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• WILLIAMS v. RJ REYNOLDS TOBACCO COMPANY - Argued and submitted September 19, 2011. 

This is a certified appeal from the Court of Appeals. See ORS 19.405 (describing process for certification of appeal to this court). The dispute arises out of the case of Williams v. Philip Morris, Inc., in which, in 1999, a jury awarded the Estate of Jesse Williams (the Williams estate) compensatory damages and $79.5 million in punitive damages for Philip Morris, Inc.'s (Philip Morris) fraud and negligence leading to the smoking-related lung cancer death of Jesse Williams. After over a decade of appeals, during which the case has been before this court multiple times, the punitive damages award now has been affirmed.1 Philip Morris has paid the compensatory damages and part of the punitive damages to the Williams estate, but has refused to pay the 60 percent of the jury's punitive damages award that is allocated to the state under Oregon's split recovery statute, ORS 31.735.2 The state and the Williams estate have sought to force Philip Morris to pay that 60 percent share, either to the state, as the statute directs, or, alternatively, to the Williams estate. The trial court ruled that the state had released its claim to those punitive damages in a settlement agreement in another action, and that the Williams estate also has no right to the portion of the punitive damages award allocated to the state under ORS 31.735. The state and the Williams estate appealed that ruling to the Court of Appeals, which certified the appeal to this court. We now hold that the state's statutory right to a share of punitive damages is not a "released claim," as that term is defined in the settlement agreement in the other action, and therefore, the state did not release its right to pursue payment of its statutory interest in 60 percent of the Williams punitive damages award when it settled that other action. We therefore reverse the judgment of the trial court.

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‘InJustice’ blasts class action lawsuit abuse, the bane of the tort reform movement 

From tobacco settlements to shakedown artists in the wake of Hurricane Katrina, these legal land mines are enriching the trial lawyer industry while endangering the fiscal health of companies of all stripes, guilty or innocent.

Kelly, a 25-year veteran of television and independent film projects, understands the biases in his industry in telling his tale.

“This is the kind of film HBO wouldn’t do,” he says of a channel which routinely broadcasts left-of-center content. Consider “InJustice” a shot across HBO’s bow. The pay channel debuted its own lawyer-based documentary, dubbed “Hot Coffee,“ June 27. That film argued against tort reform using the infamous McDonald’s coffee scalding case as its guide.

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• Heitkamp: ‘Pay to play’ claims false 

Former North Dakota Attorney General Heidi Heitkamp’s connection with a federal judicial nominee was used by Republicans this week to oppose his nomination.

As part of their opposition to the Rhode Island nominee who was confirmed by the Senate on Wednesday, Republicans spoke out against campaign contributions that Jack McConnell Jr. gave Heitkamp during the Democrat’s 2000 race for North Dakota governor and his part as a special assistant in the state’s tobacco lawsuit.

Sen. John Cornyn, R-Texas, and other conservatives have referred to the working relationship between Heitkamp and McConnell as “pay to play.”

Heitkamp called Cornyn’s comments “incorrect and irresponsible” and said she found it “appalling” that a U.S. senator “would know so little about the facts.” . . .

On the Senate floor on Tuesday, Cornyn said Heitkamp appointed McConnell as a special assistant attorney general to represent the state in tobacco litigation, and McConnell and his wife contributed $30,000 to Heitkamp’s gubernatorial campaign. . . .

On Wednesday, Heitkamp provided the pages of the master settlement agreement that refer to “Designation of Outside Counsel.” While other states have outside lawyers named to receive compensation for representation, next to North Dakota is the word “none.”

“Jack McConnell didn’t receive a dime for any legal work that he ever did for the state of North Dakota,” Heitkamp said. “He served without compensation.”

No one outside of the North Dakota Attorney General’s Office was compensated for the legal work, she said.

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CORNYN: No gavel for Obama's pay-for-play appointee 

The Constitution clearly delineates the power of “advice and consent” on judicial nominations to the U.S. Senate alone. Moreover, “advice and consent” means more than a rubber-stamp of the president’s nominees. It means we, as senators, have a constitutional responsibility to ensure that the nation gets the very best candidates for these appointments. Typically, those nominated are of the highest caliber, practitioners and scholars characterized by distinguished careers marked with unmistakable professional integrity.

Unfortunately, Jack McConnell does not fit this bill. Nominated to the U.S. District Court in Rhode Island, Mr. McConnell throughout his career has tended toward perverting the rule of law, rather than upholding it. A close look at Mr. McConnell’s 25-year legal career reveals a record surrounded by an ethical cloud. . . .

As a crusading plaintiff’s lawyer, Mr. McConnell has helped initiate and direct the litigation of mass tort suits brought by state attorneys general against tobacco and lead-based paint manufacturers. He and his firm established a pattern of contributing tens of thousands of dollars to attorneys general in states engaged in mass tobacco litigation, where his firm was appointed to represent those states on a contingent-fee basis.

For his role in the tobacco litigation, Mr. McConnell continues to receive millions of dollars personally in annual payouts through 2024. His involvement in these mass contingent-fee cases raises the appearance of impropriety and “pay-to-play” dealings. I have long argued these types of arrangements are inherently unethical and inevitably lead to the appearance of public corruption. In Texas, for instance, my predecessor as attorney general served more than three years in federal prison for his role in manipulating documents related to a contingent-fee contract and attempting to channel settlement funds to a close friend.

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No role for Danny Williams in tobacco deal: lawyer 

Former Newfoundland and Labrador premier Danny Williams played no part whatsoever in how his former law partners were picked to work on a government-funded anti-tobacco lawsuit, the U.S. lawyer leading the case says.

"I was hired by both the Liberals and the Conservatives quite independently and never met Premier Williams in any capacity at all, before he left office, or since then," Kenn McClain told CBC News.

"I would some day like to meet him, but I never met him before he left office."

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WANGERSKY: Curiouser and curiouser  

Imagine the time and paperwork involved with choosing that law firm: if a lowly private wharf is tens of pages of documents and letters, a billion-dollar lawsuit’s choice of lawyers is bound to be a pretty massive pile of paperwork.

Except, strangely, it isn’t.

In fact, there’s not a scrap of paper. Not a squib. Not a letter nor an email nor a Post-it note.

Using access to information legislation, The Telegram asked for documents related to the selection of the firm that was picked. (The firm in question? A law firm co-founded by Danny Williams, now named Roebothan McKay and Marshall.) The answer was startling: no records exist. Nothing. Bupkis.

Monday, things got even stranger. . . .

Asked directly how the province chose the firm, a Justice official responded, “The province felt Roebothan McKay Marshall was the local law firm that best met the requirements for this work.”

Strangely, the government is now claiming that the Missouri firm made the choice — apparently, it’s all the Liberals fault, because the Liberals picked the Missouri firm years ago.

But that would only be the case if the province was still using the same contract as the Liberals had signed: I asked about that contract in February, saying, “Is the Missouri firm still operating under its original contract with government?”

The response? “No. The province has a new contract with the law firms.” That contract must not be on paper, though — because there’s nothing on paper. Remember?

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Tobacco lawsuit headed up by Danny Williams's old firm 

Newfoundland and Labrador's Opposition leader lambasted the provincial government on Monday for retaining the untendered services of a law firm connected to former premier Danny Williams in its lawsuit against big tobacco.

The law firm Roebothan McKay Marshall is heading up the province's lawsuit against tobacco companies, which is aiming to recover millions of dollars associated with smoking-related health-care costs.

But it's also the law firm former premier Danny Williams helped found. He left the firm about a decade ago when he entered the political sphere, but he was still the premier when the firm took the lead on the tobacco case.

According to information gleaned from Freedom of Information requests, there was no tendering process leading to that contract, Liberal Leader Yvonne Jones alleged in the provincial legislature on Monday.

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Law firm tobacco contract under fire  

The Newfoundland and Labrador government admitted Monday that Danny Williams was premier when his former law firm was hired to work on a lawsuit aimed at recovering millions of dollars from tobacco manufacturers.

Justice Minister Felix Collins said a U.S. law firm picked a St. John's firm that had been founded by former premier Danny Williams. (CBC)

Roebothan McKay Marshall — a firm Williams helped found, but which he left after he entered politics a decade ago — is at the centre of a political controversy, with the Liberals accusing the governing Progressive Conservatives of awarding a rich contract without tender.

"There is no paper trace anywhere inside of the government that allowed for this contract to be awarded or done appropriately," Liberal Leader Yvonne Jones told the house of assembly.

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Carl Kanowsky: Can Joe Camel balance the budget? 

I don't know how out of whack the state budget is -- what, something like $360 gazillion? -- but Gov. Jerry Brown has devised a unique way to at least reduce some of it. And all of this courtesy of our favorite cigarette mascot, Joe Camel.

It seems that in 1998 R.J. Reynolds, Joe Camel's creator, entered into a consent decree on issues pertaining to public health concerns about smoking and the marketing of tobacco products to minors.

Our government, watching out for our collective health, had accused Big Tobacco -- or BT for short -- of targeting our kids by using cartoon characters to entice them to sample some of the product.

BT, including Reynolds, conceded nothing but agreed to halt the use of cartoons in its advertising. . . .

The appellate court then instructed the trial court that if it believed that the state actually was the prevailing party, it was entitled to "the number of hours reasonably expended multiplied by the reasonable hourly rate."

What is a "reasonable rate? "The reasonable hourly rate is that prevailing in the community for similar work."

I know that some of my colleagues charge upward of $750 an hour or more. Is that the relevant "community" that should be considered? The court of appeals left that up to the trial court.

So the state and Joe Camel are headed back to the original judge to ask him to revisit his decision in light of what the court of appeals had to say.

On behalf of all taxpayers, I'm rooting for Brown and his replacement, Kamala Harris, to hit a home run and force Reynolds to help us reduce the state's red ink.

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WANGERSKY: Nothin’ to see here? Prove it  

Once more into the breach, and once more into the question of the curiously silent provincial government and its choice of a St. John’s law firm to handle the province’s lawsuit to collect damages from tobacco companies.

The province isn’t saying how it picked the company, and it isn’t saying what it will pay. But out there in the great wide world, there’s plenty to read about tobacco lawsuits.

The Smoking and Health Action Foundation/Non-Smokers’ Rights Association had this to say in a 2009 report on tobacco lawsuits: “The litigation-enabling legislation that these provinces (including Newfoundland and Labrador) have passed is so strong that some legal analysts suggest that it “stacks the deck” in favour of the provinces in a way that almost guarantees the provinces a successful outcome at trial. It has been estimated that tens, possibly hundreds, of billions of dollars are at stake.”

Good returns

Many lawsuits against tobacco firms involve contingency deals with law firms who collect as much as 30 per cent of the total settlement — here, the government is reportedly looking for $1 billion. Do the math.

It’s an interesting amount of money, given the legal support from legislatures; almost as interesting as reading about how other provinces pick law firms.

Four years ago, the province of New Brunswick started the process of picking a firm for its tobacco lawsuits. Unlike here, that province issued a request for proposals for the work. . . .

Here, the province approached one firm and negotiated a deal — a deal the government refuses to reveal or even talk about.

The province has said it chose the firm it felt was best suited for the work, and added darkly that other firms in the province had done work for tobacco companies.

That kind of information could also have been included in a request for proposals — as New Brunswick did. . . .

What’s it all mean?

That there’s a lot of money at stake and that taxpayers are owed the most transparent and accountable contract award that the government can produce.

Did we get that here? Hell no.

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AUDIO: An Attorney's Fall: From Billionaire To Inmate 

Trial lawyer Dickie Scruggs made millions from lawsuits targeting the asbestos and tobacco industries. He was part of a network of powerful businessmen and politicians spanning from Oxford, Miss., to Washington, D.C., who traded favors, influence and money.

How that system worked -- and how Scruggs wound up in prison for attempted bribery -- is the subject of The Fall of the House of Zeus, a book by journalist Curtis Wilkie, who became friends with Scruggs in college.

"The trial lawyers are considered in some circles as champions of the people who have been screwed over by big corporations," Wilkie tells NPR's Steve Inskeep.

In Scruggs' case, he made a business out of challenging big business. He made a fortune in winning settlements from the tobacco industry -- his fees were estimated at $1.6 billion. The money fed an appetite for both power and luxury. . . .

Right now, Scruggs is serving a sentence in an Ashland, Ky., prison. But he has held on to his money -- and continues to make more. As Wilkie says, Scruggs' tobacco settlement fee arrangements will continue to pay him $20 million a year until the year 2025.

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LITTLE: Tobacco settlement a blot on Blumenthal's record  

Connecticut Post reporter Bill Cummings should be commended for finally shedding some light on the tobacco fee contracts entered into by state Attorney General Richard Blumenthal (Aug. 15). These contracts represent a national scandal not only for the unimaginably lavish compensation they bestowed on private lawyers but for the secrecy that surrounds these payments. In Connecticut, as noted by your report -- as well as other states -- nearly all those granted these controversial contracts were closely allied cronies of the state attorneys general. Many believe those contracts violate long-established legal and constitutional provisions respecting public money and that they essentially are an unlawful and secret transfer of a massive stream of public money to private individuals. . . .

One need not be a cynic to conclude that these late arrivals with "Republican" credentials were invited to the party for the sole purpose of heading off a challenge, if not a public clamor, at an arrangement whereby what has been estimated at in excess of some $13 billion (the actual number is not known!) in public money was being steered exclusively to law firms with ties to only one party.

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Blumenthal: The 'A' in AG is for Activist  

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He has challenged just about every powerful interest in the state, and many elsewhere: banks, corporations, utilities, oil conglomerates, insurance companies, Big Tobacco, Microsoft and the medical establishment. He's filed thousands of lawsuits against businesses accused of bilking customers.

His opponents see him much differently, as a bully wielding the power of the state to crush small businesses -- contributing mightily to what they see as Connecticut's negative business climate.

As his general-election battle with Linda McMahon for the seat of retiring U.S. Senator Chris Dodd gets underway, Hearst Connecticut Newspapers has done its own examination of Blumenthal's 20-year record as the state's legal watchdog.

It is indisputable that Blumenthal has changed the office he holds, moving away from the traditional role of state attorney to one of citizens' advocate. Along the way, Blumenthal has had some big wins, some stunning losses and some questionable decisions.

Blumenthal says he's brought in more than $3 billion in settlements and reimbursements . . .

BIG TOBACCO

One of Blumenthal's biggest wins involved the 1998, $246 billion national settlement with tobacco companies accused of deceiving the public about the dangers of smoking. It also marked a sharp departure from his office's traditional role of defending state agencies and offering legal advice to government.

Blumenthal did not initiate the tobacco lawsuit, but he did join early, arguing the state should be reimbursed for Medicaid expenses related to smoking. Big tobacco, in a stunning admission, settled a few years later, giving the 46 states involved 25 years of reimbursement payments. Connecticut's share is estimated at about $3.6 billion. . . .

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Two Ex-Citigroup Brokers Lose Case Over Tobacco Trust Fees ($$) 

Two former brokers for Citigroup Global Markets Inc. lost a $232 million claim against the brokerage in a dispute over fees charged to manage a multibillion-dollar tobacco settlement trust.

A Financial Industry Regulatory Authority arbitration panel threw out the claim filed by Alan J. Kirman and Peter R. Dunn in 2009, who had accused Citigroup Global Markets, of misrepresentation and breach of good faith, among other things. The panel rejected the accusations and, as is common practice, did not given reasons for its decision.

The decision, dated July 28, could end a drawn-out legal dispute that arose from questions about excessive fees charged for trading securities on behalf of the Tobacco Trust Settlement of 1998. The historic agreement between the nation's largest tobacco companies at the time and attorneys general of 46 states required, among other things, payment of more than $200 billion to the states during a 25-year period beginning in 2000.

Kirman and Dunn worked in a Boca Raton, Fla.-based branch office of the brokerage, trading for the trust. They claimed in court documents that they were wrongly blamed for the excessive fees.

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• Cornyn invokes Dan Morales tobacco suit scandal in Rhode Islander's judicial nomination fight  

Sen. John Cornyn, at a hearing Thursday on a Rhode Island judicial nominee, invoked the case of Texan Dan Morales -his scandalized predecessor as Texas attorney general -- as an object lesson in the dangers of ``outsourcing'' state lawsuits to lawyers who work on contingency fees.

Cornyn -- as reported by our Providence Journal colleague John Mulligan -- was expressing concern about the work of nominee John J. McConnell Jr., a partner in a South Carolina-based firm that played a major role in the historic, $248-billion settlement between the tobacco industry and a number of states, including Rhode Island and Texas.

The work at issue involved a different suit, against the lead paint industry. In 1999, Rhode Island's attorney general, Sheldon Whitehouse - now a Democratic colleague on the Senate Judiciary Committee - retained McConnell's firm. The trial yielded a major jury verdict against the industry that the state Supreme Court later reversed.

"It invariably raises questions of conflict of interest," . . .

He was also convicted of mail fraud, after backdating contracts with lawyer Marc Murr, a friend, to make it appear that Murr deserved $500 million in fees for the state's $17 billion tobacco settlement. In fact, Murr had done no work on the case.

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