LEGAL NEWSLINE

Moody

By Daniel Fisher – May 17, 2023 

TALLAHASSEE, Fla. (Legal Newsline) – Florida Attorney General Ashley Moody says she found a way to pay private lawyers tens of millions of dollars for negotiating opioid settlements without triggering the state’s $50 million cap on contingency fees, though a state legal reform group disagrees. 

Moody’s explanation: The companies she sued paid the fees, with more than $70 million flowing to one Washington law firm. But her explanation could be seen as contradicted both by the contract a predecessor AG signed with outside law firms as well as Florida law, which treats any legal fee that is conditioned upon winning a case as a contingency fee. And Section 16.0155 of the Florida statutes states “in no event shall the aggregate contingency fee exceed $50 million” in any set of litigation, regardless of the number of cases or lawyers involved.

“It does not appear that the department is correctly interpreting section 16.0155, at least in light of how courts define a contingency fee,” wrote William Large, president of the Florida Justice Reform Institute, in a legal analysis obtained by Legal Newsline.

Florida passed its fee cap in 2010, part of a wave of such laws known as Transparency in Private Attorney Contracting, or TIPAC, statutes. Business organizations supported such legislation after plaintiff lawyers, many with political ties to the AGs who hired them, collected a $14 billion fee award in tobacco litigation in the late 1990s. They went on to earn hundreds of millions of dollars more, typically through no-bid contingency fee contracts.

Florida’s law requires the AG to make all contracts with outside lawyers public and limits contingency fees to $50 million. The contract former AG Pam Bondi signed in 2018 with Kellogg Hansen of Washington D.C. and three Florida law firms to sue Walgreens, Walmart, CVS and other opioid distributors acknowledges Section 16.0155 and the $50 million fee cap, but also says the private lawyers “shall first seek” to have their fees “paid by one or more of the parties legally responsible for the opioid crisis.”

After Florida negotiated more than $1.6 billion in settlements with those companies, a Pasco County judge awarded Kellogg Hansen $73.5 million in fees. When asked why the law firm’s fees exceeded the cap, Moody spokesperson Whitney Ray said the cap didn’t apply because the money came from the companies, not out of the state’s share of the settlement.

“We have not paid any firms,” Ray said in an e-mailed response to questions from Legal Newsline. “The contract, which was negotiated during the previous administration, provided that counsel would attempt to get fees from the defendants first.”

That explanation defies Florida precedent, said Large of the Florida Justice Reform Institute. While no court has decided how to apply Section 16.0155 – and none may, since it isn’t clear who would have standing to sue over the AG’s interpretation of the law – prior decisions including a 1990 opinion by the Florida Supreme Court have made it clear that any fee dependent on the outcome of the case is a contingency fee, Large wrote.

“That the parties agreed that the law firms would first seek payment from the defendants — and ultimately they did obtain fees as part of settlements and pursuant to fee-shifting statutes — does not transform the fees into something other than contingent fees,” Large wrote.

Moody, like her predecessor Bondi, is a Republican and Florida’s TIPAC statute was signed by Republican then-governor Charlie Crist. But Republican AGs have also shown themselves willing to make deals with private attorneys that contribute to their campaigns. Florida firms Drake Martin Law Firm, Curry Law Group, Harrison Rivard Duncan & Buzzett and Newsom Melton also may have shared in opioid fees, although Moody’s spokesperson didn’t respond to a question asking how much they were paid. Some of those firms contributed thousands of dollars to Moody’s political campaigns. 

Former Republican AG Bill McCollum, who helped draft and pass Florida’s TIPAC statute, said in an interview last year that the fee cap law means what it says.

“The fee cap applies regardless of what the court is doing,” McCollum said then. He declined to comment for this article.

Moody’s office also declined to answer questions about possible inconsistencies in the AG’s position. The global settlement with opioid distributors, which Florida attached to its court filings in Pasco County, describes the state’s contract with outside lawyers as governed by TIPAC (seen on page 585 here). 

To explain why the fee cap didn’t apply, the AG’s office cited section 501.2105 of the Florida statutes, which allows the AG’s office to recover fees in consumer fraud cases. If that statute applies, however, the law also requires a sworn statement of the state’s costs to be attached to the court order awarding fees. No such statement is in the Pasco County court docket and the AG’s office didn’t respond to requests for the affidavit.

https://legalnewsline.com/stories/641734122-private-lawyers-pocket-73-million-in-florida-s-opioid-case-is-it-against-state-law 

Fla. court affirms AG’s power to dismiss whistleblower lawsuits

W.J. Kennedy Feb. 29, 2016, 9:22am

TALLAHASSEE, Fla. (Legal Newsline) – A Florida appeals court last week reaffirmed the state attorney general’s authority to dismiss a whistleblower action under the state’s False Claims Act, even in cases in which the state chooses not to intervene in the action.

Business defense experts on the FCA said they hope the ruling supporting a rare action to dismiss would discourage future lawsuits that are without merit.

“For the attorney general to dismiss this case, it had to be the worst of the worst regarding frivolous lawsuits,” said W. Jerad Rissler, with the Washington, D.C., firm of Arnall Golden Gregory LLP.

“But even in these cases, it costs contractors time and money to defend.”

First filed in 2009, the case involving an automated fingerprinting identification system was brought by an engineer formerly with Motorola, which designed the system. The engineer, Zoltan Barati (relator), claimed the company failed to tell the Florida Department of Law Enforcement, which bought the system, about problems that required several million dollars to correct.

But an affidavit filed by the FDLE said the system “was, and is, successful and fully complies with the contract.”

In FCA cases, the federal government and affected states are given the option to intervene in the case. In 2010, state Attorney General Pam Bondi chose not to intervene in the case, and in 2013, she dismissed it.

Barati’s attorneys argued in part that the Attorney General’s Office lost its authority to dismiss when it chose not to intervene.

But in a Feb. 23 decision, First District Court of Appeal Judge Brad Thomas wrote, “We hold that the attorney general possesses the plenary authority to unilaterally dismiss a qui tam (whistleblower) action, regardless of the state’s decision to decline to previously intervene in the litigation.”

Thomas was joined by Chief Judge Clay Roberts and Judge Stephanie Ray.

Barati also raised due process arguments. But the Florida FCA, unlike the federal law on which it is largely based, contains no provision for a hearing regarding the attorney general’s decision to dismiss a qui tam action.

In an answer brief, the Attorney General’s Office stated, “The lack of notice and hearing provisions in the dismissal context was a deliberate policy choice by the Legislature to provide the Attorney General with unfettered control over qui tam actions and avoid any need for her to explain the dismissal decision.”

President of the Florida Justice Reform Institute, William W. Large, praised the District Court’s ruling.

“To allow an individual relator – motivated solely by personal financial reward and with no special expertise in, or necessary regard for proper policy implications – to stymie the Attorney General’s discretionary decision to dismiss a case makes no sense,” Large said.

 In the large majority of qui tam cases, the states and federal government choose not to intervene.

At the same time, they will not dismiss, said Kayla Stachniak Kaplan with the Washington, D.C., office of Fried Frank (which filed an amicus brief in the Florida case) “but sit back and watch how the case develops.”

 “Often the contractor will settle because they face treble damages if they lose in court and in a separate proceeding could lose any right to future government contracts,” Kaplan said.

 Dating back to the Civil War, the FCA (also called Lincoln’s law) was created to deal with those who would cheat the Union Army in providing shoddy equipment, sickly horses, even sacks of sand instead of sugar. The law motivates employees, those with inside knowledge of the fraud, to “blow the whistle” on the employer by rewarding them with a share of the damages.

The law also provides for an award of the relator’s attorneys’ fees, making qui tam actions a boon for the plaintiffs bar.

 Philip Goldberg, with the Washington, D.C., law firm of Shook, Hardy & Bacon, said that amendments to the federal statute and changes rendered through court decisions have emboldened the trial bar, opening the door to actions in which no fraud exists. In many cases, there has been no injury or no loss to the taxpayer, he said.

One of those changes made it no longer necessary for a whistleblower to have “insider” information – information that a government agency did not have on its own. This has led to lawsuits in which the offense might be as inadvertent and harmless as filing an incorrect form.

http://legalnewsline.com/stories/510697986-fla-court-affirms-ag-s-power-to-dismiss-whistleblower-lawsuits 

Former lawmaker wants on Florida Supreme Court

By Chris Rizo | Jun 11, 2008

TALLAHASSEE, Fla. (Legal Newsline) – Former state lawmaker Dudley Goodlette has said he wants to be named to fill one of four upcoming vacancies on the Florida Supreme Court.

Goodlette said he wants fellow Republican Gov. Charlie Crist to know he is interested in a seat on the high court.

“I think I would add value to the court, and I’m anxious to convey that,” Goodlette was quoted by the St. Petersburg (Fla.) Times as saying Tuesday.

Goodlette, 60, previously served as a legal adviser to the state Taxation and Budget Reform Commission.

The newspaper reported that it will be some time before Florida’s nine-member Supreme Court Judicial Nominating Commission accepts applications for the first two openings on the court.

Raoul Cantero and Kenneth Bell will leave the court this fall. They
were both appointed by former Republican Gov. Jeb Bush.

Justices Charles Wells and Harry Lee Anstead will be forced from the bench next year when they reach the constitutionally mandated retirement age of 70.

The departures will leave Justices Fred Lewis, Barbara Pariente and Peggy Quince on the high court.

In an earlier interview, William Large, president of the Florida Justice Reform Institute, told Legal Newsline that the wave of Supreme Court departures afford Crist a “tremendous opportunity” to reshape the seven-member state Supreme Court.

“This is a once in a lifetime opportunity for the governor. Never in the history of the Supreme Court has there been so many seats open at the same time,” Large said. “This is a tremendous opportunity to create a legacy for the next 25, 30 years.”

From Legal Newsline: Reach reporter Chris Rizo by e-mail at [email protected]

https://legalnewsline.com/stories/510519190-former-lawmaker-wants-on-florida-supreme-court