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Friday, August 23, 2019

Providence using plaintiffs bar to become player in antitrust cases

By Jessica Karmasek | Sep 2, 2015

Providence City Hall

PROVIDENCE, R.I. (Legal Newsline) – Since 2012, the City of Providence has teamed with private law firms to file more than a dozen federal antitrust lawsuits.

In fact, prominent plaintiffs law firm Motley Rice, which has an office in the city and connections to the city Solicitor’s Office, stands to earn anywhere from 15 to 40 percent in legal fees from several of those antitrust cases.

The cases, filed through the city’s Solicitor’s Office, allege companies are “scheming” to keep generic versions of their prescription drugs off the market.

The city contends that by blocking generic competition through so-called “pay-for-delay” deals, the companies have forced it and its insurers to overpay for medications.

A public records request submitted by Legal Newsline revealed the city has given five contracts for the cases. Four of those went to Motley Rice.

The high-powered law firm has gone after asbestos makers, tobacco companies and the lead paint industry. Now, it seems, it wants in on such pay-for-delay, antitrust lawsuits.

The firm holds at least two recent connections to the Solicitor’s Office.

The first was Matthew Jerzyk, who began work as deputy solicitor in 2012 and was listed as counsel for the office on some of the lawsuits.

Jerzyk worked as a law clerk at Motley Rice while in law school. His three-year tenure with the Solicitor’s Office coincided with the rise of antitrust cases, and he also served as senior counsel to the mayor for 18 months before becoming deputy city solicitor.

Jerzyk denied being a link between the Solicitor’s Office and Motley Rice, which has been hired by the city for more than just the antitrust cases.

“When I became Deputy Solicitor, there was already a group of contingent fee firms retained by the City Solicitor and I had no role or authority in their retention or termination,” he said in a statement to Legal Newsline.

The second recent connection is new solicitor Jeffrey Dana, who did not return messages seeking comment.

Dana is relatively new to the office, with Providence Mayor Jorge Elorza picking him after Jeffrey Padwa took a job as deputy treasurer and legal counsel with Rhode Island Treasurer Seth Magaziner earlier this year. Padwa had served as city solicitor since 2011.

Among those who recommended Dana for the job were Jerzyk and Robert J. McConnell, an attorney at Motley Rice and brother to Jack McConnell, a former Motley Rice attorney and now a federal judge in Rhode Island.

Robert J. McConnell, who wrote a letter of recommendation for Dana in February, described him as a “great advocate.”

McConnell said he first met Dana more than a decade ago when Dana worked for Rhode Island Legal Services. The two began working together on issues involving childhood lead poisoning.

Motley Rice represented the State of Rhode Island in a public nuisance lawsuit against the former makers of lead paint.

Jack McConnell was confirmed to his federal judgeship -- he had to recuse himself from one of the antitrust cases -- in May 2011. At the time, he was embroiled in a lawsuit filed against Motley Rice by Sherwin-Williams over an alleged theft of documents.

The alleged theft stemmed from the now-judge’s involvement in the lead paint lawsuit.

The firm’s Rhode Island office represented several states and municipalities in the lead paint litigation, which alleged paint companies had created a public nuisance by manufacturing lead paint before its federal ban in 1978.

Public nuisance claims have no statute of limitations, like product liability claims do. Most of the lawsuits were unsuccessful, though the companies are facing a $1.1 billion verdict in California that has been appealed.

In 1999, Sheldon Whitehouse, the Rhode Island attorney general at the time, hired Jack McConnell and Motley Rice to file a lawsuit against the former makers of lead paint in 1999.

The state Supreme Court unanimously struck down a verdict for the plaintiffs in 2008.

Dana served on the board of directors of the Childhood Lead Action Project at the time.

Last year, Motley Rice was a sponsor of the group’s November conference, according to the group’s website. The group is also listed on Motley Rice’s “Community Connections” page, with several dozen other organizations.

Motley Rice also recently obtained a $350,000 lead paint verdict against a Pawtucket, R.I., landlord.

Robert J. McConnell said in a phone interview he is only “vaguely aware” of the antitrust lawsuits filed by the city.

In a majority of the antitrust complaints filed against the pharmaceutical makers, the city is the lone plaintiff. In some, however, it elected to join forces with other plaintiffs in bringing suit.

For instance, one of the city’s first lawsuits to be filed was against Pfizer in June 2012, over its cholesterol drug Lipitor. The city filed the class action along with a group of plaintiffs; however, it was the only public entity to sue.

Other lawsuits -- against pharmaceutical companies Teikoku, Actavis and Watson, among others -- followed in 2013 and 2014.

In many of those cases -- some of which have since been consolidated or transferred to multidistrict litigations, or MDLs -- Providence is the only plaintiff.

So far this year, the city has filed two antitrust lawsuits -- again, on its own -- against Reckitt Benckiser and Cephalon, Barr, Mylan, Ranbaxy and Teva.

Michael Buchman, an attorney at Motley Rice’s New York law office, is named as counsel for the city in both of those cases.

Buchman, who has been handling a number of the antitrust lawsuits for Providence, declined to comment on the litigation.

One contract, dated Dec. 4, 2013, showed the firm’s legal fees are capped at “no more than 30 percent” of the recovery.

In another contract, dated March 6, 2014, the firm requested 25 to 40 percent of the total amount recovered, plus reimbursement for any out-of-pocket expenses, for representing the city in five separate antitrust litigations.

In a third contract, dated April 10, Motley Rice seeks another 25 to 40 percent of the total amount recovered, plus money for its out-of-pocket expenses, for representing the city in an antitrust lawsuit over the drug Suboxone.

In its most recent contract, dated June 26, the firm seeks 15 percent of any recovery if the litigation -- over the drug Provigil -- settles within 90 days of the initial filing. Otherwise, according to the contract, the city must pay 33.33 percent of any recovery for the firm’s services.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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