The hidden pitfalls of the bp-deep horizon settlement

This piece is based on my understanding of the law and may be incorrect.  It is an opinion piece and I welcome any response that anyone would make.  Also, Fraud may be practice by "commission" or "omission" or what is called "Fraud" may simply be mistake or coincidence so we'll call this a "pitfall".

The BP settlement is a fine settlement as far as it goes.  But there is a hidden danger in it which should have been clearly disclosed and is a bad reflection on all parties to the case and the court; but is a tribute to excellent defense work.

The settlement defines a class which is adequately and fairly compensated.  But it also suggests falsely that the unprotected classes are safe within the filed lawsuits.  Usually when a lawsuit is filed, it tolls any applicable statute of limitations.  But filing lawsuits does not change statutes.  The liability of the oil company defendants is based on the Oil Pollution Act (OPA).

This act (OPA) requires that a claim be filed 90 days before a suit is filed to give the polluter a chance to settle.  In a class action, claims are NOT filed in advance.  Hence the protections of the OPA are not in effect.  On or about January 19th, 2013 the last chance to file a claim in time to "wait 90 days before filing a lawsuit" will pass.  All the excluded class members will lose their right to claim damages under the OPA.  This includes developers, financial institutions, non-profits (such as churches), moratorium defendants (those who lost money when the gulf was closed in response to the spill) and others.  Before that date on 11/1/12 many parties that need to opt out to be protected will also have lost their right to a remedy, but that is mostly disclosed.

On January, 19th, however, one of the greatest frauds on plaintiffs ever practiced (at least in terms of dollars lost); amounting to billion in savings to BP, will become effective.  While this MAY not be true, it appears to be true based on a review of the law and the settlement.

These groups of "excluded" potential plaintiffs are sitting there believing that they are safe behind the filed class actions when the clock is ticking on them. I have to emphasis "If" this is correct, they are being fooled, and the fault lies in the court as well as in the attorneys.

The court and plaintiffs should have required that the shortcomings in the settlement be clearly and forcibly disclosed.  Instead these two groups have either been complicit or duped by the defendants in this case.  I suspect the latter of course.  The defense counsel, if I am right, deserve large bonuses.  Anyone who had the job of ensuring this gaping hole in the settlement was pointed out should ask themselves how carefully that duty was administered.  Perhaps, it was well enough; I am not so sure.

While several months have gone by, it is not too late to provide some level of public disclosure.  For more information, please watch this blog or go to www.gmfpc.com.

One solution, by the way, would be to send out a mailer saying something like this:
SOME DEADLINES IN THE DEEP HORIZON CASE

1)   Opt out deadline-11/1/12.  YOU must sign this application.

2)   Presentment deadline (90 days before filing)  This date is EFFECTIVELY for us 12/1/12.  Thereafter we would not have time to prepare a presentation to BP and Still file a suit.  If you are NOT included in the class (this applies to all excluded classes OR cases where your claim is inadequate under the class) you must (a) opt out by 11/1/12; (b) make presentment this year; (c) file suit by 4/20/13.  These are NOT extendable deadlines.

3)   Filing dealine-4/20/13.  Note you must make presentment 90 days before this date, so you have to well underway by January 1, 2013.