NEW ORLEANS - BP has opened a third front in its fight to reinterpret its multi-billion-dollar oil spill damage settlement.
The oil giant appealed Judge Carl Barbier’s March 5 ruling against them to the 5th Circuit Court of Appeals today, the day before they are scheduled to make the same arguments in a hearing before Barbier himself.
BP first complained in January that claims administrator Patrick Juneau was misinterpreting the settlement BP had negotiated last year with lawyers representing more than 150,000 private claimants. BP’s costs were rising, exceeding their estimates for paying those claimants by at least $1 billion, and the company claimed that Juneau’s reading of their 1,000-page settlement was leading to millions in payments for “fictitious losses.”
But Juneau, and then Barbier, rejected BP’s arguments, saying that those were the terms BP agreed to in painstaking detail – whether BP liked it now or not. BP responded by suing Juneau, who says he has immunity from such suits. It also responded by filing an injunction to stop Juneau from paying the claims, and that’s what Barbier is scheduled to hear about tomorrow.
But BP did not wait to lodge yet another appeal, this time to the 5th Circuit.
Meanwhile, Tampa, Fla., attorney Tom Young has gathered more than 500 signatures on a petition at the website Change.org calling on BP to “stand by the commitment to the business owners the company gave its word to,” “dismiss (its) frivolous lawsuit against Claims Administrator Juneau,” and “stop filing groundless appeals on otherwise legitimate claims based on compensation formulas (BP) designed and agreed to almost one year ago.”
While making its argument, BP wants the court to stop using emails and other correspondence the company’s lawyers wrote during negotiations to decide what the settlement really meant. That’s because Barbier used BP’s lead lawyer’s own words against him in his previous decision against the company March 5.
The lawyer, Rick Godfrey of the Kirkland & Ellis law firm in Chicago, now argues that erroneous payments are going out because Juneau is taking a provision in the settlement agreement -- which says that claimants’ losses should be determined by comparing their net revenues in certain months after the 2010 spill with “comparable months” in the years before the spill – and improperly interpreting “comparable months” to always mean the “same months.”
But shortly before BP and the plaintiffs reached the historic agreement last spring, Godfrey wrote an email to plaintiffs lawyers stating just the opposite: He clarified that “the word ‘comparable’ and phrase ‘comparable months of’ is used throughout the document in the context of comparing the months selected by the Claimant in 2010 to compare against the same months in the Benchmark Period.”
BP contends that Barbier should not have been allowed to throw Godfrey’s own words in his face because, they claim, discussions from before a settlement can’t be used to clarify meaning unless the meaning is unclear.
BP says the meaning is of the settlement is clear, even though their understanding of it is the opposite of Barbier’s, Juneau’s and that of the plaintiffs lawyers with whom they struck the agreement.