Results matching “milberg”

NYT: Weiss sentencing a page C-3 story - PointOfLaw Forum

The dean of the class action bar is headed to prison: a judge has sentenced Mel Weiss to 30 months, near the high end of the plea-negotiated range, in the still-not-wound-up Milberg scandal. It would be easy for readers of Weiss's hometown paper to miss this news, however, since the issue of today's New York Times in front of me relegates it to page 3 of its business section. Which can fairly be described as burying one of the year's biggest New York-related law stories. Might this relate to the Times's long having drawn on Milberg Weiss as a cornucopic source for hostile material about whatever businesses Mel Weiss was suing at the time?

The problem is not with the story itself, by reporter Jonathan Glater, or its related item on the Times's DealBook, both of which are fine. But in relegating the coverage to a snoozy inglenook deep inside the paper the Times' editors again reinforce the impression -- as we noted two years ago -- that they view the giant Milberg scandal as an embarrassment they wish would just go away. Nor are we going to hold our breath waiting for the editorial -- any more than for the (still-nonexistent) one about the Scruggs scandal. More: some funny observations from Larry Ribstein.

Around the web, June 2 - PointOfLaw Forum

  • Milberg close to settlement agreement with federal prosecutors, say insiders [WSJ]
  • Not clear whether Missouri has really had a big drop in med mal suits since passage of reform, numbers skewed by surge in suits just before law's effective date [Springfield Business Journal; earlier]
  • More on prosperity of Australian injury specialist Slater & Gordon, first law firm to become publicly traded stock company [Times Online, earlier]
  • Suggesting that actress Sally Struthers wrote that Harvard Law Review student note about poverty and corporate law is really unfair to Ms. Struthers [Lat, Bernstein @ Volokh, Kowalski/National Post, ABA Journal, Note (PDF)]
  • Washington AG Rob McKenna continues to criticize erosion of sovereign immunity in the state and resulting taxpayer exposure to high lawsuit payouts [Legal NewsLine; earlier, background]
  • Should libertarians oppose the limited liability corporation? [Tabarrok via Bainbridge]
  • "Document, ad nauseam" and fire patients no doctor can make happy: how to avoid getting sued for medical malpractice [Medical Economics via KevinMD]

Milberg Weiss Prosecution: Harm, Foul - PointOfLaw Forum

The American Enterprise Institute sponsored a talk yesterday by law professor Michael Perino of St. Johns University, who presented his new paper, "The Milberg Weiss Prosecution: No Harm, No Foul?" The Examiner's Quin Hillyer was on hand, and his summary in today's editorial hits the highpoints:

Class-action lawsuit fraud is not a victimless crime. At the very least, it harms the clients on whose behalf the lawyers are supposed to be working. So concludes respected St. John's University law professor Michael Perino in a new data-driven analysis that shows a clear correlation between the incidence of corruption within disgraced law firm Milberg Weiss and higher fee requests and fee awards by and to the firm. Of course, if a law firm receives a larger portion of a court settlement, the firm's clients receive proportionally less -- which, in Perino's words, is indeed "a real economic harm" to those same clients.

Ted Frank hosted the event and AEI's Peter Wallison interlocuted. The paper and related materials are now online:

Tomorrow morning: AEI panel on Milberg Weiss - PointOfLaw Forum

Ted is moderating in Washington tomorrow, Wed., May 28, from 9 to 10:30 a.m.:

Milberg Weiss Bershad & Schulman and a spinoff firm led by William Lerach dominated securities class actions over the last twenty years. But in 2006 and 2007, prosecutors indicted the Milberg firm, Lerach, Mel Weiss, David Bershad, and Steven Schulman for paying kickbacks to "class representative" plaintiffs, who were supposed to protect the interests of the class over those of the attorneys. The indictments solidified the argument that class representatives in securities class actions were not effective principals overseeing the work of their attorneys. On May 19, Lerach reported to prison in Lompoc, California; on June 2, Mel Weiss will be sentenced. But even as all of the attorneys have pleaded guilty, many argue that the crimes in the indictments were victimless. Did these kickbacks affect the amount of money that absent class members received from settlements? Did Milberg Weiss's inappropriate relationship with their lead clients allow them to receive higher attorneys' fees at the expense of investors? What does the Milberg Weiss indictment say about the benefits to investors of securities class actions? Will Democrats heed House minority leader John Boehner's call for congressional hearings?

At this AEI event, law professor Michael Perino will present his new paper, "The Milberg Weiss Prosecution: No Harm, No Foul?"--published as part of the AEI Legal Center's Briefly series--which seeks to objectively answer these questions. Using a database of approximately 730 class action settlements and fee awards, Perino examines the Milberg Weiss indictment in detail and analyzes whether these kickback payments harmed class members. AEI's Peter J. Wallison and AEI Legal Center director Theodore H. Frank will comment on the paper and the Milberg Weiss indictment. Frank will moderate.

Details here.

By Glenn G. Lammi

As Federal District Court Judge Loretta A. Preska wrote last summer in Kensington Int'l Ltd. v. Republic of Congo, 2007 U.S. Dist. LEXIS 63115, *1 (S.D.N.Y. Aug. 23, 2007), "Civil litigation is not always civil." The high stakes and cost of much litigation today, and the commercialization of the legal profession, have created greater pressure on lawyers to, in the words of lawyers' Model Rules of Professional Conduct, "zealously assert[] the client's position under the rules of the adversary system." When that pressure leads attorneys astray, judges possess the authority under federal statutes, civil procedure rules, and courts' inherent powers, to impose sanctions. Over the past year, federal judges in high-profile litigation have invoked these powers to take action against lawyer misconduct, either imposing sanctions or using their bully pulpit to put the legal profession on notice that judges will protect the public and legal consumers from abuse.

In the Kensington case, Kensington, a "financial institution which invests in debt and equity instruments issued by domestic and foreign entities," id. at *3, sought to collect on a nearly $57 million judgment against Congo. Kensington subpoenaed a Congolese citizen, Medard Mbemba, who Kensington believed would assist it in locating the whereabouts of the nation's assets. Difficulties in scheduling the time and place of the deposition ensued, and it came to light that an attorney from Congo's counsel of record, Cleary Gottlieb Steen & Hamilton, had contacted Mr. Mbemba directly. As the court noted, this partner had "extensive connections with Congo's political leadership." Id. at *5. Mr. Mbemba testified when asked if he felt the Cleary Gottlieb attorney was pressuring him to avoid the deposition, he replied that he was aware of the attorney's connections in Congo and that, "It is not an impression, he told me as such not to go." Id.

Judge Preska noted the court's inherent authority to sanction attorneys for bad faith acts. She found that "a mass of evidence" existed that Cleary Gottlieb's actions "were taken with the purpose of preventing Mbemba's deposition," id. at *16, and that "Cleary feared Mbemba might reveal damaging information or offer evidence of illegal conduct and thus attempted, in bad faith, to influence Mbemba's testimony or, better still, to avoid the deposition altogether," id. at *32. Because Cleary "show[ed] a willingness to operate in the murky area between zealous advocacy and improper conduct, and here it crossed the line," id. at *33, Judge Preska imposed monetary sanctions on the firm.

Another recent example where "aggressive representation [gave] way to misconduct," arose from trade secret litigation between rival financial software makers. Wolters Kluwer v. Scivantage, 2007 U.S. Dist. LEXIS 88052 (S.D.N.Y. Nov. 29, 2007). Judge Harold Baer issued a 129-page ruling peppered with regret that the standards of civility and professionalism in law have declined as legal representation has been transformed from a profession into a business. Much of the dispute focused on documents submitted under a protective order by the defendant to plaintiffs' counsel Dorsey & Whitney; the use of those documents in a nearly identical suit in a Massachusetts federal court; and the refusal of a now-former Dorsey lawyer to return the documents on order of the court once Wolters Kluwer had voluntarily dismissed the New York-based action. Judge Baer's opinion relates the dispute's particulars in exhaustive detail, after which he concludes that the lead plaintiffs' counsel or Dorsey & Whitney engaged in twenty-two instances of bad faith, sanctionable conduct. Judge Baer declined to financially punish the lead lawyer or Dorsey & Whitney, choosing instead to "impose a public reprimand" and forwarding a copy of his decision to "the Grievance Committee for the Southern District of New York" and to the state court's attorney disciplinary committee. Id. at *292.

A third instance in 2007 of a judge invoking his inherent powers involved insurance coverage litigation in the wake of Hurricane Katrina and noted plaintiffs' attorney Richard Scruggs. In an employment contract dispute arising out of a Katrina coverage issue, Federal District Court Judge William Acker ordered that Mr. Scruggs return covertly copied insurance documents he obtained from former employees of the insurance services company plaintiff. Scruggs instead sent them to Mississippi Attorney General Jim Hood. Judge Acker wrote in response that such behavior "is precisely the type of conduct that criminal contempt sanctions were designed to address." E.A. Renfroe & Co. v. Moran, Civ. Action No. 06-AR-1752-S (N.D. Ala. June 15, 2007), slip op. at 20. Judge Acker referred the matter to federal prosecutors, and when they declined to bring charges against Scruggs, Judge Acker invoked his authority under Federal Rule of Criminal Procedure 42(a) and appointed two private attorneys as special counsel to prosecute the case. E.A. Renfroe & Co. v. Moran, Civ. Action No. 06-AR-1752-S (N.D. Ala. July 26, 2007). In addition to having to defend against this criminal action, Mr. Scruggs was indicted last November on charges that he conspired to bribe a Mississippi state judge. A trial is scheduled for February 25. Donna Leinwand, Bribery case stemming from Katrina lawsuits makes waves, USA TODAY at

One further 2007 decision of note did not directly involve attorney misconduct or the application of sanctions, but the tone and force of the ruling displays how judges can use their bully pulpit to express their disdain with some lawyers' actions. In In Re Chiron Corp., 2007 U.S. Dist. LEXIS 91140 (N.D. Calif. Nov. 30, 2007), Judge Vaughn Walker rejected a class action settlement in a case involving a vaccine company's alleged market misrepresentations. In addition to rejecting the proposed $7.5 million attorneys' fees in a case which "appears to have proceeded almost directly form pleading to settlement with no ruling on the pleading," id. at *6, Judge Walker ruled that the settlement was "inconsistent with the interests of absent class members and the class action process itself." Id. at *38. The court strongly questioned the adequacy of the lead plaintiff, finding it to be a "serial plaintiff" whose involvement "seems to have been confined to an endorsement of lead counsel's proposed fee." Id. at *31.

Because of the "serial" nature of the lead plaintiff and the law firm representing it - Milberg Weiss - Judge Walker reluctantly found it "necessary to address criminal charges pending against lead counsel." Id. at *38. The judge noted that the case before him is not directly implicated in the criminal case, which involves alleged payment of kickbacks to lead plaintiffs. "But given the temporal proximity of this settlement and the criminal proceeding against lead counsel," he wrote, "whether the charges bear on this case is a determination best left to the class following full disclosure." Id.

Whether it is imposing monetary sanctions, issuing a public "censure", or appointing special counsel to enforce a criminal contempt ruling, judges possess the authority to regulate lawyers and the litigation process. As Judge Baer stated in Wolters Kluwer, not only is attorney misconduct and incivility "a drain on valuable judicial resources," supra at *7, it also "undermine[s] public confidence in the legal system" and works "to the serious detriment of the very individuals that have sought counsel." Id. at *8. Reasons abound for judges to use their considerable statutory and inherent police powers. With these recent decisions, the momentum to do so will hopefully continue to grow.

* Chambers v. Nasco, Inc., 501 U.S. 32 (1991). See also Thomas E. Baker, The Inherent Power to Impose Sanctions: How a Federal Judge Is Like an 800-Pound Gorilla, 4 LGL. OPINION LTR. 6 (WASH. LGL. FNDT.), Mar. 25, 1994.

Around the Web, May 5 - PointOfLaw Forum

  • In "Who Owns John Conyers," The Examiner editorializes in support of congressional hearings into the Milberg Weiss as representative of the plaintiff's bar. The news peg is House Republican Leader John Boehner's letter to Conyers asking for the hearings.
  • Ohio Attorney General Marc Dann, a Democrat, is in serious political trouble for cheating on his wife and mismanagement that produced a sexual harassment complaint. Jonathan Adler has been following his travails at the Volokh Conspiracy, noting the numerous editorial calls for Dann's resignation. And, he mentions Husker Du.
  • Sen. Arlen Specter (R-PA) argues for a federal media shield law in a Washington Post op-ed today, responding to the contra position expressed by Attorney General Mukasey. The debate continues to concentrate almost exclusively on national security and classified information considerations. But what about business, against whom the media shield could be turned into a fierce weapon? We look at business' concerns in a post at

  • From the Wall Street Journal's Law Blog: "Brooklyn-based Eastern District of New York have formed a task force of federal, state and local agencies, involving as many as 15 law-enforcement agents and investigators that will focus on Wall Street firms and mortgage lenders."

  • From the end of last week, a report on the $38 million settlement that's been reached with families of the Minnesota bridge collapse victims. The Legislature's package awards everyone on the bridge up to $400,000, with an additional $12.6 million pool for those suffering the most severe injuries and losses.
  • Entertainment at the House Judiciary Committee this week, a hearing by the Subcommittee on Commercial and Administrative Law, "The Rulemaking Process and the Unitary Executive Theory."
  • The national radio program of the conservative Christian group, Focus on the Family, had a good report this weekend on judicial questionnaires and the efforts in eight states to allow judge candidates to respond to inquiries about their views and associations. More here.

  • And a 10:20 a.m. addition, an op-ed in today's WSJ, "Dartmouth's 'Hostile' Environment": "[An] Ivy League professor [is] threatening to sue her students because, she claims, their 'anti-intellectualism' violated her civil rights. ...Priya Venkatesan taught English at Dartmouth College. She maintains that some of her students were so unreceptive of "French narrative theory" that it amounted to a hostile working environment. She is also readying lawsuits against her superiors, who she says papered over the harassment, as well as a confessional expose, which she promises will 'name names.'" We can start with Derrida.

Around the Web, May 3 - PointOfLaw Forum

  • House Republican Leader John Boehner and Ranking Judiciary Member Lamar Smith (R-TX) have written a letter to House Judiciary Chairman John Conyers asking for congressional hearings into crimes and corruption of Milberg Weiss and the trial bar. They asked for hearings by May 19th, the date Mel Weiss is to report to prison. Advocates like the the American Tort Reform Association and The Examiner newspaper have called for hearings, as well. has a post on the letter, including a copy of the letter here.
  • In other Milberg Weiss news, from "John B. Torkelsen, a former expert witness in hundreds of shareholder derivative and class action cases for Milberg Weiss, pleaded guilty on Thursday to perjury charges." Also, from Reuters: "Indicted U.S. law firm Milberg LLP is in settlement talks with federal prosecutors to resolve a long-running criminal case involving accusations it paid illegal kickbacks to clients, sources close to the talks said on Tuesday."
  • Former D.C. Administrative Judge Roy Pearson sues to get his city job back. And he wants damages, just not $54 million. Pearson was not reappointed to the post after his suit against his drycleaners elicited international scorn.
  • A commuter rail project in Central Florida has gone off the tracks in the Legislature, with liability one of main obstacles. From the Daytona Beach News-Journal: "The Department of Transportation and Jacksonville-based CSX Transportation reached an agreement in 2007 for the state to buy the tracks from CSX, which would then lease them part time for freight. But the agreement requires legislative approval of legal liability provisions that provoked opposition from many senators and trial lawyers. One provision would have extended state sovereign immunity to private contractors hired by the state for key rail functions. Another would have shielded CSX for most liability from mishaps on the line.
  • For future use in direct mail and Internet solicitations. From The Advocate, Baton Rouge: "The controversial Roe v. Wade abortion-rights ruling will be overturned if John McCain is elected president, CNN legal analyst Jeffrey Toobin told a Baton Rouge audience Friday...'It's gone,' Toobin, also a legal affairs staff writer at The New Yorker, said after giving a speech about the U.S. Supreme Court at LSU's Paul M. Hebert Law Center. 'Maybe not during his first year or second year, but it will be overturned...'"
  • From the Dallas Morning News: "AUSTIN - The Texas Supreme Court ruled Friday in favor of Houston homebuilder Bob Perry, the state's most prolific campaign contributor, in a case homeowner advocates say reflects the influence of big money over elected judges." Indeed, there is an appearance of an appearance of an appearance of a news story.

Today, House Republican Leader John Boeher and Rep. Lamar Smith (R-TX), the ranking Republican on the House Judiciary Committee, sent a letter to Committee Chairman John Conyers asking for a hearing prompted by the criminal conspiracy and convictions involving the Milberg Weiss law firm. (Copy of the letter here.)

As the two note in their letter: "Mr. Lerach himself told the Wall Street Journal his illegal conduct and that of his law partners was an 'industry practice.' At his sentencing, one of his supporting letters quoted Mr. Lerach as saying, 'Everybody was paying plaintiffs so they could bring their cases.'"

The two ask for hearings by May 19th, the date Weiss is to report to prison. The questions they want asked:

  • How many of these cases are brought as a result of illegal payments to plaintiffs?
  • What other types of conflicts exist between trial lawyers and the injured investors they purport to represent?
  • What reforms should Congress enact to eradicate these abuses from our judicial system?
  • More at, where we conclude:

    We would be naive to think partisanship didn't enter into this request. Trial lawyers represent a major political force within the Democratic party, much appreciated for their generosity in campaign contributions. If Chairman Conyers declines to hold a hearing, the Republicans will make an issue of it.

    But so what?

    UPDATE (11:59 a.m.) Nathan Koppel reports on the letter at the WSJ Law Blog, noting that Congress passed the PSLRA in 1995 to prevent this sort of thing. The point being?

    Still Waiting for the Congressional Hearings - PointOfLaw Forum

    In his latest column, "Stones Left Unturned," Kenneth Jost of CQ Press lists the predations of Melvyn Weiss and William Lerach, their decades of offenses angrily denied.

    Today, those denials are inoperative, the firm has broken up, and Lerach and Weiss are headed to federal prisons after pleading guilty to felony charges. But the head of the American Tort Reform Association, Sherman Joyce, says the full story of ethical misconduct by plaintiffs' lawyers in securities fraud suits remains to be written -- and he wants Congress to investigate.

    Joyce notes that, in a pre-sentencing interview with The Wall Street Journal, Lerach claimed his firm was just following an "industry practice" when it solicited and then paid shareholders who served as plaintiffs in securities suits. If Congress has time to investigate steroid use by baseball players, Joyce says, it ought to have time as well to look into the extent of unethical conduct over the years by plaintiffs lawyers in securities cases.

    Hard to disagree. In fact, it's such a strong argument, others have made it as well. There was the March 21st editorial in The Wall Street Journal, "The Felony Bar," which asked, "In the wake of the felony admissions of Weiss and Lerach and last week's bribery plea by Dickie Scruggs, where are the cries in Congress to crack down on these wealthy wrongdoers who abused their positions of legal trust?" The same day The Examiner made a similar point in "Four felony guilty pleas, but Congress sees no evil," asking, "Doesn't anybody in Congress wonder about copycat crimes?"

    Come to think of it, we proposed something along those lines at last October:

    It is time for high-profile investigations and oversight hearings from Congress into the lawsuit industry, demanding accountability from these spoilers. Let's investigate their impact on the economy, the abusive model that Milberg-Weiss established, and the harm their predations do to the children. Make the witnesses take the Fifth, if it comes to that. At the very least, the public shaming will serve an educational and deterrent effect.
    Still, no hearings. Strange. Wonder why.

    Around the web, April 21 - PointOfLaw Forum

    • Harassment and cover-up charges engulf office of Ohio AG Marc Dann [Overlawyered]
    • Cue laugh track: Pamela Gilbert predicts fewer product liability suits if Senate CPSC bill passes [Mark Hofmann/Financial Week]
    • Judges who hire clerks from Yale see their decisions reversed more often -- but which way (if either) does the causation run? [Volokh thread]
    • Campaign against medical errors leads to curtailment of hospital reimbursement for "never events" -- but are patient falls, delirium, hypoglycemia truly avoidable? [Happy Hospitalist, Overlawyered, Mello et al/Commonwealth Fund via MPT]
    • Ford Explorer loss-of-value coupon deal: "As an attorney that does a fair amount of class action work, I think this is a poor settlement." [Perlmutter/Schuelke; KickingTires/, CalLaw "Legal Pad"]
    • Defendants pleading guilty in Milberg Weiss scandal have agreed to cough up $32 million, a long way short of the $251 million prosecutors say was gained by the scheme [NLJ]
    • Obama-Ayers controversy brings press attention for non-repentant-sounding retired terrorist Bernardine Dohrn, whose project at prestigious Northwestern Law reaps mucho foundation grants [Chapman]

    Judge won't dismiss Milberg money-laundering charges - PointOfLaw Forum

    Yes, it's a sort of coincidental intersection between the Eliot Spitzer and Milberg Weiss scandals: the money transfers that take place during seemingly unrelated misconduct can fall afoul of federal money-laundering and "structuring" laws. A federal judge yesterday declined to throw out those counts in the federal prosecution of the once-dominant class action firm.

    Around the web, March 27 - PointOfLaw Forum

    Lawyers behaving badly edition:

    • Chastened Milberg firm now belatedly seeking deal with feds; turns out Larry Milberg also took part in the criminal scheme but was saved by his 1989 death from public fate of other name partners [Fortune, ABA Journal; OL]
    • Weiss offenses were "exceptions" and include abuses that "just don't exist anymore" at other firms, claims Fordham lawprof Jill Fisch -- nothing to see here, you understand, just move along [NYP]
    • OK, so some Texas litigation boosters may dislike the local U.S. Chamber-backed watchdog publication, but destroying copies in bulk just isn't cricket [SETexasRecord]
    • If Scruggs, Weiss and Lerach were in some other industry than lawyering, wanna bet Congress would have started hearings by now on their patterns of abuse? [Friedman, National Underwriter, NYPost editorial, ShopFloor]
    • Opponents say "bizarre", "abusive" judicial rulings in favor of Scruggs in fee dispute made them suspect something was wrong even before scandal broke [Clarion-Ledger]
    • When lawyers put out word that their clients are innocent and being framed -- shortly before the guilty plea gets announced [Overlawyered]

    "Part of the whole trial lawyer orbit" - PointOfLaw Forum

    Michael Barone on Milberg Weiss's political donations (via ShopFloor). More in an Examiner editorial: "It is impossible not to wonder what else might have been false in the Milberg Weiss cases. ... Doesn't anybody in Congress wonder?"

    ILEP: Mark Tapscott of The Examiner responds - PointOfLaw Forum

    Editorial page editor Mark Tapscott of the Washington Examiner writes in as follows in response to the letter posted earlier today from attorney Sandra Stein of ILEP (the Institute for Law and Economic Policy):

    I would advise Ms. Stein that it's not as easy as that. She, Labaton, Lerach and Milberg Weiss all had abundant opportunities to answer my specific questions about ILEP's funding, programs and operations prior to publication, yet refused to respond. Surely she doesn't now expect to be taken seriously by simply tossing out a post-publication ad hominem that what The Examiner published about ILEP is "falsehoods" because Phil Anschutz owns The Examiner. Unless ILEP responds to the specifics of what we published, readers will be fully justified in concluding that it has something to hide.

    Judicial seminars: a response from ILEP - PointOfLaw Forum

    Sandra Stein, longtime executive vice president of the Institute for Law and Economic Policy, writes in as follows in response to our Friday posting on the Examiner series:

    I'd like to respond to your posting regarding the Washington Examiner's smear campaign against ILEP last week and perhaps answer one of the questions you raise: why mainstream publications have not picked up this story. The answer is because there is no story. As you probably saw, the Examiner ran the series under the tag of "Editorial Commentary," thereby removing any need for journalistic standards or the requirement of legitimate facts.

    Please be advised the Washington Examiner has a pro-business, anti-shareholder/investor reputation. The owner of this paper is Philip Anschutz, a billionaire, who also owns Qwest Communications. Philip Anschutz recently settled a shareholder class action suit against Qwest for $400 million, which was filed by the real targets of this smear campaign, Milberg Weiss and Bill Lerach. This smear campaign by the Washington Examiner is based on falsehoods and is motivated by retribution and revenge.

    Milberg's judicial seminars - PointOfLaw Forum

    Earlier this month the Examiner ran a three-part series on a topic that had been the subject of virtually no previous press attention: the Institute for Law and Economic Policy, a decade-old think tank intended to provide a voice for the securities class-action plaintiff's bar, which runs annual conferences at high-end resorts bringing together sympathetic academics with judges and participating lawyers. The article quotes me as saying, "If Milberg Weiss and Bill Lerach wanted to cultivate favorable opinion among law professors, opinion makers, and judges, they seem to have found the perfect vehicle in ILEP." Surprisingly or otherwise, the series has prompted virtually no follow-up coverage elsewhere in the press, at least none that can be found on a Google News check.

    Lerach: "Everybody was paying plaintiffs" - PointOfLaw Forum

    "A prominent class-action lawyer facing sentencing today for secretly paying plaintiffs to file securities lawsuits, William Lerach, is suggesting that the under-the-table practice was widespread and was not isolated to the firm he helped run for decades, Milberg Weiss. ... Despite the highly publicized travails of what was once America's leading class-action law firm, there has been little public discussion of whether other firms may have emulated the secret payment scheme Lerach and other Milberg lawyers devised." Notwithstanding a request by Lerach's lawyers that the letters from his friends and supporters asking clemency be sealed from public inspection, most of the letters have become public, revealing the identities of such entirely unsurprising Lerach backers as Ralph Nader (who in this one particular case did not favor prison for white-collar criminality) and Ben Stein, known to readers of these pages (though apparently not to many readers of his New York Times column) as an expert witness hired repeatedly by Lerach to help portray sued companies' conduct in the harshest possible light. (Josh Gerstein, "Lerach Says Payoffs Were Widespread", New York Sun, Feb. 11). Another letter writer: Sen. Carl Levin (D-Mich.) And the list of letter-writers (PDF) includes "two redacted names in between Gordon Churchill and Charles Cohen", leading to speculation that one or both surnames might be "Clinton". It seems unlikely, though, that either prominent ex-White House resident would have risked the sort of negative publicity involved even as a gesture to acknowledge Lerach's past favors. (CalLaw "Legal Pad", Feb. 8)(cross-posted from Overlawyered)(corrected shortly after posting to reflect release of most letters by stipulation of parties, not judicial order). Update 4 p.m. EST: sentence is 24 months.

    A defense attorney argues that the loss of Milberg Weiss has resulted in a loss of collegiality in litigation:

    [T]he new lawyers are importing tactics from product liability cases, resulting in "an increasing inexorable tide of nastiness and incivility." In particular, he referred to tactics such as filing discovery sanction motions, noting that while good-intentioned people on the defense side are trying to find "millions of pieces of paper," they are being accused of "all sorts of high crimes and misdemeanors" by these younger attorneys who are "hijacking" the litigation process.

    Alexandra Lahav is unimpressed:

    Sometimes aggressive litigation is what addresses the merits, as compared with, say, just settling all cases in some smokey back room. I'm not saying that is what lawyers were doing before the entry of these over-caffeinated folks. But I'm also not against a cup or two if you're a bit slow in the morning. How do you determine the "merits" in the absence of litigation?

    But aggressive litigation that concocts fictional discovery violations and sanctions is exactly the opposite of litigating on the merits. It's about trying to win a case on grounds other than the merits (see, for example, the Sunbeam case or John Edwards's infamous Valerie Lakey victory; see also March 2006 and October 2005) or to make life so miserable for opposing counsel that they have conscious or subconscious bias to settle a case that should be litigated.

    There's also some false nostalgia going on if someone is claiming that Lerach et al. weren't engaged in nasty scorched-earth litigation themselves. Just ask Daniel Fischel.

    Around the web, February 4 - PointOfLaw Forum

    • Lots of amicus activity in Rhode Island lead paint appeal [ProJo, Genova]
    • Trial lawyers "in complete control" of Kentucky lower house, laments president of state senate [Lexington Herald-Leader]
    • Usually it's corporate defendants tripped up by charges of failing to produce discovery docs, but look what happened to Milberg Weiss [NLJ]
    • Speaking of which, official Mel Weiss bio still lists him as vice chair of lefty Drum Major Institute, though DMI seems to have dropped him into memory hole [ShopFloor; more on Milberg-DMI connection]
    • Duck for cover, New York AG Cuomo talks of using brass-knuckled Martin Act against Wall Street [DealBreaker]
    • Some lawyers believe women on juries judge women more harshly. True? [Reed]

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