Photo provided by Harke & Clasby
One of the lawyers on this year's ballot for the Lawdragon 500 Leading Lawyers in America is Lance Harke, the name partner of Miami litigation boutique Harke & Clasby. Harke has earned hundreds of millions of dollars for consumers since starting his own firm in 1998. He specializes in complex, multi-state litigation and has handled cases involving deceptive drug marketing, products liability, personal-data privacy, deceptive pricing and anti-trust claims, among many other issues. Harke also is lucky enough to practice with his wife, Alison Harke, who is an associate at the firm.
Recently, Lance Harke served as consumer allocation counsel in the class-action suit against Pfizer over the marketing of prescription painkillers Bextra and Celebrex. A federal judge in San Francisco recently approved the $89-million settlement in that case. Harke also is co-lead counsel for consumers suing Heartland Payment Systems for a data breach that exposed massive amounts of personal financial information.
Lawdragon: Can you describe to our readers what is at issue in the Heartland data-breach case?
Lance Harke: Heartland is one of the world's largest credit card transaction companies. The case involves an alleged security breach in Heartland's processing system sometime in 2008, and that consumers' private financial information - names, card numbers, expiration dates, and other encoded information on the cards - was stolen as a result of the breach. According to Heartland, its internal investigation revealed malicious software that compromised data from its network. We are currently pursuing claims for violation of the Fair Credit Reporting Act, as well as common law claims such as negligence and breach of contract.
LD: Have you seen more of these privacy-breach cases in your practice, or do you expect to?
LH: Unfortunately, yes. Data theft has become extremely prevalent in the electronic age. People from all walks of life have their personal and financial information in electronic form stored on all kinds of databases. In some cases the information is stolen by hackers or criminals, however, in a majority of them, employees from the companies who maintain the databases (i.e. banks, insurance companies, schools, hospitals, etc.) access the information with the intention of selling it to marketers and anyone who will pay for it.
LD: Have you gained any insight into what consumers can do to protect their data and identity?
LH: To combat this, consumers should keep track of their spending habits and regular monthly expenditures. That way they can see if anything is out of the ordinary occurs. Further, consumers should not consent to allow their information to be shared with "corporate partners" or "corporate affiliates." The less people who have access to their information, the better. Also, consumers can review their credit reports once a year for free. They should look for entries which are not theirs. We have found that once an identity is stolen, it can take hundreds of hours to remedy the problems associated with it.
LD: Are you pleased with the outcome of the Bextra/Celebrex litigation?
LH: I was extremely pleased with the results obtained in the Bextra/Celebrex litigation. We were able to provide cash payments to consumers and third party payors to compensate them for their damages associated with paying for these prescription drugs. Some consumers received 100% of their damages back. This is truly remarkable considering the risks of litigation.
LD: Can you describe what your responsibilities were as allocation counsel? What are the challenges of this role?
LH: As allocation counsel, it was my job to negotiate with Third Party Payors and Insurance Companies as to how the settlement funds would be split between them and consumers. It is my goal to get as much of the funds as possible for individuals. It is a very challenging assignment because the settlement is completed and moving to final approval and yet we are still arguing the merits of each consumer's case and why they deserve more than insurance companies. The pressure to get enough funds to pay out all of the consumer claims is very challenging. We accomplished it on behalf of my consumers.
LD: Have you always focused on plaintiffs' and consumer cases?
LH: For the first ten years of my practice I was a Big Firm litigator for Steel Hector & Davis, where I handled a variety of large commercial cases. When I formed my own firm in 1998 we had the opportunity to get involved in some consumer cases on the plaintiff side, and over the years have taken more and more of those cases. My firm still handles a significant number of traditional business disputes.
LD: What made you want to get into consumer-side law?
LH: Over the last eight years we have seen more and more examples of corporate misconduct, with consumers often the ones left holding the bag. It's been very rewarding to see your work result in a tangible benefit to real people. That's a satisfying feeling.
LD: Is there a verdict or settlement early in your career that you feel really helped establish your name and reputation?
LH: At Steel Hector I was part of a demanding trial team that was brought in specifically to try high-risk and difficult commercial cases. I learned under my mentor Larry Bemis to organize large volumes of documents and discern a narrative early before the other side does it for you.
LD: ?Is there a case or client in your career that stands out as particularly meaningful?
LH: In the matter of Eugene Francis v. Serono Laboratories, Inc., et al. (the case was No. 06-10613 PBS in U.S. District Court of Mass.) I had the privilege of representing a class of HIV/AIDS patients who were the victims of a deceptive and illegal marketing, sales and promotional scheme regarding the AIDS wasting prescription drug Serostim.
Serostim was marketed as a drug which would combat the significant and rapid weight loss associated with the AIDS disease. Patients were given a "test" to diagnose them with AIDS wasting and then prescribed the drug at exorbitant prices, sometimes as much as $30,000.00 per treatment course for the uninsured. We alleged that the defendant-created "test" improperly diagnosed all patients with AIDS wasting regardless if they actually had it. This increased the defendants' sales dramatically. We further alleged that the drug was ineffective at combating AIDS wasting. We were able to obtain $24 million to compensate for the losses associated with the sale of this drug.
LD: I realize you personally handle a wide range of cases, but is there any trend you're seeing in terms of the types of cases your firm is taking on?
LH: We have seen a large uptick in medical device and pharmaceutical cases, and with how certain drugs and products are marketed.
LD: What advice would you give to law school students who are wavering between a corporate law firm or heading into a smaller plaintiffs' practice?
LH: If you enter Big Law, it's important to work with people you trust and who you believe can help you develop your practice. What you can learn there can be invaluable. On the other hand, there are so many top lawyers with niche or small practices that you certainly can find the same kind of mentoring in a smaller environment.
LD: Can you describe how you came to practice law with your wife? Do you find yourself talking a lot about work at home?
LH: My wife and I met in law school and afterwards she went to work for some very good plaintiffs' class action lawyers who helped train her and hone her skills from that perspective. When her younger sister and I left Steel Hector and formed our own firm it seemed like a natural fit to ask her to join us. We are all very close and share the same perspective on most things, so it's been easy. And yes, we do wind up talking about our cases at home, when we're not watching "Mad Men."
LD: What do you see yourself doing in 10 years? Do you ever imagine moving away from a law practice?
LH: I love every minute of what I do and can't really see myself stopping anytime soon. That said, is it possible to manage my practice from a sailboat off the coast of Maine? Maybe in ten or so years I will find out.