Thursday, April 16, 2009

Stinking to high heaven

the plaintiff attorney's strategy aka Bribery and Job Destruction:

As we reported, [F. Kenneth] Bailey made repeated donations to [Gov. Ed] Rendell's 2006 re-election campaign in the months before his law firm was given a no-bid, contingency-fee contract to sue Janssen Pharmaceuticals on the state's behalf. Mr. Rendell told the Philadelphia Inquirer -- whose reporters have roused from their slumbers -- that "there wasn't the slightest bit of pay-to-play here." But the Governor was obliged to acknowledge that Mr. Bailey had approached the state about suing Janssen. Normally, the state Attorney General would handle such legal matters, but the AG rebuffed Mr. Bailey. Mr. Rendell's office then decided to hire the law firm that was also his major campaign donor. Smile if you think the two were related.

The episode speaks volumes about Mr. Rendell's political ethics, but more important is what it reveals about the plaintiffs bar's latest "business" model. Mr. Bailey's Janssen suit is part of a national pay-to-sue operation, as he and his Bailey, Perrin & Bailey law firm have taken their pre-packaged lawsuit to many states. Janssen's complaint asking the Pennsylvania Supreme Court to dismiss Bailey Perrin from the suit notes that the firm has "taken on numerous engagements similar to this action, including representation in the states of Louisiana, South Carolina, Arkansas, Mississippi and New Mexico."

It's some racket. The plaintiffs attorneys come up with novel legal theories under which to sue companies or entire industries. They then solicit state AGs (or cash-hungry Governors like Mr. Rendell) to retain them to bring cases on behalf of the government on a contingency-fee basis. Motley Rice and Lieff Cabraser are among the firms that have targeted drug companies as well as makers of cigarettes, paint and guns.

The biggest losers here are the cause of justice and the principle of prosecutorial neutrality. When outside lawyers are hired to do the government's business, and then given a financial stake in the outcome, it creates irreconcilable conflicts of interest. The state delegates key decisions -- about whether and whom to sue, what legal theory to pursue, whether to settle and what remedy to propose -- to private lawyers motivated by profit rather than the public interest.

Meanwhile, the pay-to-sue nature of the transaction means that politicians have an incentive to promote frivolous litigation that makes it even harder for American business to prosper and create jobs. If Governors like Ed Rendell won't stop this legal-political collusion, state legislators should.

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