Photo provided by the firm.
Plaintiffs’ lawyers who earn a spot on our annual Lawdragon 500 can typically point to a long track record of massive verdicts and settlements, and Allan Kanner is no different. The founding partner of Kanner & Whiteley in New Orleans has racked up major recoveries in the decades since starting the firm in 1981, developing a national reputation in toxic tort, natural resources, and environmental cases. Among his standout efforts, the Harvard Law grad netted $10 billion in settlements for the State of Louisiana in the BP Deepwater Horizon litigation – the largest-ever payout for natural resource damage claims.
Lawdragon: How did you first become interested in being a plaintiffs’ lawyer?
Allan Kanner: I didn’t know much about law growing up. I was aware that you could make a career representing plaintiffs in civil rights cases or be a people’s lawyer like Louis Braude is, but not much else in the way of changing the world for the better. Three Mile Island and the hazardous waste disposal scandals of the early 1980s, leading up to the passage of Superfund, made me realize that there was a tremendous societal need for lawyers with the skill set to represent the people whose health, property, and environment were being harmed.
LD: What do you like about it?
AK: The work is intellectually challenging, often involving cutting-edge legal and scientific issues, against some great lawyers and experts on both sides. What keeps me at the job is the feeling that you have made a difference for people and the environment. The BP Deepwater Horizon litigation, where I was lead counsel for the State of Louisiana, is a good example of this. In the end, working with other states and the federal government, we recovered nearly $10 billion for Louisiana for coastal restoration. Today, you can see new barrier islands and dredging projects because of that settlement. How often do you see the results of your work on Google Earth? Also, it’s the largest recovery for a single client against a single defendant ever, so that’s kind of neat.
LD: Are you seeing any trends in your practice?
AK: I see many more in-house counsel interested in using our services, especially as the number of good and experienced trial lawyers in America continues to shrink. If by trends, you mean what’s hot on the plaintiffs’ side, it’s hard to say, but there is a tremendous transformation occurring in the mass tort field driven by irresponsible corporate conduct, but also by advertising, litigation financing, and the decline of class certification.
LD: Can you discuss a recent case you’ve handled?
AK: New Jersey’s natural resource damages (“NRD”) trial against Exxon lasted about eight months. Ted Wells of Paul Weiss did a great job representing ExxonMobil. It was an amazing experience. It was one of the first major NRD trials arising from chronic pollution so there really was no roadmap. Most NRD cases that have proceeded to or close to trial have resulted from acute disasters like BP Deepwater Horizon and Exxon Valdez and proceed under federal statutes as opposed to state authority. We had to deal with historic data about ecosystems and 100 years of refinery waste disposal practices to assess the injury. Restoration and remedy selection were complicated by many things, including adjacent industrial operations.
For over eight months Exxon threw an army of Paul Weiss and Archer Greiner lawyers at our much smaller team, which included Rick Engel of the N.J. Division of Law. It was a very David and Goliath experience. Exxon’s three primary experts each charged over $2 million for their work. We relied principally on the work and testimony of state DEP employees, including John Sacco, Chief of the Office of Natural Resource Restoration, and Mark Walters, NJDEP’s Case Manager for the ExxonMobil Sites. When you’re David you have to be strategic and efficient. The New Jersey Supreme Court recalled and assigned the trial to Judge Michael Hogan, who did a great job steering the case of first impression to a successful conclusion. We settled for $225 million after trial but before any post-trial ruling.
LD: What drew you to law school and a career in the law? And why Harvard over other schools?
AK: I really stumbled into law school on my way to a career teaching philosophy. While clerking for the late Robert S. Vance, then of the 5th U.S. Circuit Court of Appeals, I decided to move off of the teaching path. He was a tremendous influence on my career. Judge Vance taught me a great deal about legal strategy. When a case came to us on appeal, he would dissect the strategic choices available to counsel at each phase of the case and why certain choices dictated the result before us. He was very clear that in many cases, a different strategy would have produced a different, winning result. The ratio of doctrine to strategy taught in law school is weighed too heavily in favor of doctrine. It was a great wake-up call and it made me decide I would enjoy the challenges of practicing. It was all the more exciting initially because I jumped into the nascent toxic torts field. Interestingly, I did end up teaching courses on legal strategy with Don Elliot at Yale, Francis McGovern at Duke, and several years at Tulane Law School so I guess I went full circle.
I ended up at Harvard Law because I was studying Philosophy at Harvard grad school. My area of interest was normative theory, so I had some exposure to law professors who shared my interest; Professor Lewis Sargentich especially, but also Professors Roberto Unger, Charles Fried, Laurence Tribe, and Henry Steiner. They made me think law school could be fun and it was for me.
I worked as a research assistant to both Professors Tribe and Sargentich. They taught me how law can be applied theory, a valuable lesson for someone who ended up doing novel cases in a wide range of emerging fields of law. Professor Alan Dershowitz and Professor Irving Younger (visiting) taught me that you could have fun telling a story in court, and that you better tell a good story if you wanted to win.
LD: Do you have any advice for current law students?
AK: Law school was great socially. I was surrounded by interesting and amazing people. My advice to current law students is to enjoy your time. Take the classes that interest you as opposed to what’s expected of you. Find your passion. Be both intensely self-critical and boldly innovative in your work. The law rarely remains static. Don’t let the Socratic method make you doubt your abilities or rob you of your personal morality and imagination.
LD: What brought you to New Orleans after graduating from Harvard Law?
AK: I originally came to New Orleans during my clerkship on the 5th Circuit. Wow! What an amazing place. However, the action at that time in environmental and toxic tort litigation seemed to be up North. I went back up North to work on my Three Mile Island and other early toxic tort cases. Sure enough, I got pulled back to the South to do some “Cancer Alley” and environmental justice litigation around Baton Rouge. Tulane then asked me to teach, I opened an office in New Orleans and eventually moved my practice here, though the work remains national.
LD: Why did you start your own firm as opposed to joining another practice?
AK: No one was doing what I wanted to do. Most law firms back then had a focus and it wasn’t on emerging toxic torts.
I got a reputation from my initial work as a good trial and appellate practitioner, and for handling novel cases. Early on, I jumped into a constitutional law class action on behalf of farmers to enjoin federal farm foreclosures and won. I got that opportunity because of the visibility of the Three Mile Island case. Then, while continuing environmental and toxic tort cases, I started doing various class actions for consumers under state consumer fraud laws, and federal antitrust and Civil RICO laws. I brought the only successful case for workers who had lost jobs as a result of corporate raids and bust-up takeovers in the 1980s in the Wickes case, and this led to many other opportunities.
LD: Did you have any important mentors early on?
AK: Judge Vance was my only mentor. I was blessed with the counsel of good and brilliant friends like Marty Greitzer in Philadelphia and James J. Coleman, Sr. in Louisiana. I was also lucky enough to find Conlee Whiteley as my law partner.
LD: Can you share a lawyer you have come up against in court whom you’ve come to admire?
AK: I have had two “bet the company” cases against companies represented by Arvin Maskin of Weil Gotshal in New York City. He’s a master of the big picture, and an incredible adversary. He is as tough and smart as he is gracious; he combines the best of zealous advocacy and civility.
LD: Are there any cases from the course of your career that stand out as favorites or as particularly memorable?
AK: Being a lawyer is a lot like being a parent – you don’t play favorites. I had two great cases in front of the late Judge Jaime Pieras in San Juan federal court. He knew how to let trial lawyers try their cases without giving up control of the courtroom. The first case was for the OCAW [Oil, Chemical and Atomic Workers International] Union and its Elkhart, Indiana, members because American Home Products had fired its Elkhart workers and moved its plant to Puerto Rico, which I alleged was against the law. We ended up in Puerto Rico federal court, which as you can imagine was not our first choice. Judge Pieras played it straight and we achieved a landmark settlement. Congress, especially Sen. Patrick Moynihan, took notice and amended the tax law to disallow companies from shipping jobs out and claiming tax deductions.
The other case was the Volvo Civil RICO class action trial in which we won a $129-million verdict. I remember two things. Before opening, one of the local lawyers insisted that he do the opening because “Puerto Ricans don’t trust lawyers from the mainland.” My whole career is about being the visiting team, and winning, so I wasn’t too happy about that comment. In pretrial preparation I often use focus groups. I asked the guy who was running it to ask some questions at the end about their feelings about lawyers generally and mainland lawyers particularly. When he got to that part the focus group exploded with stories about corrupt and dishonest Puerto Rican lawyers. When he asked how they felt about mainland lawyers, the answers went the other way, the consensus being that we have to act ethically because our bar associations aren’t corrupt. My favorite was when the panel was asked what kind of lawyer they would hire for a big damages case. One guy said, “I’d get a lawyer from the states, especially a Jewish one.” My local counsel was gracious in defeat.
Another memory from that case was that we got hit by a hurricane during trial. My then girlfriend, now my wife, was a news anchor person in New Orleans and did an on-air interview of me sitting in a stairwell during the hurricane – while revising my witness outline because you never know when the trial will resume. Being from Louisiana gave me a leg up on trial during a hurricane.
LD: Do you have any special routines before trial?
AK: Special routines? You need to find the essence of the case and develop a theme or story line. I usually imagine my closing argument the day I accept a case. In the farm foreclosure class action, I asked a North Dakota federal judge if he wondered why his local farmers had a Philadelphia lawyer. He said “yes.” I said I came all this way to North Dakota to see if his hardworking farmers got the same due process rights as my welfare recipients in Philly. Until then government loan programs weren’t viewed as “rights.” However, once you look at their economics it is pretty clear what’s going on. He definitely thought hard working farmers were entitled to respect. He got the point. He certified the class, enjoined all North Dakota farm foreclosures, and then converted it into a national injunction. These foreclosures were the subject of the film Country, with Jessica Lange, who in real life was the daughter of a farmer. Congress then passed a law requiring the Department of Agriculture to promulgate new regulations to protect borrowers. We saved a lot of family farms through that work.
In the Volvo case, Volvo and its local dealer were accused of literally taking Volvo 200 series cars, replacing the 200 emblem with a 700 emblem, and charging customers more. At the time, Volvo was the No. 1 selling car in Puerto Rico. To me, the essence of the case was that “Puerto Rico was a No. 1 customer for Volvo, so why did Volvo give Puerto Rican customers second-class treatment?” As you know, Puerto Ricans serve in the U.S. military, but don’t get to vote for President, in effect, a paradigm of second-class treatment, which I build on. Core values and common experiences of your jurors is an essential part of your theme at trial.
LD: What do you do for fun outside the office?
AK: I like to run. Currently, I do seven miles a day, five days a week. My kids are 17 and 15 and, college departures are right around the corner, so I like to spend time with them. We all like to ski. We also travel together to fun places. Finally, I’m a pilot and I like to fly when I can. I really like old warbirds.
LD: Are there any pro bono or public interest activities you can discuss?
AK: We are prosecuting a landmark global warming case with the awesome lawyers at the Conservation Law Foundation.
As a firm we are very involved in the community. I am a founding Board Member at the Ogden Museum of Southern Art. I previously served on the Board of Directors of a local bank. My partner, Conlee Whiteley, who is a Lawdragon 500 lawyer, also serves on several major non-profit boards and the firm supports a diverse array of local charities.
LD: Do you have a favorite book or movie about the justice system?
AK: I really like John Rawls’ “A Theory of Justice,” maybe because I was lucky enough to study with him, and maybe because I am corny enough to believe lawyers should care about things like justice. I also collect old law books and love to read old opening statements and cross examinations. We do a lot of insurance litigation, and one of my best closings was almost entirely from an Abe Lincoln closing argument. My favorite movie is “My Cousin Vinny,” though it would be perfect if Vinny had been from Jersey, like me, instead of New York.