Today's post "RI SC lead paint amicus from 16 AGs - Manifesto in defense of public nuisance" is receiving a lot of attention. Both legal and Wall Street experts are opining. Here is that commentary, on and off the record.
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James M. Beck, Dechert LLP, attorney, personal view, on the record:
"Jane, let me emphasize that this opinion is my personal one, not that of my law firm or any client we might represent.
"My personal view is that product-related public nuisance claims, when brought by government entities:
- Are attempts to raise taxes on primarily out of state companies using the courts as collectors - amounting to taxation without representation.
- Are an infringement upon the power of the legislature to tax, and concurrently upon the right of the citizenry to oppose taxation through the political process.
- Are destructive of the common law because they impose liability without proof that any particular defendant caused any particular harm.
- Are an attempt to use the courts to pursue political agendas (lead paint abatement, gun control, global warming, etc.) usually contrary to the way the legislature has chosen to address the same questions.
- Violate the well established rule, enunciated more than 50 years ago by the Supreme Court, that governments may not use the tort system to recover their own operating expenses.
"The way in which public nuisance suits are brought using private lawyers on contingent fee raises a whole host of other issues about investing governmental powers in persons who are acting in their own interests rather than in the public interest."
James M. Beck can be reached at James.beck@dechert, 215-994-2970, and at the blog "Drug and Device Law" which he co-authors with Mark Hermmann of Jones Day.
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Defense attorney in prominent East Coast law firm, off the record:
"I see this as a very attractive alternative in the medical device field in light of the recent preemption ruling form the Supremes (Justice Diana Ross dissenting).
"It would also be very attractive if the Court extends preemption to pharmaceuticals (which I do not think it will except in certain limited circumstances). My sense, however, is that ultimately the plaintiffs will run up against causation and product identification issues in lead paint. These problems are not the same in other areas, but I still think that lead paint is a doomed mass tort, other than the raised awareness of the problem, which is, of course, very good."
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General Counsel in a mid-sized company, off-the-record:
"Jane, you list the 'signers' of that Declaration of Public Nuisance. Well, what struck me is who is missing from that list. There are lots more of these populist, activist attorneys general who 'went missing.'"
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Brandname financial-sector expert, off the record:
"Guess the attorneys general et al. see the money train leaving the station without them."
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The three defendants who will be presenting oral arguments at the RI SC appeal on May 15th are: Sherwin-Williams, Millennium Holdings, NL Industries.
You can read more about the business and Wall Street implications of public nuisance in my recent e-book on the subject. Here you can download it free Download publicnuisancevoodoo.pdf
READER INPUT ON PUBLIC NUISANCE WANTED. Please leave a comment or contact Mgenova981@aol.com.
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