Franco v. Dow Chemical: special prosecutor for Girardi and Lack

by Walter Olson on June 10, 2008

Thomas Girardi, of Girardi & Keese, and Walter Lack, of Engstrom Lipscomb & Lack, are among California’s highest-profile plaintiff’s lawyers, often working closely together on litigation; perhaps their best-known case was the “Erin Brockovich” action against Pacific Gas & Electric, which I covered here and again here (highlight: the chartered Mediterranean cruise to which Girardi and Lack invited the three arbitrators soon after winning their split of $133 million in fees). Now both men are in a spot of bother with the Ninth Circuit, where a special master, senior circuit judge A. Wallace Tashima, has recommended hundreds of thousands of dollars in sanctions against them and where a three-judge panel (Kozinski, Reinhardt, Berzon) has just moved to appoint a special prosecutor to recommend further discipline in the case.

The imbroglio arose from a pesticide toxic tort which resulted in a Nicaraguan court’s $489 million judgment against defendants including Shell Oil, Dow Chemical and Dole Food, which plaintiffs had sought to enforce in this country. Amid mounting evidence that many of the various American and Nicaraguan lawyers involved had not been entirely (as they say) candid with the tribunal on a variety of points, the court has been trying to sort out who knew what when. “In his 65-page report, Tashima said Lack had a personal role in asserting repeatedly that a writ of execution made by the Nicaraguan judge to enforce the judgment in America was corrected to name Dole Food Co. and Shell Chemical Co. Girardi, meanwhile, allegedly allowed the misstatements to continue on his behalf without becoming directly involved.” (Evan Hill, “9th Circuit Taps Special Prosecutor for Toxic-Tort Case”, The Recorder, Jun. 10; latest order and March special master’s report from Judge Tashima, both PDF, via California Appellate Report). We understand that changes to California ethics rules have put a crimp in Girardi and Lack’s former practice of throwing luxurious events for judges, but even aside from that, we don’t think judges Tashima, Kozinski, Reinhardt and Berzon would probably have been making any plans to attend.