BulletProofBlog the blog on crisis communications

In this regular feature, Bulletproof interviews top plaintiffs' attorneys for their perspective on the crises likely to affect businesses in the near future. Today we talk to Stephen D. Susman of Houston' s Susman & Godfrey LLP. In the decades since his landmark 1980 victory, in which he won an award in excess of $550 million for victims of a nationwide price-fixing conspiracy, Mr. Susman has commanded the respect of business leaders and lawyers alike, on both sides of the aisle. No lawyer in the United States is more feared and admired.

How do you get a sense of what' s next? How do you conceptualize the issues and industries that will be important to you in coming months and years?

Steve Susman: To monitor what' s coming next in litigation, you need to monitor pending legislation. And, you need to pay particular attention to whether that pending legislation includes provisions for private causes of action.

A case in point is the Financial Product Safety Commission Act of 2009, which does contain such provisions. And, while that law will provide consumers with stronger protections and better information on consumer financial products, it creates a centralized entity that will prevent businesses from forum-shopping for the most favorable regulatory treatment

For financial service businesses, the message is pretty clear. Yes, you have faced significant exposure and significantly greater compliance responsibilities since the meltdown. But the next chapter is only just beginning now. The scrutiny will only intensify in the months and years ahead.

Susman Godfrey has a fairly broad practice. What other areas of your work are likely to be directly affected by the new political environment?

Steve Susman: We' re going to see a lot more environmental litigation. Right now, the Waxman-Markey climate legislation is a work in progress. I don' t believe that private causes of action are now addressed in the current version, but influential environmentalists are lobbying hard, and there' s every possibility that the final version will be even stronger. At the very least, for the first time, the U.S. government will cap and regulate emissions of carbon dioxide.

Any business that emits carbon dioxide - electric companies, oil and gas companies, and so forth - needs to be aware that, if there are specified caps on emissions, there is ongoing potential for exceeding those restrictions. The clearer the law becomes, the more do violations become concretely demonstrable in a court of law.

I would also put a particular focus on antitrust. There' s usually a shift to greater regulation and more antitrust-related litigation whenever an administration like Bush' s is replaced by an administration like Obama' s. But today you can multiple that tendency tenfold because of the downturn.

When times are good, companies are less motivated to collude. Why should they run the risk of fines and prison terms when they' re doing so well? But when times are bad, the instinct is to run the risk, and to work out illegal arrangements simply to survive in the marketplace.

For some businesses that' s a double whammy: more motivation to collude, more likelihood that the government will come after them for doing so.

The Bush administration simply ignored Section 2 of the Sherman Antitrust Act [which provides corporate penalties up to $10 million and prison terms up to three years]. Don' t expect the Obama administration to be so congenial.

The American public has decided that thirty years of Reaganomics are now over.

Your firm recently won a $45 million dollar settlement on behalf of Milwaukee County and the Milwaukee County Employee's Retirement System for negligence against a consulting firm. I' m wondering if we' ll see more such actions brought by public entities in this economic environment.

Steve Susman: There' s nothing all that new about that case, as public entities have brought many similar ones in past years. That said, there' s no doubt that, as more law firms of all sorts are now offering contingency fee and fixed fee arrangements, public entities that do not have inexhaustible pockets are in a better position to pursue meritorious claims.

Larry Smith is Senior Vice President of Levick Strategic Communications and a contributing author to Bulletproof Blog.