Texas AG Ken Paxton Filed at Least 30 Circumstances in Counties With Little Connection to Allegations — ProPublica

In October, Texas Lawyer Basic Ken Paxton sued pharmaceutical firms tied to Tylenol in state courtroom, repeating claims made a month earlier by Well being and Human Companies Secretary Robert F. Kennedy Jr. that the ache aid drug was linked to autism and ADHD in youngsters.

Paxton, a detailed ally of the Trump administration who had already introduced a U.S. Senate bid, accused drugmakers of selling Tylenol to pregnant moms with out disclosing its risks. “The reckoning has arrived,” the state’s attorneys wrote within the lawsuit towards pharmaceutical firms Johnson & Johnson, Kenvue Manufacturers and Kenvue Inc.

“By holding Large Pharma accountable for poisoning our folks, we’ll assist Make America Wholesome Once more,” Paxton proclaimed in a information launch that echoed Kennedy’s slogan.

Paxton employed the Chicago legislation agency Keller Postman to argue the case in state courtroom. The agency had served as lead counsel in an analogous case about Tylenol’s security that was dismissed a yr earlier by a New York federal decide who discovered the plaintiffs’ skilled witnesses unreliable.

However the courtroom the attorneys selected to carry the swimsuit in wasn’t in Austin or any of the state’s giant counties which have in depth expertise and a number of judges dealing with giant, complicated litigation. It was in Panola County, a group of 23,000 residents on the Louisiana border that Trump carried by 67 factors two years in the past and whose sole state district courtroom decide is a Republican.

At a listening to that month within the three-story brick courthouse within the county seat of Carthage, Kim Bueno, the lawyer representing the drugmakers, accused Paxton’s workplace of pushing a baseless lawsuit by means of discussion board purchasing — searching for out judges and juries that plaintiffs consider might be most favorable to them, moderately than submitting swimsuit within the courts that mostly deal with related instances.

“These claims have been rejected over and over and over in courts of legislation by the identical plaintiff’s counsel,” stated Bueno, who declined an interview request. “And now they’re making an attempt, as soon as once more, to counsel that Tylenol is dangerous for girls when pregnant. And it’s been soundly rejected.”

The case was not the primary that Paxton’s workplace had filed in a county with little connection to the allegations of wrongdoing made by his workplace. ProPublica and The Texas Tribune have recognized no less than 30 instances filed by the lawyer basic over the previous 9 years which have a tenuous connection to the counties by which they had been filed.

The filings mark a hanging departure from Paxton’s earlier opposition to the observe. In a 2017 authorized transient that Paxton wrote on behalf of 17 states, he urged the U.S. Supreme Courtroom to crack down on discussion board purchasing in federal courts. The observe, he wrote, “has the pernicious impact of lowering confidence within the equity and neutrality of our Nation’s justice system.”

Paxton’s method additionally subverts what the Legislature meant when it handed a legislation within the Nineties that required plaintiffs to file lawsuits in counties the place a “substantial” a part of the alleged violation passed off, in response to three authorized consultants. That was completed on the behest of conservatives who felt trial attorneys had been flocking to venues favorable to them to win huge harm verdicts towards companies.

“It seems just like the lawyer basic’s workplace is taken with partaking in litigation video games that it will in any other case decry if the shoe had been on the opposite foot,” stated Michael Ariens, a professor at St. Mary’s College College of Legislation in San Antonio, who has studied legal guidelines regulating the place lawsuits may be filed.

Neither of Paxton’s Republican predecessors, Gov. Greg Abbott and U.S. Sen. John Cornyn, seems to have employed this technique. ProPublica and the Tribune reviewed a whole bunch of instances filed outdoors of the state’s 5 giant city counties throughout their tenures. Every had a transparent connection to the venue Abbott or Cornyn selected.

Neither Abbott nor Cornyn, who Paxton is making an attempt to unseat, responded to requests for remark. Trump on Tuesday endorsed Paxton within the race.

Texas’ main client safety legislation offers the lawyer basic some flexibility with these instances regardless of the state’s broader restriction on discussion board purchasing. The workplace doesn’t must show {that a} substantial a part of the occasions in a client safety case occurred within the place the place it recordsdata swimsuit however can as a substitute file in counties the place a defendant has completed enterprise.

However Paxton has stretched the boundaries of that legislation, too, in response to authorized consultants and to former staffers of the lawyer basic’s workplace who argued towards him in courtroom. Final yr, for instance, the lawyer basic filed a lawsuit towards the gaming platform Roblox in King County, a ranching group of about 200 folks east of Lubbock. Its key justification for choosing the tiny county was that residents there had web entry.

Paxton, who didn’t reply to requests for remark or to written questions, has not spoken publicly about his workplace’s selections to file lawsuits in courts with little connection to the instances.

On the November listening to in Panola County, Decide LeAnn Rafferty, a Republican first elected in 2016, didn’t query the lawyer basic’s workplace on its venue alternative however requested, “Do you disagree with the defendants’ assertion that Tylenol is the most secure alternative for pregnant girls who’ve a fever?”

“It is determined by — oh, you stated for having a fever? That most likely is true,” replied J.J. Snidow, a accomplice at Keller Postman. “There aren’t alternate options within the ache aid house to Tylenol that don’t even have dangers.”

Tylenol makers, Rafferty stated, already inform pregnant girls to seek the advice of with a physician earlier than taking the drug. Rafferty declined to remark in regards to the case. Snidow stated Keller Postman had no remark. Paxton has repeatedly turned to the agency as he has grown more and more reliant on non-public attorneys to litigate main instances for his workplace.

Kenvue directed ProPublica and the Tribune to a press release on its web site that stated there’s “no confirmed hyperlink” between acetaminophen, the energetic ingredient in Tylenol, and autism. A spokesperson for Johnson & Johnson stated the corporate has had nothing to do with making or promoting the drug since splitting with Kenvue in 2023.

Rafferty threw out 5 of the six claims within the lawyer basic’s lawsuit. She dismissed one for inadequate proof. Within the different 4, Rafferty dominated that the state didn’t have jurisdiction over Johnson & Johnson and Kenvue Inc. as a result of they don’t manufacture or promote Tylenol in Texas.

She allowed one declare to proceed that alleged Kenvue Manufacturers had violated the state’s client safety act by making false claims about Tylenol’s security.

With many of the claims thrown out, the lawyer basic’s workplace doubled down on its technique.

Two weeks later, it filed a brand new case towards the pharmaceutical firms.

This time, it selected Bailey County, a group of seven,000 residents on the New Mexico border.

Paxton’s Pivot

For many years, plaintiffs’ attorneys from throughout the U.S. swarmed courts in small Texas counties that had reputations for sympathetic judges and beneficiant juries. The observe turned so ubiquitous that The Wall Road Journal branded the Texas judicial system a “Wild West embarrassment.”

In 1995, Robert Duncan, then a Republican state consultant from Lubbock, resolved to crack down on the observe. He authored a invoice that required a “substantial half” of a lawsuit’s claims be related to the county of submitting.

An lawyer himself, Duncan remembers touring a whole bunch of miles from his dwelling within the Texas Excessive Plains to the Rio Grande Valley for instances that had no connection to the border area. Discussion board purchasing, Duncan instructed ProPublica and the Tribune, had led to too many attorneys selecting courts the place there was “no motive to be there aside from the bias or prejudice of regardless of the plaintiff’s lawyer is making an attempt to determine that will favor the case, versus giving the defendant a good alternative.”

Duncan declined to touch upon Paxton’s observe of submitting lawsuits in counties with little connection to the allegations of wrongdoing.

Paxton was not within the Legislature when Duncan’s invoice handed however, as a freshman consultant in 2003, he supported laws that gave judges extra energy to dismiss lawsuits they concluded belonged in one other state.

He additionally railed towards “rampant discussion board purchasing,” asserting that the U.S. Supreme Courtroom in 2017 ought to limit the observe after plaintiffs in patent infringement lawsuits started flocking to courts that the majority usually dominated of their favor. The Jap District of Texas had turn into the preferred venue for the lawsuits, regardless that few of the instances had clear connections to the world. Most instances landed on the docket of a decide primarily based in rural Harrison County, 140 miles east of Dallas, the place plaintiffs gained 78% of the time, in response to authorized researchers.

That waned after justices dominated that federal courts should strictly implement a decades-old legislation requiring firms in patent disputes to be sued solely of their dwelling states.

Since then, Paxton has repeatedly engaged in discussion board purchasing in state courts, authorized consultants stated. In actual fact, his workplace, or attorneys on behalf of his workplace, have filed 11 instances in Harrison, the identical county the place he argued that federal courts ought to restrict plaintiffs from submitting.

“It’s hypocritical for the AG to criticize patent litigants for discussion board purchasing however then to discussion board store himself,” stated Paul Gugliuzza, a professor on the College of Texas College of Legislation. “Discussion board purchasing, decide purchasing — it’s often not illegal, however it’s extremely opportunistic, and, in lots of circumstances, most likely shouldn’t be lawful.”

Paxton notched one of many greatest wins of his tenure in Harrison County. He secured a $1.4 billion settlement from Meta after alleging that the Fb mum or dad firm captured Texans’ biometric information with out their consent. Paxton’s workplace contended in courtroom filings that Harrison was a correct venue for the 2022 lawsuit as a result of the corporate had completed enterprise within the county and a considerable a part of the alleged lawbreaking occurred there. The workplace didn’t present specifics.

Meta has an workplace in Travis County, dwelling to Austin, not in Harrison, the place solely about 0.2% of Texans dwell, however the firm didn’t problem the venue. The corporate didn’t admit to wrongdoing within the settlement and didn’t reply to questions in regards to the case. It’s unclear why its attorneys didn’t search a unique venue, however the decide within the case, Republican Brad Morin, denied a switch in no less than one different lawsuit involving Paxton in the course of the Meta litigation.

Paxton has not restricted his efforts to search out extra favorable courts solely to small counties. The lawyer basic has repeatedly filed instances, notably political ones, in Tarrant, the state’s largest Republican county and residential to Fort Value.

In August, Paxton’s workplace selected the county because the venue to sue former Democratic U.S. Rep. Beto O’Rourke and his political group, Powered By Individuals, after the group helped pay bills for Democratic members of the Texas Legislature who left the state to dam the passage of recent congressional maps. The maps, drawn at Trump’s behest, favored the GOP.

The lawyer basic’s workplace said in courtroom paperwork that the case had a “substantial” connection to Tarrant County as a result of the group deliberate a rally in Fort Value. When O’Rourke sought to maneuver the case to El Paso County — the place he lives and the place the group is headquartered — Paxton accused him of discussion board purchasing. O’Rourke didn’t reply to an interview request.

Paxton secured a courtroom order in Tarrant that prohibited Powered by Individuals from fundraising whereas the case was pending. However inside weeks, the fifteenth Courtroom of Appeals overturned the choice. It famous that Paxton was a Republican candidate for U.S. Senate, which created an incentive to blunt Democrats’ potential to marketing campaign. The judges stated the order infringed on the group’s free speech rights earlier than a courtroom had decided guilt.

Authorized consultants say such discussion board purchasing erodes belief within the courtroom system. It’s particularly problematic when it comes from the lawyer basic, who is meant to defend state legal guidelines and protect public belief within the justice system, they stated.

“It’s laborious to respect the system if you happen to assume it’s being employed in a manner you essentially assume is unfair,” stated Paul Grimm, a former U.S. district decide in Maryland and an advocate of proscribing discussion board purchasing.

“Not the Legislation”

In no less than two current instances, Paxton has examined a novel interpretation of state legislation governing the place lawsuits may be filed. His workplace has argued that if an organization does enterprise over the web, it may be sued in any Texas county.

One such case was a 2022 lawsuit towards pharmaceutical big AstraZeneca. Two legislation companies filed the case towards the corporate underneath a legislation that permits non-public attorneys to sue on behalf of the lawyer basic. The lawsuit accused AstraZeneca of defrauding Medicaid by giving kickbacks to healthcare employees in change for prescribing the corporate’s merchandise. The corporate, which didn’t reply to a request for remark, stated in authorized filings that the lawsuit sought to punish its innocuous outreach to docs and didn’t establish a single affected person harmed or taxpayer greenback wasted.

Paxton’s workplace formally joined the case in July. Attorneys engaged on behalf of his workplace argued that Harrison County was the correct venue as a result of the agency’s web site might be accessed from there, firm salespeople had visited the county and a neighborhood clinic had a brochure for one of many firm’s medication.

When AstraZeneca requested Morin, the lone Harrison County decide, to switch the case to Travis County, he refused with out clarification. The corporate appealed and, in November, the fifteenth Courtroom of Appeals overruled Morin’s determination. The courtroom concluded that he abused his discretion in declining to maneuver the case. Morin didn’t reply to a request for remark.

The courtroom additionally discovered that Paxton’s workplace failed to offer proof that any of the alleged lawbreaking occurred in Harrison County. It ordered the case transferred to Travis County, the place it’s ongoing.

That month, the lawyer basic’s workplace argued that Roblox might be sued in King County, an expanse of rolling plains with no integrated communities, as a result of third-party retailers there offered reward playing cards to entry the web gaming firm.

Then the workplace made one other daring declare: that firms with web sites may be sued wherever, irrespective of how small the county.

“It is a case about ubiquity, about being on-line and accessible to all youngsters all through the state,” Mark Pinkert, a Florida lawyer whom Paxton’s workplace had employed as outdoors counsel, argued at a listening to to debate a request from Roblox that the case be moved to Travis County. “They’re promoting broadly.”

Pinkert didn’t reply to a request for remark.

Roblox’s lawyer Ed Burbach was shocked by the argument. He’d beforehand led the civil litigation division on the lawyer basic’s workplace underneath Abbott. The workplace’s longstanding observe, Burbach instructed the decide, was to file statewide client safety instances in Travis County.

This new argument by the lawyer basic’s workplace would obliterate the Legislature’s makes an attempt to restrict discussion board purchasing by permitting any firm to be sued in any county, Burbach stated.

“That’s merely not the legislation,” Burbach stated, including that the majority Texans, together with lawmakers, would “be shocked to listen to that outdoors counsel of the AG’s workplace could be arguing that.”

The decide transferred the case to Travis County, the place it’s ongoing.

Burbach declined to remark, however Paul Rogers, a legislation professor at Southern Methodist College in Dallas, warned of the risks if Paxton succeeds at getting courts to aspect along with his expansive interpretation. The lawyer basic, he stated, would have “loads of energy to file any lawsuit, in any county, for any motive, whether or not the underlying lawsuit has benefit or not.”

Doubling Down

In Washington, Trump and Kennedy’s public rebukes of Tylenol have tapered off. Paxton, nonetheless, continues to vigorously pursue his lawsuit towards the drugmakers in state courtroom.

After the setback in Panola County, the lawyer basic’s workplace filed an pressing request in Bailey County, arguing that Johnson & Johnson and Kenvue must be barred from promoting any merchandise in Texas till they filed paperwork and paid a $750 price to register with the secretary of state. (Such registration would permit Paxton’s workplace to strengthen its case in Panola County.)

Although Paxton’s workplace was already concerned in a lawsuit towards the pharmaceutical firms in Panola County, the lawyer basic’s workplace said in courtroom filings that it didn’t know the businesses’ attorneys, so it couldn’t notify them of the swimsuit.

With out listening to from the drugmakers’ attorneys, Decide Gordon Inexperienced ordered the businesses to register. He stated they might be barred from doing enterprise in Texas in the event that they didn’t. Paxton proclaimed the ruling a “main win” over Large Pharma.

The victory was short-lived. Every week later, the drugmakers’ lawyer Aaron Nielson, who had beforehand served underneath Paxton because the state’s solicitor basic, attended a listening to in Inexperienced’s courtroom. He accused Paxton’s workplace of sleight of hand by making an attempt to relitigate claims that had already failed to influence the Panola County decide.

“That is blatant discussion board purchasing and taking one other chew on the apple,” stated Nielson, who didn’t reply to a request for remark. “They determined to carry Your Honor into this, moderately than let the Courtroom that they selected proceed with its personal proceedings, which we predict is very improper.”

On the finish of the listening to, Inexperienced withdrew the order requiring the businesses to register. He didn’t reply to a request for remark.

The Panola and Bailey county instances are awaiting a ruling from the fifteenth Courtroom of Appeals.

Within the meantime, the lawyer basic’s workplace tried yet one more gambit in Panola, the place the decide had allowed one in all its authentic claims to maneuver ahead.

Paxton’s attorneys amended their authentic lawsuit within the county. They famous that Inexperienced had ordered the drugmakers to register to do enterprise in Texas, which meant Texas now had jurisdiction to pursue the claims that had been dismissed.

They omitted the truth that Inexperienced voided that order.

By referencing the order as if it had been nonetheless in impact, the lawyer basic’s workplace dangers dropping credibility with the Panola County decide, Gugliuzza stated.

“In the event you knowingly are presenting false info to the courtroom, that’s textbook sanctionable conduct,” Gugliuzza stated.