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The Takeover of America’s Legal System

In 2017, the super lawyer David Boies was at a corporate retreat at the Ritz-Carlton in Key Biscayne, Florida, hosted by his law firm, Boies, Schiller and Flexner. Boies was a liberal legend: He had represented Al Gore in Bush v. Gore, and, in 2013, successfully defended gay marriage in California, in Hollingsworth v. Perry, paving the way for the landmark Supreme Court ruling two years later.

On the last day of the retreat, Boies gave a talk in the hotel ballroom to 100 or so attorneys, according to a lawyer who was present at the event. Afterwards, Boies’s colleagues were invited to ask questions.

Most of the questions were yawners. Then, an associate in her late twenties stood up. She said there were lawyers at the firm who were “uncomfortable” with Boies representing disgraced movie maker Harvey Weinstein, and she wanted to know whether Boies would pay them severance so they could quit and focus on applying for jobs at other firms. Boies, who declined to comment for this article, said no.

That lawyers could be tainted by representing unpopular clients was hardly news. But in times past, lawyers worried about the public—not other lawyers. Defending communists, terrorists, and cop killers had never been a crowd pleaser, but that’s what lawyers had to do sometimes: Defend people who were hated.

When congressional Republicans attacked attorneys for representing Guantanamo detainees, for example, the entire profession rallied around them. The American Civil Liberties Union noted that John Adams took pride in representing British soldiers accused of taking part in the Boston Massacre, calling it “one of the best pieces of service I ever rendered to my country.”

But that’s not how the new associates saw Boies’s choice to represent Weinstein. They thought there were certain people you just did not represent—people so hateful and reprehensible that helping them made you complicit. The partners, the old-timers—pretty much everyone over 50—found this unbelievable. That wasn’t the law as they had known it. That wasn’t America.

“The idea that guilty people shouldn’t get lawyers attacks the legal system at its root,” Andrew Koppelman, a prominent liberal scholar of constitutional law at Northwestern University, said. “People will ask: ‘How can you represent someone who’s guilty?’ The answer is that a society where accused people don’t get a defense as a matter of course is a society you don’t want to live in. It’s a totalitarian nightmare.”


‘Operating in a Panopticon’

The adversarial legal system—in which both sides of a dispute are represented vigorously by attorneys with a vested interest in winning—is at the heart of the American constitutional order. Since time immemorial, law schools have tried to prepare their students to take part in that system.

Not so much anymore. Now, the politicization and tribalism of campus life have crowded out old-fashioned expectations about justice and neutrality. The imperatives of race, gender and identity are more important to more and more law students than due process, the presumption of innocence, and all the norms and values at the foundation of what we think of as the rule of law.

Critics of those values are nothing new, of course, and certainly they are not new at elite law schools. Critical race theory, as it came to be called in the 1980s, began as a critique of neutral principles of justice. The argument went like this: Since the United States was systemically racist—since racism was baked into the country’s political, legal, economic and cultural institutions—neutrality, the conviction that the system should not seek to benefit any one group, camouflaged and even compounded that racism. The only way to undo it was to abandon all pretense of neutrality and to be unneutral. It was to tip the scales in favor of those who never had a fair shake to start with.

But critical race theory, until quite recently, only had so much purchase in legal academia. The ideas of its founders—figures like Derrick Bell, Alan David Freeman, and Kimberlé Crenshaw—tended to have less influence on the law than on college students, who by 2015 seemed significantly less liberal (“small L”) than they used to be. There was the Yale Halloween costume kerfuffle. The University of Missouri president being forced out. Students at Evergreen State patrolling campus with baseball bats, eyes peeled for thought criminals.

At first, the conventional wisdom held that this was “just a few college kids”—a few spoiled snowflakes—who would “grow out of it” when they reached the real world and became serious people. That did not happen. Instead, the undergraduates clung to their ideas about justice and injustice. They became medical students and law students. Then 2020 happened.

All of sudden, critical race theory was more than mainstream in America’s law schools. It was mandatory.

Starting this Fall, Georgetown Law School will require all students to take a class “on the importance of questioning the law’s neutrality” and assessing its “differential effects on subordinated groups,” according to university documents obtained by Common Sense. UC Irvine School of Law, University of Southern California Gould School of Law, Yeshiva University’s Cardozo School of Law, and Boston College Law School have implemented similar requirements. Other law schools are considering them.

As of last month, the American Bar Association is requiring all accredited law schools to “provide education to law students on bias, cross-cultural competency, and racism,” both at the start of law school and “at least once again before graduation.” That’s in addition to a mandatory legal ethics class, which must now instruct students that they have a duty as lawyers to “eliminate racism.” (The American Bar Association, which accredits almost every law school in the United States, voted 348 to 17 to adopt the new standard.)

Trial verdicts that do not jibe with the new politics are seen as signs of an inextricable hate—and an illegitimate legal order. At the Santa Clara University School of Law, administrators emailed students that the acquittal of Kyle Rittenhouse—the 17-year-old who killed two men and wounded another during a riot, in Kenosha, Wisconsin—was “further evidence of the persistent racial injustice and systemic racism within our criminal justice system.” At UC Irvine, the university’s chief diversity officer emailed students that the acquittal “conveys a chilling message: Neither Black lives nor those of their allies’ matter.” (He later apologized for having “appeared to call into question a lawful trial verdict.”)

Professors say it is harder to lecture about cases in which accused rapists are acquitted, or a police officer is found not guilty of abusing his authority. One criminal law professor at a top law school told me he’s even stopped teaching theories of punishment because of how negatively students react to retributivism—the view that punishment is justified because criminals deserve to suffer.

“I got into this job because I liked to play devil’s advocate,” said the tenured professor, who identifies as a liberal. “I can’t do that anymore. I have a family.”

Other law professors—several of whom asked me not to identify their institution, their area of expertise, or even their state of residence—were similarly terrified.

Nadine Strossen, the first woman to head the American Civil Liberties Union and a professor at New York Law School, told me: “I massively self-censor. I assume that every single thing that is said, every facial gesture, is going to be recorded and potentially disseminated to the entire world. I feel as if I am operating in a panopticon.”

This has all come as a shock to many law professors, who had long assumed that law schools wouldn’t cave to the new orthodoxy.

At a Heterodox Academy panel discussion in December 2020, Harvard Law School Professor Randall Kennedy said that, until recently, he’d thought that fears of law schools becoming illiberal—shutting down unpopular views or voices—had been overblown. “I’ve changed my mind,” said Kennedy, who, in 2013, published a book called “For Discrimination: Race, Affirmative Action, and the Law.” “I think that there really is a big problem.”

The problem has come not just from students, but from administrators, who often foment the forces they capitulate to. Administrators now outnumber faculty at some universities—Yale employs 5,066 administrators and just 4,937 professors—and law schools haven’t been spared the bloat. Several law professors bemoaned the proliferation of diversity, equity, and inclusion offices, which, they said, tend to validate student grievances and encourage censorship.

The distinction between DEI and the rest of the administration is often wafer thin. At Yale Law School, the Office of Student Affairs told students in an email last week that they could “swing by” the office to grab a “Critical Race Theory T-Shirt!” The T-shirt repeated the phrase “reparations & prison abolition” five times, Bart Simpson-style, before delivering the kicker: “critical race theory & yale law school.”

Law school deans have further entrenched this culture. In 2020, 176 of them petitionedthe American Bar Association to require “education around bias, cultural competence, and anti-racism” at all accredited law schools, which led to the new ABA standards this February.

As the new ideology has been institutionalized, the costs of disobeying it have grown steeper, both for faculty and for students. ​​

At the University of Illinois Chicago, for example, a law professor’s classes were cancelled and his career threatened for including a bleeped out “‘n____’” on an exam in a hypothetical scenario about employment discrimination. (He had used the same scenario for years without incident.)

A Harvard Law professor told me that students face “social death” if they buck the consensus. Students at other law schools—including Yale, NYU, Boston College, Georgetown, and Northwestern—told me much the same thing. “You want to have friends, so you don’t want to say anything controversial,” one Georgetown Law student explained.

At Boston College Law School this semester, a constitutional law professor asked students: “Who does not think we should scrap the constitution?” According to a student in the class, not a single person raised their hand.

Those students and organizations who do dissent often encounter a tsunami of hate. When members of Northwestern University Pritzker School of Law’s Federalist Society chapter invited the conservative writer Josh Hammer to campus in October 2021, the law school’s all-student listserv lit up with invective.

“I’d be completely unsurprised (and in fact, willing to bet) that Joshie Hammer fucks (or at least tries to fuck—he probably was rejected repeatedly) we the trannies in his free time,” one student emailed. “Or—more likely—he just wants (and needs) to get just fucked in the ass . . . Maybe our lovely, idiotic FedSoc board is experiencing a similar dilemma within their own psychosexual selves.”

That was nothing compared to what happened at Yale Law School earlier this month, when the school’s chapter of the Federalist Society hosted a bipartisan panel on civil liberties. More than 100 law students disrupted the event, intimidating attendees and attempting to drown out the speakers. When the professor moderating the panel, Kate Stith, told the protesters to “grow up,” they hurled abuse at her and insisted their disturbance was “free speech.”

The fracas caused so much chaos that the police were called. After it ended, the protesters pressured their peers to sign an open letter endorsing their actions and condemning the Federalist Society, which they claimed had “​​profoundly undermined our community’s values of equity and inclusivity.”

“I’m sure you realize that not signing the letter is not a neutral stance,” one student told her class group chat. She was upset that the panel had included Kristen Waggoner of the Alliance Defending Freedom, a conservative legal nonprofit that’s won a slew of religious liberty cases at the Supreme Court.

As similar messages clogged listservs and Discord forums, nearly two-thirds of Yale Law’s student body wound up signing the letter.

Stith, the professor who was lambasted for telling students to “grow up,” doesn’t see the pile-on as an isolated incident.

“Law schools are in crisis,” she told me. “The truth doesn’t matter much. The game is to signal one’s virtue.”


The Associates Want to ‘Burn the Place Down’

We don’t need to speculate about how temper tantrums in New Haven will reshape American institutions. The ideas underlying these outbursts have already spread to boardrooms and government agencies.

Last year, NASDAQ demanded that companies listing shares on its exchanges meet racial and gender quotas. Uber and Postmates waived delivery fees from black-owned restaurants. Montana and Vermont gave non-white residents priority access to Covid-19 vaccines.

Some high-profile initiatives have been blocked—for example, the Biden administration’s attempt to prioritize minority-owned restaurants while doling out pandemic relief. But the legal guardrails that once ensured against this sort of tipping of the scales are coming undone.

That was the lesson of Rebecca Slaughter, one of the five commissioners who run the Federal Trade Commission.

In a Twitter thread in September 2020, Slaughter declared: “#Antitrust can and should be #antiracist.”

Then she added: “There’s precedent for using antitrust to combat racism. E.g., South Africa considers #racialequity in #antitrust analysis to reduce high economic concentration & balance racially skewed business ownership.”

Here was a prominent government official—educated at Yale Law School, formerly senior counsel for Senator Chuck Schumer—proposing that a federal agency jettison its mandate (protecting consumers, ensuring competition) in the service of a political goal (narrowing the racial wealth gap) that no one had debated or voted on.

In practice, several attorneys said, that meant a company with a majority-white board could be penalized for something that a company with a majority-black board might not be. The government might even block a merger if the resulting conglomerate would be insufficiently diverse—something that has actually happened in South Africa, the country Slaughter held up as a model. Jobs, plants, investments, market share: all of it was on the line.

“That’s hugely corrosive,” said a corporate lawyer in Virginia, who, like most attorneys contacted for this article, would not go on the record for fear of losing his job. “You see it in all of the worst things we see in Donald Trump. ‘The law means what I say it means. The election was stolen because I lost.’ Once you depart from the idea that we’re all people under the law, it really matters who is in power. That starts to feel like the rule of man, not the rule of law.”

Two weeks after posting her thread, Slaughter appeared on CNBC. “I want to be working to promote equity, rather than reinforce inequity,” she said. She had come to the conclusion that “it isn’t possible to really be actually neutral, nor should we be neutral in the face of systemic racism and structural racism.”

Slaughter’s statement was not a one-off. It captured the zeitgeist not just of post-Floyd progressivism, but of an increasingly large chunk of the legal profession. The idea that lawyers can’t be neutral, that confronting injustice must supersede all else, has eroded the norm that legal representation—like the ability to obtain medical care or buy a train ticket—is something every American deserves.

“Partners are being blindsided by associates who they think are liberals in their own image,” an attorney in Washington, D.C., told me. “But they’re not. The associates want to burn the place down.”

Lawyers at top law firms in New York, Washington, D.C., and Los Angeles said they fret constantly about saying the wrong thing—or taking on the wrong client.

“It’s much worse than McCarthyism,” Alan Dershowitz, a professor emeritus at Harvard Law, told me. “McCarthyism was a reflection of dying, old views. They were not the future. But the people today who are imposing litmus tests for who they represent—they are the future.”

When Dershowitz was accused, in 2014, of sexual relations with an underage girl at Jeffrey Epstein’s various residences, he said he had trouble finding representation. (A federal judge eventually struck the allegations from the record.)

Law firms have been known to avoid unpopular clients—Big Tobacco, for example—but the scope and frequency of these evasions have increased, dozens of lawyers interviewed for this story agreed. That’s partly because young lawyers, like the one who accosted David Boies, see representing someone as tantamount to endorsing them.

​​“It used to be that most lawyers could work for Catholic hospital system even if they were pro-choice,” a recently retired lawyer told me. “But now people just say, ‘I oppose this client, so I can’t work for them.’” (The lawyer had planned to stay at his law firm—one of the largest in the US—for a long time. He told me he retired in 2020 after the firm’s culture became “simply unbearable,” with younger associates excoriating him for being “old and white, and part of the reason we have systemic racism in America.”)

Law firms also worry about losing their corporate clients, which, like many American institutions, have grown more stridently ideological in recent years. “I knew of and heard of clients protesting cases we were taking,” the recently retired lawyer said. “If you were going to do a gun rights case, you would incur the wrath of other clients.”

Since 2011, law firms have been pressured to drop or turn down a long list of clients: fossil fuel companies, foreign universities, a GOP-controlled House of Representatives, employers challenging Biden’s vaccine mandate, and, of course, Donald Trump.

These pressures—both internal and external—have had a chilling effect. If defending anti-vaxxers can cost you business, law firms reason, imagine the blowback of defending a transphobe or a racist.

“It doesn’t even occur to people to take controversial cases,” one lawyer in Washington, D.C., said. Religious liberty cases, for example, are “totally off the table. I wouldn’t even think to bring it up.”

Another lawyer, who specializes in First Amendment litigation, described being forced to turn away a client with far-right views because the firm thought that any association with the client—even if the claims advanced were meritorious—would be bad for business.

The problem, Strossen said, is that rights mean nothing without representation. “ANYONE who doesn’t have access to counsel in defending a right, as a practical matter, doesn’t have a meaningful opportunity to exercise that right,” the former ACLU chief told me in an email. “Hence, undermining representation for any unpopular speaker or idea endangers freedom for ANY speaker or idea, because the tides of popularity are constantly shifting.”

Ken Starr, the former solicitor general who led the 1998 investigation of Bill Clinton, agreed. “At a time when fundamental freedoms are under assault around the globe, it is all the more imperative that American lawyers boldly stand up for the rule of law,” Starr said. “In our country, that includes—especially now—the representation of controversial causes and unpopular clients.”


Undermining the Impartial Judiciary 

Another cornerstone of the rule of law is an impartial judiciary. Some judges, however, have begun to see themselves not as impartial adjudicators, but as agents of social change—believing, like Slaughter, that they cannot be neutral in the midst of moral emergencies.

During the Black Lives Matter protests in 2020, for example, Massachusetts Superior Court judge Shannon Frison vowed on Facebook to “never be silent or complicit again, in any courtroom or any context.” “As the very keepers of justice,” she said, judges “not only stand with the protesters—we fall with them.”

The Washington State Supreme Court put out a statement recognizing “the role we have played in devaluing black lives,” and encouraged judges to strike down “even the most venerable precedent” if it is “incorrect and harmful.”

Such statements are not mere virtue signaling. They reflect sincerely held beliefs with real-world consequences.

Case in point: the case of Montez Terriel Lee, Jr.

On May 28, 2020, Lee, Jr., then 25 years old, broke into the MaX it PAWN Shop, in Minneapolis. It had been three days since George Floyd had been murdered by a white police officer, about ten blocks south, and the city had been engulfed by riots. As looters grabbed whatever they could find, Lee poured lighter fluid all over the pawn shop. Then, he set it on fire. Outside, Lee raised his arm and clenched his fist. In a video, he can be seen saying, “Fuck this place. We’re gonna burn this bitch down.”

At the time, Lee was unaware that Oscar Stewart, Jr., a 30-year-old father of five, was trapped inside and that he would die of smoke inhalation and excessive burns. A little over two weeks later, police arrested Lee, who pleaded guilty to arson.

Usually, this sort of crime, according to federal sentencing guidelines, would have landed Lee in prison for up to 20 years. But the prosecutor, Assistant U.S. Attorney Thomas Calhoun-Lopez, only asked for 12 years.

In his pre-sentence filing, Calhoun-Lopez portrayed Lee not as a rioter but a protester. “Mr. Lee was terribly misguided, and his actions had tragic, unthinkable consequences. But he appears to have believed that he was, in Dr. King’s eloquent words, engaging in ‘the language of the unheard.’”

The judge, Wilhelmina Wright, appeared to buy that argument. On January 14, she handed down a sentence of just 10 years—even fewer than the prosecution had asked for.

“Motivation is a relevant factor in sentencing, and it was appropriate for the prosecutor and judge to consider the fact that the defendant did not intend to kill anyone when he set fire to the store,” Rebecca Roiphe, a professor of legal ethics at New York Law School, said in an email. But, she added, “Rewarding someone for having the correct beliefs is almost as bad as punishing someone for having the wrong ones. More importantly, a criminal justice system that does the former likely does the latter as well.”

Strossen was more pointed: “For anyone who might applaud the Minneapolis situation, I would ask: ‘How would you feel about a judge who has religious objections to abortion giving a lighter sentence to a pro-life crusaders who attacks clinic property or personnel?’”

Judge Wright’s willingness to tip scales didn’t come out of nowhere. When she was a student at Harvard Law School, she’d taken a class with Derrick Bell, the founder of critical race theory, who asked students to submit written reflections on the assigned readings.  Bell published many of the reflections—including Wright’s—in a 1989 article for UCLA Law Review: “Racial Reflections: Dialogues in the Direction of Liberation.”

In one reflection, Wright said that “American liberalism”—especially the liberal “notion that property is neutral”—was “equally” as “damaging” as overt “racial supremacy.” Her chambers are eight miles away from the MaX it PAWN Shop, one of 1,500 businesses—many minority-owned—that were damaged or destroyed in the record-setting riots of 2020.


‘The Anti-Innocence Project’

Minneapolis is a microcosm of a larger trend. As progressives have set about repurposing the law, they seem to have lost sight of the people they insist they’re saving: the poor, the vulnerable, the indigent—including many racial minorities.

Consider the movement to abolish the right to eliminate members of a jury pool.

The so-called peremptory strike allows attorneys, in a trial case, to toss out potential jurors they deem biased. Peremptories, as criminal-defense attorneys see it, offer their least sympathetic clients—those against whom all the cards have been stacked—a glimmer of hope.

The problem, as progressives see it, is peremptory strikes have also been used to disproportionately exclude potential black jurors. Supreme Court Justice Steven Breyer was among the most prominent to call for an end to peremptories, arguing in a 2005 opinion that they magnify racial bias in the legal system. But it wasn’t until the last year or so that the cause gained momentum.

In August, the Arizona Supreme Court announced that the state would no longer allow peremptory challenges at civil and criminal trials. This came after a pair of Arizona judges launched a petition arguing that peremptories perpetuate “discrimination.” The New Jersey Supreme Court is considering a similar move.

It hasn’t gone over well with defense attorneys.

“This is the stupidest fucking thing in the world,” Ambrosio Rodriguez, a criminal-defense attorney in Los Angeles, said. “Is my voice clear just how pissed off I am about this thing?” Rodriguez noted that the peremptory is one of the few tools at his disposal to help “level the playing field.”

“Suppose a woman married to a police officer says she can be fair,” Josh Kendrick, a criminal-defense attorney in Columbia, South Carolina, told me. “I won’t be able to strike her from the jury, even though we all know she can’t really be fair.”

Then there’s the erosion of the principle that one is innocent until proven guilty beyond a reasonable doubt. “The Anti-Innocence Project,” one criminal-defense attorney in San Francisco joked.

​​Progressive lawyers have become more determined to turn a blind eye to certain defendants while cracking down with even greater than usual fervor on certain crimes. “The same people who are anti-incarceration for some defendants will support life plus cancer for others,” said Scott Greenfield, a criminal-defense attorney in New York. “Good people—which in practice means blacks and Hispanics, regardless of what they did—should be free. Bad people—which in practice means sex offenders and financial criminals—should go to jail.”

In 2019, for example, the American Bar Association nearly passed a motion urging state legislatures and courts to adopt a new definition of “consent” in cases of sexual misconduct that would flip the burden of proof from the accuser to the accused—despite fierce criticism of the standard from legal scholars, and despite some evidencethat it has unfairly hurt black, male students on college campuses.

The motion was expected to pass but failed at the last minute, after key attorneys withdrew their support. Even so, nearly 40 percent of ABA delegates voted for it.

This sort of progressive carceralism isn’t confined to sexual assault. After the Rittenhouse verdict, in November, some left-wing legal scholars zeroed in on the definition of “self-defense.” Changing that definition—insisting that whoever was the first to point his gun was the presumptive aggressor—would have made it harder for Rittenhouse to have been acquitted. It would also preempt future Rittenhouses.

Kendrick, the criminal defense attorney, was skeptical. “These reforms aren’t going to be weaponized against white males or the GOP,” he said. “They’re going to be weaponized against criminal defendants.”

Criminal defendants like Stephen Spencer.

In July 2017, Spencer, a black man, endured a series of racist taunts at a bar. When he went outside, a group of white men followed him and shouted: “We’re going to get you, n—–!” Taking them at their word, Spencer turned around, pulled out his gun, and fired, killing one of his pursuers.

A jury acquitted Spencer on all counts. But under a different definition of self-defense—one reverse engineered to put the Rittenhouses of the world in jail—the case could easily have gone another way.

“There’s a real risk Stephen Spencer would be a convicted murderer instead of a free man, because he displayed a lawfully possessed firearm when he was menaced by a racist mob,” a prominent second-amendment lawyer told me.


Brave New World

The old-school liberals, those who have been around for three or four decades, say that none of this was supposed to happen.

Several attorneys called FTC commissioner Rebecca Slaughter’s thread—and her almost off-the-cuff reference to South Africa—deeply unsettling. Of all places, they said, South Africa? Did she know what was going on there? (Slaughter and her assistant did not return calls and text messages.)

In July, there had been rioting, looting, Molotov cocktails, people pulled from their cars and families hacked to death in their homes. The demonstrations had been sparked by the arrest of former President Jacob Zuma, now serving a 15-month sentence for contempt of court. But the real causes had been percolating for decades: a faltering economy, corruption, and the deeply divisive policies of the ruling African National Congress, which Slaughter held up as a model of “#racialequity.”

It started in 1998 with the Competition Act, an antitrust law that effectively required businesses to be partly black-owned. The act was an early example of “Black Economic Empowerment”—race-conscious policies aimed at lifting black South Africans out of poverty.

It was a disaster. Soon, companies were being forced to cede large chunks of their equity to black shareholders, many of whom were well-connected to the ANC. Foreign investment dried up—the regulations imposed huge costs on businesses—and corruption and unemployment soared.

By 2009, Moeletsi Mbeki, a black South African political economist, was warning thatSouth Africa’s race-conscious policies would “collapse” the country. By 2021, South Africa’s unemployment rate was 44%, the highest in the world.

All this had culminated in the riots that killed 300 people and destroyed scores of businesses. This was the country a U.S. antitrust official wanted to emulate.

At stake, said Noah Phillips, also an FTC commissioner, was not just trade or competition but the American justice system itself. How we govern ourselves. What we mean by democracy and the rule of law.

“We should strive to meet the promise that is literally chiseled into the stone of the Department of Justice and courthouses across the country,” Phillips told me. “That is: the law should be applied equally. Deliberately attempting to apply the law in an unequal fashion, based on the preferences of those in power, is inimical to the rule of law.”

On November 12, the FTC released a draft strategic plan for the next five years. One of its main objectives: use the agency’s power to “advance racial equity.”

Hip Suit Needs Lawyer Replacement

By: The Editorial Board

‘Only God makes a perfect hip,” trial lawyer Mark Lanier once observed, which must be news to millions of patients who’ve needed a hip replacement. But Mr. Lanier’s specialty is suing over those replacements, and this week he was slapped down for distortions in court.

On Wednesday the Fifth Circuit Court of Appeals overturned a verdict that awarded $151 million to five people who claimed to have suffered from Johnson & Johnson’s Pinnacle hip implants. The three-judge panel ruled that U.S. district court Judge Ed Kinkeade in Dallas had erred in allowing Mr. Lanier to present “inflammatory character evidence” against J&J.

Mr. Lanier’s stunts were so “obvious, egregious and impactful” that they prejudiced the jury against the company, wrote appellate Judge Jerry Smith. The jury had originally awarded $502 million before Judge Kinkeade reduced it to the merely extortionary $151 million. That would still be a nice payday for Mr. Lanier, since tort lawyers in Texas typically get 40% of the award.

Though it was irrelevant to the case, Mr. Lanier regaled the jury with alleged tales of how J&J associates may have paid bribes in Saddam Hussein’s Iraq. He also recounted a former employee’s allegations of racism at Johnson & Johnson. “Lanier tainted the result by inviting the jury to infer guilt based on no more than prior bad acts” and “that alone provides grounds for a new trial,” Judge Smith wrote.

Mr. Lanier also told the jury that two of his expert witnesses were unpaid and thus unbiased. “Lanier repeatedly leveraged the false contrast between [Johnson & Johnson’s] paid mercenaries and the plaintiffs’ unpaid altruists to his clients’ advantage,” Judge Smith wrote. But Mr. Lanier had already donated $10,000 to a charity on one witness’s behalf, and after the trial he paid the two of them a total of $65,000.

“Lawyers cannot engage with a favorable expert, pay him ‘for his time,’ then invite him to testify as a purportedly ‘non-retained’ neutral party,” Judge Smith wrote. “That’s deception, plain and simple. And to follow that up with a post-trial ‘thank you’ check merely compounds the professional indiscretion.”

The case is headed for a retrial with Mr. Lanier (alas) and the same judge, who we hope has learned a lesson in policing dishonesty.

“Monkey Selfie” Lawsuit Comes to a Close

The Ninth Circuit yesterday said Naruto the monkey cannot sue a photographer for copyright infringement, bringing the years long “monkey selfie” case to a close.

The case began when photographer David Slater published a “selfie” that Naruto took of himself. PETA later filed suit, saying it was the monkey, not the photographer, that owned the copyright and should be the one to receive any financial benefits. The Ninth Circuit yesterday disagreed, saying that animals do not have standing unless the law plainly states it.

The “monkey selfie” lawsuit was named the “Most Ridiculous Lawsuit of 2015” by the U.S. Chamber Institute for Legal Reform’s Faces of Lawsuit Abuse campaign after a series of online polls throughout the year. The case again made the list at number four in 2016. It is the only lawsuit to make the list twice.

Litigator of the Week: Tyler Lawyer Wins $43M Med Mal Verdict Against Hospital

By: John Council

Reid Martin recently convinced a state jury to hit an East Texas hospital with a $43 million verdict and a rare gross negligence finding. And he did it with testimony from the hospital’s own doctors.

Martin represents Billy Pierce, who sued Tyler’s East Texas Medical Center in 2014 for medical malpractice and gross negligence for violating its own bylaws by allowing a doctor on probation from the Texas Medical Board to treat Pierce.

According to his petition, Pierce, a 61-year-old senior vice president of X-Chem, was placed under the care of Dr. Gary Boyd in 2014.  He was admitted to the hospital for treatment after a CT scan showed showed stones in his bile duct.

But pursuant to the hospital’s own bylaws, Boyd’s privileges should have been suspended in 2014 because he was on probation from the Texas Medical Board. He was placed on probation a year earlier for inaccurately diagnosing a patient and performing unnecessary procedures.

Jurors heard testimony that Boyd erroneously diagnosed Pierce with an anatomical abnormality that would make surgery to remove bile duct stones impossible. Pierce was left in a medically induced coma for over a month and claimed he was effectively abandoned by Boyd and the hospital.

When ETMC finally sought a second opinion, a new doctor rejected Boyd’s diagnosis and performed surgery to remove Pierce’s bile duct stones without complication. Pierce later had to undergo a liver transplant because of the misdiagnosis, is currently on organ rejection medication, and can no longer work.

While the hospital contended at trial that it provided the appropriate medical care for Pierce, Martin refuted that with testimony from ETMC’s own doctors.

“Three guys told about how Boyd was a problem and that the hospital knew [Boyd] was a problem and didn’t do anything about it. It was beautiful to see,’’ Martin said. “I think that was monumental in a medical malpractice case to have doctors standing up for their patent and against the hospital.’’

The jury’s Jan. 30 verdict concluded the hospital committed gross negligence, and awarded Pierce the $43 million, including nearly $18.6 million for loss of earning capacity and $25 million in exemplary damages. The jury also found the hospital was 90 percent liable for damages, while Boyd was 10 percent liable.

Boyd settled with Pierce before trial.

Stan Thiebaud, a partner in Dallas’ Thiebaud Remington Thornton Bailey who represents ETMC, did not return a call for comment.

“It’s very rare to get a gross negligence finding in a medical malpractice case against a hospital. In this case, I asked the jury for $20 million and they gave me $25 million in exemplary damages,’’ Martin said.

Martin believes Pierce may have been able to keep a majority of the jury’s verdict, even with Texas’ strict tort reform laws that cap plaintiff’s damage awards against hospitals.

But Martin entered into a high/low agreement with the ETMC’s insurer a week before the conclusion of the trial. Their agreement was that Pierce would receive a low of $4 million regardless of how the jury ruled or a high of $9 million if the jury’s verdict exceeded $9 million, Martin said.

“We got the $9 million because the verdict was above that. That was with no appeals and with money to be paid within 30 days of the verdict,’’ Martin said, who notes his client’s quality of life has been stolen because his liver transplant requires him to be on anti-rejection medication and requires frequent hospitalization.

“And it’s a good resolution for this family because they went through hell and back,” he added.

Ladies and Gentlemen of the Jury, Please Wake Up!

By: Nicole Hong

The right to a jury trial is a pillar of America’s justice system, enshrined in the Constitution from a tradition dating back more than 1,000 years.

The problem these days is making sure jurors stay awake.

“From time immemorial, jurors have been falling asleep because from time immemorial, lawyers have been boring,” says John Gleeson, who was a federal judge in Brooklyn for 22 years. “We’re the dullest people in the world, for Christ’s sake.”

In a typical criminal trial, 12 jurors in a boxed area listen for hours at a time to testimony, with a few breaks and a lunch hour. Some trials last several months.

“Every lawyer thinks they’re saying the most interesting thing anybody could ever hear,” says Mr. Gleeson, now a partner at Debevoise & Plimpton LLP. But trial testimony, he says, can be “deadly boring.”

Jury consultants say the ennui is exacerbated by shrinking attention spans of the smartphone era.

During jury selection, the judge and lawyers interview prospective jurors to find biases, including questions about hobbies, news sources and other topics.

Lawyers say they watch for prospects already napping during jury selection.

When lawyers see a slumbering juror, “it is a total blow to the ego,” says Sarah Coyne, a former federal prosecutor and now a partner at Weil Gotshal & Manges LLP.

There are no concrete rules for when a judge should dismiss a juror for sleeping. Lawyers say it depends how long they were napping and whether they snoozed through crucial testimony.

In one current trial, Manhattan federal prosecutors are seeking to convince a jury that a Turkish banker is guilty of helping Iran evade U.S. sanctions. The testimony has focused on emails, spreadsheets and wiretapped calls—mostly in Turkish and translated by a live interpreter.

The alleged scheme is so complex prosecutors asked one witness to draw the banks and front companies involved on a large sheet of paper. By the end, the witness had drawn a maze of boxes connected by multicolored lines and arrows to indicate the money flow.

One juror was visibly asleep throughout the first week, his head propped in his hand or rolled into his chest. Occasionally, he awoke to sip water or jot notes before resuming his nap. His eyes were closed during much of the government’s most important witness testimony.

Late last week, U.S. District Judge Richard Berman dismissed the juror, telling the court he was “really sound asleep…not just dozing.”

Judge Berman said when the juror was asked during jury selection what he did in his spare time, the juror said sleep. “He seemed like a very nice fellow,” Judge Berman added.

Judge Berman declined to comment further on the dismissal.

In Brooklyn federal court last week, U.S. District Judge Pamela Chen addressed a somnolent juror in the trial of three former South American soccer officials accused of corruption.

“And as I am speaking to you, you are yawning,” Judge Chen said, telling the juror that he seemed to be asleep and struggling to stay alert.

The juror collected his backpack, beanie and glasses and was excused.

A clerk for Judge Chen said she doesn’t comment on active trials.

The Sixth Amendment guarantees the right to a speedy trial before an impartial jury. American colonists adopted the centuries-old English concept of using laypeople to determine guilt or innocence, partly because colonists trusted fellow citizens more than they trusted British judges, says Valerie Hans, a Cornell Law School professor who studies juries.

To keep jurors attentive, Ms. Hans says, more courts could allow jurors to take notes during testimony—a practice some states previously banned because judges thought note-taking was distracting.

Veteran attorneys have strategies to combat lethargy: Ask the judge to take a break before an important witness; place less-exciting testimony in the morning, not during the post-lunch food coma; walk close to the jury box and speak loudly.

Judges may make eye contact with a juror next to a sleeper and motion to elbow that person awake.

The government and defense are generally careful not to call out a sleeper in open court, to avoid embarrassment and turning the juror against one side.

Former prosecutors say jurors may suffer shock when sitting through a trial for the first time and realizing it is much slower paced than trials on shows such as “Law & Order.”

“On a murder case, if you have 150 pieces of evidence, you have to put an officer on the stand” to testify about each one, says Vincent Cohen, a Dechert LLP partner who was once acting U.S. attorney in the District of Columbia. “They don’t show that on TV.”

A sleeping juror is often viewed as negative for the prosecution, because the government has the burden to prove the defendant’s guilt beyond reasonable doubt.

“If you’re a criminal-defense lawyer,” says Joshua Dubin, a New York jury consultant and defense lawyer, “you pray the jurors fall asleep during the government’s case and wake up during the cross-examination.”

The situation gets particularly awkward if a judge falls asleep. “Everybody knows, so you just keep going,” says Steven Feldman, a former federal prosecutor now working at Murphy & McGonigle. “When you really need the judge, you say ‘objection’ really loudly, so the judge comes awake.”

Sometimes, there’s reasonable doubt a closed-eyed juror is asleep. During a recent retrial in Palm Beach County, Fla., defense lawyers alleged in court filings that a juror slept through critical testimony. After the guilty verdict, they asked Judge Glenn Kelley to order a new trial.

Judge Kelley said in court he saw the juror was closing her eyes while still moving her hands and thumbs—a sign she was awake. (A court manager says the court prohibits judges from commenting to reporters on open cases.)

“She has always been paying attention,” Judge Kelley said, and denied the motion.

Phoney Lawsuits: How to sue your way out of college debt

By: John O’Brien

Former students still saddled with college loans were urged by lawyers and debt-relief companies to stop making payments because filing a lawsuit was an easier way to get out of debt, according to racketeering allegations against two law firms.

On Oct. 18, Navient Solutions, the nation’s largest student loan company, filed a racketeering lawsuit in Virginia federal court that alleges a “grave abuse of the law” bilked it out of millions of dollars owed to it. Debt-relief counseling offered by the defendants was actually a tutorial on how to manufacture a lawsuit under the federal Telephone Consumer Protection Act, a 1991 law designed to punish telemarketers.

“Unlike other firms, the… defendants have not been content to merely seek out clients with colorable TCPA claims,” the complaint says.

“Rather, they have collaborated with the Recruiting Defendants and others to recruit clients to manufacture TCPA claims where no claims previously existed.

“In many cases, they did this by inducing borrowers who were current on their loans to become delinquent, thereby causing (Navient) to call them where it had not already been doing so.”

Named as defendants are the law firms Krohn & Moss of Chicago and the Law Offices of Ryan Lee of Scottsdale, AZ. The companies that allegedly recruited former students who would become TCPA plaintiffs are National Consumer Advocates of Northridge, CA, and MB Consulting & Investing, a South Carolina company owned by Michael Biancone.

In an interview with Legal Newsline, Biancone denied participating in any scheme while his company worked with NCAI and fellow defendant Doug Johnson. He also says none of his clients ever mentioned a TCPA scheme after he sent them to NCAI.

“The script, the scheme – nothing,” Biancone said. “I used to tell people that I’m not a part of Doug, and Doug’s not a part of me.”

Many companies have accused plaintiffs of being in the profession of creating TCPA lawsuits. Instances include:

-A Polish immigrant said to have made more than $800,000 by filing more than 30 lawsuits in New Jersey;

-A woman who bought cheap cell phones and gave them repurposed numbers with Florida area codes because she figured debt collectors would call the numbers to contact the previous owner; and

-A Los Angeles man who attributed his many phone numbers to businesses he runs in classified ad sections to invite calls from other business groups.

Now, Navient says the TCPA, which provides for either $500 per violation or $1,500 for more egregious violations, is being used to cheat it – “These attorneys frequently bring class action claims against large defendants and use the threat of potentially crippling damages to extract settlements for suits that may be of questionable merit or which depend on unsettled legal issues.”

Navient’s lawsuit has its genesis in a dispute between NCAI and Krohn & Moss that was filed in April 2015 in Los Angeles County Superior Court.

NCAI filed its lawsuit against Krohn & Moss, Johnson and Biancone. It alleged the three recruited it to assist clients in documenting “legal violations” and that they violated an agreement by not paying NCAI.

“Defendants would refer clients to NCAI, and would, by and through its representative Johnson and Biancone, document a certain amount of ‘violations,’” NCAI’s third amended complaint says.

“These ‘violations’ were monitored by Johnson and Biancone pursuant to K&M’s criteria regarding the same and once the criteria was achieved, the clients were referred back to K&M for litigation.”

NCAI said an addendum in consumer contracts required clients to allow settlement proceeds to be distributed to NCAI to satisfy their obligations to NCAI, which claimed in the lawsuit it was still owed at least $250,000 from these settlements.

In court filings, Biancone said it was NCAI that used unethical practices and withheld commissions owed to him. He added that he never had any relationship with Krohn & Moss, dealing only with NCAI through a market service agreement.

“Whatever they were doing, I was not privy – I had no idea about it,” Biancone said. “It was just their operations. I would learn later that maybe someone would win a case or got their debt forgiven by Navient under TCPA or whatever arrangement.

“What NCAI wanted was to get that money sent directly to NCAI to fulfill the rest of the agreement for debt relief. Krohn & Moss argued they can’t do that, but what (Richard Murkey of NCAI) was doing was fishing: ‘Let’s just take them to court and maybe I’ll win, or maybe they’ll settle.’”

Murkey is a disbarred attorney with a history of legal troubles who is listed as NCAI’s chief executive officer, secretary and chief financial officer.

Once the whole mess settled, Navient filed its lawsuit.

The alleged scam began with the two recruiting defendants, MB Consulting and NCAI, offering counseling and other debt-relief services to former students struggling to repay loans.

Once recruited, the client was allegedly given a script after stopping payments, intended to help create a TCPA claim when Navient called about the delinquent payments.

The alleged script told the client to confirm the name of the caller, confirm the amount owed on the loan and then say, “I ask that you please stop calling me and correspond with me in writing from this point forward.”

The client maintained a log of calls and communicated with Biancone and Doug Johnson of National Consumer Advocates, the lawsuit says.

“In the event that (Navient) stopped making telephone calls, clients were advised to contact (Navient) again to discuss their loans,” the suit says.

“This action was aimed at causing (Navient) to begin calling that customer again to increase the potential damages that could be asserted in any given case.”

Once the client appeared to have a chance at making a TCPA claim that, considering the statutory per-violation penalties, was close to equaling the amount of debt he or she still owed, the recruiters passed them off to the law firms using illegal fee-sharing and referral agreements, the lawsuit says.

However, if the scheme didn’t work, the credit rating of the client was ruined, the suit says.

Navient says the scheme caused it to pay settlements to dozens of customers and cancel hundreds of thousands of dollars in student loans.

It costs a company approximately $100,000 to defend a TCPA claim through trial. That figure goes up to $500,000 if the case is certified as a class action. That amount doesn’t include any potential jury verdict, only legal fees.

Once a lawsuit or arbitration proceeding was filed, the law firms told the client to conceal the roles of the recruiting defendants, the suit says. The client was instructed to lie about the script and that they were taught how to trick Navient into calling more frequently, the suit says.

Navient says it paid more than $1.1 million in settlements to plaintiffs it believes were a part of the scheme, as well as more than $500,000 in attorneys fees.

It provided the case of a divorced couple as an example.

Kyle Bates paid $380 per month to NCAI, the same amount he was supposed to be paying Navient per month on a loan with an outstanding balance of $40,000, the suit says.

Kyle allegedly utilized the script, at the instruction of NCAI’s Johnson, and told ex-wife Emily about the scam.

Emily reluctantly participated in an effort to protect her credit and was provided the script by Johnson, the suit says. In 2015, the two sued Navient in Indiana federal court, represented by K&M.

Emily, after a settlement, took part in a deposition in November 2016 and revealed the alleged scheme. She also claimed Kyle had lied about the existence of the scheme.

“On or about Dec. 6, 2016 – less than a week after Emily Bates’ deposition uncovered the details of the scheme – Kyle Bates dismissed his claims with prejudice,” the suit says.

The complaint is filled with the tales of several more borrowers who took action against Navient. It makes claims for violations of the Racketeer Influenced and Corrupt Organizations Act, as well as fraud and tortious interference with contract.

California consumer files an array of class action lawsuits against Diet Coke, Diet Dr.Pepper and Diet Pepsi

Diet Coke ads deceive consumers, class action claims

By: Jenie Mallari-Torres

A consumer has filed a class action lawsuit against Coca-Cola, alleging that Diet Coke is misleadingly marketed as a weight-loss beverage.

Shana Becerra of Santa Rosa filed a complaint on behalf of herself, all others similarly situated and the general public on Oct. 16 in the U.S. District Court for the Northern District of California against the Coca-Cola Co., alleging that the beverage company marketed a product that is likely to deceive reasonable consumers.

According to the complaint, Becerra and others have been harmed from the defendant’s misleading and unlawful practice of falsely advertising the nutritional value of its beverage products. The beverages contain aspartame, an ingredient associated with diabetes and metabolic and cardiovascular diseases, the complaint says.

The plaintiffs hold the Coca-Cola Co. responsible because the defendant allegedly failed to disclose the increased risk of weight gain and chronic diseases from the usual consumption of the product, and falsely represented that their products have good characteristics, uses or benefits.

The plaintiffs request a trial by jury and seek judgment against defendant, certify class action, corrective advertising, restitution, statutory, compensatory and punitive damages, expenses, attorneys’ fees and any further relief the court deems necessary. They are represented by Jack Fitzgerald of the Law Office of Jack Fitzgerald PC in San Diego and Andrew Sacks and John Weston of Sacks Weston Diamond LLC in Philadelphia.

Diet Dr. Pepper falsely advertised as weight-loss drink, lawsuit claims

By: Noddy A. Fernandez

A consumer has filed a class action lawsuit against Diet Dr. Pepper, alleging that the beverage’s manufacturer has engaged in false advertisement and unjust enrichment.

Shana Becerra of Santa Rosa, on behalf of herself, all others similarly situated and the general public, filed a complaint on Oct. 16 in the U.S. District Court for the Northern District of California against Dr. Pepper Snapple Group Inc. The plaintiff alleges violations of California’s False Advertising Law and Federal Food, Drug, and Cosmetic Act (FDCA).

According to the complaint, Becerra alleges that on Oct. 16, 2013, she purchased a Diet Dr. Pepper drink because it was advertised to assist in weight loss. But the product’s non-nutritive sweeteners, like aspartarme, interfere with the body’s ability to properly metabolize calories, leading to weight gain and increased risk of metabolic disease, diabetes and cardiovascular disease, the complaint says.

The plaintiff holds Dr. Pepper Snapple Group Inc. responsible because the defendant allegedly failed to reveal facts that were material with respect to the consequences that may result from use of the product and failed to disclose the increased risk of weight gain, and of serious chronic disease, likely to result from the usual consumption of Diet Dr. Pepper.

The plaintiff requests a trial by jury and seeks judgment for pay all statutory, compensatory, and punitive damages, pre- and post-judgment interest, costs, expenses, attorneys’ fees and any other relief the court deems proper. They are represented by Jack Fitzgerald, Trevor M. Flynn and Melanie Persinger of the Law Office of Jack Fitzgerald PC in San Diego and of Sacks Weston Diamond LLC in Philadelphia.

Class action suit calls Diet Pepsi ads false, misleading

By: Noddy A. Fernandez

A Santa Rosa consumer has filed a class action lawsuit against PepsiCo over its marketing of Diet Pepsi.

Shana Becerra, on behalf of herself, all others similarly situated and the general public, filed a complaint on Oct. 16 in the U.S. District Court for the Northern District of California against PepsiCo Inc., alleging violations of the Federal Food, Drug, and Cosmetic Act (FDCA), California’s False Advertising Law and the Consumers Legal Remedies Act.

According to the complaint, the plaintiff alleges that the defendant’s advertisement of calorie-free Diet Pepsi as a way to assist in weight loss or management is false, misleading and unlawful due to its non-nutritive sweeteners, which can lead to weight gain, increased risk of metabolic disease, diabetes and cardiovascular disease. As a result, the plaintiff suffered loss of money and health risks, the complaint says.

The plaintiff holds PepsiCo Inc. responsible because the defendant allegedly failed to disclose the harmful effects of the drink, including an increased risk of weight gain and serious chronic disease.

The plaintiff requests a trial by jury and seeks statutory, compensatory, and punitive damages, pre- and post-judgment interest, costs, expenses and attorneys’ fees, and any other and further relief the court deems proper. She is represented by Jack Fitzgerald, Trevor M. Flynn and Melanie Persinger of the Law Office of Jack Fitzgerald PC in San Diego and Andrew Sacks and John Weston of Sacks Weston Diamond LLC in Philadelphia.

Calif. judge reverses $417 million award in talc powder case

By: Jessica Karmasek

A California judge last week reversed an award of more than $400 million to a woman who claims Johnson & Johnson’s talc powder caused her ovarian cancer.

Judge Maren Nelson for the Los Angeles Superior Court issued her ruling late Friday, reversing the $417 million award a jury granted in August.

Specifically, Nelson granted Johnson & Johnson’s motions for judgment notwithstanding the verdict, or JNOV, and the defendant company’s motions for a new trial — as to both parent company Johnson & Johnson and Johnson & Johnson Consumer Inc., the subsidiary that actually manufactures and markets Johnson’s Baby Powder.

Nelson, in her 51-page order, said she is “of the firm view” that the plaintiff’s expert on specific causation “ruling out” of age and ovulatory cycles “amounted to no more than speculation.”

“Her testimony that it was ‘probable’ the cause of the cancer was unknown, but then putting a ‘less than 50 percent chance’ on same (with no reasoning) likewise amounted to mere speculation,” the judge wrote.

“Those facts show that the expert did not properly employ the methodology she espoused and independent of the fact that there was no evidence of substance to rule talc ‘in,’ persuade the Court that JNOV must be granted to JCCI and Johnson & Johnson on the basis that no specific causation was shown.”

Nelson said in her order that “insufficient” evidence on both sides and various errors led to an award of “excessive” damages. She also noted there was some jury misconduct during the trial.

Johnson & Johnson, headquartered in New Jersey, said it was pleased with the judge’s ruling.

“Ovarian cancer is a devastating disease — but it is not caused by the cosmetic-grade talc we have used in Johnson’s Baby Powder for decades,” according to a company statement.

“The science is clear and we will continue to defend the safety of Johnson’s Baby Powder as we prepare for additional trials in the U.S.”

Mark P. Robinson Jr. of Robinson Calcagnie Inc., based in Newport Beach, California, represented the plaintiff, Eva Echeverria.

He said in a statement he would file an appeal immediately.

“We will continue to fight on behalf of all women who have been impacted by this dangerous product,” Robinson said.

The $417 million verdict returned against Johnson & Johnson in August included $70 million in compensatory damages and $347 million in punitive damages.

Echeverria, 63, said she contracted ovarian cancer in 2007 after using the company’s powder for more than 40 years.

The trial — the first talc bellwether trial in California and the first outside of St. Louis — began in Los Angeles July 10 and lasted four weeks, culminating in the single largest award to date in a talc lawsuit.

Last year, a Missouri jury found Johnson & Johnson liable for injuries resulting from the use of its talc powder, awarding the family of an Alabama woman $72 million.

Last week, a Missouri appellate court threw out the jury verdict, ruling that the case should not have been tried in St. Louis.

Like Echeverria, Missouri plaintiff Jacqueline Fox used Johnson’s Baby Powder for feminine hygiene for decades. Fox, who was diagnosed with ovarian cancer in 2014, died shortly before the trial began, in October 2015, at age 62.

Echeverria claimed Johnson & Johnson was aware of numerous studies linking talc-based powders with ovarian cancer, but chose not to warn women.

Thousands of similar lawsuits are awaiting trial across the country, including hundreds in California courts.

Johnson & Johnson says science supports the safety of its product.

It points to the National Cancer Institute’s Physician Data Query Editorial Board, which wrote in April: “The weight of evidence does not support an association between perineal talc exposure and an increased risk of ovarian cancer.”

Texas Supreme Court examines $48,000 an hour legal fee in H.L. Hunt case

By: Janet Elliott

The heir of Texas oil tycoon H.L. Hunt involved a bitter decade-long dispute with his son over control of a $1 billion trust wants the Texas Supreme Court to declare illegal his lawyers request to be paid $48,000 an hour for his legal services.

Attorney Gregory Shamoun says Albert Hill Jr. made an oral agreement to pay him a 50 percent contingency fee if he was able to settle the intense and complicated family fight – a feat he accomplished after only a few weeks working on the case.

When Hill Jr. refused to pay claiming the legal fee was ludicrously too high, Shamoun sued and won a $7.25 million award – or an estimated $48,000 an hour – from a jury.

The fee dispute is only the latest in a long and heated legal battle between Hill Jr. and his son, Albert Hill III. The two men have filed more than 20 lawsuits against each other and their lawyers in what the Texas appellate courts described as a “spider web of litigation.” More than 100 different lawyers have worked on the case.

The idea of a settlement was deemed impossible when Hill Jr. asked the flamboyant Shamoun, who once called a donkey named Buddy to testify in a court case, to make a fresh attempt to settle all of the cases against Hill’s son, who is known in Dallas as “Al Three.”

To everyone’s surprise, Shamoun successfully negotiated a global settlement for $40.5 million that left Hill Jr. in exclusive control of the family trust.

Shamoun says he was never compensated for his work and took Hill to court for breach of contract, citing an oral fee agreement with Hill that allegedly promised a 50-percent share of any settlement that fell between $55 million and $73 million.

The legal fee dispute reached the Texas Supreme Court last week with Shamoun’s $7.25 million jury award hanging in the balance.

Critics of the award, including the State of Texas, say it represents a “shocking” contingency-fee rate of $48,000 per hour for 150 hours of work and is illegal under a state law that requires contingency fee contracts be signed and in writing.

As all things involving the Hills’ litigation, the case took on an added twist when Hill Jr.’s lawyer, Gibson, Dunn & Crutcher partner James Ho, was one of two people nominated three weeks ago by President Trump to a judgeship on the U.S. Court of Appeals for the Fifth Circuit.

The other nominee is Texas Supreme Court Justice Don Willett, who is one of the judges deciding the Hill litigation.

Ho honed in on the contingency-fee nature of the award, saying the dollar amount isn’t as much an issue as the illegal nature of an oral fee agreement that is contingent on the outcome of a case. Such an arrangement is illegal, Ho said, under the Texas “statute of frauds,” a provision in the Government Code pertaining to attorney conduct.

“What the Legislature has chosen in this very historically sensitive area of contingency fee is that you have to get that signed into writing, specifically to make sure that the client has in fact” agreed to terms, Ho said.

Texas Solicitor General Scott Keller, who supports Hill Jr.’s contention that the oral fee agreement was unenforceable, said Shamoun deserved to be paid his regular hourly rate of $600 an hour for a total recovery of $90,000.

Former Texas Supreme Court. Chief Justice Wallace Jefferson, who represents Shamoun in the litigation, invited the justices to put themselves in the shoes of the jury who heard evidence about specific phone calls involving Shamoun, Hill, and Hill’s longtime personal lawyer Frances Wright in reaching the oral agreement about Shamoun’s compensation.

Hill was insistent that all of the cases be settled before an upcoming trial involving racketeering claims and perjury allegations, Jefferson said, and told Shamoun he wanted him “vested” in the outcome.

When Shamoun pushed to put the fee agreement in writing, Hill denied even agreeing to the terms and then fired Shamoun, Jefferson said.

“You read this testimony and it becomes clear,” Jefferson said. “The jury was asked what is reasonable under these circumstances.”

Jefferson said the jury’s award was based on the reasonable value of Shamoun’s services and was less than the amount he would have been due under the oral agreement.

Facebook sued over birthday reminder texts

By: Jenie Mallari-Torres

A California consumer has filed a class action lawsuit against Facebook over allegations it sent text messages without his consent.

James Meyers filed a complaint on behalf of himself and all others similarly situated on Oct. 3 in the U.S. District Court for the Central District of California against Facebook Inc. alleging violation of the Telephone Consumer Protection Act.

According to the complaint, the plaintiff alleges that Facebook sent unauthorized text messages regarding birthday acknowledgements or announcements without users’ consent. He alleges that he received a text on June 14, 2016.

He alleges that the defendant has caused actual, concrete harm because individuals have suffered an invasion of their privacy and lost use of their cellphone.

The plaintiffs hold Facebook Inc. responsible because the defendant allegedly engaged in an unlawful practice of using an autodialer to send messages to recipients and without prior express consent to send the unsolicited text messages.

The plaintiffs request a trial by jury and seek judgment against defendant, injunctive relief $500 in statutory damages for each and every text message received, $1,500 in treble damages for each and every text message that violated the TCPA and an order certifying action as a proper class action. He is represented by L. Timothy Fisher of Bursor & Fisher PA in Walnut Creek, California; Scott A. Bursor of Bursor & Fisher PA in New York and Reuben D. Nathan of Nathan & Associates APC in San Diego.

U.S. District Court for the Central District of California case number 5:17-cv-02029

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All rights reserved.
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