THE PLAINTIFFS BAR STRIKES AGAIN
By JOSEPH NOCERA

(FORTUNE Magazine) – When the historic tobacco settlement was announced on June 20, it was the state attorneys general who took center stage, leaving their allies in the plaintiffs bar to toast the agreement in the privacy of their hotel suites. No surprise there, of course; attorneys general are politicians, and center stage is what they crave. But it hardly reflected reality. For the attorneys general did not bring down Big Tobacco by themselves. It was the plaintiffs lawyers--men like Ronald Motley and Richard Scruggs, who agreed to join forces with the states, for a contingency fee, no less--who ultimately forced the tobacco industry to the table. "The attorneys general are not equipped to bring the kind of pressure that plaintiffs lawyers bring as a matter of course," says New York University law professor Stephen Gillers. "It was plaintiffs lawyers who cornered this industry."

In the wake of the settlement, people have tended to focus on the staggering sums the lawyers are likely to reap: even if they get only 1% (the amount has yet to be negotiated), that would add up to more than $3.5 billion--money that will be used, according to some critics, to bring other industries to their knees. "There's a whole corporate world waiting to be ravaged by the plaintiffs bar, and it'll be funded by the money from the tobacco industry," says Paine Webber analyst Emanuel Goldman. That seems wildly overstated. Still, even if you believe that the tobacco companies are getting what they deserve, the triumph of the plaintiffs bar is worrisome for at least three reasons:

--It shows that no industry can outlast the plaintiffs bar. Traditionally, the greatest weapon corporations had in beating back litigation was their sheer staying power: They had the resources and legal talent to wear down their opponents. But even before this latest round of tobacco litigation, that dynamic had begun to change. Plaintiffs lawyers who had feasted on asbestos cases--Motley and Scruggs very much included--had millions of dollars at their disposal, allowing them to go toe to toe with even the most stubborn companies. In attempting to put together a nationwide class action against Big Tobacco--the so-called Castano case--65 plaintiffs firms had each anted up $100,000. That was petty change for the firms but enough to give the class action effort a sizable kitty. Obviously, any money the plaintiffs bar gets out of the tobacco settlement will only further this trend.

--The big boys are starting to act like one giant law firm. Gillers calls the plaintiffs bar a "virtual law firm," and he's right. Motley, based in South Carolina, worked closely with Scruggs, based in Mississippi--and with dozens of other firms across the country, each of which contributed money, manpower, and expertise. They strategized together and set up a central document depository. Discovery done for the Castano class-action suit was turned over to the state attorneys general for use in their suits. What's more, the fact that different firms used different tactics--some joining the class-action effort, others working for state attorneys general, and still others bringing individual lawsuits--created a multipronged war that the tobacco industry had trouble fighting. In all, there were more than 150 plaintiffs firms involved in the tobacco litigation. "I came away with great respect for some of the lawyers I worked with in this litigation," says Motley happily. "I have every intention of working with them again."

--The link between attorney general offices and the plaintiffs bar is not a one-time event. The truly original wrinkle in the tobacco litigation was the teaming up of attorneys general and plaintiffs lawyers. The lawyers, in effect, ran the cases and paid the up-front expenses (Scruggs, who ran the Mississippi case, says his firm is out of pocket $5 million), while the attorneys general handled the political end of things and lent moral respectability to the whole affair. According to Motley, you'd better get used to the collaboration. Though he won't be specific, he says that right now "we're negotiating with AGs on another disease area. We're also negotiating to take on some business tort cases. And some consumer protection cases."

Uh-oh.

--Joseph Nocera