Problem is, according to a juror, they couldn't say he didn't destroy anything "of any consequence". Something like 17 messages were not recoverable and neither Mix nor the recipient of those messages testified. So the jury was left to speculate about whether there was anything "of any consequence" in those messages. It is a sad mess all the way around, and perhaps the decision to prosecute was overkill, although for all I know there was decent plea deal offered that Mix rejected. He may well be a scapegoat, but he wasn't snow white.
Secondary lesson: When your records -- including your personal records, including your emails and text messages -- are subpoenaed by the US Government, and you are expressly instructed not to destroy them, don't destroy them.
I agree that the viewpoint that Barbier and for that matter Juneau (or even Feinberg before him) were lawbreakers is misplaced. But giving a pass to claim corruption perpetrated by bogus claimants is another thing. Given how determined the Justice Dept. was to make an example of Kurt Mix once it became clear that he had disobeyed a clear directive not to destroy subpoenaed evidence, Watts will likewise be held accountable to send an example if he was as dirty as BP's motion suggests -- and I am not prejudging that; rather, I'm anxious to see who responds to the motion, and what the opposition says.
Right. And that's why it will be very interesting to see how the current PSC responds to BP's motion. Will it oppose the motion, arguing things like caveat emptor/buyer beware/a deal is a deal, or will the PSC support (or at least not oppose) the motion as long as truly injured seamen get paid, etc., in an effort to maintain credibility (or save face) with the judge to whom one of its former members flat out lied, according to the factual allegations in the motion.
You are the one mixing apples (LAEEXV's point) and oranges (yours). LAEEXV says Barbier is a #$%$. You say some bad apples are to be expected in any class settlement process. As to LAEEXV's point, according to BP's own filings the judge and BP are both victims of the same massive lie by a PSC member, and that lie led directly to the creation if a big fund for a certain type of claim that otherwise would not have been established as part of the overall deal BP struck with the PSC (and Barbier approved).
As for your bad apples point, maybe so, but the percentages referenced in the 60(b)(3) motion are about the Watts fraud that led to the creation of the Seafood fund are staggering. If the gov't feels the need to send a message by prosecuting Kurt Mix, imagine what is about to happen to Watts if BP's allegations are accurate.
What's clear from BP's motion filed on 12/17 and its companion lawsuit against the Watts firm is that the crooks are claimants who lie and lawyers (like Watts) who invent bogus claimants. Judge Barbier issued the 2012 judgment at BP's request following the settlement it had negotiated with the Plaintiffs Steering Committee, and BP is now asking him to revisit and adjust that judgment based on the fraud facts set forth in BP's motion focusing on Watts. If those facts are correct, Judge Barbier, like BP, was also lied to by Watts. It will be interesting to see who (if anyone) opposes BP's motion, and/or whether the PSC distances itself from Watts.
Take a look at BP's Rule 60(b)(3) motion itself, which is linked to BP's "state of the gulf" website. It's noteworthy that many passages are "redacted" and some of the supporting declarations are "submitted under seal", which suggests that there are criminal ramifications as well.
No telling when Judge Barbier will rule on the motion, but if the facts set forth by BP are true, back in 2012 the Watts firm was flat out lying not just to BP but also to the court about the huge number of claimants it was representing. So as regards that aspect of the agreed settlement -- the Seafood Compensation Program -- BP is asking the court to suspend enforcement of the judgment entered at BP's request according to that settlement because, had BP known the truth, it would have negotiated a different deal for that part of the class settlement. It will be interesting to see if there is any opposition to BP's motion, and if so who files it (e.g., will the current Plaintiffs' Steering Committee distance itself from Watts?) and what it says, because unless there is some legitimate counterpoint to BP's arguments the judge is not likely to be amused (to say the least) to learn that he was lied to by someone who at one point was a member of the PSC.
Please; we're talking criminal violations here, not civil penalties. Mix had nothing to do with causing anyone's death; his role didn't begin until after the accident. And BP addressed the criminal charges filed against it -- including multiple manslaughter counts -- with a plea bargain that included a massive fine.
Halliburton's evidentiary shenanigans were not ignored by the DOJ. When the evidence about the the cement samples they destroyed came to light the Feds absolutely went after HAL and ultimately got a plea deal for $53M more than the maximum penalty available under the statute they were able to prosecute HAL with violating. In other words, if they had taken HAL to trial and won, the "sentence" would have been $53M LESS than they got HAL to pay via the plea bargain (which I suppose HAL agreed to in order to minimize the PR fallout associated with the charge).
Regarding Mix, my take is that regardless of whether he had any evil intent, he disobeyed a clear instruction to preserve his texts, etc., and the DOJ probably feels the need to show that there are consequences to ignoring such instructions. If they are prosecuting him to set an example, maybe they don't really care if he's acquitted or not, and even if he is convicted (which I doubt), I suspect they won't push for a big penalty because putting him through the ordeal of trial will have made their point. I'm not saying I agree with that prosecution strategy, but rather that's what I suspect it is. Obviously Mix is not a big fish.
There was a big difference between the huge exposure BP faced under the law, and the lesser exposures faced by its contractors, and those exposures drove their post-spill conduct. BP "stood up and took responsibility" because it was in BP's best interest to do so. As the principal owner/operator of the lease, BP owned the oil that was released and so it had the primary legal responsibility for the consequences of the spill under statutes like the OPA and CWA, which did not even apply to Halliburton and only arguably applied to Transocean. It's not that HAL and RIG were blameless -- they certainly weren't -- but they were working for BP under contracts that called for BP to indemnify them against certain liabilities under the circumstances of this event, but not vice versa. (RIG lost a very valuable drilling platform, and was contractually required to bear that entire loss with no recourse to BP.) If HAL or RIG had started shelling out money to victims, BP would surely have argued that it was not required to indemnify them for such voluntary payments. As far as statutory violations are concerned, HAL was prosecuted by the DOJ under the particular law that applied to it, pled guilty, and paid the maximum fine to which it was exposed under that law ($200K), PLUS another $53M more than that. RIG was prosecuted under the laws that applied to it, and it likewise pled guilty and paid a large settlement to resolve both the civil and criminal charges leveled against it. While BP settled with the DOJ with respect to all criminal charges against it, BP did not settle the DOJ's civil claims which were then tried in the Phase 1 and Phase 2 proceedings earlier this year, as to which the Judge has not yet ruled.
I don't have a crystal ball, but entitlement/exposure to punitive damages requires a qualitative finding about the type of conduct a defendant engaged in. It has to be beyond ordinary negligence, and probably beyond gross negligence, to willful misconduct. In the Phase 1 trial, the main fight was between the DOJ and BP, over whether BP's fault was "gross negligence" (which would support an enhanced per-barrel fine). BP's defense strategy was to acknowledge that it was negligent, but to assert vigorously that it was not grossly negligent, and that it's ordinary negligence was shared by RIG and HAL. The secondary battle in the Phase 1 trial was between the class plaintiffs and RIG/HAL. Those plaintiffs said nothing about BP's conduct (because they had already settled with BP), but asserted that the conduct of RIG and HAL was so despicable as to warrant punitive damages. It is inconceivable to me that Judge Barbier would find that the conduct of RIG and HAL was qualitatively WORSE than BP's conduct, so I think in order to award punitive damages against RIG and HAL he has to conclude that the conduct of all three defendants was not just negligent or grossly negligent, but willful, malicous and despicable. I just don't see that happening, particularly against RIG, whose personnel were killed on the drilling platform. They may have fumbled the ball -- which is negligence -- but they were not suicidal.
Are we talking about the Dec 9, 2013, article by Jane Meinhardt of the Tampa Bay Business Journal, under the headline "BP oil spill claims system shut down"? If so, I just read it, and it seems like a reasonablly accurate description of the 5th Circuit's 12/2 ruling on the topic, and Judge Barbier's 12/5 order complying with that appellate court ruling.
Having read your post, I looked for but didn't see any comment by the "claims attorney" quoted in the article about the volume of fraud claims, and he certainly did not "admit that most claims were frivolous and had no direct relation to the spill." I don't think anybody doubts that that some number of BEL claims with dubious links to the spill event have been submitted and paid based strictly on the agreed and approved formula, and now it looks like further abuse of this loophole will be prevented, which seems like good development. But nothing said by the attorney quoted in this article was even remarkable, let alone an "admission" of anything.
For the record, the quoted comments -- all of which related to the stay ordered by Judge Barbier on 12/5 -- were:
“Nothing is being paid,” he said.
“I think the stay will remain. It’s exactly what (BP) wanted. It’s shocking.”
“The stay covers the vast majority if not all claims, even those approved or on appeal,”McLean said. “If he lifts the stay, it will be only for a narrow category of claims.”
Wrong. First, according to the trial court's two year old ruling on the indemnity cross actions between RIG and BP, under the drilling contract RIG is entitled to indemnity from BP against any liability for compensatory damages arising from subsurface release due to RIG's ordinary negligence, and possibly gross negligence as well, but it is not indemnified against punitive damages or against fines and penalties. That is why BP's subsequent settlement with the class plaintiffs in 2012 explicitly required those plaintiffs to dismiss their compensatory damage claims against RIG (and HAL), but allowed them to continue to pursue punitive damages against RIG (and HAL). As for fines and penalties, RIG settled both civil and criminal exposures with the US Government a year ago, which is why the DOJ did not even put on a case against RIG in the Phase 1 or Phase 2 trials. In Phase 1, RIG's adversaries were the class plaintiffs seeking only punitive damages, and the gulf states seeking compensatory damages that probably will be paid by BP anyway under the court's indemnity ruling. So, for RIG the significant Phase 1 issue is not allocation of fault (ie, who bears what percentage) but characterization of fault (ie, is it sufficiently beyond "ordinary negligence" to justify an award of punitive damages?). And, for what it's worth, I think that's a real longshot. As for Phase 2 trial that ended in the fall, that one did not have anything to do with "liability assessment" but instead addressed the magnitude of oil released in the event for purposes of eventual per-barrel fines. RIG was not even a defendant in Phase 2 trial, because it had already settled with the DOJ; rather, that trial phase pitted the US against BP.
"Triple digits by 2015. You heard it hear first." You're hardly the first one to say that, but you're only off by about 2 or 3 years. Search this board and Seeking Alpha for MCP posts in 2011 by Engineer Broker and Galileo Russell, and read their projections. As regards legislative interest in rare earth elements, or environmental problems and inventory control issues in China, or SorbX, I don't know of anything new about that either. Why do you think the light at the end of the tunnel for MCP is any nearer today than it was over two years ago when completion of Project Phoenix was reported to be right around the corner, but it still hasn't happened despite multiple intervening dilution events, management changes, etc.?
Not clear, and it depends on what is meant by getting "all the legal issues behind us." The Phase 1 trial (liability and allocation of fault) was completed in last spring, and the post-trial briefs were submitted in the summer, so a ruling is ripe on the Phase 1 issues, which is pretty much all RIG cares about, assuming it "wins" on liability (i.e., its fault level is found to be ordinary negligence). The damages phase is not even scheduled yet. The Phase 2 trial (amount of oil discharged, which is pretty much a battle between the DOJ and BP, not RIG) ended in the fall, but the post-trial briefing for that Phase is not due for completion until late January, so a ruling on Phase 2 will not occur before the spring.
But no matter how the judge rules on the outstanding trial issues, someone will appeal the trial court rulings. So anyone who's looking for certainty should expect to wait for years.
If anything was "telegraphed" (in a split decision) by the court of appeal in that order, it was the following: Judge Barbier: Please fix the causation leak so the class settlement can be salvaged and then we can affirm your 2012 order approving the settlement in the parallel appeal taken by disgruntled class member-plaintiffs.
Barbier hasn't ruled on the trial issues involving HAL yet. He is not the judge involved in the Mix case. He is not the judge who accepted the criminal plea bargains involving BP, HAL or RIG. And anyway, the DOJ made those deals, not the judges.
I don't think BP gave anything away in the settlement. It knew it was going to lose the compensatory damages claims to victims who suffered from the spill, so it settled with them by acknowledging liability, which was clear anyway, and agreeing to pay them for their losses according to agreed protocols to be administered by a third party (Juneau) hired for that purpose. In return, as part of the deal those plaintiffs to dismiss their punitive damage claims against BP, but not against RIG and HAL; however, BP got them to dismiss their compensatory damage claims against RIG and HAL, which BP would have had to indemnify anyway. And so when the Phase I trial began, the DOJ was the only "plaintiff" claiming BP was "grossly negligent"; the attorneys for the class plaintiffs who had settled with BP were not asserting liability arguments against BP but rather only against RIG and HAL. So there was a lot of strategy and logic behind that deal.
The recent order didn't put Judge Barbier "on notice" of any close scrutiny that he wasn't already well aware of since the civil litigation over the Macondo blowout is a high profile, high stakes dispute involving powerful parties being represented by resourceful lawyers on both sides. So the trial judge has known since the matter was first assigned to him that pretty much every important decision he makes in the matter would be "scrutinize[d] ... closely" by the 5th Circuit, because whichever side doesn't like an important ruling will appeal it. The "causation" issue that is the subject of this week's order is just the latest topic that has been placed before the 5th Circuit. Other rulings of his that have come before it include things like his early decision on BP's claim against RIG's insurance policies, or his 2012 approval of BP's settlement with the class plaintiffs. Trial judges know that appellate courts will review their decisions, and this one is no different in that respect.
Bill "Blatant disregard for Law and Order" is not a fair description of what the 5th Circuit said. Read the order, which is posted on BP's "set the record straight" website. Yes, it said that causation needs to be addressed, but it acknowledged that its previous order "may have created interpretive difficulties" for the trial court.