Published: Friday, September 14, 2012, 9:30 PM Updated: Friday, September 14, 2012, 9:57 PM
By Mark Schleifstein, The Times-Picayune
A request by Louisiana Attorney General Buddy Caldwell, an organization representing fishers and other attorneys to reopen discovery in advance of approval of a $7.8 billion settlement of private claims against BP for damage caused by the 2010 Deepwater Horizon oil spill should not be approved, say attorneys representing BP and the Plaintiff Steering Committee that negotiated the settlement. The plaintiff committee attorneys also said allegations of collusion between members of the committee and BP during negotiations are unfounded.
“This is nothing more than publicity-seeking chest-beating by attorneys who have filed thousands of claims into the allegedly ‘objectionable’ settlement program,” attorneys James Parkerson Roy and Stephen Herman said Friday in a letter to Magistrate Judge Sally Shushan, who is handling many of the issues in the complex litigation overseen by U.S. District Judge Carl Barbier.
Barbier has scheduled a fairness hearing for Nov. 8, after which he will decide whether to approve the settlement.
Still outstanding are a variety of claims against BP by government entities, including potential Clean Water Act fines of $5 billion to $21 billion, depending on whether the company is found to have committed gross negligence.
“After sitting on the sidelines for months without making any effort to ascertain the facts they claim are necessary to substantiate their objections, they have not demonstrated good cause for discovery at this late date,” the plaintiff attorneys wrote.
“The objectors’ requests — while couched amid promises that they are ‘limited’ in scope or ‘tailored’ to specific concerns — are overbroad and impractical, a fact that underscores that their true purpose is not to seek any purportedly necessary information, but to scuttle or delay the settlements,” said attorneys representing BP.
In addition, the BP attorneys said, Barbier cited the extensive discovery process — including 311 depositions, approximately 90 million pages of documents and more than 80 expert reports, in giving preliminary approval to the settlement
In a brief filed in federal court two weeks ago, Caldwell said approval of the settlement, which includes a cap on payments to fishers, could leave the state holding the bag if a fishery collapses in the future as a result of the spill, as happened in Alaska three years after the 1989 Exxon-Valdez tanker spill.
The plaintiff attorneys said Caldwell was ignoring a provision of the federal Oil Pollution Act that provides a three-year statute of limitations for claims against BP, and pointed out that the agreement gives fishers participating in the settlement an additional year of liability.
The letter also said that attorneys representing Gulf Organized Fisheries in Solidarity & Hope, or GO FISH, an organization of fishers and fishing businesses put together after the spill, actually didn’t object to the settlement agreement in their separate motion filed two weeks ago.
In their motion, attorneys for GO FISH expressed concern that a second round of payments may not be properly allocated to individuals with different types of jobs, such as deckhands.
The plaintiff attorneys, however, said that in their motion, the GO FISH attorneys had already agreed their concerns could be solved by an adequate allocation by the “neutral,” a person appointed by the court to allocate the payments.
“Rather, it is expressing the fear that the court-appointed neutral might make a Round Two allocation different from what some (but not other) Go Fish members might want or desire,” the plaintiff attorneys said.
They also dismissed the contention raised by New Orleans lawyer Stuart Smith, who also represents a variety of fishermen and other clients in the case, that he had not been actively involved in the settlement process.
Smith had applied to be a member of the Plaintiff Steering Committee, they said. “And he was provided with the opportunity to actively participate in the common benefit effort.”
Mark Schleifstein can be reached at firstname.lastname@example.org or 504.826.3327.