Louisiana State University fans who traveled to Tuscaloosa, Alabama, to cheer for their football team were thrilled to see their Tigers hand the University of Alabama's Crimson Tide their first defeat of the season on that sunny Saturday afternoon in Bryant-Denny Stadium, November 12th, 2005 [1].

Among the more than 81,000 fans who filled the arena was LSU graduate, Stanwood Richardson Duval, Jr., Judge of the Federal District Court for the Eastern District of Louisiana, who was present as the guest of another LSU graduate, attorney Calvin Clifford Fayard, Jr. and his family [2].  Both Duval and Fayard were undoubtedly relieved to escape the turmoil of New Orleans, which was experiencing its second Katrina flood — not from water, but from lawsuits being prepared on behalf of the thousands of victims of the Katrina disaster that struck the city only 11 weeks earlier.

The task awaiting Duval in New Orleans seemed daunting, but friendly help was on hand.  Nearly two years earlier, Duval had married his long-time law clerk, Janet Louise Daley [3], and Fayard's daughter, Cathryn Caroline Fayard, who had just graduated that May from the University of Michigan Law School, was also Duval's law clerk, a position she would hold during the critical next year [4].  Fayard and Duval were old personal friends.  The judge had been Fayard's guest [5] at the lavish wedding held on Nantucket Island, Massachusetts, on the occasion of Fayard's marriage (his second) to attorney Frances East Gray on September 13th, 2003 [6].  Both Janet Daley (Mrs. Duval) and Caroline Fayard would personally see to it that the judge would receive the advice he needed for the complex job ahead.

Lawsuits were pouring in.  Among the first was Civil Action No. 05-4181, filed on September 19, 2005 on behalf of Maureen O'Dwyer et al., who had lost everything when her home in Lakeview was submerged for weeks in the floodwater that issued from the 17th Street Canal after the protective levee was breached [7].  The lawsuit had been scrawled by hand on plain paper at a time when the city was still without power and under order from Mayor Ray Nagin to evacuate, and it was filed in Baton Rouge, where the Federal District Court for the Eastern District of Louisiana was temporarily seated.  The case was assigned to Judge Duval, and it was the first of a plethora of Katrina lawsuits that were assigned or transferred to Judge Duval's Court.

The next in order was Civil Action No. 05-4182, filed on September 19, 2005 on behalf of Colleen Berthelot, et al., who was similarly affected when the levee along side the 17th Street Canal was breached [8].  That case was assigned to Judge G. Thomas Porteous, Jr. but was later transferred to Judge Duval's Court when Judge Porteous came under investigation for the prior misconduct for which he ultimately would be impeached [9].  Judge Duval subsequently consolidated all Katrina related cases under Master Case No. 05-4182, bypassing for "lead status" the lower-numbered Case No. 05-4181 of Maureen O'Dwyer et al.

Days earlier, on September 15, 2005, Fayard, together with attorneys Joseph M. Bruno and Joseph McKernan, had already filed a class action lawsuit, Chehardy v. Wooley, in the 19th Judicial District (State) Court.  That case was later subdivided and transferred, first to Federal District Court for the Middle District of Louisiana, Baton Rouge Division, and then to Federal District Court for the Eastern District of Louisiana, New Orleans Division, where it was incorporated as Civil Action Nos. 06-1672, 06-1673 and 06-1674 into the Katrina Canal Breaches Consolidated Litigation assigned to Judge Duval [10].  That excursion to Tuscaloosa on November 12, 2005 had been an opportune time for Judge Duval, his two law clerks, and his close personal friend of long standing, Calvin Fayard, to plan ex-parte the management of these and other cases that were flooding into the court.

According to the Insurance Journal [10], Chehardy v. Wooley, "prior to being transferred from the United States District Court for the Middle District of Louisiana, this amended class action was filed in response to Judge Duval's stated intent to consolidate pending homeowners' suits [in his court]."  Moreover, when he stated on his 2007 Financial Disclosure Form that: "Calvin Fayard is a friend and an attorney, but Mr. Fayard did not have any cases before me at the time of this [Tuscaloosa] trip on November 12, 2005," Judge Duval was being evasive and not forthcoming, because at the time of that 2007 disclosure, Fayard had actually been representing many clients in Duval's court.

More than a year would pass before the difficult task of organizing and managing the Katrina related lawsuits was resolved by classifying them into one of six major subject categories and creating Permanent Master Committees (PMC) and various Subgroup Litigation Committees [10].  Attorneys Joseph M. Bruno and Ralph Hubbard of the PMC were designated Plaintiffs' Liaison Counsel and Defendants' Liaison Counsel, respectively, while each of the Subgroup Litigation Committees was further subdivided according to major subject categories.  Fayard, a member of the Plaintiffs' Subgroup Litigation Committee for Insurance cases, was appointed as its Insurance Liaison Counsel [10].

The magnitude and complexity of the Katrina Canal Breaches Consolidated Litigation, and the controversies it has generated, is evidenced by the sheer number of documents filed in the Court, which by 2010 was approaching 20,000, exclusive of exhibits and other supporting materials [11].  With perhaps $200 billion in eventual payouts at stake, the inevitable behind-the-scenes deal-making and back-stabbing should provide ample "meat" for generations of attorneys, judges, journalists, academics, playwrights, and ultimately historians.

References/Endnotes

1. 2005 Alabama Crimson Tide Football, http://www.rolltide.com/fls/8000/files/football/2005/teamstat.htm, accessed 01/17/10.

2. Duval, Stanwood R., Financial Disclosure Report for Calendar Year 2007, Administrative Office of the United States Courts, Form AO-10, p. 3.  See also: Bernofsky, C., "Judicial Non-Disclosure as Disclosure," Tulanelink, April, 2010.

3. Nell Nolan, "Fun and Frolic," The Times-Picayune, New Orleans, December 15, 2003, Living, p. 2.

4. Caroline Fayard was a Law Clerk until August 31, 2006 (Personal communication with Judge Duval's Judicial Assistant, 01/20/10).

5. Photographed at The Chanticleer in Nantucket by Kevin P. LeMaire, a paralegal employed by the law firm of Fayard & Honeycutt, and used with permission.  Judge Duval was one of several judges and law clerks from the district and appellate courts of the Federal Fifth Circuit who were among Fayard's guests, which included Duval's wife-to-be, Janet L. Daley.

6. Marriage Annacoument's Times Picayune, http://files.usgwarchives.org/la/orleans/vitals/marriages/paper/tp-f.txt, accessed 01/02/10.  See also: "Fayard/Gray," The Times-Picayune, New Orleans, September 27, 2003, Living, p. 3.

7. Maureen O'Dwyer, et al. v. The United States of America, et al., Civil Action No. 05-4181, [PDF] filed September 19, 2005, by Ashton R. O'Dwyer, Jr. and Joseph W. P. Hecker in United States District Court for the Eastern District of Louisiana, New Orleans Division.

8. Colleen Berthelot, et al. v. Boh Brothers Construction Co., LLC, et al., Civil Action No. 05-4182, [PDF] filed September 19, 2005 by Daniel E. Becnel, Jr. in United States District Court for the Eastern District of Louisiana, New Orleans Division.

9. Bruce Alpert, "House votes to impeach Porteous; Senate trial could oust federal judge," The Times-Picayune, New Orleans, Friday, March 12, 2010, National, p. A1.

10. "Case Management and Scheduling Order No. 4" [PDF], Katrina Canal Breaches Consolidated Litigation, Document 3299, March 1, 2007.  See also: "Class Action Suit Filed in New Orleans Against 15 Homeowners Insurers," Insurance Journal, Texas/South Central, June 1, 2006.

11. "Current Developments," Katrina Canal Breaches Consolidated Litigation, U.S. District Court for the Eastern District of Louisiana, http://www.laed.uscourts.gov/CanalCases/CanalCases.htm, accessed 01/26/10.