2009 Annual Review - Latham & Watkins

San Diego Gas & ElectricCompanyHigh-Profile Asbestos DefenseLatham & Watkins represented San Diego Gas & Electric Company(SDG&E) in a three-year Clean Air Act federal criminal prosecutioninvolving the decommissioning of a natural gas facility. Thegovernment claimed that miles of asbestos-containing materialsremoved during the project were “regulated” and subject to EPAmandatedwork practices. Latham revealed that for more than adecade EPA (and states) had based their asbestos enforcementprograms on a test method for determining asbestos contentand federal jurisdiction that was never promulgated into law.In a case of first impression, Latham successfully challengedthe government’s prosecution, leading to dismissal of thefirst indictment.Following re-indictment and a six-week trial in 2007, Lathamdemonstrated that the regulatory threshold for asbestos contentwas not exceeded. After the government argued that the correcttest method was “not the law,” SDG&E was found guilty basedon the government’s inflated test results. The court granted anew trial because a “serious miscarriage of justice” occurred,and the Ninth Circuit Court of Appeals affirmed. In 2009 whilepreparing for retrial, Latham convinced the court to excludeall of the government’s evidence for failing to comply with theproper test method. Following that ruling, the governmentdismissed all charges.PracticesEnvironmental LitigationProduct Liability, Mass Torts and Consumer Class ActionsWhite Collar & Government InvestigationsOffice InvolvedUnited StatesSan Diego55 Latham & Watkins • 2009 Annual Review