Was BP Unfairly Attacking the Claims Administrator?

patrick_juneauPatrick A. Juneau is one of the most respected lawyers in the State of Louisiana.  He was elected to and served as a member of the 1974 Constitutional Convention, and is a past President of the Louisiana Association of Defense Counsel. He has been a guest lecturer at the Louisiana State University and Tulane University Law Schools’ Continuing Legal Education programs, and has spoken at seminars before the International Association of Drilling Contractors, the Federation of Defense and Corporate Counsel, the Safety Engineers of Louisiana, and the Louisiana Independent Insurance Agents.

Juneau has also served on the faculty of the Louisiana Association of Defense Counsel Trial Program and the Louisiana State University Trial Advocacy Program.  In 1996, he was awarded the Curtis R. Boisfontaine Award by the Louisiana Bar Foundation, and was honored in 2006 as the LSU Law Center Distinguished Alumnus of the Year.

Mr. Juneau’s reputation and practice, however, are not limited to the State of Louisiana.  He is known and respected nationwide.  In fact, Juneau has been tapped by judges all over the United States to serve as a Special Master in matters like the Guidant Litigation, in Minnesota, the Avandia Litigation, in Philadelphia, and the enormous Toyota Recall Litigation, in California.  Juneau is a Fellow of both the American College of Trial Lawyers and the International Academy of Trial Lawyers.

His professionalism, honesty and integrity have never been called into question.

In the BP Oil Spill Litigation, Mr. Juneau has issued over 500 interpretive policies.  In Class Counsel’s view, almost all of these have gone straight down the middle, and several of the most hotly contested decisions have gone BP’s way. While that is of course subjective, and BP may tend to disagree, what can be said, more objectively, is that BP has at least deferred, if not formally agreed to, all but three of his policies.  (And, with respect to one of these three, BP formally agreed to the Claim’s Administrator’s Causation Policy in October of 2012, before changing its mind about the settlement, and seeking an emergency injunction from the Court of Appeals a year later.)  On November 8, 2012, Lead Counsel for BP specifically acknowledged Mr. Juneau, “who is doing a wonderful job,” and asked the Court to “issue a approval order for the settlement so that Mr. Juneau can continue with his excellent work.”

It was surprising, therefore, to see BP attack Mr. Juneau for doing exactly what BP – and the Court – have asked him to do.

BP implied, through its contacts in the press, that the Plaintiff Steering Committee insisted that BP ‘replace’ Mr. Feinberg with Mr. Juneau.  This implication was completely false.  BP never suggested that Mr. Feinberg serve as the Claims Administrator for the Court-Supervised Settlement Program.  Rather, BP jointly, unanimously and enthusiastically asked Judge Barbier to appoint Mr. Juneau to serve as the Claims Administrator.

BP implied, though its contacts in the press, that Mr. Juneau was a “good ole” plaintiffs’ lawyer.  Not that it matters, but, as noted, Mr. Juneau was actually a President of the Louisiana Association of Defense Counsel.

Far from “hi-jacking” the settlement, (or “willfully misinterpreting” its terms), Mr. Juneau has bent over backwards to fairly, impartially and independently attempt to understand and apply the intentions and agreements of both parties.

Indeed, his office, on September 25, 2012, posed the following inquiry to BP:

As to Business Economic Loss claims, once a claimant’s financial records satisfy the causation standards set out in Exhibit 4B, does the Settlement Agreement mandate and/or allow the Claims Administrator to separate out losses attributable to the oil spill vs. those that are not? Stated another way, once a claimant passes the causation threshold, is the claimant entitled to recovery of all losses as per the formula set out in Exhibit 4C, or is some consideration to be given so as to exclude those losses clearly unrelated to the spill?I will give a hypothetical situation to try to illustrate the question we are asking:Hypo: A small accounting corporation / firm is located in Zone B.  They meet the ‘V-shaped curve’ causation test. The explanation for the drop in revenue is that one of the three partners went out on  medical leave right around the time of the spill. Their work output, and corresponding income, thus went down by about a third. The income went back up 6 months later when the missing partner returned from medical leave.  Applying the compensation formula under Exhibit 4C of the Settlement Agreement, the accounting firm can calculate a fairly substantial loss. Is that full loss recoverable?

In response to the question and hypothetical, BP confirmed to the Claims Administrator on September 28th that:

Nothing in the Business Economic Loss Causation Framework or Compensation Framework provides for an offset where the claimant firm’s revenue decline (and recovery, if applicable) satisfies the causation test but extraneous non-financial data indicate that the decline was attributable to a factor wholly unrelated to the Oil Spill. Such “false positives” are an inevitable concomitant of an objective quantitative, data-based test.

Now BP has the audacity to sue Mr. Juneau, go onto 60 Minutes, and run full-page ads in the New York Times, complaining about the very same alleged “false positives” that BP told Juneau he was obligated by the Trust Agreement to pay.

It’s outrageous.

Fortunately, BP’s unfair and misleading attacks on the Claims Administrator were rejected by the U.S. Supreme Court, which, on December 5, 2014, denied BP’s Petition for Certiorari.  Like the District Court, and the U.S. Fifth Circuit Court of Appeals, the High Court held BP to its word, and refused to allow the foreign oil giant to engage in revisionist history. 

POST SCRIPT:  Undeterred, initially, by the Supreme Court decision, BP continued to file extremely disingenuous motions and appeals falsely attacking the Claims Administrator.  But, finally, BP came to its senses and voluntarily withdrew an appeal to the U.S. Fifth Circuit asking to remove Mr. Juneau.  And then, in a somewhat surprising turn of events, actually turned to Mr. Juneau to help put together the massive $18.7 Billion settlement with the United States, Local Governments, and the States.   What better evidence could there be of Mr. Juneau’s fairness and skill as an impartial facilitator, and that BP knew that it was unfairly attacking him all along?

BP accuses the Claims Administrator of “rewriting” and “systematically disregarding”  the Settlement Agreement. To the contrary, when it talks about causation, if anyone is  attempting to rewrite or disregard the unambiguous terms of the Settlement Agreement, it  is counsel for BP.

Frankly, it is surprising that the same counsel who represented BP during the settlement negotiations, participated in drafting the final Settlement Agreement, and then  strenuously advocated for approval of the settlement before this Court, now come to this  Court and the Fifth Circuit and contradict everything they have previously done or said  on this issue. Such actions are deeply disappointing, especially considering that the  Court has previously appreciated and complimented the excellent cooperation and  professionalism exhibited by all counsel in this extremely complex and difficult litigation.

– Hon. Carl J. Barbier, United States District Court for the Eastern District of Louisiana, Nov. 22, 2013.



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