Case Details


Contingency Fees, Control Of Litigation, Hiring Of Outside Counsel

Filing State



U.S. District Court for the Western District of Kentucky




Merck Sharpt & Dohme Corp. v. Conway, Attorney General, No. 3:11-51-DCR E.D. Ky. May 24, 2013).


Attorney general may hire outside counsel on contingent fee basis.

Case Description

Attorney General sued defendant for consumer protection violations, using outside counsel who would e compensated by contingency fees to be withheld from any settlement award resulting from the litigaiton. The attorney general directed the litigation and all potential settlements. Defendant argued its due process rights were infringed because the private lawyers had a financial stake in the outcome of a punitive enforcement action. Court held that outside counsel’s “profit-making motivation is always subordinated to the Attorney General’s common law duty to represent the public interest” and held that the attorney general was appropriately supervising it, concluding, “The Court will not second-guess the AG’s decision to grant a certain amount of “room for the outside attorneys to . . . exercise their professional skills in putting a lot of [the litigation] together.”