There have been several events taking place relating to the current status of the BP appeal, the 5th Circuit opinion and the current injunction issued by Judge Carl Barbier. I will attempt to summarize the events leading to where we are today, as well as what we can reasonably expect in the future. Please note that the comments are those of this writer, and do not necessarily represent the views of class counsel or the Plaintiffs’ Steering Committee (PSC), and hopefully they will clean up some of the uncertainty relating to the states of claims.
We discussed the 5th Circuit ruling above. As we pointed out, the question of how certain business economic loss (BEL) claims are to be calculated was sent back to the District Court. Much has been written about the ruling and its impact and a great deal of speculation about the states of claims. I personally believe BP “lost” on alternative causation (if it was ever even before the court) and on the issue of revenue “smoothing.” I believe it’s safe to say that class counsel had a different reading and interpretation of the 5th Circuit ruling and potential impact than that of BP. I am sure Judge Carl Barbier will look at both sides and then come to a fair decision regarding all of the relevant issues on remand.
On Oct. 18, Judge Barbier entered a Preliminary Injunction Related to BEL Claims. He noted that the issue before the court was the measurement of claimants’ losses under Exhibit 4C of the Settlement Agreement, not the Exhibit 4B (Causation Requirements). The Court allows “properly matched accrual basis records” business claims to be processed and paid. A temporary suspension was put in place for those BEL claims where the Claims Administrator determines that matching of revenues and expenses is an issue. Seafood, Subsistence, VoO Charter Payments, Vessel Physical Damage, Coastal Real Property Damage, Wetlands Real Property Damage and Real Property Sales Damage claims were not impacted and continue to be processed and paid. The Court also instructed the Claims Administrator to file a declaration outlining the criteria to be used in determining whether a claim is supported by “sufficiently-matched, accrual-basis accounting” and where the matching of revenues and expenses is not an issue for a BEL claim.
After the Preliminary Injunction was issued by Judge Barbier, Class Counsel and BP made several filings outlining their positions. On Oct. 25, the Court issued a Scheduling Order relating to the BEL Remand, outlining future filings that can be made by class counsel and BP as well as setting a hearing on these issues (if necessary) for Dec. 2, 2013. On Oct. 28, the Declaration of Patrick Juneau, Claims Administrator, was filed setting out guidelines to determine which BEL claims were “sufficiently matched.”
It appears to me that whatever evidentiary issues remain on remand will be submitted before Dec. 2 and Judge Barbier will give them all due consideration. I believe that a workable solution can be reached to assure that all business claims are sufficiently matched, processed and paid. This would be a good thing in order for the Settlement Agreement to be implemented and those claimants with filed business claims can be paid.
It seems obvious to me that BP is doing whatever it can to get out of a legitimate settlement agreement – one it negotiated and agreed to. I hope I am wrong on that belief, but I have to admit I have great difficulty trusting BP.
For those clients and lawyers involved in the settlement claims process, I strongly encourage patience. I can certainly understand a certain amount of frustration, but remember this settlement process is still much quicker and more efficient (with less risk) than case-by-case litigation. Lawyers and support staff in our firm and many others will continue to work as hard as possible to support the proper implementation of this settlement and to fight BP’s arguments and attempts to undermine it. If you need more information on the BP litigation, contact Rhon Jones, John Tomlinson, Parker Miller, Chris Boutwell, or Grant Cofer, lawyers in our firm who are working on the BP litigation, at 800-898-2034 or by email at Rhon.Jones@beasleyallen.com, John.Tomlinson@beasleyallen.com, Parker.Miller@beasleyallen.com, Chris.Boutwell@beasleyallen.com, or Grant.Cofer@beasleyallen.com. You may also contact our Section Head Administrator Sandra Walters at Sandra.Walters@beasleyallen.com.
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