- Research by Todd Henderson et al. suggests that lawyers may often do well as CEOs, and anticipating and reducing litigation risk may be a key mechanism [Stephen Bainbridge]
- Canada: Couple sues neighbors for $2.5 million for copying their house’s architecture [Rain Noe, Core77]
- Abraham Lincoln on public choice and the aligning of interest with ethical duty [David Henderson]
- Redistricting, Anne Arundel county executive allies with trial lawyers to file opioids suit, Baltimore police, Montgomery County minimum wage in my latest Maryland policy roundup [Free State Notes]
- Black smokers in the U.S. are more likely than whites to prefer menthol, and prohibitionists frame foiling their wishes as a matter of racial justice [Christian Britschgi]
- Here come the trustbusting conservatives back again, no more convincing this time around [Steven Greenhut]
State attorneys general are teaming up with the tort bar in an alliance against opioids makers that’s all about the settlement prospects, writes Margaret Little at Law and Liberty:
The Financial Times has predicted a “tidal wave” of litigation that will snowball into a global settlement. Once an industry finds itself in a position where it faces a plaintiff at every level of government in nearly every state, cities, towns, counties and states jostle to put their claims into suit to get a piece of the action, “particularly when it doesn’t cost politicians anything,” as Richard Ausness, a professor at the Kentucky College of Law, told the FT.
Which leads to the heart of the question. Any settlement will likely follow the template of the tobacco Master Settlement Agreement, a quarter of a trillion-dollar wealth transfer that bloated state governments, levied unlegislated and cruelly regressive taxes on smokers, and sent $20 billion in unappropriated public money to the state AGs’ favorite donors: the mass-tort trial lawyers who have become government-financed Lawyer Barons.
A similar settlement on opioids would temporarily ease fiscal crises in the many states that have frittered away their tobacco-settlement money; but it would only encourage more such lawless and unlegislated regulation of other targets. Furthermore, it will lead to higher pharmaceutical prices and higher healthcare costs and premiums, in a process that is utterly opaque to the public, taxed without representation to enrich the lawyers (many of them former state Attorneys General stepping into a self-engineered path to personal wealth) and the governments with which they are in league.
Read the whole thing here.
P.S. Esme Deprez and Paul Barrett of Bloomberg on wheeler-dealer Mike Moore.
- “The Impropriety of Punitive Damages in Mass Torts” [James A. Henderson Jr., forthcoming Georgia Law Review/SSRN via Stephen McConnell, Reed Smith/JD Supra]
- “Will SCOTUS Ruling Affect Philadelphia Court, Where 94% Of New Plaintiffs Are From Out Of State?” [Nicholas Malfitano, Penn Record/Forbes, earlier on Bristol-Myers Squibb v. Superior Court]
- Time for asbestos trusts to do what’s right [Christine Biederman, The Hill]
- “Google’s $8.5m class-action privacy payout goes to: Lawyers’ alma maters, web giant’s pals” [Kieren McCarthy, The Register on Ninth Circuit settlement approval]
- European Court of Justice should take lesson from American courts which after relaxing rigor of causality scrutiny, and seeing baseless payouts multiply, have since been on a Daubert rebound [Theodore Dalrymple, Law and Liberty; Marilyn Moberg and Kathryn Bond, Drug and Device Law]
- Law firm gold rush for opioids-recoupment suits continues as New York counties sign up [Steve Lieberman, Journal News (Rockland County, N.Y.]
- What if law firms advertising about drugs had to live with the same set of rules as drug firms advertising about drugs? [Beck, Drug and Device Law]
- Jury: no injury damages for testosterone-gel plaintiff, but lawyer got us upset at AbbVie so here’s $150 million anyway [Lisa Schencker, Chicago Tribune]
- “Plaintiff’s design defect claim was that the defendant shouldn’t have used ibuprofen at all, but rather [an alternative compound] even though the FDA has not approved [that compound] for sale in the United States.” That won’t fly even in California [Beck]
- Sky-high prices: “The pharmaceutical market is anything but free at present” [Marc Joffe, Reason]
- Opioids epidemic poses a policy challenge but no time to panic [Jeffrey Singer/Cato, related podcast, op-ed, panel; an ACA angle?]
- “Gene editing isn’t about designer babies, it’s about hope for people like me” [Alex Lee, Guardian]
Law enforcement officials in some states are seeking warrantless access to prescription databases. A New Jersey bill “would require officials to ‘certify’ that they are engaged in a specific investigation,” seeking to calm fears that enforcers will begin trawling data for people to investigate. Rhode Island Gov. Gina Raimondo has already signed a similar bill. “In California, the Supreme Court ruled recently that the state Medical Board can dig through prescription drug records without a warrant or subpoena.” [Associated Press via Scott Shackford, Reason]
As the Wall Street Journal reports, former Mississippi attorney general and longtime Overlawyered favorite Michael Moore has been collaborating with Ohio Attorney General Michael DeWine, with other elected government attorneys, and with other trial lawyers to seek lift-off of suits against painkiller makers and distributors. The headline was “Lawyers Hope to Do to Opioid Makers What They Did to Big Tobacco,” which got several of us going on Twitter:
Parlay sweetheart attorney general contracts into multi-billion-$-fees? https://t.co/t9OQ2zupwm
— Walter Olson (@walterolson) July 24, 2017
Which in turn played off Jonathan Adler’s:
Create a highly profitable cartel that funds state projects & is protected by federal regulations? https://t.co/2Vxf9ujp2W
— Jonathan H. Adler (@jadler1969) July 24, 2017
And Gabriel Malor’s:
Get astoundingly rich with the help of Congress? https://t.co/VUxoX9bC6P
— Gabriel Malor (@gabrielmalor) July 24, 2017
Mine drew a number of responses, including this from Bloomberg View business columnist Joe Nocera:
Damn straight! That's the business model.
— Joe Nocera (@NoceraBV) July 24, 2017
Don't forget: …and actually secure the future of the manufacturers, with the consumers the only ones who lose anything.
— Carl V Phillips (@carlvphillips) July 24, 2017
Woo Hoo! I can't wait until I get to tell a cancer patient all I can give her is a Tylenol! ?
— Bona Felis (@scsloan01) July 25, 2017
In a more conventional op-ed vein, there’s this from Tiger Joyce.
- Entrepreneurs launch plaintiff’s insurance to cover costs of pursuing litigation, not quite same thing as the “legal expense insurance” commonly found in loser-pays jurisdictions [ABA Journal]
- More on the class action procedure case Microsoft v. Baker, from the just-ended Supreme Court term [Federalist Society podcast with Ted Frank, earlier]
- Why Bristol-Myers Squibb, the Supreme Court case on state court jurisdiction, “is one of the most important mass tort/product liability decisions ever” [James Beck/Drug & Device Law, earlier]
- Sandy Hook massacre: “Newtown And Board Of Education Seek Dismissal Of Wrongful Death Lawsuit” [AP/CBS Connecticut]
- Pennsylvania: “Evidence-Manipulation Claims Dog Asbestos Lawyer” [Lowell Neumann Nickey, Courthouse News] “California’s Latest Litigation Invitation: A Duty to Protect Against ‘Take-Home’ Exposure” [Curt Cutting, WLF]
- It’s almost as if trial lawyers were in the driver’s seat of these ostensibly public actions: Tennessee counties’ opioids suit also seeks to strike down the state’s tort reform law [Jamie Satterfield, Knoxville News-Sentinel]
Plaintiffs sued a New Mexico pharmacist for selling them opioids, resulting in their addiction. One big problem, however: “the plaintiffs had conspired with a nurse practitioner to write up fraudulent prescriptions.” And New Mexico adheres to a rule followed by various states in various forms known as the in pari delicto rule. It “is based on a public policy to preclude anyone who injures him or herself in the course of criminal activity from recovering in tort for those injuries. Put another way, perhaps more appetizing for those of you who delight in legal jargon, criminal conduct is an intervening act that cuts off liability.” [Stephen McConnell, Drug & Device Law]
They capitalize on widespread public anger and frustration at the addiction epidemic, but face formidable legal hurdles — among them the fact that the marketing practices and language the suits assail as unlawful were often specifically approved by the federal Food and Drug Administration. Much impetus for the suits comes from private law firms that pitch the actions to governments as free, while setting themselves up for gigantic contingency fees after the eventual settlement. [Nate Raymond, Reuters]
- 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.