- For thee but not for me? Lawprof proposes immunizing mass tort litigators from RICO liability [Mass Tort Litigation Blog]
- Some reasons, even aside from PLCAA, the Sandy Hook lawsuit against gunmakers is so weak [Jacob Sullum]
- One welcome, overdue development that deserves more attention than we’ve given it: federal courts adopt rules curtailing pretrial discovery [Institute for Legal Reform interview with former Colorado justice Rebecca Love Kourlis; Joe Palazzolo and Jess Bravin, WSJ]
- Cloudy in Texas, with a chance of $1 million lawsuits blaming broken floor tiles on falling objects [Southeast Texas Record via Texans for Lawsuit Reform; Hidalgo County]
- Billboards hawked Kentucky disability practice: “the law has finally caught up with ‘Mr. Social Security.’” [Louisville Courier-Journal]
- Wall Street Journal covers trend of big plaintiff’s firms teaming up with more city governments to file “affirmative litigation” [WSJ] We were on this trend as early as the year 2000 [San Francisco and Philadelphia launch such operations in wake of tobacco settlement). On county governments as cat’s-paws for trial lawyers in lead paint, opioid, and other mass tort cases, see coverage of California’s Santa Clara County here, here, etc., and on Orange County here, here, etc.
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!
“Today a US District Court ruled in favor of Americans for Prosperity Foundation’s lawsuit against California Attorney General Kamala Harris, ruling that her demands for the Foundation to hand over its list of members and supporters is unconstitutional.” [AFP] We’ve repeatedly covered Harris’s unprecedented drive to demand disclosure of donor lists by nonprofits that carry on activities in California, a step likely to lead to private and public retaliation against individuals and groups revealed to have donated to unpopular or controversial causes.
As the WSJ notes in an editorial, U.S. District Judge Manuel Real “declared her disclosure requirement an unconstitutional burden on First Amendment rights,” finding that there was scant evidence the disclosures were necessary to prevent charity fraud, that (contrary to assurances) her office had “systematically failed to maintain the confidentiality” of nonprofits’ donor lists, some 1,400 of which Harris’s office had in fact published online. As for retaliation against donors, “although the Attorney General correctly points out that such abuses are not as violent or pervasive as those encountered in NAACP v. Alabama or other cases from [the civil rights] era,” he wrote, “this Court is not prepared to wait until an AFP opponent carries out one of the numerous death threats made against its members.”
An ally of the plaintiff’s bar and unions, Harris recently surfaced as an apparently key player in the alliance of state attorneys general intent on using criminal investigatory powers to probe so-called climate denial at non-profit research and advocacy groups as well as at energy companies like ExxonMobil. That makes at least two episodes in which Harris has signaled interest in unprecedented and aggressive steps to pry open the internal workings of private advocacy organizations that take positions adverse to hers. Harris is a leading contender in the Democratic Senate primary to succeed California Senator Barbara Boxer.
Update: Now expanded and adapted into a longer post at Cato.
- “…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]
Bethesda Magazine profiles David Trone, whose Total Wine and More chain has helped introduce or reintroduce price-cutting, the negotiating of quantity discounts from vendors, and other advances in the business model for alcohol sales. Along the way, after infuriating competitors who were protected by existing state regulatory arrangements, Trone has been arrested three times, targeted by a Pennsylvania attorney general who was himself later sentenced to prison, subjected to grand jury proceedings at which allied merchants were urged to sever ties with him, and much more, which culminated in getting most of the charges thrown out and paying money to settle others. He spent millions on legal fees. After bad regulatory and legal experiences in Pennsylvania and New Jersey, Trone shifted to a new strategy, part of which has involved generous campaign contributions: “So generally what we do now when we enter a new state is hire a lobbyist, hire a great legal team, and go meet the regulators. It’s preemptive, 100 percent.” Now he’s running for Congress.
- Washington Post “Fact Checker” Glenn Kessler awards Three Pinocchios to prominent Senate Democrats for claiming their body is constitutionally obligated to act on a Supreme Court nomination [earlier]
- George Will argues that even though the Constitution does not constrain them to do so, there are strong prudential reasons for Senate Republicans to give nominee Merrick Garland a vote [Washington Post/syndicated] A different view from colleague Ilya Shapiro [Forbes]
- Garland is known in his rulings for deference to the executive branch; maybe this president felt in special need of that? [Shapiro on Obama’s “abysmal record” heretofore at the Court; Tom Goldstein 2010 roundup on Garland’s jurisprudence, and John Heilemann, also 2010, on how nominee’s style of carefully measured liberal reasoning might peel away votes from the conservative side]
- Litigants’ interest in controlling their own rights form intellectual underpinnings of Antonin Scalia’s class action jurisprudence [Mark Moller, first and second posts] “With Scalia gone, defendants lose hope for class action reprieve” [Alison Frankel/Reuters]
- OK for private law firms hired to collect state debt to use attorney generals’ letterhead? Sheriff v. Gillie is FDCPA case on appeal from Sixth Circuit [earlier]
- Murr v. Wisconsin raises question of whether separate incursions on more than one parcel of commonly owned land must be considered together in determining whether there’s been a regulatory taking [Gideon Kanner]
“A federal appeals court in New York has ordered a lawsuit by a former attorney with Bernstein Litowitz unsealed, saying the public has the right to see allegations the prominent class-action firm paid an attorney with connections to the Mississippi Attorney General Jim Hood’s office more than $100,000 to help secure work with the state.” [Daniel Fisher/Forbes] “When he had protested the unnecessary project given to [assistant attorney general DeShun] Martin’s wife, [Bruce] Bernstein says he was told by a fellow partner, ‘Do you ever want us to work with Mississippi again?'” [John O’Brien/Legal NewsLine] The allegations in the lawsuit, which was later settled, were never tested in court and the law firm denies wrongdoing, saying the suit had made “sensational, unfounded accusations.” [Alison Frankel/Reuters]
The model Transparency in Private Attorney Contract (TiPAC) Act, already enacted in more than a third of the states, are meant to shine light and impose basic controls on the cozy arrangements by which private attorneys get themselves hired by state attorneys general to file litigation on behalf of state interests, often on contingency fee. Lawyers in these arrangements are often found to contribute to the campaigns of the AGs that hire them. Typical provisions of the reform package “mandate public bidding, require the posting of contracts on websites, limit attorney’s fees, demand that firms keep appropriate records, and mandate complete control of the litigation by the government.” [Phil Goldberg, Real Clear Politics]
New York Attorney General Eric Schneiderman is pursuing an investigation of the Exxon Corporation in part for making donations to think tanks and associations like the American Enterprise Institute and American Legislative Exchange Council, which mostly work on issues unrelated to the environment but have also published some views flayed by opponents as “climate change denial.” Assuming the First Amendment protects a right to engage in scholarship, advocacy, and other forms of supposed denial, it is by no means clear that information about such donations would yield a viable prosecution. Which means, notes Hans Bader of the Competitive Enterprise Institute, that the New York probe raises an issue of constitutional dimensions not just at some point down the road, but right now:
A prolonged investigation in response to someone’s speech can violate the First Amendment even when it never leads to a fine. For example, a federal appeals court ruled in White v. Lee, 227 F.3d 1214 (9th Cir. 2000) that lengthy, speech-chilling civil rights investigations by government officials can violate the First Amendment even when they are eventually dropped without imposing any fine or disciplinary action. It found this principle was so plain and obvious that it denied individual civil rights officials qualified immunity for investigating citizens for speaking out against a housing project for people protected by the Fair Housing Act.
In another case, in which a company had been sued seeking damages over its participation in trade-association-related speech, a federal appeals court found that the pendency of the lawsuit all by itself caused enough of a burden on the firm’s speech rights that the court used its mandamus power to order the trial judge to dismiss the claims, a remarkable step.
Moreover, Bader writes, a string of federal precedents indicate that the constitutional rights Schneiderman is trampling here are not just Exxon’s but those of the organizations it gave to, which have a right to challenge his action whether or not the oil company chooses to do so:
These groups themselves can sue Schneiderman under the First Amendment, if Schneiderman’s pressure causes them to lose donations they would otherwise receive. Government officials cannot pressure a private party to take adverse action against a speaker.
Meanwhile, writing at Liberty and Law, Prof. Philip Hamburger of Columbia Law School takes a different tack: the subpoenas imperil due process and separation of powers because they issue at the whim of Schneiderman’s office. Earlier ideas of constitutional government “traditionally left government no power to demand testimony, papers, or other information, except under the authority of a judge or a legislative committee.” In more recent years executive subpoena power has proliferated; so has the parallel power of lawyers in private litigation to demand discovery, but the latter at least in theory goes on under judicial supervision that can check some of its abuse and invasiveness. Extrajudicial subpoenas by AG offices are particularly dangerous, Hamburger argues, because of their crossover civil/criminal potential: the targets do not enjoy a high level of procedural protection when “attorneys general claim to be acting merely in a civil rather than a criminal capacity,” yet the same offices can and do threaten criminal charges. Especially dangerous is New York’s Martin Act, a charter for general invasion of the private papers of anyone and anything with a connection to New York financial transactions.
An attorney general’s concern about fraud or the “public interest” is no justification for allowing him to rifle through private papers. When he thereby extracts the basis for a criminal prosecution, he evades the grand jury process. When he thereby lays the groundwork for a civil enforcement proceeding, he evades the due process of law, for there ordinarily is no discovery for a plaintiff until he commences a civil action. Even worse, when a prosecutor uses a subpoena to get a remunerative settlement, it is akin to extortion — this being the most complete end run around the courts.
[cross-posted from Cato at Liberty]