State of Wisconsin Request for Qualifications 28349- ML Amendment 2 Legal Counsel Services

Request for Qualifications 28349- ML Legal Counsel Services Amendment 2

Please see the questions received in accordance with Section I(c) of the RFQ from firms along with their answers below:

Question Answer Given the complexities associated with the corporate structures of defendants to be named in potential PFAS litigation, in the event related corporate entities are named in the State’s complaint for assurances that the State is able to recover from the party holding the associated liabilities, but one of those entities is later dismissed from the case, would expenses incurred in the course of litigating against the related entity be excluded from reimbursement where the State recovers a settlement or judgment from the defendant ultimately found to carry the liabilities of parent corporation? Said another way, should the State choose to include as defendants all corporate entities associated with manufacturer DuPont, including E.I. du Pont de Nemours and Company, DuPont de Nemours, Inc., Corteva, Inc., and The Chemours Company, alleging that those entities are liable under principles of successor liability because they hold PFAS-related liabilities from predecessor companies as a result of mergers and spin-offs, may counsel receive reimbursement for expenses incurred in the investigation, litigation, and appeal of any of these related defendants if the State is able to recover a settlement or judgment from any one of these related defendants?

The contract will be governed by Wis.

Stat. s. 20.9305. Its application will depend upon the facts of the matter.

Has the Wisconsin Department of Natural Resources (DNR) or Department of Justice (DOJ) prepared a list of PFAS sites for priority consideration or action?

No

Has DNR or DOJ prepared a list of potentially responsible parties that could be used to perform a conflict of interest check described in Appendix A Contract ¶ 4.2?

No

Will the potentially responsible parties include Wisconsin municipalities or counties?

The state has not created a list of potentially responsible parties.

The RFQ describes past and planned actions by DNR to investigate PFAS pollution and take regulatory actions, would the Outside Law Firm be allowed to use time or resources of these or other DNR scientific and technical staff as consulting experts in developing cases or prosecuting claims?

DOJ will work with DNR to identify staff who may be knowledgeable about state actions with respect to PFAS contamination, but we expect that outside experts may be required.

The RFQ describes the Outside Law Firm assisting the attorney general, are there allotted or expected staff hours or resources for PFAS litigation?

If the question is about DOJ's time and/or resource commitment, we have not made that determination at that time.

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Would Appendix A Contract ¶ 3.1 require the Outside Law Firm to pay timesheet hours or salary for state employees assisting with the development of cases or prosecution of claims? If so, would that apply to attorney oversight hours by the DOJ/Attorney General’s Office as well to any assisting DNR scientific staff? (“The LAW FIRM shall advance all litigation costs, expenses, and disbursements, including expert witness fees and costs, deposition costs, and document production. Neither the State nor DOJ shall advance payment for any services rendered or costs, expenses or disbursements incurred.”).

While the state may seek compensation for its costs and fees associated with these matters, the law firm will not be obligated to advance salary costs for current state employees.

Is the exact indemnification clause language in Appendix A Contract ¶ 6 a required feature of this contract? Is there precedent for negotiating a change in this language?

Appendix A contains a proposed Form of Contract. Firms must provide a statement that the Form of Contract, except for those matters to be determined, is acceptable. If there are exceptions or suggested changes to the Form of Contract, those should be noted in this section, and will be discussed during the interview, if the firm is invited to participate in one.

Are the limits to the “aggregate contingency fee” for each action, described at RFQ A-3, calculated and assessed at the conclusion of each individual action? Or would the cap on aggregate fees be calculated based on the sum of all law suits brought under this contract?

The contract will be governed by Wis.

Stat. s. 20.9305. Its application will depend upon the facts of the matter.

Does the fee cap described in Section I.D. (Wis. Stat. s.

20.9305(2)(c)2) of the RFQ apply on a per lawsuit basis? Or does it apply to the total aggregate recovery in the State’s PFAS-related matters, even if the State pursues multiple, separate and distinct lawsuits? For example, if recovery for the State were obtained through one lawsuit against AFFF manufacturers and additional recovery were obtained through a separate and distinct lawsuit over a different contamination site (i.e., unrelated to AFFF contamination), would the cap be applied to the two recoveries separately, or would it be applied to the two recoveries in the aggregate?

The contract will be governed by Wis.

Stat. s. 20.9305. Its application will depend upon the facts of the matter.

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Section I.E. explicitly refers to assisting the attorney general in pursuing nuisance, tort, or other common-law-based claims, but is silent to Wisconsin statutory claims, or claims based on federal law. Would the State consider claims beyond Wisconsin common-law-based claims?

Yes. The state seeks outside counsel to collaborate with the Attorney General in making determinations regarding all aspects of the investigation and litigation, including claims to be brought. However, the scope of services under this RFQ does not include enforcement of the State’s environmental laws including, but not limited to, Wis. Stat. chs. 23-34 and 279- 299 and all rules and orders issued pursuant to those statutes.

Is it acceptable to electronically sign the Attestations to Mandatory Requirements in Section V form, or must the signature be in ink?

The signatures can be electronic.

The RFQ appears to provide that the legal representation is to be state-wide and will encompass claims on behalf of contaminated natural lands (including rivers and streams) as well as contamination of municipal water treatment facilities throughout the state. Page A- 2 talks about 50 contaminated sites across the state and also talks about testing 250 municipal water systems for contamination. What is not clear is if the State believes that all litigation falling under the scope of this agreement constitutes a single “action” or if the state would be willing to allow that this would likely comprise multiple actions. If the state believes that this litigation is a single action, then it is conceivable that the winning bidder will be required to file dozens of lawsuits, each involving unique issues and proofs related to plume identification, delineation and damages, and that the total attorneys fee for all this work will be capped at $30 million (see Wisc. Stat § 20.9305(2)(c)(2)). contamination claims should be separated by plume origin and/or delineation because most of the facts and proofs will be unique (there will likely only be commonality as to the science of PFAS). So, if, for example, a contamination plume originating at an airport affects the municipal water supply for two adjacent towns, that would be one action (even if a separate complaint is filed on behalf of each municipality), but a complaint filed on behalf of a town 100 miles away affected by a plume originating from a different source would be a separate "action."

The state seeks outside counsel to collaborate with the Attorney General in making determinations regarding all aspects of the investigation and litigation, including how to structure any litigation.

Will the responses to the RFQ be protected from disclosure to the extent they contain proprietary, privileged, and/or other confidential information?

To the extent provided by law.

Does the cap on contingency fees in Wis. Stat. s. 20.9305 apply to potential AFFF and non-AFFF PFAS cases in the aggregate, or is the cap applied separately to each potential case?

The contract will be governed by Wis.

Stat. s. 20.9305. Its application will depend upon the facts of the matter.

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If there is a recovery, are all reasonable case costs and expenses approved by the Attorney General’s Office subject to reimbursement or must such costs and expenses also be approved by the court?

The contract will be governed by Wis.

Stat. s. 20.9305. Its application will depend upon the facts of the matter.

Do you anticipate extending the bid due date? Please see Amendment 1.

What additional details are you willing to provide, if any, beyond what is stated in bid documents concerning how you will identify the winning bid?

All details are set forth in the RFQ document.

Was this bid posted to the nationwide free bid notification website at www.mygovwatch.com/free?

No.

Other than your own website, where was this bid posted? Nowhere.