Commentator Rick Kuykendall again comments on the progress of the BP oil spill litigation. In this edition, he discusses the certiorari process and suggests that whether or not the Supreme Court grants certiorari usually comes down to the recommendation of the particular justice assigned to the judicial circuit in which the case is lodged. That justice’s opinion carries a lot of weight. Less than one percent of all the certiorari petitions are actually granted by the Court. So, Kuykendall opines, if BP makes good on its plan to seek certiorari from the 5th Circuit Court of Appeal, the decision could come down to the vote of a single justice.
In this case, Justice Scalia is the justice assigned to the 5th Circuit. BP has also asked the 5th Circuit to stay the payment of any business economic loss (BEL) claims pending the outcome of any action in the Supreme Court. So it is conceivable, Kuykendall says, that BP would ask Justice Scalia to continue the injunction against the payment of claims, which would be highly unusual. [Note: BP made that request on May 28, 2014.] So one justice would make two important decisions in the case even before the whole Court had a chance to consider the case.
Justice Scalia’s son is involved with Gibson, Dunn & Crutcher, LLP, one of the law firms representing BP in this litigation. Because of that, Kuykendall suggests, it would be well for Scalia to consider recusing himself from the consideration of this case so as to avoid even the appearance of impropriety. Gibson Dunn has been involved in the case for six months at this date.
Mr. Kuykendall is a principal in Kuykendall and Associates, LLC, in Fairhope, Alabama. He began his law practice over twenty years ago in Birmingham, Alabama with one of the most successful union side, labor law firms in the United States -- Cooper, Mitch, Crawford and Kuykendall. After becoming the managing partner in 1983, Rick presided over the firm’s evolution into a successful and powerful plaintiff/public interest law firm with a nationwide practice. Despite the firm’s rapid growth and financial success, Rick never allowed the firm to deviate from its core mission of helping those who needed it the most, despite the odds. The, provides online, on-demand, legal video content, provided by attorneys, law professors and others from around the world. The Legal Broadcast Network is a featured network of the Sequence Media Group.