Judge Barbier Issues an Order Scolding Counsel for BP for Lack of Professionalism in Their Latest Attempt to Undermine their Own Settlement Agreement

On Friday, November 22, 2013, Judge Barbier issued an order amending his November 15, 2013 order denying BP’s “Motion to Amend Scheduling Order re: BEL Remand and Preliminary Injunction Relating to BEL Claims” with reasons. This order denied BP’s latest attempt to renegotiate the issue of causation for BP claims. BP agreed to and approved the rules concerning causation and confirmed that approval in later hearings before Barbier and the 5th Circuit. Now, BP has asked the court to enjoin the Claims Administrator and the Settlement Program from paying any business claim unless the Claims Administrator has determined an “actual causal connection” between a claimant’s loss and the oil spill.

As a practical matter and in response to BP, Barbier explained that “in the context of a class-wide settlement program, involving claims by tens of thousands of claimants, it would be infeasible to expect or require every claimant to prove actual or factual causation. . . “Doing so would require thousands of individual trials of causation, defeating the whole purpose and intent of a class settlement.”

Barbier pointed out that “BP was a party to the settlement, helped to draft the Settlement Agreement, did not object to or appeal either class certification or approval of the settlement, and in fact strenuously advocated for approval of the settlement. Notably, the Settlement Agreement itself requires the parties to the Agreement, including BP, to “support the final approval and implementation of this Agreement and defend it against objections, appeal or collateral attack.” [Settlement Agreement § 17.1, p.81, Rec. Doc. 6430-1] Nonetheless, BP has made written and oral arguments against its own Settlement Agreement.”

If there is any question that BP has completely changed its position in an effort to subvert the agreement one need only recall the Final Fairness Hearing on November 8, 2012, where Richard Godfrey, the lead attorney and negotiator for BP, in advocating for the approval of the settlement, made the following comments regarding the causation requirements:

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.

Clearly growing tired of BP’s newest antics, the court stated that “[BP’s] actions are deeply disappointing, especially considering that the Court has previously appreciated and complimented the excellent cooperation and professionalism exhibited by all counsel in this extremely complex and difficult litigation. In any event, the undersigned is certain that causation is not an issue before this Court, and will not consider any pleadings requesting that it be made a subject of re-evaluation.” Barbier continues, “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.”