Lawyers continue battle in Hartford vapor case

By Steve Korris | Aug 25, 2006

Missouri attorneys who planned to represent Hartford residents in a Madison County class action over petroleum vapors want to know more about a new settlement that would knock out their case.

Norman Siegel of Kansas City served deposition notices Aug. 17 on eight Hartford residents who negotiated a class settlement through Mark Goldenberg's firm in Edwardsville.

Siegel set depositions Aug. 25, 28, 29 and 30, at two a day.

Whether he could enforce them depended on Circuit Judge Daniel Stack. On Aug. 21, Elizabeth Heller of the Goldenberg firm asked Stack to quash the depositions. By Thursday afternoon, Stack had not yet ruled on Heller's motion.

Heller argued that Siegel could not question her clients about strategy without evidence of collusion.

She also moved for reconsideration of an Aug. 14 order allowing one of Siegel's plaintiffs, Dennis Bedwell, to intervene in the new settlement.

Heller wrote that Stack evidently based his ruling on "…a misapprehension of the issues before the Court created by Mr. Siegel's arguments."

Depositions, she wrote, would "…harass and disrupt the orderly process of assessing the fairness of the proposed settlement…"

Siegel leads a team of Kansas City and St. Louis attorneys who in 2003 proposed a class action against oil refiners for creating a pool of petroleum under Hartford.

The suit alleged no damage to health. It sought damages for lost property value.

According to the suit, each rainfall pushed foul vapors into homes.

Goldenberg filed a similar suit in 2004, but not as a class action. He proposed to resolve individual claims for dozens of residents.

Last year Stack certified the Missouri team's lead plaintiff, Katherine Sparks, as representative of all vapor victims.

His decision handed Goldenberg's clients over to the Missouri team – but not for long.

Defendants Sinclair Oil and Apex Oil moved for reconsideration of the order certifying Sparks. Stack granted it.

Though he did not rescind his certification, he left it in doubt.

Goldenberg took advantage. His clients soon reached agreements with a Shell Oil entity, Equilon Enterprises, and with Premcor, a remnant of Apex Oil.

The Missouri team did not catch on to the settlement deal until a Goldenberg client told one of their clients about it.

Siegel moved July 14 for injunctive relief to block the settlement.

Siegel told Stack that Hartford residents would suffer irreparable injury if Goldenberg represented them.

Stan Faulkner of the Goldenberg firm told Stack that Hartford residents would suffer irreparable injury if the Missouri team represented them.

Heller of the Goldenberg firm presented a settlement outline Aug. 11, in the form of a new suit against Equilon and Premcor.

Three days later Stack allowed the Missouri team to intervene in the new suit.

Three days after that Siegel served deposition notices on Goldenberg's clients.

Four days after that Heller moved to exclude the Missouri team, arguing that their clients could "opt out" and preserve their individual claims.

She wrote that they could also challenge the settlement at a fairness hearing.

"Rather than make that choice," she wrote, "Mr. Siegel wants the best of all worlds. He wants to intervene to have his objections to the settlement heard piecemeal, before the fairness hearing."

"As a general rule, the ultimate criterion for assessing the fairness of any class action settlement is whether the settlement is reasonable in light of the risk of proceeding to trial," she wrote.

She quoted a precedent that discovery of strategy "…is proper only when the party seeking it lays a foundation by adducing from other sources evidence indicating that the settlement may be collusive…"

She wrote that, "…the mere fact that the parties in the present case reached a settlement prior to class certification does not bespeak collusion or anything else improper."

Meanwhile, Goldenberg clients still pursue the individual claims they filed in 2004. Circuit Judge Lola Maddox holds that case in her court.

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