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Cleveland
Tel: 1.216.586.7139
Fax: 1.216.579.0212
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Profile | Experience | Publications | Speaking Engagements

• Product Liability & Tort Litigation
• Trial Practice
  
  • Alternative Dispute Resolution & Mediation
• International Litigation & Arbitration

Paul Crist is a Fellow of the American College of Trial Lawyers. In June 2005, Paul returned to Jones Day's Cleveland Office, where he had worked for more than 25 years. In May 2003, he was transferred to help establish the Firm's new office in San Francisco, and he also oversaw the litigation practice in San Francisco.

Paul's practice is concentrated on complex, multijurisdictional product liability litigation. He has represented clients in such matters in state and federal trial and appellate courts throughout the U.S. ranging from California to Florida to Illinois to Mississippi to New Jersey to Tennessee. Paul represented R.J. Reynolds Tobacco Company as lead trial counsel in several nationally publicized trials resulting in defense verdicts. He has also represented clients in a variety of product liability matters, including medical devices, airplane components, factory explosions, power tools, automobiles, and tires. In addition Paul has been involved in numerous other litigation matters, including takeovers, securities, general business, real estate, and class actions.

Paul is admitted to practice by the Supreme Courts of California (1976) and Ohio (1974). He is also admitted to practice before the U.S. District Courts for the Northern, Eastern, Central, and Southern Districts of California; the U.S. District Courts for the Northern District of Ohio; the U.S. Court of Appeals for the Sixth and Ninth Circuits; and the U.S. Court of Military Appeals. In addition he has been admitted pro hac vice in courts throughout the nation. He was also appointed by the U.S. District Court for the Northern District of Ohio to serve as a "distinguished neutral" in the court-annexed mediation program.

Paul has lectured at seminars on trial tactics, evidence, expert witnesses, cross-examination, deposition techniques, federal court mediation, and punitive damages and in programs sponsored by Jones Day and in programs sponsored or cosponsored by the National Institute for Trial Advocacy.

In January 2004 and January 2005 he was named one of the top 100 lawyers in Ohio by Cincinnati Magazine and was recognized as a Northern California Super Lawyer in 2005. Paul was also recognized as a "leading individual" for general commercial litigation by Chambers USA: America's Leading Business Lawyers 2003-2004. He has been featured in The Wall Street Journal and The National Law Journal.

Clients Paul has served include: BFGoodrich, Bridgestone/Firestone, Chrysler Corporation, IBM, M.A. Hanna Company, Marathon Oil Company, Parker Hannifin Corporation, R.J. Reynolds Tobacco Co., Reliance Electric Company, Standard Federal Savings and Loan Association, The Timken Company, Ultramar Diamond Shamrock, and The Washington Group.

Ohio and California

University of Nebraska (B.A. in Chemistry 1971); New York University (Research Editor, Law Review; Order of the Coif; J.D. cum laude 1974)

Judge Advocate, United States Air Force (1974-1978), serving at George Air Force Base, California (1974-1976); Chief of Military Justice at Clark Air Base, Philippines (1976-1978); and at Travis Air Force Base, California (1978), where he was awarded The Meritorious Service Medal

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Partner
Cleveland
Tel: 1.216.586.7268
Fax: 1.216.579.0212
E-mail:

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Profile | Experience | Speaking Engagements

• Product Liability & Tort Litigation

Called "one of the nation's top litigators" by The National Law Journal, Ted has tried cases and argued appeals throughout the country and regularly advises boards, officers, and general counsel of leading corporate clients. He is a Fellow of the American College of Trial Lawyers and a member of The American Law Institute. Profiles of him have appeared in newspapers and journals nationally and in Europe and Asia, and he has been selected for inclusion in Chambers USA: America's Leading Lawyers (2006), The Best Lawyers in America (2006), The Lawdragon 500: The Leading Litigators in America (2006), and various similar publications.

Ted has served as chief counsel in lawsuits for consumer products companies, pharmaceutical companies, financial service companies, trade associations, corporate CEOs, and others. Among his most closely followed matters have been a series of cases for R.J. Reynolds Tobacco Company, for whom he has long served as a national coordinating counsel and lead trial counsel. Taking cases to trial in jurisdictions where other counsel representing tobacco companies had suffered strings of losses, Ted has won each of his trials without exception and has obtained the dismissal of dozens of cases without trial. In 1988, The National Law Journal cited Ted's victory in Karbiwnyk v. R.J. Reynolds, where Ted reversed plaintiffs' momentum in the Deep South, as one of the three most significant defense verdicts of the year. In 2003, the Journal wrote a profile of Ted's victories in its annual "Winning" section, calling Ted the tobacco industry's "stopper," and lauding his recent victory after a four-month trial in California state court in Lucier v. Philip Morris. As the article noted, tobacco defendants had lost six successive West Coast trials, with verdicts up to $28 billion, before Ted put an end to plaintiffs' string and created a model for defendants' future success.

Ted has been active in class actions and other aggregated litigation throughout his career. In May 2005, he won a landmark victory from the U.S. Court of Appeals for the Second Circuit in re Simon II, which determined that in mass torts (and other litigation), punitive damage claims cannot serve as an independent basis for class certification. In September 2005, he argued on behalf of all defendants against class certification in Schwab v. Philip Morris in the Eastern District of New York, a RICO case in which a purported class of tens of millions of purchasers seeks hundreds of billions of dollars for alleged fraud in the marketing of "light" cigarettes. Ted also has been lead counsel in purported class actions with claims ranging from traditional product liability theories to employment discrimination, and he has led the defense of novel cases where state attorneys general, federal agencies, or plaintiffs' counsel have attempted new and additional mechanisms for the aggregation of liability. Ted is coauthor (along with Roger Fine, former general counsel of Johnson & Johnson) of "Mass Torts" in Successful Partnering Between Inside and Outside Counsel (West 2000 and supplements).

In regulatory litigation, Ted has served as lead counsel in cases brought by or against virtually every federal department and a variety of federal independent agencies, including the Environmental Protection Agency, the Federal Trade Commission, the National Mediation Board, the National Security Agency, and the Central Intelligence Agency. He has had principal responsibility for major constitutional litigation, including such matters as challenges to the president's power to embargo the sale of American technology, challenges to the census, and a highly publicized suit by Texas to require an embargo of all California commerce due to medfly infestation. He has also served as lead counsel for a range of clients in pharmaceutical product litigation, in numerous complex commercial disputes, and in litigation relating to attempted unfriendly takeovers of corporate targets.

Ted has lectured on cross-examination, deposition techniques, oral advocacy, trial tactics, and product liability law in seminars sponsored by The National Law Journal, the ABA, and various others throughout the country and has given guest lectures at the Georgetown University Law Center and Case Western Reserve University School of Law. In pro bono activities he has, among other things, appeared as counsel on behalf of the Lawyers' Committee for Civil Rights in an action to desegregate the office of the attorney general of Mississippi. He has served as a member of the board and as treasurer of the Cleveland Center for Contemporary Art.

New York and Ohio

Cornell University (B.A. 1971; Editor, Law Review; J.D. 1974)

Trial and Appellate Counsel, Civil Division, United States Department of Justice (1980-1984)

Partner
Cleveland
Tel: 1.216.586.7366
Fax: 1.216.579.0212
E-mail:

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Profile | Experience | Publications

• Product Liability & Tort Litigation

Steve Geise has practiced in a variety of areas in general litigation and product liability litigation at Jones Day. Steve's significant litigation experience includes representation of R.J. Reynolds Tobacco Co. in complex product liability suits filed against the company since 1996. In that role, Steve has been an active member of several trial teams, including Karbiwnyk in Jacksonville, Florida; Apostolou in Brooklyn, New York; Lucier in Sacramento, California; and Rose in Manhattan, New York, each resulting in defense verdicts. Steve has also defended Reynolds in many additional jurisdictions working on all aspects of pretrial, discovery, motion, and trial practice.

Steve's litigation work has also included representing clients such as Abbott Laboratories, American Greetings Corporation, Brown & Williamson Holdings, Experian Information Solutions, and Textron in jurisdictions throughout the country on a wide variety of litigation matters.

Steve is a member of the Ohio State Bar Association, the Cleveland Bar Association, and the South Carolina Bar. He is also on the board of directors for Junior Achievement of Lorain County.

South Carolina; Ohio; U.S. Districts Courts for the District of South Carolina, Northern District of Ohio, and Central District of Illinois; and U.S. Courts of Appeals for the Fourth, Fifth, and Eleventh Circuits

University of Dayton (B.A. in History magna cum laude 1992); Ohio Northern University (Editor-in-Chief, Law Review; J.D. with high distinction 1995)

Law Clerk to the Honorable G. Ross Anderson Jr., U.S. District Court, District of South Carolina (1995-1996)

When we were kids, most people in America smoked and that had some effect on us smoking. The media too.

• 1965: CONSUMPTION: 51.9% of men are smokers; 33.9% of women are smokers.

But, bottom line, if another product or lifestyle decision in America KILLED 200 US women of cancer today - killed 1400+ US Americans today - cost America half a billion dollars today... Bush would declare war.... two days of smoking kills as many Americans as were killed in 9/11 and smoking harm costs America $0.5 billion per day.

Tobacco should be a controlled substance, like mercury, and tobacco poisoning should be outlawed, like mercury poisoning. Done forever.

You want to die - so do I. That doesn't mean I want kids to die because of us. I'll prove my point, we'll all quit, and then we'll die of something else like transfats... coming to a Hating Jones Day of the Day soon.

Annual Smoking-Attributable Mortality, Years of Potential Life Lost, and Economic Costs --- United States, 1995--1999

Cigarette smoking is the leading cause of preventable death in the United States and produces substantial health-related economic costs to society (1,2). This report presents the annual estimates of the disease impact of smoking in the United States during 1995--1999. CDC calculated national estimates of annual smoking-attributable mortality (SAM), years of potential life lost (YPLL), smoking-attributable medical expenditures (SAEs) for adults and infants, and productivity costs for adults. Results show that during 1995--1999, smoking caused approximately 440,000 premature deaths in the United States annually and approximately $157 billion in annual health-related economic losses. Implementation of comprehensive tobacco-control programs as recommended by CDC (3) could effectively reduce the prevalence, disease impact, and economic costs of smoking.

The disease impact of smoking was estimated by using the Adult and Maternal and Child Health Smoking-Attributable Mortality, Morbidity, and Economic Costs (SAMMEC) software (4). Smoking-attributable deaths were calculated by multiplying estimates of the smoking-attributable fraction (SAF) of preventable deaths by total mortality data for 18 adult and four infant causes of death. For adults, SAFs were derived by using relative risks (RRs) for each cause of death from the American Cancer Society's Cancer Prevention Study-II (CPS-II;1982--1988) (5) and current and former cigarette smoking prevalence for two age cohorts: persons aged 35--64 years and persons aged >65 years (4).* For infants, SAFs were calculated by using RRs of death for infants of women who smoked during pregnancy and maternal smoking rates from birth certificates for 46 states, the District of Columbia, and New York City (birth certificate data for 1995--1999 were not available for California, Indiana, South Dakota, and the remainder of New York) (4). Smoking-attributable YPLL and productivity costs were estimated by multiplying age- and sex-specific SAM by remaining life expectancy and lifetime earnings data, respectively. Smoking-attributable fire deaths (6) were included in the SAM and YPLL estimates; SAM included lung cancer and heart disease deaths attributable to exposure to secondhand smoke (7).

Annual medical costs of smoking for adults aged >18 years were estimated by multiplying 1998 personal health-care expenditure data from the Centers for Medicare and Medicaid Services by medical expenditure SAFs for ambulatory, hospital, prescription drugs, nursing home, and other personal health care (8). Expenditure SAFs represent the proportions of personal health-care expenditures that could be avoided by eliminating smoking. These SAFs were derived from econometric analyses of national medical expenditure survey data that included information on a person's smoking history, other risk behaviors, socioeconomic status, and demographic characteristics. Nursing home SAFs were based on estimates of the impact of smoking on the probability of admission to a nursing home; multiple admissions and length of stay in the nursing home were not considered. Neonatal medical costs of smoking in 1996 were calculated by using maternal smoking prevalence and health-care use data from the 1995 Pregnancy Risk Assessment Monitoring System (PRAMS) (4). Neonatal SAFs and SAEs were derived by applying 1996 private insurance-based costs (obtained from Medstat Group, Inc.) per night to smoking-attributable nights in hospitals and neonatal intensive-care units (4).

During 1995--1999, smoking caused an annual average of 264,087 deaths among men and 178,311 deaths among women in the United States (Table 1). Among adults, most smoking-related deaths were attributed to lung cancer (124,813), ischemic heart disease (81,976), and chronic airways obstruction (64,735). Smoking during pregnancy resulted in the death of 599 male and 408 female infants annually. Total annual SAM estimates include the deaths of 589 males and 377 females by residential fire during 1994--1998 (5), and the deaths of 15,517 males and 22,536 females from lung cancer and heart disease attributable to exposure to secondhand smoke (6).

For men, the average number of annual smoking-attributable cancer deaths during 1995--1999 decreased by approximately 1,100 (to 102,812 deaths) from 1990--1994; the number of cardiovascular disease deaths fell by approximately 28,000 (to 90,906 deaths), and the number of respiratory disease deaths remained stable (53,713 deaths). For women, the average number of annual smoking-attributable cancer deaths during 1995--1999 increased by approximately 5,800 (to 54,664 deaths), the number of respiratory disease deaths increased by approximately 7,300 (to 44,429 deaths), and the number of cardiovascular disease deaths fell by approximately 5,400 (to 57,699 deaths). Compared with 1990--1994, during 1995--1999, the average number of annual smoking-attributable deaths from perinatal conditions fell from 926 to 598 for males and from 666 to 407 for females. Excluding adult deaths from secondhand smoke, each year SAM was responsible for an estimated 3,332,272 YPLL for men and 2,284,113 for women. Adult male and female smokers lost an average of 13.2 and 14.5 years of life, respectively, because they smoked.

During 1995--1999, the average annual mortality-related productivity losses attributable to smoking for adults were $81.9 billion (Table 2). In 1998, smoking-attributable personal health-care medical expenditures were $75.5 billion. For each of the approximately 46.5 million adult smokers in 1999, these costs represent $1,760 in lost productivity and $1,623 in excess medical expenditures. Smoking-attributable neonatal expenditures were $366 million in 1996, or $704 per maternal smoker ($8 per adult smoker). Maternal smoking accounted for 2.3% of total neonatal medical expenditures in 1996. The economic costs of smoking totaled $3,391 per smoker per year.

Reported by: JL Fellows, PhD, A Trosclair, MS, Office on Smoking and Health, EK Adams, PhD, CC Rivera, Div of Reproductive Health, National Center for Chronic Disease Prevention and Health Promotion, CDC.

Editorial Note:

During 1995--1999, a total of 442,398 persons in the United States died prematurely each year as a result of smoking. This number, which is higher than previous SAM estimates (1), reflects the inclusion of 35,053 secondhand smoking-attributable heart disease deaths and slightly higher smoking-related RRs for cancers, respiratory diseases, and infant conditions. The number of smoking-attributable deaths would have been greater if smoking prevalence among men, women, and pregnant women had not declined since the early 1990s.

Reported annual medical and productivity losses are larger than previous estimates of $53 billion (7) and $43 billion (2), respectively. Among adults, the medical costs of smoking represented approximately 8% of personal health-care expenditures in 1998, which is consistent with the 6%--14% SAFs in previous studies (2). The larger productivity-loss figure reflects increases in the number of smoking-attributable deaths and in average earnings since the mid-1980s.

The findings in this report are subject to at least five limitations. First, the reported SAM figures were derived from smoking rates in the current year, whereas actual smoking-attributable deaths were the result of smoking in previous decades, when smoking rates were higher. Second, RRs were adjusted for the effects of age but not for other potential confounders. However, CPS-II data showed that education, alcohol, and other confounders had negligible additional impact on SAM estimates for lung cancer, chronic obstructive pulmonary disease, ischemic health disease, and cerebrovascular disease (1). Third, deaths attributable to cigar smoking, pipe smoking, and smokeless tobacco use were not included. Fourth, productivity losses did not include the value of lost work time from smoking-related disability, absenteeism, excess work breaks, and secondhand smoke-related disease morbidity and mortality. Finally, the neonatal medical costs of maternal smoking understate the probable true costs of smoking-attributable conditions among children because the future medical costs for infants affected by maternal smoking and the current costs of treating newly diagnosed secondhand smoke-related conditions among children aged 1--4 years were not included.

Cigarette smoking continues to be the principal cause of premature death in the United States and imposes substantial costs on society. For each of the approximately 22 billion packs sold in the U.S. in 1999, $3.45 was spent on medical care attributable to smoking, and $3.73 in productivity losses were incurred, for a total cost of $7.18 per pack. These costs provide a strong rationale for increasing funding for comprehensive tobacco-use interventions to the levels recommended by CDC. In California, decreases in smoking prevalence have resulted in reduced lung cancer and heart disease death rates (9,10). These results offer evidence of the potential benefits of expanding comprehensive tobacco-control programs in an effort to reduce current smoking prevalence by 50% by 2010.

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hate

One entry found for hate.

Main Entry: 2hate
Function: verb
Inflected Form(s): hat·ed; hat·ing
transitive verb
1 : to feel extreme enmity toward <hates his country's enemies>
2 : to have a strong aversion to : find very distasteful <hated to have to meet strangers> <hate hypocrisy>
intransitive verb : to express or feel extreme enmity or active hostility
- hat·er noun
- hate one's guts : to hate someone with great intensity
synonyms HATE, DETEST, ABHOR, ABOMINATE, LOATHE mean to feel strong aversion or intense dislike for. HATE implies an emotional aversion often coupled with enmity or malice <hated the enemy with a passion>. DETEST suggests violent antipathy <detests cowards>. ABHOR implies a deep often shuddering repugnance <a crime abhorred by all>. ABOMINATE suggests strong detestation and often moral condemnation <abominates all forms of violence>. LOATHE implies utter disgust and intolerance <loathed the mere sight of them>.

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Law Firms Not Liable in Alleged Web Hacking Case

Pamela A. MacLean
The National Law Journal
12-09-2005

Two law firms that allegedly surreptitiously accessed the password-protected Web site of an expert witness in order to show a judge that the witness violated a gag order cannot be held liable under the Digital Millennium Copyright Act.

A District of Columbia federal judge has dismissed the suit by Boston occupational illness expert Dr. David Egilman, who accused the law firms Jones Day and Keller & Heckman of Washington, and Keller attorney Douglas Behr, of misappropriating his protected work.

Egilman accused the Keller firm and Behr of hacking into his Web site by acquiring a password and sharing it with Jones Day lawyers in the midst of a 2001 landmark Colorado state toxics trial. Egilman had testified on behalf of the first four of 50 workers at Rocky Flats nuclear weapons plant who unsuccessfully claimed that the federal government colluded with the world's largest beryllium maker, Brush Wellman Inc., to hide the health dangers of the metallic element.

Despite a broad gag order by a Colorado state court judge, Frank Plaut, in Ballinger v. Brush Wellman Inc., No. 96-CV-2532, Egilman had posted critical material about Jones Day and Brush Wellman on his password-protected Web site in what Plaut ruled was a violation of the gag order.

Plaut ordered jurors to disregard Egilman's testimony as a sanction after learning from Jones Day that the posting included accusations of potential illegal conduct by Jones Day, and allegations that a Brush Wellman medical doctor was educated in Nazi Germany, according to press accounts at the time.

Plaut called the information "scurrilous and inflammatory" at the time.

Egilman, who has testified in dozens of toxics trials and was the expert in the recent Texas Vioxx trial that resulted in a $253 million verdict, limited Web site access to his staff and his Brown University students. He posted uncensored information on occupational illness and related litigation, including previously confidential corporate internal documents related to many toxic torts.

Jurors ultimately sided with Brush Wellman and, without Egilman's testimony, rejected the workers' claims that lung damage from exposure to radioactive beryllium could have been avoided.

EFFECTIVENESS COMPROMISED?

But Egilman pursued his fight against the law firms. Egilman sued Jones Day and Keller & Heckman, first in Texas and later in the District of Columbia, saying that his reputation was besmirched and his effectiveness compromised.

He argued that the law firms and Behr circumvented measures installed to deny access to his copyright-protected work on the Web site, in violation of the 1978 Digital Millennium Copyright Act.

U.S. District Judge Henry Kennedy Jr. in D.C. ruled that obtaining a username and password from a third party that has authorized access does not violate the DMCA. Kennedy cited the only other court to rule on improper use of a legitimate password, holding that gaining access to a third party's legitimate password is not the same as hacking.

"It is irrelevant who provided the username/password combination to the defendant, or, given that the combination itself was legitimate, how it was obtained," Kennedy wrote in Egilman v. Keller & Heckman, No. 04-876HHK. Use of a legitimate password does not "circumvent" a technology used to control access, Kennedy concluded.

"This is not really about the DMCA," Egilman said. "It is about how the legal system is designed to benefit people in power. That is why courts said it was legal for blacks to be slaves or ruled it legal to deny women the vote," he said.

Accessing his computer "was illegal conduct. It was breaking and entering. It is simple theft," he said.

As for Egilman's alternate claim that unauthorized use of the password violated the Computer Fraud and Abuse Act, the court found that he had filed that claim too late. Egilman said he is not sure whether he will appeal. "I spent $150,000 of my money doing this case. At some point I can't afford to represent the interests of regular people against criminal law firms," he said.

Behr said only, "I don't want to talk about it," when asked about the case. Attorneys for Jones Day and Keller & Heckman declined to comment.

A BuzzFlash Reader Commentary

Checkbooks and Balances January 29, 2002 By Margie Burns In the stampede of scandals associated with Enron, the issue of campaign finance has fallen behind, in a cloud of dust; the topic of Bush's nominations for judgeships may fall there too. But these topics should not be lost sight of, especially when a law-lobbying firm that both supported George W. Bush financially and represented Enron in court is also poised to produce a federal judge. The nominee in question is Texas Supreme Court Justice Priscilla Owen, for the Fifth Circuit, which covers Texas, Louisiana and Mississippi and which used to be a good court. Notwithstanding all the publicity over trial lawyers' donations to Democrats, numbers from the Center for Responsive Politics show that the big winner in donations from lawyers in the 2000 election was George W. Bush. Contributions to Bush from attorneys and firms totalled almost $6M -- $5,948,854 -- edging out even Al Gore, #2 on the list of top recipients; Bill Bradley, 3rd; Hillary Rodham Clinton, 4th; John McCain, 5th; and somebody named Rick Lazio, 6th. In fact, lawyers and law firms topped the CRP list of "Top Industries" for Bush; his only higher donor category was "retired," often a code for managers and/or attorneys who prefer not to specify corporate affiliation. Predictably, Houston lawyers donated copiously. Houston firm Vinson & Elkins ranks 17th on the list of top 20 contributors over-all, with $529,263 reported so far, 68% of it to Republicans. Vinson & Elkins also ranks 2nd in donations to Bush individually ($202,850)-- with Baker Botts (another Houston law firm, the one with which Andrews Kurth is most closely affiliated) 9th, and Jenkens & Gilchrist 15th. Partners Joe B. Allen, Robert H. Whilden, and Thomas P. Marinis, Jr., of Vinson & Elkins, were Bush "Pioneers" -- volunteer fundraisers who, according to the Bush campaign, raised at least $100,000 apiece. Members of Haynes & Boone, Bracewell & Patterson, and Jenkens & Gilchrist were also Pioneers. At least neither Vinson & Elkins nor Baker Botts is netting a federal judgeship. But in a quid pro quo of Texas-sized obviousness, Bush has nominated at least six of his campaign donors, including one from Houston, to the federal bench. Houston's nominee, Priscilla Owen, practiced commercial litigation for seventeen years, according to her bio, as a partner in the Houston firm of Andrews & Kurth. As is typical for this batch of nominees, she gave $1000 to Bush individually. But the $1000 legal maximum is just the cover charge; Andrews & Kurth also gave $4500 to Bush and $6300 to Republicans through its PAC (0 to Democrats), and $20,000 to Bush through individuals. That's $38,000 to Bush and the GOP, not counting other individual donations. The firm's donations are dwarfed by those of its major clients. According to public records in the Lexis-Nexis database, Andrews-Kurth clients in federal courts include Aetna, Occidental Chemical Corporation, American Express, Amway, El Paso Energy, Salomon Smith Barney and - is anyone surprised? - Enron. Can-of-worms time. Predictably, George W. Bush was the top recipient of oil & gas contributions in the election, with $1,889,206 in donations (Rick Lazio was 3rd; oil men must really hate Hillary). On the CRP top 20 list of oil & gas donors, Enron was #1 ($2,237,598 donated; 72% of it to Republicans), Exxon Mobile second, BP Amoco third, and El Paso Energy was #4 ($1,116,495 donated; 83% of it to Republicans). Since 1997, Enron has given over $2.4M in soft money, over $1.8M to Republicans; it has given over $520,000 through its PAC, and over $100K to Bush through individuals; not surprisingly, Enron ranks 12th on the list of top Bush contributors. Kenneth Lay, of Houston, is also a Bush Pioneer from Enron, and just to put the icing on the cake, Enron managers also contributed at least $300,000 to the Bush inauguration, including another $100,000 from Kenneth and Linda Lay. El Paso Energy has given $460,395 to the GOP in soft money, $383,755 through its PAC, and another $90K to Bush through individuals. Salomon Smith Barney was a piker in comparison, giving $63K to Republicans in soft money, $107K through its PAC, and $36K in individual donations to Bush. Anything Salomon Smith Barney didn't give, however, Amway did -- $1,138,500 to Republicans in soft money, another $20,000 through its PAC, and at least $12,000 through legal-max individual donations to Bush, totalling about $1.17 million. Then there's Aetna -- $315,90 to the GOP in soft money, another $50,000 through its PAC, and at least $10,000 in individual Bush donations, totalling $375,000. American Express rings up at over $315,000; Occidental Chemical at $40,000. J. Roger Hill of Occidental Chemical is another Bush Pioneer. Mindboggling as it is, let's tote up some of these numbers. At a conservative (if that's the word), bending-over-backward-to-the-point-of-neckbreaking estimate, Enron gave over $2.4M to the GOP/Bush; Amway $1.17M; El Paso Energy $930K; Aetna $375K; American Express $315K; Conoco $313K; and Salomon Smith Barney $206K. With the comparatively dainty contribution from Andrews & Kurth, that's a corporate halo effect of over $6M for Justice Owen, coming in for Bush and the GOP. This list does not include other Pioneers, friends, deal partners, relatives and spouses. In anybody's book, this is buying and selling a judgeship - regardless of whether the judgeship is a reward, an inducement, or simply an enabling device. Barring some of the oil company donations, this is par for Bush's judicial nominees. Not all of them are six-million-dollar women (most are not women), but at least six of them are down in the public records as contributors, along with their law firms and their firms' major clients. Justice Deborah L. Cook of the Ohio Supreme Court is nominated for the Sixth Circuit (KY, MI, OH, TN). She donated $1000 to Bush and $6700 to other Republicans. (Bush relatives have deeper ties in Ohio than in Texas). With her husband, Robert F. Linton, also a Bush donor, Justice Cook was a longtime partner in Akron law firm Roderick, Myers & Linton, whose clients include Ohio Edison, Provident Life & Accident, and Aetna. Aetna is also a client of Los Angeles-based law firm Gibson, Dunn & Crutcher, in which DC attorney Miguel A. Estrada, nominated for the federal Court of Appeals for the DC Circuit, is a partner. Estrada donated $1000 to Bush, among other contributions; Gibson, Dunn donated $28,000 to Bush through individuals, $5000 through its PAC, and another $11,000 to the GOP. Gibson, Dunn partner Theodore Olson is now Solicitor General (endorsed, incidentally by the Washington Post, a former Gibson Dunn client); Mr. Olson donated $1500 to Mr. Bush (circumventing the $1000 legal max by donating through two "committees"), and about $23K to Republicans over-all. Mr. Justice Scalia's son Eugene, in the same firm, gave Bush another $500, not that that was Bush's largest gift from the Scalias. Eugene Scalia is now Solicitor of Labor, the government's top lawyer in the Labor Department. Other Gibson, Dunn clients include Intel Corporation and Enterprise Rent-A-Car. Intel's PAC has donated $231,088 to the GOP since 1997, and Intel executives gave $10,000 to Bush individually. Enterprise Rent-A-Car donated $130,000 in soft money to Republicans, another $118,992 through its PAC, and another $22,000 to Bush through individuals; executive Ray Wagner is also a Bush Pioneer. When Enterprise Rent-A-Car was sued in Tampa's federal court by its employees over unpaid overtime, its attorney was (Gibson Dunn's) Eugene Scalia. Gibson, Dunn partners are also on the boards of directors of both 3M Corporation and Transocean Sedco Forex, called the world's largest offshore drilling contractor. With Olson as solicitor general, it will be interesting to see what cases get ushered into court, concerning drilling offshore or drilling in a "harsh environment," Transocean Sedco's other specialty. From vetting Richard M. Nixon's finances in preparation for the famous "Checkers" speech in 1952, to offering an LA internship last year to the "muy guapo" young George P. Bush, the president's nephew and son of Florida Governor Jeb Bush, Gibson, Dunn has been connected. It's not the only hive of lawyer-lobbyists to serve as a talent pool for the first round of judicial nominees, however. Utah law professor Michael W. McConnell, affiliated with Mayer, Brown & Platt (his resume with the Justice Department lists him as a "Special Consultant" for Mayer, Brown since 1989), is nominated for the Tenth Circuit (CO, KS, NM, OK, UT, WY). McConnell also donated $1000 to Bush individually, as well as to Orrin Hatch (and Rick Lazio). Mayer, Brown & Platt made CRP's list of top 20 law firm contributors in 2000, donating at least $478,505 in the last election, 44% to Republicans, with over $20,000 to Bush by individuals and $61,000 to Republicans in soft money. Mayer, Brown's clients include Dow Chemical Corporation ($241,000 to Republicans in soft money, $150,000 through its PAC) and Novartis AG (parent to crop dusting companies; $256,180 in soft money, $120,000 through its PAC). Another Mayer, Brown client is giant accounting firm Arthur Andersen, now famously linked with the Enron debacle. In a particularly smarmy connection -- without even the excuse of happening in Texas -- Arthur Andersen and Mayer Brown also signed off on the peculiar arrangements of a Tulsa-based company called Commercial Financial Services, controlled by Andersen and Mayer Brown. CFS filed for Chapter 11 bankruptcy protection in 1999; the Bank of Scotland sued Andersen and Mayer, Brown among others, with allegations of fraud, in federal court in Oklahoma. (CFS seems to have had good and sufficient reason to go bankrupt, since its assets were accounts receivable from bad debts; this corporate venture was signed off on by Arthur Andersen and was represented by Mayer Brown as counsel; where are those hardnosed, rockribbed business types when we need them?) Any case of this sort heard in Oklahoma, if it goes to the appeals court -- inevitably -- will be heard by McConnell if he's appointed and doesn't recuse himself. Arthur Andersen was also a Gibson, Dunn client. Speaking of bankruptcies, Gibson Dunn is also counsel of record for a Cayman-based bankrupt wireless company with big investors called NextWave Communications, in ongoing litigation with the FCC in federal courts. (NextWave hit its last wave when it bid billions on airwave frequencies in a federal auction, and then went bankrupt when unfortunately it noticed it didn't have the money to pay for same. See hardnosed, rockribbed above.) However, the court noticed -- and commented on -- the fact that a former partner at Gibson, Dunn is now a judge on the appeals court there, and initially dismissed the firm rather than have the judge recuse himself. NextWave's counsel in this effort, by the way, was Houston-based Andrews & Kurth - home to Justice Owen, 5th Circuit nominee. Two of the Gibson, Dunn lawyers brought on board were Theodore Olson and Miguel A. Estrada. NextWave's investors/creditors in the ongoing litigation are represented by, among others, Jones, Day - home to Jeffrey S. Sutton, Bush's nominee to the 6th Circuit. Other creditors are represented by Hogan & Hartson - home to Bush's other nominee for the DC Circuit, John G. Roberts, Jr. At stake are billions of dollars in value in the publicly-owned airwaves; NextWave, designated in print as a "makeshift" corporation by that notable pinko Robert Novak, has now been awarded $5B by the courts for the licenses it was never in a position to develop. Were you beginning to believe that this large country of ours was divided up into hopelessly separate regions? John G. Roberts, Jr., the Hogan & Hartson partner nominated for the DC Circuit, also donated $1000 to Bush -- this really is starting to look like a cover charge -- with $3000 to other Republicans and $3900 to Hogan & Hartson's PAC. The PAC gave $136,000, aside from individual donations, and $30,000 in soft money. Roberts then donated $1000 to the Bush recount effort. Hogan & Hartson clients include Mobil Oil Corporation, 3M, and Hartford Accident & Indemnity. Ohio attorney Jeffrey S. Sutton, the partner in Jones, Day, Reavis & Pogue nominated for the 6th Circuit, also donated $1000 to Mr. Bush. Individual donations to Bush from Jones, Day attorneys total over $38,000. Jones, Day clients include RJ Reynolds Tobacco, Sherwin-Williams (think: lead paint), and Eli Lilly -- all Bush contributors, for obvious reasons. At least Bush didn't appoint Sutton to consumer safety or the EPA. In a recent development, the Andrews Kurth law firm has now merged with Houston law firm Mayor, Day, Caldwell & Keeton (announced June 19, 2001; final on October 1, 2001). The combined firm, operating under the Andrews Kurth name with 335 lawyers, will be the seventh largest law firm in Texas, according to its statements by press release and public contact Donna Anderson. It will also join Andrews Kurth clients with those of Mayor, Day, including Kaiser Aluminum, KCS Energy, and Charles Hurwitz's Maxxam Corporation. Imagine walking into a courtroom knowing, from public record, that your judge gave money to George Bush and got his/her judgeship immediately afterward. Funny; it seems like only yesterday that Republicans were criticizing President Clinton for "renting out the Lincoln bedroom" -- giving VIP treatment including invitations for White House overnights in a quid pro quo for campaign contributions. Assuming they were right, does an overnight at the White House even begin to compare to a lifetime as federal judge? If we're going to reform campaign finance, it only makes sense to limit benefits received by the donor, along with limiting donations received by the candidate. Instead of always placing the burden on the public of having to prove some perhaps-nebulous influence, surely federal law could more easily just prohibit self-evident benefits like federal jobs or contracts from going to campaign donors in the first place. If donating is going to be called "free speech," then let's keep it free of White House jobs, ambassadorships, judgeships, and cabinet positions. By all means, let's ensure that it be a form of expression rather than payola: no federal contracts for the donor corporation, no federal hiring from the donor law firm. Some parts of campaign finance reform are easy: give if you wish, but -- as Seinfeld's soup Nazi would say -- no judgeship for you. * * * Contributed by BuzzFlash Reader Margie Burns Articles by Margie Burns have appeared in Legal Times, Salon.com and the Chronicle of Higher Education among other places; she has a BA and doctorate from Rice; and she lives in Cheverly MD.

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Jones Day Commentaries - Attacks on Food Industry Escalate: An Update, also published in The Metropolitan Corporate Counsel, April 2006 Product Liability

United States

February 2006
Thomas E. Fennell, Carol A. Hogan, Charles H. Moellenberg Jr.

Massachusetts, a state with liberal consumer protection laws, will likely be the newest battleground in the rapidly escalating childhood obesity wars. Consumer advocates plan to attack Kellogg, Viacom, Coca-Cola, and PepsiCo in two Massachusetts-based lawsuits, both of which reportedly will claim that their marketing and advertising have contributed to the rise in childhood obesity.

Plaintiffs have chosen Massachusetts for two principal reasons. First, unlike most state consumer protection laws, a Massachusetts statute—General Law Chapter 93A, Regulation of Business Practices for Consumers Protection (Chapter 93A)—appears to permit plaintiffs to bring a claim as a class action without first establishing several of the requirements of a traditional Rule 23 class. Second, Chapter 93A does not appear to require proof of reliance on the alleged deceptive conduct in order to recover damages.[1]

Kellogg/Viacom Threatened Lawsuit

The class action lawsuit planned against Kellogg and Viacom reportedly will be brought by a coalition of individuals and consumer advocacy groups, including the Center for Science in the Public Interest (CSPI), an organization founded by Ralph Nader. The purported class of plaintiffs will include all Massachusetts parents or guardians of children under eight who have: (1) seen an advertisement for "nutritionally poor food" on Nickelodeon or another Viacom outlet; (2) seen an advertisement for a "nutritionally poor" Kellogg product during any children’s programming; or (3) seen or purchased a "nutritionally poor" Kellogg or other product advertising a Nickelodeon character (such as SpongeBob SquarePants).

Plaintiffs plan to claim that Kellogg and Viacom advertise "nutritionally poor" food to children and that the ads cause parents to buy—and children to eat—unhealthy food. Children, according to plaintiffs, do not recognize food marketing as advertising and are vulnerable because they do not understand the persuasive intent of commercials. Plaintiffs apparently will allege that children who view these ads are intrinsically deceived and abused by commercials that encourage consumption of unhealthy food. The stated goal of the litigation is to enjoin Kellogg and Viacom from marketing high-fat and/or high-sugar foods to children under eight years old and to recover statutory damages. Plaintiffs estimate their statutory damages to be more than $1 billion per defendant but claim to be unable to provide a reliable estimate until after discovery of defendants’ documents, including marketing, sales, and demographic data. The CSPI’s executive director, Michael F. Jacobson, states that this lawsuit has "national implications."[2]

Coca-Cola/PepsiCo Threatened Lawsuit

The CSPI is also involved in a threatened lawsuit against Coca-Cola, PepsiCo, and their bottlers. The gist of this lawsuit, which will be brought by consumer advocates and tobacco war veterans, is that soft drink companies use the caffeine in colas to addict children to sugar-laden beverages and then sell colas to addicted children through school vending machines. Although plaintiffs have not apparently settled on the legal theories they will assert, they are reportedly considering deceptive advertising and public nuisance. Public nuisance has been the theory of choice of plaintiffs in industry attacks such as those on the lead-based paint, tobacco, and firearms industries. Plaintiffs reportedly plan to file suit first in Massachusetts and then use that case as a model in other states.

Class Certification Under Chapter 93A

In Massachusetts, class certification under Chapter 93A, in contrast to traditional Rule 23 certification, does not appear to require a finding that common issues of law and fact predominate, or that class certification is superior to other available litigation methods. This creates the possibility that the necessity of individual proof concerning, for example, plaintiffs’ purchasing and eating behavior, would not foreclose class certification.[3] Alternatively, the traditional requirements of class certification (i.e., numerosity, commonality, typicality, and adequacy) may be disputed by defendants. In the end, however, Massachusetts appears to have been selected because it is viewed as a plaintiff-friendly forum for these types of lawsuits.

It will be plaintiffs’ position that, under Chapter 93A, purchase of a falsely represented product can be, by itself, an ascertainable injury.[4] The Massachusetts consumer statute has been construed as not requiring inquiry into consumer behavior of individual class members because the deceptive advertising, if proved, effects a per se injury on consumers who purchased the product represented to be something it was not. To succeed, therefore, plaintiffs seemingly do not have to prove that they relied on the alleged deceptive advertisement. Class members will likely contend that they can establish injury by simply pleading that they purchased the product and were exposed to inherent health risks.

Selected Obesity-Litigation-Related Developments

In the January 2006 issue of the American Journal of Preventive Medicine, Jess Alderman, M.D., J.D., and Richard A. Daynard, Ph.D., J.D., both associated with Northeastern University School of Law, review the history of tobacco litigation and suggest ways that public health officials and consumer protection authorities can use the approaches honed in that litigation to "urge" food companies to provide better products. The authors discuss how tobacco companies successfully fought litigation for decades, only to have that strategy purportedly collapse in the face of internal industry documents showing allegedly deceptive practices. (Interestingly, the demand letter sent in connection with the threatened Kellogg/Viacom lawsuit claims that document discovery is imperative.) Alderman and Daynard state, "The goal of litigation can be to change public perception of an industry. . . ." The authors conclude that litigation will likely be as "necessary to address the obesity problem as it was to address the dangers of tobacco."[5]

In January 2006, The New York Times ran a series of four articles focusing on the prevalence of obesity and Type 2 diabetes in the Greater New York City area, particularly in poorer sections of the city. The series, entitled "Bad Blood," detailed factors leading to obesity in the New York City population, the rise of Type 2 diabetes in that population, and the personal and governmental costs of Type 2 diabetes. These articles coincided with an announcement by the New York City Department of Health and Mental Hygiene that it will electronically collect A1C hemoglobin blood-sugar levels from 127 laboratories in the city, develop a registry of diabetic patients, and maintain that information in a central database. Since New York City has been an activist in industry-wide litigation against various industries (including firearms and electric utilities), these developments may portend litigation by New York City against segments of the food industry.

In December 2005, the Institute of Medicine issued a report entitled Food Marketing to Childrenand Youth: Threat or Opportunity? The report, which can be found at http://darwin.nap.edu/books/0309097134/html, reviewed the influence of food marketing on young children and concluded that the current pattern of food and beverage marketing is a threat to their health. In addition, it determined that television food and beverage advertising influences consumption patterns, contributes to a less healthy diet, and puts the health of children, especially poor children, at risk.[6]

On September 15, 2005, California Governor Arnold Schwarzenegger signed legislation establishing rigorous nutrition standards for food and beverages sold on public school campuses in grades K-12. SB 965 defined school beverage standards for high schools and eliminated the sale of soda and other sweetened beverages on high school campuses in California. (Similar standards had already been established for elementary and middle schools.) SB 12 established the most rigorous nutrition standards in the country for food sold anywhere on school campuses K-12 outside the school meal program.

In 2005, David Chenoweth, Ph.D., issued a report entitled The Economic Costs of Physical Inactivity, Obesity, and Overweight in California Adults During 2000: A Technical Analysis. Following a chronic disease risk-factor analysis, the report concluded that the total direct and indirect costs for physical inactivity, obesity, and overweight in California adults for the year 2000 amounted to $21.68 billion. This study may portend lawsuits by third parties against the food and beverage industry to recover alleged obesity-related expenditures.

Jones Day’s Defense Experience in Industry-Wide Litigation

Jones Day has worked for many years defending industries subject to similar broad-scale attacks, including those based on novel legal theories like public nuisance. Our experience includes defending clients against litigation assaults on lead-based paint and pigments, tobacco, firearms, and alcohol.

For example, Jones Day represents U.S. and international brewer-defendants in federal class action lawsuits brought in Ohio against several importers and manufacturers of alcoholic beverages. Steven Eisenberg, et al. v. Anheiser-Busch, Inc., et al., Case No. 1:04 CV 1081 (N.D. Ohio). Plaintiffs, the parents and guardians of underage consumers of alcoholic beverages, sought relief based on the alleged targeting of underage consumers by defendants. On February 2, 2006, United States District Judge Donald Nugent issued an opinion dismissing plaintiffs’ claims, stating at page 8:

This Court is aware of no legal authority that would support restriction of a private party’s freedom of speech and expression under the theory that the expressed ideas interfere with a parent’s right to make decisions regarding their children’s upbringing. Parents have a right to make fundamental decisions about a child’s upbringing, but they have no legal right to prevent other private parties from attempting to influence their children.

Jones Day lawyers have not only litigated but also have written extensively on topics expected to be involved in this area, three of which are listed below. These articles can be found on the publications page of Jones Day’s web site, www.jonesday.com.

• Charles H. Moellenberg, Jr., "Heavyweight Litigation: Will Public Nuisance Theories Tackle the Food Industry?" Andrews Food Health & Safety Litigation Reporter, Vol. 1, Issue 3, November 2004.
• Thomas E. Fennell and Deborah Storey Simmons, "Attempts to Expand Public Nuisance Laws to Reach Products," Texas Lawyer, October 13, 2003.
• Mark R. Herrmann and Pearson N. Bownas, "The Likely Impact of the Class Action Fairness Act," For The Defense, April 2005.

In late 2004, Jones Day was the principal sponsor of a seminar explaining how members of the food industry can use the experience gained in defending these other industries to fend off similar attacks. Additionally, in January 2004, Jones Day was selected by The American Lawyer as Product Liability Department of the Year; in January 2006, we were one of two finalists in that competition

Lawyer Contacts

For further information, please contact your principal Firm representative or one of the lawyers listed below. General e-mail messages may be sent using our "Contact Us" form, which can be found at www.jonesday.com.

Thomas E. Fennell
1.214.969.5130

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Carol A. Hogan
1.312.269.4241

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Charles H. Moellenberg, Jr.
1.412.394.7917

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Endnotes

1 See Aspinall v. Philip Morris Companies, Inc., 813 N.E.2d 476, 486 (Mass. 2004).

2 In the Kellogg/Viacom lawsuit, plaintiffs sent a demand letter as required by Chapter 93A. A copy of the demand letter can be found at www.cspinet.org .

3 Aspinall, 813 N.E.2d at 495 n.8.

4 Id. at 486.

5 Daynard is the chair of the Obesity and Law Project at the Public Health Advocacy Institute.

6 Plaintiffs in the Kellogg/Viacom lawsuit will apparently rely on the IOM study. In a related development, AdAge.com reported on January 31, 2006, that European soft drink marketers have agreed to stop marketing to children under 12 and to limit soft drink sales in schools.

Jones Day Commentaries are a publication of Jones Day and should not be construed as legal advice on any specific facts or circumstances. The contents are intended for general information purposes only and may not be quoted or referred to in any other publication or proceeding without the prior written consent of the Firm, to be given or withheld at its discretion. The mailing of this publication is not intended to create, and receipt of it does not constitute, an attorney-client relationship.

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