I was on Marcus Lush’s Radio Live talk show out of Auckland this morning, discussing American employment law. My book The Excuse Factory: How Employment Law Is Paralyzing the American Workplace is available on Amazon.
Archive for 2008
Vioxx roundup, January 15-17
(Re-posted from Point of Law.)
CCALA: California schools “ripped off by litigation”
A report from California Citizens Against Lawsuit Abuse tells us: “In fiscal year 2005, three of California’s five largest school districts (listed above) paid $32.8 million in litigation costs – $8.0 million in verdicts and settlements and $24.8 million to outside counsel.”
I wish the report could have been more persuasive on the costs of litigation: when the unwritten math is done, Los Angeles Unified School District spent less than $40/student on legal costs in FY 2005, which is just under 1% of their budget. (Between 2002 and 2005, the average was $70/student/year, and a little less than 2% of the budget.) Is that too much? Relatively little? I’m hard-pressed to say (school officials do do actionable things that get themselves legitimately sued), and the report does not give us a baseline. Did something change to cause costs to go down by over 60% between 2002 and 2005, or was 2002 (or 2005) an outlier? The report does not indicate. Why does Elk Grove’s number include insurance costs and LAUSD’s doesn’t? (Is the report understating liability expense?)
Other data in the report are more interesting and troubling: “A 2004 study by Harris Interactive revealed that more than half of educators are concerned about the risks of legal challenges in their jobs and most educators feel the current legal climate has resulted in ‘defensive teaching,’” and a sizable majority feel that their own ability to do the job has been adversely affected by liability fears. And there is an extensive report of a lawsuit against a Napa school district dress code that led the school district to change the policy rather than spend a small fortune defending it in court—though that is a consequence more of federal courts’ meddling in school administration on purportedly constitutional grounds (Nov. 2003) than of anything state legislative action can do, if a reminder that presidential judicial appointments really matter.
“Bush Exempts Navy From Environmental Law”
After years of wrangling in the Ninth Circuit and lower courts over environmentalist efforts to block Navy anti-sub sonar exercises on the grounds that they disturb marine mammals, the issue may be resolved by a Presidential assertion of national security interest. (Pauline Jelinek, AP/Google, Jan. 16). Earlier coverage here. More: NYTimes.
Scruggs’s defense unsealed
It will evidently involve trying to get wiretap recordings excluded and seizing on a few of the (many, wandering and seemingly inconsistent) things that informant Tim Balducci said in conversation with Judge Lackey, some of which can be read as portraying Scruggs as out of the bribery loop — though such remarks can be read as simply reflecting the wish of a then conspirator to protect Mr. Scruggs’ plausible deniability, and although other remarks of Balducci’s point in the opposite direction. Coverage: Michael Kunzelman, AP/Biloxi Sun-Herald, Jan. 16; Anita Lee, “Attorney says Scruggs had no knowledge of Balducci’s attempted bribe; trial delayed”, Biloxi Sun-Herald, Jan. 16; Rossmiller, Jan. 16; Folo multiple guest posts). Update: David Rossmiller now has a more substantial post up analyzing the defense (Jan. 17).
The prosecution, for its part, on Tuesday unsealed some explosive new contentions in the case, alleging that mystery figure P.L. Blake, whose role in the disposition of tobacco settlement money has already been the subject of much discussion, was also a behind-the-scenes player in the attempted Lackey bribe. “In a Sept. 28 telephone call secretly tape-recorded by the government, [Steven] Patterson told Balducci his wife had just gotten off the phone with Blake, who had met with Scruggs, [Assistant U.S. Attorney Bob] Norman said.” (Jerry Mitchell, Jackson Clarion-Ledger, Jan. 16).
Damages: $0 settlement; Attorneys’ fees: $9.5 million
The lead plaintiff had claimed losses of $25 million, but settled for zero plus some corporate-governance changes that, as a Rutgers professor notes, probably would have happened anyway. But a settlement approved by a New Jersey federal judge in a shareholder suit against Schering-Plough awarded $9.5 million in attorneys’ fees, even applying a multiplier to lodestar hourly rates. [New Jersey Law Journal/law.com; In re Schering-Plough Corp. Securities Litigation, Case No. 2:01cv829 (D.N.J.)] Paying for those fees: shareholders, who also paid for what were likely multi-million dollar defense costs of litigation. Judge Katharine Sweeney Hayden, when certifying a single class in 2003, rejected arguments that there was an inherent conflict between class members that had already sold their stock and class members who continued to hold stock; she was appointed by Clinton in 1997.
Corzine vetoes unlimited noneconomic damages
Who says we never praise Democrats? Via Scheuerman, New Jersey’s Democratic governor Jon Corzine has vetoed a law that would have created unlimited noneconomic damages in wrongful death cases:
“[U]nlimited damages … could have a significant impact on state and local budgets, since government entities are not infrequently named as defendants in wrongful death suits, and there are similar concerns as the State undertakes efforts to attract and grow businesses here.”
“Unfortunately, I do not believe that this bill in its current form strikes a fair balance that would avoid using a strict monetary valuation of a person’s life while also addressing the adverse effect of allowing unlimited and unpredictable damages.”
He urged the Legislature to consider alternatives “granting more flexibility for courts to reduce excessive non-pecuniary damage awards and defining non-pecuniary damages less expansively.”
[NJ Law Journal/law.com; earlier: Jan. 9]
More about Joseph (“Joey”) Langston, part II
As a number of commentators have noted (e.g. Brett Kittredge @ Majority in Mississippi, Alan Lange @ YallPolitics), Booneville attorney Joey Langston, who just entered a guilty plea on charges of judicial corruption, is someone accustomed to throwing the weight of his pocketbook around in Mississippi politics. In particular, he has been among the biggest donors to incumbent Mississippi attorney general Jim Hood, even as Hood employed Langston and partner Tim Balducci on contract to handle the controversial MCI tax bill negotiations, with their resulting $14 million legal fees payable to Langston et al, and the potentially very lucrative Zyprexa litigation.
Equally interesting in some ways, however, are Langston’s activities on the national political scene. To take just one example: this CampaignMoney.com listing tabulates the top “527” contributions to a group called the Democratic Attorneys General Association, whose political and electoral mission is implied by its name. In the listing, two donors are tied for first place, with contributions of $100,000 apiece. One is the large Cincinnati law firm of Waite Schneider Bayless Chesley, associated with one of the country’s best-known plaintiff’s lawyers, Stanley Chesley. The other $100,000 contribution is from Joey Langston.
In presidential politics, Langston has recently been a repeat donor to the quixotic (and, since Iowa, defunct) campaign of Sen. Joseph Biden (D-Del.), a lawmaker whose high degree of seniority on the Senate Judiciary Committee makes him important to ambitious lawyers whether or not he ever attains the White House. When the Scruggs scandal was still in its early stages, the WSJ law blog (Dec. 10) noted that two key figures in the affair, Tim Balducci and Steve Patterson, were strong backers of the Biden campaign: “Their bet on Biden was that he wouldn’t win the presidency but would become Secretary of State under a Hillary Clinton administration, according to two people familiar with their thinking.” The Journal reprinted (PDF) an invitation to an Aug. 10, 2007 fundraising reception for Biden at the Oxford (Miss.) University Club, sent out above the names of six hosts, three of whom (Scruggs, Balducci and Patterson) were soon indicted. Scruggs, of course, is better known for his support of Mrs. Clinton, a fundraiser for whom he had to cancel after the scandal broke.
Campaign-contributions databases such as OpenSecrets.org and NewsMeat indicate that Langston has been a prolific and generous donor to incumbent and aspiring Senators across the country, mostly Democrats (Murray, Cantwell, Daschle, Nelson, etc.) but also including a number of Republicans who might be perceived as swing votes or reachable, such as Sen. Lindsey Graham (S.C.), Susan Collins (Me.), and Arlen Specter (Penn.)
Incidentally, some critics have intimated that Langston’s generous support to DAGA, the Democratic Attorneys General Association, should actually be interpreted as a roundabout gift to Hood, who was the beneficiary of interestingly timed largesse from DAGA. It does not appear, however, that any of the parties involved — Langston, Hood or DAGA — have acknowledged any connection between the timing of the donations (& welcome Michelle Malkin, David Rossmiller, YallPolitics readers).
[Second of a two-part post. The first part is here.]
More about Joseph (“Joey”) Langston, part I
Yesterday’s guilty plea by Booneville, Miss. attorney Joseph (“Joey”) Langston in the attempted improper influencing of a Mississippi state judge would be major news even if it had nothing to do with the state’s most famous attorney, Richard (“Dickie”) Scruggs. That’s because Langston and his Langston Law Firm have themselves for years been important players on the national mass tort scene. The firm’s own website, along with search engines, can furnish some details:
- Per the firm’s website, it has represented thousands of persons claiming injury from pharmaceuticals, including fen-phen (Pondimin/Redux), Baycol, Rezulin, Lotronex, Propulsid and Vioxx. It was heavily involved in the actions against Bausch & Lomb over ReNu contact lens solution (and its former #2 Timothy Balducci, the first to plead in the widening round of corruption scandals, won appointment to the steering committee of that litigation.)
- The Langston firm has represented thousands of asbestos claimants and says it has “significant” experience in the emerging field of manganese welding-rod litigation, also a specialty of the Scruggs law firm. The website AsbestosCrisis.com includes the Langston law firm in its listing of about thirty law firms deemed notable players on the plaintiff’s side of asbestos litigation (“Tiny firm founded by Joe Ray Langston powerhouse in Mississippi with 50-year roots in state political circles.”)
- Langston appeared to play a sensitive insider role for Scruggs in the largest and most lucrative legal settlement in history, the tobacco-Medicaid deal between state attorneys general and cigarette companies, the ethical squalor of which was a central topic of my 2003 book The Rule of Lawyers; as mentioned previously, when Dickie Scruggs routed mysterious and extremely large tobacco payments to P.L. Blake, he used attorney Langston as intermediary.
- Langston has repeatedly taken a high profile in the same fields of litigation as has Scruggs, including not only suits over asbestos, tobacco and welding rods but also two of Scruggs’s “signature” campaigns, those against HMOs/managed care companies and not-for-profit hospitals.
- Though the firm is better known for its plaintiff’s-side work, the Langston firm’s “national practice” page asserts: “The Langston Law Firm virtually defined the role of ‘Resolution Counsel’ in the modern era of jurisprudence. Prominent domestic and foreign companies facing massive litigation have turned to The Langston Law Firm to create winning strategies to save their companies.”
Many commenters (as at David Rossmiller’s) have noted that Langston appears to have drawn an unusually favorable plea deal from federal investigators, who are granting him remarkably broad immunity as to uncharged offenses, and not even stipulating that he give up all ill-gotten funds. Presumably this signals that they expect Langston’s cooperation to be unusually extensive and valuable. One hopes that this cooperation will include the full and frank disclosure of any earlier corruption and misconduct there may have been in all the past litigation in which Langston has been involved. In particular, tobacco, asbestos, and pharmaceutical litigation have all raised suspicions in the past because of instances in which forum-shopping lawyers took lawsuits of national significance to relatively obscure local courts — quite often in Mississippi — and proceeded to get unusually favorable results which paved the way for the changing hands of very large sums in settlement nationally. Were all these results achieved honestly?
Incidentally, and because it may confuse those researching the matter on the web, it should be noted that there is a second prominent Mississippi plaintiff’s lawyer who bears the same surname but has not been involved in the recent Scruggs scandals, that being Joey’s brother Shane Langston, formerly of Jackson-based Langston, Sweet & Freese. Shane Langston, whose name turned up often in connection with the “hot spots” of pharmaceutical litigation of Southwest Mississippi, has more recently been in the news over client complaints regarding alleged mishandling of expenses related to the Kentucky fen-phen litigation scandals. [Family relationship between the two confirmed 1/16 on the strength of emails from several readers.] (& welcome WSJ Law Blog readers)
[First of a two-part post. The second part is here.]
Suit: You kept me from jumping off the Empire State Building
Jeb Corliss is a professional stuntman and BASE jumper who has parachuted from the Eiffel Tower, the Golden Gate Bridge and the Petronas Towers in Kuala Lumpur, Malaysia, but apparently none of his stunts compared to the trauma of being forbidden from jumping off the Empire State Building in 2006: he’s sued for $30 million, complaining that the stress of being handcuffed to the railing (after security officers pulled him down as he was climbing over the safety railing) has caused “emotional distress” and “adrenal fatigue.” The suit is a counterclaim to a suit the building filed against Corliss (for an only slightly less implausible $12 million) meant to deter other jumpers from endangering third parties; a judge had dismissed reckless endangerment criminal charges on grounds that Corliss wouldn’t actually endanger anyone by jumping, a ruling the city is appealing. [NY Times City Room Blog]