As the battles over wind turbines in Massachusetts rage on, a Boston-based lawsuit that involved gas turbines in Connecticut and $1.5 billion in claims appears to be nearing an end in Suffolk Superior Court. And Boston lawyer Barry Y. Weiner couldn't be happier with the outcome.
Judge Allan van Gestel has set a July 7 date for the processing and disposition of a defense counterclaim for $5 million and a claim for counsel fees and costs, the latter expected to be "over $10 million," according to Weiner, who represented the defendants in the original case.
The failure of the parties to develop a privately held merchant power plant, generating power using giant gas turbines, in Meriden, Conn., was at the heart of this big-bucks case, which Weiner calculates consumed "about four years of discovery, involving over 50 depositions in the United States and worldwide, and the production of millions of documents."
Massachusetts-based Power Development Co. and El Paso Merchant Energy Gas Co. of Houston, the plaintiffs, had already developed two merchant power plants — in Agawam and in Milford, Conn. When the Meriden plant was not developed, PDC and El Paso claimed that Alstom Power - represented by Weiner and the firm of Ruberto, Israel & Weiner — and Black & Veatch Co. had breached their agreement, made misrepresentations and committed unfair and deceptive acts. Alstom and B&V were to engineer, procure materials and equipment and construct the plant; PDC and El Paso were to develop, own and operate the plant.
With the Meriden plant plan out of gas, "PDC said they lost the income stream over the 20-year life of the equipment — or about $500 million," an amount the company sought to treble, Weiner says.
The dispute landed in the Business Litigation Session overseen by van Gestel, who, in June 2004, entered final judgment granting the defendants' motions for summary judgment "as to all the counts, dismissing the plaintiffs' claims in total," Weiner says.
The judge also stayed the defendants' counterclaim for approximately $5 million, pending the disposition of any appeal that the plaintiffs might file from the granting of summary judgment.
"The other side put up a good, tough fight, as I expected they would," Weiner says. On the other side was Boston attorney Amos Hugh Scott of Choate, Hall & Stewart, who did not return Lawyers Weekly's call before press time.
Asked what turned the wind in his favor, Weiner cites a three-page letter agreement binding Alstom and B&V to construct the plant that, "from our perspective, was not consistent with the complexity and enormity of such a project."
Nor did that abbreviated agreement contain "all the essential material terms" of an EPC (engineer, procure the materials and construct) contract, he continues, concluding that "that was the best evidence."
July 3, 2006
