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False Negatives are a Positive for BP
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False Negatives are a Positive for BP

BP wants perfection from the judicial system. Fair enough. Yet it ceded that perfectionist desire when the company entered into a settlement agreement (pronounced sett-le-ment a-gree-ment) with business owners, that by BP's own admission, is a compromise (pronounced com-pro-mise).

As Richard Godfrey, BP's lead attorney, told Judge Barbier's Court when seeking judicial approval of the settlement:

"Like any settlement, the settlement that has been reached to resolve this litigation is a compromise, a yielding of the highest hopes in exchange for certainty and resolution. The settlement stands alone, however, in its substantive generosity to the class members and in its procedural fairness."

Mr. Godfrey made that statement a year ago. Fast forward to today and there is not one ounce of truth in his words.

The company has attacked its own settlement. Attacked the businesses of the Gulf who have played by the rules BP wrote. Attacked the judge overseeing the case. Attacked the claims administrator processing the claims. Blamed anyone and everyone but itself for the greatest environmental disaster and subsequent economic fallout in the history of the United States.

In fact, BP has not at all "compromised" as Mr. Godfrey claims above.

There is no "certainty" - far from it. No business loss claims are being paid today. None. And no one knows when or if they will ever receive a penny of recompense from BP.

There is no "resolution" - as the settlement has brought anything but. This is active and fierce litigation.

There is no "substantive generosity" - as the company hasn't paid a dime to anyone in months.

And there is no "procedural fairness" - as BP has changed the rules of the game at halftime.

Massive Advertising Campaign & The Court of Public Opinion

Every American should be disgusted by this foreign bully and corporate felon. After all, what's the point of a contract, a handshake and an agreement if one party can spend $500 million on advertisements in order to renege? In fact, there is a little known provision in the Settlement Agreement which requires BP to support the contract as written. It reads as follows:

"The Parties agree to support the final approval and implementation of this Agreement and defend it against objections, appeal, or collateral attack."Settlement Agreement Section 17.1

Maybe BP feels that its advertisements and court filings are not really "objections, appeals or attacks?" The company is just exercising its First Amendment rights as part of its "Commitment to the Gulf," no doubt.

BP's disregard for the commitment it made to support the Settlement Agreement is just another example of a rule that does not seem to apply in the universe this corporate felon operates in.

Woe is Us

British Petroleum enjoys playing the victim card, but the real victims are the businesses, individuals and environment of the Gulf, into which BP is drilling deeper and taking greater risks than ever before.

Purporting to be eager to pay all businesses with "legitimate claims," in reality the company is only willing to pay claimants who can meet some impossible standard of proof known only to BP. In effect, it wants to be the sole arbiter of "legitimacy." If your claim for losses is not "good enough" in BP's estimation (despite the fact that a Federal Judge approved your payment), watch out, as you may end up in a full page ad in the New York Times where BP calls you a thief.

The point of entering into a settlement in civil litigation is that both sides can hedge their bets. In a settlement the defendant (BP) enjoys certainty and closure, can avoid the potentially devastating application of punitive damages, and may not have to admit any wrongdoing. The plaintiffs (Gulf businesses), on the other hand, do not have to prove their cases to the jury.

Such is the compromise. Or as BP's Mr. Godfrey put it, "a yielding of the highest hopes in exchange for certainty and resolution."

Have Some Cake BP, and Eat it Too!

BP is fond of trotting out examples of what it calls "fictitious claims" or "false positives" - claims that the company believes are undeserving because the business, BP alleges, could not prove at trial a loss associated with the spill, even though it qualifies for payment under the Settlement Agreement's 1,200 pages of unambiguous terms.

Putting aside for a moment that BP created said causation and compensation formulas and evenenthusiastically agreed that same may on occasion allow for the odd outlier which, BP told the Court, is "an inevitable concomitant of an objective, quantitative, data-based test," what about the flip side of that coin, the "false negatives?"

Continue Reading original article by Tom Young of The Legal Examiner

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