The ancient common tort of public nuisance is all the rage these days. Its resurgence is particularly notable in climate change and environmental litigation, where it seems to be the “tort of choice” for plaintiffs seeking breathtakingly broad relief from global warming and trans-border pollution. Traditionally limited to local concerns, the tort now aspires to planetary dimensions. Its expanding scope has now attracted the attention of the United States Supreme Court in American Electric Power v. Connecticut, which will be argued this Spring. Read More »
The Civil Justice Association of California's (CJAC) Comments on the California Supreme Court's Decision in "Santa Clara"
The President of the Civil Justice Association of California, John Sullivan'a remarks on last Monday's Supreme Court of California decision on the Santa Clara Contingency Fee issue:
By disregarding the firm advice of California's district attorneys and not learning from ongoing lessons in other states, the California Supreme Court may have set our state’s civil justice system on path to a new brand of wasteful, confusing, and perhaps extortionate litigation. Read More »
On Monday the Supreme Court of California spoke for the first time in 25 years on the rule prohibiting contingency fee counsel from prosecuting public law enforcement claims. In People ex rel. Clancy v. Superior Court, 39 Cal.3d 740 (1985), the court prohibited this practice unequivocally because of the risk that the impartiality and neutrality of the public prosecutor would be compromised by contingency fee counsel’s financial interest in generating the largest possible dollar recovery in the litigation. Read More »
On Monday the California Supreme Court reversed course on itself by deciding a governmental entity can retain contingency fee counsel to pursue civil claims provided the language of the contingency fee agreement contains certain provisions that purport to guarantee the government is in control of the litigation. In County of Santa Clara v. Read More »
The appeal of the dismissal of the Kivalina climate change case has drawn fire from several amicus curiae, but some of the most notable criticism comes from Richard Faulk and John Gray in their amicus brief for The American Chemistry Council, the American Coatings Association, and several other industry organizations. In their brief, Faulk and Gray illustrate how the “standardless” liability for public nuisance sought by the plaintiffs creates a non-justiciable “political question” – and justifies the district court’s dismissal of the plaintiffs’ claim. Read More »
As previously reported at this site, the California Supreme Court heard argument on May 5 in County of Santa Clara v. Superior Court, a case that will decide the continued vitality of the rule in People ex rel. Clancy v. Superior Court, 39 Cal.3d 740 (1985), barring the government from hiring contingent fee counsel to prosecute public nuisance and other similar civil law enforcement actions. At issue is whether the prohibition in Clancy is subject to an exception when the government exercises adequate control and supervision over contingent fee counsel. Read More »
The California Supreme Court heard arguments last week in Santa Clara v. Superior Court (Arco et al),which we’ve been following on this blog. Cal Law has an article about it (Public-Private Suits May Get Justices' OK) as does the Daily Journal (Agencies May Get to Hiring Counsel). At issue is whether government entity plaintiffs, when exercising their sovereign authority to bring civil law enforcement actions (such as the public nuisance action in this case brought against lead paint manufacturers), may hire outside contingent fee counsel to prosecute the claims, despite those counsels' personal stake in maximizing any monetary recovery against the defendants.
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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 »
The Orange County Register of March 12 reports that the District Attorney there has hired private counsel on a contingent fee basis to “assist” the prosecutor in bringing an unfair business practices lawsuit seeking civil penalties from Toyota for selling cars with sudden acceleration problems. The action asks for $2500 for each violation of state consumer protection law, plus attorney fees and costs. Read More »