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Sunday, January 19, 2020

In New Hampshire, it's a secret which lawyers have been hired for PFAS lawsuits, and their contract could be challenged


By John O'Brien | Jun 11, 2019


CONCORD, N.H. (Legal Newsline) – New Hampshire’s attorney general either will be hiring or has already hired a mystery law firm to handle the State’s lawsuits in the burgeoning field of PFAS litigation.

Some government entities have utilized their environmental department attorneys whose salaries are paid by taxpayers, but New Hampshire will be employing private lawyers who will take a chunk out of any recovery in exchange for fronting the costs of the litigation.

However, the office of state Attorney General Gordon MacDonald would not release the identity of the private firm being hired or the terms of its payment. Instead, it said those details will be available later this week.

The State’s two lawsuits were filed more than a week ago by its own attorneys, with no private lawyers signing on. The AG’s office denied a request by Legal Newsline for any retention agreement outlining the terms agreed to by the private lawyers. It's unknown if that's because the agreement hasn't been finalized yet.

An “anticipated large quantity of documents and discovery” led MacDonald to hire the mystery firm, his office said.

Another high-profile, lucrative contract was challenged by pharmaceutical companies, and many of the arguments against New Hampshire teaming with contingency-fee lawyers remain unresolved as this newest arrangement comes to light.

“The services of outside counsel were deemed necessary to fully and efficiently represent the State in these cases,” the AG’s office said.

PFAS are a group of chemicals that are found in firefighting foam and household products like waterproof clothing and non-stick cookware. Lawsuits around the country allege they have made their way into the environment and, subsequently, bloodstreams.

The science on the toxicity of PFAS is challenged by some while lawsuits and proposed legislation pile up during an absence of federal regulation.

Some trial lawyers and scientists allege PFAS exposure leads to an increased chance of illnesses like kidney and testicular cancer. Lawsuits aren’t alleging those problems have happened, just that PFAS have been found in drinking water and in people.

For example, one recent class action seeks to represent everyone in the country who has been exposed to PFAS. Instead of seeking damages for any specific health problems, it seeks damages for battery, as well as negligence and conspiracy. The lawyers are Taft Stettinius of Columbus, Ohio, and Levin Papantonio of Florida.

New Jersey, meanwhile, has taken the lead in regulating the amount of PFAS in drinking water and in hiring private lawyers to file lawsuits against DuPont and 3M.

Michigan plans to follow suit. State AG Dana Nessel has asked for proposals from outside lawyers to hire future litigation.

New Hampshire’s deal with private lawyers could be challenged

The union of state officials and contingency-fee lawyers was already challenged by two pharmaceutical companies served with subpoenas ahead of New Hampshire filing its opioid lawsuit.

In fact, the agreement was invalidated by a state judge before the state Supreme Court overturned her, ruling the issue was not yet properly before the trial court.

As a result, certain arguments made by the companies were never decided. Chief among them is whether the attorney general needs the permission of legislators and the governor to hire private lawyers.

“To interpret the statutory scheme so as not to require the OAG to obtain legislative approval prior to executing a contingency fee contract creates the possibility that the OAG will usurp the legislature’s appropriations function, an outcome that could run afoul of our constitution,” Judge Diane Nicolosi wrote in 2016.

However, the state Supreme Court overturned that decision in 2017, claiming the companies did not have standing to challenge the agreement under the Ethics Code.

State law allows the AG to hire “counsel” and “may pay them reasonable compensation” if he or she has the approval of the governor and a joint legislative fiscal committee, the companies argued.

Gov. Christopher Sununu’s office did not respond to a message seeking comment. He is nominating MacDonald to the state Supreme Court.

Allowing contingency-fee lawyers to represent government agencies creates a conflict of interest, defendants around the country have argued, because state prosecutors should be motivated by justice – not profit.

Possible candidates for the New Hampshire contract

Many prominent plaintiffs firms have their hands in PFAS litigation. Representing New Jersey on its four lawsuits is the firm Kelley Drye.

Kelley Drye’s contract with New Jersey stipulates a tier system for its payment that takes into account when the case was resolved and for how much.

If a case is resolved before trial, it would make 10% of any amount recovered more than $300 million.

From $100 million to $300 million, it would make 15%. From $3 million to $100 million, it would make 20%.

Those percentages increase slightly if the case is concluded after a trial begins.

When it was time to file his opioid lawsuit, MacDonald’s predecessor, Joseph Foster, chose Cohen Milstein. The firm featured former District of Columbia Attorney General Linda Singer, who represented New Hampshire in court filings.

Singer has since moved on to Motley Rice, which is also filing PFAS cases. She heads the firm’s opioid team, as well as its effort to sign clients like AG MacDonald.

In February, the U.S. Environmental Protection Agency announced it would this year begin setting limits on PFAS chemicals and kicked into motion a process that eventually will supposedly lead to adding PFAS as hazardous substances under the federal Superfund law.

Aside from the draft profile and the EPA's promises that there will be established limits, there remains no federal determination about what levels of PFAS are actually toxic. New Jersey passed its own limits, and Michigan is doing the same.

Other firms active in PFAS litigation include lawyers that have, in the past, teamed with government officials for other causes.

In a federal multidistrict litigation proceeding with more than 100 lawsuits in it, two of the co-lead counsel firms are:

-Baron & Budd, hired by state AGs for cases concerning the advertising of Avandia and alleged contamination of water by chemicals called PCBs; and

-Motley Rice, of tobacco settlement fame.

Napoli Shkolnik, which has plenty of government clients for opioid lawsuits, is also listed as co-lead counsel for the PFAS MDL, as is Douglas and London.

One lawsuit in the PFAS MDL was filed by the state of New York, which chose to use its own lawyers. They recently asked that the lawsuit, which seeks cleanup costs related to PFAS at four sites, be sent back to a New York state court.

New Mexico has sued the U.S. Air Force over PFAS and similarly chose to use its own lawyers to handle the case.

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Organizations in this Story

New Hampshire Office of the Attorney General3MDuPontNew Hampshire Supreme Court

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