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January 16, 2014

Making progress for the Gulf, but the fight continues

by: Joseph F. Rice

On Friday, Jan. 10, 2014, the awaited opinion from the 5th Circuit Court of Appeals related to the BP Deepwater Horizon oil spill class certification was filed. In a two-to-one decision, Judge Davis and Judge Dennis wrote a 48-page opinion that confirmed the actions by Judge Barbier in certifying the settlement as a class under Rule 23 of the Federal Rules of Civil Procedure. In the opinion, the 5th Circuit addressed the constitutional issues that had been raised concerning the causation provisions of the settlement agreement.

As I shared with our clients this week, unfortunately, this does not totally end the battle that we are having with BP. While it was reassuring to receive the opinion, it is not going to stop BP from its continuing efforts to delay paying the money it is responsible to pay under the Settlement Agreement, nor limit the number of battles that we are going to have in the near future.

A separate panel of the 5th Circuit Court of Appeals – referred to as the “BEL” Panel – involves Judges Clements, Southwick and Dennis. They are addressing interpretation issues of the Settlement Agreement that had been ruled on by the Claims Administrator and confirmed by the District Court. As a result of that Panel’s decision, the District Court was ordered to enter a Temporary Injunction stopping payments – that injunction is currently pending and will remain until that panel rules.

On January 13, the BEL Panel requested briefs from the parties on the impact of the Rule 23 Panel decision on the issues in front of the BEL Panel, so that is encouraging progress. The Rule 23 Panel’s decision should eliminate many of the issues that were raised by the BEL Panel. However, we cannot be certain how the two panels will merge their positions.

Right now, we at Motley Rice continue to prepare cases for filing, move forward on the cases that do not involve the BEL disputed issues and await the further proceedings in the 5th Circuit.

April 2014 will be four years since the spill, yet numerous businesses and residents in the Gulf still do not have resolution on this disaster that impacted so many. An editorial by the Tampa Bay Times on Friday, Jan. 10, 2014, states, “This looks like buyers’ remorse from a company that benefited from having thousands of individual claims resolved in a single swoop. The company and the courts should now turn their attention to ensuring an orderly flow to the claims process.” I agree, it is time.

Sarasota, Fla., resident Dave Arnsby captures it well. He is not a Motley Rice client (he is represented by Farrell & Patel), but he saw one of my previous blogs posted on the Legal Examiner’s website. His note was unexpected and it really drives home the issue at hand. He agreed to let me share a portion of his message in hopes that many more people, not just those in the Gulf, can see that real issues still exist, and they need advocates on their side:

My case in point. I am a Hotel operator (or was) until the BP disaster. Location: Florida, West Coast. [I was s]everely impacted by [the] loss of tourist travelers that previously filled my hotel. Subsequently, [I] lost the hotel to foreclosure because of the spill . . . A lifetime of work. GCCF paid an EAP, and then Feinberg sent signed letter, confirming eligibility for compensation.

They offered 5 cents on the dollar. Now, two full years later, even after presentment to BP Claims Programme, I am now forced into litigation.

What will it take to get BP to honor their word and pay a claim like this and many others I am sure[?]”

I wish that I could answer that question for Mr. Arnsby and the thousands of other business owners (large and small from a variety of counties and industries). The negotiation of the complex settlement took more than 18 months, during which time BP’s attorneys were involved every step of the way. But now they want to continue to act as if they were not in the room and agreeing to every written word!

So, I do not know what it will take or how long it will take, but I and my fellow MDL PSC members will continue to work tirelessly for those injured (and insulted) by BP and its negligent acts.