Pay to Play and the Power of the Plaintiffs’ Bar

By August 20, 2009Briefly Legal

Dan Popeo of the Washington Legal Foundation writes in today’s Examiner about the power of the plaintiffs’ bar and “pay to play,” that is the practice of state attorneys general hiring law firms/campaign contributors to conduct the state’s litigation against companies. (“How trial lawyers became government’s ‘Fourth Branch’.”)

It’s not only AGs, though. Oral arguments are scheduled for Oct. 21before the Pennsylvania Supreme Court in the prominent case, Commonwealth v. Janssen Pharmaceutica, the state’s lawsuit against the subsidiary of Johnson & Johnson for its marketing of the antipsychotic drug Risperda.

Gov. Ed Rendell (D-PA) hired the Texas law firm of Bailey, Perrin, Bailey LLC to conduct the suit on a contingency basis, whose founder, F. Kenneth Bailey, contributed more than $91,000 in cash and airfare to the governor’s 2006 re-election campaign. (Philadelphia Inquirer coverage, and here’s the Supreme Court’s June 30th order providing for the court’s review of the legality of the state’s contingency contract.)

It’s seems like a straightforward conflict to begin with: The state farming out its authority to contingency attorneys whose interests — for example, maximizing the cash settlement — may directly conflict with the interests of the public. The Wall Street Journal in its July 28 editorial, “Pay to Sue on the Docket,” noted that the Supreme Court took the unusual step of agreeing to consider the contingency aspects before the case had even gone to trial.

The WLF has filed an amicus brief in Pennsylvania, challenging the awarding of the state contract without public bidding arguing that due process prohibits Pennsylvania from delegating the exercise of its sovereign powers to private counsel with a direct contingent financial interest in the outcome of the litigation. (The news release and brief.) The NAM and other business groups are also closely following this case and may weigh in, as well.

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