Smith & Wesson Settles Lawsuit for Defectively Designing and Failing to Child-Proof Gun

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1 PUBLIC JUSTICE SPRING/SUMMER SUPPORTING THE W ORK OF TRIAL LAWYERS FOR PUBLIC JUSTICE Smith & Wesson Settles Lawsuit for Defectively Designing and Failing to Child-Proof Gun Design of Semi-Automatic Pistol Led to Brain Injury of Eight-Year-Old Kansas Boy T rial Lawyers for Public Justice has reached a milestone settlement in a products liability lawsuit against Smith & Wesson for defectively designing and failing to child-proof a nine-millimeter semi-automatic pistol. The settlement, which TLPJ announced on April 28, 2005, marks the first time a gun manufacturer has paid to settle a claim for failing to child-proof a gun. Ryan v. Koehler International, Inc., filed in state court in Philadelphia, sought damages for Royce Ryan, accidentally shot in the face when he was eight by another young boy playing with a gun that they thought was unloaded. The suit charged that the shooting would never have taken place if the gun a Smith & Wesson Model 915 were properly designed. We can t prevent Royce s injuries, but hope this settlement will help make gun companies child-proof guns and prevent other children from being injured, said Lori Ryan, Royce s mother. We are thankful that Royce s huge medical needs will now be met. This settlement underscores that those who manufacture, distribute, and sell guns have as much duty to act See Gun Safety & Accountability, page 11. A teenager accidentally shot Royce Ryan with a semi-automatic pistol that lacked critical safety features. Photo courtesy of the Ryan family INSIDE: 3 TLPJ Wins Title IX Victory 4-5 Supreme Court s Preemption Decision and Its Impact on Access to Justice 6 Supreme Court Broadens Protections for Older Workers 12 St. Louis and Its Airport Sued For Illegal Asbestos Removal 17 Prof. Erwin Chemerinsky to Keynote Annual Meeting Trial Lawyer of the Year Finalists Announced 22 Access to Justice Campaign Support Increases 23 Foundation Acknowledges Major Donors and Special Gifts Appeals Court Holds Seattle Must Defend WTO Protesters Arrests Ninth Circuit Overturns Summary Judgment in City s Favor In a mixed, broad-reaching 104-page decision, the U.S. Court of Appeals for the Ninth Circuit held on June 1, 2005, that the City of Seattle could ban all peaceful protest downtown during the World Trade Organization (WTO) conference in December 1999, but could not constitutionally use that ban to prevent only anti-wto protests. The appeals court returned the case to the lower court to decide whether the case will proceed as a class action and to determine at trial whether the City applied its ban on protests to violate anti-wto protesters First Amendment rights. The City s suppression of the anti- WTO protests was improper, said TLPJ lead counsel Steve Berman of Hagens Berman Sobol Shapiro LLP in Seattle. We are pleased that our clients will have their day in court. We are very troubled, however, by the majority s ruling that the government can deprive all Americans of their First Amendment See First Amendment Rights, page 13.

2 PRESIDENT S REPORT Keeping Courthouse Doors Open for All It has been an honor and a privilege to serve as President of The TLPJ Foundation during this incredible year. Even with the amazing success of our special litigation projects and the impact of our public education efforts including the launch of TLPJ s nationwide Access to Justice Campaign to keep America s courthouse doors open for all TLPJ is needed now more than ever. Jeffrey M. Goldberg At the outset of my tenure, I said that this is a fateful moment for America because government officials are abusing their power and greedy corporations are blocking the courthouse doors. That s because they know that the courts remain the only place where individuals can go to hold the rich and powerful accountable. This is my last column as President, and three things have become clear to me. First, this is a critical time in our nation s history. Overreaching officials, political grandstanders, and unrestrained corporations are berating the judiciary, broadsiding the Constitution, blaming the defenders of civil rights, blasting and bulldozing the environment, and barricading America s courthouse doors. Second, TLPJ s work in impact litigation and public education has never been more crucial. As the national public interest law firm of America s trial bar, TLPJ is uniquely prepared and positioned to fight off these attacks on America s civil justice system the last bastion of our democracy and that s why our Access to Justice Campaign is so important. Third, it is essential that all TLPJ Foundation members support TLPJ as generously as they can. Please renew or increase your dues, make a special gift, work with us on key public interest cases, and recruit others to do so. Finally, we are blessed with an exceptional Executive Director, Arthur Bryant, who leads the extraordinarily talented staff of TLPJ and The TLPJ Foundation. Your generous support makes possible their vital public interest work. I hope you will join me in honoring the 2005 Trial Lawyer of the Year Award Finalists and Winner at our always-inspirational Annual Gala and Awards Dinner in Toronto, Ontario on July 26, (See pages ) I look forward to passing the gavel to incoming President Tom Dempsey. With my friend Tom at the helm, and your support, I trust that we will continue to build on TLPJ s success. And I want to reassure you all that I intend to stay active for years to come. EXECUTIVE DIRECTOR S REPORT Twice the Difference T rial Lawyers for Public Justice was created to make a difference to fight for justice through precedent-setting litigation. As this issue of Public Justice reflects, we are doing that daily. The difference we re making is huge. In the past few months, we have won the first settlement ever from a gun manufacturer for failing to child-proof a gun, won a First Amendment victory (not broad enough and we re Arthur H. Bryant still fighting) for peaceful protesters unconstitutionally arrested during a World Trade Organization conference, prompted Assumption College to reinstate the women s (and men s) track and field teams it was eliminating in violation of Title IX, and sued St. Louis and its airport authority for endangering the public and breaking the law by knocking down asbestos-laden buildings without safely removing the deadly asbestos first. See pages 1, 3, and 12. That s just the highlights. Every day, we re battling for consumers rights and safety, workers rights and safety, civil rights and civil liberties, the environment, and government and corporate accountability. See pages But that s not all. Late last year, we decided we had to make twice the difference. So we launched the Access to Justice Campaign to expose and defeat the frontal assault now taking place on the right to a day in court in America. The battle is far from over, but the Access to Justice Campaign is already making a major difference. In just the last few months, we ve helped win two vital U.S. Supreme Court cases, challenged and defeated federal preemption on several key fronts, continued to lead the battle against mandatory arbitration nationwide, challenged class action bans and abuse, and fought the new corporate attack on the Seventh Amendment right to a jury trial. See pages What enables TLPJ to make such a difference is the active involvement and support of The TLPJ Foundation s members. That s especially true of outgoing President Jeff Goldberg, who has provided extraordinary guidance and support. We are all looking forward to working more closely with incoming President Tom Dempsey, but are also grateful that Jeff is staying especially involved, co-chairing our long range planning process with Tom. These two great leaders are making and helping us make twice the difference. Photo by Herman A. Farrer 2 P U B L I C J U S T I C E S P R I N G / S U M M E R

3 Assumption College Restores Track Teams After TLPJ Threatens Sex Discrimination Lawsuit School Avoids Title IX Suit Over Elimination of Women s Track and Field Teams T LPJ has scored an important victory for gender equity and for female and male athletes. Assumption College of Worcester, Massachusetts has agreed to reinstate both its women s and men s indoor and outdoor track and field teams to avoid a sex discrimination lawsuit threatened by TLPJ. In a demand letter dated May 10, 2005, TLPJ charged that the school s decision to eliminate the women s teams violated Title IX of the Education Amendments of 1972, the federal law that prohibits sex discrimination by educational institutions receiving federal funds. The school has now confirmed that it will reinstate the teams. This is a great win for the athletes at Assumption College and everyone who cares about gender equity in sports, said TLPJ s Leslie A. Brueckner, who represented the team along with Sharon F. McKee and William T. Hangley of Philadelphia s Hangley Aronchick Segal & Pudlin. We are delighted that the school has agreed to immediate reinstatement of the teams. We were confident that we were right on the law, and the school apparently agreed. In its demand letter, TLPJ explained that Assumption s decision to cut the women s track and field teams violated Title IX s three-part test for determining whether a university has provided equal opportunities for members of both sexes to participate in sports. The letter stated that Assumption failed the test because (1) women students at Assumption comprise almost 61 percent of the student body but are offered less than 44 percent of the athletic opportunities; (2) the school has not demonstrated a history and continuing practice of expanding its women s sports program over time because, with the exception of women s track and field, it has not added a women s team for almost a decade and then, adding insult to injury, decided to cut existing women s teams; and (3) the school cannot claim that it is fully satisfying all existing female interest in sports because it cut two viable women s teams that were ready, willing, and able to compete. Unless we are able to resolve the team members claims without the need for litigation, TLPJ s letter concluded, we are prepared to file suit. TLPJ has successfully sued several schools, including Brown University, the University of Bridgeport at Connecticut, Indiana University of Pennsylvania, Temple University, and West Chester University, for illegally discriminating against women in athletics. Assumption announced its decision to cut the women s track and field teams in January 2005, citing budgetary concerns. School officials stated that Assumption could no longer afford to maintain the teams, despite plans to open a new $3.2 million multi-sport stadium in Fall This decision shocked the team members, who were anticipating a full competitive season in At the same time, Assumption announced that it had decided to cut men s track and field as well, also citing budgetary reasons. In its letter, TLPJ advised Assumption that the simultaneous elimination of the men s teams did not provide any defense under Title IX because the school remained in violation of the three-part test for Title IX compliance. Three weeks after receiving TLPJ s letter, Assumption officials announced their decision to reinstate both the men s and women s track teams as fully-funded varsity sports. We are pleased that the school has agreed to reinstate both the men s and women s teams, said Sharon McKee of Philadelphia s Hangley Aronchick Segal & Pudlin, co-counsel for the team. Although Title IX only protects the underrepresented gender in this case, the women athletes at Assumption the school s decision to reinstate all the teams is a terrific result for all concerned. We hope that Assumption will now turn its attention to creating even more participation opportunities for women. I m thrilled that the teams have been reinstated, said team member Amie Nolan, who will be returning Assumption College women s track and field team members were prepared to go the distance in a Title IX lawsuit. to Assumption as a junior next year. For months, we have been urging the school to reinstate the teams, yet the administration has refused. I am happy and relieved that the school has finally agreed to do the right thing. In addition to Brueckner, McKee, and Hangley, the plaintiffs legal team includes Rebecca Starr of Hangley Aronchick Segal & Pudlin. The demand letter is posted on TLPJ s web site, The school has also been contacted by, and is in discussions with, the U.S. Department of Education s Office for Civil Rights about its treatment of women athletes. Photo by Nicole Tremblay S P R I N G / S U M M E R P U B L I C J U S T I C E 3

4 Bush Administration Attempt to Expand Preemption and Bar All Pesticide Claims Soundly Defeated U.S. Supreme Court Holds Most Pesticide Damage Claims Not Preempted I n a resounding victory for consumers and victims rights, on April 27, 2005, the Supreme Court rejected federal preemption of most pesticide-related tort claims in Bates v. Dow Agrosciences. The eagerly awaited decision, which involved the scope of federal preemption under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), held 7to2 that common-law design defect, manufacturing defect, negligent testing, and breach-of-express-warranty claims are entirely exempt from federal preemption. It also brusquely dismissed the Bush Administration s attempt to expand FIFRA preemption to ban all pesticide damage claims. This decision is a stunning reaffirmance of the right of access to justice in this country, said Patti Goldman of Earthjustice Legal Defense Fund, the primary author of the amici brief on behalf of TLPJ and a coalition of other public interest groups urging the Supreme Court to rule as it did. Pesticides are a major cause of injury and death, yet manufacturers have often been able to escape liability by invoking preemption under FIFRA. This decision sweeps aside dozens of contrary decisions from state and federal courts around the country and clears the way for pesticide injury victims to have their day in court. The issue in Bates was whether FIFRA barred 29 Texas peanut farmers from suing herbicide manufacturer Dow AgroSciences LLC for crop damage allegedly caused by Dow s product, called Strongarm. The farmers sought economic damages based on various common-law causes of action (breach of warranty, fraud, defective design and manufacture, and negligent failure to warn) and violations of the Texas Deceptive Trade Practices Act. The district court dismissed all the farmers claims on express preemption grounds, and the U.S. Court of Appeals for the Fifth Circuit affirmed. The Fifth Circuit based its decision on FIFRA s express preemption clause, which prohibits states from imposing any requirements for labeling or packaging in addition to or different from those required by FIFRA. Following the lead of many other courts across the country, the Fifth Circuit reasoned that all of the farmers claims, including those for design and manufacturing defects, are preempted on the ground that success on such claims would necessarily induce Dow to alter its product label. The United States and the U.S. Environmental Protection Agency had previously said that claims like these were not preempted. But the Bush Administration reversed their position and urged the Supreme Court to hold all pesticide claims preempted. The Supreme Court dismissed the Bush Administration s position as particularly dubious and reversed the Fifth Circuit s decision, holding that most of the farmers claims were free to proceed. The Court ruled, first, that FIFRA s prohibition of state requirements for labeling or packaging does not encompass any claims for defective design, defective manufacture, negligent testing, and breach of express warranty. Such claims, the Court reasoned, plainly do not qualify as requirements for labeling or packaging, because [n]one of these common-law rules requires that manufacturers label or package their products in any particular way. Bates went on to hold that the farmers remaining claims of negligent failure-to-warn and fraud might be preempted depending on whether they seek to impose a requirement that is in addition to or different from federal law. On this point, the farmers had argued that those claims are not preempted because they merely replicate FIFRA s requirements that a pesticide label not contain false or misleading statements or inadequate instructions or warnings. The Supreme Court agreed that the claims would not be preempted if they merely seek to impose parallel requirements to federal law; it held, however, that it lacked sufficient evidence to determine whether the state fraud and failure-towarn claims did, in fact, merely replicate federal law, and remanded for further proceedings on that point. This decision confirms what we have said all along: that FIFRA s preemption provision, which merely governs product labeling, does not preempt most damage claims, said TLPJ Staff Attorney Leslie A. Brueckner, who assisted on the amici brief. This decision is a major victory for public health and safety in this country. TLPJ s amici brief in Bates, posted on was written by Goldman with assistance from Earthjustice s Grant Cope, Brian Wolfman of the Public Citizen Litigation Group, and Brueckner. Other groups that joined in the brief are the Natural Resources Defense Council, the Sierra Club, Beyond Pesticides/National Coalition Against the Misuse of Pesticides, Defenders of Wildlife, Physicians for Social Responsibility, and the Farmworker Justice Fund, Inc. See page 5 for more details on the access to justice implications of Bates. 4 P U B L I C J U S T I C E S P R I N G / S U M M E R

5 Bates v. Dow:Advancing Access to Justice By Leslie A. Brueckner and Arthur H. Bryant* T he U.S. Supreme Court s decision in Bates v. Dow AgroSciences LLC is a major federal preemption decision that significantly advances access to justice. The decision properly rejects federal preemption of most damage claims stemming from pesticide use, see page 4, and will help preserve consumers rights in many future preemption battles. Here are the main reasons why: 1. The Presumption Against Preemption: It s Baa-aack! Bates is the first preemption decision in years to (re)embrace the long-standing presumption against preemption of state law claims. The Supreme Court used to talk a lot about the strong presumption against preemption of state law, particularly state common-law tort claims. In recent decisions, however, the presumption has scarcely been mentioned, prompting some Courtwatchers to opine that it had become a dead letter. Bates brings back the presumption with full force, emphasizing that state tort claims are only preempted where Congress has made such an intention clear and manifest. 2. Deference Has Its Limits. Bates also flatly rejects the radical new pro-preemption position advanced by the United States in an amicus brief. For years, the federal government said that pesticide-related tort claims are not preempted by FIFRA. Then, in a dramatic reversal, the Bush Administration urged the Court to wipe out the rights of all injured persons to sue for pesticide-related injuries. While the Supreme Court normally defers to the United States long-held views, Bates rejects this politically-motivated about-face, slamming the United States for failing to offer any plausible interpretation of FIFRA s preemption provision. 3. Believe That Congress Means What It Says. Bates also teaches that, when it comes to federal preemption, a court s job is to believe that Congress means what it says period. Bates turns on an interpretation of the statute s express preemption clause, which (the Court concludes) does not encompass most common-law claims. Such clauses, the Court emphasizes, are to be construed narrowly, taking into account the presumption against preemption, the history of tort litigation, and Congress s silence with respect to an intent to deprive injured parties of a long available form of compensation. 4. Don t Be So Quick To Consider Implied Preemption. Finding no express preemption, Bates does not even consider whether the plaintiffs claims are impliedly preempted because they conflict with federal regulatory purposes. (In contrast, in Geier v. American Honda, a 1999 decision rejecting express preemption, the Court went on to find implied conflict preemption of some claims). Instead, it simply holds that the claims can proceed. As the Bates dissent tellingly observes, this approach comports with this Court s increasing reluctance to expand federal statutes beyond their terms through doctrine of implied pre-emption. This reluctance, the dissent further notes, reflects that preemption analysis is not [a] freewheeling judicial inquiry into whether a state statute is in tension with federal objectives,... but an inquiry into whether the ordinary meanings of state and federal law conflict. 5. A Jury Verdict Does Not Impose State-Law Requirements. Bates also lays to rest a specious argument that has caused no end of trouble for plaintiffs battling federal preemption. Defendants often argue that tort claims constitute requirements within the meaning of express preemption clauses on the ground that an adverse jury verdict might induce a manufacturer to alter its conduct. The Court rejects this argument in Bates, holding that [a]n occurrence that merely motivates an optional decision does not qualify as a requirement within the meaning of FIFRA. In so ruling, Bates will provide forceful ammunition against manufacturers arguments that common-law claims are just as regulatory as state statutes and regulations, and thus are preempted as much as state positive law. 6. State Damage Claims That Reinforce Federal Requirements Are Not Preempted. Bates also teaches that common-law claims that merely seek to reinforce existing federal requirements are not preempted. The majority emphasizes that, under FIFRA, common-law claims that relate directly to a product s label (such as a failure-to-warn claim) are only preempted if they seek to impose a labeling requirement that is in addition to or different from a federal requirement. The Court rules that a failure-to-warn claim that merely seeks to reinforce the federal prohibition against false or misleading labels is not preempted, even though success on such a claim would impose new liability. 7. The Tort System Is Our Friend. Finally, Bates reaffirms the importance of the tort system in creating a safer world. The decision emphasizes the long history of tort litigation against manufacturers of poisonous substances a history that, in the Court s words, provid[ed] an incentive to manufacturers to use the utmost care in the business of distributing inherently dangerous items. The Court also emphasizes that tort suits, by aid[ing] in the exposure of new dangers, serve as a catalyst for better government regulations of hazardous products. This reminder of the importance of the tort system, not just for individual victims rights, but for the safety of the country as a whole, could not have come at a better time. * Leslie A. Brueckner is a Staff Attorney at TLPJ. Arthur H. Bryant is TLPJ s Executive Director. S P R I N G / S U M M E R P U B L I C J U S T I C E 5

6 Supreme Court Broadens Scope of Workers Protections Against Age Discrimination Older Workers Permitted To Challenge Policies with Discriminatory Impact R oughly half of America s civilian workforce is over 40, and those numbers are growing. Now the U.S. Supreme Court has shored up protections against age discrimination for older workers in a decision that forcefully rejects an attempt to narrow the scope of the federal Age Discrimination in Employment Act of 1967 (ADEA). On March 30, 2005, in Smith v. City of Jackson, the Court ruled 5 to 3 that older workers who sue their employers for age discrimination under the ADEA need not prove that the discrimination was intentional. Instead, the Court held, employees can prove age discrimination by showing that, regardless of the employer s motivation, the employer s policies or practices had a discriminatory impact on older workers that was not justified by any good business reason. This ruling is a landmark victory for the country s aging workforce, removing the significant hurdle often imposed by lower courts of proving discriminatory intent on the part of employers. TLPJ played a role in the victory, joining the National Employment Lawyers Association (NELA) in an amici brief urging the Court to protect older workers rights. The Court s decision gives older workers a powerful weapon for battling age discrimination in the workplace, said TLPJ Staff Attorney Adele P. Kimmel, who assisted on the amici brief. Proving intentional discrimination is notoriously difficult, as few employees have smoking gun evidence of deliberate bias. Now, older workers will have a real opportunity to hold their employers accountable for the discrimination they suffer. The Court s opinion, authored by Justice John Paul Stevens, emphasizes that a lack of intentional discrimination does not exempt employers from accountability for policies and practices that disproportionately harm older workers. Justice Stevens wrote that an employer s good faith does not redeem employment procedures or testing mechanisms that operate as built-in headwinds for minority groups. The ruling is particularly heartening given that the Court has rejected the disparate impact theory under other civil rights statutes over the past several years, and because lower federal courts have split sharply on the issue of whether disparate impact claims can be brought under the ADEA. The Court noted that the ADEA allows employers leeway to treat workers differently based on reasonable factors other than age. For example, although the Court overturned the lower court decisions denying the Smith plaintiffs the right to sue on disparate impact grounds the major The U.S. Supreme Court building proclaims Equal Justice Under Law. achievement of this case it held that the plaintiffs had not made a case for such discrimination because the defendant s conduct was based on a reasonable factor other than age. Smith was filed by a 30-member group of Jackson police officers over age 40, challenging a change in the city s employee pay plan that gave proportionately more generous raises to officers with less than five years on the force. The city countered that it needed to raise junior-ranking officers salaries Photo by Jonathan Hutson to compete with other police departments in the region, and that the ADEA prohibited only policies springing from intentional age discrimination. The federal district court in Adele P. Kimmel Jackson and the U.S. Court of Appeals for the Fifth Circuit sided with the city on both issues. The Supreme Court overturned the lower courts rulings on the right to sue for disparate impact discrimination, but held that the plaintiffs had not proven their case because the city s need to compete with surrounding police departments in recruitment and retention of police officers constituted a reasonable factor other than age. The Supreme Court s opinion in Smith raises questions as to what the Court would consider reasonable factors justifying employer policies and practices that have a harmful effect on older workers. For example, it will be left to future cases to address an issue on which federal judges have differed: whether cost-savings are a reasonable justification for policies that disproportionately harm older workers, who are usually at the high end of the pay scale. But these issues do not detract from groundbreaking achievement of this case: the Court s ruling removed a significant hurdle to age discrimination lawsuits that often slammed the courthouse doors shut on older workers. Now, it will be much easier for older workers to win justice for the discrimination they suffer. The amici brief filed by TLPJ and NELA was primarily authored by Cathy Ventrell-Monsees of Chevy Chase, Maryland. In addition to Kimmel, NELA s Angela Dalfen assisted on the brief. The Smith amici brief is posted online at Photo by Herman Farrer 6 P U B L I C J U S T I C E S P R I N G / S U M M E R

7 Maryland Homeowner Asks State s High Court to Uphold Law Barring Excessive Mortgage Fees TLPJ Argues That State s Consumer Protection Law Is Not Preempted Maryland s Court of Appeals heard arguments from TLPJ on June 6, 2005, in a case that could decide whether mortgage brokers can charge exorbitant fees in defiance of a state statute meant to curb transaction costs for home buyers. The case, Sweeney v. Savings First Mortgage, LLC, hinges on whether a mortgage broker can claim that a 1980 federal statute supersedes the Maryland Finder sfee Act and thus permits sky-high brokers fees. The central issue is whether mortgage broker Savings First was bound by Maryland law when it charged plaintiff Linda Sweeney more than $10,000 in fees to refinance her home in The broker s fee was so large that it exceeded the new money (less than $8,000) Sweeney received through the refinancing. TLPJ joined Sweeney s appeal to preserve a state law that protects consumers against abusive practices by mortgage brokers. TLPJ is arguing to Maryland s high court that the federal Depository Institutions Deregulation and Monetary Control Act ( DIDMCA ) does not preempt Maryland s Finder s Fee Act, and that mortgage brokers must therefore be held accountable for charging excessive fees. In the 25 years since DIDMCA was enacted, it has never been extended to anyone other than lenders, said TLPJ s s F. Paul Bland, Jr., who argued the appeal. Savings First is trying to dramatically expand the scope of the law to any party that happens to be involved in a mortgage loan transaction. In less than two years, Ms. Sweeney paid more in fees than she makes in a year working hard as a bus driver, said co-counsel Scott Borison of the Legg Law Firm, a prominent Maryland consumer lawyer. If Maryland s law is not enforced, Maryland s consumers will have no protection against greedy brokers. An amici brief was filed in support of appellants by the Public Justice Center, the Maryland Consumer Rights Coalition, the Community Law Center, NCLC, the Center for Responsible Lending, and AARP. In addition to Bland and Borison, the plaintiff s legal team includes TLPJ s Brayton-Baron Fellow Leslie A. Bailey and Doug Bowman of Frederick, Maryland. The appellant s reply brief in Sweeney v. Savings First Mortgage, LLC is posted on TLPJ s web site, TLPJ Battles Preemption in Regulation of Banks Banks Seek To Avoid Lawsuits for Violating State Consumer Protection Laws T LPJ is fighting the national banking industry s campaign to strip consumers of the ability to sue them for violating state laws against unfair banking practices. In January 2004, in response to banks lobbying, the U.S. Office of Comptroller of Currency (OCC) issued new regulations purporting to give the federal government exclusive authority to regulate national banks. A host of consumer advocates and state officials have denounced the OCC s attempt to overturn the historic dual state/federal regulation of banks. Banks are invoking the OCC s rules in cases seeking to hold them liable under state consumer protection laws. In Abel v. Key Bank (N.D. Ohio), for example, students were defrauded by a trade school that went belly up after receiving full payment from them. The school loans were financed by Key Bank, which paid the school the entire amount of the loans up-front. After the bankruptcy, Key Bank allegedly refused to refund the students money or to discharge their remaining loans. The students sued under an Ohio consumer protection statute, seeking a refund and discharge of any future payment obligations. Key Bank argued that the state statute is preempted by the OCC s regulations and because it allegedly conflicts with other aspects of federal law. The federal district court agreed, dismissing the plaintiffs claims. TLPJ has entered the fray by taking on a similar case in the same federal judicial district Blanco v. Key Bank that involves the same issue as Abel. Again, KeyBank has moved to dismiss the claims in Blanco on preemption grounds. TLPJ s reply brief argues that the claims are consistent with federal regulatory policy and, thus, are not preempted by the OCC s regulations. TLPJ further argues that, to the extent OCC s regulations are read broadly as preempting the entire field of state law, they exceed the agency s statutory authority and therefore are invalid. We await a ruling on the defendants motion. TLPJ s brief in Blanco v. Key Bank was co-authored by Staff Attorney Leslie A. Brueckner and Goldberg- Deitzler Fellow Richard Frankel. Plaintiff s trial counsel are Tampa attorneys J. Daniel Clark of Clark, Charlton & Martino, P.A. and Christopher C. Casper of James, Hoyer, Newcomer & Smiljanich, P.A. S P R I N G / S U M M E R P U B L I C J U S T I C E 7

8 Mandatory Arbitration Abuse Prevention News Here are the latest updates on Mandatory Arbitration Abuse Prevention Project cases: Arbitrator Disclosures (CA) Corbett v. National Arbitration Forum California law requires private arbitration companies doing business in California to disclose certain information about consumer arbitrations, such as the arbitrator s identity, the prevailing party, and how much the consumer paid in arbitration fees. Unlike several other major private arbitration companies, the National Arbitration Forum (NAF) refuses to disclose this information about most of the consumer arbitration cases it handles. Plaintiffs Ellen Corbett (who chairs the CA House of Delegates Judiciary Committee) and Consumer Action have brought this case under California s consumer protection laws to compel NAF to comply with state law. The California Superior Court has tentatively dismissed the case, on the grounds that the statute creating a private right of action for the plaintiffs has been repealed retroactively. Plaintiffs have a pending motion for reconsideration. Co-lead counsel are San Francisco s Cliff Palefsky and TLPJ s Paul Bland. Bad Faith Insurance (CA) Boghos v. Lloyd s of London Tony Boghos had a long-term disability insurance policy with Lloyd s of London, but Lloyd s denied him coverage after he was injured. Boghos sued Lloyd s in California state court for bad faith denial of insurance and breach of contract. The trial court denied Lloyd s motion to compel arbitration; Lloyd s appealed. TLPJ joined the case to represent Boghos on the appeal. The California Court of Appeal held that Lloyd s could not compel arbitration because its policy allowed Boghos to litigate claims for amounts due and because its arbitration clause illegally required Boghos to pay excessive arbitration costs. Lloyd s successfully petitioned the California Supreme Court for review. Oral argument was held on May 25, We await a decision. Amici briefs in support of the plaintiff were filed by Consumer Attorneys of California, Public Citizen, AARP, and the National Association of Consumer Advocates. TLPJ s Power-Cotchett Attorney Michael Quirk briefed and argued the appeal on the arbitration issue, with assistance from TLPJ s former Baron-Brayton Fellow Kate Gordon and Paul Bland. Plaintiff s lead counsel is Robert H. Bohn of San Jose, CA. Bankruptcy (PA) Mintze v. American General Finance The U.S. Court of Appeals for the Third Circuit is considering whether a U.S. bankruptcy judge has discretion to refuse to enforce an agreement to arbitrate a dispute involving a core bankruptcy issue. The bankruptcy court and the U.S. district court below both held that it was proper to deny arbitration, and American General Finance appealed. Lead counsel is Irv Ackelsberg of Community Legal Services in Philadelphia, the principal author of the consumer plaintiff s brief. Ackelsberg argued the case for the plaintiff and we await a decision. TLPJ s Paul Bland and Brayton-Baron Fellow Leslie Bailey contributed to the brief. Class Actions (CA) Discover Bank v. Superior Court of Los Angeles County A California court of appeal held that an arbitration clause banning class actions, either in arbitration or in court, could not be found unconscionable under state contract law because such a finding was preempted by the Federal Arbitration Act (FAA). California Attorney General Bill Lockyer has requested depublication of the court of appeal s decision. TLPJ s Paul Bland and former fellow Kate Gordon, with assistance from Michael Quirk, successfully petitioned the California Supreme Court for review. Bland and co-counsel Brian Strange of Los Angeles argued the case on April 6, We await a decision. Los Angeles attorneys Gretchen Carpenter and Barry Kramer are also co-counsel. Class Actions (CA) Tamayo v. Brainstorm In this consumer deception case against a company that sells computers to low income and mostly Spanishspeaking persons, and the company s lender, a federal district court refused to enforce the lender s arbitration clause. TLPJ represents the consumers on appeal, along with co-counsel Bryan Kemnitzer and Christopher Jennings of San Francisco and Eric Wayne Wright of Los Gatos, CA. The plaintiffs argue that they are not subject to binding arbitration because: (1) there was no agreement to submit their claims to binding arbitration under the contract s language; (2) the arbitration clause is unconscionable because it prohibits class actions; and (3) the clause is unconscionable because it imposes prohibitive expenses upon the consumers. TLPJ s Michael Quirk argued the appeal for the plaintiffs before the Ninth Circuit. The court held that the arbitration clause was unenforceable against defendant Brainstorm USA because it was not a signatory to nor a third-party beneficiary of the lender s arbitration clause. With regard to the lender, the Ninth Circuit stayed the appeal pending a decision by the California Supreme Court in Discover Bank v. Superior Court of Los Angeles County, discussed above. Class Actions (NY) Hayes v. County Bank This is a putative class action by borrowers alleging that a payday lending company violated New York civil rights and usury laws by targeting low-income and predominantly African-American communities for the marketing and issuance of short-term loans with annual interest rates in excess of 900%. A New York state trial court held that the payday lender s mandatory arbitration clause barring claims for class-wide relief was enforceable, and ordered the plaintiffs to arbitrate. The plaintiffs appealed. TLPJ filed an amici brief on behalf of a coalition of public interest groups, arguing that: (1) the court has jurisdiction to hear the plaintiffs appeal because the Federal Arbitration Act (FAA) does not preempt New York s rule allowing direct appeals from orders compelling arbitration; (2) the arbitration clause is unconscionable under New York contract law because it bars claims for Continued to opposite page. 8 P U B L I C J U S T I C E S P R I N G / S U M M E R

9 Continued from previous page. class-wide relief; and (3) the FAA does not preempt this application of state contract law. Oral argument was held and we await a decision. TLPJ s Michael Quirk and Goldberg-Deitzler Fellow Richard Frankel wrote the amici brief with input from Paul Bland and cocounsel Deborah Zuckerman of AARP, Russ Hayes of New York Public Interest Research Group, and Rachel Weintraub of Consumer Federation of America. Class Actions (WA) Scott v. Cingular Wireless This is a putative class action by Cingular customers who allege that Cingular charged fees for services that it had promised in its contract to provide free of charge. The Washington trial court granted Cingular s motion to compel arbitration, holding that the corporation s mandatory arbitration clause, which prohibits its customers from bringing or participating in class actions against it, is not unconscionable under Washington law. TLPJ argues on appeal that the arbitration clause is clearly unconscionable because the ban on class actions is one-sided and exculpatory, and that the plaintiffs must be allowed to pursue their claims as a class in court. Briefing is complete. Cingular has filed a motion to dismiss on the grounds that the consumers must complete arbitration before appealing. We await a decision on that point from the court. TLPJ s Paul Bland and Brayton- Baron Fellow Leslie Bailey are lead counsel on appeal. Co-counsel are Seattle attorneys Douglas Dunham, Stephen Crane, and Steve Rosen. Conflicts of Interest (CA) Jevne v. Superior Court of Los Angeles County The California Supreme Court considered whether a California statute that imposes ethical duties on arbitrators is preempted by the Federal Arbitration Act ( FAA ) and/or the federal securities laws, as the state statute would apply to arbitrations conducted by the National Association of Securities Dealers. TLPJ and the California Employment Lawyers Association ( CELA ) filed an amici brief arguing that the California statute is not preempted by either set of federal laws. On May 23, 2005, the California Supreme Court unanimously held that California s ethics standards for neutral arbitrators were preempted by the Securities Exchange Act when applied in securities industry cases governed by federal law. The Court withheld judgment on whether these standards would be preempted by the FAA. TLPJ s former fellow Kate Gordon and Michael Quirk co-wrote the amici brief, with assistance from co-counsel Cliff Palefsky. Costs of Arbitration (MS) Sanderson Farms, Inc. v. Kenny Austin and Sanderson Farms, Inc. v. Tanya Ballard In consolidated appeals from two trial court orders denying motions to compel arbitration, TLPJ is co-counsel for two putative classes of chicken farmers asserting claims for negligent and fraudulent inducement based on misrepresentations made by a poultry company before they entered into long-term growing contracts. The company is trying to force these farmers to arbitrate their claims under a mandatory arbitration clause that (1) imposes twoand 14-day limitations periods for growers to assert and file their claims; (2) prohibits growers from ever recovering punitive damages or attorneys fees; (3) imposes heightened proof standards for consequential damages claims; (4) forces growers to pay half the costs of arbitrating their claims before a threemember commercial arbitration panel, while prohibiting growers from joining their claims as a class; and (5) allows the company to terminate the contract and repossess its flocks without going through arbitration. On appeal, we are arguing that these provisions render the arbitration clause unconscionable. The factual record in the case demonstrates that every farmer who has ever tried to arbitrate under this system had to abandon the arbitration because of the prohibitive costs. The plaintiffs brief was filed on May 27, TLPJ s Michael Quirk and plaintiffs lead counsel J. Dudley Butler of Benton, Mississippi co-wrote the brief. Forum Selection and Costs (CA) Nagrampa v. MailCoups, Inc. A federal court in California held that an arbitration clause between a one-woman franchise owner and its national parent corporation was enforceable, even though the clause required arbitration in Massachusetts and forced the owner to pay over $7,000 simply to defend against an action by the company. TLPJ is lead counsel on the appeal to the Ninth Circuit, where we argued that the forum selection and cost provisions are unconscionable, and that the arbitral panel the American Arbitration Association is biased in favor of its company clients. The Ninth Circuit panel affirmed the district court, holding that the plaintiff had to arbitrate her challenges to the arbitration clause because some of these challenges also applied to other terms in the parties contract. On April 7, 2005, TLPJ petitioned for rehearing en banc by the full Ninth Circuit. The presiding judge on the panel ordered the defendant to answer our en banc petition. We await a decision on this petition. After the panel s opinion was issued, the company moved to lift a stay in the district court in its separate action to enforce an arbitration award against our client. We defeated this motion based on our pending en banc petition. TLPJ s former Baron-Brayton fellow Kate Gordon briefed and argued the case before the Ninth Circuit panel, with briefing assistance from Paul Bland and Mike Quirk. Michael Quirk wrote the en banc petition with input from Bland, Gordon, and current fellows Richard Frankel and Leslie Bailey. TLPJ s co-counsel in the appeal is San Francisco s Sanford M. Cipinko. Non-Mutual and Remedy-Limiting Arbitration Requirement (WI) Eastman v. Conseco Finance Servicing Corp. Borrowers filed a putative class action against a sub-prime mortgage lender challenging some of its fees as unlawful under the Wisconsin Consumer Act. The lender moved to compel arbitration. The state trial court refused to compel arbitration, holding that the lender s arbitration clause was unconscionable because it required borrowers to arbitrate their claims but imposed no such requirement on the lender. TLPJ represents the plaintiffs on the lender s appeal of this order. The Wisconsin Court of Appeals had successfully See Arbitration Updates, page 10. S P R I N G / S U M M E R P U B L I C J U S T I C E 9

10 Arbitration Updates, continued from page 9. certified the appeal to the state Supreme Court to determine whether the one-sided consumer arbitration clause is unconscionable and whether the plaintiffs would be able to maintain a class action and obtain punitive damages and injunctive relief in arbitration. The week before the case was scheduled for oral argument, the court stayed the case due to the defendant s bankruptcy filing. Subsequent to the close of bankruptcy proceedings, the Wisconsin Supreme Court ordered briefing on whether any of the plaintiffs claims could survive the bankruptcy proceedings. The Wisconsin Supreme Court dismissed Conseco s appeal and remanded the case to the trial court. TLPJ s Michael Quirk wrote the plaintiffs brief to the Wisconsin Supreme Court with assistance from TLPJ s former fellow Kate Gordon, Paul Bland, and Leslie Brueckner. The Wisconsin Attorney General s Office, the Legal Aid Society of Milwaukee, the Center for Public Representation, and groups of professors from the University of Wisconsin and Marquette University Law Schools have filed amicus briefs in support of the plaintiffs. Payday Loan Victims (FL) Cardegna v. Buckeye Check Cashing Consumers allege that a payday lender charging interest rates of up to 1,300 percent has violated Florida s usury laws. The trial court denied the lender s motion to compel arbitration, in part because it ruled that the contract is illegal under Florida law. An intermediate appellate court reversed, compelling arbitration. The Florida Supreme Court granted review and ruled, on January 20, 2005, that consumers who take out payday loans cannot be forced into arbitration before a court determines whether the entire contract is illegal and void ab initio. Buckeye has petitioned for the U.S. Supreme Court to grant certiorari in the case, and the plaintiffs have opposed that petition. We await the Court s ruling on whether it will hear the case. TLPJ s Paul Bland and lead counsel Clayton Yates of Fort Pierce, FL co-argued the case in the Florida Supreme Court. Christopher Casper of Tampa, FL, and Richard Fisher of Cleveland, TN wrote the plaintiffs opening brief, with input from TLPJ s Michael Quirk and former fellow Kate Gordon. Rewriting Arbitration Clauses (OH) Scovill v. WSYX/ABC In this employment case, an arbitration clause provided that the employee must arbitrate all of his claims but permitted the employer to go to court, stripped the employee of a number of substantive rights available to him under the federal anti-discrimination laws, changed the burdens of proof under the civil rights laws to make it harder for the employee to prove discrimination, shortened the limitations period in which a claim might be brought, and required that the employee pay tens of thousands of dollars in arbitration fees to pursue any claim. The U.S. district court held that a number of these terms were illegal, but then rewrote the arbitration clause to make it legal and enforced it. The employee has appealed to the U.S. Court of Appeals for the Sixth Circuit, and WSYX/ABC has cross-appealed. Briefing is complete and we await the scheduling of oral argument. Frederick Gittes and Kathaleen Schulte of Columbus, OH represent the plaintiff. They are joined on this appeal by TLPJ s Paul Bland and Leslie Bailey. Statutory Rights (FL) Bautista v. Star Cruises The U.S. Court of Appeals for the Eleventh Circuit considered whether Filipino seamen working on cruise ships, who have certain labor rights granted to them under the Jones Act, may be compelled to arbitrate claims for wrongful death and personal injury before labor arbitrators in the Phillippines. The plaintiffs include the widows of six seamen who were killed when a cruise ship s boiler exploded, along with several seamen injured in the explosion. The district court held that the arbitration clause was valid and ordered arbitration. TLPJ and ATLA submitted an amici brief in the case urging reversal. The Eleventh Circuit affirmed the district court, holding that claims by seamen and other types of transportation workers are subject to binding arbitration under the foreign arbitration provisions of the Federal Arbitration Act, and finding that the plaintiffs would not necessarily lose their rights in arbitration because of factual distinctions between their claims and those held to be non-arbitrable by the Philippine Supreme Court. TLPJ s former fellow Kate Gordon authored TLPJ s section of the amici brief, with assistance from Paul Bland. Plaintiffs lead counsel is William Huggett of Miami, FL. OUR MISSION Trial Lawyers for Public Justice is the only national public interest law firm that marshals the skills and resources of trial lawyers to create a more just society. Through creative litigation, public education, and innovative work with the broader public interest community, we: protect people and the environment; hold accountable those who abuse power; challenge governmental, corporate and individual wrongdoing; increase access to the courts; combat threats to our justice system; and inspire lawyers and others to serve the public interest. 1 0 P U B L I C J U S T I C E S P R I N G / S U M M E R

11 Gun Safety & Accountability continued from page 1. responsibly as those who manufacture, distribute, and sell other dangerous products, said TLPJ Executive Director Arthur H. Bryant. Smith & Wesson acted responsibly by settling this important case. If Smith & This settlement underscores that those who manufacture, distribute, and sell guns have as much duty to act responsibly as those who manufacture, distribute, and sell other dangerous products. Wesson had designed its gun responsibly for example, if they had childproofed this pistol using existing technology then Royce Ryan would not have been injured and this case would never have been brought. The case stems from the accidental shooting of Royce Ryan. On April 15, 1998, Royce was playing with three friends in Wichita, Kansas. One friend, 15-year-old Jared McMunn, asked the others if they wanted to see a gun and then took them to see a Smith & Wesson semi-automatic pistol in his parents dresser. Jared thought the gun was unloaded and, while showing it to the other kids, squeezed the trigger. But the gun s chamber still lodged one bullet. The gun fired and the bullet struck Royce just below his left eye, exiting the back of his head. Royce survived, but was critically wounded and suffered significant brain damage. Alleged Design Defects On May 22, 2000, Royce and his mother filed suit in Pennsylvania state court against Smith & Wesson, alleging that the Model 915 was defective in three ways. First, the gun had a defective magazine disconnect safety, a device that is supposed to prevent a gun from firing when the magazine is removed. The Model 915 s magazine disconnect safety sometimes allowed the gun to be fired even when the magazine was removed. Second, the gun lacked a loaded chamber indicator, a simple device that shows whether a gun is unloaded or there is a bullet in the chamber. Third, the gun was not child-proofed in any way, despite numerous inexpensive designs and technologies readily available for that purpose. This is a shooting that should never have taken place and a lawsuit that should never have been necessary, said co-lead counsel Robert L. Pottroff of Myers, Pottroff & Ball in Manhattan, Kansas. We hope this settlement will help spur the gun industry to take appropriate steps to prevent the thousands of wholly unintended and readily avoidable shootings and deaths that occur each year. I am very pleased with the settlement but even more pleased with the fact the gun manufacturers are now beginning to include simple locking devices on some of their guns. I hope this marks the beginning of a transition to childproof guns. National Picture Thousands of children in America are killed or injured each year in unintentional shootings. According to a 1991 U.S. General Accounting Office report, about one in every three accidental shooting deaths in the U.S. could be prevented by just two simple kinds of safety devices loaded chamber indicators and child-proof gun safeties. Despite that fact, most gun manufacturers have steadfastly refused to incorporate these safety devices into their products. Smith & Wesson knew that accidental shootings like this were taking place throughout America, but it failed Robert L. Pottroff Robert J. Mongeluzzi Victoria W. Ni Stephen W. Brown to take the most basic, inexpensive steps possible to prevent them, said co-lead counsel Robert J. Mongeluzzi of Saltz, Mongeluzzi, Barrett & Bendesky in Philadelphia. That s why it was essential to hold the gunmaker accountable. Plaintiffs co-counsel in Ryan also included TLPJ Staff Attorney Victoria W. Ni, Jay Heidrick of Myers, Pottroff & Ball, and Stephen W. Brown of Megaffin, Brown & Lynch in Pratt, Kansas. S P R I N G / S U M M E R P U B L I C J U S T I C E 1 1

12 TLPJ and Missouri Citizens Sue City of St. Louis and Airport for Illegal Asbestos Removal EPA Rejects Airport s Wet Method of Demolishing Asbestos-Laden Buildings T A track hoe demolishes a structure near Lambert Airport s control towers. LPJ has joined forces with a local, grassroots environmental group to file a lawsuit against the City of St. Louis and Lambert-St. Louis International Airport for endangering the public health by demolishing more than 300 buildings laden with deadly asbestos using the illegal and experimental wet method of asbestos removal. TLPJ filed the complaint on May 5, 2005, in the U.S. District Court for the Eastern District of Missouri in St. Louis. The complaint charges the city and its airport authority with violating two federal environmental statutes, on behalf of Families for Asbestos Compliance, Testing and Safety (FACTS), a grassroots group comprised mainly of Bridgeton, Missouri residents who live near the demolished buildings and are concerned about the public health hazards of the asbestos fibers released by the demolitions. Asbestos is an extremely hazardous material that can cause cancer and other diseases that show up decades after the exposure occurs. TLPJ notified the city and airport authority in January 2005 of its intent to sue on behalf of FACTS. Federal law imposes a 90-day statutory waiting period before a complaint may be filed. The City of St. Louis and its airport authority have shirked their duty both to inform local citizens about the Photo courtesy of Lambert Airport scope of the asbestos contamination and to clean it up, said TLPJ Environmental Enforcement Director Jim Hecker. As a result, local citizens are seeking to protect their families health by holding the city and its airport authority accountable for unnecessarily and illegally exposing them to deadly asbestos fibers. Instead of removing all asbestos from buildings before they were demolished, as federal regulations under the Clean Air Act require, the airport authority left much of the asbestos in place and merely wet it down with a hose during demolition. The U.S. Environmental Protection Agency s (EPA s) own scientists have stated that there is no known safe level of asbestos exposure and there is substantial evidence that even with the wetting of [asbestoscontaining materials] there will still be release of airborne asbestos fibers. In a May 2, 2005 letter, the airport asked FACTS to delay its lawsuit until the EPA conducted further studies and tests of the wet method. However, TLPJ and FACTS pressed forward with the lawsuit and, just one week later, the EPA concluded on May 12, 2005, that it cannot concur with the airport s claim that its wet method of demolition is safe and effective. The EPA found that the wet method did not prevent the release of asbestos into the air; the airport s sampling data was inadequate to show there was no release of asbestos to soil and water; and that air monitoring alone cannot quantify all the risks from asbestos releases. The EPA s report stated that settled dust and crumbling debris from construction sites also pose a significant source of long-term exposure and subsequent risk. The EPA s report confirms what we ve been saying all along the wet method of asbestos removal is unsafe, said Sean Donnelly, president of FACTS and a Bridgeton resident. It s time for the City of St. Louis and its airport authority to level with the public, admit that they have a serious public health crisis in Bridgeton, test the soil for contamination, and clean up any contamination they find. TLPJ s lawsuit seeks testing to determine the extent to which the releases may have contaminated the soil in the community with asbestos, and how much asbestos may be released into the air again when ground around the airport is disturbed. In its complaint, FACTS alleges that the city and the airport authority have violated the federal Clean Air Act more than 300 times by failing to use federally-required methods for removing asbestos before demolition. FACTS also charges that the released asbestos may have contaminated the soil and created an imminent and substantial endangerment to public health and the environment in violation of the federal Resource Conservation and Recovery Act, which regulates releases of hazardous wastes. FACTS intends to seek civil penalties payable to the federal government for past Clean Air Act violations, an injunction preventing further violations, and an order requiring the city and the airport authority to evaluate and clean up contaminated soil. FACTS is not seeking damages for personal injuries to its members. TLPJ s co-counsel in this case are Richard Miller of Monsees, Miller, Mayer, Presley & Amick in Kansas City, Missouri, Scott Frost of the Frost Law Firm in Dallas, Ben DuBose of Baron & Budd, P.C. in Dallas, and Bruce Morrison of the Great Rivers Environmental Law Center in St. Louis. A copy of the complaint in Families for Asbesos Compliance, Testing, and Safety v. City of St. Louis is posted on TLPJ s web site at 1 2 P U B L I C J U S T I C E S P R I N G / S U M M E R

13 First Amendment Rights continued from page 1. rights in response to the actions of a violent few. We will seek reconsideration of that ruling by the entire court. The Ninth Circuit s decision was both a great victory and a great loss. The Court held 2 to1that Seattle did not violate the First Amendment when it declared the entire downtown business district a no-protest zone, banning both protest for and protest against the WTO. That was a great loss, because it means that the government can prohibit/suppress peaceful Americans speech in response to violence by others. The Court unanimously held, however, that the City violated the First Amendment if the police applied the no-protest order only to suppress protest against the WTO and arrest only anti-wto protesters. That was a great victory, because it prohibits the government from favoring any point of view. The Ninth Circuit s unanimous ruling that Seattle could not constitutionally use the no-protest order to suppress anti-wto speech is crucial, said TLPJ Staff Attorney Victoria W. Ni, TLPJ sued Seattle for wrongly arresting peaceful protestors inside and outside of a no-protest zone during the anti-wto demonstrations in December Environmental advocates dressed as turtles urge the WTO to make trade clean, green, and fair. Photos by Peter Yates co-counsel in the case. That s exactly what Seattle did. That s what prompted this lawsuit to be filed. Our clients were arrested and jailed for protesting against the WTO. They never committed, and were never convicted of, any crime. In December 1999, when an estimated 50,000 people from 65 countries gathered in Seattle to protest the environmental, economic, and labor policies endorsed by the WTO, then-mayor Paul Schell responded to anarchists violent actions by issuing an order cordoning off a 25-square-block no-protest zone in the heart of the downtown area. In enforcing this noprotest zone order, police prevented anyone who expressed or displayed any anti-wto views even those who lived or worked within the zone and were exempt from its restrictions from entering. Officers seized anti- WTO signs and leaflets, and even confiscated copies of the First Amendment being passed out by a peaceful protester. Hundreds of peaceful protesters were arrested and thrown in jail. A putative class action lawsuit on behalf of these protesters was filed by TLPJ, seeking damages and charging that the arrest and imprisonment of class members deprived them of their right to free speech and assembly under the First Amendment, as well as their right to speak freely under Article 1, Section 5 of the Washington State Constitution. In Menotti v. City of Seattle, Judge Ronald M. Gould wrote for a unanimous court: [I]n some instances police conduct may have gone too far and infringed on certain individual protesters constitutional rights by making the content of their expressed views the test for their entry into the restricted zone. TLPJ s legal team is preparing for a trial on these issues, while seeking reconsideration of the Court s broader 2to1 ruling. In addition to Berman and Ni, TLPJ s legal team includes Seattle attorneys Tyler Weaver of Hagens Berman, Michael Withey of Stritmatter Kessler Whelan Withey Coluccio, John Muenster of Muenster & Koenig, Fred Diamondstone, and Ben Schwartzman; Yvonne Kinoshita Ward of Auburn, WA; Professor Erwin Chemerinsky of Duke Law School; and TLPJ Executive Director Arthur Bryant. S P R I N G / S U M M E R P U B L I C J U S T I C E 1 3

14 C ASE UPDATES Recent developments in other TLPJ cases are summarized below. TOXIC TORTS Lead Paint (NY) N.Y. City v. Lead Industries Ass n This case seeks reimbursement from the lead industry for the cost of removing lead paint from some of the city s public housing. Discovery is ongoing. TLPJ s Arthur Bryant is of counsel. CONSUMER RIGHTS Credit Cardholders Rights (MD) Wells v. Chevy Chase Bank This consumer class action seeks damages for Chevy Chase Bank s breach of its promise to credit cardholders that their annual percentage rates would never exceed 24%. The trial court dismissed the case twice, once compelling arbitration and once holding that the plaintiffs claims were preempted by federal law. Both times the state s high court reversed those rulings, and the U.S. Supreme Court denied Chevy Chase s certiorari petition with respect to the second ruling. The case is back in the trial court, and a hearing on the parties motions for class certification and summary judgment is scheduled in June Counsel in the case are John T. Ward of Baltimore and TLPJ s Paul Bland, Michael Quirk, Leslie Brueckner, and Richard Frankel. HMO Accountability (CA) Timmis v. Kaiser Permanente This lawsuit sought to enjoin Kaiser Permanente, California s largest HMO, from forcing its members to accept and manually split prescription pills that are twice the members prescribed doses. The trial court entered summary judgment for Kaiser on judicial abstention grounds, the appeals court affirmed on different grounds, and the state Supreme Court denied review. The case is now over. Plaintiffs were represented by lead counsel Mark P. Robinson, Jr. and Sharon J. Arkin of Newport Beach, CA; co-counsel Thomas R. Grande of Honolulu; and TLPJ s Arthur Bryant and Victoria Ni. HMO Double-Billing (MD) Singh v. Prudential Health Care, and several similar cases These cases involve allegations that Maryland HMOs unlawfully doublebilled their members by collecting subrogation from them. Under the Maryland HMO Act, HMOs may only be paid through premiums, copayments, or deductibles; they do not have the right to collect additional money from a patient who has received payment from the person who injured him. During the litigation, TLPJ and its co-counsel have prevailed on four appeals: one in the Maryland Court of Appeals holding that the Maryland HMO Act does indeed forbid subrogation, another in the same court striking down a retroactive statute that would have permitted subrogation going back 24 years, and two in the U.S. Court of Appeals for the Fourth Circuit holding that ERISA does not bar the plaintiffs claims. Two of the five cases, Riemer v. Columbia Medical Plan and Balthrop v. Kaiser Foundation Health Plan of the Mid-Atlantic States, Inc., have settled for $3 million and $800,000, respectively. The remaining three cases are currently pending in the U.S. District Court for the District of Maryland. Motions for class certification are pending in two of those cases. Counsel in these cases are Baltimore s Kieron Quinn, Martin Wolf, Rob Jenner, and Steve Adelman; and TLPJ s Paul Bland and Richard Frankel. Lap/Shoulder Belts (FL) Brailsford v. Nissan Motor Co. In this personal injury case arising out of a car crash that left a four-yearold boy permanently paralyzed, the plaintiff seeks to hold Nissan liable for equipping the rear-center seat of a passenger car with a two-point lap belt, rather than a three-point lap/shoulder harness. Nissan moved to dismiss the case on preemption grounds, arguing that the lawsuit conflicts with a federal safety regulation that gave car makers a choice between installing lap belts or lap/shoulder harnesses in rear-center seats. With TLPJ s help, the motion to dismiss was denied, and the case is in the midst of discovery. Theodore Leopold of West Palm Beach, FL is lead trial counsel; TLPJ s Leslie Brueckner is co-counsel. Passive Restraints (IN) Speedy/PNC Bank v. General Motors Corp. In this auto crash case, General Motors contends that federal regulations preempt state law and bar an injured passenger from holding GM liable for the injuries caused by its failure to install passive restraints in the car. TLPJ s Arthur Bryant successfully opposed GM s argument. Predatory Lending (NC) McQuillan v. Check N Go of North Carolina, and four similar cases In these cases, the plaintiffs challenge payday lending operations under North Carolina law. Check N Go removed McQuillan to federal court, but the case was remanded to the state trial court. Payday lenders Check into Cash and Advance America have moved the state trial court to compel arbitration. The parties are currently in motion practice as to whether the plaintiffs will be permitted to take discovery regarding their opposition to the arbitration motion. Meanwhile, the national banks that had entered into rent-a-bank arrangements designed to shield the payday lenders from state law filed actions in federal court to force the plaintiffs to arbitrate their claims on an individual basis. The U.S. Continued to opposite page. 1 4 P U B L I C J U S T I C E S P R I N G / S U M M E R

15 Continued from previous page. District Court for the Eastern District of North Carolina dismissed an action by Republic Bank (which engages in the rent-a-bank arrangement with Advance America), and Republic Bank has appealed to the the Fourth Circuit. A similar motion to dismiss involving one of the companion cases is pending in the U.S. District Court for the Middle District of North Carolina. Counsel are Carlene McNulty of the North Carolina Justice Center; Mal Maynard of the Financial Protection Law Center; Mona Wallace and John Hughes of Salisbury, NC; Jerry Hartzell of Raleigh, NC; Richard Fisher of Cleveland, TN; and TLPJ s Paul Bland and Richard Frankel. ENVIRONMENTAL ENFORCEMENT PROJECT Coal Mining (KY) Kentucky Riverkeeper v. Rowlette This suit on behalf of three Kentucky environmental groups raises the same claims as those in OVEC v. Bulen and seeks to enjoin the Corps from using general permits for surface coal mines in Kentucky. The parties have briefed cross-motions for summary judgment. TLPJ s Jim Hecker, Joe Childers in Lexington, KY, Brent Bowker in Prestonsbrug, KY, and Joe Lovett in Lewisburg, WV are co-counsel. Coal Mining (WV) Ohio Valley Environmental Coalition v. Bulen This suit on behalf of three environmental groups claims that the U.S. Army Corps of Engineers has violated the Clean Water Act by issuing routine general permits, rather than more stringent individual permits, to fill streams with mining waste. The district court enjoined the Corps from using the general permit for mines in West Virginia, and the Corps has appealed to the Fourth Circuit. Joe Lovett of Lewisburg, WV and TLPJ s Jim Hecker are co-counsel. Sulfuric Acid Air Pollution (OH) Citizens Against Pollution v. American Electric Power Co. An organization representing 82 Ohio families filed this citizen suit under three federal environmental laws, claiming that sulfuric acid released from AEP s coal-fired Gavin Plant is endangering the surrounding community and that AEP has failed to report fully its releases of this pollutant. Discovery is underway. Jim Ferraro of Miami, FL, Brian Glasser of Charleston, WV, and TLPJ s Jim Hecker are co-counsel. Water Pollution (PR) In Re: Corralations, Inc. and Centro de Accion Ambiental, Inc. In Re: Aquadilla Regional Wastewater Treatment Plant Puerto Rican environmental groups filed these two appeals with the U.S. EPA s Environmental Appeals Board challenging two EPA decisions to waive Clean Water Act treatment requirements and allow two Puerto Rican municipal treatment plants to discharge partially treated sewage into the ocean. In March 2005, the EAB denied both appeals. Cindy Gines of Mayaguez, Puerto Rico and TLPJ s Jim Hecker are co-counsel. CIVIL RIGHTS Disability Rights (WA) Parents Against Disability Discrimination v. Equity Residential This lawsuit seeks to stop disability discrimination by a private contractor that provides housing for military families living on the U.S. Army base at Fort Lewis, Washington. The lawsuit alleges that the private contractor has violated federal and state civil rights laws by failing to make reasonable physical modifications to housing units as needed by disabled individuals; failing to make reasonable accommodations to policies, practices, and procedures needed by the disabled; failing to make common areas accessible; making unlawful inquiries about individuals disabilities; and harassing and intimidating families with members who are disabled. Sid Wolinsky of Disability Rights Advocates in Oakland, CA is lead counsel. Michael Withey of Seattle, Christopher Brancart of Pescadero, CA, and TLPJ s Victoria Ni, Leslie Bailey, and Rebecca Epstein are co-counsel. Discriminatory Scholarship Program (MI) White v. Engler This federal class action challenges a Michigan college scholarship program as discriminatory. The suit charges that the state s reliance on the Michigan Educational Assessment Program (MEAP) test as the sole criterion for awarding scholarships discriminates against racial and ethnic minorities. U.S. Supreme Court decisions in unrelated cases eviscerated plaintiffs disparate impact discrimination claim. The parties are discussing resolution of the remaining intentional discrimination claim. TLPJ State Coordinator Michael Pitt of Royal Oak, MI and Kary Moss of Detroit s ACLU are colead counsel. Co-counsel are Michael Steinberg of Detroit s ACLU; Alonzo Rivas of Chicago s MALDEF; Peggy Goldberg Pitt of Royal Oak, MI; Judith Martin of Okemos, MI; John Johnson of Detroit s NAACP; and TLPJ s Adele Kimmel and Rebecca Epstein. Freedom of Speech (TX) Chiras v. Miller This First Amendment lawsuit charges that Texas State Board of Education officials rejection of an environmental science textbook for use in public high schools constitutes censorship in violation of the U.S. Constitution. The lawsuit was filed on behalf of the author and a putative class of Texas public high school students who have been denied access to See Case Updates, page 16. S P R I N G / S U M M E R P U B L I C J U S T I C E 1 5

16 Case Updates, continued from page 15. the textbook. Plaintiffs seek a court order declaring that the Board members rejection of the book was unconstitutional and requiring the book s inclusion on the list of state-approved texts. The author also seeks damages from several current and former Board members in their personal capacities, stemming from lost sales caused by their censorship. The trial court dismissed the case and we appealed to the U.S. Court of Appeals for the Fifth Circuit. The appeal is fully briefed. Oral argument is scheduled for July 7, Steve Baughman Jensen of Dallas is lead counsel; TLPJ s Adele Kimmel, Rebecca Epstein, Richard Frankel, and former fellow Kate Gordon are co-counsel. AMICUS BRIEFS Civil Rights (WA) In Lyons v. City of Seattle, TLPJ filed an amicus brief with the U.S. Court of Appeals for the Ninth Circuit arguing that the government must show probable cause for arresting each person it arrests in a mass arrest. We await a decision. The brief was written by Tyler Weaver and Steve Berman of Seattle, with input from TLPJ s Vicky Ni and Arthur Bryant. Insurance Company Fraud (IL) In State Farm v. Avery, a jury found that State Farm had breached its contract with its customers and violated the state s deceptive practices statute by using replacement parts to repair damaged vehicles that were not as good as the parts originally installed by the manufacturer. The case is on appeal in the Illinois Supreme Court, where the principal issue is whether the lower court properly certified the case as a class action. TLPJ s Paul Bland filed an amicus brief arguing that it is proper and legal to bring a nationwide class action in state court and to apply the laws of that state, when the defendant is based in that state and conducted illegal activities there. The case was argued and we await a decision. Right to Jury Trial (CA) In Grafton Partners, L.P. v. Superior Court, TLPJ joined an amici brief with Consumer Attorneys of California and the National Association of Consumer Advocates urging the California Supreme Court to hold that state constitutional and statutory law prohibit enforcement of pre-dispute contracts waiving a party s right to a jury trial in a civil case. The brief argues that the constitutional right to a jury trial is fundamental and can only be waived after a dispute arises and the party charged with waiving the right is able to make a knowing and voluntary waiver. Oral argument was held on June 1, We await a decision. TLPJ Foundation Board of Directors member and past CAOC President Jim Sturdevant wrote the amici brief, with input from TLPJ s Michael Quirk and Arthur Bryant. Tobacco Victims (IL and MI) TLPJ filed an amici brief with the Supreme Court of Illinois in Price v. Philip Morris, Inc., supporting the use of class actions in appropriate circumstances especially where the amount of damages per person would preclude individual litigation from being brought and let the defendant avoid all accountability for wrongdoing if no class were certified. (The underlying class action judgment, which is being challenged on appeal, involves economic damages claims arising out of the sale of so-called light cigarettes.) Steve Gardner of Dallas and TLPJ s Leslie Brueckner authored the brief. We await a decision. TLPJ also joined an amici brief in Craft v. Philip Morris, Inc., pending in a Missouri court of appeals, supporting the use of the class action device to deter wrongdoing and compensate victims. As in Price, the underlying class action involves economic damages claims arising out of the sale of light cigarettes. The amici brief, which emphasized the value of the class action device, was authored by National Association of Consumer Advocates ( NACA ), with input from TLPJ s Paul Bland. We await a decision. CLASS A CTION ABUSE PREVENTION PROJECT Consumer Late Fees (MD) Dotson v. Bell Atlantic-Maryland, Inc. TLPJ has urged the Circuit Court for Prince George s County, Maryland to strike down a proposed class action settlement in Dotson v. Bell Atlantic- Maryland, Inc., a consumer late fee class action. This settlement would allow the class counsel to collect fees of $12.5 million out of a $26 million settlement fund, while the plaintiff class would receive $12.5 million in relief. The court granted approval and appointed a special master to determine the appropriate attorney fees. We appealed the final approval decision and sought and obtained review by the Maryland Court of Appeals. These objections were filed less than a year after TLPJ and its co-counsel s objections defeated an earlier proposed settlement which would have paid $155,000 to the class and $13 million to class counsel. TLPJ s Michael Quirk is briefing and arguing the objections, with input from Paul Bland and Arthur Bryant. Predatory Lending (MS) Baker v. Washington Mutual Finance TLPJ s objections to a class action settlement that unlawfully bars class members from opting their punitive damages claims out of the class were denied by the district court, and the case is on appeal to the U.S. Court of Appeals for the Fifth Circuit. TLPJ s Richard Frankel is lead counsel on the appeal, along with co-counsel Peter T. Martin of Aberdeen, MS, and Charles Mullins of Jackson, MS. 1 6 P U B L I C J U S T I C E S P R I N G / S U M M E R


18 Attorneys in Four Exceptional Cases Named Finalists for the 2005 Trial Lawyer of the Year Award Finalists To Be Honored at Annual Gala and Awards Dinner in Toronto on July 26 The TLPJ Foundation has named the attorneys who worked on four extraordinary cases as finalists for its 2005 Trial Lawyer of the Year Award. The nationally prestigious award is bestowed annually upon the trial lawyer or lawyers who have made the greatest contribution to the public interest by trying or settling a precedent-setting case. The winner will be announced on July 26, 2005, at The TLPJ Foundation s Annual Gala and Awards Dinner at the The Carlu, an historic art deco venue in Toronto, Ontario. These stellar attorneys and cases demonstrate how the best and brightest of the trial bar bring their talents to winning justice for individuals and groups who otherwise would have no recourse, said TLPJ Foundation President Jeffrey M. Goldberg of The Jeffrey M. Goldberg Law Offices in Chicago. The finalists 31 lawyers in four cases were nominated for their committed work in cases addressing a broad range of social issues, including exposing defense contractor fraud, protecting the public water supply, forcing Big Tobacco to help smokers quit, and addressing safety defects in police cars. This year s finalists are listed alphabetically below. Chicago-based lawyers Michael I. Behn of Futterman Howard, Steven A. Miller of Sachnoff & Weaver, Bruce C. Howard of Robert D. Allison & Associates, Michael Jaskula of Soule, Bradtke & Lambert, and Thomas Asch, then of counsel to Sachnoff & Weaver, won justice after 16 years for two whistleblowers who were fired and blackballed for exposing massive fraud against the Pentagon in the mid-to-late 1980s at one of the nation s largest defense contractors. In U.S. ex rel. Robinson v. Northrop Grumman Corporation, a suit first filed in federal court in the Northern District of Illinois in 1989, the attorneys used the qui tam or whistleblower provisions of the federal False Claims Act to achieve a March 2005 settlement in which Northrop agreed to pay a total of $133 million, including $62 million to the federal government, $12.4 million to the whistleblowers as their share of the government s recovery, a confidential amount in retaliatory discharge claims, and reimbursement to the government for case litigation costs previously billed by Northrop. The team uncovered damning internal documents dating from 1986 showing that Northrop officials concealed major accounting irregularities and misled Pentagon auditors. This smoking gun evidence finally persuaded the Justice Department to reverse its 1992 decision to stay out of the case (the first such reversal ever in a qui tam case). Charleston, West Virginia attorneys Harry G. Deitzler of Hill, Peterson, Carper, Bee & Deitzler, PLLC (Hill, Peterson), Larry A. Winter of Winter Johnson & Hill PLLC, Robert A. Bilott and Gerald J. Rapien of Cincinnati s Taft, Stettinius & Hollister LLP, and R. Edison Hill and James C. Peterson of Hill, Peterson sued corporate giant DuPont for damages and medical monitoring stemming from DuPont s leaking of C8, or perfluorooctanoic acid a chemical used in producing nonstick cookware into the drinking water of Mid-Ohio Valley residents living near DuPont s Washington Works The Trial Lawyer of the Year Award winner will be announced at TLPJ s Annual Gala and Awards Dinner at The Carlu in Toronto on July 26, plant in Parkersburg, West Virginia. Initial studies have linked C8 to heart attacks, breast cancer, and testicular cancer in humans. In February 2005, after a grueling, three-and-a-half-year class action battle in West Virginia s Wood County Circuit Court in which the attorneys uncovered evidence going back to 1961 revealing that DuPont was aware of C8 s potential toxicity, the team achieved an unprecedented $107.6 million settlement in Leach v. E.I. DuPont de Nemours, in which DuPont will pay to determine whether the C8 it leaked into the public water supply will harm human health and the environment. The bulk of the settlement funds will go toward creating the largest community health study ever, covering some 80,000 people living along the Ohio River. If a health link is established, DuPont must spend up to another $235 million to monitor the health of residents exposed to C8. In addition, DuPont will pay $10 million to install filters at six water treatment plants in West Virginia and Ohio to reduce C8 in the water supply immediately. Continued to opposite page. Photo by Envision 1 8 P U B L I C J U S T I C E S P R I N G / S U M M E R

19 Continued from previous page. Russ M. Herman and Stephen J. Herman of Herman, Herman, Katz & Cotlar, L.L.P., in New Orleans, Bruce C. Dean of Bruce Dean, L.L.C. and Deborah M. Sulzer of Gauthier, Houghtaling, Williams, and Sulzer, both in Metairie, Louisiana, Robert L. Redfearn of New Orleans Simon, Peragine, Smith & Redfearn, Stephen B. Murray, Sr., and Stephen B. Murray, Jr. of New Orleans Murray Law Firm, Walter J. Leger and Christine L. DeSue of New Orleans Leger and Mestayer, Joseph M. Bruno and David S. Scalia of New Orleans Bruno and Bruno, Kenneth M. Carter of New Orleans Kenneth M. Carter, PLC, solo practitioner W. James Singleton of Shreveport, Raul R. Bencomo of New Orleans Bencomo and Associates, Meyer H. Gertler and Louis L. Gertler of New Orleans Gertler, Gertler, Vincent & Plotkin, Daniel E. Becnel, Jr. of Law Offices of Daniel E. Becnel, Jr. in Reserve, Louisiana, and Jack M. Bailey, Jr. of Shreveport s Law Offices of Jack M. Bailey, Jr. won an unprecedented May 2004 jury verdict ordering the tobacco industry to pay $590 million for a 10-year program of smoking cessation strategies to help Louisiana smokers kick the habit. Scott v. American Tobacco Company, a class action lawsuit against R.J. Reynolds, Philip Morris USA, Brown & Williamson, Lorillard, and The Tobacco Institute, covers hundreds of thousands of state residents who took up smoking between 1954, when the tobacco industry began its 50-year cover-up about nicotine addiction and smoking s connection to disease, and May 1996, when the suit was filed. "The finalists 31 lawyers in four cases were nominated for their committed work in cases addressing a broad range of social issues, including exposing defense contractor fraud, protecting the public water supply, forcing Big Tobacco to help smokers quit, and addressing safety defects in police cars." Evidence uncovered by the plaintiffs team over the course of the threeyear trial led the Scott jury to find that the cigarette makers had engaged in fraud, conspired to distort information about the dangers of smoking, and targeted Louisiana children in their marketing. This landmark class-action verdict could ultimately save thousands of lives by helping Louisiana smokers quit on the dime of the companies that addicted them in the first place. Patrick J. McGroder of the Phoenix firm Gallagher & Kennedy, P.A., and David L. Perry of Perry & Haas in Corpus Christi, Texas have made the country s most popular police car, Ford s Crown Victoria Police Interceptor, safer for officers across the nation. Through Schechterle v. Ford Motor Company, eight other Crown Vic cases, and a far-reaching public education campaign, McGroder and Perry have forced Ford to spend $350 million to retrofit approximately 350,000 police cruisers to correct a defective design that left the cruiser s fuel tank vulnerable to instant ignition in highspeed, rear-impact collision and which led to the burning deaths of 18 officers. In Schechterle, an Arizona state court lawsuit settled in April 2004, the team demonstrated that Ford knew the vehicle was a fire risk, winning a confidential settlement for Phoenix police officer Jason Schechterle, who sustained disfiguring burns to 50 percent of his body when a speeding taxicab slammed into the back of his police cruiser on March 26, Prior to the Ford retrofits, McGroder and Perry invested hundreds of thousands of dollars to create their own Crown Vic retrofits, which have been adopted by several law enforcement agencies and have saved six officers lives in crashes to date. TLPJ/THE TLPJ FOUNDA TION STAFF Arthur H. Bryant, Executive Director National Headquarters Staff Trial Lawyers for Public Justice Leslie Brueckner, Staff Attorney Adele Kimmel, Staff Attorney/Departmental Liaison Paul Bland, Staff Attorney Rebecca Epstein, Staff Attorney Michael Quirk, Power-Cotchett Attorney Jim Hecker, Environmental Enforcement Director Richard Frankel, Goldberg-Deitzler Fellow Barbara Reeves, Administration & Finance Director Sam Lawson, Network Administrator Jean Hansen, Bookkeeper Clarisia Lovelace, Senior Legal Assistant Paula Athey, Legal Assistant Lynette Hutton, Receptionist Benjamin Hiltzheimer, Law Clerk Victor Rortvedt, Law Clerk The TLPJ Foundation Kathryn Mitchell, Development Director Jonathan Hutson, Communications Director Susan Gombert, Meetings & Events Planner Cassandra Goings, Outreach & Development Coordinator Christina Bartolomeo, Communications Coordinator Sherry Armfield, Development Assistant Andre Smith, Development Assistant Amad Zambrana, Foundation Clerk West Coast Office Staff Arthur H. Bryant, Executive Director Victoria Ni, Staff Attorney Leslie Bailey, Brayton-Baron Fellow Shoshana Finacom, Executive Legal Administrative Assistant Public Justice is edited by Jonathan Hutson and designed by Lee Ann Rhodes Lawlor. S P R I N G / S U M M E R P U B L I C J U S T I C E 1 9

20 Super Thursday Phonathon Sets Record in Chicago On April 14, 2005, TLPJ Foundation leaders and supporters from across the nation met in Chicago for the largest new member recruitment event of the year Super Thursday. And this year s phoners raised the largest sum ever in a TLPJ Phonathon more than $290,000! In an East versus West competition, the LitiGators, headed by Harry Deitzler (WV) took on the Legal Eagles, headed by TLPJ Foundation President-Elect Tom Dempsey (CA). The teams engaged in spirited competition as they collectively raised vital funds for TLPJ s public interest work, increased the diversity of The TLPJ Foundation s membership base, and added new members in geographically-targeted areas. spirit in preparation for the next day s Super Thursday Phonathon event. As part of the effort to increase participation and recruit new phoners and new members this year, Esther Berezofsky (NJ), Patricia Bobb (IL), Phil Corby (IL), Steve Herman (LA), Robert Parks (FL), and Rick Rosen (IL) together contributed $2,000 to the Super Thursday Scholarship Fund. Thanks to their support, the Scholarship Fund was able to provide financial assistance for travel and overnight accommodations for several participants. The LitiGators recruited a few more members than the Legal Eagles, but the latter raised more money, making it a winning day for everyone especially The TLPJ Foundation. All phoners Honorees included Jim Vititoe (CA), who was able to secure the most new members with credit cards and Goldberg, who was able to secure the most money in the bank through credit cards. Mona Lisa Wallace (NC) once again took home the highly coveted Silver Phone Award for recruiting the most new members, paid and pledged during the Phonathon 70 brand new supporters for TLPJ. Wallace also was recognized for individually raising the most money overall $51,500 in pledges and credit cards. For the second year in a row, Mona Lisa Wallace won the Silver Phone Award. Photos by Jonathan Hutson Jeff Goldberg, Tom Dempsey, Harry Deitzler, and Arthur Bryant President Jeffrey Goldberg (IL) worked closely with team captains to recruit volunteers and build enthusiasm for an impressive turnout of 47 phoners, including several first-time participants. President Goldberg kicked off the event the night before by hosting dinner at the elegant Chestnut Street Bar & Grill in Chicago. New participants and veteran phoners had a chance to meet and mingle and Captains Deitzler and Dempsey had a chance to rouse team made a significant contribution by raising funds to support TLPJ s precedentsetting work. Following a full day of raising support for TLPJ s work, phonathon participants were treated to a celebration dinner in their honor at Green Dolphin Street, one of Chicago s hottest jazz clubs. Several phoners were presented with awards for their outstanding achievements. Mona Lisa Wallace and Arthur Bryant Continued to opposite page. 2 0 P U B L I C J U S T I C E S P R I N G / S U M M E R

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