November 15, 2022
City Attorney's Office
DATE: November 15, 2022
TO: Mayor Butt and Members of the City Council
FROM:
Dave Aleshire, City Attorney
Shannon L. Moore, Chief Assistant City Attorney
Subject:
Legal Services Agreement with Sher Edling LLP
FINANCIAL IMPACT: Sher Edling LLP is being engaged on a contingency fee basis. The firm will advance costs incurred in connection with the firm’s representation of the City of Richmond
under the proposed legal services agreement.
PREVIOUS COUNCIL
ACTION:
None.
STATEMENT OF THE
ISSUE:
The law firm of Sher Edling LLP specializes in
representing public agencies in environmental cases and currently represents numerous cities in the Bay Area,
including Contra Costa County, in pending or
contemplated PCB litigation. The City of Richmond
wishes to contract with Sher Edling LLP on a contingency basis with the expectation the future recovery will help offset the millions of dollars the City will be required to spend to comply with the NPDES Permit requirements
related to PCB pollutant removal.
RECOMMENDED ACTION:
ADOPT a resolution authorizing the city manager to
execute a legal services agreement with Sher Edling LLP to represent the City of Richmond on a contingency fee
basis in litigation over PCB contamination – City
Attorney’s Office (Dave Aleshire 510-620-6509).
AGENDA
REPORT
November 15, 2022
DISCUSSION:
Polychlorinated Biphenyls (PCBs) are a group of manufactured chemicals that have been determined to have carcinogenic effects on fish, wildlife, and humans. Under the National Pollutant Discharge Elimination System (NPDES) Permit issued by the Regional Water Quality Control Board (Water Board), the City of Richmond is required to remove PCBs from the environment by building infrastructure and implementing policies that remove PCBs from stormwater before it enters the City’s storm drain network and subsequently the creeks and the Bay.
As reported out after closed session on July 20, 2022, the City Council followed the lead of Contra Costa County and a growing number of Bay Area counties and cities by deciding to opt out of the settlement in the nationwide class action brought by public agencies against Monsanto Company, the manufacturer and seller of PCBs.
The law firm Sher Edling LLP specializes in representing public agencies in environmental cases. The firm’s emphasis is holding polluters accountable for the damage they cause. The firm currently represents numerous cities and several counties in the Bay Area, including Contra Costa County, in pending or contemplated PCB litigation against Monsanto.
Sher Edling LLP’s expertise and experience in the area of PCB litigation, and the firm’s representation of Contra Costa County in what will be regional litigation involving significant overlapping evidence for the public agencies in the region, the City Attorney recommends that the City enter into a legal services agreement with Sher Edling LLP on a contingency fee basis, with expectation that future recovery will help offset the millions of dollars the City will be required to spend to comply with NPDES Permit requirements related to PCB pollutant removal.
Contra Costa County already approved a legal services agreement with Sher Edling LLP with the same basic contingency fee structure set forth in the proposed agreement currently before the City Council. Under the proposed agreement (see Attachment 2), the firm will receive as compensation for its services between 7.5 percent and 18 percent of the net recovery Richmond receives in the litigation, depending on what stage of the litigation recovery occurs. The firm will upfront all litigation costs and will be reimbursed for those costs from any recovery Richmond receives in the litigation before attorneys’ fees are calculated. Both the attorneys’ fees and litigation costs are contingent, meaning that the City will have no obligation to pay the firm for its services or reimburse the firm for any litigation costs in the absences of a recovery in litigation.
DOCUMENTS ATTACHED:
Attachment 1 – Resolution
Attachment 2 – Legal Services Agreement between the City of Richmond and Sher Edling LLP regarding PCB litigation