In Re: Methyl Tertiary Butyl Ether ("MTBE") Products Liability Litigation
Filing
4225
TRANSCRIPT of Proceedings re: conference held on 6/18/2015 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Andrew Walker, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/27/2015. Redacted Transcript Deadline set for 8/6/2015. Release of Transcript Restriction set for 10/2/2015.(McGuirk, Kelly)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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IN RE: METHYL TERTIARY BUTYL
ETHER ("MTBE") PRODUCTS
LIABILITY LITIGATION
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00 MDL 1358
00-cv-01898
04-cv-04968
07-cv-10470
14-cv-06228
(SAS)
(SAS)
(SAS)
(SAS)
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June 18, 2015
2:30 p.m.
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Before:
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HON. SHIRA A. SCHEINDLIN,
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District Judge
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APPEARANCES
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MILLER, AXLINE & SAWYER
Attorneys for Plaintiffs
BY: MICHAEL D. AXLINE, ESQ.
DUANE MILLER, ESQ.
JACKSON GILMOUR & DOBBS, PC
Attorneys for Plaintiffs
BY: JOHN D.S. GILMOUR, ESQ.
WEITZ & LUXENBERG, P.C.
Plaintiffs' Liaison Counsel
BY: WILLIAM A. WALSH, ESQ.
COHN LIFLAND PEARLMAN HERRMANN & KNOPF LLP
Attorneys for New Jersey Plaintiffs
BY: LEONARD Z. KAUFMANN
McDERMOTT, WILL & EMERY
Attorneys for Defendants Exxon Mobil Corp.
and Defendants' Liaison Counsel
BY: JAMES A. PARDO, ESQ.
ANTHONY A. BONGIORNO, ESQ.
STEPHEN J. RICCARDULLI, ESQ.
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SEDGWICK LLP
Attorneys for Defendant Mobil Oil Corporation
BY: PETER C. CONDRON, ESQ.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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APPEARANCES (Cont'd)
ARCHER & GREINER PC
Attorneys for Defendant Exxon Mobil Corporation
BY: CARLOS BOLLAR
WILLIAM STACK, ESQ.
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SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
Attorneys for Defendant Exxon Mobil Corporation
BY: JEFFREY J. PARKER, ESQ.
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AKIN, GUMP, STRAUSS, HAUER & FELD, LLP
Attorneys for Defendant Lukoil Americas Corporation
BY: JAMES P. TUITE, ESQ.
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KING & SPALDING LLP
Attorneys for Defendant Chevron
BY: JEREMIAH ANDERSON, ESQ.
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EIMER STAHL KLEVORN & SOLBERG
Attorneys for Defendant Citgo Petroleum Corporation
BY: PAMELA HANNEBUT, ESQ.
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ARNOLD & PORTER LLP
Attorneys for Defendants Atlantic Richfield Company, BP
Products North America Inc., Atlantic Richfield Company, BP
Products North America, Inc.
BY: STEPHANIE WEIRICK
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SOUTHERN DISTRICT REPORTERS, P.C.
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THE COURT:
All right, hello.
I'll read the names.
I have Mr. Ehrlich.
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MR. EHRLICH:
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THE COURT:
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MR. DUNHAM:
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THE COURT:
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Ms. Cameron?
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Yes, your Honor.
Mr. Dunham.
Yes, your Honor.
Mr. Cameron?
Is there a Mr. or
Camerson.
MR. McMANUS:
McManus.
Who is on the phone?
Hello, your Honor.
This is Keith
I work with Mr. Camerson, and he won't be joining us
today.
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THE COURT:
That's helpful to know.
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Mr. Cepeda Diaz?
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MR. CEPEDA DIAZ:
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THE COURT:
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MS. MALDONADO:
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THE COURT:
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Mr. Couret?
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MR. COURET:
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THE COURT:
Ms. Smitha or Ms. Smith?
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MS. SMITH:
Yes, your Honor.
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THE COURT:
Ms. Hirsch?
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MS. HIRSCH:
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THE COURT:
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MR. CARTER:
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THE COURT:
Yes, I'm here, your Honor.
Ms. Maldonado?
Yes, your Honor.
Good afternoon.
Good afternoon.
Yes, your Honor.
Good afternoon.
Yes, your Honor.
Mr. Carter?
Yes, your Honor.
Ms. Farley?
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MS. FARLEY:
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THE COURT:
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MS. HALL:
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THE COURT:
Mr. Covey?
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MR. COVEY:
Yes, your Honor.
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THE COURT:
And Mr. McCall?
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the phone?
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Good afternoon, your Honor.
Ms. Hall?
Yes, your Honor.
Duke McCall?
Is there a Mr. McCall on
No?
Okay, so the folks on the phone, I think, are just
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going to be listening in but will not be participating because
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there's a lot of lawyers in the room; it would be difficult to
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have the participation.
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goes on.
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hear.
So I hope you can hear most of what
I'll ask the lawyers to speak up and hopefully you'll
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So we have Mr. Walsh?
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MR. WALSH:
Good afternoon, your Honor.
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THE COURT:
Good afternoon, Mr. Axline.
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MR. AXLINE:
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THE COURT:
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MR. MILLER:
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THE COURT:
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MR. GILMOUR:
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THE COURT:
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MR. PARISI:
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THE COURT:
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MR. PARISI:
Good afternoon, your Honor.
Mr. Miller.
Good afternoon.
Mr. Gilmour.
Good afternoon, your Honor.
Mr. Parisi.
Good afternoon.
That's it for the plaintiffs' side, right?
No, I'm not on the plaintiffs' side.
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THE COURT:
Oh.
The way they put it on the seating
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chart, it looked that way.
Okay.
So, for the plaintiffs,
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there are four lawyers here, that's it, right, Walsh, Axline,
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Miller, Gilmour?
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MR. AXLINE:
Correct.
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THE COURT:
Mr. Pardo.
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MR. PARDO:
Good afternoon, your Honor.
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THE COURT:
Mr. Bongiorno.
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MR. BONGIORNO:
Good afternoon, your Honor.
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THE COURT:
Mr. Riccardulli.
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MR. RICCARDULLI:
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THE COURT:
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MR. PARKER:
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THE COURT:
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MR. ANDERSON:
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THE COURT:
Mr. Tuite.
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MR. TUITE:
Good afternoon, your Honor.
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THE COURT:
I'm sorry, I'm having trouble with that.
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Mr. Stack.
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MR. STACK:
Yes, your Honor.
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THE COURT:
Good afternoon.
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Mr. Bollar.
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MR. BOLLAR:
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THE COURT:
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MS. HANNEBUTT:
Good afternoon, your Honor.
Mr. Parker.
Good afternoon, your Honor.
Mr. Anderson.
Good afternoon.
Good afternoon.
Good afternoon, your Honor.
Ms. Hannebutt.
Good afternoon, your Honor.
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THE COURT:
Mr. Condron.
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MR. CONDRON:
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THE COURT:
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MS. WEIRICK:
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THE COURT:
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MR. PARISI:
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THE COURT:
Good afternoon, your Honor.
Ms. Weirick.
Good afternoon, your Honor.
Now Mr. Parisi.
Good afternoon.
Everybody else who's here, if any of you
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do end up speaking -- and I recognize many of you -- please,
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everybody, be sure to state your name each time.
It's
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difficult for the court reporter.
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but he doesn't, so each time, stand and say, "this is
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Mr. Axline and" or "this is Mr. Pardo and" each time, so we get
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a pretty clear record.
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I know you folks for years
We actually have a fair amount of business today, and
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I hope to move through it as efficiently as possible.
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starting with Pennsylvania.
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final preparation of the case management order, and there is
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some disagreement as to language and not just language but what
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has to be done by whom and when.
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through all of that.
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I am
There are questions about the
And so I will try to move
There's a disagreement in proposed section 2(a)
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regarding MTBE release site lists, and defendants want the CMO
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to require plaintiff to identify every release, a site report
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of the commonwealth or of which the commonwealth is otherwise
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aware.
And the commonwealth wants to limit the list to only
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those reported to it.
It seems to me this is a small disagreement and can be
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resolved by the following language:
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plaintiff shall identify every release site reported to the
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commonwealth or which the commonwealth discovered through its
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own investigation."
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it's too vague.
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the commonwealth discovered through its own investigation."
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either reported to it or you've already discovered it and
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you've probably made a record of that somewhere if you've
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discovered it, but I'm not going to "aware of" to it.
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And that's it.
"By December 31st, 2015,
Forget the word "aware";
So I'd be happy to read that again.
"Or which
So
All right, next, there's a disagreement about potable
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wells with MTBE detections.
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that the commonwealth needs to identify every well that has a
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detection or even, I guess, that could have a detection.
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Plaintiff says, you know, unlike a lot of these cases, we don't
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own or operate these wells, and if we were to go out and be
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required to test every well, there are a million of them, and
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that would be $100 million spent, and we don't think we should
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have to do that.
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And the defendants' position is
And there's a dispute about who's going to pay for
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that too.
The defendants say in their letter, whether
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plaintiff can recover from the cost of searching out and
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sampling wells is an issue for another day.
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well, not really, not if you're going to tell me I've got to go
Plaintiffs say,
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out and do a million wells at the cost of a million dollars.
So I think the answer to this at this time is that
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plaintiff only needs to identify the information that is
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currently in its possession, custody or control.
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usual rule in discovery.
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that which does not exist.
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That's the
They don't have to create a record of
So if they have a documentation in their possession,
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custody or control, that has to be defined carefully, regarding
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wells that have detections or have been tested or have no
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detection, whatever it is, they have to turn over such records,
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but they're not directed that they're required to test a
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million wells.
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Now, whether there is going to be a question down the
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road as to whether by not identifying something they will have
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waived a claim, I think that is an issue for another day.
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other words, if they're not aware of a detection and a
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detection occurs six months from now or five years from now,
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that may be a new and timely claim.
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on that issue, as to whether by their failing to identify a
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particular well today they have waived a claim forever.
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In
So I'm not about to rule
I can say on the record that I doubt it, that if and
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when they detect something, a claim may materialize at that
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time, but that's not a ruling, that is my inclination, but it
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may not be for me.
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could occur 30 years from now, who knows, but that's my ruling
Who knows when that is going to occur?
SOUTHERN DISTRICT REPORTERS, P.C.
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for now on the wells issue.
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The third dispute at section 2(c) has to do with
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really a related issue:
Defendants want the plaintiff to
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produce the maximum and most recent MTBE detection data for
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each release site and each well.
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that the plaintiff gives is that defendants actually have done
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MTBE sampling for release sites that they own or operate.
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So I think the ruling is directed to both sides:
Now, I think one response
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Everybody has a date that you will negotiate and pick for the
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CMO, at which they have, to both sides have to, identify the
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maximum and most recent MTBE detection date or for each release
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and each well, to the extent that they have possession, custody
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or control over such a record.
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So if the defendants own and operate -- you know the
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rule:
If you want to confer, raise your hand, say, can I
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please confer?
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while I'm speaking.
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break.
Because I find it distracting for you to confer
If you want a moment, I'm happy to take a
You want a moment?
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MR. BONGIORNO:
Sorry, your Honor.
No.
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THE COURT:
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In any event, both defendants and plaintiff are
If you need one, just say so.
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directed to identify any record they have of any sampling data
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period.
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they own and operate.
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that are reported or which they investigated, and it can be the
So, for the defendants, it will probably be the sites
For the plaintiff, it would be those
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same date.
And that advances the ball for everybody.
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CMO4 declarations -- and I'm using your language as a
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shorthand but I think the lawyers here know what that means --
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the plaintiffs wants to at a provision that requires the
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defendants to produce CMO4 declarations regarding information
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on the shipment and distribution of gasoline into and within
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Pennsylvania to sort of, how shall I say it, aid everybody in
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getting things identified.
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reliable way to identify release sites is through a review of
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the Department of Environmental Protection's site remediation
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files and the Underground Storage Tank Indemnification Fund
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files, USTIF, and I agree that that is good.
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The defendants say, well, the most
So the plaintiff, commonwealth, must review the DEP
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files, the USTIF files, and I think you knew that, but the
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question is:
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declarations?
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is timing.
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Do the defendants have to do the CMO4
And I think the answer is yes.
The only issue
One could say, oh, sure, eventually defendants have to
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do it, but why does it have to be part of the CMO, because the
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CMO should be settling a schedule all around?
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that date may be further out than a date for more easily
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accessible information, but it has to be done.
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these declarations should be filed, but you need to negotiate
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when in the process.
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going to be asked to do those declarations; you've done them in
So I realize
So I do think
Eventually, I'm sure, you knew you were
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other cases.
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So it's only a matter of when.
And I'm not ordering a
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date right now.
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it through, figure out who goes first, what's logical.
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already said that the records from DEP and USTIF are probably
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more readily available and should come first.
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mean you shouldn't work out these declarations eventually.
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I've explained where you should.
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I'm telling you, put it in, work it out, talk
And I
But that doesn't
You want to say something, Mr. Pardo?
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MR. PARDO:
I wanted to ask for your permission just
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to confer for five seconds.
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THE COURT:
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(Pause)
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MR. PARDO:
Thank you.
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THE COURT:
Okay.
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Now, motion to amend the complaint:
Okay, good.
So we go on.
Now, here, the
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commonwealth wants to file a motion to amend the complaint.
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The first thing I'd like to do, at all costs, is avoid another
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motion.
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we could here.
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I'd like to just talk about amending the complaint, if
First of all, they want to amend the USTIF claim, and
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I already said they could.
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have things to add to that claim, I dismissed it with leave to
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replead, so you have leave to replead that.
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I put it in the opinion, if you
That's easy.
Then you want to add two new corporate entities
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related to LUKOIL.
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LUKOIL, you want to add a fraudulent transfer claim against
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LUKOIL America and new defendants, LUKOIL North America and
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LUKOIL Oil Company and individual defendants, again, and they
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you want to beef up the veil-piercing claim to include
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additional allegations.
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And to individual defendants related to
Some of these seem yes, and some of these seem no.
I
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think the short answer is:
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conveyance claim because 11, U.S.C., Section 544(b) says that
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the trustee in bankruptcy has exclusive right to bring such an
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action, and did, and it's done, and the plaintiff can't do it
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because their trustee did it.
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straightforward.
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out because it was done by the liquidating trustee in the GPM
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bankruptcy.
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It is futile to add a fraudulent
So I think that's pretty
I think the fraudulent conveyance action is
So, as far as the veil-piercing, yes, I don't see why
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you can't beef up allegations.
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It doesn't mean you're winning anything, but everybody should
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always plead the best and fullest complaint they can.
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you have new allegations, you should put them in.
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says, under Maryland law, you're never going to prevail.
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I'm not prepared to decide that.
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fully briefed.
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It's just an amended complaint.
So, add the allegations.
So if
I know LAC
But
I'll decide that when it's
They'll move to dismiss that
claim under Maryland law, and if they're right, they'll win and
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that's the end of it.
But you might as well plead the best set
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of claims you can.
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add veil-piercing claims.
So I have no problem with your amending to
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I also note that it might be actually direct liability
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that you're now pleading as to LUKOIL North America LNA because
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you say you've discovered evidence that they may have directly
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owned sites.
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add that.
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If you haven't, you haven't, so you can certainly
I already mentioned fraudulent conveyance, no?
I
think that's it.
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Well, then the individual defendants wouldn't be
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added.
If you can't add the fraudulent conveyance claim, you
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aren't going to be adding the individuals either.
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actually, I think I just talked of everything but Pennsylvania.
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Now that I did, anybody want to say anything?
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UNIDENTIFIED SPEAKER:
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THE COURT:
Yes.
A person on the phone does?
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folks were just observing.
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So,
Who said yes?
I thought you
Maybe she wasn't
speaking to me.
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Anybody present in the courtroom want to say anything
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about Pennsylvania, or did I take care of the problem for now?
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Mr. Miller?
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MR. MILLER:
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Good afternoon, your Honor.
substantially helped us.
THE COURT:
Good.
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MR. MILLER:
But I need to explain something.
It may
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relate to timing, it may relate to the ultimate form of how we
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approach the problem.
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We have -- the Department of Environmental Protection
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has approximately 16,000 reported releases and tens of millions
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of documents concerning those releases located at six different
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facilities, each of which resembles a warehouse.
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documents, there are undoubtedly references to detections of
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MTBE in a well.
Within those
The time required to review tens of millions
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of documents to find each private well that was near a service
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station and was tested by the environmental consultant, which
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had nothing to do with the state other than the fact that these
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investigations must be reported to the state -- we weren't
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running the investigation.
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THE COURT:
Let me interrupt.
These are not
electronically searchable?
MR. MILLER:
We could scan all those documents.
We
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certainly intend to make the documents available if the
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defendants want to copy them, but even if we scan them -- let's
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say we scan for MTBE as a term --
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THE COURT:
Then could you OCR?
Could you do it just
by looking for the word?
MR. MILLER:
Let's say you scan for MTBE for a well.
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All the monitoring wells would show up being referred to on
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every page.
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So unless they use the term "private well," which
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seems unlikely, they may use a name for it like the property
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owners, it would be very difficult even if we scanned every
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document and did discrete searches.
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about reading every page.
So we're literally talking
The burden is extraordinary.
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THE COURT:
Burden?
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MR. MILLER:
Yes.
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There is a solution.
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I don't think that -- given the
number of wells we're talking about, a million private wells,
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only half of which, 450,000, we know the location, I don't
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think we're going to ever --
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THE COURT:
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thing.
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I'm sorry, I didn't understand the last
Does that mean you don't know the location of the other
550,000?
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MR. MILLER:
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THE COURT:
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MR. MILLER:
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That's correct.
Oh, okay.
Go ahead.
They're historical wells before the
registration program was started.
THE COURT:
Now I understand the statement.
You know
the location of only 450,000 of 1 million?
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MR. MILLER:
Yes.
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I don't think we're ever going to have a day when we
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present individual evidence on each private well that was
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impacted by MTBE and which station did it, and we can still
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make a valid claim.
I'm going --
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THE COURT:
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MR. MILLER:
A claim for what?
For -- let's just talk about New
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Hampshire for just a moment because they presented their
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evidence in three months, not three plus years, which would be
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a discussion of individual gas stations, every single one in
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Pennsylvania and every well, you're talking about a trial in
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inestimable length.
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THE COURT:
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But we have not been doing that.
We've
tried to do a bellwether type trials anyway or focused case
type trials anyway.
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MR. MILLER:
Yes.
This comment I'm about to make
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doesn't relate to a bellwether trial, which is clearly much
13
shorter.
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issue and a statewide claim proceeds against those who have not
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settled?
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But what if the bellwether trial doesn't resolve the
In that event, what New Hampshire did in their case is
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they presented evidence that they took a statistically
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representative subset of private wells and used the results
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from that subset to estimate scientifically and accurately, in
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our view, the total damage statewide, and they didn't need to
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go out and test every well in New Hampshire, because if you do
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a representative sample and say 12 percent of the wells have
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MTBE in it, you can apply that percentage to the total.
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They did --
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THE COURT:
That sounds good for damages, but not for
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remediation.
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MR. MILLER:
Remediation is a smaller group.
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16,000 releases.
So that's easier to do.
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We have
It's a different
issue, but at the moment, I'm talking about wells.
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So if we go and spend unbelievable effort and a lot of
6
money to identify individual wells, will it affect the trial if
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we have a strategy to do a trial in a more reasonable period of
8
time that focuses on a statistical approach to estimating the
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damage claim?
I can't see how it will ever help them.
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THE COURT:
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MR. MILLER:
How it will ever?
Help them understand our claim.
That's
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going to become very clear when the experts testify.
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can talk about how to approach the problem of making sure that
14
that expert's testimony is adequately previewed with the
15
defendants so they can prepare for it.
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issue.
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And we
That's a separate
But the idea of developing a comprehensive list by
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going through tens of millions of pages, reading until you go
19
blind, trying to find a single entry that is very difficult to
20
identify electronically through scanning the documents, which
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even if we did that, we could not possibly do it in 2015, even
22
if we were lucky in the electronic interpretation of the
23
records.
24
25
So I'm suggesting to you that at this point in time,
if you require us to do a list, we need a much longer time
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period, and I'm suggesting that doesn't further the case, it
2
doesn't help the defendants.
3
consultants that tested those private wells, frankly, in many
4
of the release sites.
5
that information.
6
THE COURT:
They are the ones who hired the
Not all, but many.
So they already have
Well, couldn't there be a combination of
7
ideas?
One, you have the statistical sampling type proof from
8
the point of view of proving damages, but you're always going
9
to have to try some releases and the wells that are impacted,
10
and that's a matter of focus -- well, focus releases that we've
11
done before in other cases, and then all the wells associated
12
with focused releases, so to speak, I think, as we call them
13
focused sites, but then on those wells, you'd have to produce
14
it.
15
MR. MILLER:
If we decide with the Court, whatever you
16
order, to do focused sites, there's no question in my mind
17
that's a manageable burden.
18
THE COURT:
19
MR. MILLER:
20
21
that.
We can identify the wells --
Right.
-- given adequate time, and we can do
That's not what I'm discussing.
THE COURT:
No, no.
You would have a combination of a
22
statistical approach, but you'd also have a number of sites
23
where you fully discover every well you say is impacted as a
24
result of the release of that site, every well.
25
instances, whether it's 20, or 40, or however many we choose,
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And in those
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then you have to go for every well in the focus sites, and you
2
say you can do it?
3
MR. MILLER:
Yes.
4
THE COURT:
Right.
5
Mr. Pardo.
6
MR. PARDO:
No question.
That's manageable.
Okay.
Your Honor, before we get too far down
7
that road, I want to make sure I know you're not ruling today,
8
there's no ruling here, I haven't heard any ruling.
9
THE COURT:
You haven't heard any rulings, but you
10
heard some rulings.
11
MR. PARDO:
No, no, no, on this issue --
12
THE COURT:
Okay.
13
MR. PARDO:
-- of statistical extrapolation.
14
THE COURT:
Correct.
15
MR. PARDO:
I just want to be clear.
We're taking
16
about New Hampshire.
As you, I think, know, that case is up on
17
appeal right now.
18
extrapolation is a constitutionally fair way to determine
19
damages, nor to determine any of the other issues that have
20
always been the subject of normal discovery, normal proofs in
21
this case, causation --
And we do not believe that statistical
22
THE COURT:
Is that one of the issues on appeal?
23
MR. PARDO:
It is.
24
THE COURT:
Statistical sampling was the right
25
approach?
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MR. PARDO:
That is one of the issues.
2
THE COURT:
Where is this pending, the highest court
3
4
5
of New Hampshire?
MR. PARDO:
your Honor.
Correct.
New Hampshire Supreme Court,
Correct, your Honor.
6
THE COURT:
Where is that up to?
Argument, brief?
7
MR. PARDO:
Just argued.
8
THE COURT:
Argued?
9
MR. PARDO:
So I know you haven't ruled on this.
This
10
would be something that it would be a sea change from how we've
11
done the cases for many, many years on this MDL, and I would
12
respectfully submit that if we were even thinking of going in
13
that direction, we ought to have briefing -- the opportunity to
14
brief you on this because there are, in our view, some serious
15
constitutional --
16
THE COURT:
Well, it's also interesting to know what
17
the New Hampshire Supreme Court has to say.
Since it's been
18
argued, it would be interesting to see how it comes out.
19
MR. PARDO:
But I've heard --
20
THE COURT:
Also, the numbers here might far surpass
21
New Hampshire.
Pennsylvania is a big state.
And even if it
22
was acceptable there, which is not what you hope will be the
23
outcome of the appeal, but even if it is, you would still have
24
an argument here that it's a different case anyhow.
25
understand you certainly don't want that issue to be decided
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without full briefing.
I understand that.
I understand that.
2
MR. PARDO:
Right.
3
Now, we know, or I guess plaintiff knows, where
4
450,000 of these private wells are.
5
that I guess they don't.
6
where those wells are, maybe they shouldn't be in this case,
7
okay.
8
maybe those are the private wells they start with.
9
There's another 550,000
I would submit if they don't know
But for the 450,000 that they do know where they are,
THE COURT:
But did you hear the numbers?
Even if it
10
was half of the numbers that Mr. Miller described, it's a huge
11
number of records, huge, and from the plaintiffs' perspective,
12
and maybe even mine, we'd all like it to be done within our
13
lifetime.
14
Now, you're younger than I am, so your lifetime is
15
longer, mine is shorter, so I want to get it done, and so
16
that's the problem.
17
Mr. Miller said is a long, long task and very extensive.
18
issue is does it have to be done.
19
site approach with the associated wells.
20
got another suggestion for statewide statistical proof, which
21
apparently was used in New Hampshire.
22
actually, about it except what I heard today.
23
Even 45 percent of the numbers that
The
We've always taken the focus
Now he's saying he's
I know nothing,
So I don't know whether that's a good idea or not, and
24
what a state high court is at least going to tell us doesn't
25
bind me, but it would be interesting to know.
But we could
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certainly start with the focus approach and find some way to
2
select geographically, let's say, around the state of
3
Pennsylvania, so we can get all the different kinds of areas,
4
you know, urban, suburban, rural, near water, not near water,
5
however you wanted to choose 50 or whatever sites, and start
6
with that.
7
he's got to do it for 450,000 sites of which he knows the
8
location, it may be the burden outweighs the benefit at this
9
point.
10
That's what we've done before.
But to tell him
So you're right that I'm not ruling, but I probably
11
said enough to give both sides a lot to talk about in any
12
meet-and-confer on how to continue, and then if you're at an
13
impasse, and they insist on this sampling idea and want to
14
start briefing even before the New Hampshire high court rules,
15
so be it, it will have to be briefed because I don't know
16
anything about the technique and why it would be valid or
17
wouldn't be valid.
18
19
I assume there were experts in that case that said it
was valid?
20
MR. MILLER:
21
THE COURT:
22
Yes, your Honor, of course.
Sure.
But there were defense experts who
said it wasn't?
23
MR. MILLER:
Of course.
24
THE COURT:
25
No, I understand that.
Sure.
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MR. MILLER:
It's all predictable.
2
THE COURT:
Yes.
3
MR. PARDO:
For me, your Honor, and maybe for some of
4
the other defendants, this is not what you're doing, but it's a
5
little frustrating to hear this, because, of course, we have a
6
complaint in this case that alleges that there are private
7
wells that have been impacted.
8
9
THE COURT:
Oh, but there are.
private wells that have been impacted.
They know there are
They don't know how
10
many, they don't know how many locations.
11
there are -- it's a correct statement that there are private
12
wells that have been impacted.
13
So that's the issue.
14
private well in the State of Pennsylvania?
15
MR. PARDO:
They surely know
It doesn't mean all 1 million.
They say -- did they plead each and every
No.
I understand.
But let me generally push back on that.
16
They say that, and we say we know that to be true, but I don't
17
know that to be true.
18
THE COURT:
Wait, wait.
19
generalities.
20
that's been impacted?
21
I haven't seen that.
You're talking in
You don't know that there's any private well
You think it could be zero?
MR. PARDO:
Well, it could be.
23
THE COURT:
I doubt it, too.
24
MR. PARDO:
Of course.
22
25
I doubt it, to be
honest.
But my point is he has to
know -- to assert that in his complaint, he has to know that
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there are wells out there that have been --
2
THE COURT:
I'm sure he does know there are wells, the
3
question is does he know about 20, or a hundred thousand, or
4
700,000?
5
there are some.
6
I don't know what he knows, but I'm sure he knows
Now, the question is, how many does he have to tell
7
you about now, or does he have to research, does he have to go
8
through -- what was it?
9
locations?
How many millions of documents in six
10
What was that number?
11
MR. MILLER:
12
Tens of millions.
I can't give you a
precise number.
13
THE COURT:
Tens of millions is good enough.
14
So there's tens of millions of pieces of paper,
15
there's six locations.
16
electronic at this point.
17
They're paper, they're not even
That's what I know.
So he could do it at great cost and delay, but you
18
know those twin words, cost and delay, are what we try not to
19
do.
20
taken that would eliminate undue cost and delay.
So I'm trying to see if there's an approach that can be
21
And, actually, identifying every single private well
22
that's been impacted seems to me almost a tactic to make sure
23
litigation can't move at all.
24
tactical, I get that, but let's see if there's a solution that
25
works, and I think you think it's not statistical sampling.
So -- okay, you're paid to be
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MR. PARDO:
I'm certain it's not.
2
THE COURT:
Well, from the defense point of view, I
3
know your position, I'll be curious what the New Hampshire
4
Supreme Court -- and it could go higher than that.
5
event, that's for another day.
6
7
The focus approach, though, we have used repeatedly in
this litigation, so I think you need to talk to each other.
8
9
But in any
MR. MILLER:
Your Honor, I'm happy to confer with
counsel, and as soon as we identify the focus sites, I think we
10
can work on a good description of what we owe them.
11
generally consistent with what we've done in the past.
12
shouldn't be hard for us to work out.
13
14
THE COURT:
It will be
It
I think we took that approach in
New Jersey, which is also a big state.
15
MR. MILLER:
Yes.
16
MR. PARDO:
We'll be happy to talk.
17
THE COURT:
That's all we can do today because like
18
you, Mr. Pardo, I didn't know this argument was coming about
19
this sampling, and how it was done in New Hampshire, and the
20
experts.
I'm just not up to speed.
21
MR. PARDO:
Fair enough.
22
THE COURT:
Which does take us to New Jersey.
23
MR. AXLINE:
24
THE COURT:
25
MR. AXLINE:
I'm sorry, your Honor.
Go ahead, Mr. Axline.
There was one other point which you
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touched on that I'd like to respond to, and that's the
2
fraudulent transfer.
3
THE COURT:
Oh, I didn't touch on that.
I think I
4
said it was over because the trustee brought the action, and
5
under the bankruptcy statute, exclusive jurisdiction and
6
whatever, that's it.
7
MR. AXLINE:
8
the defendants for the first time in their reply letter --
9
10
So under 544(b), which was cited to us by
THE COURT:
Is that the bankruptcy statute that I
cited?
11
MR. AXLINE:
Yes.
11 U.S.C. --
12
THE COURT:
13
MR. AXLINE:
14
The entities that we want to sue for fraudulent
544(b), there it is.
Yes.
15
transfer are not the bankrupt party, they are the other
16
entities that were not involved in the bankruptcy that
17
participated in the fraudulent transfer.
18
is to ask for a little time to look at this issue more closely
19
and perhaps submit a short letter brief to you on the question
20
of whether 544(b) applies to claims against nonbankrupt
21
parties.
22
THE COURT:
I guess what I'd like
I think that's only fair.
That was raised
23
at the end, and I even had in my notes to ask you if you could
24
show me why that doesn't foreclose it, and that's exactly what
25
you're saying, give me a little while to write a letter
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researching this point and explain why it may not foreclose
2
this action.
3
raises the same issues, and it was brought by the liquidating
4
trustee in the GPMI bankruptcy.
5
saying, that these were not bankrupt entities, but it may be
6
that the action raised the same issues, I don't know.
But it was a fraudulent conveyance action, which
So I understand what you're
7
And you, Mr. Tuite?
8
MR. TUITE:
Tuite.
9
THE COURT:
Tuite, I know that.
10
MR. TUITE:
Thank you, your Honor.
I know that.
On behalf of
11
LUKOIL Americas Corporation, we don't have any problem with his
12
submitting a brief --
13
THE COURT:
He said a letter for now.
14
MR. TUITE:
-- a letter brief, but I do want to point
15
out that the same parties they want to sue in this action were
16
the parties that were sued in the bankruptcy court.
17
THE COURT:
That's what I thought.
They may not have
18
been in bankruptcy, but they were the same parties that the
19
liquidating trustee moved against.
20
really the same action.
I thought so.
I think it's
21
But, Mr. Axline, to his credit, said let me look at
22
this action in the next few days, let me research it and dig
23
down, and see if I can make the argument or not.
24
if his research tells him he can't, he won't, but he hasn't had
25
really a chance to respond to the statutory argument that says
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that a fraudulent conveyance claim is foreclosed.
2
He may reach
that conclusion, I don't know.
3
MR. TUITE:
Thank you, your Honor.
4
THE COURT:
If he doesn't reach that conclusion, not
5
surprisingly, and you need to submit a surreply, so to speak,
6
letter, that's okay because I want to understand the issue.
7
And then we talk about it anyway, that's not a full briefing,
8
it's letters.
9
days.
And we all like to learn things in the law most
So we'll see.
10
Yes, Mr. Bongiorno?
11
MR. BONGIORNO:
Thank you, your Honor.
Before we move
12
on, might I confer with Mr. Pardo on a couple of things before
13
we say all set?
14
THE COURT:
15
MR. BONGIORNO:
16
(Pause)
17
MR. BONGIORNO:
18
Honor.
Yes.
Thank you.
Thank you for indulging us, your
We are now all set.
19
THE COURT:
20
So we go to New Jersey.
21
22
Good.
Okay.
I went back to the bankruptcy
statute.
All right.
The New Jersey plaintiffs also want to add
23
this same fraudulent transfer claim, and I think it's the
24
identical issue, whether you're foreclosed by the trustees --
25
liquidating trustees' action in the GPMI bankruptcy.
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You may
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well be, so I think you need to confer with Mr. Axline and
2
together decide whether there's a letter to be written or
3
whether you concede the point.
4
MR. KAUFMANN:
5
plaintiffs.
6
counsel for New Jersey.
7
8
9
So that's fair?
Leonard Kaufmann, for New Jersey
Thank you, your Honor.
THE COURT:
Yes, Mr. Axline is also
So we certainly will do that.
Thank you.
So I won't say more about that
today.
On the other hand, LNA, which is LUKOIL North America,
10
the plaintiff now believes they have direct liability because
11
of new discovery that it owned sites in New Jersey in which
12
there's been releases.
13
that they think they have proof of a direct liability, you can
14
amend to add that.
15
So to the extent that there's proof --
So as I understand the amendment, the fifth amended
16
complaint would only be with respect to LNC and related
17
entities, and now at this point in time, the commission is only
18
as to direct liability.
19
transfer issue?
You'll be discussing this fraudulent
20
MR. KAUFMANN:
Leonard Kaufmann.
Yes, your Honor.
21
THE COURT:
22
And then the only other New Jersey issue -- thank you
Okay, good.
23
for coming for such a short time, but the only other issue with
24
you folks is that you agree that a number of documents were not
25
docketed, you're going to create a joint list, apparently some
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CMOs were not, some pretrial orders, some letter briefs, and
2
you jointly requested they be added to the docket, and, of
3
course, I agree with that.
4
with your joint list, and we'll add them.
So all you've got to do is come up
5
THE LAW CLERK:
6
THE COURT:
7
That takes us to the Orange County Water District.
8
This one is also in the process of being remanded, and
9
They have them.
Oh, they have them.
there are a couple of issues.
I didn't know that.
One, I think, is minor, one is
10
far more major that has to do with the declaratory relief,
11
we'll get to that in a minute.
12
that I think is somewhat minor, defendants want to add a
13
sentence that says something like, "All other claims for relief
14
were either decided against plaintiff or stipulated as
15
dismissed on the terms set forth in the applicable stipulations
16
subject to the right of appeal, so no other claims or
17
defendants remain at these sites for the purposes of trial
18
after remand."
But with respect to the one
19
The plaintiff opposes that sentence saying it would
20
cause confusion because there's some rights that's not being
21
remanded instead of what is being remanded.
22
defendants on this one.
23
think it clarifies for the judicial panel what claims and what
24
defendants remain in the case.
25
be added.
I side with the
I don't think it creates confusion.
I
No confusion, I think it should
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2
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Who am I looking at?
easier one.
OCWD.
So I think that's the
You'll leave with that, and that's the ruling.
Now, the bigger one.
This whole question about
4
declaratory relief and the history of what this Court has said
5
on different occasions apparently has caused a great deal of
6
confusion.
7
action, I'm filing an action for declaratory -- no, for
8
declaratory judgment.
Standard cause of action, we used to
9
call it a DJ action.
And then declaratory relief is also an
Declaratory relief was brought as a cause of
10
available remedy in many cases, and we don't usually find it
11
until the back end of a complaint saying, and we seek a
12
declaration that as a remedy.
13
between a cause of action and a remedy, although I'm not sure
14
it has a whole lot of real meaning.
15
So I understand the difference
But in any event, in 2006, I authored an opinion which
16
dismissed the cause of action for declaratory relief entitled
17
"Cause of Action:
18
for that dismissal was I said, well, that remedy was available
19
under the Orange County's common-law causes of action, so it's
20
essentially duplicative.
21
clarification and I wrote:
22
of action are determined to require declaratory relief, such
23
relief remains available under those causes of action."
24
then later down the road, in 2011, now five years after the
25
first ruling, I wrote:
Declaratory Relief Act Claim," but the basis
And then OCWD asked for a
"If any of OCWD's remaining causes
And
"The claims that survived included
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declaratory relief with respect to future expenses OCWD may
2
incur."
3
Now, that is a classic use of declaratory judgment,
4
you know, I want a declaration that for future expenses, the
5
defendants have to pay for.
6
nuisance or being duplicative, it's a classic declaratory
7
judgment claim, and I said that one of the claims that survived
8
is declaratory relief with respect to future expenses.
9
It's got nothing to do with
Then there was CMO116, that is 116, written in July of
10
2014, and that CMO set forth the remaining claims and which
11
defendants were at each focus site as of that date, July 16,
12
2014, and that CMO did include declaratory relief as a
13
remaining claim at various focus sites.
14
say, oh, you didn't really mean what you wrote, this only was
15
supposed to reflect what OCWD intended to pursue at the trial,
16
and we didn't think we needed to move against it because it was
17
just a list, so we didn't object at the time.
18
defendants say, look, the water district can ask the transferor
19
court, the trial court, to allow the remedy of declaratory
20
relief for continuing nuisance, but this is somewhat
21
problematic because if the trial court says it's not a remedy
22
for continuing nuisance or there is no such claim, that
23
wouldn't take care of all the declaratory relief sought in the
24
OCWD action.
25
I specifically said there may be declaratory relief outside of
Well, the defendants
And now the
That just has to do with the nuisance claim.
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that particular common-law claim.
2
So the county says, look, it does remain available as
3
a cause of action, you only ruled on a limited context, and the
4
basis of your ruling was duplicative on the continuing nuisance
5
claim, which the defendants are going to tell the trial court
6
needs to be struck, and the trial court might agree, but that
7
wouldn't eliminate all declaratory relief.
8
9
In fact, as I read the letters, defendants are going
to say that Article III courts have no inherent authority to
10
order declaratory relief.
11
as we do it all the time.
12
I don't even know what that means,
So the long and short of this one is actually I think
13
it can be part of the remand that there is declaratory relief
14
still in the case, and there is no reason for me to say they
15
can't put that in based on the 2006 ruling which has been
16
clarified many times since.
17
one, and you can do all the rest of your arguing to the poor
18
judge who is the one who gets the pleasure of trying the OCWD
19
case.
20
So that's where I come out on that
So you can speak afterward, but I might as well finish
21
OCWD because there's another big issue.
The other big issue
22
has to do with the water district's request for clarification
23
about the res judicata fact on the continuing nuisance claims
24
from the Court's September 16, 2014 ruling on the BP and Shell
25
defendants' motion for summary judgment.
We discussed last
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time how best to deal with this question.
2
options.
3
was an option of a 1292, I think, certification, and there was
4
a punt which said, oh, well, just give it to the trial court
5
and tell the trial court that the MDL judge was wrong, and that
6
the trial judge should essentially ignore the law of the case
7
and overrule, so to speak, the MDL court.
8
direction I think I was heading in at that time.
9
There were several
There was the option of a 54(b) certification, there
And that's the
But I have to say, after reading these letters, I've
10
come around to a different view.
11
54(b) may be the right way to go.
12
to it in the water district's letters is they say, if you allow
13
that, it's going to trigger an appeal of all the prior rulings
14
as to these defendants, not just the res judicata/continuing
15
nuisance issue.
16
I now think that actually
And the only big objection
So my question for the crowd today is:
Is that a red
17
herring, or is that an issue?
18
raising bunches of other challenges with bunches of other
19
rulings, or is that just a red herring, and, really, this is
20
the one you want to take up?
21
trigger -- it could trigger the right to appeal other issues,
22
so does either the water district or the defendants intend to
23
raise other issues just because the right to do so is
24
triggered?
25
In other words, will you be
So, in other words, it could
If you get what I'm trying to say.
MR. AXLINE:
I'll handle that, your Honor.
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Axline, for the Orange County Water District.
2
THE COURT:
3
MR. AXLINE:
Okay.
Yes, I have to correct what I told you
4
last time in one sense.
I told you we only wanted to take this
5
one issue up on appeal.
We thought that should be the only one
6
to go up.
7
some research on this, if we go up on a 54(b) final judgment
8
against Shell and BP, we are obligated to raise every issue --
I think, however, in looking at it afterwards, doing
9
THE COURT:
10
MR. AXLINE:
11
THE COURT:
12
MR. AXLINE:
13
THE COURT:
14
15
What are these every issue?
What's there?
There are statute of limitations rulings.
Now we're talking about BP and Shell?
Yes.
Not anybody else.
So what was the statute
of limitations ruling?
MR. AXLINE:
Well, your Honor ruled that the statute
16
of limitations precluded a common-law claims other than
17
continuing nuisance where there were detections at a station
18
prior to the bar date, which I think was May 6 of 2000.
19
20
THE COURT:
That's those two defendants.
There could
have been claims against those two defendants.
21
MR. AXLINE:
Yes.
22
THE COURT:
Okay.
23
MR. AXLINE:
24
25
So that's one.
There were also -- and the defendants can
speak to what they may want to raise.
THE COURT:
I'll surely give them their turn.
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ahead.
2
MR. AXLINE:
Then there was a ruling on the causation
3
issue.
4
nuisance.
5
causation at stations where a defendant --
6
7
We moved for summary judgment on causation and
You granted us summary judgment with respect to
THE COURT:
Well, you wouldn't be appealing anything
if you won.
8
MR. AXLINE:
Right.
9
judgment on nuisance itself.
10
THE COURT:
11
MR. AXLINE:
12
So those are the two issues that come to mind that I
Okay.
But you declined to grant summary
And you could appeal that.
Which is what we had moved for, yes.
13
think we would be forced, if we went to 54(b) route rather than
14
the 1292(b) --
15
16
17
18
19
THE COURT:
I'll talk about that next.
I will turn to
1292.
What about the defendants?
If I were to allow the
54(b), Mr. Condron, what else might you need to raise.
MR. CONDRON:
Peter Condron, for the defendants.
Your
20
Honor, it largely depends on the scope of what OCWD would be
21
appealing.
22
THE COURT:
Well, they just said.
23
MR. CONDRON:
We won, so we would obviously defend on
24
res judicata grounds to the extent they attacked the set of
25
rejected rulings on the statute of limitations, causation
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3
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and -THE COURT:
No, but that's responding.
Are there any
issues that you would be raising?
MR. CONDRON:
Affirmatively?
I can't imagine that we
5
would, your Honor.
6
granting summary judgment to them on the nuisance claim.
7
not sure he could appeal that at this juncture.
8
9
10
11
THE COURT:
Mr. Axline had mentioned about you're not
I'm
But if it's a final judgment as to BP and
Shell, that's his whole point, he needs to raise every claim
that could theoretically bring him back in.
MR. CONDRON:
Yes, I'm not sure that the denial of
12
summary judgment motion to the plaintiffs is something that
13
could be raised on appeal at that point in time, however.
14
THE COURT:
15
MR. CONDRON:
16
And outside of that, again, since we would be
17
I see your point.
Yes.
defending --
18
THE COURT:
That's probably right.
19
MR. CONDRON:
20
where we would be responding --
21
THE COURT:
22
MR. CONDRON:
23
THE COURT:
24
MR. CONDRON:
25
THE COURT:
-- I think we're probably in a position
So at most, it's three issues, not one?
Correct.
Maybe even two, not one.
Depending upon what they raise.
Well, no, because the summary judgment may
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not really be an appealable issue.
2
MR. CONDRON:
3
THE COURT:
Correct.
That it was denied, the opposite of denied
4
is granted.
I don't see how that brings back -- if the statute
5
of limitations takes you out or if the nuisance takes you out,
6
it doesn't matter.
7
MR. CONDRON:
I think you're right.
8
THE COURT:
9
So at most, it sounds like two issues, possibly three.
Right.
10
It's still not as burdensome, I think, as sending it back to
11
the trial court as to dismissed defendants.
12
to be some finality being dismissed.
13
Believe me, I understand appeals, but they're supposed to have
14
some finality from the rulings to put them in the remand
15
bucket, so to speak, where they're forced to almost all over
16
again litigate an issue they won here.
17
judge starts saying, yeah, well, I disagree with that judge on
18
this, that's sort of a field day for both sides to say, oh,
19
well, I see we've got a good shot here, let's reraise
20
everything done in the last 12 years, and keep this judge busy
21
for years, and never have a trial.
22
There was supposed
I understand appeals.
And, by the way, if the
So I'm not sure sending it back is really what you
23
want either because it could open the door to that judge
24
reconsidering everything, both issues you won and issues you
25
lost.
So I'm not keen on that.
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So what I'd like to turn to is 1292 and revisit that.
2
So if we don't do 54(b), what do the parties think of 1292?
3
Because I do think this issue should get heard.
4
finally these people aren't there, and they're big companies,
5
and you want them there, so it should get heard, and hopefully
6
fast.
7
So what do you think of 1292 versus 54(b)?
After all,
I think it will be faster to do an appeal right here.
8
MR. AXLINE:
We would prefer 1292(b) to 54(b).
9
I do want to add one thing that Mr. Condron maybe
10
overlooked or forgot.
11
jurisdiction, that's one that we won, and that they may decide
12
to raise on appeal, so --
13
14
15
16
THE COURT:
There was a ruling on primary
No, he didn't say it.
He usually doesn't
need you as co-counsel.
MR. AXLINE:
If you're stacking up issues under 54(b)
versus issues --
17
THE COURT:
I know, but let him figure out his own.
18
In any event, Mr. Axline?
19
MR. AXLINE:
So, in any event, I think that the issues
20
to be resolved on appeal would be much more discrete and
21
targeted under 1292(b).
22
23
24
25
THE COURT:
It doesn't meet the standards?
Can I,
with a straight face, write a 1292(b) certification?
MR. AXLINE:
I think you can.
determinative as to these parties.
It's certainly
It's going to have a ripple
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effects for all the other parties in the case.
2
pretty compelling reasons for granting it.
3
4
There are
I have a little concern that the Court of Appeals is
less receptive to 1292(b) certifications.
5
THE COURT:
Correct.
I think that's true.
They have
6
to take the 54(b) final judgment unless they say it's not, but
7
it is.
8
What do you think, Mr. Condron?
9
MR. CONDRON:
I think there is a problem with 1292(b)
10
certification on a couple of them, your Honor.
First of all,
11
I'm not sure it does actually meet the legal standard of
12
controlling question of law and substantial grounds, et cetera.
13
But, more importantly, 1292(b) has to involve an order
14
of the court that's being examined, and I think if the Second
15
Circuit were to look at the order that you issued on
16
res judicata, they would find nowhere in it the issue that the
17
plaintiffs want to raise.
18
that issue can be certified.
19
And, therefore, I'm not sure that
The Court of Appeals, and I looked at this last night
20
before coming up here, they take the order, they don't take the
21
issue.
22
they have to take it from the order, and there's nothing in
23
your order that discusses continuing nuisance because as we
24
know, the plaintiffs didn't raise it.
25
So while you may recommend an issue that they look at,
THE COURT:
Honestly, I don't remember that detail.
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1
You studied it last night.
2
was a little more current for me, so I don't remember, to be
3
honest.
4
MR. CONDRON:
5
THE COURT:
6
But you reviewed it, and you know what's
Is he right, Mr. Axline, about the order itself?
Maybe you didn't have a chance to review it either.
9
10
I understand.
in that order, I don't.
7
8
I did other work last night that
MR. AXLINE:
Well, I didn't review it, but I'm
familiar with it.
11
THE COURT:
12
MR. AXLINE:
Well, sure.
And this issue that we asked you
13
initially to address, which is whether the order bars
14
continuing nuisance causes of action, which arise each day,
15
that arose after the consent judgments that they base their
16
motion on, that was not directly addressed to you in the
17
summary judgment briefing.
18
19
THE COURT:
that decided?
20
So maybe it's never been decided.
Was
And if so, where?
MR. AXLINE:
It has not been decided, your Honor.
21
in our view -- that's why we brought it to you seeking
22
And
clarification.
23
THE COURT:
Well, I denied that, but maybe that was
24
wrong.
If I have not decided what to do about postconsent
25
judgment -- releases, is that what you said?
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1
MR. AXLINE:
2
THE COURT:
Yes.
If I never decided that squarely, it may
3
be I should and was wrong to deny the request for
4
clarification.
5
MR. AXLINE:
In fairness to Mr. Condron, and I am sure
6
he's going to argue this, he's going to say we should have
7
raised it in opposing their summary judgment motion.
8
9
THE COURT:
Yes, but that's not the best answer
because nothing to take up, as he just pointed out under 1292,
10
if I never decided it.
So the law has to be a little bit
11
flexible or we're all in the wrong business.
12
decided, and it should be decided here.
It needs to be
13
MR. AXLINE:
We think it's obviously very central.
14
THE COURT:
No, I understand why there was a consent
15
agreement, but then things happened afterward, is it barred or
16
not.
17
relatively short briefing schedule and an opinion targeted to
18
that would give us an order that if you win, the point can be
19
taken up on 1292 quickly, and if for some reason you lose the
20
point, and that would put you back in the case that's being
21
remanded, right?
If I didn't squarely address that, Mr. Condron, maybe a
22
MR. AXLINE:
23
THE COURT:
That's correct.
If they lose that point, and then they
24
could also seek or be the one to seek the 1292, but they can no
25
longer seek a 54(b), that's the problem.
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But in any event, if I didn't squarely decide that, I
should.
3
MR. CONDRON:
Two points on that, your Honor.
Number
4
one, Mr. Axline is quite right, they didn't raise it, and our
5
position is that they should have because we moved for summary
6
judgment on all the claims in the complaint.
7
Secondly --
8
THE COURT:
9
10
I'm not going to stand on that.
consider it a technicality now.
I'll
I want to have a square
ruling.
11
MR. CONDRON:
This part isn't a technicality, your
12
Honor.
13
your opinion, you addressed the issue of whether or not there
14
was any continuing harm, and what your Honor found, which is
15
correct on the facts, is that after the consent judgments were
16
entered, when the BP judgment was entered in 2002, ours was
17
entered in 2005, we were no longer using MTBE in gasoline at
18
that point in California.
19
gasoline didn't involve MTBE.
20
THE COURT:
21
22
In a footnote in the brief, we are not -- I'm sorry, in
So any subsequent release of
But why?
It could have been used in 2001,
but didn't leak out, so to speak, till 2007.
MR. CONDRON:
No, that's not the way the system works,
23
your Honor.
The gasoline would have been long gone from the
24
tank prior to 2007, 2005.
25
about 2002 to 2003 in California.
Actually, we all took it out in
There was a ban on it in
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1
2004.
And certainly the Shell consent order, which went into
2
place a year after that, would have long postdated any new
3
MTBE --
4
THE COURT:
5
MR. AXLINE:
So he's saying it's impossible.
And that's not accurate, your Honor.
It
6
misstates the law of continuing nuisance because under the
7
continuing nuisance doctrine, and this is what we'd like a
8
chance to brief, is that the cause of action continues until
9
the nuisance itself is abated.
It's not the date of release,
10
but it's the date of which the nuisance is abated that the
11
cause of action ends, and the nuisance has not been abated at
12
these sites.
13
THE COURT:
14
MR. AXLINE:
15
MR. TUITE:
16
MR. AXLINE:
And, again, there's no ruling on that?
No.
This wasn't briefed?
Well, your Honor, you have ruled on this
17
before, and we put your prior rulings into our letters to you
18
for this conference.
19
denied this, that the rule is that there's a new cause of
20
action every day that there's a continuing nuisance until it's
21
abated.
22
You said, and the defendants have not
So I really don't think there's going to be a big
23
fight about whether that's the legal rule.
I think the
24
defendants are hanging their hat -- Shell and BP are hanging
25
their hat on an argument that we didn't raise this in the
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opposition to the summary judgment motion.
2
THE COURT:
But you're saying, in terms of preparing
3
56.1 type statements, there won't really be a back dispute,
4
you're going to concede that they didn't use it after X years,
5
but you're going to say it's a matter of releases or
6
contaminations that have not been abated, and that's a
7
continuing nuisance.
8
MR. AXLINE:
9
THE COURT:
Exactly.
So you should be able to agree on the
10
facts.
It's just becomes a legal question that you say I have
11
not squarely ruled on.
12
MR. AXLINE:
Correct.
13
MR. CONDRON:
Your Honor, I'm not sure that's entirely
14
correct.
15
I'm looking at the three focus sites here.
16
California issued something called a low threat closure plan
17
for all three of the Shell sites.
18
which says, does a nuisance exist as defined by Water Code
19
Section 13050.
20
So we do have a factual dispute on that.
21
aside, there's no evidence that there's any continuing nuisance
22
that was ever put in the record --
23
If we're going to agree on that fact -- of course,
The state agency in
There's a question in that
For all three of the sites, the answer is no.
THE COURT:
But setting that
He just said how he defines continuing
24
nuisance means the known nuisance has not yet been abated, and
25
he said as a matter of law, that equals a continuing nuisance.
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MR. CONDRON:
We'll have the legal dispute on that
issue.
3
THE COURT:
Right.
But that's a legal dispute, that's
4
not as hard.
Then there would be the question of whether the
5
consent decree cuts it off anyway.
6
MR. CONDRON:
7
THE COURT:
Correct.
So there would be two steps to the legal
8
argument, whether that is the continuing nuisance because it
9
hasn't been abated and whether, in any event, it's cut off by
10
the consent decree because the consent decree should cover any,
11
I would think, contaminations that occurred up to the date of
12
the consent decree whether or not they have been abated.
13
That's what you bought when you settled, or at least that's
14
what you are going to argue.
15
MR. CONDRON:
16
THE COURT:
17
But in any event, the point is, shouldn't I squarely
18
I'm helping you frame your argument.
rule so there's something to take up that does the trick?
19
20
Correct.
MR. CONDRON:
Well, we believe that you have, your
Honor.
21
THE COURT:
Not really.
You just said, oh, no, you
22
don't believe.
23
ruled on the issue they would like heard.
24
25
You said I studied the order, and you never
MR. CONDRON:
issue.
You never ruled on that particular
You have found, however, that there was no continuing
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harm in the footage in the opinion.
THE COURT:
Well, a footnote is a footnote.
Why don't
3
we just get this done real fast, so that there is an explicit
4
ruling on the open issue, so to speak, because the one you said
5
I never ruled on, you're the one who pointed it out in
6
reviewing --
7
MR. CONDRON:
On his explicit issue, not on the issue
8
that really should be this, the important one to be focused on,
9
which is a continuing harm, and you did rule on that.
10
THE COURT:
11
MR. CONDRON:
12
THE COURT:
13
14
15
In this footnote?
Correct.
Well, I don't know if that was a subject
of full briefing or not.
MR. CONDRON:
We certainly briefed it in our brief,
your Honor.
16
THE COURT:
Yes.
17
Since I think 54(b) is the best way to go, and even
18
better than 1292 -- I'm on the fence.
1292, as somebody
19
pointed out, they may not take it, and that doesn't advance
20
anything, but since I -- since I'm leaning toward 54(b), and
21
you say the order doesn't address the issue, then I would like
22
to squarely write on the issue as fast as I possibly can, which
23
would mean allowing briefing on a very limited issue.
24
limited record, I think.
25
statement that can be presented without disputed issues of
And a
And I would think a joint 56.1
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fact.
Some facts are agreed here, like you were not using it
3
after a certain date, and their theory is that if it's not
4
abated, it continues.
5
say, even if that's true, the consent decree cuts it off.
6
All right.
7
MR. AXLINE:
8
And you, of course, would come back and,
Who's the moving party?
Where am I?
I think, fairly, the district, Mike
Axline, should be the moving party.
9
THE COURT:
10
this is about to be remanded.
11
MR. AXLINE:
12
THE COURT:
13
thinking two weeks.
So today is June 18.
14
before the holiday.
That's July 2nd.
15
THE COURT:
This is holding us up.
We could file our motion in two weeks.
You're reading my mind, Mr. Axline.
MR. AXLINE:
16
I really like this one done fast because
I was
That's good, it's
July 2nd.
And keep it as late as you can.
Obviously
17
I think it presents a discrete issue or two left over from the
18
major rulings already made.
19
How long would you need to respond?
20
MR. CONDRON:
21
22
23
Your Honor, I'm leaving the country on
July 5th for a week.
THE COURT:
Yes, but you're not doing it alone,
Mr. Condron.
24
MR. CONDRON:
25
THE COURT:
No.
I know you're not.
But, anyway, what were
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you going to suggest?
2
MR. CONDRON:
3
I would just ask for three weeks, just
to give a little leeway on that.
4
THE COURT:
July 23rd and reply?
5
MR. AXLINE:
6
THE COURT:
7
Maybe you've been doing this with me so long, that you
Ten days.
Oh, you got it again.
8
know exactly what the schedule is going to be.
9
take you to August 3rd.
So that would
That's the best I can do.
And I
10
hopefully, maybe with luck, can try to squarely address this
11
fast.
12
go fast.
If not, I'll get to it when I get to it, but I'll try to
13
Okay.
14
MR. AXLINE:
So, your Honor, this raises a related
15
issue, and that is the suggestion to remand itself, which will
16
be, I think, impacted by your ruling.
17
THE COURT:
18
MR. AXLINE:
19
THE COURT:
20
21
Of course.
I guess -I ruled on the declaratory half, and then
there's this darn issue.
MR. AXLINE:
Yes, I would suggest -- I think I would
22
like to hear from the defendants on this, but it would make
23
sense to hold off on the suggested remand until this gets
24
resolved.
25
THE COURT:
I think so.
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MR. PARKER:
Your Honor, Jeff Parker.
I would like to
address the declaratory relief point, if I could, briefly.
3
In 2006, your Honor --
4
THE COURT:
I know all that.
I stated it.
I gave you
5
the whole history of all my rulings.
I understand what I said
6
on one day, and I understand what I said on another day, and I
7
reviewed each of my statements, and I conclude, I conclude,
8
that the appropriate thing to do is to leave it in as a claim
9
because I was told -- I went through all this already.
10
should I repeat myself for the record?
11
Why
transcript.
12
Go ahead.
13
MR. PARKER:
You can read the
Your Honor, one thing, then:
With
14
respect to the 2011 opinion, they have represented in their
15
letter that your Honor held that debt relief was a viable
16
claim.
17
the introduction, it was a preface leading into their motion,
18
which was their motion for summary judgment on the OCWD act,
19
public nuisance and trespass, which your Honor denied.
20
a statement at the beginning essentially laying the groundwork
21
or the backdrop against which you were deciding.
22
any ruling reinstating or overruling --
23
That's actually not what the opinion said.
THE COURT:
This was in
So it's
It was not
No, no, I understand it wasn't reinstating
24
or overruling, but declaratory judgment, in some context, was
25
not ruled out, such as future expenses.
I pointed that out.
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Also, it was in the list of claims.
For a host of
2
reasons, this is the better way to go.
3
and you want to move to dismiss that claim explaining this
4
whole history, go ahead, but I think given all the various
5
rulings I've made over time, this is the better way to go.
6
MR. PARKER:
Once it's back there,
Thank you, your Honor.
As long as we
7
have that clear in the record, that given the opportunity back
8
in the district court, we could move against that, we're fine.
9
Thank you.
10
THE COURT:
You can explain why you think it applies
11
across the board when the original opinion in '06 clearly said
12
it's duplicative of the continuing nuisance, and that's why I
13
was striking it.
14
got to keep that judge busy, too.
15
But good luck, it's fine.
As I said, you've
So I think that takes us to the Rule 12 motions in
16
Puerto Rico.
And I don't know if there's a lot to say there
17
except that defendants complain plaintiffs have basically been
18
too busy to talk to them, and that the plaintiffs have said,
19
after June 15th, we promise to sit down with you.
20
today is June 18th, which is all of three days later, but the
21
promise is there.
22
sure that I don't have work I shouldn't have to do, the motion
23
to negotiate would be most appreciated.
24
agreeable to letting the motion deadline slip by a week or so,
25
so you can continue these talks and be as efficient as possible
I realize
If everybody would sit down and try to be
I might even be
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with what has to be briefed or not.
2
That seems to me that what I can say is that I want the
3
plaintiff to sit down with you and be as agreeable and
4
commonsensical as possible, and whatever is left over has to be
5
a motion.
6
MR. PARDO:
Okay.
What more can I say today?
That is actually very help.
7
Pardo, for Exxon Mobil, your Honor.
8
Jim
That's very helpful, your
Honor.
9
THE COURT:
I don't know why, but, good.
10
MR. PARDO:
No, it is because it's always helpful when
11
you encourage us to talk, but let me see if I can push it a
12
little further because I'd like a little more encouragement
13
from you to them.
14
THE COURT:
Okay.
15
MR. PARDO:
On May 7th, I talked to you about two
16
possible motions.
17
defendants in this case just couldn't figure out why they were
18
here.
19
couple of weeks.
20
One dealt with the fact that several
Those are conversations that should take place the next
Maybe we can get that worked out.
The other motion, though, pertains to these nonsite
21
specific I1Y claims that have been asserted in the second
22
Puerto Rico action.
23
to the same island-wide nonsite specific claims that were
24
asserted --
25
THE COURT:
They are identical or virtually identical
In Puerto Rico I?
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MR. PARDO:
-- eight years ago in Puerto Rico I, okay.
2
Our argument -- and you had this discussion with
3
Ms. Hannebut and Ms. O'Reilly a year ago -- is they're either
4
barred by the statute of limitations, because they clearly knew
5
by 2007 when they filed the first case, or at a minimum,
6
they're barred by the prior pending action.
7
hour ago, I don't need any more motions.
8
burden you with this motion, and a year ago, you said I don't
9
really want this to be a motion, they shouldn't be in the
10
11
You said this an
We don't want to
second.
THE COURT:
I still think that, at least listening to
12
one side; it's always very convincing when one side is heard.
13
But you make it sound right, either prior pending or statute of
14
limitations, island-wide nonspecific site claims are gone.
15
They're seven years too late at least.
16
point, but I'd like the plaintiff to get to that point
17
themselves or explain why not.
18
Mr. Gilmour.
19
MR. GILMOUR:
Yes, your Honor.
I understand your
If I might just for a
20
moment talk about the May 7th teleconference that Mr. Pardo is
21
referencing.
22
remember, your Honor, that Mr. Kauff explained to you, Scott
23
Kauff, that there were additional new defendants that were
24
added, either 12 to 18, and you yourself said, your Honor,
25
that -- we represented that we did not believe the prior
We did have that conversation.
You may also
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pending action doctrine would apply to them.
2
that sounds right to me, Mr. Pardo, do you agree.
3
said, I think that's right.
4
THE COURT:
5
6
7
8
9
You yourself said
He also
But there's still the statute of
limitations.
MR. GILMOUR:
Yes, your Honor.
And to the extent that
we can have those conversations with defendants, we will.
THE COURT:
now, do it fast.
Okay, good.
That's all I'm saying, do it
The motion date is June 29th.
I would be
10
amenable if they sit down with you quickly to letting that slip
11
by a week or so.
12
have to do it.
But this has got to get briefed, too, if I
13
MR. PARDO:
We don't want to have to do it.
14
THE COURT:
I agree.
15
MR. PARDO:
Let me say this, though.
I'm not afraid
16
to admit when I'm wrong.
When I said that the prior pending
17
action doctrine -- on that call, when I said, yeah, that sounds
18
right to me, I was wrong.
19
THE COURT:
Even if they weren't parties?
20
MR. PARDO:
Even if they weren't parties.
And there's
21
Southern District case law on this cited in our letter to them
22
on June 8th, you do not need identical parties between you.
23
got the same claims.
24
of the new parties are just subs or affiliates of parties from
25
the first action.
We
Basically the same parties because most
We got the same categories of parties.
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Everything that needs to line up for invocation of the prior
2
pending action doctrine lines up here.
3
THE COURT:
They have two good answers.
4
see if this motion has to be made.
5
You have to
happy if it's made, and it's open and shut.
6
MR. GILMOUR:
7
THE COURT:
8
MR. GILMOUR:
9
I'm not going to be real
Understood.
But you'll decide, Mr. Gilmour.
Yes, your Honor, understood.
And,
again, we're happy to discuss it with them.
10
MR. PARDO:
Did we pick the date --
11
THE COURT:
Not yet.
If I hear that you sit down and
12
are really talking, and I get a joint letter saying we are
13
talking after the conference with you where you were so strong
14
in your encouragement we actually met, could we have another
15
ten days, I'm inclined to say yes, but I don't want to do it
16
now.
17
make a motion June 29.
If they're not going to sit down with you, you have to
18
MR. PARDO:
I like that approach.
19
THE COURT:
If they don't sit down in the next few
20
days, you start writing.
21
MR. PARDO:
22
MR. GILMOUR:
23
THE COURT:
24
25
All right.
Fair enough.
Thank you.
And that was the last -- I think the last
item on my agenda.
Is there anything else anyone of the vast number of
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lawyers here wants to raise?
2
MR. AXLINE:
3
THE COURT:
Next conference, your Honor?
That's always a good one.
Do you have a
4
suggestion?
When will it be ripe, so to speak?
5
think what dates.
6
affect the next conference.
7
out in Pennsylvania, I've given guidance on that.
8
like the usual, one month.
Nothing really was set here that would
9
MR. AXLINE:
10
THE COURT:
11
MR. AXLINE:
12
13
14
15
I'm trying to
I want to get that CMO hammered
So it sounds
Sort of mid to late July?
Yes.
When everybody's away.
Particularly for the CMO.
I think it's
more likely people will be gone in August.
THE COURT:
vacations.
Okay.
It's nice that some people take
Anyway mid to late July.
Any suggestions?
They're all the same to me.
16
know what days you prefer traveling.
17
You
You don't like Mondays
and Fridays, right?
18
MR. AXLINE:
19
MR. PARDO:
20
MR. AXLINE:
21
THE COURT:
Tuesday, Wednesday or Thursday.
22
MR. AXLINE:
Right, the last week in July.
23
MR. PARDO:
24
25
Correct.
No.
I don't have a calendar in front of me --
Well, that would be the 30th is a
Thursday, the 23rd is also a Thursday.
THE COURT:
It's the third --
I think one of those, I might be away.
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The ABA has me for something.
2
One second.
Oh, ABA is the very last week, so I guess like the
3
29th.
4
aren't good, but everything else is.
So everything is good except the 29th and 30th.
5
MR. PARDO:
The 28th is a Tuesday, your Honor.
6
THE COURT:
That's okay.
7
MR. PARDO:
Sure.
8
THE COURT:
Done.
9
Okay.
Those
I like it.
28th at 2:30?
July 28th at 2:30.
Everyone, good to see you.
10
COUNSEL:
11
(Adjourned)
Thank you, your Honor.
12
13
14
15
16
17
18
19
20
21
22
23
24
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