BP’s New Motion Seems to be Primarily a PR / Intimidation Scheme

 As you may have heard, BP filed a new motion today with the District Court to ask for the return of alleged “over-payments” to Oil Spill victims that BP agreed to pay under a landmark 2012 Settlement.  The motion also asks the court to enjoin lawyers, like us, with respect to any attorneys’ fees.  While nothing in litigation is certain, and there are no guarantees, this motion appears to be primarily a PR effort to bully and intimidate people.  While we have not had the chance to conduct a detailed legal analysis, if we are ever called upon to respond to this motion, we will note, among other things, that:

a.  BP just told the U.S. Supreme Court that it needed a stay (which the Court denied) on the causation issue, because BP would not be able to sue Claimants for allegedly “improper” payments.  As BP told the Court in its original injunction filings: “Nor can BP feasibly sue the claimants who will receive payment for fictitious losses. Even if BP could recover from Class Members, the need to file such a large number of actions itself demonstrates irreparable harm.” [BP Memo in Support of Preliminary Injunction, [Doc 8910-3] (March 15, 2013), p.40]

b.  The U.S. Fifth Circuit Court of Appeals, when it ruled last October, acknowledged that once awards are distributed to the Claimants, “BP will have no practical way of recovering these funds should it prevail.” [In re Deepwater Horizon, 732 F.3d 326, 332 n.3 (5^th Cir. 2013)]

c.  The Settlement Agreement which BP negotiated, executed, and submitted for Court approval states that: “the Parties intend to resolve their disputes pursuant to the terms of this Agreement and thus, in furtherance of their intentions, the Agreement shall remain in full force and effect notwithstanding the discovery after the date of this Agreement or at any other time of any additional facts or law, or changes in law.” [Settlement Agreement, Section 13.4]

d.  The Individual Release which BP negotiated, executed, and submitted for Court approval; was thereafter approved by the Court; and was thereafter executed by the Claimant prior to payment, states that: “This Individual Release shall remain effective regardless of any appeals or court decisions relating in any way to the liability of the Released Parties in any current or future litigation.” [Settlement Agreement, Exhibit 26, Paragraph 16]

e.  The “Important Information About the Attached Full and Final Release, Settlement, and Covenant Not to Sue” which BP negotiated, executed, and submitted for Court approval; was thereafter approved by the Court; and was thereafter acknowledged by the Claimant prior to payment, expressly states that: “it is possible that the terms of the proposed settlement may change in the future — for better or for worse — as a result of further legal proceedings.  However, if you sign this Individual Release, none of those uncertain future events will affect you. By signing this Individual Release you are forever waiving and releasing all claims that you may have against BP (except for Expressly Reserved Claims) in exchange for the compensation being provided. In fact, even if the Court does not approve the proposed class action settlement agreement or the approval is reversed by an appellate court, you shall continue to be bound by this Individual Release.” [Settlement Agreement, Exhibit 26, p.1 (emphasis supplied)]