The intersection of trial lawyer opportunism, climate orthodoxy, and political expediency has become a busy and increasingly perilous place.
these suits are expanding a perilous new frontier in the world of ambulance-chasing by elected officials that began with the multi-state litigation against the tobacco industry in the 1990s. Nearly five years ago, the U.S. Chamber of Commerce’s Institute for Legal Reform published a report detailing a growing alliance between state attorneys general and private plaintiffs’ lawyers to seek hefty monetary damages from unpopular industries with deep pockets.
In essence, plaintiff firms are devising new theories, such as “climate crime,” and using government-backed cases to test these theories in court, in the hopes of raking in billions. Instead of making policy in city hall or the state legislature, officials are farming out the resolution of complex public policy questions to trial lawyers. This smacks of legal opportunism, not pro bono work to advance the public good.
giving trial lawyers free rein encourages frivolous lawsuits and protracted litigation. A telling example came in 2014 when a Nevada judge ordered the state’s attorney general to pay legal and discovery costs to a mortgage lender that Cohen Millstein had sued on behalf of the state, alleging that the company violated state consumer protection laws by engaging in “robosigning.”
In that case, the mortgage lender, Lender Processing Services, had settled similar claims in 49 states. But it was unable to reach a settlement with Nevada — a situation that the company said reflected Cohen Milstein’s incentive to hold out for more money under its contract with the state, which awarded the firm 15 percent of any settlement.
Finally, these lawsuits are corrupting the concept of attorneys general discharging their law enforcement duties without regard to politics. Last March, a superior court judge in New Hampshire appropriately ruled that the state attorney general did not have the legislative authority to “deputize” Cohen Milstein to pursue a pharmaceutical company in a case stemming from the marketing of a prescription opioid.
Many environmental activists will cheer on law firms such as Cohen Milstein and Hagens Berman as contemporary Don Quixotes, working for free on behalf of cash-strapped towns and cities to wring money from fossil fuel companies. The difference is that Don Quixote’s delusions were righteous and harmless. The novel was satire and farce. Today’s trial lawyers are embarking on a perilous real-world quest to use municipalities and attorneys general to substitute litigation for policymaking and gin up environmental extremism, with the end goal of a multibillion-dollar payout.
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