Appeals court rehearing requested after separate panels of judges split on oil spill ruling

NEW ORLEANS – BP has asked the Fifth Circuit Court of Appeals for a rehearing after two panels of judges on the court split on a decision regarding the certification of a class of plaintiffs.

The request came only 11 days after a panel of judges ruled 2-1 that U.S. District Court Judge Carl Barbier did not have to revisit a settlement agreement that BP claims overcompensates some businesses that lost income due to the oil spill and provides damages to other businesses who can show no direct link between a loss in income and the oil spill.

BP first raised the issue in early 2013 with Barbier who said his court did not have the ability to reopen the settlement agreement because both parties had agreed to it. However, BP maintained that the way the settlement process was being handled by Claims Administrator Patrick Juneau was not in line with what the company had originally agreed to.

After Barbier’s refusal to hear the case BP appealed to the Fifth Circuit and its case was heard by a panel of judges including Edith Brown Clement, Leslie Southwick and James L. Dennis.* The opinion handed down by that panel was a 2-1 opinion authored by Clement stating that Barbier should revisit the settlement agreement. However, Barbier refused to make any changes, again stating that because BP had agreed to the settlement its parameters could not be changed.

In response BP again went before the Fifth Circuit, but the second panel of judges ruled 2-1 against BP’s request to have the settlement revised.

In its latest petition to the court BP notes that three out of the six judges who have heard their arguments have sided with them in rejecting Juneau’s interpretation of the settlement agreement.

BP claims that by not rehearing the case existing legal precedents will be reversed.

“The panel’s holding that a class can be certified without regard to whether claimants have colorable claims against the defendant—so long as the plaintiff’s complaint merely alleges that class members have colorable claims— directly conflicts with numerous decisions of the Supreme Court and this Court,” the petition stated.

According to BP, the cost of allowing the existing opinion to stand would be high.

“The panel decision, moreover, will permit hundreds of millions of dollars in windfall payments to flow to entities that were not harmed by the oil spill,” the petition said.

*A previous version of this story incorrectly stated that Judges Edith Brown Clement, Emilio Garza and Eugene Davis heard BP's first appeal.