So wrote Boone Circuit Court Senior Judge William Wehr in a motion denying both Stan Chesley’s motion to dismiss a suit against him in the Kentucky fen-phen fee scandal. But, with plaintiffs’ summary judgment motion also denied, a jury will ultimately decide how much that “more” should be, and whether a fiduciary duty was broken. The same order denied a request by Melbourne Mills to reconsider the finding that a fiduciary duty was broken. Chesley’s attorneys state that he will pay back $7 million of his $20 million fee. (Jim Hannah, “Chesley made too much”, Cincinnati Enquirer, Apr. 5). Earlier: OL Mar. 26 and links therein. (Cross-posted at Point of Law.)
Posts Tagged ‘Kentucky fen-phen settlement fraud’
“Fen-Phen Zen”
Hey, I just write the American.com column about the Kentucky fen-phen fraud, not the headlines. Earlier on Overlawyered: Mar. 26 and links therein. (Cross-posted at Point of Law.)
March 26 roundup
- More fen-phen scandals: Possible smoking-gun email in Kentucky case (see Walter’s post today) came from Chesley firm computer; Vicksburg lawyer first attorney convicted in Mississippi fen-phen scam. [Courier-Journal via Lattman; Clarion-Ledger (h/t S.B.)] (Updated with correct Courier-Journal link.)
- Allegheny College found not liable by jury for student’s suicide; school raised issue of student privacy concerns. Earlier on OL: May 30; Dec. 7, 2004. [WSJ]
- Update on the tempered glass versus laminated issue earlier discussed in Overlawyered (Feb. 15, 2006; May 16, 2005; May 13, 2005, etc.) [LA Times]
- Massachusetts court rejects quack sudden acceleration theory. (See also Dec. 20, Aug. 7, etc.) [Prince]
- California bill would bar carpenters from school campuses. [Overcriminalized]
- New book: Antitrust Consent Decrees in Theory and Practice [Richard Epstein @ AEI]
- To be fair, I went to school with “young Mr Sussman, the boyish charmer”, and I don’t know how to pronounce “calumnies” either—it’s one of those words I’ve only seen written, and never heard spoken [Steyn; MSNBC]
NY Times on Ky. fen-phen scandal
We’ve been beating the drums on this one for a while (Mar. 6 and Aug. 25, 2006, Jan. 24, Feb. 14, Feb. 21, Mar. 19, 2007; Point of Law May 10, 2005) and it’s nice to see the Times’s Adam Liptak with a front-pager this weekend on the affair. The story begins by telling the story of what happened when W.L. Carter, one of the clients in the 440-member batch, went to pick up his check from the fen-phen settlement:
The check was, for starters, much smaller than he had expected. And his own lawyers threatened to retaliate against him if he ever told anyone, including his family, how much he had been paid. “You will be fined $100,000, you will go to jail and you will be sued,” Mr. Carter recalled them saying.
Liptak writes: “Legal experts said the fraud might be one of the biggest and most brazen in legal history.” Or at least one of the biggest and most brazen that’s come to light: batch settlements in mass tort cases are frequently so secretive in their details, and so carefully drawn up to repel inquiries from outsiders or from clients themselves about who got what, that we can at best speculate about whether the Kentucky scandal is an outlier. (“Fraud Inquiry Looks at Lawyers in Diet-Drug Case”, Mar. 22).
P.S. As Ted notes above, today’s Louisville Courier-Journal adds some new information about the alleged role played by Stanley Chesley’s Cincinnati law firm (Andrew Wolfson, “Court filing ties lawyer into diet- drug pay scheme”, Mar. 26; Lattman, Mar. 26).
Grand jury looking at Ky. fen-phen scandal
A grand jury is expected to hear testimony this week about the role of three Lexington lawyers in the now-infamous Kentucky fen-phen settlement (Feb. 14, etc.). “Frank Bentley IV, a lawyer representing [Cincinnati’s Stanley] Chesley, said he is not a target of the criminal investigation.” (Andrew Wolfson, “Grand jury to look at diet-drug attorneys”, Louisville Courier-Journal, Mar. 15). Last month one of the lawyers caught up in the scandal, William Gallion, said “that he did nothing wrong and that a lawsuit filed against him and others in the case is simply the result of ‘a cottage industry of lawyers who attack class-action settlements.'” (Andrew Wolfson, “Attorney denies wrongdoing”, Courier-Journal, Feb. 11).
“Will Sue For Food”, cont’d
Kentucky trial lawyers just won’t let up in their po-faced indignation about that innocuous cartoon in the state bar magazine (see Feb. 15 roundup). “‘The cartoon exhibits an indifference to the rights of all Kentuckians to access the justice system — the very system the KBA is charged with preserving on behalf of its members and their clients,’ Bowling Green lawyer Steve Downey, the immediate past president of the trial lawyer group, said in a letter to the bar association.” (Andrew Wolfson, “Trial lawyers find nothing funny in cartoon”, Louisville Courier-Journal, Feb. 19). David Lat covers the story (Feb. 20). What would have taken guts, I think, is for the Kentucky bar magazine to have run a cartoon making reference to the state’s deeply embarrassing fen-phen fee scandal. But let’s not hold our breath waiting for that.
Kentucky fen-phen scandal, cont’d
It just keeps getting juicier:
The attorneys accused of misappropriating more than $64 million from Kentucky’s fen-phen settlement initially withheld another $27.7 million, which they turned over to their clients only after the Kentucky Bar Association began investigating the case, newly filed court records show.
The additional payments also came after one of the lawyers — Melbourne Mills Jr. — discovered in January 2002 that the settlement was for $50 million more than the other two lawyers, William Gallion and Shirley Cunningham Jr., had told him, according to the records.
Mills was so angry that when Gallion showed up at his birthday party on Feb. 6, 2002, Mills called him “a thief” and insisted that more money be given to the clients, according to a deposition from Mills’ administrative assistant, Rebecca Phipps.
(Andrew Wolfson, “Lawyers held 2nd cache of diet drug settlement”, Louisville Courier-Journal, Feb. 11; Beth Musgrave, “Fen-phen ruling could come soon”, Lexington Herald-Leader, Feb. 13). Earlier coverage: Mar. 6 and Aug. 25, 2006, Jan. 24, 2007, etc.
Lawyer: guess maybe we burned that fee documentation
Sensational new disclosures in the scandal (Mar. 6, Aug. 25, etc.) over self-dealing by lawyers in divvying up the results of fen-phen litigation in Kentucky:
The three lawyers accused of plundering Kentucky’s $200 million fen-phen settlement “tore up or burned” notes showing how much they paid themselves and their clients, according to one of the lawyers.
Depositions obtained by The Courier-Journal include Lexington attorney Melbourne Mills Jr.’s description of a secret meeting that he said he and lawyers William Gallion and Shirley Cunningham Jr., also of Lexington, held at Gallion’s house in 2001 to divvy up an extra $10 million beyond what they’d already paid themselves from the settlement. …
[Attorney Angela] Ford alleges that Mills’ description is a “dramatic indication of a cover-up.”
She has asked that those lawyers and another attorney, Stan Chesley of Cincinnati, who helped negotiate the settlement, be forced to surrender $62.6 million in funds they allegedly misappropriated — as well as $59.5 million they paid themselves in fees….
Kentucky courts have never required a lawyer to “disgorge” or return a fee for misconduct, but courts in other states have done so, according to Ford’s motion….
Chesley, who was hired by the Lexington lawyers to negotiate the settlement, said he had no reason to question why he was paid $20.5 million — $7 million more than his contract outlined — in part because he could not “believe that these good folks would have sent me more money than I was entitled to.”
In her motion to force the lawyers to give up their fees, Ford said the defendant lawyers, including Chesley, breached their duties in a “spectacular and unparalleled way” by giving only about one-third of the settlement to the clients.
“The facts of this case truly are as egregious as it gets,” she said in court papers. ..
Since the settlement, Gallion and Cunningham have both become permanent residents of Florida, a state that Ford notes allows debtors to keep their homes when they take bankruptcy.
Stanley Chesley was, and remains, one of the most famous plaintiff’s lawyers in the United States and a major powerbroker in national Democratic politics. The article also sheds further light on the close ties between now-disgraced Judge Joseph F. (“Jay”) Bamberger, who approved the Kentucky fen-phen settlement and has since resigned, and the plaintiff’s team in the litigation. (Andrew Wolfson, “Lawyer: Fen-phen notes destroyed”, Louisville Courier-Journal, Jan. 21).
More: a companion piece in the same paper profiles the Cincinnati-based Chesley (Andrew Wolfson, “A breach of duty; wealth mounts for ‘prince of torts'”, Louisville Courier-Journal, Jan. 21)(via Lattman).
Kentucky fen-phen lawyers suspended
Melbourne Mills, Shirley Cunningham Jr. and William Gallion were “temporarily suspended” from the practice of law by the Kentucky Supreme Court this week. The three had taken well over half of a $200 million settlement Wyeth had given them on behalf of 440 fen-phen users they had represented. (Brandon Ortiz, “3 Fen-phen case lawyers are suspended”, Lexington Herald-Leader, Aug. 25; Andrew Wolfson, “Fen-phen case fees poured into racehorses”, Louisville Courier-Journal, May 30; Andrew Wolfson, “Judge: Fen-phen lawyers breached duty”, Louisville Courier-Journal, Mar. 10; Beth Musgrave and Jim Warren, “Fen-phen settlement is back in the courtroom”, Lexington Herald-Leader, Jan. 29, 2005 (reprint)). More: May 10, 2005 (civil lawsuit); Mar. 6 (judge who profited from approval of settlement resigns).
Mills was recently in the news because he won a suit against a secretary who claimed (with the help of a recording) that he promised her an “Erin-Brockovich”-style payment for her help in the settlement. (Brandon Ortiz, “Ruling benefits Melbourne Mills Jr.”, Lexington Herald-Leader, Apr. 4). (cross-posted at Point of Law)
Judge resigns in Ky. fen-phen scandal
Last May 10 we reported on the questions that were being asked about a sealed settlement of Kentucky fen-phen claims which had included (along with vast sums in legal fees) the quiet diversion of $20 million into a mysterious new charitable entity called the Kentucky Fund for Healthy Living. Now the mystery has turned to scandal: the judge who approved the settlement, Joseph F. (“Jay”) Bamberger has resigned after allegations surfaced that he was serving as a director of the fund, receiving $5,000 a month (three of the plaintiff’s lawyers were also paid directors). The state’s Judicial Conduct Commission said Bamberger’s actions “shock the conscience” and he faced possible removal had he not resigned. Particular attention is being focused on Bamberger’s close ties to Mark Modlin, a trial consultant in the fen-phen case who has had co-investments with the judge. The alleged closeness between Bamberger and Modlin had led to protests from litigants in a number of earlier cases, including a high-profile priest-abuse case against the Catholic Diocese of Covington.
The commission’s reprimand (PDF) revealed a startling fact. “The attorney fees approved were at least $86 million and perhaps as much as $104 million” — well exceeding the $74 million that was split among the 431 claimants in settlement. A lawsuit continues on behalf of some allegedly victimized clients against four plaintiff’s lawyers involved in the settlement, including big-league Cincinnati operator Stanley Chesley. (Beth Musgrave, “Fen-phen lawsuit judge resigns”, Lexington Herald-Leader, Feb. 28; Jim Hannah, “Judge quits amid allegations”, Cincinnati Enquirer, Feb. 28; “Investigation of Bamberger warranted” (editorial), Cincinnati Enquirer, Mar. 1; “A blistering rebuke” (editorial), Cincinnati Post, Mar. 1; Peter Bronson, “Hold this judge in contempt”, Cincinnati Enquirer, Mar. 2)(cross-posted from Point of Law).