Of Lawyers, Guns and Money: KBR in Iraq

As Veterans Day came and went, we got to thinking about the ways in which armed conflict has produced?directly and indirectly?work for lawyers. There is, of course, the legal DMZ that is Guantánamo ? though not for much longer, if president-elect Obama follows through on one of his campaign vows. BigLaw?s pro bono work on behalf of Boumediene and bunkmates has been well documented in the mainstream and legal media, and last month?s ultimatum by a federal judge to immediately try a Gitmo prisoner in a D.C. court put Dubya on the spot for a hot moment until his legal team managed to secure a stay (an appeals hearing is slated for next week).

Meanwhile, former Halliburton subsidiary KBR, which has maintained a over military services contracts in Iraq since the 2003 invasion, has spawned a rash of lawsuits that are spectacular in their diversity: In the past few years alone, suits against KBR have carried allegations of homicidal negligence, breach of contract, human trafficking, fraud, gang rape and electrocution.

Most of the high-profile suits name both KBR and Halliburton (the former spun off from the latter in April 2007) as defendants?and when Halliburton?s involved, you can count on finding longtime counsel Vinson & Elkins at its heel. Many such claims invoke the False Claims Act?s qui tam provisions, which allow civilians to sue perceived war profiteers on behalf of the taxpaying public; the catch, however, is that such suits trigger strict confidentiality clauses?meaning the total number and nature of these cases remains unknown. The stated purpose of such blackouts is partially to allow the Department of Justice time to review the suits and weigh the possibility of signing on as a co-plaintiff. The man heading the department until last year? Former V&E partner Alberto Gonzales. Not surprisingly, the DOJ?s participation in such cases has been negligible; indeed, scrutiny within the Beltway has come largely from congressional Democrats?namely Rep. Henry Waxman, who has consistently targeted military contractors over the past half-decade for such alleged crimes as overbilling and procuring illegal kickbacks.

Private-sector lawyers, on the other hand, are lining up for a piece of the KBR action, where the known players are many (though the legal parameters remain hazy at best): In the case of alleged gang-rape victim (and former KBR employee) Jamie Leigh Jones, V&E employment litigation co-chair W. Carl Jordan leads a team facing off against The Kelly Law Firm, a 16-lawyer Houston plaintiffs? boutique. D.C.-based class action powerhouse Cohen Milstein Sellers & Toll, meanwhile, filed suit against KBR in August for alleged human trafficking. According to the plaintiffs, KBR?via a Jordanian subcontractor?recruited 13 Nepali men under the pretense that there were hotel and restaurant jobs awaiting them in Amman; when they arrived in Jordan, the workers were stripped of their passports and driven to Iraq?reputedly destined for a military facility?where insurgents promptly stopped their convoy and killed all but one of them.

McKenna Long & Aldridge figures prominently in at least two other ongoing matters: In the first, partner David Kasanow is defending Halliburton against a suit filed by 19 former KBR truckers and family members over the company?s deadly 2004 deployment of a convoy into territory the company allegedly knew to be hostile; Houston boutique firm founders T. Scott Allen, Tobias Cole and Tommy Fibich are among the lawyers representing the truckers and their surviving relatives. McKenna also represents KBR in a lawsuit filed by the family of Staff Sgt. Ryan D. Maseth, a Green Beret who became the 18th American electrocuted in Iraq since the invasion when he died while showering in a Baghdad barracks maintained by KBR; an eight-lawyer Pittsburgh firm founded by former Reed Smith attorneys represents Maseth?s family. While it?s unclear if the Pentagon?s October finding that KBR was guilty of ?serious contractual noncompliance? will impact the pending Maseth case, it?s expected that it will curb KBR?s ability to add to the $24 billion it?s collected in Iraq contracts thus far.

The Pentagon?s rebuke came at an opportune time for one Alan Grayson, a former Fried Frank government contracts lawyer who?s risen to prominence in the new millennium through his relentless pursuit of contractor fraud. A foremost KBR persecutor in recent times, Grayson rode his newfound celebrity and a wave of anti-establishment sentiment all the way to a new job title: Congressman.

-posted by ben fuchs