BulletProofBlog the blog on crisis communications

In this regular feature, Bulletproof Blog interviews top plaintiffs' attorneys for their perspective on the crises likely to affect businesses in the near future. Today we talk to Russell "Jack" Drake, name partner at Whatley Drake & Kallas in Birmingham, Alabama, one of the powerhouse firms in the Southeast representing clients in a broad range of mass torts and business lawsuits. 

What factors do you see affecting your practice in the coming months?

Jack Drake: Even if the economy continues to show signs of improvement, as we hope it will, the depth of this recession, and extent to which malfeasance exacerbated the crisis at every point, will continue to support new filings on a range of issues.

We are taking a particularly close look at holding companies that have foreclosed on properties throughout the country. There are very serious questions as to whether they had the legal right to act in this capacity. One in particular I'm aware of includes over 50 banks.

We are naturally looking at certifiable classes of former property owners and, of course, the possibility of action against both the holding company as well as its dozens of constituent banks.

How do you see political changes and the shift toward the Democrats affecting your practice?

Jack Drake: For starters, we expect that the passage of the Medical Device Safety Act of 2009 will have a profound impact on the applicability of preemption, as that proposed law in its current form would reverse the pro-preemption decision in Riegel v. Medtronic.  Once that happens, it will mean a whole new generation of lawsuits against companies like Medtronic. The new Congress is rewriting the book on litigation in this area.

We're anticipating that defibrillators will be at the center of this reinvigorated litigation. There are thousands of people walking around with defective defibrillators. It's a terrifying experience. These things can actually knock someone down when they misfire in a person's chest, as they periodically do. Once the path is clear for these cases to be adjudicated based on local legal standards, there is every likelihood of a strong class emerging throughout the country.

I'm hardly expecting it, but one wonders if the company should consider some extraordinary measure, like offering to pay for operations to remove these time bombs. Right now they're advising people to talk to their doctors, but that's hardly enough, considering the expense and the ordeal that are really required to effectively safeguard the patient's life.

In general, I'd watch for broad changes on the whole preemption front that will affect many industries. The debate isn't going away, but right now the numbers are on our side.

As a Democratic stalwart in the Southeast for many years, how important are your relations with local officials in pursuing new cases?

Jack Drake: Activist State AGs usually want to do all the work in-house. That said, in the changed political environment,  we are now very much interested in establishing closer ties with a range of public officials. It's a top priority.