Botox has helped many a Hollywood actress ensure that her face never betrays her age. But who knew that it has been cleared by the U.S. Food and Drug Administration to treat headaches, other pain, and cerebral palsy in children?
Maybe that’s because it wasn’t.
Allergan Inc., the manufacturer of Botox, pleaded guilty to unlawfully marketing the drug for those ailments and agreed to pay a criminal fine of $375 million and a civil settlement of $225 million.
The settlement, totalling $600 million and finalized in 2011, was among the largest on record in the federal courthouse in Atlanta. It also was a rousing victory for Atlanta litigation boutique Bondurant Mixson & Elmore, which represented the whistleblowers in the False Claims Act case against Allergan. The clients were drug company employees and a doctor familiar with Allergan’s off-label marketing, and their share of the settlement came to $37.8 million.
Bondurant Mixson’s small team of lawyers worked with counsel from Atlanta firm Watkins, Lourie, Roll & Chance to investigate the whistleblowers’ claims and draft the initial complaint. Attorneys in the U.S. Department of Justice liked what they saw and pursued the case, while the Bondurant Mixson team — led by partners John Floyd and Ben Fox — continued to support their efforts.
Fox and Floyd have a long track record with fraud cases, and Floyd literally wrote the American Bar Association’s book on racketeering.
“We’re very comfortable looking at how we believe the government will approach a case and where its priorities lie,” Floyd said. “We’re comfortable working with investigative agencies when that’s appropriate. Candidly, we just work very hard.”
The firm has had a good run of it lately, scoring victories on behalf of both paying and pro bono clients. One of the firm’s partners, Jill Pryor, is reportedly being vetted for nomination to the U.S. Court of Appeals for the 11th Circuit.
If Pryor does leave for the bench, she’ll follow a well-established path of Bondurant attorneys who move on to other areas of the law — including academia — although rarely to other firms.
“We are, for a lot of reasons, one of the few firms in Atlanta that does not do lateral hiring,” said founding partner Emmet Bondurant. “All of the people here, essentially, started practicing law with us.”
The firm wasn’t always a litigation powerhouse. Bondurant founded it in 1977 as a full-service firm, but partner departures in 1985 narrowed its focus. The firm has grown steadily since then; it now counts 34 attorneys who handle matters ranging from antitrust and racketeering cases to business disputes and even sports litigation.
The firm’s reputation has helped lure top young talent. It boasts alumni of Yale Law School, Harvard Law School and the University of Virginia School of Law, to name a few. Nearly all of Bondurant Mixson’s new hires emerge from clerkships — almost one-third clerked for judges on the 11th Circuit. That lengthens the recruiting pipeline significantly, but the firm feels strongly that the skills and experience that clerkships provide are worth waiting for, Bondurant said.
Part of the appeal to recruits is the likelihood of getting into court. “If you want to try cases as a plaintiff or a defendant, this is your place,” Bondurant said.
Small teams are a hallmark of the firm’s approach. “We believe strongly that it’s key to have a small number of people who know a case well,” Floyd said. “Sometimes it’s the clients who are resistant to that, but you can do a lot with a small group of lawyers as long as they are experienced and are willing to burn the midnight oil.”
The formula seems to be working. The firm in June successfully defended the Hospital Authority of Albany-Dougherty County, Ga., against an antitrust claim by the Federal Trade Commission that endangered a $195 million deal to acquire a local hospital. The 11th Circuit affirmed.
Bondurant Mixson is perhaps best known for its representation of Texas car dealership mogul David McDavid in his breach-of-contract suit against Turner Broadcasting System Inc. McDavid sued after Turner cancelled a deal to sell him the Atlanta Hawks, the Atlanta Thrashers and operating rights to Philips Arena. McDavid won a $281 million jury verdict, but the case settled under confidential terms while on appeal in late 2010.
It hasn’t been all roses. The U.S. Supreme Court ruled against Bondurant Mixson in 2010 after the state of Georgia appealed a $4.5 million fee enhancement for its work on a successful class action on behalf of 3,000 foster children. The justices ruled that such enhancements are allowed only under extraordinary circumstances.
One of the firm’s most impressive recent victories came in a pro bono case, this one on behalf of hundreds of indigent inmates who had been languishing without attorneys to handle their appeals.
Bondurant and associate Michael Caplan worked with the Southern Center for Human Rights on a class action to force Georgia to provide the inmates with attorneys. (Georgia law requires that indigent appellants get new lawyers for their appeals but the state wasn’t paying for them.) Caplan, in his third year with the firm, found himself making opening and closing statements at trial and cross-examining witnesses. The judge quickly certified the class and ultimately ordered the state to provide attorneys for the 200 inmates.
Caplan and Lauren Sudeall Lucas, a staff attorney with the human rights center, were preparing to head back into court last December for the injunctive phase of the case when the state agreed to scrap its system of paying private indigent defense counsel on a flat-fee basis and to start imposing caseload maximums for public defenders.
“It’s a comprehensive reform of the agency, which is precisely what we sought,” said Caplan, who spent 950 hours on the case during 2 1/2 years. “We were certainly proud to be a part of this effort.”
Lucas said she appreciated the Bondurant Mixson attorneys’ willingness to be full partners, rather than simply playing a support role. “They’re very committed to doing pro bono work, and doing the same high-quality work for pro bono cases as they do for all their other ones,” Lucas said. “They’ve been amazing.”
Karen Sloan can be contacted at firstname.lastname@example.org.