Behrens, Mark ESQ

not to be conf w/ paul Behrends

pepperdine

In 2010, Shook, Hardy & Bacon's PAC gave $5,400 to Republicans and $500 to Democrats.^[21] In addition to Victor Schwartz's active participation in ALEC activities, fellow partners Mark Behrens and Phil Goldberg have been Advisors to ALEC's Civil Justice Task Force.^[22][23]

https://www.exposedbycmd.org/2018/06/19/alec-deadly-asbestos-agenda-benefits-koch-industries

The American Legislative Exchange Council (ALEC) named Missouri Republican state Rep. Bruce DeGroot as a “Legislator of the Week” in June.

Why is ALEC so fond of DeGroot? Because he has cheerfully championed ALEC legislation to restrict the right of terminally ill, asbestos victims to sue over mesothelioma. In doing so, DeGroot is helping the many U.S. companies, including ALEC funders Koch Industries and Nationwide Mutual Insurance Company, that have asbestos-related liability.

NATIONWIDE, NOT ON YOUR SIDE

Mesothelioma is an aggressive type of lung cancer caused by exposure to asbestos. Even though the dangers of deadly asbestos have been known for over 100 years, industry worked hard to bury evidence that workers were being harmed by asbestos exposure. Three thousand people are diagnosed each year with mesothelioma in the United States and most die within a year or two. Most victims are public servants, veterans, firefighters, even teachers exposed to asbestos in schools.

In addition to being an ALEC politician, Degroot is an attorney for an insurance defense firm, Brown & James, which represents dozens of insurers who, in turn, have as clients companies responsible for mesothelioma-related claims. One of the firm’s clients is Nationwide. Sources tell the Center for Media and Democracy (CMD) that Nationwide was actively pushing the bill in Missouri, although it was not publicly listed as a supporter of the bill.

In many states, a legislator who introduced a bill benefitting his firm’s clients could face ethics charges or worse. In Missouri, “it is unseemly, to say the least, and one of the reasons we need ethics reform in this state,” said deputy director Sharon Geuea Jones of the Missouri Association of Trial Lawyers.

Nationwide has long been a corporate sponsor of ALEC. In 2014 and 2015, for example, Nationwide incurred asbestos-related losses of $148 million and $98 million respectively, giving it one of the largest asbestos liabilities of any insurer for those years, according to Casualty Actuaries of Greater New York.

ALEC PROTECTIONS FOR ASBESTOS COMPANIES

At ALEC, corporate lobbyists and politicians vote as equals behind closed doors on “model” bills that advance corporate interests over consumers’ interests. DeGroot’s bill, HB 1645 or “The Asbestos Transparency Act,” bears a striking similarity to ALEC’s “Asbestos Claims Transparency Act.” The Missouri House passed the bill in March, but the Senate has yet to take action.

The bill would force victims of asbestos to search out bankrupt companies that made asbestos, not just companies still in business. The problem for the injured is that many companies that made asbestos or had asbestos products have sought bankruptcy protection and are now in trusts. These trusts are more difficult to sue, their assets are harder to determine, and the victims often die before their case is heard. The bill would also limit the time victims have to bring a case after diagnosis, even though it takes more time to prepare for a suit against bankrupt companies.

DeGroot can’t say enough about how awesome ALEC’s cookie-cutter corporate legislation is. “ALEC and ALEC model policy are a great resource. ALEC was able to put me in touch with an expert who was willing to travel to Missouri to testify in support of one of the bills I filed, Asbestos Transparency Trust,” DeGroot said in an ALEC interview.

That “expert” was Mark Behrens, a partner of the Kansas City law firm Shook, Hardy & Bacon. The firm has a national reputation for representing deadly industries like Big Tobacco.Behrens travels around the country lobbying on behalf of ALEC’s many asbestos bills, but tells the public that he is representing other clients like the U.S. Chamber Institute for Legal Reform.

EMOTIONAL FLOOR DEBATE

A cheerful DeGroot opened floor debate saying inaccurately that the bill simply stopped “double dipping” by asbestos victims, but the issue quickly turned emotional.

The first legislator to speak was Republican Rep. Steve Cookson, who is suffering from liver cancer. “I have been up here for eight years and most bills that we talk about are about protecting somebody’s money.… This bill is designed to protect out of state companies and insurance companies.”

Cookson went on to say that in the past he had been supportive of some tort reform bills. “I reflect back now, and you know I have a personal situation going on right here. I think a lot more about life and death. I would ask you, did you ever contemplate the way you want to die?” he asked of DeGroot.

“Well that is a bit personal,” responded DeGroot with a nervous laugh.

“Well, so do you want to die a slow death where you lay there in the bed and suffocate to death?” asked Cookson.

“I wouldn’t like that, no,” said Degroot.

Cookson went on to say that for the time he had left in the legislature, he wanted to make sure he was on the side of those “laying in the hospital for a long long time suffering, surrounded by their families…. I can’t bring myself to be in support of anything that would compromise a person’s ability to be made whole, and their family to be made whole because they had to leave this world in a horrible fashion in an abbreviated time they would have been expected to live.”

The ALEC bill offered by DeGroot would mean that many victims would not live to see their day in court. As one opposing legislator, Rep. Jay Barnes explained, “the best evidence in an asbestos case is the plaintiff, and when they die, that goes away.”

Similar bills based on the ALEC model have passed in 15 states: Ohio, Oklahoma, Wisconsin, West Virginia, Arizona, Texas, Utah, Tennessee, South Dakota, North Dakota, Iowa, Mississippi, Michigan, Kansas, and North Carolina.

KOCH INDUSTRIES LIMITS ITS EXPOSURE TO MESOTHELIOMA LAWSUITS

Koch Industries is the largest privately held company in America, with multiple subsidiary firms. When Koch acquired the paper company Georgia-Pacific LLC in 2007, it also became responsible for Bestwall LLC, which up until 1977 made a joint compound that contained asbestos. And because mesothelioma symptoms only appear after 10 to 50 years, Koch knew that when it purchased Georgia-Pacific, it also became responsible for thousands of asbestos lawsuits.

Koch Industries is a big financial supporter of ALEC and has served on the ALEC private enterprise board for many years, including in 2007 when the ALEC board approved the Asbestos Claims Transparency Act. Subsequently, in 2017, Koch Industries put Bestwall into bankruptcy to limit its exposure to mesothelioma lawsuits.

An affiliate of Koch’s Georgia-Pacific, Bestwall, joined “scores of U.S. manufacturers that have filed for bankruptcy due to asbestos litigation, and comes as the U.S. Congress mulls a bill that plaintiffs’ lawyers say would discourage asbestos claims,” wrote *Reuters*. The misnamed FACT Act is supported by ALEC, the U.S. Chamber of Commerce, and companies with billions of dollars of liability for asbestos claims, including Koch Industries.

Koch now argues that Bestwall was only a minor user of asbestos, but construction workers were exposed to multiple sources of asbestos, and since many of the responsible parties no longer exist, victims’ lawyers are forced to sue more than one company.

Koch complains it is spending $160 million a year defending its subsidiary against asbestos lawsuits. It could have set up a trust fund from the beginning when it acquired Bestwall to pay victims with that money instead of fighting every lawsuit, and is now slowing the process by putting the company into bankruptcy.

Americans for Tax Fairness estimates that the Kochs will get $1.4 billion from the Jobs and Tax Cut Act of 2017, money that could be used to pay asbestos victims before they die.

Instead, Koch and its allies are working hard to pass laws that run out the clock.

https://www.fed-soc.org/experts/detail/mark-a-behrens

Mark Behrens co-chairs Shook, Hardy & Bacon L.L.P.'s Washington, D.C.-based Public Policy Group. For over two decades, Mark has been extensively involved in liability law, defense litigation, civil justice reform, and counseling in the prevention of liability exposure. He is a member of The American Law Institute (ALI) and was recently invited to serve as an Adviser to the ALI's Restatement Third, Torts: Intentional Torts to Persons project. Mark is a Martindale-Hubbell AV Preeminent Rated attorney. He has served on the adjunct faculty of The American University’s Washington College of Law. In the fall of 2010, Mark taught Advanced Torts as a Distinguished Visiting Practitioner in Residence at Pepperdine University School of Law in California.

Mark has been listed as one of Washington, D.C.’s “top lawyers” by Washingtonian magazine and as a leading product liability defense attorney byWho’s Who Legal: The International Who’s Who of Business Lawyers. He has authored or coauthored over 150 amicus briefs on behalf of national and state business and civil justice organizations in cases before the United States Supreme Court, seven different federal circuit courts of appeal, 30 different state courts of last resort, and seven different state appellate courts. He has also testified before Congress and numerous state legislatures. He has served as an expert witness in trials.

He has published over 50 scholarly articles in leading national journals and law reviews, including the Harvard Journal on Legislation, Cornell Journal of Law and Public Policy, and Texas Review of Law & Politics. He is a recipient of a Burton Award for Legal Achievement and received an award from several national organizations for major research contributing to civil justice issues. Mark has been quoted in The Washington Post, The Wall Street Journal, The New York Times,and the National Law Journal, and has appeared on radio and television, including CNBC, MSNBC, Bloomberg, and CNN.

Mark is counsel to the Coalition for Litigation Justice; Adviser to the American Legislative Exchange Council’s Civil Justice Task Force; co-counsel to the American Tort Reform Association; and co-chair of the Tort and Product Liability Subcommittee of the Federalist Society’s Litigation Practice Group. He is also a member of the Washington Legal Foundation’s Legal Policy Advisory Board, NFIB Small Business Legal Center’s Advisory Board, the Product Liability Advisory Council, Inc., International Association of Defense Counsel, Lawyers for Civil Justice, and the Lawyers Committee of the National Center for State Courts.

Mark received his J.D. in 1990 from Vanderbilt University Law School, where he was a member of the Vanderbilt Law Review and received an American Jurisprudence Award for achievement in tort law. He received his B.A. in Economics from the University of Wisconsin-Madison in 1987.

Education

1990 J.D., Vanderbilt University School of Law
1987 B.A., University of Wisconsin-Madison

The Federalist Society takes no position on particular legal or public policy issues. The people listed as Experts have spoken or otherwise participated in Federalist Society events, publications, or multimedia presentations. A person's appearance on this list does not imply any other endorsement or relationship between the person and the Federalist Society. All expressions of opinion by an expert are those of the expert.

alec sw

ALEC Task Forces

ALEC model legislation is introduced in, and initially approved by, one of nine “task forces,” which are chaired by both elected officials and “private sector” corporate members. ^[22] ALEC corportions are often represented by their lobbyists on ALEC’s board or task forces, and their representatives discuss and vote on legislation with legislators.^[23] For example, according to the American Association for Justice, in the area of “tort reform” legislation, “the nuts and bolts of . . . crafting legislation is done by large corporate defense firm Shook, Hardy & Bacon,” which has defended tobacco companies and other corporations against lawsuits.^[24] The law firm’s partner, Victor Schwartz is a long-time co-chair of ALEC’s "civil justice" task force.

The task forces as of 2011 are: ^[25]

The ALEC corporate and politician boards of directors meet jointly annually at a meeting that constitutes the final say over the bills and other matters for the organization. (ALEC says corporations do not vote at that meeting.^[27])

Secrecy and Lobbying

Under ALEC’s published by-laws, legislators who are ALEC “state chairmen” have a “duty” to get the model bills introduced in their state legislatures.^[28] However, when ALEC legislation is introduced in state houses, it is under the name of the sponsoring legislator rather than ALEC itself, with no mention that the bill was pre-voted on by corporations through ALEC or even connecting the bill to ALEC. The task forces obscure how “corporations [get] access and influence for which they'd otherwise be publicly scrutinized." ^[29]

NPR reported that "much about ALEC is private. It does not disclose how it spends it money or who gives it to them. ALEC rarely grants interviews. [Senior Director of Policy Michael] Bowman won't even say which legislators are members. Is it lobbying when private corporations pay money to sit in a room with state lawmakers to draft legislation that they then introduce back home? Bowman, a former lobbyist, says, "No, because we're not advocating any positions. We don't tell members to take these bills. We just expose best practices. All we're really doing is developing policies that are in model bill form." ^[30]

The American Prospect quoted "someone familiar with the organization" of ALEC as saying, "The totality of what they do is lobby. It's a self-sustaining con game." ALEC, however, denied the charge. ALEC’s then spokesman Bob Adams (who now runs and is the only employee of the front group “League of American Voters” CHECK) insisted, "We don't lobby... We don't introduce legislation at the state level. We just don't do that."^[31]

In 2009, however, reporters discovered thatShook, Hardy and Bacon attorneysMark Behrens and Corey Schaecher traveled to North Dakota to speak with legislators and their staff about ALEC’s asbestos bill, called the “Innocent Successor Liability Act,” without registering as lobbyists. At least three days after Schaecher was known to have been lobbying legislators, the ALEC asbestos liability bill was introduce on January 15 as HB 1430. The “North Decoder” blog revealed their lobbying activities on January 23, 2009; within hours, ALEC submitted letters of authorization permitting Behrens and Schaecher to lobby on their behalf, the same day the corporation most likely to benefit the legislation, Crown, Cork, and Seal, also registered the two as lobbyists. On January 27, Behrens testified before the North Dakota House Judiciary Committee in support of the legislation, and the following day, ALEC threw a party for legislators so they could “learn more about America’s premier legislative organization.” ^[32] According to the National Institute on Money in State Politics, this is the only instance in which ALEC has ever registered to lobby in any state. ^[33] In its 2009 IRS Form 990, in response to the question “Did the organization participate in lobbying activities” (page 3 question 4), ALEC replied “no.” ^[34]

Publications and Multimedia

:{Mesothelioma :(style="background-color:#ffff66;"):}:Litigation - Podcast

Litigation Practice Group Podcast

October 21, 2014

Damages and Medical Monitoring - Podcast

Litigation Practice Group Podcast

February 04, 2014

Philadelphia Tort Litigation: Forum Shopping and Venue Reform

White Paper

May 23, 2012

Kurns v. Railroad Friction Products Corp. - Post-Decision SCOTUScast

SCOTUScast 03-09-12 featuring Mark Behrens