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7th Circuit rules on attorney fee issues in brownfield case

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The 7th Circuit Court of Appeals has mostly upheld an Indiana federal judge who’d ruled on the litigation costs and attorney fees involved in a Shell gas station brownfield case.

The 25-page opinion came today in Daniel J. and Pamela Wickens and Mark E. Shere v. Shell Oil Company, Nos. 09-2737 & 09-2620, which affirms and reverses in part a 2008 judgment from Judge Sarah Evans Barker in Indianapolis. The case dates back more than five years and involves a couple who were trying to sell their shoe shop when they discovered contaminated soil from a former fuel station on the Anderson property. Though they reached a settlement on most of the issues, the parties disagreed on various issues that included how attorney fees were calculated.

In its ruling today, the 7th Circuit held that Judge Barker correctly used a cut-off date for when Mark Shere’s legal work could stop being used to calculate the litigation costs and disbursements. The appellate panel upheld a $37,443.25 award for litigation costs and disbursements and denied the attorney’s request for prejudgment interest before Jan. 9, 2007; as well as ordered Shell to pay the $116,511.27 in corrective action costs incurred in May and June 2007.

The 7th Circuit did reverse Judge Barker on an issue about how Shere had billed for work that his wife -- an Indianapolis attorney who’s been on inactive status since 2005 – did during the litigation. The court made a “small calculation error” that it described as a clerical error that cost Mark Shere about $1,020.25 and should be corrected on remand.

A larger sticking point in the litigation was that Shere failed to disclose during the litigation that Employers Fire Insurance Company was funding the litigation. Judge Barker criticized Shere for not disclosing this, but didn’t go as far as determining fraudulent concealment as Shell alleged and stopped short of sanctioning him. The trial court denied a motion to vacate the judgment based on that issue, and the 7th Circuit affirmed that decision.

On the point where Shere argues about the District judge’s portrayal of him in a less than favorable light, the 7th Circuit wrote that an appeal isn’t the proper remedy for this even if the judge had found misconduct, which she didn’t.

“What Shere does not mention is that the district court was, in many places, equally critical of Shell’s approach to this case, and that it had some complimentary things to say about Shere,” the court wrote. “We sit to review judgments, not particular language in district court opinions, and Shere will have to be satisfied with our decision on the merits, which is largely favorable to him.”
 

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  1. Good riddance to this dangerous activist judge

  2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  3. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  4. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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