ImmigrationProf Blog: Eleventh Circuit to Hear Arguments in Alabama, Georgia Immigration Enforcement Cases

ImmigrationProf Blog: Eleventh Circuit to Hear Arguments in Alabama, Georgia Immigration Enforcement Cases:

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Possible BP deal could tap $14 billion in fund - Houston Chronicle

Possible BP deal could tap $14 billion in fund - Houston Chronicle: by Loren Steffy

"A settlement being discussed between BP and attorneys for hundreds of businesses and others suing over the Deepwater Horizon disaster could tap billions of dollars remaining in a claims fund set up after the accident.

BP pledged $20 billion to the fund in the summer of 2010, but only about $6 billion has been paid to Gulf Coast businesses and individuals. Under one possible deal, the fund would be closed and the balance of about $14 billion used to settle legal claims, according to a person familiar with the negotiations."

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Diving into the wreck: BP & Kenneth Feinberg's Gulf Coast Gambit

Kenneth Feinberg

The imminent start of the first phase of the liability trial regarding the BP Gulf of Mexico oil spill is an appropriate occasion to post this abstract and a link to the text of my new article. - GWC


Diving into the wreck: BP and Kenneth Feinberg’s Gulf Coast Gambit
17 Roger Williams University Law Review 137 (2012)

by George W. Conk
Abstract
The 1990 Oil Pollution Act mandate - that a party “responsible” for an oil spill establish a “procedure” to  pay interim damages - has largely removed the courts from the process of determining scope of liability and turned it over to the private ordering of the claims bureau established by the responsible parties designated by the President under the OPA.

BP put its “procedure” in the hands of a lawyer of solomonic reputation - Kenneth Feinberg.  His broad settlement authority was designed to produce both prompt compensation for current losses (without prejudice to future claims) and early settlements of claims for  any future losses.  Through its  Gulf Coast Claims Facility  BP - making interim payments - has had a nearly free hand in determining the extent of its liability under the OPA. Though plaintiffs lawyers have moved to “supervise” the process through the MDL, neither a negotiated grid nor any court ruling has defined the scope of liability.

BP’s  private claims resolution process is almost entirely unregulated.  Only after months of jaw-boning by Gulf Coast Attorneys General and the U.S. Attorney General did BP  agree to be audited.  No regulations govern responsible parties who establish a “procedure”. The GCCF’s allocations are often impenetrable.  BP’s  GCCF can be described as the pseudo-fund model for mass tort claims resolution.  Though its name suggests an independent fund, the GCCF is in fact merely BP’s statutorily compelled mechanism for satisfying economic loss and clean-up claims.  In the absence of either regulatory guidance or court rulings on scope of liability the settlement parameters are indistinct to claimants.  Even BP is uneasy because Feinberg’s settlement offers under the OPA  go well  beyond the narrow parameters of maritime courts which in spill claims have historically denied compensation to all in the supply chain except fishermen and those who suffered property damage.

 The executive branch should examine the OPA’s regulatory gap.  No regulations govern the manner in which a solvent polluter meets its statutory clean-up and compensation responsibilities.  There is no liability guidance, no audit, no reporting, no monitoring of the company’s ability to meet its obligations, no review of its success in meeting its obligations.   If the executive branch does not take this up, Congress in its oversight capacity should do so.
***
Postscript:  my article does not discuss the August 26 ruling by Judge Barbier that touched on the scope of liability issue.  He ruled that liability under maritime law is limited to fishermen and those who suffered property damage or personal injury. However, he suggests that the scope of liability will be broader under the Oil Pollution Act.

The block quote below gives some of the flavor. - GWC

[The Court notes that OPA does not expressly require “proximate cause,” but rather only that the loss is “due to” or “resulting from” the oil spill. While the Court need not define the precise contours of OPA causation at this time, it is worth noting that during oral argument both counsel for BP and the P(laintiffs) S(teering) (Committee) conceded that OPA causation may lie somewhere between traditional “proximate cause” and simple “but for” causation. ]
(citing CSX v. McBride, U.S. 2011)]

Black at Stuyvesant High — One Girl’s Experience - NYTimes.com

I wonder if the test for admission to the Mandarinate was the first standardized test in the world? - GWC
Black at Stuyvesant High — One Girl’s Experience - NYTimes.com:  by Fernanda Santos
"Rudi-Ann Miller, a 17-year-old senior who came to New York from Jamaica and likes to style her hair in a bun, slick and straight, like the ballerina she once dreamed of becoming.

“The Asian kids, they’re just everywhere,” she said.

When the bell rings and the school’s 3,295 students spill out of classrooms into the maze of hallways, escalators and stairs like ants in a farm, blacks stand out because they are so rare. Rudi was one of 64 black students four years ago when she entered Stuyvesant, long considered New York City’s flagship public school. She is now one of 40.

Asians, on the other hand, make up 72.5 percent of Stuyvesant’s student body (they are 13.7 percent of the city’s overall public school population), a staggering increase from 1970, when they were 6 percent of Stuyvesant students, according to state enrollment statistics. Back then, white students made up 79 percent of Stuyvesant’s enrollment; this year, they are 24 percent, and 14.9 percent systemwide."

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‘Neither Admit Nor Deny’ Settlements Draw Judges’ Scrutiny - NYTimes.com

‘Neither Admit Nor Deny’ Settlements Draw Judges’ Scrutiny - NYTimes.com:

by Edward Wyatt

"An S.E.C. commissioner, Luis A. Aguilar, told a group of securities lawyers that a recent attempt to tighten the agency’s policy of allowing a company to settle a fraud case while neither admitting nor denying any wrongdoing “applies in so few situations, it needs to be revised to be more useful and effective.”"

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Opinion analysis: Court gives police officers qualified immunity : SCOTUSblog

Opinion analysis: Court gives police officers qualified immunity : SCOTUSblog: "A Los Angeles sheriff’s detective and his supervisor may have erred in executing a search warrant that lacked probable cause, but they were not “plainly incompetent” so as to be denied qualified immunity. That was the Court’s holding yesterday in Messerschmidt v. Millender. The Court’s divided ruling declined to make any obvious sweeping revisions to its nearly thirty-year-old jurisprudence regarding immunity for officers who execute warrants lacking probable cause, although Orin Kerr here suggests at least one aspect in which the opinion could prove significant."

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CPRBlog: Can Corporations Violate Human Rights? In Kiobel v. Royal Dutch Petroleum, the Supreme Court May Say Yes ... or No

On February 28 the Supreme Court will hear argument in Kobel. The 2d Circuit Court of Appeals held that a corporation cannot be a human rights violator because the Alien Tort statute permits only the sort of claims recognized under customary international law. For full coverage see Scotus Blog. - GWC

CPRBlog: Can Corporations Violate Human Rights? In <i>Kiobel v. Royal Dutch Petroleum</i>, the Supreme Court May Say Yes ... or No: "For over fifty years, Shell has extracted oil from Nigeria, causing great harm to the environment and people of the Niger delta. The Ogoni people living in the delta protested Shell’s operations, and in response the Nigerian government harshly oppressed them. Most infamously, in 1995 it executed the author Ken Saro-Wiwa, together with eight other leaders of the protests.

Esther Kiobel, the widow of one of the executed men, as well as other affected Ogoni, sued Shell in U.S. federal court, claiming that it aided and abetted the Nigerian government in its violations of human rights law. The plaintiffs relied on the Alien Tort Statute (ATS), a law enacted by the First Congress, in 1789, which gives federal courts jurisdiction over claims by aliens arising from torts committed in violation of international law."

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CPRBlog: Mardi Gras, Check. BP "Trial of the Century" Here We Come.

Robert Verchick, Center for Progressive Reform blogger, has some FAQ on the upcoming BP trial. - GWC

CPRBlog: Mardi Gras, Check. BP "Trial of the Century" Here We Come.: by Robert Verchick

"Next week, squadrons of lawyers, journalists, petroleum engineers, and fisher folk are scheduled to descend on New Orleans, squeeze into a federal courtroom, and begin on Monday what the media have modestly called, “The Trial of the Century,” otherwise known as the BP Oil Spill litigation.

Whatever the rest of the century holds, it seems fair to say that this legal dispute, if it does not settle, will be the most complicated environmental trial anyone has ever seen. With a thousand plaintiffs, a galaxy of witnesses, and 20,000 exhibits, this spectacular has more moving parts than a Madonna half-time show. As the trial unfolds, I’ll provide you with some occasional shrimp-boots-on-the-ground legal blogging."

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Deepwater Horizon trial may hold many twists for BP - FT.com

Deepwater Horizon trial may hold many twists for BP - FT.com: by Ed Crooks & Sylvia Pfeiffer (free registration required)

"At 8am on Monday February 27, the trial is due to start in the civil case over the 2010 Deepwater Horizon disaster in the Gulf of Mexico in which 11 men died.
Before then, however, there could still be several dramatic turns left in the largest and most complex litigation the US has seen for more than a decade, which will rule on who was to blame for the largest oil spill in US waters.
Talks are continuing between the parties – including BP, other companies involved in the disaster, the US government, and lawyers for roughly 120,000 civil plaintiffs – over possible pre-trial settlements."

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Legal claims can be served via Facebook, High Court judge rules - Telegraph

Legal claims can now be served via Facebook in Britain, after a landmark ruling in the English High Court in AKO Capital, LLP v.  TFS Derivatives Limited.

Legal claims can be served via Facebook, High Court judge rules - Telegraph:

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