Justice Delayed is Justice Denied: The BP Macondo, Deep Horizon Disaster; where the litigation stands and where it should go

The BP Oil Spill occurred April 20, 2010.  Tomorrow will be the 4 year anniversary.  It has been four years, and not a single excluded class case, no a single opt out case has been tried.  The standard of causation under the Oil Pollution Act has not yet been established; nor have preliminary guidelines been set up for purposes of an appeal.

This blog is not about blame.  The court has done a great deal with a difficult case.  The Steering committee (PSC) has done less than possible, but they have obtained some stellar results, obtaining a settlement which limited BP's liability but still provided a framework to allow those who can least defend themselves get sporadic and incomplete relief, but relief nonetheless.  This in turn helps others in the communities affected.
Unfortunately, BP and the PSC did a mediocre job of defining the terms of the settlement and it has taken apellate review and amendment of the administrative framework to get into a position where the settlement can be approved (or disapproved) by the 5th circuit court of appeals.

Mention should be made of the 5th Circuit also.  They have acted with dispatch in this case; quickly reviewing the issue through panels.  Even the Supreme Court can be said to have acted quickly, to the extent that the Lexmark decision from this year clears up the issues on which the dissenting panel judges hung their hats (The dissent apparently incorrectly complaining that the enabling act and Title III placed requirements on the settlement that would have eviscerated it and made the settlement of any similar class nearly impossible).
Perhaps less than half of the billions of dollars needed under the settlement have been paid to the smaller claimants and those who suffered most immediately; those injured or who made their living actually on the sea.

Many groups that made their living adjacent to the sea were not nearly as well served.  Let's justify the Steering committee (PSC); we'll say they obtained a settlement that will, in time (due to poor drafting or BP attorneys with overactive imaginations perhaps), lead to certain groups receiving negotiated compensation; in some cases adequate, in most cases a compromise, in as many a slap in the face; but compromises in enormous cases like this necessarily involve casualties.  If they are the victims of friendly fire, at least they benefit indirectly from the resolution of other cases.

Lets get back to the court and the good work, and the places where justice is being denied.

First the positive, then the negative, then a statement on the solutions that the court has in place and the solutions that remain for the future.

The court has set case after case to deal with issues leading up to a foundation on which to provide a comprehensive remedy.  Unfortunately, with or without the complicity of the PSC, the "test cases" have been delayed so long that already 4 years have passed without a single ruling that sets out causation for those remaining uncompensated.  The uncompensated form several groups.  We'll leave out the obstinate, they are allowed to be obstinate.

The broad description of these groups are the excluded class cases and those who were not properly compensated under the class settlement and elected to opt out.  Obviously, the excluded class cases also were not properly compensated under the settlement, they were excluded from it; a brilliant move by BP in weeding out the largest claims and a necessity to the PSC to put a settlement in place ahead of the statutory deadline that might have denied even more people a remedy.

What should be done with these uncompensated groups?  Justice has already been delayed far too long and the court needs to recognize this and set up a plan to provide justice.  The first step is to establish causation under the OPA and this is, slowly, being done.  The court should do everything in its power to encourage these well compensated, legally top notch lawyers for both the PSC and BP to move forward with dispatch and put such orders in place as will put them on notice that delays will not be tolerated, at least if they are based on laziness or prevarication; there are plenty of good reasons to put things off.

The fact that the test cases are not being tried right now could be explained by any number of good reasons. Given how much work has been done, it would be disingenuous to say the attorneys involved have self interests that are contrary to moving forward in the case of the PSC and because it saves billions of dollars for the clients in the case of BP; or because it is just that hard to gear up for a trial of 6 plaintiffs, all of whom have similar facts and circumstances and who are represented by a combination that represents the best attorneys in the country.  Perhaps, a better justification is that the underlying case is so massive, and indeed it is, that the few attorneys at the top of the PSC were overwhelmed and were unable to turn over the trial of the test cases to another group within the PSC that might have adequately handled them already.  Indeed, the real answer could be that the court wasn't ready for it or a reason that would not even occur to me.

Now it is time to look forward, and here are some ideas.

First, the court should order briefs and rule on causation as soon as possible under the OPA.  Any appeals can start from that point and BP has shown a willingness to appeal as much as possible.  Right now those appeals are saving billions of dollars in interest, so why not get the primary issue resolved quickly?  It is, after all, a question of law primarily.

Second the court should set up an expedited trial format to be brought into effect as soon as the rulings on the test cases are entered.  This would involve arranging for thousands of cases to be tried if they (1) don't fit into a settlement or (2) no settlement is entered.  In particular, the opt out cases should be put on a trial calendar "contingent" on the resolution of the causation question.

The one suggestion I heard on the "trial" issue would be to arrange that 25 cases per week be tried on the remaining issues (mainly damages, but some will have causation questions) in 25 courts simultaneously once the standards are determined.  This would allow attorneys to "volunteer" their cases to be resolved as a larger sampling of test cases which would in turn encourage the parties to come to some global resolution of those cases which are not going to be settled in some class environment (e.g. the opt out cases which necessarily involve case by case determination).

Since all claimants outside of the current class had to file "claims"; a process should be established to resolve the amounts of these claims (or attempt to do so).  The settlement should provide a mechanism to determine the amount of the claim before the opt out period since claims have been filed and since determining how much those should be for should be within the expertise of the parties.  This could include mediation or arbitration if the parties were willing to agree and these could take place even before causation is finalized since the "amount" of claims pending, once resolved, would encourage and assist the parties in framing a settlement for the remaining claimants.

Justification is important, so lets take a minute on this issue.  The code of judicial conduct for Federal judges requires diligence: CANON 3: A JUDGE SHOULD PERFORM THE DUTIES OF THE OFFICE FAIRLY, IMPARTIALLY AND DILIGENTLY

The duties of judicial office take precedence over all other activities. In performing the duties prescribed by law, the judge should adhere to the following standards:

1. (A) Adjudicative Responsibilities.
1. (1) A judge should be faithful to, and maintain professional competence in, the law and should not be swayed by partisan interests, public clamor, or fear of criticism.
2. (2) A judge should hear and decide matters assigned, unless disqualified, and should maintain order and decorum in all judicial proceedings.
3. (3) A judge should be patient, dignified, respectful, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity. A judge should require similar conduct of those subject to the judge’s control, including lawyers to the extent consistent with their role in the adversary process.
4. (4) A judge should accord to every person who has a legal interest in a proceeding, and that person’s lawyer, the full right to be heard according to law....
5. (5) A judge should dispose promptly of the business of the court...
6. (B) Administrative Responsibilities.
1. (1) A judge should diligently discharge administrative responsibilities, maintain professional competence in judicial administration, and facilitate the performance of the administrative responsibilities of other judges and court personnel...
2. (4) A judge with supervisory authority over other judges should take reasonable measures to ensure that they perform their duties timely and effectively.

This is not meant in any way to censor what has been done by the courts.  The rulings by the district and circuit courts have been fast till now, perhaps as fast as BP and the PSC have been able to handle.  But there comes a time when the court and the attorneys in control (These are NOT the attorneys who are doing all the work) have to step up to the plate and begin resolution or the litigants are denied justice and that time is upon us.

While the PSC is in control of the Plaintiff's side of this case; they are not doing the lions share of the work.  Thousands of attorneys are working their butts off for their clients.  These non-PSC attorneys stepped up to make sure their clients' claims were protected where the PSC could not possibly have reached out or protected them and in many cases like opt outs where they were, at least in part, abandoned by the PSC; though they were not completely abandoned given the fact that the PSC necessarily knew that other attorneys could potentially step up to help them.  These non-PSC attorneys had to be there both before and after the settlement and who deserve much of the praise and arguably most of the compensation going forward since only those clients with filed claims (whether by PSC attorneys or otherwise) are covered under the language of the OPA.   Many of these attorneys outside the PSC have closely aligned themselves in some cases forsaking most of their practices to see their clients are protected.  And who else will drive this case to a resolution?

This was a monster economic event, a Godzilla of a disaster, rising up out of the gulf to destroy economies.  It appears to be the case, for example, that the real estate market suffered a near sixty percent loss across the board in the affected states, with no real recovery until 2013.   Already business have closed, individuals have suffered, dreams put on hold or snuffed out completely, jobs have been lost, it can even be said fairly that families have gone hungry.

BP became a rich company from taking chances and helping people.  We need them to remain vibrant and putting this case behind them is important to that.  This remains an uncertain liability on their books and a distraction that could, if not resolved with diligence, lead to more costly mistakes.  The fact that they made such wealth by taking such risks, however, puts upon them responsibility for those harmed by their actions or negligence and they have expressed openly that they acknowledge this.

It is up to the Courts and the PSC and BP for now to see that we don't go into year 5 without a full resolution or a methodology for achieving a full resolution.

Of course, these ideas, thoughts if you would and they are open for comments.