Caperton Saga Leaves 15-Year Imprint on Reed Smith Duo

, The Legal Intelligencer

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First Published May 6, 2013

It's the kind of case that has an attorney up at 3 a.m. pondering the next play or just the seeming injustice of it all. And for two Reed Smith attorneys, the case has been going on for upward of 15 years.

The book has already been written on Bruce Stanley and David Fawcett III's crusade on behalf of client Hugh Caperton — in fact, it comes out Tuesday. But the case in some ways was just brought back to the beginning with a Virginia Supreme Court ruling that breathed new life into Caperton's case against Massey Energy and set the stage for yet another trial in West Virginia.

Most attorneys would consider a win at the U.S. Supreme Court a case — if not career — highlight. Fawcett and Stanley were part of a team of attorneys who in 2009 won Caperton v. A.T. Massey Coal, which found the $3 million Massey Energy executive Don Blankenship spent on electing a judge to the West Virginia Supreme Court was grounds for that judge's recusal in the appeal between Caperton and Massey.

But for the Reed Smith duo, the win was just another stepping stone to getting Caperton justice for what they have argued was Blankenship and Massey's concerted effort to drive Caperton out of the coal business and into bankruptcy.

Blankenship and his companies have denied the allegations against them, arguing they appropriately initiated a force majeure provision when looking to end the coal purchasing contract Blankenship's company had with Caperton's company.

"The only way [for Fawcett and Stanley] to relax is if Caperton wins his verdict in court," according to Laurence Leamer, the author of The Price of Justice, which chronicles the Massey-Caperton saga from the perspective of Caperton, Fawcett and Stanley.

Fawcett, tall and thin and sharply dressed, is a Pittsburgh-born and raised attorney who started with this case in 1998 while at Buchanan Ingersoll & Rooney. Stanley, who wears his heart on his sleeve instead of expensive cufflinks, is a West Virginian who as part of his experience since joining the case in 2000 has seen the best and worst of his state's culture and judicial system. The two men share a core set of values and a 15-year journey, but their differences are many.

When Stanley talks about Caperton, the story begins to flow quickly. His passion and frustration are readily apparent.

Even after the Virginia Supreme Court ruled last month that Fawcett and Stanley were right in arguing a prior verdict on a separate dispute between Caperton and Blankenship didn't bar under res judicata principles a second trial on separate claims, Stanley couldn't help but express frustration at the tortured path it took to get that ruling.

"You can guess the sense of vindication you feel when the law you've been preaching for the last 10 years, the Virginia court said 'yes that's right,'" Stanley said. But he noted all the time and energy lost to prove that fact was "disheartening."

Fawcett had a similar take.

"I think it means that we continue to have a chance of achieving justice which was the goal from the start," Fawcett said of the Virginia ruling. "That's a great thing. Of course there's frustration that things got off track, but it's a lot better than the alternative."

The Toll of Justice

As Stanley and Fawcett gear up for another trial, which they are hoping for by year's end, Reed Smith hasn't batted a proverbial eye.

Both Buchanan Ingersoll, which had the case until Fawcett was forced to take it to Reed Smith when a conflict arose in 2010, and Reed Smith have invested significant amounts of time and money on the contingency-fee case without being paid a dime.

Both firms will only be reimbursed if a verdict comes down in Caperton's favor.

When the Virginia court ruling came down, Leamer wrote that Reed Smith had spent more than $6 million on the case. Stanley said he wasn't sure whether it was that high, though he said it would definitely be over $4 million.

"I quit having [anyone] print off bill sets a long time ago," Stanley said.

Both Stanley and Fawcett said that, at least as far as they were aware, no one at Reed Smith or Buchanan Ingersoll had complained of the firms' investment into these cases.

"Both firms were run by people who really consistently said 'hey, we have an injustice here,'" Fawcett said. "I needed that. I needed good backing. Both firms are in the business of making money. When it came down to it and they saw what was going on in West Virginia, both [firms] had leaders that were going to fight this."

The true cost of the cases on Stanley and Fawcett professionally and personally is hard to calculate.

Stanley said a lot of unpaid attorney time went into the case under his name and that carries a risk. But as a result of Caperton's suits, there were other cases the attorneys got against Massey and Blankenship that did result in fees earned.

"Chasing Don has not always been bad for our bottom line," Stanley said.

The other positive for Reed Smith is that it shows the firm's clients the firm doesn't ever leave a client behind, Stanley said.

On the personal side, Stanley's wife and two kids went through the ups and downs of these cases with him.

"Sometimes you hate the things you put your family through," Stanley said. "I know there's times I've sacrificed family time and time with my kids. I [was at my] wit's end and not the friendliest. So I don't know what the true cost of these cases is. I don't know. I just don't know."

But at the end of the day, even his daughters have learned valuable lessons from Stanley's work on the case. "Stick to it. Play hard, but fair," he said.

Leamer recounts in his book the toll the case took on Fawcett's family life. Fawcett didn't mention much of that other than to say his son was 1 when the case began and is now 15.

"I look at it all from a positive standpoint first. The fact that we still have a chance of obtaining justice. Beyond that I think of the whole time as a time where I was able to work with lots and lots of really great lawyers and paralegals too," he said.

When he took on this case, Fawcett admits he thought he could handle anything by himself. TheCaperton matters quickly taught him the value of help and reinforcements.

The matter has had both positive and negative effects on his practice. Fawcett chalks it up to the normal course of practicing law, with some cases moving quickly and others taking a lot longer.

While Fawcett is careful to formulate just the right words before speaking, before he could even hear the whole question of whether he would take on this case again, his answer: "Oh hell yes."

"In certain ways I probably could have made more money focusing on other things, but the chance to work on something like this, that's gold. That's what you live for as a lawyer," he said.

On this question, Stanley became the more cautious of the pair. "I want to say yes," he said. He said he doesn't think there is scar tissue from the case, but admitted it was tiring. But after a bit of a breather and a win from the Virginia Supreme Court, the team is excited and anxious again to get back into court.

Stanley said the Massey team may have been hoping over the years that time would kill their drive and the case.

"That's one of the things we're most proud of," Stanley said. "Time hasn't gotten rid of us yet."

The Price of Justice comes out Tuesday. Reed Smith is holding a reception and discussion with Leamer next week in its Pittsburgh office.

Gina Passarella can be contacted at 215-557-2494 or at gpassarella@alm.com. Follow her on Twitter @GPassarellaTLI.

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