Legislators Asked To Force Disclosure Of Private Law Firm’s “Bounty” For $9.5 Million ExxonMobil NRD Settlement
NRD Lawsuit Proceeds Are Dedicated to Public Compensation & Restoration Of Damage
The Public Has A Right To Know Amount Of Private Law Firm Contingency Fees
The Murphy Attorney General and DEP recently issued a press release to announce a $9.5 million “natural resource damage” (NRD) lawsuit settlement with ExxonMobil.
The proposed settlement was published in the August 5, 2022 NJ Register (54 N.J.R. 1647(b)) for public comment (60 day comment period).
I have a lot of problems with this settlement, which I will write about in a future post. But for today, I want to focus exclusively on the compensation to be paid to a private law firm from the proceeds of the $9.5 million settlement.
The DEP was represented by private legal counsel,KANNER & WHITELEY, L.L.C., A Louisiana L.L.C., as Special Counsel to the Attorney General.
Neither the press release nor the settlement agreement state how much was paid to the Kanner law firm.
Every dollar that is paid from the settlement to Kanner diverts money from compensating the public and restoring damages to precious natural resources.
There is no way to know whether the settlement is in the public interest unless the compensation to Kanner is disclosed.
DEP masks the compensation issue in the text of the public notice: (my emphasis)
All settlement funds recovered, less the costs of suit, legal, and administrative fees, will be held in NJDEP’s dedicated natural resource damage account subject to legislative appropriation for specific natural resource restoration activities in accordance with the New Jersey State Constitution, Article VIII, Section 2, Paragraph 9
I previously filed an OPRA public records request for this information on the compensation of the law firm representing DEP at the NRD lawsuit at the Ford Ringwood site, but the information from the retainer agreement was redacted, see:
Expecting the same treatment in the ExxonMobil case, I wrote to Senator Smith to request his help in asserting public disclosure of the compensation rate or legal fees paid to Kanner.
Dear Senator Smith:
The Attorney General and DEP recently announced a NRD settlement with ExxonMobil for $9.5 million.
As you know, those recovered funds legally are dedicated to compensating the public for NRD damages (lost use, et al) and restoring NRD damages.
However, the AG was represented by private special Counsel and the retainer agreement with that firm allocates an undisclosed contingency fee payment.
The NRD settlement was recently published in the NJ Register and is now open for public comment.
The public has a right to know how much a private law firm was compensated, especially because these NRD monies are legally dedicated to compensating the public and diversion to private law firms detracts from restoring damaged natural resources.
I request your assistance in obtaining the critical public information I requested in the OPRA below.
Here is the OPRA I filed:
“I request the following public records:
1) compensation records reflecting legal fees and NRD settlement monies distributed to the law firm of KANNER & WHITELEY, L.L.C. A Louisiana L.L.C., Special Counsel to the Attorney General, pursuant to the retainer agreement with that firm.
According to a settlement agreement between DEP and Exxon regarding NRD damages at the Lail site, the DEP was legally represented by special counsel law firm of KANNER & WHITELEY, L.L.C. A Louisiana L.L.C. Special Counsel to the Attorney General see:
https://nj.gov/oag/newsreleases22/2022-08-12_NJDEP_V_EM_CJ.pdf
The subject settlement recently was published in the NJ Register for public comment and is now open for public comment.
The Joint AG/DEP press release states that the NRD settlement was for $9.5 million, but does not specify the share of that settlement that was paid to the Kanner law firm.
This information is a public record and must be disclosed as it is in the public interest and the public has a right to know how much the law firm was paid and how much of the settlement will be located to restoration. That information is vital to commenting on whether the public has been fully compensated for NRD damages.”
We’ll keep you posted, but I am not optimistic, as Senator Smith has run away from the NRD issue ever since corporate polluters killed the NRD Task Force he created to establish NRD standards and methods to monetize NRD injuries.