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25 janvier, 2008 16:51

Attila Berry and Joe Palazzolo

Legal Times

01-25-2008

Blackwater Security filed a $30 million malpractice suit against Wiley Rein on Wednesday, alleging that the firm made costly missteps in a wrongful death case brought on behalf of four former Blackwater employees who were killed in Iraq in 2004.

The complaint, filed in D.C. Superior Court, claims lawyers at Wiley Rein filed sloppy pleadings that ultimately barred Blackwater from shifting the case from a state court in North Carolina to federal district court, where the security firm could have mounted a stronger defense.

After losing its bid to have the case transferred in October 2005, Blackwater discarded its high-wattage Wiley Rein team, which included Fred Fielding, now White House counsel; Barbara Van Gelder, now an attorney with Morgan, Lewis & Bockius; Scott McCaleb, who is a partner with Wiley Rein; and Margaret Ryan, who is now a judge for the U.S. Court of Appeals for the Armed Forces.

Ryan, a former judge advocate general who was confirmed to the bench December 2006, is named separately from Wiley Rein in the malpractice suit. The complaint says that she led the team.

"This is the first we've heard about this, and we're investigating the allegations," says Dale Hausman, a partner at Wiley Rein and one of the firm's ethics counsel. "We don't really have anything beyond that at this point." Ryan and Fielding did not return calls seeking comment.

The wrongful death suit was filed in Wake County Superior Court by families of Stephen Helvenston, Mike Teague, Jerko Zovko and Wesley Batalona -- the four Blackwater guards whose brutal killings in Fallujah in 2004 were captured on video and broadcast around the world. The men were beaten, burned and decapitated. Images of their bodies hanging from a bridge over the Euphrates River provoked outrage in the United States.

Blackwater had sought to have the case removed to the U.S. District Court for the Eastern District of North Carolina. In August 2005, however, the federal court remanded the case to the state court for lack of jurisdiction. Blackwater then appealed to the 4th U.S. Circuit Court of Appeals, which also refused to grant the case federal jurisdiction. By that point, Blackwater had turned the case over to Greenberg Traurig. Wiley Rein then filed papers withdrawing from the case.

Blackwater in the wrongful death case has since petitioned the federal court for an order directing the parties into arbitration, arguing that the slain guards' contracts demand it.

Blackwater, which is under investigation by the Justice Department for its involvement in a September shooting that left at least 17 Iraqis dead, contends that its contracted employees are de facto federal officers under the law.

Blackwater's lawyer in the suit against Wiley, Barry Nace, of D.C.'s Paulson & Nace, says in the complaint that Ryan and her team, in their request to have the case transferred, failed to cite a statute that gives federal jurisdiction to claims involving federal officers. The complaint -- filed on behalf of Blackwater Security and Blackwater Lodge and Training Center -- two subsidiaries of Blackwater Worldwide also alleges that Wiley lawyers ignored the 2005 Supreme Court decision in Grable & Sons Metal Products Inc. v. Darue Engineering & Manufacturing, which held that federal courts have jurisdiction over state-law claims that "implicate significant federal issues." Nace did not return calls for comment.

"Had [Wiley Rein] adhered to these duties, the Nordham lawsuit would have been dismissed and the litigation involving plaintiffs would have ended," Nace wrote.