The ancient common tort of public nuisance is one of the most highly visible issues in modern tort jurisprudence. Its growth is particularly notable in climate change and environmental litigation, where it seems to be the “tort of choice” for plaintiffs seeking breathtakingly broad relief from global warming and trans-border pollution. Read More »
Author: 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 »
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 »
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.
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President Reagan's approach to diplomacy was "trust, but verify" based on an old Russian proverb. The wisdom of this aphorism is not limited to arms control negotiations. It holds equally true when public authorities employ contingent fee counsel to pursue public nuisance litigation.
On May 5, 2010, the California Supreme Court will hear arguments on a major issue - whether public authorities can hire private contingent fee counsel to litigate massive public nuisance cases. Read More »
Only recently, the ancient tort of public nuisance was “down” and in the process of being “counted out” when its expansion was rejected by the highest courts of New Jersey, Rhode Island, Missouri and Ohio.1 Within the past year, however, it was remarkably resuscitated by federal courts that approved it as a vehicle for redressing climate change and interstate pollution. Read More »
The Orange County Register of March 12 reports that the District Attorney there has hired private counsel on a contingent fee basis to “assist” the prosecutor in bringing an unfair business practices lawsuit seeking civil penalties from Toyota for selling cars with sudden acceleration problems. The action asks for $2500 for each violation of state consumer protection law, plus attorney fees and costs. Read More »