Tort Reform Hypocrisy

Unhappy Returns

TORT WARRIORS RESORT TO LITIGATION

As the economy melts down, even Texas’ tort warriors and their kin are turning to civil courts to recover losses from ruined financial firms. Dallas energy tycoon T. Boone Pickens—a $1 million donor to Texans for Lawsuit Reform—filed a lawsuit last October to recoup $60 million from bankrupt Lehman Brothers. In January, a family foundation affiliated with a Texas tort-reform giant filed a $1.8 million claim against hammered Dallas hedge fund Highland Capital Management LP, depicting the foundation as a victim of deceit.

Amarillo’s Mary E. Bivins Foundation is named for the great-grandmother of former Republican state Sen. Teel Bivins, whose family established the charity to benefit Panhandle nursing homes and other causes. In 1995, then-Sen. Bivins authored or co-authored each of the four major tort-restriction bills that then-Gov. George W. Bush signed into law.

The Bivins lawsuit says the foundation invested $1.75 million in a Highland Capital fund in 2006, but in March 2008 the fund balked when the foundation invoked its contractual right to withdraw its money. Rather than pay a lump sum, Highland informed the charity that it would pay the money over nine months. Then Highland closed the fund in October as the value of its investments in high-yield, high-risk debt tanked. Investors like Bivins were informed that they would receive a pro-rata (proportionate) share of Highland’s remaining assets.

The lawsuit counters that the Bivins Foundation is entitled to all of its money because it sought to withdraw it months before the fund closed. A statement issued by a Highland spokesperson says the lawsuit “is based on a misunderstanding by the Bivins Foundation” about the hedge fund’s closing.

Even back in the heyday of tort backlash, it was clear that Teel Bivins was not a purist when his personal interests were at stake. The Amarillo Republican wasn’t alone. The same Texas lawmakers who shredded plaintiff rights in 1995 also opened the courthouse door to a new brand of lawsuit. Texas’ so-called 1995 “veggie libel law” made people liable for the “false disparagement of perishable food products.” Supporters of the measure included Bivins and Gov. Rick Perry, who was then agriculture commissioner. Plaintiffs quickly found a deep-pocketed pantsuit to sue.

Cattlemen led by Amarillo’s Paul Engler—a Bivins donor running one of the planet’s largest cattle-feeding operations—sued Oprah Winfrey in 1996 for disparaging American beef in a show on mad cow disease. The cowpoke plaintiffs attributed $12 million in losses to the show, whose host announced on-air, “I have just eaten my last burger.” An Amarillo federal judge drove the cattlemen out of court empty-handed in 1998, ruling that they failed to prove that beef prices track Oprah.

Bivins was an elite “Pioneer” fundraiser, raising more than $300,000 for the presidential campaigns of tort warrior George W. Bush. He became Bush’s ambassador to Sweden in 2004. Bivins did not return calls seeking comment for this story; a member of his household said he had just returned home from an unspecified surgery.

Canyon-based West Texas A&M University announced last October that the Bivins Foundation would help endow a new academic chair in Teel Bivins’ name. If the foundation hits pay dirt with its lawsuit and plows some of the winnings into this academic chair, it could prompt some fascinating lectures by A&M’s Teel Bivins Professor of Political Science.

3/09 Texas Observer