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Law School Commute Leads To Class Action Bid

Port Jefferson ferry riders want $8.7 million in surcharge refunds

By THOMAS B. SCHEFFEY

While Robert J. Peragine was commuting to law school, between 2003 and 2006, his first big case was coming to life, a case that could soon become a $8.7 million class action.

Peragine lived in Blue Point, on Long Island, and took the Bridgeport-Port Jefferson Ferry as he traveled to Southern New England School of Law, in North Dartmouth, Mass. Other passengers saw him studying his law books, and alerted him to a legal gripe they had.

Starting in 1993, the Bridgeport Port Authority, a quasi-public agency, tacked on a surcharge of $1 for foot passengers and $2 for vehicles. It didn’t appear that the money was being used to benefit passengers.

The Bridgeport and Port Jefferson Steamboat Co., which operated the boats, thought it deserved some of that money. Along with florist Greg Rose, who sued individually, the ferry company filed suit in federal court in 2003. U.S. District Judge Christopher Droney, in July 2008, ruled that the surcharge violated the Commerce Clause and the obscure Tonnage Clause of the U.S. Constitution in that the Port Authority was charging fees that were spent on projects that did not directly benefit those who paid the fees. (Peragine said the money was spent on feasibility studies for high-speed ferry service to New York and New Haven).

Droney declared that henceforth, “The Port Authority shall not be allowed to collect a Passenger Fee in an amount that exceeds what is necessary for their expenses that benefit ferry passengers and fairly approximate their use of the Port.”

The judge awarded Rose $494.63. The steamboat company received a nominal $1 award. Droney found that the passengers were entitled to the excess surcharge money, not the steamboat company.

Rookie Idea

Peragine’s fellow ferry riders told him they were interested in joining a legal action against the Port Authority, even before he had passed the bar. They were happy when he became a lawyer, and asked for his help.

“Once I passed the bar, the decision had come out. I read it in the Law Tribune that the final opinion came out, and in a footnote, it gave the inkling by the judge that there’s a possible class action here,” Peragine said in an interview.

“I knew all these ferry passengers were angry about paying this fee, and I know they were looking for some kind of recourse. I said, ‘There’s the class!’ It was kind of given to me by the district court judge’s award to one passenger.”

The question was, what happened to the other passengers? “I know them all. I see them every time I take the ferry!” Peragine realized.

Several months ago, Peragine was hired as an associate at East Hartford’s Adler Law Group. Partner Lawrence H. Adler, a trial lawyer with 24 years experience, listened to Peragine’s idea. “I knew I couldn’t do it on my own,” Peragine said.

Adler teamed with Hartford lawyer Richard E. Hayber, who has experience with class action matters. Drawing on people Peragine knew from his commute, the small team on Oct. 8 filed a claim on behalf of an initial group of 12 potential plaintiffs. “We have been signing up people daily,” Adler said, “and hope to have close to 100 people in the short term.”

The amount of money that the Port Authority overcharged, by Adler’s calculation, is $8.7 million, since 1993. Adler and Hayber are hoping to have the ferry passengers certified as a class, and to be named class counsel.

Several other groups of lawyers in New York and Connecticut are attempting to win the same advantage. Two New York City lawyers, Brian L. Bromberg and Harley J. Small, representing Suffolk County correction officers, filed a complaint Oct. 13.

Peragine said he is optimistic that the Adler-Hayber team will benefit from being the first to file, having the largest group of plaintiffs, and having attorneys with experience in class action matters.

Damages Only?

Adler expects the Port Authority to eventually contest liability, but he believes that issue is largely settled. Judge Droney’s ruling that passenger Greg Rose was entitled to a refund of his excess surcharge payments was appealed to the U.S. Court of Appeals for the Second Circuit. Senior Judge Jon Newman, for a unanimous panel, affirmed the award, based on the Commerce and Tonnage clauses.

“The reason why this case is appealing to many lawyers” Adler said, is because it appears that the Port Authority’s liability has already been established. “The law has already been determined in this area,” he said.

Richard Rose, of Murtha Cullina’s Stamford office, has been counsel for the Port Authority since 1993. He declined comment, referring a reporter to the authority’s admiralty counsel, Timothy F. Noelker, of Thompson Coburn in St. Louis.

Noelker did not immediately return a call for comment.

However, it does not appear the defense has rolled over. Thompson Coburn has reportedly filed an application for certiorari to the U.S. Supreme Court, challenging the 2nd Circuit decision. •