Los Angeles-based pipe maker J-M Manufacturing has fired back in court against one of America's most prominent filers of asbestos lawsuits, as it seeks to further its claims that the law firm of Simmons Hanly Conroy used fraud and racketeering practices to secure verdicts and settlements worth many millions of dollars in hundreds of asbestos cases that roped in J-M.
"The Simmons Hanly law firm and attorneys in its Asbestos Department have orchestrated a long-running scheme to enrich themselves through fraudulent asbestos litigation, in which plaintiffs and other witnesses represented by Simmons Hanly are coached to give false testimony," J-M wrote in the Oct. 2 motion.
"These fraudulent suits have cost Plaintiff (J-M) millions in legal expenses, jury verdicts obtained through misconduct, and settlements extracted by fraud. And Defendants (Simmons Hanly) have been tireless in their efforts to conceal their frauds - aided and abetted by unique attributes of asbestos litigation that, lamentably, make it all too easy for plaintiffs’ lawyers to commit effective, surreptitious frauds."
J-M had filed suit against Simmons Hanly earlier this year.
Alton-based Simmons Hanly has in the past 25 years established itself as one of the top filers of asbestos lawsuits in America. According to the most recent report published by tracking firm KCIC, for instance, the Simmons firm ranked No. 2 for asbestos filings in the U.S. through the first seven months of 2024, with 218, an increase of 13% compared to the same period in 2023.
Through July 31, 2024, only The Gori Firm had filed more.
On its website, the Simmons firm boasts of having secured more than $10 billion in asbestos settlements and verdicts in the past 25 years, including $1 billion in Illinois cases alone.
Much of that activity has centered in Madison and St. Clair County Circuit courts, notorious as "judicial hellholes" for serving as the locus of asbestos litigation in America.
According to court documents, J-M has been sued more than 6,000 times for alleged asbestos exposure, including more than 400 lawsuits brought by the Simmons firm.
However, in its lawsuit, J-M asserts much of the Simmons firm's success may have been driven by fraud.
In their legal filings, J-M said the lawsuit was inspired by a review of hundreds of cases lodged against them by Simmons Hanly on behalf of various clients and claimants through the years, after a legal fight between the Simmons firm and a former associate asbestos lawyer revealed allegations that the Simmons firm had for years engaged in a pattern of "'intentional suppression' and 'falsification of evidence' in asbestos cases."
Former Simmons associate Scott Peebles ultimately settled that case. But after he settled, efforts by J-M to unseal portions of Peebles' allegations allegedly showed Peebles' lawsuit centered on a lawsuit filed by Simmons Hanly against J-M and further revealed "a pattern of fraud permeating Simmons Hanly's other suits against (J-M)."
In the lawsuit, J-M particularly accused Simmons Hanly of coaching witnesses to allegedly lie in depositions about exposure to asbestos from cement pipes J-M produced.
In legal filings, J-M said those cement pipes contained asbestos that was "locked," and which could not pose a threat to anyone, unless the pipes were cut with a power saw, which the company said it expressly instructed installation professionals not to do. The products were not sold to the general public.
J-M said the alleged conspiracy bore the hallmarks of "a quintessential (racketeering) enterprise" with all involved working "toward the same goal of extracting settlements and obtaining jury verdicts through a pattern of unlawful conduct..."
In response, Simmons Hanly asked U.S. District Judge Robert Gettleman to dismiss the action, asserting it cannot be sued under fraud and racketeering laws for its lawsuits and that J-M filed its lawsuit too late.
The firm also filed a separate claim under a California law, accusing J-M of wrongly using a lawsuit in retaliation against the firm for winning a $22 million verdict in a California asbestos trial.
Simmons Hanly said routine litigation activities cannot be grounds for racketeering lawsuits, even if the plaintiffs claim those activities are a conspiracy to commit fraud. The law firm noted J-M did not challenge the alleged fraud in any particular cases, nor did they ask the courts to sanction Simmons for alleged fraud.
They claim their lawsuits are protected by the so-called Noerr-Pennington Doctrine, under which lawsuits are generally treated as constitutionally protected petitions to the government for redress of grievances.
In their Oct. 2 response, however, J-M said Simmons' attempt to cut off their lawsuit seeks to misapply those protections.
The company said its lawsuit cannot be considered too late, as it was filed within the four year statute of limitations since J-M said it first learned of the alleged fraud and conspiracy by unsealing portions of the 2020 Peebles' lawsuit docket.
J-M further noted it believes further discovery will show that it has been similarly harmed in the past four years, as well.
As to the constitutional arguments, J-M argued courts have held the protections don't apply to "sham litigation," or lawsuits in which plaintiffs "made knowing and material misrepresentations."
"The sole question, then, is whether the Complaint, taken as true, plausibly alleges that Defendants engaged in either baseless or fraudulent litigation against Plaintiff (J-M)," J-M wrote. "It plausibly alleges both."
While Simmons Hanly argued prior court decisions have created a so-called "carveout" shielding litigation activities from racketeering lawsuits, J-M said Congress did not include any such exceptions in federal racketeering law, nor, the company said, have courts agreed that racketeering accusations based on allegations of mail and wire fraud are protected by Noerr-Pennington or any other litigation carveouts.
"There is no basis in law or policy for immunizing sham litigation that Noerr-Pennington does not protect," J-M argued.
J-M further asked the court to reject Simmons' assertions that their lawsuit is is based on "nothing more than routine evidentiary disputes."
"This is wishful thinking and an absurd characterization of the Complaint, which describes in painstaking detail how Defendants (Simmons) followed an established playbook of fraud in case after case after case," J-M wrote.
Simmons noted J-M did not raise allegations of fraud or seek sanctions against the law firm while defending itself against the Simmons asbestos lawsuits, while securing dismissal of some and settling others.
But J-M said this only proves the company did not know about the alleged fraud until the Peebles legal action allegedly revealed it.
"It is true that Plaintiff (J-M) 'sought to disprove' many of Defendants’ (Simmons') false statements," J-M said.
"But the whole purpose and effect of the fraudulent scheme was to falsely bolster the apparent strength of the claims that Defendants filed against Plaintiff - e.g., through false testimony and other evidence regarding the fact and degree of exposure to Plaintiff’s products, the supposed lack of warnings, etc. - and this forced Plaintiff to pay more to settle or fight the claims than if Defendants had been honest about the weakness of their sham lawsuits."
Judge Gettleman has not yet ruled on the competing claims.
J-M is represented in the action by attorneys Ashwin J. Ram and Mark C. Savignac, of the firm of Steptoe LLP, of Chicago and Washington, D.C.; and J-M General Counsel Frank Fletcher.
Simmons Hanly is represented by attorneys John R. Storino, Reid J. Schar, Kirsten H. Spira and Amit B. Patel, of the firm of Jenner & Block, of Chicago, Los Angeles and New York.