Sarah London, Lieff, Cabraser Heimann & Bernstein 

Lawyers leading the litigation over the water crisis in Flint, Michigan, have submitted a diverse group of attorneys to serve as settlement counsel, along with a retired judge to oversee the allocation process, should both sides reach a deal to resolve the legal claims.

In a Thursday motion, lead plaintiffs counsel floated the names of five attorneys to serve as settlement counsel for various subclasses of claimants, such as children with personal injuries and businesses with economic losses. They also suggested that retired U.S. District Judge Layn Phillips of the Western District of Oklahoma, who was a mediator in last month’s Equifax data breach settlement, serve as “neutral settlement facilitator.”

In submitting the names, co-lead class counsel Ted Leopold and Michael Pitt said they were filing the motion “in contemplation of the possibility of reaching a settlement with some or all of the defendants.” They said having separate settlement counsel would ensure adequate representation of a disparate group of claimants and avoid the risk that a class action agreement would unravel. A neutral, such as Phillips, would ensure the allocation process was fair, they wrote.

“Here, class counsel propose subclass settlement counsel to serve solely for the limited purpose of negotiating settlement allocation and a distribution plan on behalf of their respective subclass members,” they wrote. At the same time, they wrote, they would continue to move the case forward toward trial.

In Thursday’s motion, Leopold and Pitt acknowledged the challenges in their case.

“Many were hurt by the Flint water crisis and their desire for justice cannot be understated,” they wrote. “Yet, as the court is aware, the avenues for recovery in this matter present several challenges.”

Reed Colfax, Relman, Dane & Colfax (Photo: Courtesy Photo)

Leopold, a partner at Cohen Milstein Sellers & Toll in Palm Beach Gardens, Florida, declined to comment about the motion. The five proposed settlement counsel did not respond to requests for comment. They are Reed Colfax, a partner at Relman, Dane & Colfax; Vincent Ward, a partner at FBD Law; Sarah London, a partner at Lieff Cabraser Heimann & Bernstein; Dennis Reich, a partner at Reich & Binstock; and Seth Lesser, founding partner of Klafter Olsen & Lesser.

The submission of settlement counsel is the latest chapter in a case filed in 2017 on behalf of Flint residents with health problems and businesses suffering diminished property values after government officials switched the source of their drinking water. It is one of several cases pending over the Flint water crisis.

In April 2014, state officials decided to shift Flint’s water supply from Lake Huron to the Flint River, despite studies warning that the corrosive nature of the river could risk lead getting into the drinking water.

Last year, U.S. District Judge Judith Levy of the Eastern District of Michigan in Ann Arbor, appointed two mediators in the consolidated class action: former U.S. Sen. Carl Levin, D-Michigan, and former Wayne County Chief Judge Pro Tem Pamela Harwood. She also appointed a special master, Deborah Greenspan, a partner at Blank Rome in Washington, D.C., to oversee attorney billing and other matters after a fee fight broke out among the lead plaintiffs attorneys.

Procedural hurdles also have mired the litigation, with the latest rulings, by Levy, paring down the class claims, then reinstating former Michigan Gov. Rick Snyder as a defendant. Defendants are city and state officials, along with three engineering firms.

In June, state prosecutors in Michigan dropped criminal charges in the Flint case against eight government officials but vowed to reopen an investigation. At a town hall later that month, Pitt, of Pitt McGehee Palmer and Rivers in Royal Oak, Michigan, assured Flint residents that a settlement of their civil claims was still possible.

Last month, Levy ordered lawyers to file a motion seeking appointment of a negotiating subclass.

On July 29, Leopold and Pitt suggested the names of five law professors: Steven Croley and Kimberly Thomas, both of the University of Michigan Law School; Joshua Davis of the University of San Francisco School of Law; Mable Martin-Scott of Western Michigan University’s Cooley School of Law; and Myriam Gilles of Benjamin N. Cardozo School of Law, at Yeshiva University in New York.

Two days later, Levy struck down the suggestions, primarily because none of the law professors had much experience representing clients in actual class actions.

“The court appreciates the efforts interim co-lead class counsel have undertaken to protect the integrity of the class process, but unfortunately the proposal fails to meet the requirements for the appointment of interim subclass settlement counsel,” she wrote. “Indeed, not one of the proposed interim subclass settlement counsel states that they have ever been part of negotiating a settlement in a class action.”

She also questioned whether any of the law professors could “take a leave from their teaching obligations to devote the kind of time and attention this case will require in the coming months.”

Following an Aug. 7 hearing, Levy ordered lawyers to submit a revised motion this week. She set the next status conference for Sept. 25.

The new slate addressed the judge’s concerns, Leopold and Pitt wrote. According to their motion, they addressed concerns about the class action with Greenspan in a May 28 memo, suggesting the idea of appointing subclass settlement counsel to “advocate for each category of claimants should a gross settlement be reached and an allocation process ensue.” In a footnote, they said New York University School of Law professor Samuel Issacharoff, an expert on class actions, had agreed to advise them on the matter. Issacharoff also is working with plaintiffs lawyers in the multidistrict litigation over the opioid crisis who have proposed a “negotiation class” for purposes of a possible settlement.

In addition to the Equifax deal, Phillips, founder of Phillips ADR Enterprises in Newport Beach, California, mediated the NFL concussion litigation and sexual abuse cases brought against Michigan State University.

Here is more about each of the proposed settlement counsel:

• Colfax, in Washington, D.C., would serve as counsel for a subclass of children asserting injuries. He previously has served as an attorney with the NAACP Legal Defense Fund Inc. and the Washington Lawyers’ Committee for Civil Rights and Urban Affairs.
• Ward, in Albuquerque, New Mexico, would serve as counsel for a subclass of adults alleging injuries. The Obama Administration appointed him to serve as senior counsel to Solicitor Hilary Tompkins at the U.S. Department of Interior.
• London, in San Francisco, would serve as counsel for a subclass of claimants alleging property damages. She has represented plaintiffs in environmental disaster cases involving gas leaks and oil spills in California and helped allocate a $100 million settlement for 400 smokers in Florida against cigarette companies.
• Reich, in Houston, would serve as counsel for a subclass of class members alleging business losses. Frequently appointed in mass torts, he previously served on the economic loss and damage committee in the Deepwater Horizon oil spill litigation.
• Lesser, in New York, would serve as counsel for a subclass of claimants who may allege injuries in the future. He obtained the “first certification under New York law for a medical monitoring class” in the litigation over Fen/Phen diet drugs, according to the motion.