If there’s been one common thread in the 26 months since BP and its reckless behavior decimated the Gulf of Mexico, it has been people from Big Oil or the government trying to insist that the situation is over, resolved, done with. Heck, we began hearing that within hours of the April 20, 2010, disaster, when BP maintained — falsely, of course — to the public that the situation after the explosion was under control and no oil was leaking. It’s understandable, in way, to want to put something so awful behind us. Everybody wants to go back to their lives and act like this nightmare is over. But it’s not. Seeking justice is hard work, and it never stops.
You might have seen news reports about BP’s proposed $7.8 billion settlement, seeking to resolve its serious civil liability in the wake of the spill. A lot of folks probably thought that the final chapter to the aftermath of Deepwater Horizon was in the works — never mind the serious ongoing problems with marine life and the seafood industry in the Gulf. But even when it comes to the settlement, the devil is, as always, in the details. Sure, $7.8 billion sounds like a lot of money, but the damage here in the Gulf to the livelihoods of people who depend on the tourism or seafood industries has been monumental. And not everyone is getting their fair share of the money. According to some news reports, there are so many plaintiffs unhappy with what BP is offering them that the entire settlement might collapse:
The potential landmine is opt-outs. In a settlement of a class action, class members can reject the deal and decide to go it alone. Defendants have to be prepared for the possibility that a high volume of opt-out litigation will undermine the goal of global resolution. BP certainly is prepared: Its settlement agreement with plaintiffs claiming economic and property damages includes a provision that gives BP the right to terminate the deal if the total of opt-outs “exceeds a number agreed to by the parties.”
So what’s the number? That’s the $7.8 billion question. The settlement agreement doesn’t say. In fact, the document states that the opt-out number that could trigger a blowup is to be submitted to the court “in a sealed envelope.”
No one is getting a worse deal than the charter boat captains who suffered so much in the days following the Deepwater Horizon disaster. In the months following the accident, I got to know many of these hearty boat operators and have represented some of them as plaintiffs. Those folks suffered a double whammy from the environmental carnage in the Gulf. First of all, their business all but disappeared — and continues to suffer to this day — because of the massive oil slick that spread across the Gulf Coast and eliminated any demand from tourists.
Beyond that, dozens of these boat captains offered their much-needed services to help in the clean-up as “Vessels of Opportunity” — laying out or checking on boom, acting as skimmers, or even attempting to rescue stranded sea turtles or other marine wildlife. As a perverse thanks for their hard work, many of them have suffered maladies such as skin rashes or headaches that they blame on direct exposure to the spill over so many days. If anyone deserves justice in the wake of the BP spill, it is these seafaring stalwarts of the Gulf Coast economy.
Since the preliminary approval, the vast majority of objectors have been charter boat operators hired by BP to assist in cleanup efforts soon after the spill as part of the “vessels of opportunity” — or VOO — program. Specifically, the charter boat operators object to a provision that would take a 33 percent offset from their total claim to account for payments made to them soon following the spill. The objections, filed in letter form, note that commercial fishermen and other seafood operators that participated in the program did not have to make similar offsets as part of the settlement.
“Many of my friends worked and endangered their health for those VOO payments just like the commercial vessel owners did and none of the commercial boats are being required to pay it back,” wrote Michael Maglini, executive director of the Charter Fisherman’s Association in Corpus Christi, Texas. “It appears to me that we did not have representation sitting at the table.”
The letters make reference to a May 2009 meeting held at Zeke’s Landing Marina in Orange Beach, Ala., during which BP officials assured more than 100 charter boat operators that payments under the program would not be counted against any future claims for losses to their business or medical costs.
It’s not clear why charter boat captains have been singled out for this negative special treatment. But then, a lot of things are unclear about BP’s efforts to put this case to rest. Be assured of this, the folks who’ve suffered so much for more than two years aren’t just going to sign on just any dotted line, not until every “t” is properly crossed and every “i” is dotted. BP’s settlement isn’t justice unless it’s just and fair to all of the residents and business people of the Gulf Coast.
To read an analysis about the possible collapse of the BP settlement, go to: http://www.reuters.com/article/2012/05/21/us-bp-optouts-idUSBRE84K16T20120521
To learn more about how complaints by charter boat captains and other plaintiffs could scuttle the deal, read: http://www.law.com/jsp/cc/PubArticleCC.jsp?id=1338890755918
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