01172017Headline:

New Orleans, Louisiana

HomeLouisianaNew Orleans

Email Tom Young Tom Young on LinkedIn Tom Young on Twitter Tom Young on Facebook Tom Young on Avvo
Tom Young
Tom Young
Attorney • (813) 251-9706

BP can’t handle the truth

13 comments
Photo courtesy of methodshop.com.

Photo courtesy of methodshop.com.

BP is known to play fast and loose with the facts, with the above particularly memorable “lapse” discovered in the Summer of 2010 by a reporter at Ameriblog of a faked and photo shopped image of BP’s emergency command center. And while the oil major does a masterful job of media control and public relations spin, one would not expect BP to be so bold as to be less than forthcoming (to put it diplomatically) with Federal Judges, but that appears to be what BP spokesperson Geoff Morrell has suggested in recent interviews and on BP’s propaganda web site.

In an interview earlier this month with 60 Minutes correspondent Scott Pelley, Morrell said “No company would agree to pay for losses that it did not cause, and BP certainly did not when it entered into this settlement.”

But as I have pointed out before, and my friend J.R. Whaley discussed more recently, BP’s attorneys told at least four Federal Judges – in open court – just the opposite. In fact, both J.R. and I were in the courtroom at the time and heard the proclamations loud and clear.

For instance, when seeking District Court approval of the Settlement Agreement in November 2012, BP attorney Richard Godfrey, with the venerable firm of Kirkland & Ellis, told Judge Carl Barbier the following:

“We have presumed causation in Zone A. We’ve presumed causation. It’s irrebuttable. You know as well as I do, Your Honor, how many people come in and think they have got a claim damage for economic loss; but, when the facts come out, they had a bad year because they lost their key manager, they had a bad year because the street was being repaired in front of them, whatever reason. We’re presuming causation for whole sections of the settlement class depending on where you reside and the nature of your business.”

Then, less than one year later, BP attorney and appellate stalwart Ted Olson with Gibson, Dunn & Crutcher had this to say to Judges Clement, Dennis and Southwick of the 5th Circuit Court of Appeals:

“This is a settlement. … It was a compromise, which every settlement agreement is. With respect to causation issues, some businesses that are very close to the spill, the causation issue is waived entirely. . . .” (July 8, 2013 during exchange with Judge Clement beginning about 6:33)

So which is it BP?

Mr. Morrell’s version or what your lawyers have said in court?

While plaintiff counsel did not and is not seeking payment for those uninjured by BP’s disaster, it is important to note that BP did in fact propose, agree to, and champion a system which could result in the appearance of so-called “false positives.”

But why? Was it intentional? Perhaps.

Court of public opinion

BP’s media team is led by former Pentagon press secretary Geoff Morrell. Mr. Morrell is a veteran spinmeister and his team is well versed in media manipulation. By designing a payment system that could generate a few dozen seemingly questionable claims (to the untrained economic eye) out of 200,000 or so total claims, BP provided Morrell & Co. with fodder for the papers and Sunday talk shows.

BP, looking to suppress participation in the payment program, played the victim card, using as “evidence” a handful of poster-child “fictitious claims” to bolster the company’s position that it was being taken advantage of by unscrupulous lawyers, judges and really anyone who lived in the southeastern United States.

The problem is, upon closer inspection, BP’s “fictitious” and “undeserving” claims turned out to be anything but.

The butcher, the baker, & the candlestick-maker

BP first complained of a car dealer that was compensated under the precise terms of the Settlement. BP said the reason the dealer qualified was not loss of business due to the economic fallout from its spill, but rather the discontinuance of the Pontiac brand from its lineup. BP said this was a “fictitious claim.”

But unfortunately for BP, the pesky facts got in the way.

This dealer tried unsuccessfully for the entire Summer and Fall of 2010 (during the spill) to secure a new franchise to replace Pontiac. Prior to the spill the dealer had three other automakers bidding for his business. BP’s spill ended those talks.

Next up, an RV park foreclosed upon before the spill won, according to BP, a windfall payment from the settlement program. The horror! This, said BP, was most certainly a “fictitious claim.”

But unfortunately for BP, the pesky facts got in the way.

This was a not an RV park that had closed its doors, it simply had a foreclosure action filed against it. Any underwater homeowner over the past half decade knows that the initiation of a foreclosure suit is just the beginning of a multi-year process which often results in a restructuring or other compromise solution.

The RV park in question remained open through the spill year of 2010 while it attempted to negotiate with the bank. Alas, BP’s spill ended those negotiations. Additionally, but for the spill, the owner would have been able to enjoy the benefits of the Federal Foreclosure Relief Act to refinance. Yet the lack of tourism post-spill precluded such relief. As a result, the business was eventually lost, due in no small part to BP.

Next up on BP’s list of “fictitious claims” is a mobile phone retailer whose store had burned to the ground before the spill.

Yet again for BP, the pesky facts got in the way.

This company was shovel-ready to use its insurance money to move to a different adjacent location and restart the business, but failed to be able to do so as there was simply no customer base left to sell to. Further, financing offered before the spill was rescinded post-spill by two local banks. Hard to make money or reopen a business after a fire when BP’s disaster changed the macro-economic landscape in the region.

Judge: BP’s change of heart intentional

It has become apparent to even casual observers that BP has intentionally cherry-picked claims and particular claimants for public flogging in an attempt to frighten away other businesses from participating and receiving compensation rightfully owing. Unless one takes the time to read articles like this one, the public could be forgiven for buying into BP’s made-for-TV sound bites. But the facts belie BP’s outrageous claims.

In closing, it’s good to know that the judiciary is not so easy hoodwinked.

Judge Barbier in November 2013:

“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 Fifth Circuit Court of Appeals and contradict everything they have previously done or said on this issue. Such actions are deeply disappointing.”

Judge Barbier in December 2013:

“The Court further finds that BP’s change of position was not inadvertent.” – Judge Carl Barbier, Order & Reasons, December 24, 2013

13 Comments

Have an opinion about this post? Please consider leaving a comment or subscribing to the feed to have future articles delivered to your feed reader.

  1. Jon says:
    up arrow

    BP has officially submitted a request to Justice Scalia to have the US Supreme Court intervene & continue the hold on the BEL payouts. Scalia’s son, Eugene, is actively working on BP’s behalf with the law firm of Gibson, Dunn & Crutcher. Ethically Scalia must recuse himself & pass the decision to someone else whose family is not directly affected by it. Anyone affected by this decision should immediately call the US Fifth Circuit Court & demand justice. The number is (504)310-7808 & the case # is 13-30095 (for when they ask for it). If we act now, we may have a chance at preventing a worst case scenario. God only knows when the hold would be lifted if the Supreme Court grants BP’s request.

  2. Adam says:
    up arrow

    I’m always surprised by the frequency of these trolls on discussions of the BP oil spill. These don’t seem to be the usual anti-lawyer, anti-public trolls that bemoan the acts of personal injury lawyers or plaintiff-side lawyers in general. These trolls seem to have coordinated talking points like they are coming directly from BP or perhaps a marketing firm BP has employed. I don’t know whether that is the case but in my opinion it certainly has that feel to it.

  3. F. Guenther says:
    up arrow

    And in 1989 BP told it’s heritage Sohio workforce that the new and improved pension plan would be “as good or better than the existing competitive plan” except it wasn’t, not even close. As many of us get near retirement age we’re finding out that our pensions are about 50% less than promised. When we questioned BP managers 3 years ago what we got was a huge lie blaming the shortfall on unforseen interest rates. As a 35 yar BP employee I can tell you BP does not have any of the values and ethics they so proudly flaunt in everyones faces.

  4. Eyeswideopen says:
    up arrow

    For the trolls:

    CAUSATION REQUIREMENTS FOR BUSINESSES ECONOMIC LOSS CLAIMS

    I. Business Claimants for Which There is No Causation Requirement

    1) If you are a business in Zone A, you are not required to provide any evidence of causation unless you fall into one of the exceptions agreed to by the parties, and listed in footnote (1).

    2) If you are a “Landing Site,” or “Commercial Wholesale or Retail Dealer A,” or “Primary
    Seafood Processor,” as set forth in “Seafood Distribution Chain Definitions,” you are not required to provide any evidence of causation.

    3) If you are in Zone A, B or C and you are a “Commercial or Wholesale or Retail Dealer B,” or a “Secondary Seafood Processor,” or a “Seafood Wholesaler or Distributor,” or a “Seafood Retailer,” as set forth in “Seafood Distribution Chain Definition,” you are not required to provide any evidence of causation.

    4) If you are in Zone A or Zone B, and you meet the “Tourism Definition,” you are not required to provide any evidence of causation.

    5) If you are in Zone A, B or C, and you meet the “Charter Fishing Definition” you are not required to provide any evidence of causation.

    http://www.deepwaterhorizonsettlements.com/Documents/Economic20SA/Ex4B_Causation_Requirements_for_Business_Economic_Loss_Claims.pdf

    P.7 on the application-to-recall Ted Olsen writes “potentially eligible for compensation”

    “If a claimant satisfies the causal-nexus requirement for class membership and Exhibit 4B’s revenue-related tests, among other requirements, then it is potentially eligible for compensation.”

    I haven’t seen this in the agreement can you confirm.

  5. Dave says:
    up arrow

    Foundonly… All of your arguments have been soundly shot down over and over again… Just once I’d like to see you back one up with actual proof or facts… The truth is future litigation would be hurt much more if the courts allowed BP to change the agreement part way through… Threats of longer litigation’s the next time are ridiculous… The courts have learned from both Bp and Exxon and their stalling tactics… This case will be shorter than Exxon’s and the next one will be shorter than this one… And there will be a next one….

  6. Trisha Springstead says:
    up arrow

    I personally find it reprehensible that BP could pull of the largest Oil Spill in the History of the US and believe me they also hired their own paramilitary….Military……force to hide this from the people. Wackenhut, now G4S was hired and many of us were victims of harassment by our own Country. I have been fighting this battle since the beginning and not only is the Ecosystem a mess, humans and animals are Suffering. We the People with the HELP OF OUR GOVERNMENT…. should have seized all assets, shut them down and stopped BP from ever Drilling in our Gulf much less our County EVER. Jeanne Pascal ex EPA tried to get BP Disbarred…..
    “They Are Serial Corporate Criminals.”
    Trisha Springstead
    Florida

  7. Dave Arnsby says:
    up arrow

    Tom, please keep up the good work. Yet another fully justified denial against BP. That’s 0-7 now on the score card.
    Your continual accurate reporting of the facts surrounding this huge case, is clearly benefiting everyone’s cause. Payments must commence again today, and Justice Scalia must recuse himself from any decision, as his son is a direct employee of BP’s attorneys. That is a clear conflict of interest.
    Next up, please push for all stays to be lifted for claimants of the BP Claims Program. They have all been stayed for well over a year. We must now be allowed to move forward and receive compensation after three years of waiting.

  8. John says:
    up arrow

    Note the Troll never addresses any of the direct letter to him or her. Instead he suggests we look at an article on ATMs…laughable and sinister all at once. Please note for all of the readers information that Kirkland and Ellis DOES employ persons to act as trolls and bloggers to fight any appearance of wrong doing on the part of their clients. Can we guess that Foundonly is just such a paid troll…?

    • Tom Young says:
      up arrow

      If Foundonly is a paid troll he must not be paid very well, as he does a poor job of defending his position. If I were employing him, I’d show him the door.

  9. Al Ghindal says:
    up arrow

    Who let the BP trolls on here? Go away Foundonly!

  10. Jacob says:
    up arrow

    Great article as always, I guess you guys are the lucky owner of a BP Troll that is pretty cool, I see that you guys are nice to him, I would expect he is on the list of endangered species https://www.youtube.com/watch?v=AkAYKoJTOz8

  11. Foundonly says:
    up arrow

    BP, or British Petroleum I’m proud to say, has conducted itself admirably in the face of the questionable ambulance chasing US lawyers.

    My guess is, Barbiers actions over this will have implications for all companies in the future seeking to trade within the US and that you will never again see the sort of integrity as shown by this British Company.

    Barbier and co should enjoy the windfall while it lasts, as years of delay and questionable legal tactics lay ahead for the victims of the next big disaster.

    This is a quite interesting analogy
    http://www.independent.co.uk/money/spend-save/simon-read-if-a-cash-machine-pays-out-too-much-money-are-you-just-a-common-criminal-if-you-take-it-9068454.html

  12. Foundonly says:
    up arrow

    Truth and fiction is what it’s all about.
    I guess for Lawyers it’s fair game to take advantage of BPs naive notion that it was truth and fairness that the ambulance chasing lawyers were after.
    But Just for the record, much more damaging to the US, is the legacy left behind for those companies that will follow.

    This case has promoted the well founded idea that the US legal system and its administrators are greedy and cannot be trusted to act fairly.

    It’s quite strange that the US legal system is maintaining is that British petroleum should pay even the known fraudulent claims against it. We are all sure to remember this when we next make an insurance claim.

    BP and all that follow will also remember these actions and act accordingly the next time.

    You will find that no one will ever trust or treat the US fairly again.

Leave a Comment

Have an opinion? Please leave a comment using the box below.

For information on acceptable commenting practices, please visit Lifehacker's guide to weblog comments. Comments containing spam or profanity will be filtered or deleted.