lukegilman.com : The Blawgraphy
Life of a Law Student, University of Houston Law Center

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Please note: I'm no longer updating this particular blog, but keep it around for archival purposes. Visit me at the current blog at www.lukegilman.com

Looking for the Key to Unlock the Floodgates in Climate Change Litigation

Stephan Faris’ Conspiracy Theory in the new issue of the Atlantic posits climate change as this era’s Tobacco settlement, profiling the efforts of Steve Susman and Steve Berman.

As scientific evidence accumulates on the destructive impact of carbon-dioxide emissions, a handful of lawyers are beginning to bring suits against the major contributors to climate change. Their arguments, so far, have not been well received; the courts have been understandably reluctant to hold a specific group of defendants responsible for a problem for which everyone on Earth bears some responsibility. Lawsuits in California, Mississippi, and New York have been dismissed by judges who say a ruling would require them to balance the perils of greenhouse gases against the benefits of fossil fuels—something best handled by legislatures.

But Susman and Berman have been intrigued by the possibilities. Both have added various environmental and energy cases to their portfolios over the years, and Susman recently taught a class on climate-change litigation at the University of Houston Law Center. Over time, the two trial lawyers have become convinced that they have the playbook necessary to win big cases against the country’s largest emitters. It’s the same game plan that brought down Big Tobacco. And in Kivalina—where the link between global warming and material damage is strong—they believe they’ve found the perfect challenger.

If there’s a guy worth watching as a student for insight into the business of law, it’s Susman. After reading John Jenkins’ The Litigators, my passing interest is perhaps bordering on obsession. Although I’m skeptical of the merits and/or chances of climate change litigation, the fact that these guys are after it makes me more than a little intrigued, particularly about how exactly they plan to make such a case.

In February, Berman and Susman—along with two attorneys who have previously worked on behalf of the village and an environmental lawyer specializing in global warming—filed suit in federal court against 24 oil, coal, and electric companies, claiming that their emissions are partially responsible for the coastal destruction in Kivalina. More important, the suit also accuses eight of the firms (American Electric Power, BP America, Chevron, ConocoPhillips, Duke Energy, ExxonMobil, Peabody Energy, and Southern Company) of conspiring to cover up the threat of man-made climate change, in much the same way the tobacco industry tried to conceal the risks of smoking—by using a series of think tanks and other organizations to falsely sow public doubt in an emerging scientific consensus.

This second charge arguably eliminates the need for a judge to determine how much greenhouse-gas production—from refining fossil fuel and burning it to produce energy—is acceptable. “You’re not asking the court to evaluate the reasonableness of the conduct,” Berman says. “You’re asking a court to evaluate if somebody conspired to lie.” Monetary damages to Kivalina need not be sourced exclusively to the defendants’ emissions; they would derive from bad-faith efforts to prevent the enactment of public measures that might have slowed the warming.

Carl Icahn reminisces about Tort King Lawyer Joe Jamail, Texaco-Pennzoil case

Via Houston’s Clear Thinkers, “Corporate Raider Carl Icahn caught on video at Caroline’s Comedy Club in Manhattan talking about the Texaco/Getty Oil Lawsuit.” Icahn’s Joe Jamail impression is worth the price of admission.

Suing Chinese Companies

In Liability Lawyers Struggle to Pierce the Chinese Curtain, the Washington Post chronicles the obstacles facing American lawyers in holding Chinese companies accountable for injuries caused by their products in the US.

The opacity and scarcity of regulation of Chinese business practices make investigations and evidence-gathering cumbersome and frustrating. Headquarters offices, once found, are often bare-bones operations. Records may be spotty or nonexistent. Unaffected by court orders, the level of cooperation is low. Sometimes the Chinese company will not show up to a U.S. court. [One lawyer] estimates that a lawsuit against a Chinese company typically lasts 10 years and costs five times as much as a normal case.

Houston Alum John O’Quinn Making News Again…

Houston Law alum John O’Quinn is Above the Law’s Lawyer of the Day today. OK, so maybe it’s not for the reasons we might hope, but any publicity is good publicity right? Well….

According to the Houston Chronicle:

Houston plaintiff lawyer John O’Quinn has been ordered to refund at least $35.7 million to more than 3,000 former breast implant litigation clients, according to an arbitration panel decision released today.

Apparently O’Quinn’s contracts with the plaintiffs didn’t make it sufficiently general expenses would be deducted from their eventual award. Hmmm…. How many plaintiffs do you see turn around and sue the lawyer that won a big victory for them in the courtroom? Makes one wonder what else is going on here.

More from: Houston Chronicle, Austin American-Statesman.

One of my upcoming assignments is to draft an attorney-client retainer agreement. Note to self – might want to go back over that agreement when it comes time to do the billing.

Professor Richard Alderman on the 54 million dollar pant case

In this Chronicle op-ed Houston Law Professor Richard Alderman points out What the ‘pant rant’ on talk radio misses about lawsuits (archive), advocates for tort reform are pointing to Judge Pearson’s $54 million dollar pant case for all the wrong reasons. The judge tossed this case and Pearson out on his proverbial can.

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