Editor: What is the scope of the Foundation's activities?
Slattery: Our general activities fall into three categories. First, we litigate some first chair cases where we are representing a plaintiff and sometimes a defendant. Second, we file amicus briefs in cases in different areas including science in the courtroom, expert testimony, and civil justice reform issues. Third, we perform an educational function by sponsoring conferences and by publishing monographs or other materials. In our work on science related issues, we have been particularly fortunate in having been able to represent approximately one hundred very distinguished scientists including 15 or 16 Nobel laureates.
Editor: Corporate counsel have been particularly appreciative of the great work that the Foundation has done to bar junk science from the courtroom.
Kaufman: Our involvement with the junk science issue goes all the way back to the Daubert case. We filed an amicus brief in that case on behalf of many prominent scientists including several Nobel Prize winners in the fields of chemistry, physics and medicine. Among those Nobel laureates are Nicholaas Bloembergen, a physicist and professor emeritus at Harvard University and Walter Gilbert who is a chemistry professor at Harvard.
We were pleased that our brief was cited and quoted by the United States Supreme Court in Daubert. We understand that is unusual for an amicus brief. We followed up with briefs in the other two cases in the Daubert trilogy, General Electric v. Joiner and Kumho Tire Co. v. Carmichael. In Kumho Tire our brief was also cited by the Court as was a monograph by one of the prominent engineers we represented as amicus in that case. We are proud of our involvement in the three principal U.S. Supreme Court decisions in this area.
In addition, we have been active in state courts. We filed amicus briefs in the highest courts in California, Massachusetts, and New York on admissibility of expert testimony. We have filed amicus briefs in numerous federal courts of appeal. The Supreme Court of California and the Ninth Circuit have cited our briefs.
A good example of our activities in the federal courts of appeal is our amicus brief in Kennedy v. S. Cal. Edison Co. a Ninth Circuit Court of Appeals en banc case. In that case, the plaintiff claimed that a small dose of radiation, significantly lower than background radiation levels, had caused her illness. Our brief in that case supported the position of a number of prominent scientists that the causal link in the plaintiff's argument was negligible, and was cited by plaintiff's counsel as the reason for the Ninth Circuit's sua sponte reversal of its prior decision in the same case.
At the state court level, in Canavan v. Brigham & Women's Hospital, we wrote an amicus brief to the Massachusetts' Supreme Judicial Court where we urged the court to apply the standards set forth in Daubert .
Aggressive trial lawyers are constantly searching for new theories on which to base litigation. A few years ago, electromagnetic fields seemed to be a growing interest for the plaintiff's bar. In response, we sponsored a conference on electromagnetic fields in Philadelphia along with the Franklin Institute. We also filed amicus briefs in California cases, including in San Diego Gas & Electric Co. v. Orange County Superior Court (Covalt) when it was being considered by the Supreme Court of California; again, that court cited our brief in its opinion. In these ways we played a role in discouraging litigation based on specious theories of causation.
Slattery: We are making an effort to assure that the teachings of Daubert are being applied on a state level. Five years ago, we issued a comprehensive survey entitled Junk Science In The States: The Battle Lines, which is available on our Web site in our Science In The Courtroom Review. This comprehensive survey was written by Henry P. Sorett, an attorney in Boston. One of our projects for 2006 is to update that work.
We have had an impact. By bringing the views of prominent scientists and other experts to the courts and by publicizing the issues, we have facilitated reform - and we plan to continue to do this.
Editor: Are cases demanding medical monitoring becoming more common?
Kaufman: Yes. We recently submitted an amicus brief to the California Court of Appeals in Lockheed Martin v. Superior Court. In that case, the plaintiffs sought certification of a class of residents in San Bernardino County with respect to their claim for medical monitoring. The plaintiffs wanted Lockheed Martin to provide, at its expense, a court supervised medical monitoring program. We argued that plaintiffs did not meet the "commonality of interest" requirement because they had all lived in the area for varying amounts of time and had varying degrees of exposure. We also argued that class certification was inappropriate because a separate determination as to whether preexisting medical conditions had contributed to the illness would have to be made in each case.
In addition to filing amicus briefs, we are also planning a conference on medical monitoring cases for spring 2006.
Editor: A major concern of corporate counsel is erosion of the attorney-client privilege and work product doctrine in the wake of efforts by the DOJ and state attorneys general to get waivers.
Slattery: This is a very serious concern. The Foundation sponsored a conference in Washington DC in March on the subject of erosion of the attorney-client privilege where we had very senior justice department officials defending the Government's positions. The outstanding group of participants included corporate general counsel and such legal figures as Judge Samuel Alito; former Solicitor General Theodore Olson; and Professor Geoffrey C. Hazard of the University of Pennsylvania. Our keynote speaker was Senator Arlen Specter, chairman of the Senate Judiciary Committee.
We have produced a conference report as well as a CD that includes the entire conference proceedings.
Kaufman: Some of the general counsel and practitioners who attended include Bill Ide, former president of the ABA and former general counsel of Monsanto, who is currently a partner at McKenna Long & Aldridge; David Aufhauser, general counsel of UBS Global Investment Bank; Jamie Conrad, assistant general counsel of the American Chemistry Council, and George Terwilliger, former deputy attorney general and now a partner at White & Case.
Editor: Not only have the DOJ and state attorneys general defined cooperation by some corporations they are targeting to include waiver of the privilege, they have also asked such corporations to refrain from indemnifying their officers even where indemnification is legally required. Is this an issue of interest to the Foundation?
Smith: The use by prosecutors of tactics to divide a corporation from its officers by trying to get them to strip the officer of indemnification can bankrupt the corporate officer. Companies faced with indictment are under immense pressure to "cooperate." However, refusal of the company to indemnify can turn an employee into a hostile witness. We are eager to find a way in which we can play a role in limiting the practice you describe.
Kaufman: The issue you raise is part of our general concern about the way and extent to which the criminal laws are being applied to business activities. For example, in Hansen v. United States, the officers of Hanlin Group, Inc., a parent company that owned and operated an industrial plant in Georgia, were accused of violating federal environmental statutes as a result of wastewater that left Hanlin's plant. Merely because he was an officer of Hanlin, Randall Hansen was sentenced to 46 months in jail and a $20,000 fine. The federal District Court relied on the "responsible corporate officer" doctrine in order to convict Hansen and the other officers involved in that case. On appeal, the Eleventh Circuit's decision also failed to consider that Hansen had no control over the decisions made at the industrial plant. In effect, this decision removed the mens rea requirement from the statutes under which Hansen was convicted because there was insufficient evidence to prove that he had knowingly allowed the discharge to take place. Because of the importance of this issue, we filed an amicus brief on behalf of the National Association of Criminal Defense Lawyers in support of Hansen's petition for a writ of certiorari, which, unfortunately, was denied.
Editor: Given the responsibilities imposed by Sarbanes-Oxley and the ethical rules, corporate counsel have a growing concern about their own liability. Have you addressed this issue?
Smith: In Pereira v. Cogan, the Foundation filed an amicus brief in the U.S. Court of Appeals for the Second Circuit on behalf of The Corporate Law Departments Section of the Los Angeles County Bar Association and twelve current or retired general counsel of major United States corporations in a case that focuses on the responsibility of corporate lawyers. The District Court held that the chief legal officer of the company was personally liable for more than $20 million due to his failure to direct the activities of the board of directors.
Our amicus brief focused on whether in-house counsel had the duty to take action where the board of directors failed to act in the face of clear wrongdoing by the majority shareholder. We argued that because the trial court had reversed the traditional roles of the board and legal counsel, the duty imposed by the District Court judge "fashioned an intolerable, unnecessary and unworkable responsibility for corporate chief legal officers." We also pointed out that the legal officer was entitled to the protection of the business judgment rule. The Second Circuit reversed and remanded the case, albeit not on a point we addressed. The case is of broad national interest and hopefully Atlantic Legal's amicus brief may help to define more precisely the obligations of general counsel in the remanded case.
Editor: Should there be greater opportunity to use interlocutory appeals in appropriate cases?
Kaufman: Yes. Some states such as New York offer that opportunity, whereas it is more limited - in fact usually not available - in federal cases. The ability to resolve issues which may be case determinative before a final judgment is rendered would contribute to reducing the length and cost of litigation. Prime examples are Daubert hearings and rulings on motions to exclude expert testimony, which are often outcome determinative. It would be useful to get a final resolution of such issues before the case goes through full development including the damages phase of trial. We are in favor of greater use of interlocutory appeals, although one has to be careful because the proliferation of interlocutory appeals can increase litigation costs and tax judicial resources; it has to be done judiciously.
Editor: Has the Foundation supported proposals to reform the archaic structure of some state court systems?
Kaufman: We have written a study on New York court reform and Sandy was the principal author of that study. The 15-page study with a two page executive summary is available on our Web site.
Smith: The study picks up on Chief Judge Judith Kaye's recommendation to restructure the courts - which would require a constitutional amendment which is unlikely because of political considerations. However, the Chief Judge has, through exercise of her administrative powers, set up some specialized courts. She has created some domestic violence courts, expanded the use of commercial courts and has made some recommendations as to how cases tried against the state can be better handled. Our report is an analysis and explanation of the Chief Judge's proposal and contains some strong criticism of the inefficiencies of the current structure. This is an issue that deserves more attention and support from the corporate community and the legal profession.
Editor: Please tell our readers about the Foundation's involvement as amicus in the Rumsfeld v. FAIR case.
Kaufman: In addition to being involved in sound science issues and civil justice reform issues, we also address important constitutional issues and other legal issues that affect public policy. For example, Rumsfeld v. Forum for Academic and Institutional Rights (FAIR) involves a challenge to the statute that requires government agencies to withhold grants and contracts from universities that do not provide military recruiters the same access to campuses as they provide private sector or civilian government agency employers. Since such a limitation on military recruiting at universities creates problems for adequately staffing an all-volunteer military, we felt that the case merited our attention and we thought it important to bring to the Supreme Court's attention the views of retired senior military and civilian defense department officials with respect to the importance of recruiting on campus to fulfilling the military's needs and its mission to defend the U.S. We were fortunate to team up with Greenberg Traurig and were able to recruit a large number of very prominent retired defense officials to join in the brief.
Slattery: We represented former Secretaries of Defense James Schlesinger and William Perry; former Chairmen of the Joint Chiefs of Staff General Hugh Shelton and General John Shalikashvili; and two former Commandants of the Marine Corp and former Superintendents of the Military Academy and the Air Force Academy, as well as about 20 very senior retired generals and admirals from all services. So it is really a remarkable group that we along with Greenberg Traurig were privileged to represent.
Editor: How can our readers get more information about the Foundation and how they can assist the Foundation to carry out the important mission you described?
Slattery: The best source of information about the Foundation is our website, www.atlanticlegal.org, or by writing to Atlantic Legal Foundation, 60 East 42nd Street, Suite 2102, New York, NY 10165.