WWL>Topics>>5-21-14 2:10pm Angela: on the BP lawsuit

5-21-14 2:10pm Angela: on the BP lawsuit

May 21, 2014|

Angela gets an update on the BP lawsuit from lead plaintiff attorney Steve Herman and Doug Sunseri, host of WWL's All Things Legal.

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Automatically Generated Transcript (may not be 100% accurate)

Well BP says it will seek Supreme Court review. Of the fifth circuit court's decision. Not to rehear the company's appeal. As to how claims are paid as part of the multi billion dollar settlement agreement. Earlier this week the appeals court decision was hailed as a major step by the court appointed claims administrator. Patrick June. Some had hoped that the claims would soon resume being paid but the appeal likely delays that for now. We have a tremendous amount to talk about this is a very. Major case -- we were just talking David life without question. But it's confusing I think to the average person in it so meaningful to so many in our area. So we have the experts here. To talk about the next step we're thrilled to have Steve -- who was one of the two lead counsels or plaintiffs. Of the law firm Herman Herman and cats. And -- subsidiary of -- sincere law firm. Also host of all things legal and well and I appreciate you being here very Chinese friend thank you. To -- -- started off and let's go way -- what was the original ruling. That BP was appeal the original ruling. Yes well. I think it's important understand that the way that we got to the settlement agreement. Was that BP started with Ken Feinberg and the Gulf Coast claims facility. And that was kind of a unilateral. Programs they paid what they wanted to pay the median pay with they didn't wanna pay. There weren't really any rules some people were happy with its -- people were disappointed with -- on but when we set down to with BP. It was absolutely unequivocal. That we weren't gonna negotiate with them or entry into any other any agreement that wasn't transparent. And objective. So what we insisted on and what BP was happy to do because I think they wanted this to. Bomb was to have objective criteria that everybody knew about on the front and so that you could read the settlement agreement and find out whether you going to be entitled any money and if so how much. And that was all going to be done by objective test depending on what industry ran. We drug free was. What you revenue once. And so. Everybody agreed to that it was clear that. That's how was gonna work it was going to be black box or star chamber type things where. You know people get treated differently everybody was going to be treated the same under objective one analyst. Originally. BP. Complained because. They had a problem without cost were being counted. And they said well the claims program really isn't moving cost around the way that they're supposed to be. And we disagreed with that but. In the grand scheme of things that's kind of a small issue -- in just a quick example of that. -- -- layman here yes sure mom you know if if a restaurant bought. It's crabs in January but sold them in March. BP say you should move the cost from -- the crabs from January over in March. Instead of looking at the march cost. On so they wanted to kind of move cost around to look at the costs that were associated with the revenue -- gets complicated. On whereas. What we think was originally agreed to was and the way the prisoners there was originally doing was kind of cash and cash out so. At least for businesses that kept the cash business so you wouldn't really you would really try to to associate certain costs of certain revenue just look at the month of march. Cost of what they are revenue what they are compared active. What happened before the spill and what happened after. On BP didn't when it's kinda average out the cost move round. Okay. But well that brings and I thought of before we get into what happened today in what happened earlier in the week with the appeal. Was it that that's a good example let's say. Business day would showed their tax return for prior to the storm until that spill and then. The year after or was two years after was of certain length of time to show yes were down 8% or 12%. There were various different test. But but the general the general way that it was set up was called the V test -- and the -- test is that. You compare what happened in during the benchmark years which -- 2007 to 2009. Then you create a benchmark in and you compare that to what happened the year of the -- 2010. So you would see that -- movie and then you wanna see it go back up in 2011. On the other side of BC really comparing benchmark to 2010 to 2011. And if there was a V. And the percentages were big enough. It was presumed. More determined to approve and or whatever word when he news. That those losses were caused by the spill that was the the cornerstone of the agreement and and the further away the you've got from the shore the deeper the V was so the bigger loss yet to show -- the big recovery had she'll. And that was to help. You know get a good condition that if you were further away and you weren't in the seafood business -- tourism business. BP wanted to make sure that this as a business caused by the spill also may be neat to have a 12% loss instead of only an 8% wants I don't know the exact numbers are pretty it's a deeper V. What happens if it didn't come back the next year and what if it was over a couple of years. There were other ways that you can try to show the loss was caused by the spill. Bomb. There's something called customer mix test there's a decline only pat but there are other ways. Again using objective formula and objective criteria that a company. Could try to showed its losses were caused by this. Okay let me backtrack again not to confuse everybody but I did read that when mr. Feinberg -- -- the average these individuals coming up. This was not a class action suit chorus of individual. Coming up saying this is my problem and they were getting roughly 25000. That was an average and then when they brought in mr. Vaughn. Went significantly. Well I don't really know if that's correct on. I don't know what the average was for Feinberg. What I think the 25000 dollar number refers to it is. Mr. Feinberg in the GC CF offered what was called the quick pay. And what they said is. In no. -- day. If you're -- business. Would just give you 25000 dollars in return for a full release no questions asked we don't care. When you have a big claim bag claim bid documents bad documents if you got an emergency payment. Where interim payment. And you'll sign a full release would give it 45000 dollars no questions asked -- -- out of our line to figure out of our lives -- the for individuals. The business I think the business payoff there right was 25000 -- now in individuals was but now. OK then there is the class action suit which you and mr. Breuer in charge right. And that then is presented to. Mr. bond and BP. Well. Even mr. Gina Gina while -- on hello -- no com no the way that they came about was really. On. We we kinda had two factions going on at once were doing battle with them in the courtroom. Getting ready for trial and taking 300 depositions but at the same time we also had another group that was trying to make peace with them. On and right on the eve of trial. Had nothing to do with mr. -- he wasn't even involved. And the court was involved a judge she should help a little bit -- get over some hurdles the judge Barbie was involved but in any event the parties came together and the settlement agreement is a contract just like any other contract. We -- negotiators on our side -- negotiators on their side and we came to a settlement agreement. Just on Iran that we brought that to the court. And there was a whole process for the court to say OK that's fair reasonable and adequate. And at the same time we had to decide and the court had to approve OK who's -- administer. And both BP and class counsel -- wanted mr. geno was unanimous choice and judge Barbie was very happy with estrogen nominees get a lot of experience. On BP is kind of unfairly tried to make him sound like. You know this this little -- from Lafayette. And they also said it was the plaintiffs' attorneys -- he's he was ahead of the defense attorneys. You know organization here in Louisiana. And he's been all over the country doing some of the biggest. Cases he did go on the Toyota case out in California which with hundreds of thousands of claimants he did all I can't remember were. What are the -- -- him but he did like keys in Chicago. So he's been appointed by judges. All over the country to be a special master. On he's got this expertise in BP was very happy with them and so were we and so was court. But he didn't have anything to do with writing the agreement's signing the agreement executing agreement it was brought to him by us in BP. So the court agrees on your settlement. After a very long process. And this is a little bit significant on. In order for the court to approve a class action settlement it has to be based on not on evidence that the that the class a Waltz is that the settlement is fair reasonable and adequate. For the members of the class. And so. Horns of evidence. Was submitted to the court over an eight month period by awesome by did BP. And BP had. I don't know twenty experts that BP hired. That submitted affidavits under oath that said this is how the settlement works. We think it's fair we think he complies with the law we think it complies with class action -- we think it's constitutional. On. All of the things that BP's lawyers are now complaining about. It's not only its own borders but its own experts and an entire record of evidence. That was put in. To the record by BP over the course of the months. On in -- contradicts what they're saying now. OK on that note we're gonna take a break we're gonna come back and that's horrible pick it up so then they went to the fifth circuit. Will pick it up -- -- stay with it. Well we're talking about the BP settlement and it's morphing all the time earlier this week the fifth Circuit Court said that was not going to listen to BP's appeal. And yet today. BP has said it's going to go to the Supreme Court so the battle continues and with us is Steve Herman who was. One of the co leaders of the plaintiffs and -- dogs and serie. And I I truly appreciate you being here and I appreciate the explanation. Very clear how we got to this point where this week. It was in the fifth Circuit Court the fifth circuit ruled. Ruled in favor of the plaintiffs core and essence said to BP. We're not gonna listen to. Correct now today what happens. While there's really two things going on right now mom. In Florida -- that this circuit are students in the Supreme Court. BP is going to be arguing. That. I don't over complicate things but but they're basically trying to say that. In addition to all of the carefully negotiated objective frameworks. That we agreed to in that we worked on for however many months. And it we supported numerous statements expert reports -- you know etc. filings. There are some other mysterious. Causation requirement. That nobody ever discussed nobody ever agreed to that BP in probably when he briefs is never tried to define. On that a second causation parole. And on less than Supreme Court imposes that causation hurdle that nobody knows really what it is it will be discussed or agreed to. Then the whole settlement should be blown up on so so that's one thing that's one -- -- -- what is -- about that. Why I think. With -- tried to use and another lawyer proof there was never cop played art in dollars to collect. After we talked about it before it would BP's really saying. In the appeal is that there. That the administrator has failed to misinterpret the terms and conditions that the cockpit. And so basically what they're saying is don't look at what we've agreed to. Let's for equity purposes. -- from -- you know from a constitutional basis changes up -- at this extra layer. Approved that everyone has to jump through in order to be considered for payment. And and that's an essence what's happening. And one thing that I think is is frustrating. For people that have been following this calm people have claims been waiting for money etc. On the kind of in the trenches. On I understand courts. You know things come to the court a little bit differently. So that they're kind of playing by by what's brought to them and in their interest in different issues and looking constitutional things like that. But for the parties you've got a company here BP. And you know they did disagreement. Purely objective criteria. The -- formula that we talked about etc. Mom. They have several opportunities. To to clarify what would they really intended. All the image of their expert submitted declarations under oath. But then also the claims administrator came to them and said are you sure that this is the way that things work he like for example -- I think this is the right example but it's like this it's not. -- a CPA firm -- several CPAs one of them get sick so the revenue goes down. The -- gets better so the revenue goes back ups of any past the V -- but arguably some or all of those damages. Are not caused by the spill. Are we supposed to look at that what BP intent in BP said clearly twice through their lawyers at that time. We intended to have purely objective formulas he passed the -- test it's caused by the spill you deal. You don't recover no matter what your cleanest and we understand there's gonna be false positives that we assume this false positives than they went back and submitted. Additional filings that that they went in front of judge Barbie in open court in said that. So. Now they're back in a while yet at and in fact even when they went to the fifth circuit. All they were asked are you here complaining about causation. And they said no we haven't appealed that on as I mentioned what they wrote -- Originally appealed and so are the original appeal was just the cost issue was an accounting issue -- cost around. Problem is is that in this where the confusion began. Their appeal was very narrow it was an accounting issue about how cost were allocated. However. This started running these ads in New York Times and the Wall Street Journal the Washington Post test big time talking about allegedly quoted quote fraudulent claims of fictitious claims and claims and did have causation. Even though all of these people had proven causation by the objective standards that BP agreed would establish causation. Sort of -- went up to the fifth circuit one of the judges said. And I really don't understand BP lawyer. On you you're talking about this accounting stuff but I'm reading in the Wall Street Journal that you're talking about. You know this causation issue would these fictitious claims. Want to whining complaining about that why are we talking about that. And he said at that time he said well that's just part of the bargain. That's part of the consideration we're not complaining about that we agreed to that that's not part of -- appeal. However that's able lawyer told sixty minutes last week in his point to tell the Supreme Court next week. The exact opposite of what he told the circuit a year ago on and so. Think that's where everybody gets very very confused. You're saying there's a whole trail -- this is what BP agreed to. What specifically asked and agreed to and are taken full page -- New York Times and Wall Street Journal -- These people are trying to manipulate. Exactly and the other saying we -- degree to which isn't. Really true have we have records to show yeah I agree well absolutely and and and they're at an -- to make it worse. They're making a scapegoat of -- June -- Who did exactly what they asked him to do he interpreted the settlement agreement exactly the way V8 told him to interpret it. And then they turned around and said oh he's terrible and and he's doing a bad job and he's -- image is just is completely unfair and outrageous. On and just doesn't. Doesn't comport with the record at all we're gonna have to take a break go to the news but while we come back we're gonna talk about what does this mean for somebody who has. -- -- Well we're talking with attorneys. Steve Herman and dogs and -- about the BP oil spill the whole picture of it and what's happened in the last. 24 hours -- not to earlier this week but the appeal court that yesterday and today what's happening. With BP announcing when the Supreme Court. Learned a lot in this conversation and I am just curious stepped in -- on why you think. BP has reversed itself. Well I I think BP's wanting. Walk on both hot streak at the same time or you know didn't cake in the first thing anyone do it like 121 or on the eve of probably Steve. That they realize. That if we get. All the claims processed in warehouse in marshaled in one proceeding. That would save BP a lot of money. Because instead of having 200000 separate cases you know you'd -- cases -- point 47 years on this. And fees lets get it in one proceeding where it's more manageable. In will agree to these terms and they knew that these terms or -- -- -- that. But now once they got it in the form. To make it more economical for them they start shaving off some of the terms and conditions of the -- -- make it more careful from now and just wants anyone walk -- boasts the saints straight they want. They want first -- to have it in the I guess process that's most inexpensive but now and then after that they had to give up something had to negotiate it away certain items with Steve's group. And then after that you that they wanna start shape at all and so I think is that is that legal to just. Start shaving things off -- well -- just going forward I think the fifth circuit is spoken. On that -- and so that they've they've given their thoughts but I think from from their perspective. Here's -- You know let's let's let's navigate this in a way where let's let's let's get it in the most inexpensive. Darkest form then once we get it there let's figure out how to show able war -- more this element in one of the things they don't talk about was the subjective criteria. An eight they were on sixty -- that I'm gonna say whining and crying and has probably not terms I'm using. They don't show all the businesses there were excluded from the settlement. That probably war affected by BP but because they were wanna upward trajectory. At the time of the spill they didn't qualify. So you had businesses who could have been increasing. -- decrease rate because the spill and they were prospering but not prospering as fast as if they didn't. Didn't have to spill there were excluded. So so I mean that's one of the things that on BP obviously -- they take you know they -- the user advertisement to use their media machine data. But you know they used I'm having seen that sixty minute -- having seen the full page ads in the various national newspapers. They were taken him out here locally they were slamming. This area. To the whole United States saying these people are trying to scam cost and that was the inference. But the sixty minutes -- to me was very blatant and an a couple of things stood down if you all want to refer to them. Is that they were saying that there's an RV park went into foreclosure before the spill in yet they want money. The wireless store that burned down before that and they want money. And and I heard you had a very good explanation of those two I'm curious why didn't make it on sixty minutes. Well. It's kind of hard for us. Investigate as we don't really know what claims are talking about will we do our best as far as I can tell RV park claim that they're talking about. Was claimed it was submitted by an entire business. That ran a lot of different. Subdivisions so the speaker facilities. And so may be one of or V parks that they were wanting closed down. But they -- A much bigger part of their business. And under the settlement you're allowed to file -- consolidated claim for your entire business. Even if irrespective of the different. Facilities that you and I believe that what they're talking about the entire business at a loss. And then they had a recovery. On May be the closing though RV park factored into that but the spill probably factored into that pretty heavily to. And so by just kind of cherry picking the facts and only focusing on one part of their business instead of the claim as a whole. They're making it sound ridiculous when in fact it's the exact type of thing that the agreed to pay. -- I don't know about this fire I know that that there was there's one fired that there were complaining about. But what they didn't tell anyone was that the claims administrator factored in the business interruption insurance that the company guy. So they were only comparing. Comparing the fire Los they were comparing the downward apart from the spill to a opera to directory and they were fact there were giving. On BP. The benefit of the insurance proceeds so that did come out that most egregious story as far as I can tell as the guy I was Jeff morale was talking about. Home. So I was it's it's a GM dealership. Knows -- Pontiac dealership. And in the they wouldn't let him sell products in war but what he didn't say is yeah they switched it over in 20092 Buick dealership. So they have losses from this bill and the losses were in the form of lost buicks instead of -- -- but it's still lost from the spill. And so by by cherry picking the claims and cherry picking only certain pieces of the claims. They're trying to make the you know these cases seen. Ridiculous when they're really not. But the bottom line is. Even if there are a few points here and and -- two -- 60000 points so there's probably going to be a few claims that. You know if you looked at and around the campfire. You'd say it was probably wasn't caused by the spill. But that's that they agreed to pay explicitly said we know we're gonna have false positives now they don't wanna pay for the false positives that they agreed to. And everybody agree BP agreed and the plaintiffs agreed. That in the grand scheme of things it was much better to have an objective formula and objective -- test. Did people sitting around -- campfire. Because if people were sitting around -- campfire. Then he'd be going on sixty minutes of people would be complaining about different claims where. I did the people sitting around -- campfire failed to see that we Abbas has caused the spill but meanwhile were four years out of the spill right and lot of people have been pay so now it's gonna go before the review of the Supreme Court and what will happen with that. Well I mean I'm I'm I'm hopeful that the Supreme Court will deny. BP's petition is that I think there is a chance that. The quarter might stay at stayed claims for another few months while they look at it. But they shouldn't do that but I think they might. At the end of the day you know I'm obviously biased and subjective but I think BP has a weak case because in particular it's been court. Because it really got to appeals that the the circuit in one appealed and won. They wanted to class settlement they argued for the class settlement they they got a judgment. They didn't appeal they would what's called apple -- And the judgment got a firm so they get a class settlement exactly what they wanted they won. Now they're in the position of having one. Going to the Supreme Court and saying. We want you to reverse our wind. Because right now we'd rather lose and that's that's that's something that stream court each you know would I would think would look a little suspiciously on. The other thing that they're complaining about the other appeal is really just the contract it's a settlement agreement between us in BP. There's no other contract like it they're never will be another contract like it. It has no it is Supreme Court. Has very few cases that they look at what they're trying to do was decide broad policy issues that are gonna affect thousands of other cases. They almost never they may have never ever in the history has been court take -- Contra case because. It won't affect any other cases it's too individualized with a ticker constitutional cases and statutory cases where they say. If we decide this case will be helping -- out for years to come. So I would hope. That BP would have a very. Stiff road on both on both of their applications like you know -- -- strange things have happened in this case and and you know it's not over until it's over. So stay with us we'll be right back. We are back talking with them are determined and dunks and -- both lawyers both involved with the BP on. With BP and the and the fight for the people who or filing claims and again we talked about the whole process we talked about. That the appeal was made it was been denied at at this circuit now at BP announced today it's gonna go to the Supreme Court. So let's say let's -- a couple quick hypothetical let's say the Supreme Court rules in favor of BP do we have to start over again. I don't. It would really knows because it is all. Depends on how the court was a decision and BP has never really lead its cards on the table. All of once and it's it's really kind of weird Obama in the way these things have been written is that the judges that were in BP's favor. What they see is the line were claims were absolutely no evidence of causation had to be submitted. Those claims are the claims in what we called Sony which is right on the water or in terrorist locations. There either tourism claims of -- claims. And BP agreed that if you're either right on the water tourism receive food but just get a presume that you have -- discussed this bill. The claims that BP's. Complaining about or not those claims BP is not complaining about zone eight tourism and -- punishment that the claims of BP's complaining about our. Claims by people in Baton Rouge. You know that if proven their cases that have passed the V test. On so arguably you could have that this is really really we year to result where BP could win. And on. Tourism zone in seafood claimants will still win. -- -- the ones that would have to go back improved cause it. Whereas all the claims that DP is complaining about for businesses and to grow in that reduced in Montgomery Alabama. Who've already proven causation. They're claims might be unaffected it would be you know but it's just another weird potential outcome I mean hopefully that's not gonna happen on. You know I'm cautiously optimistic that that's not gonna happen I just I'm still thinking about the guy who owns a grocery store at the moment on something. And they've been waiting all this time. And now they're just gonna have to wait more yeah how many can hold -- Well. I mean that's a good question I mean we hear that time and time again and unfortunately again. It's it's a lot of the people that are the most injured and the most clearly injured by the spill. That are the most prejudice and it's just another. All of weird and unfair and frustrating twist. In what BP is done here mom. You know they're they're hurting the people that that deserve at least a bomb and you know I'm sure that BP would love to to go back to the drawing board starting gambit. Image of wonder if the chairman of the board of BP didn't say to their team clearly a team of -- what we talking about and agree to that. I think they were taken to the woodshed for sure and and that our college settlers remorse. They made a deal and it remorse about it and now they're trying to. I guess that exact their remorse by shaving off key portions of the deal and the other thing too is. When you have always delays. Naturally. Claims -- falloff. As far as you know especially via the recalculate. That a lot of lot of business that's when -- recalculate that we can't we still don't have the documentation we don't have the information. In the past you know what we're not gonna do it part of the delay is things happen when you. When you delay things and in especially in litigation you know things pop up and so I think that's part of that strategy is this team and yes. For those who make it through. Will they get paid interest on this time lag of some think they've already been told you gonna get X amount noon announcement is that another year it's now now now. Now the fact. In fact we do have some people who right before the stake. Signed the documents saying here -- gonna send -- -- 600000. Dollars. And then state came and in the -- is literally sitting on the table the administrators that they can't be sent. In the end and in a lot of people on that position. Just frustrate frustrating from. Certainly your point of -- who have battled the intricacies of all of this but also frustrating for the general citizenry to think this is another game in court. And it's not resulting anything. Yeah I mean it's it and here's what's area that. He -- disappointing is that the court. Worked extremely hard. And the parties even in BP worked extremely hard to prevent this from being in other Exxon Valdez. And the core. Pushed everyone we did it you know a lot of work in in very small time period thousands of depositions and all kinds of things and what to trial very early. And getting the settlement. To try to. Bring this to a close and we were very proud of it and the court was proud of that and BP they're attorneys -- time we're proud of it. And -- now all of that has been tainted in soiled and it's it's it's it's it's really a shame that should be a shining example. Of the legal system at its best when we signed this deal in April of of 2012 that's what it was. And frankly I'm still proud of it and I think that's what it is today. But unfortunately because of BP scapegoating criticizing and bullying. They've just tarnished. I can't thank you well enough Steve Herman and dunks and -- you really it beautifully explained what's going on and done. Will we think about two in the days ahead we'll stay in touch with you as things develop but thank you so much everyone stay with this we'll be right back thank. Again I -- think that Steve Herman and ducks in serie talking about BP it's so complicated yet. It just such a big thing that's happening in our area and keeps changing we got to keep our eyes on it. I hope you'll say with this for the next job market we're gonna do a -- ship we're going to be talking about who exactly is moving to the metro area. We're gonna find out stay with this now let's go to the news.