Private attorneys use state power against defendant

WEIRTON – Class action attorneys have demanded information from a company they sued, not through their own power but through the power of the people of West Virginia.

Eric Frankovitch and Michael Simon of Weirton, appointed as deputy attorney generals Jan. 27, served a subpoena 15 days later against Leviton Manufacturing of Little Neck, New York, a company they sued in Marshall County in 2003.

The name of Attorney General Darrell McGraw Jr., appeared on the subpoena, but he did not sign it. Frankovitch and Simon signed it.

It said that failure to comply "may result in a subsequent enforcement proceeding in the circuit court, the filing of a complaint in the circuit court or both."

Leviton's attorney, Vince Lonigro of New York, said, "I thought I had seen it all, but this takes the cake."

He called the subpoena egregious and horrific. He said he would move within ten days to quash it.

"It is an effort to use the attorney general's office to try to compel the production of documents without the usual discovery procedures," he said

"We are going to protect Leviton's interest in a West Virginia court," he said. "We are willing to take it to whatever length is necessary."

Frankovitch and Simon sued Leviton on behalf of five Marshall County residents who bought "quick connect" receptacles that Leviton made.

They claimed Leviton knew or should have known that the receptacles could cause short circuits, though they did not claim that the receptacles injured anyone.

Their complaint listed Hugh Lambert and Linda Nelson of New Orleans and Seth Lesser of New York as attorneys who would seek to appear after filing of the complaint.

Lonigro said Lambert has led national litigation against Leviton and competitor Eagle Electric. He said no court has certified a class action in any of the cases.

He said plaintiffs have not alleged injuries. He said, "Some states do not like this no-injury type of product liability case."

In a California case, he said, he moved to dismiss and called the case a sham. He said a judge dismissed it and agreed that it was a sham.

He said Leviton removed the Marshall County case to federal court, but federal court remanded it.

He said Frankovitch and Simon had not served documents in the case in eight months.

The letters that deputized Frankovitch and Simon did not refer to the Marshall County case. The letters appointed them to pursue "an action that the State of West Virginia will bring involving Quick Connect electrical receptacle products."

The subpoena referred to an investigation "regarding possible violations of the West Virginia Consumer Credit and Protection Act."

Chief Deputy Attorney General Frances Hughes, who signed the appointment letters, said March 1 that she would not comment on the investigation.

Frankovitch and Simon work for the Weirton firm of Frankovitch, Anetakis, Colantonio and Simon.

According to Citizens Against Lawsuit Abuse, Frankovitch and Simon each contributed $1,000 to McGraw's 2004 campaign. So did two other attorneys with the firm, Mark Colantonio and Carl Frankovitch, according to the group.