‘Plaintiffs’ attorneys established a scheme under which they can grab a lot more money for a doing a lot less work.’ —John Beisner
If anyone wonders why we’re subjected to an unrelenting, multi-million dollar onslaught of law firm television, radio, and social media ads recruiting potential Camp Lejeune claimants, the answer is obvious. It’s a plaintiff lawyers’ gold rush. Hopefully, Congress will recognize its error and take steps to halt this travesty in the making.
For many years, a federal statute—the Federal Tort Claims Act—has limited the contingency fees attorneys may collect when representing citizens asserting personal injury claims against the US government, like those whose health was affected by tainted water at the Camp Lejeune Marine Corps base.
If a claim is fully litigated, counsel may take from their clients no more than 25% of the recovery—the limit is 20% if the case is settled. Those caps are critical to ensure appropriate compensation of injured citizens and limit taxpayer exposure. The FTCA dictates criminal penalties for any lawyer who “demands” or “receives” amounts exceeding those caps.
Then along came the Camp Lejeune controversy, which involves allegations that for years, the drinking water at that military base contained toxins that may have caused cancers among thousands of veterans and their families.
For any Camp Lejeune claims against the federal government, the plaintiffs’ bar achieved a radical change of normal FTCA rules. Congress enacted legislation removing the FTCA attorney fee caps, allowing counsel to collect whatever fees they want from Camp Lejeune clients.
And for such claims, the legislation lowered the evidentiary burdens a claimant must satisfy, which will likely result in many claims being settled without need for a full litigation effort. In short, plaintiffs’ attorneys established a scheme under which they can grab a lot more money for a doing a lot less work.
Due to these changes, military veterans and their families—the allegedly injured parties who may deserve and need money to deal with their cancers and sustain their livelihood—may have to fork over upwards of 40% or more of their monetary awards to attorneys for doing relatively little work. And taxpayers may end up paying billions to support this scheme.
John Beisner is a partner in Skadden’s litigation, mass torts, insurance, and consumer litigation practices. He focuses on defense of purported class actions, mass tort matters, and other complex civil litigation.
‘This is just another in a long line of ploys by plaintiffs’ attorneys to tug on heartstrings so they can get rich fast.’ —John Masslon
Plaintiffs’ attorneys often push emotional narratives that resonate with the public to pad their own pockets and hurt Americans. The caps on attorney fees that were originally included in the Camp Lejeune Justice Act—20 to 25%—appropriately compensated attorneys for their work.
For many claims, liability has already been established, so plaintiffs’ attorneys are taking on less risk by taking on these cases. Thus, a reduced attorney fee award is appropriate and doesn’t limit the supply of attorneys willing to take these cases.
But plaintiffs’ attorneys were able to leverage the emotional stories of troops having served their country being harmed by water contamination at Camp Lejeune to argue that fee caps would lead to troops bypassing meritorious claims.
This is just another in a long line of ploys by plaintiffs’ attorneys to tug on heartstrings so they can get rich fast. Recent examples include federal legislation that bars arbitration clauses for sexual harassment claims and Vermont’s Act 93 that provides a cause of action for medical monitoring.
In each of these cases, the stories are heartwrenching to hear. But the solutions pushed by the plaintiffs’ bar are contrary to the public interest. With no attorney fee cap for Camp Lejeune claims, there has been an uptick in frivolous claims pushed by the plaintiffs’ bar.
These claims are costing taxpayers money, even when they are unsuccessful in court. With the inability to arbitrate sexual harassment claims, employees are seeing decreased salaries and benefits as companies shift those resources to paying increased litigation costs.
And with medical monitoring claims, consumers are paying more for goods because companies have to expend resources looking for a harm that may never come. It is long past time to end the madness and push back against the plaintiffs’ bar.
John Masslon is senior litigation counsel at Washington Legal Foundation. An experienced appellate litigator, he filed dozens of briefs before the US Supreme Court, federal courts of appeals, and state courts.
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
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