When Liaisons Become Litigation

By December 17, 2008Briefly Legal

The American Tort Reform Foundation’s latest “Judicial Hellholes” report adds a useful new chapter, a review of the unjust connection between politically ambitious state attorneys general and private attorneys they hire on a continency basis to sue business on behalf of the state. The short essay is entitled, “Dangerous Liaison.” Thesis:

[The] actions of a handful of state attorneys general also contribute to growing concerns in the business community about the ability of defendants to receive fair trials. This happens when what are essentially private lawsuits are filed, often in a plaintiff-biased local court, with the backing of the state government and a strong incentive to obtain the highest monetary award possible. It’s a system of legal kickbacks known as “pay to play,” wherein lawyers who contribute to the campaigns of the state’s highest ranking attorney can then get a contract for a piece of the action and, in some cases, develop the action themselves and get a go-ahead to pursue it in the state’s name.

Cited are examples of this undemocratic, abusive process in Mississippi, Ohio, West Virginia and Rhode Island, the last state being notable for the public nuisance suit against lead paint manufacturers, eventually thrown out by the state Supreme Court.

Having covered the R.I. lead-paint litigation, Jane Genova of the Law and More blog also follows cases involving ambitious politicians turning to contingency fee arrangements to sue business. She recently noted another case of private lawyers being hired on spec to do the state’s work in Pennsylvania. From “Contingency – Philly Judge allows it in govt case against BigPharma“:

The use of contingency in cases filed by government entities probably will eventually wind up in the U.S. Supreme Court – and sooner than later with the emboldened state attorneys general and plaintiff bar. 

The latest ruling on that controversial issue has been by a Philadelphia County Court of Common Pleas.  That state judge Howland Abramson gave his okay to the participation of private law firm Bailey Perrin Bailey of Houston in the lawsuit filed by Pennsylvania Governor Ed Rendell against Janssen Pharmaceuticals.  The firm is accused of off-labeling marketing of drug Risperdal. 

As John O’Brien reports in LEGAL NEWSLINE, the defendant objects to the use of contingency based on the argument of violation of due process.  O’Brien states, “The Due Process Clause requires Rendell to be guided by the sense of public responsibility for the attainment of justice, Janssen says. ‘The risk that Bailey Perrin’s financial stake in the outcome will affect government decision-making in connection with this action is real and serious.'”  A number of legal experts view the due-process argument as the strongest against contingency in cases filed by government entities.

Manufacturers are also closely watching a case in California where the county of Santa Clara used contingency fee attorneys in lead-related lawsuits against ARCO and Sherwin-Williams.

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