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W.R. Grace Acquittal in Asbestos Trial a Victory for Longtime Kirkland Counsel
The American Lawyer
May 11, 2009
It was billed as the largest, most complex criminal environmental prosecution ever. And it ended in dramatic fashion on Friday morning, when a federal jury acquitted W.R. Grace & Co. and three of its executives on all criminal charges that they had contaminated the small Montana mining town of Libby with asbestos, then conspired to cover up the act. (Here's The New York Times on the jury verdict, and here's Bloomberg's story.)
The jury delivered its decision at 8:45 a.m. local time after less than two days of deliberation, following an 11-week trial that attracted national attention after the defense team alleged prosecutorial misconduct. (Quick refresher: Defense lawyers claimed that prosecutors withheld e-mails between a government witness, former Grace executive Robert Locke and an Environmental Protection Agency official, and granted Locke what amounted to an under-the-table promise of immunity for his testimony. Allegations of prosecutorial misconduct arose during the trial, and there were times when U.S. District Judge Donald Molloy was visibly frustrated. At one point, Molloy told prosecutors they did not understand the evidence they were presenting. The judge also declared that prosecutors were guilty of "inexcusable dereliction of duty" in their handling of Locke's testimony, but declined to dismiss the case.)
David Bernick of Kirkland & Ellis was lead defense counsel for W.R. Grace, a longtime client that he's nursed through Chapter 11 bankruptcy. The former Grace executives were represented by Thomas Frongillo of Weil, Gotshal & Manges; David Krakoff of Mayer Brown; Carolyn Kubota of O'Melveny & Myers; Elizabeth Gray of Sowell, Gray, Stepp & Laffitte; William Coates of Roe, Cassidy, Coates & Price; and Stephen Spivack of Bradley Arant Bouldt Cummings. Assistant U.S. Attorney Kris McLean and Justice Department environmental prosecutor Kevin Cassidy led the prosecution.
On Friday afternoon the Am Law Litigation Daily caught up with Bernick for a quick Q&A.
Lit Daily: David, congratulations on the win. Tell me about your closing argument.
Bernick: It was organized to pursue two major points that were united by a common theme. The first point was that the government had not been credible in its prosecution of the case, that the government had consistently presented narrow and misleading evidence and hadn't told the full truth. The second point was that the defense showed that evidence the government presented was insufficient, and that we undertook to tell a much more robust and truthful story of corporate responsibility. We urged upon the jury the idea that we weren't seeking an excuse in the government's poor conduct, but that we wanted a verdict based on the evidence and on vindication.
LD: Do you think the allegations of prosecutorial misconduct weighed into jury's decision?
B: Our case did not depend upon that. We wanted vindication on the merits.
LD: Do you think the DOJ should investigate the allegations of misconduct?
B: No comment. But the DOJ had the opportunity to do the right thing when the problems surfaced. The right thing would have been to dismiss the case. The prosecutorial misconduct was a [reflection] of a case that was rotten. We urged that the court dismiss on that basis. They didn't do it.
LD: What's it like living in Montana?
B: One of the best places I've ever tried a case. It's a hard place to get to, but once you get here it's beautiful. Missoula is a unique place, and I love the people.
LD: What are you doing to celebrate?
B: Getting on an airplane to fly home to see my wife.
LD: Thanks, David.
B: Thank you.
This article first appeared on The Am Law Litigation Daily blog on AmericanLawyer.com.
Associated Press reports contributed to this story.
