After 20 years of litigation, it's back to the drawing board for Colorado residents who claim that contamination from the defunct Rocky Flats nuclear weapons plant damaged property values. On September 3 a panel of the U.S. Court of Appeals for the Tenth Circuit vacated a nearly $1 billion judgment against successive operators of the plant, The Dow Chemical Company and Rockwell International Corporation.
Kirkland & Ellis' Christopher Landau argued the successful appeal for Dow and Rockwell; Berger & Montague's Peter Nordberg and Merrill Davidoff led for local residents at trial and on the appeal.
The suit stems from allegations that the Rocky Flats plant, located near Denver, contaminated the surrounding area and deflated property values. From 1952 until 1975, the plant was operated by Dow. It was then taken over in 1975 by Rockwell. Rockwell ran the facility until 1989, and the government ultimately shut the plant down in 1992. (Rockwell was acquired by The Boeing Company in 1996.)
In 1992, Rockwell pleaded guilty to environmental crimes and agreed to pay the federal government an $18.5 million fine. In 1990 a class action was filed in federal district court in Denver on behalf of residents living near the site against both Dow and Rockwell.
After years of intensive motion practice and prolonged discovery, the matter finally went to trial in 2005, with a jury returning its verdict in favor of plaintiffs in 2006. In 2008, Denver federal district court judge John Kane awarded plaintiffs $926 million.
Then came Kirkland's appeal; American Nuclear Insurers and the Nuclear Energy Institute also submitted briefs in support of Dow and Rockwell. The three-judge panel vacated the class on the grounds that the lower court incorrectly ruled plaintiffs didn't have to show any actual damages. At press time the case was headed back to the district court to determine whether plaintiffs can adequately prove damages to justify class certification.
FOR PLAINTIFFS COOK ET AL.
Berger & Montague: Merrill Davidoff, Peter Nordberg, and David Sorensen. (Nordberg is deceased; the rest are in Philadelphia.)
Holland & Hart: Marcy Glenn. (She is in Denver.)
Waite, Schneider, Bayless & Chesley: Louise Roselle. (She is in Cincinnati.)
Silver & DeBoskey: Gary Blum and Steven Kelly. (They are in Denver.)
FOR DEFENDANTS THE DOW CHEMICAL COMPANY (MIDLAND, MICHIGAN) AND THE BOEING COMPANY (CHICAGO)
Kirkland & Ellis: Douglas Kurtenbach, Christopher Landau, Mark Nomellini, Philippa Scarlett, and associates John Crisham and Peter Wozniak. (Landau, Scarlett, and Crisham are in Washington, D.C.; the rest are in Chicago.) Kirkland represented both clients on appeal. Dow Chemical is a longtime client.
FOR AMICUS NUCLEAR ENERGY INSTITUTE (WASHINGTON, D.C.)
In-House: Vice president, general counsel, and secretary Ellen Ginsberg, deputy general counsel Michael Bauser, associate general counsel Anne Cottingham, and assistant general counsel Jerry Bonanno.
K&L Gates: Charles Rysavy. (He is in Newark.) The institute is a longtime client of the firm.
Jose & Associates: Donald Jose. (He is in West Chester, Pennsylvania.)
FOR AMICUS AMERICAN NUCLEAR INSURERS (GLASTONBURY, CONNECTICUT)
In-House: Vice president of liability claims Marjorie Berger.
Harkins Cunningham: John Harkins, Jr., and Simon Steel. (Harkins is in Philadelphia; Steel is in Washington, D.C.)
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