The Justice Department arrested Virginia plaintiffs’ lawyer Timothy Litzenburg on Monday, alleging in a criminal complaint unsealed late Tuesday that Litzenburg attempted to extort $200 million from an unnamed chemical manufacturing company that makes a product contained in Monsanto’s Roundup weedkiller. According to the Justice Department, Litzenburg told the company’s outside counsel in several emails, phone calls and meetings in October and November that he would launch a mass torts onslaught against the chemical company unless he and two co-counsel were paid $200 million as “consultants.”
The alleged scheme was described in an affidavit from U.S. Postal Inspection Service investigator Kevin Towers. Litzenburg, who was part of the trial team that won a landmark 2018 verdict against Monsanto in California state court for groundskeeper Dewayne Johnson, is represented by Thomas Bondurant and Jennifer DeGraw of Gentry Locke. “We believe Mr. Litzenburg to be not guilty of the charged offenses,” Bondurant said in an email statement late Wednesday. “An initial review indicates inaccuracies in the charging document, which causes concern.”
At the time of the alleged scheme, Litzenburg was a name partner of Kincheloe Litzenburg & Pendleton. His partner Daniel Kincheloe was the registered agent of the limited liability corporation that was allegedly created to receive the lion’s share of the purported $200 million consulting fee. Kincheloe has not been charged with any wrongdoing. He and partner Damon Pendleton did not respond to my emails or phone messages requesting comment.
According to the affidavit accompanying DOJ’s criminal complaint, Litzenburg allegedly floated the purported consulting fee in October, after warning the company’s unnamed outside counsel that he could precipitate a mass torts crisis for the company by naming it as a defendant in a publicly-filed lawsuit.
In several phone calls and emails in October and November, Litzenburg allegedly elaborated on the details of the consulting arrangement, according to the affidavit, demanding $200 million and allegedly threatening that if the company did not accede to his proposal, it would face an onslaught of claims that would cost billions of dollars to resolve. He allegedly described the $200 million as a “very reasonable price.”
The company’s lawyers contacted the Justice Department on Oct. 29. Thereafter, the Postal Inspector’s office recorded the defense lawyers’ interactions with Litzenburg. In one recorded phone call, Litzenburg allegedly said it would be “legal and ethical” for him to steer clients away from claims against the company. He also suggested that he could “take a dive” and “ask the wrong questions” in a pre-suit deposition of a toxicologist from the company.
The alleged extortion scheme took place as Litzenberg engaged in a vicious fight with former colleagues at the Miller Law Firm, where he got his start in the Roundup litigation. By Litzenburg’s account in counterclaims he eventually filed against the Miller firm, he pioneered the Roundup litigation after reading that the World Health Organization identified glyphosate as a possible carcinogen. (Monsanto has staunchly defended Roundup’s safety, denying that it is linked to cancer.) Litzenburg, a 2008 graduate of the University of Richmond Law School, said he was responsible for vetting early Roundup plaintiffs, deposing some Monsanto executives and directing discovery from the company.
He also said that he developed and maintained the Miller firm’s relationships with its Roundup clients, including Dewayne Johnson. In August 2018, Johnson was the first plaintiff to prevail in a jury trial of claims that exposure to Roundup caused him to develop non-Hodgkin’s lymphoma. A San Francisco Superior Court jury awarded Johnson $289 million in punitive and compensatory damages, causing a steep one-day decline in the stock price of Monsanto parent Bayer. The trial judge later reduced the judgment to $78 million. Bayer, which denies Johnson’s allegations, has appealed the judgment.
According to the Miller firm’s breach of duty complaint against Litzenburg in Circuit Court in Orange County, Virginia, Liztenburg was just a very junior lawyer acting under the direction of senior attorneys. By the time of the Johnson trial in San Francisco, the firm said, Litzenburg was engaged in “erratic and troubling behavior,” such as sending “nonsensical emails and texts” and skipping important meetings.
The Miller firm said it terminated Litzenburg’s employment in August 2018. It alleged in its lawsuit that he misappropriated client contact information and interfered with client retention agreements by soliciting Miller firm clients to defect to his new shop. Litzenburg’s countersuit accused the firm of defamation and business conspiracy, asserting that onetime Miller clients, including Johnson, considered Litzenburg to be their counsel.
The two sides reached an agreement earlier this month to drop claims and counterclaims against each other. In an email statement on the criminal charges against Litzenburg, Michael Miller said that his firm fired Litzenburg more than a year ago. “Mr. Litzenburg has nothing whatsoever to do with The Miller Firm nor The Miller Firm with Mr. Litzenburg,” the statement said.
It’s important to remember that, at the moment, the criminal case against Litzenburg is unproven accusations. The Justice Department has not yet publicly produced Litzenburg’s alleged emails to the chemical company’s lawyers nor its purported recordings of Litzenburg’s meetings and phone calls.
That said, the criminal complaint against Litzenburg reads like a vindication of all of the ugly criticisms that mass tort defendants throw at plaintiffs’ lawyers. Tort reformers could not have made up a story that casts plaintiffs’ lawyers in a more damning light than the government’s allegations against Litzenburg.
Obviously, the sort of misconduct alleged in the criminal complaint is an extreme rarity – but it’s these exceptions that feed perceptions of the plaintiffs’ bar. Here’s hoping that mass torts lawyers read the Litzenburg complaint as a cautionary tale.
(This story has been updated to include comment from Litzenburg’s defense counsel.)
Reporting by Alison Frankel