How to Sue an Energy Giant

**Wednesday, June 2, 2010
Written by Jeremy Alford

As the regular session enters its final three weeks, state officials are prepping to battle all of the responsible parties connected to the mess in the Gulf.**

When is Louisiana going to actually file a lawsuit against BP or Transocean or someone, anyone...

**Wednesday, June 2, 2010
Written by Jeremy Alford

As the regular session enters its final three weeks, state officials are prepping to battle all of the responsible parties connected to the mess in the Gulf.**

When is Louisiana going to actually file a lawsuit against BP or Transocean or someone, anyone for trashing our beloved coast?

I asked Attorney General Buddy Caldwell that question last week as he jumped from one legislative committee room to another, mostly outlining his strategy for attack, or at least the part that's for public consumption.

Before I approached him, he was huddled with an aide. I briefly heard something about the oil spill, and then the AG lets loose a string of choice words not fit for print. His roots as a pit bull prosecutor are shining in that moment; he is anything but jovial.

Then he addresses my concern. "We are pursing legal action on several fronts. We're extremely busy," he says, now smiling. "You just never hear about it in the media."
Caldwell's office has been assisting coastal residents and businesses with making claims against BP; writing forceful letters to get dredging under way to build up makeshift barrier islands; exploring recourse with the Environmental Protection Agency regarding the "toxic" dispersants being used by BP to cut through the escaped crude; and looking into a project to separate the oil from the water, and then return the water to the Gulf. That's the course his office has been navigating, he notes, but to talk about a lawsuit at this time might be premature. "The worse thing you can do is file something before it's ready. It's one thing to be a politician and to try and get people to do things, and it's another to be a lawyer and get good legal action."

For starters, it could take a couple of years before officials get a firm handle on how much damage has been done. There's also the question of determining whether Louisiana should be the venue for the lawsuit.

Buddy Caldwell

Then there's the money, which Caldwell says he learned a lot about during a recent visit with the former attorney general of Alaska who handled the Exxon Valdez case. "Alaska put up $35 million in 1989 in a legislative session just to get their experts, get their lawyers, working on the main cases, and we need to do that," Caldwell says. "We need the money from the Legislature."

The request could very well turn this regular session, which ends June 21, on its ear. Caldwell estimates Louisiana will need as much as $65 million. He could find some help in legislation being pushed by Senate President Joel Chaisson II, D-Destrehan, but not nearly enough. Senate Bill 731 would allow Louisiana's attorney general to execute contingency-fee contracts to hire private attorneys to help the state handle its potential lawsuit.

Chaisson says he initially started investigating how states such as Texas and Alabama handle contract help on legal matters. He discovered that most states offer contingency fees to private attorneys and that the better programs have strict guidelines and loads of transparency. But he never envisioned it as a mechanism to help Louisiana litigate its way through a disaster like the one it now faces. "Then lo and behold, here comes BP," Chaisson says.

Currently, the state can pay private attorneys by the hour for their services. Chaisson's bill would give them a cut of the funds recovered in a particular case - much like plaintiff attorneys do in standard car-accident cases or other personal injury claims.

It's called a contingency fee because the plaintiff attorneys don't get paid unless their clients - in this case, the state - actually recover money damages from the defendants. Chaisson says BP has billions of dollars to work with, while Louisiana is facing a $3 billion budget shortfall over the next two years. "It's going to be the largest litigation this country has ever seen, and we ought to have the same tool as [our neighboring states]," he says.

Ginger Sawyer, vice president of the Louisiana Association of Business & Industry, opposes the bill. Attorneys are already swarming, Sawyer says, eager to get onboard and don't need an incentive. "Right now, BP's like fish in a barrel."

As for BP, The Chicago Tribune reported that the company has enlisted the services of the Windy City's own Kirkland and Ellis, no stranger to oil spill litigation. The first thing on the defendant's agenda is influencing where the related lawsuits will be heard. BP wants Houston, the paper reports, no doubt because it's the center of the American petroleum industry, while others are lobbying for New Orleans, where juries are famously pro-plaintiff.

While that first round of legal drama gets ready to unfold, the Gulf tide will continue pushing in additional crude - and, of course, more plaintiffs. Let's hope the state finds a front row seat.

Jeremy Alford can be reached at [email protected]

A Green Wave Victory

The environmental disaster in the Gulf of Mexico was also bubbling beneath the surface last month when the Senate Commerce Committee rejected legislation that would have dropped the hammer on Louisiana's university law clinics. Although Senate Bill 549 went down in flames, its potential passage scared the daylights out of law school officials and supporters at LSU, Loyola, Southern University and Tulane.

Sen. Robert Adley, R-Benton, wanted to amend his bill to target only Tulane's Environmental Law Clinic - the only one of its kind in the state - but the committee ignored Adley's plea. Committee members knew the bill was doomed, so they wasted little time killing it after two hours of debate.

The Louisiana Chemical Association and the Louisiana Oil and Gas Association backed Adley's bill, due chiefly to the law clinic's long history of going after their members. "Their mission seems to be to attack business and business advancement and industrial advancement," says LCA President Dan Borne.

Tulane University President Scott Cowen says law clinics traditionally serve those most in need of legal assistance, which is one of the reasons the state helps pay for the process. Had the bill passed, Cowen adds, the poorest citizens of Louisiana "would have been thrown under the bus" and denied access to justice. No amendment could have salvaged the bill, Cowen asserts, adding, "The bill isn't even fixable."

The millions of barrels of oil spreading throughout Gulf waters are another reason law clinics are needed, Cowen says. "We are dealing with one of the most catastrophic environmental issues we've ever had in the history of the United States, and yet we're here arguing about cutting off access to people and to those who couldn't get it without law clinics."

Who knows? The Tulane Environmental Law Clinic may contribute something of its own to the wave of lawsuits that are sure to continue cresting for some time.  - JA