BP, the deep horizon, Some personal observations as the 6/8/15 BEL claims deadline approaches

I wanted to share some personal thoughts on the eve of the statute of limitations in the settlement of the oil spill.  Lest I be accused of trying to drum up some business at the last minute, it is the last minute and I'd be afraid to look at any cases this close to the deadline, although any assistance I could give in finding counsel to help with getting claims filed I would provide.

I dedicated my practice almost exclusively to this area of the law (working with class action cases) over the last 5 years and while I have referred out all of the calculating and claim finalization work in the BP litigation, in the CDW litigation my work with my attorneys resulted in my coming out much better than others who relied solely on the steering committee.  This insight, however, has not translated as well in the BP litigation and I think it’s a good idea to share why.

I suspect that much of the next 5 years will be spent dealing with various aspects of that ungainly case, the bp case.  I have helped people with both medical and economic loss cases and have seen a bar and even a steering committee overwhelmed by the complexity of the case and the number of litigants (over 200,000).  BP’s counsel clearly was overwhelmed when they agreed to a settlement that they eventually challenged as not even qualifying under the enabling act.  Moreover, if you accept the brief filed by BP on causation, they agreed to pay billions of dollars they did not need to pay under the settlement.  It is worth noting that for now the bp brief on causation is the only document filed directly on that issue.  The state of Alabama has touched briefly on the subject.

I have seen a court system largely overwhelmed.  The judge who is a very good judge in my opinion overseeing the district court litigation said this case would not get ‘bogged down’ but now 5 years after the spill there is not a single ruling on causation!  The Supreme Court which probably would have had to overturn the settlement had they heard the case, refused to do so because it was the best alternative to the chaos in its absence.

My judgement in referring out the difficult work of prosecuting the claims turned out even wiser than I thought.  As the settlement took on a life of its own, changing in ways that no one could have envisioned, many of the accountants who I had been working with personally threw up their hands in dismay.  It was better to have teams that included both attorneys and accountants dedicated to this undertaking handle the work in preparing the claims and then defending them as the circumstances and requirements changed, often based on the random whims of an administrator of claims who acted without direct court oversight and which appears to base many of their decisions on rejecting claims based on non-existent inadequacies so that the same documents have to be repeatedly filed rather than taking the time to look at the records they already received.  You can call it manipulative, lazy or over-cautious, but the process is broken with a “success rate” for claimants currently at around 10% if you include the uncertainty resulting from the 495 rules not being applied retroactively and the appeal of that issue.

 I have looked at everything filed and tried to read everything important.  That represents thousands of pages of briefs and pleadings.  I have gone to meetings and been associated with both the steering committee and with attorneys who question the motives of the steering committee. Both have much to teach the other, in my opinion.  I’m going to talk about the allegations against the psc, but afterwards, I’m going to explain why the psc is to be lauded by their efforts.  I am, ‘reporting’ what I heard, not adopting it.

The allegations of one person relative to the psc the week of the 19^th of April included the allegation that the corexit (dispersant) defendants were dismissed because not a single deposition was taken by the psc on that issue.  Whether true or false, the United States in a brief points out that if the corexit had been spilled instead of systematically applied by bp it would have been one of the largest pollution events in US history.  Corexit did not destroy anything, by the way.  All it did was turn the gulf of mexico into a chemical soup which it remains to this day.

As anyone who reads deeply knows, the scars and poisoning from the great 2010 oil spill continue despite the silence of main plaintiff's counsel and the noise of bp.  Part of the complaint against the PSC was the allegation that the PSC went out publicly to sell (and sign up clients) before the settlement with its ‘unprecedented’ 600 million dollar potential fee but failed to follow up with any informative information later.  It almost sounded like the psc was too worried that their fee might be questioned to make public waves leaving the propaganda machine of bp to have free reign over the hearts and souls of the public.

 The extent and ultimate affects on both marine and human life remain to be seen and may only be determinable based on the events that continue to follow the spill.

For my part, I look at everything that occurs in court and read the most important documents even those many are hundreds of pages long, like the briefs and the regulations which change the way that the settlement is interpreted, resulting in billion dollar swings.

Despite the potential shortcomings of the prosecution, the person complaining about the psc admitted to a great admiration of the pre-psc Feinberg GCCF system from which he personally benefited.  While he condemned the settlement, as I have pointed out, it included compensation to groups that bp alleges now should not be able to prove causation under the OPA.  Also, the settlement while an enigmatic chimera at this point does not appear to me to be more random in its application than Feinberg who seemed to pay and exclude entities at random, based on political expediency and the like.

I believe that when the appeal of the settlement went with unusual speed to the supreme court of the United States that the enabling act argument of bp was valid, but the court refused to hear the objection because the case was sui generis (unique) and was too big a can of works to reopen.  The settlement was eviscerated again when the court, responding to the 'unexpected' consequences of following the plain language of the settlement, ruled that 'matching' of income and expenses had to follow a different formula paving the way for the 250 page amendment to the settlement which was the 495 amendment.  495 for certain cases largely rewrote the settlement in favor of bp.  That issue remains on appeal including an attempt by bp to get money paid before 495 refunded.

In short, the settlement became and remains a living thing, subject to changes by the several courts handling it and the administrators interpreting it.  As a result, many of the original accountants that undertook to help interpret it finally threw up their hands in despair of understanding what would happen next, bp seeking refunds of all the pre-495 payments because the settlement they agreed to is no longer their settlement.

As I mentioned, at least one attorney looks at the settlement as the psc hijacking what was a better 'system' under the gccf, although it is hard for anyone to look at that system and see anything systematic about its random selection of groups to compensate and amounts to pay them. Still, in some ways it might have been superior to the writhing snake that the settlement has become.

In short, the settlement itself has become so complex, its implementation of asking irrelevant questions over and over again, asking for documents that have already been provided and the appeal of any award of consequence by bp.  It only made sense to turn over as much of the work as possible to those at the psc who had the resources to prosecute the amorphous blob that the settlement remains today with appeals likely to change it at any moment.

A week ago one group went so far as to suggest the very logical step of re-noticing the class, to allow those whose claims were changed or denied to pursue a different remedy.  Apparently that would reopen the presentment and suit process to many who feel they were hurt.  While this is intriguing, it is asking the court to reopen the can of worms they previously determined must be contained, so it is unlikely.  The only interpretation of the OPA causation test even now, 5 years after the spill remains the one presented by BP.  While self-serving in the extreme, it raises serious issues as to whether the plaintiffs can extend past the immediate oiled coast which would eviscerate the claims of those who opted out if they were not on the coast.  However, bp’s position would be a poor interpretation.  While it might make sense in other spills, the extent of the impact of the coastline affected those far inland and might affect the interpretation that is applied to a spill which was a national tragedy over months rather than an isolated event, but the issue of causation remains to be determined.

And so when the time came to make my decision as to what I was to do next, I decided that it made a lot of sense for me and my clients to refer the bulk of the work out after securing the information for my clients.  I did and do remain available to those clients who I referred to answer questions to the extent it is expedient to ask me, just as I’d provide answers to any of you that ask.

As to the future, none of us know that, but my clients likely will be able to say that their attorney referred their cases out to pursue quantum mechanics.  I am looking at work that will allow me to pursue more actively two books which could be important.  One was largely the antithesis of the other and both bear a short comment. 

One, China’s Weaponize Economy, dealt with issue of flanking maneuvers and the blindness that comes from vision focused ahead.  While I have had things made in China and have dealt with others who continue to do so successfully and while I admire much about Chinese culture and industry, I recognize that the USA has built fortunes in the middle east through the purchase of energy and in china has raised equally mighty towers in the interest of cheap trade goods, neither of which returned in kind anything to the USA.  I felt that what the middle east did by accident, the Chinese did by design, draining the USA of money as well as their ability to manufacture self-sufficiently until the USA was a manufacturing vassal of the Chinese and therefore largely at their mercy militarily as well as economically. 

In World War II we were the arsenal of democracy because of our manufacturing expertise.  Having exported much of that technology with enormous amounts being exported every day, with Chinese laden vessels waiting off shore filled with the technology we need to function, I wonder who will be the arsenal in the next war.

While many would say that the USA was able to generate additional fortunes, and while on paper many of the empty successes, those with large book value but no intrinsic value like social networks, did generate fortunes, the real continuity of the economy rested on offsetting the huge expenses of outsourcing with additional debt.  Having experienced firsthand the dangers of over extending credit to generate wealth, I saw no good end in sight.  I don’t have the writing ability or the focus of Thomas Pain(e), nor am I willing to work for free like he was to spread his message of freedom (which led to a lot of heads being chopped in France) but I do think that some people have to fight what some might see as a corrupted system, perhaps even a corrupted government or a corrupted economy.  This doesn’t make this ‘the right battle’, it is merely me adding my voice to better reasoned voices to inform the public and someone said an informed public is necessary to democracy.

And then there was my other book, the antithesis of the practical book.  It was my book on physics and the futility of action in a pre-ordained universe.  Of course on the other side of that coin lay the fact that each moment exists forever, and as such the need to act virtuously is all the more important, the need to make life worthwhile in each moment all the more important.