Bloomberg News

BP Ordered by Appeals Court to Abide by Oil-Spill Settlement (2)

March 04, 2014

Oil Washes Ashore in Orange Beach in 2010

Empty beach chairs rest on the sand as oil washes ashore in Orange Beach, Alabama, on Saturday, June 19, 2010. The April 2010 blowout of BP’s deep-water Macondo well off the coast of Louisiana killed 11 people and sent millions of barrels of oil into the Gulf of Mexico. Photographer: Kari Goodnough/Bloomberg

BP Plc (BP/) was told by a federal appeals court to abide by terms of a $9.2 billion settlement with victims of the Gulf of Mexico oil spill after failing to satisfy judges that a claims administrator is misinterpreting the deal.

BP, Europe’s second-largest oil company, must resume paying millions of dollars in business-loss claims that were temporarily halted in December while the company fought to block payments over losses not directly linked to the worst offshore spill in U.S. history, the U.S. Court of Appeals in New Orleans said in yesterday’s ruling.

“In light of our reading of the settlement agreement,” U.S. Circuit Judge Leslie Southwick wrote in the panel’s 2-1 ruling, “we conclude the settlement agreement does not require a claimant to submit evidence that the claim arose as a result of the oil spill.”

BP traded at 493.3 pence in London at 2:43 p.m. local time, up 0.1 percent, having earlier slumped as much as 2.4 percent.

The April 2010 blowout of BP’s deep-water Macondo well off the coast of Louisiana killed 11 people and sent millions of barrels of oil into the Gulf of Mexico. BP settled with most private plaintiffs in March 2012, just before a trial on liability for the disaster.

Settlement Cost

BP initially valued the economic-loss accord at $7.8 billion. In a regulatory filing last year, it increased that amount to $9.2 billion.

BP disagrees with the appeals court’s decision, Geoff Morrell, a spokesman for the London-based company, said yesterday in an e-mailed statement.

“BP had asked the court to prevent payments to business economic-loss claimants whose alleged injuries are not traceable to the Deepwater Horizon accident and oil spill,” Morrell said. “BP believes that such claimants are not proper class members under the terms of the settlement and is considering its appellate options.”

In footnotes to its 2013 earnings report, released Feb. 4, BP said the cost of the settlement is “likely to be significantly higher,” as the $9.2 billion estimate doesn’t account for business-loss claims not yet received or processed by claims administrator Patrick Juneau. More than 85,000 claims of all kinds remain to be reviewed, according to Juneau’s Feb. 28 report, which states BP has paid $3.83 billion to resolve 55,831 claims through his organization.

Loss Claims

BP’s settlement estimate doesn’t include spill-related losses claimed by about 250 financial institutions, 700 casinos, 750 state and local government entities, or 900 companies harmed by the deep-water drilling ban instituted by the Obama administration after the spill, according to the claims administration’s latest report.

Lawyers for spill victims say the deadline for filing additional claims won’t expire until six months after BP completes all of its appeals.

In its 2012 financial statements, BP included a footnote estimating claims by state and local governments at “over $34 billion,” should the judge overseeing spill litigation permit all such claims and triple them upon a finding of gross negligence. BP said it considered these claims to be overstated and based on “seriously flawed” methodologies.

Potential Fines

In addition, BP faces potentially $17 billion in pollution fines under the U.S. Clean Water Act. The fine, which is calculated on the number of barrels of oil spilled and BP’s level of negligence, will be determined by U.S. District Judge Carl Barbier in a trial that hasn’t yet been scheduled.

BP has struggled to convince two three-judge appeals panels that its settlement was legally invalid unless victims were required to provide evidence their losses were caused by the Gulf of Mexico spill.

A separate three-judge appeals court upheld the approval of the settlement on Jan. 10, ruling the accord satisfied all legal requirements for resolving a class action, or group lawsuit.

Anyone submitting a claim must attest that the spill caused the damages, which are required to match agreed-upon loss patterns defined in the accord, Southwick said in yesterday’s decision. The deal allowed for “suspicious forms” to be investigated for potential fraud, he said.

Nothing ‘Unreasonable’

“These requirements are not as protective of BP’s present concerns as might have been achievable, but they are the protections that were accepted by the parties and approved by the district court,” Southwick wrote. “There is nothing fundamentally unreasonable about what BP accepted but now wishes it had not.”

Steve Herman and Jim Roy, co-lead attorneys for spill victims in the litigation, said in an e-mailed statement that the “ruling makes clear that BP can’t rewrite the deal it agreed to.”

In a dissenting opinion, Judge Edith Brown Clement said the majority’s conclusion that the settlement didn’t require claimants to prove that losses were caused by BP’s actions tied to the spill raised constitutional issues about who has standing to receive benefits from the fund.

Dissenting Judge

Clement said “causation was a critical part of the” accord and by expanding the eligible class of claimants “to those who cannot trace their injuries to BP’s conduct,” the majority is improperly “using the powers of the federal courts to enforce obligations unrelated to actual cases or controversies.”

In court filings, the victims’ lawyers accused BP of “buyer’s remorse” and of attempting to undermine an accord intended to resolve most private spill-damage claims without litigation.

In a split decision last year, the three-judge panel that ruled yesterday kicked BP’s appeal back to Barbier, instructing him to investigate whether the company intended to include only victims with direct ties to the disaster in its accord.

Barbier re-examined the agreement and issued two rulings in December. In one ruling, he agreed with BP that claimants must more closely match revenue and related expenses when submitting claims to prevent distortion of losses.

Victim Payments

In the second, Barbier ordered the company to pay victims whose losses fit the numerical formulas spelled out in the accord, regardless of whether they could prove direct links to the spill.

“No case cited by BP or the objectors suggests that a district court must also safeguard the interests of the defendant, which in most settlements can protect its own interests at the negotiating table,” Barbier said.

The case is In Re. Deepwater Horizon, 13-30315, U.S. Court of Appeals for the Fifth Circuit (New Orleans). The lower-court case is In Re: Oil Spill by the Oil Rig Deepwater Horizon in the Gulf of Mexico on April 20, 2010, MDL-2179, U.S. District Court, Eastern District of Louisiana (New Orleans).

To contact the reporters on this story: Laurel Calkins in Houston at lcalkins@bloomberg.net; Jef Feeley in Wilmington, Delaware at jfeeley@bloomberg.net

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net


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