BP is now arguing that all businesses must meet a new (and undefined) subjective causation test in order to present claims under the Settlement Agreement. Under the Settlement Agreement, a business is eligible in the Settlement if it is a covered entity (as opposed to one of the excluded businesses in the Settlement), is located in a covered zone, and meets the appropriate revenue causation test. Needless to say, BP’s new “causation” requirement for businesses was never intended in the Settlement Agreement, and completely contradicts BP’s own positions during settlement negotiations and before the Court.
As we reported last month, Judge Barbier issued an order amending and clarifying his previous Business Economic Loss order on causation and matching, and explained that BP’s new causation arguments were not properly before the Court. In addition, Judge Barbier’s order was extremely critical of BP for its “deeply disturbing” actions and “startling” change of heart on how claimants must meet causation under the Business Economic Loss portion of the Settlement. BP, seeking to manufacture a new “causation” controversy, appealed Judge Barbier’s ruling to the Fifth Circuit. On December 2, the Fifth Circuit remanded the causation issue to Judge Barbier and instructed him to take another look at the issue to ensure that claims were actually being calculated properly. Afterward, Judge Barbier’s issued a new order temporarily suspending the payment of claims until the causation issue is resolved.
While the Fifth Circuit’s recent remand and Judge Barbier’s present injunction have slowed things down, neither court has actually altered the Settlement Agreement. The two courts are simply further analyzing the agreement to make sure the agreement is being interpreted properly. Since there are billions of dollars at stake, considering that BP has not been secretive in its willingness to challenge the Settlement Agreement, which it clearly agreed to, the courts’ actions are not that surprising. It’s not unusual for the courts to carefully review the settlement agreement. As the truth comes out, we are optimistic that the settlement process will move forward with a decision on causation coming within a reasonable time.
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