CA SC Contingency Review - Plantiffs Request Ruling Just on Case, Not Contingency in All Public Nuisance Abatement

Throughout the states, the contingency issue in lawsuits filed by government entities continues to be red hot.  No question, eyes are on the influential California Supreme Court's review of the use of contingency in the Santa Clara lead paint public nuisance litigation.  As yet a date for oral arguments has not been set.

So far both sides have submitted their briefs stating their positions.  Sixteen amicus briefs were filed. Eleven supported the lead paint companies's request for a per se ruling in all public nuisance abatement actions.  That is a ruling not simply applying the the specific Santa Clara case. Both plaintiffs and among the paint companies ARCO and Sherwin-Williams have submitted briefs replying to the amicus filings with the CA SC.

Here I will highlight the main points in the plaintiffs's one.  Among the attorneys who signed the brief is Fidelma Fitzpatrick of Motley Rice.  As lead paint watchers will recall she played a major role as a contingency attorney in the nine years of the Rhode Island lead paint public nuisance litigation.  On July 1, 2008, the RI SC overturned the verdict against the lead paint companies and indicated the case should never have gone to trial Download Statev.LeadIndustriesAssoc.,Inc.

The central argument of the plaintiffs's brief is:

"This court should decline the invitation from various amici to address issues not raised in this case or briefed by the parties."

This is supported by three points:

• This case is not a criminal prosecution and therefore does not implicate the degree of neutrality required of criminal prosecutors
• The Court's ruling in this case should be limited to the context of civil public nuisance abatement actions.
• This court should not revisit its conclusion in "Clancy" that contingency fee counsel can pursue proprietary claims on behalf of government agencies.

In addition, the plaintiffs's brief also makes these other points:

• The standard of neutrality applied to outside counsel here should not be more rigorous than that applied to criminal prosecutors.

• Counsel are trusted to place their ethical obligations before financial interests.

• The California political reform act does not prohibit public entities from retaining outside counsel on a contingent fee basis.

• Highly experienced legal counsel are exempt from the competitive public bidding process.

• Unlike "Clancy," this case does not seek to enjoin ongoing business activity.

• Local government financial constraints are relevant to the determination of whether disqualification of outside counsel is necessary in the furtherance of justice.

• The California legislature's lead paint poisoning prevention program treats the symptom; this litigation treats the problem.

The plaintiffs's brief concludes:

"The Public Entities respectfully request that this Court affirm the decision of the Court of Appeal, and issue a writ overturning the order of the Superior Court."

 Here is the decision of that Court of Appeal Download H031540.

Comments

[lucas law center]

Hi , good point with this one. Nice scoop!

LLC