The Principal Reason Why BP Got Off
Tampa, FL (March 25, 2015) – An article titled, “10 Reasons Why BP Got Off and Offshore Oil Drilling Just Got More Dangerous,” was recently published by Rolling Stone magazine. The author of the article, Antonia Juhasz, correctly points out, “Recent judgments in the civil trial against BP, which has entered its third and final phase in a New Orleans court, will not only result in a significantly reduced fine for BP, but may also mean that no meaningful regulatory changes are implemented to reduce the likelihood of another similar disaster.”
The article focuses on misguided court rulings which suggest that critical safety improvements for offshore drilling are now far less likely to occur. However, the principal reason why BP “got off” goes far deeper than the Clean Water Act decisions.
The principal reason why BP got off is the collusive nature of the BP oil spill litigation. The PSC, the collusive BP/PSC settlement, questionable MDL 2179 rulings, and Kenneth R. Feinberg’s “Fund Approach” and illegal “Release and Covenant Not to Sue” have all contributed to ensuring the limitation of BP’s liability at the expense of the BP oil spill victims.
In essence, BP won the MDL 2179 case on February 9, 2011 when the PSC designated the B1 Master Complaint as an admiralty or maritime case, and requested a non-jury trial pursuant to Rule 9(h), rather than properly allege claims under the Oil Pollution Act of 1990 (OPA), a strict liability statute, and the Outer Continental Shelf Lands Act (OCSLA).
Again, OPA is a strict liability statute. In order to recover damages, a claimant merely needs to show that his or her damages “resulted from” the oil spill.
OPA, in pertinent part, states: “The responsible party for a vessel or a facility from which oil is discharged, or which poses the substantial threat of a discharge of oil, into or upon the navigable waters or adjoining shorelines or the exclusive economic zone is liable for the removal costs and damages that result from such incident.” See 33 U.S.C. § 2702(a).
The damages referred to in 33 U.S.C. § 2702(a) include, but are not limited to: “Damages equal to the loss of profits or impairment of earning capacity due to the injury, destruction, or loss of real property, personal property, or natural resources, which shall be recoverable by any claimant.” 33 U.S.C. § 2702(b)(2)(E) (Emphasis added).
OPA further provides, (a) “Payment or settlement of a claim for interim, short-term damages representing less than the full amount of damages to which the claimant ultimately may be entitled shall not preclude recovery by the claimant for damages not reflected in the paid or settled partial claim.” 33 U.S.C. § 2705(a) (Emphasis added); and (b) “Payment of such a claim [i.e. payment to a claimant for interim, short-term damages representing less than the full amount of damages to which the claimant ultimately may be entitled] shall not foreclose a claimant’s right to recovery of all damages to which the claimant otherwise is entitled under this Act or under any other law.’’ 33 U.S.C. §§ 2715(b)(1) and (2) (Emphasis added).
Congress never intended that a claimant’s recovery of damages under OPA be limited by geographic bounds, pertain solely to certain business activities, or require a heightened, and in this case vague, proof of causation between his or her damages and the oil spill incident. Moreover, OPA expressly prohibits Responsible Parties from engaging in a “Delay, Deny, Defend” strategy wherein the victims of an oil spill are starved and ultimately forced to sign a “Release and Covenant Not to Sue” in order to receive an inadequate, miniscule payment amount for the damages they incurred as a result of the oil spill.
It is important to note that Ken Feinberg was BP’s defense attorney. He was not merely a “Fund Administrator.” Feinberg was retained by BP to limit BP’s liability.
We are the only law firm to file suit against Kenneth R. Feinberg, et al. asserting claims for gross negligence, negligence, negligence per se, fraud, fraudulent inducement, promissory estoppel, and unjust enrichment.
The MDL 2179 court has inexplicably refused to permit formal discovery on Feinberg, et al. The PSC also refuses to conduct formal discovery on Feinberg.
In sum, the more important story is how the collusive nature of MDL 2179 has resulted in America’s loss of faith in the federal judicial system.
The following articles may be of interest.