The Objections Detailed to ‘Pay to Play’ in Pennsylvania

Beck and Herrmann, the writers of the Drug and Device Law blog, report that “Defense Briefs Filed In Pennsylvania Contingency Prosecution Case”,, the case being Commonwealth v. Janssen Pharmaceutical, Inc.

This is the case where the Pennsylvania governor’s office hired the Texas law firm of Bailey, Perrin, Bailey to sue the pharmaceutical company for the marketing its drug, Risperdal, even as partner Kenneth Bailey was contributing $91,000 to the campaign of Gov. Ed Rendell. (Earlier post.) Janssen’s brief outlines many damning details:

#There was no competitive bidding for this contingent fee agreement.

# The contingent fee agreement gives Bailey Perrin the right to as much as 15% of everything that Pennsylvania might recover – allegedly many millions of dollars.

# In the contingent fee agreement, Pennsylvania gave up its right to settle, except on terms that assure Bailey Perrin is “reasonably” compensated.

# In the contingent fee agreement, contrary to usual practice, Pennsylvania waived Bailey Perrin’s conflicts of interest in simultaneously bringing the same suits against the same defendant on behalf of several other states (at least Louisiana, South Carolina, Arkansas, Mississippi, and New Mexico).

# In the contingent fee agreement, contrary to usual practice, Pennsylvania gave up its usual “control” of litigation brought in its name, retaining only a right to be “consulted.”

# Bailey’s last $25,000 contribution to the Governor’s campaign came one week after the executed contingent fee agreement was mailed by the OGC.

It’s a very detailed discussion, including citations of amicus briefs filed. We’ve previously noted the Washington Legal Foundation’s brief, but there’s also a brief from The Product Liability Advisory Council, Inc. ;  an amicus brief from the Chamber of Commerce; and another brief from the National Paint & Coatings Association.

They conclude:

As we’ve said before, there are far more of these government by contingent fee cases now than there used to be. The current recession only intensifies the pressure on states to look for sources of revenue beyond traditional taxes. And this case demonstrates that contingent fee lawyers care little, if at all, whether the programs they are purportedly representing get wrecked as a consequence of ill-conceived litigation. We hope these briefs can be a resource for fighting the good fight and stopping these egregious abuses of power.

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