What Happens With the Settlement Going Forward?

New Orleans, LA Oil Spill Settlement Lawyers

Fishermen The Economic & Property Damages Class Settlement was approved by the District Court on December 21, 2012 and affirmed by the U.S. Fifth Circuit Court of Appeals on January 10, 2014.

In the meantime, BP appealed the District Court’s interpretation of “variable profit” within the Business Economic Loss Framework, arguing that expenses needed to be “matched” to the corresponding revenues within the Benchmark and Compensation Periods.  After further consideration, the District Court agreed, and instructed the Claims Administrator to devise a policy for matching such expenses.  The current policy on matching revenues to expenses (“Policy No. 495”) has been approved by the District Court.

Downtown BusinessesClass Counsel encouraged the Program to process the approximately 74% of Business Economic Loss Claims that fall under the general Average Variable Margin Framework, but asked the Court to reconsider the Specialized Frameworks that were developed for Agricultural, Educational, Construction and Professional Services Claims. Judge Barbier denied the Motion to Reconsider, and an appeal has now been lodged on behalf of the Class with the U.S. Fifth Circuit Court of Appeal.  [Click Here to Read Class Appeal Brief]

Contrary to what was suggested in BP’s media campaign, the only issue that was technically before the Fifth Circuit in that appeal (sometimes referred to as the “BEL Appeal”) was whether expenses from outside the Benchmark and/or Compensation Periods should be “matched” to the revenue associated with those expenses.  BP had previously conceded, and did not technically appeal, the notion that causation is established by the objective formulas (or presumptions) set forth in the Settlement Agreement, and that, once established, all losses derived under the Compensation Framework shall be deemed to have been caused entirely by the Spill, without any inquiry into potential alternative causes. [See generally Is BP Lying?]  Ultimately, the U.S. Fifth Circuit denied BP’s Motion for Permanent Injunction on the causation issue, but BP then filed a Petition for Rehearing, and BP’s plea was rejected by  the U.S. Supreme Court.

BP also filed an extremely unusual Petition for Rehearing En Banc with respect to the approval of the Class Settlement, despite the fact that BP was a prevailing party on appeal.  The full Court also denied this Petition for Rehearing, and BP’s request for further review was denied by the U.S. Supreme Court.

Commercial Fishing

In the meantime, the Settlement Program is in the process of adding accountants and improving the IT system, as it re-processes the business claims under the Average Variable Margin methodology – and to continue to process any unresolved Seafood, VoO, Vessel Damage, Subsistence, Coastal Property Damage, Wetlands Property Damage, Real Estate Sales Loss, and Individual Economic Loss Claims.



Herman Herman & Katz, LLC
820 O'Keefe Ave
New Orleans, LA 70113
Phone: (504) 581-4892

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