My July column in Pennsylvania Law Weekly  considers the implications of the court of appeals’ recent decision in Interfaith Community Organization v. Honeywell International, No. 11-3813 (3d Cir July 8, 2013).  There, the court held that a defendant in an environmental citizen suit could offer judgment under Federal Rule of Civil Procedure 68, at least for the attorneys’ fees portion of the judgment.  Some limited older authorities had suggested that Rule 68 could not be used in a citizen suit because it would tend to chill enforcement.  See, e.g., Public Interest Research Group of New Jersey v. Struthers-Dunn, 28 Env’t Rep. Cas. (BNA) 1218 (D.N.J. Aug. 17, 1988).  If a plaintiff does not recover more than the offered judgment, then the attorneys’ fees shifting provision flips, and the defendant recovers the cost of litigating from the time of the offer.  The court could reverse in banc, but for now, citizen suit defendants may wish to take advantage of this tool, as may some plaintiffs.  To read Offer of Judgment in Federal Court Allowed in Citizen Suits, 36 Pa. L. Weekly 670 (July 23, 2013), click here.

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Photo of David Mandelbaum David Mandelbaum

David G. Mandelbaum represents clients facing problems under environmental laws. He regularly represents clients in lawsuits and also has helped clients achieve satisfactory outcomes through regulatory negotiation or private transactions. A Fellow of the American College of Environmental Lawyers, David teaches Superfund, and…

David G. Mandelbaum represents clients facing problems under environmental laws. He regularly represents clients in lawsuits and also has helped clients achieve satisfactory outcomes through regulatory negotiation or private transactions. A Fellow of the American College of Environmental Lawyers, David teaches Superfund, and Oil and Gas Law in rotation at the Temple University Beasley School of Law as well as an environmental litigation course at Suffolk (Boston) Law School.

Since United States v. Atlas Minerals, the first multi-generator Superfund contribution case to go to trial in 1993, Mr. Mandelbaum has been engaged in matters involving allocation of costs among responsible parties, especially under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).  He has tried large cases and resolved others as lead counsel.  He has written, spoken, and taught extensively on the subject.  More recently he also has been engaged to assist lead counsel from this firm and others:

  • to develop cost allocation methodologies;
  • to craft expert testimony in support of a favored methodology (given a definition of “fairness,” why one methodology better tracks it than another);
  • to develop efficient case management approaches; and to assist private allocation as part of the neutral team.

Concentrations

  • Air, water and waste regulation
  • Superfund and contamination
  • Climate change
  • Oil and gas development
  • Water rights