Proposal:
Amend Contract with Shute, Mihaly & Weinberger for Continuing Litigation
Synopsis:
In response to a 1993 RFP, AQMD selected Shute, Mihaly & Weinberger as one of two firms assisting District Counsel in handling litigation. The firm is currently leading the defense on two key cases challenging NOx and SOx RECLAIM, and is assisting on a number of other cases. Fiscal year 1995-96 expenses to date are approximately $40,000; it is estimated that an additional $20,000 will be needed, bringing the total to $60,000.
Committee:
Administrative, March 22, 1996, Recommended for Approval.
Recommended Action:
Authorize the Chairman to execute an amendment to the AQMD contract with Shute, Mihaly & Weinberger to allow the expenditure of up to an additional $20,000 in Fiscal Year 1995-96 for additional costs associated with ongoing litigation.
James M. Lents, Ph.D.
Executive Officer
PMG:BBB:vmr
Background
From time to time the District retains outside litigation counsel to assist District Counsel in defending litigation where special expertise is required. Currently there are four cases in which the firm of Shute, Mihaly & Weinberger serves as lead counsel. District Counsel staff attorneys continue to act as co-counsel on these cases in order to minimize litigation expenses.
The existing cases being handled by the law firm of Shute, Mihaly & Weinberger include the two RECLAIM lawsuits: Citizens for a Better Environment v. California Air Resources Board, South Coast Air Quality Management District, real Party in Interest, Sacramento Superior Court No. 378401, and Alliance of Small Emitters/Metal Industry, et al. v. South Coast Air Quality Management District, Los Angeles Superior Court Case No. BC094283. These cases involve very large administrative records of approximately 57,000 pages (184 volumes) and 33,000 pages (112 volumes), respectively, and complex legal issues of first impression.
In addition, this firm currently is representing the District in two other active cases. In one case, defendants in a Superfund cost recovery action brought by the federal and state governments for cleanup of San Pedro Harbor filed counterclaims against SCAQMD (USA v. Montrose Chemical, U.S. District Court Case No. CV 90-3122-AAh (Jrx)). In the other case, we obtained a summary judgment in favor of the District, and the matter is now on appeal. In this case the plaintiff paint companies alleged numerous causes of action against the AQMD and other air districts (Dunn-Edwards, et al. v. South Coast AQMD, et al., Los Angeles Superior Court Case No. C753978).
In all these cases, the selected outside counsel have special expertise and experience which, in conjunction with the co-counsel assistance of AQMD attorneys, provide the most effective defense for the District. We have from the firm an estimate of approximately $20,000 for likely expenses for the remainder of the fiscal year.
Resource Impacts
The District has previously entered into a Retainer Agreement with Shute, Mihaly & Weinberger. Although the Agreement does not specify an amount, staff must obtain your Board's approval for expenditures under the Agreement. Staff recommends approval for expenditure of up to an additional $20,000 for litigation expenses under this agreement for the remainder of FY 1995-1996. Sufficient funds are available in the District's Fiscal Year 1995-96 Budget, Professional and Special Services account. If significant new litigation is filed against the District, it may be necessary to seek additional authorization in the new fiscal year.
(SMW)