The Fairness Hearing
On May 2, 2012, the MDL 2179 Court gave Preliminary Approval to the proposed Economic and Property Damages Class Action Settlement and the proposed Medical Benefits Class Action Settlement. On Thursday, November 8, 2012 at 8:30 a.m., the Court will hold a “Fairness Hearing.” At the fairness hearing, the Court will consider whether to grant final approval of the Proposed Class Action Settlements pursuant to Rule 23(e) as fair, reasonable, adequate, and in the best interests of the Class and to authorize all acts necessary to consummate and effectuate the terms and conditions of the Proposed Settlements.
A teleconference call line is set up for the fairness hearing. Beginning at 8:15 a.m. on Thursday, parties who wish to attend the hearing via telephone should dial (800) 762-4758. Participants will not be required to enter an access code. Be advised that the teleconference is "listen-only."
In considering whether to grant final approval to the Class Action Settlements, the Court will (hopefully) review the six “Reed factors”:
(1) the existence of fraud or collusion behind the settlement;
(2) the complexity, expense, and likely duration of the litigation;
(3) the stage of the proceedings and the amount of discovery completed;
(4) the probability of plaintiffs’ success on the merits;
(5) the range of possible recovery; and
(6) the opinions of the class counsel, class representatives, and absent class members.
Reed v. Gen. Motors, Corp., 703 F.2d 170, 172 (5th Cir. 1983)
The Prior Opt-Out Deadline
The deadline for BP oil spill victims (“Class Members”) to opt-out of the Deepwater Horizon Economic and Property Damages Class Action Settlement and the Deepwater Horizon Medical Benefits Class Action Settlement was November 1, 2012. By opting out, those who were not satisfied with the settlements’ provisions escaped their binding effect, and thus are free to pursue their claims and seek the relief they desire. In re Vitamins Antitrust Class Actions, 215 F.3d 26, 28-29 (D.C. Cir. 2000).
Yes, you read correctly. The MDL 2179 Court required BP oil spill victims to decide whether to opt-out of the Class Action Settlements one week prior to the “fairness” hearing. How are BP oil spill victims, the vast majority of whom are hard-working, unsophisticated Plaintiffs in a multidistrict litigation (which most attorneys do not even understand), able to make such an important opt-out decision if the Court has not even ruled on the fairness of the class action settlements? In other words, how is a BP oil spill victim who doesn’t know how much money, if any, he or she may receive, be able to determine whether he or she should opt-out?
Judge Barbier’s “Caution”
The Honorable Judge Barbier, however, was helpful in this regard.
The following is an excerpt from the article “BP Spill Trial Delayed for Mardi Gras, Super Bowl” by Michael Kunzelman, Associated Press, New Orleans, October 26, 2012:
“Barbier, however, refused to postpone a Nov. 1 deadline for businesses and individuals to opt out of a multibillion dollar settlement between BP and private plaintiffs' attorneys over economic damage claims from the spill. He also said he won't delay a Nov. 8 fairness hearing on the proposed settlement.
‘There is clearly sufficient - more than sufficient - transparency in this settlement,’ Barbier said.
Barbier said he was disturbed to hear reports that some attorneys with large stables of clients are advising them to opt out of the settlement en masse. The judge said it would be ‘highly inappropriate’ for a lawyer to make that determination without individually assessing and analyzing each client's claim.
Barbier also offered a word of caution for claimants who are thinking of opting out of the deal.
‘Opting out will mean you're opting to go it alone in individual lawsuits against the defendants,’ he said, warning that it could take years for individual cases to be resolved.
‘It's actually been pretty remarkable, in my opinion, how this has worked,’ Barbier said.” (Emphasis added)
The PSC/BP “Spin”
The following is an excerpt from the article “Thousands Opting out of BP Gulf Spill Settlement”by Michael Kunzelman, Associated Press, New Orleans, November 1, 2012:
“The architects of a proposed class-action settlement of claims spawned by the BP oil spill in the Gulf of Mexico are confident it won't be derailed by thousands of businesses and individuals opting out of the deal.
Steve Herman, one of the lead plaintiffs' attorneys (appointed by Barbier), said in an email that he sees ‘very little chance’ that the deal will fall apart based on the number of opt outs.
‘Compared to the thousands and thousands of claims that have been filed, and recognized, the number of opt outs is very low,’ Herman wrote. ‘In fact, many of the objections are from people who are outside of the settlement that want to get into the deal.’
BP spokesman Scott Dean said the company believes the agreement is ‘an historic resolution that is fair and reasonable and amply meets all the legal requirements for final approval’ by U.S. District Judge Carl Barbier.
Note: Dean is correct in stating that the agreements are “historic.” At no time in our nation’s history have U.S. citizens been so thoroughly victimized by a foreign corporation which controls the executive, legislative, and judicial branches of the U.S. government.
‘The settlement is a superior alternative to continued lengthy litigation, provides numerous unique claimant-friendly benefits, and fulfills BP's commitment to pay all legitimate claims stemming from the Deepwater Horizon accident,’ Dean said in a statement.”
Unfortunately, but not surprisingly, for BP oil spill victims, Dean did not define BP’s definition of “legitimate.” Readers and BP oil spill victims may safely assume that it is the same as the novel definition used by Kenneth R. Feinberg and Pat Juneau.
Why Judge Barbier Should Not Grant Final Approval
BP and the PSC, the architects of the proposed class-action settlements spawned by the BP oil spill in the Gulf of Mexico, are justifiably confident they will not be derailed by thousands of businesses and individuals opting out of the deal. The Economic and Property Damages Class Action Settlement and the Medical Benefits Class Action Settlement should be “derailed” for the following reasons:
(1) Judicial efficiency has replaced justice in MDL 2179;
(2) These class action settlements are not “fair, reasonable, and adequate” (at least not for the class member hostages);
(3) Collusion permeates MDL 2179 and these class action settlements;
(4) BP oil spill victims receive grossly inadequate compensation;
(5) These class action settlements provide for a refund of approximately $6 billion to BP;
(6) These class action settlements grant excessive compensation to the PSC (and other counsel allegedly performing “common benefit” work);
(7) These class action settlements illegally exclude 200,000 BP oil spill victims; and
(8) The MDL 2179 Court has overreached its authority.
Click Here to Read About an Alternative to the BP/PSC Class Action Settlement.
These 14 questions must be answered in order for MDL 2179 and the class settlement to have credibility:
http://donovanlawgroup.wordpress.com/...
http://donovanlawgroup.wordpress.com/...