TBS attorneys are often asked to teach continuing legal education courses for their peers and business groups on a variety of subjects including real property transactions, commercial litigation, and class action litigation. On August 27, 2008, Chris Brain and Kim Stephens will speak at a one-day workshop on Commercial Real Estate Workouts and Remedies at the Renaissance Seattle Hotel. Mr. Brain will address restrictive covenant and easement disputes and Mr. Stephens will discuss condemnation disputes in a weak real estate market. For more information or to sign up for the workshop, contact Law Seminars International at www.lawseminars.com or (800) 854-8009.
TBS Attorneys Obtain a Declaratory Judgment for Their Clients in Disputed Trust/Estate Litigation
On July 10, 2008, TBS attorneys Janissa Strabuk and Michael Estok obtained a court order declaring that our clients are entitled to the proceeds of brokerage accounts owned by their deceased mother. The brokerage firm claimed that the account funds were subject to a trust and refused to distribute the funds to our clients, the beneficiaries and personal representatives of their mother's estate. Our clients' step-siblings also claimed an interest in the funds. The Court, however, granted our motion for summary judgment and declared that the funds were not subject to a trust and that they belonged solely to our clients.
TBS attorneys Christopher Brain and Mary Reiten recently prevailed at trial in a timber trespass case on behalf of a property owner whose neighbor wrongfully cleared a path over his property by asserting the existence of an easement. After obtaining a summary dismissal of the neighbor's easement claim, our clients' claim for damages proceeded to trial, where they were awarded a judgment for their damages and all of their attorney fees and costs.
National and Canada-wide Settlement with Carrier Corporation Over Allegedly Defective Furnaces is Approved
The U.S. District Court for the Western District of Washington has granted approval of a proposed nationwide settlement that resolves a three year battle involving five class actions currently pending in Washington, Wisconsin, Michigan, Minnesota and Canada. Canadian courts will review the proposed settlement in the near future. The cases allege Carrier failed to disclose that the polypropylene laminated secondary heat exchangers in its high-efficiency gas furnaces are defective and fail prematurely resulting in unexpected and unnecessary repair costs. Approximately 3 million U.S. consumers purchased the furnaces marketed under the Carrier, Bryant, Day & Night and Payne brand names. Carrier has agreed to compensate furnaces owners whose secondary heat exchangers failed in the past and to repair for free secondary heat exchangers that fail within the first twenty years of furnace life or give an equivalent discount on the purchase of a new furnace. For more information on the settlement, click here.
After a week-long hearing in Spokane, the Honorable James M. Murphy (Ret.) issued a Final Award of $2.35 million in favor of current and former AutoNation employees. The Arbitrator found AutoNation breached its contractual obligations to the employees by failing to give them the paid vacation benefits they had earned between their 2004 and 2005 anniversary dates. The Final Award requires AutoNation to pay damages, prejudgment interest, costs and attorneys' fees.
Tousley Brain Stephens Wins Appeal of Condominium Case.
In a published opinion, the Washington State Court of Appeals reversed the trial court and ruled in favor of our client who was challenging a decision of her condominium board. Our client's condominium board of directors allowed a unit owner to build a second story "bonus" room above his garage. This decision resulted in the creation of additional common area which changed the character of the property, altered our client’s undivided percentage interest in the common areas, and increased her dues. Under the condominium declaration, such a change required the unanimous approval of all owners, which was not obtained. Click here to read the decision.
After years of appellate wrangling, notice of the class action is being mailed to over 75,000 current and former employees. On May 1, 2007 the Washington State Supreme Court let stand a Court of Appeals decision allowing current and former hourly Wal-Mart employees in Washington State pursue their claims as a class action lawsuit. The class members allege Wal-Mart denied them meal and rest breaks, altered time records to deprive them of wages, and disciplined them for working overtime, thereby forcing them to work off-the-clock. No trial date is currently set, but it is expected the case will proceed to trial in 2009. For more information about the case, click here.
In an important decision clarifying the law for both attorneys and their clients, the Washington Supreme Court has ruled in favor of a TBS client for the second time in 2007. The Court held that attorneys who distribute judgment proceeds from their trust accounts to their clients are not liable to provide restitution of those funds if the judgment is reversed on appeal. A copy of the opinion is available here.
The United States Court of Appeals for the Ninth Circuit has upheld a class action complaint filed against Microsoft and Best Buy under the Racketeer Influenced Corrupt Organization Act (RICO). The complaint alleges that Microsoft and Best Buy signed Best Buy customers up for "free" trial subscriptions to Microsoft's MSN internet service without their knowledge or consent, and then charged those consumers for the service after the end of the trial period, whether the consumers used the service or not. For more information about the case, click here.
United States District Court Certifies Class Action Against Carrier Corp Over Defective Furnaces
May 1, 2007
U.S. District Judge Ronald B. Leighton has ordered that a complaint filed by Tousley Brain Stephens on behalf of Washington State owners of Carrier, Bryant, and Payne condensing furnaces may proceed as a class action lawsuit. The suit alleges that the furnaces prematurely fail before their warranted and expected life, resulting in unnecessary repair costs to consumers, due to Carrier Corporation's decision to manufacture them with a cheaper secondary heat exchanger. For more information and to view the press release, click here.
TBS Wins in State Supreme Court; Pass-Through of B&O Tax Declared Illegal
April 26, 2007
The State Supreme Court has ruled in favor of TBS client Herbert Nelson, who filed a class action on behalf of Washington consumers challenging the widespread business practice of charging consumers business and occupation (B&O) tax on top of the agreed upon sales price. In a 6-3 decision the Court declared the practice unlawful because state statutes explicitly require that the tax be paid by businesses, not consumers. To view the press release and a copy of the opinion, click here.
Seattle Metropolitan Magazine Lists Tousley Brain Attorneys as Seattle's Best Lawyers
April 5, 2007
Tousley Brain Stephens attorneys Russell F. Tousley, Christopher I. Brain, Kim D. Stephens, and David D. Hoff have been selected for inclusion in an upcoming edition of Seattle Metropolitan Magazine as four of the best lawyers in Seattle. Christopher I. Brain practices in the areas of Complex Real Property, Business and Class Action Litigation; David D. Hoff practices Securities and Corporate Litigation, Securities Compliance, and Business and Environmental Litigation; Kim D. Stephens practices in the areas of Commercial, Condemnation and Class Action Litigation; Russell F. Tousley practices Transactional Real Estate with special focus on the Development, Purchase, Leasing, Ground Leasing, Finance, Condominiumization and Sale of Complex Urban Projects with multi-family and/or retail components.
Their inclusion was based on the subjective judgments of fellow attorneys in their specialties and a detailed evaluation of their work.
TBS Files Suit on Behalf of GM Truck Owners with Defective Speedometers
March 1, 2007
GM truck owners, represented by Tousley Brain Stephens, have filed lawsuits in Oregon and Washington alleging certain models of General Motors trucks contain a defective and highly dangerous speedometer. This defect causes the speedometers to register and display inaccurate speeds both when the trucks are at a standstill and when they are moving. Many speedometers fail to register the vehicle's speed at all. Plaintiffs allege that General Motors has known about this defect, but has chosen not to recall the trucks or offer a free-of-charge replacement or repair. To read more about these lawsuits against General Motors, and to see a list of affected models of trucks, click here.
If you believe you are a member of this class or if you would like further information, please e-mail us at gmtrucks@tousley.com or call 206-682-5600.
2006
Michigan Homeowners Represented by Tousley Brain Stephens File Class Action Alleging Carrier Corp. Concealed Furnace Defects; Suit Joins Three Others Pending in U.S. and Canada.
December 20, 2006
Homeowners in Michigan today joined ranks with consumers in Washington, Wisconsin, and Ontario by filing a class action lawsuit against Carrier Corporation, the manufacturer of Carrier and Bryant condensing furnaces (also marketed under the brand names "Day & Night" and "Payne"). The homeowners allege that beginning in the mid-1980s, Carrier started manufacturing its high-end furnaces out of inferior material that corrodes and prematurely fails, without disclosing that fact to consumers. The case was filed on behalf of an estimated 250,000 residents of Michigan that own Carrier and Bryant furnaces. To read more about these lawsuits against Carrier Corporation, click here.
TBS Seeks Remedy for Consumers “Burned” by Purchasing Defective Dell Laptops
December 13, 2006
Tousley Brain Stephens has filed a class action against Dell, Inc., alleging that Dell Inspiron Laptop Model Nos. 1100, 1150, 5100 and 5160 contain known manufacturing defects, including inadequate cooling systems, and power systems and motherboards prone to premature failure with normal use. For more information, click here.
Named Partner, Kim D. Stephens, Elected Fellow of American Academy of Trial Counsel by Academy Members
December 1, 2006
Members of the American Academy of Trial Counsel recently honored Kim D. Stephens by electing him Fellow of the Academy. The American Academy of Trial Counsel is a lawyer honorary established to recognize excellence among American litigation and trial counsel across all segments of the bar. Members of the elite Academy elect only 2,500 Fellows. Fellows are selected and invited into the Academy after being evaluated on effectiveness and accomplishment in litigation and trial work, along with ethical reputation. Trial experience is an important factor in Academy selection, which also recognizes that great litigators sometimes win before trial. Mr. Stephens, who maintains an active national trial practice, was grateful for this honor and recognition by his peers.
The Academy's selection process is a combination of Advisory Board member input, attorney opinions, evaluation of counsel, selection by clients, input from active and retired judges, and reviews of acknowledgement by third-party sources. The criteria used for selection is not based purely on the number of cases tried, or the notoriety usually associated with frequent court appearances, but also effectiveness in the area of a particular lawyer's expertise. Fellows are recognized by their peers as truly effective trial counsel.
State Supreme Court to Review Challenge to Car Dealerships' Practice of Passing B&O Tax on to Consumers; Class Action Certified by Lower Court
October 14, 2006
Tousley Brain Stephens' clients Herb Nelson and his wife purchased a used Volkswagen from an Appleway car dealership in Spokane, Washington. On the purchase agreement for the car, Appleway added a charge for Washington State Business and Occupation Tax ("B&O Tax"). The B&O Tax is a tax paid by Washington businesses for the privilege of doing business in the State.
In response to a class action complaint filed on behalf of Mr. Nelson, the Spokane County Superior Court, Judge Kathleen O'Connor presiding, ruled that Appleway's practice of itemizing and collecting B&O Tax on consumer purchases violates Washington law. Judge O'Connor issued an injunction prohibiting Appleway from collecting, itemizing or passing through the B&O Tax to its customers. Judge O'Connor also certified a class comprised of all individuals and entities from whom Appleway itemized and collected B&O Tax on the sale of motor vehicles, parts, merchandise or service in the state of Washington.
Appleway appealed Judge O'Connor's rulings to the Washington Court of Appeals, but in a unanimous decision, the Court of Appeals affirmed the trial court on all grounds. Click here for a copy of the Court of Appeals' decision, which is reported at Nelson v. Appleway Chevrolet, Inc., 129 Wn. App. 927, 121 P.3d 95 (2005).
Appleway has appealed the Court of Appeals' decision to the Washington Supreme Court, which heard argument in the case on October 19, 2006. A decision from the Supreme Court is pending.
Kim D. Stephens, Max E. Jacobs and Kimberlee L. Gunning are co-lead counsel for the class.
TBS Attorneys Act Swiftly to Block Hostile Corporate Takeover
October 13, 2006
Tousley Brain Stephens was recently retained on a late Friday afternoon by a temporarily-inactive corporation and its officers, who had just learned of a corporate raider's imminent attempt to seize ownership and control of the corporation. Unbeknownst to the officers, the raider, who had recently purchased a small number of shares in the company, had obtained a default judgment, had himself appointed as interim custodian, and issued to himself a controlling number of shares in the corporation. Early Monday morning, Tousley Brain Stephens petitioned for, and obtained, a Temporary Restraining Order against the shareholder, enjoining a scheduled proxy vote, in which the shareholder would have elected himself as permanent director. Less than two weeks later, the superior court set aside the default judgment, removed the shareholder as custodian, rescinded his self-issuance of shares, and enabled the corporation to litigate the action against the shareholder on the merits.
Tousley Brain Stephens files suit on behalf of Wisconsin homeowners against maker of defective furnaces
October 10, 2006
Class counsel announced that homeowners in Wisconsin and Ontario filed today separate class action lawsuits against Carrier Corporation, the manufacturer of Carrier and Bryant condensing furnaces (also marketed under the brand names "Day & Night" and "Payne"). The homeowners allege that beginning in the mid-1980s, Carrier started manufacturing its high-end furnaces out of inferior material that corrodes and prematurely fails, without disclosing that fact to consumers. To read the full press release, click here. To read about the existing lawsuit against Carrier Corporation within Washington, click here.
Tousley Brain Stephens Secures Class Action Settlement for Property Owners Nationwide; Court Grants Final Approval
October 5, 2006
On September 15, 2006, Tousley Brain Stephens obtained final court approval of a Class Action Settlement resolving the lawsuit it filed in 2003 against PABCO, a manufacturer of asphalt roof shingles. Eligible homeowners who have or had PABCO HO-25 or HZ-25 roof shingles on their property may now file a claim for one of several forms of payment. Under the Settlement, compensation previously available only to a limited group of Washington consumers through the Washington State Attorney General's Consent Decree (which resolved a similar action against PABCO) has been greatly expanded in scope and more than doubled in value. In contrast to the Attorney General Consent Decree, compensation under this Settlement is available to every qualifying property owner in the nation - including those who are not the original purchasers of the product. This Settlement establishes two core levels of compensation for qualifying Class members: one for Appearance Damage, which is paid at twice the amount homeowners could previously receive; the other for Performance Damage, available for qualifying Class members whose roofs are leaking as a result of failed Shingles, which pays significantly more. Compensation under the Settlement also is available to qualifying Class members who already replaced their roofs. Even qualifying Class members who were already paid under the Attorney General Consent Decree are eligible for an additional payment - despite the releases they already signed.
The Settlement is structured on a "claims-made" basis, with no limit on the number of claims or amount of compensation PABCO will pay for qualified claims under the terms of the claims process. Nor are recoveries diminished in any way to pay attorney fees or costs. Class members may request claim forms and obtain further information from the Independent Claims Administrator at www.ho25settlement.com, or by calling 800-385-0133.
Tousley Brain Stephens Successfully Obtains Ruling Ordering SAKS Department Stores to Produce Audit Report Investigating Allegedly Illegal Charge Backs
October 5, 2006
On October 5, 2006, the United States District Court for the Northern District of Alabama ordered SAKS to produce an internal investigation report prepared by its Audit Committee in connection with the governmental investigation into the illegality of SAKS' "charge back fees." Charge back fees are assessed by merchants against vendors who allegedly deliver nonconforming goods. On behalf of one of the merchants, Adamson Apparel, Inc., and other merchants similarly situated, Tousley Brain Stephens PLLC brought a putative class action lawsuit against SAKS alleging SAKS improperly and illegally assessed and collected charge backs from its vendors. SAKS had refused to produce the audit report claiming it was protected from disclosure by attorney client privilege even though SAKS had previously provided it to the Securities Exchange Commission and the United States Attorney's Office for the Southern District of New York.
Download copy of the Order (PDF, 739KB)
For more information, please contact Tousley Brain Stephens attorneys Kim D. Stephens or Nancy A. Pacharzina.
Tousley Brain Attorneys Named in The Best Lawyers in America®
September 28, 2006
Tousley Brain Stephens attorneys Christopher I. Brain, David D. Hoff, Kim D. Stephens, and Russell F. Tousley have been selected by their peers for inclusion in The Best Lawyers in America® , Thirteenth Edition (2007). David D. Hoff and Christopher I. Brain were named in the area of Commercial Litigation; Kim D. Stephens in the areas of Eminent Domain and Condemnation Law; and Russell F. Tousley in Real Estate Law.
This edition of Best Lawyers is based on more than 1.8 million detailed evaluations of lawyers by their peers. Best Lawyers also conducts thousands of telephone interviews as part of the selection process. Lawyers are not required or allowed to pay a fee for a listing in Best Lawyers; therefore, inclusion in the publication is considered a singular honor. Best Lawyers is widely regarded as the definitive guide to legal excellence in the United States.
Washington Court of Appeals Affirms Tousley Brain Stephens Victory for Internet Entrepreneur
September 18, 2006
In a unanimous opinion, the Washington Court of Appeals, Division I, affirmed the judgment entered in favor of our client, the founder of an Internet yellow pages company, following a February 2005 trial. The plaintiff, a minority owner in the company, sought a $127-million dollar damage award relating to the sale of the company to InfoSpace, Inc. Tousley Brain Stephens attorneys David D. Hoff, Janissa A. Strabuk, and Kimberlee L. Gunning obtained summary judgment dismissal of the majority of plaintiff's claims before trial and obtained a judgment in our client's favor following trial. On appeal, plaintiff argued that the trial court erred by misinterpreting key provisions of the sale contract, limiting his legal damages, ruling that he was not entitled to disgorgement of our client's profits from the sale of the company, and holding that he was not entitled to a double recovery for the same harm. The Court of Appeals rejected all of these arguments. To read a copy of the Court of Appeals' opinion, click here.
Tousley Brain Stephens Obtains Favorable Settlement for 41 Plaintiffs in Uncontrolled Asbestos Release Case
August 30, 2006
Plaintiffs were the tenants of two 1960s-era apartment buildings in Seattle's Magnolia neighborhood. During a plumbing replacement project, the popcorn ceilings of the buildings were scraped and removed. Large amounts of dust and debris were spread throughout our clients' homes. Six months into the project when it was almost completed, an elevator repairman told the apartment manager that the ceilings might contain asbestos. Testing by the Washington State Department of Labor and Industries and the Puget Sound Clean Air Agency confirmed that significant amounts of asbestos had been released.
Our clients sued the building owner, the property manager, the plumbing company, and the painter who scraped the ceilings. Plaintiffs alleged claims of nuisance, negligence, and unjust enrichment. They sought damages for loss of the use and enjoyment of their property, personal property damage, and fear of cancer and other asbestos-related diseases. A global settlement was reached in August 2006. The terms of the settlement are confidential. Tousley Brain Stephens attorneys David D. Hoff, Janissa A. Strabuk and Max E. Jacobs represented the plaintiffs.
Canterbury Square Litigation
August 21, 2006
Tousley Brain Stephens has brought a lawsuit on behalf of a homeowners' association of a Woodinville mobile home park (Canterbury Square Owners Association) and the purchasers of the property (CamWest Development, Inc.) to remove a claim by former owners that a provision in a Settlement Agreement with the former owners prohibits the mixed-use project being proposed by CamWest. More information on the case can be found here.
Carroll v. Nuprecon
July 27, 2006
Tousley Brain Stephens successfully represented the defendant employer in class action litigation brought by truck drivers who claimed they were entitled to be paid prevailing wages when they delivered or picked up waste dumpsters from any public works site. On July 7, 2006, Judge Charles W. Mertel refused to certify a litigation class, finding that the case raised too many issues pertaining to the activities of each individual class member at each individual job site. Click here for a copy of the order to be entered in this case or contact Kim D. Stephens or Nancy A. Pacharzina for further information.
Washington Law & Politics recognizes Super Lawyers at Tousley Brain Stephens
June 1, 2006
The summer 2006 issue of Washington Law & Politics named four attorneys at Tousley Brain Stephens as "Washington Super Lawyers." This distinction is based on peer recognition and professional achievement and is given to no more than 5% of the attorneys in the state. Our 2006 "Super Lawyers" include Russell F. Tousley, Christopher I. Brain, Kim D. Stephens, and David D. Hoff. In addition, Mr. Brain was included in the list of "The Top 100" attorneys in the state.
Nationwide class certified in case against Microsoft and Best Buy
April 10, 2006
On April 10, 2006, Judge Douglass A. North certified a class comprised of "All people in the United States who (1) at any time from December 1, 1999 to the present, paid Microsoft for charges in connection with a free-trial MSN Internet access service account that was established in their name at a Best Buy store but did not receive a full refund, and (2) did not log on to the account." Beth E. Terrell and Toby J. Marshall of Tousley Brain Stephens PLLC are co-counsel for the class. For more information, click here.
Tousley Brain Stephens Successfully Settles Monorail Condemnation Case
February 21, 2006
Tousley Brain Stephens successfully represented the developer of a downtown hotel, retail, and condominium project in connection with condemnation of a 1600-square-foot air rights easement by the Seattle Popular Monorail Authority. The case recently settled shortly before trial for $5,000,000, which was approximately ten times the Monorail's budgeted acquisition price.
Tousley Brain Stephens Represents Condo Owners in Court of Appeals Victory
February 17, 2006
Tousley Brain Stephens PLLC successfully represented the plaintiffs in the case entitled Bogomolov et al. v. Lake Villas Condominium Ass'n of Apartment Owners, 127 P.3d 762 (2006). In that case, the defendant condominium owners' association and a small group of unit owners attempted to convert portions of the condominium's common areas into limited common areas without the requisite unanimous consent of all owners, by building additional boat docking space for the exclusive use and benefit of the defendant unit owners. Plaintiffs prevailed on summary judgment at the trial court level, and persuaded Division One of the Washington Court of Appeals to uphold the trial court's decision.
