Cephalon v. Wilson

Case Updates

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In the coalition brief, the Chamber urged the South Carolina Supreme Court to reverse the circuit court’s order and find that the Attorney General’s contingency-fee arrangement is unconstitutional. The Chamber argues that the contingency-fee arrangement violates due process rights and further, the provision that the Attorney General may retain 10 percent of the outside counsel’s fee award, instead of remitting the money to the State, deprives the legislature of its authority over state spending which violates the separation of powers. The brief asserts that the practice of handing over coercive powers of the state to outside counsel under unconstitutional contingency-fee arrangements is detrimental to both the business community and the justice system. The brief goes on to point out that in allowing private attorneys to be paid on a contingency-fee basis, they are being entrusted with the duty of objectively administering justice with an overwhelming incentive to win the case, even if it has no merit. Considering the personal interests of counsel in this arrangement, defendants will have little hope of persuading them to abandon a meritless case or to settle for a reasonable amount which will result in costly litigation.

The Chamber filed the brief jointly with the Pharmaceutical Research and Manufacturers of America (PhRMA).

John H. Beisner, Geoffrey M. Wyatt, and Nina R. Rose of Skadden, Arps, Slate, Meagher & Flom LLP represented the U.S. Chamber as co-counsel to the U.S. Chamber Litigation Center in this case.