Judge must decide who can withdraw from spill deal

Thousands of Gulf Coast residents claiming economic or health damages from the 2010 oil spill have told a New Orleans federal judge they don’t want to participate in a class action settlement, and now he has to decide which ones he’ll allow to opt out.

Plaintiffs’ lawyers say several thousand of their clients applied to opt out ahead of a deadline last Thursday. But the attorneys and other legal experts say it’s not clear how many of those claimants might have been ineligible under the settlement anyway, and therefore chose to keep open the option of pursuing other legal remedies. Claimants who do not opt out must proceed under the settlement’s terms.

The settlement might not cover individuals or businesses who, for example, fall short of its specific requirements, signed earlier waivers or received payments under a claims system that was in place before BP and a steering committee of plaintiffs’ lawyers reached the settlement deal earlier this year.

“I doubt that the bulk of those who have opted out did so because they are disadvantaged by the settlement, but because they are uncertain whether they would have a claim for economic loss under its terms,” said Blaine LeCesne, a law professor at Loyola University.

Several plaintiffs’ attorneys said clients with ambiguous claims asked to opt out to protect their ability to bring their cases before a jury.

But U.S. District Judge Carl Barbier, who is overseeing litigation surrounding the disaster that began with the blowout of BP’s Macondo well about 50 miles off the Louisiana coast, may reject some of the opt-out petitions.

“We will not know who has opted out until the court has determined which opt-outs it will accept,” said Houston lawyer Brent Coon, who represents about 15,000 claimants and estimates 10,000 want to opt out.

“The court has very rigid standards regarding what is required to opt out,” Coon said. “Some of these cases complied with that; some did not. Is there going to be a more liberal acceptance of those or is the court going to retain its very rigid protocol?”

He and others say appeals courts eventually may have to sort out details of the opt-out requirements and other elements of the litigation.

The settlement before Barbier only involves BP and private claimants. It doesn’t cover claims involving other companies that worked on the Macondo project, or possible government civil and criminal complaints.

At a hearing Thursday in New Orleans, Barbier will hear lawyers argue the merits of objections they have raised to the settlement negotiated between BP and the Plaintiffs’ Steering Committee to resolve economic claims against BP for the accident that spilled millions of barrels of oil and killed 11 workers.

He tentatively has approved the settlement. The Thursday proceeding, called a fairness hearing, will inform his decision on whether to give the settlement final approval.