The Fifth Circuit has now resolved the challenges to BP’s Deepwater Horizon settlement, as follows:
1. In October 2013, in three separate opinions, First Panel remanded for more fact findings as to accounting issues about the settlement.
2. In January 2014, in a 2-1 decision, Second Panel affirmed the settlement over challenges based on Rule 23 and related standing issues.
3. In March 2014, satisfied with the results of the remand, First Panel affirmed the mechanics of the settlement in a 2-1 decision.
4. On May 19, 2014:
A. First Panel denies panel rehearing, concluding in a 2-1 opinion: “In settling this lawsuit, the parties agreed on a substitute for direct proof of causation by a preponderance of the evidence. By settling this lawsuit and agreeing to the evidentiary framework for submitting claims, the claimants did not abandon their allegations of Article III causation.”
B. Second Panel also denies panel rehearing, also in a 2-1 opinion, noting its “complete agreement” with the denial of panel rehearing by First Panel.
C. The full court denied en banc rehearing as to First Panel and also as to Second Panel, both over dissents that stressed Article III issues.
That’s all folks!
The district court handling the Deepwater Horizon litigation rebuffed BP’s complaints that the agreed-upon claims processing formula was not working correctly. Lake Eugenie Land & Development v. BP Exploration & Production, No. 13-30315 (Oct. 2, 2013). A fractured opinion from the Fifth Circuit reversed in substantial part. It required remand for further development of the record on how the agreement was intended to handle several accounting issues about claimed losses. The Court then imposed a “tailored stay” on further payments to “allow the time necessary for deliberate reconsideration of these significant issues on remand.” Judge Clement wrote the plurality, which Judge Southwick joined on the foregoing grounds. Her opinion went on to note that, for standing reasons, a court lacked jurisdiction to administer a settlement “that included [class] members that had not sustained losses at all, or had sustained losses unrelated to the oil spill . . . .” Judge Dennis dissented as to the reasons for remand and disagreed with the standing analysis.