TITLE
title
Request by County Attorney’s Office to Retain Outside Legal Counsel With Levin Team for Potential Per and Polyfluoroalkyl a/k/a PFAS Related Litigation Including Approval of Contingent Fee Agreement
body
BRIEF OVERVIEW
Background
Recent testing has discovered per- and polyfluoroalkyl substances (“PFAS”) within Hernando County. PFAS are a group of man-made chemicals that were used for decades in industrial and household products, such as stain and water-repellant apparel and fabrics, food packaging, cleaning products, non-stick cookware, and Aqueous Film Forming Foam (“AFFF”) used to extinguish fires. Because PFAS accumulate over time, do not break down easily, remain in and move through the environment for decades, and have been linked to certain health impacts, such as cancer and birth defects, many utilities, state attorneys general, and local governments across the United States have brought litigation against the manufacturers of PFAS and other possible culpable parties to recover damages as well as the costs associated with remediation and water
treatment to rid their communities of these chemicals.
The County Attorney’s Office has evaluated the viability of legal claims against PFAS manufacturers and other culpable parties, and now recommends that the County should engage in litigation to recover costs and other damages associated with the existence of PFAS within the County.
The County Attorney’s Office recommends that the Board retain the Levin Team as outside counsel for the PFAS litigation. The Levin Team consists of five firms: Levin Papantonio Thomas Mitchell Rafferty & Proctor, P.A.; Taft Stettinius & Hollister LLP; Douglas & London, P.C.; Law Office of Kevin Madonna, PLLC; and SL Environmental Law Group PC.
As the Board is aware, the Levin Team has been successfully representing Hernando County in the ongoing opioid litigation.
The Levin Team provides the County with the unique combination of: an impressive history and experience with PFAS contamination litigation around the country; pricing; and unmatched leadership on behalf of all plaintiffs in the nationwide, multi-district PFAS litigation currently underway in the United States District Court for South Carolina (the “PFAS MDL”). Participating in the PFAS MDL is currently the anticipated route for the County’s proposed PFAS litigation. (The PFAS MDL, In Re: Aqueous Film-Forming Foam Product Liability Litigation, consolidates numerous federal cases from local jurisdictions-all involving PFAS contamination caused by the use of AFFF-into one central case for purposes of pretrial coordination, discovery and possible trials.)
The Levin Team is comprised of five law firms and is collectively staffed with over 900 attorneys available to assist the key personnel representing the County with this complex litigation and any appeal that may be filed. The Levin Team has a detailed understanding of a successful strategy for the County’s PFAS litigation and includes team members who have been handling PFAS-related litigation on a continuous basis for decades. In addition, numerous members of the Levin Team have experience representing governmental entities in large complex environmental contamination cases, including currently representing nine public entities in PFAS litigation. The Levin Team has extensive knowledge and expertise managing PFAS jury trials and settlements as well as multi-district and class action litigation. The Levin Team also includes an internationally-recognized attorney, Robert A. Biliot, who, in 1999, brought the very first PFAS case and obtained successful jury verdicts in several PFAS cases that were later consolidated into the original lawsuit. In the past, members of the Levin Team have worked together to obtain verdicts in jury trials and successfully settle at least three PFAS cases against E.I. DuPont de Neumors and Company (“DuPont”) and The 3M Company (“3M”)-potential defendants in the County’s proposed PFAS litigation.
As a result of this decades-long experience with PFAS litigation, the Levin Team brings with it an expansive library of data, research and resources as well as relationships with potential expert witnesses to provide the best representation to the County. Indeed, over years of working in the PFAS field on cases against the largest manufacturers and distributors of PFAS products, the Levin Team has already taken dozens of depositions of representatives from PFAS manufacturers and has accumulated an extensive repository of documents consisting of over six million pages focused on many of the companies that will likely become named defendants in the County’s PFAS case. Because the County will be entering the PFAS MDL at a point when the litigation has already been proceeding for several years, the Levin Team, with its significant existing resources, understanding of the evidence and experience in the field, will give the County a litigation team that is best positioned to hit the ground running.
Further, the Levin Team has an unmatched number of members serving in leadership roles in the PFAS MDL that were appointed by the Court, including one of the three Plaintiffs’ Co-Lead Counsel for the entire case (Michael London); members on the Plaintiffs’ Executive Committee (the “PEC”) (Richard Head, William Jackson, Wesley Bowden); and Advisory Counsel to the PEC (Robert A. Biliot). In addition, the Levin Team has representation on almost every committee within the PFAS MDL, including an attorney serving as Co-Chair of the Law and Briefing Committee (Rebecca Neuman) and attorneys serving as Co-Chairs of the Science Committee (Gary Douglas and Robert A. Biliot). The Levin Team, therefore, will have a significant influence on the direction of the PFAS MDL and a prominent role in the decision-making on behalf of all plaintiffs.
Potential Litigation
The County may raise claims against the PFAS manufacturers and others under both Florida and federal law, including possible causes of action for negligence, product liability, nuisance, breach of warranty, trespass, design defect, and fraudulent transfer. Potential defendants include, but are not limited to 3M, DuPont, the Chemours Company, and various distributors of AFFF, which was historically used to extinguish fires, and other products containing PFAS. This list of potential defendants as well as the possible causes of action identified may be altered once further investigation as to the source of the PFAS contamination within the County has been completed.
It is anticipated that the County’s PFAS case will become a part of the PFAS MDL currently proceeding before United States District Court in South Carolina for pretrial consideration and discovery. (The County’s case could be filed directly in the PFAS MDL or brought first in the United States District Court for the Middle District of Florida and then transferred to the PFAS MDL.)
By participating in the PFAS MDL, the County will benefit from collaborative litigation with other similarly situated plaintiffs through, among other things, potential cost savings for experts and discovery and a more streamlined litigation approach.
Copies of the Levin Team’s litigation brochure and the proposed, negotiated retainer agreement are attached hereto.
FINANCIAL IMPACT
Pre-Litigation Costs and Fees (derived from draft agreement):
Client. All costs associated with Client’s pre-litigation investigation of the Contaminants, including those associated with water and/or soil sampling, laboratory testing and engineering expenses shall be paid directly by Client. For the avoidance of doubt, nothing contained herein shall obligate Client to incur any costs to investigate the Contaminants beyond what it has already expended.
The Firms. All costs and fees incurred by the Firms during any pre-litigation investigation shall not be charged to Client nor recoverable by the Firms against Client under this Agreement.
Attorneys’ Fees:
Contingent Fee. The amount the Attorneys shall receive as fee for the legal services provided under this Agreement shall consist of a contingent fee of twenty-five percent (“Contingent Fee”), which shall be calculated from the Gross Recovery.
“Gross Recovery” means the total value received by Client of all Cash Recoveries plus Non-Cash Recoveries, whether awarded by Settlement or Final Judgment.
Reimbursement of Costs; Fees. In the event the Firms are discharged without cause before the conclusion of a Legal Action, Client shall (i) reimburse the Firms for any and all Costs advanced by the Firms for such Legal Action not later than thirty (30) days from receipt of a reasonably detailed final cost accounting from the Firms, and (ii) upon the conclusion of the Legal Action, pay the Firms a Reasonable Attorneys’ Fee for services performed up to the point of the discharge. Nothing herein shall be construed to limit Client’s rights and remedies in the event of a discharge of the Firms for cause.
LEGAL NOTE
The Board has the authority to approve this agenda item pursuant to Fla. Stat. § 125.01.
recommendation
RECOMMENDATION
It is recommended that the Board approve this agenda item.