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"Not A Penny" of the Up To $18 Billion from BP's Oil Spill Fine to Go To Victims

September 12, 2014, 8:42 am

“BP hit with punitive damages” and “BP may be liable for $18 Billion in additional damages” were the headlines in recent days with the MDL court's comprehensive 153 page opinion stemming from the oil spill in the Gulf of Mexico over four years ago. But is that the bottom line? No. It is what the rest of the opinion says, and doesn’t say, that matter most in the long run.

In spite of the flurry of activity in the proceedings this month, with BP motions to recuse the Class Settlement Administrator, the proposed $1.1 Billion dollar settlement with Halliburton announced Tuesday, and the MDL Court ruling on a wide array of issues today stemming from the months long trial from last year – claims are still not getting paid. BP reneged on their original “$20 Billion dollar” settlement with all claimants entered into with our White House four years ago, then they reneged on a partial “$10 Billion dollar” settlement agreement entered into with the MDL trial court over two years ago (the Class Settlement) which would have settled several hundred thousand claims, and then they reneged on a private party settlement program run in house by BP, refusing to fund any of the tens of thousands of claims filed there. Now the MDL court has weighed in again on the first round of trial opinions, hitting BP with punitive damages for their reckless and willful misconduct. But does that advance the ball with any of the claimants, who have languished for years with one false promise after another? Sadly, the answer is no.

"With the 'gross negligence' penalties laid on BP by Judge Barbier last week all going to the government, this almost certainly takes away from any willingness on the part of BP to start paying the victims again. Worse, after their "hail mary" appeals we're called out by the 5th Circuit Court and they were told to return to their obligations, they will undoubtedly use this as an excuse and a renewed call to fight their responsibilities - and find new way to use their inevitable appeals of this decision to not return to past agreed obligations to compensate the hundreds of thousands of lives they have ruined. These findings, particularly the punitive damage findings, may actually be a worst case scenario for the victims and very people in the media or even in legal circles fully understand it" say's Brent Coon.

Explanation, opinions, and analysis from Brent Coon, the largest stakeholder in the litigation and the nation’s top expert on BP.

The Explanation of the Court rulings on liability announced September 4, 2014

The much awaited ruling from Judge Carl Barbier (the Phase One bench trial conducted last year in New Orleans) involving primary defendants: BP, Transocean and Halliburton, has finally resulted in a comprehensive order, called a Findings Of Fact & Conclusions of Law. It includes 618 separate findings in a sweeping 153 page opinion.

First and foremost, the court finds all 3 primary trial defendants negligent (finding 542). Further, BP’s conduct was so reckless as to subject it to punitive damages. The court further “apportioned” the fault between the defendants as follows: BP- 67%, Transocean- 30% and Halliburton: 3% (finding 544).

The Court also ruled that Transocean was not entitled to any “limitation of liability” (finding 594). Transocean had always maintained their liability as limited to the actual value of the salvage of the rig (or about 20 million dollars). This position was taken through reliance on an archaic Limitation of Liability Act passed by Congress back in the mid-1800s prior to the advent of insurance coverage.

However, BP was NOT liable for punitive damages to those harmed from the spill. Instead, BP’s reckless and willful misconduct will only subject it to civil penalties under the Clean Water Act.

What Does This All Really Mean?

“This bodes well for the DOJ lawsuit”, said Brent Coon, “and it raises the financial exposure for the CWA penalties. Unfortunately, the Court does not believe this conduct can attach punitive liability under general maritime law. This means that while BP is liable for enhanced or punitive damages in the case involving the Department of Justice, they are not exposed to such liability under federal law with anyone else.

The DOJ’s suit against BP for the Clean Water Act has been greatly strengthened and will likely result in a settlement or eventual judgment well in excess of $10 Billion dollars between those parties. BP has always argued over the amount of oil spilled and their liability for enhanced damages, which basically quadruple the penalty per barrel, from around 1,100 per barrel to $4,300. The strong evidence of the amount of oil spilled developed over the last years puts that number in the 4 to 5 million barrel range (or about 150-200 million gallons). Basic math attaches to now raise the value of the DOJ claim from 4 or 5 billion dollars to somewhere north of 15 billion dollars, probably to about $18 billion. At some point BP will need to get along with Uncle Sam so expect to see a deal cut. While this seems to be the next likely step, BP has been picking fights with everyone associated to this case so who knows what they will actually do.

It means that Transocean will NOT have protection of the antiquated Limitation Of Liability rule which exposes the company to billions of liability. A finding of 30% of the liability for the spill can again result in contribution and direct liability claims in excess of $10 billion dollars. While it would seem to posture BP to have some leverage against Transocean at this juncture on reimbursement of cleanup and damage claim costs, that too is likely to remain in controversy as Transocean was operating this drilling work under an indemnity agreement with BP. All of those issues are also likely to be headed towards an appeal.

Bottom line, these rulings will likely have nominal impact or benefit to the class settlements already in effect and the hundreds of thousands of victims along the coast who have yet to be paid or obtained a court setting.

It is likely that most, if not all, of the findings of the court will now be set up for appeal. These realities, and the resistance of BP to pay claims in prior settlements or through the out of court process continue to suggest that it will still be a number of years before the dust clears on many of these issues, leaving most claimants sitting on the sidelines way too long. Congress tried to avoid these delays and legal posturing by passing the Oil Pollution Act after the Exxon/Valdez disaster. Unfortunately, it only works if the responsible parties honor its intent, something that BP clearly has chosen to ignore. No reason not to if the net result is that they get to continue to drill for oil on US shores, gain the benefits of favorable laws on oil production in the United States, and at the same time continue to disrespect our laws regarding accountability. Classic case of having your cake and eating it too”.

It is also worth noting that this opinion comes out at the same time that BP killed yet another one of their workers operating on a platform in the North Sea.

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"Not A Penny" of the Up To $18 Billion from BP's Oil Spill Fine to Go To Victims

September 12, 2014, 8:42 am

“BP hit with punitive damages” and “BP may be liable for $18 Billion in additional damages” were the headlines in recent days with the MDL court's comprehensive 153 page opinion stemming from the oil spill in the Gulf of Mexico over four years ago. But is that the bottom line? No. It is what the rest of the opinion says, and doesn’t say, that matter most in the long run.

In spite of the flurry of activity in the proceedings this month, with BP motions to recuse the Class Settlement Administrator, the proposed $1.1 Billion dollar settlement with Halliburton announced Tuesday, and the MDL Court ruling on a wide array of issues today stemming from the months long trial from last year – claims are still not getting paid. BP reneged on their original “$20 Billion dollar” settlement with all claimants entered into with our White House four years ago, then they reneged on a partial “$10 Billion dollar” settlement agreement entered into with the MDL trial court over two years ago (the Class Settlement) which would have settled several hundred thousand claims, and then they reneged on a private party settlement program run in house by BP, refusing to fund any of the tens of thousands of claims filed there. Now the MDL court has weighed in again on the first round of trial opinions, hitting BP with punitive damages for their reckless and willful misconduct. But does that advance the ball with any of the claimants, who have languished for years with one false promise after another? Sadly, the answer is no.

"With the 'gross negligence' penalties laid on BP by Judge Barbier last week all going to the government, this almost certainly takes away from any willingness on the part of BP to start paying the victims again. Worse, after their "hail mary" appeals we're called out by the 5th Circuit Court and they were told to return to their obligations, they will undoubtedly use this as an excuse and a renewed call to fight their responsibilities - and find new way to use their inevitable appeals of this decision to not return to past agreed obligations to compensate the hundreds of thousands of lives they have ruined. These findings, particularly the punitive damage findings, may actually be a worst case scenario for the victims and very people in the media or even in legal circles fully understand it" say's Brent Coon.

Explanation, opinions, and analysis from Brent Coon, the largest stakeholder in the litigation and the nation’s top expert on BP.

The Explanation of the Court rulings on liability announced September 4, 2014

The much awaited ruling from Judge Carl Barbier (the Phase One bench trial conducted last year in New Orleans) involving primary defendants: BP, Transocean and Halliburton, has finally resulted in a comprehensive order, called a Findings Of Fact & Conclusions of Law. It includes 618 separate findings in a sweeping 153 page opinion.

First and foremost, the court finds all 3 primary trial defendants negligent (finding 542). Further, BP’s conduct was so reckless as to subject it to punitive damages. The court further “apportioned” the fault between the defendants as follows: BP- 67%, Transocean- 30% and Halliburton: 3% (finding 544).

The Court also ruled that Transocean was not entitled to any “limitation of liability” (finding 594). Transocean had always maintained their liability as limited to the actual value of the salvage of the rig (or about 20 million dollars). This position was taken through reliance on an archaic Limitation of Liability Act passed by Congress back in the mid-1800s prior to the advent of insurance coverage.

However, BP was NOT liable for punitive damages to those harmed from the spill. Instead, BP’s reckless and willful misconduct will only subject it to civil penalties under the Clean Water Act.

What Does This All Really Mean?

“This bodes well for the DOJ lawsuit”, said Brent Coon, “and it raises the financial exposure for the CWA penalties. Unfortunately, the Court does not believe this conduct can attach punitive liability under general maritime law. This means that while BP is liable for enhanced or punitive damages in the case involving the Department of Justice, they are not exposed to such liability under federal law with anyone else.

The DOJ’s suit against BP for the Clean Water Act has been greatly strengthened and will likely result in a settlement or eventual judgment well in excess of $10 Billion dollars between those parties. BP has always argued over the amount of oil spilled and their liability for enhanced damages, which basically quadruple the penalty per barrel, from around 1,100 per barrel to $4,300. The strong evidence of the amount of oil spilled developed over the last years puts that number in the 4 to 5 million barrel range (or about 150-200 million gallons). Basic math attaches to now raise the value of the DOJ claim from 4 or 5 billion dollars to somewhere north of 15 billion dollars, probably to about $18 billion. At some point BP will need to get along with Uncle Sam so expect to see a deal cut. While this seems to be the next likely step, BP has been picking fights with everyone associated to this case so who knows what they will actually do.

It means that Transocean will NOT have protection of the antiquated Limitation Of Liability rule which exposes the company to billions of liability. A finding of 30% of the liability for the spill can again result in contribution and direct liability claims in excess of $10 billion dollars. While it would seem to posture BP to have some leverage against Transocean at this juncture on reimbursement of cleanup and damage claim costs, that too is likely to remain in controversy as Transocean was operating this drilling work under an indemnity agreement with BP. All of those issues are also likely to be headed towards an appeal.

Bottom line, these rulings will likely have nominal impact or benefit to the class settlements already in effect and the hundreds of thousands of victims along the coast who have yet to be paid or obtained a court setting.

It is likely that most, if not all, of the findings of the court will now be set up for appeal. These realities, and the resistance of BP to pay claims in prior settlements or through the out of court process continue to suggest that it will still be a number of years before the dust clears on many of these issues, leaving most claimants sitting on the sidelines way too long. Congress tried to avoid these delays and legal posturing by passing the Oil Pollution Act after the Exxon/Valdez disaster. Unfortunately, it only works if the responsible parties honor its intent, something that BP clearly has chosen to ignore. No reason not to if the net result is that they get to continue to drill for oil on US shores, gain the benefits of favorable laws on oil production in the United States, and at the same time continue to disrespect our laws regarding accountability. Classic case of having your cake and eating it too”.

It is also worth noting that this opinion comes out at the same time that BP killed yet another one of their workers operating on a platform in the North Sea.


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