Environmental Protection

BP Says It's Ready for Civil Trial

The case before U.S. District Judge Carl J. Barbier apparently will go to trial after all. Phase one will determine the causes of the Deepwater Horizon disaster and who should be held responsible.

BP announced Feb. 19 it is preparing for the federal civil trial that will begin Feb. 26 in New Orleans. The Deepwater Horizon Multi-District Litigation trial is the first of at least two phases U.S. District Judge Carl J. Barbier has set for trial; phase one will focus on the causes of the Deepwater Horizon disaster and who should be held responsible and to what degree.

"We have always been open to settlements on reasonable terms, failing which we have always been prepared to defend our case at trial. Faced with demands that are excessive and not based on reality or the merits of the case, we are going to trial," Rupert Bondy, group general counsel of BP, said in a news release posted at www.bp.com. "We have confidence in our case and in the legal team representing the company and defending our interests."

The crux of the case is whether BP or any other party was grossly negligent. "Gross negligence is a very high bar that BP believes cannot be met in this case," Bondy said. "This was a tragic accident resulting from multiple causes and involving multiple parties. We firmly believe we were not grossly negligent."

Oil flow rate and determining the number of barrels of oil spilled from the wellhead at the bottom of the Gulf of Mexico after the drilling rig explosion are issues in the second phase of the trial, currently scheduled to begin in September 2013. BP maintains the government's public estimate of 4.9 million barrels is at least 20 percent too high, and the maximum amount that could be used to calculate a Clean Water Act penalty should be 3.1 million barrels.

"We believe that consideration of all eight legal factors together weighs in favor of a penalty that is lower than the statutory maximum," Bondy said. "In determining the penalty, we believe the court should consider, among other things, the fact that BP immediately stepped up and acknowledged our role in the accident. We waived the statutory cap on liability, and to date we’ve spent more than $23 billion in response, cleanup, and payments on claims by individuals, businesses, and governments. No company has done more, faster, to meet its commitment to economic and environmental restoration efforts in the wake of an industrial accident, and although the court will ultimately decide, we believe that both the statute and public policy more generally contemplate consideration of our efforts to do the right thing in determining an appropriate penalty."

BP's attorneys for the trial are Robert C. "Mike" Brock, a partner in the Washington, D.C. office of Covington & Burling LLP and chair of its Product Liability and Mass Torts Practice Group; Hariklia Karis, J. Andrew Langan, and Matthew T. Regan, Chicago partners in Kirkland & Ellis LLP; and Don Haycraft , a shareholder in the New Orleans office of Liskow & Lewis, a firm that specializes in energy law.

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