AG and DiPirro Dispute Application of SB 471 and Contempt

Private enforcer Michael DiPirro has taken issue with the December 21, 2001 letter from Deputy Attorney General Ed Weil. In a motion filed January 25, 2002 in DiPirro v. Virbac Corp. (Alameda Superior Court no. H219690-5), DiPirro asserted that requiring parties to file a motion to approve a settlement under the new requirements of SB 471 would constitute an improper retroactive application of that statute, and would vary existing contractual obligations by substantially increasing the attorney's fees and costs (that would be borne by the defendant, of course) in briefing and filing a motion for approval.

DiPirro also requested that the court issue an order that the AG show cause why he should not be in contempt for falsifying documents to be filed with the court. DiPirro alleged that the AG doctored a letter sent to DiPirro in August 2001 regarding potential exposures to a different product, so that it also requested exposure information on the product at issue in the Virbac case. DiPirro asserted that "this despicable act was done to cast doubt over the integrity of a good faith settlement between DiPirro and Virbac, to prevent the approval of the stipulated judgment by the Court and to malign DiPirro before the Court." DiPirro said that this was part of "a pattern of repeated questionable activity by the Attorney General's Office toward DiPirro," including a report on Prop 65 settlements to Senator Dede Alpert, which "distorted both the amount of penalties collected and the attorney's fees paid by settling defendants" to DiPirro.

In a supplemental brief filed on February 22, the AG indicates that there is sufficient doubt whether it can be demonstrated that the August 6, 2001, letter in question was created and sent on August 6th." The brief sets forth the AG's investigation of DiPirro's allegations, including review of the relevant computer files, and extensive investigation and interviews of the Staff Services Analyst, who has been "advised of her right to legal representation during any further review of this matter." The brief claims that the December 11 letter in which Ed Weil had stated that he had never received a response to the August 6 letter (prompting DiPirro's motion) "was written in good faith and, to the best of the author's knowledge at the time, was correct." Based on the AG's doubts as to whether the August 6 letter was sent, the AG agreed that the court should not give any weight to the December 11 letter, but the request for sanctions should be denied.

Court Rejects Motion for Contempt

In her March 1, 2002 order, Judge Northridge ruled that plaintiff's settlement was required to be approved under the SB 471 review procedures (see above). She also rejected DiPirro's request for a contempt citation against the Attorney General. In reaching this ruling, Northridge's order stated, that there was no need for additional evidence. It stated:

While the Attorney General's office may not have made an earlier request for information on this case, as asserted in its December 11, 2002 letter, there is no evidence that this later assertion was made maliciously or in bad faith or with the intent to defraud. While Plaintiff's allegations are serious, and merit serious investigation, that duty lies with the Attorney General's office. There is no evidence that the Attorney General's office intentionally committed a fraud on Plaintiff or on this Court.

This page last updated 9/15/02