WEST VIRGINIA RECORD

CHARLESTON – Less than 24 hours after a chemical leak began to wreak havoc on Charleston and surrounding areas, a class action complaint already had been filed against the company responsible.

Two Charleston restaurants -- EJ&K Enterprises LLC dba Bear’s Den and South Hills Market and Café LLC -- filed the suit at 7:59 a.m. Friday against Freedom Industries Inc., according to the complaint filed in Kanawha Circuit Court.

The complaint -- filed by attorneys from Mani, Ellis & Layne PLLC and The Sutter Law Firm PLLC – says this is a West Virginia-only class action “to recover lost business profits and other damages for business entities affected by a government close order as a result of a chemical spill into the Elk River emanating from Defendant Freedom’s Etowah River Terminal, which was distributed to all water customers of West Virginia American Water Company in the counties of Kanawha, Boone, Putnam, Lincoln, Logan, Clay, Roane, Jackson and Cabell.”

The restaurants seek compensatory damages, interest, statutory damages, punitive damages, injunctive relief, attorney fees, costs and other relief.

In the complaint that details the events of Jan. 9, the restaurants also note that Kanawha-Charleston and Putnam County health departments ordered all food service establishments that receive water from WVAWC to close.

“As a result of the order requiring the Plaintiffs to close their businesses, the Plaintiffs lost considerable profits, goodwill and other business opportunities,” the complaint states.

The proposed class would include “Any West Virginia restaurants, restaurant owners, eateries and food service providers which were forced to close their businesses as a result of the chemical spill/chemical contamination that occurred on or before January 9, 2014, emanating from Defendant Freedom’s Kanawha County facility,” the complaint states. “Excluded from the class are employees, officers and agents of defendants or any subsidiary or affiliate of any defendant, their immediate family members, and any judge who may preside over this matter.”

One of the attorneys who filed that suit said the class could include up to 500 businesses.

"We won't know the extent of damages until this state of emergency is over and they're allowed to be in business again," Jonathan Mani told WOWK-TV. "My understanding is that it will be at least 24-36 hours from now before they're allowed to be open again. Frankly, I think that's a conservative estimate.

"We're talking about lost profits, lost business, damage to goodwill, and any out-of-pocket monies people spend on the back side to do things like flush lines and clean ice filters for refrigerators, things of that nature. It's very difficult for these businesses.

"They're already in a situation where the economy is on the rebound, shall we say. (Imagine) how devastating a couple days of lost profits can be to a small business."

Two other class actions were filed Friday by attorneys with The Bell Law Firm.

Attorney Harry Bell said that class includes restaurant owners, elderly people with health issues, people who live near the contamination site who experienced problems and other food service people.

“It’s pretty broad based,” Bell said of the suit his firm filed Friday afternoon, noting that his firm is working with some national law firms with extensive class-action experience. “We already have a call center set up to answer people’s questions about this contamination. The phone number is 1-800-BIG-SPILL.

“The people responsible for this should be held accountable, and they should pay.”

"I applaud the fast actions of the EPA and FEMA in responding to Gov. Tomblin's call for help. This shows how important and critical these agencies are in protecting the public.”

Bell's complaints were filed on behalf of Susan Dyer and Kanawha Gourmet Sandwiches, LLC dba Jimmy John's, respectively. Both were filed against Freedom and WVAWC.

"My preliminary discussions last night were with knowledgeable individuals, including a chemical engineer and a highly placed medical doctor - both expressed strong concerns about what has transpired,” Bell said Friday.

Charleston attorney Kathy Brown also filed two class actions in the matter Friday. One was on behalf of 5 Corners Cafe, The Vintage Barber Shop and owner Justin A. Amos. The other was filed on behalf of Laura Gandee.

Jim Peterson of the law firm of Hill Peterson Carper Bee & Deitzler also filed a lawsuit early Friday. The lead plaintiff in it is Scott Miller, who owns Bar 101 and Ichiban. That suit also lists Freedom and WVAWC as defendants.