Kelly was selected by Judge James V. Selna to serve as one of the 5 members of the Economic Loss Lead Counsel Committee, which assisted Co-Lead Counsel in obtaining the record-setting settlement in the Toyota Unintended Acceleration Class Action. The settlement received final approval from Judge Selna on July 19, 2013.
Attorneys serving the South Bay Area and San Francisco including Redondo Beach, Torrance, Manhattan Beach and Nearby Cities
Kelly represented the chief pilot for Bruce Willis and Demi Moore's Gulfstream GII jet. Captain Baker was fired after the flight crew conspired to set him up to be terminated for bogus safety violations, because the flight crew thought that Captain Baker was too frugal when arranging for flight crew accommodations when they traveled with Willis or Moore. Kelly proved that the flight crew engaged in a conspiracy and made false allegations about Captain Baker to both Willis and Moore and to the FAA. This verdict was recognized as one of the top ten verdicts in the United States for 2005.
Kelly represented over 1,300 trade school graduates who claimed the trade school defendants misrepresented the jobs which students could potentially be qualified for and hired into after graduating from defendants' trade school, and the compensation that would be available to them. The graduates claimed that they took out substantial student loans based on these pervasive misrepresentations, and were not only unable to find the represented employment opportunities, but could not service their loans with the actual low level job opportunities actually available to them after graduation.
Kelly represented an energy entrepreneur who arranged to work with a foreign state-owned energy company, to help them purchase a large California oil company. The entrepreneur retained defendants to act as investment bankers in the transaction. Kelly presented evidence to the jury that defendants then cut the entrepreneur and his principal out of the deal and steered the purchase of the oil company to another client. Defendants settled the case hours before the case was to be given to the jury.
Kelly brought this class action claim against Verizon, based on the promotion and sale of the Motorola V710 cell phone. Motorola manufactured and promoted the V710 as a "state of the art" phone, capable of amazing feats with the new Bluetooth® technology. Verizon was the first carrier to offer the phone, and also touted the benefits of Bluetooth® technology. However, when Verizon sold the phone, it had Motorola disable most of the Bluetooth® technology, so that it could make its customers pay to use its own "Get it Now" service to perform the same function that Bluetooth® would have. Kelly was successful convincing Verizon to buy back all of the Motorola V710 phones from customers, along with any accessories, and to compensate them for the loss of phone function.
Kelly represented approximately 353,000 consumers who took part in a promotion at Ralphs, whereby shoppers were promised a free three day, two night stay at a "Marriott-like" hotel throughout the U.S., in return for purchasing $400 worth of groceries in a 4 week period. Although 353,000 shoppers purchased the groceries, the company that Ralphs hired to provide the hotel rooms absconded with the money Ralphs had provided to pay for the rooms. Ralphs then advised the shoppers that they had "filled out the forms wrong" and refused to provide the rooms. Kelly was successful in obtaining the rooms, or if the customers preferred, a Mastercard gift card for the value of the rooms.
Kelly brought this class action claim against Capital One, based on a promotion by Capital One for a credit card promising a "fixed rate" of 6.99% APR. Several years after Kelly's client agreed to obtain the card and transfer other card balances to it, Capital One raised her rate to 15.9% APR, claiming that "fixed" meant "not tied to an index", not fixed as in "not subject to change for the life of the card."
Kelly represented a young woman who was the victim of an automobile accident caused by a driver who mismanaged his Type I diabetes and had a seizure before crossing the center line and crashing into the young woman's car. The driver asserted the defense of "sudden medical emergency." Kelly successfully developed evidence to prove that: 1) the diabetic driver had disregarded many of his doctor's orders for diabetic care, causing him to predictably suffer the seizure on the day of the accident; 2) that the driver's employer could be held liable as the driver was potentially in the course and scope of his employment at the time of the accident; and 3) that if the physician who examined the driver after a prior seizure had reported the driver to the DMV as required by law, the accident would not have occurred. All three defendants paid into the settlement.
“Minor A” was attacked and beaten by other incarerated minors for refusing to use his “trustee” status to help gangs run drugs between the detention blocks. His injuries were severe and left him paralyzed. Kelly proved that “Minor A’s” civil right to protection while incarcerated had been violated, and that the juvenile facility had created a dangerous condition by, among other things, knowingly allowing chronic understaffing, improper treatment of minors suffering from mental conditions, and allowing surveillance camers to be disabled.
Plaintiff was rendered paraplegic when the vehicle in which he was a passenger went over a 27 foot high cliff dug out by State of California beneath a sharp curve in a County road. The accident vehicle was exceeding the "advisory" speed posted for that section of the County road. Kelly presented evidence that: 1) the "advisory" speed sign was posted in the wrong place (too far before the dangerous curve) and that the section of the road preceding the accident curve was constructed in such a fashion that drivers were led to disregard the advisory speed sign and were actually increasing their speed after the advisory speed sign, not lowering it; and 2) that the County and/or State of California should have constructed a guard rail, or taken other protective measures to prevent vehicles going off the accident cliff. Through an intense investigative campaign, Kelly discovered a substantial accident history at the sharp curve, which had been denied by defendants, and he alleged that documents evidencing this accident history had been wrongfully destroyed.
Plaintiff was injured when a rented SUV rolled backward over him, crushing his legs. Kelly proved that the design of the SUV was such that it could move when it should not.
Kelly proved at trial that Stratford Insurance Company had acted in bad faith when it denied a claim by plaintiff to defend his company from claims arising from a trucking accident involving one of his delivery trucks. Plaintiff, who had escaped the Cambodian "Killing Fields" and built his Asian food distribution business from $5 he borrowed from a relative, came close to losing his business.
Kelly proved that metals provided to a manufacturer were improperly smelted, causing the products to crack and fail when utilized.
Kelly represented an elderly couple who was forced off the I-80 Freeway by another driver, and crashed into a huge tree located only 19.5 feet from the freeway. The Highway Design Manual required that there be a 30ft "Clear Recovery Zone" beside the freeway, to give vehicles forced off the roadway a chance to recover or to reduce the chance of them impacting a fixed object. Kelly presented evidence that convinced the jury that the tree should have been removed as part of a freeway repaving project, and that it was a "dangerous condition" as defined by the Government Code, entitling his clients to a verdict in their favor.
Kelly brought this class action claim against USP Labs alleging that their pre-workout supplements Jack3d and OxyELITE did not provide adequate warnings that they contained Dimethylamylamine ("DMAA"), which if not used under strict dosing guidelines could potentially cause serious health problems. A settlement was reached providing for more descriptive and prominent product warnings, and a common fund of $2,000,000 to provide refunds to consumers and a contribution to the Consumer Federation of America, which works to promote health and safety issues related to food and consumer products.
Kelly proved that the aircraft maintenance facility had improperly overhauled an aircraft engine, causing the aircraft to crash short of the runway, causing injury to a passenger.
Kelly's client was on vacation with her husband in Hawaii, where she met the defendant and his wife poolside. Plaintiff's husband went to play golf. Defendant was mixing his own drinks at the pool, and became quite intoxicated. When plaintiff left to return to her room, defendant followed her back to her floor of the hotel, pulled her into the alcove holding the ice machine, and attempted to rape her. She managed to knee defendant in the groin, and escape down the hall to her room.
Plaintiff had a breast removed because of cancer, and her insuror refused to pay for her reconstructive surgery, calling it "elective-cosmetic." Kelly was successful in obtaining reimbursement for the surgery, and substantial damages for the emotional distress plaintiff endured.
Plaintiffs (Mother, Father and Minor Child) brought suit against OBGYN and Hospital for failure to properly inform them that Mother had tested positive for Cystic Fibrosis, after previous pregnancy resulted in miscarriage. Parents went on to conceive again resulting in birth of Minor Child inflicted with Cystic Fibrosis, and thus were deprived of the opportunity to explore Selective In Vetro Fertilization as an option.
Kelly represented a pilot who was flying an converted helicopter crop duster, when the main rotor shaft sheared and the aircraft crashed, causing back injuries to the pilot. Kelly proved that the company which converted the aircraft from military to civilian use had not properly performed the required inspections of the rotor shaft at the time of the conversion.
Plaintiffs' 20 month old daughter fell to her death, through a low apartment window, which had no window guards, and a defectively affixed window screen. Kelly proved that the landlord should have anticipated that the window should have had guards or other protections, before they rented the apartment to a family with two small children.
An Unlikely Bellwether Trial
*[A bellwether trial is a case that the court and the parties select to test their arguments, with the goal of moving the overall litigation towards resolution]
One of our more interesting cases in recent years was a case in which we represented students of a culinary school. The students claimed that the school misrepresented the jobs which students could potentially be qualified for and hired into after graduating, and the compensation that would be available to them. The graduates claimed that they took out substantial student loans based on the school’s misrepresentations, and were not only unable to find the represented employment opportunities, but also could not service their loans with the low- level job opportunities actually available to them after graduation.
The case was hotly litigated for five years, with no potential resolution in sight. The defendants moved to compel arbitration of all of the claims by all students. However, the Court found that the arbitration agreement used by defendants was “unconscionable” and invalidated it, because it contained one-sided requirements prejudicial to the students – like requiring that any arbitrator have “experience in for-profit education,” i.e. be an insider in defendants’ own industry. However, approximately 48 of 1,300 cases were sent to arbitration, because the arbitration agreements for those specific students had been cleaned up and did not contain the prejudicial requirements.
Many of the cases were lined up for arbitration, and the first to go to arbitration was the case of Anna Berkowitz. Ms. Berkowitz claimed that the school’s admissions representatives – essentially aggressive recruiters – had misled her and her father by stating that, if she attended the school and borrowed the $40,000 required to pay for 8 months of training there, that her culinary degree would make her a “shoe in” to land a job as a Pastry Chef earning at least $75,000 per year, to start. After multiple days of arbitration hearings, Arbitrator Samuel G. Jackson awarded Ms. Berkowitz $217,000 in total damages and attorneys’ fees. Mr. Jackson specifically found that the culinary school committed fraud when they recruited Ms. Berkowitz out of high school and convinced her and her father to borrow the money required to attend their school, based on the misrepresentations about her ability to get a Pastry Chef job and pay back her loans with the salary she would obtain. His award to Ms. Berkowitz included damages for tuition paid, earnings lost while Ms. Berkowitz attended the culinary school, damages for lost opportunity for the months she unsuccessfully sought employment as a Pastry Chef after graduating from the school, and for emotional distress damages and attorneys’ fees.
Following the overwhelming success we were able to achieve at the Berkowitz arbitration, we were also then able to successfully settle the vast majority of remaining cases by other students against the culinary school, at terms favorable to our clients.