After months of BP twisting the truth, mocking a settlement agreement it previously agreed to, and continually trying to destroy the credibility of a respected claims administrator, a man the company had previously picked, it appears that Judge Barbier finally has had enough. Recently, he issued a blistering order that accused BP’s lawyers of “deeply disappointing” actions, and for making a “startling” reversal of its previous statements made under oath and in open court.
The Court’s frustration is borne in part out of the oil giant’s bad faith attempts to destroy the settlement it not only agreed to but had actually negotiated during a period of months. Previously, BP sought to change the way claims were calculated under an expense and revenue “matching” theory, even though BP’s suggested “framework” was nowhere to be found in the 1,000-page settlement agreement. Simply put, the company is not satisfied with how much a settlement it created is costing. Now, the company has turned its attention to completely undoing a causation framework that it has repeatedly reaffirmed and supported in open court for months – even when previously questioned by Judge Barbier specifically on whether the company supported the framework.
When commenting on BP’s recent actions, Judge Barbier noted: “BP accuses the claims administrator of ‘rewriting’ and ‘systematically disregarding’ the settlement agreement … To the contrary, when it talks about causation, if anyone is attempting to rewrite or disregard the unambiguous terms of the settlement agreement, it is counsel for BP. Frankly, it is surprising that the same counsel who represented BP during the settlement negotiations, participated in drafting the final settlement agreement, and then strenuously advocated for approval of the settlement before this court, now come to this court and the 5th Circuit and contradict everything they have previously done or said on this issue,” Judge Barbier said. He added that “such actions are deeply disappointing…”
Judge Barbier pointed out that during settlement negotiations, all parties agreed requiring direct causal proof for thousands of businesses would be too difficult a task. As a result, Judge Barbier reasoned, the parties agreed to objective, causation rules that would apply to the covered regions of the settlement. He cited a litany of quotes from BP’s own lawyers confirming the approach, but now BP has returned to court demanding a new causation framework that the company claims always existed. That is simply not true. Judge Barbier could not have disagreed more with BP:
In the context of a class-wide settlement program, involving claims by tens of thousands of claimants, it would be infeasible to expect or require every claimant to prove actual, or factual, causation … Doing so would require thousands of individual trials of causation, defeating the whole purpose and intent of the class settlement.
Judge Barbier even questioned whether the company had standing to appeal the causation provision, considering the company also agreed to “support the final approval and implementation of th[e] agreement and defend it against objections, appeal or collateral attack.” Frankly, based on our experience with BP, I don’t trust BP and put nothing past them. The company is desperate and that’s quite evident from its actions. The American people, especially those who live and work in the states of Florida, Alabama, Mississippi, Louisiana and Texas will not tolerate the shameful performance by BP. Neither should anybody regardless of where they are located.
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