One doesn't have to look far to see what BP has accomplished with its appeals, nor for the lost opportunities squandered by the PSC as they drool over the enormous fee they have earned when and if this is finalized.
BP is saving hundreds of millions of dollars in interest if nothing else. The challenge is to either overthrow the settlement or add a term (causation by something other than mathematical examination) to the claims process.
The beauty of the settlement (which BP clearly accepted) was that it took an enormous group of claims which were too bulky for any court system to handle and turned it in a manageable math problem. Certainly half of those who had valid, provable claims were excluded lowering BP's liability in half. The others only had to get their act together to get paid and since perhaps 30-40% would never do that, the half was cut in half again, or almost so. In addition, the payments to the remaining parties were limited to only the immediate economic losses during the spill with limited multiples to those most directly affected. So far, so good. BP vastly limited its exposure and the cost of litigation, the economies were given a boost of income even though it was rather randomly handed out, essentially a mardi gras parade settlement. If you were standing in the right place, you catch a bag of beads, if not, you might walk away with nothing. Under any circumstances it was a settlement and not a full remedy for those harmed. Only BP and Steering committee were assured an adequate remedy.
But the tough issue, that of the standard for causation under the OPA was avoided till later, much later as it turned out. BP watched the essentially satiated PSC and saw an opportunity to delay this further by taking up the current appeal which makes sense anyway to BP. If they can limit the reach of class actions (not just this one but all of them) to one where each settlement is required to include a causation requirement independent of any formula (other than a formula which legally proves causation) then they accomplish several things. First they either destroy or cripple the settlement, second they eliminate another huge swath of clients too worn out to prove causation otherwise whether they can as a practical matter or not, and third they defend businesses against far reaching settlements in any class action. Little can be done at this stage to prevent this, a provision for testing certain cases should have been written into the original settlement which was at best a haphazard affair, but which served the purpose of making resolution of the covered classes possible.
So where is the biggest "Screw up" to the non-covered classes? This was a great opportunity to have the standard of causation defined. After all, BP is asking that cases be tested for causation. You'd think someone on the PSC would be smart enough to ask the appellate and trial courts if it should not have been required to have BP state what standard they were requesting, right? In case you're wondering, I did just that, albeit later in the process than I should have, even including some documentation on how causation should be determined. You can find that earlier in this blog, but an updated write up will be coming.
Now the question is whether it is too late to raise this issue and the answer in my opinion is that it is not. First, it can be argued that BP's appeal is not ripe as they failed to include this crucial issue. Second, the PSC can still state what it thinks the Supreme court should do if it remands as to causation and get the supreme court to at least look at the question. Third, the issue can be raised at the district court level.
Why is this so important if the PSC's primary position is that (under the agreement and Lexmark) Article III doesn't require proof of causation as to every plaintiff (BP eviscerates their own settlement by saying it does, but since when does going back on an agreement render a foreign company more non-american than it already is)? First, the PSC may lose. If they do, in the present posture, the case goes back to the district court and the case begins its second round of appeal, this time including the causation issue which will slowly be decided at each level. Second, is that since BP didn't give a standard, their appeal may not even be ready for the supreme court to hear. If this is the case, the supreme court can remand the case to determine what the standard is which will accelerate the resolution of the remaining class claims. Finally, justice is denied for the non-class cases (as well as the unpaid class claimants) because so much time has been lost in these appeals and in the slow pace in which the non-class cases are being handled. This case was largely overwhelming originally, so the delay for a couple of years made sense, but thereafter the delays are the result of something else. Perhaps it is greed, the PSC's need to control minutely and at the very top every aspect of recovery. Certainly the PSC is big enough to split up the cases among its members and try enough of them to determine what the standard is for appeal, but this would mean parceling out the responsibility and, more importantly, the power concentrated at the point of the PSC. To some extent it appears like the case is being handled like a two car collision, when, arguably, it should be divided among people who can handle the individual pieces of the litigation at the same time. But these decisions are not the decisions of the PSC alone. The court and even BP necessarily have to have a role. For now, the case is being kept before one court system and by two justices. But it is no longer so complicated that those parties cannot change the course of the litigation and begin the process of bringing justice to those who are denied. The question is whether the parties involved have the vision and wisdom to expand the scope of the litigation beyond the tunnel vision that is represented by the concentration of power in a few attorneys' hands on either side. This concentration favors BP since its costs are only the costs of supporting the concentrated force on these narrow issues and it puts off resolution at least one day for each day that the concentration remains in place. It also demoralizes those who are not served by the concentrated focus of this case on one issue at a time by a handful of attorneys. Hence, BP cannot be expected to change this. The PSC is not overly worried since they have an enormous fee and can wait to feast again much later. Hence the need for change needs to come from those parties who are denied justice and whether they can organize enough to effect a broadened view of the litigation is uncertain. Certainly my attempts to get the crucial issue of causation up before the court have fell on ears deaf for reasons I do not fully understand.
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