Results matching “fen-phen”

Around the web, October 10 - PointOfLaw Forum

  • Generic charges of statistical disparities, unconscious bias and too-wide managerial discretion fuel current wave of employment-bias class actions -- and rare is the big employer not vulnerable on one or more of those fronts [Parloff, Fortune]
  • Kentucky officials sue maker of Oxycontin seeking recoupment of money spent on drug abuse programs, policing [AP]
  • One perspective on the tainted-hamburger scare [Szwarc]
  • Underplayed angle in Stoneridge hubbub: law firms themselves are a prime target for suits alleging aiding and abetting [NLJ]
  • Three members of San Antonio family are indicted on charges of submitting fraudulent fen-phen charges [USDoJ]
  • Washington state's unique sovereign un-immunity rules keep generating big suits over crimes committed by ex-cons [Seattle Times (Algona hit/run, $1.8 million settlement), KOMO (murder in Tacoma, family seeks $45 million)]
  • More attention for Ohio AG Marc Dann, scourge of subprime lending and much else [WSJ law blog, Columbus Dispatch via Chamber]

Nagareda, "Mass Torts in a World of Settlement" - PointOfLaw Forum

Not seen or reviewed yet, but coming well recommended, is this new volume from Vanderbilt lawprof Richard Nagareda, now available on Amazon. Here's the book description given there:

The traditional definition of torts involves bizarre, idiosyncratic events where a single plaintiff with a physical impairment sues the specific defendant he believes to have wrongfully caused that malady. Yet public attention has focused increasingly on mass personal-injury lawsuits over asbestos, cigarettes, guns, the diet drug fen-phen, breast implants, and, most recently, Vioxx. Richard A. Nagareda�s Mass Torts in a World of Settlement is the first attempt to analyze the lawyer�s role in this world of high-stakes, multibillion-dollar litigation.

These mass settlements, Nagareda argues, have transformed the legal system so acutely that rival teams of lawyers operate as sophisticated governing powers rather than litigators. His controversial solution is the replacement of the existing tort system with a private administrative framework to address both current and future claims. This book is a must-read for concerned citizens, policymakers, lawyers, investors, and executives grappling with the changing face of mass torts.

WSJ on Kentucky fen-phen scandal - PointOfLaw Forum

The Journal's lead editorial today (sub-only) is on the dramatic developments in the Kentucky fen-phen scandal, in which a federal judge has ordered three trial lawyers (Shirley Cunningham Jr., William Gallion, and Melbourne Mills Jr.) held in jail as flight risks pending trial on charges of doing clients out of $62 million in settlement funds. Ted covered the story at Overlawyered a week ago, and our extensive coverage of the issue is here and here.

Around the web, July 16 - PointOfLaw Forum

  • Where a case settles quickly, is a big contingency fee reasonable? [Nebraska Supreme Court, Hauptman, O'Brien v. Turco (PDF) via Sipple]

  • Kentucky is one of only four states whose lawyers aren't obliged to report misconduct by other attorneys or judges, and fen-phen scandal isn't going to change that [Courier-Journal]

  • Critique of Manhattan attorney's would-be class action seeking to ban "Ladies' Nights" at bars [Adler & Somin @ Volokh; Coleman & more at Overlawyered]

  • Lawyers want $58 billion-plus from ExxonMobil, other defendants over Greenpoint, Brooklyn underground spill [New York mag]

  • Los Angeles archdiocese in record $660 million deal to settle sex abuse claims [Bainbridge]

  • In the time it takes to get dressed, you could have filed a wage-hour suit against your employer over the time it takes to get dressed [NLJ]

Andrew Wolfson reports:

"The three Lexington lawyers already found in a civil suit to have defrauded clients in Kentucky�s $200 million fen-phen settlement were indicted today on charges of conspiracy to commit wire fraud.

"A federal grand jury in Covington accused Melbourne Mills Jr., Shirley Cunningham Jr., and William Gallion each of one count of fraud and demanded that they forfeit $46 million in misappropriated funds and more than $21 million in fees that had parked in a charitable fund."

The fourth attorney involved, Ohio powerhouse Stan Chesley, was not indicted. Earlier: May 15, Apr. 5, Apr. 4, etc.

Curlin and the fen-phen scandal - PointOfLaw Forum

For some time now Overlawyered has been covering the story of the Preakness-winning thoroughbred whose lawyer-owners happen to be deeply implicated in the still-unfolding Kentucky fen-phen scandal. Was the horse purchased with the proceeds of litigation fraud? The New York Times has a front-page story in today's edition.

Earlier: May 11, May 8, Apr. 5, Apr. 4, etc.

  • Barbara Bonar gets supporting testimony in her claims against Stan Chesley, but loses bench trial in case she brought over questionable settlement over Catholic church sex abuse. Bonar, the next president of the Kentucky Bar, will appeal. In the meantime, she faces trumped up ethics charges for representing class member opt-out settlements. (Andrew Wolfson, "Covington lawyer loses fee dispute case", Louisville Courier-Journal, May 12).
  • Angela Ford, who is bringing the lawsuit on behalf of Kentucky fen-phen victims ripped off by their attorneys against their co-counsel, Stan Chesley, is now also facing what seems to me retaliatory political pressure; a Hamilton County, Ohio, judge, apparently unaware of deposition commissions, is complaining that she subpoenaed an Ohio witness without being licensed to practice law in that state. For some reason, a Kentucky judge, Stanley Billingsley, is testifying on behalf of Chesley. An American Home Products witness contradicted defendants' claims that they "set aside" some settlement money for future Kentucky claimants (who, under the U.S. Supreme Court Amchem precedent, could not be bound by the settlement). And the parties are in mediation tomorrow and Thursday, which, judging by Chesley's attorney's complaints about press coverage, implies a confidential settlement is near. Next court hearing is May 31. (Shelly Whitehead, "Fen-phen suit heads to mediation", Cincinnati Post, Apr. 24; Beth Musgrave and Jim Warren, "Lawyers meet Wednesday to try to reach deal on fen-phen millions", Lexington Herald-Leader, May 14).
  • Angela Ford herself has a website, which is not surprising, but it does include a remarkable resource of publicly-available court documents related to the Abbott v. Chesley case.

New at Overlawyered - PointOfLaw Forum

Stories you might have missed if you're not reading my (and Ted's, and David Nieporent's) other site:

Ross Billing Ethics Survey - PointOfLaw Forum

WSJ Law Blog reports on Professor William Ross's recent survey of 251 attorneys, which indicates that most attorneys are aware of other attorneys who pad hours. I don't disagree with this conclusion, but I think the problems of bill-padding and double-billing likely pales in comparison to (1) the expense incurred by parties because of lawyers making overconfident recommendations to embark on misguided litigation where those recommendations happen to coincide with the interest of the attorney to bill more hours; and (2) the excessive billing caused by law-firm technological and human-resources inefficiencies that regularly result in the wheel being reinvented at client expense. A disturbing number of the hours I billed as an attorney came about because my firm got involved in a case where a lawyer with a creative theory of business-competition-through-litigation initiated a suit that ultimately cost his or her client more money in the long run.

Stephanie Mencimer (whose blog post headline seems to misunderstand the fact that the study did not involve self-reporting) sneers that this result should be trumpeted as loudly as well-publicized problems of plaintiffs' attorneys stealing from their clients (e.g., Kentucky fen-phen or the Milberg Weiss indictment). But there is a critical difference. Plaintiffs' attorneys are dealing with one-time players; attorneys for corporate defendants (and plaintiffs) are usually repeat players. Thus, the latter faces a certain degree of market discipline that a plaintiffs' attorney does not: sophisticated clients can compare and contrast bills and results from the different law firms they hire, as well as hire third-party analysts to scrutinize bills. A law firm whose bills are out of line with results will lose business in the long run. Plaintiffs' attorneys face no such disincentive, and their ability to capture rents present a much greater public-policy problem, not least because (unlike the case of defense counsel) it also creates the incentive to engage in litigation with negative externalities.

I especially like one easy customer-service-based solution to the potential problem of hourly bill padding. Seattle law firm Summit Law Group has an innovative policy of a "value adjustment line" on all of their bills: "We empower each of our customers with the right to adjust our billing, upward or downward, based on our customer�s perception of the value received, not ours." Summit claims that, over the years, clients have been more likely to adjust bills upward than downward. This obviously is much more likely to work in the repeat-player context where the law firm can fire the client as well as vice versa.

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 Overlawyered.)

"Fen-Phen Zen" - PointOfLaw Forum

Hey, I just write the column about the Kentucky fen-phen fraud, not the headlines. Earlier on Overlawyered: Mar. 26 and links therein. (Cross-posted at Overlawyered.)

The trouble with cy pres - PointOfLaw Forum

Class action settlements often require donations to public-interest groups. Defendants are amenable to this, because it means that the punishment is a meaningless shift of money that would have been spent on charity anyway; plaintiffs' attorneys like this, because it increases the size of the apparent "relief" that justifies high attorneys' fees; judges go along, sometimes because they like the causes their money is supporting. (And those causes are often allies of the trial bar, thus encouraging more litigation down the line.) Little wonder that trial lawyer Michael Hausfeld spoke of the importance of cy pres at yesterday's Federalist Society Panel.

Another problem that may well be more common if investigated more fully: kickbacks. In the now infamous Kentucky fen-phen settlement, millions were diverted to a new charity that then paid the judge as a board member (OL Mar. 6). And now it is revealed that another $1 million of the settlement (negotiated by plaintiffs' bar star and top Democratic Party donor Stanley Chesley, who received $20 million for his troubles) went to Florida A&M Law School—which agreed to pay one of the lawyers, Shirley Cunningham, $100,000/year for a no-show professorship. A Florida state investigation calls evidence of criminal activity "inconclusive," but suggests the school seek its money back. (Andrew Wolfson, "Ky. lawyer's Florida A&M pay 'not earned'", Louisville Courier-Journal, Feb. 8). (Similarly: Peter Lattman on Richard Epstein on a donation to Seton Hall; for a general overview relatively sympathetic to trial lawyers, see Geoffrey P. Miller & Lori S. Singer, Nonpecuniary Class Action Settlements, 60 Law & Contemp. Probs. 97 (1997).)

More on Kentucky fen-phen scandal: OL Feb. 14 and links therein.

Kentucky fen-phen scandal - PointOfLaw Forum

One of the lawyers accused of plundering the $200 million settlement says he thinks he and colleagues burned or otherwise destroyed any paperwork documenting the rationale for the divvying up of the proceeds. Moving forward in court: a demand that famed tortster Stanley Chesley and others disgorge tens of millions in ill-gotten fees. I've got the story at Overlawyered this morning.

"Mass Torts and Multiple Misjoinders" - PointOfLaw Forum

The Drug and Device Law blog has a tremendously well documented post on the law of the mass-plaintiff-dump, the complaint filed with several unrelated plaintiffs. (We covered the issue ourselves in a less extensive fashion Oct. 15, 2005, focusing on the narrower question of fraudulent misjoinder to evade federal jurisdiction.) Of course, not every court follows the sound law documented by Beck and Herrman. The list of courts notorious for ignoring that law—e.g., West Virginia, Madison County, pre-reform Mississippi—corresponds remarkably well to ATRA's list of judicial hellholes, which goes to show that that list isn't anywhere near as arbitrary as reform opponents make it out to be.


A great deal of case law in federal and state courts holds that product liability cases are generally inappropriate for multi-plaintiff joinder because such cases involve highly individualized facts and �[l]iability, causation, and damages will. . .be different with each individual plaintiff.�

That long list of precedent is being ignored in the forthcoming mess of a New Jersey Vioxx trial, where four completely unrelated plaintiffs will have their lawsuits glommed together, despite different timing (resulting in different knowledge by Merck—even if one thinks Merck should have known better in 2004, it doesn't mean that Merck should have known better in 2002), different warnings, different causation issues, and different alleged damages. Maybe one thinks Merck should have had a different warning to doctors depending on the patient's predilection for heart disease? According to Judge Higbee's court's summary of the trial, however, the one jury will resolve the failure-to-warn question in one go across all four plaintiffs divorced from the related issue of causation, an appalling violation of due process seemingly intended to coerce a defendant into acceding to the sort of mass-tort settlement that has resulted in billions of dollars of fraud in asbestos and fen-phen litigation. (Update, Jan. 17: court reduces plaintiffs from four to two and updates its summary of the trial.)

"It's Over"? - PointOfLaw Forum

I just came from a talk by an ATLA officer boasting of the "record number" of trial lawyers elected to the House and Senate, and return to read Alison Frankel in The American Lawyer announce "The power of the plaintiffs bar is on the wane in this country, and will be for a long time to come."

The story nicely catalogs a variety of reform victories in a relatively plaintiff-friendly way (e.g., "Business interests learned that if state judges didn't vote their way, they could replace those judges with others who would", ignoring that it was the plaintiffs' bar who put those judges on the bench in the first place, and financed an attack on reformer judges in Alabama), but ignores underplays setbacks in Wisconsin and Louisiana courts, and the regrouping of the asbestos bar in Delaware. [Correction: Frankel correctly points out in an email that her piece did have a sentence reading "The relatively sleepy Wisconsin Coalition for Civil Justice Reform was just energized by a series of pro-plaintiff state supreme court rulings, and plans to campaign in nonpartisan judicial elections in April"; the piece mentions Delaware in passing, also. I regret the overstatement. Frankel's full e-mail is after the jump.]

Has the plaintiffs' bar peaked? Well, if in the sense that there will never be another fen-phen-like settlement that allows attorneys to steal billions of dollars, and that the defense bar is now warier of the most egregious abuses of the plaintiffs' bar. But fraud continues apace in the plaintiffs' bar in the Vioxx, welding, and asbestos litigations; the plaintiffs' bar is extraordinarily well-funded and seeking new entrepreneurial opportunities to create profitable new causes of action; ATLA is planning an aggressive counterattack with voters and all three branches of government, not to mention the law schools; and Congress, with Sarbanes-Oxley alone, has done about as much to abet the plaintiffs' bar in the last six years as it has to stymie it. Reformers have achieved a lot of success in the last ten years and eliminated a fraction of the worst abuses in the system. But contrary to the title of the piece, it's not "Over."

Asbestos frauds in the WSJ - PointOfLaw Forum

The Wall Street Journal's Kimberly Strassel has a big article today on the tangle of lawyer deceit exposed when one defendant obtained court permission to delve into the (multiple, inconsistent) earlier claims brought on behalf of a single mesothelioma claimant, Harry Kananian. And over the weekend lawprof Lester Brickman, in the Journal's "Rule of Law" column (sub-only), tackled the problem of fraudulent health screening intended to generate compensable diagnoses, which has been important not only in the asbestos mess but also in fen-phen and other mass tort areas.

Oct. 12 panel in D.C.: "Mass Fraud in Mass Torts?" - PointOfLaw Forum

On Thursday of next week the Federalist Society will be sponsoring a lunchtime panel discussion in Washington, D.C. on the policy issues posed by alleged fraud in mass-tort areas such as asbestos, silicosis, fen-phen and mold. Panelists include Cardozo lawprof (and friend of this site) Lester Brickman; Duke lawprof Francis McGovern; and attorneys Patrick Hanlon of Goodwin Proctor and Joseph Rice of Motley Rice. Details are here.

A thorough report in the Wall St. Journal, entitled "Plaintiffs' Lawsuits Against Companies Sharply Decline" [subscription required to view] notes that in recent months, judges have dismissed or challenged tens of thousands of cases in matters ranging from claims of lung damage from asbestos and silica dust to allegations that the diet drug fen-phen caused heart problems. Moreover, fewer new claims like these are being launched, as state and federal courts and legislators attack the methods used to round up plaintiffs for mass tort litigation.

There is no reliable count of claims, but a look at several key areas -- particularly asbestos and silica claims -- shows large-scale litigation against single products is on the wane.

This year, new securities-fraud class-action lawsuits are down 45%, to 61 through June from 111 in the first half of 2005, according to a study mentioned in the article. This all looks to be (positive) fallout from District Judge Jack's rebuke of phony silicosis cases.

Kentucky fen-phen lawyers suspended - PointOfLaw Forum

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 Overlawyered)

NJ courts' Mass Tort Information Center - PointOfLaw Forum

Resource for researchers: the New Jersey court system maintains a highly organized website it calls the Mass Tort Information Center with copious information about various product liability and other mass tort cases currently or recently the subject of much litigation in the Garden State. Categories active as of this writing: Accutane, Asbestos, Bextra/Celebrex, Ciba-Geigy water pollution claims, Diet Drug (fen-phen, Redux), Hormone Replacement Therapy, Long Branch Manufactured Gas Plant pollution claims, Lead Paint, PPA (phenylpropanolamine), Tobacco, and Vioxx.

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