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Second Update on 9/11 Lawsuits Against Saudi Entities – Developments Include The Insurance Ind

Update to Post of September 11, 2011:

Insurers have now dismissed – without prejudice – their new lawsuit involving 9/11. AmLaw has the story here. Counsel for the insurers declined to explain the dismissal, so the story is not much of a story. The prior post also is pasted below.

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The September 11 attacks and resulting deaths are remembered today in many human ways far more important than money. But for the insurance industry, any disaster also is about the money. New articles and lawsuits illustrate the money side of the September 11 attacks, and the roles of smart trial lawyers representing insurance industry plaintiffs and human victims. One especially interesting aspect is the insurance industry renewing ist efforts at obtaining claim-specific legislation.

On the human side, Motley Rice has been after terrorists sponsors for much of the decade, and has won some issues and lost some issues. This prior post from 2009 links to other articles on fascinating information and discovery-related battles. A partial update on the litigation is found in Michael Goldhaber’s September 9, 2011 article in AmLaw’s Litigation Daily.

Mr. Goldhaber’s article focuses mainly on the insurance industry side of the September 11 litigation, and provides a fine reminder that the insurance industry side of the litigation industry is a multi-headed creature. One head puts out daily, perhaps hourly, messages to paint a picture of a horrible litigation industry purportedly controlled by "greedy trial lawyers" who make money, they say, just by representing sympathetic plaintiffs. But another head of the insurance industry creature is very different. That head portrays insurance industry giants as sympathetic, financial naifs bamboozled and defrauded by Wall Street financial houses, and acts as plaintiff seeking to recoup investment losses. Thus, Allstate this summer filed multiple lawsuits against Wall Street entities to recover investment losses. The complaints embraced the plaintiff-side tactic of including in the complaint allegations vilifying the defendants as bad actors; thus:

"In truth, and as Allstate and the world would only later discover, the originators whose loans collateralized the Morgan Stanley [residential mortgage-backed securities] purchased by Allstate were among the worst of the worst culprits in the subprime lending industry," the complaint says. "These originators have since folded up their operations, filed for bankruptcy or been shut down by regulators, and are the subject of numerous governmental investigations and private lawsuits alleging misconduct arising out of pervasive illegal and improper mortgage lending practices and other violations of law."

Now, because of its massive payouts from the September 11 attacks, the insurance industry plaintiffs are embracing several tactics. One is to continue litigation, including filing this new complaint against the Saudi government, various princes and various financial entities. On that front, Mr Goldhaber asserts that the insurance industry is bringing in Carter Phillips to serve as plaintiff’s counsel. ("The plaintiffs have brought in Sidley Austin appellate star Carter Phillips to argue before the Second Circuit …") Mr. Carter is indeed a star, and its ironic to see him as plaintiff’s counsel seeking money for insurer plaintiffs because he usually is counsel relentlessly defending corporate America against supposedly bad plaintiff lawyers. Thus, in asbestos litigation defense, Mr. Phillips said, for example:

"Plaintiff’s lawyers stoke the passions of jurors with arguments regarding [an exposed worker’s] risk of deadly cancers," says Carter Phillips in his brief to the court on behalf of Norfolk and Western. "The common results are massive verdicts for relatively healthy plaintiffs."

With the motivation provided by the massive September 11 financial losses, the insurance industry creature has grown another head. That head is now embracing the plaintiff side tactic of seeking claim-specific legislation to assist the insurance industry in recovering its financial losses from Saudis and others. Thus, according to Mr. Goldhaber’s article, the insurance industry’s as plaintiff is lobbying to obtain a leg up through a hoped-for new state statute in Pennsylvania to be sponsored by Sen. Charles Schumer.

"Second, Cozen [counsel for the insurers] said that Sen. Charles Schumer will soon reintroduce a bill, known as the Justice Against Sponsors of Terrorism Act, that would effectively overrule the Second Circuit’s obstructive rulings on sovereign immunity and personal jurisdiction and allow a new action to be filed against Saudi Arabia. Cozen O’Connor’s lobbying materials make clear that its preferred endgame is to force Saudi Arabia into a massive executive agreement, on the model of Libya’s 2008 settlement of terror claims."

Conclusion? Litigation is an industry, and it’s mainly about money, not justice.

More evidence for the conclusion? During my legal youth, I spent 1983-1984 as a law clerk forHoward C. Ryan, a smart and respected conservative to middle of the road justice of the Supreme Court of Illinois. Judge Ryan was a trial lawyer and then trial judge before moving to the intermediate appellate court and then to the supreme court. As of my clerkship in 1983-1984, the "liability crisis" of the 1980s was said to be beginning, and the court received myriad defense side briefs arguing that the sky was about to fall in because of plaintiff’s lawyers and Madison County was starting to attract attention as a plaintiff friendly jurisdiction. Meanwhile, amicus briefs and ordinary briefs also flowed in for cases from plaintiff’s lawyers railing against evil insurers and companies said to be concerned only about money. Important opinions were being issued and drafted. As an impressionable baby lawyer fresh out of school and an editorial position on a law review, I tended to ask Judge Ryan a lot of questions. Some questions flowed from uncritically accepting as true various unsupported factual assertions set out in law reviews and other "scholarly writing." Judge Ryan’s advice was great:

"You will learn not to believe it all, and during your career, you will over time learn which lawyers you can trust. That’s part of why we decide one case at a time, based on a record of facts, and why trials and trial judges are so important. Most everyone in litigation has a financial interest, and those interests are not really about justice."

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About Kirk

Since becoming a lawyer in 1983, Kirk’s over 30 years of practice have focused on advising a wide range of corporations, associations, and individuals (as both plaintiffs and defendants) on both tort and commercial law issues centered around “mass torts.”

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