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 »
This website has already taken a look at the California District Attorneys Association amicus curiae brief filed in the public nuisance contingent fee case (Santa Clara v. Superior Court [ARCO et al]) now pending in the California Supreme Court. Another interesting amicus brief was recently filed by a group of legal ethics professors, headed by the dean of the new U.C. Irvine Law School, Erwin Chemerinsky.
Oddly enough, the legal ethics professors don’t see the need for a bright-line rule against the government hiring contingent fee lawyers to prosecute public nuisance claims like the claims of the government entities in the Santa Clara Lead Paint Litigation. Instead, the legal ethics professors contend that “the proper standard of neutrality can be maintained in light of the contingency fee agreement . . . on a case-by-case basis, taking into account the actual relationship between the public entity and its contingent-fee counsel and the type and status of the case at hand. . . .” The brief argues that a categorical ban on using contingent fee lawyers to prosecute public nuisance actions is not required by legal ethics, that such a ban would hobble government efforts to pursue public claims, and that a case-by-case analysis of the relationship between the government and its contingent fee lawyers is all that is needed to safeguard the integrity of public law enforcement actions. The prosecuting attorneys in California, however, disagree.
Amicus Curiae Briefs Filed in Santa Clara Case: Most Come out Against Contingency Fee Arrangements for Inherently Public Claims
The pending Santa Clara v. Superior Court litigation has previously been discussed on this site, most recently in a post with an update on the parties’ merits briefing. As can be seen from the California Supreme Court’s online docket, the amicus briefs are rolling in to address the issue presented before the court, i.e., "May a public entity retain private counsel to prosecute a public nuisance abatement action under a contingent fee agreement?
When faced with the challenge of defending abusive public nuisance lawsuits, corporate defendants would be well advised to examine their insurance policies. In addition to providing coverage for any potential liability, such policies may also provide costs of defense coverage.
Recently the Wall Street Journal ran an editorial describing how Florida is dealing with the problematic alliances between state Attorneys General and contingent fee lawyers. As many readers of this blog know, this problem, which resulted in outrageous windfalls to private attorneys in the tobacco litigation, is still being used to pursue speculative litigation on behalf of public authorities in many contexts, most notably in the lead paint litigation. Read More »
Governing Magazine’s executive editor Alan Ehrenhalt has a thoughtful piece – “Torts for Tots” - on the problem of “regulation through litigation” (an issue previously blogged on this site). Against the backdrop of public nuisance litigation against lead paint and pigment manufacturers, he raises serious questions about the role of courts in undertaking broad public policy determinations that more properly rest with legislatures. Read More »