Lawyers to Jockey Over Litigation Venue


Dozens of attorneys next week will gather before a panel of judges in an attempt to influence two key questions in the hundreds of lawsuits triggered by the Gulf of Mexico oil disaster: where the cases will be heard and who will preside over them.

The seven federal judges have been charged with deciding whether or how to consolidate the more than 200 federal civil suits filed by everyone from fishermen to injured rig workers against BP PLC, rig-owner Transocean Ltd. and other contractors tied to the spill.

In mass torts, where a friendly judge or jury pool can translate into hundreds of millions of dollars in verdicts, settlements and attorneys’ fees, the setting is everything. That’s particularly true in the oil litigation, as the spill has touched the lives of many in the Gulf—even the judge who could be chosen to oversee the cases.

“There’s a huge amount of discretion that has to be exercised here,” said Richard Nagareda, a law professor at Vanderbilt University. “All the lawyers involved are much more concerned about who that judge is than whether they have to fly wherever for the next five years.”

The panel, which will meet more than 2,000 miles from the Gulf of Mexico, in Boise, Idaho, will issue an order in the days following the July 29 hearing.

The diversity of the oil suits, which range from civil racketeering and personal-injury suits to claims from out-of-work shrimpers and owners of vacant hotels on the Gulf shore, may prompt the panel to choose several venues.

Many plaintiffs’ attorneys are rooting for New Orleans, thought to be teeming with potential jurors who have been negatively affected by the spill. Defense attorneys want a judge in the oil-friendly city of Houston.

Some attorneys have requested a middle ground: Lafayette, La., close enough for easy access for witnesses and evidence collection but far enough from the spill’s epicenter to avoid anti-oil vitriol.

Another idea being floated among attorneys is importing an out-of-state judge to New Orleans who is immune to spill bias. One faction has suggested New York federal judge Shira Scheindlin, who declined to comment.

Also in the mix is Texas federal judge W. Royal Furgeson Jr., who also happens to be a member of the Boise panel. Judge Furgeson did not return a request for comment. Some attorneys think the panel could split the cases among several judges.

Among other possible candidates is Houston’s Judge Lynn N. Hughes, who has heard arguments on Transocean’s request to limit its liability. “I am perfectly willing to do whatever is assigned to me,” Judge Hughes said.

There is also Judge Carl J. Barbier in New Orleans, who has about five-dozen oil suits before him. Judge Barbier is among the last judges standing in that district, where many have recused themselves, citing conflicts. Judge Eldon Fallon, a go-to judge for mass torts in the district, recused himself because his son-in-law is a plaintiffs’ attorney handling oil suits.

To ward off his own claims of conflicts, Judge Barbier sold off Transocean and Halliburton bonds about a month after the suits came before him. On Thursday, the Fifth Circuit Court of Appeals denied a request from BP and Cameron International Corp., the maker of a blowout preventer that failed on the well, to seek to have him recused, but left open channels for that possibility. Judge Barbier declined to comment.

In Boise, the hearing itself will be largely pro forma, as attorneys already have laid out their arguments for venue in filings before the panel of seven judges.

Also, BP’s $20 billion escrow fund, which promises a faster payout than the courts, has prompted many plaintiffs to drop suits.

For plaintiffs’ attorneys, the hearing is also about showmanship, with everyone who’s anyone in the world of personal-injury and product-liability suits making an appearance in the out-of-the-way city.

“The biggest problem may be: Where are they going to park all the private jets,” joked one lawyer, whose firm has at least one.

The panel’s chief judge, John G. Heyburn II, has said he wants the hearing to last only an hour. It will be up to the attorneys themselves to decide who presents arguments for each venue. A lawyer for the firm Kirkland & Ellis LLP will speak on behalf of BP; Louisiana attorney Kerry Miller will present Transocean’s argument.

Plaintiffs’ attorneys have taken to emails, phone calls and hastily organized dinners in order to divide up the mere minutes they may be allotted for arguments. They will finalize the matter in a courtroom scrum moments ahead of next week’s hearing.

“Most of the lawyers involved are on pretty good behavior,” said Dana Taschner of the Lanier Law Firm, which is representing fishermen and shrimpers. “They don’t want to alienate anybody if it ends up in someone else’s backyard.”

Some attorneys have groused about the lack of five-star accommodations in Boise. But one thing they’ll find that they might not get in the Gulf: oysters. Murphy’s Seafood Bar & Grill is awash in oysters from the non-oil-tainted bays of Washington State.

“They’re fantastic,” said Drake Hooper, the bar’s general manager.

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Stuart H. Smith is an attorney based in New Orleans fighting major oil companies and other polluters.
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