NEW ORLEANS – Fifteen states join Louisiana and Mississippi in resisting representation by the plaintiff steering committee U.S. District Judge Carl Barbier picked to lead litigation over the Deepwater Horizon explosion and oil spill.
"It is entirely contrary to the public interest for attorneys general and other state approved counsel to take a back seat to private attorneys in advancing the interests of the state," Arkansas Attorney General Dustin McDaniel wrote to Barbier on Jan. 7.
"The current arrangement runs the risk of allowing the assessment of fees and costs by court appointed private counsel against a state's recovery, over the state's express objection and absent any agreement," McDaniel wrote.
He wrote that Barbier put in place a mechanism to tax cases to pay selected attorneys.
"[V]irtually every case in which a court has used this technique has resulted in the award of a common benefit fee," he wrote.
McDaniel wrote that in multi district litigation over prescription drug Vioxx, a common benefit fee of 6.5 percent amounted to $315 million.
That fee would pale in comparison to fees from state recoveries for damage to natural resources, he wrote.
He wrote that private lawyers have already performed tasks on behalf of Louisiana.
"Deference to private counsel on these and other matters constitutes direct interference with the proper role of an attorney general," McDaniel wrote.
His peers in Alaska, Colorado, Delaware, Idaho, Indiana, Kentucky, Missouri, Nebraska, New Mexico, Texas, Utah, Vermont and Washington attached their names.
They endorsed a plan Louisiana Attorney General Buddy Caldwell proposed last year, to create a separate track for cases involving government interests.
Mississippi endorsed a separate track last year, as did the United States.
Florida Attorney General Pamela Jo Bondi joined the chorus on Jan. 13, adding that a separate track would require a separate steering committee.
"This structure would recognize the sovereign nature of governmental entities, allowing them to litigate, resolve and obtain full recovery for claims that are uniquely governmental and avoiding the possibility of common benefit fee and cost assessments," Bondi wrote.
She wrote that the plaintiff steering committee can't adequately represent Florida's interests.
"Attorney Generals of the Gulf Coast states should instead be permitted to monitor these proceedings and submit pleadings and arguments when they deem such participation necessary in order to protect the substantial interests of their citizens, businesses and natural resources," she wrote.
On the same date, Louisiana's Caldwell requested a hearing on Feb. 2.
Caldwell asked Barbier to appoint liaison counsel for each state, and he nominated Allan Kanner to act as liaison for Louisiana only.
He wrote that the matter has reached a critical juncture because formal discovery and depositions are about to commence.
He asked for an arrangement "free of any lingering questions or confusion about the roles of the various parties and counsel involved."
He wrote that a recent order clarifying rules of pleading was an example of unfairness.
He wrote that while it was crafted with input from the plaintiff steering committee and defense liaison counsel, Louisiana's input was never solicited and the state was unaware of efforts to modify the rules.