Armies of lawyers suit up for BP’S gulf oil spill trial

Stake­hold­ers are many in pro­ceed­ings set to be­gin Mon­day

The Washington Post Sunday - - POLITICS & THE NATION - BY STEVEN MUFSON muf­sons@wash­post.com

One of the big­gest le­gal cir­cuses on Earth — the trial of BP over the ex­tent of its re­spon­si­bil­ity for the 2010 Gulf of Mex­ico oil spill — is sched­uled to open in New Or­leans on Mon­day, fea­tur­ing 34 lead­ing lawyers in the jam­packed fed­eral court and hun­dreds of oth­ers lis­ten­ing to video feeds in rooms nearby.

There will be 400 min­utes of open­ing ar­gu­ments from 11 par­ties, in­clud­ing the Jus­tice De­part­ment. The list of ex­hibits runs nearly a thou­sand pages, and lawyers have filed 126 de­po­si­tions and the names of about 80 po­ten­tial wit­nesses. The plain­tiffs’ team has es­sen­tially built an en­tire new firm, with 300 lawyers, par­ale­gals and sup­port staffers ded­i­cated to the case. BP has a sim­i­lar bat­tery of at­tor­neys from four of the na­tion’s most pres­ti­gious firms.

Set­tle­ment talks were un­der­way over the week­end. The Wall Street Jour­nal re­ported that fed­eral and state of­fi­cials were pre­par­ing a $16 bil­lion set­tle­ment of­fer to BP, but that fig­ure is far higher than any fig­ure BP has dis­cussed. With­out a deal, open­ing ar­gu­ments will be­gin Mon­day be­fore Judge Carl J. Bar­bier, him­self a former plain­tiffs lawyer, who will try the case un­der mar­itime law and there­fore with­out a jury.

“The gulf oil spill case, if it does not set­tle be­fore Mon­day, will be un­like any other trial brought un­der the en­vi­ron­men­tal laws,” said David Uhlmann, pro­fes­sor of en­vi­ron­men­tal law at the Univer­sity of Michi­gan. “The Jus­tice De­part­ment has never tried an en­vi­ron­men­tal case that in­volved the hu­man tragedy, eco­nomic losses and eco­log­i­cal dis­as­ter that oc­curred dur­ing the gulf oil spill.”

Ever since the spill, BP has strived to “make things right,” as its ads say, shelling out huge sums to in­di­vid­u­als and busi­nesses and

“The gulf oil spill case, if it does not set­tle be­fore Mon­day, will be un­like any other trial brought un­der the en­vi­ron­men­tal laws.”

David Uhlmann, pro­fes­sor of en­vi­ron­men­tal law at the Univer­sity of Michi­gan

in a crim­i­nal set­tle­ment with the Jus­tice De­part­ment in a bid to put the dis­as­ter be­hind it and get on with the busi­ness of be­ing an oil com­pany.

But now BP says it is ready to com­bat charges that it was guilty of gross neg­li­gence in the April 20, 2010, blowout on its Ma­condo ex­plo­ration well, which set the Deep­wa­ter Hori­zon drilling rig on fire, killing 11 peo­ple and spilling mil­lions of bar­rels of crude oil into the Gulf of Mex­ico. The Lon­don-based oil gi­ant says that a se­ries of mis­takes by its own em­ploy­ees and those work­ing for the drill rig’s owner, Transocean, and oil-field ser­vices firm Hal­libur­ton led to the dis­as­ter. Those com­pa­nies are also de­fen­dants in the trial.

An army of pri­vate plain­tiffs, the Jus­tice De­part­ment, state at­tor­neys gen­eral and Transocean and Hal­libur­ton will all ar­gue that BP is to blame. Is­sues of dam­ages and penal­ties will be dealt with later in sep­a­rate pro­ceed­ings.

“In a lot of cases it’s the plain­tiffs’ ver­sus the de­fen­dant’s ver­sion. But here, BP’s de­fense is really to try to hide be­hind Transocean and Hal­libur­ton,” said Steven Her­man, one of the lead plain­tiffs lawyers and a veteran of to­bacco and Chi­nese dry­wall lit­i­ga­tion. “We think they were all grossly neg­li­gent and wan­ton and reck­less, and at the end of the day we don’t think any of them could hide be­hind the oth­ers.”

The stakes are enor­mous. If BP is found guilty of gross rather than sim­ple neg­li­gence, it could be forced to pay up to the max­i­mum Clean Water Act fine of $17.5 bil­lion, plus bil­lions more in civil and po­ten­tially puni­tive claims by in­di­vid­u­als and busi­nesses who did not ac­cept pay­ments al­ready.

The com­pany, which is dis­put­ing the size of the spill, has also stressed that the Clean Water Act fines of $1,100 a bar­rel in cases of sim­ple neg­li­gence and $4,300 a bar­rel in cases of gross neg­li­gence are max­i­mum, not re­quired, fines and that courts gen­er­ally do not im­pose max­i­mum penal­ties.

“We never got any­where near the statu­tory max­i­mum,” said Dan Ja­cobs, a pro­fes­sor at Amer­i­can Univer­sity’s Ko­god School of Busi­ness and a former Jus­tice De­part­ment lawyer deal­ing with en­vi­ron­men­tal cases. “But this is not your nor­mal case. You have a su­per-deep-pocket de­fen­dant, egre­gious vi­o­la­tions and a sor­did his­tory.”

Said Uhlmann: “If the case goes well for the government, BP could pay more than $10 bil­lion in civil penal­ties alone. And even if the government fares poorly, BP still will pay the largest civil penal­ties ever im­posed un­der the en­vi­ron­men­tal laws.”

Peo­ple fa­mil­iar with the set­tle­ment talks said that bridg­ing the gap be­tween BP and the states of Louisiana and Alabama would be dif­fi­cult.

“There were too many ac­tors with too many dol­lars in their eyes,” said one per­son fa­mil­iar with talks that took place ear­lier, speak­ing on the con­di­tion of anonymity to dis­cuss the pri­vate ne­go­ti­a­tions. He said that the states, “Louisiana in par­tic­u­lar,” were “not the only ob­sta­cle but the main ob­sta­cle.”

Louisiana At­tor­ney Gen­eral Buddy Cald­well would not com­ment, but in a court fil­ing the state said, “It is the State’s obli­ga­tion . . . to pro­tect the in­ter­ests of its ci­ti­zens.”

The plain­tiffs’ at­tor­neys are a who’s who of per­sonal-in­jury and large-class-ac­tion lawyers who have brought law­suits against cor­po­ra­tions.

They in­clude James Park­er­son “Jim” Roy, who once won $43 mil­lion for a dou­ble am­putee, and Robert T. “Bobo” Cun­ning­ham, who flew more than 500 mis­sions as a Marine heli­copter pi­lot in Viet­nam. Cun­ning­ham was the lead trial coun­sel in the state of Alabama’s $11.9 bil­lion ver­dict against Exxon Mo­bil for un­der­pay­ment of roy­al­ties and in an en­vi­ron­men­tal con­tam­i­na­tion trial that re­sulted in a $108 mil­lion jury ver­dict against Hal­libur­ton in 2007. Paul M. Ster­b­cow is a mar­itime and per­son­al­in­jury lawyer rep­re­sent­ing 700 com­mer­cial divers, fish­er­men, crab­bers, oys­ter­men, deck­hands, prop­erty own­ers and busi­ness own­ers.

BP’s team in­cludes Cov­ing­ton & Burl­ing’s Robert C. “Mike” Brock, who has de­fended phar­ma­ceu­ti­cal com­pa­nies in prod­uct li­a­bil­ity law­suits, and An­drew Lan­gan of Kirk­land & El­lis. BP’s woes have helped bol­ster the firms. In 2011, Kirk­land & El­lis’s prof­its topped $3 mil­lion per part­ner, up from $2.5 mil­lion the year be­fore, ac­cord­ing to the Amer­i­can Lawyer Web site.

“Gross neg­li­gence is a very high bar that BP be­lieves can­not be met in this case,” BP gen­eral coun­sel Ru­pert Bondy said in a state­ment this past week. “This was a tragic ac­ci­dent, re­sult­ing from mul­ti­ple causes and in­volv­ing mul­ti­ple par­ties. We firmly be­lieve we were not grossly neg­li­gent.”

Ja­cobs, the AU pro­fes­sor, said BP will have trou­ble show­ing sim­ple rather than gross neg­li­gence given past rev­e­la­tions. “If you’re driv­ing down the road within the speed limit and don’t have ear buds in and you’re not tex­ting, and you hit some­body you didn’t see, then you are li­able for neg­li­gence,” he said. But it is gross neg­li­gence “if you are speed­ing and your ear buds are in and all the warn­ing lights are go­ing on on your dash­board and you ig­nore them. And that’s what was go­ing on here.”

SEAN GARD­NER/REUTERS

Smoke bil­lows from a con­trolled burn of spilled oil off the Louisiana coast in June 2010. BP dis­putes the size of the Gulf of Mex­ico spill and is ready to com­bat charges of gross neg­li­gence.

JU­LIA RENDLE­MAN/HOUMA COURIER VIA AS­SO­CI­ATED PRESS

Fish­er­men and other com­mu­nity mem­bers lis­ten to Ken Fein­berg, ad­min­is­tra­tor of the BP claims fund, in March 2011 in Mathews, La.

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