Overlawyered: Chronicling The High Cost Of Our Legal System

Is Oklahoma AG sure he’s got the right Johnson defendant?

Dawn Kopecki, CNBC:

SC Johnson, maker of Drano, Pledge and other household products, is threatening to sue Oklahoma Attorney General Mike Hunter for citing the company’s slogan in the state’s opioid lawsuit against an unrelated, yet similarly named, Johnson & Johnson.

“I am writing to demand that you retract your statements that have appeared in both national and local media citing the SC Johnson tagline, ‘A Family Company.’ If you do not, we will have no choice but to bring suit,” Johnson CEO Fisk Johnson said in a letter to Hunter released Tuesday.

S.C. Johnson says that even after it wrote the Oklahoma AG to warn him he was quoting the wrong company’s slogan, he went on national television and repeated the talking point.

Not to say anyone should be suing over this, but if AG Hunter didn’t know the difference between New Jersey-based pharma giant Johnson & Johnson, which he was suing for $ billions, and Racine, Wis.-based S.C. Johnson, the family-owned Johnson’s Wax company, it kind of makes my point about the demagogic populism fueling these cases. [earlier] And maybe also my point about how the private trial lawyers on contingency fee, whose expectation for a multi-billion-dollar payday will have to be met if the mass litigation is to settle, are the real brains of the opioid-suit operation.

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Sanders: I’d prosecute oil and gas executives over climate change

Vermont senator and presidential Bernie Sanders cites no criminal law that the executives violated, but he wouldn’t be the first champion of collectivism for whom the conviction was settled on first and the law found afterward. More: William Allison, Energy in Depth (in which I take issue with retroactive application of criminal law, and notions of “conspiracy” that do not make clear which underlying laws were involved).

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The Boston squeeze

Earlier this month a federal jury found two Boston city hall officials guilty of conspiracy to commit extortion after prosecutors proved that they told a concert promoter that unless it hired members of a union that had supported Mayor Marty Walsh, it wouldn’t get a permit for its event. [Jerome Campbell, WBUR, AP/CBS Boston, earlier here, here, here]

So far, so Boston. Even more characteristic of the city’s political culture: ten Boston city councilors put out a statement decrying the verdict. The really perfect touch? “Some 70 nonprofit organizations, representing environmental, LGBTQ, housing, senior, education, and civil rights advocates,” have also denounced the verdict, claiming that it interferes with “democracy.”

Veteran Boston Globe columnist Joan Vennochi calls it “bizarre” for these groups to “condon[e] threats from city officials as an acceptable standard for doing business in Boston”:

Supporters of Brissette and Sullivan argue that the case criminalizes advocacy. Suggesting that concert organizers hire union help might qualify as simple advocacy. But organizers of the Boston Calling concert were basically told there would be no permit unless they hired union labor. That’s wrong, and Brissette and Sullivan knew it. Joe Rull, the city’s former chief of operations, who testified under a grant of immunity, told the court that when Brissette wanted to employ that hardball tactic during a previous disagreement concerning the use of nonunion production workers he told him, “You can’t do that, it’s not legal.”

More from Josh McCabe:

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Oklahoma judge orders J&J to pay state $572 million over opioid sales

“A judge in Oklahoma on Monday ruled that Johnson & Johnson had intentionally played down the dangers and oversold the benefits of opioids, and ordered it to pay the state $572 million.” The state had asked for $17 billion. [Jan Hoffman, New York Times and sidebar on why J&J, the deepest pocket, was the only defendant left standing in the Oklahoma case; opinion; Paul Demko, Politico; Lenny Bernstein, Washington Post] Caleb Brown interviewed me for the Cato Daily Podcast:

For other skeptical views of the case, see Daniel Fisher, Legal NewsLine (“J&J had about 3% market share, sold abuse-resistant drugs, and Oklahoma didn’t present evidence of a single doctor who was misled by its marketing.”) and followup (problems with state’s legal theory), Jeffrey Singer/Cato, and Jacob Sullum, Reason (sweeping definition of public nuisance) and followup (other problems). [More: Jonathan Turley]

Particularly worth noting is Jacob Sullum’s account of the logical path traced by Judge James Hill in North Dakota in recently dismissing a suit against Purdue Pharma:

One of the claims against the company involved a public nuisance statute very similar to Oklahoma’s. Hill noted that “North Dakota courts have not extended the nuisance statute to cases involving the sale of goods.” He cited a 1993 case in which the Tioga Public School District #15 of Williams County, North Dakota, argued that the sale of acoustical plaster containing asbestos qualified as a public nuisance.

The U.S. Court of Appeals for the 8th Circuit, which handled the case because it involved an out-of-state defendant, observed that “North Dakota cases applying the state’s nuisance statute all appear to arise in the classic context of a landowner or other person in control of property conducting an activity on his land in such a manner as to interfere with the property rights of a neighbor.” The 8th Circuit worried about the consequences of venturing beyond that “classic context”:

To interpret the nuisance statute in the manner espoused by Tioga would in effect totally rewrite North Dakota tort law. Under Tioga’s theory, any injury suffered in North Dakota would give rise to a cause of action under section 43-02-01 regardless of the defendant’s degree of culpability or of the availability of other traditional tort law theories of recovery. Nuisance thus would become a monster that would devour in one gulp the entire law of tort, a development we cannot imagine the North Dakota legislature intended when it enacted the nuisance statute.

Hill said he “agrees with the reasoning of the Eighth Circuit in Tioga.” As in that case, he said, the state in its lawsuit against Purdue was “clearly seeking to extend the application of the nuisance statute to a situation where one party has sold to another a product that later is alleged to constitute a nuisance.” Hill added:

The reality is that Purdue has no control over its product after it is sold to distributors, then to pharmacies, and then prescribed to consumers, i.e. after it enters the market. Purdue cannot control how doctors prescribe its products and it certainly cannot control how individual patients use and respond to its products, regardless of any warning or instruction Purdue may give.

Judging from the cases cited by Judge Balkman, Oklahoma courts have not read that state’s nuisance law to cover situations like this either—until now.

 

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August 29 roundup

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California gender board quotas, cont’d

Securities and Exchange Commissioner Hester Peirce has some critical comments on the California legislation signed by outgoing Gov. Jerry Brown last year requiring corporations to adopt gender quotas in the composition of their board of directors. She notes that research may not support one of the law’s stated rationales, that of improving financial results through better corporate governance, and that the law proposes to “micromanage an aspect of corporate governance that corporations, boards, and shareholders seem perfectly capable of handling on their own.” Relatedly, if women directors have an effect on corporate governance that is any different from men’s, it may relate to factors other than their gender [Tyler Cowen on Alam, Chen, Ciccotello, and Ryan paper] More: Federalist Society teleforum with Anastasia Boden, Keith Paul Bishop on unanswered questions about the law’s application. Earlier, including the law’s doubtful constitutionality, here, here, and here.

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Ken White on faulty speech tropes

“If you’ve read op-eds about free speech in America, or listened to talking heads on the news, you’ve almost certainly encountered empty, misleading, or simply false tropes about the First Amendment,” argues Los Angeles litigator Ken White in an Atlantic essay. “Those tired tropes are barriers to serious discussions about free speech.” Among verbal gestures that help very little or not at all when you’re trying to establish whether particular speech is protected under current First Amendment law:

* “Not all speech is protected; there are exceptions to the First Amendment.” [true but usually not helpful]

* “This speech isn’t protected, because you can’t shout ‘Fire!’ in a crowded theater.” [see above; also, an empty rhetorical device deployed in a case that’s no longer good law]

* “Incitement and threats are not free speech.” [true, but regularly misapplied to speech that does not meet the law’s narrow definitions of these terms]

* “Fighting words are not free speech.” [same, even assuming that Chaplinsky v. New Hampshire (1942) is still good law]

* “Hate speech is not free speech.” [no, it mostly is]

* “Stochastic terrorism is not free speech.” [same]

* “We must balance free speech with [social good].” / “There is a line between free speech and [social evil].”

* “They do it in Europe!”

* “We talked to a professor and a litigator who said this is not protected speech.”

* “This speech may be protected right now, but the law is always changing.”

Watch and (if you’re like me) cheer as Ken dispatches them all.

[cross-posted from Cato at Liberty]

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Medical roundup

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