I just listened to the oral argument involving BP’s claim that the claim administrator is misinterpreting some elements of the settlement agreement and thus, implementing phantom losses for certain Gulf Coast Businesses. The appeal, which, to me actually lacks jurisdiction since the misuse of “commonly accepted terminology” was not part of Judge Barbier’s ruling, is centered mainly on Zone D claimants making losses under the agreement while not having to prove causation. Causation, of which, was decided by BP itself through a mathematical formula produced in a settlement agreement signed on April 18, 2012 by BP representatives itself. Let’s examine some of the arguments today by lawyers for B.P.:BP Appeal – Deepwater Horizon Lawyer
B.P. Attorney’s Statements in front of the Three Judge Panel consisting of Edith Brown Clement, James L. Dennis and Leslie H. Southwick:
- “ fictitious, exaggerated, and excessive awards”
- ”irreparable injustices are taking place”
- Misuse of “commonly accepted terms”.
…the BP Parties represent and warrant that they have all requisite corporate power and authority to execute, deliver, and perform this Agreement. The execution, delivery, and performance by the BP Parties of this Agreement has been duly authorized by all necessary corporate action. This Agreement has been duly and validly executed and delivered by the BP Parties, and constitutes their legal, valid, and binding obligation.
What is the most salient issue for me is the way in which BP’s lawyer, Theodore “Ted” Olson, kept discussing the misuse or misinterpretation of “commonly accepted terms.” That is beyond striking to me; so, basically BP, despite making billions of dollars each year, could not hire a competent team of lawyers, linguists, professors, economics, mathematicians, accountants, or otherwise to properly examine terminology in a billion dollar settlement agreement administered by the Deepwater Horizon Claims Center?
So, BP is upset at how some accountants and zone D claimants are interpreting what “revenue” means. If BP wanted every Zone D claimant or otherwise to actually prove causation in relation to the BP oil spill, they could have allowed direct lawsuits for ALL claimants under the Oil Pollution Act. But, that was ridiculously impossible given the amount of potential claims. This then resulted in BP formulating and agreeing to a settlement agreement allowing for the prompt payment of mathematical losses illustrated by a company or person’s monthly profit and loss documentation plus tax returns. The End.
What Happens Now:
I believe that the Fifth Circuit is not going to entertain this appeal, and defer to Judge Carl Barbier who has been involved in this settlement agreement since its seminal formation. However, if for some reason the settlement agreement is disturbed, and many of the Zone D claimants are no longer allowed to mathematically prove their losses, it will be a litigious catastrophe.
Many of those Zone D Claimants could have chosen to file a direct lawsuit against BP, Transocean, Haliburton, and the other Deepwater Horizon parties under the Oil Pollution Act (“OPA”), which has to be done three years or less after the incident. Yet, we are now past that point. There would need to be immediate legislative action to extend the time period to file direct lawsuits under OPA to allow for the businesses and individuals to seek recovery and prove their losses. Otherwise, the “irreparable injustice”, as claimed by BP, will be for thousands of businesses and people who were fraudulently lured into filing BP claims under a settlement and waiving their OPA lawsuit rights, but now unable to seek a settlement under that very agreement. Wow, talk about a litigious nightmare! I would safely assume there would be ten thousand or more lawsuits filed if this would happen, which could twenty or more years to litigate.
To listen to the arguments this morning on July 8, 2013 in the United States Fifth Circuit Court of Appeal, please go here: http://www.ca5.uscourts.gov/OralArgumentRecordings.aspx
-Lawyer Joey LaHatte