Florida’s overdue insurance-law reform on the “assignment of benefits” issue had a carve-out excluding auto claims, and Sunshine State lawyers continue to ride auto-glass cases for automatic fee entitlements. A report from the Florida Justice Reform Institute “shows nearly all auto glass lawsuits come from just 15 law firms — one firm, Malik Law, accounts for nearly 30 percent of all such lawsuits filed this year. Additionally, the vast majority of auto glass lawsuits are in Hillsborough and Orange counties. FJRI speculates that’s due to higher attorney fee awards in those counties.” [Drew Wilson, Florida Politics, earlier]
The prospect of settlement in the local government opioid cases is likely to result in a massive windfall into the many billions of dollars for private lawyers who signed up government clients; many of these lawyers are munificent political donors as well [Daniel Fisher, Legal Newsline] Earlier, an Ohio federal judge’s scheme for opioid “negotiating class” idea raised eyebrows [Alison Frankel/Reuters, Daniel Fisher/Legal Newsline; Jan Hoffman, New York Times] And at Harvard Petrie-Flom’s “Bill of Health,” Jennifer Oliva interviews Prof. Elizabeth Chamblee Burch on the opioids battle; Burch has been critical of self-dealing and angling for fees by lawyers in mass tort and multi-district litigation.
- Oakland jury tells Monsanto to pay $2 billion over claim that Roundup caused non-Hodgkin’s lymphoma, though the consensus among scientists is that it doesn’t [Tina Bellon, Reuters, earlier] Both sides in glyphosate trial bombarded Bay Area residents with local paid messaging; did Monsanto use geofencing to run ads on phones inside the courthouse itself? [Scott Greenfield, ABA Journal] Was judge in previous Bay Area glyphosate case swayed by P.R. campaign aimed at her? [Daniel Fisher, Legal NewsLine]
- “Police say Rodriguez was looking at her phone while walking across tracks” [AP/KOIN; Oregon woman suing rail companies over injury]
- Liability reform in Florida, so often stymied in the past, may have clearer road ahead with arrival of new state high court majority [John Haughey, Florida Watchdog]
- Not just mesh, either: “Top 5 Eyebrow-Raising Provisions in Mesh Attorneys’ Retainer Agreements” [Elizabeth Chamblee Burch]
- What is a Maryland General Assembly session without a special fast-track bill to hot-wire money to the benefit of asbestos lawyer Peter Angelos? But this year’s ran aground [Josh Kurtz, Maryland Matters; John O’Brien, Legal NewsLine]
- Car accident scam in eastern Connecticut reaped estimated $600,000 from as many as 50 staged crashes [AP/WTIC]
- Notwithstanding one-person-one-vote, some House districts do have unusually high or low populations. Main reasons: 1) Small states get rounded up or down; 2) demographics change in existing districts over 10-year Census cycle especially where new housing is being built [Hristina Byrnes, 24/7 Wall Street, I’m quoted]
- “‘Outrageously excessive’ requests for attorney fees can be altogether denied, 3rd Circuit says” [ABA Journal]
- Prenda copyright troll Paul Hansmeier, who also did mass ADA filings, pleads guilty to fraud and money laundering charges [Dan Browning, Minneapolis Star-Tribune via Mike Masnick, TechDirt]
- Thread: calm, factual discussion of Department of Justice brief on Title VII and gender identity [Popehat on Twitter]
- We’ve often discussed the high cost of the maritime-protectionist Jones Act, and now Cato has launched a Project on Jones Act Reform;
- “Landlord, a Fairfax, Va. mobile home park, imposes requirement that all adult tenants show proof of legal residence in the country; four Latino families (four men with legal status, four women who are illegal immigrants, and 10 U.S. citizen children) face fines, eviction. A violation of the Fair Housing Act? Could be, says the Fourth Circuit (over a dissent).” [IJ Short Circuit]
A Florida law allows persons who have undergone treatment after auto mishaps to sign over to the medical provider their right to sue their insurer under so-called PIP (personal injury protection) auto coverage. Under the provisions of this assignment of benefits (AOB) law, when the medical provider sues, it is entitled to one-way attorney’s fees (payable if it prevails, but not if it loses). These attorneys’ fees can dwarf the underlying sums being sued over — amounting to about $40,000 following a $790 win in one extreme case.
Now Florida attorneys are rolling out tens of thousands of AOB suits, many of small enough quantum that they can be filed in small claims court, even if the fee entitlement thereby triggered is not so small. In Volusia County, where small claims filings more than doubled to over 12,000 cases in 2017, “a single local law firm accounted for all of that increase — and then some — by filing 8,400 cases that year…. In one example, Advantacare of Florida, represented by Kimberly Simoes, filed a lawsuit against State Farm saying the company had not paid it for services it rendered to Stephen Smith. Advantacare was awarded $789.62 according to court files. Simoes was awarded $39,985 in attorney’s fees. Attorney Mark Cederberg was awarded $3,500 for his expert testimony regarding whether Simoes’ fees were reasonable. About a month after the attorney’s fees were awarded, Advantacare dismissed the lawsuit.” [Frank Fernandez, Daytona Beach News-Journal; earlier here and here]
As I have written elsewhere, the true two-way loser-pays systems that operate in most other legal systems take care to avoid the fee-escalation incentives that typify many one-way fee entitlement laws in the U.S. In particular, they tend to hold fee recoveries below actual outlays, and often decline to reimburse fees unnecessarily expended.
- “For instance, linalool, which is cited as a cockroach insecticide by the law firm, is found in plants like mints and scented herbs. While it’s also used in insecticides, it’s not poisonous for humans…” [Aimee Picchi, CBS News on suit claiming that LaCroix flavored water wrongly claims “all natural” status]
- “Appeals Court Strikes $8.7M in Legal Fees Based on Coupons in Class Action Settlement” [Ted Frank objection in ProFlowers and RedEnvelope class action; Amanda Bronstad, The Recorder] “Judge: Lawyers must justify fee requests for investor suits withdrawn vs Akorn over proxy disclosures” [Ted Frank objection in investor class action against Akorn Inc.; Jonathan Bilyk, Cook County Record]
- Study: class action lawsuits hit innovative companies the hardest [Alex Verkhivker, Chicago Booth on study by Elisabeth Kempf of Chicago Booth and Oliver Spalt of Tilburg University]
- “It’s Possible Woman Suing Over Sugar In ONE Protein Bars Never Actually Ate One” [Mary Ann Magnell, Legal NewsLine] And it is surprising how many reports continue to indulge the notion that typical consumer class actions spring from consumer grievance as opposed to lawyers’ entrepreneurial spotting of chances [ABA Journal on slack-fill suits]
- “DOJ Tells Court: Class Lawyers Already Got $60M in Fees. Now They Want More? [Marcia Coyle, National Law Journal on Native American farmer case] “noting that it was difficult for him to believe the few boilerplate documents entered into the record took hundreds of hours to create. ” [D.M. Herra, Cook County Record; Western Union text messages]
- “State Street settlement fiasco has Arkansas lawmakers questioning state’s role in class actions” [John O’Brien, Legal NewsLine, earlier here, etc.]
“You don’t auction professional services,” said Terry O’Rourke, assistant county attorney for Harris County (Houston), Texas, in charge of the opioid litigation, regarding the hefty 35% fee plus expenses the county has contractually agreed to pay to its contingency-fee outside counsel. Meanwhile, Dallas County for its representation in the same litigation “sets the contingent fee at the lesser of 12.5% or a “base fee,” calculated as four times hourly rates ranging from $900 an hour for partners to $200 for paralegals.” Some of the lawyers hired by Harris County have been active political donors: “It’s not uncommon for elected officials to hire their political allies for contingency fee work.”
Harris County’s contract with three outside law firms also requires the county to pay a fee based on its total recovery before expenses, while many municipal clients have negotiated more favorable deals in which the contingency fee is a percentage of the recovery after expenses….
The fact that some counties agreed to pay all of the expenses associated with their cases while others will pay fees net of expenses also shows a lack of sophistication and the potential for gamesmanship, [Cardozo emeritus professor and legal ethicist Lester] Brickman said. Lawyers in asbestos cases and securities litigation have been accused of double-billing and allocating the same expenses to multiple cases, and it can be difficult for individual clients to uncover wrongdoing unless they obtain records showing the overall distribution of expenses and recoveries – something lawyers rarely provide….
“Few of the cities and counties have required that the expenses claimed by the lawyers be detailed, including providing receipts and other supporting documents,” Brickman said. “There’s a possibility that some lawyers will emulate `The Producers’ and charge aggregate expenses that are in excess of actual expenses,” as has happened with asbestos litigation.
- Lancaster, Calif. Mayor R. Rex Parris proposes that city ban employers from requiring male employees to wear neckties [Laura Newberry, L.A. Times]
- Reasons to settle employment-law claims: “It’s Not the Damages, It’s the Attorneys’ Fees” [Daniel Schwartz]
- “Court Ruling Casts Constitutional Doubt on State and City Salary-Inquiry Bans” [Marc Dib, WLF; related here, here]
- I’m quoted hailing Supreme Court ruling on workplace arbitration [Jeff John Roberts, Fortune]
- Federal labor regulators versus local food truck operators [Ira Stoll]
- “What is happening to French labor law?” [Tristan Bird, On Labor]
The citizen-suit provision of the Clean Water Act (CWA) “allows any individual or organization that can establish standing to bring litigation against both private parties and the Environmental Protection Agency (EPA),” and incentivizes such suits by allowing filers to collect attorney’s fees. While some valuable enforcement actions may result, writes Marc Robertson for the Washington Legal Foundation,
it is not difficult for shakedown litigators to identify targets. One especially easy theory to advance in citizen-suit litigation is unlawful stormwater pollution. Stormwater regulations are exceedingly broad, and almost any business whose production process generates as a by-product anything that could be classified as a pollutant is vulnerable to a lawsuit. In many cases, attorneys’ fees can far exceed the damage from the alleged violations, leading companies to settle rather than litigate.
Recently, DOJ filed statements in three ongoing lawsuits that allege violations of stormwater discharge limits. … those suits are just three of more than 150 notices of violation submitted by this same law firm since 2016.
The similarly worded complaints, against industrial facilities in the Los Angeles area, alleged that pollutants at each facility washed off the property during rainstorms. While the government seldom exercises its right to intervene in citizen suits, DoJ in its three filings asked the court to examine whether the actions were truly an effective way to enforce the CWA or were serving other, less public goals. [Alfonso Lares v. Reliable Wholesale Lumber Inc. filing]
- “One-Sided Loser Pays Is the Worst of Both Worlds” [Mark Pulliam at his new blog Misrule of Law, and thanks for mention]
- My first piece for Quillette debunks claims of jump in rate at which gay men are being murdered in U.S.;
- Welcome news: Department of Justice memo advises DoJ attorneys to seek dismissal of meritless False Claims Act suits [Reuters, Federalist Society teleforum with Brandon Moss, Greg Herbers/WLF, Michael Granston memo]
- Empirical evidence on factors that lead to approval of low-quality patents [Timothy Lee, ArsTechnica, noting ideas for improving patent review process: (1) eliminate issuance fees, (2) limit re-applications, (3) give senior examiners more time per patent]
- “Will we see tort reform in the midterms?” [Joseph Cotto interview with me for San Francisco Review of Books, YouTube audio, 33:51]
- FSMA will drive many smaller farmers/foodmakers out of business, only question is how many [Baylen Linnekin, our earlier]