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Archive for the ‘Lawsuits’ Category

Old pro Former Gov. Edwin Edwards comes out swinging at opponent Garret Graves at Baton Rouge Press Club meeting

Posted in Coastal Erosion, Commissions, Congress, Contract, Contracts, Corruption, Elections, Ethics, Fraud, Governor's Office, Grant, Grants, House, Lawsuits on November 24, 2014| 10 Comments »

Former Gov. Edwin Edwards, who has been uncharacteristically quiet in his campaign to succeed U.S. Rep. Bill Cassidy for Louisiana’s 6th Congressional District seat, came out swinging at his opponent at Monday’s appearance before the Baton Rouge Press Club.

At the same time, the campaign of his opponent, Garret Graves, Gov. Bobby Jindal’s hand-picked candidate, appears to be doing everything it can to go into a self-destruct mode with Graves following smear tactics against a first primary opponent with a vitriolic email-writing campaign to reporters perceived by him to be antagonistic.

One veteran Baton Rouge reporter described Graves’ strange behavior as the campaign enters its stretch drive as “weirdly Nixonian.”

Edwards was also critical of Graves’ role in attempts to stifle the lawsuit against 97 oil and gas companies by the Southeast Louisiana Flood Protection Authority-East (SLFPA-E). “Someone needs to restore our coastal lands and who better than the ones who destroyed it?” he asked.

The event was intended to serve as a face-off between the two candidates, but Graves chose not to attend.

Edwards, meanwhile, took the opportunity of renewing earlier claims of $130 million contracts awarded to Graves’ father under his watch as President of the Coastal Protection and Restoration Authority (CPRA) and director of the Governor’s Office of Coastal Activities.

“Not only was he responsible for $130 million in contracts to his father’s engineering company,” Edwards said, “but 18 sub-contractors got another $66 million in contracts. Those companies gave $250,000 to Graves’ campaign and $360,000 to Gov. Jindal’s campaign. This is a scheme by Jindal and Graves to maintain and to perpetuate the control of the flow of dollars from the Corps of Engineers and the BP spill.

“Gov. Jindal took $160 million in BP grant funds and wasted it on the construction of a sand berm and gave the contract to a Florida firm. That berm, as was predicted, is long gone.

“Jindal then took another $35 million to $40 million to build the million-square-foot Water Campus in Baton Rouge,” Edwards said.

He said the Water Campus office complex and research center under construction in Baton Rouge, will house the agency Graves once headed. The leasing agent for office space in the facility, Edwards said, is Randy White, Graves’ brother-in-law. “They’re going to lease one million square feet of office space at probably $25 to $50 per square foot,” he said. “At a commission of 2 or 3 percent, that’s a $1 million a year. I guess it would be accurate to say Graves is a family man.”

More recently, Graves has ramped up an email-writing campaign to reporters that borders on paranoia, accusing veteran reporters of ganging up on him, not liking him, and being against him. The emails more resemble incoherent rants than logical communications with some making wild accusations, a tactic that has puzzled various recipients.

Edwards reserved most of his disgust, however, for Graves’ smear campaign against Paul Dietzel, III, in the Nov. 4 primary election. Graves intimated during the campaign that Dietzel, grandson of legendary former LSU football coach Paul Dietzel, was gay.

“At the time, the contest for the runoff position was between Graves and Dietzel,” Edwards said. “Dietzel is a fine young man and he never recovered from that scurrilous attack.” Dietzel finished third in the primary with 13.55 percent of the vote. Graves finished second to Edwards with 27.36 percent.

Edwards said that while he has not spent any money on media advertising “because I really didn’t think it was necessary,” he intends to begin a media blitz early next week.

He and Graves are scheduled to meet in their only scheduled head-to-head debate in Denham Springs next Tuesday.

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Du Pont files motion to block testimony about chemical leak violations in Ascension case 4 days after Texas plant deaths

Posted in Campaign Contributions, Courts, Governor's Office, Lawsuits, Taxes on November 23, 2014| 4 Comments »

Attorneys for the E.I Du Pont have filed a motion in limine which seeks to block plaintiffs in the pending litigation against the Ascension Parish plant from citing reports of prior leaks and regulatory proceedings against DuPont “not related to the gas leaks” at the Burnside facility.

DuPont’s motion is particularly timely in that it was filed only four days after the deaths of four DuPont workers following a toxic gas release at a Du Pont plant in La Porte, Texas.

Limine (lim-in-nay) is Latin for “threshold,” and is a motion made at the outset of a trial that requests that the presiding judge rule that certain evidence may not be introduced in trial.

A 22-year employee of DuPont’s Burnside plant filed a confidential lawsuit in the Middle District Federal Court in Baton Rouge two years ago which became known only last March that claims the plant has consistently been experiencing toxic gas leaks on almost a daily basis for more than two years without reporting the leaks to the Environmental Protection Agency (EPA) as required by the Toxic Substances and Control Act (TSCA) of 1976. https://louisianavoice.com/2014/03/31/whistleblower-claims-duponts-burnside-plant-has-been-leaking-carcinogenic-sulfer-trioxide-more-than-two-years/

Plaintiff Jeffrey M. Simoneaux, an Ascension Parish native who served for 14 years as chairman of the plant’s Safety, Health and Environmental Committee, also claims he was harassed, intimidated and denied promotions after he said he complied with DuPont’s own internal procedures for reporting a leak of sulfur trioxide (SO3) gas, a known carcinogen which is regulated under the Toxic Substance Control Act (TSCA) of 1976 and was reprimanded for doing so.

The case, should it go to trial, would be heard by Federal District Judge Shelly Dick and Magistrate Judge Stephen Riedlinger.

Simoneaux, who filed his suit under the 151-year-old False Claims Act (FCA), has listed as trial exhibits documents pertaining to leaks and releases at other DuPont plants, some of which have resulted in settlements with the government. He also has listed documents as yet to be obtained from various EPA offices through Freedom of Information Act requests that seek information about enforcement actions against DuPont.

“Because the exhibits regarding other leaks and enforcement actions do not relate to the leaks at the Burnside facility, (Simoneaux), his counsel and witnesses should be prohibited from mentioning, in any manner in the presence of the jury, such leaks, releases or regulatory proceedings,” said DuPont attorneys Monique Weiner and Lori Waters of the New Orleans firm of Kuchler, Polk, Schell, Weiner & Richeson in their memorandum that accompanied the actual motion.

“Evidence of leaks at other DuPont facilities and/or regulatory action against DuPont arising from situations not involving the gas leaks at the Burnside facility is irrelevant to the issues for determination by the jury in this case,” the motion says.

“DuPont will object to the introduction of such exhibits at trial as they are sought to be used or introduced,” it says. “But in advance of trial, DuPont seeks an order that counsel and the witnesses may not refer to these matters in questioning, testimony, during opening statement or in closing argument.”

The motion cited United States v. Beechum, a 1978 case which the defense attorneys say “requires a showing that the prior acts sought to be introduced are ‘relevant to an issue other than the defendant’s character. At the heart of this relevance inquiry is a question of similarity: ‘The relevance…must be determined with respect to the particular issue…”

The motion said that even if the court determines there is relevance, “the evidence would be confusing, prejudicial and a waste of time.”

A seven-member team of investigators from the Chemical Safety Board, the Occupational Safety and Health Administration (OSHA), and the Chemical Safety Board have already begun looking into the La Porte deaths of the four men, including two brothers. Among the first discoveries:

  • The men had been trapped for an hour by the poisonous methyl isocyanate for an hour before anyone at the plant called 911 at 4:13 a.m.;
  • It is unclear if the workers killed had any advance knowledge or warning of the degree of toxicity inside the unit;
  • Methyl isocyanate (MIC) is the same chemical that escaped a Bhopal, India, plant in 1984, killing more than 2,200 people;
  • Workers lacked quick access to breathing equipment that would have given them a chance at survival;
  • No DuPont official contacted a special emergency industrial response network called the Channel Industries Mutual Aide (CIMA), a nonprofit set up to deal with just such disasters;
  • It took 12 hours before DuPont confirm the four deaths;
  • DuPont never disclosed the size of its toxic inventory in reports filed annually with the La Porte emergency management officials;
  • Volunteer firefighters from nearby Deer Park who responded to the company’s 911 call were forced to rely on word-of-mouth to confirm quantities of the chemical leaked from the plant.

One other fact that could be crucial to Simoneaux’s case should Judge Dick deny the motion in limine and allow testimony about safety concerns at other plants:

The unit where the La Porte workers died had been shut down for five days before the Nov. 15 accident and workers had for months reported persistent maintenance problems, including inadequate ventilation in the unit.

Around 3:15 a.m., Gilbert Tisnado, 48, called his wife on his cell phone to tell her something had gone wrong in the unit. When he learned that his younger brother, Robert, 39, was among four men trapped in the unit, he grabbed an “escape pack” and entered the unit. Both brothers were among the four who subsequently died.

Firefighters found three bodies but only two tanks and masks inside the plant. Each was equipped with only five minutes of air—time for an emergency escape but not for a rescue mission.

Though the 911 call from DuPont was made at 4:13 a.m., more than two hours went by before “fenceline” air monitoring was conducted to learn if hazardous levels of chemicals had escaped the plant, leaving the community dependent upon DuPont to know if it was safe to go outside.

It also was unknown if DuPont even had any comprehensive toxics fenceline monitoring, said Adrian Shelley, director of the Air Alliance Houston advocacy group.

The refining industry, especially, has balked at calls for continuous fenceline monitoring, which provides streams of data about what gases are leaving a plant but can cost tens or hundreds of thousands of dollars, Shelley said. A U.S. Environmental Protection Agency rule that would require such systems at refineries is under review. Even if adopted, it wouldn’t apply to the DuPont plant because it doesn’t refine fossil fuels.

Simoneaux filed his lawsuit more than two years ago, on April 16, 2012, but because it was filed under seal, meaning it was not released to the media, its existence, along with DuPont’s October 2013 answers to discovery, has only recently been made public.

Simoneaux said DuPont identified gas leaks to which it will respond “only by visible assessment and (it) has no monitors at equipment sites.”

DuPont, headquartered in Wilmington, Del., was ranked 72nd on the Fortune 500 in 2013 and reported 2012 profits of nearly $2.8 billion, down more than 19 percent from 2011, according to a report by CNN Money.

Despite profits from its worldwide operations which employ 60,000 people, DuPont has for years avoided paying any federal income taxes.

The company has contributed more than $21,000 to various state politicians since 2003, including $4,500 to Gov. Bobby Jindal. Its plants in Burnside and in St. John the Baptist Parish have been granted more than $21 million in various state tax credits.

Those included, in order, the project, the year, parish, total investment, tax exemption and number of new jobs created:

  • Plant expansion, 2010, St. John the Baptist, $93 million $1.4 million five-year tax credit, 11 new jobs;
  • Plant expansion, 2008, St. John the Baptist, $58.8 million, 10-year property tax exemption of $10.9 million, five new jobs;
  • Retrofit project, 2010, Ascension, $72.2 million, 10-year property tax exemption, $541,000, three new jobs;
  • Miscellaneous capital addition, 2010, St. John the Baptist, $1.3 million, 10-year property tax exemption, no new jobs;
  • Plant addition, 2009, St. John the Baptist, $6.7 million, 10-year property tax exemption of $1.2 million, no new jobs;
  • Plant addition, 2009, Ascension, $45 million, 10-year property tax exemption, no new jobs.

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DOA, OGB backtrack on medical/pharmaceutical plans in face of litigation threat; to refund $4.5M to OGB members

Posted in Attorney General, Courts, DOA, Finances, Governor's Office, Health Care, Lawsuits, Legislature, Legislators, OGB, Office of Group Benefits, RFP, Request for Proposals on November 5, 2014| 11 Comments »

You have to love the Division of Administration (DOA) and the Office of Group Benefits (OGB). Their concern for the 230,000 state employees, retirees and dependents is surpassed only by their arrogance.

Saying “We heard the financial concerns of our members and Legislators,” Commissioner of Administration Kristy Nichols made the self-serving announcement that OGB has decided to delay the effective date of changes arbitrarily (and illegally) implemented to medical and pharmacy plans from Aug. 1 to Sept. 30. OGB RELEASE

Here is the information provided on the OGB web site: https://www.groupbenefits.org/portal/pls/portal30/ogbweb.get_latest_news_file?p_doc_name=4D7A4D344D6A45794E533551524559334E6A4D32

Never mind that State Rep. John Bel Edwards (D-Amite) told Nichols and OGB CEO Susan West back on Sept. 25 that they were flirting with major litigation and the threat of having to refund millions of dollars to OGB members who were hit with benefits changes which were illegal until such time as a rule could be adopted. Here is the link to video clips of that hearing: http://youtu.be/ct652tBa8Mc.

Except for Edwards who said the move was illegal. He requested and obtained an Attorney General’s opinion that agreed with him.

            Nichols, as is her custom, was not going to promulgate rules at all in implementing the new rates members would have to pay for prescriptions even though the law requires advertisement and public hearings on such changes. Instead, the administration, facing a shrinking OGB reserve fund because of its repeated premium cuts, plunged ahead, the law and state employees be damned.

The premiums were reduced so that the state would enjoy a similar reduction in the 75 percent of premiums it is required to pay for health coverage of OGB members. Gov. Bobby Jindal and Nichols cut the rates by nearly 9 percent despite a report from Buck Consultants which stated flatly that it never made such actuarial advice.

Pursuant to testimony given in the Sept. 25 hearing by the Joint Legislative Committee on the Budget (JLCB) in which Kristy said Buck Consultants had recommended a premium reduction, Edwards requested a copy of the actuarial recommendations.

            “I still have not received any actuarial recommendations for the 2013 and 2014 premium reductions at OGB,” Edwards said Tuesday. “Nor have they told me that such recommendations do not exist. Clearly, they do not.”

The OGB web site does contain a request for proposals (RFP) for an actuarial that is dated Sept. 26: https://www.groupbenefits.org/portal/pls/portal30/ogbweb.get_latest_news_file?p_doc_name=4D7A4D774E4445794D793551524559334E444531

The Baton Rouge Advocate said the refunds the state must now make to OGB members who were overcharged in the form of out-of-pocket expenses will come to nearly $4.5 million and is expected to be refunded within 60 days.

http://theadvocate.com/news/10718472-123/group-benefits-change-announced

Getting the refunds for the overcharges won’t be a walk in the park if past experience with the OGB pharmaceutical benefits administrator is any indication. “Members who incurred increased pharmacy costs between Aug. 1 and Sept. 29 based on exclusions must submit an appeals form to MedImpact,” said the news release from OGB, adding that Blue Cross and Blue Shield of Louisiana (BCBS) will reprocess claims for members who incurred increased medical costs through their providers during that time period. There is an appeals form for MedImpact on the OGB web page, but it appears to apply only to prescriptions that were rejected or denied by pharmacies in August and September: https://www.groupbenefits.org/portal/pls/portal30/ogbweb.get_latest_news_file?p_doc_name=4D7A4D344D6A45794E693551524559334E6A4D33

“If members incurred costs that were not submitted through a provider, they must submit an appeal request form to Blue Cross and Blue Shield,” the release said. “The forms can be found on the OGB website at www.groupbenefits.org.”

Edwards said the burden should not be placed on state employees and retirees to file appeals on overpayments. “Group Benefits has the claims information and they should be required to make the determination of who is owed what and it should be Group Benefits that takes the initiative on this,” he said.

Of course, by placing the onus on employees and retirees, DOA is counting on members being unfamiliar with the process or uninformed about the refund program altogether. If they do not file appeals for refunds, no refund will be made and the state will not have to repay victims of the overcharges. “That’s why Group Benefits should be the one responsible for seeing to it that everyone who was overcharged because of its illegal actions in implementing the changes in the first place should get those overcharges refunded,” Edwards said. “The members should not be held responsible for the illegal actions of Group Benefits and DOA.”

Here are links to the after-the-fact DOA Emergency Rule declaration: http://www.doa.louisiana.gov/doa/Presentations/Emergency_Rules_-_Office_of_Group_Benefits_9-30-2014.pdf and DOA’s Notice of Intent: http://www.doa.louisiana.gov/doa/Presentations/Ordinary_Rule_-_Office_of_Group_Benefits_10-01-2014.pdf

The clumsy attempt at circumventing the law is just another in a long line of embarrassing episodes perpetrated by the Jindal administration as the governor pays less and less attention to the home front in his quest for the Republican presidential nomination, leaving the job of running the state to appointees equally unqualified as he to run so much as a snow cone stand.

Nichols typically ignored the threat of litigation in making the announcement just as the administration ignored the law in implementing the changes, even disagreeing in that Sept. 25 hearing on the necessity of publishing the proposed changes and conducting public hearings.

And West even attempted to justify the changes by pointing out to retirees and active members that she must pay the same premiums as they. She apparently failed to consider the fact that most state employees and certainly most retirees do not make her $170,000 per year salary.

The Retired State Employees Association (RSEA) threatened a lawsuit, challenging the administration’s contention that it could use the emergency rule (employed repeatedly by the administration during Jindal’s nearly seven years in office) to make changes in the medical and pharmacy plans.

Nichols was not even around for the conclusion of that Sept. 25 JLCB meeting, having stepped out of the committee room ostensibly to take an “important” phone call. In reality, it turned out she stepped out permanently to take her daughter to a boy band concert in New Orleans where she watched from the comfort of the governor’s luxury box at the Smoothie King Arena (see the snow cone stand reference above).

“Let’s hope that the legislature will continue to exercise oversight on this issue to drive more changes in the plans whereby the out-of-pocket cost increases of OGB members are reduced and (so that) the state will share in the cost of restoring the system’s soundness,” Edwards said in a prepared statement.

 

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Notable Quotables (in their own words)

Posted in Courts, Ethics, Judges, Lawsuits, Notable Quotables on October 26, 2014| 2 Comments »

“Judge Free’s actions have harmed the integrity of and respect for the judiciary.”

—Report of the Louisiana Judiciary Commission on 18th Judicial District Court Judge Robin Free, who accepted a free flight on the private jet of a plaintiff attorney who had just won a $1.2 million settlement of a personal injury case presided over by Free. The seriousness of Free’s breach of ethics notwithstanding, the judicial commission recommended only a 30-day suspension.

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West Baton Rouge judge accepts free flight from plaintiff lawyer who wins $1.2M in his court; what was he thinking?

Posted in Corruption, Courts, Ethics, Judges, Lawsuits on October 26, 2014| 3 Comments »

Did you ever have one of those what were you thinking moments?

We’re talking about when you do something that in hindsight simply defies all logic. You’ve seen them in stupid criminal emails and on videos.

Whenever we watch the local newscast and see a report of some incredibly stupid criminal action in which the perpetrator had to have known things wouldn’t end well, we find ourselves wishing we just sit across the table from him, just us, and ask him, “What were you thinking? How did you think this turn out?”

Usually, it’s some petty thief or someone from an uneducated background whose rash judgment overrides his ability to think things through to the obvious conclusion of terrible consequences.

Someone like the hapless bank robber in one Baton Rouge-area city several years who slipped a “This is a robbery” note in the drawer at a bank drive-through window—a bullet-proof window, no less. The teller read the note, turned it over and wrote, “I don’t see a gun” and sent the note back to the nervous driver who promptly placed his gun in the drawer and sent it in to the teller. What was he thinking?

But you wouldn’t normally associate such transgressions with a high profile individual like a district judge who took an oath to uphold the law and to protect the citizenry from the lawless, a judge who no doubt pledged to “be tough on crime” when he was running for office. Nor would you think the question would apply to the state Judiciary Commission which meted out a recommendation for a 30-day suspension for the errant judge, a mere slap on the wrist for a serious breach of judicial ethics that might well have deserved a permanent suspension.

Judge Robin Free of West Baton Rouge Parish is guilty of one of the most blatant what were you thinking? flaunting of ethics and he compounded his sin when he attempted to minimize the severity of his actions by claiming he was unfamiliar with the judicial canons governing such behavior.

And it wasn’t even Free’s first offense, which should have provoked the commission’s fury at his arrogance.

Here’s what happened. Free presided over the trial of a class action lawsuit in which a): his mother was a potential plaintiff and b): he accepted a free flight to a south Texas hunting camp—on the private jet of a plaintiff attorney only days after that attorney had won a $1.2 million settlement in Free’s court in another case.

What was he thinking? Most likely that he wouldn’t get caught.

The flight to the Casa Bonita Ranch in Goliad County south of Corpus Christi was made at the suggestion of Assistant District Attorney Tony Clayton who regularly appears in matters before Free. Both men represent the 18th Judicial District, which includes West Baton Rouge Parish. Clayton supposedly was interested in purchasing the property but ultimately did not.

But here’s the rub: The ranch is owned by Texas attorney David Rumley who, it turned out, was working with Clayton on the personal injury case and judiciary commission determined the invitation came “at or near the time of settlement negotiations” in the case.

Free described the trip as “just some friends going to look at some property together and boiling crawfish and hanging out,” according to the Baton Rouge Advocate. http://theadvocate.com/news/10518947-123/judiciary-commission-recommends-30-day-suspension

Free, in an incredulous admission, said there were “a lot of things I was not aware of in the canons.”

It’s something of a stretch for someone who has probably told a defendant or two that ignorance of the law is no excuse to attempt to plead ignorance, especially for a man who has been on the bench for 17 years—since 1997—and who has had previous dust-ups with the judiciary commission.

In 1998, only a year after taking office, Free was “cautioned” by the judiciary commission after an earlier hunting lodge relationship that resulted in accusations of a biased decision. And in 2001, Free signed what is known as a deferred recommendation of discipline agreement with the commission following his failure to recuse himself from a case in which he had previously served as the prosecutor of a defendant.

Then in 2005, he again came under criticism and was given a warning by the commission to avoid appointments which might create the appearance of impropriety after he named a political ally ex parte as a temporary liquidator in a case.

In the class action case involving Free’s mother, his attorney, Steven Scheckman, called it a misunderstanding and said his client was a “fall guy” for a mapping error that had gone unnoticed in the class action for two years.

But the special counsel for the judiciary commission said an attorney for Dow Chemical, a defendant in the matter, had informed Free of the conflict in a letter to the judge. Instead of calling a status conference involving all the parties, however, Free instead improperly called the attorney’s law partner to complain—yet another breach of judicial canons.

Scheckman said Free had not known the boundaries in the class action had been changed by a prior judgment to include his mother’s address even though it was Free who signed the judgment, all of which prompted Baton Rouge Advocate columnist James Gill to observe that Scheckman’s protestations of ignorance on the part of his client were “unlikely to wash.”

http://theadvocate.com/news/acadiana/10544318-123/james-gill-free-ride-in

Called before the Judiciary Commission, Free took a strategy that has become all too familiar whenever any high profile individual, be it an elected official or professional athlete: he publically apologized for his bad judgment.

But a judge should not be making bad judgments. And these contrite admissions, coming as they always do after the sinner is caught, are becoming a little thin and time worn—and void of any real substance.

As Gill pointed out, the opinion put forth by the Judiciary Commission that Free should have known better because of his seniority on the bench is laughable. “The sleaze here is so obvious that no judicial experience whatsoever is required to recognize it,” he wrote.

But Gill did not limit the sleaze factor to Free; he also took the Supreme Court and the Judicial Commission to task, criticizing them for the practice of keeping judicial disciplinary matters secret until the ethics violations become so blatant as to demand public airing.

He said the Office of the Special Council recommended to the Judiciary Commission that Free be suspended for a full year but the commission reduced its recommendation to 30 days, a sentence Gill called “derisory.”

Saying Free might not have been re-elected unopposed in his last run for office had his ethical lapses been known to the public, Gill added that “Litigants have no way of knowing how many more Judge Freerides are out there” and that if Free really did not understand what he had done wrong, he is “too stupid to be a judge.”

We can certainly concur in that evaluation and for our part, we’re still waiting for a politician to apologize for some wrongdoing before he is caught. That would be a public official we could trust.

 

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