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Tom Young
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BP denied stay by 5th Circuit

7 comments

This afternoon the 5th Circuit Court of Appeals denied BP’s request to maintain the hold on payments to businesses and individuals harmed by the Deepwater Horizon spill. BP’s position has been soundly rejected time and time again by several judicial and quasi-judicial bodies.

Last week the 5th Circuit refused to rehear BP’s tired arguments. As such, the company indicated it would ask the Supreme Court to intervene, a move seen as unlikely given the narrow issues involved (primarily a contract interpretation dispute). With that in mind, late last week BP moved the 5th Circuit to maintain the “stay” and delay issuing the “mandate” that would allow payments to flow. Today the 5th Circuit denied the company’s request.

While this is good news for claimants, other issues remain pending which could further delay claim resolution, including the so-called “matching” issue involved in Policy 495. That said, this is another in a long line of positive developments for the businesses and individuals of the Gulf.

It’s high time BP calls it a day.

7 Comments

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  1. nathan fields says:
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    Seems to me foundly is a bp conspirator and a goober or as they are called nowadays on sites”trollers”! BP needs to go back home and take its be gas with them. To high and too low quality….. And don’t forget BP’s brilliant engineers that created the designs and platforms designs that killed husbands and wives here. Not in their home country and are talking in their country like we are nobodies and ambulance chasers. That is why they are fighting to continue business here right foundoly! You are stupid in your remarks!

  2. Mining Consultant says:
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    The US media has not properly covered this subject matter and frankly the stories from BP are false, misleading or far worse. The examples BP and Judge Clement have used in their arguments to show claimants who were “falsely” or improperly paid (approx. 10 of 15 publicly released examples) are most often companies or persons paid NOT by the court approved Settlement, but claimants who were instead paid by the GCCF under Feinberg, who was I must remind, a direct BP employee.

    3 other cases where the media distorts are as follows:
    A car dealer who lost his franchise for a car line (Pontiac) – This dealer tried unsuccessfully for the entire summer and fall of 2010 to get a new franchise to sell new vehicles. Prior to the spill they had 3 other auto makers bidding to give them their franchises to sell their new vehicles. The spill ended those talks and the business shut for the year. That is a real loss as opposed to the BP half truth.

    An RV park that had a foreclosure filed against it prior to the spill – This is a not an RV park that had closed it’s business. It simply had a filing against it. Their business remained open at that location through 2010. A foreclosure does NOT mean a closure of business in the current FL real estate market for businesses. Most negotiate for a rental contract with the bank who forecloses as the banks prefer a property to be occupied and thus keeping the property from becoming abandoned. Many home owners are keeping residence in their homes in FL now under the same management agreements with banks (though ownership of the property is lost their business income was not.) The RV park in question WAS profitable in 2009, but they had fallen behind on their payments due to the economic crisis in 2007-09.This property would have been able to utilize the Federal Foreclosure Relief Act to refinance had they not faced the effects of the tourist exodus from the region in 2010 caused by the oil spill.

    The business that burned down prior to the spill – This company was ready with contractors to use their insurance money to move to a different adjacent location and restart their business, but failed to be able to do so as there was simply no customer base to move forward. Further banking loans that were extended prior to the spill we pulled back by two local banks. Hard to make money or reopen a business after a fire when the oil spill changed the economy around them.

    The Oil Pollution Act, made law by Congress specifies that “regions” affected by an oil spill are “affected economies” and as such no direct contact with oil is required to show losses that are then liable to the offending party (BP, Transocean et al). OPA rules give all regional business a chance to ask for compensation regardless of their business type and also apply punitive damages if the court rules that negligence was involved in creating the spill. In this case the court was to rule in Feb of 2012 but BP rather than allow that case to be heard (and a possible 3x multiplier added to losses) BP offered this settlement with these specific rules of filing based on OPA law out of the fear that litigation costs would be higher than this settlement.

    Remember that to make a settlement, one just needs to count the dollars it would cost to defend yourself from any and all law suits. BP is ignoring their own math calculations that said this settlement (even with the new cost estimates) would be a cheaper outcome. Yes some people have less deserving losses and are getting paid, and others who had truly huge losses are getting very little. Many businesses (around 100,000) that had real losses were convinced to settle for just $25k when their losses were twice to many times that number. The idea of a class action is to keep courts from being shutdown by the overburden of the law suits and finding a solution that is “good enough”. BP said this one was better than good enough and said that after they compared their likely losses in open court due to the volume of cases that would have numbered into the 100,000′s.

    One last note…the oft quoted “4 partner accounting firm” where one partner takes a medical leave during the oil spill…this was a hypothetical case not a real one. If it was real then there would be other factors that would have allowed the case to proceed against BP in a normal court of law. As it is hypothetical then one might ask first – Did this 4th partner decide to take his medical leave at this time because there simply wasn’t enough business for him to be needed in the office? Or did his absence from the office result in any turning away of clients? Really…would a business of that type actually lose business because one partner had a forced medical leave? Of course not! They would hire a temporary staff accountant. There were many unemployed accountants due to the prior economic crisis available to hire to take up his work load IF and only if such a work load existed. Truly these cases put forward by BP are red herrings meant to deceive the public and at least one Judge by the name of Clements.

    FYI I was an expert for BBC World service for many years and saw first hand the way we were instructed to use “notes” pre-prepared by corporations and other groups who were on a single side of an issue when appearing on air. If we failed to use these “notes” we were eliminated from the tapings and not asked to return. The news you hear is edited before it even reaches the writers or broadcasters these days. It was not so even as recently as 2002…now though…hard to find any proper analysis or truth left.

  3. Mining Consultant says:
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    For Foundonly,

    Your suppositions on US legal norms are humorously interesting and entirely uninformed.

    The nature of a “settlement” is to give a defendant an opportunity to strike a bargain with any and all plaintiffs in ADVANCE of a trial on merits. The “fraudulent” claims that BP is now touting are all colorable plaintiffs who now qualify as claimants, as determined by BP’s own rules, set forth in the Settlement Agreement.

    BP’s play here is to now try and throw out portions of or all of those potential plaintiffs who “opted into” this Settlement Agreement. If BP succeeds in this they will then argue that those same plaintiffs who are eliminated from the “class” as now beyond their statute of limitations. This is the strategy that K&E are pursuing.

    Of course “tolling” of the time table (statute of limitations) for those who were inside the Settlement (opted in) will begin to run based on the date of the Settlement Agreement’s May 2012 preliminary approval, when or if claimants are eliminated from the “class” in any later US Supreme Court ruling. Not that BP won’t say that May 2012 is not the applicable date of course, and BP will then argue for a shorter period before the statute runs out, like Dec 2012 when the fairness hearing was ended. Functionally this will eliminate a percentage of possible litigants.

    In the meantime BP is dissuading many litigants from filing as they raise the social pressure with their lies on whether or not fraudulent claims are being filed. Of course BP claims these are occurring in vast numbers but assessment of the fat say otherwise.

    Each claim they have brought to the media has been carefully chosen and edited to give the impression that such claims had no legal standing in court. The opposite is true. I will resend a write up I added to another of these blogs this week to demonstrate this.

  4. Mining Consultant says:
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    It does look like BP can ask for an emergency stay at any time from the US Supreme Court, but they might not get it if they do.
    The Supreme Court might tell them they are not ready to rule on a stay before BP files their appeal (writ of certiorari) before the Supreme Court. Typically such requests to the Supremes are done within days of the Circuit Court refusing a stay. So we should know soon.

    BP will have to ask Justice Scalia for the Stay as he is the 5th Circuit’s “Justice” assigned from the US Supreme Court. The propblem though is that Scalia’s son is an attorney who is actively working with a law firm on this same case, and on BP’s side! Properly Scalia must recuse himself and pass the decision to another justice or the whole court. (But he likely won’t as he has never before done so on other cases when his son’s law firm is involved.)

  5. Dave says:
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    I think it would set an even worse precedent if the courts allowed big business to enter into an agreement (Contract) and then opt out later because they changed their minds… You can’t tell me that BP hired some of the best lawyers in the country and they didn’t understand what they took in front of the board and encouraged them to sign…

  6. Jim Murray says:
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    Foundonly, your copy and past to every bp article is humorous at best. Bp enter this deal and now they are stuck with it.

    Tom, great articles, keep them coming!!!!

  7. Foundonly says:
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    I guess for Lawyers it’s fair game to take advantage of BPs naive notion that it was fairness that the ambulance chasers 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.

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