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While Settlement Framework is Solid, Appeals Court Asks Presiding Judge to Broaden Policy Review

The 5th Circuit Court of Appeals issued a clarifying Order yesterday, directing Judge Barbier to broaden his review on remand to include the “causation” provision of the BP Settlement Agreement as he considers what “policy changes”, if any, should be made to the Settlement Program. The appellate court ruling essentially states that the District Court should address not only the damage calculations provision, but also the initial causation qualification process or “V” pattern analysis. Barbier took the position 10 days ago that the “causation” issue was not before him on remand and, in his opinion, was not part of the issues he had been directed to review. However, the 5th Circuit has clarified that they in fact do want it to be addressed.

The result of yesterday’s ruling is that we will likely see an even further delay in claim payments as both issues are now addressed by Judge Barbier. However, in our opinion, addressing both of these issues now, instead of just the calculations provision, allows the District Court the opportunity to cure any concerns raised by BP to protect the Program as a whole. While BP has been able to point to a few outlying claims that included damages asserted by BP not to be related to the spill, the Settlement Program’s formulas, in general, are working to discern both direct and indirect economic losses as intended.

This Settlement Program, from its very inception, was designed to identify businesses and individuals who suffered economic losses due to the BP oil spill, and we believe the existing framework, when reviewed in total, with Judge Barbier’s anticipated policy changes, will only serve to ensure that mission and the payment of valid claims.

There is no doubt that it is certainly BP’s hope that businesses will forego their rights to make proper claims as a result of it’s self-serving multi-million dollar PR and legal campaign. The fact is, BP negotiated and agreed to this Program because of the very real harm it caused to tens of thousands of businesses.

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