Wednesday, August 13, 2014

The Wisner Trust - How deep do the conflicts run?

If you've followed the Wisner story here on AZ, you know that some members of the Plaintiff Steering Committee for the BP settlement also serve as a team of joint venture (JV) attorneys for the City of New Orleans and The Wisner Trust Advisory Committee in their litigation against BP for economic and environmental damages sustained by the 2010 oil spill.

The JV attorneys that are also on the PSC are Stephen Herman, Calvin Fayard Jr., Walt Leger and James Roy.  A fifth attorney, Fred Herman, is also a member of the JV group representing CNO and Wisner but he is not on the PSC.

These JV attorneys were initially hired by Mayor Landrieu to represent the City's interests in their claims against BP.  They subsequently took over The Wisner Trust Advisory Committee's case through what amounted to a hostile takeover of the Committee's board members thanks to Mayor Landrieu's back room maneuvers.  The Trust was initially being represented by the environmental law firm Waltzer and Wiygul but Landrieu claimed they should be replaced because they had a conflict of interest due to a lawsuit they had pending against the City regarding the Old Gentilly Landfill.

The Wisner heirs, wanting to remain with Waltzer and Wiygul, filed a complaint stating that the JV attorneys were themselves conflicted due to their role as the City's attorneys and even their role as PSC attorneys.

Federal Judge Carl Barbier ruled that it was ok for the JV's to represent both stating:
"The mere fact that the city and the donation may have different types of claims does not create an actual conflict.  Consequently, the court will grant the motion to substitute counsel. If at some future time an actual conflict arises, the court can address the matter at that time."
Perhaps that time is upon us regarding JV firm Herman and Herman.

Turns out senior partner, Russ Herman, has a pending lawsuit against the City of New Orleans over the proposed Tracage residential development in the Warehouse District.  Herman first filed a complaint with the City back in November of 2013 objecting to the height of the building among other grievances.

Since then he's filed a lawsuit against the City of New Orleans, his own client, (as well as the Tracage developers) in an attempt to block the building's construction.  The suit is Herman v. City of New Orleans and the docket # in Orleans Parish Civil District Court is 2014-896.

This is the exact reason the Mayor used to justify the removal of Waltzer and Wiygul as the Trust's attorneys against BP.  I would expect the Mayor is going to remove Herman and Herman as the City's counsel and Wisner's council any day now?  I ain't holding my breath.

As luck would have it, City Council moved to waive the conflict back in April of this year.  Jump to about 02:10:18 in the video.

That's convenient but what say Judge Barbier?

It's become brazenly clear in the past few months that the conflicts of interest with these guys are numerous and detrimental to both the City and the Wisner Trust.  It's also become brazenly clear they are not environmental lawyers and were not properly vetted to handle the Wisner case which at its core is an environmental lawsuit.

In a recent memo regarding complaints against BP for abandoning the clean up on Wisner Beach, BP seems to be keenly aware to the bogus claim the JV attorney's filed on behalf of the Orleans Parish Sheriff's Office for damages incurred to Wisner property from the oil spill.  As I pointed out in this post, OPSO has no interest in Wisner land and could not have incurred any economic loss in respect to Wisner.

BP recently referred to the claims mentioned in that post on page 5 of this legal filing.

Let us also consider that one of these JV firms serving on the PSC turns out to be the firm mentioned on page 60 of the first Freeh report....the firm that allegedly filed fraudulent seafood claims with the DHECC.  If that surfaces, does it become ammunition for BP and how would it affect the City and Wisner's claims against them?

Take it one step further and consider if these conflicts are possibly being used by BP to squeeze the JV attorneys on the City's case, Wisner's case or even in their role as PSC attorneys.

I don't have a law degree but I understand there's a damn good reason why potential conflicts of interest in litigation should be taken with the utmost scrutiny.  The conflicts that exist here could have a staggering monetary effect on both the BP settlement class the PSC/JV attorneys represent as well as the City and Wisner's litigation.


Anonymous said...

As I understand it, W&W just sued the city on behalf of a client. The Herman conflict is much more direct.

Jason Brad Berry said...! That's a damn good point.

Kevin said...

"As luck would have it, City Council moved to waive the conflict back in April of this year. Jump to about 02:10:18 in the video."

Admittedly, the audio portion of the recording is not very loud on my computer, but, I thought I heard a motion made by Councilman Gray to "reserve the city's right to object" to the conflict created by the Russ Herman personal suit against the City. Do you interpret "reserve the city's right" to mean they waived the conflict?

I wonder how much money and other resources Herman's suit has already cost the City in attorney time, paraprofessional time, staff time, experts, possibly outside counsel, etc. Not to mention the loss of income to local workers and the loss of sales tax revenue associated with stopping a sorely-needed construction project.

Kevin said...

Re: My previous comment ...

I got a better sound reproduction and the motion by Councilman Gray was "the City Council asserts its right to object to a conflict of interest in the case Herman v. City of New Orleans, Civil District Court No. 2014-896." He goes on to explain the purpose of the motion was to assert the Council's right to object to an attorney who represents the City and Council also representing an opponent to the City and the Council.

Although they may have missed the point made above by Anonymous, it's still a great motion by Councilman Gray and adopted by the Council.

Jason Brad Berry said...

I'm trying to find out if the CC reserved the right to object.

Jason Brad Berry said...

I'm trying to find out if the CC reserved the right to object.