La. AG lashes back after authority stripped in BP litigation

Steve Korris Jan. 10, 2012, 9:13am


NEW ORLEANS (Legal Newsline) - Louisiana Attorney General Buddy Caldwell protests to appellate judges that U.S. District Judge Carl Barbier, Gov. Bobby Jindal and Alabama Attorney General Luther Strange snatched away his authority in Deepwater Horizon litigation.

On Friday, Caldwell petitioned the U.S. Court of Appeals for the Fifth Circuit to overturn Barbier's order reserving 4 percent of state settlements as a possible source of fees for a plaintiff steering committee.

Barbier reserved 6 percent of settlements with private parties.

His order scalded Caldwell and lauded Strange, the only representative on the steering committee for state and local governments.

In response, Caldwell swung hard at Barbier and harder at Jindal for hiring as special counsel the Dallas firm of Baron and Budd.

Scott Summy of Baron and Budd serves on the steering committee's executive committee.

Caldwell objected to Jindal's selection of Baron and Budd in December, telling Barbier it seemed highly inappropriate under the circumstances.

"The Governor's chosen special counsel stands to receive a potentially large fee in connection with the payment of common benefit fees out of a holdback fund," he wrote.

In his appeal, Caldwell attacked Barbier first.

He branded the order as "an extremely disappointing, false and inaccurate diatribe."

It was purely personal, wholly inappropriate, and not relevant, he wrote.

It violated state sovereignty, Louisiana's constitution and laws, and the U.S. Constitution.

It granted "sweeping and unprecedented relief from the recoveries of a sovereign state without consent," he wrote.

The steering committee would, in effect, control the presentation of Louisiana's case at a fault allocation trial Barbier plans starting next month, Caldwell wrote.

He wrote that his right to represent those who elected him free from interference of an attorney general of another state shouldn't hinge on his cooperation with the committee.

"There is no basis in the law to justify the circumscription of the lawful authority of an attorney general on such a subjective and meaningless criterion," he wrote.

He wrote that Barbier's finding that he often obstructed and frustrated the progress of the litigation was untrue and unnecessary.

"The court offers no examples to justify this negative attack; indeed, there are none," he wrote.

"Additionally, one might ask what the relevance of such a comment is within the context of the motion before the district court, other than that the court has some apparent abiding animus towards the A.G.," he wrote.

He wrote that perhaps the accusation rested on his challenge to appointment of another state's attorney general to represent Louisiana's interests.

In another irrelevant and untrue attack, according to Caldwell, Barbier wrote that the committee offered to help the state comply with discovery orders.

There was no evidence from which Barbier could conclude that the committee actually assisted the state in discovery production, he wrote.

Barbier lashed out at him for paying fees to multiple lawyers from five outside firms in contrast with Strange's collaboration with the committee.

The statement didn't address the desirability of a holdback fund, he wrote.

"It is rank political comment and an attack in an area that is no concern of the district court," he wrote.

"The lawyers the Louisiana attorney general hires to represent the state's interest and the compensation paid to them, which is on an hourly basis, is simply irrelevant to the creation of a holdback fund."

He wrote that two of five firms he retained haven't been active in the case for over a year and another firm has a limited role in depositions.

He wrote that his decision not to sign an agreement with the committee was made with a goal of maximizing for the benefit of citizens and the environment.

He wrote that Barbier's promotion of the committee was troubling, given the prospect of a future fight over fees.

He wrote that the order would almost certainly give rise to ancillary litigation.

He wrote that it ambiguously distinguished monetary from non monetary payments.

He asked if monetary payments would include those dedicated to establishment of environmental projects.

"The payment for the provision of such projects is expressed in monetary value, although the projects themselves may be implemented by defendants and, as such, money may not actually change hands," he wrote.

"As further proof of the ambiguity of the holdback order, the Gulf Coast Claims Facility almost immediately suspended all payments due to a number of vague and unworkable provisions affecting the GCCF," he wrote.

He wrote that Deepwater Horizon rig operator BP raised concerns in a motion for clarification and reconsideration.

"Granting a hearing to the affected parties before entering an order could have prevented many of these problems," he wrote.

He wrote that the order was also vague about whether it applies to future transfers of funds under an early restoration agreement BP and Gulf Coast states signed last year.

"The court says repeatedly that the holdback order is not an award of fees and that an award of fees will come only after a due process hearing," Caldwell wrote.

"However, the court's consistent promotion of the plaintiff steering committee as the legal resource of choice and the repeated lavish praise of the work of the plaintiff steering committee belie this assurance."

Next he attacked Jindal for signing an agreement with the committee to limit the state's ability to contest fee awards from the holdback fund.

"That document purports to extinguish the right of Louisiana to appeal any award of fees made by the district court to the PSC out of a holdback fund," he wrote.

"The holdback agreement signed by the Governor further provides that the district court has exclusive authority to interpret and apply the terms of the document," he wrote.

He wrote that on Friday, Nov. 4, Jindal's staff set a meeting for Jindal, Caldwell, and their staffs on Monday, Nov. 7.

"However, on Sunday evening, Nov. 6, the Governor's staff called the AG's counsel and cancelled the meeting, stating that they believed the AG would attempt to intimidate the governor," he wrote.

"They would not let the AG talk to the Governor."

Allan Kanner, Elizabeth Petersen, David Pote, Douglas Kraus, and Allison Shipp, all of Kanner and Whitely in New Orleans, worked on the petition.

So did Henry Dart and Grady Flattmann, of Dart's firm in Covington, and Allen Usry, of Usry, Weeks and Matthews in New Orleans.

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