Bankruptcy law firm in Georgia hit with class action filed by former client

A former bankruptcy client sued his bankruptcy law firm (Clark & Washington, P.C.) and its managing partner (Emory Lee Clark).  The firm, allegedly one of the larges filers of consumer bankruptcy cases in the the United States Bankruptcy Court for the Northern District of Georgia, advertises legal representation in cases filed under 11 U.S.C. 701, et seq. ("Chapter 7") for a down payment of $299, with an installment plan covering the remainder.  The installment plain includes the practice of having clients tender personal checks post-dated to be cashed during various intervals following the planned filing of their bankruptcy cases - and sometimes after the bankruptcy cases have been discharged.  In addition, the defendants sometimes cash these post-dated checks while the clients' cases are pending, without seeking relief from the automatic stay.  According to the suit, the defendants fail to disclose to their clients that the installment plan obligations are dischargeable in the bankruptcy.    

The plaintiff defines the class as "all persons who hired Defendant [sic] for the purpose of legal representation during actions under Chapter 7 and paid the requisite fee in post-dated personal checks."  The suit seeks monetary damages under federal and state RICO statutes, federal bankruptcy statutes, and theories of fraud, mail fraud, bankruptcy fraud, fraud by concealment, and unjust enrichment.  Terry Haygood and Thomas D. Womack represent the plaintiff.  For more information see Richard Edwin Lundquist, III v. Clark & Wahsington, P.C., et al., 1:11-mi-99999-UNA (U.S. Dist. Ct. N.D. GA).

Retired AZ judges file class action against their retirement plan alleging legislative changes are unconstitutional

Two retired Arizona judges filed a proposed class action lawsuit yesterday in the Superior Court of Maricopa County against their retirement plan (The Elected Official Retirement Plan of the State of Arizona, or "EORP").  The suit alleges that recent legislative changes, effective in July of 2011, violate the Arizona Constitution in that they take away or diminsh the class members' right to annual cost of living adjustment ("COLA") benefits.  

When the named plaintiffs retired, the EORP was funded with contributions from employees and employers, court filng fees, and some other sources.  The Arizona Legislature assumed that the fund would retrun an average annual "hurdle" rate of 9%, and anything over that 9% was considered excess earnings.  50% of the excess earnings would then be paid out in the form of permanent COLA increases not to exceed 4% of the employees' total benefits.  Any excess funds that would result in a permanent COLA increase above 4% would be available for future year COLA benefits.  

The new law, A.R.S. §38-818-01, changed the "hurdle" rate from 9% to 10.5%, and introduced an actuarial adjustment.  In addition, one of the provisions provides that the excess earnings above the 4% benefit would revert back to the employer instead of remaining in the fund for future benefit increases.  

The plaintiffs allege that the new law violates sections of the Arizona Constitution preventing the impairment of contractual obligations and impairment of retirment plan benefits.  Plaintiffs define the class as "retired members and their surviovors who are fully vested in the plan under Arizona constitutional law and the EORP statutes."  The plaintiffs are represented by Colin F. Campbell of Osborn Maledon, P.A. in Phoenix.  For more information see The Honorable Kenneth Fields, et al. v. The Elected Official Retirement Plan of the State of Arizona, CV2011-017443 (Maricopa Sup. Ct.).  A copy of the the Complaint is here.     

Trial begins in Missouri class action, against Philip Morris, relating to false advertising of Marlboro Lights

A class action lawsuit, alleging that Philip Morris violated the Missouri Merchandising Practices Act (MMPA) in its marketing of Marlboro Lights, began this morning in the Circuit Court of the City of St. Louis.  According to a Missouri Lawyers Weekly article, Plaintiff's attorney Stephen Swedlow of Korein Tiller told the jury that Philip Morris perpetrated a 40-year fraud by claiming that Marlboro Lights contained a lower amount of tar and nicotine.  "You don’t get to sell low-fat yogurt that’s not low-fat. You don’t get to sell low-fat ice cream that’s not low-fat. You don’t get to sell diet products that are not diet,” he said.  The MMPA prohibits the act, use or employment by any person of any deception, fraud, false pretense, false promise, misrepresentation, unfair practice or the concealment, suppression, or omission of any material fact in connection with the sale or advertisement of any merchandise.  Swedlow suggested that Philip Morris' false representations improperly inflated the value of the cigarettes by $.98 per pack.  The litigation began in 2000, and was removed to federal court, appealed, and refiled several times.  Philip Morris is represented by former U.S. Supreme Court Clerk, Alan C. Kohn, of Kohn, Shands, Elbert, Gianoulakis & Giljum, LLP.  For more information, see Larsen v. Philip Morris, 22002-00406-02.    

Class action filed against Arizona Public Service Company relating to September power outage

A San Diego restaurant owner and an individual flied a class action lawsuit last week against the Arizona Public Service Company (APSC), San Diego Gas & Electric Company (SDGEC), and others, relating to the September 2011 power outage.  Plaintiffs Antonino Busalacchi and Anis Ben Adj Yahia allege that the defendants negligently caused the blackout, harming 1.4 million SDGE customers in San Diego County for roughly twelve hours.  Both plaintiffs seek to represent subclasses - Busalacchi on behalf of a subclass of restaurant owners and Yahia on behalf of a subclass of individuals.  Damages include the value of perishable food items that both individuals were forced to discard.  The blackout allegedly forced Busalacchi to discard nearly $15,000 in products, while forcing Yahia discard numerous items in his refrigerator.  Specifically, Yahia discarded tuna, shrimp, chicken, eggs, lunch meats, bacon, sausage, dried beef, pizza, casseroles, blue cheese, brie, mozzarella, provolone, Romano, shredded cheese, and fresh fruits.  Michael Rott, David Hiden and Eric Overhold of Hiden, Rott & Oertle, LLP, represent the plaintiffs and proposed class.  For more information, see Busalacchi, et al. v. Arizona Public Service Company, et al., 11CV2083 BTM RBB, S.D.Ca. 

Motorist sues Florida Highway Patrol, alleging "Improper Flashing of High Beams" is a non-existent crime

According to a report today on Tampa Bay's WTSP 10 News, Florida motorist Eric Campbell filed a class action lawsuit in Florida state court against the Florida Highway Patrol.  Campbell alleges that the FHP cited him, and the State of Florida subsequently fined him, for flashing his lights to warn other motorists that they were approaching a speed trap.  The citation reads that his citation relates to "Improper Flashing of High-Beams."  The problem, according to Campbell, is that there is no Florida law that prevents a motorist from flashing his or her lights for this purpose.  Campbell's citation indicates that he violated Florida Statute 316.2397.  According to the suit, that statute "does not prohibit the flashing of headlights as a means of communications, nor does it in any way reference flashing headlights or the use of high beams."  The suit also references a 2005 court order saying that state law doesn't prohibit the flashing of vehicle headlights.  Since 2005, the FHP has allegedly issued 10,429 citations to drivers for flashing their headlights.  For more information Eric A. Campbell v. Julie L. Jones, et al., 11CA2327 (2nd J. Cir., Fla).