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While many lawyers and bar associations are helping their Gulf Coast colleagues and others face the aftermath of Hurricane Katrina, some say the next big wave to hit the region could be litigation. Government has built a formidable complex of immunities to protect it from suit, but potential plaintiffs-from New Orleans’ poorest citizens angered by the conse-quences of decades of political neglect to insurance companies facing millions of claims and property damage exposures exceeding $100 billion-could make for the biggest litigation in history. J. Richard Cohen, president and CEO of the Southern Poverty Law Center, said that the federal Flood Control Act of 1928, enacted after the great 1927 Mississippi flood, forecloses actions against the U.S. Army Corps of Engineers for alleged failure to maintain the levees, though there could be “hundreds, thousands of potential law suits against a variety of parties.” But Robert A. Clifford of the Clifford Law Firm, a Chicago-based national personal injury plaintiffs practice, agrees with lawyers and experts who say it is too early to tell what will happen. “My visceral reaction was and is that the obstacles to claiming are far greater than any rights to claim that may exist,” said Clifford, chairman of an American Bar Association task force designated to respond to the Katrina disaster. Clifford, who was liaison counsel for those with property damage claims in the World Trade Center litigation, also said that it was likely that Congress would end up legislating a claims mechanism. Massive class action? Russ M. Herman of Herman, Herman, Katz & Cotlar of New Orleans said that Louisiana’s lawyers, one-third of whom practice in New Orleans, are focused now on getting their lives and practices back together, and are seeing to the welfare of their less-advantaged employees.
Related cases In June, flood-insured Maryland victims of Tropical Storm Isabel in September 2003 filed an action in Maryland federal court against the Federal Emergency Management Agency, its contractors and insurers asserting a Bivens claim (from Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), a judicially created constitutional claim outside the purview of the Federal Tort Claims Act) for deprivation of liberty and property without due process of law, among other causes of action. Moffett v. Computer Sciences Corp. , No. 8:05-cv-1547 (D. Md). A year before, several of the same Maryland plaintiffs filed a breach of contract class action against nine insurance companies in the same district: Howell v. State Farm Insurance Cos. , No. 1:04-cv-1494 (D. Md). Both cases are pending.

Gulf Coast lawyers have little time to worry about suing anyone over “the whole disgraceful situation,” Herman said, but he added that he would not be surprised if “a massive class action” were filed later against the Federal Emergency Management Agency director and everyone that responded to the disaster. In June, flood-insured Maryland victims of Tropical Storm Isabel in September 2003 filed an action in Maryland federal court against the Federal Emergency Management Agency and their insurers asserting a Bivensclaim (from Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), a judicially created constitutional claim outside the purview of the Federal Tort Claims Act) for deprivation of liberty and property without due process of law, among other causes of action. Moffett v. Computer Sciences Corp.,No. 8:05-cv-1547 (D. Md). The case is pending.

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