WWL>Topics>>8-6-14 12:10pm Garland: on BP's court appeals

8-6-14 12:10pm Garland: on BP's court appeals

Aug 6, 2014|

Garland talks with attorney Steven Herman about what could happen if the BP case goes to the Supreme Court.

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Automatically Generated Transcript (may not be 100% accurate)

Welcome back -- says that the top of the last hour. And things good the muted thunderbird well. He has -- well. A lot of times. -- historic. That surge through emotionally or or just. Personally intrusive in. And we played to -- and that means sort of losing interest in something big workers -- move on to the next big thing. Rumsfeld and come back to the law up on what happened or what's happening. That think we just heard there's a lot of things have been happening since goers and build for Q will be. So these moves and upload or two votes -- -- and so -- oil companies. And in the meantime. Still talking about BP. SC reports that says you're -- supreme BP. Is asking you this spring court. Throughout the -- reported large part of that settlement over planes. Wrong you know. Saying that my towards -- maybe not quite as ramps that. Think there's anything that were administering. Him and then illegal way. But we're gonna find out because we'll have Steve Herman with this year who's the lead. -- -- earlier and he -- feel that your brand -- tell -- what the status you can close like. Yeah well there's a very long and complicated. Procedural history but what what you have right now at the end of the day bottom line is. Something it's it's fairly unprecedented. At least everyone's knowledge in in American League history which is a company. That agreed to a settlement and agreed to support the settlement through final appeal. Now going back on its word after prevailing. In the Court of Appeals. And changing their mind and saying to the Supreme Court well you know we supported this before. But now. Because we don't like the numbers. We think its quota according to legal and what you to save us from ourselves and throw it out. And when when you -- They won before what do you make. Well. BP went to the district court and said we made this settlement with the point deaths that the troops -- -- that this is the district court judge bar BA. Who is is entrusted by a panel of seven other federal judges both district an appeal -- around the country it's called and -- panel. And they decide who should we Entrust with what is arguably. The biggest litigation in American history they chose judge Barbie eight. He's done a great job and less than four years he's already basically tried to casing got two huge settlements and you know has done a fabulous job. And they went to judge Barbara Ian said we have a settlement that were proud of and that we were proud of and we want unit to a profit. Just Barbie set I agree it's a great settlement approved it. Then some objectors. Says what we don't like the -- -- one reason other so where can appeal to the fest circuit. In that appeal BP. Was and happily meaning they were still defending the settlement. On somebody else was trying to get thrown out. And then when the numbers started coming in BP kind of change positions in mid course but but at the end of the day BP at the fifth circuit. Theoretically got what it wanted the settlement was approved they whine that they got abroad. Huge class wide release. That releases them from. Hundreds of thousands if not millions of claims throughout the states of Louisiana Mississippi and Alabama a lot of Florida and the self. It's part of Texas so they've got a huge class wide release and other -- record saying you know what. We kind of don't what this release anymore because its customers too much money some change on line -- save us. So do I do understand. They depended. The agreement twice and twice they want. That's correct your agreement is good agreement correct and you're right and we proved correct even when others. And it brought different problems yes okay. What the sign and it said. Well here's the thing before you had our settlement. Which is with a with a committee of lawyers appointed by the court they appointed mr. Feinberg is you probably remember some -- or Tuesday. BP. Went out unilaterally. They claim that the that the White House appointed number of people believe that that's not true BP hard Feinberg is their lawyer to one this. Program called the GCC -- A Gulf Coast claims facility. And you know I'm not here to criticize them they paid at a lot of money pride that a lot of good things but they were criticized and one of the main criticisms was. That it was somewhat -- it seemed it was alleged to be somewhat arbitrary and subjective. That some people get money in others wouldn't. And it was kind of some people it's kind of a black box where you never really knew why claims were getting injured and I. And so when we sat down with BP. As they were presumably unsatisfied with the GCC enough. On and won -- Formal court supervised. Program but by and we said will only gonna negotiate with the is under three conditions whenever we agree to it's got to be transparent. It's got to be objective and it's got to be independent. And so they agreed to that day to my knowledge one at that. And so we had formulas. That were objective and transparent so everybody knew. Whether it ever going to qualify that was to be black box when you mean star chamber and it saved. Years and years potentially thirty years of litigating each individual case to decide who gets what instead we -- was transactional costs. We minimize the risk we minimizing uncertainty. And we minimize transactional costs will be so that's what parties doing litigation every every day. And so. What BP agreed to was an objective for. -- You know. There's certain businesses where if you put thirty people around the campfire and said it was -- loss caused by the spill you might get thirty different answers to a twelve weighed all of that subjectivity in uncertainty. We said look let's do something very simple and BP agreed with that. Maybe BP proposed to remember. We're gonna have basically what's called the -- test and so if you're revenue went down after the spill and then came back up. And there are certain percentages it's the further you get from the coast. And if you're and it's a business it's not terrorism and not seafood you have a higher burden. Dan somebody that's closer to the coast so is by industry by geography. You have a deeper V so to speak. But if we're gonna justice under the settlement if you went down and came back up that was caused by this. That's a BP one that we wanted that we agreed to its objective it's transparent can be done independently. Now. In September of 2002. Settlement being implemented. The claims administrator goes to BP. Says we just want to make sure we've got this right and his news you'll find burglary no one else all June now this is pat you know who was. Pointed. By judge Barbie at the recommendation of both BP and the PSE class counsel BP now complains that. He was somehow thrust upon -- that's that's completely false beat -- loved. You know they should ease ease. Renowned all over the country on he's done the Toyota he's done activist he's he's been involved in major and deals all over the country. On so and he's been a defense lawyer his entire career so so PP's. Unfairly attacking him anyway. Mr. -- comes to BP. And Andy's eyes look let me make sure I've got this right. You go down and come back up and passes the test and losses are caused by the spill when exposed to be covered. And let me it just to make sure let me give you hypothetical hypothetical as we have. It's either CPAs are some physicians and one of them goes out on sick leave and he comes back. So there's no other explanation besides spill doctors out CPAs out of the revenues go down. When he gets well we go back out. Right so that's an alternative. Explanation -- because that is only just because by the doctor once we've right. You want escapade is clean and BP says yes and this is what BP either attorney you can see little star. BP logo. Hold pat you know. Nothing in the settlement agreement provides an offset where the claimants firm's revenue decline. Satisfies the causation past. But extraneous non financial data indicate that the decline was attributable to a fact -- wholly unrelated to this. Such false positives. Are inevitable -- tenth of an objective quantitative. Data -- past. So there's is what they told pat you know that they're now attacking him for doing exactly what they told him to do. Is we won -- objective as we got objective test we have an objective test. Somebody might argue. That there were losses were caused by the spill according to some extraneous. Anecdotal. On explanations subjected explanations but we're going out -- by an objective test. Then BP realize you know what this is gonna cost the slot with eighteen dollars and so maybe -- trying to get out. But what's really interesting this is what they told this because they had an appeal was. PR stunt wasn't listening too closely again take -- I don't know article -- shouldn't. This is everything people should -- bigger break come on ride actually weather's. Governor bill brigades seventy immoral five to -- Are we doing. Follow up to the legalities. Illegalities. Concerning via BP -- -- pews though petitioning the was record. To throw columns to a part of the settlement claims for damage from the oil spill and cells are saying. Businesses that not been informed by this so we're claiming that they have been in the being paid. And they're saying its own terms of their appealing to this record change things from Stephen Herman where this. Who's relieved class attorney and -- forward. Those that have been predicted by bill. Stephen. Again. Back to the -- test. We're basically. BP agrees. -- -- and agreed to -- That the test would be if you're you've got a company in years individual maker in this kind of money goes down and then come back. If you can relate that to BP. While law or correct if you. You know and jewels one of the many stores pulled in and and and they're they're talking about two companies. Sleep with me and it. Means is that. The fire and and auto company and as one is this going to they usually give them talking about it calling. And yes sure there's one business at that point to that had a fire. Well with it'll tell you is that. The claimant actually included. Proceeds from the insurance policy in his losses so they had losses separate and apart from the fire still established losses than they have their other example is. Some RV park. Closed down. On before the spill. But this is a huge company that wants a lot of RV parks and a lot of them didn't close to -- they still losses from the spill on a company wide basis separate and apart from this one individual RV park. Another one that they like to point to this is this is what what -- their spokesman says as their favorite I think it's the worst example is. I can't remember exactly I think it's a Pontiac dealership. That couldn't sell anymore Pontiac because GM. Canceled their Pontiac contract. But what really happened was they switch it over to -- So they can still sell buicks and so they're revenue went down because people were buying buicks after the spill just like it would have been by -- next. So a lot of these lot of these on examples that they use -- really only half the story. Going back to two with the agreed to -- do. That there were probably going to be some week claims that we're going to get paid that's what happens in almost every settlement. And what -- attorney told the fifth circuit. He went to the district that what's before us from court right now. A year ago maybe the longer we were before the circuit and their attorney was asked about this causation issue and he told the court. That this is a settlement and with respect to the causation issue. That is not the issue before the court in that that that wasn't the issue on appeal that's what they're complaining the Supreme Court about. But a year ago they told the circuit wasn't an issue not an -- so -- get away with that hopefully it won't. But then when he says further. The settlement agreement with respect to the causation standard it provided a mechanism. Which allows someone to come through the door to be entitled to approve its actual loss profits it was a compromise. Which every settlement agreement it says there a meeting at BP board those of BP's that's BP's lawyer to the fifth circuit. When asked about this a year ago. Then they turn around to change positions 180 degrees and say well now we feel like who would complain about causation and Howard in but -- importantly about causation even though it would be agreed to. And on. You know we have a lot of just laid out we created a website called the truth about the BP settlement dot com just one word and it has once -- out but the fifth circuit. Judge south wicks -- There is nothing fundamentally on reasonable about what PP excepted but now wishes it had not and he you know further to the point would judge Barbara whose district court judge mentions that. On this is for the decision that he wrote. In November 22 of 2013. And this is what this would judge Barbie says. He's a judge who doesn't trust about his. Panel of federal judges to oversee this this huge litigation. BP acute and re quoting BP accuses the claims administrator of quote -- writing and quotes systematically disregarding the settlement agreement. To the contrary. When it talks about causation if anyone is attempting to rewrite or disregard the on ambiguous terms of the settlement agreement. Is counsel for BP. Frankly. It is surprising. That the same council who represented BP during the settlement negotiations. Participated in drafting the final settlement agreement. And then strenuously. Advocated for approval of the settlement before this court. Now come to this court in the fifth circuit contradict. Everything we have previously done percent on this issue. That's a federal judge talking about BP's change in position. And you know I happen to agree with them on this point but it's just. It's if you win and you looked at all of the different representations that BP made. Two courts the public that their experts say that they put in filings that they put in power points to the claims administrator. It's just a complete 180 and on. I just can't see how they gonna get away with -- Yours you thoughts of an uneducated Lehman -- world moral and we would call -- paper read a lot of people tell me out on an airplane in my wrecked it. When the bullets and do your example of the on again in the Buick. That seemed like we just common sense and taken before a judge all your guaranteed way. Where and when I hear about BP. Agreed why -- and and it ended against other people that says the agreement. They had agreed to was a bad one. Well you're gonna win again -- just common sense and then. Whatever was multi year ago somebody said BP's applying the fifth circuit of suitable. While with the appeal there it's conservative court and I literally -- What do you mean. And these -- that the judges there the there is they're more concerned they lean towards conservative decision. -- -- I don't know -- conservative or liberal -- A code -- and broad broad again on merit and decided. Neutral. He -- and a supportive. So when I listen to what you're saying you know listen to the fifth circuit the recent news reports about one of the judges on the fourth circuit being -- line. With the business in Austria forget it was BP which she obviously belong to the club. What is -- so we're just a look at this is much sound and fury signifying nothing and who the hell knows. Wherever it's going and who the hell -- suitable. Well. You know we don't tell the world what what my image a ball it's. I'm -- -- it won't comment on the judiciary specifically. I would just say that you know -- south quick on the fifth circuit. On who ruled with BP on the -- she was the same one way just read from who ruled against them on the causation issue I think anybody that reads the record. Would come away with the idea that BP clearly agreed to this. The only question is now you mentioned law that's really all the supposed to matter really the law is a relevant to this this is a contract. So the contract is the law between the parties that you -- the first year maybe the first day of law school. The contract is -- between the parties to a BP is doing now. Which I think is somewhat disingenuous but they they may get some headway added it is they're going -- reported they're saying. Well we know we agreed to this or were forgetting about the fact that we agree to this. But what we agreed to was EU legal so you should save us from ourselves. And -- you know the way I look at my wife is it is a criminal court judge here in New Orleans. And you know. It's like you have a defendant in a criminal case. And and the -- pick him up and he goes to the that he admits that he did okay. And then so we -- as the DA in the DA offers in the deal views that are you sure want to steal you understand you're gonna have to go to jail you know have to pay that for the fine person says yeah. I think undertake this deal so then they go for it. That's Obama like -- does what's called organizing are you sure you're giving up your right -- eager to delegate -- that. Well I don't know recommended as one expected a change my mind would have any sympathy for that defendant. But if you BP and you can spend hundreds of millions of dollars in the New York Times ran -- maybe people. Did you whether we're coming right back a bit of yeah. To me at least the fascination. Of radio. If you can't edit you can decide for the audience which issues most interest in. Applause you know quite a bit of time you could have an hour two hours three hours. And we spent about 36 minute talking about for Iowa. To the BP oil -- in all the litigation. And affected BP is -- now petitioning viewers -- court to throw out large parts of the settlement because they claim. The people that we put in charge and they helped put in charge of the whole process or ripping them off by paying people -- that don't deserve it. And I have a book Stephen Herman would be used via lead clamps to turn Leonel of this. So. What happens now I bring you debt to bridges that. Supreme Court insured. Except 7580. Cases. In -- What do you think -- is this even being urged him when we fund. -- You know -- hope that there would be very little chance I think the general percentages to a 3%. On Gibson -- witches. Probably why BP hired -- for whatever reason seems to have a higher percentage. On if you're just going by the law. They should really have no chance on because what the Supreme Court like that statement what I mean what the Supreme Court usually likes to do. Is daylight today since -- only writing on 75 cases a year they want those cases to account. And so they usually take broad constitutional issues were federal statutes. So that they can give broad policy statements that the lower courts can -- implement. Would they almost never take. So are on our contracts because contracts are unique there's never going to be another 11100 page contract looks like. The BP settlement agreement. So their decision really only has affected one case it'll never affect any other case so by that logic. You know it should be a no brainer the other thing is on the other part of the case in the class certification part of the case again they want. At the fifth circuit technically so it's. I've never heard the case where somebody that wine at the court appeal then got to go and say we changed her mind to the Supreme Court the Supreme Court wants to hear that issue. I think you would probably look for a better claimant that wasn't you know so disingenuous. On to take up that issue so. But you know BP's -- at a gas -- the fire that got a lot of media attention on there's a lot of dollars at stake so so you never know a lot to answer the second part. Usually here in October. Everything that's on the docket for the next year so. By tradition we should find out one way or the other in October when -- take the case. Introducing statement BP use -- lot of gasoline. And got a lot of media attention. Sort -- as his. Governed in part by the media. While I don't know -- to be the case I mean all of you here minorities or -- judges or lawyers swayed by media covered. Well you know there are. Well they may be I mean I've heard a lot of of of criticism of the US Supreme Court that they're too insular. And that they don't react enough to you know the public demonstrations that take place on the steps every time they're going to be case. A bomb that they're too insular so so I have no idea on how they decide things black. BP obviously thinks that there's some advantage now whether -- whether those -- really for the court I have my doubts I think that's mostly for for people inside the beltway. That are to decide. Whether to deal with the -- penalties. I think that's the primary focus of their ads. Bomb secondarily it's probably for their shareholders. On but. Aren't -- let's take a break here will come and ride -- -- -- there. Don't follow up on the BP oil spill litigation now BP is petitioning the US -- court. Coming right. Are welcome back. -- to follow up. Again. Take a look at BP oil spill litigation. The pavement lack of payments. And Malaysia's BP it's petitions Supreme Court to hear their cage -- -- -- This settlement should be thrown out because we need the people we Zia and and people depending. Those people or blog via. Bill or illegally awarding -- -- people who didn't deserve it we're depicted -- bill. Receive lunar moon with the lead color it's too early to even. Big they would claim has claimed minute. That if they York quote ports and to the settlement to choose agreed to in the first place. That. Win and they have this happens anywhere in the world. No company is gonna say to climb and we're gonna save your thirty year weight on what you do or don't get -- money we're gonna fight in court. It's like most companies would in there for. This there should be overturned the way it is to keep that from happening again. While you've got a situation where where companies can choose to. Either way you look at -- contest the law or violate the law in every case. I mean the reality is companies can and do frequently. Not follow the law. -- What BP's talking about would be. Essentially. To acted to -- -- Iraq and abide by the law what happened was after the Exxon Valdez spill. On congress specifically said we don't want people waiting 2030 years they passed something called oil pollution act. That imposes. The affirmative obligation on companies like BP after -- -- to set up claims process and immediately start paying out money. So. You know may be the next on BP you'll say okay we're not gonna follow that oil pollution act would knock it to a congress tells us to do but. You know so was -- a -- run news of their hard capsule there aren't required to by law they were required to bottom line and frankly if you wanna look at how altruistic -- -- There are lots of claims that were not covered by the settlement agreement the settlement agreement we covered some claims everybody else had to go to a BP claims process. You may have seen in the media recently about two months ago they close that process after a couple years was open in 2012 was disclosed having a couple months ago. In that whole time period. With billions of dollars in claims I guess the only in the not sure it was in the billions. They paid a total of twelve million dollars voluntarily was typically so that's just on. You know kind of hogwash the other thing that's hogwash. They say oh well you know by by by having. This type of legal system you're discouraging companies like us from doing business in the United States. That's just demonstrably false. BP was the -- they were not allowed to do 22 bid. For government contracts and they fought like heck to have that reversed and finally after two years of fighting got reversed. And the immediately ran out in bid on all types of new wells in the -- I also think that their major backer of the Keystone Pipeline that they're trying to build. So this idea that BP. On if you don't do what we want if we don't get the bully you into submission in in and save us from ourselves from this agreement that we decide to and and and incidentally they just announced record profits last quarter. On we're not gonna do business in the US that is ridiculous on and if they don't do dig wells and Chevron or -- on national unity council. On you know frankly as far as I'm concerned good riddance go back to England and spill will there. Would win. You look at their petitions record that those tribal. They've they get heard. And Supreme Court agrees with him what what happens. Then I think you're gonna have huge fight about. What happens to claims that are in the Q. All and there's about 70000 business claims right now in the Q I think there's probably -- other 50000. Other types of claims. This agreement was was really kind of unique in that it was both intended to be an individual. Contractual voluntary trust settlement program and it it was also class action settlement and so the agreement was. That. If at the end of the day. The court did not approve as a class action settlement and that's that's her requirements were to believe for the benefit of BP because it gives a much broader release. Now say they don't want it but. That the deal wise. Would ever claims are in the queue based -- get paid. So what should happen under the contract is Supreme Court rules the day we're wrong to BP's right in this wasn't sub it should be class settlement. On every single of those. 120000. Plus claims should still get paid that's what we agree to that of BP agreed to. Mom I suspect that BP would try to back out of that agreement and come up with some kind of excuse why shouldn't have to abide by that and then we'll probably happily eat that. So whom we have this Supreme Court would side with BP -- -- -- There and turnaround there being more litigation about who's in the -- and that could last for years. It could and then at the end of the day they're still going to be if BP has its way. Tens of thousands of claims that actually if they're not gonna get paid to the settlement program they're gonna have to be resolved in some kind of way which means you're gonna have trials. And I mean the reality is if you hadn't had a settlement. BP would have would have won some of these cases the ones that they're complaining about right there would have lost some cases -- -- lost some bigger -- -- won some smaller. All you have had a whole bunch of different results and the reason why you have a settlement is to reduce that uncertainty to reduce that risk to reduce that longevity. And to reduce this transactional costs and other saying OK well we decided we were gonna reduce all of this but now we just changed -- lines so now -- fight for the next thirty years. -- -- All right NBP's. Got depleted. Gordon before us bring court. What up. Well then. The data Supreme Court rules assuming -- rule in our favor either by denying BP's request or by saying by hearing the case and saying we're right in the wrong. That will trigger a six month window to file additional claims. And so anybody who's an eligible class number under the terms of the settlement agreement. Can file all claims that it for the next six months while. Well that was just to deal they claim -- program would stay open -- -- six months past whenever we had a final resolution and so. Whenever -- final resolution there's another six months. On and so. You know some of those people will win some of those people won't Pasco and not a lot you know we talk about the V test. Lots of companies don't pass in fact there's been over 3000 claims that have been denied because they didn't satisfy the causation requirements that are under the settlement agreement. Lot of those people probably have arguments and anecdotes about how they were affected by the spill but they still lost under the objective test. There's thousands of claims -- doesn't plans that would never filed. Because the lawyers -- -- saw that they were gonna patent world would fail so the clintons were never filed it's not just a one way system where BP pays. -- You know. You also have a lot of companies that probably feel by I would never subjective criteria that they were affected by the spill. That cannot recover under the settlement because we can't pass the test that BP and the class agreed to. The final question and then proudly Wear you out question. I've been larger presence of mind over the years saying good not their worry but -- heard concerns. That BP was -- so much for neutral Pro -- Committed to Georgia makes a final ruling gives the top dog you for bowel. BP -- fault or or disintegrate. If that kind of thing would occur does that affect the play militarism money in -- pot it's four. Some of the money is already in the trust for example the seafood programs about a billion dollars that are party and trust. On some of the other ones -- pages ago. But I think with the guarantees. Based on wall we know we're pretty secure I don't -- BP. I don't see the threat of bankruptcy being realistic they might maneuver some subsidiary in a bankruptcy. For their own purposes. All I don't -- BP PLC to the publicly traded company going under there have been rumors that they might get -- which shall we give up shell. Or maybe one the other majors but had to act I think it's very unlikely that did it first well I think it's unlikely that they'll get -- with a maximum penalty. But even if they do I don't -- in the back seat. Professor Herman you've run a very good collapse and invite and tell us the good thing Kabul did at least secede. Thanks and again today Goodman good meeting you and thank you Bernanke very much preach Alberto -- -- You know I have over a film that brings to Vermont over the week and as we Obama show and it's said. And I'm still enjoying it and still in education. But sometimes -- -- have more phone board and I look at and shall come that she's got something called trending. Which are brilliant light a -- in the on the way home. And talking about tips and talking about the saint. Yup that's the -- -- it is three hours of fun I'll tell people about the -- for the Trenton while they're the uncle. Limiting I love I love the whole concept we actually visit. But several times over the month and then decided to Ryan Newman a wonderful executive producer decided. Let's do it every day at 1 o'clock so we have someone from Newsday if Colin someone from sports usually Tom and fastest -- -- the other guys when they get back from camp. And that -- in social media and we talk about what is trending this day and it's just a wonderful eclectic mix of things so we do it for the whole hour. A keyboard the dues in the tune in a liar public. You can call in and give -- -- disguise your voice. All right that's misbehaving. Ago that oh we're running out of oh my gosh I hate -- but for an expert and expert coming objects a lot.