Abbott Law Blog

John Flynn passed away on April 11, 2010.  John was a professor at the University of Utah law school for 42 years.  His students loved him.

Richard Burke, one of his law students, had this to say about Professor Flynn:

“I dreamed of being a lawyer since I was 8 years old.  But when I finally got to law school, I began to have second thoughts about my life’s dream.  I was shocked to discover that many students were there as a means to an end, with little or no regard for “justice” or the American legal system – the very reason I was there.  To them, the law was just a meal ticket, and that disgusted me.  As if that were not bad enough, my professors’ (apparent) collective indifference to this state of affairs (or so it seemed at the time) was doubly depressing.  Then someone persuaded me to sign up for Jurisprudence, with Professor Flynn.

It was a revelation, because he obviously cared about why he was there and why we were there.  He looked us in the eye, challenged us, and cared about the quality of our responses, and how we came to them; he was never satisfied with merely giving the correct answer.  Professor Flynn also shared his thoughts about the pending rate cases with us students, and asked us our opinions, brainstorming with us as if we were equals.  It was astounding: Here was a man who could have made boatloads of money as a corporate lawyer, but he chose to devote his many talents to the thankless task of educating and inspiring fresh crops of new lawyers.   He cared about justice, and showed his devotion not only by championing the public good in rate cases, but also by his insistence that his students were prepared to think and reason as lawyers in our justice system.  He inspired me, helped me to remember why I chose this path, and through his example of quiet confidence, let me know it was okay to think differently than my classmates.  I took every class he offered.

John Flynn had a superb legal mind, but I will remember him mostly for his humanity and grace.”

Even those who never studied under Professor Flynn have reason to be grateful.  In the early 1990’s Professor Flynn took on US West and the Utah Public Service Commission.  As the telephone utility for Utah, US West had a monopoly and could charge exorbitant rates to Utah consumers.  The legislature formed the Public Service Commission to “keep an eye” on US West.  The Public Service Commission had the legal authority to regulate the rates that US West could charge.

Professor Flynn, as a private attorney, took on US West and the Public Service Commission.  He contended that they colluded to charge too much money.  The case was hard fought, going the Utah Supreme Court twice.  Ultimately, the courts sided with Professor Flynn.  The Utah Supreme said, “the history of USWC’s unprecedented overearnings for a number of years indicates an extraordinary abdication by the Commission of its statutory duties . . . . Notwithstanding that history, the Commission was apparently content to continue allowing exorbitant earnings . . . . The record in this case and the history of prior proceedings give rise to grave concerns about the integrity of the Commission’s regulation of USWC’s rates and practices and why the regulatory process has been abused.”

In the end, Professor Flynn succeded in forcing USWest to refund almost $4,000,000 to the people of the State of Utah.

One of the more controversial aspects of the decision was the award of attorney fees.  Professor Flynn argued that the ATtorney General should have taken on this case.  Since the Attorney General instead chose to fight the case, Professor Flynn asked that USWest pay his attorneys fees.  The court agreed, reasoning that Professor Flynn had brought almost $4,000,000 in benefits to the State of Utah and an award of attorneys fees would encourage these types of lawsuits in the future.  The court limited attorney fees in these cases to a reasonable amount and only in cases where a significant societal interest was vindicated.  After all, who wouldn’t want someone to take on a utility that overcharged consumers almost $4,00,000 with the implict consent of a corrupt Public Service Commission.

To answer that question, jump forward to 2009.  Stephen H. Urquhart is a member of the Utah legislature.  He also represents large corporations. His clients oppose the award of attorneys fees in these cases because it gives incentives to people to bring lawsuits to force large corporations to obey the law.  He sponsored a senate bill that would do away with attorneys fees in these cases.  It passed and is now Utah law.

We all have Professor Flynn to thank for forcing USWest not to overcharge us.  We all have Stephen Urquhart and the Utah legislature to thank for discouraging others from following in Professor Flynn’s footsteps.

Utah has long lagged behind other states in holding contractors accountable for shoddy construction.  The Utah Supreme Court took an important step today in bringing Utah in line with the rest of the nation.  Today, the Utah Supreme Court held that all builders owe an implied warranty to purchasers.  The warranty only applies if certain specific conditions are met.  First, the injured party must have been in a contractual relationship with the seller.  Second, the building must be a new residence.  Third, the construction defect must be difficult to see (ie. hidden defect).  Fourth, the defect must have been found only after closing.  Fifth, the defect must have been caused by improper design, materials or workmanship.  Sixth, the defect must create a safety issue or make the residence unfit for human habitation.

As you can see, these specific requirements limt this new laws application.  Few real estate construction defects will meet all of these requirements.  To win in court, all requirements must be met.

Even so, this is an important step forward in protecting purchases of new residential construction.  Without a law like this, reputable builders are put at a disadvantage.  Utah has many reputable builders.  Unfortunately, those builders are too often squeezed out of business by builders who are willing to cut corners and save a few bucks.  Contractors who cut corners can bid a lower price.  This makes them more competitive.  Fortunately, the Utah Supreme Court chose to squeeze bad builders today.  If a builder decides to cut corners, the builder will sometimes be held accountable.

If you believe that you have a case that meets the above requirements, please call or click for a free initial consulation.

Our firm has filed a class action lawsuit against Omniture regarding its sale to Adobe.  Our client is a shareholder in Omniture and we allege that the share price in the sale is too low.  We seek to either raise the share price for all shareholders or stop the sale.