Schexnaydre Law Firm, LLC

BP Settlement Remains at a Standstill

By David Schexnaydre, Esq.

A number of people have asked me when my next blog entry would be posted, which kind of surprised me because I didn't think it was that widely read.  But, apparently, there is a thirst for news, any news, on the current status of the BP Settlement. Frankly, I had been holding off on posting anything because the BP Settlement remains at a standstill.

Regarding the "matching" issue, the parties have issued their declarations, reply declarations, briefs, reply briefs, and their final memoranda. Interesting to me was the fact that Judge Barbier instructed the parties to limit their final memoranda setting forth their suggested method for conducting a "matching" analysis to 10 pages. Dutifully, the Plaintiffs' Steering Committee submitted a 10-page memorandum. BP, too, submitted a 10-page memorandum, but it did not contain their suggested methodology. Rather, BP attached a 66-page exhibit setting forth their proposed methodology for conducting a matching analysis for cash basis claimants, accrual based claimants whose books are "wrong," and for claimants whose books are actually what BP calls a hybrid of cash and accrual. I wonder how Judge Barbier is going to react to BP skirting his rules by submitting a 66-page exhibit when he asked for a 10-page memo.

To me, it is telling that it takes BP 66 pages to set forth their methodology to conduct a "matching" analysis. The fact that it takes BP 66 pages tells me that the parties never intended for a "matching" analysis to take place as part of the BP Settlement Program. Otherwise, this now-critically-necessary methodology would have been negotiated into the Settlement Agreement. It is obvious, at least to me, that BP never uttered one word of a need for "matching" until they saw they grossly underestimated the number and value of valid claims that can be brought pursuant to the very clear and agreed-upon language of the Settlement Agreement.

As for the newest issue to arise, Causation, the 5th Circuit has instructed Judge Barbier to now consider that issue, too, despite the fact that BP's own appellate attorney, Mr. Ted Olson, a very well respected, accomplished, and high-profile appellate attorney who was formerly the United States Solicitor General, stated to the 5th Circuit panel that causation was not before the court (i.e., it was not a contested issue). Nevertheless, the 5th Circuit panel (with Judge Dennis dissenting), has made it an issue to be explored by Judge Barbier. Keep in mind, the 5th Circuit did not rule that the standard for causation is anything other than what is in the Settlement Agreement; it just ordered Judge Barbier to explore the issue, which means more delay.

I am hopeful that a decision by Judge Barbier on the matching is issued very soon. So many of my clients are in desperate need for the funds that were deprived of them as a result of the BP oil spill. 

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