Trial Lawyer Playbook Report

|2023

Regardless of the product, “The Trial Lawyer Playbook” is essentially the same every time. ATRA’s report unearths the foundational elements of this complex mass tort machine.

[…]

Executive Summary

In the dynamic landscape of Capitol Hill discussions and evolving policy debates, one topic has emerged as a pivotal concern – “The Trial Lawyer Playbook.” As policymakers grapple with the intricate web of mass tort litigation, it is evident that this playbook serves as the proverbial oil that keeps the mass tort machine running smoothly. 

The American Tort Reform Association’s comprehensive report, “The Trial Lawyer Playbook,” seeks to pull back the curtain and expose the inner workings of the trial bar – namely, the three-legged stool that upholds their operations, comprised of robust public relations and advertising campaigns, the propagation of junk science, and an infusion of funding from third-party investors.

Recent developments and events on Capitol Hill have set the stage for this pivotal discussion. In September 2023, the House Committee on Oversight and Reform held a hearing on third-party litigation financing, during which the American Tort Reform Association submitted a compelling letter of testimony, underscoring the urgency of this report. Equally pertinent is the introduction of a bill, the “Protecting Our Courts from Foreign Manipulation Act,” championed by Senators John Kennedy (R-LA) and Joe Manchin (D-WV), which looms large on the legislative horizon.

What is the Trial Lawyer Playbook?

Regardless of the product, “The Trial Lawyer Playbook”  is essentially the same every time. ATRA’s report unearths the foundational elements of this complex mass tort machine – third-party litigation financing, dubious scientific theories, and the ubiquitous influence wielded by trial lawyer advertising.  

The first pillar, third-party litigation financing (TPLF), swiftly has burgeoned into a multi-billion-dollar industry. Hedge funds and private equity entities now play a pivotal role by furnishing substantial capital to plaintiffs’ law firms, thereby securing a share of forthcoming settlements. While proponents extol TPLF for expanding access to justice, it introduces ethical quandaries and upends the conventional dynamics of litigation.

As foreign investment enters the realm of litigation finance, the narrative becomes further convoluted. Sovereign wealth funds, often enshrouded in opacity, have initiated investments in litigation finance entities, potentially infusing foreign influence into domestic legal matters. Apprehensions surrounding national security repercussions have prompted the aforementioned legislative response from Senators Kennedy and Manchin, forging bipartisan endeavors to address these concerns.

The second pillar of the triad centers on trial lawyer advertising. Law firms and lead generators spare no expense in soliciting new clients, deploying aggressive advertising campaigns that instill unwarranted trepidation in consumers. These campaigns are often made possible by third-party financing. Products such as Roundup® weed killer and talcum powder are thrust into the public limelight, frequently bereft of scientific substantiation. From 2017 to 2021, an astonishing $6.8 billion was spent on legal advertising, underscoring the magnitude of this issue.

The third pillar, the proliferation of unsubstantiated scientific evidence, finds particular resonance in mass tort litigation. Unscrupulous experts, characterized by dubious credentials and lax scientific standards, are enlisted to provide baseless scientific testimony. The integrity of our legal system is at risk as lenient evidentiary standards persist, permitting misleading assertions to infiltrate courtrooms.

Our hope is that legislators and policymakers utilize this report as a resource, given the report’s illuminative insights into a system that profoundly impacts not only the judicial echelon but also the lives and livelihoods of our neighbors. A report by the Perryman Group found that the total current impact of excessive tort costs on the U.S. economy includes losses of an estimated $472.88 billion in output (gross product) each year and about 4.46 million jobs when dynamic effects are considered. Some states with the highest “tort taxes” paid due to these excessive tort costs are in Judicial Hellholes® like California, New York, and Illinois, where residents pay an annual “tort tax” of $2,119, $2,013, and $1,688, respectively.

This report navigates the labyrinth of the trial lawyer playbook, encompassing in-depth analysis, instances of litigation, prospective trends, and a look at actions that have served as remedial measures in states, which have dealt with these issues. These states have proactively embraced measures to redress such pressing concerns.

 

Download Full Report

 

The Finance Play: Third Party Litigation Financing

What Is Third-Party Litigation Funding (TPLF)?

Third party litigation funding (TPLF) is the practice of investors buying an interest in the outcome of a lawsuit – and it has rapidly become a multi-billion-dollar industry.

There are multiple types of litigation financing, but “big-ticket” lawsuit lending typically involves hedge funds and private equity companies that specialize in financing mass tort litigation, commercial and intellectual property litigation, or a broader portfolio of cases handled by a law firm.

Third-party litigation funders front money to plaintiffs’ law firms in exchange for an agreed-upon cut of any settlement or money judgment. When these cases are resolved, the lawsuit lender is usually entitled to a percentage of the recovery, much like a contingency-fee. Investors are attracted by the prospect of a substantial return on their investment and law firms use the money to cover upfront litigation costs.

Importantly, litigation financing does not only fund lawsuits, but it creates them. For example, an outsider’s financial investment in a case may be used to cover the cost of the mass tort lawsuit advertising that has surged in recent years and the call centers that handle the responses. These ads often urge viewers who have taken a prescription drug, been treated with a medical device, or used a consumer product to “call right now” because “you may be entitled to substantial compensation.” Even when sound science does not support these suits, mass tort lawyers and their investors understand that if they quickly generate thousands of claims tying a widely used product to a common illness, the targeted company will face strong pressure to reach a global settlement. That settlement will result in a substantial payout to both the contingency-fee lawyers and investors. 

Proponents of lawsuit financing argue that TPLF provides access to justice for those who might not otherwise be able to afford it. But, the reality is that it can create serious problems for the legal system as a whole.

Litigation financing raises several ethical concerns, such as a threat to a lawyer’s ability to exercise independent judgment in cases where the funder can influence litigation or settlement decisions. The presence of an unknown third-party with a stake in the outcome of a lawsuit can change what is essentially a two-party negotiation into a multi-party process with a “behind-the-scenes” influencer. As a TPLF company executive has acknowledged, litigation funding “make[s] it harder and more expensive to settle cases.” 

An Analysis of TPLF Today

With mass torts frequently being litigated on a contingency arrangement by plaintiffs’ firms, financing litigation has become a lucrative business. An article from The New York Times in 2018 noted that hedge funds and investment firms have begun to open funds based on litigation finance, with these investors becoming “go-to financiers for many of these cases.” These loans to law firms often carry interest rates as high as 18%, with some investors also receiving a cut of any possible return in some larger cases. The head of one large litigation finance fund even equated mass tort lending to “payday lending.”

With more than $10 billion in capital distributed from investors to law firms in 2021, hedge funds are not only capitalizing individual mass torts, they are also funding law firms to buy mass tort cases from other firms to bulk up their caseloads. Litigation finance has become a booming industry as large Wall Street firms and pension funds aim to diversify their investment portfolios with alternative investment classes that make money independent of market variance.

Examples of TPLF & Litigation Funders

Beyond Wall Street money, some of the smaller trial law firms also are receiving financing from larger, more established trial law firms. One example of this phenomenon is Counsel Financial, a boutique litigation finance firm partially overseen by Weitz & Luxenberg, a large plaintiffs’ firm focusing on mass torts. Counsel Financial boasts of financing lawsuits dealing with talc, Xarelto and hernia mesh, all of which have been a focus of  Weitz & Luxenberg. Counsel Financial even has a program offering to help new trial lawyers get into mass torts dealing with those three case classes. Weitz & Luxenberg lawyers are even offered up as mentors for trial lawyers looking to file those lawsuits.

A hybrid model between Wall Street funding and the Counsel Financial model exists with Armadillo Litigation Funding. Armadillo Litigation Funding is run by employees of the Johnson Law Group, a mass tort firm based in Texas, but appears to be funded by EJF Capital. Armadillo Litigation Funding supplies money not just to the Johnson Law Group, but also gives money to smaller firms participating in mass torts.

 

Counsel Financial Boasts About Providing Funding for Various Lawsuit Classes, Including Talcum And Xarelto

 

(Source: “Mass Torts,” Counsel Financial, Accessed 5/21/21)

 

(Source: “Talcum Powder,” Counsel Financial, Accessed 5/21/21)

 

(Source: “Xarelto,” Counsel Financial, Accessed 5/21/21)

 

 

Outside Investors Owning Law Firms

Rules in virtually every state prohibit private interests from owning – or co-owning – law firms. This recently changed in Arizona, where the state supreme court ruled that outside investors can own law firms. Experts have said the groups most likely to participate in co-owning a law firm could be litigation funders or legal marketing firms.This arrangement could lead to lawyers directly splitting case proceeds with their outside investors, something that wasn’t possible before. Legal experts worry this could create cross-pressure with law firms that may be trapped between their fiduciary duty to their investors and their ethical duty to their clients. 

Conflicts of interest between fiduciary duty and client representation in mass torts has already been an issue in direct litigation finance. Some lenders charge higher interest rates as cases drag on, putting pressure on the trial lawyer to settle or take less than what their client would get by prolonging the case. During pelvic mesh cases, the federal government investigated whether lawyers and litigation funders were urging women to remove their mesh implants to receive larger settlements from companies that made or manufactured pelvic mesh.

 

Using Loans to Buy New Clients from Other Firms

Using loans to acquire new clients from other firms raises additional concerns within the legal industry. A prime example of this practice can be seen in the 2016 acquisition of Gerchen Keller Capital by Burford Capital. In this transaction, a substantial sum of $160 million was involved, composed of cash, notes, and shares. Gerchen Keller Capital, previously known for its involvement in personal injury mass torts, had amassed a considerable $475 million fund in 2015. They extended $100 million to the Houston law firm AkinMears for the explicit purpose of buying injury claims from other lawyers.

This strategy essentially turns legal cases into commodities, with financing deals often structured at interest rates near 16%. AkinMears utilized Gerchen Keller’s capital to acquire a staggering 14,000 defective product claims, primarily focusing on transvaginal mesh cases.  The potential profits were immense, with calculations suggesting attorneys’ fees of up to $200 million if the cases proved successful.

Furthermore, part of the funds obtained by AkinMears from Gerchen Keller went toward settling debts with another litigation financing company, Virage Capital Management. AkinMears had found itself in dire financial straits due to substantial debt, making it increasingly challenging to secure additional loans. Gerchen Keller’s capital infusion not only facilitated the acquisition of new clients but also acted as a lifeline, allowing AkinMears to stabilize its financial position by paying off a portion of its outstanding debts.

This practice underscores the ethical and moral dilemmas inherent in the legal industry’s pursuit of profit. Using loans to buy clients from other firms transforms justice into a commercial venture, potentially compromising the integrity of legal proceedings and the interests of clients. It raises serious questions about the prioritization of financial gain over the principles of justice and the sanctity of legal practice.

 

Foreign Investment

Coupled with the rise of large hedge funds and pension funds to find alternative assets for portfolio diversification, it is no surprise that sovereign wealth funds have begun to invest in litigation finance firms and funds. Disclosures as to which litigation finance funds receive sovereign wealth investment is sparse as sovereign wealth funds do not have to publicly disclose their investments.

While the exact investments of sovereign wealth in litigation finance is largely unknown, some reports have leaked. A 2022 article in Arabian Gulf Business implied that the Abu Dhabi Investment Authority has invested in litigation finance funds. Litigation finance firms like Burford Capital, Fortress Investment Group, IMF Bentham and Therium Capital Management all have announced publicly that they have received sovereign wealth investment.

The issues relating to sovereign wealth investment in litigation finance have been noted by several outside experts. In December 2022, an unnamed outside association warned the U.S. Government Accountability Office that sovereign wealth funds could seek to influence litigation decisions via these funds. University of Iowa law professor Maya Steinitz noted, “a sovereign wealth fund or a foreign government may seek to advance foreign policy or military goals.” A recent report by the U.S. Chamber of Commerce echoed similar concerns. In December 2022, 14 Republican Attorneys General asked the U.S. Department of Justice to investigate foreign funding into litigation finance. 

Senator John Kennedy (R-LA), a member of the Senate Judiciary Committee, has expressed concerns that state actors like China and Russia could infiltrate litigation financing in the U.S. which could have dire national security implications. Senator Kennedy recently asked Chief Justice John Roberts and Attorney General Merrick Garland to proactively issue guidance and take steps to limit the ability of foreign governments from being involved in funding domestic litigation. In September 2023, Senator Kennedy and Senator Joe Manchin (D-WV) introduced bi-partisan legislation aimed at addressing these concerns. 

How to Curb Abuse

Our legal system is intended to achieve fair and just resolution – not to generate profits for investors. If third-party litigation financing continues to be allowed, there must be regulations in place to ensure that investors are held accountable for their actions and that the integrity of the legal system is preserved. 

Regulations should include transparency surrounding TPLF agreements. Disclosure of such arrangements at the outset of litigation or upon entering a funding agreement would provide parties and courts with vital information to assess the influence of funders on the litigation.

 

Recent Successful Legislative Efforts

In some states, legislative bodies have prioritized reforms to address various forms of TPLF. These efforts are outlined below.

2023

Indiana

H.B. 1124 – Requires disclosure of a consumer litigation funding agreement. 

Missouri

S.B. 103 – Provides that consumer litigation funding agreements are subject to the rules of discovery, among other requirements. 

Montana

S.B. 269 – Subjects TPLF to the maximum usury interest rate or a 25% fee cap, requires automatic disclosure of the agreement in litigation and requires registration with the state as well as disclosure of the officers of the company engaging in litigation financing in Montana.  The legislation explicitly applies to class actions and subjects lenders to joint liability for costs and sanctions.

 

The Advertising Play: Trial Lawyer Advertising & Client Acquisition

Why and How Are Lawyers Advertising Their Services?

Law firms and businesses known as lead generators or aggregators increasingly spend large sums of money on advertising to recruit new clients – especially in plaintiff-friendly Judicial Hellholes®. They know it’s an effective way to needlessly scare consumers and encourage them to file claims.

If you turn on your television, chances are you will see an advertisement for either a law firm or a mass tort. Between 2017 and 2021, $6.8 billion was spent on legal advertising on television, comprising more than 77 million ads aired. Of the $6.8 billion spent, $1.4 billion of that came in 2021 alone. As Bloomberg noted in 2023, mass tort cases have been “turbocharged by a mass tort marketing industry that has evolved in recent years from the door-knocking of Erin Brockovich types into a high-tech, targeted operation on social media and TV.”

These ads include those soliciting claims alleging that consumer products, pharmaceuticals, and medical devices are responsible for medical conditions that either have a range of potential causes or the causes of which are unknown. Top targets of these ads include Roundup® weed killer, talcum powder and, more recently, the herbicide paraquat.

As of 2022, Roundup® was the top target of mass tort product liability litigation TV ads since 2015, with an estimated $131 million spent on more than 625,000 ads airing nationally and locally across the country between 2015 and 2022. Second only to Roundup® litigation ads, are ads soliciting claims alleging a link between the use of talcum powder and incidences of cancer. An estimated $109 million was spent on more than 370,000 talc litigation ads nationwide between 2015 and 2022.

Since plaintiffs’ lawyers have earned billions of dollars on talc and Roundup® litigation, showing a good return on their advertising investment, they’ve turned their attention to another herbicide – paraquat. Between2021 and 2022, more TV ads aired across the country soliciting claims alleging injuries caused by paraquat than mass tort ads related to any other product. Advertisers spent more than $24 million to air more than 150,000 of these ads between 2021 and 2022.

Notably, much of this advertising is conducted by aggregators: businesses that recruit potential plaintiffs and then sell their information to law firms.

From advertising to in-person advocacy to the outright purchase of caseloads, there are many ways to build out a portfolio of cases. And the payoff can be massive, with firms holding the largest caseloads often getting preference for payouts and the allocation of funds from cases involving large, multidistrict litigation.

An Analysis of Trial Lawyers’ Marketing Tactics & Client Acquisition Today

 

Legal Services Advertising

Advertising is the trial bar’s main method for finding claimants, with many advertisements being paid for by legal lead generators. Those lead generators then turn around and sell the potential clients based on a formula determined by the number of lawyers advertising for the case and where the litigation stands in the courts. A simple rule of thumb is that the more lawyers who are interested in gaining clients via advertising, the more expensive it will be for the trial law firm to gain caseload on a per-client basis. Beyond lead generation, some of these marketing firms have even opened a sideline in retrieving the medical records of potential claimants before passing this information along to tort law firms –a function previously handled  by the law firms directly.

Some of the biggest players in legal lead generation include MCM Services Group (more commonly known as the Gold Shield Group) and the Relion Group, which is wholly owned by the Carlyle Group. Another player, Knightline Legal is owned by Lucy Business Services LLC and primarily utilizes TV ads to generate leads for mass tort firms. Knightline Legal positions itself as a consolidated group of lawyers offering legal services to those injured by dangerous drugs and medical devices. Potential leads who call their hotline provide confidential information, which is then forwarded to law firms for evaluation. 

While advertising and buying client loads have been an aspect of client generation for decades, several new frontiers of client generation have popped up in recent years. Newsome Melton, an Orlando-based law firm, has started an Astroturf marketing campaign by creating a website with information on brain and spinal injuries. This informational website then serves to drive potential personal injury clients to the firm. Newsome Melton has also sought to write guest articles for other, work safety-related blogs under a pseudonym, with content designed to drive business to the firm.

 

Client Acquisition Beyond Ads

Mass tort firms have also started to get more aggressive with in-person marketing. In 2018, mass tort firm Napoli Shkolnik hosted an in-person event in Flint, Michigan with actor Harper Hill. The event aimed to get local residents to sign retainer agreements for lawsuits relating to the detection of lead in the Flint water system. Another law firm involved in litigation in Flint, Cohen Milstein, accused Napoli of breaching ethics laws against solicitation. 

Another new method of client generation comes from Levy Konigsberg in the competitive market for asbestos and mesothelioma clients. The law firm donates a considerable amount of money to a doctor studying mesothelioma at the NYU Langone Medical Center, leading the doctor to refer his clients directly to the firm

Examples of Trial Lawyer Ads 

Ad analysis conducted by the American Tort Reform Association utilizing data and creative provided by Kantar. 

 

Impacts of Misleading Legal Services Advertisements

Unfortunately, consumers may see doomsday ads about the lethal effects of medications or even general medical injury, and consequently stop using their prescribed medications. This is often done without consulting a doctor, causing health problems for the patients and increasing litigation risk for the product manufacturers.

A 2019 FDA study shows the real-life consequences of deceptive trial lawyer ads. The report found 66 incidents of adverse events following patients discontinuing the use of blood thinner medication (Pradaxa, Xarelto, Eliquis or Savaysa) after viewing a lawyer advertisement. The median patient age was 70 and 98% stopped medication use without consulting with their doctor. Thirty-three patients experienced a stroke, 24 experienced another serious injury, and seven people died. 

Dr. Shawn H. Fleming, doctor for one of the deceased, stated before a 2017 U.S. House Judiciary committee hearing, “It’s my opinion that the tone and content of these advertisements imply a qualitative judgment about these medications that are just not true. When you say ‘call 1-800-BAD-DRUG,’ that clearly implies it’s a bad drug, which runs counter to current medical evidence and also to the FDA’s recommendations.” 

These over-the-top advertisements from personal injury attorneys with catchy jingles and toll-free numbers pose a serious danger. These ads undermine the simple notion that physicians and health care providers, not personal injury lawyers or the “aggregators” who run the ads for the lawyers, should dispense medical advice.

The reason trial lawyers pump significant money into these ad buys is because, armed with more clients, they can boost settlements and payouts when they go after large corporations. This leads to larger contingency fees for themselves.

The ads do more than help recruit clients, however. They can also influence the thinking of citizens who may serve on a jury in lawsuits. A survey conducted by Trial Partners, Inc. found that 90% of jurors would be somewhat or very concerned if they saw an advertisement claiming a company’s product injured people. Additionally, 72% of jurors agreed somewhat or strongly that if there are lawsuits against a company claiming its products injured people, then there is probably truth to the claim – showing just how great an impact these ads can have.

These examples collectively shed light on the complexities and ethical issues surrounding legal services advertisements and the acquisition of clients in the legal industry. The changing industry highlights the need for transparency, regulation, and scrutiny of practices that may compromise the integrity of the attorney-client relationship.

 

How To Curb Abuse

States need to place reasonable regulations regarding deceptive or misleading lawsuit or legal services advertisements.

In some states, legislative bodies have prioritized reforms to address misleading legal services advertisements. These efforts are outlined below.

 

Recent Successful Legislative Efforts

2023

Florida

H.B. 1205  – Creates law related to legal advertising and the use of protected health information to solicit individuals for legal services.

 

2022

Kansas

S.B. 150 – Creates law related to legal advertising and the use of protected health information to solicit individuals for legal services.

 

Louisiana

S.B. 378 – Prohibits deceptive or misleading advertisements, specifically those presented as a medical alert, health alert, drug alert, or public service announcement. 

 

The Junk Science Play: Misleading Scientific Evidence

What is Junk Science?

The trial bar engages in massive television ad buys and public relations campaigns that peddle misinformation and taint the public’s preconceptions, while judges in Judicial Hellholes® fail to restrict falsehoods in their courtrooms. Junk science is especially common in mass tort litigation regarding the glyphosate-based Roundup® weed killer and talcum baby powder. The trial bar is spending hundreds of millions of dollars trying to drive home the message that these products cause cancer, despite the lack of sound scientific evidence verifying such claims.

Many courts have lax standards for evidence and judges who abandon their role as gatekeepers, resulting in an abundance of “junk science” presented to jurors.

Trial lawyers sometimes partner with so-called experts to provide misleading scientific evidence to support their claims both inside and outside the courtroom.

Simply stated, for a mass tort to exist, a target must be found to sue. In the past, targets were found via more traditional methods such as product recalls, regulation, and legislation, all of which are done by government organizations. Now, beyond these traditional methods, the plaintiff’s bar is also finding targets by relying on non-governmental organizations, often featuring shoddy research, using novel legal strategies to identify new targets, and even infiltrating traditional regulatory bodies to push regulations to extremes to make it easier to sue.

Trial lawyers turn to individuals with dubious credentials and a loose appreciation of ethical norms for one reason – the truth simply isn’t on their side.

An Analysis and Examples of Junk Science Today

Valisure & Private Testing Labs

Valisure, a small private sector company based in Connecticut, has been the genesis of a number of lawsuits filed against drug and chemical manufacturers, most notably lawsuits on the diabetes drug Metformin and heartburn medication Zantac.

Valisure has been repeatedly criticized by experts for their faulty methodology, with the U.S. Food and Drug Administration calling out Valisure’s methodology on both its tests on Zantac and Metformin. Valisure was also forced to retract a study on Zantac due to methodological issues.  

Valisure’s testing methodology involved heating the product to over 260 degrees, which is clearly not a realistic scenario for how an individual would consume the drug, considering that is double the temperature of the average healthy person.

Besides heating the product to temperatures it would not otherwise be subjected to, Valisure also tested the product with an artificial stomach containing unusually high amounts of salt – amounts that humans could not safely ingest.

Of more long-term concern is Valisure’s ties to trial lawyers. Several times, mass torts have been filed in the wake of Valisure testing results, including lawsuits regarding Metformin and Zantac.

Valisure has publicly said their business model is based on “generating data” for companies and other stakeholders, with Valisure’s CEO David Light noting they made money via a “data index subscription services.”One defendant who was the subject of a mass tort based on Valisure data explicitly called the company out, noting the company might have “financial incentives to… skew the results of its testing in a plaintiff-friendly manner.”

This contention was borne out in emails found during the discovery process in a mass tort filed using Valisure data. The emails found that Valisure received direct funding from trial lawyers for testing and had discussions with trial lawyers prior to filing a citizen’s petition with the FDA against rapid-release acetaminophen gel caps produced for Rite Aid. Emails also showed that trial lawyers hired Vailsure as a consultant before the citizen’s petition was filed and Valisure discussed the progress of the study and citizen’s petition “for months in advance of its publication. The brother-in-law of Valisure’s CEO also appears to have gotten information from Valisure tests ahead of publication, with lawsuits on the levels of ranitidine in Zantac and the amount of benzene in body sprays being filed the same exact day Valisure publicly released FDA citizen’s petitions on the topics.

 

The World Health Organization and the International Agency for Research on Cancer (IARC)

Over the course of the last several decades, the use of outlier studies to instigate new mass torts has risen precipitously. One of the most frequent sources for these outlier studies has been the World Health Organization’s International Agency for Research on Cancer, which is more commonly known as IARC. As of 2016, IARC had studied 989 separate substances and activities and had only found one that they didn’t deem a cause of cancer – a nylon used in yoga pants and nylon bristles. 

Among IARC’s more interesting determinations, they rated processed meats, wood dust and Chinese salted fish as existing at the same cancer-causing level as plutonium, mustard gas and tobacco use. IARC has also ruled that working as a painter causes cancer, mobile phone usage possibly causes cancer and working as a nurse is “probably carcinogenic.” With rulings like this, it’s no surprise that IARC has been called out by outside governmental regulators for their suspect methodology. 

IARC also has  been subjected to heavy criticism from outside experts and even former employees. Bob Tarone, the Head of Biostatistics at the International Epidemiology Institute, said IARC’s cancer determinations were “not good for science” and “not good for regulatory agencies.” Anotherformer employee stated IARC’s cancer determinations sometimes lack “scientific rigor.” Geoffrey Kabat, a cancer epidemiologist at the Albert Einstein College of Medicine, said IARC’s cancer determinations are “theoretical exposures which might, under some far-fetched conditions, possibly have an effect,” which does the public a “disservice.”

On glyphosate, a chemical IARC deems probably carcinogenic, a host of governmental regulators have dismissed the IARC methodology as flawed, as has been the case with IARC’s classification of aspartame. Environmental safety agencies in the U.S., Canada, Brazil, Australia, New Zealand, Japan, and the European Union have spent decades reviewing the health impacts of glyphosate. All agree that no credible evidence exists linking glyphosate to non-Hodgkin’s lymphoma.

But IARC says otherwise. The chemical, generally found safe by regulators worldwide, was termed a “probable” carcinogen by IARC in 2015. A member of the working group was a scientist named Christopher Portier, who, beyond being paid by an anti-pesticide advocacy group, later received $160,000 to serve as a consultant for a group of lawyers suing Monsanto over their use of glyphosate in their products. According to emails, Portier even took it upon himself to go on a “counteroffensive policy” to “deflect any reputational damage to IARC’s review” by going after agencies such as Germany’s Federal Institute for Risk Assessment and European Food Safety Authority’s assessments of glyphosate. 

 

Roundup® Litigation

Monsanto faces thousands of cases across the country alleging Roundup® causes cancer. Expert witnesses testify that glyphosate, the active ingredient in Monsanto’s signature Roundup® weedkiller, is to blame for triggering the disease. 

While a vast majority of plaintiffs’ lawyers rely on IARC’s glyphosate study as the foundation for their claims, others have looked to questionable “expert” witnesses.  

One such example was in August 2022, in the first St. Louis County case involving three plaintiffs from Florida, Washington, and upstate New York. Ten of the 12 jurors in the St. Louis courtroom sided with Monsanto, even after hearing a month’s worth of unfounded science put forth by plaintiffs’ witnesses. The case fell apart under cross-examination as the expert witnesses proved less than credible. 

The LinkedIn resume of one plaintiffs’ witness, William Sawyer, advertised that he was a “board-certified toxicologist” — until he was confronted on the stand and forced to admit that he was unable to obtain certification from the American Board of Toxicology. Sawyer failed both of his attempts to pass the examination required to secure that important credential. Sawyer then turned to Robert O’Block, founder of the American College of Forensic Examiners, who supplied an appropriate diploma. In fact, O’Block was so willing to certify any paying customer that he once certified a cat as a toxicologist.

Sawyer is a full-time expert witness in glyphosate product liability trials, an occupation that has made him a millionaire. Billing $785 an hour for his time, Sawyer has collected $2.5 million from his testimony in four Roundup® trials, according to his own testimony at trial.

At least Sawyer had academic training in toxicology. Fellow expert witness Charles Benbrook, by contrast, testified about the health effects of glyphosate despite having no training whatsoever in medicine, toxicology, or epidemiology.

Benbrook runs the Heartland Health Research Alliance (HHRA) which produces studies linking cancer to herbicides like Roundup®, as well as competing herbicides like dicamba and 2,4-D. His studies are likely laying the groundwork for future lawsuits against those products.

The trial bar sees great value in Benbrook’s endeavor – he was rewarded with $1.3 million for his testimony in addition to the $220,000 annual salary he takes from his non-profit, scientific research organization. The trial bar not only provides funding, it provides management direction. HHRA’s vice chair is Robin Greenwald, a partner at Weitz & Luxenberg, one of the many firms suing Monsanto.

 

Talcum Powder Litigation

Plaintiffs’ lawyers see the media as co-counsel in mass tort litigation. Most recently, The New Yorker published a story about Johnson & Johnson and its long-running talc litigation. 

Plaintiffs’ lawyers seem unwilling to let the litigation’s facts and legal arguments speak for themselves. Instead, as their communications with The New Yorker show, they helped orchestrate a media broadside in the form of a misleading 8,000-word article riddled with false statements, half-truths and omitted facts they then promoted tirelessly on social media. 

Plaintiffs’ attorneys persuaded The New Yorker to print their allegations as if they were facts. One of the sources The New Yorker cites is the plaintiffs’ attorneys’ hired gun expert, Dr. David Egilman, who testifies that, every time he looks, he finds asbestos in the tissue of customers who use Johnson & Johnson’s baby powder. In addition, Dr. Egilman recently testified that, when shown a picture of the Orion constellation, it was a depiction of talc, which allegedly contained asbestos. 

The magazine also failed to disclose that, in 2007, Dr. Egilman conspired with others to violate a protective order in a case regarding the drug Zyprexa, and he provided hundreds of cherry-picked confidential documents to various media outlets – including by using a sham subpoena. A federal district court held extensive hearings and strongly rebuked Dr. Egilman for his conduct, noting that he and his conspirators “executed the conspiracy using other people as their agents in crime.” Judge Jack Weinstein of the U.S. District Court for the Eastern District of New York stated that “such unprincipled revelation of sealed documents seriously compromises the ability of litigants to speak and reveal information candidly to each other; these illegalities impede private and peaceful resolution of disputes.

Judge Weinstein issued a Stipulated Order in which Dr. Egilman accepted responsibility and was ordered to pay Eli Lilly $100,000, which the company then donated to a charity of its choosing. 

Despite a myriad of baseless claims by the plaintiffs’ bar, independent medical experts have not found a confirmed link between talcum powder and cancer. 

 

PFAS Litigation

The plaintiffs’ bar also have set their sights on companies in the per- and polyfluoroalkyl (PFAS) business. These chemicals have been used since the 1950s and are valued for their ability to resist heat, repel water, protect surfaces, and reduce friction. They have been incorporated into an array of consumer products, such as nonstick cookware, stain-resistant carpet, and electronics.

In 2016 the U.S. Environmental Protection Agency issued new regulations on the amount of PFAS allowed in drinking water. This has led to a spate of new mass tort lawsuits across the country, with trial lawyers not just targeting PFAS manufacturers, but also companies that used PFAS and even landfill owners and operators over alleged PFAS contamination. This is despite the fact that no definitive evidence of adverse health effects from PFAS exists, with the states of New York and Minnesota showing no health effects from PFAS.

Despite this fact, 3M settled an 8-year long case with Minnesota for $850 million in February 2018. Of this total, $125 million went to private contingency fee lawyers — which, according to a Minnesota legislator, was the equivalent of earning $47,000 per day for seven years.

How To Curb Abuse

Juries and judges should have access to the most complete and accurate evidence during trials and be presented with scientifically and factually accurate information to allow them to make well-informed decisions.

Judges and lawmakers must support implementation of Federal Rule of Evidence 702 in courts, requiring that theories must be based on sound scientific method.

The Rule 702 standard is utilized in the federal court system and by a majority of states. Judges must follow applicable laws regarding evidentiary standards if they are in place in their state.  


[hide]

View

Legal Services Advertising Spending – California – Quarters 1-2, 2022

California|2022

January-June 2022

[…]

In the first half of 2022, it is estimated that $34 million were spent to air approximately 250,000 television ads for local legal services or soliciting legal claims in California’s top three media markets – Los Angeles, San Francisco-Oakland-San Jose, and Sacramento-Stockton-Modesto.

An analysis and discussion of the legal services advertising volume and spending in California follows.

Download PDF


[hide]

View

The Hidden Money Behind the Litigation: The Problematic Expansion of Third Party Litigation Funding

|2022

Third party litigation funding (TPLF) is the practice of investors

[…]

Third party litigation funding (TPLF) is the practice of investors buying an interest in the outcome of a lawsuit. It has quickly become a multi-billion dollar industry. TPLF comes in several forms that present distinct issues and require different solutions, but they share three commonalities:

  • The funder has a financial interest in the ultimate resolution of the lawsuit.
  • The involvement of an outside funder raises ethical issues, such as who is driving or influencing the litigation, directly or indirectly.
  • The presence of an outside funder, and its entitlement to a portion of a plaintiff’s recovery, can complicate the ability to fairly resolve disputes and drive up settlements and awards.

This paper focuses on three forms of TPLF:

  • “Big-ticket” lawsuit lending;
  • “Fast-cash” lawsuit lending; and,
  • “Letters of protection.”

The paper further focuses on relevant ethics rules and laws as well as potential solutions.


[hide]

View

Attorneys General for Hire: A Disturbing Usurpation of Traditional State Police Powers By Private Political Activists

This article discusses the rapidly growing climate change litigation brought

[…]

This article discusses the rapidly growing climate change litigation brought by the state attorneys general and local governments in concert with plaintiffs’ firms, often with the aid of privately funded special assistant attorneys general. It explains their legal tactics and theories, describes the counterarguments being made by the energy companies, and provides a summary of the most important court decisions to date.


[hide]

View

From Legal Scholarship to Legal Advocacy: The Evolving Role of the American Law Institute in State Court Jurisprudence

|2022

Several years ago, the American Tort Reform Association (ATRA) began

[…]

Several years ago, the American Tort Reform Association (ATRA) began to take note of a disturbing new trend; the once-esteemed American Law Institute (ALI) was evolving its role. No longer was it content to serve as an educational resource to state courts and the legal profession—rather it has begun to move into a new advocacy role outlining what the law should become.

This short paper outlines and highlights the adverse impact of this new ALI role on state court jurisprudence. The late Supreme Court Justice Antonin Scalia noted that the authors of the ALI’s flagship publications – its restatements – have, “abandoned the mission of describing the law and have chosen instead to set forth their aspirations for what the law ought to be.”

Here we outline the ALI’s agenda and highlight how the ALI’s new advocacy agenda threatens ATRA’s goal of a fair, equitable and predictable civil justice system.


[hide]

View

The National Association of Attorneys General

|2022

A Nonprofit That Acts Like a Plaintiffs’ Firm

[…]

Executive Summary

The National Association of Attorneys General (NAAG) was founded in 1907 as a nominally independent association as a way for state AGs to coordinate shared antitrust cases.[1] Historically, the Association has played an influential role in managing multistate investigations and lawsuits. Over time, however, NAAG’s focus has shifted from promoting efficiency and coordination to instead promoting entrepreneurial litigation targeting a variety of industries – similar to the mission of the mass torts plaintiffs’ bar.

NAAG has had a significant role in some of the most prominent mass tort litigation over the past few decades. Its targets have included manufacturers of tobacco, and most recently, opioids. The Association fully participates in settlements reached in multistate lawsuits, just as individual states and their for-profit, contingency-fee counsel participate. Interestingly, this places what once was an independent association in a situation in which it now has profit as a main motive to help initiate and settle litigation, just as the trial bar does.

For example, in March 2021, NAAG received $15 million as part of McKinsey’s $600 million settlement for the company’s role in marketing opioid prescriptions.[2] NAAG also received $103 million that grew to $140 million from the landmark Tobacco Master Settlement Agreement.[3]

NAAG essentially acts as a self-sustaining litigation machine, mainly funded by two revenue sources: yearly dues from state attorneys general of approximately $70,000 per state, per year[4]; and carveouts from multistate litigation settlements.

NAAG’s programs, operated through these funds, seem to be tailored specifically to promote litigation against business – attorneys in state AGs’ offices are trained under NAAG programming to bring more cases against other industries.[5] These training sessions are designed to help AGs be more effective in litigation. NAAG’s targeted training and support of state AGs offices is similar to that of other activist groups looking to influence and promote litigation in AG offices. For example, the Bloomberg-funded State Energy & Environmental Impact Center at New York University School of Law is designed to further litigation by placing lawyers funded by the Center in the offices of friendly attorneys general across the country, empowering them to bring climate change litigation. However, outside influence, whether it be from NAAG or other activist organizations, creates a concerning lack of accountability and transparency in state attorneys’ general offices.

To promote coordinated mass tort litigation, NAAG members also participate in working groups that focus on potential multi-state lawsuits. Their activities include information sharing agreements between state AG offices as well as monthly phone calls to discuss ongoing investigation. NAAG then offers lead states the opportunity to recruit other states to join specific litigation.

Additionally, plaintiffs’ lawyers often hold training sessions at NAAG conferences in which they discuss best practices for pursuing mass torts. It is an excellent business development opportunity for these plaintiffs’ lawyers because many of them will later look to be hired on a contingency-fee basis once the AGs initiate lawsuits.

In the early stages of litigation, NAAG provides grants to the states to help litigation get off the ground. Currently, NAAG has more than $200 million in assets. States receive grants to fund research and other expenses needed to determine participation in a multistate lawsuit. Any state seeking NAAG funding must submit a detailed memo outlining their legal strategy, expenses, and predicted results. States are required to repay the grant if there is a settlement regardless of whether the settlement terms stipulate reimbursement to NAAG.[6]

Utilizing this sort of funding source for litigation allows AGs to avoid using state-appropriated funds – or having to go to the legislature for more funds. This funding side-step weakens potential checks and balances a legislature may want to exercise in these situations.

NAAG continues to find new targets, from the tobacco litigation of the 1990s to the opioid lawsuits of today. While the opioid lawsuits begin to wind down, NAAG is now forming working groups on climate change and environmental issues like PFAS, eyeing a new generation of potential mass tort lawsuits.[7] Given the new NAAG focus on mass tort profit motive, it’s only a matter of time until they move into new areas of focus.

The following report provides additional information about the innerworkings of NAAG along with supporting background and research.

 

[1] Rachel M. Cohen, “The Hour Of The Attorneys General,” The American Prospect, Spring 2017.

[2] O.H. Skinner, “Payouts To Victims, Not Special-Interest Groups,” Washington Times, 3/3/21; https://www.washingtontimes.com/news/2021/mar/2/payouts-victims-not-special-interest-groups/.

[3] Daniel Fisher, “The House Tobacco Built,” Forbes, 8/14/08.

[4] Sean Ross, “Alabama Becomes First State To Leave National Association Of Attorneys General — ‘Going Further And Further Left’,” Yellowhammer News, 4/26/21.

[5] “Events & Training,” National Association Of Attorneys General, Accessed 1/27/22.

[6] “Janssen Settlement Agreement,” Office Of The Texas Comptroller, 7/21/21.

[7] “Clean Energy Issues Are On The Docket For State Attorneys General,” New York University, 10/3/19.



[hide]

View

Legal Services Advertising Spending – 2017-2021

Nationwide Report of Legal Services Advertising Across the U.S.

[…]

In 2021, it is estimated that more than $971.6 million were spent on more than 15.1 million television ads for local legal services or soliciting legal claims across the United States. When compared with the same time period in 2020, spending on these ads increased more than 11% while the quantity of ads increased more than 9%. Much of this advertising is conducted by aggregators: businesses that recruit potential plaintiffs and then sell their information to law firms.

The following report includes data from nearly every U.S. state and the District of Columbia. The data included are estimates based on best available data in early 2022, thus not all 2021 data may be fully accounted for, and that is noted where applicable.

Download PDF


[hide]

View

Legal Services Advertising Spending – California, Florida, Missouri, New York, Pennsylvania – 2016-2021

California|2016

From 2016 to 2020, spending on local legal services television

[…]

From 2016 to 2020, spending on local legal services television advertisements across the United States has increased 19.31%. Estimated total spending in 2016 was $732,845,167. In 2020, that number jumped to $874,394,062. The quantity of local legal services television advertisements aired across the U.S. also has increased 37.24% In 2016, an estimated 10,093,175 ads aired. In 2020, an estimated 13,851,936 ads aired. In the first five months of 2021 alone, it is estimated that more than $368.6 million were spent on more than 6.3 million television ads for local legal services or soliciting legal claims across the United States.

An analysis and discussion of the legal services advertising volume and spending in California, Florida, Missouri, New York, and Pennsylvania follows.

 

Download PDF


[hide]

View

Legal Services Advertising Spending – Illinois – Quarter 1, 2021

Illinois

January-March, 2021

[…]

In the 1st Quarter of 2021, $232 million was spent on 3,853,813 advertisements for legal services and/or soliciting legal claims aired on local broadcast networks in the 210 local media markets across the United States. Illinois accounted for approximately 3% of all spending with more than $7 million spent in the state. Illinois also accounted for more than 1.5% of all local legal services TV ads that aired in the country during that quarter with 60,927 ads.

An analysis and discussion of the legal services advertising volume and spending in Illinois follows.

Download PDF

 


[hide]

View

Local Legal Services Advertising Spending – Louisiana – Quarter 4, 2020

Louisiana

October-December, 2020

[…]

In the 4th Quarter of 2020 alone, it is estimated that more than $237 million were spent on more than 3.1 million ads for local legal services or soliciting legal claims across the United States. In the 4th Quarter of 2020, $12.359 million were spent on advertisements for legal services and/or soliciting legal claims in Louisiana. A vast majority (77%) of that spending went toward television advertisements, while outdoor advertisements such as billboards accounted for just under 22%. Radio accounted for a mere 0.41% of local legal services advertising spending.

An analysis and discussion of the legal services advertising volume and spending in Louisiana follows.

Download Full Report


[hide]

View

Deal Or No Deal? Why States Are And Should Continue Rejecting The Federal Mandate On State False Claims Acts

States have been debating the merits of enacting new state

[…]

States have been debating the merits of enacting new state False Claims Acts (FCAs), or broadening existing ones, largely in response to a federal mandate included in the 2005 federal Deficit Reduction Act. The 2005 mandate dictates that to have a federally qualified FCA, the state must have a whistleblower provision targeted at Medicaid-related fraud that is at least as generous to whistleblowers as the federal civil FCA, which gives the whistleblowers up to 30% of recoveries. If a state enacts such a false claims act, the federal government will give states 10% more of the awards in cases brought under those laws.

A few states quickly passed laws to meet these standards, but most have taken a more careful and cautious look. These states want to know if the federal “deal” is worth it, both financially and in their ability to fight and deter fraud. To date, most states have not adopted these changes. This paper explains why this decision is sound from the perspectives of both economics and public policy.

Download White Paper


[hide]

View

COVID-19 Legal Services Television Advertising

Alabama|2021

National and Select State Data

[…]

Download Report

Trial lawyers and aggregators increasingly spend large sums of money on television, digital, and print advertising to recruit new clients for class actions targeting a variety of industries. As the COVID-19 pandemic reached the United States, entrepreneurial personal injury lawyers saw yet another opportunity to profit off of a national crisis.

Early on, a coalition of national law firms specializing in mass tort litigation formed a “Coronavirus Litigation Task Force” to identify targets and theories for litigation. Law firm websites sprung up, inviting people to blame their illness or family member’s death on someone rather than on the virus. Some websites provide a roadmap for suing for contracting COVID-19 at work. Others attempt to prompt lawsuits against nursing homes or others. One website, “Top Class Actions,” uses that familiar language often heard on billboards and late-night TV ads: “If you believe that your rights were violated by a company as a result of the coronavirus pandemic, you may be entitled to compensation.” 

From March through December of 2020, 176,053 advertisements for legal services and/or soliciting legal claims mentioning COVID-19 or coronavirus aired in the United States at an estimated cost of $34.4 million. As of February 1, 2021, 8,200 lawsuits related to COVID-19 have been filed in the United States.

Thus far, COVID-19 exposure lawsuits have primarily targeted those that have experienced outbreaks, such as cruise ships (including those who did not become ill) and nursing homes. Lawsuits filed by employees of retailers, meat processing plants, supermarkets, and healthcare providers are also mounting. In addition, some plaintiffs’ lawyers have filed class actions alleging that the business’s operation – a fast-food restaurant, golf course, office building, or shipping facility – poses a risk of transmitting COVID-19 and is a public nuisance. As doors open and operations move back toward “normal,” more lawsuits are likely to target schools, daycare centers, offices, stores, factories, and others. 

The following study by the American Tort Reform Association shows the trial bar’s intention to profit off of the pandemic. Plaintiffs’ lawyers have spent millions of dollars on COVID-19 related advertising across the country and will continue to do so.  The data shows just how important it is for state legislatures to seek legislative solutions to support health care providers, businesses, and their employees who have been on the frontlines, responding to the pandemic. To date, 21 states and the District of Columbia have enacted some level of COVID-19 liability protections.

Recent polling shows broad bipartisan support for elected officials to respond to pandemic-related issues – rather than trial lawyers filing lawsuits to address such concerns. Key findings show 74% of respondents said the government should support small businesses affected by COVID-19 with grants or loans, versus 6% who said lawyers should help small businesses pursue legal claims instead. 

Despite the lack of public support for COVID-19 litigation, law firms advertised regardless. An analysis by the Wall Street Journal found that dozens of top law firms received millions in Paycheck Protection Program (PPP) loans. Some firms spent those dollars to increase their advertising, including U.S. powerhouse personal injury law firm, Morgan & Morgan. This report shows Morgan & Morgan as the top sponsor for COVID-19 legal services TV ads from March through December, airing approximately 70,000 ads at a cost of $10.5 million.

 


[hide]

View

COVID-19 Polling – December 2020

|2020

December 2020 COVID-19 polling related to legal advertisements and COVID-19 relief.

[…]

Key Findings: 

  • Majorities across both parties maintain that elected officials should respond to the pandemic, rather than trial lawyers. 59% say those harmed by the pandemic should get assistance from policies passed by elected officials, versus just 7% who say they should get payouts from lawsuits: this is consistent from October when 63% favored assistance through policy versus 9% who favored payouts from lawsuits.
  • Messaging on small business receives an even stronger response: 74% say small businesses affected by COVID-19 should be supported by government grants or loans versus 6% who say lawyers should help small businesses pursue legal claims.
  • 48% of voters agree law firms using PPP funds for lawsuit advertising is inappropriate compared to 26% who say this is appropriate. This trend holds from October when 62% called lawsuit advertising inappropriate and 24% considered this appropriate; the discrepancy in those who call advertising inappropriate was driven by a greater proportion of Unsure respondents.
  • The proportion of voters who say trial lawyer advertisements are annoying and take advantage of people is virtually unchanged from October: 65% said advertisements are annoying and take advantage of people in December, and 66% said the same in October.

Download Report


[hide]

View

COVID-19 Polling – October 2020

|2020

October 2020 Omnibus Polling

[…]

Key Takeaways:

  1. When it comes to COVID-19 relief, Americans strongly favor government assistance over the legal actions of trial lawyers.
    • Less than one-in-10 respondents (9%) believe that trial attorneys filing lawsuits is a better approach to dealing with COVID-19 than government assistance policies.
    • A solid majority—63% of those surveyed—stated government assistance policies were preferable.
  2. America’s preference for government assistance over the actions of trial lawyers is even more pronounced when it comes to small businesses.
    • Just 7% of respondents stated that lawyers encouraging small business to pursue legal claims is preferable to the government providing grants or loans.
    • An overwhelming majority—78%—stated government-provided small business loans and grants were preferable.
  3. Americans dislike the trial lawyers’ television advertisements and view the use of PPP loans on them as inappropriate.
    • Two-thirds of respondents (66%) agreed with the notion that trial lawyer TV ads took advantage of people and were annoying.
    • Less than a quarter (24%) of those surveyed believed trial lawyers’ use of PPP loans on television advertisements was an appropriate use of funds.

 

Download PDF


[hide]

View

Responding to the Coming Lawsuit Surge: Policy Prescriptions for Addressing COVID-19 Tort Litigation

|2020

This white paper explores tort liability concerns related to the COVID-19 pandemic and considers potential solutions.

[…]

Each day, thousands of people in the United States are contracting coronavirus. The virus is devastating families, stretching the ability of health care providers to help those who become sick, and crippling businesses and the economy. Manufacturers have ramped up production of medical supplies and protective equipment and are investigating treatment options and developing vaccines.

Some personal injury lawyers, however, view individuals exposed to COVID-19 as a large new pool of plaintiffs, and health care providers and businesses that aid in the response effort or provide essential services as defendants to cast blame. Personal injury law firms are already recruiting individuals to “sue now” even if they have not contracted the disease. The first lawsuits targeting health care providers, employers, retailers and other businesses for COVID-related injuries have been filed. Many more are to come.

States should proactively adopt legislation that distinguishes legitimate claims from no-injury lawsuits. States can place reasonable constraints on the types of lawsuits that pose an obstacle to the coronavirus response effort, place businesses in jeopardy, and further damage the economy.

ATRA applauds the nation’s governors who have stepped up to address liability concerns stemming from COVID-19. These executive orders generally rely on the governor’s authority under each state’s emergency powers statute to modify or suspend enforcement of state laws that pose an obstacle to the state’s ability to respond to a crisis. The risk is that this type of executive action has not been tested in court. Plaintiffs’ lawyers are certain to challenge the governors’ authority to provide this liability protection through use of emergency powers.

This paper explores tort liability concerns related to the COVID-19 pandemic and considers potential solutions.

ATRA COVID-19 White Paper


[hide]

View

The Plaintiffs’ Lawyer Quest for the Holy Grail

|2020

The Public Nuisance “Super Tort”

[…]

 

One can only imagine the scene inside the plaintiffs’ lawyers’ R&D laboratory for expansive liability theories when they created today’s public nuisance litigation: “Let’s come up with a way to sue manufacturers without having to prove product liability,” said one personal injury lawyer. “Wouldn’t it be great if this new legal theory did not even require us to prove fault,” added another. “I know, let’s get rid of causation too! And, while we’re at it, let’s figure out how to bring these new lawsuits on behalf of a whole bunch of people without having to deal with those pesky class action rules.”

Mix a little bit of this and a little bit of that, and bam! A “Super Tort” is born.

That is today’s public nuisance litigation in a nutshell. It is completely unprincipled and a far departure from any long-standing liability law. Under tort law, including under public nuisance theory, a person or company is supposed to be subject to liability only for wrongfully causing harm. In today’s public nuisance lawsuits, though, plaintiffs’ lawyers are attempting to convince judges to discard this basic principle. These lawsuits are attempts to subject businesses to liability over societal problems—regardless of fault, how the harm developed or was caused, whether the elements of the tort are met, or even if the liability will actually address the issue. Their mantra is, “Let’s make ‘Big Business’ pay.”

This report explores several high-profile public nuisance lawsuits being waged in courtrooms around the country today. It explains what public nuisance theory is, how it has long been used, and how plaintiffs’ lawyers are trying to re-engineer it into their Super Tort. What we find is that plaintiffs’ lawyers typically look for a crisis that people want to solve. This can be a hot-button political issue like climate change, a widespread social harm like opioid addiction, or an environmental concern such as contamination in a local waterway. Then, they look to represent a local or state government so they can sue on behalf of an entire community without abiding by class action rules. The lawyers offer to do this for “free,” agreeing to be paid only from money the lawsuits generate.

For elected officials, signing up for this litigation is enticing. They get to tell their constituents that they are trying to solve a local, national, or even international problem and it isn’t going to cost them anything. Who doesn’t want free money? Then, the government-deputized contingency-fee lawyers target businesses—often large, faceless, out-of-state companies—that they can vilify in the media and blame for the problem because their products are associated with the crisis. It doesn’t matter whether the companies actually caused the crisis or are legally responsible for it. In fact, they often sue entire industries to cast blame in broad strokes in an effort to get away from having to prove specific allegations against specific companies.

Those who bring today’s novel brand of public nuisance lawsuits gamble that (1) local judges, who often are elected, will want to be seen as trying to solve a problem for the community and will facilitate the recoveries despite traditional tort law, or (2) the targeted businesses will buckle under the pressure of the media and litigation onslaught and settle the claims just to end the nightmare, regardless of the truth or justice.

The truth is that public nuisance theory is not and should not become a “Super Tort” for making businesses pay for any and all crises. As the next section shows, it is a centuries-old tort with a highly specific purpose, namely to deal with local disturbances like vagrancy. It also does not permit either this Cuisinart-style of liability, where everyone in an industry is blended together, or strict liability for manufacturers merely because their products are associated with a downstream harm.

These crises do need to be solved, but they should be solved the right way. That is why today’s expansive public nuisance litigation should concern us all.

Read the full report: The Plaintiffs’ Lawyer Quest for the Holy Grail: The Public Nuisance “Super Tort”


[hide]

View

Local Legal Services Advertising Spending – West Virginia – Quarter 3, 2019

West Virginia|2019

In the third quarter of 2019, from July through September,

[…]

In the third quarter of 2019, from July through September, nearly 3.7 million advertisements for legal services and/or soliciting legal claims aired on local broadcast networks in the 210 local media markets across the United States. It is estimated that more than one quarter of one billion dollars was spent on airing these ads. An analysis and discussion of the legal services advertising volume and spending in West Virginia follows.

In two West Virginia media markets in the 3rd quarter of 2019 – from July through September – television advertisers for legal services sponsored a daily average of nearly 60 ads in Clarksburg and nearly 360 ads in Charleston at a total estimated cost of nearly $1.5 million.


[hide]

View

Local Legal Services Advertising Spending – Florida – Quarter 3, 2019

Florida|2019

In the third quarter of 2019, from July through September,

[…]

In the third quarter of 2019, from July through September, nearly 3.7 million advertisements for legal services and/or soliciting legal claims aired on local broadcast networks in the 210 local media markets across the United States. It is estimated that more than one quarter of one billion dollars was spent on airing these ads. An analysis and discussion of the legal services advertising volume and spending in Florida follows.

Florida is the third most populous state in the nation and Tampa-St. Petersburg and Miami-Ft. Lauderdale are the largest media markets in the state. They are also among the Top 20 markets by size in the country ranking as No. 12 and No. 16 with 1.8 million and 1.6 million television households each.

 


[hide]

View

Local Legal Services Advertising Spending – Georgia– Quarter 3, 2019

Georgia|2019

In the third quarter of 2019, from July through September,

[…]

In the third quarter of 2019, from July through September, nearly 3.7 million advertisements for legal services and/or soliciting legal claims aired on local broadcast networks in the 210 local media markets across the United States. It is estimated that more than one quarter of one billion dollars was spent on airing these ads. An analysis and discussion of the legal services advertising volume and spending in Georgia follows.

Atlanta and Savannah, the two largest media markets in Georgia and the 10th and 89th largest in the country, also saw heavy local legal services TV advertising in the third quarter of 2019.


[hide]

View

Local Legal Services Advertising Spending – Philadelphia – Quarters 1-2, 2019

Pennsylvania|2019

In the first half of 2019, from January through June,

[…]

In the first half of 2019, from January through June, approximately 6.9 million advertisements for legal services and/or soliciting legal claims aired on local broadcast networks in the 210 local media markets across the United States at an estimated cost of $422 million. An analysis and discussion of the legal services advertising volume and spending in Philadelphia follows.

With nearly 13 million residents, Pennsylvania is the fifth most populous state in the nation and its largest city, Philadelphia, encompasses the fourth-largest media market in the country with 2.8 million homes with televisions.


[hide]

View

Local Legal Services Advertising Spending – Louisiana – Quarters 3-4, 2018

Louisiana|2019

With 4.7 million residents, Louisiana is the 25th most populous

[…]

With 4.7 million residents, Louisiana is the 25th most populous state in the nation, and its three largest media markets include New Orleans, Shreveport, and Baton Rouge. Louisiana’s largest market, New Orleans, ranks 50th in the nation with an estimated 624,000 television-viewing households. Shreveport, ranked 90th, includes slightly fewer than 323,000 television-viewing households while the Baton Rouge media market ranks 97th in the nation with more than 287,000 television-viewing households.

In the second half of 2018, a legal services ad aired every minute on average in local broadcast networks across these three Louisiana media markets. From July to December, viewers in New Orleans, Shreveport and Baton Rouge were exposed to 251,116 of these advertisements purchased at an estimated cost of $15.6 million.

An analysis and discussion of the legal services advertising volumes and spending in these markets follows.


[hide]

View

Local Legal Services Advertising Spending – Texas – Quarter 4, 2018

Texas|2019

Texas is the second-most populous state in the nation and

[…]

Texas is the second-most populous state in the nation and its four largest media markets include Dallas-Ft. Worth, Houston, San Antonio, and Austin. Dallas-Ft. Worth and Houston are the fifth and the seventh largest media markets in the U.S., with 2.6 million and 2.4 million respective television households. San Antonio, the third largest media market in Texas, is the 31st largest media market in the country, with 900,000 television households. The 4th largest Texas market, Austin, ranks 40th in the nation with just under 752,000 television households. An analysis and discussion of the legal services advertising volumes and spending in these markets follows.


[hide]

View

Local Legal Services Advertising Spending – Kentucky – Quarters 2-3, 2018

Kentucky|2019

In the second and third quarters of 2018, from April

[…]

In the second and third quarters of 2018, from April through September, nearly 6 million advertisements for legal services and/or soliciting legal claims aired on local broadcast networks in the 210 local media markets across the United States. It is estimated that $412 million were spent purchasing these ads. Eight percent of the locally broadcasted legal services ads during this six month period aired in seven media markets in three states across the United States. These markets – Dallas, Houston, and San Antonio, Texas; New Orleans and Shreveport, Louisiana; and Lexington and Louisville, Kentucky – also accounted for nine percent of all local legal services television advertising spending during this time period. An analysis and discussion of the legal services advertising volumes in the Kentucky markets follows.


[hide]

View

Local Legal Services Advertising Spending – Texas – Quarters 2-3, 2018

Texas|2019

In the second and third quarters of 2018, from April

[…]

In the second and third quarters of 2018, from April through September, nearly 6 million advertisements for legal services and/or soliciting legal claims aired on local broadcast networks in the 210 local media markets across the United States. It is estimated that $412 million were spent purchasing these ads. Eight percent of the locally broadcasted legal services ads during this six month period aired in seven media markets in three states across the United States. An analysis and discussion of the legal services advertising volumes in the Texas markets follows.


[hide]

View

Local Legal Services Advertising Spending – West Virginia – Quarters 1-3, 2018

West Virginia|2019

In the first, second, and third quarters of 2018 –

[…]

In the first, second, and third quarters of 2018 – from January through September – nearly 90,000 advertisements for legal services or advertisements soliciting legal claims aired on local broadcast networks in two of the largest media markets in West Virginia at an estimated cost of $3.9 million.[1] An analysis and discussion of the legal services advertising in these markets – Charleston and Clarksburg, West Virginia – follows.


[hide]

View

Local Legal Services Advertising Spending – Quarter 3, 2018

|2019

This study looks at seven media markets and dissects trial

[…]

This study looks at seven media markets and dissects trial lawyers’ spending on legal services ads in Los Angeles, San Francisco, Tampa-St. Petersburg, Miami-Ft. Lauderdale, St. Louis, Kansas City and New York City. It offers comparisons between Quarter 2 spending and Quarter 3 spending in 2018. Nearly 14 percent of all local legal services television ad spending occurred in these seven markets in the third quarter of 2018.


[hide]

View

Local Legal Services Advertising Spending – Quarter 2, 2018

|2018

This report looks at seven media markets and dissects trial

[…]

This report looks at seven media markets and dissects trial lawyers’ spending on local legal services ads in Los Angeles, San Francisco, Tampa-St. Petersburg, Miami-Ft. Lauderdale, St. Louis, Kansas City and New York City. Nearly 15 percent of local legal services television ad spending occurred in these seven markets in the second quarter of 2018.


[hide]

View

STATE CONSUMER PROTECTION LAWS UNHINGED It is Time to Restore Sanity to the Litigation

|2016

Consumer protection laws were intended to provide a remedy for

[…]

Consumer protection laws were intended to provide a remedy for people who are duped by false advertising or misleading practices in their day-to-day purchases, but, lately, the primary beneficiaries are plaintiffs’ lawyers. By taking advantage of the laws’ vague prohibition of “unfair or deceptive practices,” plaintiffs’ attorneys and some advocacy groups are transforming them from serving a legitimate function for consumers into a virtual lawsuit production factory. As a result of these suits, consumers get less choice in products and services, higher prices, and unnecessary disclaimers. Those who take the time to fill out the paperwork resulting from a settlement may get a few dollars or a coupon off their next purchase, while the attorneys who ginned up the lawsuit take home millions.


[hide]

View

Consumer Protection Acts or Consumer Litigation Acts? A Historical and Empirical Examination of State CPAs

|2016

This paper explores the introduction, original mission of, and corruption

[…]

This paper explores the introduction, original mission of, and corruption of State CPAs. It proceeds in three additional parts. Part II outlines a brief history of American consumer protection laws, beginning with the accompanying immodest expansions of State CPAs. Part III reviews and discusses the predictable litigation consequences of these expansions, including harm to consumers themselves, litigants, and the judicial system, and briefly surveys elementary economic theory as well as salient empirical data confirming that these unjustified CPA expansions harm consumers. Part IV concludes, recommending several salutary policy prescriptions for lawmakers considering amending a State CPA.


[hide]

View