Oil spill judge clarifies state counsel order

Jessica M. Karmasek Jan. 31, 2011, 12:54pm


NEW ORLEANS (Legal Newsline) - A federal judge handling litigation against oil giant BP said he has not deprived states of their own counsel in clarifying a pre-trial order last week.

On Friday, U.S. District Judge Carl Barbier clarified a pre-trial order meant to coordinate state and federal government counsel during a status conference for the BP multidistrict litigation, or MDL, in the U.S. District Court for the Eastern District of Louisiana.

Pre-trial order No. 26 appointed Justice Department attorney Michael Underhill as "Coordinating Counsel for the Federal Government Interests" and Alabama Attorney General Luther Strange as "Coordinating Counsel for the State Interests."

"No such thing has occurred," Barbier said during the conference. "Each state still has the right to choose their own representation."

Barbier stressed that the order is meant to "put a structure in place" in order to help coordinate all pre-trial actions in order for all parties to be ready for the BP liability trial in his MDL that is set to start in February 2012.

The day before the conference, Louisiana Attorney General Buddy Caldwell issued a statement saying he was strongly opposed to such a set up.

In fact, Caldwell, along with 16 other state attorneys general, had filed a motion prior to the conference asking that the court establish a separate coordinating committee for the state interests with each state's attorney general to be the coordinating counsel for their respective states.

The motion also requested that the court order that the Plaintiffs Steering Committee, already appointed by the court and consisting of private lawyers not retained by the attorneys general, not be allowed to receive any payment of fees from the recoveries which the states ultimately receive from the defendants.

"This latest order is a direct denial and abridgment of the constitutional rights of the citizens of the state of Louisiana including the constitutional right to their own counsel, and is a discriminatory action that transcends the bounds of proper federal/state relations and state sovereignty rights," Caldwell said in a statement.

On Monday, Mississippi Attorney General Jim Hood also called the Gulf Coast Claims Facility and its $20 billion compensation fund "a surrogate for BP" and urged Barbier to take control of the claims process.

For now, Barbier has tasked Strange with scheduling meetings, appearing at court-noticed conferences, acting on behalf of government interests and coordinating discovery with the plaintiffs steering committee.

The federal judge said that, because much of the discovery being conducted right now is the same among so many parties, the goal is to get all government agencies to cooperate and help expedite the process.

"I realize that down the line there will be some divergence of interest when it comes to damages," he said.

Caldwell, who attended Friday's hearing, told The Associated Press he hasn't ruled out a challenge to Barbier's order.

Meanwhile, Strange said in a statement he was "honored" to serve as coordinating counsel in the case.

"I pledge to work tirelessly with my fellow Attorneys General to ensure that the interests of Alabama and the other Gulf states affected by the oil spill are represented in the litigation," he said.

"The states have claims that are distinct from those asserted by individuals and businesses, and I appreciate Judge Barbier recognizing that distinction and giving the states a seat at the table."

Last week, Strange fired the private lawyers hired by his predecessor, Troy King, to file suit.

King filed two lawsuits in August -- one against the oil company and the other against Transocean, Halliburton and other companies associated with the spill. The suits seek economic and punitive damages, but no amount was specified.

An explosion and fire occurred on Transocean's drilling rig Deepwater Horizon, licensed to BP, on April 20, killing 11 workers and resulting in the largest offshore spill in U.S. history.

King described the spill as "the largest legal disaster ever encountered," and contended the state would be working for years to rebuild its economy.

Strange told Reuters Legal that the outside counsel was unnecessary and too costly for the state.

From Legal Newsline: Reach Jessica Karmasek by e-mail at jessica@legalnewsline.com.

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