Published By: Maxwell S. Kennerly, Esquire

Supreme Court

Subscribe to Supreme Court via RSS

This week’s U.S. Supreme Court argument in Bartlett v. Mutual Pharmaceutical (link goes to my thoughts on the case, which I posted back in December) has taken the issue of “impossibility preemption” for a brief stroll through the rest of the legal world, crossing paths with some major news outlets. Karen Bartlett was given a shot of a pain reliever, sulindac, which caused her to develop Stevens-Johnson Syndrome and toxic epidermal necrolysis so severe her burn surgeon called it “hell on earth.” There would be a handful of legal avenues available to her if she had received the brand-name drug, but, because she received a generic, there’s the looming question as to whether her State tort law lawsuit is “preempted” under the Supreme Court’s 2011 case, PLIVA v. Mensing.

A brief refresher. There are four types of “preemption,” so named when federal law trumps — i.e., “preempts” — state law.

1. Express Preemption is when Congress and the President pass a law that says States’ law on the issue are unenforceable. For example, the preemption clause of ERISA, 29 U.S.C. § 1144, “the provisions of this title … shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan …”

2. Impossibility Preemption is when Congress has not passed any law preempting State law, but “where compliance with both federal and state regulations is a physical impossibility for one engaged in interstate commerce.” Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143 (1963).

3. Conflict Preemption occurs where Congress hasn’t passed a law preempting State law, and where it’s possible to comply with both, but “under the circumstances of [a] particular case, [state] law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz, 312 U.S. 52, 67 (1941).

4. Judicial Activism Preemption happens when a judge, or the majority of judges on a federal appellate court, don’t like a particular State law and so make up a reason to get rid of it. No, the courts themselves don’t call it that, they typically call it “impossibility preemption.” This is my term for it.

In the Bartlett case, just like in every other pharmaceutical liability case, there’s no express preemption. In the 80 years since the passage of the Federal Food, Drug, and Cosmetic Act in 1938, Congress has never once saw fit to preempt State law lawsuits against brand-name or generic drug manufacturers.

In 2011, a slim majority of the Supreme Court in PLIVA, Inc. v. Mensing, 131 S. Ct. 2567 (2011) applied what I call Judicial Activism Preemption under the guise of impossibility preemption, and made up a reason to blow up the majority of lawsuits against generic drug manufacturers. I wrote more about it here. Law professor Leslie Kendrick recently wrote about how problematic impossibility preemption is in the conduct of pharmaceuticals in general.

Mensing involved a “failure to warn” claim — i.e., an allegation that the drug’s warning labels didn’t adequately disclose the drug’s real risks — and the Supreme Court held those claims were preempted. Bartlett on the surface involves a pure strict liability claim — i.e., a claim that the drug is simply unreasonably dangerous given the minor benefits it has compared to the serious risks — and then in the details involves a number of complicated factual and legal issues, including the strange decision by the defendant to waive most of its defenses, complicated issues that, to me, should have caused the Supreme Court to decline the case for consideration.

Be that as it may, the oral argument (transcript here) revealed a lot about the true nature of preemption and the Justice’s thoughts.
Continue Reading Impossibility Preemption, Strict Liability, And The Troll Supreme Court Justice

[September 20, 2012: This post has been updated at the end to include comments on Judge Posner’s review, Brian Garner’s response, and the volleys between Scalia and Posner.]
 
 
 
It sounds like such a good idea: the pre-eminent legal lexicographer of our time and a Supreme Court Justice together writing a large, detailed treatise on, as they say, “what, in our view, courts ought to do with operative language” of regulations, statutes, and court opinions.
 
 
 
The result of this collaboration between Brian Garner and Justice Scalia, Reading Law: The Interpretation of Legal Texts, billed as “systematically explain[ing] all the most important principles of constitutional, statutory, and contractual interpretation” through a “textualist” approach, does not live up to the hype.  It makes one big mistake, a problem that should have been obvious of at least December 12, 2000.
 
 
 
Simon Chester at Slaw has the most thoroughly research review of the book with the broadest perspective, even catching some errors. Stanley Fish rightly points out that textualism’s claim to being the only objective, apolitical form of legal interpretation is rubbish. As Scott Greenfield recognizes,

They acknowledge that the canons, even their own beloved textualist rules, can conflict, but resolve the problem with the facile resort to the one which gives the text its fairest meaning. Aha! The dreaded judgment call that gives rise to a judge imposing his values over competing values. The very method they deride unmercifully throughout the introduction. Go figure.

That is, of course, an intrinsic problem with claimed “textualism” — if the text is less than pellucid, you get to go by what you had for breakfast — but Tony Mauro’s report reveals an even deeper problem with the work as a whole:

Scalia himself has been accused of saying he is bound by the text of a statute or constitutional provision – and then ruling according to his personal preferences anyway. “That is a false charge,” Garner said Thursday, adding that Scalia is probably “the most consistent and principled” justice in terms of following the text wherever it leads him.

Right there, in one sentence, Garner dooms his magnum opus to the overflowing dustbin of legal history, a mere reference for useful case law but not a credible source of analysis, a work the importance of which will not outlast Scalia’s tenure, if that long.
Continue Reading Scalia On Reading Law: The Fox On Guarding Henhouses

There are innumerable ways to set up government, but the Framers of the United States Constitution agreed that our country should be governed by a series of checks and balances: the legislature drafts the laws, the executive enforces the laws, and then both are ignored while five Justices of the United States Supreme Court draft and execute the real laws by deciding in their sole discretion which laws count, which don’t, and what additional laws they would like, based on whatever “facts” some court clerk found googling around to support a Justice’s preference.

What, you didn’t learn it that way in high school civics class, college, or law school? Well, I hate to break it to you, but that’s how things work.

I’m sure someone told you along the way that the Constitution was “the supreme law of the land,” and that the federal courts were restricted in their power to interpreting “cases or controversies.” If you went to law school, then you were told that the effect of these two clauses was to limit the power of federal courts to deciding only the narrowest legal issue that will resolve the case. The Supreme Court has no power under the Constitution to create policy or issue advisory opinions or anything of the sort; it can only operate when two parties come to it asking it to resolve a dispute, which it does by applying federal or state law, often interpreting the federal Constitution to ensure that neither federal nor state laws violate it. (It’s also supposed to accept state courts’ interpretations of their own laws, but that bedrock principle was defenestrated by Bush v. Gore.)

As two recent articles, one in The New Yorker and one in the Virginia Law Review, demonstrate, however, the current Court feels not the slightest hesitation to go beyond the cases actually in front of it, and to issue decisions that go far beyond of the facts of the cases they’re deciding, and which often rely on “facts” that aren’t anywhere in the court record, “facts” that are never questioned or considered before they become the law for us all, regardless of their truth or validity. 
Continue Reading Checking The Supreme Court

Every day, billions of dollars changes hands based on the myth that people actually read, and agree to, every word in every contract they’ve ever signed. Ever read your cell phone contract? Your cable contract? Judge Posner famously admitted that he didn’t read the contract that came with his home equity loan.

Truth is, who has the time or energy to scrutinize every line? And what power do you have to negotiate it? Try negotiating your cell phone contract some time. See if you can even find a person at the company with the authority to negotiate.

Decades ago, thoughtful jurists like federal Judge J. Skelly Wright and California Justice Mathew Tobriner analyzed the issue carefully in cases like Williams v. Walker-Thomas Furniture Co., 350 F. 2d 445, 449-450 (1965) and Steven v. Fidelity & Casualty Co. of New York, 58 Cal. 2d 862, 883, 377 P. 2d 284, 298 (1962) and came to sensible conclusions like Skelly Wright’s statement of the law of contracts of adhesion in Williams:

Ordinarily, one who signs an agreement without full knowledge of its terms might be held to assume the risk that he has entered a one-sided bargain. But when a party of little bargaining power, and hence little real choice, signs a commercially unreasonable contract with little or no knowledge of its terms, it is hardly likely that his consent, or even an objective manifestation of his consent, was ever given to all of the terms. In such a case the usual rule that the terms of the agreement are not to be questioned should be abandoned and the court should consider whether the terms of the contract are so unfair that enforcement should be withheld.

That was then, this is now. Now, when the United States Supreme Court thinks that might makes right, so much so that it routinely ignores constitutional limits on special interest legislation for copyright holders while vigorously enforcing the “free speech” rights of pharmaceutical companies to go fishing through your prescription medication records, it’s all just a question of how consumers, patients, employees, and family members will lose in front of the Supreme Court, not if they will. 
Continue Reading One-Sided Arbitration: How To Tell If A Company Expects To Hurt Or Cheat You

Update: I spoke with Geraldo Rivera on 77 WABC about the issue (MP3 file here, segment starts at 13:00), and with LXBN TV, with the below video:

The Philadelphia Daily News has an article today quoting me on the Sandra Fluke / Rush Limbaugh defamation scandal:

Max Kennerly, a lawyer with The Beasley Firm in Center City, thinks Fluke “definitely” has a defamation case against Limbaugh if she chooses to pursue it.

Limbaugh could argue that he was simply rendering an opinion protected by the First Amendment or, alternatively, that the statements would be seen as so outlandish that nobody would believe they were true.

But Kennerly said Limbaugh’s comments that Fluke was a “slut” and “prostitute” “embedded false statements of fact,” were thus defamatory and that a judge might allow a jury to decide the case.

“His statements implied facts about somebody’s sex life, that she was promiscuous and trading sex for money,” Kennerly said.

Kennerly also said that Premiere Networks, Inc., a subsidiary of Clear Channel Communications which syndicates the radio show, could also be liable for “publishing” Limbaugh’s words.

The potential for a lawsuit has been a hot topic lately, with Google telling me it has 15,000 results for “limbaugh defamation” in the past week. Separating the wheat from the chaff, I’ve found two detailed legal analyses.

Russell Smith at Legal As She Is Spoke goes through the old favorites like New York Times Co. v. Sullivan and Gertz v. Robert Welch, Inc., to conclude there’s nothing there:

But did he assert as fact that Ms. Fluke is a slut or a prostitute? He did not. Mr. Limbaugh has long history of using his radio show to spout rhetoric and hyperbole. All of his listeners were perfectly aware that this was not an actual assertion about Ms. Fluke’s sex life, but a “vigorous epithet” slung at Ms. Fluke in order to advance the argument that her position on contraception is wrong.

Marc Randazza at Legal Satyricon takes a different tact, bringing in some lesser known cases, and argues that “slut” is now protected opinion:

In other words, “slut” is properly regarded as little more than a statement of opinion. But see Bryson v. News Am. Publs., 672 N.E.2d at 1221; Howard v. Town of Jonesville, 935 F.Supp at 861; Smith v. Atkins, 622 So.2d at 800. …

The term “slut” has different meanings to different people. C.f. McCabe v. Rattiner, 814 F.2d 839, 842 (1st Cir. 1987) (finding that the term “scam” “means different things to different people . . . and there is not a single usage in common phraseology. While some connotations of the word may encompass criminal behavior, others do not. The lack of precision makes the assertion ‘X is a scam’ incapable of being proven true or false.”); Lauderback v. Am. Broad. Cos., Inc., 741 F.2d 193, 196 (8th Cir. 1984) (insurance agent referred to as a “crook”). “Clearly, if the statement was not capable of being verified as false, there could be no liability for defamation.” Woodward v. Weiss, 932 F. Supp. 723, 726 (D.S.C. 1996).

Absent something really bizarre happening in Court, I can’t see a court, in this day and age, allowing a defamation claim based on the term “slut.”

I’d add to Randazza’s mention of Bryson, which allowed a “slut” defamation lawsuit, the case of Anson v. Paxson Communications Corp., 736 So. 2d 1209 (Fla. 4th Dist. Court of Appeals, 1999), which allow a defamation claim against radio shock jocks who called the plaintiff a prostitute.

Smith and Randazza make reasonable arguments, but I disagree, given the full context of Limbaugh’s remarks. Let’s go back to what Limbaugh actually said: 
Continue Reading Sandra Fluke Can Sue Rush Limbaugh For Defamation And IIED

Today the Supreme Court will hear oral arguments in two cases, Kiobel v. Royal Dutch Petroleum and Mohamad v. Palestinian Authority, that raise a simple question: whether the Alien Tort Statute applies to corporations.

The Constitution granted Congress the power “To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations,” Article 1, Section 8, Clause 10, and Congress responded in the Judiciary Act of 1789 by passing the Alien Tort Statute (ATS), which ensured “district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” The ATS is, literally, one of the first laws ever passed in the United States. It was obviously intentionally broad: an alien may bring a tort suit for any “violation of the law of nations or a treaty of the United States.“

SCOTUSBlog has an extensive preview of the argument that details, inter alia, the rise of ATS litigation following the Second Circuit’s 1980 opinion in Filártiga v. Peña-Irala, and the Supreme Court’s 2004 opinion in Sosa v. Alvarez-Machain.

There’s plenty of commentary at SCOTUSBlog about the issues at hand and the various arguments. For recent developments in the courts, Professor Alberto Bernabe has been following ATS litigation for some time. I don’t want to recount the details of the ATS, but rather want to focus on a very particular issue: the analytical sleight-of-hand that Justices Scalia and Thomas, and presumably Justices Roberts, Alito, and Kennedy, will likely use to deny victims of human rights abuse a right to civil redress granted to them at the very beginning of our nation.

I’m certainly not the first to point out the dishonesty of Justice Scalia’s “originalism” — which vanishes the moment it conflicts with his preferred political outcome — and other conservative judicial activism. (It’s a bit dense, but I still like David Zlotnick’s Justice Scalia & His Critics: An Exploration of Justice Scalia’s Fidelity to His Constitutional Methodology, 48 Emory Law Journal 101 (1999)).

But the ATS presents a special case to bring to light the deceptive way in which “originalists” expand or contract the concept of “original meaning” to fit their purposes. Consider Justice Scalia’s argument in his concurrence (joined by Justice Thomas) to Sosa v. Alvarez-Machain that the ATS cannot be used to enforce any norms of international law not in place as of the Judiciary Act of 1789:

Despite the avulsive change of Erie, the Framers who included reference to “the Law of Nations” in Article I, § 8, cl. 10, of the Constitution would be entirely content with the post-Erie system I have described, and quite terrified by the “discretion” endorsed by the Court. That portion of the general common law known as the law of nations was understood to refer to the accepted practices of nations in their dealings with one another (treatment of ambassadors, immunity of foreign sovereigns from suit, etc.) and with actors on the high seas hostile to all nations and beyond all their territorial jurisdictions (pirates). Those accepted practices have for the most part, if not in their entirety, been enacted into United States statutory law, so that insofar as they are concerned the demise of the general common law is inconsequential. The notion that a law of nations, redefined to mean the consensus of states on any subject, can be used by a private citizen to control a sovereign’s treatment of its own citizens within its own territory is a 20th-century invention of internationalist law professors and human-rights advocates.

As Justice Scalia continues, “The Framers would, I am confident, be appalled by the proposition that, for example, the American peoples’ democratic adoption of the death penalty … could be judicially nullified because of the disapproving views of foreigners.”

Recall the actual language at issue in the ATS. As Scalia argues, even though the Framers gave Congress the power in the Constitution “To define and punish … Offences against the Law of Nations,” and Congress responded with the ATS ensuring “district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations …,” Congress hadn’t a clue that “law of nations” could be an expansive, shifting concept, and what they really meant to do was to freeze the meaning of that Constitutional provision and the Judiciary Act in 1789.

If you know anything about the Supreme Court, you know where this is going: Heller and Citizens United.
Continue Reading Originalism and Corporate Personhood Meet The Alien Tort Statute

Yesterday, many of the largest and most influential websites on the Internet exercised their power in our attention economy by either going entirely dark (like Wikipedia and reddit) or by prominently displaying calls to action that recommended users contact their representatives and senators about the Stop Online Piracy Act (“SOPA”) in the House and the Protect IP Act (“PIPA”) in the Senate.  The effort apparently worked, with support for both bills collapsing, particularly in the Senate, where even seven of the former co-sponsors of the bill renounced their support. Of course, there’s a good chance some of the more dubious provisions of both will come back at some point.

There is of course no doubt that the SOPA and PIPA bills were bad laws, little more than major media and content companies buying from elected representatives more power to enforce private copyright interests than your local county District Attorney or United States Attorney has to prosecute violent crime.  The bills astonishingly allowed private companies to take down entire websites, and force other websites to change their entire business practices, upon nothing more than a vague allegation of copyright infringement.  As Donny Shaw at OpenCongress described it more than a month ago:

Back in the old days, Congress was a branch of the federal government, separate from corporations, that wrote and passed laws to defend the general welfare of the United State. These days, however, that work is being outsourced to private interests while the actual members of Congress, quaint as they are, spend their time fundraising for their next re-election campaign.

Obviously Congress bears most of the blame for allowing such an absurd piece of special interest legislation to even make it to the floor, and SOPA/PIPA are certainly not the only examples of Congress granting special privileges to content companies under the guise of copyright law, but let’s not forget another party responsible for this set of affairs: the United States Supreme Court.
Continue Reading Blame The Supreme Court, Too, For SOPA and PIPA

[Update, February 9, 2012: Erwin Chemerinsky has an article at the ABA Journal explaining how Minneci and another case this term, Ryburn v. Huff, have made it far harder for civil rights plaintiffs to prevail.]

Yesterday, the Supreme Court issued its first two opinions this term* in civil cases, Minneci v. Pollard, a lawsuit brought by a prisoner who was denied medical care at a federal prison run by a private company, and CompuCredit v. Greenwood, a proposed class action on behalf consumers deceived into signing up for a credit card that claimed it would help “rebuild poor credit” but actually instantly filled its $300 limit with $257 in fees.

If you own a prison management company or fake credit repair company, yesterday was a good day for you. If you don’t, not so much.

The court’s reasoning behind the opinions is as poor as we’ve become accustomed to seeing from the Supreme Court lately (see, e.g., PLIVA v. Mensing, which used a statute that didn’t exist to tell the FDA an irreconcilable conflict existed between federal law and state law even if the FDA didn’t think there was a conflict at all). In Minneci, the Court held that a prisoner sentenced to serve time in a federal prison loses his constitutional rights the moment the jailhouse door slams shut if that prison happens to be run by a private company. In CompuCredit, Congress told consumers “You have a right to sue a credit repair organization that violates the [Credit Repair Organizations Act],” 15 U.S.C. §1679c(a), but the Court held that Congress didn’t really mean it, but instead meant, you don’t have the right to file a class action, you don’t have the right to file an individual lawsuit, but you do have the right to pay a couple thousand dollars for an arbitrator to hear your claim for $257.

I suppose I should give the Roberts’ Court some credit for consistency. Like with Citizens United and the Wal-Mart v. Dukes and AT&T v. Concepcion cases, the Court yesterday reaffirmed its primary theory of constitutional law and statutory interpretation: might makes right. Thrasymachus from Plato’s Republic would be impressed.
Continue Reading Supreme Court Sets The Tone For 2012 Term: Might Makes Right

A few days ago I reviewed the list of “worst” pharmaceutical and medical device liability court opinions of the last year as chosen by the defense lawyers at Drug & Device Law, so I feel obligated to follow-up on their post on the “best” prescription drug and medical device decisions.

The short version is quite simple: drug and device companies really like activist judges legislating from the bench or overruling juries’ factual findings. How else to explain the love for PLIVA, Inc. v. Mensing, in which the United States Supreme Court couldn’t find a federal statute or regulation in support of granting generic drug manufacturers legal immunity and so contrived an argument the Court admitted “makes little sense,” or Garza v. Merck & Co., in which the Texas Supreme Court held that it was unreasonable for a jury to agree with two cardiologists that Vioxx caused a heart attack?

As with their “worst” list, the “best” list is most interesting for what it reveals about the current state of drug and medical device company liability: heads defendant wins, tails plaintiff loses. In Mensing (#1), a plaintiff’s claim was dismissed because the Court didn’t want to speculate about what the FDA would do if a drug company proposed strengthening a warning label, while in Dobbs (#8) a plaintiff’s claim was dismissed because the Court speculated that the FDA wouldn’t accept a drug company’s proposal for a strengthened warning label. In Williams (#4), a plaintiff’s claim was dismissed because her doctors disposed of the pieces of the device in question, while in Wolicki-Gables (#6), a plaintiff’s claim was dismissed because, even though the plaintiff asked in writing for her doctors to preserve the device, a representative of the device manufacturer slipped into the surgery without the patient’s consent, took the device, lied to the patient about testing it and destroyed it, leaving the plaintiff nothing to examine or to test.

Let’s roll the tape.
Continue Reading The Most Unfair Prescription Drug And Medical Device Opinions Of 2011

I complained back when the Supreme Court’s Perdue v. Kenny A. opinion first came out more than a year ago, knocking down attorney’s fees awarded to a set of extraordinary children’s rights lawyers:

It’s no stretch to say those lawyers single-handedly reformed the foster care system in metropolitan Atlanta.

And they did that by spending their own money and putting in their own time, with no guarantee they would recoup any of their out-of-pocket costs, much less get paid a fee for their services. Had they been paid by the hour as they went along, their services would have been worth more than $7 million.

But they weren’t paid by the hour to pursue the case. They were paid nothing at all; instead, they paid money — $1.65 million — for the privilege of cleaning up abuse and neglect in the foster care system.

As Blawgletter explains, there’s a big difference between getting paid to defend a case and paying to pursue one. The former is safe and simple and can be done in perpetuity. The latter is risky and complicated and can only be done for as long as funds are available.

Class actions are, by their nature, extraordinary, more expensive and riskier than even ordinary contingent fee representation. The District Court that oversaw the Perdue litigation recognized that and awarded the plaintiffs’ attorneys their costs, their $7 million or so in hourly fees, and then gave them an “enhancement” of $4.5 million.

The Supreme Court — the Justices of which have a combined experience in contingent fee litigation of exactly 0.0 hours — reversed, holding the plaintiffs’ lawyers, who fought for years without being paid a dime and indeed paying out their own money to fund the case, were entitled only to a fee “that roughly approximates the fee that the prevailing attorney would have received if he or she had been representing a paying client who was billed by the hour in a comparable case.”

It was a phony and vindictive legal fiction designed to dissuade plaintiffs’ lawyers from taking these cases, part of a long campaign against class actions in general that culminated in the Wal-Mart v. Dukes opinion.

Last week, the opinion came back around again to bite a group of employment discrimination lawyers who had been litigating a Title VII class action since 1997. Via the Workplace Class Action Blog comes McClain, et al. v. Lufkin Industries, Inc., No. 10-40036 (5th Cir. Aug. 8, 2011). As they describe:

Plaintiffs had filed a class action in the U.S. District Court for the Eastern District of Texas under Title VII alleging that defendant engaged in unlawful employment practices, including disparate treatment and disparate impact. Id. at *2. The district court certified a class. Id. at *3. After realizing that defendant was not going to settle the case and that they did not have the resources to prosecute an employment class action through trial, plaintiffs’ counsel sought the assistance of another law firm. Id. However, plaintiffs’ counsel was not able to find another law firm in Texas that was willing or able to commit the time and resources necessary to assist in the prosecution of the class action, so plaintiffs’ counsel was forced to turn to an Oakland, California firm with a nationwide reputation as a plaintiffs’ employment discrimination class action firm. Id. at *3-5.

The opinion (here’s the copy at the Workplace Class Action Blog) includes at footnote 4 some remarkable comments about how risky and unprofitable it is to take on these types of cases:

J.  Derek Braziel,  an  experienced Texas litigator in  labor and
employment law, explained: “I do not work on employment discrimination class action cases for largely financial reasons, even though I am competent and have the resources to do so. . . . Employment discrimination class actions usually take much longer to litigate than the average employment discrimination  or wage and hour  case.  Defendant companies often use their substantial  financial advantage  to  outstaff  and  outwork plaintiffs with  limited  personal resources.  …

Steven B. Thorpe, an experienced litigator in Dallas, declared: “My practice focuses in large part on employment civil rights cases in which I represent plaintiffs. . . . [T]he greatest portion of my practice prior to approximately 1985 was in the representation of plaintiffs in class action discrimination suits.  At that time I and the firm with which I was associated largely abandoned that area of practice because we found it to be financially infeasible. At this time and for more than a decade I have done no class action employment litigation.

All of that hesitation despite the extraordinary facts that the plaintiff’s lawyer, Timothy Garrigan, had discovered and proven in front of the court during class certification:

During the class certification hearing, one allegation was that African American employees were disproportionately sent to Lufkin’s foundry to work under horrible conditions. The company officials were testifying that the conditions there weren’t so bad. Judge [Howell] Cobb immediately recessed the class certification hearing and ordered everyone to take a tour of the foundry when no one was expecting us to be there.

It was actually the first time I’d been there. The descriptions I’d heard of the place were like something out of Charles Dickens or the Dark Ages, and they turned out to be accurate. It was hot, dark, dirty, ankle deep in dust, with flames leaping out of the darkness just a few feet away from you. It was everything the plaintiffs had been describing. I do think that was a significant point in the case. It confirmed what many of the plaintiffs had been saying and contradicted much of what the company had been saying.

Literally unable to find anyone in Texas willing to take the case, Garrigan reached out across the nation and found Goldstein, Demchak, Baller, Borgen & Dardarian in California, which has long fought these sorts of battles. As Garrigan described back in 2008, while the case was still going on:
Continue Reading Perdue v. Kenny A. Keeps On Punishing Class Action Lawyers