-
Deepwater Horizon Blow Out & Fire
-
BP meets w/ President Obama
Agrees to establish $20 billion fund for restoration, penalties and civil damages. BP acknowledges that this dollar figure could increase and $20 billion is not a cap. Kenneth Feinberg is tapped to administer the Gulf Coast Claims Facility (GCCF), a new entity charged with compensating those affected by the spill. -
Well Capped
-
GCCF Opens
The Oil Pollution Act of 1990 requires that the "responsible party" in a spill create a compensation mechnism to make whole those affected. GCCF is managed by Kenneth Feinberg of the 9/11 Compensation Fund. GCCF payments are highly subjective, wrought with fraud, and the system does not result in a class wide release for BP. Instead, BP enjoys a release only from individuals receiving funds. Neither claimants nor BP seem satisfied with the GCCF system. -
Settlement Talks Commence
Plaintiff Steering Committee members Joe Rice and Calvin Fayard begin negotiations in earnest with BP to settle claims for business economic losses outside of the GCCF. Discussions concerned replacing the GCCF with a class action legal vehicle which would provide BP with a class-wide release for all class members, whether they received payment or not. -
Settlement Reached
BP and the Plaintiff Steering Committee (PSC) submit 1,200 page Settlement Agreement replacing GCCF with a Court Supervised Settlement Program for Court approval in front of Judge Barbier. The parties report that over 145 day-long, face-to-face negotiation meetings took place, in addition to numerous phone calls. -
Judge Barbier Preliminarily Approves Settlement Agreement
Federal District Court Judge Carl Barbier for the Eastern District of Louisiana grants preliminary approval of the 1,200 page Settlement Agreement negotiated by BP and the PSC. Per the agreement, the GCCF will be replaced by the Court Supervised Settlement Program (CSSP) administered by Patrick Juneau, a neutral third party. Any parties that take issue with the Settlement Agreement or the Class Action certification must air their grievances at a November 8, 2012 fairness hearing. -
BP Presents Tutorial
On May 8, 2012, BP submitted a powerpoint presentation to the Claims Administrator that stated: "Qualifying businesses receive compensation for all losses regardless of actual facts and circumstances." -
CSSP Replaces GCCF
The Court Supervised Settlement Program (CSSP) officially replaces the Gulf Coast Claims Facility (GCCF). Patrick Juneau is acting Claims Administrator. First CSSP claims are accepted this date and paid as per formulas in the preliminarily approved 1,200 page Settlement Agreement. -
First Payments Made
CSSP Claims Administrator Patick Juneau makes first payments to claimants under the Settlement Agreement. -
BP Moves Court for Final Approval of Settlement Agreement
Following preliminary approval by Judge Barbier on May 2, 2012, parties and those objecting to the Settlement Agreement had several months to be heard. In fact, on this date BP urged the court in writing to approve the Settlement Agreement as written, saying among other things: "Once a business meets the causation requirements, all profit declines are presumed to be caused by the spill, with
no analysis to determine whether the declines might have been due to other causes." -
BP's Expert Fishkind Opines
BP submits declaration of its financial expert, Henry Fishkind, that the Settlement Agreement is fair and reasonable and that there is to be no analysis of alternative causes of loss. -
BP's Expert Henley Opines
BP submits declaration of its financial expert, James Henley, that the Settlement Agreement is fair and reasonable and that there is to be no analysis of alternative causes of loss. -
Claims Administrator Hypo
The Claims Administrator approached both parties (BP and Class Counsel) to clarify whether they truly intended that the Program would apply only the purely objective formulae found in Exhibit 4B to determine whether and how much a claimant could recover. BP's response: "If financial data establish that the claimant satisfies the causation requirement, then all losses are presumed to be attributable to the Spill. False positives are a concomitant of an objective quantitative, data-based test." -
Causation Policy Adopted
Based on September 25th query to BP, the Claims Administrator issues following policy: "The Settlement Agreement does not contemplate that the Claims Administrator will undertake additional analysis of causation issues beyond those criteria that are specifically
set out in the Settlement Agreement. Further, the Claims
Administrator will not evaluate potential alternative causes of the claimant’s economic injury." BP did NOT object to this policy. -
Opt Out Deadline
Class members who for whatever reason do not like the terms of the deal are free to "opt out" and pursue their own individual lawsuits against BP. Obviously BP wants to limit the number of claimants who "opt out," and the company enthusiastically encouraged people not to reject the deal. Anyone who did not opt out by November 1 became bound by the terms of the Settlement Agreement and had to rely on same for any compensation. -
Fairness Hearing
Prior to issuing final approval of the already preliminarily approved Settlement Agreement, Judge Barbier held a "Fairness Hearing" where concerned parties could be heard. BP's counsel Richard Godfrey enthusiastically supported the Settlement Agreement and the objective causation tests. By this date the Claims Administrator had offered payments approaching $1 billion to eligible claimants under the terms of the Agreement. -
BP Supports Agreement
Following the November 8 Fairness Hearing, BP and the PSC submitted joint proposed findings of fact in support of the Settlement Agreement. These filings confirmed BP's then position that alternative causes for loss were not to be considered. -
BP Appears Before Barbier
BP and PSC / Class Counsel appear before Judge Barbier in court and jointly confirm that Exhibit 4B is to be the only consideration when performing a causation analysis and that no alternative reasons for a loss are relevant. The parties confirmed the October 10, 2012 Policy Announcement by the Claims Administrator re same is in fact controlling. These statements were memorialized in an email from Judge Barbier on December 12. -
Final Approval Issued
Judge Barbier, after considering comments from objectors to the Settlement Agreement and after hearing praises of the agreement from Class Counsel / PSC and BP, rules against the objectors, and in favor of Class Counsel and BP and gives his final approval of the Settlement Agreement and Class Action. -
BP Appeals BEL Claims
Shortly after winning final approval of the Settlement Agreement and its objective standards for determining causation and loss, BP begins to appeal individual BEL claims on the basis that the claimant's loss "was not the result of the incident." This in essence was BP's first announcement that it had no intention of abiding by the terms of the settlement negotiated over years and approved only days earlier. -
Objectors Appeal to 5th Circuit - A.K.A. "Class Certification Panel" 30095
Four separate groups of "objectors" filed appeals on or around this date claiming that Judge Barbier erred in granting final approval to the Settlement Agreement and Class Action. Objectors did NOT include BP. There are always objectors to class action certifications, often they have no meritorious complaints. Notably, BP did not object here and technically is thus not an "appellant" along with these objectors. However, as will develop later, BP will attempt to attach itself to the objectors. -
Barbier Approves "Matching" Policy
Claims Administrator Juneau issued a policy on January 15, 2013 saying he will treat claimants books as he finds them (outside of clear error or fraud) and will not endevour to match expenses to revenues anymore than the claimant did in the normal course of business. Judge Barbier approved this policy over BP's objection. -
BP Appeals Matching to 5th Circuit - A.K.A. "BEL Panel" 30315
While the "substantive" appeal (30095) re the overall legality of the Settlement and Class Action is already pending in the 5th Circuit from Jan. 23 to which BP is NOT an appellant (referred to as the "Class Cert Panel), BP is an appellant in this separate appeal over Barbier's approval of Juneau's "matching" policy. This appeal is known as the "BEL Panel". Notably, BP does NOT raise the causation issue at this time. -
BP Threatens Clawback
In June 2013 BP begins sending claimants who were duly awarded compensation under the Settlement Agreement letters threatening an attempt to seek repayment of funds BP considers ill gotten. This even though the claim payments were approved by Judge Barbier. -
BP's Advertising Campaign
BP begins running full page print ads in the New York Times, Wall Street Journal and Washington Post assailing the Settlement Agreement it authored, Judge Barbier, Claims Administrator Juneau, the PSC and many claimants. This on top of its long running TV commercials. Company reportedly spending hundreds of millions on such advertisements. -
5th Circuit BEL Hearing
BP appealed the Claims Administrator's policy re "matching" expenses to revenues. This is appeal 13-30315, the "BEL Appeal." The issue involves interpretation of the Settlement Agreement, specifically, how to calculate the size of a claim, not the threshold issue of causation. When asked by one of the panel's judges if BP was arguing for alternative causation rules, BP's attorney said: "With respect to the causation issue, that is not the issue that is before this court." -
5th BEL Panel Rules - BEL Claim Payments Effectively Halted
Despite clear and unambiguous language of the Settlement Agreement, a 2-1 majority of the 5th Circuit panel in 30315, the "BEL Panel" remands to issue of "matching" to Judge Barbier for a more thorough review of the parties intent. Dicta in the 5th's opinion by Judge Edith Clement also suggests that Barbier should revisit the causation issue. This despite fact that BP at oral argument said causation is not an issue in this appeal. -
BEL Claim Injunction
Following the 5th Circuit BEL Panel ruling from October 2, Judge Barbier enjoined payment of BEL claims involving issues of "matching." In effect, this halted the payment of all BEL claims on this date, as it proved impossible to separate claims with matching issues from those without. -
Barbier: "BP Disappointing"
Judge Barbier calls BP actions an "attempt to rewrite the Settlement Agreement as it pertains to causation" which he characterizes as "deeply disappointing." Barbier, unlike the 5th Circuit, has been involved in this case every day for nearly four years. He is very aware of the games BP is playing with his court. -
Barbier Rules re BEL
Judge Barbier responds to 5th Circuit BEL Panel's remand by agreeing with panel majority that "matching" is required by the Settlement Agreement and tasks Claims Administrator Juneau with developing protocol for achieving said matching. Barbier enthusiastically rejects BP's alternative causation argument. -
5th: BP is "Nonsensical"
The "Class Certification Panel" in 5th Circuit appeal 13-30095 rules against the objectors (and BP), saying that the Settlement Agreement and Class Action final approval by Judge Barbier was proper. There is confusion as to how this panel's ruling impacts the 5th's BEL panel, but this Class Cert panel effectively said that BP's arguments about alternative causation tests were without merit and that claimants did not have to prove beyond Exhibit 4B that their losses were caused by the incident. -
BEL Panel Seeks Clarity
The BEL Panel of the 5th Circuit in 30315 asked both BP and Class Counsel / PSC to brief the panel on the implications of the Class Certification Panel's ruling in 30095 which in large part rejected BP's causation arguments. The parties have submitted briefs and await a response from the 5th Circuit BEL Panel. -
BP Requests Rehearing
BP filed request for rehearing "en banc" (which means all judges on the 5th Circuit, not simply the three from the Class Certification Panel in 30095). This after that panel rejected the objectors' position as well as BP's. Requests for rehearing are not frequently granted and it is unclear how BP, who is technically a prevailing appellee, can even seek such a rehearing. The panel has not yet indicated if the rehearing request will be granted.
