Understanding Why April 22, 2014 Should Still be Considered the Deadline to File

We are often asked if April 22nd is the “final” deadline to file a BP claim with the Settlement Program, and, for businesses considering filing a claim to protect their rights, my answer is simple: file immediately, and assume April 22nd is the “latest” or “final” deadline.

For almost two years now, April 22, 2014 has been reported as the “final” deadline for filing a Business Economic Loss (BEL) claim.  That said, law firms handling claims for clients have worked diligently to ensure that they protect the interests of their clients by filing such claims without any unnecessary delay upon being retained.  That was true in the spring of 2013, just like it is true now.  The best advice we can give to any potential client is to act to get evaluated immediately so that their claim can be filed should one exist.

The confusion over the “finality” of the April 22nd deadline arises from a provision in the Settlement Agreement that created the Settlement Program that provides for a six month extension after the approval of the Settlement Agreement becomes legally final, i.e. after all appeals of Judge Barbier’s December 21st, 2012 Final Approval Order have been concluded by the appellate courts.  As of today, the 5th Circuit Court of Appeals has affirmed Judge Barbier’s Order, but, BP has sought En Banc review by the entire 5th Circuit Court, which means things are not legally final just yet.   Thus, while the extension may well come to apply, the exact “final” date driven by such extension remains unknown.

To complicate matters, the Settlement Agreement also provides that the “final” date to file claims with the Program can otherwise be agreed upon by BP and Class Counsel.   The significance of this provision is the reality of compromise.  While BP has been nothing but combative in the courts of late, the fact remains that the Program is the result of negotiations, and, future negotiations to a new “agreed” date, including theoretically April 22, 2014, is not out of the realm of possibilities here.

So, taking these various provisions and the posture of this litigation into consideration, while there may well come to be a six month extension after the Certification Panel rulings are final, and, therefore, trigger a new specific final deadline, the fact remains that the Settlement Agreement also allows the parties to select a final date by agreement.  That “agreement” would be the result of Class Counsel and BP negotiations, and while those conversations do not appear likely at this time, the fact remains that it could occur should BP change tactics once again now that their legal arguments have twice been rejected by panels of the 5th Circuit Court of Appeals.

It is the safest, most conservative approach for any law firm representing potential claimants to file a client’s claim(s) immediately.   No one would want to have a client procrastinate now, and have them delay acting for their own best interests, and then, for example, a new “agreed” final date is announced on the eve of the current deadline of April 22nd.   Class Counsel is naturally constrained on what they can share, so everyone is well advised to play it safe for the benefit of clients and to file all valid claims now.

When a new “final” date is established, then, we are confident that specific information of such new date will be reported, but, for now, we believe the best course is to continue to communicate the current deadline.  It simply is not prudent in our view to tell people the date will extend and have them fail to act now to preserve their rights.

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