“We are party to this fraud”

by Walter Olson on May 26, 2014

Paul Barrett at Bloomberg BusinessWeek:

Judge Edith Brown Clement is waving her arms, jumping up and down —- heck, doing everything but setting her office furniture on fire —- to draw the attention of the U.S. Supreme Court to the zany goings on in New Orleans concerning BP (BP) and its oil spill liability. … She probably won’t succeed, but her exertions are both colorful and edifying. …

“The class of people who will recover from this settlement continues to include significant numbers of people whose losses, if any, were not caused by BP,” Clement wrote [in her dissent from an en banc Fifth Circuit rebuff of the oil company]. “Our courts’ decisions would allow payments to ‘victims’ such as a wireless phone company store that burned down and a RV park owner that was foreclosed on before the spill.” Those are real examples she’s pointing to, not law school exam hypotheticals.

“These are certainly absurd results,” Clement continued. “And despite our colleagues’ continued efforts to shift the blame for these absurdities to BP’s lawyers, it remains the fact that we are party to this fraud.” Clement is willing to acknowledge that in its desperation to avoid a trial, the company’s attorneys agreed to a loosey-goosey, uncapped settlement. Maybe those lawyers deserve to be fired. But having created an opportunity for a plaintiffs’ bar feeding frenzy, BP should not be punished by having its corporate treasury ransacked with the approval of the federal judiciary, she added.

Whole thing here.