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Recent Injury Law Blog Posts

Class actions empower consumers

Posted on 20 July 2014

A widespread fallacy is that class action lawsuits only help to line lawyers’  pockets.  This is what corporations wa... Read more


Healthy Aging After a Catastrophic Accident

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My parents are in their early 70′s. They hike up mountains, golf daily, walk for hours, garden, and travel constantly. ... Read more


SKW Karen Koehler Listed as a 2014 Washington Top 10 Super Lawyer

Posted on 25 June 2014

  I wasn’t surprised when I learned that our very own Karen Koehler was listed as one of the Top 10 Super Lawyers ... Read more


Class Action Attorneys

A class action is a form of lawsuit where a large group of people collectively bring a claim to court.

US federal class actions

Class Action

We take on big corporation and make things right for consumers.

In the United States federal courts, class actions are governed by Federal Rules of Civil Procedure Rule 23 and 28 U.S.C.A. § 1332 (d).

Under § 1332 (d) (2) the federal district courts have original jurisdiction over any civil action where the amount in controversy exceeds $5,000,000 and either 1. any member of a class of plaintiffs is a citizen of a State different from any defendant; 2. any member of a class of plaintiffs is a foreign state or a citizen or subject of a foreign state and any defendant is a citizen of a State; or 3. any member of a class of plaintiffs is a citizen of a State and any defendant is a foreign state or a citizen or subject of a foreign state.  Nationwide plaintiff classes are possible, but such suits must have a commonality of issues across state lines. This may be difficult if the civil law in the various states have significant differences.

The Class Action Fairness Act of 2005 increases defendants' ability to remove state cases to federal court by giving federal courts original jurisdiction for all class actions with damages exceeding $5,000,000, exclusive of interest and costs.

The procedure for filing a class action is to file suit with one or several named plaintiffs on behalf of a proposed class. The proposed class must consist of a group of individuals or business entities that have suffered a common injury or injuries. Typically these cases result from an action on the part of a business or policy that applied to all proposed class members in a uniform manner. After the complaint is filed, the plaintiff must file a motion to have the class certified. In some cases class certification may require additional discovery in order to determine if the proposed class meets the standard for class certification.

Due process requires in most cases that notice describing the class action be sent, published, or broadcast to class members. As part of this notice procedure, there may have to be several notices, first a notice giving class members the opportunity to opt out of the class, i.e. if individuals wish to proceed with their own litigation they are entitled to do so, only to the extent that they give timely notice to the class counsel or the court that they are opting out. Second, if there is a settlement proposal, the court will usually direct the class counsel to send a settlement notice to all the members of the certified class, informing them of the details of the proposed settlement.

In civil procedure law, the class action must have certain definite characteristics: (1) the class must be so large as to make individual suits impractical, (2) there must be legal or factual claims in common, (3) the claims or defenses must be typical of the plaintiffs or defendants, and (4) the representative parties must adequately protect the interests of the class. The party seeking certification must also show (5) that common issues between the class and the defendants will predominate the proceedings, as opposed to individual fact-specific conflicts between class members and the defendants, and (6) that the class action, instead of individual litigation, is a superior vehicle for resolution of the disputes at hand.

SKW has had a history of involvement in many class actions over the years.  The largest to date was a nine year battle involving Behr Clear Sealants.  See, Smith v. Behr Process Corporation, 113 Wn. App. 306, 318, 54 P.3d 665 (2002).  The case was first filed in Grays Harbor County for a class of all users in Western Washington.  A later class covered users throughout the United States.  The Western Washington case was successfully tried to verdict and won on appeal.  The nationwide class case was settled for a sum totaling $132.5 million.  The Western Washington case was settled for $67.5 million.

Representative cases

Hesse, et. al. v. Sprint
$20 million class action verdict

In 2006, Sprint customers Christopher Hesse and Nathaniel Olsen alleged in a consumer class action lawsuit filed in King County Superior Court and later removed to federal court that Sprint PCS engaged in misleading and illegal billing practices by charging all Sprint PCS customers in the State of Washington a tax that state law prohibited businesses from charging. Instead of acknowledging its illegal conduct and repaying the collected taxes to its customers, Sprint PCS started an 8-year legal battle that reached as high as the doorsteps of the United States Supreme Court. Sprint PCS spared no expense in defending its conduct and raised every legal loophole Sprint could conjure. Sprint first argued that it did not have to abide by state law and could go right on charging the illegal tax (and it did just that). Sprint also argued that the case against it had already settled in a Kansas state court even though Kansas residents cannot settle a consumer case that alleges Washington law in a Kansas court. After years on appeal, Sprint finally argued that the courthouse doors were closed to its Washington customers and the case should be decided on an individual basis through a secret tribunal chosen by Sprint PCS from which there was no right to appeal.

The settlement will fully reimburse every Sprint PCS customer who paid the illegal tax plus interest from 2002 to the present.

Smith, et. al. v. Behr Process Corporation
$67.5 million class action verdict

Paul learned that several Western Washington homeowners and business people had mildew on their exterior wood walls after using a Behr clear coating, a product the manufacturer claimed would prevent mildew growth. Paul pulled together the class-action case on behalf of nine plaintiffs, and Behr was charged with breach of warranty and Consumer Protection Act violations. The initial case grew to national status, and in an October 2002 settlement, Behr agreed to compensate consumers more than $107 million. In addition, some 5,000 Western Washington homeowners shared an additional $55 million to repair their mildew-damaged homes.

Sitton v. State Farm
Confidential settlement

This consumer class action alleged that State Farm, the nation's largest auto insurer, acted in bad faith by relying upon records reviews to limit or deny people's Personal Injury Protection insurance benefits.

Laura Holden v. Farmers Ins. Comp. of WA, et al.

SKW argued before the WA Supreme Court the bad faith insurance case on behalf of a state-wide class of Farmers' insureds, who were denied payment of sales tax on personal property loss claims. We argued that Farmers wrote an ambiguous policy provision; thus it should be construed in favor of Farmer's insureds. Click here to see the video.