Mr. Stephens appreciates the opportunity to respond to inquiries regarding the types of matters he has handled in the past, and to describe how he and his firm can assist in the management of legal issues faced by potential clients. Stephens & Stephens, LLP never charges for initial consultations or simple requests for information.
Federal CERCLA Cost Recovery Litigation and State Personal Injury and Property Damage Litigation
For over ten years, Hugh Stephens has handled matters related to the remediation of inactive hazardous waste sites. Since approximately 1983, Stephens & Stephens, LLP and its predecessor Raichle, Banning, Weiss & Stephens have handled the liability of General Motors Corporation at inactive hazardous waste sites throughout upstate New York and more recently in New Jersey. Stephens & Stephens also represents potentially responsible party (PRP) groups in cost recovery and contribution litigation. Hugh Stephens has managed issues from the first notice from state and/or federal regulators through post-closure site maintenance and monitoring. His work has focused on cost recovery and contribution litigation, as well as personal injury and property damage defense litigation, on behalf of General Motors Corporation as well as on behalf of PRP groups. This work has involved dozens of multi-party depositions and all manner of document discovery. He has worked closely with his father, R. William Stephens, on these matters.
The Lower Passaic River Study Area (LPRSA),
A Superfund Megasite in Newark, New Jersey
Several years ago, after being recommended by Bill Hengemihle, a Superfund allocation consultant, Hugh Stephens was asked to represent General Motors Corporation at the Lower Passaic River Study Area (LPRSA) Superfund Site, a 17-mile stretch of the Passaic River and operable unit of the Diamond Alkali Superfund Site in Newark, New Jersey. He participated on the steering committee and was involved in negotiations with federal and state trustees on a cooperative Natural Resource Damage Assessment (NRDA) process that gave rise to an agreement with the federal NRD trustees. This agreement was designed to set the stage for an early settlement of the NRD liability arising out of the Study Area. This site generated a Remedial Investigation / Feasibility Study (RI/FS) estimated at more than $50 million. Ultimate liability for the remedy is estimated at over $1 billion even before any Natural Resource Damage (NRD) liability. There are more than 70 parties in the main cooperating parties group (CPG), and 300 parties were named in the third-party contribution litigation in New Jersey state court, begun in 2008 by the main PRP at the site. Hugh Stephens helped negotiate the cooperating parties group agreement, the administrative order on consent with the EPA for the RI/FS, financial assurance requirements, and counseled General Motors Corporation on compliance with financial reporting requirements for environmental remediation liabilities under FAS 5/FIN 14, SOP 96-1, ASTM E-2137, and the Sarbanes-Oxley Act of 2002.
A New York State Court Article 78 Petition
Arising Out of a RCRA Closure Cost Bond
One cost recovery action involved an Article 78 proceeding through which the firm successfully forced the State of New York to relinquish the proceeds of a Resource Conservation and Recovery Act (RCRA) closure cost bond to a PRP group which had expended more than $7 million to close the site. See Frontier Chemical Royal Avenue Phase I PRP Group v. Cahill, Sup. Ct., Albany County, No. 7536-99, Petitioners’ Memorandum of Law and Reply Memorandum of Law; Decision and Judgment.
A Federal Cost Recovery Action
Involving Breaches of Fiduciary Duty and
Chapter 11 Bankruptcy Fraud
Another interesting matter, currently pending, seeks recovery from individual officers and directors of a bankrupt corporation who attempted to hide assets through a complex bankruptcy fraud.
Magistrate Judge Schroeder of the Western District of New York wrote a very favorable Report, Recommendation and Order (RR&O) granting Plaintiff’s motions in large part and denying the most important of Defendants’ motions. After the RR&O was adopted by Chief Judge Arcara, Mr. Stephens completed discovery, taking five depositions in under two months, and was prepared for trial with just under 800 authenticated exhibits that had been culled from more than a thousand boxes of documents, when settlement discussions postponed the trial. Hugh Stephens acts as lead counsel on this matter, handling the depositions and all arguments before the Court.
See Booth Oil Site Administrative Group v. Safety-Kleen Corp., W.D.N.Y., No. 98-CV-0696A(Sr), Plaintiff’s Memorandum of Law in Support of Motion for Summary Judgment; Plaintiff’s Memorandum of Law In Opposition to Defendants’ Motions to Dismiss and/or for Summary Judgment and Other Relief; Plaintiff’s Reply Memoranda to Joseph Chalhoub, Lonsdale Schofield, Ahsen Yelkin and EC Holdings Corp., George T. Booth, III and Katherine Street Properties, Inc., and Booth Oil Company, Inc.
Mr. Stephens has also been involved in a number of interesting litigated matters outside the environmental context.
Federal Court Civil Rights Litigation
He prepared the post-trial reply brief in a discrimination action in federal court that caused the client’s wife to comment that, even though he was not a minority, he truly understood the character of this type of subtle but insidious discrimination. See Franklin v. Frontier Hot Dip Galvanizing, W.D.N.Y., No. 94-CV-75C, Plaintiff’s Response to Defendants’ Proposed Findings of Fact and Conclusions of Law.
Federal Bankruptcy Chapter 11
He was able to have a debt repaid in full without litigation by investigating the Chapter 11 records in a bankruptcy action and discovering that the bankrupt was commingling funds between the bankrupt entity and a related entity that had not sought bankruptcy protection.
State Court Preliminary Injunction / In Rem Seizure of Property
One case involved the misappropriation of the image and weight loss story of a Polish celebrity. A company had appropriated the celebrity’s story and image to sell its weight loss product. Orders for the product were sent to a warehouse in Niagara Falls. Hugh Stephens had the orders and the checks seized in an in rem proceeding. The defendants, whose identity was unknown prior to the seizure, appeared and the case was resolved with a six-figure payment from the defendants and an agreement not to use the celebrity’s image or story.
State Court Zoning Preliminary Injunction
He recently defended a motion for a preliminary injunction in a challenge to the zoning compliance of a house being constructed by a developer. When the plaintiffs did not post the bond necessary to the imposition of the preliminary injunction, the house was completed before the winter weather destroyed it and the matter was settled on favorable terms. See Vacanti v. Courey, Sup. Ct., Erie County, No. 2006-6955, Memorandum of Law in Support of Motion to Dismiss; Memorandum of Law in Support of Cross-Motion and in Further Support of Motion to Dismiss.
He recently assisted Alice Kryzan, a former environmental attorney seeking the congressional seat for the 26th Congressional district formerly held by Thomas M. Reynolds, in an election law matter reminiscent of the Bush v. Gore litigation. The Kryzan campaign sought to place Ms. Kryzan’s name on the Working Families Party’s line in the place of Jonathan Powers, the originally endorsed democrat, whom she had defeated in the democratic primary. Mr. Powers took the steps necessary to have his name withdrawn and the Working Families Party took the steps necessary to place Ms. Kryzan’s name on the line. The matter proceeded quickly through the state trial and appellate courts, including the New York State Court of Appeals. The Working Families Party prevailed in state court and the opposition went immediately to federal court on Friday night at 5:30 p.m., where Chief Judge Arcara ruled against the Working Families Party at 11 p.m. Mr. Stephens was able to perfect the appeal to the Second Circuit Court of Appeals over the weekend and the matter was heard on Monday morning. The Second Circuit affirmed Judge Arcara’s decision, and Alice Kryzan’s name did not appear on the Working Families Party’s line.
State Court Appellate Work
A number of years ago, Mr. Stephens and his father handled a medical malpractice case involving an allegation that an 18 x 18 inch laparotomy pad had been left behind during a hysterectomy operation. A laparotomy pad, complete with a radio opaque strip designed to appear on an x-ray in the event it is left behind during surgery, of the same type and variety used during the surgery, was removed from the client’s bowel. The defendants contended that she had swallowed the large gauze. The trial court refused to instruct the jury on the principle of res ipsa loquitor (the thing speaks for itself) which permits the jury to infer negligence from the circumstances without further direct evidence of what occurred. The appellate division affirmed with two dissents. The Court of Appeals reversed unanimously with a lengthy discussion of the res ipsa loquitor principle in what has become the leading case on the issue. Hugh Stephens prepared the briefs with edits from his father, and his father argued the appeal. Kambat v. St. Francis Hospital, 89 N.Y.2d 489 (1997).
In a labor law case, Hugh Stephens prepared the briefs in the trial court and on appeal. He also argued the appeal before the Appellate Division, Fourth Department, where summary judgment for the Plaintiff was upheld under Labor Law § 240. The case settled favorably soon thereafter. Kanney v. Goodyear Tire and Rubber Co., 245 A.D.2d 1034 (4th Dep’t 1997).
Jury Trials to Verdict
Over the years, Mr. Stephens has tried three cases to verdict before a jury. He won two: a false arrest claim and a fraud claim associated with the abuse of a power of attorney. He lost a slip-and-fall case, but was able to negotiate a modest settlement with the remaining defendants. He has also settled numerous plaintiffs’ personal injury cases arising out of automobile accidents. Two recent cases settled for six figures.
Chairman of the Environmental Law Committee of the
Bar Association of Erie County
As the past Chair and a current member of the Environmental Law Committee of the Bar Association of Erie County, Mr. Stephens has made a number of presentations on CERCLA (the Superfund inactive hazardous waste site law) and Natural Resource Damages (interim damage and restoration costs that are collected by the government from polluters over and above any amounts paid for cleanup). He has also organized and conducted two recent successful environmental law Continuing Legal Education (CLE) seminars.
Parkside Community Association,
Erie County Democratic Committee, and
Other Community Involvement
Mr. Stephens is a former board member of the Parkside Community Association (PCA), a neighborhood booster organization in North Buffalo that organizes home and garden tours and appears in housing court to protect the neighborhood from the impact of irresponsible landlords and homeowners. He has also been a Democratic Committeeman for the last eight years in Zone 12, one of the larger zones in the City of Buffalo, which includes his neighborhood and is adjacent to Delaware Park. The position of Committeeman is an elected, volunteer position that primarily requires that he carry nominating petitions in the zone for individuals endorsed by the Democratic Party and attend certain nominating meetings. He is also an assistant coach of his son’s Buffalo Shamrocks Mite hockey team, a coach of his son and daughter’s soccer team, and plays hockey twice a week during the winter.