Richard Faulk's blog

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 »

In a major disappointment for the plaintiffs’ bar, the 5th circuit court of appeals has granted a re hearing en banc in Comer v. Murphy Oil, et al.

The entire complement of the court’s judges granted rehearing to review an earlier decision by a three-judge panel that reversed the dismissal of Comer, a major climate change lawsuit arising from Hurricane Katrina. The court has not set a date for oral arguments.  Read More »

This “guidance” document impacts all businesses subject to SEC jurisdiction. It is sweeping, expansive and, unfortunately, fails to set realistic limits on the scope of its requirements. As a result, all regulated entities, and their officers and directors are placed in difficult circumstances. They now have a heavy burden of compliance and disclosure, and they face a risk of SEC enforcement, as well as civil and criminal liability if the disclosures prove inadequate or misleading.  Read More »

Recently, the U.S. District Court for the Northern District of California offered a ruling in Native Village of Kivalina, Alaska v. ExxonMobil Corp., et al., that is in stark contrast to the recent "public nuisance" ruling by the Second Circuit Court of Appeals on utility emissions.

Contrary to the sweeping and unprecedented ruling of the 2nd Circuit in State of Connecticut v. American Electric Power Co. Inc., 05-5104-cv (2d Cir., Sept. 21, 2009), the Kivalina court wisely recognized that global climate change allegations cannot support federal question jurisdiction.

Rather than trivializing the suit as an 'ordinary tort case,' the District Court found that the matter could not be resolved without considering the truly global nature of the issue - and the lack of any ascertainable standards to determine its resolution. Unlike the Second Circuit, the court saw major distinctions between ordinary pollution cases and planet-wide climate claims, and was not willing to indulge its creativity to invent liability criteria on a planetary scale.  Read More »

Climate change lawsuits have acquired a new and complex vitality as a result of a Monday's decision from the Second Circuit Court of Appeals. The court reversed the dismissal of public nuisance claims filed by various states, municipalities and private entities against operators of coal-fired power plants. State of Connecticut v. American Electric Power Co.  Read More »

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 »

Last August, my partner John Gray raised the question whether one state’s elected officials can force companies and governmental entities located in another state to comply with its enacted laws and regulations. He suggested that, if you thought they could not do so, you should follow North Carolina’s public nuisance case against the Tennessee Valley Authority (“TVA”) over cross-border pollution.  Read More »

Superficially, tort law and climate change seem perfectly matched.  Current cases seek to strike a "balance" reminiscent of earlier product liability cases, claiming that, as between the "victims" of climate change and the major emitters of greenhouse gases, the emission sources should bear the costs of climate change.  Allegedly, the sources are in a better position to absorb such costs and, unless liability is assessed, there is no incentive for the sources to discontinue their harmful emissions.  Read More »