Supreme Court of the United States

Transcription

1 No. A-13A1177 IN THE Supreme Court of the United States BP EXPLORATION & PRODUCTION, INC., ET AL., Applicants, v. LAKE EUGENIE LAND & DEVELOPMENT, INC., ET AL., Respondents. BRIEF IN OPPOSITION TO APPLICATION TO RECALL AND STAY MANDATE PENDING THE FILING AND DISPOSITION OF A PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT James Parkerson Roy Domengeaux, Wright, Roy & Edwards, LLC 556 Jefferson St., Suite 500 Lafayette, Louisiana (337) Stephen J. Herman Herman, Herman & Katz LLC 820 O Keefe Ave. New Orleans, Louisiana (504) SAMUEL ISSACHAROFF Counsel of Record 40 Washington Square South New York, NY si13@nyu.edu Attorneys for Respondents

2 i TABLE OF CONTENTS Page INTRODUCTION... 2 JURISDICTION AND DECISIONS BELOW... 7 STATEMENT... 7 A. The Settlement Agreement Structure for BEL Claims B. Settlement Approval and Claim Processing C. The BEL Dispute and the Present Appeal D. The Separate Appeal to the Certification Panel in No E. The BEL Panel Ruling on Causation REASONS FOR DENYING THE APPLICATION FOR A STAY I. The Court is Unlikely to Grant Certiorari A. BP is Seeking Review in the Wrong Case B. Two Courts Have Rejected BP s Claimed Settlement Interpretation II. The Claimed Certiorari Issues are Without Merit A. There is No Circuit Conflict on the Claimed Question for Certiorari B. BP Does Not Even Address the Court s Recent Decision in Lexmark III. The Equities Strongly Disfavor a Stay

3 ii TABLE OF AUTHORITIES Page Cases ABT Bldg. Prods. Corp. v. Nat l Union Fire Ins. Co., 472 F.3d 99 (4th Cir. 2006) Allstate Ins. Co. v. Jacobsen, No , 2014 U.S. LEXIS 3213, 2014 WL (May 5, 2014) Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) Americana Art China Co. v. Foxfire Printing & Packaging, Inc., 743 F.3d 243 (7th Cir. 2014) Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 133 S. Ct (2013)... 3, 32 Belcher v. Stengel, 429 U.S. 118 (1976) BSH Home Appliances Corp. v. Cobb, 134 S. Ct (2014) Denney v. Deutsche Bank AG, 443 F.3d 253 (2d Cir. 2006)... passim Graver Tank & Mfg. Co. v. Linde Air Prods. Co., 336 U.S. 271 (1949) In re Deepwater Horizon, 732 F.3d 326 (5th Cir. 2013) ( Deepwater Horizon I )... 14, 15, 16 In re Deepwater Horizon, 739 F.3d 790 (5th Cir. 2014) ( Deepwater Horizon II )... passim In re Deepwater Horizon, 744 F.3d 370 (5th Cir. 2014) ( Deepwater Horizon III )... passim In re Oil Spill by the Oil Rig Deepwater Horizon in the Gulf of Mexico, on April 20, 2010 (MDL No. 2179), 731 F. Supp. 2d 1352 (Judicial Panel on Multidistrict Litigation, August 10, 2010)... 8

4 iii TABLE OF CONTENTS (continued) Page In re Oil Spill, 808 F.Supp.2d 943 (E.D. La. 2011)... 9, 31, 34 In re Warfarin Sodium Antitrust Litig., 391 F.3d 516 (3rd Cir. 2004) In re Wireless Tel. Fed. Cost Recovery Fee Litig., 396 F.3d 922 (8th Cir. 2005), reh g & reh g en banc denied, 2005 U.S. LEXIS 4173, cert. denied, Stainless Sys. v. Nextel W. Corp., 546 U.S. 822 (2005) Jacobsen v. Allstate, 310 P.3d 452 (Mont. 2013) Kohen v. Pacific Inv. Mgmt. Co. LLC, 571 F.3d 672 (7th Cir. 2009)... 28, 30 Lewis v. Casey, 518 U.S. 343 (1996)... 6, 33 Lexmark International v. Static Control Components, 134 S. Ct (2014)... 4, 31 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)... 6, 17, 32, 33 Mims v. Stewart Title Guar. Co., 590 F.3d 298 (5th Cir. 2009) Morris v. Tate (In re S. Ohio Corr. Facility), 24 F. App x 520 (6th Cir. 2001) Nakash v. NVIDIA Corp. (In re NVIDIA GPU Litig.), 539 Fed. App x 822 (9th Cir. 2013) Olick v. John Hancock Mut. Life Ins. Co., 106 F. App x 736 (1st Cir. 2004) Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999) Pedraza v. United Guar. Corp., 313 F.3d 1323 (11th Cir. 2002)... 27

5 iv TABLE OF CONTENTS (continued) Page Reed Elsevier, Inc., v. Muchnick, 559 U.S. 154 (2010) Sears v. Butler, 134 S. Ct (2014)... 28, 29 Sullivan v. DB Investments, Inc., 667 F.3d 273 (3rd Cir. 2011) Union Asset Mgmt. Holding AG v. Dell, Inc., 669 F.3d 632 (5th Cir. 2012) Whirlpool Corp. v. Glazer, 134 S. Ct (2014) Statutes 33 U.S.C. 2702(b)(2)(E) U.S.C. 2702(a) U.S.C. 2705(a) U.S.C U.S.C. 2101(f) Oil Pollution Act of 1990, 33 U.S.C , 33 Rules Fed. R. Civ. Proc passim Montana Rule 23(b)(2) Treatises and Articles David W. Robertson, The Oil Pollution Act s Provisions on Damages for Economic Loss, 30 MISS. C.L. REV. 157, (2011) MANUAL FOR COMPLEX LITIGATION, FOURTH,

6 TO THE HONORABLE ANTONIN SCALIA, ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES AND CIRCUIT JUSTICE FOR THE FIFTH CIRCUIT: Respondents, who are thousands of businesses in the Gulf States that suffered economic losses from the Deepwater Horizon oil spill, respectfully submit that BP s Application to Recall and Stay the Mandate issued by the U.S. Fifth Circuit Court of Appeals in No should be denied. For the reasons set forth below, the case sub judice, which only concerns one from among the many appeals arising from the BP oil spill, does not raise any of the putative constitutional questions invoked by the Application. It involves instead a single matter of contract interpretation between the settling parties. Specifically, the case from which review is sought addresses only the treatment of the discrete calculation of a subset of class claims that are denominated Business Economic Losses ( BEL ). The BEL claims are only one of eight categories of claims that the parties agreed would be compensated under the terms of a class action settlement agreement negotiated for months by the parties, and approved by the district court, with BP s support, on a voluminous record. Two courts below have already made factual determinations about the disputed interpretation as to how this discrete subset of the Settlement Agreement should be construed. As Judge Southwick wrote for the Fifth Circuit, [t]here is nothing fundamentally unreasonable about what BP accepted but now wishes it had not. 1 1 In re Deepwater Horizon, 744 F.3d 370, 377 (5th Cir. 2014) ( Deepwater Horizon III ). All of the operational decisions below are included in the Appendix to BP s

7 2 BP s advanced case of buyer s remorse raises no significant matter justifying certiorari review. The entire matter is quintessentially a private dispute that implicates no other party, case, or principle, nor any serious federal question. INTRODUCTION There are four core reasons for which the stay should be denied: First, BP seeks review of the wrong case. The mandate that BP seeks to recall is from No , a case that turns exclusively on a matter of contract interpretation. The question correctly answered based on numerous factual findings by the district court and affirmed by the Court of Appeal is simply how the terms of one provision of a massive Settlement Agreement should be applied. There was no issue presented to the Fifth Circuit in No seeking to set aside the class settlement on Rule 23, Article III, or any other grounds. By contrast, the Rule 23 and Article III questions that BP now seeks to raise stem from a separate appeal, in No , of a different district court judgment and order, rendered by a different Panel of the Fifth Circuit. That case involved a challenge to the approval of the class settlement by a series of objectors, and the Fifth Circuit affirmed the judgment and order of the district court. BP does not seek review of the order in No , nor could it in that case BP was an appellee seeking such affirmance of the district court. In fact, BP submitted hundreds of pages of expert declarations in support of the district court s judgment and order, including Application for a Stay. The Deepwater Horizon III decision for which this Application is sought is found at Appendix D. Notably, BP failed to attach the Mandate from to its Appendices.

8 3 class-action experts who verified that the Class Settlement satisfied both Article III standing requirements and all requirements of Rule 23. BP did not appeal nor join the few timely appeals of that decision. Rather, BP stood purely as an appellee in the Court of Appeals, which affirmed the class settlement approval that BP sought and supported in the courts below. Second, even were the Court to overlook the procedural bar to review in the present case, there is no conflict among the circuits. No court of appeal has decreed that settlement class boundaries must be drawn to include only those to whom a settlement payment will ultimately be made. As this Court noted only last Term, requiring plaintiffs to prove that all class members will recover damages as a condition of class certification is putting the cart before the horse. Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 133 S. Ct. 1184, 1191 (2013). Indeed, all Circuits have affirmed class settlements in a wide variety of cases in which some prove-up, beyond class membership, was required for a claims payment. In the more exacting litigation context, this Court has this Term denied at least four petitions for certiorari by defendants who, in similar breathless fashion, asserted that Article III forecloses the certification of any class in which each class member has not already established harm as a predicate to certification. Further, in this Term s decision in Lexmark Int l v. Static Control Components, which goes unmentioned by BP, this Court again reaffirmed that, like any other element of a cause of action, causation must be alleged with sufficient specificity to

9 4 survive a motion to dismiss. 2 The Court noted that subject matter jurisdiction means the fact of injury must be adequately alleged at the pleading stage in order for the case to proceed. 3 The Court further reasoned that [i]f a plaintiff's allegations, taken as true, are insufficient to establish proximate causation, then the complaint must be dismissed; if they are sufficient, then the plaintiff is entitled to an opportunity to prove them. 4 Because BP settled the claims at issue, their individual merits have never been litigated. At the same time, BP s repeatedly voiced claim that uninjured parties are being compensated is without any factual support in the record. No court has ever made a factual finding that any claim without a traceable injury was deemed eligible for payment. Standing is a matter of adequate pleading, not of ultimate proof, and all the more so in the settlement context in which the fact of settlement obviates the need for trial. Nonetheless, per Lexmark, actions for economic damages can proceed to trial (and hence logically, as here, to settlement) once plaintiffs have adequately alleged the elements of their claims at the pleading stage. Third, BP is unlikely to prevail on the merits. Both the district court and the Court of Appeal have held that the Settlement Agreement means what it says. The appeal in No is fundamentally a matter of contract interpretation 5 between parties to a complicated settlement negotiated word-by-word over an intensive, months-long settlement process. At bottom, the only issue is whether the parties to 2 Lexmark Int l v. Static Control Components, 134 S. Ct (2014). 3 Id. at 1391 n.6. 4 Id. 5 See Deepwater Horizon III, 744 F.3d at 374.

10 5 the settlement contract intended and agreed that eligibility for recovery under the terms of the settlement would be governed by the objective causation requirements in Exhibit 4B of the Settlement Agreement, or, as BP contended after settlement approval, there would be a second, undefined, and unspecified causation analysis. 6 BP itself made numerous representations to the Claims Administrator and to the district court which confirm a straight-forward reading of the contractual terms, and belie BP s position before this Court today. Indeed, when No was first argued to the Court of Appeals, BP told the court that it was not appealing the causalnexus issue, and confirmed that the objective standards and requirements for causation were a negotiated compromise of thousands of claims against BP. 7 Although the Court of Appeals correctly held that the Economic & Property Damages Class Settlement complied with all requirements of Rule 23 and Article III, it did so in another appeal, through the ruling by what is termed the Certification Panel in 6 See, e.g., Denial of Petition for Rehearing, No (5th Cir. May 19, 2014) [Doc ] at p.7 ( Through Exhibit 4B, the parties agreed that claims would be governed by an objective formulae. BP argues that an additional duty on the Claims Administrator exists to ensure that every claim contains a direct causal nexus to BP s conduct. That requirement does not arise under the agreed terms of Exhibit 4B, and it does not arise under constitutional or other requirements for a class action ). 7 As of this filing, more than 270,000 claims have been filed among the different claim types, more than 100,000 of which are BEL claims. The geographic arc of the class itself, the entire states of Louisiana, Mississippi, Alabama, and the Gulf Coast counties of Florida and Texas, was specifically negotiated and agreed upon by BP so it could obtain broad class relief. See BP Counsel, Transcript of the Fairness Hearing, at 61 ( So the class size is the citizens and communities here that fall within the class definition. We estimate it, you know, could be a couple million, but it doesn't really matter. We think that the total objectors and opt-outs, no matter how you measure them, are less than one percent. ) [Rec. Doc. 7892].

11 6 No , not in the BEL decision in No Even as to the merits in the case not before this Court, neither Lujan v. Defenders of Wildlife 8 nor Lewis v. Casey, 9 nor any other decision of this Court, supports the notion that Article III somehow limits the ability of private parties to enter into or seek to enforce contractual rights or obligations or to resolve existing litigation between them. Finally, the equities weigh strongly against the granting of a stay. The Oil Pollution Act of 1990, 33 U.S.C. 2701, et seq., the statutory claim at the center of this settlement, was designed by Congress in the wake of the Exxon Valdez disaster to bring swift and effective relief to communities suffering from the broad and rippling effects of environmental calamities. BP, aided by a team of sophisticated attorneys and experts, specifically chose the categories of businesses and individuals that could claim compensation for objectively documented losses under the settlement. BP has enjoined the processing and payment of all business claims for over seven months. In the meantime, BP has successfully challenged and changed the accounting standards to be applied to these claims under the Settlement Agreement, meaning that BP has by no means exhausted its remedial options in the courts below. Given three considered Panel opinions and several petitions for full en banc review, BP cannot possibly argue that its position has not been subject to vigilant judicial attention, oversight, consideration, and relief. To recall and stay the mandate is to continue an 8 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). 9 Lewis v. Casey, 518 U.S. 343 (1996).

12 7 effective injunction against thousands of business claims that BP has never challenged. For these reasons, for the reasons stated by the district court and the Court of Appeals, and for the reasons outlined further below, BP s application to recall and stay the mandate should be denied. JURISDICTION AND DECISIONS BELOW Respondents accept BP s statement of jurisdiction below and citation to the decisions below. STATEMENT On April 18, 2012, BP and Class Counsel entered into the Deepwater Horizon Economic & Property Damages Class Settlement Agreement, a 1000-plus page document, developed over eight months of intensive negotiations, designed to provide relief to a broad geographical range of businesses and individuals, in eight distinct Claims Categories. 10 One of these eight categories, the Business Economic Loss (BEL) Claims Category is the subject of the appeal and mandate in No , and BP s current stay application. A. The Settlement Agreement Structure for BEL Claims. The present dispute arises from the eligibility and claims resolution procedures for BEL claims, a distinct subset of the massive settlement that featured 10 The entire Settlement Agreement was filed into the district court record as Rec. Doc through The Causation Framework for Business Economic Loss (BEL) Claims, discussed infra, is contained within Exhibit 4B, and appears in the record as Rec. Doc The separate Compensation Framework for BEL Claims is contained within Exhibit 4C, and appears in the record as Rec. Doc

13 8 negotiated claims processes and compensation schedules for many categories of property damage and economic loss claims, including, inter alia, the seafood industry, the workers on BP s clean-up vessels, and a variety of other groups of businesses and individuals economically affected by the Deepwater Horizon spill and its sequelae, including the prolonged post-spill containment and clean up effort. 11 These claims, originally asserted in class actions and individual suits filed in the five Gulf states (and beyond) had been transferred and assigned to Judge Barbier in the Eastern District of Louisiana by the Judicial Panel on Multidistrict Litigation. 12 Once centralized in the district court, they were further organized into a pleading bundle for purposes of challenges to the pleadings and delineating the scope of pretrial discovery. 13 The BEL claims are controlled by Exhibit 4 of the Settlement Agreement, a set of protocols that went into effect, subject to the execution of a release, even before final approval of the settlement The explosion, fire, spill, and many months of subsequent devastation of the Gulf environment and economy are encapsulated in the Settlement Agreement under the term Deepwater Horizon Incident. SETTLEMENT AGREEMENT, See In re Oil Spill by the Oil Rig Deepwater Horizon in the Gulf of Mexico, on April 20, 2010 (MDL No. 2179), 731 F. Supp. 2d 1352 (J.P.M.L. 2010) 13 The process of organizing the various types of claims asserted in the wake of the spill into discrete pleading bundles to facilitate pleading challenges, and promote efficient management, is described in In re Oil Spill, 808 F.Supp.2d 943, (E.D. La. 2011). 14 Unlike most proposed class settlements, the parties agreed that an independent settlement program and trust would be established to accept, process, and pay eligible claims, prior to and independent of formal Rule 23 approval, subject to the execution of an individual release. See generally SETTLEMENT AGREEMENT, 4.1 (establishment of Deepwater Horizon Court Supervised Settlement Program); 4.4 (Process for Making Claims); 5.12 (establishment of Settlement Trust); 21.2

14 9 When a business submits a BEL Claim to the Settlement Program, the claim is required under Exhibit 4B of the Settlement Agreement to pass a specific causation test under the terms negotiated by the parties. In most cases, the business is required to pass what is known as the V-Test by proving, with objective business records, that its revenues fell off after the Spill in 2010, and then recovered in Generally, the level of proof required for compensation under the settlement corresponds to the obviousness of the nexus to the Spill; for example, businesses farther from the coast have to demonstrate a deeper V, meaning a more precipitous decline in revenues following the Gulf oil spill, and then a more dramatic recovery subsequently. While there is a narrow group of Seafood, Tourism, and other businesses immediately in the Gulf waterfront zone (what are termed Zone A claims) for whom causation is presumed, those are not the Claims that BP has questioned in the press or in its filings. Rather, the claims subject to BP s complaints and within the scope of No are businesses not directly touched by the oil (severability of any provisions found to be invalid, illegal or unenforceable); 21.3 (the Claims Administrator will continue to process claims that have been submitted to the Program in the event the class settlement is not fully and finally approved); 26.1 (regarding the binding effect of the Agreement on the Parties); Exhibit 26 (Individual Release). 15 Business Claimants that cannot meet the V-Test can attempt to satisfy causation under alternative tests, by submitting additional objective evidence of Customer Mix changes and/or cancelled contracts following the Spill. See generally EXHIBIT 4B. If a claimant cannot establish causation under any of the objective tests, the claim is denied. To date, the Claims Administrator has denied nearly 3,000 BEL claims for causation reasons alone and well over ten thousand claims in which claimants did not have the necessary documentation. Claimant denials based on lack of adequate documentation are allowed to re-file at a later time (before the program closes) if they subsequently obtain the missing documentation.

15 10 spill but who claim economic loss in the resulting depressed business environment (termed Zone C and Zone D businesses). 16 To make a claim under the Settlement, the businesses seeking BEL recovery had to submit financial records or other affirmative evidence in satisfaction of the V- Test or other objective standards that BP agreed would be used to establish causation for settlement purposes. 17 If a business claimant cannot satisfy the objective causation tests set forth in Exhibit 4B, the claim is denied. While all businesses in the affected area that did not opt out of the class settlement are bound by its terms, class membership does not guarantee any recovery; over 2,840 BEL Claims have been denied for failure to prove causation. 18 In the event that a BEL Claim passes the Causation test in Exhibit 4B, the compensation owed to that business is determined under a separate Compensation 16 See, e.g., APPENDIX B to Rumsey Declaration submitted by BP in Support of its Motion [Doc , at pp.19-48]; see also, APPENDIX A [Rec. Doc , at pp.6-18]; (see also, e.g., APPENDIX B to BP S MEMO IN SUPPORT OF EMERGENCY MOTION FOR PRELIMINARY INJUNCTION (March 15, 2013) [Rec. Doc , at pp.47-71]). On grounds not germane here, Plaintiffs have moved the district court to Strike the Rumsey Declaration and Appendix due to material omissions of fact and other evidentiary deficiencies. See Rec. Doc SETTLEMENT AGREEMENT, 12.1 (which goes on to explain that: BP reached this conclusion after considering the factual and legal issues in the Action, the substantial benefits of a final resolution of the Action, the expense that would be necessary to defend the Action through trial and any appeals that might be taken, the benefits of disposing of protracted and complex litigation, and the desire of BP to conduct its business unhampered by the distractions of continued litigation over the Released Claims ). 18 APPELLEES OPPOSITION TO EMERGENCY MOTION FOR INJUNCTION, No (Nov. 22, 2013) [Doc ] at p.11 fn.19 (citing Exhibit A to CLAIMS ADMINISTRATOR S STATUS REPORT (Oct. 11, 2013) [Rec. Doc ], at p.3).

16 11 Framework, Exhibit 4C. The dispute in No arises not from the eligibility criteria under 4B, but focuses, rather, on the resulting compensation under 4C. No other part of the Settlement is at issue here. No objector or other party participated in No , nor does any other party have a stake in this proceeding. The BEL Claim payout is a stand-alone and uncapped portion of the Settlement Agreement. The number or magnitude of BEL Claims paid does not affect or reduce settlement payments to any BEL claimant, nor to the members of any other claims category. In addition, BP expressly agreed that the Claims Administrator and Program Vendors would evaluate and process the information in the completed Claim Form and all supporting documentation under the terms in the Economic Damage Claim Process to produce the greatest Economic Damage Compensation Amount to BEL claimants and others. 19 B. Settlement Approval and Claim Processing. In support of final approval, BP submitted numerous expert declarations to the Court. Several of BP s economic experts confirmed the application of Exhibit 4B to BEL Claimants, and testified that the causation and compensation frameworks were consistent with economic reality. 20 In addition, BP introduced the testimony of Professors John C. Coffee, Jr. and Geoffrey Miller on the topics of settlement class certification and class action settlement approval, who testified in support of the 19 SETTLEMENT AGREEMENT, (emphasis supplied). 20 See generally ORDER AND REASONS (Dec. 24, 2013) [Rec. Doc ], at pp and (referencing the testimony of BP experts Sharp, Henley, and Fishkind).

17 12 proposed settlement, submitting that the class definition was objectively ascertainable, and that the proposed Class Settlement complied in all respects with Article III and Rule Such declarations are, of course, not binding on this Court, but reflect BP s affirmative endorsement of the Settlement Agreement before the district court, including on the very issues now presented in the current Application to this Court. Around the same time, the Claims Administrator, who was starting to process BEL and other claims through the Settlement Program, confirmed with the parties that the objective standards set forth in Exhibit 4B would be used to determine causation, without regard to whether such losses resulted or may have resulted from a cause other than the Deepwater Horizon oil spill. 22 BP Counsel formally agreed with the Claims Administrator s Policy, and repeatedly represented to both the Claims Administrator and the district court that where the accurate financial data establish that the claimant satisfies the BEL causation requirement, then all losses calculated in accord with Exhibit 4C are presumed to be attributable to the Oil Spill See generally MILLER DECLARATION [Rec. Doc ] and COFFEE DECLARATION [Rec. Doc ]. 22 ORDER AND REASONS (Dec. 24, 2013) [Rec. Doc ] p.10 (quoting ANNOUNCEMENT OF POLICY DECISIONS REGARDING CLAIMS ADMINISTRATION (Oct. 10, 2012), No.2. [Rec. Doc ]). 23 ORDER AND REASONS (Dec. 24, 2013) [Rec. Doc ] p.40 (quoting LETTER FROM BP COUNSEL MARK HOLSTEIN TO THE CLAIMS ADMINISTRATOR (Sept. 28, 2012), at p.3 [Rec. Doc ]).

18 13 The district court approved the Class Settlement on December 21, That judgment and order was appealed by several objectors. BP did not appeal the judgment and order. BP did not answer the appeal that was filed by objectors. The appeal was docketed as No BP was an appellee. C. The BEL Dispute and the Present Appeal. Several months later, BP filed a separate lawsuit to enjoin the Claims Administrator from paying BEL Claims under what BP contended was a misinterpretation of the Compensation Framework, Exhibit 4C. In its complaint, BP invoked the Settlement Agreement, which it described as a valid contract meeting all required elements: offer, acceptance, and consideration. 25 The dispute BP raised, post-approval, turned on intricate matters of interpretation of the Settlement Agreement, negotiated by BP, which resolved the case: specifically, the fine-grained accounting techniques used to calculate compensation to BEL claimants. In particular, BP complained that the Claims Administrator should be interpreting the definition of Variable Profit in Exhibit 4C to match expenses to the corresponding revenues under one interpretation of accounting standards. The district court rejected BP s interpretation, dismissed the suit against the Claims Administrator, and denied the injunction. 26 BP s appeal was docketed as No See Rec. Docs and COMPLAINT, BP v. Deepwater Horizon Court Supervised Settlement Program, Civil Action No (E.D.La. March 15, 2013) Rec. Docs and 9202.

19 , and led to the Court of Appeals decision of October 2, 2013, in which this interpretive accounting issue was remanded to the district court for further consideration. 27 The district court, upon remand, in part reversed itself, agreed with BP as to some of the matching requirements, and has instructed the Claims Administrator to implement a new matching policy that is clearly beneficial to BP. 28 The question of the proper accounting principles to determine the scope of harm to any particular claimant is a matter that continues through challenges and case-bycase determinations at the district court level. Again, the appeal by BP in No began as a challenge to the interpretation of the Compensation Framework, Exhibit 4C, and had nothing to do with the separate Causation Framework, Exhibit 4B. 29 Indeed, when the appeal was initially argued in July of 2013, Judge Clement asked about the causation issue, and BP Counsel confirmed that Exhibit 4B was not in dispute. Pressed further, BP 27 In re Deepwater Horizon, 732 F.3d 326 (5th Cir. 2013) ( Deepwater Horizon I ) [Appendix A to BP s Application]. The panel in No is sometimes referred to as the BEL Panel as distinguished from the panel in No , which is sometimes referred to as the Certification Panel. 28 See ORDER AND REASONS (Dec. 24, 2013) [Rec. Doc ] at pp.1-6; ORDER ADOPTING POLICY No. 495 ( Business Economic Loss Claims: Matching of Revenue and Expenses ) (May 5, 2014) [Rec. Doc ]. 29 Deepwater Horizon I, 732 F.3d at 347 (Southwick, J., concurring) ( No one on appeal is challenging Exhibit 4B ); Id. at 346 (Southwick, J., concurring) (does not join in Part II of Judge Clement s opinion, because it implies an invalidity to the Settlement Agreement s causation framework, which no one challenges ) (emphasis supplied).

20 15 Counsel acknowledged that the objective standards and requirements for causation were a negotiated compromise, for which BP received full and valid consideration. 30 D. The Separate Appeal to the Certification Panel in No Only after the October 2, 2013 decision in No did BP change its position to argue that, separate and apart from the agreed-to objective tests under Exhibit 4B, either Article III or Rule 23 required an additional, undefined, and unspecified causal-nexus test to be applied by the Claims Administrator. That issue was squarely joined in the settlement approval appeal, No , which had been brought by several groups of class-member objectors. The outcome of this appeal is referred to as the decision of the Certification Panel, distinct from the BEL Panel decision that is the subject of the present Application. Although BP was an appellee in the Certification Panel appeal, it nonetheless argued to the Fifth Circuit that the ruling below approving the settlement that BP had sponsored should now be reversed on Article III and Rule 23 grounds. On January 10, 2014, the U.S. Fifth Circuit Court of Appeals handed down its decision in No Affirming the district court s approval of the Class Settlement under Rule 23, the Certification Panel of the Court of Appeals found that 30 See ORDER AND REASONS (Dec. 24, 2013) [Rec. Doc ] pp (quoting UNOFFICIAL TRANSCRIPT OF HEARING BEFORE U.S. FIFTH CIRCUIT COURT OF APPEALS in Case No (July 8, 2013), at pp [Rec. Doc ]). 31 In re Deepwater Horizon, 739 F.3d 790 (5th Cir. 2014) ( Deepwater Horizon II ) [Appendix C to BP s Application]. The panel in No is sometimes referred to as the Certification Panel as distinguished from the panel in No , which is sometimes referred to as the BEL Panel.

21 16 the Class Settlement Agreement complied in all respects with Article III, the Rules Enabling Act, and Rule 23. Even accepting the dissent s formulation of the standing requirements in a settlement class, the court found that the class does not include any members who concede that they lack any causally related injury, thus ending the inquiry under the Second Circuit s Denney test, which does not require that each member of a class submit evidence of personal standing so long as every class member contemplated by the class definition can allege standing. 32 E. The BEL Panel Ruling on Causation. On March 3, 2014, the BEL Panel ruled on BP s Motion for Permanent Injunction and appeal from the district court s judicial estoppel order in No The Fifth Circuit affirmed the district court s interpretation of the Settlement Agreement, and denied the injunction, rejecting BP s ultimately circular argument that a footnote could be successfully wielded to dismantle the complex framework of exemptions, presumptions, and formulas that allow business claimants to submit evidence of their income and expenses before and after the BP-caused disaster. 34 The requirements set forth in the Settlement Agreement may not be as protective of BP s present concerns as might have been achievable in negotiations, 32 Id. at 804 (citing Denney v. Deutsche Bank AG, 443 F.3d 253, 263 (2d Cir. 2006) and Deepwater Horizon I, 732 F.3d at ). Both appeals were pending and active at the same time with multiple rulings and responsive briefings. BP never moved to consolidate the appeals before rulings from either Panels. 33 Deepwater Horizon III, 744 F.3d 370 [Appendix D to BP s Application]. 34 Id. at 376.

22 17 noted Judge Southwick, but they are the protections that were accepted by the parties and approved by the district court. 35 BP filed Petitions for Rehearing and Petitions for Rehearing En Banc in both appeals, which were all denied on May 19, In denying rehearing in No , the BEL Panel summarizes this contractual dispute as follows: Through Exhibit 4B, the parties agreed that claims would be governed by an objective formulae. BP argues that an additional duty on the Claims Administrator exists to ensure that every claim contains a direct causal nexus to BP s conduct. That requirement does not arise under the agreed terms of Exhibit 4B, and it does not arise under constitutional or other requirements for a class action. 36 Addressing further BP s argument that Article III is an indispensable part of the Claimant s case that must be supported by an affirmative showing, 37 the BEL Panel found that the agreed-upon evidentiary frameworks provided in the Settlement Agreement were satisfactory. 38 Neither the parties nor the Claims Administrator abandoned the plaintiffs allegations regarding standing and causation, the BEL Panel concluded; rather, the Claims Administrator must establish causation for settlement purposes with respect to every claim under the specific criteria and formulae that BP and Class Counsel agreed would be utilized for that purpose Id. at DENIAL OF PETITION FOR REHEARING, No (5th Cir. May 19, 2014) [Doc ] at p.7 [Appendix E to BP s Application]. 37 DENIAL OF PETITION FOR REHEARING, No (5th Cir. May 19, 2014) [Doc ] at pp.6-7; (citing Lujan, 504 U.S. at 561). 38 DENIAL OF PETITION FOR REHEARING, No (5th Cir. May 19, 2014) [Doc ] at p DENIAL OF PETITION FOR REHEARING, No (5th Cir. May 19, 2014) [Doc ] at p.10.

23 18 REASONS FOR DENYING THE APPLICATION FOR A STAY The criteria for the consideration of a stay application under 42 U.S.C. 2101(f) are well established. Applied here, they show that a stay of proceedings is unwarranted. The underlying contractual dispute in question is a remarkably poor candidate for certiorari review, the claimed constitutional issues are unlikely to be decided in favor of the Applicant, and the balance of equities run to the contrary militating against any further delay in the implementation of an agreed upon settlement. I. The Court is Unlikely to Grant Certiorari. A. BP is Seeking Review in the Wrong Case. BP seeks to recall and stay the mandate in No , a matter of contract interpretation. BP s legal discussion is directed to issues decided in No , affirming approval of the Class Settlement under Rule 23. In that appeal, BP was an appellee, having sought and supported the district court judgment. Neither BP, nor any of the actual appellants in No , has sought to recall or stay the mandate in that appeal. 40 Contrary to its position here, BP previously supported approval under Rule 23 on the basis that the Class Definition is objective, precise, and detailed, and does not turn on the merits. 41 BP submitted the expert opinions of Geoffrey Miller, who 40 BP did not, in fact, even attach the Mandate from No to the Appendix to its Application. 41 JOINT PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW IN SUPPORT OF FINAL APPROVAL [Rec. Doc. 7945], at p.87, 321.

24 19 confirmed that the Class Definition clearly and objectively defines the class in terms of time period, geographic region, and type of claim, 42 and John C. Coffee, Jr., who testified that the Class Definition described easily identifiable groups of entities who are permitted to show objective losses from that disaster. 43 With respect to Article III standing, BP acknowledged that the parties took pains in the negotiations and drafting to exclude claims that BP does not believe are even colorably compensable under [the Oil Pollution Act] or maritime law. 44 The decision of the BEL Panel clearly states that the Article III and Rule 23 issues were addressed by the Certification Panel, which held that all Article III, Rule 23, and Rules Enabling Act concerns were resolved at the class certification and settlement approval stage. App. D, Deepwater Horizon III, 744 F.3d at 374. As a result, the only question before the BEL Panel was whether the implementation of the Settlement Agreement is defective. Id. at 375. BP s contention there, as before this Court, was simply that the interpretation of the Settlement Agreement allowed too many claims to be paid, a matter of tremendous importance to the parties to that provision of the Settlement Agreement, but to no one else. Not only does the decision of the BEL Panel not raise the issues presented in the Application, but BP asks certiorari review of the implementation of a settlement 42 MILLER DECLARATION [Rec. Doc ], p.6, COFFEE DECLARATION [Rec. Doc ], p.13, BP MEMO IN SUPPORT OF MOTION FOR FINAL SETTLEMENT APPROVAL (Aug. 13, 2012) [Rec. Doc ], at pp

25 20 agreement as one of the settling parties. This Court has never, to our knowledge, accepted the review of a negotiated settlement that is challenged as one of the settling parties, whether in the class action context or otherwise. In Amchem Prods. Inc. v. Windsor, 45 the petitioners were the settling defendants, but they were seeking review of a court of appeal decision that overturned their settlement. Review in Ortiz v. Fibreboard Corp. 46 was sought and obtained by objecting class members. Accordingly, the Application should be denied on the grounds that there is little likelihood of further Court review in this case. There is no precedent for the Court granting certiorari from a question of contract interpretation by a settling party. Nor will this Court grant review on a question not properly presented in the case below. See Belcher v. Stengel, 429 U.S. 118, 119 (1976) ( [T]he question framed in the petition for certiorari is not in fact presented by the record now before us. ). B. Two Courts Have Rejected BP s Claimed Settlement Interpretation. Both the district court and the Court of Appeals have interpreted the Settlement Agreement consistent not only with its clear and unambiguous language, but also with BP s own numerous statements and representations about how the Class Definition and Causation Framework were to be applied to BEL Claims. The BEL Panel summarized the finding of the Court of Appeals and the district court as follows: Neither the Settlement Agreement s terms nor its implementation ignore causation. Instead, the parties explicitly contracted that 45 Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997). 46 Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999).

26 21 traceability between the defendant s conduct and a claimant's injury would be satisfied at the proof stage, that is, in the submission of a claim, by a certification on the document that the claimant was injured by the Deepwater Horizon disaster. App. D, 744 F.3d at 376. As a result, BP s legal arguments are wholly predicated on facts contrary to those found by the lower courts. Cf., e.g., Graver Tank & Mfg. Co. v. Linde Air Prods. Co., 336 U.S. 271, 275 (1949) ( A court of law, such as this Court is, rather than a court for correction of errors in fact finding, [generally] cannot undertake to review concurrent findings of fact by two courts below ). In other words, prior to even reaching the questions BP asks this Court to review, the Court would have to wade into the record and reverse two lower courts (correct) findings of fact in derogation of the two-court rule. See id. Further, even a cursory review of the record indicates that the lower court rulings are well supported. In letters, briefs, s, declarations, proposed findings, and during hearings before the court, BP s attorneys and experts consistently and repeatedly confirmed that, once a BEL Claimant satisfies the objective causation requirements set forth in Exhibit 4B, all revenue and variable profit declines as determined under the Compensation Framework, Exhibit 4C, are presumed to be caused by the Spill, with no analysis required to determine whether the declines might have been due to other causes. 47 Indeed, when No was first argued to the Court of Appeals, Counsel for BP confirmed that the causal-nexus issue was 47 See generally ORDER AND REASONS (Dec. 24, 2013) [Rec. Doc ], at pp.6-18, 32-35, and Appendix (pp.39-43).

27 22 not before the Court, and explained that the objective standards and requirements for causation were a negotiated compromise. 48 Evidently coming down with a case of buyer s remorse, BP only subsequently began to argue that Rule 23 and the Rules Enabling Act somehow required the Settlement Agreement to be interpreted differently more than one year after the Settlement had been implemented. For example, in the initial period of implementation of the settlement criteria, BP submitted a PowerPoint presentation to the court-appointed and court-supervised Claims Administrator to explain, among other things, how the Settlement Program would identify eligible Business Economic Loss members of the Economic & Property Damages Class. BP advised the Administrator that there were a: Wide range of options to qualify for benefits: Businesses in industries and geographic Zones most impacted by the DWH Spill are not required to present any evidence of causation. All other businesses in the class have five different options to recover DWH Spill related losses. 49 BP further represented and acknowledged in the presentation that: Qualifying businesses receive compensation for all losses regardless of actual facts and circumstances See ORDER AND REASONS (Dec. 24, 2013) [Rec. Doc ] pp (quoting UNOFFICIAL TRANSCRIPT OF HEARING BEFORE U.S. FIFTH CIRCUIT COURT OF APPEALS in Case No (July 8, 2013), at pp [Rec. Doc ]). 49 BUSINESS ECONOMIC GROWTH: BENEFITS (from BP Draft Tutorial Presentation, at p.2) [Rec. Doc , at 3] (emphasis supplied). 50 BUSINESS ECONOMIC GROWTH: BENEFITS (from BP Draft Tutorial Presentation, at

28 23 On August 13, 2012, BP submitted a Memorandum in Support of its Motion for Final Settlement Approval, in which BP stated that: [T]he class definition references geography to reduce or eliminate disputes regarding whether particular claims are included and to focus relief on those in the most affected areas of the Gulf region. See, e.g., Coffee Decl. (Joint Ex. C) 4 ( Also simplifying this case is the fact that the class definition carefully excludes remote claimants.... This deliberately narrow definition of the class... ensures that this class action will remain compact and that class members will be similarly situated (and hence more cohesive). ) * * * [T]he class definition takes pains to specify a list of exclusions, for two reasons: (1) to exclude claims that BP does not believe are even colorably compensable under OPA or maritime law; and (2) to avoid the inclusion of claims that could not be efficiently resolved by a definable and administrable claims framework. The result is a class that is neither sprawling nor under-inclusive, but instead carefully tailored to what the parties could reasonably agree on against the backdrop of the uniform body of OPA and maritime law that the Court has ruled is applicable. 51 Later, the parties submitted Joint Proposed Findings in Support of Final Approval of the Class Settlement. In that pleading, BP confirmed that the Class p.3) [Rec. Doc , at 4] (emphasis supplied). 51 See BP MEMO IN SUPPORT OF MOTION FOR FINAL SETTLEMENT APPROVAL (Aug. 13, 2012) [Rec. Doc ], at pp See BP Counsel, Transcript of the Fairness Hearing, at 52 (11/08/12) ( But in this settlement agreement, in reaching it, we did one thing also that was unusual, that is, the PSC and BP. We not only had the oversight and wise guidance of Magistrate Judge Shushan; we not only had the courtappointed neutral, Mr. Perry; we also went out and retained the nation's leading legal experts, Professors Coffee, Miller, Klonoff, and Issacharoff. They have provided the Court with their own declarations on both the structure, the propriety, the analysis under class action law, and the fairness, reasonable and adequacy of this settlement. Those declarations are well worth considering because these are our nation's leading experts in this field. ) [Rec. Doc. 7892]

29 24 Definition is objective, precise, and detailed, and does not turn on the merits. 52 In addition: Nothing in the class definition requires a determination on the merits or delves into any person s subjective mental state. The definition is based on objective criteria such as where an entity owned, operated, or leased a physical facility, or employed full time workers. 53 The district court and the Court of Appeals both found that BP s subsequent change of heart was an attempt to dismantle the complex framework of exemptions, presumptions, and formulas that allow business claimants to submit evidence of their income and expenses before and after the BP-caused disaster. 54 Both courts rejected BP s claim that the Settlement Agreement affords recovery to numerous members who have suffered no injury plausibly traceable to the defendant s actions. 55 Judge Clement and Judge Garza, in dissent, point to the relatively few businesses for whom causation is presumed, and no affirmative evidence is therefore required. 56 But, as noted, this narrow group of Seafood, 52 JOINT PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW IN SUPPORT OF FINAL APPROVAL [Doc 7945], at p.87, JOINT PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW IN SUPPORT OF FINAL APPROVAL [Doc 7945], at p.87, Deepwater Horizon III, 744 F.3d at BP APPLICATION, p See DENIAL OF PETITION FOR REHEARING EN BANC, No (5th Cir. May 19, 2014) [Doc ] at p.3 (Clement, J., dissenting) ( Section I of Exhibit 4B establishes that certain individuals and entities, based solely on their geographical location or the nature of their enterprise, are not required to provide any evidence of causation. This subset of claimants is entitled to a presumption of causation. Standing alone, geographical proximity, or the nature of one s enterprise, is insufficient to satisfy Article III causation ); see also Deepwater Horizon II, 739 F.3d at 823 (Garza, J., dissenting) ( Section 1 of Exhibit 4B establishes that certain

30 25 Tourism, and other Zone A Claims (by businesses generally close to the water) are not the claims that BP invokes as the basis for review in this Court, nor even in its broadsides against the settlement in the public media. BP, rather, is complaining about Zone C and Zone D businesses 57 that have actually submitted financial records or other affirmative evidence of causation, and thereby satisfied the objective evidentiary standards that BP agreed would be required. II. The Claimed Certiorari Issues are Without Merit. BP s Application for a Stay rests on two unfounded legal claims. The first is that there is a split among the circuits on whether class members in a settlement class must prove entitlement to a remedy as a condition of class certification. The second is that Article III requires proof of harm at the threshold of litigation in order to establish a federal court s subject matter jurisdiction. Each is unfounded and neither is likely to result in a grant of certiorari review. individuals and entities, based on their location or the nature of their enterprise, are not required to provide any evidence of causation. [] These groups are entitled to a presumption of causation ). 57 See, e.g., APPENDIX B to Rumsey Declaration submitted by BP in Support of its Motion [Doc , at pp.19-48]; see also, APPENDIX A [Rec. Doc , at pp.6-18]; (see also, e.g., APPENDIX B to BP S MEMO IN SUPPORT OF EMERGENCY MOT FOR PRELIMINARY INJUNCTION (March 15, 2013) [Rec. Doc , at pp.47-71]). Unrelated to this point, Plaintiffs have moved the district court to Strike the Rumsey Declaration and Appendix due to material omissions of fact and other evidentiary deficiencies. See Rec. Doc

31 26 A. There is No Circuit Conflict on the Claimed Question for Certiorari. No court of appeal has held that the definition of a settlement class must be drawn to include only those to whom a settlement payment will ultimately be made. Indeed, the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth and Eleventh Circuits have affirmed class settlements in a wide variety of cases in which some prove-up, beyond class membership, was required. 58 Nor is this an area where 58 Circuits commonly approve class settlements requiring settlement class members to provide proof of loss or damages under negotiated claims deadlines, protocols, and criteria. See, e.g., Olick v. John Hancock Mut. Life Ins. Co., 106 F. App x 736, 737 (1st Cir. 2004) (describing class settlement claim process based on objective scoring criteria prescribed by the settlement agreement); Denney, 443 F.3d at 263 (2d Cir. 2006) (approving settlement class that included potential future claimants, and noting that, [w]e do not require that each member of a class submit evidence of personal standing ); In re Warfarin Sodium Antitrust Litig., 391 F.3d 516, 525 (3rd Cir. 2004) (affirming approval of class settlement that required class members to submit proof of claims); ABT Bldg. Prods. Corp. v. Nat l Union Fire Ins. Co., 472 F.3d 99, 108 (4th Cir. 2006) (describing underlying class settlement requirement that class members submit proof of claim including photographs showing extent of property damage); Union Asset Mgmt. Holding AG v. Dell, Inc., 669 F.3d 632, 640 (5th Cir. 2012) (affirming approval of settlement including claims-making process requiring claimants to submit documentation verifying their claims); Morris v. Tate (In re S. Ohio Corr. Facility), 24 F. App x 520, 524 (6th Cir. 2001) (describing class settlement claim process where claimants were required to detail the nature and amount of their claims and provide supporting documentation); Americana Art China Co. v. Foxfire Printing & Packaging, Inc., 743 F.3d 243, 245 (7th Cir. 2014) (noting that only some fraction of identified class members returned claim forms documenting unlawful fax transmissions); In re Wireless Tel. Fed. Cost Recovery Fee Litig., 396 F.3d 922, 934 (8th Cir. 2005) (affirming class settlement where some members of a subclass, like class members who did not elect to file class forms, could not recover), reh g & reh g en banc denied, 2005 U.S. LEXIS 4173 (8th Cir. 2005), cert. denied, Stainless Sys. v. Nextel W. Corp., 546 U.S. 822 (2005); Nakash v. NVIDIA Corp. (In re NVIDIA GPU Litig.), 539 Fed. App x 822, (9th Cir. 2013) (requiring settlement class members to submit additional documentation of purchase, or return computers for replacement or repair, to recover); Pedraza v. United Guar. Corp., 313 F.3d 1323, 1326 (11th Cir. 2002) (describing class settlement claim process protocol and requirements).

32 27 the courts are ever likely to diverge. The MANUAL FOR COMPLEX LITIGATION, FOURTH expressly recognizes that an administrator or special master may be charged with reviewing the claims and deciding whether to allow claims that are late, deficient in documentation, or questionable for other reasons. While the MANUAL is by no means binding on this Court, it is followed by courts below. 59 Accordingly, there is unlikely to be any Circuit split on what the MANUAL counsels are best practices. A good example of a non-conflict is found with the case invoked by both BP and Judge Clement as an example of Circuit divergence: Denney v. Deutsche Bank AG, 443 F.3d 253 (2d Cir. 2006). See Application at 19. Denney arose when a non-settling defendant and several class members objected to the certification of a settlement class that included persons who might ultimately not be entitled to recover damages. The holding of the case is entirely consistent with the certification of a settlement class in BP. In Denney, the Second Circuit upheld certification of a class complaining of the improper tax advice they had received certified for purposes of a class settlement with their financial advisors. The appellants in Denney claimed that the class could not be certified to include individuals who had received the allegedly improper advice but who had not been audited or for whom the statute of limitations had run for adverse governmental action. 443 F.3d at 264. The Second Circuit rejected these arguments in favor of an objectively defined class comprised of all recipients of the improper tax 59 See, e.g., Sullivan v. DB Investments, Inc., 667 F.3d 273, 347 n.12 (3rd Cir. 2011), cert. denied, 132 S. Ct (2012) (observing that [s]ome settlements create elaborate systems for evaluating not only the validity but the severity of each class member s injury and citing MANUAL FOR COMPLEX LITIGATION, FOURTH, ).

33 28 advice. Id. at As the Second Circuit explained, [t]he future-risk members of the Denney class have suffered injuries-in-fact, irrespective of whether their injuries are sufficient to sustain any cause of action. 60 Id. This is not the first time that the question of the Article III standing of class members who may not ultimately recover has been brought to this Court in this Term. Indeed, a number of defendants who, unlike BP, actually contested class certification have sought review from this Court in recent months, and those petitions for certiorari have all been denied. In Butler v. Sears, for example, the Seventh Circuit approved the certification of a multi-state litigation class of washing machine owners who alleged two distinct breaches of warranty. 61 The defendant complained that the class included large numbers of consumers who had never suffered any injury and that any class certification must, under Article III, exclude such claimants at the threshold stages of the litigation. 62 However, this Court denied the defendant s petition. 63 Similarly, in Glazer v. Whirlpool Corp., the Sixth Circuit approved a class suing for breach of warranty against a different washing machine company. 64 As in Butler, Whirlpool complained that Article III and other Rule 23 considerations 60 This application of standing analysis to a settlement class context is entirely consistent with the articulations of standing in Kohen v. Pacific Inv. Mgmt. Co. LLC, 571 F.3d 672 (7th Cir. 2009), and the Fifth Circuit s own Mims v. Stewart Title Guar. Co., 590 F.3d 298 (5th Cir. 2009). See Deepwater Horizon II, 739 F.3d at F.3d 796 (7th Cir. 2013). 62 See PETITION FOR WRIT OF CERTIORARI, Case No (Oct. 7, 2013), at pp Sears v. Butler, 134 S. Ct (2014) F.3d 838 (6th Cir. 2013).

34 29 precluded the inclusion of absent class members who had suffered no demonstrable injury at the point of class certification. 65 This Court denied review on February 24, And review of a third washing machine case from the Ninth Circuit making the same claim for certiorari was denied that same day. BSH Home Appliances Corp. v. Cobb, 134 S. Ct (2014). This Court also recently rejected a petition for review of a state court certification which was said to raise similar Article III concerns. In Jacobsen v. Allstate Ins. Co., the Montana Supreme Court approved the certification of a no-optout class under Montana Rule 23 (b)(2) (a clone of Federal Rule 23). 67 The defendant complained that its due process rights had been violated by the inclusion of class members who had not been the victims of actual fraud or actual malice. 68 Yet the Court denied the defendant s petition for certiorari on May 5, B. BP Does Not Even Address the Court s Recent Decision in Lexmark. BP is a particularly unsuitable advocate to present these issues, since BP agreed to the Class Settlement, decided which businesses would be included in the Class Definition, and supported Rule 23 approval in the district court. The Court 65 See PETITION FOR WRIT OF CERTIORARI, Case No (Oct. 7, 2013), at pp Whirlpool Corp. v. Glazer, 134 S. Ct (2014) P.3d 452 (Mont. 2013). 68 See PETITION FOR WRIT OF CERTIORARI, Case No (Jan. 30, 2014), at pp Allstate Ins. Co. v. Jacobsen, No , 2014 U.S. LEXIS 3213, 2014 WL (May 5, 2014).

35 30 below found that the BP class consisted only of persons who had properly alleged standing under Article III: BP s standing argument fails under both the Kohen test and the Denney test concluded the Certification Panel, because both the named plaintiffs and the absent class members include only persons and entities who can allege causation and injury in accordance with Article III. 70 Nor were the rulings of the courts below based on untested assertions: prior to the settlement in this case, the class claims bundled together in the district court in a class action master complaint for property damages and economic loss claims had been tested for plausibility on motions to dismiss by BP and other defendants. 71 This is exactly how this Court, this Term, distinguished a motion to dismiss for failure to state a claim from the standing necessary for Article III subject matter jurisdiction. As stated in Lexmark: [i]f a plaintiff's allegations, taken as true, are insufficient to establish proximate causation, then the complaint must be dismissed; if they are sufficient, then the plaintiff is entitled to an opportunity to prove them. 72 BP does not even mention Lexmark, though the decision is remarkably on point. Moreover, Lexmark furthers a line of cases in which this Court has sought to limit the use of Article III to impose jurisdictional barriers to the ability of federal courts to resolve 70 Deepwater Horizon II, 739 F.3d at See In re Oil Spill, 808 F. Supp. 2d at 947 (granting in part and denying in part motions to dismiss by BP and other Defendants directed against the B1 Master Complaint, which served as both a class action complaint and a master pleading into which individual businesses and other plaintiffs could join: The BI bundle includes all claims for private or non-governmental economic loss and property damages. There are in excess of 100,000 individual claims encompassed within the B1 bundle. ) 72 Lexmark, 134 S.Ct. at 1391 n.6.

36 31 the merits of disputes. Cf., Reed Elsevier, Inc., v. Muchnick, 559 U.S. 154, 161 (2010) (summarizing limits on drive-by jurisdictional rulings in favor of claim-processing rules based on the substantive merits of the cause of action). Moreover, following the rulings on the initial motions to dismiss, no party sought to challenge the district court s denial of such motions. Instead, negotiations by BP to resolve the class claims ensued and the settlement was reached before trial. [H]ad the class in this case been certified under Rule 23 for further proceedings on the merits rather than for settlement the Court of Appeals observed, the district court might ultimately have had occasion to apply a stricter evidentiary standard. 73 But, quoting from this Court s decision in Amgen, the Certification Panel correctly observed that Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage. 74 Nor are any of this Court s major standing cases at all germane to this dispute. In Lujan v. Defenders of Wildlife, this Court addressed the question of whether public interest watchdogs have a requisite stake in civil actions to enforce the environmental laws where the suing plaintiffs could allege no traceable harm to themselves individually: We have consistently held the Court confirmed, that a plaintiff 73 Deepwater Horizon II, 739 F.3d at Deepwater Horizon II, 739 F.3d at 806 (quoting Amgen Inc. v. Connecticut Retirement Plans & Trust Funds, 133 S.Ct. 1184, (2013)); see also Deepwater Horizon II, 739 F.3d at ( BP has cited no authority and we are aware of none that would permit an evidentiary inquiry into the Article III standing of absent class members during class certification and settlement approval under Rule 23 ).

37 32 raising only a generally available grievance about government and seeking relief that no more directly and tangibly benefits him than it does the public at large does not state an Article III case or controversy. 75 The lack of standing of a self-defined bystander to the dispute has no bearing on a business claiming economic harm from the responsible party under an expansive compensation statute like the Oil Pollution Act. In no way does Lujan support an argument that Article III somehow limits the ability of private parties to enter into or seek to enforce contractual rights or obligations. Nevertheless, the Court of Appeals accepted Lujan s and Lewis s 76 general requirement that the elements of Article III standing are not mere pleading requirements but rather an indispensable part of the plaintiff s case [which] must be supported with the manner and degree of evidence required at the successive stages of the litigation, 77 and correctly held that the evidentiary frameworks set forth in the Settlement Agreement are an agreed-upon methodology for presenting proof establishing that a claimant s loss was caused by the Deepwater Horizon disaster U.S. at Lewis, 518 U.S. at 358 (1996) (finding that Article III standing is not a mere pleading requirement[] ). 77 DENIAL OF PETITION FOR REHEARING, No (5th Cir. May 19, 2014) [Doc ] at pp.6-7; (citing Lujan, 504 U.S. at 561). 78 DENIAL OF PETITION FOR REHEARING, No (5th Cir. May 19, 2014) [Doc ] at p.7.

38 33 III. The Equities Strongly Disfavor a Stay. BP entered into a settlement of claims brought under the Oil Pollution Act of 1990, 33 U.S.C. 2701, et seq., which was designed by Congress to bring swift and effective relief to communities suffering from the broad and rippling effects of environmental calamities. In the words of the legislative drafters, Time and time again, accidents occur, oil is spilled, and our response is too slow and ineffective. We ve learned the hard way an important lesson: For spills we fail to prevent, an effective and timely response is paramount. 79 This objective is reflected in the statutory text, which broadened the scope of private persons who are allowed to recover for economic losses resulting from an oil spill. OPA allows recovery for economic losses resulting from or due to the oil spill, regardless of whether the claimant sustained physical damage to a proprietary interest, 80 and requires the responsible party to establish a process for the timely and efficient payment of claims. 81 The district court has kept the parties on a brisk pace, through extensive discovery (including over 390 depositions) and two phases of a multi-phase trial. The negotiation of the Economic Settlement and the Medical Benefits Settlement took over eight months of intensive effort. It is now a year and a half after final approval 79 House Conference Committee Report, Oil Pollution Act of 1990, 136 Cong.Rec. H , 1990 WL (Statement of Rep. Roe of New Jersey). 80 In re Oil Spill, 808 F. Supp. 2d at (citing 33 U.S.C. 2702(a) and 2702(b)(2)(E)); see also, generally David W. Robertson, The Oil Pollution Act s Provisions on Damages for Economic Loss, 30 MISS. C.L. REV. 157, (2011). 81 See 33 U.S.C. 2705(a) and 2713.

39 34 (now affirmed) of a settlement whose primary agreed-upon, and express benefits included, among other thing, the prompt processing and expeditious payment of claims without the necessity of formal court approval; and yet the BEL Claims have been stayed for over seven months, already. The continuation of that stay is especially inappropriate now that the mandate has issued in No , without further challenge by any of the appellants. Given BP s unusual change-in-position after a year of applying the causation requirements as written, the equities strongly favor resuming the contractually-agreed-upon claims process. Moreover, BP has ample alternative sources of relief from any particular misapplications of the Settlement Agreement. In addition to the Settlement Agreement s elaborate internal appeals process under which BP may challenge a specific claim (and has successfully challenged many), BP has had success in challenging the accounting standards to be applied under Exhibit 4C of the Settlement Agreement, which will result in substantially lower awards to some categories of claimants. There is no reason for this Court to intercede at this point, when remedial options remain available in the lower courts, most notably in the district court that is tasked with the effective implementation of the Settlement Agreement, and that has approved a number of interpretation policies at BP s request. Finally, for all the histrionics about irreparable injury, BP has not created a fact record at any level, before any court, that there has been any injury whatsoever.

40 35 There has not been a single finding of fact by any court that any BEL Claims with fictitious or fraudulent losses have been paid. 82 BP s touted examples focus almost exclusively on businesses that presented affirmative evidence in satisfaction of the objective causation standards that BP agreed would be required. The evidentiary issues are still before the district court, and BP s factual assertions are contested there in the Class s Motion to Strike Unsubstantiated Exhibits and to Contest Misstatements Concerning Specific Claims. 83 Moreover, over 2,840 BEL Claims have been denied for failure to prove causation according to the requirements of the Settlement Agreement. 84 Given three considered panel opinions and an expansive record submitted in support of full en banc review, moreover, BP cannot possibly argue that its position has not been subject to vigilant judicial oversight. Thousands of claims that have been approved (and, in many instances, appealed to independent panelists by Claimants or BP) have been stuck in a queue while the extraordinary appellate processes in this case have unfolded. There is simply no reason to further delay the orderly and deliberate claims resolution process to which BP agreed in April of 2012, and in which BP continues to serve as an active participant, while BP pursues a claim for certiorari review on grounds repeatedly denied by the Court this term. 82 The same is true as to jurisdiction there has been no finding of fact or law by any court below that any class member does not have standing. 83 See Rec. Doc APPELLEES OPPOSITION TO EMERGENCY MOTION FOR INJUNCTION, No (Nov. 22, 2013) [Doc ] at p.11 fn.19 (citing Exhibit A to CLAIMS ADMINISTRATOR S STATUS REPORT (Oct. 11, 2013) [Rec. Doc ], at p.3).

41 36 For the foregoing reasons, Respondents submit the Application for a Stay and Recall of the Mandate should be denied. RESPECTFULLY SUBMITTED, SAMUEL ISSACHAROFF Counsel of Record 40 Washington Square South, 411J New York, NY si13@nyu.edu JUNE 2, 2014 James Parkerson Roy Domengeaux, Wright, Roy & Edwards, LLC 556 Jefferson St., Suite 500 Lafayette, Louisiana Stephen J. Herman Herman, Herman & Katz LLC 820 O Keefe Ave. New Orleans, Louisiana Attorneys for Respondents

42 No. A-13A1177 IN THE Supreme Court of the United States BP EXPLORATION & PRODUCTION, INC., ET AL., Applicants, v. LAKE EUGENIE LAND & DEVELOPMENT, INC., ET AL., Respondents. CERTIFICATE OF SERVICE James Parkerson Roy Domengeaux, Wright, Roy & Edwards, LLC 556 Jefferson St., Suite 500 Lafayette, Louisiana (337) Stephen J. Herman Herman, Herman & Katz LLC 820 O Keefe Ave. New Orleans, Louisiana (504) SAMUEL ISSACHAROFF Counsel of Record 40 Washington Square South New York, NY si13@nyu.edu Attorneys for Respondents

43 1 CERTIFICATE OF SERVICE I hereby certify that I am a member in good standing of the bar of this Court and that on June 2, 2014, I caused one copy of the foregoing Brief In Opposition To Application To Recall And Stay Mandate Pending The Filing And Disposition Of A Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fifth Circuit to be served by commercial carrier for next-day delivery (with a copy by electronic mail) on the counsel identified below, pursuant to this Court s Rule All parties required to be served have been served. Richard C. Godfrey, P.C. J. Andrew Langan, P.C. Wendy L. Bloom Andrew B. Bloomer, P.C. R. Chris Heck KIRKLAND & ELLIS LLP 300 North LaSalle Street Chicago, IL (312) Jeffrey Bossert Clark Dominic E. Draye KIRKLAND & ELLIS LLP 655 Fifteenth Street, N.W. Washington, D.C (202) Theodore B. Olson Counsel of Record Miguel A. Estrada Thomas G. Hungar Scott P. Martin GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. Washington, D.C (202) tolson@gibsondunn.com George H. Brown GIBSON, DUNN & CRUTCHER LLP 1881 Page Mill Road Palo Alto, CA (650)

44 2 Daniel A. Cantor Andrew T. Karron ARNOLD & PORTER LLP 555 Twelfth Street, N.W. Washington, D.C (202) Jeffrey Lennard DENTONS LLP 233 South Wacker Drive Suite 7800 Chicago, IL (312) S. Gene Fendler Don K. Haycraft R. Keith Jarrett LISKOW & LEWIS 701 Poydras Street, Suite 5000 New Orleans, LA (504) Kevin M. Downey F. Lane Heard III WILLIAMS & CONNOLLY LLP 725 Twelfth Street, N.W. Washington, D.C (202) Counsel for Applicants BP Exploration & Production Inc., BP America Production Company, and BP p.l.c. Stephen Jay Herman Soren E. Gisleson Herman Herman & Katz, L.L.C. 820 O Keefe Avenue New Orleans, LA Elizabeth Joan Cabraser Lieff, Cabraser, Heimann & Bernstein, L.L.P. 29th Floor 275 Batter Street San Francisco, CA 94111

45 3 Samuel Issacharoff Suite 411J 40 Washington Square, S. New York, NY James Parkerson Roy Domengeaux, Wright, Roy & Edwards Suite Jefferson Street Lafayette, LA Counsel for Bon Secour Fisheries, Inc.; Lake Eugenie Land & Development, Inc.; Fort Morgan Realty, Inc.; LFPB 1, L.L.C., doing business as GW Fins; Panama City Beach Dolphin Tours & More, L.L.C.; Zeke s Charter Fleet, L.L.C.; William Sellers; Kathleen Irwin; Ronald Lundy; Corliss Gallo; John Tesvich; Michael Guidry, on behalf of themselves and all others similarly situated; Henry Hutto; Brad Friloux; and Jerry J. Kee John Jacob Pentz, III Law Offices of John J. Pentz 19 Widow Rites Lane Sudbury, MA Stuart Cooper Yoes Yoes Law Firm, L.L.P. Suite Calder Avenue Beaumont, TX Counsel for Cobb Real Estate, Inc.; G&A Cobb Family LP; L&M Investments, Ltd.; Mad, Ltd.; Mex-Co, Ltd.; Robert C. Mistrot; and Missroe, LLC Brent Wayne Coon Brent Coon & Associates 215 Orleans Beaumont, TX Counsel for Earl Aaron; Janie Aaron; Zuhair Abbasi; Michael Abbey; and Mohammad Abdelfattah N. Albert Bacharach, Jr. N. Albert Bacharach, Jr. P.A N.W. 13th Street Gainesville, FL

46 4 Kevin Walter Grillo Pena & Grillo, P.L.L.C rd Street Corpus Christi, TX Counsel for Ancelet s Marina, L.L.C.; J.G. Cobb Construction, Ltd.; Ships Wheel; Allpar Custom Homes, Inc.; and Sea Tex Marine Service, Ltd. Richard C. Stanley Jennifer L. Thornton Stanley, Reuter, Ross, Thornton & Alford L.L.C. 909 Poydras Street, Suite 2500 New Orleans, LA Phillip A. Wittman John M. Landis Maggie A. Broussard Stone Pigman Walther Wittman LLC 546 Carondelet Street New Orleans, LA David Israel Kevin G. Barreca Sessions, Fishman, Nathan & Israel, LLC Lakeway Two, Suite North Causeway Boulevard Metairie, LA Counsel for Deepwater Horizon Court Supervised Settlement Program and Patrick A. Juneau, in his official capacity as Claims Administrator of the Deepwater Horizon Court Supervised Settlement Program administering the Deepwater Horizon Economic and Property Damages Settlement Agreement, and in his official capacity as Trustee of the Deepwater Horizon Economic and Property Damages Settlement Trust Elizabeth J. Cabraser