North Birmingham Superfund investigation takes on new life as David Roberson's lawsuit against Drummond kicks into high gear with discovery phase

 

A probe into possible misconduct related to a U.S. Environmental Protection Agency (EPA) site in North Birmingham has been reborn, according to a report today at banbalch.com. From the report:

Blake Andrews and Mike Tracy, what have you done?

Drummond Company, who foolishly walked goose-step with embattled law firm Balch & Bingham, faces a new North Birmingham Bribery Investigation from the legal team of ex-Drummond executive David Roberson.

Well-read legal blog Legal Schnauzer reports that Roberson’s attorney, Burt Newsome, has dispatched initial discovery requests.

We understand that more discovery requests and video depositions are in the works.

Newsome, who has hired an around-the-clock private security firm and installed cameras and motion-detectors at his home and offices, was nearly killed in a head-on car crash in September that some speculate appears to have been intentional.

 

Could the U.S. Department of Justice renew its probe of the investigation, which apparently was compromised from the outset under former U.S. Attorney Jay Town? That remains unclear:

The rebirth of the North Birmingham Bribery Investigation comes just months after disgraced U.S. Attorney Jay E. Town resigned after we, the CDLU, spurred a U.S. Department of Justice probe.

The alleged secret deal between Town and Alabama Power to shield and not even mention the utility during the criminal trial is history. 

Alabama Power CEO Mark A. Crosswhite and other insiders at the utility will be subpoenaed for a video deposition and all their correspondence, memos and documents, including check copies and payments made to the money laundering entity, Alliance for Jobs and the Economy (AJE).

Mike Tracy, the former CEO of Drummond, and Blake Andrews, General Counsel at Drummond, who allegedly set up David Roberson as the “fall guy,” will be grilled for their alleged unconscionable conduct.

And all the entities who funded and partook in the Astro-Turf entity AJE will have to answer for their conduct. (Who told you to donate? Why did you donate? What were the goals according to those who solicited you?)

And those who testified or bore witness at the criminal trial in the summer of 2018 will have an all-star reunion show. Joel I. Gilbert, Steven McKinney, Oliver Robinson, Trey Glenn, Scott Phillips, Irving Jones, Jr., Chad Pilcher, and Lance LeFleur to name a few.

The Pandora Box is about to open and show who was really responsible for pulling the strings and engaging in the the bribery scheme spearheaded allegedly by Balch.

Attorney for Drummond suggests in-house counsel knew EPA scheme was illegal, so he had David Roberson process invoices that led to indictment

Burt Newsome

An attorney for Drummond Company, defendant in a $75-million lawsuit, seemed to acknowledge at oral argument that the firm's in-house counsel had determined a plan to circumvent expensive EPA regulations was illegal at the time he asked former executive David Roberson to process invoices related to the scheme. Roberson complied, and according to his civil complaint, that simple act played a central role in his indictment and conviction -- making him the fall guy -- in the North Birmingham Superfund bribery scandal.

Andy Campbell, attorneys for co-defendant Balch Bingham, had argued that Joel Gilbert, one of the firm's lawyers, had provided "legal services" when he made a false statement to Roberson about the legality of the Superfund plan. Circuit Judge Tamara Harris Johnson bought that argument (improperly, in our view), finding Gilbert's statement fell under the Alabama Legal Services Liability Act (ALSLA) and making Roberson's claim time-barred.

Trey Wells, from the Birmingham firm Starnes Davis Florie, appeared to be making a similar argument for Drummond.  But Johnson rendered a mixed-bag verdict, granting dismissal for Drummond on some counts, while denying it on others. That means Drummond stands as the lone defendant, while Johnson's total dismissal of Balch is on appeal to the Alabama Supreme Court.

Wells' statement regarding Drummond in-house counsel Blake Andrews was in response to claims from Roberson (and his attorney, Burt Newsome) that Andrews' actions did not constitute the provision of legal services. Here is Wells from a transcript of the recent oral argument via telephone conference:

Their theory is that Drummond's general counsel formed a legal opinion that this whole plan was illegal and did not tell Mr. Roberson about it, and in fact, told him things that would basically make him be the fall guy, I think is their theory. That is -- the formation of a legal opinion as to whether something is legal or illegal is the definition of what a lawyer does. . . . That is legal services.

Burt Newsome pounced on that statement:

You know, he just -- he did a great job summing up Balch and Drummond's legal-services argument in a nutshell. He just told you because Blake Andrews formed in his head that this lobbying scheme was illegal and decided, I better not pay these invoices to the [Oliver Robinson] foundation because I will go to jail, then I'm going to -- so I'm going to get David Roberson to pay these so he will go to jail, that that was providing legal services to Mr. Roberson. That is absurd. Blake Andrews making a legal opinion in his head that this is illegal, I better not pay these, I better get somebody else to do it, that's not giving legal advice to Mr. Roberson. That doesn't make David Roberson his client. That makes David Roberson him and Balch's fall guy.

It's just unbelievable how they construe what legal services are. Not telling somebody what you're doing is illegal and getting hem to do it so you won't go to jail, that's not providing a legal service to him. That's not a cause of action that arises out of legal service. I mean, that analogy is just over  the top. . . . 

Not only is Drummond and Balch's argument with regard to the legal services act appalling -- I mean, he's saying because Blake Andrews formed in his head that this scheme was illegal so I don't want to be the one paying these invoices in the line and scope of employment, that somehow this is providing a legal service to Roberson, this is somehow being Mr. Roberson's attorney, is a joke. And it's the same way with Balch. They did the same thing. This is illegal, but, you know, when he asked me the question, I'm going to tell him my compliance department said it was all okay. That's not providing a legal service to Mr. Roberson. That's not being Mr. Roberson's attorney.

. . . The legal services act does not apply to the causes of action in this complaint. You're not providing a legal service to somebody by not telling them that the payment of these invoices to this foundation is illegal and having them do it. That is nonsensical.

Judge Johnson, in her order on Drummond's Motion to Dismiss, stated she was accepting the following factual allegations as true at this early stage in the litigation:

12. Plaintiffs allege that Defendant Balch made payments to the [Oliver Robinson] Foundation pursuant to the contract and submitted invoices to Defendant Drummond for reimbursement. . . . Blake Andrews, General Counsel for Defendant Drummond, represented to the Plaintiff that he was 'confused" by having to process Defendant Balch's invoices for the Foundation as well as other Defendant Balch invoices, and Andrews "asked and directed" the Plaintiff David Roberson to process Defendant Balch's invoices for payments to the Foundation.

13.  At all relevant times until February 7, 2019, Plaintiff David Roberson was a vice president of Defendant Drummond, subordinate to Andrews and [CEO Mike] Tracy, and Plaintiff was required to perform duties and responsibilities assigned to him by Andrews and Tracy.

Trump-appointed federal judge authors appellate opinion that leads to grant of immunity for Missouri cop who fatally shot a black man in the back

Ryan Stokes and his daughter

 

As yesterday's presidential election wound down, it was unclear if Americans were finished -- let us pray -- with Donald Trump's nightmarish "Reign of Error." But this is clear: We will be living with his wretched appointees to the federal bench for decades to come.

Take a fellow named David Stras -- please! Stras appears to be loyal to the far-right Federalist Society, of which he has been a member since 2003. But a case that originated in Missouri suggests his loyalty to he rule of law is not so clear.

Stras, a Donald Trump-appointed federal judge, has written an opinion that essentially forced a lower court to reverse its earlier ruling and find that a Kansas City, MO, police officer enjoyed immunity for  fatally shooting an unarmed black man in the back.

Stras, appointed by Trump to the Eighth Circuit Court of Appeals in 2017, wrote the opinion for a three-judge panel, and it appears to conflict with established law for making determinations about immunity at the summary-judgment phase of a federal lawsuit. To make an ugly case even uglier, published reports indicate police officials lied about central elements of the case -- and even granted two officers (William Thompson and partner Tamara Jones) awards for their actions before later rescinding them.

The court case -- N.S., et al v. Kansas City Board of Police Commissioners, et al (8th Cir., 2019) -- grew from officer Thompson's fatal shooting of Ryan Stokes on July 28, 2013, in the Kansas City Power and Light District. N.S. is the only child of the decedent, and co-plaintiff Narene James is his mother. Here is how flatlandkc.org, in a 2015 article, describes events of that evening:

After midnight on July 28th, 2013, Ryan Stokes and Ollie Outley drove in Outley’s red Monte Carlo to the Power and Light District. They parked off of McGee St., which runs north and south between 12th and 13th streets.

Outley drove.

There they met up with friends and spent the next two hours walking the perimeter of Power and Light, hanging out, and talking with acquaintances. Friends describe the group as being in good spirits, having a good time.

At 2:30 a.m. when the bars closed, patrons poured out onto the sidewalks. Stokes stood with Outley and others, all of whom are African-American, at the corner of 13th Street and Grand Blvd.

A group of five white males, including Jordan Miller, 21, emerged from a nearby bar at Power and Light.

Miller would later tell police he and his friends were extremely intoxicated.

“Hammered,” a friend told police.

They looked for a taxi cab big enough for all five, when Miller realized he had lost his cell phone. He accused Outley of taking it.

While Miller acknowledged later that he thought he must have dropped the phone on the sidewalk– and that he had never physically seen Outley holding his phone–he accused Outley at the time of taking it.

Miller yelled at Outley to give him his phone back. Outley denied having it. A shouting match ensued.

As the altercation escalated, surveillance video shows Stokes stepping in to act as peacemaker. No punches are thrown, but the yelling and shoving attracts the attention of Police Officer Albert Villafain.

Villafain, who was working Bike Patrol that evening, called for order. When the fight continued, he pepper sprayed the crowd, and people took off in all directions.

According to Outley and other witnesses, pepper spray got into Outley’s eyes. He gave the keys to his Monte Carlo to Stokes and told him to go get the car.

Video surveillance shows Stokes and his friend, Kenneth Cann, jogging east up 13th St. towards McGee St. and the parking lot.

The video shows both of Ryan Stokes’ hands, and they appear to be empty.

According to police reports and surveillance video, Jordan Miller starts following Stokes. He then tells Villafain that Stokes or someone with him took his cell phone.

Villafain asked Miller if he could make a positive identification of the thief. Miller said he could. Villafain signaled another Police Officer, Daniel Straub, to assist in the pursuit of the two suspected phone thieves.

All three took off after Stokes.

The pursuit ended when Stokes reached a parking lot, encountered officer William Thompson, and opened the door to his friend's Monte Carlo. Thompson fired three shots, hitting Stokes twice in the back. The Stokes family, represented by Kansas City attorney Cynthia L. Short, sued for excessive force under federal civil-rights law and wrongful death under Missouri state law.

Officer William Thompson and his partner, Tamara Jones

At the trial-court level, Judge Brian Wimes (Western District of Missouri) denied immunity for Thompson and his police co-defendants. They sought review at the Eighth Circuit, where immunity issues properly can be considered on interlocutory appeal. They found a welcoming set of ears from the Stras panel, which overturned Wimes' ruling and remanded the case to the Western District, where Wimes had little choice but to write a second opinion, this time granting immunity to the cops.

By all accounts we've found, it was a chaotic scene on the night of Ryan Stokes' death. Here are the uncontroverted material facts, as stated by both the trial and appellate courts:

Officer Thompson is a KCPD police officer, employed by the Board, who has been a KCPD officer for more than 20 years. In the early morning hours of July 28, 2013, Officer Thompson and his partner Officer Tamara Jones were on foot patrol in the parking lot located at McGee and 12th Streets in Kansas City, Missouri. Officers Thompson and Jones were assigned to clear the lower parking lot along the west side of Grand Boulevard between 12th and 13th Streets. Eventually, Officers Thompson and Jones moved to the upper level of the parking lot where the shooting at issue occurred.

Over dispatch radio, Officer Thompson heard from Officer Albert Villafain that a foot chase was headed in his direction. Officer Thompson heard the description of two suspects (black males wearing white T-shirts and shorts), the direction of the two suspects' travel, and the crime that had allegedly been committed, which was stealing. Seconds after Officer Thompson heard this information over the radio, he saw a black male, wearing a white T-shirt, come running around the corner of a building in the parking lot. This individual was Ryan Stokes.

At the time of the incident, Stokes held his right hand closed, in front of himself, at waist level. Stokes jogged in Officer Thompson's direction, toward a red Monte Carlo that was parked just past the corner of the building in the parking lot. Stokes held his hands and arms close to his body as he ran, with his elbows bent, stationary, and close to his body.

Officer Thompson testified he saw a gun in Stokes' right hand, and Stokes looked at Officer Thompson and knew of his presence. Officer Jones testified she did not see Stokes with a gun, but she did not see Stokes' hands. Liberty, Missouri Police Officer Greg Powell testified he did not see a gun in Stokes' hand, but it was dark, and he could not see Stokes' hands. KCPD Officer Gregory Williams testified he did not see Stokes with a gun or anything that would have appeared as a gun. KCPD Officer Straub testified he did not see Stokes with a gun, but he also did not see Stokes' hands. Other witnesses testified Stokes was holding up his pants. Other witnesses testified they did not see Stokes with a gun at any point earlier that evening, including immediately before Officer Thompson saw Stokes.

Officer Thompson pointed a gun at Stokes as Stokes ran to the driver's side door of the Monte Carlo. Stokes' back was to Officer Thompson, at which point Officer Thompson could not see Stokes' hands. Stokes stepped away from the door of the vehicle. In his peripheral vision, Officer Thompson saw another police officer running around the same corner of the building around which Stokes had run. Stokes ran in the direction of the approaching officer, Officer Straub. Officer Straub saw Stokes stepping away from the Monte Carlo, and believed Stokes was obeying Officer Straub's commands to stop running and show Officer Straub his hands.

As Stokes moved away from the Monte Carlo, his back was to Officer Thompson, who could not see Stokes' right hand. However, Officer Thompson believed Stokes was armed and intended to ambush and shoot Officer Straub.

Officer Thompson shot Stokes from behind, and saw Stokes fall to the ground. Officer Thompson stopped shooting once he saw Stokes falling. About seven to ten seconds elapsed between when Officer Thompson saw Stokes and when Officer Thompson shot Stokes. Stokes was unarmed at the time of the shooting.

Thereafter, a gun was discovered on the driver's seat of the Monte Carlo. The gun belonged to Stokes' friend and owner of the Monte Carlo, Ollie Outley.

How do we know the Eighth Circuit panel got it wrong on the immunity issue, that the case should have moved past summary judgment to settlement or trial? The words of Stras, the Trump appointee, tell us so. From our post of 9/16/20:

How gross was the Stras panel's butchery of the N.S. case? To arrive at an answer to that question, we first need to consider the proper steps for considering summary judgment, as spelled out in case law and Rule 56 of the Federal Rules of Civil Procedure (FRCP). Here are three key elements:

(1) The evidence of the nonmovant (the Stokes family, in this case) is to be believed, and all justifiable inferences are to be drawn in his favor. Anderson v. Liberty Lobby Inc., 477 U.S. 242 (1986).

(2) Summary judgment is appropriate where there is no genuine issue of material fact, and “the moving party is entitled to a judgment as a matter of law.” Celotex Corp v. Catrett, 477 U.S. 317 (1986).

(3) In passing upon a motion for summary judgment, the court is required to view the facts in the light most favorable to the party opposing the motion and to give to that party the benefit of reasonable inferences to be drawn from underlying facts. Robert Johnson Grain Co. v. Chem. Interchange Co., 541 F. 2d 207 - Court of Appeals (8th Circuit, 1976). Adickes v. SH Kress and Co., 398 US 144 
 (Supreme Court 1970).
  
Did the Stras panel follow these straightforward provisions of summary-judgment law? Not even close. Let's consider Stras' own words from the N.S. opinion:

Some evidence supports Thompson's account. The police discovered a handgun on the driver's seat of the car, which could mean that Stokes was armed when he entered the parking lot but then tossed the gun into the car. And witnesses who saw Stokes running said that he appeared to be "holding up his pants as he ran," which is arguably consistent with Thompson's perception that Stokes was holding a gun. Finally, Thompson's partner claims to have heard Thompson order Stokes to "get on the ground."

Other evidence supports the family's account. No one besides Thompson observed Stokes with a gun, nor was any gun found on or near his body. The car's owner, who was Stokes's friend, claimed that the gun recovered from the car belonged to him and that it had been there all night. Moreover, some officers did not recall hearing Thompson shout anything during the encounter, and at least one officer thought Stokes was trying to surrender when Thompson shot him.

Stras admits right up front that the evidence is mixed, with some of it favoring Officer Thompson's account, and some favoring the Stokes family's account. As the non-moving party, the Stokes family was entitled to have their factual allegations believed and "all justifiable inferences drawn in their favor." So, how could the Stras panel essentially force the trial court to grant summary judgment against them?

In Stras' own words, there were "multiple genuine issues of material fact," so summary judgment could not lawfully be granted. Why did the panel force summary judgment anyway? Is David Stras a rubber stamp for law enforcement? That's how it looks from here.

 

David Stras

Attorney Burt Newsome launches discovery effort on behalf of former Drummond exec David Roberson in $75-million lawsuit related to Superfund scheme

Drummond Coal

 

Burt Newsome, attorney for David and Anna Roberson, filed a notice of discovery yesterday, launching the evidence-gathering phase in a $75-million lawsuit against Drummond Company, for which Mr. Roberson served as vice president before becoming entangled in the North Birmingham Superfund bribery case.

The initial discovery includes interrogatories (written questions and answers) and requests for production of documents (memoranda, letters, electronic files, etc.) Here are some of the requests that stand out to us. The full discovery document is embedded at the end of this post.

* Produce all documents and electronically stored information (including emails) referring or referable to the North Birmingham Superfund Site . . . 

* State the date on which Drummond Company first discovered any legal problems with the scheme and/or Balch's plan to beat the EPA with regards to the North Birmingham Superfund Site.

* State the name, place of employment, and relationship to Drummond Company of the person or persons who first learned of this discovery, and state the means by which the discovery was made.

* Produce all documents and electronically stored information (including emails) relating to that discovery.

* Describe in detail the efforts made by Drummond Company to inform the Plaintiff of this discovery, including the date of each such effort, the nature of the effort, and the persons involved.

* Produce all legal memoranda and/or electronically stored information (including emails) relating to the issue of the legality of the scheme and/or Balch Bingham's plan to defeat the EPA.

* Produce all Board minutes reflecting or referable to any discussion regarding the North Birmingham Superfund Site in Jefferson County, and/or the scheme, Joel Gilbert, and/or David Roberson.

* Produce any and all communications of any type whatsoever from any employee or representative of Drummond Company to Jay Town and/or the U.S. Attorney's office regarding the scheme and/or the criminal proceedings associated with the scheme. . . . 

* Produce any and all communications of any type or form whatsoever with Mark Crosswhite, Southern Company and/or Alabama Power, Balch Bingham, the Alliance for Jobs and the Economy, Oliver Robinson, the Oliver Robinson Foundation regarding the scheme. . . . 

* Produce any and all communications of any type whatsoever dealing with Blake Andrews directing David Roberson to pay the invoices from Balch Bingham associated with the payments being made . .  to the Oliver Robinson Foundation.

Judge Tamara Harris Johnson denies chunks of Drummond's Motion to Dismiss, meaning $75-million lawsuit from former exec David Roberson is alive

Tamara Harris Johnson

 

Drummond Company's Motion to Dismiss in a $75-million lawsuit involving former executive David Roberson has been granted in part and denied in part. That means the case will move forward to summary judgment, and perhaps, trial. Likely of most importance for the plaintiffs (Roberson and his wife, Anna), a stay on discovery has been lifted, meaning their attorney, Burt Newsome, can begin to collect evidence designed to prove their case. 

The mixed result for Drummond came from Tamara Harris Johnson, the same Jefferson County circuit judge who granted a full dismissal for co-defendant Balch Bingham law firm -- and in the process, came under heavy criticism here last week for failing to abide by Alabama law on the handling of a Motion to Dismiss.  

Johnson's order on Drummond reads like a different judge wrote it. The document appears to be well-reasoned and within the boundaries of Alabama law. Why Johnson reached such a wildly different result on two motions that are governed by the same straightforward law remains a mystery. But it means the Robersons' case is very much alive -- and the Balch appeal is under appeal to the Alabama Supreme Court, and it should be reversed, meaning the law firm is not out of the woods yet.

The Drummond order was electronically filed at 4:04 p.m. last Friday (10/30/20), the same day news broke that Balch partner and general counsel Schuyler Allen Baker Jr. had died. 

Early in the Drummond order, Johnson states:

This Court, in deciding the herein Defendant Drummond's Motion to Dismiss, has accepted as true all well-pleaded factual allegations contained within the Plaintiff's Third Amended Complaint. The Court acknowledges that Plaintiffs, in the aforementioned Complaint, have alleged factual allegations and conclusory statements; however, the Court will accept as true all well-pleaded factual allegations and view them in a light most favorable to the non-moving Parties, the herein Plaintiffs.

That is a correct statement of Alabama law, and Johnson appears to follow it throughout the Drummond ruling, listing 25 allegations she accepts as true -- as required at the Motion-to-Dismiss stage.

Here is a breakdown of Johnson's order on the various counts in Drummond's Motion to Dismiss:

Count I: Indemnification --  Roberson alleged Drummond owed a duty to indemnify him for all losses and damages suffered from performing duties assigned to him by Drummond and General Counsel Blake Andrews. Johnson found no such duty. Dismissal granted.

Count II (Misrepresentation) and Count III (Concealment) -- Roberson alleged Andrews made a number of misrepresentations regarding processing of legal bills from the company's outside counsel (Balch). Roberson further alleged Andrews claimed to be "confused" by Balch's invoices, so Roberson processed them, leading to his indictment and conviction. Johnson found Andrews was not providing legal services and Drummond was not a legal services provider, so the counts did not fall under the Alabama Legal Services Liability Act (ALSLA) and were not time-barred. Dismissal denied. 

Count IV, Conversion -- Roberson alleged Drummond took and removed from his office several items of personal property after his termination. Johnson could not find beyond a doubt that Drummond did not engage in an unauthorized wrongful taking of Roberson's property. Dismissal denied.

Count XI, Concealment by Drummond [and Balch] -- Roberson alleged that Drummond concealed it had hired a lobbyist via a contract with Balch, forming an agency relationship and making Drummond vicariously liable. Johnson found Drummond was not liable under an agency theory. Dismissal granted.

Count XI, Concealment by Drummond -- Roberson alleged Drummond had a duty to notify him that certain payments were being made to lobby the Alabama Department of Environmental Management (ADEM) to oppose the EPA listing a North Birmingham site on its National Priorities List. Johnson could not find beyond a doubt that Roberson could not prove he was owed this duty. Dismissal denied.  

Count XII, Promissory Fraud -- The Robersons alleged they relied on a representation by CEO Mike Tracy regarding David Roberson's employment, and Drummond never intended to perform the act promised. Johnson could not find beyond a doubt that Roberson could not prove all the elements of promissory Fraud. Dismissal denied.

Schuyler Baker Jr., a central figure at Birmingham's embattled Balch Bingham law firm, dies from cancer

Schuyler Baker Jr.

Schuyler Allen Baker Jr., general counsel and a powerful partner at Birmingham's scandal-plagued Balch Bingham law firm, has died of cancer, according to an obituary today at al.com.

Baker perhaps was best known in recent years for vowing to "fight to the death" over what has become known as the Newsome Conspiracy Case. That's the plan where solo attorney Burt Newsome --  allegedly was targeted, falsely arrested, and defamed in a scheme designed to allow Balch and Bingham to swipe his business and ruin his law practice. Former Balch partner Clark Cooper, fired in 2017,  allegedly helped organize that plan. 

Here is how banbalch.com described the Newsome matter:

Balch and Bingham partner Clark A. Cooper, who was abruptly fired on March 3, 2017,  by the embattled law firm, appears to have been the spearhead of the conspiracy that targeted and defamed Burt Newsome, a successful attorney who serviced banks, in an alleged attempt to steal his business.

The defamation occurred after a staged arrest in which Newsome’s mugshot was allegedly distributed via email to several bank executives on a Saturday afternoon by Cooper.

According to Newsome’s appellate brief filed with the Alabama Supreme Court, Cooper looks like a habitual liar who tells half-truths and contradicts his own testimonials.

Baker Jr.'s father, Schuyler A. Baker Sr. was a Balch partner and close aide to Alabama Governor George Wallace, helping advance the governor's segregationist views, including the famous "Stand in the Schoolhouse Door," which was made even more famous by the classic film Forrest Grump.

Baker Sr. also was connected to a Wallace-era highway-funds scandal involving a firm that employed the imperial wizard of the Ku Klux Klan.

In Baker Jr.'s final years, Balch was connected -- or appeared to be connected -- to a number of controversies:

* The North Birmingham Superfund bribery scandal, where two of the firm's partners were indicted, and one -- Joel Gilbert -- was convicted;

* The Newsome Conspiracy Case;

* The David Roberson Case, a $75-million lawsuit where Balch attorneys allegedly helped make the former Drummond company executive a fall guy in the Superfund matter;

* The Newsome vehicle crash, a suspicious incident where an employee of Norfolk Southern in Birmingham appeared to intentionally hit Newsome head-on in a large SUV, causing life-threatening injuries. 

Baker Jr.'s position at Balch allowed him to have an enviable lifestyle in perhaps Alabama's premier address. From the obituary:

Schuyler Allen Bradley Baker Jr. of Birmingham passed away on October 28, 2020 after a courageous battle with cancer. Allen was born on September 1, 1947, in Tuscaloosa, Alabama and grew up in Birmingham. Allen graduated from Shades Valley High School in 1965, the University of Alabama in 1969, and Cumberland School of Law in 1973. He was a partner for Balch & Bingham for nearly 50 years and served as the firm's general counsel. He married Patty Wilson in 1974 and raised their 4 children in Birmingham. He was a dedicated husband, father, and grandfather, spending his free time with his family at Lake Martin and in Cashiers, NC.  

He was widely known as "Big Al" and loved telling ghost stories and creating fun adventures for his grandchildren. He served as coach, commissioner, and chairman of Mountain Brook Athletics and coached many of his children's sports teams throughout the years. He enjoyed playing golf with his buddies in the Chiselers dogfight at the Country Club of Birmingham. He was a long-time member of Canterbury United Methodist Church and the Crawford Owen Sunday School class. Allen served on the Board of Directors of the St. Vincent's Foundation and was a former president of The Leukemia And Lymphoma Society of Alabama and Northwest Florida.

He was a member of the Monday Morning Quarterback Club and Kiwanis Club of Birmingham. Allen was also a member, president, and king of the Beaux Arts Krewe. He was a fellow for the American College of Trial Lawyers, and served on the American Board of Trial Advocates and on the Advisory Board of the Cumberland School of Law. He also served as a long-time House Corp Chairman of the Pi Kappa Alpha fraternity at the University of Alabama. He is survived by his wife, Patty; four children: Brad Baker (Sally), Will Baker (Susannah), Mike Baker (Laura), Sally Woods (Patrick); 11 grandchildren: Maggie Baker, Allen Baker, Kathryn Baker, Wilson Baker, Eliza Baker, Annie Baker, James Baker, Caroline Baker, Charlie Baker, Schuyler Woods, Walker Woods; his sister, Katie Lasker (Jim) and sisters-in-law, Cindy Baker and Peggy Pate (Bill). He is preceded in death by his parents Schuyler & Kathryn Baker; his brother, Stephen Baker; and infant grandson, William Woods. A limited seating memorial service will be held at 12:00pm on October 31 at Canterbury United Methodist Church. There will be a drive-thru visitation at the church beginning at 1:30 pm. In lieu of flowers, donations may be sent to Canterbury United Methodist Church, 350 Overbrook Road, Birmingham, AL 35213 or the Bruno Cancer Center/St. Vincent's Foundation at www.stvhs.com/philanthropy/give.asp or 1130 22nd Street South, Ste 1000, Birmingham, AL 35205.

Did Balch Bingham lawyer Joel Gilbert provide "legal services" when he lied to Drummond exec David Roberson about scheme to fight off EPA regulations?

 

Attorneys for the defense in a $75-million lawsuit involving former Drummond Company executive David Roberson seem to have a low opinion of the "legal services" lawyers provide.

Roberson alleges two attorneys -- Joel Gilbert, of Balch Bingham, and Blake Andrews, in-house counsel for Drummond -- gave him false or incomplete information -- that caused him to be convicted in the North Birmingham Superfund bribery scandal. In essence, Roberson argues that lawyers knowingly deceived him in order to make him the fall guy in a scheme to overcome a possible cleanup order (at a reported cost of $100 million) from the Environmental Protection Agency (EPA).

The reaction of Andy Campbell, representing Balch Bingham? Hey, that's OK. Such deceptive acts are all in a day's work for an attorney. In fact, they constitute provision of "legal services." Burt Newsome, attorney for Roberson and his wife Anna, reacted with horror to such a notion. But Jefferson County Circuit Judge Tamara Harris Johnson must have bought it because she granted Balch's Motion to Dismiss, finding the "legal services" caused the Robersons' claims to fall under the Alabama Legal Services Liability Act (ALSLA) and its tight two-year statute of limitations. That means the Robersons' complaint was time-barred as filed too late. Johnson has yet to rule on a similar motion from Drummond.

Consider Campbell's words from a transcript of recent oral argument via telephone conference:

In November of 2014 before implementation of the [bribery] plan [involving former State Rep. Oliver Robinson] -- and we all know what the plan was -- the plaintiff asked Gilbert if he had inquired with the ethics lawyers of Balch Bingham whether the plan was legal and ethical. Gilbert represented to the plaintiff that Balch's in-house ethics lawyers had reviewed the plan and determined it was legal.

Now, that bad legal advice, or alleged bad legal advice, was November 2014. . . . The whole gravamen of this case is based on legal advice that was wrong or false or falsely stated. . . . In addition . . . they say [Mr. Roberson] relied to [his] detriment on this . . . legal advice and was convicted on July 20, 2018 . . . and they suffered damages as a result of that bad legal advice.

Does it matter, in Campbell's view, that the "legal services" provided in this instance involved statements that were false? Nope:

It does not depart from the fact that his whole claim is based on poor, faulty legal advice. Whether he was technically a client or not, he says he heard it, he relied on it. The law firm basically gave him false advice. He acted on it, and he was convicted. Nothing could be more a case of a claim against a legal services provider than this case is.

So, there you have it -- providing false legal information that leads to a man's criminal conviction can help make you a legal services provider, entitled to protection under the ALSLA.  How did Burt Newsome react to that idea? Not with favor:

You know, if Balch wants to argue that they were prroviding legal services to Roberson, even though it's in their pleadings he wasn't their client, they can do that. But whether or not they were providing legal services to Roberson is a question of fact, which is clearly set out in our third amended complaint that he was not a client of Balch Bingham, and Balch was not providing legal services to him.

Balch wants it both ways. They say in their own pleadings that Roberson was not Balch's client. They had no duty to Roberson, yet they want to apply the statute of limitations for the Alabama Legal Services Act. And that's ridiculous. These claims against Balch are ordinary fraud claims, and the statute of limitations on an ordinary fraud claim accrues when all the elements of a fraud are met, and one of those elements is damages. Roberson suffered no legal damage until he was indicted, and he filed suit within two years of his indictment.

How severe was Gilbert's statement, which Campbell seems to acknowledge was false? Newsome provides insight:

[Mr. Campbell] keeps saying Joel Gilbert gave Roberson legal advice. That's false. Read the complaint. Mr. Roberson didn't ask Gilbert for legal advice. He didn't ask Gilbert to research whether the plan was legal. He asked him a simple question. Has your compliance department looked at this, and Joel Gilbert lied. He said, Yeah, they've looked at it, and they determined it's legal. . . . 

[He] could have said nothing. But what Joel Gilbert did to his non-client, Mr. Roberson, knowing that he'd rely on it, was he lied to him. He said, our compliance department has looked at this and it's legal. And as the testimony showed and Mr. Roberson learned at trial, the compliance department had told Joel Gilbert actually the opposite, that it was illegal. He never was a legal-services client or received legal services whatsoever from Joel Gilbert. He simply asked Gilbert a question, and Gilbert lied to him.

Roger Stone's acolytes prove they are both vulgar and stupid in string of foul-mouthed messages from cyber-harassment campaign against Legal Schnauzer

Roger Stone

(Last of 4 parts -- Warning: Post contains profane language)

(Click here for Part 1)

(Click here for Part 2) 

(Click here for Part 3)

You might expect the president of the United States to associate with individuals who have a modicum of class. But the alliance between Donald Trump and GOP dirty trickster Roger Stone apparently has no basis in class. That is one of the take-home lessons from our experience as the targets of a Stone-driven cyber harassment campaign.

After reading Stoner messages in Part 3 of our series, a reader classified them as "vulgar stupidity" -- and I think that fits. But we haven't gotten to probably the most vulgar and stupid material. That comes in today's post.

The senders of these messages tended to identify themselves as "Anonymous" or by a clearly fake name -- so we have no way of knowing at this point who actually sent them. But they arrived in the same general time frame, with the same general tone, as the Stoner messages identified by the NYC-based social-media analytical firm Graphika. Let's examine some of the charming messages apparently sent by affiliates of Roger Stone, the president's buddy. Here are comments from a December 2016 post about Alabama politicos Jeff Sessions and Bill Pryor. For some reason -- I guess to give the public a feel for the type of assault we were under -- I chose to publish these comments, despite their lack of meritorious content. (Note: I'm running the messages as they arrived, with no changes to spelling, grammar, etc.)


Anonymous said...

LS has 'asked' me to contact him to 'discuss' my views many times. Why haven't I done it? Because these calls will get taped (without my permission) and then published on Youtube. I don't want my personal info smeared over the web like soft shit peanut butter. Just google "Chase Swatek" to see all the BS Roger can generate with small facts.

Someone said "fuck Roger" and I couldn't agree more. He's should be medicated. He turns family tragedy and into a burning enema that you shit out causing pain.

December 15, 2016 at 3:24 PM

Anonymous said...

Roger Shuler is such a coward, he won't meet me and talk to me. He makes the abuse of women and children easier. He steals from his employers. Lock 'em up!

December 15, 2016 at 3:26 PM 

Anonymous said...

You're an idiot about the [Bill Pryor Bad Puppy photo]. You should be arrested for publishing child porn. You're a pervy asshole. Stay away from our CHILDREN you fucker!

December 15, 2016 at 3:28 PM

          Anonymous said...

My husband and I pay our taxes, Mr. Shuler, allowing people like you to live off social services every day. Oh, don't think we don't know all about your current sad circumstances. Confidential my ass :-) Merry Xmas Roger you sick fuck.

December 15, 2016 at 3:29 PM

Anonymous said...

I've engaged Mr. Shuler twice now through email about important issues, and each time he has ended up demanding to know "who I am working for" and my home address. Well, he has my real name (twice now!) but not my address, because we all know what he will do with that information: try and connect me with his other "enemies" in his vast, impossible conspiracy, and then sexually smear me (I'm a woman).

December 15, 2016 at 3:30 PM

Anonymous said...

We will keep reporting your site, FOREVER, to make sure that your abusive exploitation of children and adults is flagged by Google, Bing, and everyone else. I think you can expect us to never give up.

You produce fake news that abuses women and children.

Anonymous said...

Asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar, coward, perv, asshole, liar,

December 15, 2016 at 3:34 PM

You probably get the general idea behind that one. Here is another one with the same approach:

Anonymous said...

Roger Shuler fucks sheep, Roger Shuler fucks sheep, Roger Shuler fucks sheep, Roger Shuler fucks sheep, Roger Shuler fucks sheep, Roger Shuler fucks sheep, Roger Shuler fucks sheep, Roger Shuler fucks sheep, Roger Shuler fucks sheep, Roger Shuler fucks sheep, Roger Shuler fucks sheep, Roger Shuler fucks sheep, Roger Shuler fucks sheep, Roger Shuler fucks sheep, Roger Shuler fucks sheep, Roger Shuler fucks sheep, Roger Shuler fucks sheep, Roger Shuler fucks sheep, Roger Shuler fucks sheep, Roger Shuler fucks sheep, Roger Shuler fucks sheep, Roger Shuler fucks sheep, Roger Shuler fucks sheep, Roger Shuler fucks sheep, Roger Shuler fucks sheep, Roger Shuler fucks sheep, Roger Shuler fucks sheep, Roger Shuler fucks sheep, Roger Shuler fucks sheep, Roger

December 15, 2016 at 3:35 PM

Anonymous said...

Fuck you, Roger. Fuck you!

December 15, 2016 at 3:38 PM

Here is one I did not publish originally, but I recently found it residing in my spam folder, so here it is. This person has the "class" to attack my wife after Missouri deputies had broken her arm. I don't know about the reference to a video; it might refer to a possible police dash-cam or body-cam video, which we never received during discovery.

You won't run any video, and you know it!

You're a god damned fraud, Roger. A fucking asshole!

And we know you won't publish this comment because you're too chicken shit to take responsibilities for your actions. What a joke you are. No wonder your fucking mother won't speak with you anymore. Prick.

I hope your slut wife who you've been turning out to fuck big dogs for $20 catches VD and dies. You both deserve the misery.

Dismissal of lawsuit involving former Drummond executive is based on attorney-client relationship, but David Roberson alleges in complaint that he did not have one, and that must be taken as true, by law

David Roberson and family

An Alabama judge botched the dismissal of a $75-million lawsuit involving a former Drummond Company executive by failing to follow state law that requires her, at the motion-to-dismiss stage, to accept the plaintiff's' factual allegations as true. But that's not the only time Jefferson County Circuit Judge Tamara Harris Johnson went off the rails in David and Anna Roberson's lawsuit against Drummond and the Balch Bingham law firm. In fact, it's not the only time Johnson unlawfully failed to take the facts in the Robersons' complaint as true. 

Johnson granted a Motion to Dismiss from Balch, but she still has not ruled on a similar motion (also known as a Rule 12(b)(6) motion) from Drummond, even though she failed to take action on a variety of matters for some 14 months.

The Balch dismissal was based on Johnson's finding that the Robersons' complaint falls under the Alabama Legal Services Liability Act (ALSLA) and its tight (with several qualifiers) two-year statute of limitations. Johnson found, as Balch attorney Andy Campbell urged her to do at oral argument, that the Robersons' claims were time barred because they filed their complaint too late.

Campbell and Johnson, however, got it wrong. Case law holds that a claim falls under the ALSLA only when there is an attorney-client relationship. The Robersons' complaint plainly states that David Roberson had no such relationship with Balch's Joel Gilbert or Drummond in-house counsel Blake Andrews, the two lawyers who allegedly gave him false or incomplete information, essentially making him the fall guy and leading to his conviction in the North Birmingham Superfund bribery scandal. As a result, David Roberson lost his job, and the Robersons lost their house and many of their possessions. The Roberson conviction currently is under appeal.

Per Ex parte Austal USA (2017), Johnson was obligated to take the Robersons' allegations as true; she di not. She also was obligated to find, as a matter of law at this early stage in the litigation, that the Robersons' claims did not fall under the ALSLA, and thus were not time-barred; she did not. That means her finding has almost no chance of holding up on an appeal, notice of which already has been filed. 

What has the Alabama Supreme Court said about the importance of an attorney-client relationship for a claim to fall under the ALSLA? That is found in Brackin v. Trimmier Law Firm, 897 So. 2d 207 (Ala: Supreme Court, 2004). In Brackin, the law firm argued it had no attorney-client relationship with Brackin, and therefore owed him no duty. In Roberson, Balch argues that it did provide legal services to David Roberson, making his claim fall under he ALSLA and its tight statute of limitations. The facts in Brackin essentially are the reverse of those in Roberson, but the central legal finding of Alabama's high court still holds:

An attorney-client relationship is an essential element of a claim under the Legal Services Liability Act, and in support of its motion for a summary judgment, the Trimmier Law Firm submitted undisputed evidence that it had never entered into an attorney-client relationship with Brackin. See Sessions v. Espy, 854 So.2d 515 (Ala.2002) (recognizing that claims against a lawyer that are alleged to have arisen out of the attorney-client relationship are all subsumed under the Alabama Legal Services Liability Act); Peterson v. Anderson, 719 So.2d 216 (Ala.Civ.App.1997) (because the plaintiffs were not clients of the testator's attorney, the plaintiffs lacked standing to pursue an action against the attorney under the Alabama Legal Services Liability Act).

What if the assertions in the Roberson complaint prove to be false? What if it's shown he did have an attorney-client relationship with Gilbert and Andrews? That certainly would be a factor at trial and at summary judgment. But it is not a factor on a Motion to Dismiss. As the Alabama Supreme Court found in Ex parte Austal:  

Rather, in considering whether a complaint is sufficient to withstand a motion to dismiss, we must take the allegations of the complaint as true, Ussery v. Terry, 201 So. 3d 544, 546 (Ala. 2016); we do not consider “'whether the pleader will ultimately prevail but whether the pleader may possibly prevail,”' Daniel v. Moye, [Ms. 1140819, November 10, 2016] ___ So. 3d ___, ___ (Ala. 2016) (quoting Newman v. Savas, 878 So. 2d 1147, 1149 (Ala. 2003) (emphasis added)); and “[w]e construe all doubts regarding the sufficiency of the complaint in favor of the plaintiff.” Daniel, ___ So. 3d at ___.

Due to Johnson's delays and unlawful rulings, the Robersons have been denied the right to conduct discovery for 14 months, with a pending appeal sure to cause more delay. But under Alabama law, Johnson's dismissal must ultimately be reversed, with the Robersons given the opportunity to collect evidence designed to prove their case.

Alabama judge's dismissal of $75-million lawsuit involving former Drummond exec David Roberson runs afoul of Alabama Supreme Court precedent

Tamara Harris Johnson

 

How did Jefferson County Circuit Judge Tamara Harris Johnson run off the rails in dismissing a $75-million lawsuit against the Balch Bingham law firm?

Former Drummond executive David Roberson and his wife, Anna, allege that he relied on false or incomplete information from two lawyers -- Joel Gilbert, of Balch, and Blake Andrews, in-house counsel for Drummond -- essentially making him the fall guy and leading to his conviction in the North Birmingham Superfund bribery scandal. As a result, David Roberson lost his job, and the Robersons lost their house and many of their possessions. The Roberson conviction currently is under appeal.

In the civil matter, Johnson granted a Motion to Dismiss -- also known as a Rule 12(b)(6) motion -- from Balch, finding the Robersons failed to state a claim for which relief can be granted. Johnson's reasoning, however, is flawed, and her order should be overturned on appeal. A Notice of Appeal already has been filed with the Alabama Supreme Court. (Johnson has yet to rule on a similar motion from Drummond.)

Alabama law on determining whether a Motion to Dismiss should be granted is straightforward and well settled, so it's hard to see how Johnson got it wrong. But a case styled Ex parte Austal USA (2017) shows that she did get it wrong.

In Austal, several employees were injured while using a "Miller saw," and they alleged that Austal intentionally injured them, asserting a claim for fraud and stating, "Austal “intentionally made false statements regarding the safety of the Miller Saw” and that those statements were made “with the conscious and deliberate intent to injure its workmen, including plaintiffs, with the Miller Saw so that it could build its ships without having to incur the costs associated with finding a safer alternative method to perform the work. . . .” Austal fraudulently “suppressed, concealed, hid or withheld important facts from the Plaintiffs regarding the known safety hazards associated with the Miller Saw ․ and that Austal knew the tool was unsafe and had made the conscious and deliberate decision to intentionally injure its workmen with the tool so that it could build its ships without having to incur the costs associated with finding a safer alternative method to perform the work.”

Austal labeled the allegations "conclusory" and claimed the injuries were accidental, the kind for which the company was immune from tort liability. The trial court denied Austal's Motion to Dismiss, and the Alabma Supreme Court denied the company's petition for mandamus review. 

The factual allegations in Austal, particularly those involving reliance on false statements, are similar to those in the Roberson case. The Supreme Court's reasoning on denial of a Motion for Dismiss also is instructive for Roberson:

Austal urges this Court to look only to the specific factual allegations pleaded in the plaintiffs' complaint concerning how the injuries occurred and the alleged business motivations Austal had for requiring the plaintiffs to work with a dangerous tool. Those allegations, Austal contends, describe precisely the type of workplace accidental injuries for which it is immune from tort liability. . . . 

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, Ussery v. Terry, 201 So. 3d 544, 546 (Ala. 2016); we do not consider “'whether the pleader will ultimately prevail but whether the pleader may possibly prevail,”' Daniel v. Moye, [Ms. 1140819, November 10, 2016] ___ So. 3d ___, ___ (Ala. 2016) (quoting Newman v. Savas, 878 So. 2d 1147, 1149 (Ala. 2003) (emphasis added)); and “[w]e construe all doubts regarding the sufficiency of the complaint in favor of the plaintiff.” Daniel, ___ So. 3d at ___. Furthermore, a Rule 12(b)(6) dismissal is proper “'only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.”' Knox v. Western World Ins. Co., 893 So. 2d 321, 322 (Ala. 2004) (quoting Nance v. Matthews, 622 So. 2d 297, 299 (Ala. 1993)).

In this case, regardless of our view on the likelihood of the plaintiffs' ultimate ability to establish the truth of the intent-to-injure allegations, or even to survive the summary-judgment stage, we cannot deny that there is at least some possibility that those allegations are true. Accordingly, the plaintiffs are entitled to at least limited discovery on the issue whether their claims are subject to the exclusivity provision of the LHWCA.⁵ Thus, Austal has not shown a clear legal right to a Rule 12(b)(6) dismissal.

By law, the Roberson's allegations, at the moion-to-dismiss stage, must be treated in the same fashion -- that there is at least some possibility that their allegations are true, and they are entitled to discovery in an effort to prove them. So far, that has not happened in Judge Johnson's court.