Dec 9, 2013|
: BP oil claim payments have been stopped by a ruling from the federal courts. The reason: claims being made and paid that were unrelated to the BP oil spill. But, what about those businesses that were directly impacted? Why should they suffer more? Blaine LeCesne, Loyola Law Professor joined us at 11am.
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Automatically Generated Transcript (may not be 100% accurate)
Would you think the -- issue over the BP oil spill is going on and on and on that seemed like -- my goal encore quite a bit longer because. Everything our ridge or just a federal appeals court has intervened in the clinging settlement to a section. And basically. Everything is Kumble not not much in the way of money being paid out on the -- itself. Utterance in a very easily from the complicated situation we have probably listen. A loyal law protesters given some of the news. Valuable time to help explain to me professor book in the -- appreciated call. So give us an idea of what's happened. Well in order to understand what the fifth circuit. -- did in its recent rulings. It's important understand how this settlement came about it and what it was intense intended to accomplish. Generally speaking under the oil pollution act in any business in this is anywhere in the United States second show. That they suffered an economic loss as a result of the spill. Is Steve radically entitled to recover. In the lawsuit against. Person responsible for that -- That's -- said and done and and obviously it is. Many businesses that might not be it would show that actual causation. Between the still in there and it damages. However theoretically at least tens of thousands if not hundreds of thousands of businesses. What has filed suit and indeed many -- file suit against -- Seeking to recover those economic plus damages so BP rather than face the unknown. Liability. Outside Chia. You know massive. A radio lawsuits. Engaged in the settlement with the plaintiffs. Steering committee that was representing no class action plaintiffs. And they entered into. A settlement agreement. Whereby. Businesses that could lead a certain eligibility. Formula. Would be entitled to recover. In these losses -- pursuant to that formula regardless of whether it was actually caused by the -- Under the formula and try not to get too technical and simplify that greatly but. Under the -- the -- that would have to show that they made a certain level of process prior to the spill and then that those profits decline. During the period of the spill which is -- the second half of 2010. And then they have to show in 2011 a year after the spill their profits went back out. And that they could -- that formulaic. Framework. That it created a presumption. That the loss was caused by the -- The actual causation. But. A presumption Billy would determine whether a losses actually Collison -- -- case tried before a judge or jury. And that's what BP was seeking to avoid the rather than the protracted. Expensive litigation with. Unlimited liability exposure. They have their shareholders want it two bring some closure to that element I don't care liability. So. Very very talented lawyers engaged in so negotiations over at nine Clinton. Nine month period he was -- -- negotiation both sides were very typically represented. It resulted in the 1000 page contract essentially in agreement settings with the eligibility formula. And the BP. As well as the plaintiffs' steering committee went to judge -- PA petition cloture to oversee the case. And asked him to approve the settlement. Which -- did I have to determine that was a fair and reasonable settlement. Two resolve those Koreans. Well after the plane started to be processed. And the bills started growing it for BP it occurred to them that they can vastly under estimated the cost of this settlement to that. They have preliminarily. Put the cost to them at approximately seven point eight billion. And based upon the number of business economic consequences will be paid. It looked like it was going to come in significantly higher than that perhaps several buildings higher -- that. So BP. Went to the claims administrator. As well as the district court. And ask for me. Reconfiguration. Of the settlement by. Certain interpretations. Outcomes that they were seeking. In order to address those anomalous claims that even though they meet the eligibility formula under the settlement. Clearly. Where losses that had nothing to do this bill. And they've pointed to those kinds of false positive is that the formula which generally. And indicative of the claims administrator misinterpreting the loops -- judge -- a flat out rejected that argument saying you people place. You've you've agreed to -- you came to me and you saw. Approval from my court and you know honestly and vigorously advocated for implementation of the settlement. Moreover you do that these kinds of false positives of these sort of an analyst results were possible under the framework. In fact. Some of those hypothetical. -- -- -- were put to use that you actually. Not the outstanding doesn't -- we want the settlement approved because it's the only way. That weekend. Bring this matter to some sort of closure. Well. Since sport being rejected that that that argument. BP. Went to the fifth circuit and essentially made the same argument claiming that. When they make two orchestration except that. The revenues and expenses. Of these claimants need to be matched that is. You need to determine when the revenue was actually burned and win the expenses associated with an -- of revenue were actually incur. To get a clear picture of whether they meet the eligibility back complex are comparing the same months before the spill during the -- and after the -- They also. Who argue that certain distances like. Construction firms and agricultural burns and so law firms and accounting firms that experience it again the huge spike in income. Should -- be excluded. From the settlement. All are back in -- should be smooth vehicle or a twelve month period or some other periods to more. Accurately reflect what those when those burdens for our. -- or actually care. Well the fifth circuit and its first ruling gave BP wouldn't I thought it was a fairly narrow victory in and actually made. A certain sense although the settlement was cleared by its terms. That no alteration. The methodology. What is needed and indeed the parties agreed to -- -- -- -- balanced offense circuits and it. Didn't claims anticipated have to be subpoenaed on and who. Basis methodology of accounting -- -- get too technical but you have to understand different crew and cash basis that. The -- basis is -- entries made in accordance to win income. Is earned and when an expensive actually generated. As opposed to the attention after the which is just an arbitrary intrigue that is made an occasion can't show basis. So the bookkeeper you -- -- books the income when they deposit the check for example as opposed to win back check was actually -- And of course BP was arguing that that skews the results and it needs some businesses eligible just by the arbitrary entry of those kids. Basis entries so the courtship. All claims have to be a crew -- Pit crew based methodology means that income in the revenue is inherently matched. And it's all that they qualify under the accrual basis they should qualify for payment under the settlement. And so all cash these planes have to be that -- converted to a new crew based methodology. And and that as a fit that makes a certain amount of sense although BP didn't specify in the event in the contract in the settlement agreement. It's a fairly reasonable modification of the of the agreement. But the court expressly rejected BP's second argument that certain industries that have these huge spikes in the income should be excluded from the settlement. Professor bear with me we'll explain this to their audience of we've done -- -- shows on the BP oil spill. Even prior to the lawsuits. And and -- agreements from Libya according to administrator. And never again read the full page add New York Times Wall Street Journal Forbes that BP was running saying. Look at these ridiculous critical were being ripped off part shareholders people -- have invested in our company. Read a couple of exposes. In the guardian saying virtually the same thing. But preparing for the showing readings from the news releases or good news stories. Toward a couple of terrorism -- into the audience -- -- -- bear with me. -- -- claimed administrator country -- Presumed to be people with some sooner or. And reports of claimants might be paid for losses that have nothing to do with -- bill and BP agree. They've been worn out in 2012 funerals office. Laid out a hypothetical -- them which losses stemming from other factors. Would be presumed. To have call have been calls one to spill. The BP's managing attorney. Responded that such faults -- as positive or inevitable. Two weeks later. The administrator. Clinton administrator came back. In city issued is payment policies under the settlement and again warned BP did report form -- analysis. Of alternative clauses of economic waltzes. BP said that was -- and in a month later a US district court judge approved the settlement. I am I was under the impression that it has signed contract you can go legal agreement. That prevail. -- we've got the 15 circuit. Coming back doing and saying no that that doesn't -- hold the hope -- like that computes. Well you should be confused because the decision frankly makes no sense -- disregards. Fundamental principles of contract interpretation mean as you put it we we have a contract here. The terms of the contract were not only clear from the on ambiguous. But BP was actually be aware of and consented to that false positives. That a settlement is generating what state now complaining. So the problem with BP's argument unfortunately gotten its a critical moment and and -- jeopardized the entirety of the settlement. Is that they simply agree to it in the contract in the contract in the court really. He is. Running follow. Basic contract law when it when it decides to rewrite the agreement for the party. So -- Aren't you hitting a lot about these false positives and it's part of very effective. Our public relations campaign. By putting these false positives in full page and -- in the world street journal and other major newspapers. Suggesting that. The majority of claimants. Consistent of individuals or businesses that. Or collecting even though they suffered no loss directly traceable to the scale. The problem what's sad is that that's a relatively the false positives to which you know pulling. Or relatively small number. Tens of thousands of legitimate claims that are being paid. Pursuant to the formula and even those false confidence or legitimate claims because BP agreed to it. BP agreed to the possibility. Of those planes being paid and knew full well that that was -- realistic possible outcomes and indeed it was unavoidable he could not come up with a metric. A formula. Two. Compensate. For those of thousands of businesses from Galveston Texas all the way to Panama City, Florida and not -- regenerate. A handful of a relative handful. A false positives but you also did not hear BP talking about the files like it is that this formula generates the -- many businesses who just out of luck. Who may have actually suffered significant losses but because of the -- their financial records were kept. Simply don't need the mathematical formula. But we kidnapping of those false negatives. That are being generated. So it has a lot of this information. And the public relations. Campaign. That has been very effective in and creating. The Specter of impropriety associated with the settlements. When it is anything but. All right let's take a break the news here can you won't stay -- me a bit longer. -- combat would treat jurists and it's it's been very a legal and your attempt by BP that's been very effective. Is it effective. In in affecting judges is that depicted. In in. And and swing o.s that that -- have the power to change this. And if so how well professor Lewis and Zetterberg out from simple points right. A brawl that was. -- after the oil spill lawsuits because the of the claims administrator -- -- literally went to BP. In civil there's going to be some scenarios in this contractors get read his son and with a claimants might be paid for losses that had nothing to do with the spill. And BP agreed in the went back again in 2012. And seven -- and in the agreed. And I think given the third time that went back and said. Don't forget this could occur BP managing director direct quote. Well not direct quote from the news. Responded that such false positive or inevitable now we passport 2013. The Circuit Court. Comes in and said they support BP's position for a continued violation of the settlement agreement. Is a decision like this brought on by. Repeal or in the news -- Well here in a perfect world it should -- And no one can say whether it did in this case. But there is a reason that BP spent hundreds of millions. Trying to shape the public perceptions. -- impropriety. Occurring within the settlement and judges. Or human beings they have access the same information we don't do. We'd like to think that those kinds of extra -- do you bits of information do not influence their decision. But it also would be somewhat naive to think says judges in rendering decisions. Shed all of their ideological orientation -- much of which is shaped by publicly available information. So. It went I mean here you've been and tell me words there's. We have -- in my hypothetical. You and I go into a legal agreement. You warn me two or three times this is the way this things can turn out human -- -- liked his future won't agree. And I agree aren't and it's legal it's been checked by your attorneys and -- And then I decided -- -- A general court. There's going to be no pure or those can be very little media attention I have serious doubts. That that as any chance at all being overturned. But now the fifth circuit. A year after the agreement and after all this. Comes on and says this creates serious constitutional. Problems what constitutional. -- While the court really didn't specify. What constitutional problems it's it's on this season. I don't think I hear and I gotta tell you. Our -- has the question should we trust our legal system. Well. The big danger it would what the fifth circuit did -- that it was seriously undermine future efforts to settle its class actions because if is it is the -- that attorneys that represent the parties cannot rely upon. The agreement. That has been vetted and approved by court. Because one of the parties decides that it's too costly. Then they're going to be reluctant to enter into any agreement at the outset. The you know that this whole. Episode was generated by under valuing. The cost of the settlement from BP's perspective and they do everything. -- trying to disrupt the payment process between pursuant to the settlement. By bringing everything to a halt with the legal challenges. By appealing within the settlement process. And we -- award that was made whether it was legitimate or not indeed these guys whether it was clearly entitled to compensation or not. The appeal -- an effort to slow it down. And bring the process to a halt until the fifth circuit could rule. So obviously they put great stock in the prospect of the fifth circuit doing what was unthinkable to all legal observers. Following this case. And that used to. Essentially we liked. The -- agreement to which support these consent. And I mean I think you've accurately portrayed what is going on here why it happened -- -- -- surrogate -- -- that question. -- that it is problematic on multiple levels because you. You have thousands of claims business economical planes that were paid. Pursuant to the formula -- and then you have. Tens of thousands that are stuck in this process and then you have all of the attorneys that undertook the representation of these claimants. Based upon certain sort of assumptions and those attorneys are working on contingency fee arrangement. And have extended term. And expenses depression those claims not to have sufficient to say wait a minute. The clear on them that you which rules of the settlement may not apply. And that is going to generate. Massive unfairness. If indeed the fifth circuit's position. Results in me the re interpretation of the rules of the senate. And and a group Vector Group the question we as its its its susceptible to the wall. When we see something an agreement put together by what we are told or the best legal minds on both sides of dependents. And then fifth circuit appeared in court after much. In the way of advertising. Much in the -- radio talk shows in newspapers. And on and on and reverse of that based on constitutionality. That they don't don't know what it is. Should we have citizens trust our system -- we'd look at the system that says of that to Roland. By the power of the. Well it's still probably the best system. -- -- that's like saying there's. I've a got a little cancer in the camping unit. Yes that's right but that trying to devise say -- perfect system whereby. Every decisions. From that system is. It's they -- in just. In the eyes of the person -- that decision is impossible. So we we have to live with what we have been the fact is that there are certain courts stand -- more. Amenable to the interest. The litigants on one side of the -- the other in this case you have -- unfairly conservative court that. Is. You know business friendly or is it is considered to be accord that is. Friendly towards business interest as opposed to. How plaintiff. More here interest and so. You know those those factors may have played -- decisions yet but. It shouldn't but then again decent human being student at best they can that the information they have. And sometimes is it results in. You know decisions that are seemingly. Out of sync with what the law required. Annoyance Hulu a lot of your time we've got a couple calls people wanna ask you question to inlets government or any. This should marry your own but the professor and show. I'm -- I I completely agree with everything he's saying I think it's almost a travesty of justice that I can say that without. Really but making judge -- looked bad. My real question he is. What is the next step for the -- steering committee is it possible and we go to the Supreme Court next what what's next because. This is an issue need to be dealt with a settlement. Are are ever going to be endangered because. That is the question thank you -- Yeah that's that's an excellent question but the next step is clearly within the control of charge RPA. He's going to -- to some child. Devising new set of rules for interpreting the settlement. Dissatisfied. The fifth -- directive. That claim -- -- the show actual causation. Between the skill and their loss. No doubt that the problem is that conflicts with the prior rulings -- the fifth circuit. And ambiguous is it is judge Clement saying that every claim even if it meets the eligibility criteria have to show. Actual causation. If that's the case you have no settlement because the settlement within degenerated into tens of thousands. From individual trials which is. Exactly the purpose -- the settlements to avoid that case by case determination. I can only hope we should only hope that. She's referring to. Chilling causation within the framework of the settlement. And that can be done. It's very difficult task for transport is that if any judge can do it he is -- that tests with 10-Q is perhaps saying that. You know we couldn't -- -- the formula under the framework which partly BP doesn't have a problem they don't have a problem when it. Eligibility under the under the settlement formula if you -- -- you're entitled to be paid. Assuming that you should -- your claims on the crew based method of accounting. So BP doesn't have a problem with that in BP acknowledges that we not trying to get actual causation and individual claims. But what Barbie can do -- say that. Pursuant to the settlement if the claim is eligible however that there is -- reasonable. Possible explanation. That understand other than -- steel -- that particular launch. They -- going to subjected to a higher level of scrutiny and further evaluation. And perhaps. Put the onus on the -- to show that their loss was caused by the -- again -- terribly unfair it is not required under the terms of the settlement. But Barbie may have no choice but to come up with some sort of alternative methodology to satisfy the fifth circuit. Quick question of I'm BP a lot of money. The de Cuba Warner's. And I say OK we went to quote a conservative. Drug ship and by if you are in the news media. I convince them to overturn a legal agreement that commonsensical. Seem very on use you know understand. Or the chances. BP's gonna go back in the and claw back towards it borrowed have been approved. I think that would be virtually impossible for them to do just sort of pragmatic level to and it would be awfully expensive to try to. -- money that was a -- I don't think that's. In their -- when I do think that they may. May try to achieve is. It is -- unraveling the settlement and in its entirety they may have concluded that this was some mistake a costly mistakes that we probably would have been better. Required the plaintiffs to file their individual lawsuits. And it would cost -- last and so seven point eight. It was at the -- period. Professor of funeral and would -- more caller -- -- a good question Brenda your room with a professor. I get out of calling the youth but medical at a -- is that affected by this slow down. We don't know other so that was the seafood settlements individual. Claims it's only the business economic loss claims. That are affected by this -- circuit ruling. Uncle won't final portion proposed for a bit and talk to some people and borders. All the way off the record dead a few words in. Boards a little bit of concern the BP becomes. Takeover target. Because of the the cost assumes he would -- Is there any chance that they get taken over by somebody that it's not liable for this does that work. Well I think the liability would would would flow within with the with the idea. That they they would they would not be able to. (%expletive) that responsibility. Four in the losses associated with this bill. Simply by selling the company to someone else that someone else would have to undertake that liability. If they weren't the target -- takeover. But I I can't -- it's way too early to even start thinking in those terms because. The major components of liability for BP has yet to be decided that the fines and under the Clean Water Act. And the national resource damage assessments both of which could be in the tens of billions. So I I can envision anyone trying to -- for a company that is -- with that level of financial concern. We've got about thirty seconds skill wounded ten what do you think your chances of this -- settlement coming on rabble. And it. It's sort of put a number on it but today. I would I would say there's a 5050 chance unfortunately at this point unless the fifth circuit clarifies. You know it's directive. Propose your very complicated situation very important to news or a lot of the people and individuals. I appreciate you're given it's an entire power of -- of veterans then you have written today. Thank you propose to blameless and little wall protesters. Gibson Tara Howard to discuss in details of that kind of thing that helped us all veterans in the situation.