An Excess of Zeal: Lessons for Defense Lawyers from the W.R. Grace Trial

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On May 8, 2009, W.R. Grace & Co. and three of the chemical company's former executives were acquitted of all charges in the largest, most agressive environmental prosecution ever mounted by the U.S. Department of Justice and the Environmental Protection Agency. The two-and-a-half month trial capped a massive five-year effort to obtain "justice" for the town of Libby, Montana. According to the government, a rogue company intent on putting profits ahead of safety had for decades knowingly exposed the townspeople of Libby to asbestos from a vermiculite mining operation dating back to the 1920s. Grace and its executives had allegedly kept the dangers of "Libby asbestos" esposure a secret from everyone, including the government, for 30 years. The result, according to the Justice Department, was several hundred deaths and thousands of illnesses.

Prosecuting Grace and its executives was supposedly one more way to make amends for an apparent tragedy at Libby, even after years of civil litigation and tens of thousands of individual lawsuits against the company, and hundreds of millions of dollars paid in settlements with the EPA. But the problem -- as the defendants argued at trial -- was that there was no secret at all.

This article appeared in "Litigation 2009," a supplement to The American Lawyer & Corporate Counsel, and was co-authored with David S. Krakoff and Gary A. Winters.

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