Pa. SC will rule on Gov. Rendell's contract with plaintiffs firm

By John O'Brien | Jul 2, 2009


HARRISBURG, Pa. (Legal Newsline) - The Pennsylvania Supreme Court has agreed to hear the appeal of a pharmaceuticals company that says a major plaintiffs firm hired by Gov. Ed Rendell should not be allowed to sue it.

The Court decided to accept the appeal on Tuesday and will receive briefs on four issues raised by Janssen Pharmaceutica, the docket sheet says. Rendell hired Bailey Perrin Bailey of Houston to file suit against Janssen over its alleged off-label marketing of a prescription drug.

The Court will rule on:

-Whether Janssen lacks standing to seek the disqualification of BPB on the basis of alleged violations of constitutional law;

-Whether Rendell's office is allowed to enter into a contingent fee agreement with BPB;

-Whether BPB should be disqualified because the General Assembly did not authorize the contingent fee contract; and

-Whether BPB should be disqualified because it has a direct financial interest in the outcome of the litigation.

After setting up a meeting between Republican Attorney General Tom Corbett and BPB, Rendell decided to hire BPB himself.

Corbett was not impressed with BPB's evidence at the meeting and declined to have his office file the suit. Rendell hired BPB to represent the state, but has received criticism because the firm contributed $75,000 directly to his 2006 campaign, $16,000 more in airplane travel and $25,000 more to the Democratic Governors Association

Attorneys for Janssen are not making the argument for BPB's disqualification based on the contributions given to Rendell, but have mentioned them in several briefs.

"Mr. (Kenneth) Bailey's contributions of more than $100,000 to the Governor and the Association just as the Governor's General Counsel negotiated and executed its no-bid contingent fee contract with Bailey Perrin are relevant because they give rise to a distinct notice of impropriety, thereby making it unlikely that litigation decision-making by Bailey Perrin will be perceived as fair and impartial and solely in the public interest," one reply brief says.

"The contributions are further relevant because they are indicative of the sort of abuse of executive power that the doctrine of separation of powers was meant to check."

BPB had written, "Janssen's gratuitous identification of campaign contributions are no more relevant to the resolution of this matter than political contributions (Janssen counsel) Drinker Biddle & Reath's Political Action Committee made to various candidates presumably aligned with Drinker's and/or its clients' interests, which totaled nearly $120,000 during the 2004-06 election cycles."

Bailey has contributed heavily in other states, also giving $50,000 to Mississippi Attorney General Jim Hood, who hired BPB to pursue a claim against Eli Lilly & Co.

In Louisiana, another state BPB is representing in litigation, Bailey gave $20,000 to the state's Democratic Party. In Arkansas, which hired BPB for a suit against Janssen, he gave $70,000 to the Democratic Party in 2006.

Attorneys for Janssen argue that counsel representing a government office should be motivated by justice, not money, and that BPB is controlling the decision-making instead of someone from the Office of General Counsel.

"There wasn't the slightest bit of pay-to-play here," Rendell told the Philadelphia Inquirer. "I never put a dime of state money in jeopardy for Ken Bailey."

From Legal Newsline: Reach John O'Brien by e-mail at

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