NEW ORLEANS -- U.S. District Judge Carl Barbier did not rule from the bench Thursday on the fairness of the massive settlement BP negotiated with a class of oil spill victims last spring.
His feelings about the settlement, however, were unmistakable.
The at-times prickly Barbier granted preliminary approval of the settlement months ago, but some major complaints have emerged since then. Barbier listened quietly to the BP and plaintiffs' lawyers who support the settlement, and as the court-appointed claims administrator touted his payment program -- which has offered compensation for economic damage totaling close to $1 billion since June.
They all said the settlement meets the legal requirements to be fair, reasonable and adequate. And they praised themselves for moving much more quickly to pay claimants than any previous major class-action settlements.
But when Barbier started listening to lawyers for some of the 13,000 registered objectors to the settlement, he challenged them at almost every turn.
The lead plaintiffs’ lawyer, Jim Roy, pooh-poohed the objections, noting that "anybody who didn't want to participate ... had an option: opt out."
Barbier seized on that and told some of the objectors who spoke that if they don't like the deal, why didn’t their clients opt out of it to pursue their claims in court?
More than 12,500 claimants did just that ahead of a Nov. 1 opt-out deadline. But BP lawyer Rick Godfrey had a stern warning for anyone who chose to take on BP one-on-one in court rather than take the settlement:
“We will put them to their proof,” Godfrey said. Then he gave an another warning: if the settlement is not approved or class certification is denied because of these objections, it would lead to the "social tragedy of interminable litigation."
Some objectors said they did want a settlement, but just hoped for some alterations to make it fairer. They did not appear to get very far with Barbier, either. The judge repeatedly said that he had no authority to alter the deal, only to accept or reject it in its entirety.
Martha Curtis, who spoke on behalf of coastal property owners, argued that Barbier did indeed “have authority … to impose conditions on a class-action settlement.”
She claimed that certain coastal property owners were being left out of the settlement arbitrarily. She argued that all of Grand Isle, as Ground Zero for the oil coming ashore, should qualify as coastal property. But the proposed settlement leaves out about half of the island’s area.
None of this seemed to move Barbier.
“You can always say you should have done this, you should have done that (in a settlement). But that’s not really the test. It’s whether it’s fair, reasonable and accurate,” the judge said at the end of the eight-hour marathon. He then promised to issue a ruling shortly.
Barbier perhaps offered his harshest rebuke to Joel Waltzer, who spoke on behalf of fishermen who felt they were being shortchanged under the settlement. Waltzer’s central argument was that the settlement’s $2.3 billion seafood compensation fund unfairly limits payments to crabbers and fin fishermen because it includes huge payments for damage to oyster beds. He argued those water bottoms should be treated as property, with damage claims paid outside of the $2.3 billion seafood fund.
Barbier said Waltzer’s argument is faulty. First, he said the $2.3 billion fund wouldn’t have been that big if it didn’t include the oyster leaseholders’ claims. Then, he echoed a line Herman said in a WWL-TV interview Wednesday.
“You're looking at what other people are getting rather than focusing on what your clients are getting," Barbier said to Waltzer.
The judge was also tough on Stuart Smith, who spoke on behalf of coastal business owners who were offered less money than similarly situated claimants just down the road. Smith contended the geographic boundaries for the tourism business payments were “gerrymandered.”
Smith noted that none of the Class C or Class D plaintiffs – those who theoretically live farther from the coast than Class A and Class B plaintiffs – are named plaintiffs in the case. Barbier asked Smith if he was saying that the main plaintiffs’ attorneys were throwing his clients “under the bus.” When Smith said yes, Barbier called it “preposterous” that Smith would insinuate that there might have been collusion by the lead plaintiffs’ attorneys and BP, something that would force the judge to reject the settlement.
“I’m really troubled that there’s been even a hint or insinuation that the settlement involved any collusion or improper conduct,” Barbier said.
There are about 79,000 economic loss claims before court-appointed payment administrator Patrick Juneau. Juneau has denied about 1,800 claims from people who already settled their cases with his predecessor, Ken Feinberg, and signed releases waiving any further claims.
He also has 45,000 claims that are incomplete, but promises to go to great lengths to help claimants provide the necessary documentation to get paid.
Similar arguments were made about a separate settlement for cleanup workers and coastal residents with medical claims from exposure to oil and dispersant. There are about 200,000 claims in that proposed settlement.