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BP denied rehearing by 5th Circuit


Late this afternoon BP was handed yet another setback in a long line of courtroom rejections of the company’s “nonsensical” position relating to the implementation of its own Settlement Agreement. The 5th Circuit Court of Appeals had previously ruled against BP on both the propriety of the certification of its class action settlement as well as the so-called “causation” element. The 5th Circuit, along with the lower court and the settlement program’s Claims Administrator, have now definitively held, on numerous occasions, that BP must abide by the clear terms of the Contract it negotiated and signed. To do otherwise was rightly recognized as outrageous.

While I will have more commentary on these significant developments tomorrow, here are the opinions in the appeals, with curiously strong dissents by Judge Edith Clement.

BEL Panel En Banc 13-30315

BEL Panel En Banc Order 13-30315

Certification Panel En Banc 13-30095


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  1. Dennis Bradley says:
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    Hi Brent

    Your example of rule 23(b)(3) again does not answer the question. This is not about smoking but about basic rights one should expect from the law which in the UK at any rated seeks to be fair and just.

    Instead of quoting this legal section please answer the question posed.

    Yes I am from the UK and yes we do drive on the left but. Its not necessary to move over to let me passed (although I would have thought a better joke could have been thought up) just answer the question

    Are you suggesting that in the whole region i.e. the south east companies or individuals are able to make claims and expect payment where no loss resulting from the spill has been sustained.

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    I think that if Mr. Bradley is, as he has alluded, a citizen of the UK, he is driving on the left side of the road, so I’ll pull over and let him by.

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    Federal Rules of Civil Procedures Rule 23(b)(3) –  Class Actions, says: “(b) Types of Class Actions. A class action may be maintained if Rule 23(a) is satisfied and if:….(3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members… ”

    To illustrate, say, if a lung cancer stricken smoker was awarded under tobacco class action, he did not have to prove that his condition was caused by tobacco smoking. Verily it could have been caused by industrial pollution in his workplace or his wife’s cologne for that matter. Such an argument would likely be laughed out of the courthouse. Likewise, in the DHS,  mitigating facts are irrelevant as long as Rule 23 is satisfied. 

  4. Dennis Bradley says:
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    Hi Guys

    Still missing the point.

    I understand and take on board the point made by Jason. But this cannot be allowed to overrule the basic principal of suffering loss.

    Are you suggesting that in the whole region i.e. the south east companies or individuals are able to make claims and expect payment where no loss resulting from the spill has been sustained.

    Just to put the record straight Jason none of my comments can be classed as half truths I am unable to get my head around your view of not having to sustained loss is OK and claimants should be allowed to get what they ask for just because they reside in the region identified.

  5. Jason Fingerhut says:
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    Take a step back. These claims are made for ECONOMIC LOSSES not OILED PROPERTY. Finding a “smoking gun” must be done by analyzing financial data. The reason these formulas were agreed to in the first place is that BP recognized that the spill effectively shut down the South East economy as a whole. Seafood, Tourism, and Oil/Gas production shut off over night. This “trickled down” into other industries and suddenly people weren’t visiting doctors, hiring landscapers, or buying as much groceries. These tests/formulas measure a claimant’s historical data VS May-Dec of 2010 which BP recognizes as the time period in which the economy was most effected. Then May-Dec 2010 is compared with 2011 to ensure the business wasn’t doomed regardless of the spill. These are objective financial tests which indicate that BP’s oil spill is the culprit responsible for the decline in sales. Stop regurgitating BP’s Public Relations Champagne Half Truths and do the research. This is a class action settlement which is aimed at resolving hundreds of thousands of claims with objective rules and guidelines. Some claimants will inevitably get more then they deserve and some will be left out in the cold. BP recognized this and that is why THEY AGREED to pay claims where loses may be due to other factors. Again, this is a class action. If BP wanted perfect justice in every case, they would have chosen to fight each case separately which would have cost them much, much more in legal fees. It was their decision. Instead, BP has agreed to pay according to the objective guidelines (knowing that there would be false positives and false negatives) in hope that in the end it would cost them less; and it is…

  6. Whitney Ross says:
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    You make a compelling argument.

    Judge Barbier and Patrick Juneau proposed this precised example to BP prior to the Settlement Agreement being certified. BP’s attorneys indicated that they understood clearly that some businesses would qualify for reasons unrelated to the Spill, and receive compensation. They acknowledged that this was inevitable in a claims process this large, with objective, financial Causation tests.

    The specific hypothetical proposed by Barbier/Juneau to BP’s attorneys was a Birmingham accounting firm where one of the firm’s partners took a sabbatical in 2010. BP agreed that the accounting firm was a claimant, and would receive compensation under the terms of the contract, if the accounting firm passed the objective causation tests, even if they only did so due to the Partner taking a vacation.

    Dennis, I employ you to read Patrick Juneau’s “Response to BP’s Petition for Rehearing En Banc” filed in March 2014. Juneau lays our the facts, and chronology of BP’s misrepresentations and definitely proves that BP negotiated, and agreed to the Causation tests about which they are now complaining.

    Link below:


  7. Dennis Bradley says:
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    Hi Guys

    You are missing the point here. A basic rule of law must be that to qualify for damages you have to show loss resulting from the incident that the claim is based upon.

    As predicted your legal brains are focusing on interpretation of an agreement, and judgments thus far have sought to base their views on what they believe was previously agreed.

    It must be clear to all that if BP had realized the agreement meant claims could be paid where no loss existed they would not have signed the agreement.

    Bu focusing on what you believe to be previously agreed you are sweeping aside what should be a basic principal of law that any claim for damages must be as result of the incident that caused the damage.

  8. Eyeswideopen says:
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    Dennis, are you advocating that you would rather see a causation test in “exchange” of the voodoo math that we must pass. I think most of us would agree to it, but that’s not what BP is asking for they want both. And just to give you a little history lesson, the BP accountants created the math test for causation requirements using the information gathered by GCCF.

    Just recently the settlement adopted policy 495 from the information submitted to the claim center. Just about every BEL claim will hit these trigger points causing months if not years in delayed payments along with more denials. Stop feeling sorry for BP !!!!

    Policy 495 Underlying Issues / Principles
    “Based upon the CSSP’s experience in reviewing claims and analyzing accounting records submitted to the CSSP since the inception of this settlement program and in light of the rulings and directives received from the Court, the Claims Administrator, in consultation with the CSSP Accounting Vendors, has arrived at the following conclusions relative to the “matching” issues at hand:”
    1.negative total revenue is recorded for any month included within the Benchmark Year(s), Compensation Year or 2011;

    2. total revenue recorded in any month included in the Benchmark Year(s), Compensation Year or 2011 exceeds 20% of the claimant’s annual revenue for the year which includes that month;

    3. the monthly profit and loss statements or other documentation submitted shows that the claimant’s business experienced a period of dormancy during the Benchmark Year(s), Compensation Year or 2011;

    4. total variable expenses when summed up are negative for any month within the Benchmark Year(s) or Compensation Year;

    5. total variable expenses for any month within the Benchmark Year(s) or Compensation Year exceed 25% of the claimant’s annual variable expense for the year which includes that month;

    6. variable margin percentages when compared between any two months included within the Benchmark Year(s) and Compensation Year vary by more than 50 percentage points; or,

    7. in any given month within the Benchmark Year(s) or Compensation Year, the variance between that month’s percentage of annual revenues as compared to that same month’s percentage of annual variable expenses exceeds 8 percentage points.

  9. Whitney Ross says:
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    Your arguments are well intentioned and based on common sense. The error you are making is that you haven’t read the 1,200 page Settlement Agreement. Common sense doesn’t apply. The artificial rules codified in the Agreement determine who is a Claimant and whether they have a valid Claim. The rules negotiated and codified in the Agreement are intentionally objective, not subjective.

    BP negotiated a deal where they knew that the possibility existed that a few Claimants would qualify for compensation that weren’t hurt by the Spill. The same deal knowingly excommunicated more than 100,000 businesses that were injured, but will never see compensation due to documentation requirements than can not be met under any set of circumstances.

    BP freely acknowledged PRIOR to certification of the Agreement that some businesses would be compensated who appeared to not be injured. Afterwards, they have used your common sense and morality against you. You have been tricked by BP, just as the Claimants of this once Claimant-Friendly, Non-Contentious have been.

    I am not an attorney, not litigious, and have personally reviewed hundreds of businesses that were hurt by the Spill and will never see a dime. This is the real crime.

  10. J. R. Whaley says:
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    Dennis – BP’s (and your) arguments have been considered by (1.) the court appointed / BP recommended claims administrator, (2.) the federal district court overseeing the settlement, (3.) the three-judge “BEL” panel of the United States Fifth Circuit Court of Appeals, (4.) the three judge “Certification” panel of the United States Fifth Circuit Court of Appeals, and now (5.) every active member of the United States Fifth Circuit Court of Appeals, appointed by both Democrat and Republican presidents and confirmed by the U.S. Senate while under control of both political parties. BP has lost at every turn. Maybe — just maybe — those jurists made their decisions based on the law and the operable facts to decide what BP actually agreed-to. That possibility is at least worthy of your consideration.

  11. Dennis Bradley says:
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    Judge Edith Clement is the only one speaking out for justice.

    Do you here what you are saying, even if a company or individual has not suffered any loss as a result of the spill they can get paid.

    The mistake BP made was to assume the logic of having to sustain loss when the agreement was put together.

    I hope they go to the supreme court.

    This judgement of the 5th circuit shows they are willing to ignore natural justice based upon interpretation of an agreement.

    Question did BP or any of the parties agree to pay claims that were not as a result of the spill when the agreement was drawn up.

    Answer no.

    They believed natural justice would prevail.

    Now lawyers are exploiting something which the original agreement was not intended to be exploited.

    Shame on you.

    Its a pity that legitimate claimants are suffering delays due to this incredible view of some of the 5th circuit.

    Tom please don’t bore me with your legal brain response. It will only serve to enforce my view of a number of lawyers involved in the BP saga.

  12. Eyeswideopen says:
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    Torn by the 5th CC ruling.

    Yes, it looks like the injunction may be lifted unless BP pulls another stunt. But as the settlement resumes the new policies will increase the amount of denials. Let’s enjoy the moment for the ones that pass the V trend but remember the fallen 40% so far that got the shaft.

    Keep unspinning BP PR. Tom

  13. Jim says:
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    Tom, does Scalia stay the injunction? Thoughts?

  14. Jon pirie says:
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    What are next steps for appeals after an en banc request is denied?

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