Last October, New Jersey’s brand-new Attorney General Matt Platkin filed a climate lawsuit following years of activist pressure in the state. Platkin quickly retained Sher Edling, the law firm representing nearly two dozen plaintiffs in climate lawsuits on a contingency fee basis, while simultaneously accepting outside funds from billionaires and Hollywood stars.
Although the contingency fee arrangements in other cases have been made public, New Jersey taxpayers still don’t know exactly how much Sher Edling stands to profit from such a victory – and Attorney General Platkin is doing his best to make sure it stays that way.
In a brief opposing open records requests that seek to bring the contract terms to light, the attorney general claims that releasing the details of how much Sher Edling would be paid under certain settlement conditions would “risk opening the door to gamesmanship that has no place in litigation.”
But the gambling of taxpayer money and resources on different settlement “scenarios” sounds exactly like gamesmanship, especially given the massive amounts Sher Edling stands to make in these cases.
What is New Jersey hiding in its Sher Edling contract?
Watchdog group Government Oversight and Accountability (GAO) has sought Attorney General’s Platkin’s contract with Sher Edling via public records law – but the NJOAG has stonewalled its release.
Initially, the attorney general’s office released two heavily redacted contracts awarded to Sher Edling, one for the state’s climate lawsuit and the other for a separate chemical contamination suit.
After GAO appealed for unredacted versions, AG Platkin’s office last month filed a lengthy brief opposing their release, suggesting that the documents contain unusual details that may reveal elements of the state’s litigation strategy. But the brief’s vague claims of “privilege” weren’t sufficient – this week, a New Jersey Superior Court judge ordered AG Platkin to produce an index spelling out specifically which portions of the contract were withheld, and why.
Contract hints at “consulting experts”
The most interesting part of AG Platkin’s opposition brief suggests that the climate lawsuit contract includes details about “consulting experts” that may assist on New Jersey’s climate lawsuit:
“First, with respect to the redactions on the cover page of both retention agreements, they would reveal information that would not be releasable in discovery as attorney work product, including potential information about whether the State might be retaining consulting experts.” (emphasis added)
Since the attorneys’ fees and estimated litigation costs are also withheld, it’s unclear whether the “consulting experts” are affiliated with Sher Edling and who, ultimately, will pay for the expert opinions. Sher Edling has a long track record of withholding details about its unusual third-party funding arrangement and use of outside advisors, and the firm is currently being investigated by Republican leaders in Congress over its relationship with “consultant/committee member” Ann Carlson.
Revealing attorneys’ fees would target “pressure points”
AG Platkin also argues in the brief that if made public, the dollar amount “thresholds” that dictate Sher Edling’s awards could reveal mismatched incentives between the state and the law firm, just as critics of third-party litigation financing argue may be the case:
“Furthermore, if revealed publicly during the course of the litigation, and placed in a skilled adversary’s hands, these thresholds could be used to drive a wedge between the State and Sher Edling by targeting ‘pressure points’ at which the attorney’s and client’s incentives may differ.” (emphasis added)
According to the brief, one of these “pressure points” is how much Sher Edling would get paid in different settlement “scenarios.” As justification for withholding information on attorneys’ fees, AG Platkin writes:
“Those details provide insight into how Sher Edling’s fees will be calculated and paid in different scenarios, which is an important aspect of the State’s negotiation strategy.”
Given that Sher Edling is representing plaintiffs in over a dozen of climate suits on a contingency fee basis, the settlement “scenarios” AG Platkin refers to could very possibly mean settlement – and a payout for the firm – in a different state’s climate case.
Or, these “scenarios” could refer to suits that have not yet been filed. Multnomah County’s retainer agreement for its climate lawsuit includes a provision that would reduce the contingency fee percentage if the lawyers recruit nearby plaintiffs to file additional climate lawsuits:
“The parties understand the benefits of spreading certain discovery costs among multiple plaintiffs who have the same or similar claims based on similar fact patterns. For these reasons, Attorneys agree to reduce the base contingency fee … if Attorneys are retained by the City of Portland, the adjacent counties of Washington and Clackamas, and/or the State of Oregon to pursue claims in this Litigation or similar litigation.”
Like Multnomah County, New Jersey’s contract may include incentives to bring more municipalities on board. Supporters of climate litigation have already done plenty of groundwork in the state – public records released last year show that the Center for Climate Integrity, the foreign-funded NGO that recruits new plaintiffs to the cause, has been embedded with municipal leaders in the townships of Dunnellen, Glen Ridge, and Maplewood for years.
Bottom Line: New Jersey officials have excitedly discussed how windfall settlements from climate lawsuits could bring in quite “hefty settlements” – but that’s only after Sher Edling takes an unknown cut of the awards. New Jersey taxpayers deserve to know how much the state has agreed to pay a private, billionaire-funded law firm – and why it’s fighting tooth and nail to prevent transparency.
