Attorney Rick Kuykendall provides an update to the BP Oil Spill for The Legal Broadcast Network, saying that a portion of the case, on a preliminary basis, has been settled in a class action. Different from a typical mass tort case where settlements are announced, the court must act on behalf of all the punitive class members in a class case. At the end of the day, Kuykendall says, the court needs to ask if the class settlement is fair to the most amount of people.
A couple of months ago, the U.S. Supreme Court issued a fairly expansive ruling in the employment context in the Walmart case, saying class actions aren't really vehicles to settle big cases like this, says Kuykendall says. He also refers to a case in consumer law with Comcast Cable, where the Supreme Court ruled in similar fashion. This case, however, is still open as to whether or not it should be settled by a class, as a final decision by the court has not been reached.
Under the oil pollution act, this case is different because the responsible operators, BP in this case, was obligated to have a claims system in place at the time it was designated as the responsible operator, according to Kuykendall. The now court-supervised claims program is "putting the cart somewhat before the horse," says Kuykendall because there hasn't been final approval of the class.
In a class action suit vs. mass tort, the question, again, comes up about "fairness." There is an opportunity for members of the class to object to the settlement and in this case, that deadline is August 31, 2012. After that, the court gives them a chance to opt-out of the case by October 1, 2012. Then, the court conducts a hearing on the ultimate fairness of the settlement and that hearing takes place November 8, 2012 in New Orleans. It is entirely possible, Kuykendall suggests, that given how ambitious the schedule has been that the dates may be relaxed.
Kuykendall says that if members of the class have lots of questions, they should get answers from their lawyers before the deadlines. There is also a good website that the claims administrator has set up and can be found under "official settlement." Kuykendall says it is very important for class members to get their claims organized and filed, as the claim system is more complicated than originally anticipated, with longer forms requiring more information. He says claims will be paid on a first in, first out basis.
Frederick T. Kuykendall III, of counsel to Farrell & Patel, P.A., is licensed to practice in Alabama, as well as before the United States Supreme Court Northern, Middle, and Southern Districts, and the third, fifth, and eleventh circuit courts of the United States. He is currently a strategic counsel to Murphy, Falcon and Murphy PA in Baltimore, Md., and the founding member of The Law Offices of Frederick T. Kuykendall III in Mobile, Ala. He is also a featured commentator with The Legal Broadcast Network, providing on-demand legal video content.