[Op-Ed] BP Seized Settlement Chance Amid Dwindling Options
In early May, with its legal options dwindling and investors impatient, BP Plc saw a chance to negotiate what became a $18.7 billion settlement that ended five years of litigation over the worst offshore oil spill in U.S. history.
An unexpected opportunity to secure a global deal that would wipe the slate clean of hundreds of claims and untold billions of dollar in penalties opened up when Chief Executive Bob Dudley met with Patrick Juneau, the lifelong Louisiana litigator who BP had panned for handing out "absurd" sums of money as part of a class settlement in 2012.
The British giant was ready to bury the hatchet after years of acrimony over payouts, which had ballooned to more than $10 billion. It had bigger problems: unresolved claims by the federal government, five Gulf of Mexico states and hundreds of local municipalities stemming from Macondo well blowout.
Toward the end of an over hour-long conversation about the claims, Juneau, a mediator by trade, steered it toward the bigger cases BP still faced from the 2010 disaster that killed 11 men and gushed oil into the Gulf of Mexico for 87 days.
"I suggested to Mr. Dudley that it seemed to me that I, along with Judge Shushan and Louie Freeh, thought that those matters can be and should be addressed," he told Reuters.
Sally Shushan, the eastern Louisiana district court magistrate, and former Federal Bureau of Investigation director Freeh, who had been enlisted to investigate Juneau's oil spill claims program, were already deeply steeped in the issue.
Within weeks, District Court Judge Carl Barbier, who had overseen years of acrimonious lawsuits, had designated this trio to shepherd the sides to what would be the largest corporate settlement in U.S. history, according to people involved.
Within a day, BP signaled its interest in further talks, Juneau said. Its executive board put chief financial officer Brian Gilvary, a mathematics PhD and career BP man, in charge of the effort, hoping it would turn out better than in 2012, when an initial round of settlement talks collapsed.
Dudley returned to meet Juneau, Shushan and Freeh in New Orleans later in May, bringing the credibility of an American who grew up just a two hour drive away in Hattiesburg, Mississippi.
"That's how you settle: you get the CEO to walk into the room," said Jim Hood, the attorney general of Mississippi, one of the five states involved in the settlement.
It took BP nearly two months of 10-hour sessions, often through the weekend, to reach the provisional agreement signed a week ago, finally putting a price tag on the spill's civil damages. The deal swelled BP's total bill for Macondo to $53.8 billion, yet provided a sense of closure for investors and boosted the share price of the company valued around $120 billion by as much as 5 percent.
With a federal confidentiality order still in effect and a final agreement yet to be signed, much is still unknown about the secret negotiations that headed off what could have been another decade of litigation.
But conversations with half a dozen people directly involved or briefed on the matter show how a series of legal decisions and deft maneuvering by a trio of insiders paved the way.
"They were losing at every count," said New Orleans attorney Walter Leger Jr., who represented several local parishes and municipalities in the litigation against BP. "I think they finally realized that all the forces of the universe suggested they'd better talk."
ROAD TO A DEAL
The road toward a settlement was laid by a series of rulings by Barbier, New Orleans-based Eastern Louisiana District federal court judge who has been involved in Macondo-related cases since a few months after the accident.
In September 2014, he ruled BP was "grossly negligent" in the disaster and last January set the size of the spill at 3.19 million barrels. Taken together, the rulings meant the BP was on the hook for a fine of up to $13.7 billion under the Clean Water Act alone. Billions more could be levied from a federal Natural Resource Damage Assessment.
Then, in March, BP took a pivotal step and withdrew a bid to remove Juneau as the administrator overseeing the payouts of individual and business damage claims from the uncapped 2012 class-action settlement.
Juneau said he med Dudley shortly thereafter to "reset the button."
Freeh had set up the meeting. By early May, Barbier had named the "panel of neutrals" to guide the process.
TIME TO MOVE
BP was also under mounting internal pressure to free itself from a financial albatross that stymied planning.
Executives feared an unexpectedly large penalty could force a new round of asset sales, undercutting growth. The company also hoped state attorneys would be more flexible on a payout after an oil market crash that had halved prices since mid-2014, sliced BP's earnings and threatened jobs in oil states such as Texas and Louisiana.
A BP spokesman in Houston declined to comment.
Weeks of meetings and hundreds of phone calls, with anywhere from 5 to 50 people at a time, followed. The trio mostly used conference rooms at two New Orleans hotels, but also Freeh's office in Washington, D.C., to hold meetings with everyone from federal lawyers to community representatives, Juneau said.
Shushan, a former commercial litigator who has served as U.S. magistrate judge since 1999 and often negotiated settlements in complex cases, proved particularly pivotal as she was seen taking a firm hand when necessary.
"The magistrate started pulling the bull by the horns," said Hood. "That lady worked hours and hours and hours, and if anybody deserves the credit in this thing, it's Judge Sally Shushan."
While the talks continued under wraps, a series of milestones related to Macondo passed by, eliminating some of the uncertainty stemming from the disaster. Barbier held off making a final ruling on the Clean Water Act penalty, as widely expected, while the talks continued in private.
On May 20, BP resolved a chunk of messy litigation by settling all cross-claims from the spill with well services company Halliburton Co and driller Transocean Ltd .
Then, the deadline for submitting business or individual claims from the accident closed on June 8.
Finally, just three days before the settlement was announced, the Supreme Court dealt BP another blow, dismissing the company's appeal of Barbier's ruling that the company was liable under the Clean Water Act. At this point, Barbier could formally penalize the company at any moment.
On the morning of July 2 BP signed the deal: $5.5 billion for Clean Water Act violations, less than the maximum; $8.1 billion for natural resources damages; $4.9 billion to settle economic claims from the Gulf of Mexico states; and up to $1 billion reserved for local government claims.
It is not quite over. Local entities, including the La Fourche Parish Veterans district in Louisiana, must still approve the agreement by July 15, and it may take months to complete the legal paperwork for the federal agreement and get a binding deal approved by the court.
The hard work, however, appears finished. With the ink not yet dry on the deal last week, CFO Gilvary was already heading back to London to begin a holiday.
"It was quite an exhausting marathon," one person said.
By Jessica Resnick-Ault, Dmitry Zhdannikov and Terry Wade
The opinions expressed herein are the author's and not necessarily those of The Maritime Executive.