Environmental Litigation + Regulatory

Represent a global aerospace and defense company as lead trial counsel in a $600 million class action alleging environmental contamination and toxic tort claims in the Eastern District of New York.

Represent the state’s largest retailers to address ambiguities and contradictions in the state’s hazardous waste regulations, which have proven to be a trap for the unwary. We chair this effort. Retailers have been fined hundreds of millions of dollars for violation of California’s hazardous waste regulations, which were designed for industrial facilities producing toxic wastes. Retailers must now handle products such as vitamins, cosmetics, and shampoo as “hazardous waste” if they are expired or no long usable. Application of these rules to such products was clearly not anticipated when the rules were adopted, and they are ill-fitting.

Represented railroad intermodal facility operator in enforcement action by California Air Resources Board alleging that the company was required to collect and report vehicle identification numbers from all trucks visiting the their facilities. Collecting such information is impractical and would reduce the flow of traffic-causing congestion and additional air pollution. Successfully settled the action with innovative compliance approach that avoids the requirement to collect VIN numbers.

Clorox Company as outside counsel on legacy groundwater contamination matter and related regulatory negotiations and associated response to citizens group’s threatened claims. Also serve as litigation defense counsel on citizens group’s failure to disclose claims against products marketed under Kingsford Products subsidiary.

In California’s largest environmental settlement in 2006, we recovered $148 million in past and future cleanup costs for contamination at the San Francisco International Airport. The settlement with SFIA tenants included an innovative “pay-as-you go” program that allowed the responsible parties to reduce transaction costs and defer payment of cleanup costs until they are actually incurred.

We favorably settled a decade-long case on behalf of Kerr-McGee against the U.S. Government claiming that an order requiring Kerr-McGee to clean up an abandoned uranium mine was invalid and that the U.S. was liable for a share of the costs of cleanup. After a decade, the case settled with a remedy that cost a total of less than one quarter of the original amount and with a significant contribution to that reduced expenditure from the United States and other parties.

We represented the Santa Clara Valley Water District in a CERCLA action concerning mercury contamination in the Guadalupe River Watershed and South San Francisco Bay. Through extensive engagement with the U.S. Fish & Wildlife Service, we were able achieve to an expeditious resolution of claims by negotiating an agreement allowing our client and other PRPs to implement local restoration and enhancement projects in lieu of paying either compensatory damages or federal or state oversight costs or legal fees.

On behalf of our clients, we won summary judgment in a Proposition 65 suit filed against SmithKline, Johnson & Johnson, and 15 other manufacturers, marketers, and retailers of Nicoderm CQ, Nicorette, and Nicotrol, smoking cessation products used to help people quit smoking. The lawsuit alleged that the pregnancy warning language on the products did not satisfy Proposition 65’s requirements. The California Lawyer General intervened on behalf of the plaintiff, but the California Supreme Court unanimously ruled in favor of our clients. The Supreme Court’s decision was the first favoring a defendant’s position in Proposition 65 action, the first holding that Proposition 65 could be and was preempted by federal law, and the first ruling that the state could not defeat preemption by requiring off-label advertising.

Representing two companies in one of the largest groundwater contamination cases of its kind (TCE, PCE, DNAPL, and perchlorate), involving a precedent-setting issue of whether a water district has the ability to create its own mini-Superfund. Obtained summary judgment for both companies.

In one of the state’s largest RCRA cases set for trial in 2012, obtained cleanup and injunctive relief for solvent (toluene and methane) contamination on behalf of Newark Industries caused by a prior facility operator, and recovery of more than $1.1 million in attorney fees and costs.