"Third man" in photo of Mark Crosswhite and Jay Town could play a pivotal role in David Roberson's $75-million lawsuit against Drummond Company

P. Michael Cole (left)

Many Birmingham residents probably know about photos of Alabama Power CEO Mark Crosswhite and former U.S. Attorney Jay Town chugging cocktails at a downtown lounge before the North Birmingham Superfund bribery trial. The meeting reportedly was designed to essentially rig the trial by reaching a plan to ensure that the power company would not be mentioned and none of its executives would be prosecuted.

Less known, until now, is that a third man was present in some of the photos, and his testimony could become a central piece in the ongoing $75-million lawsuit from former Drummond Company vice president David Roberson, according to a report at banbalch.com. The third man is P. Michael Cole, an attorney with the Wilmer and Lee firm of Huntsville. He also appears on the Alabama Ethics Commission's list of registered lobbyists for Alabama Power. Yellow Hammer News lists Cole among the 50 most powerful and influential lobbyists in the state.

So, how did Cole wind up in the photo with Crosswhite and Town? K.B. Forbes, of banbalch.com, addresses that mystery in a post that ran on Thanksgiving Day:

A year ago during Thanksgiving, someone stuffed an envelope into ex-Drummond Executive David Roberson’s mailbox with the explosive photographs of ex-Balch partner and Alabama Power CEO Mark Crosswhite having refreshing cocktails with U.S. Attorney Jay E. Town.

The photos eventually helped bring down Town, who resigned in disgrace on July 15. Now pressure is mounting for Crosswhite, who should have known better, to resign or retire.

The photographs have brought misery to Town and “the most powerful man in Alabama.”

But what about the third man in the photographs? Mike Cole is a well-respected attorney, who allegedly told his friend Roberson about the alleged “secret deal” meeting.

All of this raises a bevy of questions, Forbes notes:

Will Roberson’s legal team subpoena Cole in the $75 million civil lawsuit? What testimony will he give?

What Cole will say is a mystery but not as mysterious as who took the photographs and why.

Experts tell us the photographs appear to be from a private investigator or law enforcement.

And who were they shadowing? Town or Crosswhite? And why did they stuff them in Roberson’s mailbox?

Although we can speculate 100 different ways, the only known fact is they did meet when they should not have.

Town has since resigned.

After he eats turkey and all the trimmings, Crosswhite should begin preparing his exit plan with another refreshing cocktail.

Some power elites in Birmingham are squirming as discovery in David Roberson lawsuit resumes, promising to reveal the truth behind unsavory events

The scene of the Burt Newsome vehicle crash

 

The turbulent events of last week have left unsettled feelings in Birmingham's corporate and legal power structure, according to a report at banbalch.com.  Judge Tamara Harris Johnson's denial last Friday of Drummond Company's request for certification on an interlocutory appeal means discovery will resume in David Roberson's $75-million lawsuit. And that eventually could produce evidence about the attempted murder, via an apparently staged vehicle crash, of Roberson attorney Burt Newsome. It also could produce revelations about an apparent intimidation/stalking campaign against Consejo De Latinos Unidos (CDLU), the public charity and advocacy group behind banbalch.com's aggressive reporting.  

Add last week's indictment of former Black Hall Aerospace CEO Paul Daigle, and you can see why there might be some churning stomachs at entities connected to the Balch and Bingham law firm. Front and center could be Alabama Power, reports Ban Balch's K.B. Forbes, under the title "Alabama Power Rocked to the Core; Will Crosswhite Resign or Retire?":

In early 2017, Balch & Bingham allegedly told the now indicted, former CEO of Black Hall Aerospace Paul Daigle that we, the CDLU, were “nothing” to worry about.

With the indictment last Tuesday caused by CDLU’s advocacy and persistence, sources tell us Balch attorneys were allegedly stressed out that same night, working late into the evening.

This past week, sources tell us, associates at white-collar criminal defense firm White, Arnold & Dowd allegedly were working overdrive including Saturday morning, researching and learning about not only us and Black Hall Aerospace but allegedly reading all of BanBalch.com’s posts on Alabama Power CEO and former Balch partner Mark A. Crosswhite.

And who is a key partner at White, Arnold and Dowd?

Mark White and he is Alabama Power’s outside criminal attorney, and apparently a close confidant of Crosswhite.

Alabama Power's criminal attorney appears to be on alert? Yikes, maybe there is something to worry about:

White, who tries to play himself as Mr. Incognito, is visible more often than not. White allegedly attended every single day of the North Birmingham Bribery Trial, and was present at the May 2019 court hearing of ex-Drummond executive David Roberson’s $75 million civil lawsuit against Balch and Drummond and the criminal hearing of Balch stooges Scott Phillips and Trey Glenn earlier this year.

With the resignation of disgraced ex-U.S. Attorney Jay E. Town, the unexpected death of Balch’s Schuyler Allen Baker, Jr., and the indictment of Paul Daigle, Alabama Power has been rocked to the core, raising uncomfortable questions.

What are those questions? Forbes presents several:

Did Crosswhite or White strike the secret deal with Town to keep Alabama Power “unmentionable” during the criminal trial? Did Crosswhite mislead parent company Southern Company about Alabama Power’s involvement in the North Birmingham Bribery Scandal or the Newsome Conspiracy Case? What truly was Alabama Power’s role with the money laundering entity Alliance for Jobs and the Economy (AJE)? Was Alabama Power in any way involved in the idiotic orchestrated campaign this past summer in which an innocent family was terrorized by paid buffoons?

Unlike other Southern Company wholly-owned subsidiaries, Alabama Power appears to operate completely differently, looking more like a vengeful gang of arrogant fraternity members instead of level-headed corporate executives.

When we first met with federal investigators in 2017 about Balch and Bingham, they were more concerned about Alabama Power rather than Balch.

The FBI, in Birmingham and Washington,D.C., has been debriefed on recent events -- especially the Newsome vehicle crash and the targeting/stalking of CDLU officials -- sources tell Legal Schnauzer. Writes Forbes: 

With the rebirth of the North Birmingham Bribery Case, ex-Drummond executive David Roberson’s civil legal team will be able to drill down and get the facts, follow the money, and connect the corrupt dots. Alabama Power will be stark naked with nowhere to hide or strings to pull.

Likewise, the current investigations into the attempted killing of Burt Newsome, and the stalking and criminal acts against the CDLU may lead to more exposure.

Either way, Crosswhite is the only one to blame for his foolish reliance on and unwavering loyalty to Balch.

The only question left for Southern Company’s leadership is: Should Crosswhite resign or retire?

Drummond's request for interlocutory appeal in $75-million Roberson lawsuit is soundly rejected, proving our predictions come true every now and then

Tamara Harris Johnson

 

 

Like a lot of media types, we engage in prophecy from time to time. Political and sports coverage are filled with it, and making predictions is fun -- even when your track record, like ours, is somewhere in the "mixed bag" category -- where some predictions prove correct, some are off base, a few are close, others not so close.

But we are here today to note that, by golly, we recently nailed one -- more or less took an Aroldis Chapman fastball and parked that sucker in the cheap seats. And it came on an important subject -- the $75-million lawsuit from David Roberson against his former employer, Drummond Company. And it's all tied to a gross case of environmental racism -- the North Birmingham Superfund bribery scandal.

So, what was our prediction? It came in a post dated 11/16/20, and here's how we put it:

Drummond Company's request for an interlocutory appeal in David Roberson's $75-million lawsuit should be dead on arrival. In fact, it should not even be certified for an appeal at the trial-court level, and its request for a stay in discovery certainly should not be granted.

And what do you know, that is exactly what happened. Jefferson County Circuit Judge Tamara Harris Johnson, bless her heart, agreed with my assessment and essentially sent Drummond's request to the dead letter office. This is from Johnson's order issued last Friday (11/20/20). (The full order, which is brief, is embedded at the end of this post.):

This matter comes before the Court on Defendant Drummond Company, Inc.'s Motion to Certify Questions for Interlocutory Appeal and Motion to Stay Discovery Pending That Appeal and Plaintiff's Objection to Drummond Company's Motion to Stay Discovery and to Certify Questions for Interlocutory Appeal. . . . The prerequisites of such an Order, as is requested by the Defendant Drummond, requires a certification by this Court that, in this Court's opinion, the requested interlocutory order involves a controlling question of law as to which there is substantial ground of difference of opinion, that an immediate appeal from the Order, as is requested by the Defendant Drummond from the Court's order would materially advance the ultimate termination of the litigation, and that the appeal would avoid protracted and expensive litigation.

This Court cannot certify that it shares the necessary opinion to further the herein request for an interlocutory appeal. The Court further has considered the fact that discovery was stayed, pending a ruling on the Defendants' Motions to Dismiss. The Court FINDS that any further stay of Discovery in this matter is unwarranted.

In the interest of full disclosure, this was an easy call for me to make--but, of course, I couldn't let an opportunity pass to crow about being right -- and it surely was even easier for Johnson. From our 11/16/20 post:

What is that central question Drummond seeks to place before the high court? Here's how it is stated in the company's brief:

Whether a  corporation, which is not itself a legal services provider, may avail itself of the ALSLA statute of limitations where its alleged liability is based on the conduct of its general counsel, who is a legal services provider?

        The Alabama Supreme Court already has answered that question in a case styled Alabama Educ.             Ass’n v. Nelson, 770 So. 2d 1057 (Ala. 2000). Nelson involved a teacher's efforts to sue AEA                 under the Alabama Legal Services Liabiliy Act (ALSLA) because of alleged legal malpractice by          one of the association's in-house lawyers. That appears to be analogous to Roberson's claims                 related to Drummond in-house counsel Blake Andrews -- and the company's efforts to seek                     protection of the ALSLA and its tight statute-of-limitations, which could make the Roberson                 lawsuit time-barred.

        But Drummond has a slight problem -- it admits that it is not a legal-services provider, and the                Alabama Supreme Court held in Nelson that the ALSLA does not apply in such situations. In                essence, the state's high court found in Nelson that ALSLA does not apply to the AEA -- which,            like Drummond, is not a legal-services provider -- so it could not apply to Drummond. That means         Roberson's complaint is not time-barred, and Drummond's request for interlocutory appeal should         be sent to the dead letter office. Here is the key finding in Nelson:

        

            We note that throughout the ALSLA, the language used by the Legislature indicates             that the Act was intended to apply to lawyers and law firms. For example, §                        6-5-572(3)(a) sets out the "standard of care" a "legal service provider" is to                        observe:

"The standard of care applicable to a legal service provider is that level of such reasonable care, skill, and diligence as other similarly situated legal service providers in the same general line of practice in the same general locality ordinarily have and exercise in a like case."

        What standard of care would be applied to the AEA under this statute? We know of no         other "legal service provider" that, in regard to the AEA, might be considered to be             "similarly situated." Clearly this section contemplates that the ALSLA is to be                     applied  only to lawyers and to law firms— including professional corporation                    associations,  and partnerships—whose membership is composed solely of lawyers             acting for the  purpose of providing legal services.

 If the AEA does not qualify as a "legal services provider," it's hard to imagine how a coal-mining company, such as Drummond, could. And that's because it doesn't -- based on Alabama Supreme Court precedent.

Now that we've established that, discovery in the Roberson lawsuit can fire back up.

Indictment of former Huntsville defense contractor Paul Daigle has connections to Russia, Mueller, Balch and Bingham law firm, and the war in Afghanistan

 

The indictment Tuesday of the former CEO at a Huntsville defense contractor appears tied to a Birmingham advocacy group's calls for an investigation of the firm's ties to Russia and the scandal-plagued Balch and Bingham law firm.

Paul Daigle, once CEO of Black Hall Aerospace, faces multiple charges related to fraud and conspiracy. Black Hall was a one-time lobbying client of Balch and Bingham. From a report at wbrc.com:

A former chief executive officer was charged in connection to schemes to defraud the United States Government in relation to the conflict in Afghanistan.

According to officials at the U.S. Department of Justice, 40-year-old Paul Daigle was charged with conspiracy, four counts of wire fraud and four counts of false claims in the  indictment.

According to a release from the U.S. Department of Justice, Daigle was the CEO of a company based out of Huntsville. The company served as a subcontractor on U.S. Department of Defense aviation contracts related to the war in Afghanistan.

The Huntsville business has not been released at the time.

To learn the company's  name, which is missing in the Department of Justice press release and all the mainstream media (MSM) reports we've seen, you must turn to banbalch.com, a Web site published by the public charity and advocacy organization Consejo De Latinos Unidos (CDLU). K.B. Forbes, CEO of CDLU and publisher of Ban Balch, writes under the headline"CDLU Provoked Probe: Ex-CEO of Balch and Bingham Client Charged With Afghan War Contract Fraud":

Late last year, we wrote an update about Black Hall Aerospace, a former Balch and Bingham client, that looked like it was headed to extremely turbulent waters. We wrote at the time:

[We] learned from our sources that Black Hall Aerospace allegedly is still being probed by the U.S. Department of Justice.

Our sources told us that Black Hall Aerospace and Leidos have an ongoing financial dispute headed to state court [in 2020]

Could this dispute have been caused by a forensic audit or the alleged probes by the Office of the Inspector General of the U.S. Department of Defense and Military Criminal Investigations Command?

Our sources also confirmed that Paul Daigle, who has ownership in the aerospace company, has left as chief executive officer; and that Oleg Sirbu, the Soviet-immigrant that wrangled with Daigle and others in an ugly civil-court fight to control Black Hall, has settled all civil matters and is living comfortably in Dubai.

 CDLU's involvement in the Black Hall Aerospace story dates to the early days of the Robert Mueller investigation. Writes Forbes:

On May 18, 2017, the day after Robert S. Mueller III was named Special Counsel of the U.S. Department of Justice, we, the CDLU, sent him a letter that included this about Black Hall Aerospace:

Enormous Revenue Growth Raises Questions 

The revenue growth at the Russian-linked aerospace company has been enormous and raises serious concerns and questions. According to an online publication, the Russian-linked company, AAL USA, Inc. and/or Black Hall Aerospace, Inc., went from generating $6.5 million in 2014 with 15 employees, to over an estimated $100 million in 2016 with 450 employees. Likewise, according to a court filing on aviationintelligence.org,  AAL USA Inc. had less than $1 million in revenue with fewer than 20 employees in 2014 but grew to over 400 employees and $50 million in revenue by 2016.

Something smells awful in this whole affair and we hope that you, Mr. Mueller, will take a deep and closer look.

 Where does the story stand now? Forbes reports:

Three years and 6 months after we originally wrote to Mueller, the shoe finally dropped.

Now we hope, federal investigators will look at why Balch and Bingham scrubbed their website of any references to having successfully changed Russian sanctions on behalf of Black Hall Aerospace.

Balch and Bingham lobbyists trotted Paul Daigle office to office on Capitol Hill earning over $300,000 in fees from Black Hall Aerospace and its affiliates between 2014 and 2016.

Lack of an attorney-client relationship provides a second ground for rejecting Drummond Company's request for immediate appeal in Roberson case

Tamara Harris Johnson

 

We have shown that Drummond Company's request for interlocutory appeal in David Roberson's $75-million lawsuit should be rejected because the Alabama Supreme Court already has held that the Alabama Legal Services Liability Act (ALSLA) applies only to lawyers and law firms and not to entities that happen to employ one or more in-house lawyers. But that is not the only reason Drummond's request should be dead on arrival. The second reason involves the presence -- or lack thereof -- of an attorney-client relationship.

Aalabama law is clear that ALSLA -- and its tight statute of limitations, which could make the Roberson complaint time-barred -- applies only where there is an attorney-client relationship. Circuit Judge Tamara Harris Johnson correctly stated the law in her recent order dismissing the Balch and Bingham law firm from the Roberson case, citing a case styled Mississippi Valley Title Ins. Co. v. Hooper, 707 So. 2d 209 (Ala., 1997). Harris wrote:

The Court held further that “an attorney-client relationship is an essential element of a claim under the Legal Services Liability Act... To create an attorney-client relationship,there must be an employment contract‘either express or implied’ between an attorney and the party for whom he purports to act or someone authorized to represent such party. . . . ”

The Court in Mississippi Valley, supra, further held, “The test for determining the existence of [an attorney-client] relationship is a subjective one and ‘hinges upon the client’s belief that he is consulting a lawyer in that capacity and his manifested intention is to seek professional legal advice.”

In our view, Johnson correctly stated the law in the Balch dismissal, but she applied it incorrectly -- and her order should be reversed by the Alabama Supreme Court, where it stands on appeal.

In his complaint, David Roberson states that he had no attorney-client relationship with anyone at Drummond (including in-house counsel Blake Andrews) or anyone at Balch, for that matter. As a matter of law, that statement must be taken as true at the motion-to-dismiss stage. But Johnson apparently found it to be 'conclusory" and not a well-pleaded factual allegation, so she did not take it as true. That, however, runs counter to Alabama Supreme Court precedent, as stated in Ex parte Austal USA (2007). 

In Austal, workers alleged the company intentionally provided them with a defective saw, knowing it would cause injuries. Austal dismissed the allegations as conclusory, and the court admitted the allegations were "so shocking that it invites skepticism." But still, it found they had to be taken as true early in the litigation and denied Austal's motion to dismiss:

At the motion-to-dismiss stage, however, a court's ability to pick and choose which allegations of the complaint to accept as true is constrained by Alabama's broad and well settled standard for the dismissal of claims under Rule 12(b)(6). In this case, there is no question that the plaintiffs have pleaded that Austal “made the conscious and deliberate decision to intentionally injure its workmen.” That allegation -- that a company would deliberately injure multiple specific employees -- is so shocking that it invites skepticism. Moreover, we agree with Austal that a specific intent or desire to cause injury to its employees is not particularly consistent with the alleged cost-saving motivation for causing such injuries. Nevertheless, our standard of review does not permit this Court to consider the plausibility of the allegations. Rather, in considering whether a complaint is sufficient to withstand a motion to dismiss, we must take the allegations of the complaint as true. . . . we do not consider “'whether the pleader will ultimately prevail but whether the pleader may possibly prevail,”

David Roberson, a biologist by training, is an intelligent, sophisticated guy, and he surely knows whether he had formed an attorney-client contract, and he clearly states in the complaint that he did not. Per Austal, Johnson must take that allegation as true, forming a second ground for rejecting Drummond's request for immediate appeal, probably meaning it should not even be certified for transmission to the Alabama Supreme Court.

PNC Bank makes a splash on Birmingham banking scene, and CDLU charitable group calls for it to sever ties with Balch and Bingham and its ugly past

 

A Birmingham-based public charity and advocacy group is calling on PNC Bank, after yesterday's acquisition of BBVA USA, to sever the bank's ties to the Balch and Bingham law firm. The charitable organization Consejo De Latinos Unidos (CDLU) cites Balch's apparently racist actions in recent years -- including a lead role in the North Birmingham Superfund bribery scandal -- and historic ties to former segregationist Gov. George Wallace and a 1960s highway-funds scandal that involved the imperial wizard of the Ku Klux Klan.

To spearhead its campaign regarding BBVA's unsavory ties to Birmingham's legal community, CDLU has launched two Web sites -- one in English and one in Spanish -- to document the ugly past of a financial institution that once was Compass Bank and Central Bank before Spain-based BBVA took over in 2007.

PNC has a major presence in its home-base of Pittsburgh, and is the naming sponsor of PNC Park, the beautiful home of major league baseball's Pittsburgh Pirates. Will PNC maintain ties to Balch and Bingham? It's too early to know, but the CDLU says the answer should be a resounding no. From a CDLU press release issued yesterday:

Consejo De Latinos Unidos (CDLU), a public charity and advocacy group called on William S. Demchak, the CEO of PNC Bank which is acquiring BBVA USA, to terminate the alleged racist law firm Balch and Bingham, which has represented BBVA USA for more than half a century.

“The undisputed fact is that BBVA USA was founded in 1964 by a staunch segregationist who was part of racist Alabama Governor George Wallace’s inner circle. BBVA USA’s founder was also a long-time partner at Balch and Bingham, a law firm which continues to engage in deplorable and unsavory conduct. In 2018, a Balch and Bingham partner was convicted and sentenced to five years in federal prison for a bribery scheme that included suppressing African-Americans from testing their toxic and contaminated property in North Birmingham. BBVA USA’s outside counsel has also been involved in other alleged misconduct including targeting poor African-American children and allegedly disenfranchising African-American voters,” said Ernesto Pichardo, a long-time civil rights activist and chairman of the board of the CDLU.

In 1993, Pichardo won a unanimous U.S. Supreme Court decision for religious freedom and Civil Rights after his Afro-Caribbean faith came under attack due to blatant intolerance and discrimination by racists and religious bigots.

Today, the CDLU launched two websites documenting the racist history of BBVA USA, one in English, the other in Spanish.

CDLU's chairman says PNC Bank should take a stand for social justice -- in Birmingham and around the country, where it will have a presence in 29 of the 30 top U.S. markets. With BBVA deal, PNC will become the country’s fifth-largest bank by assets, with $550 billion, just behind JPMorgan Chase, Bank of America, Wells Fargo and Citigroup, according to Financial Times.

The deal should be about more than dollars and cents, says CDLU's chairman. From the press release:

“PNC Bank has a voice, a voice to bring systemic racism to an end. Balch and Bingham has refused to apologize to the African-American community for their egregious and unacceptable conduct, and 18 of 18 major D.C. lobbying clients have courageously terminated the embattled firm. PNC Bank must take a stand and not allow the firm to earn a single penny from this transaction,” Pichardo declared.

Pichardo has been a member of the board of directors of the CDLU since 2003, a public charity and advocacy group that launched an accountability and education project in 2017 about Balch and Bingham’s transgressions.

 

PNC Park, home of the Pittsburgh Pirates

 

Drummond's request for immediate appeal in Roberson case should be swiftly denied because Alabama Supreme Court already has ruled in the negative on central question presented

 

Drummond Company's request for an interlocutory appeal in David Roberson's $75-million lawsuit should be dead on arrival. In fact, it should not even be certified for an appeal at the trial-court level, and its request for a stay in discovery certainly should not be granted. Why?

Drummond states such an immediate appeal is proper, in part because:

THERE ARE CONTROLLING QUESTIONS OF LAW AS TO WHICH THERE ARE SUBSTANTIAL GROUNDS FOR DIFFERENCE OF OPINION.

That, however, is not true. The Alabama Supreme Court already has stated its opinion on the central issue in the request for interlocutory appeal -- and it is not favorable to Drummond. In fact, the high court already has thoroughly shot holes in Drummond's case, so there is no difference of opinion -- and  no basis for an interlocutory appeal.

What is that central question Drummond seeks to place before the high court? Here's how it is stated in the company's brief:

Whether a  corporation, which is not itself a legal services provider, may avail itself of the ALSLA statute of limitations where its alleged liability is based on the conduct of its general counsel, who is a legal services provider?

The Alabama Supreme Court already has answered that question in a case styled Alabama Educ. Ass’n v. Nelson, 770 So. 2d 1057 (Ala. 2000). Nelson involved a teacher's efforts to sue AEA under the Alabama Legal Services Liabiliy Act (ALSLA) because of alleged legal malpractice by one of the association's in-house lawyers. That appears to be analogous to Roberson's claims related to Drummond in-house counsel Blake Andrews -- and the company's efforts to seek protection of the ALSLA and its tight statute-of-limitations, which could make the Roberson lawsuit time-barred.

But Drummond has a slight problem -- it admits that it is not a legal-services provider, and the Alabama Supreme Court held in Nelson that the ALSLA does not apply in such situations. In essence, the state's high court found in Nelson that ALSLA does not apply to the AEA -- which, like Drummond, is not a legal-services provider -- so it could not apply to Drummond. That means Roberson's complaint is not time-barred, and Drummond's request for interlocutory appeal should be sent to the dead letter office. Here is the key finding in Nelson:

        We note that throughout the ALSLA, the language used by the Legislature indicates             that the Act was intended to apply to lawyers and law firms. For example, §                         6-5-572(3)(a) sets out the "standard of care" a "legal service provider" is to observe:

"The standard of care applicable to a legal service provider is that level of such reasonable care, skill, and diligence as other similarly situated legal service providers in the same general line of practice in the same general locality ordinarily have and exercise in a like case."

        What standard of care would be applied to the AEA under this statute? We know of no         other "legal service provider" that, in regard to the AEA, might be considered to be             "similarly situated." Clearly this section contemplates that the ALSLA is to be                     applied  only to lawyers and to law firms— including professional corporation                    associations,  and partnerships—whose membership is composed solely of lawyers             acting for the  purpose of providing legal services.

        The plain language of § 6-5-572(2), as well as that of the other portions of the                    ALSLA, clearly indicates that the Legislature intended for the ALSLA to apply only            to lawyers and to entities that are composed of members who are licensed to practice         law within the State of Alabama. Because the AEA is not a lawyer or an entity whose         membership is composed of lawyers, it cannot be held liable under the ALSLA.

How might that last sentence be adjusted to fit Roberson v. Drummond? We will go with this:

Because Drummond is not a lawyer or an entity whose membership is composed of lawyers, it cannot avail itself of the ALSLA statute of limitations.

 That is not the only reason Drummond's request for interloctory appeal should be quickly rejected. We will address another one in an upcoming post.

David Roberson objects to Drummond's request for immediate appeal, arguing it is only designed to delay discovery in a case that already has experienced delays

David Roberson

 

Former Drummond executive David Roberson has filed an objection to the company's request for an interlocutory appeal in his $75-million fraud lawsuit.

Attorney Burt Newsome, writing on behalf of Roberson and his wife/co-plaintiff Anna, says there is no legal justification under the Alabama Rules of Appellate Procedure (ARAP) for the trial court to certify such an appeal -- stating essentially that Drummond's request is illegitimate, designed only to delay discovery in the case (The full Roberson objection is embedded at the end of this post.) Writes Newsome:

Under ARAP 5, for an interlocutory appeal to be granted an immediate appeal must materially advance the ultimate termination of the litigation. The interlocutory appeal statute sets a high threshold for certification to prevent piecemeal appeals; indeed, to obtain certification to appeal an interlocutory decision, a litigant must show that not only that an immediate appeal will advance the termination of the litigation but also that the appeal involves a controlling question of law as to which there is a substantial ground for difference of opinion. . . . An analysis of the counts against Defendant Drummond that are still pending in this case shows that Drummond's request for an interlocutory appeal neither materially advances the termination of the litigation nor does it involve a controlling question of law as to which there is a significant ground for difference of opinion but is just yet another attempt by Drummond to delay the discovery process.

Newsome notes that Drummond's request only seeks appeal on three of the five counts that are pending against it:

Even if the interlocutory appeal was granted, this would not remotely end the litigation in this case. The same discovery would have to be done relative to the promissory fraud count that is in the complaint anyway. In addition, none of the remaining counts in the complaint against Defendant Drummond involve involve the receipt of legal services by either Plaintiff.

Drummond argues that its general counsel, Blake Andrews, gave David Roberson legal services, placing the case under the Alabama Legal Services Liability Act (ALSLA) and its tight statute of limitations. Newsome says, in so many words, that is rubbish:

There is not one piece of evidence in front of this Court that either Plaintiff ever received any legal services whatsoever from Defendant Drummond Company. There is not one piece of evidence in front of this court that either Plaintiff ever asked anyone at Drummond Company for legal advice and/or a question about whether or not anything was legal or illegal. Furthermore, Blake Andrews nor anyone else at Drummond could have ever served as David Roberson's attorney as this would have been a gross conflict of interest. . . .

In addition, the appeal pending as it relates to the claims of [codefendant] Balch and Bingham are clearly different. Balch and Bingham is a law firm and Drummond is not. It would be illegal for Drummond to give legal advice.

Newsome further notes that additional delay in the case would be unfair to the Robersons:

David Roberson . . . is currently out on bond pending the ruling on  his criminal appeal. He is also in his seventies and in poor health. If Mr. Roberson is in prison and/or deceased, his counsel's ability to do discovery will be severely hampered and I would have no way to consult with him during the case. . . . There is no just reason to further delay this case moving forward. Drummond merely seeks endless delays because it simply does not want to answer the Plaintiffs' discovery. Any further delay in conducting discovery in this case would be highly prejudicial to the Plaintiffs.

 

Drummond files for interlocutory appeal in David Roberson lawsuit, seeking dismissal similar to the one granted to codefendant Balch and Bingham law firm

Drummond Coal

 

Drummond Company is seeking an interlocutory appeal of certain issues in a $75-million fraud lawsuit from its former vice president David Roberson -- and it  also asks for a stay of discovery, which only began recently after a delay of roughly 14 months.

Is this a stalling tactic to delay discovery that Roberson's attorney, Burt Newsome, launched on November 2? It's hard to say, but Drummond is asking the trial court to certify three questions for interlocutory appeal to the Alabama Supreme Court. All of the questions involve counts in the Roberson complaint where Circuit Judge Tamara Harris Johnson denied dismissal, stating that the statute of limitations (SOL) period prescribed by the Alabama Legal Services Liability Act (ALSLA) did not apply. Johnson granted dismissal on SOL grounds for codefendant Balch Bingham, and Drummond essentially is asking for identical treatment for its motion to dismiss.

Drummond's motion revolves around allegations that Blake Andrews, the company's general counsel, knew a scheme to overcome U.S. Environmental Protection Agency (EPA) cleanup regulations at a Superfund site. in North Birmingham was illegal -- and asked Roberson to process related invoices, leading to the latter's indictment and conviction at a federal criminal trial.

Here are the three questions for which Drummond seeks certification:

(1.) Where a legal services provider (Balch) is alleged to have devised an illegal "plan' on behalf of its client (Drummond) and represented to the plaintiff (an employee of the client) that the plan was legal, and for that reason, the plaintiff followed the employer's instructions in paying the legal services provider's invoices, can claims against the legal services provider premised on the plan be barred by the ALSLA statute of limitations while substantively identical claims against the client are not? 

(2) Whether a  corporation, which is not itself a legal services provider, may avail itself of the ALSLA statute of limitations where its alleged liability is based on the conduct of its general counsel, who is a legal services provider?

(3.) Whether alleged misrepresentations by a lawyer that led a plaintiff to believe his conduct was legal are "legal services" under the ALSLA?

The full Drummond motion is embedded below:

 

Legal Schnauzer passes 4 million page views and reaches its 13th anniversary, two major milestones in our effort to unmask legal and political corruption

 

 Legal Schnauzer recently reached two milestones, and I never dreamed we would approach either one. First, we passed 4 million page views. Then, we reached the blog's 13th anniversary.

Both are pretty neat when you consider that I started this little enterprise with the idea that it probably would last a year or so.

Along the way, we have . . .

* Been named among the top 50 law blogs in North America, the only truly independent blog on the list. All the others are connected to law firms, law schools, legal associations, media groups, or public-affairs organizations.

* Played a lead role in the ousting of corrupt political figures, such as Alabama "Luv Guv" Robert Bentley and his mistress "Home Wrecky Becky" Caldwell Mason, plus former U.S. Judge Mark Fuller. We played a supporting role in the investigative journalism that led to the conviction of former House Speaker Mike Hubbard. Most recently, we played a supporting role in the journalism that apparently led to the retirement of Jefferson County Probate Judge Alan King and the surprise resignation of U.S. Attorney Jay Town -- with Ban Balch playing a lead role on both stories.


* Perhaps more than any other news site in Alabama, we've exposed the hypocrisy of "family values" conservatives, reporting on the extramarital activities and financial shenanigans involving U.S. Sen. Luther Strange and Jessica Medeiros Garrison; former GOP Gov. Robert Bentley, and the fully nude, gay-porn photographs of U.S. Judge Bill Pryor,

* On a story that has international implications, we've reported on former Trump Attorney General Jeff Sessions and his history of corrupt actions dating back more than 20 years in Alabama.Substantial evidence suggests Sessions was in the middle of the KremlinGate scandal, which should surprise no one who knows about Sessions' background in "The Heart of Dixie, including his ties to the scandal-plagued Balch Bingham law firm.

When we gave birth to Legal Schnauzer back in the George W. Bush era, we did not have many other muckraking  enterprises in the Alabama blogosphere. I'm pleased to report that we have some excellent company these days. Of particular note is banbalch.com, which came on the scene roughly four years ago and has become a highly influential blog in a relatively short time. Publisher K.B Forbes. is an aggressive investigator, with a colorful writing style, and we suspect that has made Ban Balch must reading for many in the Birmingham legal community.

As for our milestones, they start with our first post, which was titled "Is 'Your Honor' Really Honorable?" and published on June 3, 2007. Some 4,164 posts later, we are still cranking out the kind of investigative journalism that is found at very few news outlets in Alabama, or anywhere else.

We're not certain when we passed 4 million page views, but the current number from the primary statistics service that we use (as I write this) is at 4,339,434. Our all-time unique visits are at roughly 3  million.

For reasons I don't fully understand, our second stat service (which is Google based) provides significantly different numbers. It has our all-time page views at 8.4 million, which means we passed 4 million there a long time ago. I didn't sign up for the first stat service until I had been blogging for several months, while the second one is attached to the blogging platform itself, and that might explain part of the difference. But on a daily basis, the Google-based counter provides a number that is roughly twice that of  the independent counter.

Never have figured out why that happens. I like the Google numbers better, but I tend to look at the independent numbers as the official count for Legal Schnauzer.

The numbers show that our readership has steadily grown. After starting the blog on June 3, 2007, we reached 1 million page views on or about July 15, 2011. We reached 2 million page views on or about February 25, 2015. We' published a post about hitting 3 million page views on July 5, 2017.  This post, about passing 4 million comes on Nov. 11, 2020.

That means it took a little more than 4 years to reach 1 million, another 3 1/2 years to reach 2 million, another 2 1/2 years to reach 3 million, and another 3 years to reach 4 million. That indicates there is a serious appetite for the kind of journalism we produce at Legal Schnauzer -- and I would say that's a good thing, especially given that we have been in an era of public corruption unlike anything this country ever has seen. And much of it likely has ties to Alabama.

Legal Schnauzer clearly has made an impact, largely because of readers who follow and support us, and sources who help inform us. Regular readers know that our kind of unbridled journalism comes with a price, especially in red states like Alabama and Missouri, where corruption flows like a river.

In October 2013, I was kidnapped by "law enforcement" from inside our home in Birmingham and tossed in jail for five months. In essence, I was "arrested for blogging," reporting on the gross corruption that only recently has caught the attention of the state's somnolent mainstream press. In summer 2014, forced from our home by a wrongful foreclosure, Carol and I landed in Springfield, Missouri, where I grew up. In September 2015, we were the targets of an unlawful eviction, which included cops pointing assault rifles at my head and shattering Carol's left arm so severely that it required trauma surgery.

It seems clear that both of these events were attempts to shut down Legal Schnauzer. But we are still here, and our readership is growing. The thugs have failed, in the face of devoted, intelligent, and thoughtful readers.

For your gracious support, we offer our most sincere thanks. And we invite you to stick around for the next 4 million page views.

On a final note, we reached one other milestone recently. On May 31, 2020, we had 65,199 page views -- a one-day record for the blog. The next day, June1, 2020, we had 59,163 page views -- for a two-day total of  124,362, another record.

As David Roberson's civil case against Drummond Company kicks into high gear, the immunity deal he rejected in criminal case is beginning to smell funny

Drummond Coal

 

Something is starting to smell funny about the immunity deal former Drummond Company executive David Roberson rejected in the North Birmingham Superfund case, according to a report at banbalch.com. Reports Publisher K.B. Forbes:

In 2017, the criminal defense team of ex-Drummond Executive David Roberson allegedly flat-out rejected a full immunity deal with the U.S. Attorney’s Office.

And what would David Roberson have done for that immunity deal?

According to sources, the federal government wanted Roberson to honestly testify about the alleged bribes from Drummond Company to politicians.

The testimony the feds also sought included details of an alleged bribery ring of “do-not-ask” but “just-send-the-check” co-conspirators.

But Roberson’s criminal attorneys allegedly rejected the deal.

With the criminal attorneys being paid generously (to this day) by Drummond Company, some observers wonder:

Was the rejection of the immunity deal done solely for Drummond’s benefit at Roberson’s expense?

The issue is coming back to life in Roberson's $75-million fraud lawsuit against Drummond and the Balch Bingham law firm, and the company's general counsel is coming under enhanced scrutiny. Writes Forbes:

Blake Andrews, General Counsel of Drummond Company, was allegedly so “confused” by the invoices in the North Birmingham Bribery Scheme, he allegedly had Roberson sign off on them as the “fall guy.”

Was “Confused” Andrews involved in any way with the rejection of this immunity deal?

Roberson’s civil litigation team is dispatching discovery requests and video deposition subpoenas.

Roberson’s civil attorneys should dig deep into Andrews' communications with Roberson’s criminal defense team and make sure there were no alleged strings-attached,  to his detriment.

What was Roberson’s reward for keeping his mouth shut and being loyal?

Drummond allegedly vowed to keep him on the payroll, pay for his criminal litigation costs, and take care of Roberson and his family.

Yet six months after his conviction, Roberson was terminated. He lost his home, his possessions, and barely can pay for the prescription drugs of his family members.

Will the prospect of intense discovery make some Drummond officials, and their Balch allies, uneasy? Writes Forbes:

Now, Roberson’s $75 million civil lawsuit against Drummond and Balch & Bingham is moving forward.

The judge refused to dismiss the promissory fraud count where the Robersons asserted they both turned down employment opportunities and the selling of their home for a profit based on Drummond’s assurances that appear to have been lies.

Drummond always has declared loyalty, absolute loyalty to their employees.

Regardless of the morality of the matter, David Roberson saved Drummond Company $100 to $150 million in costs in the North Birmingham CERLA matter.

And now some folks at Drummond appear to be “dazed and confused.

"Let's get Mikey! He likes it!" Did a classic TV commercial from the 1970s play out among top officials at Drummond Co. in Superfund scheme?

 

An anonymous comment here at Legal Schnauzer, about a beloved cereal commercial from the 1970s and '80s, has turned into a splendid post -- both amusing and insightful about the David Roberson lawsuit against Drummond Company -- at banbalch.com. 

Publisher K.B. Forbes hits just the right tone under the headline “'Let’s Get Mikey! He likes it. Hey Mikey!” Drummond’s General Counsel Blake Andrews Under Fire." The post is light-hearted because . . . well, it's about one of the most clever, long-running (14 years) commercials in television history. But there is a serious undertone because the commercial seems to actually reflect the mindset of Drummond officials who allegedly set up Roberson as the fall guy in the North Birmingham Superfund bribery scandal. 

Here is the comment-- published 11/5/20 -- that set Forbes' post aflight:

Anonymous said...

This routine reminds me of the great cereal commercial from back in the day, where the kids said, "Hey Mikey, you try it." Except this is, "Hey Roberson, you pay the invoice."

November 5, 2020 at 12:07 PM

Writes Forbes:

We have no bones to pick with Drummond Company whatsoever. None.

But walking goosestep with embattled law firm Balch & Bingham is detrimental to one’s health, livelihood, and reputation.

Just ask Jeff Sessions, Luther Strange, or disgraced ex-U.S. Attorney Jay E. Town among others.

Even former Drummond CEO Mike Tracy abruptly “retired” last year after cuddling up with Balch, and after the alleged set-up of “fall guy” ex-Drummond executive David Roberson was exposed.

Now, Blake Andrews , General Counsel of Drummond Company is under fire for allegedly conspiring with Tracy to allegedly have Roberson sign off on all invoices and payments involved in the North Birmingham Bribery Scheme.

Andrews appears to have been so “confused” by the invoices from the money laundering operation, Andrews allegedly had Roberson take the fall.

An anonymous commentator on the well read legal blog Legal Schnauzer wrote:

Forbes then ties the comment, and the commercial, into the real world:

In the years that Roberson worked for Drummond, he never, ever reviewed or signed-off on any Alabama legal invoices. Ever.

Why then, did Blake Andrews allegedly have Roberson sign-off and approve all the legal invoices from Balch & Bingham seeking reimbursement for payments made by Balch on behalf of Drummond to the Oliver Robinson Foundation?

Was Blake Andrews indeed “confused” or did he willingly know that these payments were illegal?

Roberson is not a lawyer; he is a biologist.

Andrews appears to have been the same legal counselor who hired Roberson’s criminal defense team that rejected a full-immunity deal.

As we wrote in the summer of 2019:

NOW FOR THE SHOCKER: In the North Birmingham Bribery Case, Dave Roberson was offered an immunity deal if he had testified against Balch & Bingham, according to insiders.

Why didn’t he testify? Why didn’t he take the deal?

Roberson had faith in Drummond Company. He was loyal, and Drummond declared their support after his criminal conviction [in July of 2018], calling him a “man of integrity.”

Six months later in February [of 2019], Drummond, showing little integrity,  reversed course and fired Roberson.

With a new Administration entering, a new group of U.S. Attorneys arriving, and aggressive talk against environmental racism, Drummond CEO Richard Mullen, who likes to save money or make money, should break the chains with Balch, put the North Birmingham matter behind him, and “retire” Blake Andrews.

Not only does it appear that Drummond Company received bad legal advice from Balch & Bingham, they also appear to have been led foolishly by their own General Counsel.

Mullen needs to mop up Andrews’ ugly mess and separate Drummond Company from Balch & Bingham once and for all.