Understandably tired of BP’s unsubstantiated attacks on his integrity, Deepwater Horizon Court Supervised Settlement Program Claims Administrator Patrick Juneau struck back late Wednesday.
In a sixteen page filing with the 5th Circuit Court of Appeals, Juneau took issue with BP’s assertion that he somehow “misinterpreted” or “misapplied” the Settlement Agreement after it had been approved as fair and reasonable by Judge Barbier.
While BP has lost two recent appeals dealing with how Juneau determines if a claimant qualifies for payment – an issue known as “causation” – the company is seeking a rehearing in a seemingly last ditch, Hail Mary move to press its position that the causation requirements in the 1,200 page Settlement Agreement, as applied by Juneau, are somehow too lax. Or alternatively, that BP, one of the largest and most sophisticated companies in the world, was mislead or simply did not understand how Claims Administrator Juneau would implement the payment program.
Juneau points out that BP knew exactly how he would apply the causation standards months before the company sought court approval of the Settlement Agreement. In fact, on numerous occasions – before approval – BP confirmed Juneau’s interpretation.
In his filing, Juneau says that “the only sensible construction of BP’s argument is to suggest that the Claims Administrator’s policy with respect to alternative causation was a surprise move that took place after the district court had approved the Settlement Agreement. But that is patently untrue and contrary to the actual timeline of events.”
BP knew the score
Juneau makes four points in his filing:
1. Before the Settlement Agreement was approved by the district court, not afterwards, Juneau issued a formal written policy regarding the implementation of the agreement’s causation requirements, in which he expressly stated that he would not consider alternative causes of loss.
2. BP knew about and readily agreed with that policy and never challenged it. This policy was implemented a full three months before the Settlement Agreement was approved by the Court, at the formal request of BP.
3. The Claims Administrator did not change his causation analysis “post-approval.”
4. At all times the Claims Administrator has required each claimant to satisfy the causation standards drafted and agreed to by the parties in Exhibit 4B.
On September 25, 2012, several months before the Settlement Agreement was approved, BP attorney Keith Moskowitz sent the following statement to Juneau reflecting the company’s position on the causation requirements:
“If the accurate financial data establish that the claimant satisfies the causation requirement [in Exhibit 4B], then all losses … are presumed to be attributable to the Oil Spill. Nothing in the Causation Framework (Ex. 4B) … provides for an offset where … extraneous, non-financial data indicates that the [claimant’s revenue] decline was attributable to a factor wholly unrelated to the Oil Spill. Such ‘false positives’ are an inevitable concomitant of an objective, quantitative, data-based test.”
In fact, BP maintained this position on causation throughout the litigation involving the matching issue until 5th Circuit Court of Appeals Judge Edith Clement suggested that BP should argue the point. Only then did BP begin to feign surprise at the manner in which Juneau was determining if a claimant’s loss was the result of the spill.