Editor’s Note: The following is an opinion piece by attorney Joe Rice, chief architect of the BP Deepwater Horizon Economic and Property Damages Class Action Settlement. Additional commentary on Mr. Rice’s position can be found at Plaintiffs’ negotiator blasts BP for ‘backpedaling’ by Thomson-Reuters analyst Alison Frankel.
In the course of 30 years of practicing law I have never seen a corporate defendant backpedal on an agreed-to settlement to the extent BP is attempting to do in the Deepwater Horizon Economic and Property Damages Class Action Settlement. BP still doesn’t understand the law or the facts of this case.
BP entered a comprehensive settlement that provides a system of internal controls, appeals and remedies. The Settlement was negotiated for more than 18 months, incorporated into 1,100 pages and presented to the Court for approval. Now BP is arguing irreparable harm by the plain language interpretation and common sense operation of the Settlement Agreement it agreed to. In short, BP is objecting to its own settlement.
The most recent announcement of BP’s own “Fraud Hotline” is in my opinion both in violation of the Settlement Agreement and a direct insult to the judicial officers in the State of Louisiana. The Federal Court was asked to take, and took, exclusive jurisdiction over this matter. The attorneys involved on the Plaintiffs’ Steering Committee do not condone, support or forgive fraud. Fraud is wrong, and claimants should not and are not being paid for fraudulent claims as BP describes it. What BP asserts are fraudulent claims are, in fact, claims that are being processed consistent with the terms of the Settlement Agreement as negotiated and written by the parties, and interpreted by the Court. The parties agreed to submit to the exclusive jurisdiction of the Court to interpret and enforce the agreement, and the Court’s enforcement has occurred.
If BP had intended to require revenue matching and restatement it could have introduced that subject at the time the Settlement Agreement was being negotiated. It did not ever raise the issue. Nor would the Plaintiffs’ Steering Committee have ever agreed to that purely subjective approach. That approach would not be a settlement or resolution based on transparent objective standards allowing the claimant to use their business records.
In 2011 and 2012 when BP was negotiating this Settlement Agreement, the most important thing to the company was to have a settlement that did not use a time period after Dec. 31, 2010 for the determination of damages. BP wanted to be able to argue then, and now, that there was no damage done by the oil after 2010. It wanted protection from the consequences of the enormous environmental damage it caused, such as fines and penalties, as well as to keep claimants from being able to present arguments over the next decade of continuing harm. It wanted the federal government to feel that the company was appropriately addressing the problem so that the federal government would be lenient on the criminal penalties. All of this happened. BP has been able to enter a favorable resolution of its criminal liabilities and the Settlement Agreement does not focus on losses in the Business Economic Loss Category after 2010 in most cases.
BP now wants to take away what it agreed to pay in exchange for what it got. It wants to take away the transparent objective standards for calculating revenue losses, and it wants to take away the mandate that the Claims Administrator interpret the settlement in a claimant-friendly way – a mandate that the Court approved, at BP and the Plaintiffs’ Steering Committee’s request.
I believe that BP is knowingly and recklessly making false statements concerning the integrity of the Court-appointed Claims Administrator and claims administration procedure. As the Court itself has said in rejecting BP’s most recent attempt to delay payments owed under the Settlement Agreement, “it’s really disappointing when so many basic, factual misrepresentations get reported and then somebody has to try to go around correcting these things.”
I agree with the Court that “these unfair, inappropriate, personal attacks should stop.”
It is time for BP to face the fact that it entered an agreement and it got what it wanted. It is time for BP to stop trying to take away the benefits it agreed to give the people of the Gulf Coast.
BP’s conduct is wrong. Its conduct on the Deepwater Horizon was wrong. Its conduct that resulted in the death of eleven innocent victims was wrong. And its conduct is wrong today. It continues to try to buy its way out of the problem with a multi-million dollar press campaign, and that is not going to work. Unfortunately, its criminal charges have been put behind it. If an individual citizen of the State of Louisiana had been responsible for the death of one, much less eleven, individuals, our society would put them in prison. BP bought its way out of its conduct by paying financial penalties for its criminal conduct. Don’t forget the evidence of its lack of corporate integrity that has continued to be shown throughout this process. Even now it is filing papers with the Court arguing that it should not be responsible for oil that dissolved in the water before reaching the surface because that oil did no harm to the surface, the land, or the environment.
We will continue to fight for the right of our clients to recover under the Settlement Agreement. We believe that the Court has done a masterful job of managing this litigation, and that the Court-appointed Claims Administrator has and is doing his job as contemplated by the Settlement Agreement. Please don’t let BP scare you away from recovering the benefits of the Settlement Agreement that you are entitled to.