On the 19th of May, the 5th Circuit Court of Appeals denied BP’s request for an en banc hearing of the issue of causation. This lets stand the earlier decisions of the 5th Circuit panels confirming both the Settlement’s quantitative method of determining causation and its practical application by the Settlement Administrator. BP’s only option now is an appeal to the US Supreme Court. With billions of dollars on line, BP has nothing to lose but to file an appeal.
Of course, BP should not be too unhappy with Court rulings this month. In early May, the US District Court approved the Administrator’s proposal on matching revenues with costs for cash-basis claimants. In a document that exceeded 90 pages, or nearly 10% of the overall settlement document, the Administrator outlined seven factors which, if satisfied, would trigger an exhaustive analysis by the accountants reviewing the claims. In doing so, they will ask for all source documents used to produce each company’s profit and loss statements, even if these fall outside the claim’s causation or benchmark periods. In short, the accountants will be producing their own set of profit and loss statements. Further, a brief review of the seven factors reveals that very few, if any, cash-basis claimants will escape this matching analysis.
It’s no wonder BP strongly supported the claims administrator’s proposal.