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About UsWelcome to NuisanceLaw.com
You can now access key decisions and appellate briefs in our Brief Bank. We have recently posted both the merits and amici briefs in the Santa Clara matter that was recently argued before the California Supreme Court. We will add additional briefs from other cases in the near term and on a regular basis.
We are also spotlighting a new author. Richard Faulk has been a contributor to NuisanceLaw.com from its inception. A leading authority in this area of the law, Rick has examined and written extensively on the issue of public nuisance and, in particular, its appropriate and inappropriate application. Please take some time to read about Rick.
Trust Without Verification? Using Legal Fictions to Justify Contingent Fees by Public Authorities in Public Nuisance Litigation
Author: Richard O. Faulk
Richard O. Faulk
Richard O. Faulk is the Chair of the Litigation Department of Gardere Wynne Sewell LLP, which maintains offices in Dallas, Houston, and Austin, Texas, as well as in Mexico City. He also leads the firm’s Climate Change Task Force and the firm’s Environmental Practice Group.
Mr. Faulk concentrates his personal practice in complex environmental litigation, including class actions and "mass tort" cases with international impacts. He is a board-certified specialist in federal and state appellate practice, and has argued cases before numerous federal and state trial and appellate courts, including the U.S. Supreme Court. He is experienced and widely published on the complex problems raised by CERCLA litigation and the rights and remedies of persons dealing with contaminated properties. Read More »
Supreme Court of California Rules on Santa Clara Contingency Fee Issue - Backpedals on Clancy
On Monday the Supreme Court of California spoke for the first time in 25 years on the rule prohibiting contingency fee counsel from prosecuting public law enforcement claims. In People ex rel. Clancy v. Superior Court, 39 Cal.3d 740 (1985), the court prohibited this practice unequivocally because of the risk that the impartiality and neutrality of the public prosecutor would be compromised by contingency fee counsel’s financial interest in generating the largest possible dollar recovery in the litigation. Read More »
California Supreme Court in Reverse: The Contingency Fee Decision
On Monday the California Supreme Court reversed course on itself by deciding a governmental entity can retain contingency fee counsel to pursue civil claims provided the language of the contingency fee agreement contains certain provisions that purport to guarantee the government is in control of the litigation. In County of Santa Clara v. Read More »
Kivalina Appeal Draws Fire From Industry Amicus Briefs
The appeal of the dismissal of the Kivalina climate change case has drawn fire from several amicus curiae, but some of the most notable criticism comes from Richard Faulk and John Gray in their amicus brief for The American Chemistry Council, the American Coatings Association, and several other industry organizations. In their brief, Faulk and Gray illustrate how the “standardless” liability for public nuisance sought by the plaintiffs creates a non-justiciable “political question” – and justifies the district court’s dismissal of the plaintiffs’ claim. Read More »
Resisting the Siren Call of Contingency Fee Counsel
As previously reported at this site, the California Supreme Court heard argument on May 5 in County of Santa Clara v. Superior Court, a case that will decide the continued vitality of the rule in People ex rel. Clancy v. Superior Court, 39 Cal.3d 740 (1985), barring the government from hiring contingent fee counsel to prosecute public nuisance and other similar civil law enforcement actions. At issue is whether the prohibition in Clancy is subject to an exception when the government exercises adequate control and supervision over contingent fee counsel. Read More »
Santa Clara Oral Argument: It Isn't About Control
The California Supreme Court heard arguments last week in Santa Clara v. Superior Court (Arco et al),which we’ve been following on this blog. Cal Law has an article about it (Public-Private Suits May Get Justices' OK) as does the Daily Journal (Agencies May Get to Hiring Counsel). At issue is whether government entity plaintiffs, when exercising their sovereign authority to bring civil law enforcement actions (such as the public nuisance action in this case brought against lead paint manufacturers), may hire outside contingent fee counsel to prosecute the claims, despite those counsels' personal stake in maximizing any monetary recovery against the defendants.
Read More »
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