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About UsSanta 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.
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Is It Too Much Of A Nuisance For the Attorney General's Office To Do Its Job?
Ted Lieu, who’s angling for the job of California Attorney General, thinks plaintiffs’ lawyers should take over the role of the elected representatives and the appointed public servants who oversee the complex enforcement of statutory and regulatory rules affecting California consumers. Read More »
Public Nuisance under Federal Common Law - Huh?
This site contains information about the interplay between public nuisance theories and climate change litigation. (See, Global Warming and Public Nuisance Part I and Part II). A new development in that area is the Second Circuit's 139-page opinion in State of Connecticut v. American Electric Power Co. Inc., 05-5104-cv (2d Cir., Sept. 21, 2009). In that case, the Federal Court of Appeals held state governments (in this case, Connecticut, California, Iowa, New Jersey, Rhode Island, Vermont, Wisconsin, and New York) can sue utilities under federal common law theories of public nuisance for contributing to global warming. This ruling reversed the district court's decision that such claims would interfere with the responsibilities of the political branches. Read More »
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?
Commentators and Some AG’s agree: Nuisance Litigation is Not the Cure for Public Health Problems
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 »
Pursuing Public Nuisance Claims Can Create Costly Headaches for Government Plaintiffs
Here’s hoping that the government lawyers responsible for pursuing the pending public nuisance litigation in Santa Clara v. ARCO et al take a close look at the recent cost award against the state of Rhode Island described in this article. Read More »
Requiring AGs to seek bids for outside counsel
This week, the Missouri Lawyers Weekly [subscription required] reports on a proposal to require the attorney general to seek bids when hiring outside counsel, which could have a significant impact on government use of private firms to prosecute public nuisance cases and other actions on behalf of the general public. Read More »
State AGs and Separation of Powers
As described on legalnewsline.com, the Washington Legal Foundation contains an opinion piece by John Suthers (Colorado Attorney General) and Geoff Blue (Colorado Deputy Attorney General for Legal Policy). The piece is titled, "State Attorneys General Must Be Mindful of Separation of Powers." Read More »
Opening Briefs Filed in Santa Clara v. Superior Court
This blog has previously mentioned the Santa Clara v. Superior Court case, now pending in the California Supreme Court. See here and here and here. [Full disclosure: this blog's author is one of the defense counsel of record in that case.] As reflected at the court's online docket, the issue presented is: "May a public entity retain private counsel to prosecute a public nuisance abatement action under a contingent fee agreement?" Read More »
Pairing AGs and Private Attorneys
Legal Newsline (owned by the U.S. Chamber of Commerce’s Institute for Legal Reform and member of the Public Nuisance Fairness Coalition) has an interview of Joe Speelman, spokesman for the Coalition, describing attempts by the plaintiffs' bar to expand public nuisance liability in a variety of ways, and criticizing state and local governments' complicity with those attempts - particularly when government plaintiffs hire outside private counsel on a contingency fee basis. Read More »