“A federal judge in California last week criticized two lawyers for bringing an additional 49 law firms into a data-breach case, raising to 53 the total number of firms representing the plaintiffs….’What made you think I wanted 53 firms churning on this case?’,” asked U.S. District Judge Lucy Koh, telling lawyers from Altschuler Berzon and Cohen Milstein Sellers & Toll that she was “deeply disappointed.” Koh went on to grant a request for a special master filed by Ted Frank, class action reformer with CEI and formerly a blogger in this space. [Debra Cassens Weiss, ABA Journal]
Papers obtained by The Hill confirm that the prominent plaintiff’s law firm of Cohen Milstein is in for a 27 percent slice (plus costs) of loot from at least one branch of the ongoing probe over erroneous opinion on climate change, a campaign advanced by a subpoena dragnet from state attorneys general seeking papers and correspondence from dozens of free-market and right-of-center advocacy and scholarship groups. [The Hill]
Although the blithe denials of a couple of sources who spoke to The Hill might suggest otherwise, contingency-fee representation of states and other public bodies in damages claims was deemed ethically improper over most of American history. It’s a story I tell in The Rule of Lawyers, where I talk about Dickie Scruggs’ pioneering venture in the early 1990s in representing the state of Mississippi in claims for removal of asbestos from government property:
The United States [as of this point] had long justified its departure from other countries’ [bans on contingent fees] on the grounds that otherwise [given our lack of “loser-pays”] some poorer clients might be unable to obtain a lawyer at all. But no one was seriously claiming that no lawyer could be found to handle the asbestos case for the state of Mississippi on an hourly fee basis.
Until quite recently the notion of letting lawyers represent government on a contingency-fee basis would have been seen as pernicious, absurd, or both. But as Scruggs was no doubt aware, times were changing fast. Many of America’s legal authorities had begin to regard contingency fees — and the encouragement they gave to speculative litigation — not as a lesser evil that should be limited to the cases where it was necessary, but as something wholesome and beneficial in itself. The first experiments had already been noted by the end of the 1980s, with the state of Massachusetts hiring private lawyers on contingency for asbestos rip-out cases. If contingency fees for public lawyering could pass the ethical smell test in the state that was home to Harvard Law School, why shouldn’t they do so in Mississippi, too?
Since the Great Tobacco Robbery steered billions of dollars in fees to the pockets of politically influential law firms, the practice has been the subject of continued lively controversy, with legislative proposals in many states aiming to curtail or eliminate the opaque or even undisclosed deals by which private law firms get themselves cut themselves in on a share of public moneys by attorneys general dependent on their political support. Earlier on the contingency-fee angle in the climate subpoena affair here and here.
They knew, because their own allies had told them: “As you know, deception/disinformation isn’t itself a basis for criminal prosecution under RICO.” — an official of the Union of Concerned Scientists, writing to the organizers of a campaign to enlist scientists behind a call for a RICO investigation of the fossil fuel industry for its statements about climate change. The letter added, explaining UCS’s unwillingness to back the letter, “We don’t think that Sen. [Sheldon] Whitehouse’s call gives enough of a basis for scientists to sign on to this as a solid approach at this point.” [Reason]
Despite cautions like these, calls for a RICO investigation soon caught on among the political class and an investigation launched by Democratic state attorneys general has now aimed dragnet climate subpoenas at the Competitive Enterprise Institute and, thus far less directly, at nearly 100 advocacy, free-market, and university-based groups. “These include the U.S. Chamber of Commerce Foundation, the George Mason University Law and Economics Center, the American Enterprise Institute, the National Taxpayers Union Foundation, the Cato Institute [which publishes Overlawyered], the National Black Chamber of Commerce, the Federalist Society for Law and Public Policy Studies, the Heritage Foundation, and on and on,” writes Ronald Bailey. CEI responded to the subpoena here (in a brief written by Andrew Grossman) and here, and on May 13 Cohen Milstein, the private contingency-fee law firm representing the attorney general of the Virgin Islands, responded, reserving the right to compel compliance with the subpoena, which demands the production of ten years’ worth of documents.
Presidential candidates Hillary Clinton and Bernie Sanders are among public figures who have backed calls for a racketeering investigation of fossil fuel companies’ participation in climate debates. I have found no evidence that either has expressed concern about the direction in which such investigations are headed.
At the Federalist Society blog, Margaret (Peggy) Little, practicing attorney and director of The Federalist Society’s Pro Bono Center, has published a summary and analysis (parts one, two) of the ongoing criminal investigation of Exxon and its relations with dozens of advocacy groups, university scholars, trade associations and others with whom it is said to have collaborated in the supposedly improper cause of climate “denial.”
As one of the shrewdest analysts of the outrageous tobacco litigation saga, Little is particularly well situated to spot the parallels:
…Nearly every speaker [at the “AGs United for Clean Power” press conference] expressly cited the state AGs’ successful victory over the tobacco industry as a template for this action. One AG called upon other countries, states, communities and individuals to join in this effort. Why the public announcement before the facts come in? Why the global call to arms by this minority of state AGs?
An alert observer will recognize that this press conference follows right on the heels of drastic fiscal crises in many states. The state AGs’ wildly successful settlement with the tobacco industry in the 1990s –which incidentally also deployed foreign countries, dissenting states, cities, towns and health insurers to amass industry-busting claims– shifted a quarter of a trillion dollars to the states and their attorneys, leading to fiscal and governmental bloat that, to borrow a term from the climate activists, is unsustainable. New targets need to be identified and demonized so that this state regulatory confiscation from private industry can continue.
Another echo is the role of private law firms angling for what could be stupendously large contingency fees, a phenomenon that was the driving force of the state tobacco litigation. Little notes the role of prominent class action and tort firm Cohen Milstein, which “has a state AG practice headed by partner Linda Singer, former AG of the District of Columbia. The New York Times has profiled [its] solicitation of state AGs to bring class action and mass tort suits.” Another private attorney involved in the new affair, Matt Pawa, is likewise deep in contingency-fee representations of state attorneys general to pursue ostensibly governmental claims in which public officials would ordinarily be expected not to take a personal financial interest. If the AGs’ press conference was characterized by “hot,” accusatory, prejudicial rhetoric more often associated with plaintiff’s lawyers than with professional prosecutors, this might be why, Little notes.
She also makes clear the deep political illegitimacy and unaccountability of the regulation-through-litigation Fourth Branch these suits are intended to set up:
These extortionate suits are cynically Made to Settle. Professor G. Robert Blakey, a RICO consultant engaged by the Department of Justice to plan the federal tobacco lawsuit, frankly admitted, “this case is not made to win, it’s made to settle.” Both the state and its contingency fee outside financiers are thus in a position to reap enormous rewards with no risk of judicial precedents that would stem the tide of other, like initiatives against other industries. A state is a subsidized political plaintiff, driven by interest groups and ideology and its officers’ political ambitions; it can afford to bring a weak case and pursue it more vigorously than could any private plaintiff. Further, the arsenal of remedies at its disposal—consent decrees, injunctive relief, enforcement powers available under its consumer protection, trade practices and antitrust statutes—are simply not available to a private tort plaintiff. All of which underscores why these contingency arrangements violate the targets’ due process rights.
I wrote a whole book in 2003 — The Rule of Lawyers — on the pretensions of this emerging Fourth Branch of litigators and why they were not consistent with American self-government. For a while — as one after another attempt at a “next tobacco,” from guns to soft drinks, failed to take off — it looked as if maybe our system had learned the lesson and that the scandals would not repeat. If only that were so!
- “…the open, naked promise to use prosecutorial powers as a political weapon is a prima facie abuse of office. In a self-respecting society, every one of those state attorneys general would have been impeached the next day.” [National Review editorial]
- Lefty foundations funded investigative report that kicked off the prosecute-climate-deniers push, and even funded the group that then gave an award to that ostensibly independent report [Jon Henke, earlier on Columbia School of Journalism role here and here; Jillian Kay Melchior on Inside Climate News]
- Grand public announcement by attorneys general and former Vice President Al Gore made no mention of huddles with Rockefeller philanthropies that led up to it [Reuters; summaries of conversations via pro-CEI public records request]
- Major angle not yet widely publicized is that ALEC, hugely demonized on Left, likely to be in cross hairs: “In his remarks, Maryland Attorney General Brian Frosh made a point of adding … [the] American Legislative Exchange Council as potential targets.” [Climate Investigations]
- What’s private class action law firm Cohen Milstein doing in the middle of all this? Three guesses [National Review editorial; note “place of production” commanded in subpoena text]
- “Climate Investigations” website seeks to promote idea of giving private lawyers what could prove wildly lucrative contingent-fee role in crusade against climate deniers; note that such private lawyers not only drove tobacco Medicaid recoupment litigation from the start, but (a tale told in Chapter 1 of my book The Rule of Lawyers) helped shape the epic corruption of that tobacco caper;
- Reactions by the targets: a statement from incoming CEI president Kent Lassman vows to fight; “Exxon Fires Back at Climate-Change Probe” [WSJ; AP/U.S. News via Virgin Islands Free Press on move to quash subpoena]
- “Federal law makes it a felony ‘for two or more persons to agree together to injure, threaten, or intimidate a person in any state, territory or district in the free exercise or enjoyment of any right or privilege secured to him/her by the Constitution or the laws of the Unites States, (or because of his/her having exercised the same).'” It doesn’t exempt state attorneys general [Glenn Reynolds, USA Today]
- Cohen Milstein contracts with attorney general on opioid claims: “New Hampshire’s fleet of private pirate lawyers” [editorial, Manchester Union-Leader] Transparency in Private Attorney Contracting (TiPAC) legislation would help [Tiger Joyce] New Louisiana AG Jeff Landry cancels Buddy Caldwell contracts with outside law firms [Louisiana Record] States with governor-appointed AGs have seen fewer scandals than the majority in which the post is elected [Phil Goldberg, RCP]
- Judge declines to dismiss Newtown families’ suit against rifle maker Remington Arms, PLCAA notwithstanding [Connecticut Post] Sandy Hook gun lawsuit “almost surely won’t succeed, nor should it.” [USA Today editorial] More: David French [extremely narrow ruling went to jurisdiction only, PLCAA as bar to recovery explicitly not at issue]
- Sen. Dick Durbin, long a guardian of trial lawyer interests, leads opposition to federal bill on transparency in asbestos claims [Illinois Business Daily]
- Judge tosses one wrongful death suit against Porsche over Paul Walker crash, another still pending [EOnline, earlier] GM ignition bellwether trials going exceptionally badly for plaintiffs as judge dismisses all but one claim in spun-out-on-black-ice case [Daniel Fisher]
- Litigation destroys business confidentiality and that’s by design [Steve McConnell, Drug and Device Law]
- “Justice Scalia’s Product Liability Legacy” [Anand Agneshwar and Emily M. May (Arnold & Porter), Lexology]
- After State Farm defeats hailstorm claim, judge threatens to sanction Texas attorney Steve Mostyn [Southeast Texas Record]
- Med mal something of a regional problem: nearly half of payouts are in Northeast, with New York alone paying out more than the entire Midwest [New Jersey Civil Justice Institute on Diederich Healthcare analysis] “Neurosurgeons were 50% more likely to practice defensive medicine in high-risk states compared with low-risk states” [Smith et al., Neurosurgery via NJCJI]
- New Paul Nolette book on state attorneys general Federalism On Trial includes history of suits led by New York’s Eliot Spitzer to redefine as “fraud” widely known drug-pricing practices that Congress had declined to ban or otherwise address. The resulting lucrative settlements also earmarked money to fund private critics of the pharmaceutical industry;
- City of Chicago signs on to one of the trial bar’s big current recruitment campaigns, suits seeking recoupment of costs of dealing with prescription opioid abuse [Drug & Device Law; earlier here, here, here]
- We here in Washington, D.C. take very seriously any violations of HIPAA, the health privacy law. Just kidding! If a union supporter pulls information from an employee medical database to help in an organizing drive, that might be overlooked [Jon Hyman on National Labor Relations Board administrative law judge decision in Rocky Mountain Eye Center]
- “Preferred Care defendants respond to New Mexico Attorney General’s lawsuit, argue it was filed at urging of Cohen Milstein law firm” [Legal NewsLine]
- Philadelphia police run warrant checks of hospital visitor lists, and as a result many persons with outstanding warrants avoid going to hospitals. So asserts sociologist Alice Goffman in her book On the Run, but the evidence is disputed [Sara Mayeux last August, Steven Lubet in review challenging the book more broadly on ethical and factual grounds, Goffman’s response]
- Making contraceptive pill available over the counter without prescription should please supporters of birth control access, right? Funny you should ask [Elizabeth Nolan Brown, Reason, earlier]
- Mississippi community rallies behind 88 year old doctor investigated by licensure board for practicing from his car [AP]
- Pennsylvania: “Kill deal between Attorney General’s office and law firm, nursing homes ask court” [Harrisburg Patriot-News; earlier on AG Kathleen Kane; related on law firm of Cohen Milstein, on which earlier]
- Hazards of overwarning in the wired hospital: “2,507,822 unique alarms in one month in our ICUs, the overwhelming majority of them false.” [Robert Wachter, Medium]
- JAMS arbitrator, a retired California Supreme Court judge, resists subpoena seeking explanation of settlement allocation decisions among Prempro clients of Girardi Keese [National Law Journal; see also from way back]
- Reports of VA-scandal retaliation raise question: do all the HIPAA laws in the world protect us from persons in high places wishing to pry into our medical records with ill intent? [J. D. Tuccille, Reason]
- New York Attorney General Eric Schneiderman charged that 79% of herbal supplements lacked appropriate DNA, but that claim itself turns out to be hard to substantiate [Bill Hammond, New York Daily News]
- Nurses’ gallows humor defended against That’s-Not-Funny Brigade [Alexandra Robbins, Washington Post]
- ObamaCare challenge: D.C. Circuit vacates Halbig decision for en banc rehearing [Roger Pilon, earlier]
- ACLU and SEIU California affiliates oppose trial lawyers’ higher-damages-plus-drug-testing Proposition 46 [No On 46, earlier] As does Sacramento Bee in an editorial;
- Rethinking the use of patient restraints in hospitals [Ravi Parikh, Atlantic; legal fears not mentioned, however]
- Certificate of need regulation: “I didn’t know the state of Illinois had a standard for the maximum permissible size of a hospital room.” [John Cochrane]
- In China, according to a study by Benjamin Liebman of Columbia Law School, hired malpractice mobs “consistently extract more money from hospitals than legal proceedings do” [Christopher Beam, The New Yorker]
- Overview of (private-lawyer-driven) municipal suits on painkiller marketing [John Schwartz, New York Times, earlier] More: Chicago’s contingency deal with Cohen Milstein on opioid lawsuit [LNL] More: Rob Green, Abnormal Use.
- “So In The End, The VA Was Rewarded, Not Punished” [Coyote]
- New Hampshire lottery: after Granite State’s MTBE contamination suits pays off big, Vermont files its own [WLF Legal Pulse]
- Supreme Court declines to review various cases arising from Florida’s Engle tobacco litigation [Lyle Denniston, SCOTUSBlog, earlier] “U.S. Supreme Court Rejects Fen-Phen Lawyers’ Appeal of $42M Kentucky Verdict” [Insurance Journal, earlier]
- In action against five drug firms over opioid marketing, California’s Santa Clara County partners with law firms Robinson Calcagnie, Cohen Milstein, and Hagens Berman, marking at least the tenth time the county has teamed up with outside law firms to file suits [Legal NewsLine; earlier on Chicago’s involvement in painkiller suit]
- Lester Brickman on fraud in mesothelioma litigation [SSRN] “Plaintiff Lawyer Offers Inside Look At `Institutionalized Fraud’ At Asbestos Trusts” [Daniel Fisher]
- “‘Light’ cigarette case vs Huck’s continues after 9 years; Two current judges had been plaintiff’s counsel” [Madison Record, ABA Journal]
- “If honesty in the judicial system means anything, it means proceeding with candor before the tribunal, which plaintiffs’ counsel did not do during the removal proceedings.” [dissent in Peter Angelos Cashmere Bouquet asbestos case, Legal NewsLine]
- Report on products liability and the driverless car [John Villasenor, Brookings, earlier]