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Elizabeth Warren helped protect Dow Chemical against breast implant claims

Elizabeth Warren helped protect Dow Chemical against breast implant claims

The Boston Globe is being dragged kicking and screaming to facts regarding Elizabeth Warren’s private law practice history, including her representation of Dow Chemical which Warren never previously disclosed to the press (emphasis mine):

Warren, a Harvard Law School bankruptcy specialist, released a list of 13 cases Monday night, just 15 minutes before the start of her second debate with Brown. Her campaign described those often complex cases in brief, flattering terms. But the list did not include all the clients Warren has consulted with or represented over the years that may not have appeared on court dockets.

Instead, Warren’s list was partial. She included all clients she represented since 2008, information that was already public in disclosure forms she filed when she went to Washington to lead a congressional panel and then serve in the Obama administration.

The cases she included from before 2008 were those already available from other publicly searchable databases, when she represented a client in court.

That meant her list excluded cases in which she may have consulted or served clients in other ways. A 2002 affidavit, first posted on the conservative blog Legal Insurrection, shows examples of some of those consulting clients not mentioned in Monday night’s release. That affidavit shows that among them were Dow Chemical “in the early days of the Dow Corning bankruptcy,” according to Warren’s 2002 affidavit, filed as part of another case. The campaign confirmed that Warren, an expert in bankruptcy trusts, consulted for the company, but did not provide details, citing attorney client privilege. In that period, the company set up a trust to pay plaintiffs who claimed in lawsuits that silicone breast implants had led to health problems.

Warren’s campaign would not say why it would not disclose the full list of her clients.

The Dow Chemical representation is yet another case in which Warren sided with big companies, along with Travelers and LTV Coal.   Although the Globe did not include a link, Warren’s failure to disclose the Dow Chemical representation was exposed in my post, Elizabeth Warren issues incomplete list of cases based on Warren’s 2002 Affidavit in a bankruptcy case where she was hired to provide “professional legal services” (that case along with others also were not dislosed by Warren).

Since Dow Corning filed for bankruptcy in 1995 when Warren already was Cambridge, and this would be yet another legal representation Warren undertook from Massachusetts without being licensed in Massachusetts.

The Dow Corning bankruptcy was to protect against claims from women suffering the health effects of silicone breast implants manufactured by Dow Corning, Dow Corning In Bankruptcy Over Lawsuits

Overwhelmed by injury claims filed against it by hundreds of thousands of women who used silicone breast implants, the Dow Corning Corporation filed for bankruptcy protection in a Federal court in Bay City, Mich., today.

Dow Corning’s legal move will abruptly halt all new lawsuits and indefinitely delay settlement of existing litigation against the company. Dow Corning said that seeking the protection of the bankruptcy court was the only way it could devise an enforceable plan to deal with the billions of dollars of claims against it. The decision also means, however, that the bankruptcy court will have the final say in how much Dow Corning pays to compensate claimants.

Rob Eno at Red Mass Group asks the pertinent question about Warren’s failure to disclose the Dow Chemical legal work:

Why was Elizabeth Warren trying to hide her work for Dow Corning?  What was the nature of that work?

While Warren refuses to disclose what she did for Dow Chemical, it is pretty easy to surmise.  Warren offered legal advice to the parent company of a company in or about to go into bankruptcy.   That advice almost certainly concerned how to protect the parent company, Dow Chemical, from claims of women against Dow Corning.  If Dow Corning did not have the assets to pay these women, Elizabeth Warren likely was helping make sure the women could not claim against the deep pocket, Dow Chemical.

There is nothing wrong with Elizabeth Warren representing a large chemical company to insulate it from the health claims of women.  It’s what lawyers do, and it was legal for a lawyer who held the necessary licenses.

What is wrong is for Elizabeth Warren to play the “War on Women” card and to pretend she is something she is not.

More to come.  For sure.

Update 10-10-2012:  Elizabeth Warren’s implausible Dow Chemical claim


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BannedbytheGuardian | October 3, 2012 at 8:48 am

Does she have implants?

BannedbytheGuardian | October 3, 2012 at 8:49 am

ewwwh – I need to lie down with a cup of tea.

I wouldn’t knock her for that. Those claims were bogus and based on junk science.

Pat, the breast implant claims indeed are foolish. The professor’s point, as I understand it, is that Prof. Warren was defending the big, bad chemical company then and is ‘defending’ women today.

It seems to be a contradiction for a progressive person, but then progressives have amazing abilities to rationalize.

Here’s a debate question: “Professor Warren, you once represented Dow Corning as it sought bankruptcy to avoid paying lawsuits filed over dangerous breast implants. Do you believe that the implants were dangerous and that the women plaintiffs were correct in their allegations? If so, how did you come to represent the company in this matter?”

    janitor in reply to stevewhitemd. | October 3, 2012 at 2:29 pm

    Excellent suggestion to ask Warren about her opinions on breast implants and women’s health. I don’t know if it’s fair, though, to characterize the unhappy claimants as “foolish”. This is not a ringing endorsement, and the FDA has become crony corrupt in recent decades:

    “One in five patients who received implants for breast augmentation will need them removed within 10 years of implantation… for breast reconstruction, as many as one in two will require removal 10 years after implantation.” Common complications of breast enlargement surgery include a hardening of the area around the implant, implant rupture, wrinkling, asymmetry, scarring, pain, and infection…

    “Preliminary data do not indicate… breast cancer, reproductive problems, or connective tissue disease…” FDA advised. “However, in order to rule out… studies would need to enroll more women and be longer than those conducted thus far.”

      stevewhitemd in reply to janitor. | October 3, 2012 at 3:22 pm

      Forgive me, foolish was the wrong word to use.

      There are indeed certain local problems with implants as you note; those can cause significant discomfort and may on occasion lead to removal / revision of the implant.

      Despite the loud clamor, however, there is no good, scientifically compelling (or valid) data to suggest that implants cause serious long-term problems with the immune system, etc. That is what I was labeling with ‘foolish’, but I should have been more clear and precise in my language. Apologies.

She’s a shameless lib who always pontificates that we should “do as she says, not as she does”.
Nothing to see here, move along. [sarcasm off]

So consumers of a product (silicone implants) manufactured by a large corporation (Dow) suffered serious health consequences from using the product, and when these consumers sought relief in the courts, tireless Consumer Advocate (and Champion of the Working Class) Lizzie Warren took her high-priced legal skills and rushed into the battle to protect the financial interests of . . . Dow.

Way to look out for us little guys, Lizzie!

    Ragspierre in reply to Observer. | October 3, 2012 at 9:22 am

    Nobody suffered any ill-effect from silicon breast implants.

    That was one of the most disgraceful episodes in American jurisprudence. It was pure witchcraft, presented as science by a wonderfully (terribly) talented team of trial attorneys.

Professor, again I say: I am eternally grateful that you are on our side. Your parents did a super job in instilling such vigilance in you. Way to go!

Maybe this will help Mass. women vote with their lady parts…including the after-market ones.

“The campaign…did not provide details, citing attorney client privilege.”

Attorney-client privilege can exist between a non-attorney and a client, but only when the client reasonably expects that the non-attorney is actually an attorney.

If Ms. Warren wasn’t a Massachusettes attorney she should have notified Dow that she wasn’t an attorney, and therefore wasn’t bound by attorney-client privilege. By failing to do so and holding herself out as an attorney, she violated the unauthorized practice of law statute.

3. Standards of professional behavior for law students.

As future practicing lawyers, law students have standards of professional behavior and responsibilities expected of them. Please be advised that every state, including the Commonwealth of Massachusetts, has statutes and rules that prohibit the “unauthorized practice of law.” (See, e.g., Mass. Gen. Laws ch. 221 §41; Mass. Rules of Professional Conduct, Rule 5.5)

The practice of law is broadly defined and can include providing advice, in addition to direct representation. Just as one must get a license to practice medicine, one must be admitted to the bar in a particular state to be able to practice law. Law students are permitted to do legal work for clients as long as the student is working as an individual supervised by an attorney admitted to practice law in the relevant jurisdiction and that attorney takes responsibility for the legal work. Engaging in the unauthorized practice of law may result in criminal penalties, including fines and imprisonment. See: Massachusetts Conveyancers Ass’n, Inc. v. Colonial Title & Escrow, Inc., 2001 WL 669280 (Mass.Super. 2001) : whether a particular activity constitutes the practice of law is fact specific. Matter of Shoe Manufacturers Protective Association, 295 Mass. 369, 372 (1936).;

The media, legal and entertainment communities have done such a good job of demonizing corporate America that claims against evil corporations are NEVER bogus! At the same time, taking campaign cash from these same corporations is perfectly OK even for the most self-righteous crusaders. Everyone remembers the Obama stand against BP after having accept major dollars from them in 2008

wilsoncarroll | October 3, 2012 at 9:42 am

“That was one of the most disgraceful episodes in American jurisprudence. It was pure witchcraft, presented as science by a wonderfully (terribly) talented team of trial attorneys.”

All of whom are now rabid Warren supporters. This ain’t beanball, and if this latest bit of hypocrasy hurts her, then somebody needs to run with it.

Warren is just one of many who talk Left and live Right.

” The campaign confirmed that Warren, an expert in bankruptcy trusts, consulted for the company, but did not provide details, citing attorney client privilege”

If they released the cases she acted as counsel for but did not release cases she acted in a different capacity, what attorney client privilege is she claiming on the Dow case?

2nd Ammendment Mother | October 3, 2012 at 10:54 am

I think it’s about time we also revive the point that Elizabeth Warren is such a corrupt and polarizing individual that the WH wouldn’t put her name before to Congress to head the agency she created…. because Dems wouldn’t even vote for her.

Vote like your retail lady parts depend on it.

If she were a Republican, would her opposition say she was “anti-woman?”

Starting to seem that when she can profit personally, she is only 1/32 OWS.

This actually makes her a little more sympathetic to me.

Now, mind you, going up a few points from negative 20 gojillion doesn’t make her electable or even likeable, but at least this time she is moving in the right direction.

She’s just a regular ole John Edwards.

Talks about the poor and down trodden out one side of her mouth and aids those doing the trodden out the other.

Let’s see; she’s channeled Pochahontas, made the case for 2 Americas, now all she has to do his get a haircut and have a love child by some 3rd rate actor/film producer and she’s got a match.

Is it the Law Degree or is the political ideology?

Which comes first: the shark or the crook?

(apologies to all those Lawyers who steadfastly maintain the justice system, obey the rule of law and render vital services to the citizenry. You know who you are.)

Henry Hawkins | October 3, 2012 at 1:29 pm

This is what I’m talking about, the sort of thing Mass libs do not like. Elizabeth Warren, the Avenging Populist, and yet she’s hired herself out as a mercenary in defense of (*gasp!*) a major chemical corporation. Corporation! (capitalist pigs). Chemicals! (environmental demons).

“Elizabeth Warren helped protect Dow Chemical against breast implant claims”

Upon reading that headline I though for a moment that Fauxcahontas was engaged in a WAR ON WOMEN. But then I realized that couldn’t possibly be right since she’s a women and a d-cRAT socialist. Yeah, right.

Why is Elizabeth Warren being touted by WaPo columnist Chris Cizilla as a potential presidential candidate in 2016?????????? Yikes!! Are liberals all nuts?

[…] Is there anything about her that isn’t fake? The Boston Globe is being dragged kicking and screaming to facts regarding Elizabeth Warren’s private law practice history, including her representation of Dow Chemical which Warren never previously disclosed to the press: […]

I want to say Congratulations to Professor Jacobson on his blog finally getting a mention in the Globe. It took them long enough!!

Hope the Herald – or someone – is investigating the inactive status of her New Jersey law license!

You are a one man truth squad. Keep up the great work.

Professor, this may be a dumb question, or already answered.

If one is not licensed to practice law, are attorney-client privileges still in effect?

I see that Ms. Warren’s list of cases includes a case known as Cajun Electric, which is described as follows:

“In re Cajun Electric Power Cooperative, 150 F.3d 503 (5th Cir. 1998), cert. denied sub nom Mabey v. Southwestern Electric Power Co., 119 S.Ct. 2019 (1999). In this case, Elizabeth represented a company that offered a plan to help save a bankrupt rural power cooperative. The company also helped defray litigation costs for some members of the cooperative. Elizabeth sought to preserve the plan to save the company, and the Fifth Circuit ruled in favor of Elizabeth’s position.”

I was one of the lawyers adverse to Ms. Warren in that case. The description given is seriously misleading. The company that “Elizabeth” represented was a subsidiary of AEP, which was then and is now one of the largest coal-burning utilities in the country. AEP’s “plan” was not to “save” the cooperative (which was going to be liquidated no matter what) but rather for one of AEP’s subsidiaries to buy the cooperative’s main asset — a 1500 megawatt coal-fired power plant– and thereafter to continue to operate the power plant after laying off a goodly number of the power plant’s employees. And there is more to it than that.

    Cassie in reply to Matt. | October 3, 2012 at 6:14 pm


    The words “1500 megawatt coal-fired power plant” jumped out at me – since liberals by definition hate coal (I would say just kidding but I’m not: socially, it is preferable as a liberal to advocate for even nuclear power over coal).

    The case sounds complex. Is this article relevant?

    Loyola Law Review

    Summer, 2000
    46 Loy. L. Rev. 331
    Matt J. Farley

    “Since December 1994, Louisiana has been home to one of the few bankruptcy proceedings filed by an electric utility, Cajun Electric Power Cooperative, Inc., a mega-case that has been the subject of six reported opinions by the United States Fifth Circuit Court of Appeals. No one, short article could adequately treat the panoply of legal issues, many of first impression, presented by Cajun. This note discusses one topic that, in the author’s view, was of pivotal importance: the effect of the regulatory approval requirement of the Bankruptcy Code on the difficult confirmation process experienced by Cajun Electric Power Cooperative, Inc. (“Cajun Electric” or “Cajun”).

    Cajun’s Long Road to Chapter 11…”

      Matt in reply to Cassie. | October 3, 2012 at 7:36 pm

      The Cajun plant burned about 6 million tons of coal a year at the time Ms. Warren’s client wanted to buy it, and I don’t recall any discussion about replacing the plant with a wind farm.

      The article you found was dashed off by a very busy practicing lawyer, but I hope you enjoy it.

WBUR: Brown claims Warren practicing without law license: