Berger & Montague has successfully represented state, county and local governments in a wide array of matters for decades. In addition to working with state attorney general offices and other government officials in multiple securities class action and opt-out cases, we have also assisted our government clients in mortgage lending, consumer, environmental and a number of other matters.
Our representation of government entities frequently involves important issues of public health and safety and requires vast experience, resources and knowledge. We understand the concerns of our government clients, their limited budgets and the public law enforcement interests at stake. We are also familiar with the special sensitivities government clients often have to what may become sprawling, prolonged and costly litigation. We minimize the burdens on our government clients and their personnel while also deferring to their ultimate control over each matter we undertake. Leveraging our substantial expertise and success across multiple practice areas, together with our nationwide reputation and steadfast resolve, enables us to effectively assist our government clients whether in actual litigation or “behind-the-scenes” confidential investigations.
What are Some Examples of Berger & Montague’s Government Representation Cases?
We presently represent three states in complex environmental litigation against several gasoline and petroleum companies involving the release of MTBE (methyl tertiary butyl ether). MTBE is an additive that was used in gasoline beginning in the late 1980s through the mid-2000s. The U.S. Environmental Protection Agency considers MTBE to be a suspected carcinogen. Leaking underground storage tanks and other sources are alleged to have released substantial amounts of MTBE gasoline into the environment, causing extensive contamination of groundwater and threatening public health. State governments have had to expend significant resources to remediate past MTBE releases and face substantial additional costs in monitoring and remediating existing and expected future MTBE contamination. These cases seek to recover those costs for our government clients.
The MTBE litigation is massive in both complexity and scope and presents several unusual factual and legal challenges. Thousands of MTBE releases have allegedly taken place over more than 20 years, and thousands of MTBE release sites and public and private wells are contaminated or threatened with contamination. Identifying the MTBE release sites and establishing the residual contamination of public and private wells alone raises multiple complexities, particularly in the context of contested litigation. These cases involve millions of pages of records in both paper and electronic form from several parties and across numerous custodians and state agencies. We are working closely with state attorney general offices and other government officials in these cases and are proud to have assisted them in already obtaining many millions of dollars in recoveries. See, e.g., In re Methyl Tertiary Butyl Ether Products Liability Litigation, MDL 1358 (S.D.N.Y.); Commonwealth of Pennsylvania v. Exxon Mobil Corp., et al., No. 14-cv-6228-VSB (S.D.N.Y.); New Jersey Department of Environmental Protection, et al. v. Atlantic Richfield Co., et al., No. 08-cv-0312-VSB (S.D.N.Y.).
We acted as special counsel in prosecuting Connecticut’s claims in its sovereign enforcement action against the tobacco industry. State of Connecticut v. Philip Morris, Dkt. CV 96 0072414 S. This litigation helped lead to the national settlement in which Connecticut ultimately recovered approximately $4 billion. Particularly noteworthy was the finding of an independent panel of three former attorneys general which concluded that the contribution of Connecticut’s legal team to the prosecution of the tobacco industry litigation and the ultimate national settlement was among the top five of the 57 states and other entities that participated in the nationwide settlement (and among the top two of the 54 states and entities whose claims had not yet proceeded to a full trial). As a result of that finding, Connecticut received a supplemental award of $370 million from the master settlement of the tobacco litigation.
We also worked with a number of State agencies in the tobacco litigation. For example, we helped to develop appropriate models and protocols to respond to the extensive document requests and to identify and extract the voluminous records of the State’s expenditures (and projected expenditures) under Connecticut’s Medicaid and General Assistance Medical Assistance programs, to assist persons with tobacco-related illnesses.
Mortgage Lending Practices
We worked with the Ohio Attorney General’s office in what became multistate civil enforcement proceedings against Countrywide Financial and its parent, Bank of America, concerning Countrywide’s mortgage lending practices. Ultimately, these proceedings settled without litigation and resulted in mortgage-related modifications and other relief valued at approximately $8.6 billion for the settling states, including to 400,000 borrowers in Ohio.
We have successfully represented a number of state public pension and other government funds in multiple securities class action and opt-out cases over many decades. For example, we worked with the Ohio Attorney General’s office and other government attorneys in In re Merrill Lynch & Co., Inc. Securities, Derivative and ERISA Litigation, Master File No. 07-cv-9633 (JSR) (DFE) (S.D.N.Y.) (represented the Ohio State Teachers Retirement System as sole lead plaintiff; $475 million class action settlement was among largest recoveries in all subprime mortgage-related securities class action cases); State of New Jersey v. Fuld, et al., 09 MD 2017 (LAK) (opt-out action involving the collapse of Lehman Brothers); Commonwealth of Pennsylvania Public School Employees Retirement System and Commonwealth of Pennsylvania Municipal Retirement Board v. Citigroup, Inc., et al., No. 11-2583, 2011 U.S. Dist. LEXIS 55829 (E.D. Pa. May 20, 2011) (granting plaintiffs’ motion to remand to Pennsylvania state court; opt-out action involving the near collapse of Citigroup); State of New Jersey v. Qwest Communications Int’l., et al., MER-L-3738-02 (N.J. Super. Ct.) (opt-out action); In re Cigna Corp. Securities Litigation (represented Pennsylvania State Employees’ Retirement System as lead plaintiff in class action; obtained settlement of $93 million on the eve of trial); Commonwealth of Pennsylvania Public School Employees Retirement System, et al. v. AOL Time Warner, et al. (Pa. Super. Ct.) (represented four Pennsylvania state pension and other funds in opt-out litigation arising out of the Time Warner-AOL merger). More information about our securities litigation practice is set forth in a separate Securities & Investor Protection section of our website.
We have worked closely with state attorney general offices within the past several years on many other matters. These have encompassed areas as diverse as automobile defects to alleged wrongdoing in the foreign currency exchange markets, the structured finance markets and securities lending by custodial banks. Notably, we have not hesitated to recommend against active participation in cases depending on our governmental clients’ own policy priorities and objectives.