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Last summer, when New Jersey picked New Orleans toxic-tort lawyer Alan Kanner to prosecute corporations for natural resource damages, some attorneys wondered why local firms weren’t getting the work. But now that the state has to plow through 4,000 claims, some New Jersey firms are getting a piece of the pie, with more firms to be retained shortly. The Attorney General’s Office invited firms to submit their credentials in environmental work and complex litigation and to explain their ability to handle the volume. After months, their qualifications are still under review. Meanwhile, Kanner needs immediate help to get things moving, and he’s picked four firms to plunge into the task. The firms, primarily using paralegals working with deputy attorneys general in Trenton, have been reviewing files for the past several months. One Trenton official labels their efforts “grunt work.” Among the firms is North Brunswick’s Lynch Martin and specifically partner John Keefe Jr., head of its 18-lawyer class-action and mass-tort department in Shrewsbury, who began working with Kanner on state natural resource damage claims during the first half of last year. Keefe had brought Kanner in to help handle a case on behalf of homeowners suing Ciba-Geigy Corp. over alleged groundwater contamination from a Toms River dye plant. The case is pending. Keefe was also Kanner’s co-counsel in a national class-action suit against Cooper Tire & Rubber Co. over allegedly defective tires. Last October, Middlesex County Judge Marina Corodemus approved a settlement worth $1 billion to $3 billion, along with negotiated legal fees of $27.5 million and $2.5 million for monitoring. Keefe confirms that Lynch Martin continues to work on files for the state, but otherwise defers to the attorney general. The other firms working on the state’s natural resource damage claims are Stark & Stark of Princeton (mainly co-managing partner and litigation department head Lewis Pepperman), Edison’s Eichen Levinson (through name partner Barry Eichen) and Nagel, Rice & Mazie (led by Bruce Nagel). Efforts to reach Pepperman and Nagel last week were unsuccessful. Eichen, whose firm includes a doctor/lawyer as well as a nurse, and which has served on the plaintiffs’ steering committees in the Fen-Phen and Rezulin litigations, says he has had a paralegal in Trenton for five months and has been working closely with Lynch Martin and Kanner. He says the goal is to get polluters “to clean the land and restore the land and waterways to their prior states.” State Department of Environmental Protection Commissioner Bradley Campbell has said that the state’s goal is not only to have the corporations pay for environmental restoration, but where possible to have polluters restore natural resources on or near their sites. The four firms are working without a contract, pending their selection by the attorney general, and conceivably could be paid nothing should they ultimately not be chosen. But that is not likely. In fact, Mariellen Dugan, chief of staff to Attorney General Peter Harvey, says that the four firms have already been notified that they have been qualified by the state. At present, only Kanner has a retainer agreement as special counsel. Under that agreement, he has the authority to hire associate lawyers in his pursuit of NRD claims. Assuming the four firms are retained, they would be paid retroactively. Going forward, contracts to all the plaintiffs firms are expected to be on a contingent-fee basis. Dugan says that there will be more than a dozen firms on the final qualified list. She adds that some firms will be fully qualified to handle NRD files independently of Kanner, while others will be qualified to work with Kanner. Some firms who lack the experience or manpower will be conditionally qualified and will have to associate themselves with one of the fully qualified firms. Those firms who submitted proposals will be notified shortly, Dugan says. Campbell said last year that he reached out for Kanner because of his national experience with such claims. Campbell had worked with Kanner during the Clinton administration, when Campbell was on the White House staff and was a regional commissioner of the federal Environmental Protection Agency. Kanner, who grew up in Vineland, worked with the DEP and the Attorney General’s Office to help develop guidelines on how to proceed with the claims. Last September, Campbell ordered 18 companies that own 66 Passaic River sites to assess the natural resource damages and give those assessments to state lawyers as a starting point for negotiating settlements. Campbell and Attorney General Peter Harvey are offering to use a lower standard for companies that voluntarily settle and a tougher one for those that choose to fight. Kanner is the hammer being used by Campbell and Harvey for those parties who choose to go to court. On Feb. 9, the industry fired back with a suit against Campbell on behalf of five business organizations. The suit, filed in Mercer County, calls the dual-standards approach a “governmental shakedown.” The plaintiffs also allege that Campbell bypassed the state’s rule-making process, impermissibly denying the corporations a say in development of the standards. The suit also contends that Kanner’s contingency retainer agreement is unethical because it gives a public lawyer, who must remain neutral, an incentive to “line his pockets.” Campbell calls the suit “flawed and largely frivolous.” The DEP has identified 4,000 claims, excluding thousands more by individuals or small business that the state is not pursuing because they are not cost-effective. The state’s claims are based on state statutes and case law that give states the right as the holder of the public trust to collect damages for the loss of natural resources, such as fishing, swimming, boating or clean drinking water.

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