Throughout his career, Robert Nelson ’87, a partner at Lieff Cabraser Heimann & Bernstein, has been willing to play the long game in order to get results for his clients. Nowhere has he demonstrated that more clearly than in the litigation that in 2018 resulted in a $250 million settlement with State Farm Insurance: it began in 1997 as a consumer fraud and breach of contract class action but ultimately turned into a Racketeer Influenced and Corrupt Organization (RICO) action involving dark money allegedly paid to a judicial campaign of an Illinois Supreme Court justice. “That was a particularly long game, hopefully not to be repeated,” Nelson notes.
In his 26 years as a plaintiffs lawyer at Lieff Cabraser, Nelson has specialized in corporate fraud cases and currently leads the firm’s False Claims Act practice group. Twice named California Attorney of the Year by California Lawyer, Nelson has obtained hundreds of millions of dollars for plaintiffs in class actions against tobacco companies and oil companies, among others, as well as litigating for whistleblowers in cases where the government is being defrauded. “My cases are all painful as all get out during them, because we’re usually going up against the largest companies in the world, “ says Nelson. “Each of these cases is challenging, but they’re also rewarding,” he says, adding that being a plaintiffs lawyer allows him to advocate for a large number of people who have been wronged.
In the State Farm case, Nelson led Lieff Cabraser’s team, one of several firms representing nearly 4 million plaintiffs who had been insured by State Farm. A jury in the Williamson County, Illinois circuit court awarded the plaintiffs nearly $1.2 billion, finding that State Farm had improperly used lower-quality auto parts to replace parts damaged in car crashes, in violation of the company’s insurance policies. The verdict was affirmed on appeal, with damages cut slightly to $1.05 billion. State Farm appealed the ruling to the Illinois Supreme Court. During a delay in the court’s decision, a vacancy opened up on the bench that was eventually filled by trial judge Lloyd Karmeier who, in his first vote as an Illinois Supreme Court justice, broke a deadlock at the court and overturned the lower court’s judgment. The class went from a $1.05 billion verdict to having nothing.
“At the time [2005], we had suspicions that State Farm had contributed to Justice Karmeier’s campaign and also helped to manage it,” Nelson says of Karmeier, who was relatively unknown at the time. Nelson’s team asked that the judge recuse himself, which Karmeier refused to do; both he and State Farm denied that the insurance company had been involved in his campaign. The plaintiffs then filed a petition for certiorari at the US Supreme Court but it was denied.
“It was 2006, the case was over,” says Nelson. Then in 2009, in Caperton v. A.T. Massey Coal Co., the US Supreme Court held that donations to a judge’s campaign by a person with an interest in a pending case had violated the other parties’ rights to due process. To Nelson, this meant the State Farm litigation was back on, only this time not as a consumer action but as a RICO case.
In a new suit, the plaintiffs alleged that State Farm had engaged in a criminal conspiracy to seat a sympathetic judge and then lied about its involvement in pleadings. Based on several years of discovery, Nelson and his team argued that State Farm had contributed more than $3.5 million to the campaign – but hid it by sending money to third party groups which then directed the money to the Karmeier campaign. The case was ready for trial in 2018. “Justice Karmeier was going to be our first witness at trial, and the case settled just before he was to take the witness stand,” Nelson says. The suit settled for $250 million.
“In terms of novelty and innovation and just sheer relentlessness almost to the point of absurdity, obviously the State Farm case is one that’s never to be repeated in terms of how crazy and unlikely and improbable it was,” Nelson says. For his work on the case, Nelson was awarded Trial Lawyer of the Year by Public Justice, a nonprofit legal advocacy group committed to the public interest.
Nelson’s commitment to serving the public goes back to his days at NYU Law, where he was a scholar in the Root-Tilden program (now called Root-Tilden-Kern); he spent one summer working on voting rights issues at the American Civil Liberties Union’s Southern Regional Office in Atlanta and another at Public Advocates in San Francisco, where he interned alongside Bryan Stevenson, now the Aronson Family Professor of Criminal Justice. Nelson also worked closely with University Professor Emeritus Anthony Amsterdam on death penalty cases while in law school.
“Professor Amsterdam taught me that the client is the most important person in the world to a lawyer, and that listening to the client is crucial. That’s a lesson that I’ll never lose,” Nelson says. After graduating Order of the Coif, Nelson clerked for Judge Stephen Reinhardt on the US Court of Appeals for Ninth Circuit before spending the next five years as a federal public defender in San Francisco.
“After having been a defender for several years, my focus shifted in terms of what I wanted to do,” Nelson says. “I was hoping to do what we call impact litigation, where I would use litigation to potentially impact more people, which led me to my current job.”
At Lieff Cabraser, Nelson has spent much of his career suing cigarette and tobacco companies. As an young partner in the 1990s, Nelson was a part of the large, national group of plaintiffs lawyers whose firms worked together with the attorneys general of many states to secure a $246 billion master settlement agreement with major tobacco companies in 1998, which remains the largest settlement in history, Nelson says. In 2015, Nelson and co-counsel negotiated a $100 million settlement on behalf of 400 Florida smokers against cigarette companies, and also helped oversee a dozen successful trial verdicts against these companies. Currently, Nelson is representing the state of Hawaii in a suit against the e-cigarette company JUUL.
“Justice in tobacco cases is very slow,” says Bonnie and Richard Reiss Professor of Constitutional Law Samuel Issacharoff, who worked with Nelson as an expert on the master settlement agreement on behalf of the attorneys general. “It takes a lot of perseverance to keep running up against tremendously well-sourced adversaries with brilliant lawyers on either side. It takes a willingness to fight every issue, and you really have to be in it for the long haul and have a strong sense of internal fortitude,” Issacharoff adds.
Nelson says that plaintiffs practice has made for an interesting career, and one that has allowed him to serve the public on a large scale. “I encourage current law students with an interest in public interest work, when they are reading cases, to be thinking about the fact that there’s a lawyer who brought that case, a lawyer who’s representing the plaintiff, and a lawyer who’s representing the defendant,” he says. “Law students should be thinking, ‘Would I... be interested in representing this kind of plaintiff and bringing this kind of case that’s going to have this kind of impact on the law?’... In my opinion, we are out here bringing the most interesting and exciting cases that have the potential to really benefit many, many people.”
Posted May 6, 2020