“Imagine a Republican attorney general getting a letter from the National Rifle Association asking if they’d like two full-time paid employees. The cries of outrage…would be deafening,” said Annette Meeks, founder and CEO of the Freedom Foundation of Minnesota. “We do not want elected officials…soliciting billionaires to fund official functions of those offices.”
Attorneys general from at least 10 states, including New York, Minnesota and Washington, DC, have accepted private lawyers, to work in their offices as special “assistants,” paid by Michael Bloomberg’s charitable foundation. These lawyers provide “expertise” on issues like corporate environmental liabilities. Their influence most likely prompted attorneys general to act on their behalf and file tort cases and coalition letters demonizing critical energy industry companies. American consumers can’t afford influence like this and neither can our legal system.
The integrity of our legal framework is at risk when trial lawyers abuse our tort system. Tort law aims to provide an injured party relief for the harms that have been caused and to deter others from committing these harmful acts. It has been abused for years. Some trial lawyers hastily and aggressively attack certain industries, which causes more harm than good to your average American consumer. Ultimately, those consumers will be the ones who suffer the most.
The vast majority of Americans rely on essential goods and services provided by industries and corporations that have recently been accused in the public square. Fighting for consumer protections is a necessary component of a safe society, but trial lawyers are abusing this concept to gain publicity and profits. Many have pursued these mass tort lawsuits with underhanded tactics outside the courtroom, which distort our judicial system by punishing those acting in good faith.
Plaintiffs’ attorneys rake in millions of dollars every year by leveraging a carefully designed ecosystem of outside experts, marketing agencies, and non-profit organizations – paid to launch coordinated strikes against honest actors in the marketplace.
Plaintiffs’ attorneys rely upon a network of outside groups to amplify their skewed legal narratives and legal arguments. One of the most powerful organizations that most Americans don’t know about is the National Association of Attorneys General (NAAG), a nonprofit organization consisting of current state attorneys general. The NAAG’s role is to empower attorneys general to fulfill their role of defending the interests of their constituents and consumers in civil lawsuits. However, its largest source of revenue comes from multistate litigation settlement carve-outs, paid by the tort law firms for the NAAG biased input on these cases.
Plaintiffs’ lawyers thrive on emphasizing cherry-picked information creating a hyper awareness and fear about products that could be perfectly safe. Since there is a low standard set by the plaintiffs’ bar for filing cases, nearly one-third of the filing plaintiffs do not meet the criteria necessary to collect any settlement money at the conclusion of the cases. They are filing cases to file cases, increase their numbers and add to the media onslaught.
The media buzz can become so strong that many corporations are forced to pay large sums of settlement money just to end the media attacks.
The concerted efforts to exaggerate claims in the media are getting the attention of the federal government. In September of 2019, the Federal Trade Commission sent letters to at least seven law firms and “lead generators” warning their excessive television ads could mislead viewers into doubting their medications. These ads can often seem like official warnings rather than paid advertisements. States like Texas and Tennessee have passed laws regulating lawyers’ advertising in response to this practice.
Corporations that have been inundated with these legal attacks have begun developing new legal strategies to provide a semblance of balance to the equation. In what is being termed the Texas Two-Step, as it is permitted by the Texas Business Organizations Code, a company can split itself into two entities, where one will receive all liabilities with limited assets and the other larger entity is insulated from the frivolous litigation. The most well known and recent example came in 2021 when Johnson & Johnson faced more than 38,000 pending cases regarding the alleged carcinogenic effect of talc in its famous baby powder product. J&J separated its consumer health businesses and split into two entities, transferring its legal liabilities to a subsidiary in Texas called LTL Management LLC.
If we continue to allow the greedy onslaught of plaintiffs’ attorneys against both vulnerable Americans and companies to continue, it will only decay the integrity of our legal system and the trust that people place in the rule of law. Absent any sensible tort reform and new legal measures for defendants to end this systematic abuse, companies should continue to find innovative ways to defend themselves against our current broken system.
Andrea G. Bottner J.D. is a former official of the United States Department of Justice.