July 25, 2013 by Tom Aswell
Gov. Bobby Jindal has inserted income from the privatization of public agencies that weren’t yet privatized in order to make the numbers in his Executive Budget more palatable to legislators.
He has included revenue from the sale of state buildings that were not yet sold—indeed, some of which came back with appraisals far below his projected sale price—in order to make that budget more realistic.
To be sure, he caught considerable flak from those fiscal hawks in the legislature for his repeated use of one-time money for recurring expenses—something by the way, he was openly critical of and which he vowed never to do during his 2007 gubernatorial campaign.
Now Louisiana Voice has learned that Jindal has apparently attempted to execute an end run around state contract attorneys and the attorney general’s office in an attempt to negotiate a settlement of an outstanding judgment in favor of the state against a major pharmaceutical company.
It should be noted here that any negotiations between parties in any litigation without involving attorneys would be considered a breach in legal ethics.
The object of Jindal’s efforts is to generate a quick up front settlement of $50 million in order that he might plug holes in the upcoming annual ritual of mid-year adjustments to the state budget, one observer said.
Not necessarily—not when you consider that the amount of the original judgment was $257 million.
That’s correct. Two hundred fifty million dollars. Plus $3 million in costs, plus another $70 million in attorney fees.
Attorney fees? Didn’t we say the attorney general’s office was involved in the litigation?
Well, yes, then-Attorney General Charles Foti initiated the lawsuit way back in 2004 in 27th Judicial District Court in St. Landry Parish but heavy hitters were needed in this matter so several outside firms were contracted to steer the litigation through the courts. Those included the firms of Irwin, Fritchie, Urquhart & Moore of New Orleans, Kenneth DeJean of Lafayette, Robert Salim of Natchitoches and Bailey, Perrin & Bailey and Fibich, Hampton, both of Houston.
On the other side of the ball were lawyers from the firms of Guglielmo, Lopez & Tuttle of Opelousas, Drinker, Biddle & Reath of Florham Park, N.J., and O’Melveny & Myers of Washington, D.C.
After six years of legal back and forth sparring, discovery, depositions and various other means of keeping attorneys’ meters running the matter finally went to trial Sept 28-30 and Oct. 12 and 14, 2010. When the dust had settled, the jury made a determination that the “aggressive marketing campaigns” of Janssen Pharmaceutical, a Johnson & Johnson company, had violated the Louisiana Medical Assistance Programs Integrity Law (MAPIL) no fewer than a whopping 35,542 times with each violation subject to a civil penalty of $7,250, bringing the total damages to $257,679,500.
(Don’t ask us what “aggressive marketing campaigns” were employed by Janssen or how they violated the state’s MAPIL; we’re not privy to that information. All we know is what we read in the Third Circuit Court of Appeal’s affirmation.)
Janssen, of course, appealed the award as anyone might expect, but the Third Circuit upheld the lower court judgment and Janssen has applied for writs to the Louisiana Supreme Court where the matter is now pending.
Nine years of judicial interest (6 percent per year in simple interest) brings the current total judgment to just a shade under $400 million.
So now we have Jindal who, in typical fashion, is attempting to patch anticipated budget holes with $50 million in one-time money—all the while throwing the state under the bus to the tune of nearly $350 million.
Several legal experts knowledgeable about the case say the State Supreme Court could conceivably reduce the attorney fees but that there is little chance that the $257 million award ($400 million with interest, remember) will be overturned—a fact that would make Jindal’s tactics even more underhanded.
And were it not for Attorney General James “Buddy” Caldwell, Jindal’s efforts may have succeeded, according to sources who told LouisianaVoice that Caldwell stepped in and shut down the negotiations.
Neither Caldwell nor this top assistant, Trey Phillips, returned telephone calls seeking comments on the matter.
Attempts were likewise made to contact several of the plaintiff attorneys who argued the case on the state’s behalf but all such attempts failed.
Any such settlement would necessarily negatively impact attorneys’ fees. Accordingly, it would be reasonable to expect a maelstrom of protests from the attorneys under contract to the state if they were aware of Jindal’s efforts.
LouisianaVoice also emailed Gov. Jindal’s office for a comment but received no response.
One person who did comment was Public Service Commissioner Foster Campbell of Elm Grove in Bossier Parish.
“I was not aware of this,” he said, “but I certainly am not surprised. This is typical of this governor. He has complete and total contempt for the people of this state. It’s all about what he can do for little Bobby. He’s trying to settle this for about 13 cents on the dollar just so he can patch his budget deficit, the state be damned.”
Neither Johnson & Johnson nor Janssen has made any campaign contributions to Jindal since 2003 but six pharmaceutical companies contributed $34,500 to his campaigns in 2007 and 2008. One of those, Pfizer, Inc., of New York City, gave $15,000 in three separate contributions of $5,000 each while Pharmaceutical Research and Manufacturers of America in Washington, D.C., made two contributions of $5,000 each in 2007 and 2008.
State campaign finance records also show that pharmaceutical companies contributed more than $375,000 to candidates for state offices, mostly legislators, since 2003. Those contributions were for both Republican and Democratic candidates. Again, it was Pfizer ($170,000) and Pharmaceutical Research and Manufacturers ($150,000) that reported the bulk of those contributions.
Other contributors included Takeda Pharmaceuticals of Deerfield, IL, and Novartis Pharmaceuticals of East Hanover, N.J.