Napoli Bern Ripka & Associates, LLP Views Cabot Oil’s Use Of DEP Consent Order As Improper
New York, New York - Attorneys of Napoli Bern Ripka & Associates, LLP, representing plaintiffs in Dimock, Pennsylvania who have sued Cabot Oil & Gas Corporation (Fiorentino v. Cabot Oil & Gas Corp., USDC-Middle District of PA., Docket No.: 3:09-CV-02284) for contamination of their drinking water announced today that Cabot and its attorneys have attempted to use a consent order entered with the Pennsylvania Department of Environmental Protection (DEP) to allegedly mislead their clients into waiving their rights to continue the litigation.
The Dimock plaintiffs have sued Cabot Oil over its use of hydraulic fracturing known as “fracking.” Natural gas drillers use fracking to get gas that is trapped in pores and fissures in the sub-surface rock. The method involves pumping a toxic stew of chemicals and water at very high pressures into the rock to “fracture” it thus allowing the gas to escape up into the well. Fracking causes groundwater contamination from surface releases, leaking well casings and the chemicals working their way up to potable water supplies.
The DEP determined that Cabot had failed to complete its obligations under an earlier consent order by failing, among other things, to “permanently restore and replace water supplies” and also failing to “completely eliminate the unpermitted discharge of natural gas into the waters of the Commonwealth” from its gas wells in the Dimock/Carter Road areas. As a result, the DEP entered a consent order with Cabot on December 15, 2010. The Order requires Cabot to do a number of things, including paying the greater of $50,000 or two times the assessed value of the [affected] property into nineteen escrow funds to “pay for or restore and/or replace the water supplies or to provide for ongoing operating or maintenance expense.” This money was to be paid without any obligation on the part of the property owner, a number of whom have been involved in civil litigation against Cabot in the United States District Court for the Middle District of Pennsylvania (December 15, 2010 Consent Order and Settlement Agreement).
Instead of simply notifying the attorneys for these plaintiffs, Cabot’s agent reportedly telephoned a number of the plaintiffs directly on December 17, 2010. Cabot’s attorneys opined in a December 20, 2010 letter to the Napoli office that the agent’s calls were not a violation of Rule 4.2 of the Pennsylvania Disciplinary Code for Attorneys, which precludes directly contacting an adversary, known to be represented by counsel, because the agent is not himself an attorney.
In addition to advising plaintiffs, all of whom are represented by legal counsel, that Cabot was required to test their water supply under the Consent Order, Cabot also reportedly told those plaintiffs that they would be required to sign releases of all of their claims against Cabot in the litigation to obtain the payment already due them under the Consent Order. Nothing in the Consent Order with DEP requires the plaintiffs to sign such releases and signing the release would have foreclosed the plaintiffs’ ability to continue to seek damages in their civil suit. The damages claimed against Cabot are far higher than the amounts Cabot is required to pay by the DEP consent order.
Said plaintiffs’ attorney Marc Jay Bern states “Cabot’s attorneys claim they are not responsible for their client’s unethical and dishonest conduct in calling my clients and misleading them about the need to sign releases to obtain the money due them under the Consent Order. They knew Cabot (their client) was making these calls and they are just as responsible as Cabot and its General Counsel, himself an attorney who is bound by the Disciplinary Code to avoid contact with litigation adversaries who are represented by counsel.” Bern continued, “Cabot’s conduct violates every precept of fairness and honesty toward these people who neither signed on to the Consent Order nor were involved in negotiating its terms.”
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