Nicotine Fit

He's been thrown out of court on his ear, but Roger Conant is still railing about the legal fees from the tobacco settlement

Leaning forward in his swivel chair, Roger Conant slides a freshly minted compact disc across the burnished wood surface of his desk. The design on the jewel case oozes patriotic intent: a grainy color sketch of Abraham Lincoln set against an American flag and, in bold type, the title "Citizens for Constitutional Integrity/Suit Against Robins Kaplan."

"We've got everything here," Conant enthuses, settling back in his seat in his sparsely decorated office on the 18th floor of Midwest Plaza in downtown Minneapolis. And indeed, the contents of the disc--a seemingly endless cyberstream of court pleadings, affidavits, newspaper editorials, and magazine articles--constitute the underpinnings of the 60-year-old financial consultant's pet cause: a suit against Robins, Kaplan, Miller & Ciresi that challenges the legality of the $445 million meted out to the prominent local law firm in the wake of the state of Minnesota's multibillion-dollar settlement with the tobacco industry last year.

In his pinstripes and suspenders, Conant hardly looks the part of the crusader. But involvement in civic matters is something of a family tradition. Conant is a direct descendant of another Roger Conant--the first governor of the Massachusetts colony and an original settler of Salem. The 17th-century Roger Conant was reputed to have had trouble getting along with the Pilgrims in Plymouth, as he was "more Puritan than those around him," according to one family historian. The 20th-century Conant, creator of the locally produced public-affairs TV program Face to Face and self-described libertarian, possesses a bit of the old Puritan zeal himself. In an effort to whip up support for his cause, he has even worked nights and weekends to cobble together a Web site (www.saveourconstitution.com), where the contents of the aforementioned CD are available for all Internet users to see.

"It took me quite a while. I'd never done a site before," Conant says, a hint of his native New York in the voice. He digresses into a favorite argument: "The tobacco companies loved this settlement--it gave them an excuse to raise their prices. It was a bad settlement for the poor smoker, who is now going to take milk out of the mouth of his baby in order to fund his tobacco habit."

But it is the subject of the astonishing legal fees, which made for hefty bonuses for the 111 partners at Robins Kaplan, that provides Conant with his populist toehold, and the legal focus of what to him remains a burning issue.

To date, however, little has gone well for Conant, fellow plaintiff Thomas Neuville (a Republican state senator from Northfield), and the two attorneys who are working the case for free: Steve Young, the onetime law-school dean at Hamline University and former Republican gubernatorial and U.S. Senate candidate who masterminded the suit; and retired litigator Clay Moore. In November Hennepin County Court Judge H. Peter Albrecht threw out their complaint, ruling that the claim "totally fails in all respects" and ordering the plaintiffs to pay Robins Kaplan's court costs of about $55,000.

No matter. Conant intends to appeal the ruling just as soon as the imminent written decision is handed down. As for the sanctions, he doubts they'll be upheld; and if they are, he can afford it. "It doesn't bother me personally. I've been in investments a long time," he says, and points to a long résumé that includes stints as a finance executive at Teachers Insurance, the St. Paul Companies, and various banks, as well as occasional forays into academia (at the University of Minnesota's Carlson School of Management) and writing (for the right-leaning Minneapolis-based think tank, the Center for the American Experiment). Principles must be defended, he adds, peppering his rhetoric with high-minded references to "the Magna Carta" and "separation of powers."

Minnesota's deal with the tobacco industry last May won wide acclaim as the best accord of its kind. Groundbreaking. Expertly executed. Immensely popular. A colossal victory for the state, for taxpayers, for public health. Much of the credit has been bestowed upon Robins, Kaplan, Miller & Ciresi, which in 1994 contracted with then-Attorney General Skip Humphrey to try the case. Back then, given the industry's past history of courtroom triumph, few imagined the spoils that lay ahead, and the attorney general's office was happy to agree to a contingency deal. But after lead attorney Michael Ciresi and his team succeeded in exposing previously unseen, damning industry documents, Big Tobacco settled, for big money.

The tobacco industry's payments to the state will continue in perpetuity, so the ultimate cash value of the settlement is difficult to calculate, but the most commonly cited estimates place it at $6.1 billion over the next 25 years. (Conant, who has a doctorate in economics from Columbia University, disputes those numbers--"totally fabricated," he says--and pegs his own estimate at closer to $3 billion.) Ciresi, meanwhile, worked out a deal through which his firm will receive direct payments from the tobacco companies--about $445 million in connection with the state's suit, and another $126 million for the firm's work for a co-plaintiff, the Eagan-based Blue Cross and Blue Shield of Minnesota. The arrangement marked a considerable concession from the law firm, which originally agreed to take the case for a 25 percent contingency fee (about $1.5 billion, in light of the settlement).

At the heart of Conant's suit is a fairly narrow legal issue: Can a law firm working for the state receive compensation without the express approval of the Legislature or special authorization from the governor or chief justice? Conant argues that Ciresi's negotiations with the state represent "an end run" around the constitutionally mandated division between the legislative and executive branches. The Legislature, he contends, ought to have the right to determine how much the firm gets for its work.

"My vision of Ciresi was that he was working for the state much like a soldier would fight for his country, only Ciresi didn't put his life on the line," posits the indefatigable litigant. "And I think it's untoward for people working for the state to get rich beyond belief."

To Ciresi, Conant's efforts represent an annoyance, and an insult. "Everybody knows that this is a frivolous lawsuit," the attorney says curtly. "I don't want to discuss it anymore. It's really a nonissue. If they want to appeal it, let them all appeal it. That's their right," he notes, predicting that further legal action will only result in more sanctions. "Any sanction would go to a charitable cause that the judge selects. We made that very clear," Ciresi adds. "We don't want a penny."

From the outset Conant's suit was decried as a partisan attack launched by a small gaggle of staunch Republicans aiming to take the glow off Humphrey's tobacco victory just as he was making a run for the governor's mansion. Conant and crew provided plenty of grist for that mill. After all, he and Neuville (who ran against Humphrey in the '94 race for attorney general) were recruited by Steve Young after the attorney trolled for plaintiffs at last summer's state GOP convention--a forum Young now regrets selecting, on the grounds of "decorum."

Ciresi is a bit more blunt in his assessment: "Here they are ambulance-chasing on the floor of the Republican convention--a frivolous lawsuit when the Republican Party has a plank that we should restrict frivolous lawsuits."

Still, Conant and Young insist they have no partisan aim, merely an ideological one. "The media is hung up on stereotypes, and they have not seen through to a deeper, more significant reality: that the law is important, that the law doesn't justify this, that there's something wrong with the public policy of the tobacco settlement," Young asserts. "We are doing a very important public service by raising these issues for the people and the courts and the newspapers to talk about.

"This is the classic case of the little guys standing up to power, saying, 'Wait a minute, was the law violated?'" Young continues. "Conant and Neuville ought to be rewarded by a grateful public for raising the issue."

Of course, if Judge Albrecht's decision stands, Conant and Neuville will simply wind up digging a bit deeper into their wallets. Just like today's smokers.

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