Anthony Sebok

The Pain Brokers by Prof. Elizabeth Burch (Georgia) describes the terrible treatment suffered by a group of women who had a defective surgical device implanted into their bodies. Unlike the more familiar stories about products liability involving DES or asbestos, The Pain Brokers focuses not on the wrongdoing that led to the defective products reaching the market, but on the wrongdoing that followed the discovery of the defendants’ liability. This is the story of the mass tort system being weaponized against plaintiffs.

The Pain Brokers is a work of general nonfiction which will appeal to various audiences. It takes the reader into a world that many may have already encountered in books like Michael Lewis’ Liars Poker and films like The Wolf of Wall Street. No one in the early 21st Century would be shocked to discover that lawsuits can be commodified and sold just like junk bonds or crypto currency. The book will appeal to readers who believe that America is dangerously obsessed with financialization, to the detriment of the larger society.

Another important audience is lawyers and academics with an interest in mass torts, consumer rights, and complex litigation. For us, Burch’s book is a bracing and disquieting wake-up call. Like A Civil Action, the book offers an accurate picture of the frustrations of the real world of lawyering that many legal professionals will recognize, in contrast to the simplistic picture of litigation offered by Hollywood.

The catalyst for The Pain Brokers is the so-called TVM litigation. The mesh contained in the TVM device was implanted in women’s abdomens to treat a variety of symptoms including pelvic organ prolapse and severe incontinence. In the early to mid-2000s it was an increasingly popular treatment option. By the early 2010s, problem with the device began to emerge. By 2019 the FDA banned its use. By 2021 this litigation spanned seven MDLs covering 100,000 cases.¹

Burch does not spend much time on the origins of TVM and the reason why it reached the market. Her concern is with how the serious wrong done to women by defendants was compounded by those who purported to help women seek redress from the original wrongdoers.

The Pain Brokers focuses on business owners and professionals who, starting around 2013, marketed legal, medical and financial services to women who were not yet represented and had plausible cases that could be funneled into one of the TVM MDLs. Burch chooses, as a narrative device, to focus on three women. The device serves a dual function. First, introducing real people provides a motive for the reader to work through lengthy and dry legal arguments and procedures. Second, it also addresses, albeit obliquely, the possible criticism that her argument is not based on data but on anecdote. One might ask, given the scale of the tort, why is it important to focus on a few victims and a handful of bad actors? The answer, Burch seems to be implying, is that, even if rare, the conduct that she reports in The Pain Brokers is unacceptable.

I am inclined to agree with Burch on this latter point. The problem with the professionals profiled in The Pain Brokers is not that they are unethical (and break the law), but that the “system” of professional regulation and the law itself seemed to play no role at all in slowing them down. In the end, as Burch observes, the worst actors suffered, at worst, corporate bankruptcy and the loss of expected business income, while the only actors who suffered any concrete legal or professional consequences were not the worst actors.

The scheme, as Burch portrays it, was put into motion by the uncontroversial fact that in the TVM litigation, the damages claimed on behalf of a plaintiff in the MDL varied with her post-injury experience. While every woman who received a TVM was wronged by receiving a defective product, some suffered more substantial legally compensable injuries than others. As a general matter, the largest provable economic damages were suffered by those for whom it was medically advisable to have the device removed. The problem, however, is that it was not medically advisable for many of these women to have the device removed.

The scheme, therefore, involved financially interested parties trying to locate women who had genuine claims against the TVM defendants, and inducing them to remove the device. For the scheme to work, these parties had to control the decision points between the initial contact with a woman who had a TVM claim and the decision to remove it and to sue the manufacturer.

Thus, a closed ecosystem was created. The investors created marketing companies which used both legal and arguably illegal means to inform potential clients that they might have a legal claim — what is conventionally known as “lead generation”. The legal means of lead generation are well known — mass advertisements with phone numbers connected to call centers. The illegal means of lead generation, specific (one hopes) to the TVM cases, involve surreptitious access by someone to medical records with confidential information about a patient’s TVM treatment that then led to phone calls that “informed” the potential client about a health risk arising from TVM devices. (To be clear, Burch never claims that these callers misrepresented the actual risk of a TVM, which are real.)

After confirming that the target of the call had a potential claim in the MDL and explaining the future health risks presented by the TVM device, the caller would ask the potential client if she would like to be put in touch with a lawyer. If the answer was affirmative, the lead generator would transfer the potential client to another operator (often in the same office) who, as an agent of a law firm, would arrange to have a retainer agreement sent electronically. Then the law office agent would ask if the client would like to be put in touch with a “medical concierge” who would arrange to have the client flown to Florida to have the device removed “if necessary” at no cost to the client (and separately financed by a litigation financier on a non-recourse basis). Sometimes the sequence would be reversed: after the lead generator made a live contact with a potential client, the woman would be asked if she wanted to be put in touch with the “medical concierge”, and afterwards, the medical concierge would ask whether the woman wanted to be put in touch with a lawyer.

For all this to work, the scheme had to rely on professionals who would preserve and maximize the value of the woman’s claim: a lawyer who would work with a doctor, and a doctor who would ratify the lawyer’s recommendation that the device should be removed (and who would also usually do the operation). Both the lawyers and doctors who populated this scheme were formally or informally compensated by the investors in a way that incentivized them to make professional judgments that aligned with the scheme’s goal of getting women to sue for the damages associated with the removal of the TVM device.

Burch is precise and unsparing in her presentation of the violation of professional ethics on the part of the lawyers and doctors in this scheme. Her focus is on the almost irresistible pressure placed on them by the investors who created the scheme — who were, it should be noted, neither lawyers nor doctors, but finance experts with backgrounds in marketing and Wall Street.

Still, I think it is worth pausing for a moment and asking why our existing system of professional regulation was so impotent. Let me touch on just one example.

Burch observes that, in addition to relying on the mere greed of the lawyers and doctors, the investors sought more durable tools to control whether the lawyer would pass the potential client onto the medical concierge. After all, lead generation — while controversial — is not a novel activity and it does not necessarily lead to the kind of behavior described in The Pain Brokers. Lawyers pay for leads; they are not paid by the lead generators. But the investors, who owned the lead generators and the medical concierge companies, needed to be able to control the lawyers, so that they would keep the scheme going. Therefore, the investors controlled the law firm that made initial contact with the potential clients. But that was (and still is) typically prohibited. How could they do that?

The answer, according to Burch, is that the investors took advantage of a loophole:

They could start their own law firm by exploiting a loophole available only in Washington DC. Back in 1991, the DC Bar Association defied conventional wisdom by tweaking its ethical rules to allow nonlawyers (like lobbyists) and lawyers to form law firms together and reap the collective profits. John [the investor] just needed an attorney with a DC Bar card . . . [so] Alpha Law . . . was born.

Alpha Law, says Burch, was a “Frankenfirm” which had no real physical presence in Washington D.C. It was controlled by non-lawyer partners who operated out of Florida and owned the lead generators that either advertised to or solicited potential clients on behalf of the firm. These same non-lawyer partners also owned the medical concierge whose name the law firm provided when the clients asked who could perform the removal of the device which the law firm informed them was defective.

It is difficult for anyone who knows anything about the law of lawyering — and D.C. Rule of Professional Conduct 5.4(b) in particular — to treat the claim that Alpha Law really fit into a loophole carelessly created by D.C. It was not. D.C.’s Rule 5.4(b) requires non-lawyer partners to “perform[] professional services which assist the organization in providing legal services to clients” (emphasis added). Commentary on Rule 5.4(b) has said frequently and unambiguously that passive financial investment does not satisfy the test for providing legal services.² But there is no evidence that the Florida investors assisted in the provision of legal services to a client of Alpha Law. (Operating a call center does not count.) Also, at least as Burch presents the facts, it is hard to see how Alpha Law was not violating Florida’s prohibition on the unauthorized practice of law, since, even if it was able to practice law in D.C. (which is doubtful), it was not practicing law in D.C., but in Florida, where its agents were speaking to its clients and providing legal advice.

This is but just one example of how the professionals in The Pain Brokers hurt their clients and patients by acting in violation of existing professional duties. Space prevents me from discussing Alpha Law’s other violations of the D.C. Rules or the violations of professional ethics on the part of the doctors to whom it referred its clients.

The real lesson of Burch’s wonderful book is not that we need new rules to deal with new and unconventional forms of financing, but that we need to enforce the rules we have. The fact that one of the principals of Alpha Law is still practicing law today is quite disturbing.

[Editor’s note: For another review of The Pain Brokeers, see Seth Endo, The Lost Story of the Pelvic Mesh Litigants, JOTWELL (April 15, 2026).]

1. Edward A. Wallace and Corey Lorenz, Bellwether Trial Strategies, in Mass Torts in the United States,11.I (Courtney Ward-Reichard ed., 2021).
2. Most recently this point was made in District of Columbia Bar Innovations in Legal Practice Committee Report for Public Comment on Proposed Revisions to D.C. Rules of Professional Conduct 5.3, 5.4 And 5.7 (June 24, 2025) at 3 (on Rule 5.4(b): “Passive investment is not permitted.”