP), the nation’s largest electric utility, to reduce the amount of sulfuric acid mist it emits from the 830-foot-high smokestacks at its largest coal-fired power plant, the Gen. James A. Gavin Power Plant in Cheshire, Ohio.

Press Release: <https://www.tlpj.org/pr/cheshire_051204.htm>

Ellis v. Gallatin Steel Co. and Harsco Corp. (U.S. District Court, Eastern District of Kentucky)

A Special Master appointed by the U.S. District Court for the Eastern District of Kentucky issued a report on December 1, 2002, in which he found that Gallatin Steel and Harsco Corporation -- defendants in TLPJ's successful citizen enforcement lawsuit -- continue to violate the Clean Air Act. Special Master Jeff Boyle concluded that "an extensive monitoring plan is warranted" and -- at TLPJ's request -- recommended video monitoring of the companies' Kentucky operations to curb their release of fugitive dust clouds and other pollutants that blow "approximately 200 feet in the air." Three Kentucky residents filed this citizen suit against Gallatin Steel Company's steel mill in north central Kentucky for unpermitted emissions from its smelt shop and against a nearby slag dumping and processing area operated by Harsco Corporation. The complaint alleged violations of the Clean Air Act, Clean Water Act, and two federal hazardous waste statutes. The U.S. EPA and Kentucky later filed administrative and judicial enforcement actions raising similar claims and proposing corrective actions. The federal court in Kentucky issued a major environmental decision on October 3, 2002, granting TLPJ's request for a permanent injunction to stop Gallatin and Harsco from emitting clouds of dust in violation of the Clean Air Act and Kentucky law.  Jeffrey M. Sanders and Robert Sanders of Kentucky, Jonathan A. Conte of Cincinnati, and TLPJ's Jim Hecker are co-counsel.

Press Release: <www.tlpj.org/pr/gallatin_victory_10-4-02.htm>

Amended Citizen Suit Complaint (PDF): <www.tlpj.org/briefs/brashear.amended.complaint1.pdf>

Decision (PDF): <www.tlpj.org/briefs/gallatin.ruling.pdf>

Kentuckians For The Commonwealth v. Rivenburgh (U.S. District Court, Southern District of West Virginia)

This case challenges the U.S. Army Corps of Engineers' decision to grant a nationwide permit under the Clean Water Act to a surface mining operation in Kentucky that proposes to fill six miles of streams with mining waste. In May 2002, the district court ruled that the Corps had no authority under that Act to approve permits to dump waste in streams. Defendants have appealed this ruling to the U.S. Court of Appeals for the Fourth Circuit. Joe Lovett of the Appalachian Center for the Economy and the Environment in Lewisburg, West Virginia, Joe Childers of Kentuckians for the Commonwealth in Lexington, Kentucky, and TLPJ's Jim Hecker are co-counsel. 

Press Release: <www.tlpj.org/pr/ivf.htm>

News Coverage: Judge Takes on Bush on Mountaintop Mining -- New York Times

Ohio Valley Environmental Coalition v. Bulen (U.S. District Court, Southern District of West Virginia)

TLPJ has achieved a landmark victory that significantly reforms the permitting process for mountaintop removal coal mining. On July 8, 2004, U.S. District Judge Joseph R. Goodwin in West Virginia ruled that the U.S. Army Corps of Engineers can no longer allow coal companies to bury mountain streams with mining waste using a "streamlined" general permit process intended only for activities that cause minor environmental damage. As a result of the ruling, the Corps will not be able to approve new permits to fill streams with mining waste until after it conducts more detailed environmental impact studies at each site.

News Coverage: <https://www.tlpj.org/News_PDF/ch_gazette_070804.pdf>

Press Release: <www.tlpj.org/pr/army_corps_10-23-03.htm>

TLPJ's Complaint (PDF) <www.tlpj.org/briefs/army_corps_complaint.pdf>

Puerto Rico Campers' Association v. Puerto Rico Aqueduct & Sewer Authority (Puerto Rico)

This is a citizen's suit under the Clean Water Act for violations of a discharge permit by a waste water treatment plant on the northeastern coast of Puerto Rico. TLPJ achieved a settlement in June 2004 requiring Puerto Rico Aqueduct and Sewer Authority (PRASA) to upgrade sewage treatment plant and protect Puerto Rico’s most pristine river from pollution. The decree requires PRASA to reduce flow into its overloaded treatment plant, divert flow to a second plant, and upgrade that plant to handle the higher flow. Cindy Gines of Mayaguez, Puerto Rico and TLPJ's Jim Hecker are co-counsel.

Texans United v. Crown Central Petroleum (Texas Federal Court)

This citizen suit under the Clean Air Act was brought against Crown Central Petroleum’s Pasadena, Texas refinery for excessive air pollution emissions. The lawsuit was filed in July 1997. In July 1998, the court dismissed the case, finding it precluded by state enforcement action. In April 2000, the Fifth Circuit reversed and remanded the case for trial. In February 2001, the parties filed a proposed Consent Decree requiring Crown to pay $1.6 million in penalties and to implement injunctive relief. 

Press Release: <www.tlpj.org/pr/crown_sett.htm>

TLPJ’s Complaint: <www.tlpj.org/briefs/crown.htm>

TLPJ’s Supplemental Notice Letter to Crown <www.tlpj.org/briefs/cronot.htm>

West Virginia Highlands Conservancy v. Norton (U.S. District Court, Southern District of West Virginia)

This suit against federal and state officials challenges the adequacy of West Virginia's bonding system for surface coal mines under the federal Surface Mining Act. The court has found that the federal officials violated their duty to require the state to correct serious defects in the bonding system. In January 2003, the court declined to set aside federal approval of the state's plan to correct these defects, but retained jurisdiction to make sure the plan is implemented.  Joe Lovett of Lewisburg, West Virginia, Pat McGinley and Suzanne Weise of Morgantown, WV, and TLPJ's Jim Hecker are co-counsel.

Press Release: <www.tlpj.org/pr/wv_coal.htm>

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Toxic Torts

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New York City v. Lead Industries Association (New York State Court)

This case seeks reimbursement from the lead industry for the cost of removing lead paint from the city’s public housing. The city moved to strike the defendants’ defenses against being held liable on an industry-wide basis, but the court denied the motion, finding that more discovery was needed. The state’s intermediate appeals court affirmed the ruling and further discovery is now taking place. TLPJ's Arthur Bryant is "of counsel" on the case.

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