Los Angeles Personal Injury Lawyer - Class Action

Court of Federal Claims: Putative Class Members Must Opt Into Class Action Within 6 Year Statute of Limitations

Shehnaz Bhujwala — Sun, 21 Jun 2009 13:07:02 GMT

Big Class Actions Against the Feds May Falter Plaintiffs lawyers say recent decision goes against more than a century of practice

Mike Scarcella
The National Law Journal
June 22, 2009

A case quietly winding through the federal courts in Washington could dramatically change the rules for plaintiffs across the country who file big-money class actions against the federal government.

Pending and future class actions may be chopped down to size if the U.S. Court of Appeals for the Federal Circuit agrees with the Justice Department's strict interpretation of a six-year statute of limitations. Plaintiffs lawyers who handle such cases have issued dire warnings.

Earlier this year, in a takings dispute before the U.S. Court of Federal Claims, the Justice Department successfully argued that any class member who didn't sign on to the litigation before the six-year window closed is barred from signing on at all. Justice's win shuts the door to potentially hundreds of landowners in Kansas and Missouri who could be owed money for the government's planned conversion of property along an abandoned railroad line into a public hiking trail. Only the original plaintiff, Earleen Fauvergue, can go forward in the case.

But the impact of what even Judge Christine Miller called a "draconian" interpretation of the law doesn't end there. Plaintiffs lawyers say it goes against more than a century of practice and could severely limit the use of class actions against the federal government altogether.

Miller certainly recognized the wider consequences of her decision. If the government has its way, she said in a December hearing before she ruled, then it "really is a severe rethinking of class actions in this court, if not their abrogation."

The Court of Federal Claims, where the government is always the defendant and the dispute is always over money, handles many cases brought by private property owners looking for compensation for takings and by federal employees seeking overtime and back pay. When the liability is greater than $10,000 per person, class actions against the government must be filed in the claims court and not federal district court.

Plaintiffs lawyers argue that filing a class complaint within the six-year window should stop the clock from running against all those as-yet-unidentified class members. Cases involving hundreds of defendants often take considerable time to develop and finding all class members is not swiftly done, say the lawyers. Plaintiffs who don't beat the clock will have to proceed in much smaller groups, individually or -- as the lawyers warn -- not at all.

In Fauvergue v. U.S., the plaintiffs have appealed to the Federal Circuit; their opening brief was filed this month. "Let's be honest, the Justice Department in this case is attempting to take land owned by American citizens and avoid its constitutional obligation to compensate these citizens for the land it has taken," said Mark "Thor" Hearne II, lead counsel in the case. "I find this unconscionable."

Hearne, a partner in the St. Louis office of Lathrop & Gage, argues that Justice is misreading the U.S. Supreme Court's decision last year in John R. Sand & Gravel Co. v. U.S. The high court ruled that the six-year statute of limitations is a jurisdictional limit that the Justice Department cannot waive. Hearne argues that John R. Sand & Gravel has nothing to do with the Fauvergue case because, among other things, it was not a class action.

A Justice spokesman, Andrew Ames, said in an e-mail that "Judge Miller's decision fairly and properly applies the law."

LANDOWNERS LOST

In June 2008, the lawyers for Fauvergue, an elderly widow who lives in Missouri, filed a 50-page complaint in the claims court -- nine days before the statute of limitations expired. Fauvergue represents a class of similarly situated plaintiffs who own land along the former Memphis Carthage & Northwestern Railroad Co. line linking Jasper County, Mo., and Cherokee County, Kan. A notice of interim trail use was filed against the land on June 21, 2002, triggering the statute of limitations.

The case is part of the nationwide litigation involving the Rails to Trails Act of 1983, which let local governments and private groups obtain easements to turn old rail lines into public trails. The plaintiffs in these cases argue that the government must pay for taking land for public trails.

Justice lawyers orally moved to dismiss Hearne's effort to bring additional landowners into the case after June 21, 2008, when the statute of limitations expired. They said John R. Sand & Gravel "crystallized" the absolute nature of the six-year limit. (The statute says simply that a claim in the Court of Federal Claims "shall be barred unless the petition is filed within six years after such claim first accrues.") Environmental division trial attorney Kristine Tardiff argued that, without an exception from Congress, judges cannot expand or restrict the six-year period. She said that the Justice position is not novel and that Hearne, the plaintiffs lawyer, is making "broad-brush statements."

Miller mused in court that John R. Sand & Gravel had handed Justice a gift and now Justice was "experimenting with it and seeing what its reach is."

Six years might seem like a long time, but Hearne said it's not. He said there's often a delay between when the government initiates a taking and when the landowner learns about it -- especially in these Rails to Trails cases. "Nobody knocked on [Fauvergue's] door and said the government is planning to build a trail on her property in the future," Hearne said. That's why litigation generally starts "late into that six-year period."

Hearne, who served as national election counsel to President George W. Bush's 2004 re-election campaign, said there are more than 160 parcels in Kansas and Missouri in the Fauvergue case that belong to landowners who, without class action procedure, could not cost-effectively make a claim. In some Rails to Trails cases, he said, the amount of money owed is often smaller than the cost of making a claim. For instance, the government in a 1996 case paid $19,000 for the value of land and nearly $300,000 in attorney fees and costs. By contrast, in a 2005 class action that involved 116 parcels of land, the government paid nearly $7.4 million for the land and just $770,000 in attorney fees.

A LEGITIMATE IRONY

Roger Marzulla, a property rights specialist who has filed an amicus brief in the Federal Circuit appeal, agrees that the department's take on John R. Sand & Gravel is devastating for class actions in the claims court. The department, he said, is expecting that individuals with small-dollar claims will abandon their claims because of the money and time required for an individual lawsuit.

"The real irony about this aggressive use of statute of limitations is that it undermines the whole notion that the Department of Justice is there not to beat down plaintiffs," said Marzulla, whose law firm, Washington, D.C.'s Marzulla Law, has an active practice in the Court of Federal Claims. "If they can beat it on a technicality, they don't care whether the claim has merit or not. That loses sight of the whole purpose of the Justice Department."

Plaintiffs lawyer Ira Lechner, a solo practitioner who splits time between Washington and San Diego, calls the Justice Department "shortsighted" in its approach to Fauvergue and other class actions. Lechner is representing a class of former federal employees suing for back pay. Justice lawyers, citing John R. Sand & Gravel, argued that the statute of limitations should bar all claims in his case. Senior Judge Loren Smith of the Court of Federal Claims denied the government's motion to dismiss about a month before Miller adopted the department's position in the Fauvergue case.

"The Justice Department has completely rejected class procedure," Lechner said.

Hearne said he is "certain" that members of Congress do not support the Justice strategy. He points to an April 2008 statement by Sen. Richard Burr, R-N.C., chastising the department for employing a statute-of-limitations argument in another Rails to Trails takings case involving one of Burr's constituents. Burr urged the department to settle.

Whether or not the Justice Department should be aggressively pushing the six-year statute of limitations, however, Miller noted in court this year that the government "can use any legitimate legal tool in its arsenal."

Originally posted at InjuryBoard by Shehnaz Bhujwala

Federal Court Reinstates Antitrust Class Action Suit Against Banks

Shehnaz Bhujwala — Mon, 28 Apr 2008 16:40:50 GMT

A federal appeals court on Friday reinstated a class action lawsuit by credit card holders that alleges some of the nation's biggest banks illegally calluded to force customers to use arbitration instead of the courts to settle disputes. The Associated Press reports: "The 2nd U.S. Circuit Court of Appeals in Manhattan said lawyers for the credit card holders might prove the banks agreed to make it harder for individuals to make legal claims by requiring them to go to arbitration." The Court's order can be found here.

The antitrust class action lawsuit, Ross v. Bank of America N.A. (06-4755-CV), was filed by lawyers back in 2005 against a number of major banking institutions on behalf of tens of millions of cardholders. The complaint alleges that the defendant banks began communicating with each other in late 1998 or early 1999 to make it mandatory for cardholders to resolve complaints through arbitration. The named defendants include Bank of America, Capital One Bank, J.P. Morgan Chase & Co., Citigroup Inc., Citibank, Universal Bank and MBNA America Bank.

The gravamen of the plaintiffs' complaint is that the banks conspired to institute mandatory arbitration agreements and kill off all non-arbitration agreement cards on the market "by refusing to issue cards to individuals who did not agree to arbitration" Plaintiffs allege the banks used "immense market power'' to force unwilling or unaware cardholders to accept arbitration clauses and bans on class-action lawsuits, a gross violation of antitrust laws.

Merrill G. Davidoff, a lawyer for the plaintiffs, explains that the lawsuit does not seek damages. Rather, he hopes it prompts judges to look more skeptically at arbitration clauses at major banks. Davidoff told AP reporters: "There's almost no recourse today against a credit card company. If you have a dispute, you are at their mercy, forced into what often times turns out to be a one-sided, so-called arbitration, a little card holder against a powerful bank ... [t]he typical consumer dispute is too small to justify the legal cost of a one-on-one arbitration with a major bank armed with a battery of lawyers and unlimited resources.''

Originally posted at InjuryBoard by Shehnaz Bhujwala

Repackaging Risk

Paul Kiesel — Fri, 28 Mar 2008 16:17:19 GMT

As of this moment, on the auction site eBay, there are an assortment of Bear Stearns items being listed by several sellers. There are coffee mugs, t-shirts, duffle bags, umbrellas, etc. and all of them bear the Bear Stearns logo. But there is one item separating itself from all the others: a blue Bear Stearns helmet. The last bid on it, as of 1:40 PM PST, was for $152.50 and has 18 hours left till a lucky bidder has won it. The helmet features the Bear Stearns logo on the front, and an ominously ironic slogan, "Repackaging Risk," on the right side.

Earlier this week, several homeowners, who have been crushed by the iron heel of the subprime mortgage crisis and the "repackaging risk" lending practices of companies like Bear Stearns, decided to show up and vent their frustrations in the lobby of Bear Stearns' headquarters. The Machiavellian employees of Bear Stearns finally got to see some of the faces of Main Street, who, collectively, are paying as great a price (if not more so) as the troubled Wall Street firm. Many mortgagees spoke loudly about the problems they face in regards to their loans and many, it appears, had been tricked into an Option ARM loan with a very appealing "teaser" rate. A paramedic from Connecticut, Renee, was agitated, vocal, and realized she's been, "caught in a predatory loan," (Guardian, 3/28/08). However, she probably didn't realize that the teaser rate she had signed up for actually expired less than 30 days after its commencement, and, likely, before she had even submitted her first payment.

It's unfortunate that homeowners have been put in this mess, but it's even more unfortunate that when these victims of "repackaging risk" come to the place of business that clearly paved the way for all of this to occur (regardless of current conditions surrounding the housing market), they aren't even listened to by its employees and are just casually dismissed. The federal government has taken notice. And instead of finding immediate solutions to help freeze or lessen the severity of mortgages that are underwater, the Bush Administration has put together a stimulus package that couldn't even cover a whole month's mortgage payment per household (an adjective that comes to mind: myopic), and, rather, has chosen to inject $29B into the transaction of JP Morgan rescuing Bear Stearns assets from being worth more than the price of a "Happy Meal" per share.

Refreshing the page that lists the Bear Stearns helmet, the current bid is at $177.50 (again, in another turn of irony, that was near the highest price a Bear Stearns share was trading at a little over a year ago). It's become apparent why Bear Stearns chose to purchase hard hat helmets for the ground breaking of its Asset Management Building: in case those "repackaging risk" mortgages (i.e. mortgage-backed securities) came tumbling back at them in a manner closely resembling what has transpired over the last year and possible shoddy construction.

Any mortgagee that is currently in an Option ARM loan and who chose a "teaser" rate payment option should get in touch with an attorney to find out what they can do to resolve possible misrepresentations on their Truth in Lending Disclosure form. The attorneys at Kiesel Boucher Larson LLP can provide such assistance.

Originally posted at InjuryBoard by Paul Kiesel

Don't Look to McCain for Help with the Mortgage Crisis

Paul Kiesel — Tue, 25 Mar 2008 18:24:20 GMT

John McCain believes that the number one issue for Americans is national security. According to the Associated Press, and shortly after Governor Charlie Crist of Florida endorsed him as a Presidential candidate, Mr. McCain said, "Even if the economy is the, quote, No. 1 issue, the real issue will remain America's security [. . .]" This statement shows he has not wavered from his campaign's main ideological sentiment that was conveyed before presumptively winning his party's nomination and, which, is still ardent today, "I am running because of the transcendental challenge of the 21st century, which is radical Islamic extremism," (New York Times, 1/28/08). Unfortunately, financial security and national security aren't even on the same plane of national issues; they're not even at the same airport.

It seems highly unreasonable to assume that a majority of the nation facing a sub-prime mortgage crisis and a housing market that continues to depreciate, has the spread or threat of Islamic-fascism as their number one concern. And it's almost certain that anybody who assumed the responsibility of an option ARM loan in the last five years is more focused on their wallet and finding a way of keeping their home out of foreclosure, than anything the presumptive candidate of the Republican Party has to say in regards to the Middle East.

Mr. McCain is also very dubious that the government will need to or should even have to step into the mortgage crisis conundrum and help find solutions for borrowers that were taken advantage of by lenders and their insidiously worded Truth in Lending Agreement (TILA) forms. Why punish the good people at Bear Stearns, Countrywide, World Savings, etc., who deliberately misrepresented the facts in regards to the loans that consumers chose, while given the impression it was in their (borrowers) best interest, to borrow. Mr. McCain believes that, "[Americans] bought homes they couldn't afford [. . .]" (New York Times, 3/25/08). But that is not true. Consumers got into loans that were shown to be affordable, when in fact lenders were not disclosing all the facts in an unequivocal manner. These loans were written in a way that hid pertinent details that would have allowed the borrower to make a fair and informed decision as to whether or not this was still a preferable loan. Instead, lenders were vague and ambiguous on what would trigger an increase in monthly payments and how the monthly payments weren't even covering the entire interest that was accruing monthly.

Maybe we just have to assume that Mr. McCain was confused and really means that the lenders bought into a system they couldn't afford, but that's doubtful, considering he doesn't even understand how the mortgage crisis precipitated and how it's likely to get worse, "Only 55 million [homeowners] have a mortgage at all and 51 million are doing what is necessary [. . .] to make their payments on time. That leaves us with a puzzling situation: how could 4 million mortgages cause this much trouble for us all?" (New York Times, 3/25/08). The lenders should be paying the price for their avarice ways, and the borrowers should be able to look to their elected officials to help them find the proper methods to help assuage the burden brought on by a myopic financial platform that these lenders began executing five years ago. After reading some of Mr. McCain's other comments made today, it is probably in the best interest of a borrower to seek legal advice from a lawyer in order to see through the lingering haze of lender misrepresentations that are an apparent contributor of this subprime quagmire. The attorneys at Kiesel Boucher Larson, LLP know how deceptive the TILA forms were written and will be able to represent the disenfranchised borrower of an option ARM loan.

Originally posted at InjuryBoard by Paul Kiesel

Affluent Were as Susceptible to the Lure of Adjustable Rate Mortgages

Paul Kiesel — Tue, 25 Mar 2008 18:00:23 GMT

At the peak of the housing boom to purchase homes, many affluent consumers with annual incomes of $100,000 or more were lured into taking out adjustable-rate mortgage (ARM) loans, under the impression that they would be able to lower their monthly mortgage payment (from existing fixed-rate mortgages) or that it would allow them more financial flexibility. In order to secure these lower monthly payments, borrowers (affluent, middle-income, etc.) would be encouraged by the lenders to take advantage of their "Teaser" rate, available through an option ARM loan, wherein the borrower would be paying a fixed monthly payment, under the false pretenses from the lender that the payment was covering the entire amount of interest due every month.

What wasn't disclosed, in transparent terms to any of these borrowers, however, is that they would only be making a payment on the teaser interest rate of 1 or 1.25 percent (an interest rate that was only available to the borrower for 30 days at best), and not the actual annual percentage rate on the option ARM or jumbo option ARM loan. Therefore, the accruing interest was added to the principal balance, further indicating that these borrowers had been cajoled into a negative amortization loan, which the lender never disclosed in any key and/or clear manner; a red flag that could have kept many borrowers at bay from signing into such a loan. And because home prices continue to fall (down a record 11% from January 2007 in 20 key metropolitan markets) and these option and jumbo option ARM loan payments have reset or will be resetting soon, once the principal balance has exceeded 110 or 115 percent of the original amount borrowed, these borrowers are stuck with a declining asset, an increased monthly mortgage payment and little to no help from their lender.

Most lower-, middle- and upper-income borrowers are not going to be helped much by the falling interest rate, either, as their low initial payments skyrocket and the value of their homes continue to decline. Who is going to want to, or even be able to, continue paying a mortgage that is around $600,000 (original amount of mortgage along with compounded interest), when the home is now valued at $450,000? Now consider that a sizeable portion of ARM loans were jumbo ARMs - mortgages exceeding $417,000 - from 2005 to 2007, and they were taken out on homes that had been appreciating steadily since 2003. And now that those homes are either stagnant in price or dropping in value, how else will these borrowers be able to rid themselves of such ballooned payments and mortgages that have steep prepayment penalties: foreclosing.

In the fourth quarter of 2007, 8.10 percent of jumbo ARMs were two or more payments late, while 2.62 percent were in the foreclosure process. It is now predicted that at least 8 percent of these jumbo ARMS will be foreclosed. Since these jumbo ARMs were taken out with the borrower assuming that he or she could refinance in five years or sell the property after three (as long as the value of their home continued to appreciate), it was hard to resist the idea of lower monthly mortgage payments initially and, on top of that, have extra cash made available via the home's equity. But now it's very difficult for these same borrowers to refinance or even sell their homes, while this wave of depreciation crashes over several housing markets. People are afraid to buy as they think the housing market might get even worse before it gets better and this puts borrowers of ARMs and jumbo ARMs in a precarious situation: is it more reasonable to continue making a monthly mortgage payment (when it might substantially exceed the borrowers net income of more than 50 percent) on a home that is declining in value or letting the bank foreclose?

Some borrowers might find it wise to do whatever they can to reach a new agreement with their lender, however, some have found that very difficult to do as the lenders are not willing to work with borrowers whose home's value continue on a declivitous path.

If the lender is not willing to work with the borrower, the next step is to determine if the borrower lives in a state with nonrecourse laws, because if not, lenders can come after borrowers' other assets after foreclosure. In states with non-recourse laws lenders cannot pursue borrowers for money owed. Either path is complex and changes often, and the attorneys at Kiesel Boucher Larson, LLP will be able to see what the best option is for that particular borrower.

Originally posted at InjuryBoard by Paul Kiesel

Granting Telecom Companies Immunity From Pending Class-Actions Violates Our Civil Rights

Shehnaz Bhujwala — Tue, 04 Mar 2008 10:07:13 GMT

Last week, President Bush strongly urged US lawmakers to pass "anti-terrorism legislation" that would restore legal immunity to telecommunications companies, such as AT&T, BellSouth and Verizon, that aided federal efforts to eavesdrop on emailed communications and telephone conversations between the United States and other countries. Today, there is potential for passage of this legislation: House and Senate Democratic leaders are headed into talks that some say could lead to a breakthrough and grant of some form of immunity to these companies. My hope is that House Democratic leaders continue to reject the provision, as our rights to privacy and against unwarranted instrusion by government hang in the balance.

The immunity provision, included in the Senate version of the PAA, would shield from civil liability telecommunications companies that aided the Bush administration in spying on Americans without legally required warrants before the program was exposed by the New York Times in 2005. Retroactive immunity for these companies would also means that the companies named in the 40 pending class-action lawsuits would be able to escape "discovery" -- discovery that could very well reveal just whom the government was wiretapping in this pre -9/11 program -- and allow violators to avoid detection and continue spying.

Privacy advocates have also raised concerns that the Senate bill contains a provision that would allow the attorney general to erect a new barrier to future privacy cases brought under the nation's foreign intelligence surveillance law. The Senate version of the bill halts such lawsuits if the Attorney General certifies that the assistance provided by the telecom company is lawful. The only check on that certification would be a court review as to whether the Attorney General abused his discretion in certification, the lowest possible standard of judicial review. Kevin Bankston, Senior Staff Attorney at the Electronic Frontier Foundation, told the Washington Post that "this provision is yet another example of the executive branch 'just trust us' mentality when it comes to intelligence matters".

As House Democrats continue to debate whether to accept the Senate version of the bill (granting immunity to telecom companies), our rights to privacy and right against unwarranted instrusion hang in the balance. It should come as no surprise that, since the PAA's expiration, US justice and intelligence officials have begun to implement tried-and-true fear tactics to further the bill along -- officials threaten that the 'failure' of the Democratic-led House of Representatives to renew the wiretap law has already led to the loss of vital intelligence information -- and, at a White House Press Conference, President Bush made his plea on behalf of the "Protect America Act" (PAA), a recently-expired provision of the "Foreign Intelligence Surveillance Act" (FISA), urging lawmakers to act on "a very urgent priority ...to pass legislation our intelligence officials need to quickly and effectively monitor terrorist communications." He added: "At issue is a dispute over whether telecommunications companies should be subjected to class-action lawsuits because they are believed to have helped defend America after the attacks of 9/11."

These warnings are patently false; despite the expiration of the PAA, the government can continue its surveillance of suspected terrorists under the current law through this summer. As always, the time is now to protect our civil liberties and avoid this obstruction of justice: contact your House representative today and urge them to reject the immunity provision of the PAA.

Originally posted at InjuryBoard by Shehnaz Bhujwala

Wiretapping Act Lapses As House Democrats Continue Debate Against Retroactive Immunity for Compliant Telecommunications Companies

Shehnaz Bhujwala — Wed, 27 Feb 2008 10:42:40 GMT

The recent lapse in a temporary US wiretapping law has brought much uncertainty to private telecommunications companies and, according to the White House, threatens to disrupt future surveillance operations. Fueling this uncertainty is the raging debate in Congress over whether phone providers that helped in the National Security Agency's post 9/11 program of wiretapping without warrants should be given retroactive immunity to shield them from some 40 pending class-action lawsuits over their compliance with the program.

House Democratic leaders have enabled the "Protect America Act of 2007" (PAA), passed into law last year as part of the Federal Intelligence Surveillance Act (FISA), to lapse, by refusing to approve a White House-backed bill already passed by the Senate that extends the PAA and includes retroactive immunity to private telecom companies, such as Verizon, BellSouth and AT&T, that aided the Bush administration's terrorist surveillance program by providing private data without warrants after the terrorist attacks of Sept. 11, 2001.

The NY Timesreports that, in the wake of the surveillance law's expiration, most phone providers had continued to carry out valid wiretapping orders, but that at least one company had expressed reluctance over particular operations.

FISA requires a warrant be obtained by applying to a secret intelligence court before a wiretap can be placed on a line used by a foreign agent. PAA expanded that power to allow the National Security Agency to monitor calls originating in foreign countries that pass through U.S. communication nodes without having to obtain a warrant. It also allowed, in certain circumstances, the NSA to listen in on calls involving U.S. citizens and foreign targets without a warrant. The act also contained the now-debated provision granting civil immunity to telecom companies going forward. Congress placed a six-month expiration date on the act so that its civil liberties ramifications could be debated more thoroughly.

According to the ACLU, the Protect America Act of 2007 allows for "massive, untargeted collection of international communications without court order or meaningful oversight by either Congress or the courts and contains virtually no protections for the U.S. end of the phone call or email, leaving decisions about the collection, mining and use of Americans' private communications up to this administration."

Originally posted at InjuryBoard by Shehnaz Bhujwala

HOME BUILDER AND COUNTRYWIDE ACCUSED OF CONSPIRACY TO DEFRAUD CONSUMERS

Michael Eyerly — Fri, 08 Feb 2008 17:49:35 GMT

As if the news about the housing industry wasn't bad enough already. What with stagnant home sales, plummeting home prices and the so called "sub-prime mortgage meltdown" there are plenty of things about which to worry. Now comes news of an alleged scheme carried out by KB Home and Countrywide Financial to defraud consumers.

Here is what a newly filed class action lawsuit alleges - KB Homes and Countrywide conspired to produce phony appraisals to sell homes at higher prices. Exaggerated (or fraudulent) home appraisals played a role in the housing price run up earlier this decade and contributed the collapse we are seeing now. The new class suit alleges that Los Angeles based home builder KB Homes and a unit of mortgage lender Countrywide Financial Corp. produced falsely pumped up appraisal reports so new homes could be sold at prices higher than the homes were truly worth. This, of course, means that consumers would therefore have to take on bigger home loans to buy these overpriced homes. Plaintiffs allege that KB Home and Countrywide "conspired with affiliate appraisers to generate fraudulent" appraisal reports. The suit contends that appraisers did this by comparing home sales prices for home in other KB Home developments rather than looking at actual comparable homes in actual comparable neighboring areas.

At base, the lawsuit contends that KB Homes knew housing prices were going down, but the company didn't want to truth to cut into its profits so the company rigged the appraisal process. The lesson for consumers is unfortunately a common refrain - you just can't trust anyone. So, do your own due diligence. Hire independent professionals to help ensure you get what you pay for and who can help make sure you don't pay more than you should.

Originally posted at InjuryBoard by Michael Eyerly

UC Regents Ordered to Pay Refunds to Professional Students for Improper Tuition Hikes

Shehnaz Bhujwala — Tue, 29 Jan 2008 13:26:59 GMT

California's Supreme Court has denied the University of California's appeal in Kashmiri v. Regents of University of California, awarding thousands of professional students $40 million enrolled in UC programs whose tuition fees were increased during the 2002-2003 school year, despite the Regents' promise to hold fees steady.

The class action lawsuit was filed in San Francisco July of 2003, when eight UC students found that their respective universities had increased fees more than twice the amount promised to them upon their acceptance. In 2003, fees for law and business students were increased from $6,000 to almost $9,500 a year, and were raised again to more than $14,000 the following year. Similar increases occurred at other professional schools.

In March 2006, a San Francisco County court ruled in favor of students. The First District Court of Appeals ruled on Nov. 2 to uphold that ruling, writing in the decision that implied contracts had been formed in UC literature, both in published catalogs and online. In an interview with UC Davis' California Aggie newspaper, attorney for plaintiffs Danielle Leonard stated: "There was the promise that they would not raise the professional degree for the duration of the students' enrollment. The university could raise the professional degree fee for incoming classes of students, but once the student is in, they said they would keep it the same."

The court's order only applies to current professional students who enrolled in the UC program before Dec. 16, 2002, and whose fee was increased after that date. The refunds total about $34 million, plus $6 million in interest. Lawyers in the case estimated that the refunds would amount to $10,000 or more for some students. The payments will go to 9,163 students from law and medical schools and other professional graduate programs who enrolled before 2003. The rest of the money, about $100 per student, will be distributed among more than 30,000 students who were enrolled in the spring or summer of 2003.

While the plaintiff's victory presents an advantage to those students affected by that particular fee increase, UC is now faced with the problem of supplying the $40 million. According to UC spokesperson Ricardo VÃ zquez, the regents have not yet decided on where this money will come from. A concrete effect of the lawsuits, however, is that the UC has stopped making written promises not to increase fees. "Those policies were rescinded and all those references that happened to be in certain publications were removed," Vazquez said in an interview with UCLA's Daily Bruin.

Another suit, Luquetta v. Regents of the University of California, is currently pending in Superior Court, filed by about 2,700 students at UC professional schools who say the university raised their fees in fall 2004 despite a similar promise not to. Refunds of $15 million to $20 million are being sought in that action.

Originally posted at InjuryBoard by Shehnaz Bhujwala

Federal Judge Permits Class-Action Lawsuit To Proceed Against VA

Shehnaz Bhujwala — Mon, 14 Jan 2008 15:35:34 GMT

Veterans of the current wars in Iraq and Afghanistan shall have their day in court, after all. US District Court Judge Samuel Conti has cleared a national class-action lawsuit challenging the constitutionality of the US Department of Veteran's Affair's claims system. The ruling affirms the rights of veterans with Post Traumatic Stress Disorder (PTSD) to sue in federal court over the huge backlog of claims, the lengthy waiting time that veterans face in receiving needed mental health care, and the inadequacy of care for veterans returning from Iraq and Afghanistan. The complaint, filed in the United States District Court in July, seeks a judicial finding that VA's system of handling claims and appeals is so dysfunctional that it violates veterans' constitutional and statutory rights. The suit also calls for court orders requiring VA to provide immediate medical and psychological help to returning troops and to screen them for risk of suicide.

The class action lawsuit was filed in San Francisco on July 23, 2007 by Berkeley-based Disability Rights Advocates on behalf of Veterans for Common Sense and Veterans United for Truth. Plaintiffs claim that the VA violated federal laws and veterans' civil rights, citing a lack of neutral judges and prohibitions on vets' hiring lawyers at the initial phase of a case or demanding that the VA produce documents and witnesses that might shore up their claims. The VA is charged with "shameful failures ... to meet our nation's legal and moral obligations to honor and care for our wounded veterans" who fought in Iraq and Afghanistan. Without systematic reform, the suit contends, "the costs to these veterans, their families and our nation will be incalculable," and will contribute to a new generation of unemployed and homeless veterans and a burden on local social services.

Disability Rights Advocates argue that VA now has a backlog of more than 600,000 claim applications, with some dating back to the Vietnam era. Of the 750,000 veterans of the Iraqi and Afghanistan wars, at least 15% are thought to suffer from PTSD, an emotional illness characterized by sleep-related disorders, such as nightmares, anxiety, impaired memory, anger, loss of control, irritability and hypervigilance. The VA's failure to provide treatment -- only 27 of the nation's 1,400 VA hospitals have programs dedicated to PTSD -- has led to an "epidemic of suicides" by returning troops, said Paul Sullivan of Veterans for Common Sense, the lead plaintiff group.

Plaintiffs do not seek monetary damages, only an order requiring the VA to stop "illegal policies and practices," such as the months-long delays in reviewing claims and providing care to PTSD victims. the suit is the first to accuse the federal department of constitutional violations and to seek sweeping changes in its processing of disability claims

U.S. District Court Judge Samuel L. Conti, a World War II veteran, rejected the government's arguments that civil courts have no authority over the Department of Veterans Affairs' medical decisions or how it handles grievances and claims. If the plaintiffs can prove their allegations, Conti said, they would show that "thousands of veterans, if not more, are suffering grievous injuries as the result of their inability to procure desperately needed and obviously deserved health care."

In a 42 page order denying the government's motion to dismiss three of the lawsuits four claims, Judge Conti ruled that the federal system for weighing individual veterans' claims "does not provide an adequate alternative remedy for Plaintiffs' claims for several reasons" and that the "federal courts are competent to decide whether those injuries were caused by flaws in the health care system and the VA's grievance procedures." Judge Conti did not rule on the adequacy of the treatment system, which will be addressed in future proceedings. Time and CNN both report that the VA has issued a statement saying it is "dedicated to meeting the mental health care needs of all veterans." The statement also noted an increase in its mental health care staff and creation of new programs to treat returning soldiers.

Judge Conti has scheduled a Feb. 22 hearing to consider arguments by plaintiffs to stop the VA from turning away suicidal vets and from withholding funds appropriated by Congress for mental health treatment of veterans.

Originally posted at InjuryBoard by Shehnaz Bhujwala