Public Justice Fights Insurer s Attempt To Seize Benefits from Injury Victim

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1 Photo: Taber Andrew Bain FALL SUPPORTING THE WORK OF AMERICA S PUBLIC INTEREST LAW FIRM Country s Largest Payday Lender to Pay $18.75 Million To North Carolina Consumers for Illegal Overcharges A dvance America, the country s largest payday lender, has agreed to pay $18.75 million to more than 140,000 North Carolina consumers under a new settlement agreement announced in September. The settlement will resolve a 2004 class action lawsuit that accused Advance America of charging illegal fees and interest rates. As far as I am aware, this is by far the largest settlement that any class of consumers has won from any payday lender in the United States, said Paul Bland, Senior Attorney at Public Justice. It is the single biggest achievement on behalf of consumers against payday lenders that I P ublic Justice has agreed to advocate for a Washington state woman being sued by her employer s health insurance plan for the money it paid to cover her medical expenses after she was seriously injured in an auto accident. The insurance carrier claims that Rhonda Rose, 46, must reimburse the INSIDE 3: Public Justice Fights for Access In Two Supreme Court Cases 4: Castaneda Case Goes to Trial 6: One-Sided Arbitration Challenged in New Mexico 11: Trial Lawyer of Year and Finalists Honored in Vancouver 13: Access to Justice Support Critical have seen in any private lawsuit in the nation. So-called payday loans are short-term loans or cash advances secured by a post-dated check for the full amount of the loan plus interest or other fees. The class representatives in Kucan v. Advance America, the North Carolina suit, obtained loans from Advance America with annual percentage rates exceeding 450%. State law caps interest for that type of loan at 36%. Class action lawsuits to recover funds for illegally charged and overcharged bor- Public Justice Fights Insurer s Attempt To Seize Benefits from Injury Victim company for 100 percent of her medical benefits, even though she recovered only a small fraction of her damages in a lawsuit against the person who caused the accident due to the defendant s low insurance limits. If the company succeeds, it will walk away without paying out a penny on Rose s policy, while she is left without full compensation for her injuries. In February, Rose s health insurance plan, which was administered through her employer, CGI Technologies and Solutions, Inc., sued both her and her attorneys in federal court in Washington for complete reimbursement of the medical expenses her insurance policy covered. The plan is funded under the Employee Retirement Income Security Act (ERISA), a federal law that sets min- See Personal Injury Victim, page 5. rowers are part of a onetwo punch against illegal payday lending practices in the state. The state attorney general s office previously reached an agreement with three other major payday lenders, Check Into Cash, Check N Go and First American Cash Advance, to stop making the illegal payday loans in the state. Consumers who got a payday loan at Advance America or National Cash Advance in North Carolina on or after March 1, 2003, will not need to file a claim to participate in the settlement. If the settlement is approved, checks will be mailed to all class members who can be located, beginning in the first half of In addition to Bland, the plaintiffs were represented by Carlene McNulty of the North Carolina Justice Center in Raleigh; Mal Maynard of the Financial Protection Law Center in Wilmington, NC; lead counsel Jerry Hartzell of Raleigh; Mona Lisa Wallace and John Hughes of Salisbury, NC; and Richard Fisher of Cleveland, TN. Court Ruling Forces Coal Industry Cleanup A federal judge s ruling that a major coal company must install advanced pollution control equipment to treat toxic selenium discharges from two West Virginia coal mines is a bellweather that will force the mining industry to pay far more for the costs of its pollution, says a Public Justice attorney who took the company to court. See Selenium Pollution Ruling, page 6.

2 PRESIDENT S REPORT Fighting Injustice Is Our Ongoing Mission J Harry Deitzler ustice for all is the foundational rock of America, the immutable tenet that sets this country apart from all others. Ours is the oldest written constitution still in existence, and our justice system is the envy of the world. At the same time, we are acutely aware that injustice happens in America. Through the Public Justice Foundation, we are ordinary people joining together in an extraordinary mission: to erase injustice from our society. Our vision is to create a better world for our children. The Public Justice Foundation brings passion to a cause. Through your membership and support, and with help from Public Justice, we continue to defeat injustice, one project at a time, and one case at a time. Injustice is undeniable when it costs a citizen more for redress than the value of the redress itself. Our Access to Justice Campaign leads the nation in the fight against wrongdoers efforts to use arbitration, preemption and other devices to eliminate court access. Injustice is undeniable when a company places profits ahead of people by forcing its employees to work in unsafe conditions, denying equal pay for equal work, and using harassment and retaliation to limit workers access to the courts. Case by case, we have exposed and stopped discrimination, changed unfair workplace practices, and won compensation for workers who are injured, low-wage, women, or minority. Injustice is undeniable when corporations do wrong and then have Congress enact legislation to prevent consumers, workers, and investors from seeking redress for the bad conduct through class actions. Our Class Action Preservation Project has won the leading decisions in the nation striking down class action bans so that it will not be profitable for companies to beat the competition by cheating their own customers. Injustice is undeniable when big companies pass their business costs to the communities around them by ignoring basic responsibilities not to contaminate community air and water or cause other environmental devastation. Our Environmental Enforcement Project uses citizen suits and other litigation to protect communities and also level the playing field for honest corporations by forcing the wrongdoing corporations to comply with basic environmental laws. Perhaps we will be fighting injustice forever. Although our goal is to get it done, our commitment is that we will always be there for you. As your President, I thank you for being there for us. EXECUTIVE DIRECTOR S REPORT Connect the Dots A ny question how crucial our Access to Justice Campaign is? Connect the dots. In October, the World Justice Project including Madelyn Albright, James A. Baker III, Bill Gates, Colin Powell, and Desmond Tutu published a report ranking the rule of law in 35 countries. The Project is dedicated to advancing the rule of law around the world because it is the predicate for the eradication of poverty, violence, corruption, pandemics, and other Arthur H. Bryant threats to civil society. One of the four universal principles the Project evaluated was access to justice, which it defined as access to legal representation and access to the courts. The report said, Accessibility includes general awareness of available remedies, availability and affordability of legal advice and representation, and absence of excessive or unreasonable fees, procedural hurdles, and other barriers to access formal dispute resolution systems. Examining detailed data, it ranked the United States last among high-income nations and last among countries in Western Europe and North America for Access to Civil Justice. Days later, The New York Times reported that the world s largest corporations have been using secret donations to the U.S. Chamber of Commerce to change the law and advance their financial interests. Among other things, Goldman Sachs, Chevron Texaco, and Aegon, a multinational insurance company based in the Netherlands, donated more than $8 million in recent years to a chamber foundation seeking to limit the ability of trial lawyers to sue businesses. That s just the tip of the iceberg. Now, corporations are again asking the U.S Supreme Court the same Court that gave them unlimited First Amendment rights to spend money on elections to grant them total immunity from suit by people they injured or cheated. In Bruesewitz, drug companies insist they cannot be held accountable for defectively designing vaccines that kill children. In Williamson, car companies say they can t be sued for the deaths and injuries caused by their refusal to install middle rear seat shoulder harnesses. In Concepcion, AT&T says it can bar customers from bringing class actions against it even if it steals millions in small amounts from them. Want justice? Got outrage? Connect the dots and keep fighting. 2 P U B L I C J U S T I C E F A L L

3 Public Justice Urges U.S. Supreme Court Not to Invent Federal Law that Would Gut State Consumer Protections I n October, Public Justice filed an amicus brief in AT&T Mobility v. Concepcion urging the U.S. Supreme Court to reject arguments by the nation s largest cell phone corporation that the Federal Arbitration Act permits it to bar customers from bringing a class action against it, even when a class action is the only way to stop widespread violations of state law. The Concepcion case arose when AT&T allegedly tricked California consumers by promising them discounted phones, then charging them for sales tax on the full, undiscounted price. AT&T tried to force the plaintiffs into individual arbitration, citing a provision in the fine print of its contract that bans customers from joining together in a class action, whether in arbitration or in court. The federal district court struck down AT&T s class action ban, however, on grounds that it is unconscionable under generally applicable state contract law. The U.S. Court of Appeals for the Ninth Circuit agreed, and the U.S. Supreme Court granted certiorari. Public Justice has filed an amicus brief in a closely watched U.S. Supreme Court case, Williamson v. Mazda Motor of America, Inc., involving federal preemption of claims that a minivan was defective because its aisle seat lacked a lap/shoulder seatbelt. Williamson seeks to hold Mazda accountable for the death of Thanh Williamson, killed in a head-on collision when her body jackknifed around a lap-only seatbelt in her family s 1993 Mazda minivan. Although the vehicle s other occupants had lap/shoulder seatbelts and survived the crash, there was no lap/shoulder belt for Thanh s rear aisle seat. Like Public Justice, the United States government also filed an amicus brief in support of Thanh s family, arguing that AT&T wants the U.S. Supreme Court to create a new federal rule of law that only permits arbitration on an individualized basis and requires enforcement of a contractual class action ban, even if that means the company can continue cheating 99.9% of its customers, said Public Justice Staff Attorney Leslie Bailey, the principal author of the amicus brief. This goes way beyond arbitration and would essentially gut consumer protection laws. AT&T argues in Concepcion that its arbitration clause provides a realistic and effective dispute-resolution mechanism for consumers. But as Public Justice s brief explains, consumer protection laws are not designed merely to ensure that a handful of highly motivated, resourceful consumers get their money back; they are intended to stop and deter widespread violations of law. In a prior case, Coneff v. AT&T, Public Justice submitted evidence demonstrating that if AT&T s class action ban was enforced, the vast majority of its customers could never hold AT&T liable, no the lower courts have misread a similar Supreme Court case decided in 2000 Geier v. American Honda Motor Co. and that the family should be permitted to have its day in court. Thanh s parents filed a lawsuit in California state court against Mazda asserting state tort claims, including products liability and negligence. Their complaint alleged, in part, that Thanh s seat should have been equipped with a lap/shoulder belt to restrain her upper torso in the event of a frontal collision. Mazda argued that the parents claims are preempted by a Federal Motor Vehicle Safety Standard Standard 208 matter how valid their claims were. The Coneff court analyzed testimony from over 20 witnesses, including several consumer advocates, who testified that many individual class members would not be able to retain attorneys to represent them against AT&T. The Coneff court concluded that the evidence overwhelmingly demonstrated that AT&T s class action ban exculpates the company from liability for widespread violations of law. AT&T has appealed to the U.S. Court of Appeals for the Ninth Circuit, and the appeal has been stayed pending the Supreme Court s decision in Concepcion. Public Justice filed its Concepcion brief on behalf of its clients in Coneff. Public Justice Senior Attorney Paul Bland, Brayton-Thornton Fellow Melanie Hirsch, Budd-Kazan Fellow Matthew Wessler, and Executive Director Arthur Bryant assisted in writing the brief. The plaintiffs in Concepcion are represented by Deepak Gupta of Public Citizen, who will argue the case in November. Auto Safety Preemption at Issue in Supreme Court Case that gave Mazda the choice of installing either lap-only or lap/shoulder seatbelts in the rear-center seats of cars and in the rear aisle seats of minivans. The Public Justice brief maintains that, to resolve the massive confusion caused by Geier, the Supreme Court should limit preemption to circumstances where Congress has explicitly said state law should be preempted, or where the state law claim would directly contradict a specific federal law mandate. Public Justice Budd-Kazan Fellow Matt Wessler, Senior Attorney Leslie Brueckner, and Executive Director Arthur Bryant authored the brief. F A L L P U B L I C J U S T I C E 3

4 Denied Job Because of Sikh Identity, Beard and Turban, North Carolina Man Sues Convenience Store Chain ANorth Carolina they did was not right, and is Legal Defense and Education Fund, the man who practices not allowed in America. nation s oldest Sikh American civil rights the Sikh faith was Sikhism is the fifth largest and advocacy group, said his fellow denied a job because of his religion and race a violation of federal and state civil rights laws according to a federal lawsuit filed in September by Public Justice religion in the world. It is a monotheistic religion with origins in South Asia that teaches honesty, compassion, humility, universal equality, and respect for all religions. adherents face ignorance and intolerance daily, especially since the attacks of September 11, 2001, which unleashed a torrent of discrimination. Although Sikhism is often confused with Islam, Sikhism and Islam are entirely unrelated and its co-counsel. Sikhs maintain uncut hair religions. Surjit Saund The complaint alleges throughout their lives, and Every day, Sikh Americans face that Durham-based M.M. Fowler, Inc., which owns and operates the Family Fare Convenience Store chain, denied employment to Surjit Singh Saund because he is a Sikh and wears a turban and beard as required by the Sikh religion. Saund, a U.S. citizen who has worked in other convenience stores for nearly eight years, applied for a store operator position with Fowler in early He was qualified for the position, but the company refused to hire him because of its alleged grooming policy, even after Saund explained that his turban and beard are required by his religion. The company told Saund that it would hire him, but only if he first removed his turban, cut his hair, and shaved his beard. I came from India to find a better life for me and my family in America, and I was looking for a better job, said Saund. M. M. Fowler wanted me to choose between a job and my religion. What the turban as a head covering is a mandated article of their religious faith. Approximately 500,000 Sikhs live in the United States. About 1,000 Sikhs live in North Carolina. Nothing about Mr. Saund s turban and beard would interfere with his ability to run the cash register and manage a convenience store, said Public Justice Senior Attorney Victoria Ni of Oakland, CA, who represents Saund. M.M. Fowler had a duty to try to accommodate Mr. Saund s religious beliefs. It didn t even try. Public Justice s lawsuit, filed in the United States District Court for the Eastern District of North Carolina, alleges that Fowler violated civil rights laws when it refused to hire Saund and make accommodations to its alleged grooming policy to allow Saund to work for the company while wearing his turban and beard. Kavneet Singh, a board member and Managing Director of the Sikh American employment discrimination, hate crimes, school bullying, and harassment due to misconceptions about the Sikh identity, said Singh. Religious intolerance is un- American, and even at a time of economic crisis, we must make sure to not lose sight of the ideals that our country was founded on. In accordance with Sikhism, Saund, 59, has not cut his hair since birth, and has covered his hair since he was a young boy. Although he earned a college degree in chemistry in his native India, Saund could not find white-collar work after he relocated to the U.S. Since 2002, he has worked in convenience stores in New York and North Carolina. He is permitted to wear an under-turban, called a patka, at his current job. Public Justice s co-counsel in the case are Winslow Wetsch, PLLC in North Carolina and Debevoise & Plimpton, LLP in Washington, D.C. Castaneda Wrongful Death Case Goes to Trial in California Claiming state authorities denied a former detainee the medical attention that could have saved his life, Public Justice began its wrongful death jury trial in Los Angeles on October 25. Public Justice filed suit in January 2008 against the state of California and various state prison and medical officials on behalf of Castaneda, who died the next month at age 36 from cancer that began as a lesion on his penis. Castaneda s penis had been amputated in February 2007 in a futile attempt to keep the cancer from spreading. Plaintiffs in the state case are Castaneda s daughter, Vanessa, 17, and his sister, Yanira, who cared for her brother the last year of his life. Their suit says the state of California, in violation of state law, failed to summon immediate medical care particularly, a biopsy that Castaneda urgently needed and which the state s own physicians had prescribed. The claim seeks economic damages for Francisco Castaneda s medical expenses and noneconomic damages for Vanessa. Lead counsel in the case are Public Justice Managing Attorney Adele Kimmel and Board Member Conal Doyle of Willoughby Doyle in Beverly Hills. Public Justice Goldberg, Waters & Kraus Fellow Amy Radon and Board Member Thomas Dempsey of Los Angeles are co-counsel. 4 P U B L I C J U S T I C E F A L L

5 Public Justice Urges West Virginia Supreme Court to Strike State Law that Caps Noneconomic Damages I n a case involving a man who fell seriously ill after taking an erroneously Donalds presented as lost income. At trial, the Mac- economic terms such prescribed medication, Public Justice extensive evidence that Public Justice also has filed an amicus brief urging the West combining those three explains how damages Virginia Supreme Court to strike down drugs creates a known caps make it harder for the state s statutory cap on noneconomic risk of developing victims to retain counsel and create a disin- damages as unconstitutional under the rhabdomyolysis and state constitution. that the dangers of this centive for health care James MacDonald, a semi-retired drug interaction have providers to effectively schoolteacher who had been diabetic been well-known for address preventable City Hospital in Martinsburg, WV since childhood, was taking an immunosuppressant and cholesterol medication damages for medical expenses and lost threatening both access to quality med- years. In addition to medical errors when he sought treatment for flu-like wages, the jury awarded MacDonald $1 ical care and access to justice. symptoms at City Hospital in million for pain and suffering and The Public Justice brief was authored Martinsburg, WV. He was diagnosed $500,000 to Mrs. MacDonald for loss of by Troy Giatras and Stacy Jacques of The with pneumonia and prescribed an antifungal drug. But MacDonald became But, citing West Virginia s damages with input from Public Justice Staff consortium. Giatras Law Firm in Charleston, WV, increasingly ill with what was later determined to be rhabdomyolysis a condilion noneconomic damages award to a Foundation President Harry Deitzler of cap, the trial judge reduced the $1.5 mil- Attorney Leslie Bailey and Public Justice tion in which muscle tissues break down, total of $500,000, cutting MacDonald s Hill, Peterson, Carper, Bee & Deitzler, causing severe weakness, muscle damage, pain and suffering damages in half and also in Charleston. pain, and life-threatening effects on kidney function. consortium claim altogether. Justice Foundation Board Member Chris wiping away Mrs. MacDonald s loss of The MacDonalds counsel are Public MacDonald and his wife sued City In its brief, Public Justice argues that Nace, former Board Member Barry Hospital and the attending physician, the damages cap violates the state constitution s guarantee of equal protection by Association for Justice s Center for Nace, Bob Peck of the American alleging that MacDonald s rhabdomyolysis was caused by the erroneous prescription of the antifungal drug with the such as young children and seniors, whose Michael Burke of Burke, Schultz, discriminating against non-wage earners Constitutional Litigation, and D. other two medications. losses are more difficult to quantify in Harman and Jenkinson. Personal Injury Victim continued from page 1. imum standards for most health insurance plans in private industry. The insurer insists that, because Rose received some compensation from the person who injured her, it is entitled to get all of its money back before Rose or the attorney who won her compensation are entitled to anything. In the past, these insurance plans understood that, when an innocent injury victim only recovered compensation for a fraction of her injuries from a third party, the insurance company should not benefit, said Paul Stritmatter of Seattle, Public Justice co-lead counsel for Rose, a single mother of two. But now, by sneaking new language into their contracts, the insurance plans argue that they are entitled to be paid in full, even if that leaves the victim with nothing. The lawsuit is part of a nationwide campaign by insurance companies seeking to exploit a 2006 U.S. Supreme Court decision Sereboff v. Mid Atlantic Medical Services that allows health insurance plans to seek reimbursement for medical expenses from injured employees who receive compensation from a third party. What Sereboff did not decide is the extent of reimbursement the insurance companies may require. Now insurance companies are insisting that, whenever injury victims receive any compensation from a third party, they must repay all of their medical expenses first, even if they owe others for uncovered expenses and have only obtained partial compensation for their injuries. Subrogation lawsuits are the scourge of the civil justice system and a prime example of unchecked corporate greed, said Mike Withey of Seattle, co-lead Public Justice counsel for Rose. This trend has devastating consequences for personal-injury victims, who may be stripped not only of compensation for their medical expenses, but also for lost wages and pain and suffering. In addition to Stritmatter and Withey, Rhonda Rose is represented by Public Justice s Budd-Kazan Fellow Matthew Wessler and Senior Attorney Leslie Brueckner; Caitlin Palacios of Washington, D.C.; and Michael Nelson of Seattle, WA, who represented Ms. Rose in her lawsuit against the person who injured her. Nelson s law firm, Nelson Langer Engle PLLC, has also been named as a defendant in the case. F A L L P U B L I C J U S T I C E 5

6 Public Justice Battles Consumer Loan Company that Forced New Mexico Woman into One-Sided Arbitration P ublic Justice is once again taking its fight against mandatory arbitration to the New Mexico Supreme Court, where it previously defeated a class action ban and a one-sided arbitration clause. In August, Public Justice filed its opening brief in Rivera v. American General Financial Services, a case that raises two issues crucial to consumers: the enforceability of arbitration clauses that require arbitration before the nowdefunct National Arbitration Forum (NAF), and whether a one-sided arbitration clause must be completely one-sided to be held unenforceable. Kim Rivera entered into a loan with American General Financial Services, a title loan company, in 2000, securing the loan with her truck, a 10-speed bicycle, assorted camping equipment, a home computer, and computer software. American General s contract required Rivera to arbitrate any claim she might have against American General before the NAF. Meanwhile, American General New Mexico Supreme Court Building retained the right to go to court to repossess or foreclose on Rivera s property or otherwise enforce its rights in the event of default. Shortly after taking out the loan, Rivera s truck was destroyed in a collision. Even though American General s insurance agency was contractually required to pay the unpaid balance of the consumer loan, American General continued to bill Rivera and even encouraged her to borrow more money. In 2006, Rivera sued, but the trial court granted the lender s motion to compel arbitration. The court of appeals affirmed, and it refused to reconsider even after the NAF collapsed when its financial ties to debt collector clients were revealed. The Rivera case presents one of the first opportunities for a state supreme court to address whether arbitration clauses requiring proceedings before the NAF are enforceable now that the NAF has been forced to abandon consumer arbitrations. Public Justice argues that the selection of the NAF was central to the arbitration clause and that the court thus could not rewrite the clause to select another arbitrator. American General required arbitration before the NAF because it knew the odds would be in its favor there, said Public Justice Brayton-Thornton Fellow Melanie Hirsch, co-counsel in the appeal. It can t now argue that it didn t really mean it when it insisted that the NAF and only the NAF hear all of its disputes with its customers. The second issue in Rivera follows Public Justice s 2009 victory in Cordova v. World Finance Corp. of New Mexico, where the New Mexico Supreme Court ruled that an arbitration clause was unconscionably one-sided. The court of appeals in Rivera required that an arbitration clause be completely one-sided to be held unenforceable, even though the court in Cordova required no such thing. In addition to Hirsch, Rivera is represented by Public Justice Senior Attorney Paul Bland and Albuquerque attorneys Bruce E. Thompson and Rob Treinen. Selenium Pollution Ruling continued from page 1. In an October ruling, Judge Robert Chambers of West Virginia found Patriot Coal in contempt for failing to comply with an earlier court order to treat the discharges. The judge ordered the company to build a new fluidized bed reactor treatment system within two and a half years. The court also directed the company to post a letter of credit for $45 million to assure that the treatment facility s construction costs would be paid. A special master will oversee compliance with the court s orders. This is the bellweather case that will force the coal industry to clean up its operations, said Jim Hecker, Public Justice s Environmental Enforcement Director and co-counsel in the case. Patriot is the first mining company that has been ordered by a court to install advanced treatment for selenium discharges. We proved it was technically and economically feasible to remove selenium. Public Justice sued Patriot on behalf of the Sierra Club, Ohio Valley Environmental Coalition, West Virginia Highlands Conservancy, and Coal River Mountain Watch. Selenium, a toxic element that causes reproductive failure and deformities in fish and other forms of aquatic life, is Toxic selenium discharge from a coal mine discharged from many surface coal mining operations across Appalachia. Mine operations expose seleniumbearing rock and soil to weathering processes. Selenium leaches out of the exposed material and is carried by surface runoff into streams. Experts predict that some waterways in Appalachia could be on the brink of collapse due to increasing levels of the pollutant. Joe Lovett and Derek Teaney of the Appalachian Center for the Economy and the Environment in Lewisburg, WV are co-counsel in the case. 6 P U B L I C J U S T I C E F A L L

7 Brief Asks Third Circuit to Apply Iqbal Correctly so that Unisys Employees Class Action Claims May Go Forward P ublic Justice is urging the United States Court of Appeals for the Third Circuit to apply the Supreme Court s Ashcroft v. Iqbal decision correctly so that a class-action lawsuit against Unisys Corp. can proceed to trial. The case is Renfro v. Unisys Corp., and the plaintiffs, Unisys employees, contend that the company s poor management of their 401(k) plan has cost them millions in retirement savings and breached fiduciary duties under federal law. The trial court dismissed the employees claims because it found them implausible under Iqbal. Public Justice filed an amicus brief in September in support of the employees appeal. In Iqbal, decided in 2009, the U.S. Supreme Court held that to state a claim in federal court, a plaintiff s complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Within days, corporate defendants like Unisys began moving to dismiss consumers rights, workers rights, and civil rights lawsuits nationwide, claiming that Iqbal s plausibility standard dramatically changed federal law and that Iqbal could be applied to throw many plaintiffs claims out of court. The amicus brief in Renfro is Public Justice s first filed as part of its year-old Iqbal Project, which has helped scores of plaintiffs and their attorneys throughout the country. The brief exposes many of the mistakes that corporate defendants and district courts have made in applying the Iqbal standard. For example, the trial court in Renfro did not accept some of the plaintiffs factual allegations as true. The brief explains that, under Iqbal, trial courts must draw all reasonable inferences in the plaintiffs favor when deciding motions to dismiss. The brief urges the Third Circuit Court of Appeals to join other courts in correcting these mistakes, and it emphasizes the importance of preserving access to justice. Plaintiffs with well-pled claims must be able to get into court so that they can discover the facts and evidence they need to prove their claims at trial. The amicus brief was primarily written by Public Justice Staff Attorney Claire Prestel, with assistance from Brayton-Thornton Fellow Melanie Hirsch, Budd-Kazan Fellow Matt Wessler, and Professor Alex Reinert of Benjamin N. Cardozo School of Law in New York, who heads Public Justice s Iqbal Project. Public Justice Challenges Tire Company s Effort to Seal Trial Court Record in Deadly Tread Separation Case P ublic Justice is working to stop Cooper Tire & Rubber Company from sealing documents and testimony from an Iowa trial in which the jury found the company liable for a 2007 accident that left one passenger dead and another a quadriplegic. Cooper, well-known for its aggressive secrecy tactics, is now asking the court to remove the documents in Toe v. Cooper Tire & Rubber Company from the public record and seal them. Public Justice argues that the public interest trumps any justification for sealing the documents. The tragedy occurred when a minivan carrying six passengers spun out of control after the left rear Cooper tire suffered a catastrophic tread separation. The plaintiffs sued Cooper in Iowa state court, claiming that the tire had design defects that caused it to suddenly lose tread under normal and foreseeable conditions, and that Cooper was aware of the defects but decided not to make the tires safer because the costs would reduce the company s profits. Before trial, the plaintiffs obtained key documents reportedly showing that Cooper was aware of dangerous defects in several lines of its tires. The parties agreed to a protective order, but many of the discovery documents were used as trial exhibits, displayed on a large screen in open court, and discussed in testimony. The trial was observed by high school students and reporters. In March, the jury found Cooper at fault for causing the accident and that Cooper s conduct constituted willful and wanton disregard for the rights or safety of another. The jury held Cooper liable for a total of more than $32.8 million, including $1.5 million in punitive damages. Cooper then filed a motion to keep the documents and testimony that proved its tires are dangerous from becoming public. Public Justice opposes the motion on behalf of the Center for Auto Safety, an organization dedicated to providing consumers with a voice for auto safety and quality. When it comes to information about tire safety, secrecy can kill, said Public Justice Staff Attorney Leslie Bailey, lead counsel for the Center for Auto Safety. We believe this court will see that Cooper s documents should remain public, both as a matter of law and because the public interest requires it. In addition to Bailey, the Center for Auto Safety is represented by John Riccolo and Emily Anderson of Riccolo & Semelroth in Cedar Rapids, Iowa, and Stuart Ollanik of Gilbert, Ollanik, and Komyatte, P.C. in Arvada, Colorado. F A L L P U B L I C J U S T I C E 7

8 CASE UPDATES Here are the latest developments in other Public Justice cases: CIVIL RIGHTS & LIBERTIES Gibson v. Nye Ford (AK) In this wage-and-hour case, Public Justice successfully challenged the defendant-employer s arbitration clause as unconscionable because it included a one-sided appeal provision and required the employee to pay arbitration costs. The Alaska Supreme Court struck down those unconscionable terms, and the case proceeded to arbitration at the dealer s expense. The employee recently lost on the merits of his claims in arbitration. Public Justice s Paul Bland handled the successful appeal, with assistance from plaintiff s trial counsel, Kenneth Legacki of Anchorage. CONSUMER RIGHTS Bruesewitz v. Wyeth, Inc. (U.S. Supreme Court) Public Justice, the American Association for Justice, and Public Citizen filed an amici brief arguing that the National Childhood Vaccine Injury Act does not preempt state-law design defect claims against vaccine drug manufacturers. The brief emphasizes the important role that the tort system plays in promoting public safety and compensating victims. The brief was principally authored by Valerie Nannery of the Center for Constitutional Litigation, with assistance and input from Public Justice s Leslie Brueckner. Carideo v. Dell (WA) This is a putative consumer class action alleging that Dell violated the Washington Consumer Protection Act by designing, manufacturing, and selling defective laptop computers. After originally granting Dell s motion to compel individual arbitration and enforcing the company s Texas choice-of-law clause, upon remand from the U.S. Court of Appeals for the Ninth Circuit in light of McKee v. AT&T, the U.S. District Court for the Western District of Washington reversed its prior holding and held that because Dell had selected the National Arbitration Forum as its exclusive arbitral provider, the withdrawal of the NAF from consumer arbitrations rendered Dell s arbitration clause including its class action ban unenforceable in its entirety. The court recently granted preliminary approval of a settlement that will reimburse customers for the repairs to their laptops. Public Justice s Leslie Bailey and Paul Bland were lead counsel, with Beth Terrell of Terrell Marshall & Daudt LLC in Seattle, WA. County of Santa Clara v. Superior Court (CA) In this case alleging that lead paint pigment manufacturers should be held liable for creating a public nuisance, Public Justice filed an amici brief to the California Supreme Court supporting government entities fighting to maintain contingent fee arrangements with private attorneys. In July, the Court held, as the brief urged, that the government entities can hire private attorneys on a contingent-fee basis as long as government in-house counsel retain control over all critical discretionary decisions in the litigation. Public Justice s Victoria Ni and Arthur Bryant worked on the amici brief. FIA v. Weaver (LA) Public Justice has successfully petitioned the Louisiana Supreme Court to decide a crucial issue for Louisiana consumers: whether a court asked to enforce an arbitration award can consider a consumer s argument that he never agreed to arbitration in the first place. Public Justice represents William Weaver, a Louisiana man who had an arbitration award issued against him by the National Arbitration Forum (NAF) in a debt collection case. The trial court confirmed the arbitration award, despite the fact that the debt collector provided only a generic copy of an MBNA cardholder agreement with an arbitration clause, with no evidence linking that unsigned, undated document to Mr. Weaver. Public Justice s Leslie Bailey is lead appellate counsel, with Louisiana co-counsel Garth Ridge of Baton Rouge, Steve Conley of Covington, and William Cherbonnier of Greta. Kellogg v. Wyeth (VT) Public Justice and the Center for Constitutional Litigation (CCL) represent Ethel Kellogg, who was prescribed metoclopramide to remedy her gastroesophageal reflux disease. The drug caused her to suffer serious and permanent tardive dyskinesia, a serious neurological disorder. Ms. Kellogg has sued Wyeth, manufacturer of the name brand of the drug and several manufacturers of generic metoclopramide, alleging (among other things) that the manufacturers failed adequately to warn of the drug s side effects. The generic drug manufacturers motion to dismiss the case on federal preemption grounds was denied. The defendants motion for summary judgment on the merits is currently pending. CCL s Louis Bograd is lead counsel on the preemption issue, with co-counsel assistance from Public Justice s Leslie Brueckner and plaintiff s trial counsel, Ralph Pittle of Bellevue, WA, Robert H. Beadle of Boston, and Jerome O Neil of Burlington, VT. UFCW v. Eli Lilly (NY) Public Justice and the American Association for Justice filed an amici brief in the U.S. Court of Appeals for the Second Circuit in support of district court orders granting class certification and denying Eli Lilly summary judgment in a case alleging that Lilly misrepresented the benefits of its prescription drug Zyprexa. In September, the Second Circuit reversed class certification and the denial of summary judgment. Elizabeth J. Cabraser of Lieff Cabraser Heimann & Bernstein in San Francisco wrote the brief, with input and assistance from Public Justice s Claire Prestel and Jeffrey White of the Center for Constitutional Litigation. Continued to opposite page. 8 P U B L I C J U S T I C E F A L L

9 Continued from opposite page. Universal Service v. AT&T (KS) In this complex case involving three separate classes, Public Justice was co-counsel for the part of the case involving a class of consumers from every state except California who alleged that AT&T broke its contractual promise not to charge consumers more than the sum it actually paid to the federal government for its Universal Service Fund Charge. In September, a panel of the U.S. Court of Appeals for the Tenth Circuit held by a 2-1 vote that these consumers challenge to AT&T s contract term banning class actions was preempted by the Federal Communications Act. Public Justice s Paul Bland, Leslie Bailey and former Fellow Matt Melamed were involved in this appeal. Public Justice s co-counsel included Marc Stanley of Dallas and Barry Burnett and Warren Burns of Susman Godfrey in Dallas. Wallace v. Ganley (OH) This is a putative class action filed on behalf of car buyers who, in violation of Ohio law, were sold cars that had previously been used as rentals without ever being told of the cars rental history. The trial court compelled arbitration, but Public Justice appealed. That appeal is now briefed and ready for argument. Public Justice s Paul Bland and Claire Prestel are lead counsel on the arbitration issue, with assistance from co-counsel Ronald Frederick of Ronald Frederick & Associates in Cleveland. Williams v. Boeing (WA) Lawsuit on behalf of former flight attendants who suffered serious permanent injuries from breathing toxic bleed air engine oil fumes emitted from defectively designed aircraft. Discovery is ongoing. Public Justice s Leslie Brueckner and Brayton-Thornton Fellow Melanie Hirsch are working on the case. Our co-counsel are Alisa Brodkowitz of Brodkowitz Law in Seattle, Mike Withey of the Law Offices of Michael Withey in Seattle, and Ted Leopold of Leopold Kuvin in Palm Beach Gardens, FL. ENVIRONMENTAL ENFORCEMENT PROJECT OVEC v. U.S. Army Corps of Engineers (WV) These suits challenged the Corps issuance of individual permits under the Clean Water Act for valley fills at multiple large surface coal mines in West Virginia. After losing on appeal on four of these permits, OVEC withdrew its petition for certiorari to the Supreme Court because the Corps and EPA issued new guidance clarifying permit requirements. On the Spruce Mine permit, litigation is stayed pending an EPA decision to veto the permit. Two other permits have been blocked because of inadequate public notice, and that decision is on appeal to the U.S. Court of Appeals for the Fourth Circuit. Joe Lovett of the Appalachian Center in Lewisburg, WV; Steve Roady and Jennifer Chavez of Earthjustice in Washington, DC; and Public Justice Environmental Enforcement Project Director Jim Hecker are co-counsel. OVEC v. Hurst, Kentucky Riverkeeper v. Midkiff and SAMS v. Corps of Engineers (WV, KY, VA) Three cases that challenge the U.S. Army Corps of Engineers practice of granting routine general permits under the Clean Water Act for valley fills in West Virginia, Kentucky and Virginia, even though those permits are only supposed to be used for activities that have minimal adverse environmental effects. After the Corps suspended further use of the permit in Appalachia, SAMS voluntarily dismissed its challenge in Virginia, Riverkeeper moved to lift the stay on its challenge in Kentucky, and OVEC opposed the coal industry s motion to vacate its district court victory in West Virginia. Joe Lovett of the Appalachian Center in Lewisburg, WV, and Public Justice Environmental Enforcement Project Director Jim Hecker are counsel in all three cases, along with Steve Sanders at the Appalachian Citizens Law Center in the Kentucky case and Walt Morris from Charlottesville in the Virginia case. West Virginia Highlands Conservancy v. Huffman (WV) Two citizen suits challenging West Virginia s failure to obtain Clean Water Act permits for its discharges of acid mine drainage at twenty-one abandoned mine sites. The district courts in both cases have ordered the state to obtain permits. The state s appeal to the Fourth Circuit in one case was argued in September and the state plans to appeal the other case as well. Joe Lovett of the Appalachian Center in Lewisburg, WV, and Public Justice Environmental Enforcement Project Director Jim Hecker are co-counsel. ONGOING CASES Abrahamson v. Corrections Corporation of America and Adams v. Corrections Corporation of America These two consolidated cases charge Corrections Corporation of America (CCA), the nation s largest private operator, with negligence that caused a riot, use of excessive force during and after the riot, and inhumane treatment of prisoners who were bystanders in the riot. Banderas v. United States This is a Federal Tort Claims Act (FTCA) and civil rights suit on behalf of a former federal immigration detainee who received such grossly inadequate medical care for a diabetic foot wound that doctors recommended amputating his right leg to save his life. Coneff v. AT&T Wireless This is a nationwide class action against AT&T Wireless and Cingular Wireless alleging fraud, breach of contract, and violation of state consumer protection statutes arising from AT&T Wireless acquisition of Cingular Wireless in Ongoing Cases, continued to page 10. F A L L P U B L I C J U S T I C E 9

10 Ongoing Cases, continued from page 9. Cruz v. Cingular Wireless Appeal of decision enforcing class action ban on behalf of a putative class of Florida consumers who allege that Cingular violated the state s Unfair Trade Practices Act when it imposed monthly charges for a purportedly optional Roadside Assistance service that plaintiffs had not requested. Dillon v. Rogers Lawsuit charging prisoner abuse by warden and multiple corrections officers at the now-defunct Jena Correctional Facility in Louisiana, which was opened to house New Orleans-area prisoners in the wake of Hurricane Katrina. Everett v. Cherry Lawsuit charging that immigration detainee s death at Virginia regional jail was caused by medical negligence of private company that provided health care services at the facility. Case is currently on appeal in Fourth Circuit. Gilbert v. Synagro and Jasinski v. Synagro Two lawsuits alleging that Houston-based Synagro Central LLC, the nation s largest sludge hauler, has acted with negligence by exposing residents in the Pennsylvania countryside to dangerous sewage sludge from neighboring farm fields. Homa v. American Express Putative class action by charge card holders who were not given rebates in the amount promised. Jenkins v. Haverford at Potomac Appeal of a decision enforcing nursing home s arbitration clause with respect to claims by nursing home resident that the home sabotaged her Medicaid application and conspired with a foreclosure rescue company to deprive her of the equity in her home. Kelly v. McKenzie Payday lender appealed a trial court decision holding that the class action ban embedded in its arbitration clause violated public policy by immunizing the lender from Florida s consumer protection laws. Awaiting the appeals court s decision. Loeffler v. Target Corporation Appeal on behalf of Californians who were wrongfully charged "sales tax reimbursement" by Target stores on purchases that are not subject to sales tax under state law, but whose class action claims were dismissed as barred by the state constitution. Masters v. DirecTV Plaintiffs in this putative nationwide class action allege that DirecTV has violated California consumer protection laws by engaging in a bait and switch scheme in which it markets satellite television receivers for purchase, informing customers only after the sale is completed that they have merely leased the equipment and must pay additional long-term monthly fees or incur cancellation penalties. McKee v. AT&T Putative class action on behalf of AT&T long distance customers in Washington who allege that AT&T charged them usurious interest rates and municipal utility taxes, despite that fact that they do not live in any municipality. Morris/Smith/Wilson v. Wyeth Plaintiffs in these three related cases were prescribed Reglan/metoclopramide and developed tardive dyskinesia (TD), a Parkinson s-like movement disorder, as a result of overexposure to the drug. Pendergast v. Spring Nextel Corp. This appeal asks the Florida Supreme Court to decide four crucial questions about the enforceability of class action bans: whether Florida courts must evaluate both procedural and substantive unconscionability at the same time or whether the courts may consider them independently; whether the class action waiver provision in Sprint s contract is procedurally unconscionable under state law; whether the provision is substantively unconscionable under Florida law; and whether the provision is void under state law for any other reason. Picardi v. United Hyundai This is an appeal of the trial court s order granting United Hyundai s motion to compel arbitration on an individual basis. The plaintiffs allege that United Hyundai illegally charged new car buyers an emissions testing fee and failed to disclose charges for an aftermarket product and the negative equity earned by purchasers for the trade-in of used vehicles. Awaiting the Nevada Supreme Court s decision. Schnuerle v. Insight Communications Company, L.P. and Insight Communications Midwest, LLC Appeal in lawsuit against an internet broadband provider trying to use a class action ban to avoid liability in a case involving breach of contract and state consumer protection claims. EEP Adds New Cases to Docket The expansion of the Environmental Enforcement Project at Public Justice has not only added a veteran attorney to the staff (see Staff Update on page 19), but also two new cases to the project s docket. Public Justice is now lead counsel in a Third Circuit appeal of a decision to extend the operating life of the nation s oldest nuclear reactor by 20 years. A coalition of six groups is seeking a hearing on safety issues regarding the Oyster Creek Nuclear Generating Station near Tom s River, NJ. The facility began operating in In another New Jersey case, Public Justice is now co-counsel for the Interfaith Community Organization and the Natural Resources Defense Council, who are asking the courts to make PPG Industries, Inc. clean up toxic waste near its former chromium production site in Jersey City. 10 P U B L I C J U S T I C E F A L L

11 Texas Attorney Honored as 2010 Trial Lawyer of the Year Ronald Rodriguez, a Laredo, TX, attorney who took on one of the country s largest private prison companies in the beating death of an inmate, was named the 2010 Public Justice Trial Lawyer of the Year at the Public Justice Foundation s annual Gala and Awards Dinner in Vancouver, B.C. in July. Rodriguez won for his extraordinary effort and victory in De la Rosa v. Wackenhut Correction Corp., a case involving the malicious wrongful death and destruction of evidence in the 2001 beating death of an honorably discharged National Guardsman who was completing a six-month DUI sentence in Raymondville, TX. Just four days away from his scheduled release, Gregorio De la Rosa was attacked in the prison yard by fellow inmates wielding socks filled with metal padlocks. The lawsuit charged that prison guards and wardens stood idly by and laughed during the 20-minute beating. Rodriguez s sleuthing revealed that Wackenhut blatantly destroyed evidence in an effort to cover up the fatal beating and that the De la Rosa beating was typical of Wackenhut s brazen corporate indifference to human life. In 2006, a jury awarded $47.5 million in punitive and compensatory damages against the private prison company and one of its wardens the largest verdict in Willacy County, TX, history and one of the largest in the country. Punitive damages against Wackenhut accounted for $20 million of the award. The Texas Court of Appeals upheld the verdict last year, leading to a confidential settlement for the De la Rosa family. Rodriguez was one of five finalists for the award, which is bestowed annually to the lawyer or legal team that won verdicts, judgments or settlements in socially significant, often cutting edge cases. The other finalists honored at the Gala were: A team of 16 attorneys who successfully challenged conditions in California s woefully overcrowded prisons, resulting in the Schwarzenegger Administration s plan to drastically improve prison conditions and accommodations. Twenty lawyers from a variety of law schools, public interest organizations and private law firms who achieved a settlement with Royal Dutch Shell Corp., for its duplicity in the deaths or Ronald Rodriguez and his family with Public Justice Executive Director Arthur Bryant (far right). torture of Nigerian residents and activists who peacefully protested the oil industry s environmental and human rights abuses in the oil-rich Niger delta region of Africa s most populous country. A team of six lawyers who won a significant jury award for the residents of a rural Missouri community, bedeviled for years by the stench and pollution emanating from a neighboring pork processing facility operated by ContiGroup. The 12 attorneys who won a $104.7 million jury verdict for the City of New York in its lawsuit against Exxon, the only one of 22 oil companies that went to trial rather than settle with the city for leaking methyl tertiary butyl ether a dangerous and possibly cancer-causing substance. Renowned Attorney from Washington State Honored as Champion of Justice Mona Lisa Wallace, Public Justice Foundation President, presents Paul Stritmatter with the Champion of Justice Award. Paul L. Stritmatter, a Hoquiam, WA, attorney known for taking on complex consumer cases, has received the Public Justice Foundation s Champion of Justice Award for his leadership and record of accomplishments in public interest law. The Foundation honored Stritmatter July 13 in Vancouver, B.C., at its annual Gala and Awards Dinner, citing him for his commitment to justice for all. A founding partner of Stritmatter Kessler Whelan Coluccio law firm in Seattle and Hoquiam, Stritmatter is a former president of the Washington State Bar Association and was the first chairman of the Northwest Justice Project, dedicated to serving lowincome residents in the state. He was also the first chairman of the Access to Justice Board, established by the Washington Supreme Court in Last year, Stritmatter won the Washington State Association for Justice s Lifetime Achievement Award for his long and impressive record of legal accomplishments. In 2003, the Hoquiam native received the American Bar Association s prestigious Pursuit of Justice Award. He has been repeatedly recognized by the legal community as a Super Lawyer and one of the Best Lawyers in America. Stritmatter currently represents plaintiffs in a major class action against AT&T/ Cingular for misleading and overcharging millions of customers. In another case, the Washington Supreme Court reinstated an $8 million default judgment against Hyundai Motor Company for a paralyzed man represented by Stritmatter s firm. Outgoing Public Justice Foundation President Mona Lisa Wallace lauded Stritmatter as friend and defender of the common good and the ideals of justice. and such a good-hearted man. F A L L P U B L I C J U S T I C E 11

12 Hundreds Attend Annual Gala, Auction, Awards Dinner In Vancouver; Laud Honorees in Foundation s 28th Year S ilent and live auctions and recognition of the Champion of Justice and the Trial Lawyer of the Year Award finalists brought an air of celebration to the Public Justice Foundation s 2010 Gala and Awards Dinner on July 16 in Vancouver, B.C. The annual gala is a perennial favorite among Foundation supporters and attendees of the American Association for Justice s summer convention. The highlight of the night was the announcement of the Trial Lawyer of the Year Award winner and honors for prominent attorney Paul Stritmatter of Hoquiam, WA. (See Page 11). Sponsors Ensure Gala s Success $25,000 Platinum Garden City Group $10,000 Gold Stritmatter Kessler Whelan Coluccio $5,000 Silver Baron & Budd Colson Hicks Eidson Cotchett, Pitre & McCarthy Harry & Kathe Deitzler Ferrer, Poirot & Wansbrough Jeffrey M. Goldberg Law Offices Lieff, Cabraser, Heimann & Bernstein, LLP Annual Law School Essay Contest Renamed, Range of Issues Widened Following a 40-year run as one of the country s best competitions for law school students, the Roscoe Hogan Environmental Law Essay Contest has been renamed and its scope broadened, beginning with the 2011 competition. With additional support from former Public Justice Foundation President Gerson Smoger, the contest will be known as the Hogan/Smoger Access to Justice Essay Contest. The original contest was established in 1970 by the late Roscoe B. Hogan of Birmingham, Alabama, a prominent environmental lawyer. The topic for the 2011 contest is The Gulf Oil Spill: Who Are the Victims and How Do They Get Compensated? The author of the winning essay will Motley Rice LLC Robins, Kaplan, Miller & Ciresi, LLP Mona Lisa Wallace, Wallace & Graham Waters & Kraus $2,500 Bronze Consumer Attorneys of California The Jacob D. Fuchsberg Law Firm, LLP Janet, Jenner & Suggs, LLC Jack H. Olender & Associates, PC Law Offices of Rohn and Carpenter, LLC Rust/Kinsella Washington State Association for Justice receive a $5,000 cash prize; recognition in the Public Justice newsletter and on the website; publication of the essay in the Vermont Law School s online Journal of Environmental Law; and a free Public Justice Foundation membership for the Contest Year. A panel of nationally renowned trial lawyers and law professors will judge the entries. Any student currently enrolled in an accredited American law school may enroll in the contest. Each entry must be submitted through a faculty adviser. All entrants must submit an intent-to-enter form by January 31, The deadline for the essay is March 31, Guidelines and forms are available on the Public Justice website, Public Justice Foundation Board members and supporters enjoy the annual Gala and Awards Dinner in Vancouver on a midsummer s night. $1,000 Nickel Mary Alexander & Associates Baumeister & Samuels, PC Blan Law Offices Cohen, Milstein, Sellers & Toll, PLLC Eisenberg & Gilchrist Eisenberg, Rothweiler, Winkler, Eisenberg & Jeck, PC Herman, Herman, Katz & Cotlar, LLP Roger L. Mandel, Beckham & Mandel Obu Interactive Todd O Malley Rosen, Bein & Galvan Teresa Tico Vocational Economics, Inc. Law Offices Michael E. Withey $500 Copper The Arkin Law Firm Law Offices of Thomas M. Dempsey James F. Humphreys & Associates Landskroner Grieco Madden Lesti Structured Settlements Paulson & Nace, PLLC Willoughby Doyle, LLP $250 Pewter Cohelan, Khoury & Singer Vail, Cross & Associates Other Michael Holden Maxey Law Offices Alan Stirling Table Captains Begam & Marks K&L Gates, LLP The Middleton Firm The Law Offices of Ronald Rodriguez Sher Leff, LLP Shine Lawyers 12 P U B L I C J U S T I C E F A L L

13 Access to Justice Campaign Intensifies and Grows O ur Access to Justice Campaign is dedicated to exposing, fighting, and defeating the frontal assault now taking place on the right to a day in court. Corporations are working daily to bar consumers, workers, and investors from holding them accountable by expanding federal preemption, mandatory arbitration, class action bans, and other barriers to justice. The U.S. Supreme Court has already limited court access and is now taking on more cases in these areas. The importance of the Access to Justice Campaign and your support are greater than ever. Tax-deductible special gift contributions to the Campaign advance our: Federal Preemption Project, which has been successfully fighting and helping attorneys and injury victims fight federal preemption for over 25 years. Mandatory Arbitration Abuse Prevention Project, the acknowledged national leader in this battle. Class Action Preservation Project, which has overturned class action bans in state and federal courts nationwide. Project ACCESS, our nationwide initiative against unjustified court secrecy. Iqbal Project, ensuring that the Supreme Court s decision in Ashcroft v. Iqbal is not misused to wipe out plaintiffs rights. Challenges to attacks on the right to jury trial and counsel, including insurers attempts to use ERISA subrogation to eliminate access to justice. We are grateful to and hope you will join the contributors listed below for their generous donations to the Access to Justice Campaign and Class Action Preservation Project. The need is crucial and urgent. Special Gifts Enable Access to Justice, Class Action Preservation Work T he Public Justice Foundation thanks the generous supporters below, who have made special gift contributions between January 1 and October 20. Their willingness to support our Access to Justice Campaign and Class Action Preservation Project makes a huge difference in our work. $25,000 Russell W. Budd (AJC) Lieff, Cabraser, Heimann & Bernstein, LLP (CAPP) Mikal C. Watts (AJC) $10,000+ Edith M. Kallas (CAPP) Taras Kick (CAPP) Bonnett, Fairbourn, Friedman & Balint, PC (CAPP) Bailey & Glasser, LLP (AJC) Raymond P. Boucher (AJC) Elizabeth J. Cabraser (CAPP) Lance A. Cooper (AJC) Goldenberg Heller Antognoli & Rowland, PC (CAPP) Hagens Berman Sobol Shapiro, LLP (CAPP) Dianne M. Nast (CAPP) Kenneth A. Wexler (CAPP) $5,000 + Herman Herman Katz & Cotlar, LLP (CAPP) Bernstein Litowitz Berger & Grossmann, LLP (CAPP) Cohen Milstein Sellers & Toll, PLLC (CAPP) Paul S. Miller (AJC) Michael Pitt (AJC) Joel Rochon (CAPP) Stanley M. Rosenblatt (AJC) Ernest F. Teitell (AJC) $2,500 + Robert M. N. Palmer (AJC) Anne McGinness Kearse (AJC) Jack Landskroner (AJC) Sandra H. Robinson (AJC) $1,000 + Thomas Fortune Fay (AJC) Baron & Budd, PC (AJC) Edwin Beachler, III (AJC) Burkey Belser (AJC) Mark I. Bronson (AJC) Macon Cowles (AJC) Cary L. Flitter (AJC) Troy N. Giatras (AJC) Lowe Eklund Wakefield & Mulvihill Co., LPA (CAPP) Michael Maher (AJC) Richard L. Pullano (AJC) Antonio M. Romanucci (AJC) Joseph Satterley (AJC) Other Shamberg, Johnson & Bergman Foundation (AJC) Stephan D. Blandin (AJC) Caroselli, Beachler, McTiernan & Conboy (AJC) Consumer Attorneys of California (AJC) Mark McNabola (AJC) Joseph J. Tabacco, Jr. (AJC) Cornelia V. Williamson (AJC) Robert R. Hatten (AJC) David J. Bennion (AJC) W. Michael Hingle (AJC) Bert S. Sakuda (AJC) Marc Wallis (AJC) Phil Goldsmith (AJC) Morgan N. Barth (AJC) John Kennedy (AJC) Ellen Lake (AJC) George Cochran (AJC) E.D. Adkins, III (AJC) Sean C. Burke (AJC) Gordon E. Davenport, Jr. (AJC) Leo A. and Kay Drey (AJC) Jeremy Flachs (AJC) Michael E. Holden (AJC) M. Mark Lesher (AJC) Contributors Support Key Projects at Public Justice Foundation The Public Justice Foundation thanks our generous supporters below, who made special gift contributions between June 1 and October 20 in support of our Codewriters Project, the Fred Baron Legacy Fund and our Marketing Initiative. (See key for project names below) $10,000 Mona Lisa Wallace (MI) $7,500 Harry G. Deitzler (CDE) $5,000 Mary E. Alexander (FBLF) Harry G. Deitzler (MI) Jeffrey M. Goldberg (MI) Wayne Hogan (MI) Cyrus Mehri (FBLF) Marshall I. Nurenberg (AJC) Daniel E. O'Brien (AJC) Robert L. Sachs, Jr. (AJC) Frank A. Sommario (AJC) Elaine F. Marshall (AJC) Kelly Armstrong (AJC) Susan Browning (AJC) Jeanette Clinkenbeard (AJC) Harvey Fernbach, MD, MPH (AJC) Claire Twist (AJC) Umesh Heendeniya (AJC) Linda J. Punch (AJC) Key: AJC = Access to Justice Campaign CAPP = Class Action Preservation Project Paul L. Stritmatter (MI) Kenneth M. Suggs (MI) Janet R. Varnell (MI) $2,500+ Thomas L. Young (MI) Jack Landskroner (MI) Todd A. Smith (MI) Tara D. Sutton (MI) $1,000 Gregory L. Jones (MI) Paul S. Miller (MI) Christopher T. Nace (MI) James F. Szaller (MI) Brian Warwick (MI) Other Conal Doyle (MI) Grace A. Weatherly (FBLF) Mary A. Parker (MI) Stuart Alan Ollanik (FBLF) Key: CDE = Codewriters Project FBLF = Fred Baron Legacy Fund MI = Marketing Initiative F A L L P U B L I C J U S T I C E 13

14 Cy Pres: Serving the Class and the Public Interest C y pres awards from class action settlements to the Public Justice Foundation have provided significant support for Public Justice s public interest work. The publicity surrounding these awards has prompted many people to contact Public Justice and ask what cy pres awards are, when they re appropriate, and when they re not. This article provides a brief answer to these important questions. What is a cy pres distribution? The term cy pres is derived from a French phrase meaning as near as. When class actions are settled or tried, there are times that it s not possible to distribute all of the money recovered to some or all of the class members. They may be difficult to identify or find or it may not be economically feasible to distribute the funds to them. (For example, the cost of distributing 50 cents to each of 6 million class members may preclude individual distribution, even though the defendant has been held accountable for cheating the class out of $3 million.) When that is so, the cy pres doctrine allows the funds to be distributed to a nonprofit charitable organization to support work that indirectly benefits the class and advances the public interest. What kinds of cy pres distributions are appropriate? Where it is not possible to directly distribute all of the money to the class members, a cy pres distribution to a nonprofit organization is often appropriate. The alternative, in some cases, is that parties may enter into settlements that allow all of the unclaimed money to simply go back to the defendant. This has the effects of enormously reducing the benefit the settlement confers on the class and letting the defendant keep the benefit of much (and sometimes nearly all) of the money it wrongfully took from the class. Because the concept of a cy pres distribution is that it should be as near as giving the money to the class members, cy pres distributions should relate to the purposes of the case. In a case that challenges predatory lending practices that result in many people losing their homes, for example, it might be appropriate for residual funds to be distributed to organizations that address housing problems. In a class action involving overcharges for pharmaceutical products, however, it would make little sense to distribute funds to such organizations. What kinds of cy pres distributions are inappropriate? Public Justice strongly takes the position that, when possible, monies recovered in class actions should go directly to the class members themselves. In some cases, Public Justice has objected to proposed class action settlements that have abused the cy pres mechanism. It is inappropriate for a settlement to pay out all or nearly all of the money in cy pres distributions when it is possible to distribute significant sums to the class members themselves. It is also not appropriate for the settling parties to attempt to direct cy pres distributions to personal favorite charities (such as one s alma mater) that have no relationship to the issues addressed by the underlying lawsuit. And it s not appropriate to effectively make cy pres distributions to the defendant. (In one case, we successfully challenged a proposed settlement that had the Bank of America making a cy pres award to the Bank of America s own Consumer Education Fund. ) Our Mission Cy pres distributions to the Public Justice Foundation One reason that the Public Justice Foundation has been approved repeatedly as a cy pres recipient is the breadth of the law firm s work. Because our precedent-setting litigation and special projects involve such diverse issues as consumer protection, workers rights, civil rights, and environmental protection, a cy pres award to the Public Justice Foundation can be appropriate in almost all class actions. In addition, our longstanding dedication to the public interest, including our success litigating class actions, preserving them, and preventing their abuse has prompted courts throughout the country to approve cy pres distributions to the Public Justice Foundation. Finally, our proven commitment to ensuring that cy pres awards are properly used, including our refusal to accept inappropriate cy pres awards, has made parties and courts understand that cy pres awards to the Public Justice Foundation will do what they should serve the class and the public interest. Designate the Public Justice Foundation for Cy Pres Awards If you are interested in designating the Public Justice Foundation as a cy pres award recipient, please contact Development Director, John Dyess at or via at jdyess@publicjustice.net. Public Justice is America s public interest law firm. Through creative litigation, public education, and innovative work with the broader public interest community, we: protect people and the environment; hold the powerful accountable; challenge government, corporate, and individual wrongdoing; increase access to justice; combat threats to our justice system; and inspire lawyers and others to serve the public interest. 14 P U B L I C J U S T I C E F A L L

15 Environmental Enforcement Project Expansion Nearly Complete, Thanks to Extra Effort by Members, Sponsors Thanks to the leadership of chair Esther E. Berezofsky and her committee, the campaign to raise $450,000 over three years for expansion of the Environmental Enforcement Project (EEP) is nearly completed. The funds will be used to expand the EEP s work in using citizen suits and tort litigation to hold polluters accountable and force them to comply with the law. The EEP is leading the litigation battle against mountaintop removal coal mining and has won the largest Clean Air Act and Clean Water Act settlements in several states. The contributions will also underwrite the addition of an experienced attorney to work with long- time EEP Director Jim Hecker. In September, Richard Webster joined the Environmental Enforcement Project as the new Power- Cotchett Attorney, named in honor of the lead funders of the initiative Joseph A. Power, Jr. of Power, Rogers & Smith, P.C. and Joseph W. Cotchett of Cotchett, Pitre & McCarthy. (See Staff Updates on page 19.) Major support has been provided by Esther E. Berezofsky of Williams Cuker Berezofsky; Robert L. Jennings; Eric L. Cramer of Berger & Montague, PC; James F. Humphreys, James F. Humphreys & Associates, LC; Brent M. Rosenthal of Baron & Budd, PC; Wayne Hogan of Terrell Hogan; P. Scott Summy of Baron & Budd, PC; and Victor M. Sher of Sher & Leff, LLP. Additional generous support has been provided by Stuart Smith of Smith Stag LLC and Jamie L. Sheller. In addition to Esther Berezofsy, the campaign committee includes Ellen A. Presby, Anne McGinness Kearse, Rhon E. Jones, James F. Humphreys, Gerson H. Smoger, and Kenneth M. Suggs. Additional participation in support of this vital work is welcomed. Please contact John Dyess, at (202) or jdyess@publicjustice.net to learn how you or your firm can support this campaign and help put it over the goal. Cy Pres Awards, Attorneys Support Public Justice S ummer and Fall 2010 have been busy and productive seasons for attorneys who recommended that the Public Justice Foundation receive cy pres funds from select cases. In the last four months, the Foundation has received $1,475,101 in cy pres awards. Thanks to Jeffrey L. Fazio of Fazio/ Micheletti and Steve Gardner with the Center for Science in the Public Interest, the Public Justice Foundation received $1,175,101 in cy pres funds from the settlement of Wilson v. Airborne, Inc. These funds are to be used over four years to create a new Food Safety, Health, and Nutrition Project that will use litigation to hold corporations accountable for the manufacture, distribution, and deceptive marketing of food and other products that endanger consumers. Joseph A. Power Joseph W. Cotchett Settlement of In Re Massachusetts Smokeless Tobacco Litigation resulted in the Public Justice Foundation receiving $250,000 in October. Our appreciation is extended to the following attorneys: Robert Bonsignore, with Bonsignore & Brewer; Rick Saveri, with Saveri & Saveri; and Steven F. Benz, with Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C. Lastly, the Public Justice Foundation received $50,000 in late September Steve Gardner Robert Bonsignore Steven F. Benz from the Gonzalez v. Fireside Bank and Lind v. Fireside Bank cases, thanks to three groups of attorneys recommending that Public Justice Foundation receive these funds: Carol Brewer and Andrew Ogilvie with Kemnitzer, Anderson, Barron & Ogilvie; Scott Maurer, with the Alexander Community Law Center; and Balam O. Letona, Law Office of Balam O. Letona, Inc. By furthering the public interest work of Public Justice, these funds will indirectly benefit class members who could not be directly compensated. For more information on designating the Public Justice Foundation as a cy pres award recipient, please contact John Dyess at (202) or via at jdyess@publicjustice.net. F A L L P U B L I C J U S T I C E 15

16 New and Upgraded Members as of October 25, 2010 T he following Public Justice Foundation members joined us or upgraded their annual membership dues since the last issue of Public Justice. Members who recruited new members or upgrades are listed in italics. We are grateful for their support and extend a heartfelt thanks to them all. Guardian ($30,000) Motley Rice LLC Anne Kearse Champion ($24,000) Ferrer, Poirot & Wansbrough Roger Mandel Patron ($12,000) Audet & Partners, LLP Steve Fineman Kreindler & Kreindler LLP Mona Lisa Wallace Benefactor ($6,000) Gary J. Douglas Douglas & London, PC Steve Fineman Cameron Rentch Matthew Schoen Wise Law Group, LLC Al Brayton Advocate ($3,000) Benjamin L. Bailey (Upgrade) Bruce A. Broillet (Upgrade) Gary Gwilliam Sustaining Member ($1,200) Michel F. Baumeister (Upgrade) Thomas S. Edwards, Jr. Wayne Hogan Dewey N. Hayes Al Brayton Tara D. Sutton (Upgrade) Frances A. Tomes Gary Wilson (Upgrade) Tara Sutton Supporting Member ($600) Mohammed W. Alzaidi Catherine Bertram Chris Nace/Pat Regan D. Michael Burke Jim Humphreys H. Truman Chafin Jim Humphreys Troy N. Giatras (Upgrade) James E. Girards (Upgrade) Roger Mandel Christopher Hoffman Steve Tillery Mark Johnson (Upgrade) Vicky Ni Janice P. Kim Mary Parker James A. Kowalski, Jr. Janet Varnell Larry A. Tawwater (Upgrade) J. Michael Vaughan Member ($300) R.J. Abernathy Jim Szaller Recent Gifts Sustain Vital Fellowship Program at Public Justice Our Fellowship Program makes it possible for Public Justice to bring some of the sharpest, most dogged and dedicated attorneys to our staff of exceptional advocates in the public interest. Thanks to continuing, generous gifts from our supporters, our fellowships have consistently attracted some of the best in the field. Public Justice extends a special thank you to the supporters of our Fellowship Program, who each contributed $35,000 or more in 2010: Al Brayton of Brayton Purcell in Novato, CA Russell Budd of Baron & Budd in Dallas Jeffrey M. Goldberg of Jeffrey M. Goldberg Law Offices in Chicago Steven Kazan of Kazan, McClain, Lyons, Greenwood & Harley in Oakland Mike Thornton of Thornton & Naumes LLP in Boston Margaret S. Abrams Michael P. Balaban Sandra Robinson Michael W. Bien Steven M. Birnbaum Warren Bongard Paul Miller Tish Chafin Harry Deitzler Phillip Ciano Jack Landskroner Kathryn Dickson Vicky Ni David Draheim Gary Gwilliam Anna Dubrovsky (Upgrade) Christopher Nace Bruce G. Fagel Gary Gwilliam Jennifer L. Fiore Mark C. Goldenberg Jim Szaller Edward L. Graham Charles D. Hankey Richard Huver Gary Gwilliam Raymond G. Ingalsbe Janet Varnell Daniel R. Karon Geoffrey K.S. Komeya Howard T. Longman Paul Bland Dennis A. Lopez Donna M. MacKenzie Christopher Nace Linda R. Magruder Paul Stritmatter Elaine F. Marshall Mona Wallace/Rob Sachs Brian J. McKeen (Upgrade) Mark R. Miller Kenneth A. Wexler Christopher Morrison Paul Miller Matthew D. Powell Marc Primo Archie L. Rich, II Sandra Robinson Ronald Rodriguez Thomas P. Rosenfeld Jim Szaller Robert D. Rowland Jim Szaller Jerome Schlichter Steve Tillery David O. Smith Stuart Smith Andrew Lemmon Neil Steiner Tom Dempsey Scott William Weinstein Paul Bland Maria L. Weitz Gerson Smoger Jeanmarie Whalen Sean Donovan Henry Wolfe (Upgrade) Matthew A. Young Gerson Smoger Fontaine Yuk Gerson Smoger Associate Member ($120) Ralph F. Holmes Jane Kimmel Adele Kimmel Aidan McNamara Steve Tillery Georgene Vairo Public Interest Lawyer ($60) Gary Merenstein Michael E. Nelson Consumer Member ($60) Viola R. Burchette Harry Deitzler A. Fountain Penny H. Grisamore Bailey McCallum Ruth Virata Josh Wessler Al Brayton Russell Budd Jeff Goldberg Steve Kazan Mike Thornton Student ($25) Kathy Filipovic Christina Mancuso Kylie Hoover 16 P U B L I C J U S T I C E F A L L

17 Public Justice Speakers Educate and Inspire in Variety of Venues P ublic Justice s staff, members and activists educate audiences of trial attorneys, law students, and allied public interest groups about the vital role of the civil justice system and the role that Public Justice s public interest impact litigation work plays in keeping America s courthouse doors open for everyone. If you would like to volunteer to speak or arrange for a Public Justice speaker at your event, contact Outreach & Development Coordinator Cassandra Goings, tel , ext. 244, cgoings@publicjustice.net. Following is a list of upcoming Public Justice speaking engagements and events. November 11, 2010 National Consumer Law Center Conference Boston, MA Senior Attorney Paul Bland to speak on Fast Changing Battles over Arbitration Abuses. The event starts at 2:40p.m. at the Boston Park Plaza Hotel. For more information, visit F A L L November 12, 2010 National Consumer Law Center Conference Boston, MA Staff Attorney Claire Prestel to speak on Iqbal and Consumer Litigation: The Good, the Bad, and the Ugly. The event starts at 3:25 p.m. at the Boston Park Plaza Hotel. For more information, visit November 19, 2010 Consumer Attorneys of California Annual Convention San Francisco, CA Public Justice cocktail reception for all attendees of the CAOC Convention. The event will be held at 5:00 p.m. in the Garden Room of the Fairmont Hotel. December 2, 2010 American Association for Justice Teleseminar Staff Attorney Claire Prestel to speak about Litigating Claims after Iqbal and Twombly. The event will be from 2:00-3:30 p.m. For more information, visit Fighting Injustice Since 1982, Public Justice Now Rides New Media Wave I n recent months the Public Justice Foundation has made new inroads online. Public Justice has been advocating on behalf of the underdog since 1982 years before social media was the subject of a Hollywood blockbuster but its supporters are now widespread across Facebook, Twitter, and other social networks. Since summer, the Foundation has freshened up its Facebook page (facebook.com/publicjustice) and created a new Twitter profile (@Public_Justice). The official LinkedIn group also has a growing member base of public interest and legal professionals. For us, venturing into social media is not about being part of some fad, Executive Director Arthur Bryant noted in a recent e-lert. We want to share our message with others who care about fighting injustice and hear what they re doing too. In addition to the online networks, the Public Justice Video has been posted on the website and is now on the Foundation s YouTube page as well. Copies of the video, which debuted at the July gala in Vancouver, are being made available to State Coordinators and others who want to help spread the word about the organization s mission and accomplishments to audiences nationwide. In the coming year, the Foundation will launch a blog as well. The Public Justice legal team, foundation staff, board members, state-based volunteers, and even some clients will all contribute to the blog, which will share stories behind the charitable organization s ongoing advocacy work. FALL 2010 Public Justice is published three times per year by the Public Justice Foundation. Articles may be reprinted without charge or special permission, but please credit the Public Justice Foundation and send us a copy. National Headquarters 1825 K Street, NW, Suite 200 Washington, DC Phone: (202) Fax: (202) West Coast Office 555 Twelfth Street, Suite 1620 Oakland, CA Phone: (510) Fax: (510) publicjustice@publicjustice.net Web Site: Public Justice Foundation Board of Directors Harry G. Deitzler, President Steven E. Fineman, President-Elect Jack Landskroner, Vice President Theodore J. Leopold, Treasurer Esther E. Berezofsky, Secretary Alan R. Brayton, Executive Committee Member Jeffrey M. Goldberg, Executive Committee Member Wayne Hogan, Executive Committee Member Anne McGinness Kearse, Executive Committee Member Robert L. Sachs, Jr., Executive Committee Member Mona Lisa Wallace, Immediate Past President Mary Alexander Benjamin L. Bailey Raymond P. Boucher Russell W. Budd Joan B. Claybrook Linda M. Correia Eric L. Cramer Conal Doyle Lewis S. "Mike" Eidson Jeffrey D. Eisenberg Ingrid M. Evans Andrew S. Friedman James F. Humphreys Neville L. Johnson Rhon E. Jones Michael V. Kaplen Rosalind Fuchsberg Kaufman Taras Kick Andrew A. Lemmon Christina E. Mancuso Roger L. Mandel Virginia Adams Marentette Stanley J. Marks David J. Marshall Paul Miller Brad J. Moore Christopher T. Nace Stuart A. Ollanik Michael L. Pitt Lee J. Rohn Antonio M. Romanucci William A. Rossbach Frederick S. Schwartz Christopher A. Seeger Donald H. Slavik Bernard W. Smalley, Sr. Stephen M. Smith Todd A. Smith Kenneth A. Suggs Scott Summy Tara D. Sutton James F. Szaller Ernest F. Teitell Michael P. Thornton Stephen M. Tillery Janet R. Varnell C. Andrew Waters Mikal C. Watts Perry Weitz Board Member Steven N. Williams Honorary Board Jack H. Olender Leonard W. Schroeter Former Presidents The TLPJ Foundation* Frederick M. Baron Alan R. Brayton** Robert E. Cartwright, Sr. Joseph W. Cotchett Anthony W. Cunningham Thomas M. Dempsey Jeffrey P. Foote Jeffrey M. Goldberg J. Gary Gwilliam J.D. Lee Salvador A. Liccardo Mary A. Parker Eugene I. Pavalon Peter Perlman Joseph A. Power, Jr. Leonard M. Ring Dean A. Robb Sandra H. Robinson** Susan Vogel Saladoff Nicole Schultheis George W. Shadoan Gerson H. Smoger, Ph.D.** William E. Snead Paul L. Stritmatter Daniel F. Sullivan William A. Trine Mona Lisa Wallace** Ted M. Warshafsky Michael E. Withey *All former presidents are ex officio members of the Public Justice Foundation Board **The Public Justice Foundation P U B L I C J U S T I C E 17

18 State Coordinators Facilitate Involvement, Outreach M ost states have a Public Justice Foundation State Coordinator who serves as a liaison to the national board and staff. State Coordinators help us develop and seek out potential cases, recruit and involve Foundation members, and educate the public interest community about our work. Alabama R. Edwin Lamberth - (251) rel@cunninghambounds.com Arizona Stanley J. Marks - (602) sjmarkslaw@aol.com Arkansas Hank Bates - (501) hbates@carneywilliams.com California David M. Arbogast - (818) darbogast@law111.com Jennie Lee Anderson - (415) jennie@andrusanderson.com Colorado Paul Komyatte - (303) pkomyatte@auto-law.com Connecticut Ernest F. Teitell - (203) eteitell@sgtlaw.com Delaware Joseph Weik - (302) Jweik@attys4u.com District of Columbia Christopher T. Nace - (202) ctnace@paulsonandnace.com Florida James L. Ferraro - (305) jlf@ferrarolaw.com Stacey D. Mullins - (561) Smullins@lavallebrown.com Georgia Albert M. Pearson III - (404) Apearson@mkpglaw.com Hawaii Teresa Tico - (808) tico@aloha.net Illinois Dave Cates - (618) dcates@cateslaw.com Antonio M. Romanucci - (312) amr@rblaw.net Indiana Matthew J. Schad - (812) mschad@schadlaw.com Iowa John Riccolo - (319) jriccolo@riccololaw.com Kansas John M. Parisi - (816) jparisi@sjblaw.com Kentucky Martha Marie Eastman - (502) eastman@eastmanlawoffice.com Louisiana Stephen J. Herman - (504) sherman@hhkc.com Andrew A. Lemmon - (985) andrew@lemmonlawfirm.com Maine John E. Sedgewick - (207) Jsedgewick@bermansimmons.com Maryland Wayne M. Willoughby - (443) wmw@askthelawdoc.com Massachusetts James Swartz - (617) jswartz@swartzlaw.com Michigan Michael Pitt - (248) mpitt@pittlawpc.com Minnesota Vince J. Moccio - (612) vjmoccio@rkmc.com Mississippi Rebecca McRae Langston - (601) rebecca@langstonlawyers.com Missouri John E. Campbell - (314) jcampbell@simonlawpc.com Montana William A. Rossbach - (406) Bill@rossbachlaw.com Nevada Bill O. Bradley, Jr. - (775) billobradleyjr@yahoo.com New Hampshire D. Michael Noonan - (603) mnoonan@shaheengordon.com New Jersey Esther Berezofsky - (856) eberezofsky@wcblegal.com New York Joseph P. Awad - (516) jawad@ask4sam.net North Carolina Mona Lisa Wallace - (704) mwallace@wallacegraham.com Ohio Jack Landskroner - (216) jack@landskronerlaw.com Oklahoma James E. Frasier - (918) frasier@tulsa.com Ontario Paul S. Miller - (416) pmiller@willbarristers.com Oregon Mark E. Griffin - (503) Mark@markgriffin.com Pennsylvania Kelly L. Enders - (412) kenders@cbmclaw.com Bernard W. Smalley, Sr. - (215) bsmalley@anapolschwartz.com Rhode Island Fidelma Fitzpatrick - (401) ffitzpatrick@motleyrice.com South Carolina Anne McGinness Kearse - (843) akearse@motleyrice.com Tennessee Lisa June Cox - (731) lisacox@tennesseeinjurylaw.com Mary A. Parker - (615) mparkerlaw@aol.com Texas Lou Thompson Black - (713) lblack@bpblaw.com Christina E. Mancuso - (214) christinamancuso@sbcglobal.net Utah Jeffrey D. Eisenberg - (801) jeisenberg@braytonlaw.com Vermont Jerome F. O'Neill - (802) joneill@vtrialaw.com Virgin Islands Lee J. Rohn - (340) Lee@rohnlaw.com Virginia Bernard J. DiMuro - (703) bdimuro@dimuro.com Washington Brad Moore - (206) brad@stritmatter.com Jeffrey L. Needle - (206) Jneedlel@wolfenet.com West Virginia Troy Giatras - (304) troy@thewvlawfirm.com Wisconsin John C. Peterson - (920) jpeterson@pbclaw.com Wyoming James E. Fitzgerald - (307) jim@fitzgeraldlaw.com 18 P U B L I C J U S T I C E F A L L

19 Staff Update G ary Gold-Moritz has been named Chief Operating Officer of the Public Justice Foundation. Formerly COO of the Children s Law Center in Washington, where he oversaw significant growth, Gary began work at Public Justice in October. He received his J.D. in 1993 from the Boalt Hall School of Law at the University of California, Berkeley, where he was an editor of the California Gary Gold-Moritz Law Review; won Jurisprudence awards in Torts, Civil Procedure, and Political Theory; and the Moot Court Best Brief Award. After working as a Post- Graduate Fellow in the Professional Studies Program in New Delhi, India, Gary worked as a Corporate Associate at O Melveny & Meyers. He left the firm for an opportunity to pursue his ultimate career goal management of a non-profit organization making a difference. Richard Webster joined the Environmental Enforcement Project at Public Justice in August as the Power- Cotchett Attorney. Richard had been the Legal Director of the Eastern Environmental Law Center (formerly, the Rutgers Environmental Law Clinic) since 2005, having left the environmental group at Arnold & Porter in New York to take that position. Before that, he established and ran Environmental Development Consultants, providing expert advice and litigation support to such notable advocacy groups as the Natural Resources Defense Council, the Environmental Defense Fund, the Sierra Club and the World Bank. He was also Associate Director of Consultants in Environmental Sciences in Hong Kong and a Senior Environmental Scientist with Consultants in Environmental Sciences, Ltd., in London. Richard Webster Richard earned his J.D. in 2002 from Columbia University Law School, where he was the Articles Editor of the Columbia Journal of Environmental Law, a Kent Scholar, and a Harlan Fisk Stone Scholar. He received a Masters Degree from London University in Engineering Hydrology and a B.A. in Physics from Oxford University in England. Avi Kramer arrived as the new Communications Coordinator at Public Justice Foundation in mid- September. Previously, Avi was Assistant Editor of the Harvard Common Press, a Boston-based publisher. Avi has traveled extensively, most notably to India, Avi Kramer Nepal and East Africa on various reporting and photography assignments. A graduate of Vassar College, Avi also studied at La Universidad de Chile in Santiago. He speaks fluent Spanish, has a working knowledge of Mandarin Chinese, and has taught in Massachusetts and in Changsha, China. Tonia Allison joined the Foundation staff as Development Processing Assistant in early September. Tonia has three years of gift processing experience with the United States Naval Academy Foundation. She fills a critical void, left by the departure of Sam Friedman, Tonia Allison and provides much-needed assistance in our processing and database operations. Public Justice/Public Justice Foundation Staff Arthur H. Bryant, Executive Director National Headquarters Staff/Public Justice Adele Kimmel, Managing Attorney Paul Bland, Senior Attorney Claire Prestel, Staff Attorney Jim Hecker, Environmental Enforcement Director Richard Webster, Power-Cotchett Attorney Melanie Hirsch, Brayton-Thornton Fellow Matt Wessler, Budd-Kazan Fellow Barbara Reeves, Administration & Finance Director Jean Hansen, Bookkeeper Clarisia Lovelace, Senior Legal Assistant Paula Athey, Legal Assistant Lynette Hutton, Receptionist The Public Justice Foundation Gary Gold-Moritz, Chief Operating Officer John Dyess, Development Director Deborah Mathis, Communications Director Susan Gombert, CMP, Meetings & Events Manager Donna Shannon, Development Program Manager Cassandra Goings, Outreach Coordinator Maggie Barr, Membership Coordinator Avi Kramer, Communications Coordinator Kate Hesen, Development Assistant Tonia Allison, Development Processing Assistant Margo Sanabria, Clerk West Coast Office Staff Arthur H. Bryant, Executive Director Leslie Brueckner, Senior Attorney Victoria Ni, Senior Attorney Leslie Bailey, Staff Attorney Amy Radon, Goldberg, Waters & Kraus Fellow Shoshana Finacom, Office Manager/Executive Assistant Mary Kidwell, Legal Assistant Public Justice is edited by Deborah Mathis and designed by Barbara Raab Sgouros. F A L L P U B L I C J U S T I C E 19

20 SUPPORT PUBLIC JUSTICE 2010 Access to Justice Campaign Yes, I want to support the 2010 Access to Justice Campaign and help expose, fight and defeat the frontal assault on the people s right to a day in court. Public Justice Foundation 1825 K Street, NW Suite 200 Washington, DC Phone: (202) Fax: (202) Address Service Requested Non Profit Org. U.S. Postage PAID Washington, DC Permit No I am making a 100% tax-deductible Special Gift of: $5,000 $10,000 $15,000 $20,000 $25,000 $50,000 Other $ Please allocate my Special Gift as follows: All Access to Justice Campaign Projects $ Class Action Preservation Project $ Federal Preemption Project $ Mandatory Arbitration Abuse Prevention Project $ Charge My Credit Card For my Special Gift Visa MasterCard American Express Account # Exp. Date Signature Security Code For my Membership or Renewal Visa MasterCard American Express Monthly* One Time for Annual Membership Account # JOIN RENEW MEMBERSHIP Start or Renew My Membership with the Public Justice Foundation Name Enroll or renew my 100% tax-deductible membership at the following level: Student: $25 (Year of Graduation: ) Consumer (non-lawyer): $5/mo. or $60/yr. Public Interest Lawyer: $5/mo. or $60/yr. Associate Member: $10/mo. or $120/yr. Lawyer in practice for fewer than 5 years, law professor or government lawyer. Member: $25/mo. or $300/yr. Supporting Member: $50/mo. or $600/yr. Sustaining Member: $100/mo. or $1,200/yr. Advocate: $250/mo. or $3,000/yr. *Benefactor: $500/mo. or $6,000/yr. *Patron: $1,000/mo. or $12,000/yr. *Champion: $2,000/mo. or $24,000/yr. *Guardian: $2,500/mo. or $30,000/yr. *Visionary: $5,000/mo. or $60,000/yr. *Individuals may join at all levels. Firms and organizations may join at these levels and also receive 3-30 individual memberships, depending on level. Firm/Organization Address Exp. Date Security Code City State Zip Signature * By submitting this form you are authorizing an automatic charge to your credit card by the Public Justice Foundation on a monthly basis. This charge will be repeated unless and until you change your membership level or cancel. You may do either at any time. My Check is Enclosed Phone Fax Referred by Mail or Fax this form to: Public Justice Foundation 1825 K Street NW Suite 200 Washington, DC Fax: (202) Attn: John Dyess 20 P U B L I C J U S T I C E F A L L