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No. 12-31155 c/w No. 13-30095 _____________________________________________________________ UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ______________________________________________________________ IN RE: DEEPWATER HORIZON APPEALS OF THE ECONOMIC AND PROPERTY DAMAGE CLASS ACTION SETTLEMENT _____________________________________________________________ LAKE EUGENIE LAND & DEVELOPMENT, INCORPORATED; BON SECOUR FISHERIES, INCORPORATED; FORT MORGAN REALTY, INCORPORATED; LFBP 1, L.L.C., DOING BUSINESS AS GW FINS; PANAMA CITY BEACH DOLPHIN TOURS & MORE, L.L.C.; ZEKES 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; JERRY J. KEE, Plaintiffs Appellees v. BP EXPLORATION & PRODUCTION, INCORPORATED; BP AMERICA PRODUCTION; BP PIPELINE COMPANY, Defendants Appellees v. GULF ORGANIZED FISHERIES IN SOLIDARITY & HOPE, INCORPORATED, Movant Appellant _____________________________________________________________ On Appeal from the U.S. District Court for the Eastern District of Louisiana C.A. Nos. 2:10-md-2179, and 2:12-cv-970 ___________________________________________________________ PLAINTIFFS-APPELLEES BRIEF ON THE MERITS ___________________________________________________________

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Stephen J. Herman Herman, Herman & Katz LLC 820 OKeefe Avenue New Orleans, Louisiana 70113 Telephone: (504) 581-4892 Fax No. (504) 569-6024 E-Mail: sherman@hhklawfirm.com Lead Class Counsel

James Parkerson Roy Domengeaux, Wright, Roy, & Edwards LLC 556 Jefferson Street, Suite 500 Lafayette, Louisiana 70501 Telephone: (337) 233-3033 Fax No. (337) 233-2796 E-Mail: jimr@wrightroy.com Lead Class Counsel

Samuel Issacharoff 40 Washington Square South, 411J New York, NY 10012 Telephone: (212) 998-6580 E-Mail: si13@nyu.edu Counsel on the Brief

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CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record for Appellees certify that the Certificate of Interested Persons as set forth by Appellants in their Briefs is complete. Undersigned are not aware of any other interested persons under Fed. R. App. Proc. 28.2.1.

/s/ Stephen J. Herman and James Parkerson Roy Co-Lead Class Counsel

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STATEMENT REGARDING ORAL ARGUMENT Pursuant to Fifth Circuit Rule 28.2.4, Class Counsel respectfully submits that oral argument will likely assist the Court in resolving the issues presented in this appeal.

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TABLE OF CONTENTS

Table of Contents . Table of Authorities Statement of Facts .

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i iv 1 1 7 9 10 12 12 14 15 17 20 21 22 27

A. Factual Background . B. Procedural Background

C. Overview of the Approved Settlement 1. Claims Categories . .

2. Transparency, Objectivity and Independence 3. Structural and Procedural Safeguards 4. Protections Against Future Risk . . . . .

5. Basic Compensation Frameworks . 6. Seafood Compensation Program .

7. Assignment and Other Class-Wide Relief . 8. The Objectors . Summary of the Argument Standard of Review . . . . . . . . . . . . . . .

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Argument

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I. The Pentz Appellants Arguments Are Unsupported, Fail to Address Their Own Claims, and Request Nothing More Than Remand to The District Court . . . . . . . . . II. The Coon and GO FISH Appellants Have No Standing . . .

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A. The Coon Appellants Lack Standing for Failure to Meet the District Court Filing Requirements . . . . B. GO FISH Lacks Standing for Both Substantive and Procedural Reasons . . . . . .

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III. The Coon Appellants Arguments Demonstrate a Fundamental Misunderstanding of the Common Objective Guiding Principles of the Settlement . . . . . . . . A. The Common Source of Class Members Damages Support Commonality, Predominance, and the Superiority of the Class Action to Resolve their Claims . . . 1. Commonality . . . . . . . .

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2. Common Issues Predominate Over Individual Issues

3. The Class Action is Superior to Other Available Methods for the Comprehensive Determination and Resolution of Claims in This Litigation . . . . .

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B. Class Counsel Were and Are Qualified to Manage the Settlement Class Without Conflicts . . . . . . . C. Notice and Opt-Out Procedures Satisfied Rule 23(e) and Contemporary Best Practices . . . 1. The Settlement Notice . . . . .

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2. Notice Does Not Include The Obligation to Create an Opt Out Form . . . . . . .
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3. Due Process is protected by having Claimants Themselves Sign the Opt-Outs . . . . . . IV. The Palmer Appellants Arguments Concerning Real Property Damage Claims, Cy Pres, and Attorneys Fees are Fundamentally Flawed . . . . . . . . . A. The Coastal Real Property Class Representatives are Adequate B. There Is No Cy Pres in This Settlement . C. The Settlement Was Not Fee-Driven . . . . . . .

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62 63 67 69

V. The Bacharach Appellants Arguments Were Never Raised Before the District Court and Are Nonetheless Irrelevant to an Uncapped Settlement . . . . . . . Conclusion . . . . . . . . . . . . . . . .

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72 78 82 83 84

Certificate of Compliance with Type-Volume Limitations. Certificate of Electronic Compliance . Certificate of Service . . . . . . . . .

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TABLE OF AUTHORITIES Page(s) In re Airline Ticket Commn Antitrust Litig., 307 F.3d 679 (8th Cir. 2002) . . . . . .

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67 52

Allapattah Services v. Exxon Corp., 333 F.3d 1248 (11th Cir. 2003) Amchem Products v. Windsor, 521 U.S. 591 (1997) . .

. 41, 49, 66

In re AOL Time Warner ERISA Litig., 2007 WL 4225486 (S.D.N.Y. 2007) . . . . . . Ayers v. Thompson, 358 F.3d 356 (5th Cir. 2004) . Balentine v. Thaler, 626 F.3d 842 (5th Cir. 2010) . . .

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28 10 72 51

Bateman v. Am. Multi-Cinema, Inc., 623 F.3d 708 (9th Cir. 2010) Blatt v. Dean Witter Reynolds Intercapital, Inc., 732 F.2d 304 (2d Cir. 1984) . . . . . . .

. .

70 71

In re Bluetooth Headset Prod. Liab. Litig., 654 F.3d 935 (9th Cir. 2011). Butler v. Sears, Roebuck & Co., ___ F.3d ___, 2013 WL 4478200 (7th Cir. Aug. 22, 2013) . . . . . . Castano v. Am. Tobacco Co., 84 F.3d 734 (5th Cir. 1996) . Central States v. Merck-Medco, 504 F.3d 229 (2d Cir. 2007) Comcast Corp. v. Behrend, 133 S.Ct. 1426 (2013) . Dennis v. Kellogg Co., 697 F.3d 858 (9th Cir. 2012) . . . . . .

. 49, 53, 76 . . . . . . . . . . . 50 66 53 69 62 50

In re Diet Drugs Prods. Liab. Litig., 282 F.3d 220 (3d Cir. 2002)

Evon v. Law Offices of Sidney Mickell, 688 F.3d 1015 (9th Cir. 2012). .

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Feder v. Electronic Data Sys. Corp., 248 Fed.Appx. 579 (5th Cir. 2007) . . . . . . In re FEMA Trailer Formaldehyde Products Liab. Litig. (Mississippi Plaintiffs), 668 F.3d 281 (5th Cir. 2012)

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72 62 61

Gemelas v. Dannon Co., 2010 WL 3703811 (N.D. Ohio 2010) . Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998) . See In re: Foodservice, Inc., Pricing Litig., No. 12-1311, ___ F.3d ___ (2d Cir. Aug. 30, 2013) . . . In re Holocaust Victim Assets Litigation, No.96-4849,51 2000 WL 33241660, 2000 U.S. Dist. LEXIS 20817 (Nov. 22, 2000), affd, 413 F.3d 183 (2d Cir. 2005) .

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51

In re Initial Public Offering Securities Litigation, 721 F.Supp.2d 210 (S.D.N.Y. 2010) . . . . . . . . In re Insurance Brokerage Antitrust Litigation, 579 F.3d 241 (3d Cir. 2009) . . . . . . Juris v. Inamed Corp., 685 F.3d 1294 (11th Cir. 2012), cert. denied, 133 S.Ct. 940 (2013) . .

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52

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In re Katrina Canal Breaches Litig., 628 F.3d 185 (5th Cir. 2010) Klier v. Elf Atochem N. Am., Inc., 658 F.3d 458 (5th Cir. 2011) Mangone v. First USA Bank, 206 F.R.D. 222 (S.D. Ill. 2001) .

29, 42 67, 69 . 68

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Maywalt v. Parker & Parsley Pet. Co., 67 F.3d 1072 (2d Cir. 1995) In re Monumental Life Ins. Co., 365 F.3d 408 (5th Cir. 2004) .

26, 70 . 27

Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620 (5th Cir. 1999) . In re Nassau County Strip Search Cases, 461 F.3d 219 (2d Cir. 2006) .
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Newby v. Enron Corp., 394 F.3d 296 (5th Cir. 2004)

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73 27

Pederson v. La. State Univ., 213 F.3d 858 (5th Cir. 2000) . Petrovic v. Amoco Oil Co., 200 F.3d 1140 (8th Cir. 1999) Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985) .

41, 53 . 60

In re Prudential Ins. Co. of Am. Sales Practices Litig., 148 F.3d 283 (3d Cir. 1998) . . . . . . . Puffer v. Allstate Ins. Co., 675 F.3d 709 (7th Cir. 2012) . .

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70 73

In re Royal Ahold N.V. Sec. & ERISA Litig., 461 F.Supp.2d 383 (D. Md. 2006) . . . . . . . Seijas v. Republic of Argentina, 606 F.3d 53 (2d Cir. 2010) Silverman v. Motorola Solutions, Inc., ___ F.Appx ___, 2013 WL 4082893 (7th Cir. Aug. 14, 2013) . . Strong v. Bellsouth Telecommunications, Inc., 137 F.3d 844 (5th Cir. 1998) . . . . . . .

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Sullivan v. DB Investments, Inc., 667 F.3d 273 (3d Cir. 2011), cert. denied, 132 S. Ct. 1876 (2012) . . . . In re TFT-LCD (Flat Panel) Antitrust Litig., 289 F.R.D. 548 (N.D. Cal. 2013) . . . . . . Taubenfeld v. AON Corp., 415 F.3d 597 (7th Cir. 2005) . Tolbert v. LeBlanc, 512 F. App'x 401 (5th Cir. 2013) .

41, 49, 55, 56

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62

28, 72 . 73

Union Asset Mgmt. Holding A.G. v. Dell, Inc., 669 F.3d 632 (5th Cir. 2012) . . . . . . U.S. ex rel. Mathews v. HealthSouth Corp., 332 F.3d 293 (5th Cir. 2003) . . . . . .
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. 27, 52, 71

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U.S. ex rel. Willard v. Humana Health Plan of Tex., Inc., 336 F.3d 375 (5th Cir. 2003) . . . .

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In re Visa Check-MasterMoney Antitrust Litigation, 280 F.3d 124 (2d Cir. 2001) . . . . . . . Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011) . .

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45, 53

In re Wal-Mart Wage and Hour Employment Practices Litig., MDL No. 1735, 2010 WL 786513 (D. Nev. 2010) . In re Warfarin Sodium Antitrust Litigation, 391 F.3d 516 (3d Cir. 2004) . . . . . .

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49 70 60

Waters v. Intl Precious Metals, Corp., 190 F.3d 1291 (11th Cir. 1999) . Wortman v. Sun Oil Co., 755 P.2d 488 (Kan. 1987) . . .

Young v. Nationwide Mutual Insurance Co., 693 F.3d 532 (6th Cir. 2012) . . . . . . Oil Pollution Act of 1990, 33 U.S.C. 2701 et. seq. 33 U.S.C. 2702 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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60, 61 . . . . . . . . . 51 22 47 47 47 47 22 32 32

33 U.S.C. 2703(a)(3) 33 U.S.C. 2704(a) 33 U.S.C. 2704(c)(1) 33 U.S.C. 2705(a) 33 U.S.C. 2713 33 U.S.C. 2717(f) 33 U.S.C. 2717(h) .

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American Law Institute, Principles of the Law of Aggregate Litigation, 1.03 (2010) . . . . . . . . Class Action Notices Page, THE MANUAL FOR COMPLEX LITIGATION, FOURTH (Federal Judicial Center 2004) . . . . Samuel Issacharoff and Theodore Rave, The BP Oil Spill Settlement and the Paradox of Public Litigation, http://ssrn.com/abstract=2278378 .

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STATEMENT OF FACTS 1 A. Factual Background

On April 20, 2010, a blowout, explosion, and fire occurred aboard the Deepwater Horizon drilling vessel as it was preparing to conclude operations on BPs Macondo Well on the Outer Continental Shelf off the coast of Louisiana. The Deepwater Horizon Incident resulted in eleven deaths, multiple injuries, and a massive discharge of oil into the Gulf of Mexico that continued for 87 days.2 The Incident disrupted economic activity in the Gulf region for many months. Numerous individual and class claims of property damage and economic loss were filed in the Federal Courts of the Gulf States. The District Court took early charge of the case, and, on August 10, 2010, the Judicial Panel on Multidistrict Litigation assigned all federal cases to the

Record cites will generally contain both the District Court Document Number and this Courts Record Cite as [Dist. Ct. record; Fifth Cir. record]. Where the material is included in Appellees Record Excerpts, the R.E. cite will come first: [Record Excerpt page; Dist. Ct. record; Fifth Cir. record]. Capitalized terms are generally used as they are defined in the Economic and Property Damages Settlement Agreement [Rec. Doc. 6430-1; 6261]. 2 The Settlement Agreement defines the Deepwater Horizon Incident as the events, actions, inactions and omissions leading up to and including (i) the blowout of the MC252 Well; (ii) the explosions and fires on board the Deepwater Horizon on or about April 20, 2010; (iii) the sinking of the Deepwater Horizon on or about April 22, 2010; (iv) the release of oil, other hydrocarbons and other substances from the MC252 Well and/or the Deepwater Horizon and its appurtenances; (v) the efforts to contain the MC252 Well; (vi) Response Activities, including the VoO Program; (vii) the operation of the GCCF; and (viii) BP public statements relating to all of the foregoing. ECONOMIC AND PROPERTY DAMAGES SETTLEMENT AGREEMENT, at 100, 38.43 [Rec. Doc. 6430-1; 6360].

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District Court pursuant to 28 U.S.C. 1407.3 Since that time, the District Court has actively managed all Macondo-related actions asserting claims (primarily under maritime law and the Oil Pollution Act) by and on behalf of those whose businesses, livelihoods, properties, and lives have been affected by the Deepwater Horizon Incident, including Transoceans Limitation Action and the individual suits, class actions, and joinders filed in the Eastern District of Louisiana and other districts. On October 19, 2010, the District Court issued Pre-Trial Order No. 11 [Rec. Doc. 569; 1413], organizing the pleadings and categorizing the claims and issues by creating pleading bundles for various types of claims. The B1 bundle

encompasses all private claims for economic loss and property damage [PTO 11, III(B1)]. The Plaintiffs Steering Committee (PSC) filed the original B1 Master Complaint on December 15, 2010 [Rec. Doc. 879; 1439], and a First Amended B1 Master Complaint on February 9, 2011 [Rec. Doc. 1128; 1938]. Numerous

Defendants filed motions to dismiss, and, on August 26, 2011, the District Court issued an Order and Reasons granting in part and denying in part these motions [Rec. Doc. 3830; 2139].4

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). 4 These Order and Reasons (8/26/2011) [Doc 3830; 2139] are reported at In re Oil Spill by the Oil Rig Deepwater Horizon, 808 F.Supp.2d 943 (E.D. La. 2011).
3

BP answered the First Amended Complaint on

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September 27, 2011 [Rec. Doc. 4130; 2178]. Phase One of a multi-phase common issues trial centered around Transoceans Limitation Action (No. 10-2771) was conducted from February 25 to April 17, 2013. Phase Two of the common issues trial, focusing on quantification (how much oil escaped from the Macondo well) and source control (why did it take 87 days for BP to close the well), will commence on September 30, 2013 and is scheduled to last approximately four weeks. Following the JPMLs centralization order, the parties engaged in extensive discovery and motion practice to prepare for the multi-phase trial. They took over 390 depositions, produced approximately 120 million pages of documents, and exchanged more than 80 expert reports, on the intense and demanding schedule appropriately set by the District Court to keep this massive litigation on course. Depositions were conducted on simultaneous multiple tracks, on two continents. Discovery was managed and kept on schedule by weekly discovery conferences before Magistrate Judge Shushan and by monthly status conferences held by the Court. In February 2011, against this backdrop of intensive discovery and pretrial proceedings, the parties began to explore settlement opportunities. Given the nature and extent of the claims, the mutually perceived need for ongoing judicial
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supervision, and the procedural due process protections unique to Rule 23, the class action was selected early on as the most appropriate structure for any comprehensive resolution. Settlement discussions intensified in July 2011,

thereafter occurring on an almost-daily basis. In late 2011, Magistrate Judge Shushan became involved in the settlement negotiations, at the request of the parties and designation by the Court. In all, over 145 day-long, face-to-face

negotiation meetings took place, in addition to numerous phone calls and WebEx conferences.5 In negotiating the Settlement Agreement, the parties followed a rigorous protocol: rather than negotiating a total settlement figure for an aggregate class settlement, the parties determined, at arms length, the strength and value of each separate type of claim. Without regard to the potential total payout figures, the parties negotiated these specific claims frameworks, programs, and processes, including the types of documentation or other proof that would be required for claimants to receive a settlement benefit, what categories of claims would be paid, whether certain claimants would benefit from causation presumptions, and how settlement benefits would be calculated.6 The negotiations were exclusively

See Transcript, at 83 (April 25, 2012) [Rec. Doc. 6395; 5802].

See generally Declaration of John C. Coffee, Jr. (Coffee Declaration) (submitted

jointly by BP and Class Counsel), 26-28 [Rec. Doc. 7110-3; 10243]; Declaration of Geoffrey P. Miller (Miller Declaration) (submitted by BP), 22-27 [R.E. 5.006; Rec. Doc. 7114-16;
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focused, from the outset, on producing claims frameworks that could be administered fairly, objectively, transparently, and consistently, based on the merits of the underlying claims.7 During this process, PSC members and other Plaintiffs counsel familiar with each of the claims were consulted by the negotiators to help ensure that the frameworks reflected the actual situations faced by people and businesses affected by the spill. For example, attorneys representing seafood restaurants contributed to the development of the business economic loss framework, which details the steps by which businesses recover for losses due to the spill. So, too, did attorneys representing employees inform the development of the individual lost wages framework; attorneys representing wetlands owners the property damage framework; attorneys representing homeowners the real estate sales loss framework; and so on.8

10737]; Herman Declaration [Rec. Doc. 7104-5; 9908]; Rice Declaration (Negotiations) [Rec. Doc. 7104-6; 9913]; Issacharoff Decl. 7-14 [Rec. Doc. 7104-4; 9895]. 7 A major goal of the settlement was to address and correct widespread claimant dissatisfaction with the Gulf Coast Claims Facility (GCCF), a program established and conducted by BP outside court auspices. See Order and Reasons (Feb. 2, 2011) [Rec. Doc. 1098; 1923]. 8 Appellants raise the potential allocation question hypothetically faced by Class Counsel: should the compensation for one subclass be raised and correspondingly that for another lowered? Palmer Appellants Br., at 28-29 (quoting Coffee, Class Wars 95 Colum. L. Rev. 1343, 1443 (1995)). Yet, that type of decision was never made during these negotiations. Rather, the Parties were careful to ensure that Class Counsel were never placed in a position of having to make that type of trade-off. And Class Counsel never did. See generally Coffee Declaration 23-34 [Rec. Doc. 7110-3]; Herman Declaration [Rec. Doc. 7104-5; 9908];
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With the exception of the Seafood Compensation Program, there is no limit or cap on the amount to be paid by BP under these frameworks. Rather, all claims that meet the criteria will be paid in full. Claimants may submit claims in multiple categories to recover on all demonstrable losses arising from the Deepwater Horizon Incident. The Seafood Fund has a guaranteed sum of

$2.3 billion, a figure representing more than four times the total yearly seafood revenues in the entire Gulf, allocated by a court-appointed neutral.9 On February 26, 2012, the literal eve of the Limitation and Liability Trial, the Court adjourned proceedings for one week, at the parties request, to enable further progress on the settlement talks. [Rec. Doc. 5887; 3459.] On March 2, 2012, the Court was informed that the parties had reached an Agreement-inPrinciple on the proposed settlements. The Court adjourned Phase I of the trial, because of the potential for realignment of the parties and potential changes to the trial plan. [Rec. Doc. 5955; 3460.]

Rice Declaration (Negotiations) [Rec. Doc. 7104-6; 9913]; Issacharoff Declaration 7-17 [Rec. Doc. 7104-4; 9895]; Miller Declaration 22-28 [R.E. 5.006; Rec. Doc. 7114-16; 10737]. 9 Mr. Perry was appointed by court order. [Rec. Doc. 5998; 3492.] The detailed 85-page Seafood Compensation Program he developed can be found as EXHIBIT 10 to the SETTLEMENT AGREEMENT [Doc 6276-22; 4390] (amended at REC. DOC. 6415-5; 6139).
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B.

Procedural Background

While work continued finalizing the details of the settlement, the Court entered, at the parties request, an Order facilitating a transition from the GCCF to the Court Supervised Settlement Program, and appointed a Transition Coordinator and Claims Administrator. [Rec. Doc. 5995; 3487.] On April 16, 2012, the PSC filed a new class action complaint to serve as the vehicle for the proposed Economic and Property Damage Settlement. This action, Bon Secour Fisheries, Inc., et al. v. BP Exploration & Production Inc., et al., was amended on May 2, 2012 [Rec. Doc. 6412; 5854]. On April 18, 2012, the PSC and BP filed the proposed Economic Settlement [Rec. Doc. 6276; 4008] and Motions for Preliminary Approval and Class Certification [Rec. Doc. 6266; 3554] [Rec. Doc. 6269; 3908] [Rec. Doc. 6414; 6000], which were granted, after a multi-hour preliminary approval hearing conducted on April 25, 2012.10 On November 8, 2012, after extensive notice, the District Court conducted the fairness hearing. Numerous expert reports, declarations, exhibits, and

extensive briefing were submitted by Class Counsel and BP. These included expert declarations addressing the interrelated issues of class certification and settlement approval submitted by BPs expert Geoffrey P. Miller, Plaintiffs expert

10

See Preliminary Approval Order (May 2, 2012) [Rec. Doc 6418; 6208].

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Robert H. Klonoff, and the parties joint expert, John C. Coffee, Jr.11 The District Court heard extensive argument from BP, Class Counsel, and the objectors. At the time, the District Court had before it the best objective indicia of whether the Class was objectively defined with predominantly common issues of law and fact subject to a superior procedural mechanism for claim resolution i.e. the operation of the Settlement Program, which had been accepting, processing, and paying claims for five months. BP was thrilled with the manner in which the claims were being processed, as its counsel Richard Godfrey represented: The settlement is working as we anticipated. [Rec. Doc. 7892 at 62; 15736.] BPs Counsel also noted that, in reaching the Class Settlement Agreement, BP and the Plaintiff Steering Committee: [w]ent out and retained the nations 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 the settlement. Those declarations are well worth considering because these are our nations leading experts in this field.12

The District Court attached an index of all declarations to its decision, [R.E. 1.117; Rec. Doc. 8138, at 117; 19962], as well as another index that identified the Class Definition, id. at 119-25 [R.E. 1.119-25; 19964]. 12 Fairness Hearing Transcript, at 52 [Rec. Doc. 7892; 15726].
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On November 19, 2012, BP and Class Counsel submitted detailed joint proposed findings on each element of settlement approval and class certification, referencing their respective and joint experts, and the operation of the Settlement Program.13 On December 21, 2012, the District Court issued its 116 page Order and Reasons, [R.E. 1.001; Rec. Doc. 8138; 19846] and its 15 page Order and Judgment [R.E. 2.001; Rec. Doc. 8139; 19971] certifying the Settlement Class and granting full approval to the settlement. The decision extensively reviewed the factual and procedural history, id. at 1-5, provided an overview of the Settlement, id. at 6-19, addressed the Rule 23(a) and (b)(3) criteria, id. at 24-55, determined the Settlement was fair, reasonable and adequate, id. at 55-74, and overruled each of the Objectors arguments, id. at 74-116. C. Overview of the Approved Settlement

The Settlement is designed to resolve claims by private individuals and businesses for economic loss and property damage resulting from the Deepwater Horizon Incident. The Economic Loss and Property Damage Settlement Class certified for settlement purposes pursuant to Federal Rule of Civil Procedure
13 Class Counsels and BP Defendants Joint Proposed Findings of Fact and Conclusions

of Law in Support of Final Approval of Deepwater Horizon Economic and Property Damages Settlement, etc. [Rec. Doc. 7945; 16008]. The joint submission includes 44 pages of proposed findings regarding the satisfaction of Rule 23(a)(1)-(4) and (b)(3) requirements.
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23(b)(3), consists of individuals and entities defined by (1) geographic bounds and (2) the nature of their loss or damage.14 If both criteria are not met, or the plaintiff opts out, that individual or entity is not within the settlement class and the claims are completely unaffected by the Settlement. Where a person or entity has

multiple claims, some falling within the settlement and some falling outside of the settlement, only the former claims are included. In several cases, claims falling outside of the Settlement are Expressly Reserved.15 The class is objectively defined by geographic bounds: Louisiana, Mississippi, Alabama, and certain coastal counties in eastern Texas and western Florida, as well as specified adjacent Gulf Waters, such as estuaries, inlets and bays. Individuals must have lived, worked, owned property, leased property, etc., in these areas between April 20, 2010 and April 16, 2012. Entities must have conducted certain business activity in these areas between April 20, 2010 and April 16, 2012.16 1. Claims Categories

The Settlement, described in detail in the District Courts Final Approval Order and Reasons recognizes six basic categories of damage:

14

The Class Definition is incorporated as Appendix A to the Order of Judgment [R.E.

2.007-13; Rec. Doc. 8139, at 7-13; 19977]. 15 See generally SETTLEMENT AGREEMENT, 3, 8.2.3 & 10.2 [Rec. Doc. 6276-1; 4027]. 16 See generally Order of Judgment Appendix A [R.E. 2.007-13; Rec. Doc. 8139, at 7-13; 19977].
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(1)

Economic Loss (including frameworks for individual loss of wages,

business economic loss, multi-facility businesses, start-up businesses, failed businesses, and failed start-ups) (2) Property Damage (including frameworks for coastal property,

wetlands, and realized sales losses) (3) (4) (5) (6) Vessel of Opportunity (VoO) Charter Payment Claims Vessel Physical Damage and Decontamination Subsistence Commercial Fishing Losses (i.e. the Seafood Compensation Program)

Certain individuals, entities and claims are specifically excluded from the Settlement.17 Substantial claims are reserved to claimants, who can be compensated for their included claims under the Settlement while also preserving and pursuing the reserved claims outside of the Settlement Class. Class Members may submit multiple claims and receive compensation for multiple categories of damage.18

17

Exclusions from the Economic Class Definition are listed in Section 2 of the Settlement

Agreement, (e.g., casinos, banks, real estate developers, and members of the oil and gas industry). The rights of these excluded claimants are unimpaired, as their economic loss claims may continue to be prosecuted in this litigation or elsewhere. 18 See SETTLEMENT AGREEMENT, 4.4.8 [Rec. Doc. 6276-1; 4038].
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2.

Transparency, Objectivity, and Independence

Regarding the importance of objective and transparent criteria for class inclusion and claim compensation, and the shortfalls of the GCCF, the District Court observed: Full disclosure concerning the relationship between the responsible party and the third party acting in accordance with OPA is consistent with the policy underlying other court-overseen claims resolution facilities such as class actions or other settlement funds and bankruptcy trusts and is consistent with the transparency policies of many defendants. The legitimacy of a third-party claims-resolution facility is derived in no small part from the claimants ability to learn, comprehend, and appreciate how that facility is operated so that the claimants can fully evaluate the rationale behind the communications made to them by the facility. Full disclosure and transparency can insure that the reality of the operation of a third party will be consistent with any publicity concerning that entity. Full disclosure can also give protection to the responsible party from possible future legal attacks on the validity of the evaluation, payment, and release of claims.19 Judicial supervision of the settlement process under the formal structure of Rule 23 ensures that these objectives are realized throughout the claims process. 3. Structural and Procedural Safeguards

The Settlement Agreement contains a detailed series of objective frameworks and criteria, which were negotiated at arms length and shall apply

19

See Preliminary Approval Order and Reasons, at 7-8 [Rec. Doc. 6418; 6233].

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equally to all Claimants under ongoing Court supervision,20 and overseen by an independent Claims Administrator with a fiduciary duty to the claimants.21 Per the Settlement: The Settlement Program, including the Claims Administrator and Claims Administration Vendors, shall use its best efforts to provide Economic Class Members with assistance, information, opportunities and notice so that the Economic Class Member has the best opportunity to be determined eligible for and receive the Settlement Payment(s) to which the Economic Class Member is entitled under the terms of the Agreement. SETTLEMENT AGREEMENT, 4.3.7 (emphasis supplied).22 The Claims Administrator Vendors shall evaluate and process the information in the completed Claim Form and all supporting documentation under the terms in the Economic Damage Claims Process to produce the greatest economic damage compensation amount that such information and supporting documentation allows under the terms . . . . SETTLEMENT AGREEMENT, 4.3.8 (emphasis supplied) [Rec. Doc. 6276-1; 4037].

See SETTLEMENT AGREEMENT, 4.4.7 [Rec. Doc. 6276-1; 4037]. See also id. at 4.3.1 (providing for court appointment and supervision of the Claims Administrator); id. at 4.3.4 (providing the court with final dispute resolution authority of policy decisions); id. at 6.6 (providing the court with final dispute resolution to review appeals of claims); id. at 18.1 (providing the court with continuing jurisdiction over the Settlement). 21 See SETTLEMENT AGREEMENT, 4.3.1 [Rec. Doc. 6276-1; 4037]. 22 See also SETTLEMENT AGREEMENT, 4.4.9 (providing that no negative presumption would apply to any claims previously denied by the GCCF); id. at 4.4.14 & 6.1.2.1.1 (providing that each class member is entitled to their entire claims file, including calculations and worksheets).
20

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With the exception of the Seafood Compensation Program, (a guaranteed $2.3 billion fund), there is no limit on the amount to be paid by BP. Further, BP is responsible for satisfying the class members common benefit fee obligations, and reimburses claimants for accounting services required for the preparation and filing of their claims. BP provides a $57 million Gulf Coast Tourism and Seafood Promotional Fund, a Transocean insurance proceeds fund, and a $5 million supplemental publicity campaign, and assigns its claims against Transocean and Halliburton to the class. 4. Protections against Future Risks

In addition to baseline compensation payments, most claims also will receive a Risk Transfer Premium (or RTP), which is a multiple enhancement of the baseline compensation. RTPs range from .25 to 8.75, and are added to the baseline Compensation Amount, for an effective multiplier of 1.25 to 9.75 under the Proposed Settlement.23 The RTP enhancements are meant to compensate class members for pre-judgment interest, the risk of oil returning, consequential damages, inconvenience, aggravation, the risk of future loss, the lost value of money, the liquidation of legal disputes about punitive damages, and other factors.

See RTP Chart (Ex. 15) [Rec. Doc 6276-33; 4898]; Seafood Compensation Program (Ex. 10) [Rec. Doc 6276-22; 4390].
23

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5.

Basic Compensation Frameworks

Individual economic losses under the Proposed Settlement are calculated as the estimated difference between a claimants expected earnings during May to December of 2010 and the claimants actual earnings during that claim period. To that base compensation amount is added any applicable RTP. Causation is presumed for claimants in geographic proximity to the spill, and for many tourism and seafood category claimants, whose losses from the spill are categorically more direct and less conjectural; other claimants must demonstrate that a loss is due to the oil spill based not on individualized, subjective, or inconsistent criteria, but on the objective criteria set forth under the terms of the settlement. For existing businesses, economic loss claims are determined using a twostep process. Step One calculates the value of the businesss reduction in profit during a claimant-selected loss period (any three or more consecutive months of the eight-month period following the spill). Step Two accounts for expected

profits by estimating the businesss growth trend along with a general, economywide growth factor. The sum of Step One (loss calculation) and Step Two

(expected profit but-for the spill) results in the business claimants base

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compensation amount.24 This amount is generally enhanced by an RTP and/or offset by prior payments received, depending on the type of business and location. The Settlement also includes additional or alternative frameworks for multifacility businesses, failed businesses, start-up businesses, and failed start-up businesses. Coastal Real Property claimants are compensated for loss of use and enjoyment by multiplying the 2010 Applicable Property Tax (defined as 1.18% of the County Appraised Value) by 30%-45%, depending on the presence of oil and the environmental sensitivity of the property. This amount is enhanced by an RTP of 2.5. Additional compensation is available if claimants establish physical damage from response operations. Wetlands Real Property compensation is based on whether parcels were directly affected with oil. Oiled parcels are paid a minimum of $35,000 per acre. Where no oil was observed, compensation is a minimum of $4,500 per acre. Wetlands Real Property claims are enhanced by an RTP of 2.5. The Settlement provides compensation for certain individuals and entities that realized sales losses as a result of the spill. The compensation amount is 12.5% of the sale price.

There is currently pending before this Court a challenge by BP to the application of the business loss calculation, an issue not raised by any party at settlement approval or in the notices of appeal. See In re Deepwater Horizon, U.S. Fifth Circuit No. 30315.
16

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Subsistence claimants those individuals who fish, hunt, or harvest Gulf of Mexico natural resources to sustain the basic needs of themselves and their familiesare entitled to compensation for the total value of lost subsistence natural resources plus an RTP enhancement of 2.25. The Vessels of Opportunity (VoO) Charter Compensation provisions compensate those who chartered their vessels to assist with the cleanup, with 26 days of additional payments under the applicable rates provided in their charter agreements, while class members who executed charter agreements but were never formally dispatched receive three days of compensation at the applicable charter rate. Vessel owners whose vessels were physically damaged as a result of the oil spill or cleanup operations may recover the lesser of repair or replacement costs. 6. Seafood Compensation Program

The parties attempted to negotiate separate frameworks for commercial fishing and oyster leaseholder claims for a number of months. The lead

negotiators for the plaintiffs frequently consulted with other attorneys, stakeholders and industry representatives to gain insight and achieve consensus and support for the models being discussed with BP. While these frameworks, like the others, were being negotiated within the context of an uncapped or evergreen structure, the plaintiff negotiators, through the course of these discussions, came to have a
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good understanding of the overall picture with respect to commercial fishing in the Gulf and the documented effects of the spill on the industry. When, therefore, BP moved the discussion to a non-reversionary fund that would satisfy all class commercial fishing claims, the $2.3 billion that BP was willing to guarantee to the seafood claimants was almost five times the entire revenue of annual catch landed in the Gulf Coast Areas, and significantly more than the total of the projected aggregate pay-outs under the separate shrimp, oyster harvester, oyster leaseholder and deckhand compensation models under discussion by the stakeholder constituencies.25 Given the negotiating dynamic, (in which Magistrate Judge Shushan was participating as an active mediator), and the available evidence,26 Class Counsel believed, as has become evident, that a

2.3 billion replaces the entire catch in affected areas of the Gulf of Mexico for seven years, buys a 15 year supply of fuel, ice and food for every affected vessel, and is 22 times the 2010 loss caused by the spill. Split fairly, the Seafood Program should be enough to protect fishermen even in the worst case situation, total fishery collapse. Objector GO FISH counsel Joel Waltzer, Statement to the Press (March 19, 2012) [Rec. Doc. 7104-1; 9789]. 26 The NOAA ALS data comparing averages for 2007-2009 with the average for 2010 and preliminary estimates for 2011 show a 16.5% decline in the volume of shrimp landings, a 23.85% decline in the volume of blue crab landings, a 34.39% decline in the volume of oyster landings, and a 14.66% decline in the volume of finfish landings. The Seafood Program developed by Mr. Perry, by comparison, compensates the plaintiff for an annual 35% loss of shrimp and blue crabs, an annual 40% loss of oysters, and an annual 25% loss of finfish. In terms of overall revenue, the Seafood Program would account for an approximate 480% loss to the industry, in annual terms. [Rec. Doc. 7104-1; 9789.]
25

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guaranteed $2.3 billion fund would provide significantly more compensation to the class than could be achieved under frameworks separately negotiated with BP.27 Out of an abundance of caution, and in order to prevent any perception of potential intra-class conflict, the parties asked the Court to appoint noted mediator, John W. Perry, Jr., to determine the allocation. Mr. Perrys independent research and determinations lend further support to the conclusion that $2.3 billion is more than sufficient to fully compensate the participants in the Seafood Program.28 Specifically, the Seafood Compensation Program frameworks, which are themselves conservative, are projected to pay out an initial amount of approximately $1.9 billion, in full and fair compensation to the relevant class members, leaving an approximate $400 million reserve. In addition to this $400 million head room: (i) more than $700 million was already paid to commercial fishermen by the GCCF; (ii) BP assumes full responsibility for up to 17.5% opt-outs; and (iii) class members punitive damage claims, as well as the BP-assigned claims, against Transocean and Halliburton are reserved.29

See Herman Declaration, 11 [Rec. Doc. 7104-5; 9911]; Declaration of Joseph F. Rice (Seafood Program) [Rec. Doc. 7104-6; 9925]. 28 See Plaintiffs Exhibit A (in globo) re the Seafood Compensation Fund [Rec. Doc. 7104-1; 9789]; Declaration of John W. Perry, Jr. [Rec. Doc. 7110-5; 10299]; Declaration of Daniel J. Balhoff [Rec. Doc. 7110-2; 10217]. 29 See generally Perry Declaration [Rec. Doc. 7110-5; 10293]; Balhoff Declaration [Rec. Doc. 7110-2; 10217]; Herman Declaration, 11 [Rec. Doc. 7104-5; 9911]; Rice Declaration (Seafood Program) [Rec. Doc. 7104-6; 9925].
27

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Within the Seafood Compensation Program frameworks developed by Mr. Perry, captains and vessel owners are generally awarded a base compensation amount derived from historical benchmark earnings, taking into account the vessel size and predetermined cost factors, price increases, and loss factors generally experienced by the relevant species. With the exception of shrimpers who can elect an expedited (or reduced expedited) lump sum payment, these base compensation amounts for captains and vessel owners are enhanced with substantial RTPs. The Seafood Compensation Program provides for a per-acre compensation payment to oyster leaseholders, and a separate formula to compensate holders of Individual Fishing Quota (IFQ) shares. Finally, the

Program provides varying levels of compensation to crew members, based on the level and quality of their supporting documentation. 7. Assignment and Other Class-Wide Relief

Under the Settlement, BP pays compensatory damages (including those that might be attributed to the fault of Transocean or Halliburton), but at the same time allows the plaintiffs to continue to seek punitive damage recoveries from Halliburton and Transocean.30 The Settlement also assigns certain of BPs claims

SETTLEMENT AGREEMENT, 3.6 [Rec. Doc. 6276-1; 4027]; id. at 10.2 [Rec. Doc. 6276-1; 4027].
30

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against Transocean and Halliburton to the class.31 BP additionally provides a $57 million fund to promote tourism and seafood on the Gulf Coast,32 and a fund of up to approximately $150 million in recoveries from Transocean insurance proceeds.33 8. The Objectors

Contrasted with over 200,000 class members who have filed claims into the Court-Supervised Settlement Program, only five groups of objectors from the District Court filed appellate briefs. None of them complain of their compensation calculations, identify what compensation they are entitled to under the Settlement, or define what other or greater compensation they believe they should receive. Of the six settlement claim categories, only one part of the property claim (coastal real property), and one aspect of the business claims is challenged on appeal. The Seafood Program draws but a single contingent and premature challenge that depends on the second round distribution, which has not yet occurred. None of the individual, subsistence, VoO, or vessel damage frameworks are directly challenged by any Appellant.

BP, for example, assigned its claims against Transocean and Halliburton relating to the repair, replacement and/or re-drilling of the Macondo Well, the costs BP incurred to control the well and/or to clean up the spill, and for punitive damages. SETTLEMENT AGREEMENT, Exhibit 21, 1.1.3 [Rec. Doc. 6271-1; 4066]. 32 SETTLEMENT AGREEMENT, 5.13 [Rec. Doc. 6276-1; 4027]. 33 SETTLEMENT AGREEMENT, Exhibit 21, 1.1.4.2 [Rec. Doc. 6276-39; 4971].
31

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SUMMARY OF THE ARGUMENT The Deepwater Horizon Incident, the most devastating oil spill of modern times, is also the largest to have occurred since enactment of the Oil Pollution Act of 1990 (OPA), 33 U.S.C. 2701 et. seq. BP early acknowledged its statutory status as OPA responsible party, which extends its potential liability for economic loss far beyond the limitations of traditional maritime law. OPA

provides a single statutory framework to determine the ultimate bounds of this liabilitythe predominant common question facing all claimantsbut of itself provides no automatic answer. Notably, OPAs statutory policy favors resolution, preferring an accelerated comprehensive settlement program be implemented as an alternative to seriatim litigation.34 The GCCF, BPs initial attempt, lacked the features of court authority: the consistency, transparency and predictability that class action settlements ensure. It provided immediate compensation to some affected parties, but proved unable to fulfill OPA objectives of final resolution on an equitable and consistent basis. The class settlement, by contrast, achieved negotiated answers to common questions, within a structure suited to fulfill OPA resolution policy. As BPs pre-class

settlement experience proved, the sheer scope of the disaster and its unprecedented

See 33 U.S.C. 2705(a) (The responsible party shall establish a procedure for the payment or settlement of claims for interim, short-term damages.).
22

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impact on the Gulf economy generated a volume and variety of claims beyond the ability of informal or piecemeal settlements to address. Like the Deepwater Horizon Incident itself, this Settlement is historic in size and uniqueness. As of the latest official report to the District Court, approximately 200,000 claims had been filed, and 139,000 claim notices had been issued, including 53,300 eligibility notices totaling over $4.4 billion in determinations.35 $3.16 billion has actually been paid with an additional $1.15 billion remaining in the Seafood Compensation Fund.36 Nothing can better gage the fairness, reasonableness, and adequacy of a settlement than the track record developed over the past year. To achieve this feat, the District Court appointed an independent Claims Administrator who oversees over 150 accountants, an even larger administrative staff, and operates with a quarterly budget exceeding $100 million.37 Completion of the administration infrastructure was accomplished with less than a three month lead-time from the date of interim appointment (March 8, 2012) to the first day claims were accepted for processing (June 4, 2012). No matter how many claims from any of the different six claim categories are deemed payable, no claims compete against each other for payment. While the


35 36

Claims Administrator Status Report No. 12,at 10-11 [Rec. Doc. 11008]. Id. See also 11008-1 at 3. 37 [Rec. Doc. 11179.]

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Seafood Compensation Fund is the lone exception, its guaranteed fund of $2.3 billion has proven more than sufficient to meet the objective formulae used for payment. Against this backdrop stand a paltry few objectors who raise the narrowest of concerns, which are either speculative, irrelevant to the actual class and settlement structure, or contradicted by the record. For perspective purposes, over 69,000 business economic claims have been filed;38 while only two lawyers, representing less than 15 businesses, have objected, voicing only the narrowest of a single concern. However, not one

business has complained of the value or compensation method of these claims. No Appellant is challenging the methodology or fairness of the 32,282 individual claims, the 25,592 subsistence claims, the 8,468 VoO claims, or the 1,297 vessel claims that have been filed.39 The foundation that binds the Rule 23(a) prerequisites of numerosity, commonality, typicality, and adequacy with the Rule 23(b)(3) requirements of predominance and superiority is, at the end of the day, one of feasibility whether a district court can manage the class action in terms of functionality, with fairness and efficiency. Here, because this class is one for settlement purposes, its


38 39

Claims Administrator Status Report No. 12,at 10 [Rec. Doc. 11008]. Id.

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feasibility and manageability is found in the settlement itself. And, because it has been in effect for 14 months, the Settlements manageability has been on full display. It has worked. Of the 200,000 claims that have been filed, Class

Members have only appealed 731 claims, less than 0.3%.40 The challenges by the Appellants are remarkably narrow. For example, not one of the Appellants states exactly what amount it believed would have been fair, as opposed to what the Settlement methodologies dictate. Not one of the Appellants argues that the Settlement is vague, subjective, or opaque. Each of the Appellants had the ability to calculate the value of their claim and decide whether to make a claim or opt out. In this historic settlement, in which the Settlement Program was fully operational for months before the opt-out deadline, some claimants had the opportunity to receive a determination letter prior to the opt-out date, and all could determine on a fully informed basis what course was in their best interest. The only claims that are specifically challenged business, property, and seafood are not even frontally challenged on the merits of the damage calculation or on causation. Even the challenge to the Seafood Program does not argue that it

40

Id., at 17.

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unfairly or unreasonably compensates claims; just that everyone needs to wait for the second round distribution to cure whatever issues may or may not exist. The damage frameworks, developed over months of intense negotiation, objectively quantify the losses suffered in the wake of the Deepwater Horizon Incident in 2010, and in most cases add an RTP, which further compensates for unknown and future effects, punitive damage exposure, the time value of money, and other legal uncertainties. The differences within these frameworks, developed through arms-length negotiation, are rationally related to the relative strengths and merits of similarly situated claims.41 The causation presumptions are generally afforded to the types of business and/or geographical locations most likely to have been impacted by the spill, while the higher compensation offered through the RTPs are generally afforded to industries and locations which face the greatest risk of ongoing loss and/or are most likely to have claims for punitive damages.42
41 Magistrate Judge Shushan played an important supervisory role in facilitating and

mediating the agreement. Her evenhanded, daily (and often minute-by-minute) efforts throughout the last three months of negotiations strongly counsel in favor of approving the settlement. See, e.g., Maywalt v. Parker & Parsley Pet. Co., 67 F.3d 1072, 1079 (2d Cir. 1995) (The supervision of settlement negotiations by a magistrate judge, as occurred here, makes it less likely that . . . [class counsel have promoted] their own interests over those of the class). 42 The members of the settlement class will receive additional individualized and collective benefits, including: reimbursement of reasonable claims preparation expenses, SETTLEMENT AGREEMENT, at 25 [Rec. Doc. 6276-1; 4056]; a $57 million Gulf Tourism and Seafood Promotional Fund, id. at 51; the class-wide assignment of BPs claims against Transocean and Halliburton, id. at 75; the satisfaction by BP of all common benefit costs and fees, id. at 78; a Transocean insurance proceeds reserve fund, id. at 53; and an express reservation of punitive damage claims against Transocean and Halliburton, id. at 12.
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STANDARD OF REVIEW This Court reviews class certification and settlement approval orders for abuse of discretion. Union Asset Mgmt. Holding A.G. v. Dell, Inc., 669 F.3d 632, 638 (5th Cir. 2012). The District Court maintains great discretion in certifying and managing a class action, Pederson v. La. State Univ., 213 F.3d 858, 866 (5th Cir. 2000), because the certification inquiry is an inherently fact-based endeavor best left to the trial courts inherent power to manage and control pending litigation, In re Monumental Life Ins. Co., 365 F.3d 408, 414 (5th Cir. 2004). An abuse of discretion occurs only when all reasonable persons would reject the view of the district court, Union Asset Mgmt., 669 F.3d at 638, or where the district court applied incorrect legal standards in reaching its decision, Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 624 (5th Cir. 1999).

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ARGUMENT I. The Pentz Appellants Arguments Are Unsupported, Fail to Address Their Own Claims, and Request Nothing More than Remand to the District Court. The Pentz Appellants brief is reflective of the flighty, irresponsible actions of habitual objectors, untethered to the realities of the cases they enter, with no responsibility for the welfare of the affected class.43 First, they argue that because Texas businesses are treated dissimilarly from some Louisiana businesses, the matter should be remanded for further explanation for the disparate treatment. Pentz Appellants Brief, at 10. Second, the Pentz Appellants question the District Courts evaluation of the Court Supervised Settlement as compared to the Gulf Coast Claims Facility (GCCF). Id. at 11-14.

43 See, e.g., In re Wal-Mart Wage and Hour Employment Practices Litig., MDL No.

1735, 2010 WL 786513 at *1 (D. Nev. 2010) (sanctioning Pentz and finding Pentz and associates have a documented history of filing notices of appeal from orders approving other class action settlements, and thereafter dismissing said appeals when they and their clients were compensated by the settling class or counsel for the settling class); In re: Initial Public Offering Securities Litigation, 721 F. Supp. 2d 210, 215 (S.D.N.Y. 2010) (sanctioning Pentz and finding Pentz and associates have engaged in a pattern or practice of objecting to class action settlements for the purpose of securing a settlement from class counsel); Taubenfeld v. AON Corp., 415 F.3d 597, 599 (7th Cir. 2005) (finding Pentz made unsupported conclusory assertions in class settlement objections); In re AOL Time Warner ERISA Litig., 2007 WL 4225486, at *3 (S.D.N.Y. 2007) (calling Pentzs arguments counterproductive and irrelevant or simply incorrect); In re Royal Ahold N.V. Sec. & ERISA Litig., 461 F. Supp. 2d 383, 386 (D. Md. 2006) (noting that Pentz is a professional objector who attached himself to a plaintiff and holding his objection not well reasoned and was not helpful); Barnes, 2006 U.S. Dist. LEXIS 71072 (same).
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Notably, the Pentz Appellants challenge neither the causation analysis nor the damages calculations. They make no claim that their compensation (or anyone elses) is inappropriate. Instead, Pentz relies on In re Katrina Canal Breaches Litig., 628 F.3d 185 (5th Cir. 2010), a limited fund settlement in which the proceeds were grossly insufficient, to argue that, as compared to other claimants, their compensation may be lower. Yet, in the context of an uncapped settlement, where no claimant is taking from another, the comparative value argument does not cut across Rule 23 pre-requisites or Rule 23(b)(3) standards. Simply put, the issue is simply whether that particular claim value is reasonable and fair. The Pentz Appellants never explain what more they should receive under the settlement (as weighed against the risks and delays of litigation). The Pentz Appellants contention that the class fares more poorly under the settlement than under the GCCF is wholly unsupported by the record.44 The District Court, with ample knowledge of the GCCFs operations and performance, found the opposite.45 At every level, the Settlement Program is demonstrably superior to the GCCF.

The Pentz Appellants also attempt to adopt the arguments BP raised in its appeal in No. 13-30315. Pentz Appellants Brief, at 14. Those issues are already fully addressed in the pending appeal, were never raised below to the District Court, and concern interpretation of a contract, not class certification issues. See, infra, discussion of Bacharach Appellants arguments. 45 Order and Reasons, at 51-55, 109-110 [R.E. 1.051-55, 1.109-110; Rec. Doc. 8138; 19896, 19954].
29

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To begin with, the GCCF was a unique and solitary mechanism, designed and operated by BP. To the extent claims remained unresolved, there was no independent enforcement mechanism to ensure that the GCCF would actually comply with its own stated policies or the requirements of OPA. Hence, a courtsupervised settlement generally, and the Court Supervised Settlement Program in particular, are fundamentally different from the unilateral, unregulated and inherently limited BP Gulf Coast Claims Facility. This Settlement is also quantitatively superior to the GCCF in at least the following ways: $ Provides the class members with more flexible Benchmark Periods from which to establish loss and, where necessary, causation.46 $ Replaces a vague baseline loss of income (LOI) determination with concrete and objective methods to establish base compensation loss, under a two-step process that accounts for both (i) losses, as compared to benchmark earnings periods, and (ii) the difference between 2010 profit and what the business would have earned but for the spill. $ Identifies specific fixed versus variable costs to be applied in the compensation calculations.

In particular, the GCCF generally used 2008-2009 as a benchmark. See generally Plaintiffs Exhibit B to Motion for Final Approval [Doc 7104-2; 9798]. Under the Settlement Program, by contrast, class members can generally go back to 2007. In addition, class members have the flexibility to use different sets of benchmark months to establish Causation versus the months they use to establish the amount of Base Compensation Loss sustained.
30

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$ Allows for causation presumptions based on industry and location, and, with respect to other class members, provides various alternative methods of establishing, by objective means, that the business or individual suffered a loss caused by the spill. $ Compensates class members for Coastal and Wetlands Property Damages, VoO Charter Compensation, Real Estate Sales Losses, and other damages which were not being compensated by GCCF.47 $ Includes RTP enhancements that are in virtually all cases equal to or greater than the multipliers under the GCCF stated methodology.48 $ Provides a multi-level internal appeals process with review by court-appointed panelists who are experienced mediators, attorneys and retired judges. $ Guarantees independence, transparency, Court supervision, consistent, objective and predictable treatment of similar claims, and no special deals. All of these points and many more form part of the district court record and are unaddressed by Pentz.49

Class Counsel had been informally advised that some property damages claims might have been recognized by the GCCF, but these claims were certainly not paid by the GCCF in any routine or systematic way. 48 In general, the GCCF claimed to apply a multiplier of two (i.e. an RTP of 1) to most claims. At some point, the GCCF announced that it would apply a multiplier of four (i.e. an RTP of 3) to shrimper, crabber and shrimp and crab processing claims. A multiplier of four (i.e. an RTP of 3) was generally applied to oyster harvesters, while at some point a Future Risk Multiple raging from 1 to 7 was to applied to oyster leaseholder income claims. See generally Plaintiffs Exhibit B to Motion for Final Approval [Rec. Doc. 7104-2; 9798]. Compare RTP Chart, Exhibit 15, [Rec. Doc. 6276-33; 4898] with Seafood Compensation Program, Exhibit 10, at 24, 30, 33, 34, 36, 38, 49, 61, 63 [Rec. Doc. 6276-22; 9798].
31

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The Settlement is also qualitatively superior to GCCF in providing for the extension of time periods for presentment and filing. Specifically, a claim under OPA must generally be both presented and filed within three years. 33 U.S.C. 2713 and 2717(f).50 While plaintiffs will undoubtedly have various arguments based upon tolling theories, dates of accrual, and/or the discovery rule, prudence would dictate that all OPA claims would have been both presented and filed by April 20, 2013. While the GCCF announced that it would accept claims up until August 23, 2013, there was no enforcement mechanism to ensure that the GCCF would do so, no assurances that the submission of a claim, either before or after April 20, 2013, would constitute presentment under OPA,51 nor any assurances that GCCF claimants not fully compensated as of April 20, 2013 would thereafter be permitted to file claims in court (or with the Oil Spill Liability Trust Fund) despite the threeyear statute of limitations.

See also Declaration of Jeffrey June, 31 [Rec. Doc. 7710-2; 14700] (The settlement provides substantially more compensation to commercial shrimpers than the GCCF offered, even after the GCCF increased its amounts.); Declaration of Robert Mosher, 21 [Rec. Doc. 7710-3; 14706] (The historical revenue model is a substantial improvement over the GCCF model.). 50 See also 33 U.S.C. 2717(h) (providing for three-year statute of limitations on claims for damages against the Oil Spill Liability Trust Fund). 51 While BP formally stipulated that presentment to the GCCF would constitute presentment to BP as the Responsible Party, (Order (Oct. 22, 2010) [Rec. Doc. 594; 1431]), BP had never formally stipulated or conceded that a claim submitted to the GCCF would, in fact, constitute Presentment under OPA.
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Indeed, there is little reason to believe that the tens of thousands of claims that remained unresolved after eighteen months in the GCCF (and/or were perhaps yet to be filed when the Transition Order was entered on March 2, 2012) would have been resolved in the GCCF prior to April 20, 2013 if ever: $ As far back as April of 2011, the GCCF stated that it had paid or was in the process of paying every single legitimate individual and business claim where the claimant can document economic loss due to the oil spill.52 In June of 2011, Mr. Feinberg said that the process was winding down as the GCCF had already processed 80% of the claims.53 He further indicated that all of the claims that he considered to be eligible would be resolved by October 2011.54 As of November of 2011, the GCCF began to assume that claims from the Florida peninsula and

Exhibit D to Motion for Final Approval, [Giardina, Are Stall Tactics Delaying BP Payments? WLOX.com (April 20, 2011)] [Rec. Doc. 7727-3; 14964]. 53 Exhibit D to Motion for Final Approval, [GCCF Claims Process Winding Down Disenfranchised Citizen (June 1, 2011) [Rec. Doc. 7727-3; 14964] (citing Blackden and Mason, BPs Oil Victim Fund Closes Some Offices as it Pays Out Just a Fifth of the $20bn Total, Telegraph (5/29/11) [Rec. Doc. 7727-3; 14962] (Feinberg told The Telegraph that he does not believe there will be many more fresh claims and has processed more than 80pc of the claims submitted); see also Mason, BP Not Meeting Gulf of Mexico Spill Obligations, US Report Claims Telegraph (June 2, 2011) [Rec. Doc. 7727-3; 14966] (Mr. Feinberg is in the process of scaling back operations, closing eight regional offices.)]. 54 Exhibit D to Motion for Final Approval, [Hammer, Claims Czar Kenneth Feinberg Says Pace of Payments Quickens Times-Picayune (June 20, 2011)] [Rec. Doc. 7727-3; 14966].
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Texas were not legitimate unless they were commercial fishing claims.55 $ The job was done at the time of the Transition.56

The Class Settlement allows Class Members to submit claims to the Court Supervised Settlement Program until April 22, 2014, or six months after finality, whichever is later.57 The Settlement further assures that submission of a claim to the Settlement Program will constitute presentment under OPA.58 Finally, the Settlement tolls the statute of limitations for class members until at least 90 days after the Settlement is terminated, should it be disapproved by the Court or terminated for any reason.59 Sometimes, one picture is worth a thousand words. The following summary chart, prepared by counsel for independent publication from the publicly available record, shows that at every level of compensation, Settlement recoveries are superior to the GCCF.

Exhibit D to Motion for Final Approval, [Hammer, Ken Feinberg Expands Oil Spill Claims Payments for Shrimpers, Crabbers Times-Picayune (Nov. 30, 2011)] [Rec. Doc. 7727-3; 14971]. 56 Exhibit D to Motion for Final Approval, [Shactman, Managing the BP Oil Spill Fund - No Small Task CNBC (4/19/12)] [Rec. Doc. 7727-3; 14972]. 57 SETTLEMENT AGREEMENT, 5.11.8 [Rec. Doc. 6276-1; 4056]. (The one exception to this is that all Seafood Program claims were to be submitted within 30 days of final approval in the District Court. Id. at 5.11.9.) In the event that the Class Settlement does not achieve final approval, the Settlement Program will continue to process and pay all claims submitted up to that point in time. Id. at 21.3. 58 Id. at 7.3.2; Stipulation [Rec. Doc 7130-1; 11210]. 59 SETTLEMENT AGREEMENT, 7.3.1.
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12 10 8 6 4 4 2 2 0 2 2 2 4 4 3.25 2 9.75 9.25 8.25 7 7 7 6.5 6 MaximumGCCFMultiplier EffectiveClassMultiplier 44

5.5 3.25 3.5 2 2 2

3.5 2.25 2 2

2.5 2.25 2 2.125 2 2 1.25 2

This is not a conflict; this is a major achievement for the entire class.60 II. The Coon and GO FISH Appellants Have No Standing. Each group of Appellants failed to satisfy the reasonable procedural standing requirements imposed by the District Court to ensure that only class members submitted objections. The Coon Appellants failed to include proof of residency, property ownership, or business interest. GO FISH does not have standing because it is not an affected party and because the source of its complaint is speculative and not yet ripe.

60 The BP Oil Spill Settlement and the Paradox of Public Litigation, Samuel Issacharoff

and Theodore Rave, http://ssrn.com/abstract=2278378.


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A.

The Coon Appellants Lack Standing For Failure to Meet the District Courts Filing Requirements.

The District Court ordered that any person or company that desired to object needed to provide: (a) a detailed statement of the Economic Class Members objection(s), as well as the specific reasons, if any, for each objection, including any evidence and legal authority the Class Member has to support each objection and any evidence the Class Member has in support of his/her/its objection(s); (b) the Economic Class Members name, address and telephone number; (c) written proof that the individual or entity is in fact an Economic Loss and Property Damage Class Member, such as proof of residency, ownership of property and the location thereof, and/or business operation and the location thereof; and (d) any other supporting papers, materials or briefs the Economic Class Member wishes the Court to consider when reviewing the objection. Any Class Member who fails to comply with these provisions shall waive and forfeit any and all rights to object to the Proposed Settlement, shall be forever foreclosed from making any objection to it, and shall be bound by all the terms of the Proposed Settlement and by all proceedings, orders and judgments in this matter.61 The Coon Appellants produced no proof of residency, ownership of property, or ownership of any business for their objectors. Instead, Mr. Coon filed an objection, purportedly on behalf of approximately 10,000 class members, but with only a list of people and businesses, some with addresses, others with phone

61

Preliminary Approval Order, 38 [Rec. Doc. 6418; 6246].


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numbers, but none with proof of residency, proof of business ownership, or proof of property ownership. [Rec. Doc. 7224; 11716.] The Coon Appellants must have realized these deficiencies because they attempted to supplement the record the day before the Fairness Hearing. [Rec. Doc. 7863; 15634.] However, the District Court denied their late filing and struck whatever they were trying to supplement from the record. [Rec. Doc. 7870; 15645.] That order was not challenged on appeal. Failure to follow the District Court-imposed filing requirements results in a lack of standing to pursue this Appeal. Feder v. Electronic Data Sys. Corp., 248 Fed.Appx. 579, 581 (5th Cir. 2007) (unpublished) (finding a lack of standing where support of class membership was not provided because [a]llowing someone to object to a settlement in a class action based on this sort of weak, unsubstantiated evidence would inject a great deal of unjustified uncertainty into the settlement process). B. GO FISH Lacks Standing for Both Substantive and Procedural Reasons. The GO FISH Appellants lack of standing has been affirmatively found by the District Court. The Magistrate denied GO FISHs motion to intervene for lack of standing, [Rec. Doc. 7480; 14335], and the District Court affirmed. [Rec. Doc.

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7747; 15456].62 See also Silverman v. Motorola Solutions, Inc., ___ F.Appx ___, 2013 WL 4082893, at *1 (7th Cir. 8/14/13) (a class action objector must have an interest in the outcome). GO FISH implicitly concedes that the organization has no standing.63 Two weeks after the District Court affirmed the Magistrates Order, GO FISH attempted to cure its standing defect by filing a Notice of Joinder into the organizations objection. [Rec. Doc. 7867; 15638.] These two new individuals, Thien Nguyen and Donald Dardar: (1) failed to make the requisite showing of class membership; and (2) failed to properly file a timely objection in the first instance.64 The GO FISH Appellants standing also suffers from a second fatal flaw. GO FISH does not challenge the settlement recovery under the Seafood Program. Instead, it appeals prematurely to contest the manner in which the second round distribution of benefits under the Seafood program might be conducted. But that determination necessarily awaits completion of the first round of distribution and


62 63

See also Final Approval Order, at 77 [R.E. 1.077; Rec. Doc. 8138; 19922]. See, e.g., GO FISH Appellants Brief, at 46 ([Thien Nguyen] may be the only

[Seafood Class Member] before this Court who has not released his claims individually). 64 Mr. Nguyens notice of joinder in GO FISHs objection was filed on November 7, 2012, [Rec. Doc. 7867; 15638], two months after the September 7, 2012 deadline to file objections, [Rec. Doc. 7225; 11963]. Because the deadline had passed, Mr. Nguyen should have moved for leave. Failure to do so nullified his purported objection and joinder ab initio. U.S. ex rel. Willard v. Humana Health Plan of Tex., Inc., 336 F.3d 375, 387 (5th Cir. 2003) (A party who neglects to ask the district court for leave to amend cannot expect to receive such a dispensation from the court of appeals). Federal Rules of Civil Procedure Rule 15(a) does not apply because leave was never sought for the joinder. U.S. ex rel. Mathews v. HealthSouth Corp., 332 F.3d 293, 296 (5th Cir. 2003) (failing to request leave from the court when leave is required makes a pleading more than technically deficient. The failure to obtain leave results in an amended complaint having no legal effect).
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an order from the District Court. Neither has occurred and, accordingly, there is no order of the District Court from which GO FISH seeks relief. Even were this Court to determine that GO FISH does have standing, its current appeal should be dismissed as premature. (And even if it were considered now, it fails on the facts already established.) In the District Court, GO FISH conceded that 2.3 billion dollars . . . should be enough to provide all fishermen both duration and parity65 and the alleged problems can be solved within the confines of the Settlements terms by determining a fair Round Two distribution from the Seafood Fund.66 Therefore, because the Settlement was amended to allow the Court appointed neutral to change the allocation formulas to attain fairness on the second distribution of SCP funds,67 GO FISH did not object to the Settlement Agreement; rather, it raised concerns that the Court-Appointed Neutral might make a Round Two allocation different from what some but not other GO FISH members might want or desire. Indeed, GO FISH has acknowledged the non-ripeness of its appeal to this Court: GO FISH believes that, at least with respect to the SCP claimants, the implementation of the Settlement is sufficiently uncertain that review may be

65 66

Go Fish Objection, No. 10-7777, at 3 [Rec. Doc. No. 226; 10715]. Id. at 2-3. 67 Id. at 3.
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premature.68 GO FISH Appellants Brief, at 54. See also id. (GO FISH would prefer this Court stay its decision regarding the fairness of the Settlement and the reasonableness of the class as certified.); id. (Because the Round Two formulae are not yet determined, the substantive inequities noted in this Brief may actually change.). GO FISHs tentative arguments are misguided in two critical ways. First, the settlement frameworks were designed by the Court-Appointed Neutral, from the bottom up, to provide full compensation to each Class Member participating in the Seafood Compensation Program.69 That same process will be repeated in the second round distributions, subject to formal notice and an opportunity for each participant or representative to provide input, prior to final approval by the Court.70 Second, GO FISHs suggestion that the Seafood Compensation Fund participants should have been (or, alternatively, should now be) divided into multiple formal sub-classes disregards the fact that shrimpers also fish for crab; crabbers also harvest oysters; IFQ holders own oyster leases; and they are

See also GO FISH Appellants Brief, at 53 (GO FISH believes that the Settlement can and should be saved . . . .) 69 See Second Perry Declaration, at 2 [Rec. Doc. 7726-7; 14852]; Second Balhoff Declaration, at 2 [R.E. 8.002; Rec. Doc. 7726-2; 14757]. 70 See Second Perry Declaration, at 3 [Rec. Doc. 7726-7; 14852]; Second Balhoff Declaration, at 3 [R.E. 8.003; Rec. Doc. 7726-2; 14758].
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represented by many of the same attorneys.71 Courts have recognized, in this regard, that formal subclasses are only one of several different methods to provide the structural assurances that Amchem indicates are sometimes required to address intra-class allocation of a negotiated fund. See, e.g., Juris v. Inamed Corp., 685 F.3d 1294, 1323-24 (11th Cir. 2012), cert. denied, 133 S.Ct. 940 (2013) (commenting that Rule 23(a)(4) calls for some type of adequate structural protection, which would include, but may not necessarily require, formally designated subclasses, and noting that both commentators and courts have rejected the notion that Amchem and Ortiz impose a per se requirement of formally designated subclasses) (emphasis in original); Sullivan v. DB Investments, Inc., 667 F.3d 273, 326 (3d Cir. 2011), cert. denied, 132 S. Ct. 1876 (2012) (observing that sub-classing can result in Balkanization and deferring to the district court as to whether formal sub-classes are required); Petrovic v. Amoco Oil Co., 200 F.3d

This is evident from the declarations submitted by GO FISH itself to the District Court: see, e.g., Waltzer Declaration, No. 10-7777, at 2-3 [Rec. Doc. 226-1; 10739] (Because I had so many clients from many fisheries, I sat in almost all of the different group meetings); Phillips Declaration, No. 10-7777, at 29 [Rec. Doc. 226-1; 10766] (I shrimp, crab and harvest oysters . . . . I am also an oyster leaseholder); Dardar Declaration, No. 10-7777, at 33 [Rec. Doc. 226-1; 10770] (I am a shrimper, crabber, and an oyster harvester); Encalade Declaration, No. 107777, at 22-23 [Rec. Doc. 226-1; 10759] (personally delivers shrimp, oysters and fish; describes how Go Fish, as an organization, represents a broad range of commercial fishing interests); Nguyen Declaration, No. 10-7777, at 9 [Rec. Doc. 226-1; 10746] (both crabs and shrimps); Guidry Declaration, No. 10-7777, at 5-7 [Rec. Doc. 226-1; 10742] (while currently a shrimper, notes that he was previously a fin fisherman, and appears to be advocating for charter boat operators and processors, whose claims do not even fall within the Seafood Program).
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1140, 1146 (8th Cir. 1999) (formal subdivision of the class is not required simply because some class members stand to receive more than others). Mr. Perry, as the Court-appointed neutral, looked at all of the available information; reviewed all of the available evidence; listened to the viewpoints of all of the various constituencies (including GO FISH and its members); and made his own independent and impartial determination as to a fair and appropriate allocation.72 (Which, unlike In re Katrina,73 was made on the front end and provided to all potential Seafood Program participants as part of the Class Notice process.) The utilization of a court-appointed neutral, and the surrounding

structural assurances, were far more effective in reaching a fair and reasonable allocation of the Seafood Fund than formal sub-classing would have been.74

72

See Perry Declaration [R.E. 6.001; Rec. Doc. 7110-5; 10294]; Balhoff Declaration [Rec. Doc. 7110-2; 10217]; Herman Declaration, 11 [Rec. Doc. 7104-5; 9911]; Rice Declaration (Seafood Program) [Rec. Doc. 7104-6; 9925]. 73 See Katrina Canal Breaches Litig., 628 F.3d at 197 (notice of class settlement must provide reasonable information regarding the benefits to which they are entitled under the terms of the settlement). 74 See generally Coffee Declaration 29-34 [Rec. Doc. 7110-3; 10244]; Coffee Supplemental Declaration 19 [Rec. Doc. 7726-4; 14776]; Klonoff Declaration 33-37 [Rec. Doc. 7104-3; 9835]; Klonoff Supplemental Declaration 45-46 [Rec. Doc. 7727-4; 14995]; Issacharoff Declaration 15-17 [Rec. Doc. 7104-4; 9900]; Miller Declaration 32-36 [Rec. Doc. 7114-16; 10740]; Miller Supplemental Declaration 18-20 [7731-6; 15291]; Herman Declaration, 11 [Rec. Doc. 7104-5; 9911]; Rice Declaration (Seafood Program) [Rec. Doc. 7104-6; 9925]. These declarations and the ample overall compensation provided by the $2.3 Billion Fund demonstrate that the whole is greater than the sum of its parts, and that dividing the Seafood Program participants against themselves would most likely have resulted in less compensation to each and all. At the same time, the would-be objectors complaint is hypothetical in light of the ample overall compensation and the absence of any beneficiary complaining about his (or anyone elses) compensation.
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Paradoxically, GO FISH purports to speak for all of the affected fishing communities at the same time that it assails the process that allowed (and continues to allow) all of them direct input to achieve a fair and impartial allocation. III. The Coon Appellants Arguments Demonstrate a Fundamental Misunderstanding of the Common Objective Guiding Principles of the Settlement. The Coon Appellants raise three general arguments: (i) the individual damages of the class members defeat commonality under Rule 23(a) as well as the predominance and superiority requirements under Rule 23(b)(3); (ii) Class Counsel are unqualified to manage the Settlement Class and may have conflicts;75 and (iii) the Class Notice was unfair because it did not include an opt-out form, and claimant counsel were not permitted to sign opt-outs on behalf of their clients.76 A. The Common Source Class Members Damages Support Commonality, Predominance, and the Superiority of the Class Action to Resolve their Claims.

This economic and property damages class action raises none of the issues which have troubled other Rule 23(b)(3) litigation and settlement classes in the

The Coon Appellants argument concerning alleged fiduciary violations regarding attorney fees is addressed, infra, in the section addressing the Palmer Appellants Brief. 76 Attorney Coon could face a significant adequacy of counsel issue with his own clients, as he has filed thousands of claims in the Settlement Program. Objecting to the settlement on behalf of some clients, while filing claims on behalf of others, would have created a significant problem for the latter group had the Settlement been rejected by the District Court. While, per Section 21.3 of the Settlement Agreement, all claims submitted to date will continue to be processed and paid under an Individual Release, appealing the settlement approval on behalf of some clients may be to the detriment of any clients who have yet to submit their Settlement Program claims.
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past. Although this Court does not have to wrestle with the issue of how the class members claims could be tried to conclusion (as the proposal is that there be no trial), this action does not present any of the issues which have prevented the certification of mass tort litigation classes. The purely economic claims at issue here arise from a single-source event, without the problems associated with longterm or varying periods of exposure or accrual. There are no statute of limitations issues, comparative fault issues, learned intermediary defenses, individual reliance issues, multi-state choice-of-law issues, or Reexamination Clause concerns. Unlike mass tort settlements which have thrown plaintiffs together in a contest for limited funds, this class was negotiated at arms length on a claim-byclaim basis, and sets forth specific, detailed and objective frameworks for uncapped recovery by the plaintiffs. There are no unknown future claimant issues, nor any yet-to-be-determined pay-outs left to a special masters discretion. Even with respect to the $2.3 billion Seafood Fund, a Court-appointed neutral established specific, detailed and objective frameworks for distribution in advance, and at the same time provided a procedural safeguard against potential intra-class conflict with respect to allocation.

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1.

Commonality

The Coon Appellants argument against commonality is limited to only one counter-intuitive complaint: Evidence of a lack of commonality among the various claims in this case was never more evident than in the implementation of the incredibly detailed Settlement Agreement that contained numerous interpretation issues. Coon Appellants Brief, at 43. The Coon Appellants do not identify a single specific implementation issue. Yet complexity in the interpretation of a Settlement program does not destroy commonality under Rule 23. Rather, commonality is met when there is at least one issue, the resolution of which will affect all or a significant number of the putative class members. Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 625 (5th Cir. 1999) (quotations and citations omitted). Under the Supreme

Courts recent decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), even a single common question of sufficient import to all claims will suffice: claims must depend upon a common contention . . . of such a nature that it is capable of class wide resolutionwhich means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. Id. at 2551. Even a single common question will do. Id. at 2556.

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In this case, the common and strict liability imposed upon BP for the benefit of all class members under OPA unites each and every class member with a question whose answer is identical with respect to each and every member of the Settlement Class. The class is further united as to numerous factual issues

regarding the underlying causes of the explosion and spill, with respect to the assigned and reserved third-party claims. What happened (and did not happen) during the design and planning process, at the well, and on the rig? Who is responsible, and what is the level of culpability?77 The answers to these common factual questions are the same for each and every member of the class. Moreover, the common and class wide legal interpretation of causation under OPA is a common question of law affecting the clams of the entire class. The District Courts final approval Order and Reasons comprehensively lists the significant common factual and legal questions that unite the Class; none of which Appellants challenge.78

The BP, joint, and Class Counsel experts agreed on the predominance of common questions arising from this single-instance disaster, both generally and at the granular level. For example: (i) Should BP have used a linerback, rather than a long string casing design? (ii) Whether BP properly converted the float collar? (iii) Whether BP should have used more centralizers? (iv) Whether BP should have run a full bottoms-up calculation? (v) Whether BP should have run a cement bond log? (vi) Whether Halliburtons cement slurry was unstable? (vii) Whether the BOP was properly maintained? (viii) Whether Transocean should have activated the EDS? See Coffee Declaration [R.E. 3.001; Rec. Doc. 7110-3; 10228]; Klonoff Declaration [Rec. Doc. 7104-3; 9824]; Miller Supplemental Declaration 15-17 [Rec. Doc. 7731-6; 15289]. 78 See R.E. 1.038-44; Rec. Doc. 8138; 19883-19889.
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The questions of BPs gross negligence, willful misconduct and/or violation of a Federal Regulation under OPA are also common questions whose truth or falsity have application to the claims of each and all class members, under 33 U.S.C. 2704(c)(1). The fact that BP may have, at some point, waived the potential class-wide limitation under 2704(a) does not extinguish the legal commonality shared by all Class Members, nor the common factual body of evidence teeming with common liability questions. See Supplemental Coffee Declaration, 2-11 [Rec. Doc. 7726-4; 14762].79 Further, the application of the third-party fault defense under 33 U.S.C. 2703(a)(3) presents a common legal issue (with numerous attendant factual issues) directly affecting the claims of each and all class members. These common legal and factual issues have never been conceded or waived by the BP Defendants. Nor have the BP Defendants agreed (outside of the Settlement) to a legal interpretation of OPAs causation requirements under 33 U.S.C. 2702.

The

See also Coffee Supplemental Declaration, 3 [Rec. Doc. 7726-4; 14763] (citing In re Nassau County Strip Search Cases, 461 F.3d 219, 227-228 (2d Cir. 2006) (an issue is common to the class when it is susceptible to generalized, class-wide proof. That class-wide proof comes in the form of a simple concession rather than contested evidence ... does nothing to alter the fundamental cohesion of the proposed class, which is the central concern of the predominance requirement) (emphasis supplied); Seijas v. Republic of Argentina, 606 F.3d 53, 57 (2d Cir. 2010) (Even resolved questions of liability implicate whether a putative class shares the common nucleus of facts)).
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question of the proper legal standard of causation whether, for example, a traditional proximate cause requirement should be read into the statute80 presents a common legal issue the resolution of which is shared by each and all members of the Settlement Class, as would the common legal question of whether BP could invoke a superseding or intervening cause defense, despite its Responsible Party status. 2. Common Issues Predominate over Individual Issues.

The Coon Appellants predominance argument is vague, complaining not so much that there is no predominance as that there was no study explaining how the compensation frameworks have been deployed in accordance with the various claims of relief stated in the Class Complaint . . . . Coon Appellants Brief, at 47. Because claims are not paid unless they demonstrate compliance with the Settlements negotiated compensation criteria, each claim is susceptible to multiple calculations and to appropriate documentation. operation for over 14 months. The Settlement has been in

Presumably, if there were some significant

disconnect between a legal claim and settlement formula that affects any of the Coon Appellants, they would have directed this Courts attention to it.

See, e.g., Order, at 33 [Rec. Doc. 3830; 2127] (rejecting the application of a traditional proximate cause standard under OPA).
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When, as in this case, class certification is sought for settlement purposes only, the Court need not inquire whether the case, if tried, would present intractable management problems. Amchem Products v. Windsor, 521 U.S. 591, 620 (1997); Sullivan, 667 F.3d at 297.81 The focus of the predominance inquiry is on whether the defendants conduct was common as to all of the class members, and whether all of the class members were harmed by the defendants conduct. Sullivan, 667 F.3d at 298; In re Warfarin Sodium Antitrust Litigation, 391 F.3d 516, 522 (3d Cir. 2004).82 Contrary to Appellants contention, these issues were briefed exhaustively in the District Court, and supported by voluminous expert declarations submitted by both BP and Class Counsel, addressing both class certification and underlying economic issues.83 In this case, the BP Defendants conduct did not vary within the class. The single unfolding disaster in which BPs conduct was implicated was the same

See also, e.g., Butler v. Sears, Roebuck & Co., ___ F.3d ___, 2013 WL 4478200, at *5 (7th Cir. Aug. 22, 2013) (Posner, J.) (If the issues of liability are genuinely common issues, and the damages of individual class members can be readily determined in settlement negotiations the fact that damages are not identical across all class members should not preclude class certification). 82 See also, e.g., In re: Foodservice, Inc., Pricing Litig., No. 12-1311, ___ F.3d ___ (2d Cir. Aug. 30, 2013) (affirming class certification by, inter alia, finding that the alleged misrepresentations of fraud in a RICO case were common to the 75,000 class members and predominated over any individualized issues of causation). 83 Order and Reasons, Exhibit A, at 1-2 [R.E. 1.117-118; Rec. Doc. 8138; 19962] (listing the declarations).
81

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sequence of events, and gives rise to the same questions of law and fact, whether the class member is a fisherman, a tourist guide, or a retail clerk. There are no statute of limitations nor comparative fault issues. There are no personal injury exposure or accrual issues, questions of individual reliance, or learned intermediary defenses. There are neither multi-state choice-of-law issues nor Seventh Amendment concerns.84 Moreover, commonality is confirmed by the ongoing common issue Limitation and Liability Trial. Indeed, the eight-week Phase One Trial conducted earlier this year,85 (including the 1,000-plus pages of proposed findings and other post-trial briefing), is a testament to the existence of numerous common factual and legal questions whose answers will be the same for each and every member of the class. Neither the number nor the complexity of the Settlement Frameworks negates the predominance of common questions. All that remains is the

calculation of the settlement criteria for individual class members. Where the circumstances of each particular class member vary but retain a common core of factual or legal issues with the rest of the class, commonality exists within the meaning of Wal-Mart. Evon v. Law Offices of Sidney Mickell, 688 F.3d 1015,

Contrast with e.g., Castano v. Am. Tobacco Co., 84 F.3d 734 (5th Cir. 1996). See Coffee Supplemental Declaration 11 [Rec. Doc. 7726-4; 14772] (citing Amended Trial Plan [Rec. Doc. 6592]).
85 84

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1029 (9th Cir. 2012); see also Young v. Nationwide Mutual Insurance Co., 693 F.3d 532 (6th Cir. 2012) (affirming for trial purposes a Rule 23(b)(3) class for a series of statewide subclasses whose membership would be determined based on the application of objective, albeit complex, criteria); In re Visa CheckMasterMoney Antitrust Litigation, 280 F.3d 124, 145 (2d Cir. 2001); Bateman v. Am. Multi-Cinema, Inc., 623 F.3d 708, 722 (9th Cir. 2010). The need for complex formulas to determine compensation is best accomplished through the class action procedure, where consistent treatment of like claims and ongoing judicial oversight combine to ensure against random, arbitrary, or dissimilar treatment of similar claims, thereby allowing claims to be grouped objectively and ensuring fair treatment to all. See, e.g., In re Holocaust Victim Assets Litigation, No.96-4849, 2000 WL 33241660, 2000 U.S. Dist. LEXIS 20817 (Nov. 22, 2000), affd, 413 F.3d 183 (2d Cir. 2005) (approving complex plan of allocation of settlement funds, whose development required over one year of extensive historical and factual research, reflecting the myriad complexities of allocating a $1.25 billion fund among five categories of victims of the Nazi regime). Similarly, the Third Circuit approved a complex method of distributing class action settlement funds, noting: This method for distributing the fund, in which individuals and entities may have claims that span
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several of the allocation groups, did not produce a divergence of interest among the class members. Rather, regardless of the type of insurance at issue and the time period during which it was purchased, all of the class members shared a unified interest in establishing the . . . Defendants liability for engaging in anticompetitive conduct which increased the cost of premiums for all policyholders. In re Insurance Brokerage Antitrust Litigation, 579 F.3d 241, 272 (3d Cir. 2009). The class action structure is best designed for circumstances of such complexity: The Plan of Allocation was carefully devised to ensure a fair distribution of the settlement fund to the various types of claimants and was allocated in such a way that policyholders who likely incurred the most damages are entitled to a larger proportion of the recovery than those whose injuries were less severe. Id. at 273. This Court and others have repeatedly rejected generic complexity arguments in the class certification and class settlement approval context. For example, in the settlement affirmed in Union Asset Management Holding A.G. v. Dell, Inc., 669 F.3d 632 (5th Cir. 2012), the objection that the settlement would essentially require a mini-trial to determine whether each potential class member was damaged was rejected. See also Allapattah Services v. Exxon Corp., 333 F.3d 1248, 1261 (11th Cir. 2003) ([N]umerous courts have recognized that the presence of individualized damages issues does not prevent a finding that the common issues in the case predominate.); Petrovic, 200 F.3d at 1146 ([A]
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settlement which contains class members who may recover different amounts is acceptable). As Judge Posner recently observed, addressing Comcast Corp. v. Behrend, 133 S.Ct. 1426 (2013), the determination of liability on a claim-wide basis, followed by determination of the damages of individual class members, or homogenous groups of class members, is permitted by Rule 23(c)(4) and will often be the sensible way to proceed. Butler v. Sears, Roebuck & Co., ___ F.3d ___, 2013 WL 4478200, at *4 (7th Cir. Aug. 22, 2013). An issue central to the validity of each one of the Claims in a class action, if it can be resolved in one stroke, can justify class treatment. Id. at *4 (quoting Wal-Mart v. Dukes, 131 S.Ct. at 2551). As Butler recognizes, damages are usually not identical across the class, and may be determined in individual hearings after common issues are decided, or resolved by settlement negotiations as was done here. Id. at *5. 3. The Class Action is Superior to Other Available Methods for the Comprehensive Determination and Resolution of Claims in This Litigation.

The Coon Appellants two-page superiority argument is also limited to only one issue the manageability of the Settlement Program as unwieldy. Coon Appellants Brief, at 49-50. problem or problems.
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In fact, the Settlement Program is operating as intended: publically and transparently. Its internal review mechanisms have been utilized by both BP and Class Members to address issues at the policy and individual claims levels. The superiority of the class action mechanism compared to other available procedures to resolve claims arising from one of the largest man-made environmental disasters in American history is practically self-evident. Empirically, as discussed with regard to the Pentz objection, the class settlement's Court-Supervised Settlement Program has bested the prior GCCF effort in every measurable dimension. By structuring the settlement as a class settlement, as both sides agreed to do early on, the plaintiffs were able to negotiate additional levels of compensation and other individual and class-wide benefits that could not have been achieved on a piecemeal basis, in exchange for the certainty of a comprehensive class-wide release to BP. In addition, the class action procedure best promotes judicial economy, providing for the expedited resolution of literally hundreds of thousands of claims. The class settlement structure, in this regard, establishes definitive deadlines, stipulations and other requirements, which significantly advance the litigation towards conclusion. The class, moreover, is afforded the benefit of formal court

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supervision, approval, class representation, and the other safeguards and protections provided by Rule 23. As Judge Scirica pointed out in his concurring opinion in Sullivan, there have been recent, successful, mass tort (personal injury) settlements that did not utilize the formal class mechanism. Sullivan, 667 F.3d at 334 (Scirica, J., concurring) (describing the Guidant and Vioxx settlements). Nonetheless, as he points out, outside of Rule 23, there is no prescribed independent review of the structural and substantive fairness of a settlement, and less control over allocation of settlement funds among class members, potential conflicts of interest, and the evaluation of attorneys fees. Id. In class actions, the class members do know what their rights are, the scope and nature of the courts authority is clear, and Due Process protections ensure fairness to claimants. Sullivan, 667 F.3d at 334-35. The BP settlement, as a class settlement, achieves the aims of equitable aggregate litigation, as formulated by the American Law Institute: Aggregation should further the pursuit of justice under law by advancing the following goals: (a) enforcing substantive rights and responsibilities; (b) promoting the efficient use of litigation resources; (c) facilitating binding resolutions of civil disputes; and (d) facilitating accurate and just resolutions of civil disputes by trial and settlement. Principles of the Law of Aggregate Litigation, 1.03 (2010).
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In some mass torts, involving injuries of long latency or uncertain causation, with claims scattered across the country, arising under many states laws, the nonclass aggregate model has been determined to be compatible with these principles. See Klonoff Declaration, 54-58 [Rec. Doc. 7104-3; 9846]. In this litigation, however, the Rule 23(b)(3) settlement class structure corrects the perceived inadequacies and deficiencies of the GCCF, fulfills BPs ongoing obligations as an OPA responsible party, fully vests the District Court with the ongoing supervisory powers to ensure a transparent and effective application of uniform and objective standards, and satisfies the settling defendants legitimate interests in finality, while at the same time delivering to plaintiffs redress of their claimed injuries without the burden of litigating individually. Sullivan, 667 F.3d at 339.86 B. Class Counsel Were and Are Qualified to Manage the Settlement Class Without Conflicts.

Although not raised below, the Coon Appellants now suggest that the District Court failed to scrutinize Class Counsels qualifications.87 In fact, the District Court found that Class Counsel have class action experience and have

See generally Klonoff Declaration, 50-61 [Rec. Doc. 7104-3; 9844]; Coffee Declaration, 57-62 [Rec. Doc. 7104-3; 10259]; Supplemental Klonoff Declaration, 41-43, 47 [Rec. Doc. 7727-4; 14993]; Supplemental Coffee Declaration, 2-11 [Rec. Doc. 7726-4; 14762]; Miller Declaration 29-42 [R.E. 5.008; Rec. Doc. 7114-16; 10739]. 87 See, infra, section addressing the Bacharach Appellants Brief, for the argument that appellants are estopped from raising an argument for the first time on appeal.
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taken seriously its fiduciary obligations in the best interests of all claimants, both private and governmental. After a rigorous, public vetting process before their initial appointment in 2010,88 the PSC has managed one of the largest cases in the history of the United States. Over 90 million documents were exchanged, more than 130,000 claims have been filed, over 390 depositions were taken, a Phase One Trial has been concluded, and countless motions have been heard.89 Over 11,000 filings have been made in the district court docket with tens of thousands more in three dummy dockets created to handle the claim filings in the Limitation Action and the objections.90 As addressed in detail by Professor Coffee, Class Counsel were able to utilize the broad expertise possessed by the highly experienced, all star members of the PSC.91 The inescapable fact is that the class is reaping the rewards of the Settlement Program, while the objections are limited to a couple of professional objectors, a

See Pre-Trial Order No. 1, 17 (8/10/10) [Rec. Doc. 2; 1089]; Pre-Trial Order No. 6 (8/27/10) [Rec. Doc. 110; 1148]; Pre-Trial Order No. 8 (10/8/10) [Rec. Doc. 506; 1296]. The District Court has since re-appointed them twice. Pre-Trial Order No. 46 (10/5/11) [Rec. Doc. 4226; 2512]; Pre-Trial Order No. 53 (9/10/12) [Rec. Doc. 7350; 13868]. 89 Order and Reasons, at 2 [R.E. 1.002; Rec. Doc. 8138; 19847]. 90 The District Court created Docket Nos. 10-8888 and 10-9999 to receive the more than 130,000 claims in the Limitation Action, and docket No. 10-7777 to receive objections to the Settlement. 91 Coffee Supplemental Declaration 27(b) [Rec. Doc. 7726-4; 14780]; see generally Coffee Supplemental Declaration 28-41 [Rec. Doc. 7726-4; 14781]; see also, e.g., Herman Declaration, 3-4, 6, 8 [Rec. Doc. 7104-5; 9908]; Rice Declaration, 2 and Ex. A [Rec. Doc. 7104-6; 9914].
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nonprofit group without any authority to speak to the recovery of its putative members, and one disaffected lawyer who was unwilling or unable to comply with the procedural requirements of the court below. C. Notice and Opt-Out Procedures Satisfied Rule 23(e) and Contemporary Best Practices.

The Coon Appellants argue that the Settlement Notice was inadequate because pre-printed opt-out forms were not provided and counsel were precluded from signing opt-outs on behalf of their clients. However, the Notice was one of the most comprehensive notices in the history of class action litigation, involving every manner of media and communication available. Opt-outs were accepted in every shape, size, and language so long as the name was identified and the intent expressed. For a lawyer to quibble about not being provided with a ready-made form hardly qualifies as an error, much less a fatal one. 1. The Settlement Notice.

The notice protocol submitted jointly by the parties, approved by the Court, and thereafter fully implemented, complied with all requirements pertaining to both the manner of distribution and the contents of class notice. Individual notice was mailed to every plaintiff who filed any lawsuit consolidated into the MDL or a short-form joinder into the B1 Master Complaint, as well as GCCF claimants, and all available lists of potential class members. To ensure that no individuals were
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unintentionally omitted, all addresses were checked against the National Change of Address Database. To the extent that records indicated that potential class

members were represented by counsel, individual notice was also mailed to their attorneys. Further, the parties conducted a massive, nationwide multi-media effort that included television, radio, internet, newspaper and magazine advertising and publication. As of July 31, 2012, a total of 365,250 individual notices had been mailed, and 56,136 individual notices transmitted via e-mail; it was further

estimated that 95% of the adults in the Gulf Coast were exposed to class notice materials on average 10.3 times, and 83% of U.S. adults were exposed on average 4 times each.92 In addition to the formal notice program, Class Counsel conducted nine free full-day seminars to almost 2,000 attorneys and accountants across the Gulf Coast Area to explain the Settlement, and established a physical office in New Orleans with a toll-free number and e-mail system that has dialed provided additional information and assistance to class members since the Settlement Program commenced.

92

See Declaration of Cameron R. Azari, 9, 10, 77 [Rec. Doc. 7110-1; 9997].

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2.

Notice Does Not Include The Obligation to Create an Opt Out Form.

Attorney Coon does not complain that his clients did not receive or understand the notice sent to them; indeed, Mr. Coon has filed thousands of claims on behalf of his clients with the Settlement Program.93 Instead, the objection is that there was no opt-out form attached to the notice. Neither the Federal Judicial Center nor the Manual for Complex Litigation recommends providing an opt-out form. See fjc.gov, Class Action Notices Page, THE MANUAL FOR COMPLEX LITIGATION, FOURTH (Federal Judicial Center 2004). Nor does the Supreme Courts decision in Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985), which merely requires at least an opportunity to opt out of the class. Id. at 810-11. The other case cited, Wortman v. Sun Oil Co., 755 P.2d 488 (Kan. 1987), pertains to the notice required for out-of-state class members for a final Judgment entered by the court long after a class had been certified. Id. at 492. In fact, the Wortman Court specifically noted that opt-out forms were not provided to class members. Id. at 490.

93

Order and Reasons, at 64 [R.E. 1.064; Rec. Doc. 8138; 19909].

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3.

Due Process is protected by having Claimants Themselves sign the opt-outs.

Of note, Attorney Coon failed to submit any opt-out requests executed by his purported clients. He argues instead that his failure to follow the clear opt-out instructions provided in the Class Notice should be ignored because the District Court erred as a matter of law in requiring that only the Claimant himself or herself (not counsel) sign the opt-out request. There is no claim that any of Attorney Coons clients were unable to sign an opt-out request, and there is no citation to any law or authority to support the notion that such requirement is a violation of Rule 23 or Due Process that could upend a settlement. To the contrary: courts may, and do, reject such efforts with class members own rights under Rule 23. See, e.g., Hanlon v. Chrysler Corp., 150 F.3d 1011, 1024 (9th Cir. 1998) (rejecting efforts to opt out class members en masse, as inconsistent with each class members right to make his or her own opt out decision).94 While it may be reasonable for some courts to allow attorneys to sign opt-out forms on behalf of their clients, there can be nothing objectionable about a District Court adding a safeguard to ensure proper communication between attorney and client, in order to protect the clients right to make the individual

Mr. Coon seems to admit, in this regard, that he purported to opt out (and object to) the Class Settlement on behalf of clients with whom he never personally consulted. See Coon Appellants Brief, at 30, 33-34. In addition to Rule 23 concerns, this arguably raises issues under Rules of Professional Conduct 1.2(a) and/or 1.4.
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decision to participate in the settlement, object, or opt out. In re Diet Drugs Prods. Liab. Litig., 282 F.3d 220, 241 (3d Cir. 2002) (it was clearly within the district courts discretion to turn away attempts by lawyers to opt out en masse). IV. The Palmer Appellants Arguments Concerning Real Property Damage Claims, Cy Pres, and Attorneys Fees are Fundamentally Flawed. The Palmer Appellants raise three arguments distinct from those raised by other Appellants.95 They contest the adequacy of representation for the Coastal Real Property claims, the purported use of cy pres, and attorneys fees. Quite candidly, these are trivial objections, unrelated to any real grievance by anyone represented by Palmer or anyone else, and interposed solely to further an unfortunate practice of professional objections seeking a pay-off to go away.96 No

The Palmer Appellants commonality, predominance, and superiority arguments were addressed supra in the Coon Appellants section. The Palmer Appellants arguments regarding the GCCF are addressed supra in the Pentz Appellants section. 96 See, e.g., Palmer Transcript and Orders [Rec. Doc. 7727-11; 15039] (Arthur v. Sallie Mae, No. 10-cv-198 (W.D. Wash. 2012) (finding that Mr. Palmer made misrepresentations to the Court, including untrue statements in his declaration for attorney's fees, and false certification in a pro have vice application that he had not been the subject of formal discipline by a state bar association, when in fact he had been suspended from the Colorado Bar Association, the State Bar of Arizona, and the State Bar of California as a result of a Colorado felony conviction); Herfert v. Crayola, LLC, No. 11-cv-1301, Doc. 74 (W.D. Wash. 2012) (denying Mr. Palmers pro hac vice application); In re: Uponor, No. 11-MD-2247, Doc. 132 (D. Minn. 2012), at 3 (characterizing Mr. Palmer as a serial objector to other class-action settlements)); see also Gemelas v. Dannon Co., No. 1:08 CV 236, 2010 WL 3703811, at *1, 3 (N.D. Ohio 2010) (same); In re Dell Sec. Litig., No. A-06-CV-726-SS, ECF No. 342 (W.D. Tex. 2011) (describing Palmers serial objections as absurd and showing little respect for the intelligence of [that] Court). Mr. Palmer was sanctioned as recently as February 2013 for vexatious conduct. In re TFT-LCD (Flat Panel) Antitrust Litig., 289 F.R.D. 548 (N.D. Cal. 2013).
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such payments have been or will be made in this case, so the objections will be addressed. A. The Coastal Real Property Class Representatives are Adequate.

The Palmer Appellants contend that the Class Representatives are inadequate due to the alleged absence of a representative within the Coastal Real Property Framework who has standing to assert a general maritime claim. There is, however, no actual or potential conflict between or among class members in this regard. Indeed, the Coastal Property Framework, whose contours fall almost entirely along the water, provides for an increased award if oil was found on the property, according to the objective SCAT reports. For each eligible property, the 2010 appraised value of the property is multiplied by a property tax rate of 1.18%, and the base compensation amount then varies between 30% and 45% depending upon whether oil was observed on the property and whether the shoreline of the property includes environmentally sensitive areas. Base compensation is increased by the RTP of 2.5.97 Because oiled properties are eligible for greater amounts of base

See Dent Decl., 24-27 [Rec. Doc. 7114-4; 10453]; Taylor Decl., 59 [Rec. Doc. 7114-20; 10963].

97

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compensation, the difference of compensation is increased several times over by the application of the RTP.98 Additional factors guarantee the ample recoveries available under the Coastal Framework for those with both OPA and maritime claims. First, with regard to any contamination on a parcel within the coastal zone, the Coastal Framework specifies that nothing in the framework alters, reduces, or expands BPs obligations for cleanup, removal, spill response, and remediation of real property under applicable federal, state, or local laws, regulations, orders, or agreements. SETTLEMENT AGREEMENT, Ex. 11A, 4A [Rec. Doc. 6276-23; 4495]. Second, to the extent class members in the coastal zone sold their residential parcel between April 20 to December 31, 2010, they may be eligible to recover under the Real Property Sales Framework for actual loss of value. Id. at Ex. 13 [Rec. Doc. 6276-30; 4804]. Third, any parcels inadvertently excluded from the Coastal

Property framework based on incomplete SCAT lines can be included if appropriate documentation is provided. Dent Decl., 23 [Rec. Doc. 7114-4;

10453]; Taylor Decl., 47-49 [Rec. Doc. 7144-20; 10959]. The Palmer Appellants fail to identify, argue, or cite to any support that the Coastal Real Property Framework does not provide adequate compensation for

98

Dent. Decl., 24 [Rec. Doc. 7114-4; 10453].


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Coastal claims that arise under both OPA and maritime law. While they are correct that maritime law may confer a greater benefit than OPA, the Settlement provides enhanced compensation. The Palmer Appellants abjectly fail to provide any greater quantification of that benefit as it compares either with the compensation framework generally or themselves specifically. The Palmer Appellants do state that an oiled Coastal claim may be twice as valuable as a non-oiled Coastal claim, but completely fail to compare the value of a coastal claim in the Settlement with the value of a coastal claim in real-world or litigation terms. Palmer Appellants Brief, at 26. Without such data, no

comparison can be made. The Palmer Appellants are merely arguing the value of a legal claim versus the value of another legal claim without ever tying it to the value of the Settlement. All Coastal Real Property claims were settled at a premium maritime or no maritime claims. Both the structure of the negotiations and the terms of the Settlement Agreement itself provide structural assurances of adequate representation. See Supplemental Coffee Declaration, 19-27 [Rec. Doc. 7726-4; 14776].99 But, in any event, and of greatest significance, none of these Objectors even attempt to

See also Coffee Declaration, 8-10, 23-34, 41-45 [R.E. 3.006; Rec. Doc. 7110-3; 10233]; Klonoff Declaration, 29-38 [Rec. Doc. 7104-3; 9833]; Issacharoff Declaration, 817 [Rec. Doc 7104-4; 9896]; Supplemental Coffee Declaration, 15-41 [Rec. Doc. 7726-4; 14774]; Miller Declaration 11-28 [R.E. 5.002; Rec. Doc. 7114-16; 10733]; Miller Supplemental Declaration 11-20 [Rec. Doc. 7731-6; 15288].
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explain how the differences between or within the frameworks are the result of conflicts of interest between or among the members of the Class.100 Unlike Amchem, 521 U.S. at 601, in this regard, Class Counsel represented, and the Class Representatives reflect, a broad cross-section of people and businesses with all categories of claims. Class Counsel, therefore, from the outset, had the incentive to maximize the recoveries of each and all of the Class Members. The frameworks are the product of months and months of arms-length negotiation, in which the recovery under each damage claim formula was sought to be maximized by attorneys who represented people or businesses with those types of claims.101 There is no question of a pre-negotiated fund thereafter being divided up by conflicted counsel, unlike, say, Central States v. Merck-Medco, 504 F.3d 229, 235-37 (2d Cir. 2007) (striking down as improper the negotiation of a fund that was then divided up by counsel). In sum, the Settlement does provide higher compensation for oiled property than non-oiled property. Those Coastal property class members with oil also retain the benefit to have BP remove the oil. As such, no conflict exists between coastal

See Klonoff Declaration, 31-32 [R.E. 4.002; Rec. Doc. 7104-3; 9834]; Coffee Declaration, 8, 23 [Rec. Doc. 7110-3; 10242]; Issacharoff Declaration, 7-9, 12-13 [Rec. Doc. 7104-4; 9898]. 101 See Issacharoff Declaration, 7-11 [Rec. Doc. 7104-4; 9895]; Herman Declaration, 6-10 [Rec. Doc. 7104-5; 9909]; Rice Declaration (Negotiations), 6, 13 [Rec. Doc. 7104-6; 9913]; Coffee Declaration, 24-28 [Rec. Doc. 7110-3; 10242]; Miller Declaration 22-27 [R.E. 5.006; Rec. Doc. 7114-16; 10737].
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real property class members with OPA-only claims and those with both OPA and maritime claims. B. There is no Cy Pres in this Settlement. The Palmer Appellants argue that the $57 million Gulf Coast Tourism and Gulf Seafood fund (Tourism Fund) is an inappropriate cy pres award because the class members are known and the money could be given to them in some fashion. Palmer Appellants Brief, at 43. As an initial matter, the amount of the fund is approximately .01% of the amount awarded under the Settlement as of the date of this filing. As a legal matter, cy pres is an equitable doctrine that permits the distribution of a settlement funds residue that goes unclaimed. Klier v. Elf Atochem N. Am., Inc., 658 F.3d 458, 473-74 (5th Cir. 2011). Such awards, when they exist, should adhere as near as possible to the lawsuits underlying objectives, the interests of class members and the interests of those similarly situated to class members. In re Airline Ticket Commn Antitrust Litig., 307 F.3d 679, 682 (8th Cir. 2002) (citations and internal quotation marks omitted). Fundamentally, the Tourism Fund is not a cy pres award because it is not a distribution from unpaid settlement funds: the Settlement Fund payments do not reduce or in any other way compromise class members recovery. That is because
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the Settlement is uncapped; there will be full and complete payment for all class members who choose to participate in the Settlement, regardless of the number of participants. See Mangone v. First USA Bank, 206 F.R.D. 222, 230 (S.D. Ill. 2001) (rejecting challenges to the cy pres fund because the class was to receive nearly 100% recoveries).102 The funds identified for the Tourism Fund are not left over funds from any part of the settlement. Simply put, there can be no left over funds because there is no monetary cap to this settlement. Klonoff Supplemental Decl., 27 [Rec. Doc. 7727-4; 14987] (Because the settlement was designed with the goal of providing full compensation, the additional funds allocated for the Gulf Tourism and Seafood Promotion Fund are the proverbial icing on the cake.). The

Tourism Fund is simply another uniform benefit to the Class as a whole as promoting the general economy of the class area and, indirectly, supporting the economy which the oil spill harmed. Id. at 29 (A media campaign to bolster the tourism and seafood industries in the Gulf Region relates directly to class members interests.). Appellants rely principally on two inapposite cases to support their contention that the Tourism Fund payments are impermissible cy pres awards. In

102

The Seafood Program does feature a guaranteed fund of $2.3 billion, more than ample

to pay all Seafood claims in full; the remainder of that fund will be reallocated among the claimants themselves.
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both decisions, Dennis v. Kellogg Co., 697 F.3d 858 (9th Cir. 2012), and Klier v. Elf Atochem N. Am., Inc., 658 F.3d 468 (5th Cir. 2011), the settlements were capped and the alternative award of money diminished the class recovery. In Dennis, class members received at most $15 worth of coupons from a limited $2.75 million fund; funds left over from this allotment were scheduled for donation to a charity. Dennis, 697 F.3d at 862-64. In Klier, this Court invalidated a settlement provision that permitted the claims administrator to distribute left over settlement funds to a charity rather than dispersing those funds to the class. Klier, 658 F.3d at 476-77. In both instances, the distribution at issue was the remainder from a limited fund to undertakings unrelated to the needs of the class; here, there is no limited fund, no remainder, and, hence, no cy pres. C. The Settlement was Not Fee-Driven.

The Palmer Appellants appear to argue that the Settlement was fee driven for two general reasons: (1) the District Court used the BP estimate of $7.8 billion in payouts to determine reasonableness; and (2) the District Court failed to analyze whether the alleged benefits were obtainable through the GCCF. Any appeal concerning the potential ultimate award of attorneys fees should be dismissed without prejudice as premature. The simple fact is that there has been no award of fees by the district court and, as a result, there is no order of the
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district court to which this putative appeal corresponds. Any arguments that the recovery of the class is insufficient to justify an award of fees, or that any fee award should be discounted by the benefits available under the GCCF should be directed in the first instance to the District Court when it makes a fee determination, and not before.103 Nor is the lack of an order on fees a matter of happenstance. Any

negotiation of fees was completely segregated from the substantive class relief. Fees were not negotiated until after the terms of the Settlement were finalized and the Settlement Agreement was delivered to the District Court.104 Class Counsel sought permission from the United States Magistrate Judge Sally Shushan, who oversaw settlement negotiations, before commencing any discussions of attorneys fees. See Maywalt v. Parker & Parsley Pet. Co., 67 F.3d 1072, 1079 (2d Cir. 1995) ([T]he supervision of settlement negotiations by a magistrate judge, as occurred here, makes it less likely that . . . [class counsel have promoted] their own interests over those of the class.).

The Palmer Appellants may argue the decision of BP not to challenge any ultimate fee award below the negotiated amount (sometimes referred to as a clear sailing provision) is somehow disqualifying. That argument should also be directed to the District Court, even though this type of arrangement is common to massive settlements. See, e.g., Ayers v. Thompson, 358 F.3d 356, 367 (5th Cir. 2004); Blatt v. Dean Witter Reynolds Intercapital, Inc., 732 F.2d 304, 306-07 (2nd Cir. 1984); In re Prudential Ins. Co. of Am. Sales Practices Litig., 148 F.3d 283, 329 (3rd Cir. 1998); Waters v. Intl Precious Metals, Corp., 190 F.3d 1291, 1293 n.4 (11th Cir. 1999). 104 See Rice Decl., (Attorneys Fees) 5 [Rec. Doc. 7101-10; 9668].
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The segregation of the merits meant that fees could never be used as a bargaining chip for negotiating Settlement benefits, and the separate funding of fees meant that the Settlement fund could never be depleted by any fee obligation. Klonoff Supplemental Decl., 35-37 [Rec. Doc. 7727-4; 14991].105 In the event that this class settlement is affirmed, BP will pay up to $600 million in common benefit costs and fees, if and as may be awarded at some future time by the Court. The reasonableness of the fee will be determined by

comparison to the total payouts under a settlement. Here, the Claims Administer has authorized payments of over $4.4 billion, and current payouts have exceeded $3.2 billion, and are not finished. Claims Administrator Status Report No. 12, at 10-11 [Rec. Doc. 11008].106 As a result, not only are any fee-related appeals premature, but the district court has yet to determine the total value of the settlement that under this Courts direction must serve as the predicate for any fee award. See, e.g., Union Asset Management, 669 F.3d at 644-45.

Mr. Palmer seems to suggest that this Courts decision in Strong v. Bellsouth Telecommunications, Inc., 137 F.3d 844 (5th Cir. 1998) establishes some sort of rule in this regard. But, quite to the contrary: Strong only addressed the propriety of an attorney fee award under the atypical circumstances of [that] case. Strong, 137 F.3d at 853. The Court never suggested that the representation of the class in Strong was inadequate, nor that approval the settlement should have been vacated. 106 By contrast, the Palmer objectors rely on In re Bluetooth Headset Prod. Liab. Litig., 654 F.3d 935, 945 (9th Cir. 2011), a case in which the Ninth Circuit overturned a fee award that would have provided class counsel with 83% of the total recovery as fees in other words, almost five times as much as the class itself recovered.
105

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V.

The Bacharach Appellants Arguments Were Never Raised Before the District Court and Are Nonetheless Irrelevant to an Uncapped Settlement. In a miniscule brief with barely six pages of argument, the Bacharach

Appellants now decide to raise an issue never presented by them (or anyone else) to the District Court. The Bacharach Objectors 15-paragraph objection to the District Court focused only on attorneys fees and canned language about Rule 23.107 There was no mention anywhere in that objection about payment to

businesses who allegedly suffered no loss. This omission deprived the District Court of an opportunity to address the argument and the Bacharach Appellants are estopped from raising it now.108 This Court is clear arguments that are not made or developed in the district court will not be considered for the first time on appeal. In re FEMA Trailer Formaldehyde Products Liab. Litig. (Mississippi Plaintiffs), 668 F.3d 281, 290 (5th Cir. 2012).109 This Court has reiterated this rule in class action suits:

107

Bacharach Appellants Objection, No. 10-7777 [Rec. Doc. 233; 9865].

The Bacharach Appellants one argument appears to have been lifted out of a separate appeal (No. 13-30315) pending before this Court regarding the interpretation of the Business Economic Loss compensation framework. That issue will be addressed in that appeal and concerns the implementation of the Settlement Agreement, not its approval. Moreover, the Appellant in No. 13-31315 is BP, one of the settling parties and a party that did not appeal settlement approval. 109 See also, e.g., Tolbert v. LeBlanc, 512 F.App'x 401 (5th Cir. 2013); Balentine v. Thaler, 626 F.3d 842, 848 (5th Cir.2010)(The general rule is that arguments not raised before the district court are waived on appeal.); Krzywonski, 9 F.3d 103 (5th Cir. 1993)(We will not consider legal arguments that have not been presented to the district court and are raised for the
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Objectors assert a crudely articulated due process objection . . . [and the] . . . [f]ailure to raise a due process objection before a district court waives that objection on appeal. Newby v. Enron Corp., 394 F.3d 296, 309 (5th Cir. 2004).110 The Bacharach Appellants now claim to challenge the creation of two classes of beneficiaries, some of whom that were directly and proximately damaged by the oil spill and some of whom were allegedly not. Bacharach Appellants Brief, at 13. Nowhere is there any claim that the Bacharach

Appellants themselves are affected by this distinction (if any). The only facts Appellants assert is that they live in Texas and would have been classified differently had they lived in Louisiana. Bacharach Appellants Brief, at 8. There is no claim of how the purported defect in the Settlement affects the division of claims between Louisiana and Texas, nor any claim of conflict or failure of representation that had any effect on the drawing of lines between the different recovery Zones.

first time on appeal.); Hormel v. Helvering, 312 U.S. 552, 556 (1941) (Ordinarily an appellate court does not give consideration to issues not raised below.). 110 This rule is by no means unique to this Circuit. The Seventh Circuit has held that, because an objector failed to advance an argument in the district court regarding fee-setting methodology, the argument was waived and would not be considered by the court of appeals. Taubenfeld v. AON Corp., 415 F.3d 597, 599 (7th Cir. 2005) (On numerous occasions we have held that if a party fails to press an argument before the district court, he waives the right to present that argument on appeal.... As we have made clear, it is axiomatic that arguments not raised below are waived on appeal); see also Puffer v. Allstate Ins. Co., 675 F.3d 709, 719-20 (7th Cir. 2012) ([I]ntervenors still cannot change course on appeal to raise an argument different than the one presented to the district court).
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The attempt of the Bacharach Appellants to now mimic claims made by BP in a separate appeal with regard to settlement interpretation and administration are unrelated to any question of settlement approval for the class. The question for the settlement is whether it is fair, adequate and reasonable to the class. The

Bacharach Appellants have not produced or cited to a single piece of evidence that supports their proposition that they are not adequately compensated under the settlement terms, nor have they put forward any argument as to the insufficiency of the recovery for any other class members. Even if BP prevails on its claims about the scope of the class recovery for Business Economic Loss Claims in its separate appeal, there will be no effect whatsoever on the recovery of class members who are within the redefined class. This is an uncapped settlement and the

compensation owed to the Bacharach Appellants (if any) is unaffected by the dispute over the number of proper claimants. Fundamentally, the Bacharach Appellants fail to recognize how a loss of income, earnings or profits suffered as a result of the Deepwater Horizon Incident is determined. The Settlement Agreement itself defines such losses according to the objective standards and frameworks set forth and described in the attached Exhibits 1A-15111 (specifically, Exhibits 4B and 4C).112 Hence, whether

111

See SETTLEMENT AGREEMENT, 1.3.1.

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a claimant suffered a loss as a result of the Spill is determined by objective, transparent, mathematical calculation. Different classes are not created within the Economic and Property Settlement Class because the ticket to compensation is one and the same. Once a person passes the Causation test, he or she will be treated to the same damages calculation as every other class member. The settling parties separate and joint class experts opined in favor of this objective class definition, with objective frameworks for establishing entitlement to compensation.113 Further, because the Settlement is uncapped, no conflict is created between the Bacharach Appellants two theoretical classes. Payment of hypothetically unsupported claims would not disrupt the fairness of the Settlement to those claimants who have traditional claims. Such claims will be paid a fair and

reasonable amount under the Settlement, and all such claimants were free to make claims or to opt-out. The fairness or reasonableness of their compensation is no way affected by a fictitious claimant who has not incurred any losses because

112

See SETTLEMENT AGREEMENT, 5.3.2.1 (The frameworks setting forth the

documentation requirements governing Business Economic Loss Claims, and the standards for evaluating such claims, are set forth in Exhibits 4A-7 to the Agreement); 5.3.2.3 (Causation requirements are set forth in Exhibit 4B); 5.3.2.4 (The compensation methodology for Business Economic Loss Claims generally is set forth in Exhibits 4C-4E). 113 See, e.g., Coffee Declaration, 17-22 [Rec. Doc. 7110-3; 10239]; Klonoff Declaration, 19-20 [Rec. Doc. 7104-3; 9830]; Miller Declaration 13-21 [R.E. 5.003; Rec. Doc. 7114-16; 10734]; Miller Supplemental Declaration 5-9, 12, 15 [Rec. Doc. 7731-6; 15285].
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such claimants do not reduce the recoveries to other class members. If a claimant is deemed ineligible, either by the Claims Administrator or by a decision of this Court in No. 13-31315, there is no impact on any other claimant save the one deemed ineligible. The objective eligibility and compensation frameworks, the products of many months of intense negotiation, here replaced the hidden, shifting, inconsistent and unilateral claims decisions of the GCCF, and places all individuals and businesses within the defined class with an equal opportunity to make claims. Under established and contemporary jurisprudence, class actions may be deployed to litigate (or resolve) common liability questions, and then to separately adjudicate, or resolve by settlement negotiation, more individualized questions of causation and damages. Butler, 2013 WL 4478200, at **4-5 (citing, inter alia, Comcast and Wal-Mart). Compensation within each of the frameworks, detailed in Exhibits to the Settlement Agreement, use the same criteria and methodology. This public, transparent, consistent system the sine qua non of a fair settlement replaced the unreliable GCCF, and obviates the need for endless, ad hoc, adversarial or subjective determinations to decide who is subjectively "worthy" of payment, and in what amounts. That the class members themselves consider this

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system fair is demonstrated by their actions, in remaining within the class, filing claims, and, for all but a handful, eschewing objections or appeals.

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Conclusion For the above and foregoing reasons, for the reasons stated by the District Court, and based on the evidentiary record and other proceedings before the court below, the certification and approval of the Economic & Property Damages Class Settlement should be affirmed.

This 3rd day of September, 2013.

Respectfully submitted,

/s/ Stephen J. Herman Stephen J. Herman HERMAN, HERMAN & KATZ LLC 820 OKeefe Avenue New Orleans, Louisiana 70113 Telephone: (504) 581-4892 Fax No. (504) 569-6024 E-Mail: sherman@hhklawfirm.com Lead Class Counsel

/s/ James Parkerson Roy James Parkerson Roy DOMENGEAUX, WRIGHT, ROY, & EDWARDS LLC 556 Jefferson Street, Suite 500 Lafayette, Louisiana 70501 Telephone: (337) 233-3033 Fax No. (337) 233-2796 E-Mail: jimr@wrightroy.com Lead Class Counsel Samuel Issacharoff 40 Washington Square South, 411J New York, NY 10012 Telephone: (212) 998-6580 E-Mail: si13@nyu.edu Counsel on the Brief

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ADDITIONAL APPEAL COUNSEL Elizabeth J. Cabraser LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP 275 Battery Street, 29th Floor San Francisco, CA 94111-3339 Office: (415) 956-1000 Telefax: (415) 956-1008 E-Mail: ecabraser@lchb.com Soren E. Gisleson Herman Herman & Katz LLC 820 OKeefe Avenue New Orleans, LA 70113 Telephone: (504) 569-6024 Fax No. (504) 569-6024 E-mail: sgisleson@hhklawfirm.com ADDITIONAL ECONOMIC & PROPERTY DAMAGE CLASS COUNSEL Joseph F. Rice MOTTLEY RICE 28 Bridgeside Blvd. Mount Pleasant, SC 29464 Office: (843) 216-9159 Fax No. (843) 216-9290 E-Mail: jrice@motleyrice.com Bian H. Barr LEVIN, PAPANTONIO THOMAS MITCHELL RAFFERTY & PROCTOR, P.A. 316 South Baylen St., Suite 600 Pensacola, FL 32502-5996 Office: (850) 435-7045 Telefax: (850) 436-6187 E-Mail: bbarr@levinlaw.com

Calvin C. Fayard, Jr. FAYARD & HONEYCUTT 519 Florida Avenue, SW Denham Springs, LA 70726 Office: (225) 664-4193 Telefax: (225) 664-6925 E-Mail: calvinfayard@fayardlaw.com Robin L. Greenwald WEITZ & LUXENBERG, PC 700 Broadway New York, NY 10003 Office: (212) 558-5802 Telefax: (212) 344-5461 E-Mail: rgreenwald@weitzlux.com

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Jeffrey A. Breit BREIT, DRESCHER & IMPREVENTO Towne Pavilion Center II 600 22nd Street, Suite 402 Virginia Beach, Virginia 23451 Office: (757) 670-3888 Telefax: (757) 670-3895 E-Mail: jbreit@bdbmail.com Conrad S.P. Duke Williams WILLIAMS LAW GROUP 435 Corporate Drive, Suite 101 Maison Grand Caillou Houma, Louisiana 70360 Office: (985) 876-7595 Fax No. (985) 876-7594 E-Mail: duke@williamslawgroup.org

Rhon E. Jones BEASLEY, ALLEN, CROW, METHVIN, PORTIS & MILES, P. C. 218 Commerce St., P.O. Box 4160 Montgomery, AL 36104 Office: (334) 269-2343 Telefax: (334) 954-7555 E-Mail: rhon.jones@beasleyallen.com Matthew E. Lundy LUNDY, LUNDY, SOILEAU & SOUTH, LLP 501 Broad Street Lake Charles, LA 70601 Office: (337) 439-0707 Telefax: (337) 439-1029 E-Mail: mlundy@lundylawllp.com

Philip F. Cossich, Jr. COSSICH, SUMICH, PARSIOLA & TAYLOR 8397 Highway 23, Suite 100 Belle Chasse, LA 70037 Office: (504) 394-9000 Telefax: (504) 394-9110 E-Mail: pcossich@cossichlaw.com Robert T. Cunningham CUNNINGHAM BOUNDS, LLC 1601 Dauphin Street, P. O. Box 66705 Mobile, AL 36660 Office: (251) 471-6191 Telefax: (251) 479-1031 E-Mail: rtc@cunninghambounds.com

Michael C. Palmintier deGRAVELLES, PALMINTIER, HOLTHAUS & FRUGE 618 Main Street Baton Rouge, LA 70801-1910 Office: (225) 344-3735 Telefax: (225) 344-0522 E-Mail: mpalmintier@dphf-law.com Paul M. Sterbcow LEWIS, KULLMAN, STERBCOW & ABRAMSON 601 Poydras Street, Suite 2615 New Orleans, LA 70130 Office: (504) 588-1500 Telefax: (504) 588-1514 E-Mail: sterbcow@lksalaw.com
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Alphonso Michael Mike Espy MORGAN & MORGAN, P.A. 188 East Capitol Street, Suite 777 Jackson, MS 39201 Office: (601) 949-3388 Telefax: (601) 949-3399 E-Mail: mike@mikespy.com Ervin A. Gonzalez COLSON HICKS EIDSON 255 Alhambra Circle, Penthouse Coral Gables, FL 33134 Office: (305) 476-7400 Telefax: (305) 476-7444 E-Mail: ervin@colson.com

Scott Summy BARON & BUDD, P.C. 3102 Oak Lawn Avenue, Suite 1100 Dallas, TX 75219 Office: (214) 521-3605 Telefax: (214) 599-1172 E-Mail: ssummy@baronbudd.com

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CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS, AND TYPE STYLE REQUIREMENTS This brief complies with the type-volume limitation of Federal Rule of Appellate Procedure 28.1(e)(2)(A), as modified by the Courts Order of August 13, 2013 granting Appellees leave to file their brief of up to 21,000 words, because it contains 18,899 words, as determined by the word-count function of Microsoft Word 2010, excluding the parts of the brief exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii) and Fifth Circuit Rule 32.2. This brief complies with the typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) and the type style requirements of Federal Rule of Appellate Procedure 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2010 in 14-point Times New Roman font. /s/ Stephen J. Herman and James Parkerson Roy Co-Lead Class Counsel

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CERTIFICATE OF ELECTRONIC COMPLIANCE We hereby certify that that, on September 3, 2013, Appellees Brief was transmitted to the Clerk of the United States Court of Appeals for the Fifth Circuit through the Courts CM/ECF document filing system, https://ecf.ca5.uscourts.gov. We further certify that required privacy redactions have been made pursuant to this Courts Rule 25.2.13.

/s/ Stephen J. Herman and James Parkerson Roy Co-Lead Class Counsel

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CERTIFICATE OF SERVICE We hereby certify that on September 3, 2013, an electronic copy of the foregoing Appellees Brief was filed with the Clerk of Court for the United States Court of Appeals for the Fifth Circuit using the appellate CM/ECF system. We further certify that service will be accomplished by the appellate CM/ECF system and via e-mail to the following: Theodore B. Olson Miguel A. Estrada Thomas G. Hungar Scott P. Martin GIBSON, DUNN & CRUTCHER 1050 Connecticut Avenue, N.W. Washington, D.C. 20036 (202) 955-8500 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 60654 (312) 862-2000 George H. Brown GIBSON, DUNN & CRUTCHER 1881 Page Mill Road Palo Alto, CA 94304 (650) 849-5339

Jeffrey Bossert Clark Steven A. Myers KIRKLAND & ELLIS LLP 655 Fifteenth Street, N.W. Washington, D.C. 20005 (202) 879-5000

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S. Gene Fendler Don K. Haycraft R. Keith Jarrett LISKOW & LEWIS 701 Poydras Street, Suite 5000 New Orleans, LA 70139 (504) 581-7979 Daniel A. Cantor Andrew T. Karron ARNOLD & PORTER LLP 555 Twelfth Street, NW Washington, DC 20004 (202) 942-5000

Robert C. Mike Brock COVINGTON & BURLING LLP 1201 Pennsylvania Avenue, NW Washington, DC 20004 (202) 662-5985

Jeffrey Lennard Keith Moskowitz DENTONS 233 South Wacker Drive Suite 7800 Chicago, IL 60606 (312) 876-8000

James J. Neath Mark Holstein BP AMERICA INC. 501 Westlake Park Boulevard Houston, TX 77079 (281) 366-2000 Attorneys for BP Exploration & Production Inc., BP America Production Company, and BP p.l.c. Joseph Darrell Palmer LAW OFFICES OF DARRELL PALMER 603 N. Highway 101, Suite A Solana Beach, CA 92075 Telephone: 858-792-5600 Fax: 866-583-8115 Attorneys for Appellants James H. Kirby III, Mike Sturdivan and Patricia Sturdivan, Susan Forsyth, James H. Kirby IV

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Brent W. Coon BRENT COON AND ASSOCIATES 215 Orleans Beaumont, TX 77701 Tel.: 409-835-2666 Fax: 409-835-1912 Attorneys for Appellants identified on a list attached to the Notice of Appeal filed with the District Court [Rec. Doc. 8349-1] John J. Pentz 19 Widow Rites Lane Sudbury, MA 01776 Tel.: 978-261-5725 Fax: 978-405-5161 Attorneys for Appellants Cobb Real Estate, Inc., G & A Cobb Family Ltd. Partnership, L & M Investments, Ltd., MAD, Ltd, Mex-Co., Ltd., Robert C. Mistrot and Missroe, LLC N. Albert Bacharach, Jr. N. ALBERT BACHARACH, JR, PA 115 Northeast 6th Avenue Gainsville, FL 32601 Tel: 352-378-9859 Attorneys for Appellants Allpar Custom Homes, Sea Tex Marine Service, Inc., Ancelets Marina L.L.C., and J. G. Cobb Construction, Ltd. George Frazier 6122 Clara Street New Orleans, LA 70118 Telephone: 504-214-0836 Fax: 504-342-3626 Attorney for Appellants Gulf Organized Fisheries in Solidarity & Hope, Inc., Donald Dardar, and Thien Nguyen

/s/ Stephen J. Herman and James Parkerson Roy Co-Lead Class Counsel
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