United States District Court, E.D. Louisiana
In Re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010 This Document Relates to: Nos. 12-970, 18-435, 17-16366, 17-16241, 17-17789, 17-16248, 17-16266, 17-16245, 17-17790
ORDER & REASONS
the Court are multiple Motions to Require Immediate Payment
or a Supersedeas Bond,  BP's opposition (Rec. Doc. 24141),
and Movants' replies (Rec. Docs. 24212, 24214). The
Court, having considered the parties' arguments, the
applicable law, and the relevant record,
denies the motions for the reasons stated
are eight claimants in the Economic and Property Damages
Settlement. (“Economic Settlement” or simply
“Settlement, ” Rec. Doc. 6430), which is
administered by the Court Supervised Settlement Program
(“CSSP”). Movants each prevailed before the
Settlement's Appeal Panel, and BP requested discretionary
court review pursuant to § 6.6 of the Settlement. The
Court denied review, and BP appealed to the Fifth Circuit.
Those appeals are pending. Meanwhile, in this Court, Movants
filed the instant motions.
CSSP's current practice is that it does not pay an
eligible claim until all appeals relative to that claim,
including appeals to the Fifth Circuit, are exhausted or the
time for taking an appeal has expired. In accordance with
this practice, the CSSP has not paid Movants' claims.
Movants argue that the Court's “Order and
Judgment” denying BP's request for discretionary
review is effectively a final money judgment to which
Fed.R.Civ.P. 62(d) and Local Rule 62.2 apply.Therefore, Movants
request that the Court either require the CSSP to immediately
pay their claims or require BP to posts a supersedeas bond in
the amount of the judgment plus 20%. Alternatively, Movants
contend that the Court's Order and Judgment is an
injunctive order-because it effectively directs the CSSP to
pay Movants' claims-and BP should be required to post a
supersedeas bond under Fed.R.Civ.P. 62(c) in order to stay
the injunction pending appeal.
responds with three arguments. First, BP contends that the
denial of discretionary review is not the equivalent of a
money judgment or even an injunction, so Fed.R.Civ.P. 62 does
not apply and no bond is required. Second, BP argues that
Economic Settlement governs here, not Fed.R.Civ.P. 62, and
the Settlement does not require BP to post a bond when it
appeals an individual claim. Third, assuming that a denial of
discretionary review is a money judgment and the Economic
Settlement does not waive Fed.R.Civ.P. 62, BP urges the Court
to use its discretion to exempt BP from posting a bond.
BP's second argument, the Court disagrees. As recognized
by the Fifth Circuit, the Settlement is entirely silent about
whether there is a right to appeal to the Fifth Circuit after
the discretionary review stage. In Re Deepwater
Horizon, 785 F.3d 986, 993-94, 997 (5th Cir. 2015). In
fact, the Court of Appeals agreed with BP's position that
because the Settlement did not expressly waive the ability to
appeal, the parties had preserved that right. Id. at
997. Furthermore, the Court of Appeals found that
Fed.R.Civ.P. 79 and Fed. R. App. P. 4 applied to this
Court's rulings on requests for discretionary review and
appeals therefrom. See Id. at 998; see also In
Re Deepwater Horizon, 785 F.3d 1003, 1011 & n.5 (5th
Cir. 2015). Just as the Settlement is silent with respect to
the right to appeal, the Settlement also makes no mention of
Fed.R.Civ.P. 62 or a supersedeas bond. Following the
rationale of the Fifth Circuit's opinions, then, the
Settlement does not waive or prohibit the application of
BP's first argument, the Court will simply assume that
the denial of a request for discretionary review is
equivalent to a final money judgment to which Fed.R.Civ.P.
62(d) applies and move on to whether the Court should
exercise its discretion to waive the requirement for a
purpose of a supersedeas bond is to preserve the status quo
while protecting the non-appealing party's rights pending
appeal.” Poplar Grove Planting & Ref. Co. v.
Bache Halsey Stuart, Inc., 600 F.2d 1189, 1190-91 (5th
Cir. 1979). “Rule 62(d) establishes a general rule that
losing parties in the district court can obtain a stay
pending appeal only by giving a supersedeas bond.”
Enserch Corp. v. Shand Morahan & Co., Inc., 918
F.2d 462, 463-64 (5th Cir. 1990). This rule is not without
exceptions, however. “If a court chooses to depart from
the usual requirement of a full security supersedeas bond to
suspend the operation of an unconditional money judgment, it
should place the burden on the moving party to objectively
demonstrate the reasons for such a departure.”
Poplar Grove, 600 F.2d at 1191. The Fifth Circuit
has “recognized an exception to this general rule for
situations in which the losing party ‘objectively
demonstrates a present financial ability to facilely respond
to a money judgment and presents to the court a financially
secure plan for maintaining the same degree of solvency
during the period of the appeal.'” Enserch
Corp., 918 F.2d at 464 (quoting Poplar Grove,
600 F.2d at 1191). This is not the only circumstance where an
appellant may be relieved of the bond requirement. See
Id. (citing Bronson v. La Crosse &
Milwaukee R.R. Co., 68 U.S. (1 Wall.) 405, 410 (1864);
N. Indiana Pub. Serv., Co. v. Carbon Cty. Coal Co.,
799 F.2d 265, 281 (7th Cir. 1986)).
CSSP issues settlement payments from the Settlement Trust,
which is funded by BP Exploration and Production Inc.
(“BPXP”) and BP America Production Company
(“BPAPC”), who are the “Primary
Obligors” under the Economic Settlement. (Settlement
§§ 5.12.1, 18.104.22.168.6, 38.14, Rec. Doc. 6430-1;
Settlement, Ex. 24A, Rec. Doc. 6430-42). The Primary
Obligors' promise to fund the Settlement Trust is backed
by two guarantees-first by BP Corporation North America Inc.
(“BPCNA”) and then by BP p.l.c. (Settlement, Ex.
24A & 24B, Rec. Doc. 6430-42, -43). As of December 31,
2017, the CSSP has issued over $11 billion in payments to
129, 000 claimants. (Status Report, Rec. Doc. 23875-1 at 2).
According to a declaration by Michael T. Robertson, BP
America's Finance Director and Controller, the Primary
Obligors have thus far satisfied their duties to fund the
Settlement Trust without needing BPCNA or BP p.l.c. to step
in as guarantors. (Rec. Doc. 24141-1 ¶ 6). Mr. Robertson
further states that BPXP, BPAPC, BPCNA, and BP p.l.c. are all
financially sound and none are at risk of becoming insolvent
in the foreseeable future. (Rec. Doc. 24141-1 ¶¶
6-7). While these guarantees may not fit usual definition of
a supersedeas bond and they are not specific to Movants'
claims, the fact remains that BP has already provided two
blanket financial protections for the benefit of the entire
Settlement Class, which suggests that an additional
supersedeas bond for each claim appealed would be redundant.
respond that “a single declarant's unsubstantiated
belief that [BP] will be able to respond to any judgments in
the future . . . . is a far cry from ‘a financially
secure plan for maintaining the same degree of solvency
during the period of the appeal' as required [by the
Fifth Circuit in] Poplar Grove.” (Rec. Doc.
24212 at 5). Perhaps Mr. Robertson's declaration is not
quite the plan Poplar Grove envisioned, but the
Court does not rest its decision on the declaration alone. As
noted above, Poplar Grove did not set forth the only
exception to Rule 62's full supersedeas bond requirement.
Here, the Court's decision to deny the instant motions is
based on other considerations in addition to Mr.
Robertson's declaration, as discussed below.
Fifth Circuit has recognized, “this case is no ordinary
class action.” In Re Deepwater Horizon, 819
F.3d 190, 197 (5th Cir. 2016). It is “particularly
complex, even epic, ” “gargantuan, ” and
“nearly unprecedented” in scope and size.
Id.; In Re Deepwater Horizon, 793 F.3d 479,
490 (5th Cir. 2015). Consequently, this Court “has
especially strong and flexible managerial power in this
highly complex [multidistrict litigation].” In Re
Deepwater Horizon, 819 F.3d at 198.
at least July 2015, the CSSP's practice has been to
withhold paying a claim until all appeals, including appeals
to the Fifth Circuit, are fully resolved. (See Rec.
Doc. 14812-1 at 7, amended by Rec. Docs. 15575,
15643). This Court approved of that process, and it was not
challenged until recently. The Court has now ruled on
approximately 3, 000 requests for discretionary review. More
requests for discretionary review and more appeals to the