Monday, December 8, 2014
Although I have only a passing familiarity with the incredibly convoluted BP litigation, I predicted this summer (but not publicly), when BP filed its petition, that the Court would deny cert. BP repeatedly attempted to undo a settlement agreement that it negotiated for a year and strongly advocated to be approved at the time, and the procedural posture of its cert petition was murky.
Based on a quick reading of the cert petition, it seemed to me that BP mischaracterized both the settlement agreement and the lower courts' orders so it could manufacture a claimed "circuit split." BP characterized the class as including people who suffered no damage traceable to Deepwater Horizon, but that didn't seem accurate to me. I think that under the settlement agreement (which is 1,000 pages long and I admittedly have not read it), the claimants have to file a form that certifies that they did suffer such damage. BP, which agreed to that in the settlement, later changed its mind and said that wasn't good enough proof.
In 2012 the Court also denied cert in the DB Investments (a/k/a De Beers Diamonds) antitrust class action, which was cited in BP's cert petition. Objectors to the De Beers settlement agreement urged a similar argument that some class members had no cognizable claim.