Sunday, January 28, 2018

Trump Names BP Oil Spill Lawyer, Climate Policy Foe as Top DOJ Environment Attorney | InsideClimate News

Trump Names BP Oil Spill Lawyer, Climate Policy Foe as Top DOJ Environment Attorney | InsideClimate News

Jeffrey Bossert Clark, a lawyer who has repeatedly challenged the scientific foundations of U.S. climate policy and was part of a legal team that represented BP in lawsuits stemming from the nation's worst oil spill, the 2010 Deepwater Horizon disaster, was nominated by President Donald Trump on Tuesday to serve as the Justice Department's top environmental lawyer.
Clark, a partner in the Washington, D.C., office of Kirkland & Ellis, has represented the U.S. Chamber of Commerce in lawsuits challenging the federal government's authority to regulate carbon emissions. In court he has repeatedly argued that it is inappropriate to base government policymaking on the scientific consensus presented by the Intergovernmental Panel on Climate Change.
"When did America risk coming to be ruled by foreign scientists and apparatchiks at the United Nations?" Clark demanded in a 2010 blog posting on the EPA's endangerment finding.
Clark was prominently involved in industry challenges to the EPA's "endangerment finding" that set the scientific basis for all subsequent attempts to regulate greenhouse gases, including from autos and industrial sources. It was a demonstration of opposition to the underpinnings of the whole Obama administration regulatory approach to carbon dioxide, which were consistently upheld by the Supreme Court.
One of the legal briefs he signed is such a comprehensive compendium of thoroughly debunked denial of the scientific consensus that it stands as a classic of the genre, replete with condemnations not just of the EPA but of the IPCC, whose work the petitioners tried to persuade the court to rule out of bounds. A series of podcasts and papers he has written on The Federalist Society website continue his arguments against the endangerment finding and climate science more broadly.
"He has a long history of opposing climate action for corporate and ideological clients," said David Doniger, who heads the climate and clean air program at the Natural Resources Defense Council, after learning of Clark's nomination. "I would expect that history would require him to recuse himself from such cases as over the Clean Power Plan, where he filed an amicus brief against the rule.

Thursday, January 25, 2018

Compensation claims over Sanchi collision may be complex due to Iran’s sensitive diplomatic status: report - Global Times

Compensation claims over Sanchi collision may be complex due to Iran’s sensitive diplomatic status: report - Global Times

As a massive oil spill caused by the crash of Iranian tanker Sanchi earlier this month continues to spread across the East China Sea, fishermen and sea farmers in China's largest fishing hub are worried about potential ecological damage.

The fully laden crude tanker, owned and operated by the National Iranian Tanker Company (NITC), suffered a major explosion and sank eight days after its collision with Hong Kong-flagged freighter CF Crystal.

The foreign tanker was carrying condensate, an ultra-refined, highly volatile form of ultra light oil used to make products such as jet fuel. Satellite images show that the spilt oil covered 332 square kilometers of water on Sunday, The Cover reported.

In the winter, low temperatures reduce evaporation speed, leaving massive condensate floating on the surface as waves spread. Experts warn of the serious immediate and long-term impact on the marine environment.

"The oil on the surface evolves to be highly concentrated, which hinders the respiration of marine life. Oily water containing sulphide can also poison and even kill sea creatures. Without professional treatment and scientific management, its harm will soon become obvious," Huang Weiqiu, a professor at Changzhou University Petroleum Engineering Department, interpreted.

The unpredictable expansion of the massive oil slick worries many fishermen in Zhoushan, Zhejiang Province, which is China's biggest and most important fishery hub.

Sun Yun (pseudonym), who farms mussels in the sea off Zhoushan, is one of them. After the crash, he was in a panic and rightly concerned about the potential ecological and economical effects on his livelihood. He recruited people to observe if there was oil floating near his sea area and purchased heavy metal test papers to prepare for subsequent risks.

Some other local residents remained relatively calm about the potential risks, counting on pure speculation. "The sea area is vast. I guess there would not be a serious problem as long as the wind blows strongly," a resident who lives in Zhoushan city was quoted by Chinese media jiemian.com as saying.

Wednesday, January 24, 2018

PwC ruled negligent in Colonial Bank auditing case | Accounting Today

PwC ruled negligent in Colonial Bank auditing case | Accounting Today

In a ruling that exposes the Big Four firm to heavy potential damages, a federal judge found that PricewaterhouseCoopers was negligent in its audits of Colonial Bank, which failed in 2009 in the midst of the financial crisis.
The case involved a lawsuit by the Federal Deposit Insurance Corp., which sued the firm for failing to detect a multi-billion-dollar fraud against Colonial Bank and its parent Colonial BancGroup by Taylor, Bean & Whitaker Mortgage Corp., another financial firm that collapsed in 2009. The FDIC faulted PwC for letting Colonial account for certain transactions as sales of mortgages from Taylor Bean to Colonial, rather than as loans from Colonial to Taylor Bean that were secured by mortgages. Last year, PwC reached a confidential settlement with Taylor Bean’s bankruptcy trustee for an undisclosed sum (see PwC reaches settlement in Taylor Bean lawsuit).

Friday, January 19, 2018

Ch. 2 Misrepresentation - cases Business Torts & Unfair Competition


Business Torts & Unfair Competition (Marks & Moll)
Chapter 2 Misrepresentations and Omissions 

Lindberg Cadillac v Aron
371 S.W. 2d 651 (Mo. Ct. App. 1983)

Swinton v. Whitinsville Savings Bank
42 N.E. 2d 808 (Mass. 1942)

Griffith v. Byers Construction Co.
510 P. 2d 198 (1973)


Scienter

Receivables Purchasing Co. v. Engineering & Professional Services, Inc.
510 F. 3d 840 (8th Cir. 2008)

Intent to Induce Reliance

Ernst & Young, LLP v. Pacific Mutual Life Insurance Co.
515 S.W. 3d 573 (Tex. 2001)

Reliance

Williams v. Rank & Son Buick, Inc.


170 N.W. 2d 807 (Wis. 1969)

Wednesday, January 17, 2018

BP: Compensation Costs Will Exceed Prediction

BP Expects Higher Charges Related To Deepwater Claims

Law360, New York (January 16, 2018, 1:53 PM EST) -- BP said Tuesday it anticipates a $1.7 billion charge in its 2017 fourth-quarter financial results, reflecting a greater value of settlement claims related to the 2010 Deepwater Horizon spill and the Fifth Circuit’s May rejection of most of the formula the company was using to calculate economic losses from the disaster.

The British oil giant said it now expects to pay about $3 billion in 2018, up from earlier estimates of $2 billion, for charges related to the blowout at the Macondo Prospect well that killed 11 people and caused 4 million barrels of oil to spill into the Gulf of Mexico.

“With the claims facility’s work very nearly done, we now have better visibility into the remaining liability,” BP’s chief financial officer Brian Gilvary said in a statement. “The charge we are taking as a result is fully manageable within our existing financial framework, especially now that we have the company back into balance at $50 per barrel.”

To calculate the settlement owed to a class of Gulf Coast businesses harmed by the disaster, BP had used a formula known as Policy 495, developed by the claims administrator and approved by a Louisiana district court. The formula consisted of five methodologies that divide claimants into two categories, with people engaged in construction, education, agriculture and professional services subject to four industry-specific methodologies and everyone else subject to an annual variable margin methodology.

But the Fifth Circuit in May found that the four industry-specific methodologies were not consistent with the text of the settlement terms, as they infringe on claimants’ right to choose their own compensation period. The court accepted the fifth method, the annual variable margin methodology, finding it to be consistent with the terms of the deal.

BP said Tuesday it will continue to “vigorously appeal” claims it believes don’t deserve compensation.

BP won the right to appeal individual Deepwater claim determinations in its $10.3 billion settlement in May 2015. A three-judge panel said, “where a settlement agreement does not resolve claims itself but instead establishes a mechanism pursuant to which the district court will resolve claims, parties must expressly waive what is otherwise a right to appeal from claim determination decisions by a district court.”

So far, BP has paid about $60.4 billion related to the oil spill, the company said in October. This includes the more than $20 billion settlement reached with the government in 2016 to settle federal and state claims, as well as agreements to end various private claims.

--Additional reporting by Kat Sieniuc. Editing by Kelly Duncan

BP: 5th Circuit rejects BP calculation methods

5th Circ. Rejects Deepwater Settlement Calculations
Law360, New York (May 23, 2017, 7:46 PM EDT) -- The Fifth Circuit on Monday rejected most of the formula BP used to determine the settlement it will pay a class of Gulf Coast businesses harmed by 2010’s Deepwater Horizon disaster, saying the calculation methods don’t match the settlement deal.

In an order reversing four out of the five methodologies included in Policy 495, the policy used to determine the economic losses arising out of the BP oil spill, the panel concluded four “industry-specific methodologies,” or ISMs, were not consistent with the text of the settlement terms, saying the ISMs infringe on claimants’ right to choose their own compensation period by spreading revenue across the crop season.

“The settlement agreement grants each claimant the right to choose his or her compensation period, consisting of three or more consecutive months between May and December 2010. If the claims administrator is permitted to remove revenue from the compensation period, and spread it throughout the noncompensation months, the claimant’s choice no longer matters. June is the same as December, and November is the same as July,” adding that “this is not the agreement that the parties entered into. And we decline to rewrite the settlement agreement under the guise of contractual interpretation.”

The panel noted that “the relevant ISM would … [ensure] that damages are awarded to those who have suffered real losses. This may well be a fairer alternative. But it cannot be implemented, because it is inconsistent with the plain text of the settlement agreement,” the court said.

The court accepted the fifth method, the “annual variable margin methodology,” or AVMM, finding it to be consistent with the terms of the deal.

The formula known as Policy 495, developed by the claims administrator and approved by the lower court, consists of five methodologies that divide claimants into two categories. Those engaged in construction, education, agriculture and professional services are subject to ISMs. Everyone else is subject to an AVMM.

The class in April 2015 appealed the policy, claiming that the method did not match the calculation the class agreed to in the settlement and goes beyond what the Fifth Circuit intended.

BP Exploration & Production Inc. asked the appellate panel in September 2015 to end years of wrangling over how to calculate the oil spill’s impact on affected businesses’ bottom line, requesting it accept the very model that the appeals court suggested when it tossed an earlier proposed formula and sent it back to a Louisiana district court, which approved the accrual model in May 2014.

BP claims that the class’ appeal is an implicit request for the court to overturn its own decision on calculating the payments and an attempt to “reintroduce the fictitious, grossly inflated and economically irrational awards that led to that decision in the first place.

The class argues that the final matching policy “exceeds the scope” of the remand order and succeeds in “smoothing” revenues in a way that undercuts the settlement agreement’s intentions.

“Rather than accepting the contemporaneous profit and loss statements that are required under the express terms of the settlement agreement, the final matching policy asks program accountants to apply vague and subjective determinations about when revenues may have been ‘earned’ according to the claimant’s underlying business activities,” the class has said in court documents. “This was never discussed nor agreed to during the settlement negotiations.”

The dispute hinges on the interpretation of the settlement agreement, which BP says sets a policy for a claims administrator to calculate lost profits in part by adding revenues and subtracting “corresponding variable expenses” in time periods before and after the spill in a “business economic loss” framework.

The claims administrator’s initial policy, which the Fifth Circuit rejected, did not fairly account for real-world economic impact because it was based on cash receipts and disbursements whenever they were recorded, BP says.

“That approach created gross disparities among similarly situated claimants who maintained their records according to different accounting principles,” BP said, given that payments could occur in different periods.

“Under this interpretation, the claims administrator issued hundreds of millions of dollars in fictitious, inflated and irrational awards,” BP says, citing one example that resulted in a $3 million reward for a $100,000 loss.

An accrual formula, instead, is based in “economic reality” on the time frame in which revenue is earned and expenses are correlated to the revenue, BP says.

BP won the right to appeal individual Deepwater claim determinations in its $10.3 billion settlement in May 2015.

The parties were not immediately reached for comment.

The plaintiffs are represented by Stephen J. Herman and Soren E. Gisleson of Herman Herman & Katz LLC, James Parkerson Roy of Domengeaux Wright Roy & Edwards LLC and Samuel Issacharoff.

BP is represented by Richard C. Godfrey, Wendy L. Bloom, R. Chris Heck and Jeffrey Bossert Clark of Kirkland & Ellis LLP, Thomas G. Hungar, Theodore B. Olson, Miguel A. Estrada, George H. Brown, Scott P. Martin and Amir Cameron Tayrani of Gibson Dunn & Crutcher LLP, Daniel A. Cantor and Allison B. Rumsey of Arnold & Porter Kaye Scholer LLP, S. Gene Fendler, Don K. Haycraft and R. Keith Jarrett of Liskow & Lewis and Kevin M. Downey and F. Lane Heard III of Williams & Connolly LLP.

The case is In Re: Deepwater Horizon, Lake Eugenie Land & Development Inc. et al. v. BP Exploration & Production Inc. et al., case number 15-30377, in the U.S. Court of Appeals for the Fifth Circuit.

--Editing by Bruce Goldman.

Saturday, December 30, 2017

Conk on Occupational Health and Safety - Torts Prof Blog



Conk on role of occupational health in workers comp and torts  - Torts Prof Blog

Many observers, looking back at the early twentieth century’s creation by states of the workers compensation laws have seen a grand bargain. In this view tort remedies were compromised for the certainty of more modest scheduled statutory benefits. This study argues that the tort laws were a major victory for labor. Workers gained the right to medical treatment, temporary total disability benefits, and permanent disability benefits. The medical benefits and temporary disability were prompt and reliable for all work related accidental injuries. The loss of the tort remedy against the employer was of little significance since compensation via tort was highly uncertain. Further the right to sue third parties in tort was preserved – and enabled to some degree by the workers compensation benefits received.

But occupational diseases were excluded until pressure by labor and pro labor interests achieved reforms. Much of the driving force was the recognition of pneumoconiosis – particularly silicosis. The granite cutters of Vermont spurred studies which demonstrate the limits of the germ theory of disease and identified the deadly granite dust as the cause of lung disease. Many states broadened their definitions of occupational disease.

Asbestos related disease – particularly the form of pneumoconiosis known as asbestosis advanced the science of pulmonary disease. The landmark studies by Irving Selikoff of morbidity and mortality of insulation workers created a body of evidence that supported the massive wave of third party asbestos litigation. The asbestos epidemic litigation advanced the doctrines of strict product liability law, drove courts to advance management of “mass torts” via multi-district litigation, and increased the competence of courts to deal with epidemiological and other forms of scientific evidence of disease causation.

Thursday, December 14, 2017

Judge Alex Kozinski made us all victims and accomplices.

Dahlia Lithwick is a brilliant lawyer-journalist who writes for Slate.  In this shocking confessional piece she describes how women acquiesced in the shameful and humiliating behaviour of a brilliant, powerful, and - now we all know- nefarious judge.

It's a must read. - gwc

Judge Alex Kozinski made us all victims and accomplices.

by Dahlia Lithwick

The first time I met Alex Kozinski was in 1996. I was clerking for the chief judge of the 9th U.S. Circuit Court of Appeals, and there was an orientation for new clerks in San Francisco. One of my co-clerks and I were introduced to the already legendary, lifetime-tenured young judge at a reception, and we talked for a while. I cannot recall what we talked about. I remember only feeling quite small and very dirty. Without my prompting, my former co-clerk described this interaction in an email to me this week. “He completely ignored me and appeared to be undressing you with his eyes,” he wrote. “I had never seen anyone ogle another person like that and still have not seen anything like it. Was so uncomfortable to watch, and I wasn’t even the subject of the stare.”***

Wednesday, December 13, 2017

OTHERWISE: Roy Reed, Times Reporter Who Covered the Civil Rights Era, Dies at 87 - The New York Times



Jim Dwyer writes

"‪Roy Reed, reporter, was near Meredith when he got shot, at the Selma jailhouse when King walked out, at the Pettus Bridge when blacks were bull whipped and clubbed. He would’ve been called fake news but he was the real deal. Don’t miss the John Schwartz obit "
When Dwyer, himself the "real deal",  uses the honorific "reporter" it reminds us of the heroics of the men and women, writers and photographers,  who bring us the stories of life and death, suffering and beauty around the world.

OTHERWISE: Roy Reed, Times Reporter Who Covered the Civil Rights Era, Dies at 87 - The New York Times

Wednesday, November 29, 2017

Seven Critical Truths About North Korea - The New York Times



Seven Critical Truths About North Korea - The New York Times

by Max Fisher

North Korea’s latest intercontinental ballistic missile test has provoked understandable alarm, particularly among Americans worried about the threat.
But many analysts reacted with something closer to grizzled stoicism, greeting the launch as dispiriting but unsurprising confirmation of North Korea’s capabilities and intentions. For them, news of the test, like the missile program itself, is unwelcome and concerning but not too terrifying.
It’s worth reviewing, then, some of the fundamentals that guide those experts’ views of North Korea and its weapons.
(1) It’s over. North Korea is a nuclear power now.
Policymakers will debate for years the precise moment at which the door closed to preventing or rolling back North Korea’s nuclear and missile programs. But that door is most likely now closed.
The North Koreans have little reason to give up their weapons programs, which bring them security against their otherwise vastly superior adversaries, and we have no way to make them.
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