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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. "So we broke with England for the right to "off" our preborn progeny at will, and allow the processing plant doing the dirty deeds (dirt cheap) to profit on the marketing of those "products of conception." I was completely maleducated on our nation's founding, it would seem. (But I know the ACLU is hard at work to remedy that, too.)" Well, you know, we're just following in the footsteps of our founders who raped women, raped slaves, raped children, maimed immigrants, sold children, stole property, broke promises, broke apart families, killed natives... You know, good God fearing down home Christian folk! :/

  2. Who gives a rats behind about all the fluffy ranking nonsense. What students having to pay off debt need to know is that all schools aren't created equal and students from many schools don't have a snowball's chance of getting a decent paying job straight out of law school. Their lowly ranked lawschool won't tell them that though. When schools start honestly (accurately) reporting *those numbers, things will get interesting real quick, and the looks on student's faces will be priceless!

  3. Whilst it may be true that Judges and Justices enjoy such freedom of time and effort, it certainly does not hold true for the average working person. To say that one must 1) take a day or a half day off work every 3 months, 2) gather a list of information including recent photographs, and 3) set up a time that is convenient for the local sheriff or other such office to complete the registry is more than a bit near-sighted. This may be procedural, and hence, in the near-sighted minds of the court, not 'punishment,' but it is in fact 'punishment.' The local sheriffs probably feel a little punished too by the overwork. Registries serve to punish the offender whilst simultaneously providing the public at large with a false sense of security. The false sense of security is dangerous to the public who may not exercise due diligence by thinking there are no offenders in their locale. In fact, the registry only informs them of those who have been convicted.

  4. Unfortunately, the court doesn't understand the difference between ebidta and adjusted ebidta as they clearly got the ruling wrong based on their misunderstanding

  5. A common refrain in the comments on this website comes from people who cannot locate attorneys willing put justice over retainers. At the same time the judiciary threatens to make pro bono work mandatory, seemingly noting the same concern. But what happens to attorneys who have the chumptzah to threatened the legal status quo in Indiana? Ask Gary Welch, ask Paul Ogden, ask me. Speak truth to power, suffer horrendously accordingly. No wonder Hoosier attorneys who want to keep in good graces merely chase the dollars ... the powers that be have no concerns as to those who are ever for sale to the highest bidder ... for those even willing to compromise for $$$ never allow either justice or constitutionality to cause them to stand up to injustice or unconstitutionality. And the bad apples in the Hoosier barrel, like this one, just keep rotting.

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