May 8, 2008

Enjoining food and beverage formulations

Regulation by litigation marches on: Joseph Silvia of WLF writes about how the misnamed Center for Science in the Public Interest is using Massachusetts' one-sided consumer law, among other legal tools, to strong-arm food and beverage companies into changing their ingredient lists. Most recently, CSPI has been using lawsuit threats to dissuade Anheuser-Busch from introducing beer products incorporating caffeine and ginseng, all with no need to obtain any ruling from the Food and Drug Administration that such products are in fact unlawful. ("Threat of Litigation Masquerades As Regulatory Vehicle", PDF).

May 1, 2008

As the Quill Turns...Tobacco

Today's Wall Street Journal carries an editorial on New York Governor David Paterson's intention of taxing internet sales. From "Return of the Web Tax":

By signing the state's budget, Mr. Paterson is now attempting to do what Mr. Spitzer only threatened: Force out-of-state retailers such as Amazon.com to collect New York's sales taxes, which approach 9%, including local levies. A 1992 Supreme Court decision called Quill bars exactly this type of money grab. The Supremes ruled that forcing such obligations on companies with no employees or buildings in a state could cripple interstate commerce. Without Quill, small Web merchants would have to answer to 7,500 state and local tax collectors.

Funny, that's not how North Dakota's Attorney General Nick Spaeth and Tax Commissioner Heidi Heitkamp described the Supreme Court ruling in "North Dakota v. Quill" in their Bismarck news conference back in 1992. (The case started in state court, State v. Quill.) If I recall correctly -- being there as a reporter -- their argument was that the Supreme Court decision was a victory for North Dakota because it said Congress could address the issue of taxation of interstate sales conducted via the Internet.

We mention this in context of the tobacco lawsuit -- really. Heitkamp went to serve as a popular attorney general, one of the many AGs who pursued the tobacco companies through litigation. She recently returned to the news, proposing a state initiated measure to allocate additional moneys from the settlement to health and anti-tobacco programs. From the AP: "It would establish a new fund managed by a nine-member advisory board appointed by the governor. The board would be in charge of developing a comprehensive plan to discourage tobacco use."

So the tobacco settlement continues to drive policy and politics a decade later. Consequences, we think more intended than un.

April 30, 2008

Protection of Lawful Commerce in Arms Act upheld by Second Circuit

There is no truth to the rumor that the appellants' brief began "This is an appeal from a decision by Judge Weinstein of the Eastern District of New York, and there are also other reasons to reverse." Weinstein struck down the immunity legislation on questionable grounds, after previously permitting a public nuisance suit to proceed. The court found that the PLCCA did not violate the Commerce Clause, separation of powers, or the Tenth or First Amendments. The Second Circuit decision was 2-1, so there is likely to be further litigation. [Bashman roundup of links] (h/t M.B. & C.W.)

April 15, 2008

Santa Clara v. Superior Court

On April 26 and May 19, Walter noted the important 2007 Santa Clara v. Atlantic Richfield Superior Court decision barring government entities from using contingent-fee attorneys to prosecute governmental claims grounded in public-policy balancing of costs and benefits like public nuisance abatement. The decision was a natural consequence of People ex rel. Clancy v. Superior Court, 39 Cal.3d 740 (1985), where the California Supreme Court noted the ethical conflict of interest stemming from contingent fee agreements:

"[T]he abatement of a public nuisance involves a balancing of interests. On the one hand is the interest of the people in ridding their city of an obnoxious or dangerous condition; on the other hand is the interest of the landowner in using his property as he wishes. And when an establishment such as an adult bookstore is the subject of the abatement action, something more is added to the balance: not only does the landowner have a First Amendment interest in selling protected material, but the public has a First Amendment interest in having such material available for purchase. Thus, as with an eminent domain action [to which the absolute neutrality requirement applies], the abatement of a public nuisance involves a delicate weighing of values. Any financial arrangement that would tempt the government attorney to tip the scale cannot be tolerated."

So the appellate court has ruled in a remarkably poorly-thought-out opinion that, well, financial arrangements that would tempt government attorneys to tip the scale can be tolerated, so long as "in-house counsel retain control over all decision-making."

We'll see if the California Supreme Court believes that Clancy only applies to attorneys named Clancy or has broader precedential value. If the reversal holds, however, all is not lost for defendants: "The record before us contains absolutely no evidence [sic] that private counsel have ever engaged in any conduct that invaded the sphere of control exercised by the public entities' in-house counsel. ... No doubt the companies will seek disqualification of the public entities' private attorneys if they acquire evidence that the private attorneys are improperly exercising control over this action."

1) That "no evidence" line is remarkably disingenuous: the city of Oakland's fee agreement states private counsel have "absolute discretion in the decision of who to sue and who not to sue, if anyone, and what theories to plead and what evidence to present." The appellate court, reached to find facts to override it in Oakland's assertion that the agreement did not actually reflect the deal it had with counsel. It's one thing (and bad enough) for an appellate court to find facts, but it's another to blatantly misrepresent the state of the record. And one wonders if Oakland's contingent-fee counsel will be so eager to ignore the parol evidence rule down the road if there is a later dispute over the size of the fee.

2) Meanwhile, it sure sounds to me like the California appellate court just opened to discovery the internal workings of the relationship between the in-house and outside contingent-fee counsel. Which is normally impermissible under the attorney work product doctrine. Every time a brief is filed, it's cause for additional discovery and scrutiny of whether the line has been crossed. Such are the knots that the court has tied itself in to avoid the bright-line statement of Clancy.

The same appellate court rescued the illegitimate public-nuisance claim from a lower court dismissal in County of Santa Clara v. Atlantic Richfield Co., 137 Cal. App. 4th 292 (2006).

March 27, 2008

Students! Help Santa Clara County scout out new ways to sue American business!

State of legal academia dept.: a law student reader sends along the following email distributed at the University of California, Davis:

From: <...@ucdavis.edu>
Date: Jan 7, 2008 1:42 PM
Subject: Externship Opportunity with Santa Clara County Counsel's Office
[forwarded by a professor]

Externship Opportunities with the County Counsel of Santa Clara County

County Counsel of Santa Clara County is seeking externs to assist in the development of and implementation of affirmative litigation cases involving public interest issues. Although students may need to travel to San Jose occasionally, the bulk of the work can be done in Davis. Regular public interest externship credits will be available (1 unit for every 4 hours of work per week for the semester; minimum 2 units). Please contact [...] if you are interested.

Description

This externship is designed to provide students with the opportunity to work directly with Santa Clara County public lawyers to promote the public interest through litigation and legislation. Students will assist the County Counsel's Affirmative Litigation Task Force in promoting the goals of the County and pursuing affirmative litigation and legislation designed to protect the County's residents and environment.

Students will have an integral role in identifying issues that impact the community, investigating potential sources of litigation and legislation, evaluating and discussing with experienced lawyers potential claims and remedies, conducting legal research, and preparing legal documents ( e.g., pleadings, motions, discovery, proposed legislation, etc.). Students will learn about the organization of County government and the role of the Office of the County Counsel in advising the Board of Supervisors and County agencies and departments on a wide variety of legal issues. Students will also learn how taking action at the local government level can impact decisions made at the state and federal government levels.

The externship objective is to provide students with real-world experience in pursuing social and environmental justice by taking affirmative steps through local and state governments and the courts.

Two examples of the affirmative litigation ideas the office has considered in the past at are:

Continue reading   Students! Help Santa Clara County scout out new ways to sue American business!

March 26, 2008

"Climate Change Litigation Since Mass v. EPA"

A new paper (leads to PDF) for the Federalist Society's Engage by David B. Rivkin, Darin R. Bartram, and Lee A. Casey, all Washington attorneys. Summary:

Although Congress failed to pass climate change legislation in 2007, the year was nevertheless highly significant for climate change litigation. Many courts are increasingly willing to interpret existing statutes (particularly the Clean Air Act and the National Environmental Policy Act) to require federal agencies to address some aspect of global warming. At the same time, they generally have proven far more reluctant to frame judicial climate change relief under federal or state common law nuisance theories. Such claims have largely been dismissed on standing or justiciability grounds.

Nevertheless, a pattern is clearly emerging in which states and private groups that are impatient with federal efforts to deal with global climate change on the international level seek to force U.S. domestic action either directly under existing statutory schemes (or through new state laws) or indirectly by targeting the industries they believe should be the subject of regulation in this area. At this point, it is by no means safe to assume that these efforts will be found by the courts to be preempted by federal law.

March 9, 2008

Oklahoma's Big Chicken case

The Chamber-backed LegalNewsLine explores how the lawyers working for Oklahoma Attorney General Drew Edmondson got that job. Earlier here, here, and here.

March 5, 2008

Retroactive lead-paint liability

A bad idea we posted about in 2006 still hasn't gone away: some Maryland legislators would like to impose liability on paint makers by statute after the fact, provoking a critical editorial in the Baltimore Examiner.

February 26, 2008

State Vehicle Emissions Regulations Now Vulnerable

At the AEI event Ted discussed earlier, preemption scholar Michael Greve argued that the Supreme Court's recent decision in Riegel v. Medtronic (Feb. 20, 2008) conflicts with two earlier district court rulings upholding state regulations of vehicle greenhouse gas emissions against preemption challenges. I agree.

In Riegel, the Supreme Court preempted all state law rules, even common-law torts, that contain any "requirement" that "relates to the safety or effectiveness" of FDA-approved medical devices above and beyond those prescribed by the FDA in its premarket approval process. It held that federal preemption provisions should be interpreted as broadly as their plain language mandates, and that common law torts "relate" to safety or effectiveness requirements of medical devices even if they are labeled as general principles of tort law not focused on medical devices in particular. It did not require additional or conclusive proof that Congress had a specific intent to preempt state tort law.

By contrast, the district court rulings upholding state vehicle emissions regulations rely on contrary reasoning. In Central Valley Chrysler Jeep v. Goldstene (2007), a judge upheld California emissions regulations that effectively required higher fuel economy standards, even though a federal law (EPCA) states that no state may "adopt or enforce a law or regulation related to fuel economy standards." In order to do so, the judge deliberately construed the federal preemption provision "as narrowly" as possible, applying a strong "presumption against preemption" that required proof that Congress had a "clear and manifest purpose" to preempt state greenhouse gas regulations. Similarly, Vermont greenhouse gas emissions were upheld only because the trial judge rejected a "simple 'plain wording' analysis" rooted in the language of the statute, and instead required proof of an additional "clear and manifest purpose" on the part of Congress to preempt the state law. Green Mountain Chrysler Plymouth Dodge Jeep v. Crombie, 508 F.Supp.2d 295 (D. Vt. 2007).

February 25, 2008

State Attorney Generals Abuse Their Power

State attorneys general often abuse their power. Mississippi Attorney General Jim Hood's sweetheart deals with campaign donors, which Ted describes, are just one example.

Last year, the Competitive Enterprise Institute issued a study chronicling abuses by state attorneys general called "The Nation's Top Ten Worst State Attorneys General." Ranked as the three worst AGs were Connecticut's Richard Blumenthal, California's Bill Lockyer, and New York's Eliot Spitzer.

Hood narrowly escaped being included in that study's top-ten list (CEI viewed about a dozen other AGs as being even worse than Hood), but perhaps he should have been. Hood's hiring of campaign donors to bring lawsuits in the name of the state in exchange for lucrative contingency fees is a disturbingly common practice among AGs.

The Wall Street Journal suggests that the Democratic Attorneys General Association (DAGA) more or less laundered money for Hood, giving Hood an amount of money strikingly similar to the amount it received from law firms that earlier received lucrative work from Hood's office. "In 2007, law firms that have benefited from Mr. Hood gave the organization $572,000, and in turn the group wrote campaign checks in 2007 to Mr. Hood for $550,000."

Last year, the president issued an executive order banning federal agencies from hiring lawyers on a contingency fee. The abuses by Hood and other AGs, like Rhode Island attorney general Patrick Lynch, demonstrate why that executive order made sense -- and why state legislatures should follow suit in banning such contingency fees.

Such contingency fees not only foster corruption, they also violate state constitutional separation of powers guarantees, result in perverse incentives and overreaching in litigation, and cause conflicts of interest.