BP Plc and lawyers for businesses and individuals suing over the 2010 Gulf of Mexico oil spill are near a $14 billion accord to be funded with money set aside for out-of-court settlements, according to three people familiar with the talks.
BP would close its $20 billion Gulf Coast Claims Facility and shift the remaining $14 billion to plaintiffs hurt by the disaster, the largest offshore spill in U.S. history, the people said. Such a deal wouldn’t include fines by the federal government that could reach $17.6 billion, lawsuits by state governments or claims between BP and partner companies involved in the disaster. BP shares rose almost 2 percent on news of the potential deal to their highest point in more than a year.
The April 2010 Macondo well blowout destroyed the Deepwater Horizon rig, killed 11 workers and sent more than 4 million barrels of oil spewing into the gulf over three months. It spawned hundreds of suits against London-based BP, Vernier, Switzerland-based Transocean Ltd., owner and operator of the doomed rig, and Houston-based Halliburton Co., provider of cementing services at the site.
“They could be about 90 or 95 percent done and now they have to go that last yard, which is always the toughest,” Carl Tobias, who teaches mass-tort law at the University of Richmond in Virginia, said of the proposed accord. “There could be an awful lot of money that is still in play or provisions that are hard to swallow for one side or the other.”
The discussions between the plaintiffs and BP are nearing completion, said the people, who declined to be identified because they weren’t authorized to speak publicly.
The progress allowed BP to persuade a federal judge in New Orleans to delay by a week a multibillion-dollar liability trial over the spill that was set to begin today. They asked for extra time to allow talks to continue, the company and plaintiffs said yesterday in a joint statement. They didn’t make reference to the $14 billion proposal.
David Falkenstein, a spokesman for the lead plaintiffs’ lawyers in the case, didn’t return calls seeking comment. Ellen Moskowitz, a spokeswoman for BP, declined to comment on the proposed accord beyond the earlier statement on the delay.
BP shares rose 1.1 percent to 501.70 pence in London trading.
The company has been in settlement talks for months with the federal government, other companies facing liability for the spill, as well as plaintiffs lawyers, people familiar with the discussions have said.
The proposed $14 billion agreement would be separate from BP’s talks with the government, the people said.
The U.S. Clean Water Act lets the U.S. seek fines of as much as $1,100 for each barrel of oil spilled as a result of simple negligence, often described as a failure to exercise ordinary care. The maximum increases to $4,300 a barrel for gross negligence, or a conscious act or omission, leaving BP liable for as much as $17.6 billion in fines.
BP set aside $3.5 billion to pay Clean Water Act fines based on its own lower estimate of barrels spilled and no finding of gross negligence.
U.S. District Judge Carl Barbier, who would preside over the trial now scheduled to start March 5, would decide whether BP can demand other firms involved in the spill help pick up the tab for the estimated $26 billion in costs spawned by the destruction of the Deepwater Horizon.
If there isn’t a deal reached by all sides, the judge must determine whether the companies should pay punitive damages to thousands of business and property owners, and fines to the government for polluting the Gulf of Mexico.
The proposed settlement with the non-governmental plaintiffs would allow lawyers to use the claims fund to set up a system for compensating spill victims based on the type of harm they suffered, the people familiar with the talks said. The system may be similar to those used to decide recoveries in class-action cases, they said.
The claims fund was set up to make emergency and other types of payments to spill victims under the U.S. Oil Pollution Act to speed up assistance and cut down on the number of claims filed in court.
Attorneys for some victims argued in court filings that officials of the fund, run by Washington-based lawyer Kenneth Feinberg, used “coercive tactics” to force business and property owners to accept inadequate payments for their claims and give up their rights to sue. Feinberg, chosen to run the claims fund by BP in 2010, declined to comment on the proposed settlement.
One of the lead negotiators for the plaintiffs’ lawyers group pushing the $14 billion settlement proposal is Joe Rice, a South Carolina-based lawyer who helped craft the 1999 agreement under which Philip Morris and three other cigarette makers agreed to pay states $246 billion for treating smoking-related illnesses, the people familiar with the BP talks said.
Rice, who cofounded the Charleston, South Carolina-based law firm of Motley Rice, didn’t return calls seeking comment today on his role in the BP settlement talks.
Barbier agreed to add Rice to the Plaintiffs Steering Committee in the BP case, which oversees the handling of spill victims’ claims consolidated in New Orleans, in October, according to court filings.
While lawyers for plaintiffs whose cases have been consolidated before Barbier proposed the settlement, attorneys for other spill victims may oppose it as inadequate, the people familiar with the talks said.
Brent Coon, a Houston-based lawyer representing spill victims both in federal and state courts, said he worries $14 billion won’t provide enough compensation for those harmed in the disaster.
“I’m concerned that the $14 billion fund isn’t adequate, and I’m concerned that just transferring oversight of the fund to our own group may or may not be enough to solve the problems,” he said in an interview.
Plaintiffs’ lawyers and the companies still haven’t been able to pin down the total number of claims tied to the spill because filing deadlines don’t expire for a year, he said.
“The total claims could double from where they are now,” Coon said.
Another problem with the settlement proposal is lawyers for the steering committee don’t represent the majority of victims in the case, Coon said, which he said raises questions about their ability to act in the best interests of all claimants.
“A very small minority of lawyers are negotiating a deal that leaves them in control of the purse strings and let’s them dole it out,” he said. “I know a number of lawyers who are extraordinarily hostile to that idea.”
BP agreed in October to a $4 billion settlement with Anadarko Petroleum Corp., which owned a 25 percent stake in the Macondo well. It also agreed earlier this month to drop claims against drilling fluid provider M-I Swaco, a unit of Houston-based Schlumberger Ltd.
Transocean officials alleged in a Feb. 24 court filing that BP officials overseeing the well ignored questions about whether safety tests done hours before the blast were flawed.
Donald Vidrine, the senior BP manager on the Deepwater Horizon on April 20, 2010, talked with an engineer about unsatisfactory well tests less than an hour before the explosion, Transocean’s attorneys said.
While Mark Hafle, a Houston-based BP drilling engineer, warned Vidrine in a phone call that stability tests on the well might be flawed, “neither man stopped work” at the facility, Transocean said.
The BP officials allowed crews to continue displacing drilling fluid in the well with seawater, the attorneys for oil-drilling company said. Experts who reviewed the companies’ handling of the well noted that once the fluid was removed, the lighter seawater couldn’t stop natural gas from leaking into the well and causing an explosion.
Scott Dean, a BP spokesman, declined to comment on the Transocean filing about the flawed safety tests.
Vidrine has refused to testify, citing medical-related problems and Hafle has invoked his constitutional protection against self-incrimination for refusing to testify.
The case is In re Oil Spill by the Oil Rig Deepwater Horizon in the Gulf of Mexico on April 20, 2010, MDL-2179, U.S. District Court, Eastern District of Louisiana (New Orleans).