Damages Phase Begins
On December 17, 2019, the United States Court of Federal Claims issued a historic ruling finding the government liable under the 5th Amendment for intentionally flooding Upstream homes and businesses during and after Harvey. The liability phase of this case took 2 years, during which we reviewed of over 1.5 million pages of documents, took over 40 depositions, and served as a lead lawyer in the 2 week trial. According to the Department of Justice, this is the largest inverse condemnation case ever won against the government.
The next step is the damages phase, during which the Court will decide how much the gov-ernment owes in money damages. As with the liability case, the damages phase involves court-selected bellwether test properties. On January 30th, Judge Lettow picked the following 6 test properties for the damages phase:
Four of the test properties are individual property-owners in the subdivisions behind Addicks and Barker. There is 1 business bellwether property, as well as 1 renter. Determining damages for the test properties will enable us to determine damages for the thousands of Upstream homes and business that the government flooded. We’ll be seeking all available damages, including diminished property values, property damage, displacement costs, etc.
During the January 30th hearing we also discussed the scheduling. According to Judge Lettow, the damages phase will begin on February 17th and conclude with a 1 week trial in November 2020. Overall, the damages phase should take approximately 9 months.
We understand that time is of the essence in pushing this case forward, and we will continue to lead the charge when we start the damages phase next week. We expect to have more information by the end of February, and will keep you posted.
Setting the Record Straight on the Settlement Rumors
The Court appointed me to not only handle discovery and trial, but also to protect the rights of individual plaintiffs. Part of that job involves spearheading settlement discussions with the government. As a result, I’d be the first person to know if the government had settled with any of the Upstream plaintiffs.
I say this because we’ve had several existing clients and potential clients tell us they’d heard some Upstream plaintiffs already received a settlement payment. For the avoidance of any doubt, there have been no Upstream settlements. Anyone who tells you otherwise is either misinformed, or isn’t telling you the truth.
Quick Word About Lawyer Marketing
As we’ve seen in many other cases, once we win the liability trial dozens of copy-cat lawyers mobilize to try and profit off of our clients’ hard-earned victory. Several law firms recently began marketing for Upstream clients. Remarkably, some of these firms previously said they wouldn’t help Upstream plaintiffs because they thought this case couldn’t be won.
We’ve also heard that some of the lawyers aren’t asking the potential client if they’ve already hired a lawyer and aren’t disclosing that signing contingency agreements with two different law firms may result in the client having to pay both firms’ contingency fees.
That isn’t how we operate. We ask potential clients if they’ve hired another lawyer to handle their 5th Amendment claim before we accept the engagement. This simple step protects clients from having to pay two fees.
We hope these lawyers aren’t spreading fake settlement rumors to dupe people into signing contingency agreements. If you become aware of a lawyer telling people there have already been Upstream settlements, please do not hesitate to call the State Bar of Texas at (800) 932- 1900. The State Bar of Texas investigates professional misconduct committed by Texas attorneys, including improper marketing and client solicitation.
There is Still Time to File New Claims
We’re genuinely honored that over 1,200 Upstream families and business have hired us to prosecute their 5th Amendment case, and feel strongly about holding the government accountable for its decision to sacrifice Upstream properties to save the City of Houston. After all:
That being said, based on our internal research and investigation fewer than 25% of eligible Upstream families and businesses have filed a claim. There are many reasons why people haven’t filed their 5th Amendment claim. Some decided to see if we could win before proceeding. Others believe they were disqualified on account of having flood insurance, FEMA aid, or a loan from the SBA. As I learned during a recent town hall meeting, some believed the government would voluntarily send them a check.
However, the biggest single reason appears to be that most of the people who live Upstream of Addicks and Barker don’t know that they’re living in the Corps’ reservoir pool, and have no idea that the Court already found the government liable. Indeed, Judge Lettow’s December 17th Order states that “plaintiffs did not know their properties were located within the reservoirs and subject to attendant government-induced flooding.”
The good news is it isn’t too late to file a claim. We’re still accepting eligible clients on our standard 25% contingency agreement. It doesn’t matter if you had flood insurance, received FEMA aid, or have an SBA loan. However, people have to file a claim to receive an award. In other words, people who do nothing will get nothing. After the 6 year statute of limitation expires it will be too late.
The government is counting on thousands of eligible claimants getting nothing because they did nothing. Please help us educate the Upstream community about their rights to Just Compensation under the 5th Amendment by directing them to www.myreservoirclaim.com.
Armi Easterby, Partner
WILLIAMS HART BOUNDAS EASTERBY, LLP
Appointed as Upstream Co-Lead Counsel for Individual Plaintiffs