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Smith adv. Westport

FBBC successfully defends couple personally sued for $2,400,000 by commercial lender. The lender sued the couple seeking $2,400,000 on a personal guarantee agreement they signed. The couple signed the agreement with the lender guaranteeing the debt of a family member’s business. When that business went under, the lender personally sued the couple for recovery of the entire debt, totaling $2,400,000. If successful, the suit would have economically devastated the couple. After a three-week jury trial, FBBC obtained a complete exoneration for the couple. FBBC proved that the lender had concealed information from the couple, lulling them into signing the guarantee by, among other things, withholding key information from them. As a result, the jury found in favor of the couple on all claims, awarding the lender nothing. The couple is now pursuing recovery of all their legal fees and expenses from the lender.

What began as a telephone call to complain to AT&T Wireless for billing overcharges turned into a nationwide legal slugfest fought on behalf of hundreds of thousands of miffed AT&T customers— ultimately resulting in a hefty $47 million dollar settlement.  Represented by a small Santa Barbara law firm, Austin, Texas resident German Godoy, took his fight to AT&T on behalf of himself and all others who he believed were similarly wronged by AT&T.

The case started when Mr. Godoy decided to cancel his wireless service with AT&T partway through his billing cycle.  Upon receiving his bill, he discovered that he was charged for the entire billing cycle, even though he had only used his telephone for a portion of the month in which he cancelled.  Understandably upset for paying for service he did not want or use, Mr. Godoy contacted Santa Barbara based class action attorneys Foley, Bezek, Behle & Curtis, LLP. Attorneys at Foley, Bezek, Behle & Curtis, LLP together with the Santa Barbara law firm of Arias Ozzello & Gignac, LLP and the Washington State law firm of Tousley Brain and Stephens, PLLC filed a nationwide class action lawsuit against AT&T the United States District Court for the Western District of Washington (AT&T’s principal place of business) for unfair and deceptive billing practices.

The class action alleged that prior to May of 2003, when a customer of AT&T cancelled wireless service, AT&T’s uniform practice was always to “pro rate” the monthly service charge — charging the customer only for the portion of the billing cycle during which the wireless service actually was used (i.e., through the date of cancellation of service). AT&T, however, saw an opportunity to generate additional revenue from its fleeing customers by implemented a uniform company policy of not pro rating but instead charging its customers for a full billing cycle for the month in which the cancellation took place in direct violation of its existing terms and conditions.  This unfair and deceptive practice was intended to quickly generate income from lost customers in the telecom industry equivalent of saying, “Don’t let the door hit you on the way out!”  The class action complaint sought damages for Violation of the Federal Communications Act, Breach of Contract, Unjust Enrichment and Declaratory Relief.   Several months after Mr. Godoy filed his complaint, the firm of Lieff, Cabraser, Heimann & Bernstien filed a similar complaint and the two actions were consolidated by stipulation.

In the midst of the grueling class action battle with AT&T, Plaintiffs learned of a situation on the east coast that could have potentially wiped-out Mr. Godoy’s entire case.  Unbeknownst to the Plaintiffs, AT&T had recently entered into settlement negotiations with another group of law firms who had filed a similar action in the Superior Court of New Jersey rather than the face the tough prosecution of the action by the Plaintiffs’ team of lawyers.  When Plaintiffs learned of the settlement, which offered just over $2 million in recovery to the class, Plaintiffs were shocked.

Undeterred by the fact that a New Jersey judge had preliminarily approved the settlement, Plaintiffs’ attorneys decided to take the fight to the New Jersey Courts.  Plaintiffs alleged, amongst other things, that the proposed settlement was inadequate and let AT&T off the hook at the consumers’ expense.  Although the New Jersey Judge initially denied Plaintiffs’ motion to intervene into the case, the Plaintiffs’ attorneys ultimately persuaded the Court that the settlement reached in the New Jersey action did not adequately compensate the class.  In a well-reasoned, 11-page decision, the Honorable Judge Bernstein of the Essex County, New Jersey Superior Court concluded that “the settlement was unfair.”  Shortly after the decision, AT&T approached Plaintiffs’ counsel in an attempt to reach a global settlement of both the Washington and New Jersey actions.   In a remarkable turnaround and as a result of the Plaintiffs’ attorneys’ efforts including objecting to the initial settlement and leading the negotiations of the revised settlement, the New Jersey court ultimately approved a revised settlement valued at over $40,000,000 to be distributed to the class of former-AT&T customers

The extreme tenacity of Foley, Bezek, Behle, & Curtis, LLP took what was otherwise a miniscule claim and turned it into a nationwide case that successfully compensated hundreds of thousands of consumers across America and taught AT&T that if they wrong their customers, they will have to pay the price.  This was a true victory for consumers across America.

FBBC helped a family-owned produce company exonerate a debt in excess of $18 million and helped the company obtain a highly lucrative real property reconveyance by the lender valued at over $22 million in a lender liability dispute.

The produce company was a successful family-owned and operated commercial produce grower and packer, in business for more than 50 years. The produce company and a large nationally recognized bank had been engaged in relationship lending for a number of years where the Bank would provide the company the necessary funds to finance each growing season. During the 2009 growing season, the company was forced to close its doors and “default” on its loans to the Bank.

In May 2009, the Bank filed a complaint seeking more than $18 million from the company and its personal guarantor (a principal in the company). The Bank sought to foreclose on all real property owned by the company in repayment of the debt, while claiming that there was a deficiency to be paid personally by the guarantor. The real property had a fair market value, according to the Bank of slightly more than $13,000,000, leaving the guarantor liable for approximately $5,000,000.

The company hired Foley, Bezek, Behle & Curtis, LLP, who promptly went to work opposing the Bank’s Complaint, and mounted a counter-attack. The company filed a cross-complaint, alleging that the Bank caused it millions of dollars in damages on theories of fraud, breach of oral contract, intentional interference with prospective economic advantage, and other lender liability claims.

The Bank tried to end the case early by filing Motions for Summary Judgment in mid-2010. In a 30 page opinion, the Superior Court concluded that the Bank was not entitled to Summary Judgment, but instead would be required to stand trial and defend against the cross-complaint. After careful consideration of the Court’s comments and conclusions in its written ruling, the Bank determined to settle the case by canceling all debt and guarantees, and returning all real estate pledged by the company for a payment slightly in excess of $4.0 million dollars. The effect of the settlement was to release over $18,000,000 in debt and to return real property valued in excess of $22,000,000 for a payment of slightly more than $4.0 million dollars.

Two national classes sue 24 Hour Fitness for its unhealthy pay practices.

Last Updated: March 2010

Two separate national classes of 24 Hour Fitness employees have been certified in a collective action against 24 Hour Fitness under the Fair Labor Standards Act. Both classes are being vigorously represented by Foley Bezek Behle & Curtis, LLP and co-counsel in the Northern District of California.

The first class consists of managers who allege that they were misclassified as “exempt” employees not entitled to (and not paid any) overtime pay. The second class consists of personal trainers who were not compensated for the hours they were required to work off the clock. 24 Hour Fitness required personal trainers to conduct sales, “work the floor,” provide health assessments, perform training sessions, clean and restack weights, and so on – without even paying them a minimum wage for those hours. Both groups of employees seek unpaid back wages and overtime. By successfully arguing for equitable tolling FBBC received claims periods covering 8-10 years worth of employment for each class.

The discovery phase of the litigation is now finished, FBB&C having defended nearly four dozen depositions in over a half a dozen states. These depositions occurred after FBB&C and co-counsel took nearly a dozen depositions of 24 Hour executives and waded through hundreds of thousands of pages of documents produced and millions of payroll records.

In the late 1990s, Troy Duffy was an unknown writer/director working as a bouncer in a bar in Hollywood. He had moved to Hollywood a few earlier in the hopes of making it big. While working at the bar, Duffy met independent film producer Chris Brinker. Duffy shared with Brinker the script for The Boondock Saints. Together, they successfully shopped the Film and attracted interest in the properties from big name entertainment and music companies, including Miramax Films and Mavericks Records.

The Film was eventually financed and distributed by Franchise Pictures in conjunction with Comerica Bank. Though it had a limited theatrical release, when it hit the home theater market, The Boondock Saints became the highest grossing video rental at Blockbuster Stores during its six month run. Despite its huge cult success, years went by and creators Duffy and Brinker did not see a dime.

Through a combination of tenacity and audacity, Duffy and Brinker’s investigation uncovered Franchise Pictures’ complicated financial scheme whereby in direct violation of their contract with Franchise, Franchise first sold the Film in packages with other Films when it was distributed and then, with Comerica Bank, had the profits from The Boondock Saints to pay off the debt for less popular films also financed by Comerica. A series of lawsuits were filed against Franchise Pictures, Comerica Bank, the film’s major domestic distributor, Spartan Home Entertainment, LLC, and various other distribution companies and their officers and directors.

After years of unsuccessful litigation, Duffy and Brinker brought in Foley Bezek Behle & Curtis, LLP. Through FBB&C’s creative and aggressive representation, the officers and directors of all companies except Spartan settled on “confidential” terms. FBB&C was now primed to take on the major players – Comerica Bank, Spartan, and Spartan’s executives. The first trial was against Comerica Bank. That trial ended in a confidential settlement after FBB&C rested its case. Very soon after that settlement, the companion case against Spartan settled for a “confidential” cash payment and long-term royalty payments to FBB&C’s clients related to the distribution of the Film on DVD.

Obviously unhappy, Spartan filed a new retaliatory lawsuit against Duffy and Brinker alleging trademark infringement of Film-related merchandise that Duffy and Brinker had been distributing for years. FBB&C acted aggressively and decisively, filing a counterclaim against Spartan and getting Spartan’s entire case thrown out on summary judgment in the same year. Negotiations with Spartan on the counterclaim resulted in a very favorable settlement for Duffy and Brinker that included a “confidential” payment, return of the theatrical rights for the Film, as well as confirmation of Duffy and Brinker’s exclusive rights to the trademarks and merchandise for both The Boondock Saints and the sequel, The Boondock Saints II: All Saints Day.

EFX Performance, Inc. adv. Simonian.

EFX Performance, Inc. adv Simonian. In the second putative class action brought against EFX Performance, Inc., this one filed in the Central District of California, alleging a national class under California’s consumer protection laws, FBBC obtained a full dismissal of all claims in favor of its client. On January 20, 2011, one day after the first of what would become four lawsuits was filed against EFX, this first copycat lawsuit was filed by a preeminent plaintiffs’ class action law firm. Upon receipt of the complaint, FBBC acted swiftly to develop a successful litigation strategy to defeat the case. Eventually, under threat of a motion to dismiss, Plaintiff’s counsel re-thought their case, ultimately dismissing it altogether.

EFX Performance, Inc. adv. Geffner

EFX Performance, Inc. adv Geffner. In the third putative class action brought against EFX Performance, Inc., this one filed in New Jersey, alleging a national class under the New Jersey Consumer Protection Law, FBBC obtained a full dismissal of claims in favor of its client. On March 1, 2011, six weeks after the first two lawsuits were filed against EFX in California (one in state court and one in federal court), this second copycat lawsuit was filed in New Jersey. Upon receipt of the complaint, FBBC acted swiftly to team up with local counsel in New Jersey. The team’s focused and aggressive litigation caused Plaintiff’s counsel to re-think their case, ultimately dismissing it altogether.

A settlement has been reached in two class actions alleging that AT&T Wireless engaged in unfair, deceptive and misleading bill practices. The settlements, which were approved today by the Honorable Christina A. Snyder, require that AT&T Wireless pay benefits to the class members up to approximately $80,981,548 as set forth in more detail below.

CASE NAMES: Paul Lozano v. AT&T Wireless and Heather Stern v. AT&T Mobility

TYPE OF CASES: Class Action

JUDGE: The Honorable Christina A. Snyder – United States District Court, Central District of California

PLAINTIFFS REPRESENTED BY: Peter J. Bezek and Robert A. Curtis of FOLEY BEZEK BEHLE & CURTIS, LLP; J. Paul Gignac of ARIAS OZZELLO & GIGNAC, LLP

FACTS: On November 15, 2010, after eight and a half years of litigation, the United States District Court approved two class action settlements, Paul Lozano v. AT&T Wireless and Heather Stern v. AT&T Mobility, requiring that AT&T Wireless pay benefits to the class members up to approximately $80,981,548.

Plaintiff Paul Lozano initially contracted with AT&T Wireless in May of 2001 under a monthly calling plan called the Digital Advantage Plan, which provided Plaintiff Lozano with 400 “Included Minutes” per month at a cost of $29.99 per month. In September 2001, Plaintiff Lozano noticed something peculiar on his AT&T Wireless bill. Although Plaintiff Lozano’s bill for that month covered a billing cycle beginning August 17, 2001 and ending September 16, 2001, 136 minutes (or $54.40) appeared on his bill for calls that were placed or received during the prior month’s billing cycle. Plaintiff Lozano later learned that he had been the victim of a phenomenon which AWS refers to as “out-of-cycle billing.”

The Lozano class action involves the unfair, deceptive and misleading practices engaged in by AT&T Wireless of: (a) billing consumers for out-of-cycle billing; and (b) failing to fully and adequately disclose to its customers the likelihood, impact and absence of any means to avoid out-of-cycle billing. Plaintiff Heather Stern visited the AT&T Wireless store and enrolled in a two-year wireless telephone service plan. Before leaving the store with her new service plan, Plaintiff Stern was not asked to sign any document or otherwise acknowledge that she would be receiving any services other than the monthly calling plan. Thereafter, without her consent, AT&T Wireless began charging Plaintiff Stern for various “monthly service charges,” including charges for “ENH DISCOUNT INTL DIAL” (at the rate of $3.99/month) and “MMODE/DATA SERVICE” (at the rate of $2.99/month). Neither charge was authorized by Plaintiff Stern.

The Stern class action involves the unfair, deceptive and misleading practices engaged in by AT&T Wireless of: (1) assessing charges on its customers’ bills for services not authorized by its customers (a practice known as “cramming”); and (2) failing to clearly and accurately describe the services which are the subject of the charges.

As a result, these two Plaintiffs sought the help of Foley Bezek Behle & Curtis, LLP and Arias Ozzello & Gignac, LLP, who together filed two separate class action lawsuits against AT&T Wireless in the Central District of California. AT&T Wireless fought the Lozano case for eight and a half years and the Stern case for six years before finally agreeing to settle both case.

RESULT: The settlement reached on behalf of both class actions and approved by the United States District Court requires AT&T Wireless to pay benefits to all class members who submit a claim up to approximately $80,981,548. The reaction of the members of this class to this settlement was extremely positive as less than 50 of the more than 10,000,000 class members (or 0.0005%) opted-out of the settlement at the final approval hearing.

Smith adv. Westport

FBBC successfully defends couple personally sued for $2,400,000 by commercial lender. After obtaining a complete victory for its clients, with the jury awarding the lender zero dollars on a claimed $2,400,000 guaranty, FBBC then successfully obtained an order from the Court compelling the lender to pay all of the couple’s attorney’s fees and expenses incurred in the case. Despite the vociferous objection by the lender, the couple was awarded nearly $300,000 in attorney’s fees and expenses from the lender. At the same time, the lender filed a motion for a new trial and a motion for judgment notwithstanding the verdict. Both of the lender’s motions were denied by the Court

On December 2, 2014, the U.S. Supreme Court heard oral arguments in B&B Hardware Inc. v. Hargis Industries Inc. et al., a highly anticipated trademark case that could have wide-reaching effects for trademark owners and practitioners alike.

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