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Item N6BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: June 20, 2012 Division: County Attorney Bulls Item: Yes _ No xx Staff Contact Person/Phone #: Bob Shillinger, x3470 AGENDA ITEM WORDING: Discussion and direction to staff regarding representation of the County by outside counsel in potential claims arising from the Deepwater Horizon Oil Spill. ITEM BACKGROUND: The County has been approached by two law firms seeking to represent it in litigation arising from claims that the County may have against responsible parties arising from the Deepwater Horizon Oil Spill of 2010. There was a recent settlement in the class action lawsuits filed against BP that established a methodology for asserting two types of claims: a) economic damages; and b) personal injuries. While governmental entities appear to have not been included in the economic damages class, two firms who have approached the County Attorney's Office indicate that the economic damages settlement provides a methodology for the County to recover in its own claim. Both firms assert that the County may have unrealized losses due to decreased tax revenue. Both proposed contracts are attached. A comparison chart of the salient provisions of each proposed contracts is also attached. Background information on each firm is also attached. PREVIOUS RELEVANT BOCC ACTION: May 16, 2012 — Board gave direction to staff to research proposal and bring back a contract that required no investment of time or money by the County. CONTRACT/AGREEMENT CHANGES: n/a STAFF RECOMMENDATIONS: Reject both proposals and authorize County Attorney to solicit proposals from these and other firms that will: A. Set contingency fee at 20% of gross recovery up to final judgment and 30% after an appeal, B. Includes a provision that all costs will be advanced by the firm and recovered from any award gained plus a guaranty by the law firm that the firm, not the County, will liable for paying any costs awarded in the event of an adverse judgment, C. Require that Florida law be used to interpret the agreement; D. Require that venue be in the 16a' Judicial Circuit of Florida for any action to enforce the agreement; E. Will require only a token amount of staff time if any all. TOTAL COST: TBD INDIRECT COST: TBD BUDGETED: Yes COST TO COUNTY: TBD SOURCE OF FUNDS: ad valorem REVENUE PRODUCING: potentially �/ AMOUNT to be determined APPROVED BY: County Atty Z' � ll` OMB/Purchasing Risk Management DOCUMENTATION: Included xx Not Required DISPOSITION: AGENDA ITEM # Comparison of Firms & Contract Terms Kru nic Campbell Jackson Fikes Lead Attorney Bob McKee Eddie Jackson Local Counsel David Paul Horan Richard Klitenick Lead Firm based in Ft. Lauderdale, FL Jasper, AL % fee prior to suit 30% 20% After suit filed, before trial 30% 25% of gross recovery for 1b'$2 million; 20% of amounts over $2 million Post -trial, pre -appeal Unclear Same After an appeal 35% 5% additional If statutory fee is applicable, which applies Whichever greater Silent Costs advanced by attorney Implied Yes Liability for costs if lose Silent Silent Costs specified .25/co /fax Silent Choice of law Florida Silent Cancellation Provision 3 days 3 days, if afterwards lien on recovery Staff timer wired Silent Silent Collateral benefits Research on current conditions in the gulf to use in the event of future oils ills None stated FLORIDA BAR'S STATEMENT OF CLIENT'S RIGHTS IN CONTINGENCY FEE CASES Before you, the prospective client, arrange a contingent fee agreement with a lawyer, you should understand this statement of your rights as a client. This statement is not a part of the actual contract between you and your lawyer, but, as a prospective client, you should be aware of these rights: 1. There is no legal requirement that a lawyer charge a client a set fee or a percentage of money recovered in a case. You, the client, have the right to talk with your lawyer about the proposed fee and to bargain about the rate or percentage as in any other contract. If you do not reach an agreement with one lawyer you may talk with other lawyers. 2. Any contingent fee contract must be in writing and you have three (3) business days to reconsider the contract. You may cancel the contract without any reason if you notify your lawyer in writing within three (3) business days of signing the contract. If you withdraw from the contract within the first three (3) business days, you do not owe the lawyer a fee although you may be responsible for the lawyers actual costs during that time. If your lawyer begins to represent you, your lawyer may not withdraw from the case without giving you notice, delivering necessary papers to you, and allowing you time to employ another lawyer. Often, your lawyer must obtain court approval before withdrawing from a case. If you discharge your lawyer without good cause after the three-day period, you may have to pay a fee for work the lawyer has done. 3. Before hiring a lawyer, you, the client, have the right to know about the lawyers education, training, and experience. If you ask, the lawyer should tell you specifically about his or her actual experience dealing with cases similar to yours. If you ask, the lawyer should provide information about special training or knowledge and give you this information in writing if you request it. 4. Before signing a contingent fee contract with you, a lawyer must advise you whether he or she intends to handle your case alone or whether other lawyers will be helping with the case. If your lawyer intends to refer the case to other lawyers he or she should tell you what kind of fee sharing arrangement will be made with the other lawyers. If lawyers from different law firms will represent you, at least one lawyer from each law firm must sign the contingent fee contract. 5. If your lawyer intends to refer your case to another lawyer or counsel with other lawyers, your lawyer should tell you about that at the beginning. If your lawyer takes the case and later decides to refer it to another lawyer or to associate with other lawyers, you should sign a new contract which includes the new lawyers. You, the client, also have the right to consult with each lawyer working on your case and each lawyer is legally responsible to represent your interests and is legally responsible for the acts of the other lawyers involved in the case. 6. You, the client, have the right to know in advance how you will need to pay the expenses and the legal fees at the end of the case. If you pay a deposit in advance for costs, you may ask reasonable questions about how the money will be or has been spent and how much of it remains unspent. Your lawyer should give a reasonable estimate about future necessary costs. If your lawyer agrees to lend or advance you money to prepare or research the case, you have the right to know periodically how much money your lawyer has spent on your behalf. You also have the right to decide, after consulting with your lawyer, how much money is to be spent to prepare a case. If you pay the expenses, you have the right to decide how much to spend. Your lawyer should also inform you whether the fee will be based on the gross amount recovered or on the amount recovered minus the costs. 7. You, the client, have the right to be told by your lawyer about possible adverse consequences if you lose the case. Those adverse consequences might include money which you might have to pay to your lawyer for costs and liability you might have for attorney's fees, costs and expenses to the other side. 8. You, the client, have the right to receive and approve a closing statement at the end of the case before you pay any money. The statement must list all of the financial details of the entire case, including the amount recovered, all expenses, and a precise statement of your lawyers fee. Until you approve the closing statement, your lawyer cannot pay any money to anyone, including you, without an appropriate order of the court. You also have the right to have every lawyer or law firm working on your case sign this closing statement. 9. You, the client, have the right to ask your lawyer at reasonable intervals how the case is progressing and to have these questions answered to the best of your lawyer's ability. 10. You, the client, have the right to make the final decision regarding settlement of a case. Your lawyer must notify you of all offers of settlement before and after the trial. Offers during the trial must be immediately communicated and you should consult with your lawyer regarding whether to accept a settlement. However, you must make the final decision to accept or reject a settlement. 11. If at any time, you, the client, believe that your lawyer has charged an excessive or illegal fee, you, the client, have the right to report the matter to The Florida Bar, the agency that oversees the practice and behavior of all lawyers in Florida. Client Signature Date Attorney Signature Date LEAD COUNSEL: KRUPNICK CAMPBELL MALONE BUSER SLAMA HANCOCK LIBERMAN & MCKEE LOCAL COUNSEL: DAVID PAUL HORAN, ESQ. LAW OFFICES KRUPNICK CAMPBELL MALONE BUSER SLAMA HANCOCK LIBERMAN & MCKEE JON E. KRUPNICK' WALTER O. CAMPBELL, JR.' f KEVIN A. MALONE' THOMAS E. BUSER' JOSEPH J. SLAMA' KELLY D. HANcom—to SCOTT S. LIBERMAN ROBERT J. MCKEE [VAN F. CABRERAt KELLEYB. STEwARTtt MICHAEL J. RYAN CARLOS A. ACEVEDO" HOLLY D. KRULIK A PROFESSIONAL ASSOCIATION 12 SOUTHEAST SEVENTH STREET SUITE 601 FORT LAUDERDALE, FLORIDA 33301-3426 TELEPHONE (954) 7SM181 TOLL FREE (8T7) 763-8181 FACSIMILE (954)763-8292 W W W.KRUPNICKLAW.COM NICK S. DAVMANt JACOUELYN S. HOLDEN" SEAN F. THOMPSp MARK OIULANI M. JASON WEIL 'BOARD CERTIFIED CMLTRIAL LAWYER "ADMITTED IN NY ONLY ADMITTED IN NY tADMTTTEO IN DISTRICT OF COLUMBIA ttADMTTTED IN NORTH CAROLINA tttADMrnED IN CONNECTICUT *ADMITTED IN WASHINGTON BP Deepwater Horizon Drilling Rig Oil Spill Disaster Florida Contingency Fee Agreement and Authority to Represent Uwe, Monroe County, Florida„_, the undersigned client (hereinafter referred to as "I," "we," "us," "me," or the "Client"), do hereby retain the LAW OFFICES OF KRUPNICK CAMPBELL MALONE BUSER SLAMA HANCOCK LIBERMAN & MCKEE, P.A., THE LAW OFFICES OF HORAN, WALLACE & HIGGINS, LLP, and the law firms listed on Exhibit "A" attached hereto (hereinafter referred to as "Attorneys'J, as my/our Attorneys to represent metus in connection with my/our claim for damages related to the BP DEEPWATER HORIZON DRILLING RIG OIL SPILL DISASTER (hereinafter referred to as "Claim'). Uwe understand that Uwe am/are NOT employing attorneys to represent me/us for any insurance -related claims and that a separate contract must be signed in the event that legal representation is required for insurance -related claims. Uwe understand that Uwe am/are NOT employing attorneys to represent metes for any personal injury claims and that a separate contract must be signed in the event that legal representation is required for personal injury claims. Uwe understand that under this contract, the Attorneys will investigate and evaluate this claim. Teeieafter, Uwe will be informed as to whether or not the Attorneys will proceed further with this claim Uwe specifically authorize Attorneys to undertake negotiations and/or file suit or institute legal proceedings as they deem necessary on my/our behalf. Itwe further authorize Attorneys to Contingency Fee Agreement and Authority to Represent Page 1 of 6 retain and employ, at my/our expense, the services of any experts, as well as the services of other outside contractors, as Attorneys deem necessary or expedient in representing my/our interests. Uwe also authorize Attorneys to retain and employ other attorneys not associated with Attorneys without my/our prior knowledge and written consent; however, the combined fee of Attorneys and all other attorneys shall be limited as set forth herein below. All costs and expenses will be advanced by the Attorneys who will be reimbursed from my/our recovery. Uwe understand that Attorneys jointly will assume responsibility for the representation as a whole and Attorneys agree to diligently institute and prosecute Client's Claim to determination in the appropriate court, and make all reasonable and necessary efforts to collect any judgment that may be rendered therein in Client's favor. Uwe understand that my/our Attorneys agree to be available for consultation. Uwe further understand that THE LAW OFFICES OF HORAN, WALLACE & HIGGINS, LLP, whom I/we initially contacted regarding my/our claim, will be acting as co - counsel. However, the LAW OFFICES OF KRUPNICK CAMPBELL MALONE 13USER SLAMA HANCOCK LIBERMAN & MCKEE, P.A. will be primarily responsible for the evaluation, investigation, and handling of my/our claim. 1. ATTORNEYS' FEES. As compensation for legal services, Uwe agree to pay my/our Attorneys as follows: Contingency Fee — Attorneys shall receive a percentage of the gross recovery before the deduction of costs and expenses as follows: 30% if the claim is resolved prior to entry of judgment at trial; 35% if the claim is resolved after any appeal is filed. This fee shall be divided amongst Attorneys with no additional Attorneys' fee due from me. As used in this agreement "gross recovery" means principal, interest, penalties, litigation costs and expenses, statutory attorneys' fees, and all other amounts recovered or to be recovered, including the value of any structured settlement, future payments, remediation, or non -pecuniary benefits, whether by suit, settlement, judgment, or otherwise. It is understood and agreed that this employment is upon a contingency fee basis and, if no recovery is madc, Uwe will not be indebted to Attorneys for any sum whatsoever as Attorneys' Fees. 2. COSTS AND EXPENSES. In addition to paying Attorneys' Fees, in the event of a successful recovery, Uwe agree to pay all costs and expenses in connection with Attorneys' handling of this matter. Attorneys shall have the right and authority, without prior approval of Client, to incur such litigation costs and expenses as may be necessary and/or advisable in furtherance of Client's Claim. Uwe agree to bear responsibility for those litigation costs and expenses that will be reimbursed from my/our gross recovery. The full accounting of these costs and expenses shall be permanently available to me/us at the Fort Lauderdale, Florida, LAW Contingency Fee Agreement and Authority to Represent Page 2 of 6 OFFICES OF KRUPNICK CAMPBELL MALONE BUSER SLAMA HANCOCK LIBERMAN & MCKEE, P.A., and Uwe understand that a detailed summary of the same will be sent to me/us upon request, and Uwe hereby agree to reimburse Attorneys immediately upon receipt of any settlement funds or collected judgment. Litigation costs and expenses may include (but are not limited to) the following: filing fees; deposition costs; expert witness fees; transcript costs; witness fees; subpoena costs; sheriff and service of process fees; trial consultant fees; mock trial costs; shadow jury fees; mediation fees; court costs; trial exhibit costs; copy costs; photographic, electronic or digital evidence production; investigation fees; travel expenses; and any other case - specific expenses directly related to the representation undertaken. Additionally, Uwe specifically authorize Attorneys to charge as recoverable costs items such as computer legal research charges (e.g., Westlaw and/or Lexis); long distance telephone expenses; cellular telephone charges; postage charges; Federal Express, UPS, and other delivery service charges; internal photocopying at a rate of $ .25 per page; facsimile costs at a rate of $ .25 per page; mileage; and outside courier charges, all of which must be incurred solely for the purposes of the representation undertaken. Finally, I/we understand that I/we will not be charged costs and expenses for any overhead costs of Attorneys' practice, including office rent, utility costs, charges for local telephone service, office supplies, fixed asset expenses, and ordinary secretarial and staff services. 3. NO GUARANTEE. Uwe acknowledge that Attorneys have made no promise or guarantee regarding the outcome of my/our legal matter. In fact, Attorneys have advised metus that litigation in general is risky, can take a long time, can be very costly, and can be very frustrating. Uwe finther acknowledge that Attorneys shall have the right to cancel this agreement and withdraw from this matter if, in Attorneys' professional opinion, the matter does not have merit, Uwe do not have a reasonably good possibility of recovery, Uwe refuse to follow the recommendations of Attorneys, I/we fail to abide by the terms of this agreement, and/or if Attorneys' continued representation would result in a violation of the Rules of Professional Conduct, or at any other time as or if permitted under the Rules of Professional Conduct. No guarantee or representation has been made to Client as to what type or amount of recovery, if any, may be expected on Client's Claim. Uwe understand that Attorneys are not tax, bankruptcy, or estate legal experts; but if these services are requested or required by or on behalf of Client, and Attorneys agree to provide said supplemental legal services, then any resulting attorneys' fees and expenses will be in addition to the attorneys' fees and expenses set out hereinabove. Attorneys are given the right to withdraw from this representation after giving reasonable notice. 4. STATUTORY ATTORNEY'S FEES. In the event of recovery under the provisions of any laws which specify attomey;s fees to be paid, Attorneys are entitled to the whole of the statutory fee awarded regardless of whether there is an award of damages. The Attorneys shall be entitled to receive this court -awarded fee or the contingent percentage, whichever is greater. Contingency Fee Agreement and Authority to Represent Page 3 of 6 5. FLORIDA LAW. This contract shall be governed by Florida law. It contains the entire and complete understanding between the parties and can only be modified by written amendment signed by all parties. If any provision of this agreement is found to be inconsistent with the law of Florida, it will be deemed stricken and all remaining provisions will be deemed to be in full force and effect. 6. TERMINATION OF REPRESENTATION. Uwe understand that Uwe have the right to terminate the representation upon written notice to that effect. Uwe understand that Uwe will be responsible for any fees or costs incurred prior to the discharge or termination, based on all of the facts and circumstances deemed relevant by Florida statutory law and/or jurisprudence. Uwe agree to cooperate with Attorneys at all times and to comply with all reasonable requests of Attorneys. Uwe agree to keep Attorneys advised of my/our whereabouts at all times, and to provide Attorneys with any changes of address and/or phone number. Uwe warrant and represent to Attorneys that all information Uwe have provided to and/or will in the future provide to them in connection with this claim is true and correct to the best of my/our knowledge, information, and belief. The Attorneys are assuming the cost of all initial studies and investigation to determine whether Uwe have a viable claim for damages, and in the event it is determined that Uwe do not have such a viable claim for damages, no reimbursement for the initial studies and investigation will be made or due by melus to anyone. This agreement shall be binding on the heirs, successors, and assigns of the parties hereto. 7. ENTIRE AGREEMENT. Uwe have read this agreement, a copy of which Uwe have received, in its entirety and Uwe agree to and understand the terms and conditions set forth herein. Uwe acknowledge that there are no other terms or oral agreements existing between Attorneys and Client. This agreement may not be amended or modified in any way without the prior written consent of Attorneys and Client. 8. CANCELLATION OF CONTRACT BY CLIENT. I/we understand that Uwe may cancel this Contract within three (3) business days of the date Uwe sign, by written notification to my/our Attorneys, without incurring any obligation for Attorneys' fees or costs. 9. EXPLANATION TO CLIENT REGARDING POTENTIAL CONFLICTS AMONG CLIENTS. Attorneys have discussed with metus and Uwe understand that it is possible that because Attorneys are representing a common multiplicity of clients in a single matter, that there is a potential for conflicts of interest among various individual clients or groups of clients. Uwe understand that Attorneys represent multiple clients in this regard. Uwe freely and willingly enter into this contract knowing about the advantages and risks involved as a result of the common representation. Uwe understand that in participating in this manner, Uwe benefit from reduced and shared costs, and a potential greater ability of my/our Attorneys to have more influence in the outcome of the entire process, as a result of this common Contingency Fee Agreement and Authority to Represent Page 4 of 6 representation within which Uwe am/are a part. Uwe further acknowledge that in this matter, Attorneys will only represent additional clients whose interests are generally aligned with my/our interests, even though there may be some differences. This agreement is executed by metus, the undersigned Client, on this day of 92012. CLIENT: Printed Name: CLIENT: Printed Name: WITNESSES: Printed Name: WrMESSES: Printed Name: Monroe County, Florida The foregoing agreement is hereby accepted on this day of .2012. Attorney: Printed Name: For: Krupnick Campbell Malone Buser Slama Hancock Liberman & McKee, P.A. Attorney: Printed Name: For: Smith Stag, L.L.C. Attorney: Printed Name: For. Horan, Wallace & Higgins, LLP Contingency Fee Agreement and Authority to Represent Page 5 of 6 Gulf Oil Disaster Recovery Group Contingency Fee Agreement Exhibit "A" FirmiCompany CRY St ZIP Smith Stag, L.L.C. New Orleans LA 70130 Krupnick Campbell Malone Buser Slama Hancock Liberman & McKee, P.A. Ft. Lauderdale FL 33301 Contingency Fee Agreement and Authority to Represent Page 6 of 6 KRUPNICK CAIMPBELL MALONE BM SLAMA HANCOCK LIBERMAN a 1McKEE ROBERT J. McKEE Robert J. McKee was born in Washington, D.C., on February 21, 1957. He was raised in a career military family and experienced living in many areas of the United States. He grad- uated from the University of Florida summa cum laude in 1979 with a Bachelor of Science degree in Agricultural Science. Prior to commencing his legal career, Robert developed enterprises as a South Florida landscape contractor and nurseryman. Looking for new challenges, he entered law school at St. Thomas University School of Law. He graduated in 1992 with honors and was a member of the Law Review. In 1993 Robert became an associate with the firm, where his background in agricultural science was imme- diately utilized as he became integrally involved in the firm's representation of over 200 farmers against E.I. du Pont de Nemours and Company, Inc. in regard to its fungicide, Benlateo. Robert became a partner in 1998, and his name was added to the firm's name in 1999. Since commencing the practice of law, he has concen- trated his practice on complex product liability litigation, with an emphasis on the areas of chemical and microbial damage cases, taking full advantage of his prior science - based education and career. In addition to all Florida courts, Robert is admitted to practice before the United States District Court for the Southern District of Florida and the United States District Court for the Middle District of Florida. Robert specializes in toxic torts, agricultur- al, environmental, commercial, and complex product liability litigation. He has litigated international claims throughout much of Central America, South America, and the Caribbean on toxic exposure and contamination cases. Understanding the complex aspects of chemistry and biology and the strategic use of specialists in the various fields of science have enabled him to successfully bring claims for damages relating to crop damage, property damage, and personal injury from various chemicals and living organisms on behalf of individuals and governments. Robert is a mem- ber of the American Bar Association, The Florida Bar, and the Broward County Bar Association. He is also actively involved with the Academy of Florida Trial Lawyers, the Association of Trial Lawyers of America, and Broward County Trial Lawyers Association. He is a member of the Board of Trustees of St. Thomas University and is actively involved in The Brain Injury Association of Florida. He has consistently received an AV Rating from the Martindale -Hubbell Law Directory, the highest rating given by that publication. This peer review rating signifies that a lawyer has reached the pinnacle of professional excellence and is recognized for the highest levels of skill and integrity. LEAD COUNSEL: JACKSON, TIKES, HOOD & BRAKEFIELD LOCAL COUNSEL: RICHARD M. KLITENICK, ESQ. CONTINGENCY FEE AGREEMENT AND AUTHORITY TO REPRESENT I, (hereinafter "Client"), do hereby retain, authorize, and employ Jackson, Fikes, Gary A. Davis & Associates, Friedman, Leak, and Richard M. Klitenick, esq. (hereinafter "Attorneys"), to represent Client, regarding all claims and damages that may have been caused by the BP Oil spill in the Gulf of Mexico. TERMS OF REPRESENTATION 1. Client hereby retains, authorizes and employs Attorneys to represent and/or counsel Client with regard to any action, claim, suit, negotiation, settlement or proceeding arising from or regarding the aforementioned accident and injuries resulting therefrom. 2. Attorneys hereby accept said employment retainer, authorization for legal representation and employment upon the following terms: Attorneys promise to use their best efforts in said matter in carrying out said employment; Attorneys do not and cannot promise any particular result will be obtained due to their efforts in any litigation or proceedings and Client understands and agrees that no promise or inducement has been made by Attorneys in connection with this employment agreement. 3. Client agrees to pay compensation for Attorneys' services in the amount of 20% of any claim resolved through the Deepwater Horizon Court Supervised Settlement Program, or, in the event of settlement, verdict or judgment in the courts, the Complaint having been filed, and defendants having answered the Complaint without admitting liability, the fee will be: 25% of the gross amount of any recovery up to $2 million; plus 20% of any portion of the recovery exceeding $2 million. 4. If a verdict or judgment is rendered and a defendant takes an appeal from said verdict or judgment, Client agrees to pay Attorneys for their services on appeal, in an amount not to exceed an additional 5% of the amount of recovery. 5. Client agrees that Attorneys may associate other counsel, so long as such counsel is paid from same contingency fee stated herein. Attorneys agree that the division of fees will be in proportion to the services performed by each lawyer. 6. Attorneys agree to advance certain expenses incurred in the litigation, including, but not limited to, court filing fees, deposition expenses and fees, expert fees, long-distance phone calls, photocopies, and reasonable travel expenses. Said expenses will be reimbursed to Attorneys from the gross amount of any recovery for or on behalf of Client. 7. It is further agreed that this employment agreement is entered into upon a contingency -fee basis, and, if no recovery is made, Client will not be indebted to Attorneys for any fee. 8. In the event there is a recovery, upon the conclusion of the representation, Attorneys will prepare a closing statement reflecting an itemization of all costs and expenses, together with the amount of fee received by each participating lawyer or law firm. A copy of the closing statement shall be executed by all participating lawyers, as well as the client, and each shall receive a copy. Any contingent fee contract and closing statement shall be available for inspection at reasonable times by the client. 9. Florida law requires the Client to be provided with the attached Statement of Client's Rights for Contingency Fees. The undersigned Client has, before signing this contract, received and read the Statement of Rights and understands each of the rights set forth therein. The undersigned Client has signed the Statement of Rights and received a signed copy to refer to while being represented by the undersigned Attorneys. 10.T11is contract may be cancelled by written notification to the attorney at any time within 3 business days of the date the contract was signed, as shown below, and if cancelled the client shall not be obligated to pay any fees to the attorney for the work performed during that time. If the attorney has advanced funds to others in representation of the client, the attorney is entitled to be reimbursed for such amounts as the attorney has reasonably advanced on behalf of the client. Provided that, after the 3 business day 2 cancellation period, if the Contract is not cancelled, Client hereby gives the Attorneys a lien on and a security interest in any claim or cause of action or Proceeds therefrom, as security for the payment of all attorney fee amounts, including expenses of Attorneys, in the event of a recovery, either by way of settlement, verdict or judgment. Dated this day of 2012. Client: Signature Print Name: Signature Print Name: Address: Telephone: Email: EDDIE JACKSON'S PROFILE ED ARD R. JACKSON Eddie Jackson has practiced law for 32 years in Jasper, Alabama. He started with Tweedy, Jackson & Beech, which has become Jackson, Fikes, Hood & Brakefield. Eddie Jackson provides mediation services for the firm. He is an Alabama State Court mediator certified by the Alabama Center for Dispute Resolution. Please contact Mr. Jackson or his legal assistant, Annetta Waldrop, to schedule your case for mediation. PRACTICE Eddie's practice has been devoted to civil and criminal litigation. He has tried a broad variety of cases including pollution, products liability, medical malpractice -wrongful death, medical malpractice -serious injury, fraud, breach of contract, negligence, wantonness, wrongful death involving trucking and other vehicular accidents, blasting, condemnation, nuisance, trespass, capital murder, murder, rape, kidnaping, robbery and drug trafficking. He has tried well over 200 civil and criminal cases to a conclusion, for both the plaintiff and defendant in state and federal courts, in local and out of state venues, with over 60 jury trials. He has been involved in numerous class actions involving credit and financing issues. RECENT HIGHLIGHTS • He is currently representing Austin Powder Company, as a defendant, In a mass torts case In Jefferson County involving approximately 300 plaintiffs in four separate suits and has represented plaintiffs in mass tort actions in Alabama, Oklahoma and Georgia. a As trial co -counsel, he helped obtain a $20,000,000.00+ verdict in Federal Court in a pollution/trespass/nuisance case in favor of residents and business owners and the City of Columbus, Georgia against a foreign corporation across the river in Phenix City, Alabama. Action Marine, Inc., et al v. Continental Carbon, Inc., et al, CV-01-T-994-E, In the United States District Court for the Middle District of Alabama, Eastern Division. • As trial co -counsel, he helped obtain a $22,000,000.00+ verdict in a fraud and breach of contract case Involving an Alabama coal company against an electric power company in Tampa, Florida. (This case was settled on appeal for a confidential amount). Laguna Resources, Inc., et al v. Seminole Electric Cooperative, et al, CV-98-561, Walker County, Alabama. • As co -counsel, he recently settled a case for the plaintiff, Cherokee Nitrogen Company, against Dynegy, Inc. involving fraud and breach of contract from the setting of natural gas prices which were a primary component of Cherokee Nitrogen's manufacturing business. This case was settled for an undisclosed confidential amount. Nelson Brothers, et al v. Dynegy Marketing & Trade, et al, CV-03-142, Colbert County, Alabama. 9 He acted as trial co -counsel for Southwest Royalties, Inc. against Chevron, Inc. which resulted in a settlement after three days of trial. Allegations in that case were that Chevron was converting, to its own use, coal bed methane gas belonging to Southwest Royalties. This case was settled for an undisclosed confidential amount. Nelson Brothers Management Services, Inc., et al vs. Chevron USA, Inc., et al, CV-03-028, Fayette County, Alabama. • He was co -counsel for John Crump Toyota against General Motors Corporation AMG (Hummer) in a breach of contract/fraud claim in which Hummer and General Motors attempted to restrict dealer territory of John Crump Toyota which had a Hummer franchise. This case was settled for an undisclosed confidential amount. John Crump Automotive, Inc., et al v. American General Corporation, et al, CV-02-134, Walker County, Alabama. • He represented the plaintiff, Wade "Foots" Gibson against Joy Manufacturing in an underground mine explosion case where Mr. Gibson received second and third degree burns over 70% of his body. Wade Gibson, et al v. Joy Technologies, Inc., et al, CV-95-554, Tuscaloosa County, Alabama. • Acted as co -counsel in obtaining a defense verdict in a wrongful death trucking accident case where a passenger in an eighteen wheel truck, allegedly exceeding the speed limit under dangerous conditions (wet road, rainy, stormy weather), lost control, went out of its lane of travel striking another eighteen wheel truck. The plaintiffs' vehicle burst into flames. The plaintiff passenger and the eighteen wheel truck that lost control burned in the accident. Lisa Dixon, et al v. Hot Shot Express, Inc., et al, CV-03-191, Walker County, Alabama. • Obtained a defense verdict in a medical malpractice case in which the plaintiff suffered a stomach rupture after a stomach stapling. Merchant vs. Dr. Bang McKeman, Walker County, Alabama. • As co -counsel, he recently settled cases in Ponca City, Oklahoma and Phenix City, Alabama involving claims of pollution where he represented the City of Ponca City, businesses and homeowners there and homeowners and businesses in Phenix City and Columbus, Georgia. Both cases were settled. City of Ponca City, Oklahoma, et al v. Continental Carbon Company, et al, In the District Court for State of Oklahoma, CJ-2005-16PC and Charles Riley, et al v. Continental Carbon, et al, CV-04-182, Circuit Court of Russell County. • In his criminal jury trials, he has successfully defended capital murder, murder, rape and kidnapping HONORS AND AWARDS • Fellow of the American College of Trial Lawyers. • Member of the American Board of Trial Advocates. • Member of the Alabama Defense Lawyers Association. • He has been named among the Best Lawyers in Alabama for the past two years in personal injury and commercial litigation. • He has been named a Super Lawyer in Alabama in 2007. * He has been selected for the 2010 edition of The Best Lawyers in America in the specialities of Bet -the -Company Litigation, Commercial Litigation and Personal Injury Litigation. EDUCATION • B.S., University of Alabama, (1973). • J.D., Cumberland Law School (1976). PRACTICE AREAS • Medical malpractice • Commercial litigation • Criminal law • Fraud • Personal injury • Environmental • Product liability COURTS • All Alabama State Courts • United States Supreme Court • United States Court of Appeals, I Ith Circuit. • United States District Court, Northern District of Alabama. • United States District Court, Middle District of Alabama. COMMUNITY INVOLVEMENT • Board of Directors of First National Bank of Jasper Alabama. • Board of Directors of the Boy Scouts of America Black Warrior Council. • Board of Directors of Walker Area Community Foundation. • Board of Directors of Walker College Foundation. • Board of Directors of Equines Assisting Special Individuals (EASI). Jackson, Flkes, Hood & Brakefleld - 1816 Third Avenue Suite 200, Jasper, AL 35501 Mailing address: P.O. Box 748, Jasper, AL 35502 - Phone: (205) 387-2171 - Fax: (205) 387-2174 The following language Is required pursuant to Rule 7.2 of the Alabama Rules of Professional Conduct: No representation Is made that the quality of legal services to be performed Is greater than the quality of legal services performed by other lawyers. -Jeffrey E. Friedman of Friedman, Leak, Dazzio, Zulanas & Bowling, P.C. Page 1 of 1 JEWIFY E. kt tf }4 'dI W. Fdedman's dlveree legal pntaaics Is primarily titigetion ddvan. As a defense attorney In venous dwti ma e s Mr. Friedman has rapinsom a wide amity of oorporate and professional Interests. Mr. Friedman dorm Ume Mended the Governor of Alabama In a dvti IawsuiL In another cis Mr. Friedman defended a ns& atftine In the worst air ttisesta In the hbbxy of this state. He has Udga sd a number of can Inducting personal Injury, profesabnal liability. employment Product Nobility and fraud cam In ad 011, to an ac#ve defense practice, Mr. Friadmise has reproaarded municipal Eicniammarts and businesses as ptehill Since the huxpll m of We firm, Mr. Frlsdmarn hes cbta(ned substantial settlements and judgmaNn In favor of our agents and mhos was reoopalaed by The Nallonal Law Journal In the top 1 W ventilate In Amato (2001 and 200Q. Mr. Friedman Is a frequent speaker at client sa roes and professional ongodMtIMn0. He has apokar and authored afflictss for the Intonational Sad" of 80cal as Fnohmers. Mr. Friedman hi also bdnred for The Alahsms Bar Institute and Cumberland Schod of Law continuing legal educoum programs. In addition to professional tans Mr. Fdadmat and the lawyers of Friedman. Leek put an frequent seminess for our dintsespad of our ottg h atlorasy-dbrd Another sea of Mr. Fdedmad'e practice Includes a mmrtdbnad to advise and counsel la ngdarviling firm daft In various legal negotiations, madlellans, and arbitrations. Mr. Friedman In admitted to pradim In ail state and fsdsrd rl,tate as well as the United Stales Eleventh Chadt of Appeals aid the Lkftd States Supreme Court. Mr. Fdecinsn has Rolled In ova tMrty ooudles In the state of Alabamta and has been ad IN i i on a pm hoe via* bads, to Offieft In the states of George. Oldehome and Tannissw Mr. Friedman holds an"rating by MarOnitds4habbaN Wilds Is the flighted rating for an atlarmay bestowed by that ow ntrallam < Basic To Attorneys Lit jhle�nan®Medrnalleakottm DaMdoad vCard 20&M7010 AfIIAS OF PRACTICE CIvO Litigailon Eluain fug Disputes PrrfinIt, rnal Liability sleeting a Fnloelvss Litigation �,YATE 4AR ,,OMISSIONS Alabama f DUCATION J.D., Cumberland Schaal of law, Samford Urdvaraft BJi, University ef Ter Jeffrey E. Friedman Wild supedawyars cam In accordance with Alabama State Bar requirements no representation as made that the quality or the lapel services to be Performed Is greater than the quality of legal se aces Performed by other lawyers -_'� 2010 Friedman Leak Damo, Zulanas & Bowing, P C http://fiiedmanleak.com/attomeys/JefErey_j_Friedman.html 5/23/2012 BACKGROUND INFORMATION STATE OF FLORIDA GOVERNMENT CLAIMS PAID* AS OF APRIL 1, 2012 This Hsi of government claim payments excludes response and removal advances, other advances, settlements and any contributions made to the state or to local government enthIes. County Applicant Name Claim Type Tote) Bay Bay County Florida Response or Removal Costs 3,797,673.94 Loss of Revenue 2,612,145.00 5,410,018.94 Bay Medical Center Loss of Revenue $1,418,188.00 Panama City Beach Loss of Revenue 1,220,000.00 Bay Total 3!8� Broward City of Fort Lauderdale Response or Removal Costs 70 020.30- Broward Total Brevard City of Cocoa Beach Response or Removal Costs 4,268.88 Brenwrd Totel Charlotte Charlotte County Government Increased Pubic Service Costs 21,160.00 Response or Removel Costs 5,135.93 Charlotte Total 27' Collier City of Marco Island Response or Removal Costs 28,0W.54 City of Naples Response or Removal Costs 20,013.67 Collier Tofel ___ Dixie Dbde County Board Of County CommisBlonars Response or Removal Costs 10,88221 Dlnde Total 10,8lilgl 2't Fscambia City of Pensacola Increased Public Service Costs 30,527.08 Response or Removal Costs 84,223.83 94,750.69 Escambla County Increased Public Service Costs 74,923.00 Response or Removal Costs 5,899,639.93 Loan of Revenue 1,841,171.00 8,615,733.93 Escembla County School District tAss of Revenue 383,282.00 Fscambla County Sheriff Office Increased Public Service Casts 95,156.96 Santa Rosa Island Authority Response or Removal Costs 96,551.56 Loss of Revenue 420,109.00 516,670.58 University of West Florida Response or Removal Casts 177,172.56 Loss of Revenue 838.50 177,809.06 Eacembla Total 1 " Franklin Apalachicola Riverkeepere Response or Removal Costs 32,117.40 City of Apalachicola Increased Public Service Costs 25,850.00 Response or Removal Costs 103,832.57 129,882.57 Franklin County Emergency Mgmt Response or Removal Costs $ 1,927,092.03 t"rernidin Total"' Gadsden NW Florida Water Management District Response or Removal Costs 104,225.95 Gadsden Total Gulf City of Port St Joe Loss of Revenue 319,959.00 Gulf County (Friends of St. Joe Bay Preserves) Response or Removal Costs 20.899.45 Gulf County (TDC) Loss of Revenue 130,796.00 Gulf County Board of County Commission Response or Removal Costs 147,326.59 Gulf County Emergency Management Response or Removal Costs 158,11024 Gulf Total $ 777,Q8128 Hernando Hernando County Board of County Commissianers Response or Removal Casts 10,739.20 Southwest Florida Water Management District Response or Removal Costs 10,996.01 Hernando Total 21.73521 STATE OF FLORIDA GOVERNMENT CLAIMS PAID* AS OF APRIL 1, 2012 This list of government calm payments w dudes response and removal advances, other advances, settlements and any contrlbuttons made to the state or to local government entRleL County Applicant Name Claim Type Total Lee City of Sanibel Response or Removal Costs $ 34.126.39 Lee County Board of County Commissioners Response or Removal Costs 4.516,73 Lee Total 9 549,12 Manatee Longboat Key Response or Removal Costs 15,914.49 Manatee County Response or Removal Costs 43,41Z77 Manatee Total Mlaml-Dade County Miaml-Dade County Response or Removal Costs 28.063.90 Mlaml-Dade County Total go Monroe Gty of Key West Response or Removal Costs 35.904.68 City of Marathon Response or Removal Costs 16,001.18 Monroe County Response or Removal Costs 27,169.10 Monroe Total Okaloosa City of Destin Response or Removal Costs 45,405.70 Gty of Fort Walton Beach Response or Removal Costs 3,843.86 Lose of Revenue 148,569.00 City of Mary Esther Response or Removal Costs 253.05 Loss of Revenue 10.026.00 Mid Bay Bridge Authority Loss of Revenue 407,094.00 Okaioose County EMS Response or Removal Casts 347.427.00 Okalcosa County School Board Response or Removal Costs 28,820.00 Okalcosa County, DPS Response or Removal Costs 1,262,915.71 Okaloosa County, TDC Loss of Revenue 1,567.=00 Okaloosa Water a Sewer Department lass of Revenue 110,301.00 Okeloose Total Pinellas Pinellas County Response or Removal Costs 172 913.51 Pinellas Total 21 1 Santa Rosa City of Gulf Breeze increased Public Service Costs 5,934.50 Response or Removal Costs 337,774.87 343,709.37 Santa Rosa County Loss of Revenue 191.007.00 Response or Removal Costs 403,216.18 Santa Rose Totem 594,223.is Sarasota Sarasota County Response or Removal Costs 2? 924.07 Sarasota Total St. Lucie City of Port St Lucie Increased Public Service Costs 7660.13 SL Luole Total Wakulla Wakulla County Response or Removal Casts 9,977.96 Wakulla Cty Sheriff's Office Response or Removal Costs 50,431.32 Wakults Total 6 Walton South Walton Fire District Response or Removal Costs 988,844.19 Walton County Response or Removal Costs 1,770,207.88 Walton County Sheriff Response or Removal Costs 174,133.19 Walton County Tourist Development Council Increased Pudic Service Costs 2,77Z92 Lou of Revenue 2,419,257.W Response or Removal Costa 9,360.00 Wagon Total ,9' 18 State Florida State University Response or Removal Costs 109,396.08 State Response Reimbursements Through USCG Response or Removal Costs 47,400.00 State Total S I5 ,79 Gram! Total � 1 - ' Includes claims that have been sent to the Trust for Payment ADDITIONAL BACKGROUND MATERIAL Deepwater Horizon Page 1 of 20 • English • En Espanol • Bang Tieng Viet DEEPWATER HORIZON CLAIMS CENTER ECONOMIC & PROPERTY DAMAGE CLAIMS AWL 2179 In re: Oil Spill by the OR Rig "Deepwater Horizon" in Gulf of Mexico on April 20, 2010 — Official Court -Authorized Website. • home • Alerts • FAOs • Claim Forms • Maps • Court Documents • Contact Us • GoTo Medical Settlement Website Frequently Asked Questions *These Frequently Asked Questions and Answers (FAQs) were prepared by the Parties and the Claims Administrator to assist claimants who might submit claims to the Court Supervised Settlement Program. The information contained in these FAQs is based on the Amended Settlement Agreement, which was granted Preliminary Approval on May 2, 2012. However, these FAQs are not a substitute for and do not constitute the official Class Notice, and they are not approved by the Court. Any term or information in these FAQs that is found in the Amended Settlement Agreement will have the meaning set forth in the Settlement Agreement. If there is any conflict between these FAQs and the Amended Settlement Agreement, the Amended Settlement Agreement controls. http://www.deepwaterhorizoneconomicsettlement.com/faq.php 6/4/2012 Deepwater Horizon Page 2 of 20 INCLUDED1. GENERAL INFORMATION 11. WHO IS I 11. OPTING OUT OF THE SETTLEMENT IV. OBJECTING TO THE SETTLEMENT V. SUMMARY OF TVF�'iFT�Tf-F�-Ell—CA,I&ILEALMJ I. GENERAL INFORMATION 1. What is the Economic and Property Damages Settlement? This Settlement resolves certain economic loss and property damage claims related to the Deepwater Horizon Incident, including claims for: • Seafood Compensation • Business Economic Loss • Individual Economic Loss • boss of Subsistence • Vessel Physical Damage • VoO Charter Payment • Coastal Real Property Damage • Wetlands Real Property Damage • Real Property Sales I:oss As part of the Settlement, a Court -Supervised Settlement Program has been established to review and pay qualified claims made by individuals and businesses that are members of the Economic Class and affected by the Deepwater Horizon Incident. Cl.ick,here to view the full text of the Economic and Property Damages Settlement Agreement. 2. Why is there a Settlement? In August 2010, all of the lawsuits against BP and the other defendants concerning the Deepwater Horizon Incident were consolidated before one Court, in litigation called In re Oil Spill by the Oil Rig "Deepwater Horizon" in the Gtdf of Mexico on Apri120, 2010 (MDL 2179). Enormous amounts of time and effort were spent by all parties as the litigation moved towards trial, which was set to begin on February 27, 2012. At the same time as they prepared for trial, the Plaintiffs' Steering Committee and BP also began settlement negotiations, because both sides recognized that a trial would be costly and risky. After over a year of continuous negotiations, the Plaintiffs' Steering Committee and BP reached agreement on the Economic and Property Damages Settlement. http://www.deepwaterhorizoneconomicsettlement.com/faq.php 6/4/2012 Deepwater Horizon Page 3 of 20 Both the Plaintiffs' Steering Committee and BP think the Settlement Agreement is fair and in the best interests of the Plaintiffs, all those in the Economic and Property Damages Class, and BP. 3. How much is the Settlement for? There is no limit on the total dollar amount of the Settlement, but BP will pay no more than $2.3 billion to compensate qualified claimants who are in the Seafood Compensation Program. While BP has estimated that the total costs of the Settlement will be approximately $7.8 billion, there is no limit on the total amount of the Settlement (with the exception of the Seafood Compensation Program). The actual total amount paid out will depend on the number of qualified claims made, and could be higher or lower than BP's estimate. 4. What happened to the $20 billion BP set aside in August 2010 to pay for damage caused by the Deepwater Horizon Incident? The funds remaining in the $20 billion Deepwater Horizon Oil Spill Trust that BP set up after the Deepwater Horizon Incident will be used to pay qualified claims made under this Settlement. However, the total Settlement amount is not limited to the remaining funds in the Trust. With the exception of claims in the Seafood Compensation Program, BP is required to fully fund the Settlement no matter the ultimate cost - even if the cost exceeds the funds remaining in the Trust. 5. What is the current status of the Settlement? On May 2, 2012, the Court granted preliminary approval of the Economic Class and the Settlement. The litigation and trial have been stayed while the Court considers whether to grant final approval of the Settlement. A new trial date has been set for January 14, 2013. 6. When will the Fairness Hearing take place? The Fairness Hearing will take place on November 8, 2012 at 8:30am in Courtroom C-268 at the United States District Court for the Eastern District of Louisiana, 500 Poydras Street, New Orleans, Louisiana 70130. At this hearing, the Court will consider whether the Settlement Agreement is fair, reasonable, and adequate. After the hearing, the Court will decide whether to approve the Settlement Agreement. If final approval is granted, the Court will issue a Final Order and Judgment, which will dismiss the claims against BP that are resolved by the Settlement and release BP from liability for the claims resolved by the Settlement. Economic Class Counsel will be present at the hearing on behalf of the Economic Class, in support of the Settlement Agreement. You are also welcome to attend the hearing at your own expense, but you are not required to attend. You may also hire your own lawyer to attend, at your expense, but you are not required to do so. If you filed an objection to the Settlement Agreement and choose to attend the Fairness Hearing, you can ask the Court to allow you to speak at the hearing. For FAQs related to your right to file objections and the procedure for doing so, click here. (back to top) II. WHO IS INCLUDED IN THE SETTLEMENT? http://www.deepwaterhorizoneconomicsettlement.com/faq.php 6/4/2012 Deepwater Horizon Page 4 of 20 7. What is a class action settlement? In a class action, a court appoints representative plaintiffs (called "class representatives") to represent a group (or "class") of others who have claims similar to the class representatives' claims. Then that court resolves the issues for the class representatives and all the class members, except for those who choose to exclude themselves from the class. The Economic and Property Damages Settlement is a class action settlement. Here, the class representatives are the individuals and businesses named as plaintiffs in the Class Action Complaint. These "Economic Class Representatives" represent a larger group of individuals and businesses with similar claims (the "Economic Class"). Those who meet the class definition are called the Economic Class Members. This Settlement resolves the claims made against BP by the Economic Class in the Class Action Complaint. Click here to see the full text of the Class Action Complaint. 8. How do I know if I am included in the Settlement? Only Economic Class Members are included in the Settlement. The Economic Class includes Individuals, businesses, and other Entities. You can answer the series of questions below to see if you may be an Economic Class Member. The first set of questions is for Individuals and the second set of questions is for businesses and other Entities. This table and questions are just a summary and whether or not you are included in the Settlement Agreement is ultimately determined by the terms of the Settlement Agreement. Click here for the full text of the Economic and Property Damage Class Definition from the Settlement Agreement. Questions for Individuals Do you live in the U.S.? At any time between April 20, 2010 and April 16, 2012, did you: - live in the Gulf Coast Areas - work in the Gulf Coast Areas or Specified Gulf Waters - get offered and accepted work in the Gulf Coast Areas or Specified Gulf Waters - own or lease property in the Gulf Coast Areas - own, lease, or work on a vessel harbored or home -ported in the Gulf Coast Areas or Specified Gulf Waters X N Did you work on a vessel in Specified Gulf Waters that landed Seafood in the Gulf Coast Areas after April 20, 2009? Yes No You are Continue not an to next Economic question. Class Member. You are Continue not an to next Economic question. Class Member. http://www.deepwaterhorizoneconomicsettlement.com/faq.php 6/4/2012 Deepwater Horizon Page 5 of 20 Do you have any economic loss arising out of the Deepwater Horizon Incident? Continue You are to next not an OR question. Economic Class Was your real or personal property damaged as a result of the Deepwater Member. Horizon Incident? Do your claims for economic loss or property damage meet the descriptions of one or more of these categories: (1) Seafood Compensation Program (2) Economic Damage (3) Loss of Subsistence (4) Vessels of Opportunity ("VOO") Charter Payment (5) Vessel Physical Damage (6) Coastal Real Property Damage (7) Wetlands Real Property Damage (8) Real Property Sales Damage Questions for Businesses and Other Entities You may You are be an not an Economic Economic Class Class Member. Member. Yes No (1) Did your business or Entity own, operate, or lease a physical Continue to You are not an facility or vessel in the Gulf Coast Areas or Specified Gulf Waters next question. Economic between April 20, 2010 and April 16, 2012, and Class Member. Sell products in the Gulf Coast Areas or Specified Gulf Waters: (a) directly to Consumers or End Users of those products; or (b) to another Entity that sold those products to Consumers or End Users of those products? OR Regularly purchase Seafood harvested from Specified Gulf Waters in order to produce goods for resale? OR (2) Was your business or Entity a service business with one or more full-time employees (including owner -operators) who performed full-time services while physically present in the Gulf Coast Areas or Specified Gulf Waters between April 20, 2010 and April 16, 2012? OR (3) Did your business or Entity own, operate, or lease a vessel that (a) was Home Ported in the Gulf Coast Areas at any time from http://www.deepwaterhorizoneconomicsettlement.com/faq.php 6/4/2012 Deepwater Horizon Page 6 of 20 April 20, 2010 to April 16, 2012, or (b) landed Seafood in the Gulf Coast Areas at any time from April 20, 2009 to April 16, 2012? •; (4) Did your business or Entity own or lease real property in the Gulf Coast Areas between April 20, 2010 and April 16, 2012? Do your business's or Entity's claims for economic loss or property damage meet the descriptions one or more of these categories: (1) Seafood Compensation Program (1) Economic Damage (1) Vessels of Opportunity ("VOO") Charter Payment (1) Vessel Physical Damage (1) Coastal Real Property Damage (1) Wetlands Real Property Damage (1) Real Property Sales Damage 9. What are the different zones and maps for? You may be an You are not an Economic Economic Class Member. Class Member. The zone maps serve several purposes. First, the map of the Gulf Coast Areas and the Specified Gulf Waters show whether you or your business could be a member of the Economic Class. Second, for certain Claims, the location of your property is a factor in determining the Settlement Payment you may be entitled to. For example, to be eligible to make Coastal Real Property Damage Claims, Real Property Sales Damage Claims, and Wetlands Real Property Damage Claims, your property must be located in the applicable Zone. Further, for Coastal Real Property Damage Claims and Wetlands Real Property Damage Claims, whether oil was found near your property is also relevant to the calculation of your Settlement Payment. The various zone maps can be viewed by clicking on the links below: • Gulf Coast Areas • Specified Gulf Waters • economic Loss /one Map • Coastal Real Property Claim Zone Map • Real Property Sales Compensation Zone Map • Wetlands Real Property Claim Zone Map 10. What if I am an Employee of an Entity in the Oil and Gas, Gaming, Banking Insurance, Funds, Defense Contractors, or Developers Industries, or of an Entity selling or marketing BP - branded fuel, and I have a claim that is unrelated to my work there? For example, what if I have a loss related to another job or have damage to my property? If you are an Economic Class Member, you may submit Claims for any losses unrelated to your employment in the excluded industries, if those Claims are not otherwise excluded. For example, you could submit a Claim for losses from your other job or a Claim for damage to your property, both of http://www.deepwaterhorizoneconomicsettlement.com/faq.php 6/4/2012 Deepwater Horizon Page 7 of 20 which would be processed and evaluated under the terms of the Settlement Agreement. You may also pursue other recovery permitted by the Settlement Agreement. However, you could not pursue a loss incurred as a result of the drilling shutdown (Moratoria Losses) because that is an excluded claim. 11. What if I am an Individual/Employee who works in Support Services to Oil and Gas Industry? Can I make any Claims in the Settlement Program? You may submit Claims for Economic Damage incurred as a result of your employment in a Support Services to Oil and Gas Industry for a non -moratoria business interruption and a non oil and gas industry economic damages due to the Deepwater Horizon Incident. You may also submit Claims for other losses unrelated to your employment in the support service, if that loss makes you a member of the Economic Class and the claims are not otherwise excluded. You may also pursue other recovery permitted by the Settlement Agreement. You may not submit claims for Moratoria Losses. The definition of Support Services to Oil and Gas can be found by clicking here. 12. What if I am a Business/Employer in the Oil and Gas Industry? You are excluded from the Economic Class. 13. What if I am a Business/Employer in Support Services to Oil and Gas Industry? You may submit Claims for non -moratoria business interruption and non oil and gas industry economic damages due to the Deepwater Horizon Incident. You may also pursue other recovery permitted by the Settlement Agreement. You may not submit claims for Moratoria Losses. 14. Are any Claims Excluded from the Settlement Agreement? Yes. There are certain claims that are not recognized or released under the Settlement Agreement. They are considered "Expressly Reserved" to the Economic Class Members. These Expressly Reserved Claims are: • Bodily Injury Claims • Claims by BP shareholders in any derivative action or direct action solely in their capacity as a BP shareholder • Moratoria Loss Claims • Claims relating to menhaden (or "pogy") fishing, processing, selling, catching, or harvesting • Claims for economic damage suffered by entities or employees (to the extent they allege economic damage based on their employment by such entity during the class period) in the Banking, Gaming, Financial, Insurance, Oil and Gas, Real Estate Development, Defense Contractor Industries, and entities selling or marketing BP -branded fuel (including jobbers and branded dealers) • Claims of the Economic Class for punitive damages against Halliburton and Transocean • AtiSlgn�;d Claims of the Economic Class You may still pursue these claims and remain an Economic Class Member without Opting Out. Assigned Claims will be pursued by the Economic Class on your behalf, but you cannot pursue them individually. Some bodily injury claims may be made under the Medical Benefits Class Action Settlement. http://www.deepwaterhorizoneconomicsettlement.com/faq.php 6/4/2012 Deepwater Horizon Page 8 of 20 15. Can I make a Claim for bodily or physical injury? No. The Settlement Agreement does not apply to claims for bodily or physical injury arising from the Deepwater Horizon Incident. If you only have a physical injury claim, you will not be considered a member of the Economic Class. However, some claims for bodily or physical injury can be made under the Medical Benefits Class Action Settlement. You can access the website related to that settlement by clicki here. 16. Can I make a claim for commercial menhaden (or "pogy") fishing, processing, catching or harvesting? Im 17. Can I make a claim based on losses incurred as a result of the government's shutdown of drilling activities after the Deepwater Horizon Incident? No. Moratoria Losses, which is any loss caused by or resulting from federal regulatory action or inaction directed at offshore oil industry activity that occurred after May 28, 2010, including the federal moratoria on offshore permitting and drilling activities imposed on May 28, 2010 and July 12, 2010 and new or revised safety rules, regulations, inspections and permitting activities, are excluded. 18. If I am a BP shareholder and want to file a derivative action, is that action covered by the Settlement Agreement? No. 19. Can I make a claim for economic damage if I am an entity or employee in the Banking, Gaming, Financial, Insurance, Oil and Gas, Real Estate Development and Defense Contractor Industries or my business sells or markets BP -branded fuel? No. However, if you are an individual, you could submit a claim for economic damage if it is unrelated to your employment in these industries. (back to top) III. OPTING OUT OF THE SETTLEMENT 20. If I qualify as an Economic Class Member, am I required to participate in the Settlement? No. If you do not want to participate in this Settlement you have the right to Opt Out (i.e., exclude yourself from the Economic Class). The Economic Class Action Settlement Notice provides instructions regarding the procedures that must be followed to Opt Out of the Economic Class. To validly exclude yourself from the Economic Class, you must submit a written request stating "I wish to be excluded from the Economic and Property Damages Class." The request must include your printed name, address and phone number and must be postmarked no later than October 1, 2012. The written request must be signed by the Natural Person or Entity seeking to exclude himself, herself or itself from the Economic Class, even if they are represented by an attorney. Electronic signatures will not be accepted. The request should be mailed to: http://www.deepwaterhorizoneconomicsettlement.com/faq.php 6/4/2012 Deepwater Horizon Page 9 of 20 Deepwater Horizon Court -Supervised Settlement Program Exclusions Department P.O. Box 222 Hammond, LA 70404-0222 21. If I do not qualify as an Economic Class Member, am I required to Opt Out? No. 22. If I have more than one claim for damages, can I Opt Out for some, but not all of those claims? No. An Economic Class Member cannot Opt Out of the Economic Class for some claims and seek settlement benefits for others. If you exercise your right to Opt Out, you Opt Out for all Claims you may have under the Settlement. For example, an Economic Class Member who has a Claim for Coastal Real Property Damage and a Claim for Economic Damage and Opts Out of the Economic Class will not have the right to submit either Claim to the Settlement Program. 23. What if I have an Expressly Reserved Claim and a Claim that is covered by the Settlement Agreement? You may pursue your Expressly Reserved Claim and your Economic Class Claim. You are not required to Opt Out of the Economic Class in order to pursue your Expressly Reserved Claim. In this situation, you would pursue your Economic Class Claim in the Settlement Program and your Expressly Reserved Claim outside of the Settlement Program. Click here to be directed to the FAQs describing the Expressly Reserved Claims. For example, an Economic Class Member who possesses a Claim for Economic Damage and has a claim for Moratoria Losses can either: a) Opt Out of the Economic Class and pursue both claims outside of the Settlement, or b) stay in the Economic Class and pursue the Claim for Economic Damage (under the Settlement Agreement) and the claim for Moratoria Losses (outside of the terms of the Settlement Agreement). 24. What happens if I opted out, but now I have changed my mind and want to participate in the Settlement? Any Economic Class Member may revoke his, her, or its decision to Opt Out of the Economic Class by mailing a letter explaining the intent to revoke to the following address: Deepwater Horizon Court -Supervised Settlement Program Exclusions Department P.O. Box 222 Hammond, LA 70404-0222 The letter must be signed by the Natural Person or Entity who signed the Opt Out letter. A lawyer cannot sign the revocation letter and it cannot be signed or submitted electronically. The letter must be properly addressed and postmarked no later than November 5, 2012. http://www.deepwaterhorizoneconomicsettlement.com/faq.php 6/4/2012 Deepwater Horizon Page 10 of 20 You may revoke your Opt Out after the deadline only if BP provides consent to such a revocation in its sole and unilateral discretion, or if the Court orders there is good cause for the revocation. 25. What happens if I don't file a Claim and I do not Opt Out of the Economic Class? If you are an Economic Class Member and do nothing, you will not get a payment from this settlement. And, unless you Opt Out, you will not be able to start a lawsuit, continue with a lawsuit, or be part of any other lawsuit against BP or the Released Parties about the claims being released by the Economic and Property Damages Settlement. However, even if you take no action, you will keep your right to sue BP or any of the Released Parties for any other claims not resolved by the Settlement. See FAQ 14 for more information on these Expressly Reserved Claims. 26. If I'm an Economic Class Member and I Opt Out, may I sue BP or file a claim with the federal Oil Spill Liability Trust Fund? Yes, provided you do so in a timely manner. If you have not previously filed a claim with BP or the GCCF, Section 2713 of the Oil Pollution Act ("OPA") may require you to first present your claim to the BP OPA Facility before you can file a lawsuit against BP or a claim with the federal Oil Spill Liability Trust Fund. For more information about how to file an OPA claim with BP visit www.hl2.com/claims or call 1-855-687-2631. For more information about how to file a claim with the federal Oil Spill Liability Trust Fund, visit http://www.tiscg-.mil/npfc/Claiins/defau!LqM. If you choose to file with the Federal Oil Spill Liability Trust Fund instead of filing suit, you must strictly comply with the Federal Regulations pertaining to such. 27. If I am not an Economic Class Member, can I still sue BP for alleged damages arising out of the Deepwater Horizon incident or file a claim with the federal Oil Spill Liability Trust Fund? Yes, provided you do so in a timely manner. If you have not previously filed a claim with BP or the GCCF, Section 2713 of the Oil Pollution Act ("OPA") may require you to first present your claim to the BP OPA Facility before you can file a lawsuit against BP or a claim with the federal Oil Spill Liability Trust Fund. For more information about how to file an OPA claim with BP visit www.bp.com/claims or call 1-855-687-2631. For more information about how to file a claim with the federal Oil Spill Liability Trust Fund, visit littp://www.uscfy.in If you choose to file with the Federal Oil Spill Liability Trust Fund instead of filing suit, you must strictly comply with the Federal Regulations pertaining to such. 28. If I am an Economic Class Member, how do I know whether I should make a Claim with the Settlement Program or with the new BP OPA Facility? We cannot advise you as to how you should proceed with this decision. However, if you are an Economic Class Member and you accept a payment from the Settlement Program, you cannot file a Claim with the BP OPA Facility for the same damages or for any Released Claims. For further assistance with this question, you can contact Lead Class Counsel and Economic Class Counsel by e- mail at 5ettlemcntQuestiotisiti.+mdl2179p5c corn or by telephone at 1-855-359-2327. (back to tool IV. OBJECTING TO THE SETTLEMENT http://www.deepwaterhorizoneconomicsettlement.com/faq.php 6/4/2012 Deepwater Horizon Page 11 of 20 29. What if I do not like the terms of the Settlement? Only an Economic Class Member can object to the Settlement. If you are an Economic Class Member, you can object to the Settlement if you do not like all or some part of it. To object, send a letter explaining your objection to the proposed Economic and Property Damages Settlement in In re: Oil Spill by the Oil Rig "Deepwater Horizon" in the Gulf of Mexico on April 20, 2010, MDL No. 2179. Your objection letter must include: • A detailed statement of each objection being made, including the specific reasons for each objection, and any evidence or legal authority to support each objection; • Your name, address, and telephone number; • Written evidence establishing that you are an E&PD Class Member, such as proof of residency, proof of ownership of property, proof of employment, and/or proof of business incorporation and operation; and • Any supporting papers, materials, or briefs that you want the Court to consider when reviewing the objection. An Economic Class Member may also object through an attorney hired at his, her, or its own expense. The attorney will have to file a notice of appearance with the Court by August 31, 2012, and serve a copy of the notice and the objection containing the information detailed above on Economic Class Counsel and BP's Counsel by August 31, 2012. Objections must be sent by first class mail to the following addresses postmarked by August 31, 2012. Objections submitted after this date will not be considered. ECONONUC CLASS COUNSEL James Parkerson Roy Attn: Deepwater Horizon E&PD Settlement Domengeaux Wright Roy & Edwards 556 Jefferson St., Suite 500 P.O. Box 3668 Lafayette, LA 70501 Stephen J. Herman Attn: Deepwater Horizon E&PD Settlement Herman Herman Katz & Cotlar LLP 820 O'Keefe Avenue New Orleans, LA 70113 DEFENDANTS' COUNSEL COURT Richard C. Godfrey, P.C. Attn: Deepwater Horizon E&PD Settlement Kirkland & Ellis LLP 300 North LaSalle Street Chicago, IL 60654 Clerk of Court United States District Court for the Eastern District of Louisiana 500 Poydras Street New Orleans, LA 70130 Do not call the Court or any Judge's office to object to the Settlement. • The Court has scheduled a Fairness Hearing on November 8, 2012 at which the Court will consider any objections to the Settlement and determine whether to grant final approval of the Settlement Agreement. If an Economic Class Member files an objection, but then submits a http://www.deepwaterhorizoneconomicsettlement.com/faq.php 6/4/2012 Deepwater Horizon Page 12 of 20 Claim and executes a Release before the Fairness Hearing, the Economic Class Member shall lose the right to object. If you are not an Economic Class Member, you do not have standing to object to the Settlement, as the Settlement does not have an impact on any potential claim you may have against BP. Failure to comply with these requirements will result in a waiver of the right to object to the Settlement Agreement. You could also Opt Out of the Economic Class. More information related to your option to Opt Out is located in Section III. (back to top) V. SUMMARY OF THE SETTLEMENT CLAIM CATEGORIES 30. What is the Seafood Compensation Program? The Seafood Compensation Program covers damages suffered by Commercial Fishermen, Seafood Crew, or Seafood Vessel Owners that owned, operated, leased, or worked on a vessel that was Home Ported in the Gulf Coast Areas at any time from April 20, 2010 to April 16, 2012, or Landed Seafood in the Gulf Coast Areas at any time from April 20, 2009 to April 16, 2012. In addition, it covers damages suffered by Oyster Leaseholders and Individual Fishing Quota ("IFQ") Owners. The Seafood Compensation Program does not apply to claims relating to fishing, processing, selling, catching, or harvesting of menhaden (or "pogy") fish. More FAQs regarding the Seafood Compensation Program will be available soon. 31. What is an Economic Damage Claim? Economic Damage is a loss of profits, income, or earnings suffered by Natural Persons or Entities as a result of the Deepwater Horizon Incident. Economic Damage does not include loss of profits or earnings or damages for injury that are related to the other types of damages. More FAQs regarding the Economic Damage Claims will be available soon. 32. What is a Subsistence Damage Claim? Subsistence Damage is a loss of Subsistence use of natural resources arising from the Deepwater Horizon Incident. This includes damages suffered by Natural Persons who fish or hunt to harvest, catch, barter, consume, or trade Gulf of Mexico natural resources (including Seafood and Game) in a traditional or customary manner, to sustain their basic personal or family dietary, economic security, shelter, tool, or clothing needs and who relied on Subsistence resources that were diminished or restricted due to the Deepwater Horizon Incident. More FAQs regarding the Subsistence Damage category will be available soon. 33. What is a VoO Charter Payment Claim? This claim category addresses damages suffered by Natural Persons or Entities who registered their vessels to participate in BP's Vessels of Opportunity ("VoO") program, executed a VoO Master Vessel Charter Agreement with BP, Lawson, USMS, USES, DRC, or any other BP subcontractor as http://www.deepwaterhorizoneconomicsettlement.com/faq.php 6/4/2012 Deepwater Horizon Page 13 of 20 Charterer, and completed the initial VoO training program. VoO participants can make VoO Charter Payment Claims regardless of whether they were dispatched or otherwise asked to perform work under the program. More FAQs regarding the VoO Charter Payment category will be available soon. 34. What is a Vessel Physical Damage Claim? A Vessel Physical Damage Claim is a claim for physical damage to a vessel resulting from the Deepwater Horizon Incident or certain response clean-up operations, including the cost of removal of equipment or rigging added to the vessel as part of the response activities. More FAQs regarding the Vessel Physical Damage category will be available soon. 35. What is a Coastal Real Property Damage Claim? Individuals and Entities who owned or leased coastal real property or boat slips located in the Coastal Real Property Claim Zone at any time from April 20, 2010 to December 31, 2010 can make Coastal Real Property Damage Claims for damage to that property. In addition, owners of real or personal property located in the Coastal Real Property Claim Zone that was physically damaged in connection with the Deepwater Horizon Incident response clean-up operations can make claims for that physical damage to real or personal property. To see if your property is within the Coastal Real Property Claim Zone, click here to view the Coastal Real Property Claim Zone Map. By itself, inclusion in the Coastal Real Property Claim Zone does not mean that you are eligible for benefits. More FAQs regarding the Coastal Real Property Damage category will be available soon. 36. What is Real Property Sales Damage? Real Property Sales Damage is economic loss suffered by sellers of residential property located in a specific geographic area, who sold their properties at a lower price because of the Deepwater Horizon Incident. In order to be eligible to file a Real Property Sales Damage claim, the claimant must have owned the property on April 20, 2010, and the sale of the property must have closed between April 21, 2010 and December 31, 2010. If the sales contract was executed prior to April 21, 2010, the property sales price must have been reduced because of the Deepwater Horizon Incident. Real Property Sales do not include transfers from borrowers to lenders as part of a foreclosure or a similar process. To see if your property is within the Real Property Compensation Zone, click here to view the Real Property Compensation Zone Map. By itself, inclusion in the Real Property Compensation Zone does not mean that you are eligible for benefits. More FAQs regarding the Real Property Sales Damage category will be available soon. 37. What is Wetlands Real Property Damage? Individuals and Entities who owned wetlands real property located in certain geographic areas at any time between April 20, 2010 and April 16, 2012, can make claims for Wetlands Real Property Damage. If you have property located in the Wetlands Real Property Compensation Zone, you could http://www.deepwaterhorizoneconomicsettlement.com/faq.php 6/4/2012 Deepwater Horizon Page 14 of 20 receive a Settlement Payment; compensation calculation will depend on whether the property is considered oiled or non -oiled and what the acreage is. In addition, owners of real or personal property located in the Wetlands Real Property Compensation Zone that was physically damaged in connection with the Deepwater Horizon Incident response clean -up operations can make claims for that physical damage to real or personal property. To see if your property is within the Wetlands Real Property Compensation Zone, click here to view the Wetlands Real Property Compensation Zone Map. By itself, inclusion in the Wetlands Real Property Compensation Zone does not mean that you are eligible for benefits. You must file a Wetlands Real Property Damage Claim Form in order to receive benefits under this category. More FAQs regarding the Wetlands Real Property Damage category will be available soon. (back to top) VI. ADMINISTRATION OF THE SETTLEMENT 38. Do I have to file a Claim to get a Settlement Payment? Yes, the Settlement Program has been established to process and evaluate Claims for Settlement Payments. If you have never filed a Claim before, you must file a Claim Form to receive Settlement Payments for which you may be eligible. After the Claim is evaluated, it will be determined whether you are eligible for a Settlement Payment. However, if you previously filed a Claim with the Gulf Coast Claims Facility ("GCCF") that is still pending or you filed a Claim with the Transition Process, you will automatically have a Claim in the Settlement Program and will receive a letter explaining what additional information is needed. If you are an Economic Class Member, your Claim will then be processed in the Settlement Program. 39. What is the process for evaluating Claims that are submitted for payment under the Settlement Agreement? The Settlement Agreement calls for the establishment of a new Deepwater Horizon Court -Supervised Settlement Program ("Settlement Program"). The Settlement Program replaces the Transition Process, during which the Gulf Coast Claims Facility ("GCCF") operated under Court supervision while the settlement was completed and the new Settlement Program was being set up. The Court has appointed a number of Claims Administration Vendors who are responsible for reviewing Claims and determining whether they qualify for payment pursuant to the Claims Processes outlined in the Settlement Agreement and if so, the amount the Settlement Payment. 40. Are the rules for processing and paying Claims in the Settlement Program different than they were in the Transition Process and GCCF? Yes. The rules, protocols and methodologies that are set forth in the Settlement Agreement will be applied in the Settlement Program. 41. What will happen to the documents and information that I sent to the GCCF or the Transition Process? The Court will issue an order requiring that all claims -related information, files and data previously submitted to the GCCF or Transition Process be transferred to the Settlement Program. All of the http://www.deepwaterhorizoneconomicsettlement.com/faq.php 6/4/2012 Deepwater Horizon Page 15 of 20 information will be treated as confidential. However, you may obtain copies of any information that you previously submitted to the GCCF or Transition Process upon written request. Because the terms of the Settlement Agreement may require additional information than was necessary to evaluate your claim made to the GCCF, you may be requested to submit additional information to the Settlement Program in order to process your Claim. If you received and/or accepted a 60% payment from the Transition Process or have a Claim that is still pending in the Transition Process, the Settlement Program will notify you of your right to participate in the Settlement Program and will advise you of any additional information that may be necessary or desirable to pursue your claim in the Settlement Program under the terms of the Settlement Agreement. (hack toton) A. QUESTIONS RELATING TO GCCF AND TRANSITION PROCESS 42. What is the difference between the BP Claims Facility, the Settlement Program, the GCCF, and the Transition Process? Pursuant to the Oil Pollution Act, BP set up a process for receiving certain claims arising out of the Deepwater Horizon Incident. On August 23, 2010, responsibility for individual and business claims was transferred to the GCCF. On March 8, 2012, after the Parties came to an Agreement -in -Principle, the Court ordered a Transition Process to process claims until the Settlement Program was established. The Transition Process processed claims under the same protocols and methodologies as the GCCF, with certain changes described in the Transition Order, which you can read by clicking here. The Transition Process will be closed when the Settlement Program begins on June 4, 2012; at that time the Settlement Program will begin receiving Claims and processing them pursuant to the terms of the Settlement Agreement. BP is also setting up an OPA Claims Process for Opt -Outs and Excluded Persons and/or Entities. For more information about how to file an OPA claim with BP visit www.bp.com/claims or call 1-855-687-2631. 43. I have been paid by the GCCF. Can I participate in this Settlement Program too? If the payment you received from the GCCF was an "emergency advance payment" or an "interim payment," you can participate in the Settlement Program. The prior GCCF payments will be deducted from any Settlement Payment you may be entitled to under the Settlement. However, if you have accepted a "final payment" and signed a GCCF Release and Covenant Not to Sue, you may not participate in the Settlement. If the Release and Covenant Not to Sue related only to a Bodily Injury claim, you may still participate in the Settlement Program. 44. I received a 60% offer from the Transition Process. Will I be able to receive the full amount of that GCCF offer in the Settlement Program? Yes, if you filed a Claim in the Transition Process and accepted a 60% offer, you will, if you are an Economic Class Member and elect to participate in the Settlement Program, be paid the remaining 40% of that offer or your Settlement Payment under the Settlement Agreement, whichever is greater, minus any money you already received. If you are not an Economic Class Member or elect to opt out of the Settlement, you will have the right to receive the remaining 40% of the offer from the Transition Process in exchange for executing a release. 45. If I accepted the 60% interim payment and file a Claim in the Settlement, can I still opt -out? http://www.deepwaterhorizoneconomicsettlement.com/faq.php 6/4/2012 Deepwater Horizon Page 16 of 20 Yes, so long as you opt -out prior to accepting a payment from the Settlement Program and before the opt -out date set by the Court. 46. I received an "emergency assistance payment" or "interim payment" from the GCCF or Transition Process. How much more can I receive from the Settlement Program? If you now file a Claim in the Settlement Program, it will be evaluated pursuant to the Claims Processes in the Settlement Agreement and any Settlement Payment you may qualify for will be reduced by the amount of any "emergency advance payment" or "interim payment" that you received from the GCCF or Transition Process. 47. Is the GCCF still accepting Claims? No, but the Transition Process is still accepting claims and will continue to do so until the Settlement Program opens on June 4, 2012. 48. Is Kenneth Feinberg in charge of the Settlement claims process? No. Mr. Feinberg will not be involved with the Settlement Program. The Court has appointed a Claims Administrator, Mr. Patrick Juneau, to oversee the Settlement Program. Click here to jump to the FAQs that explain who is in charge of the Settlement Program). 49. Can I participate in the Settlement Program if I already received a payment directly from BP? Yes, if you are an Economic Class Member and you have not also accepted a GCCF offer of final payment and signed a GCCF Release and Covenant Not to Sue. Prior payments may be deducted from any compensation you are entitled to under the Settlement. If the Release and Covenant Not to Sue related only to a Bodily Injury claim, you may still participate in the Settlement Program. You may also make VoO Charter Payment and Vessel Physical Damage Claims even if you signed a GCCF Release and Covenant Not to Sue. 50. I previously filed a claim with the GCCF, which was denied or rejected. May I participate in the Settlement? Yes, if you are an Economic Class Member. In addition, the denial of your claim by the GCCF cannot be used against you to prejudice your claim in any way by the Settlement Program. 51. I have an offer from the GCCF that has expired. Can I participate in the Settlement? Yes, if you are an Economic Class Member. To participate, you must submit a Claim Form to the Settlement Program. More information on submitting Claims will be available soon. 52. Can I still get a "Quick Pay" payment? Yes. If you are eligible for a Quick Pay payment and have not accepted a GCCF offer of Final Payment and signed a GCCF Release and Covenant Not to Sue, you may request your Quick Pay payment until June 11, 2012. If you are eligible for a Quick Pay payment, you will already have received a letter informing you of your eligibility. Note that if you choose to take a Quick Pay payment, you will not be able to make any claims in the Settlement Program other than claims for http://www.deepwaterhorizoneconomicsettlement.com/faq.php 6/4/2012 Deepwater Horizon Page 17 of 20 VoO Charter Payment and Vessel Physical Damage. This is because to accept a Quick Pay payment, you must execute a release that releases any claims you may have under the Settlement (other than claims for VoO Charter Payment and Vessel Physical Damage). 53. I submitted a claim to the GCCF and have a pending offer that I did not accept yet. What can I do? All unexpired offers that were pending as of March 8, 2012 were transferred to the Transition Process. You had the option of receiving 60% of that offer from the Transition Process. If you do not accept the 60% payment by the time that the Settlement Program is processing claims, your Claim will be transferred to the Settlement Program. You will be notified of your right to participate in the Settlement Program and you will be notified of any additional information that will be required or may be desirable to process your Claim in the Settlement Program. 54. I thought I still had a claim pending with the GCCF. Where is my claim now? The GCCF is no longer evaluating your claim. If you had a claim pending with the GCCF, it was transferred to the Transition Process on March 8, 2012 and will be transferred to the Settlement Program. You will receive a notice that explains your right to participate in the Settlement Program. 55. I had a pending offer from the GCCF when the Transition Process opened and I accepted the 60% payment that the Transition Process offered. What do I need to do now? If you have a pending claim with the Transition Process when the new Settlement Program opens, you will receive a notice advising you of your right to participate in the Settlement Program. You will also receive a notice explaining what additional information is necessary or may be desirable for your Claim to be processed under the terms of the Settlement Program. You will then be able to recover the remaining 40% of the GCCF offer or the Settlement Payment, whichever is greater, minus any amount already paid by the Transition Process (such as "emergency assistance payments" or "interim payments"). If you Opt Out, or are not an Economic Class Member, you can either be paid the remaining 40% of the GCCF offer in exchange for executing a release or forego the 40% and pursue any rights available to you. 56. I had a pending claim when the Transition Process opened, the Transition Process made me an offer and I accepted the 60% payment that the Transition Process offered. What do I need to do now? You will receive a notice advising you of your right to participate in the Settlement Program. You will also receive a notice explaining what additional information is necessary or may be desirable for your Claim to be processed in the Settlement Program. You will then be able to recover the remaining 40% of the GCCF offer or the Settlement Payment, whichever is greater, minus any amount already paid by the Transition Process (such as "emergency assistance payments" or "interim payments"). If you Opt Out, or are not an Economic Class Member, you can either be paid the remaining 40% of the GCCF offer in exchange for executing a release or forego the 40% and pursue any rights available to you. 57. I had a pending claim when the Transition Process opened and it was transferred to the Transition Process, but I have not received an offer yet. What will happen to my claim? http://www.deepwaterhorizoneconomicsettlement.com/faq.php 6/4/2012 Deepwater Horizon Page 18 of 20 If you have a pending claim with the Transition Process when the new Settlement Program opens, you will receive a notice advising you of your right to participate in the Settlement Program. You will also receive a notice explaining what additional information is necessary or may be desirable for your Claim to be processed in the Settlement Program. If you do not Opt Out and if you decide to participate in the Settlement Program, your Claim will be processed in the Settlement Program under the terms of the Settlement Agreement. 58. The Transition Process made me an offer, but I did not accept the 60% payment yet. What are my options now? If the Settlement Program is not yet processing Claims, you can still accept the 60% payment and pursue your Claim in the Settlement Program if you are an Economic Class Member. In that case, you can recover the remaining 40% of your offer, or the amount you may be entitled to under the Settlement Agreement, whichever is greater. However, if the Settlement Program has begun processing Claims, you will no longer be able to accept the 60% offer. Instead, you will be notified of your right to participate in the Settlement Program and of any additional information that is necessary or may be desirable to process your Claim. 59. If I receive an offer in the Transition Process and have not accepted it before the Settlement Program opens, will I be able to accept that offer until it expires? Yes. (back to top) B. COURT -SUPERVISED SETTLEMENT PROGRAM 60. What is the Settlement Program? The Court has established a Court -Supervised Settlement Program to accept and evaluate Claims of Economic Class Members pursuant to the Claims Processes outlined in the Settlement Agreement. A Claims Administrator provides oversight of the Settlement Program. 61. When is the Settlement Program going to open and begin accepting Claims? The Court has ordered that the Settlement Program shall commence operations on June 4, 2012 (unless otherwise ordered by the Court). 62. Who is the Claims Administrator? The Court has appointed Mr. Patrick Juneau as the Claims Administrator. 63. What is the role of the Claims Administrator in this Settlement? The Claims Administrator is responsible for implementing and administering the Settlement Agreement according to the terms agreed to by the Parties, heading the Settlement Program, overseeing the Claims Administration Vendors, reporting to the Parties and the Court and participating on the Claims Administration Panel. 64. Who are the Claims Administration Vendors? http://www.deepwaterhorizoneconomicsettlement.com/faq.php 6/4/2012 Deepwater Horizon Page 19 of 20 The Claims Administration Vendors are appointed by the Court. Currently, they include The Garden City Group Inc., BrownGreer PLC, PriceWaterhouseCoopers and Postlethwaite & Netterville. More Claims Administration Vendors could be added in the future, but they will be agreed to by the Parties or approved by the Court. 65. What do the Claims Administration Vendors do? The Claims Administration Vendors are involved in the processing and payment of Claims submitted to the Settlement Program. They determine whether Claims are eligible for payment and, if eligible, the amount of the Settlement Payment according to the Claims Processes described in the Settlement Agreement. They also provide assistance to class members with the assembly and submission of their Claims Forms. 66. Who determines whether I will receive a Settlement Payment? Once you submit a Claim Form(s), the Settlement Program, through the processing of Claims by the Claims Administration Vendors, will determine whether you qualify for a Settlement Payment using the Claims Processes set forth in the Settlement Agreement. If you qualify, the Settlement Program, through the Claims Administration Vendors, will issue your Settlement Payment(s). 67. How does the Settlement Program determine whether I qualify for a Settlement Payment? The Settlement Program will process your Claim in accordance with the Claim Processes that were approved by the Court in this case. There are separate Claim Processes and a separate Claim Form for each Damage Category in the Settlement. You can click on the following links to view the Claims Processes for each Damage Category: • Economic Damage Claim Process • Subsistence Damage Claims Process • VoO Charter Pavment Claims Process • Vessel Physical Damage Claims Process • Coastal Real Property Damage Claim Process • Real Property Sales Damage Claim Process • Wetlands Real Property Damage Claims Process • Seafood Compensation Program More information on the Claims Processes will become available soon. 68. Who pays for the Settlement Program? BP is responsible for paying for the Settlement Program. 69. Does the Claims Administrator report to BP? The Plaintiffs? The Claims Administrator is under the jurisdiction of and ultimately reports to the Court. Under the Settlement Agreement, the Claims Administrator and Claims Administration Vendors are required to provide reports on the progress and status of the Settlement to BP and the Plaintiffs. The Court may, at its sole discretion, request reports or information from the Claim Administrator and/or the Claims Administration Vendors. The Claim Administrator shall be responsible for reporting or providing information to the Court unless the Court directs otherwise. http://www.deepwaterhorizoneconomicsettlement.com/faq.php 6/4/2012 Deepwater Horizon Page 20 of 20 70. What if there is a problem with how the Claims Administrator or the Claims Administration Vendors are performing their respective duties? A Claims Administration Panel has been set up to address and attempt to resolve any issues that may arise concerning the Settlement Program. If an issue cannot be resolved by the Claims Administration Panel, it will be referred to the Court for resolution. 71. How long is the Settlement Program going to operate? The Settlement Program will operate until the last timely filed Claim has been processed and the last appeal has been completed. Once the Court determines these have occurred, it will issue an order at that time terminating and closing the Settlement Program. (back to top) Learn More Claim Resources • Claimant Assistance Centers Other Forms • Sworn Written Statements and Authorizations • "fax Forms Privacy Policy I All Rights Reserved © 2012 MULTILINGUAL TOLL FREE: 1-866-992-6174 1 TTY: 1-888-584-7624 http://www.deepwaterhorizoneconomicsettlement.com/faq.php 6/4/2012 Case 2:10-md-02179-CJB-SS Document 6418 Filed 05/02/12 Page 1 of 47 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA In Re: Oil Spill by the Oil Rig I°Deepwater * MDL NO.2179 Horizon" in the Gulf of Mexico, on April 20, 2010 * SECTION J * This document relates to: * Actions in Bl Pleading Bundle, * "VOO" Contract Claims, * and * 12-970, Bon Secour Fisheries, Inc. et al. v BP Exploration & Production Inc., et al. HONORABLE CARL J. BARBIER MAGISTRATE JUDGE SHUSHAN PRELIMINARY APPROVAL ORDER [As to the Proposed Economic and Property Damages Class Action Settlement] On April 18, 2012, Interim Class Counsel and the Plaintiffs' Steering Committee (collectively, "PSC") and BP Exploration & Production Inc. and BP America Production Company (collectively, "BP") filed the "Deepwater Horizon Economic and Property Damages Settlement" ("Proposed Settlement" or "Settlement Agreement'). (Rec. Doc. 6276). Two Motions accompanied this filing and are before the Court. First, the PSC moved for an order (a) conditionally and preliminarily certifying the "Economic and Property Damages Settlement Class" for settlement purposes only, (b) appointing class representatives, and (c) appointing lead and settlement class counsel. (Rec. Doc. 6269). BP does not oppose this motion. Second, the PSC and BP jointly moved for an order (a) preliminary approving the Proposed Settlement, (b) Case 2:10-md-02179-CJB-SS Document 6418 Filed 05/02/12 Page 2 of 47 scheduling a fairness hearing, and (c) approving the proposed notice plan. (Rec. Doc. 6266). On May 2, 2012, the PSC and BP filed a Joint Supplemental Motion Related to the Economic and Property Damages Settlement, which is also before the Court. (Rec. Doc 6414).2 A. LITIGATION BACKGROUND On April 20, 2010, a blowout, explosion, and fire occurred aboard the DEEPWATER HORIZON, a semi -submersible offshore drilling rig, as it was engaged in drilling activities on the "Macondo Well" on the Outer Continental Shelf off the coast of Louisiana. These events led to eleven deaths, dozens of injuries, and a massive discharge of oil into the Gulf of Mexico that continued for nearly three months. On August 10, 2010, the Judicial Panel on Multidistrict Litigation centralized all federal actions (excluding securities suits) in this Court pursuant to 28 U.S.C. § 1407. Eventually, hundreds of cases with thousands of individual claimants would be consolidated with this Multidistrict Litigation ("MDL"). On October 19, 2010, the Court issued Pretrial Order 11 (Rec. Doc. 569) ("PTO 11"), creating pleading bundles for various types of claims. Relevant here is the "B 1 bundle," which encompasses all private claims for economic loss and property damage. (PTO 11 ¶ III(B 1)). In accordance with PTO 11, the PSC filed the B 1 Master Complaint on December 15, 2010 (Rec. Doc. 879), and a First Amended B1 Master Complaint on February 9, 2011 (Rec. Doc. 1128). Numerous Defendants filed motions to dismiss the First Amended 131 Complaint. On August 26, 2011, the Court issued an Order and Reasons granting in part and denying in part these motions. 1 In the Joint Motion for Preliminary Approval of Class Action Settlement, etc., BP also requested that the Court adjourn the Limitation and Liability pending final review of the settlement through the fairness hearing process. That request is not considered here. (See Order of April 23. 2012, Rec. Doc. 6310). -' The Joint Supplemental Motion (1) added requests regarding the Economic and Property Damages Trust, (2) made minor revisions to the proposed class notice, (3) nominated a Guardian Ad Litem, (4) amended 1he Proposed Order to indicate that the class representatives are those identified in the Amended Class Complaint (Rec. Doc. 6412),(5) made clarifications and slight modifications to the Seafood Compensation Program, (6) and made other minor amendments to the Proposed Agreement. (See Rec. Doc. 6414-2). -2- Case 2:10-md-02179-CJB-SS Document 6418 Filed 05/02/12 Page 3 of 47 (Rec. Doc. 3830). BP subsequently answered the First Amended Complaint on September 27, 2011 (Rec. Doc. 4130). Phase one of a multi -phase trial in Transocean's Limitation and Liability Action, Case No. 10-2771, was scheduled for February 27, 2012. In the 20 months that have passed since the JPML's centralization order, the parties have engaged in extensive discovery and motion practice, including taking 311 depositions, producing approximately 90 million pages of documents, and exchanging more than 80 expert reports on an intense and demanding schedule. Depositions were conducted on multiple tracks and on two continents. Discovery was kept on course by weekly discovery conferences before Magistrate Judge Shushan. The Court also held monthly status conferences with the parties. BP and the PSC report that in February 2011 settlement negotiations began in earnest for two distinct class action settlements: a Medical Benefits Settlement3 and an Economic and Property Damages Settlement. Talks intensified in July 2011, occurring on an almost -daily basis. In early 2012, Magistrate Judge Shushan became involved in the negotiations as neutral mediator. The parties report that over 145 day -long, face-to-face negotiation meetings took place, in addition to numerous phone calls and "WebEx Conferences." (Tr. of Prelim. Approval Hr'g, 4/25/12, p.83, Rec. Doc. 6395).4 On February 26, 2012, the eve of the Limitation and Liability Trial, the Court adjourned proceedings for one week to allow the parties to make further progress on their settlement talks. (Rec. Doc. 5887). On March 2, 2012, the Court was informed that BP and the PSC had reached an Agreement -in -Principle on the proposed settlements. Consequently, the Court adjourned Phase I of the trial, because of the potential for realignment of the parties in this litigation and substantial changes to the current trial plan. (Rec. Doc. 5955). 3 The proposed Medical Benefits Settlement is the subject of a separate Order. ° Apart from these meetings, there were also 120 face-to-face meetings regarding the proposed Medical Benefits Settlement. -3- Case 2:10-md-02179-CJB-SS Document 6418 Filed 05/02/12 Page 4 of 47 The parties continued to work on finalizing the details of the settlements. On March 8, 2012, at the parties' request, the Court entered an Order creating a process to facilitate the transition from the Gulf Coast Claims Facility ("GCCF") to the "Court Supervised Settlement Program" envisioned by the settlement. (Rec. 5995). The Order also appointed a Transition Coordinator and Claims Administrator. In a separate Order, the Court appointed a neutral party to preside over the seafood component of the proposed settlement. (Rec. Doc. 5998). 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. See No. 12-970, Bon Secour Fisheries, Inc., et al. v. BP Exploration & Production Inc., et al.5 The class action complaint was amended on May 2, 2012. (Rec. Doc. 6412). On April 18, 2012, the PSC and BP filed the instant Proposed Settlement (Rec. Doc. 6276) and Motions (Rec. Docs. 6266, 6269, 6414). B. OVERVIEW OF THE PROPOSED SETTLEMENT" The Proposed Settlement intends to resolve certain claims by private individuals and businesses for economic loss and property damage resulting from the "Deepwater Horizon Incident."7 To effectuate the settlement, the PSC seeks to conditionally certify the "Economic Loss and Property Damage Settlement Class" pursuant to Federal Rule 23(a) and (b)(3). The The PSC similarly filed a new class action related to the proposed Medical Benefits Settlement. See No. 12-Q68, Kip Plaisance, et al. v. BP Exploration & Production hic., et al. 6 The Proposed Settlement is a lengthy and detailed document with many defined terms of art. This summary is intended only to convey a general description of the Proposed Settlement. Parties, claimants, etc. should refer to the Proposed Settlement (Rec. Doc. 6276) to understand any specific component or term of the Proposed Settlement. The Proposed Settlement defines "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 fire 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. (Proposed Settlement ¶ 38.43, Rec. Doc. 6276-1 at 99). -4- Case 2:10-md-02179-CJB-SS Document 6418 Filed 05/02/12 Page 5 of 47 class would consist of individuals and entities defined by (1) geographic bounds and (2) the nature of their loss or damage. If both criteria are not met, or the individual or entity opts out of the class, then the individual or entity is not within the settlement class and the claims are unaffected by the Proposed Settlement. Where a person or entity has multiple claims, some falling within the settlement and some outside the settlement, only the former claims are included in the settlement. The latter claims are unaffected and reserved to the claimant. Generally speaking, the geographic bounds of the settlement are Louisiana, Mississippi, Alabama, and certain coastal counties in eastern Texas and western Florida, as well as specified adjacent Gulf waters, bays, etc. Individuals must have lived, worked, owned property, leased property, etc., in these areas between April 20, 2010' and April 16, 2012. Similarly, entities must have conducted certain business activity in these areas between April 20, 20109 and April 16, 2012. The Proposed Settlement recognizes six categories of damage: (1) Economic Loss (including individual loss of wages, business economic loss, multi - facility business economic loss, start-up business economic loss, failed business economic loss, failed start-up business economic loss) (2) Property damage (including loss of use/enjoyment of real property, coastal real property damage, wetlands real property damage, realized real property sales loss), (3) Vessel of Opportunity ("VOO") Chatter Payment (4) Vessel Physical Damage (5) Subsistence Damage (6) Seafood Compensation Program s For individuals that worked on a vessel in the specified areas, the date range is "after April 20, 2009." Similarly, for "Seafood Crew" claims, the individual must have worked on a vessel that landed seafood in the specified areas "after April 20, 2009." (Proposed Settlement § 1.1, Rec. Doc. 6276-1). 9 For entities owning, operating, or leasing a vessel that landed seafood in the specified waters, the date range is April 20. 2009 to April 16, 2012. (Proposed Settlement § 1.2.3 Rec. Doc. 6276-1). -5- Case 2:10-md-02179-CJB-SS Document 6418 Filed 05/02/12 Page 6 of 47 Certain individuals, entities, and claims are specifically excluded from the Proposed Settlement, and thus reserved to the claimant.10 Class Members may submit multiple claims and receive compensation for multiple categories of damage. The Proposed Settlement would replace the GCCF with a "Court Supervised Settlement Program" ("Settlement Program"). The deadline for filing most claims with the Settlement Program is the later of April 22, 2014 or six months after the "Effective Date" of the Proposed Settlement." t Claims submitted to the Settlement Program will be evaluated and processed by claims administration vendors pursuant to the frameworks detailed in the Proposed Settlement for the various damage categories. The Proposed Settlement explains how compensation is determined and what documentation is required to support a claim. (Proposed Settlement § 5, and Exhibits cited therein, Rec. Doc. 6267-1). The Settlement Program also contains an internal appellate review process, and the Court maintains the discretionary right to review any appellate determination. Those who accept payments under the Proposed Settlement are required to release their claims against BP, government oil spill liability funds, and all other Defendants in MDL 2179 (except Transocean and Halliburton). 1' Under the Proposed Settlement, BP will also 10 For example, claims by individuals for losses arising from the federal moratoria on offshore permitting and drilling activities following the DEEPWATER HORIZON explosion are excluded from the settlement, but are reserved. 11 Claimants in the Seafood Compensation Program must submit their claim within 30 days from the date of entry of a Final Order and Judgment of the Court after it rules upon final approval of the Proposed Settlement. 12 According to the Joint Motion for Preliminary Approval, "The intent of the Agreement is for BP to pay all compensatory damages but to allow the plaintiffs to continue to seek punitive damage recoveries from Halliburton and Transocean, which is the sole basis for the exclusion of those defendants from the release. The plaintiffs, moreover, have agreed with BP to a set of special rules to effectuate the parties' intent to allow the plaintiffs to seek exclusively punitive damages against Halliburton and Transocean, including the plaintiffs' (1) agreeing not to seek compensatory damages against Halliburton or Transocean; and (2) agreeing, among other protections to BP, not to execute on any compensatory damages that might be awarded to plaintiffs against Halliburton and Transocean." (Memo. in Supp. of Joint Mot. for Prel. Approval p.11 n.6, Rec. Doc. 6266-1 at 21 n.6; .see also Proposed Settlement Ex. 21, Rec. Doc. 6276-39). Case 2:10-md-02179-CJB-SS Document 6418 Filed 05/02/12 Page 7 of 47 assign certain of its claims against Transocean and Halliburton to the settlement class. 13 The movers note that the Proposed Settlement is different from many other class settlements in that payments are not delayed pending the Court's fairness hearing and final approval process. If preliminary approval is given, the Settlement Program will process claims and make settlement payments to class members so long as they execute an individual release. In addition to baseline compensation payments, some claims also will receive a Risk Transfer Premium ("RTP'), which is a multiple of the baseline compensation. ld With the exception of the Seafood Compensation Program, there is no limit on the amount to be paid by BP. The Seafood Compensation Program is a fixed sum, $2.3 billion. BP will pay all administrative costs of the Settlement Program, the cost of providing notice to the class, and reimburse claimants for accounting services required for filing their claims. BP will also provide a $57 million to promote the Gulf Coast and its waters and up to $5 million to fund a supplemental publicity campaign to be designed and administered by the PSC. Turning to the enumerated damage categories, individual economic loss claims are calculated as the estimated difference between a claimant's expected earnings from a job within the class geography during May to December 2010 (or April 2011 in the case of certain seafood industry claimants), and the claimant's actual earnings during that claim period. Some claimants may be eligible for an RTP multiple of lost earnings. Some individuals may also receive additional compensation for lost health insurance, pension benefits, and qualified training costs 13 For example, BP proposes to assign its claims against Transocean and Halliburton relating to the repair, replacement, and/or re -drilling of the Well and the costs BP incurred to control the well and/or respond to and clean up the spill. (Proposed Settlement, Ex. 21 ¶ 1.1.3. Rec. Doc. 6276-39). 14 For example, if base compensation is $2, and there is an RTP of 3, then the total compensation paid is $8 [2 (20) 81. "RTP payments 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, compensation for emotional distress. liquidation of legal disputes about punitive damages, and other factors." (Memo in Supp. of Joint Mot. for Prel. Approval p.14, Rec. Doc. 6266-1 at 24). -7- Case 2:10-md-02179-CJB-SS Document 6418 Filed 05/02/12 Page 8 of 47 and qualified job search costs. Causation is presumed for some claimants; other claimants must demonstrate that a loss is due to the oil spill as outlined by the Proposed Settlement. For existing businesses, economic loss claims are determined using a two-step process. Step one calculates the value of the business's reduction in profit during a claimant -selected loss period (any three or more consecutive months of the eight months following the spill). Step two accounts for expected profits by estimating the business's growth trend along with a general, economy -wide growth factor. The sum of step one (loss calculation) and step two (expected profit but for spill) results in the business claimant's base compensation amount. This amount may be enhanced by an RTP and/or offset by prior payments received, depending on the type of business. Again, causation is presumed for some businesses, and must be shown for others. The Proposed Settlement outlines other processes for multi -facility businesses, failed businesses, start-up businesses, and failed start-up businesses. Claimants with eligible coastal real property 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%-40% (percentage depending on the presence of oil and the environmental sensitivity of the property). This amount is enhanced by an RTP of 2.5. 1' Additional compensation is available if claimants establish physical damage from response operations. Compensation schemes for wetlands real property are based on whether parcels contained 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 ]' For example, if the "Country Appraised Value" of a certain piece of property is $350,000, the "Applicable Property Tax" is $4,130 [= 350,000 x .0118]. If this property falls into "Compensation Category A2. ' the "Applicable Property Tax" is multiplied by 45%, for a base compensation of $1,859 [= 4,130 x .451. After an RTP of 2.5, the total compensation is $6.507 [=1,859 + (2.5 x 1,859)]. (See Proposed Settlement, Ex. I IA ¶ 2.G., Rec. Doc. 6276-23). In any event, the minimum base compensation (the pre-RTP calculation) is $800-$1,100 -8- Case 2:10-md-02179-CJB-SS Document 6418 Filed 05/02/12 Page 9 of 47 enhanced by an RTP of 2.5. The Proposed Settlement also 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. All working VoO participants (those who were dispatched or placed on -hire under the VoO program) may receive between $41,600 and $88,400 (depending on the size of the vessel), representing 26 days' work under the VoO Master Vessel Charter Agreement. Working VoO participants (who are not participants in the Seafood Compensation Program) that will also receive economic loss compensation, will have economic loss compensation reduced by any "VoO Settlement Payment Offseti16 and "VoO Earned Income Offset."17 VoO participants that were never placed on hire to perform actual services may receive between $4,800 and $10,200 (depending on the size of the vessel), with no offset. Vessel owners whose vessels were physically damaged as a result of the oil spill or cleanup operations may recover the lesser of the costs necessary to conduct a reasonable repair or replace the vessel. As to subsistence claimants- -those individuals who fish, hunt, or harvest Gulf of Mexico natural resources, including seafood and game, in a traditional or customary manner and to sustain the basic dietary, economic, shelter, tool, or clothing needs of themselves and their 16 "VoO Settlement Payment Offset" is defined as "the offset whereby the Total Compensation Amount for a Natural Person or Entity relating to a non -Seafood -related business directly involving the use of the vessel that performed the VoO services, or employment in such business or service, shall be reduced by 50% of the amount of the Working VoO Participant Settlement Payment. The VoO Settlement Payment Offset shall be applied after the addition of any applicable RTP to the base Economic Damage Compensation Amount, excluding prior income from the VoO Charter Payments." (Proposed Settlement § 38.163, Rec. Doc. 6276-1). 1' "VoO Earned Income Offset" is defined as "the offset whereby, if a VoO Charter Payment Claimant has previously been paid under a VoO Master Vessel Charter Agreement, the Claimant's Compensation Amount for its Claim relating to a non -Seafood -related business directly involving the use of the vessel that performed the VoO services, or employment in such business or service, shall be reduced by 33% of the amount previously paid for services performed tinder a VoO Master Vessel Charter Agreement. This reduction shall be applied after the addition of any applicable RTP to the base Economic Damage Compensation Amount, excluding prior income from the VoO Charter Payments." (Proposed Settlement § 38.161, Rec. Doc. 6276-1). 1=1 Case 2:10-md-02179-CJB-SS Document 6418 Filed 05/02/12 Page 10 of 47 families- --they are entitled to compensation for the total value of the subsistence natural resources that they lost due to the oil spill, plus an RTP enhancement. The Seafood Compensation Program is a $2.3 billion fund to compensate economic losses of commercial fishermen, seafood boat captains, all other seafood crew, oyster leaseholders, and seafood vessel owners. The Seafood Compensation Program contains five separate plans to provide compensation, each with its own eligibility, documentation requirements, and compensation methods. There are also RTPs ranging from 2.25 to 8.75. Finally, BP has agreed to pay any award for common benefit and/or Rule 23(h) attorneys' fees, as determined by the Court, up to $600 million. The Joint Motion for Preliminary Approval and the Proposed Settlement state that the parties began negotiating this amount only after there was agreement on all material terms of this Proposed Settlement and the Medical Benefits Proposed Settlement and that information had been delivered to the Court. Consequently, the PSC has moved to modify the existing Hold -Back Order so that no payments made by and through the Settlement Program will be held back, reserved, or deducted. (Rec. Doc. 6286). C. LEGAL STANDARDS 1. Preliminary Approval Federal Rule of Civil Procedure 23 governs class actions, including the requirements for class certification and settlement. "'Before an initial class ruling, a proposed class settlement may be effectuated by stipulation of the parties agreeing to a temporary settlement class for purposes of settlement only."' In re Chinese -Manufactured Drywall Prods. Liab. Litig., MDL No. 2047, 2012 WL 92498, at *8 (E.D. La. Jan. 10, 2012) (quoting 4 William B. Rubinstein et al., Newberg on Class Actions § 11:22 (4th ed. 2010)); see also Manual for Complex litigation (Fourth) [MCL 4th] § 21.612 (2004) ("Parties quite frequently enter into settlement agreements before a decision has been reached whether to certify a class."). "Settlement classes-,--cases -10- Case 2:10-md-02179-CJB-SS Document 6418 Filed 05/02/12 Page 11 of 47 certified as class actions solely for settlement —can provide significant benefits to class members and enable the defendants to achieve final resolution of multiple suits." MCL 4th § 21.612. However, even in this context the requirements for class certification in Rule 23(a) and (b) must be satisfied, except that a court need not inquire whether the case, if tried, would present intractable management problems under Rule 23(b)(3)(D). Id. § 22.921 (citing .4mchem Prods., Inc. i,. Windsor, 521 U.S. 591, 620-21 (1997)). Additionally, the terms of the proposed settlement must comport with Rule 23(e). Courts have developed a two-step process when considering a proposed settlement of a class action. See Chinese -Manufactured Drywall, 2012 WL 92498, at *7 (citations omitted). First, if the class was not previously certified, the Court "`should make a preliminary determination that the proposed class satisfies the criteria set out in Rule 23(a) and at least one of the subsections of Rule 23(b)."' Id. (quoting MCL 4th § 21.632). Also, the Court must "`make a preliminary determination on the fairness, reasonableness, and adequacy of the settlement terms and must direct the preparation of notice of the certification, proposed settlement, and date of the final fairness hearing."' Id. (quoting MCL 4th § 21.632). Second, if preliminary approval is granted and following the notice and opt -out period, the Court holds a Rule 23(e)(2) final fairness hearing to decide whether to approve or disapprove the settlement. See id. Final determination on class certification is also reserved for the final fairness review. 2. Rule 23(a) and (b) Criteria for Class Certification With respect to class certification, Rule 23(a) requires that: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Case 2:10-md-02179-CJB-SS Document 6418 Filed 05/02/12 Page 12 of 47 Fed. R. Civ. P. 23(a). "The first two requirements focus on the characteristics of the class; the second two focus instead on the desired characteristics of the class representatives." Chinese - Manufactured Dryivall, 2012 WL 92498 at *8 (quotations and citations omitted). This assures that courts will identify the common interests of class members and evaluate the named plaintiffs' and class counsel's ability to fairly and adequately protect class interests. Id. As to Rule 23(a)(1)'s "numerosity" requirement, the mover typically must show that "joinder is impracticable through `some evidence or reasonable estimate of the number of purported class members."' Id. at *9 (quoting In re Vioxx Prods. Liab. Litig., 239 F.R.D. 450, 459 (E.D.La.2006)). However, "a good -faith estimate of the class size is sufficient when the precise number of class members is not readily ascertainable." 1 William B. Rubenstein, Newberg on Class Actions §§ 3:12, 3:13 (5th ed. 2011). Numerosity frequently receives summary treatment and is often uncontested. Id. Rule 23(a)(2)'s "commonality" requirement is not demanding; it 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). Rule 23(a)(3)'s "typicality" requirement is also not demanding; it "focuses on the similarity between the named plaintiffs' legal and remedial theories and the theories of those whom they purport to represent." Id. The typicality inquiry does not test whether the class members suffered varying harms; diversity in damages "will not affect their legal or remedial theories, and thus does not defeat typicality." Id. Rule 23(a)(4)'s "adequacy" requirement is satisfied where: "(1) the named plaintiffs' counsel will prosecute the action zealously and competently; (2) the named plaintiffs possess a sufficient level of knowledge about the litigation to be capable of taking an active role in and exerting control over the prosecution of the litigation; and (3) there are no conflicts of interest between the named plaintiffs and the absent class members." Hamilton i� First Am. Title -1''- Case 2:10-md-02179-CJB-SS Document 6418 Filed 05/02/12 Page 13 of 47 Ins. Co., 266 F.R.D. 153, 163-64 (N.D. Tex., 2010); see also Feder v. Elec. Data Svs. Corp., 429 F.3d 125, 129 (5th Cir. 2005). Finally, Rule 23(a) also contains an implied requirement that the class be adequately defined and clearly ascertainable. Union Asset Mgmt. Holding A.G. v. Dell, Inc., 669 F.3d 632, 639 (5th Cir. 2012). As mentioned, in addition to the requirements of Rule 23(a), one of the subsections of Rule 23(b) must be satisfied in order to be certified as a class. Here, the PSC moves under Rule 23(b)(3), which provides: A class action may be maintained if Rule 23(a) is satisfied and if: (3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include: (A) the class members' interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action. Fed. R. Civ. P. 23(b)(3). "To succeed under Rule 23(b)(3), Plaintiffs must sufficiently demonstrate both predominance of common class issues and that the class action mechanism is the superior method of adjudicating the case." Chinese -Manufactured Drywall, 2012 WL 92498 at *9 (citations and quotations omitted). The predominance inquiry tests "whether proposed classes are sufficiently cohesive to warrant adjudication by representation." Amchem, 521 U.S. at 623 (citation omitted). "To predominate, common issues must form a significant part of individual cases." In re Vioxx, 239 F.R.D. at 460 (citing Mullen, 186 F.3d at 626). Because class certification is for settlement -only purposes, the Court need not inquire whether the case, if tried, would present intractable management problems. Amchem, 521 U.S, at 620. "Together subsection (a) and (b) requirements insure that a proposed class has sufficient unity so that the -13- Case 2:10-md-02179-CJB-SS Document 6418 Filed 05/02/12 Page 14 of 47 absent class members can fairly be bound by decisions of the class representatives. Chinese - Manufactured Drytii all, 2012 WL 92498 at *8 (citations and quotations omitted). 3. Rule 23(e) Criteria for Preliminary Approval of a Proposed Class Settlement Turning to the terms of the settlement, Rule 23(e) places the burden of persuasion on the movers that the proposed settlement is "fair, reasonable, and adequate." Id. at *7. However, the standards for granting preliminary approval are not as stringent as those applied to a motion for final approval: "The questions are simpler, and the court is not expected to, and probably should not, engage in analysis as rigorous as is appropriate for final approval." In re OCA, Inc. Securities & Derivative Litig., No. 05-2165, 2008 WL 4681369, at *I I (E.D. La. Oct. 17, 2008) (quotations and citations omitted); see also In re Traffic Exec. Assn-E. R.R., 627 F.2d 631, 634 (2d Cir. 1980) (describing preliminary approval as "a determination that there is what might be termed `probable cause' to submit the proposal to class members and hold a full-scale hearing as to its fairness") (citations omitted). If the proposed settlement "discloses no reason to doubt its fairness, has no obvious deficiencies, does not improperly grant preferential treatment to class representatives or segments of the class, does not grant excessive compensation to attorneys, and appears to fall within the range of possible approval, the court should grant preliminary approval." OCA, 2008 WL 4681369, at *I I (citations omitted). "If the Court finds portions of the proposed settlement problematic, it may indicate preliminary disapproval of the agreement and recommend that the parties make certain revisions or modifications." Chinese - Manufactured Drywall, 2012 WL 92498, at *7. Courts have held that "approval of settlement class actions under Rule 23(e) requires closer judicial scrutiny than approval of settlements reached only after class certification has been litigated through the adversary process." MCL 4th § 21.612. However, "[e]xtended litigation between or among adversaries," as occurred here, "might bolster confidence that the -14- Case 2:10-md-02179-CJB-SS Document 6418 Filed 05/02/12 Page 15 of 47 settlement negotiations were at arm's length." Id. "If, by contrast, the case is filed as a settlement class action or certified for settlement with little or no discovery, it may be more difficult to assess the strengths and weaknesses of the parties' claims and defenses, to determine the appropriate definition of the class, and to consider how class members will actually benefit from the proposed settlement." Id.; see also id. § 22.921 (**If the case has been litigated extensively, the judge may have sufficient reliable information to determine whether the class should be certified and whether the settlement terms are the fair, reasonable, and adequate result of arms -length negotiations."). 4. Rule(c)(2)(B) and (e)(1) Criteria Regarding Notice Where parties seek certification of a settlement class pursuant to Rule 23(b)(3) and approval of a settlement pursuant to Rule 23(e), notice of the class settlement must meet the requirements of both Rule 23(c)(2)(B) and Rule 23(e)(1). In re CertainTeed Roofing Shingle Prods. Liab. Litig., 269 F.R.D. 468, 480 (E.D. Pa. 2010); accord In re Ser:one Prods. Liab. Litig., 231 F.R.D. 221, 231 (S.D. W. Va. 2005); see also MCL 4th § 21.633 ("For economy, the notice under Rule 23(c)(2) and the Rule 23(e) notice are sometimes combined."). Rule 23(c)(2)(B) states: For any class certified under Rule 23(b)(3), the court must direct to class members the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice must clearly and concisely state in plain, easily understood language: (i) the nature of the action; (ii) the definition of the class certified; (iii) the class claims, issues, or defenses; (iv) that a class member may enter an appearance through an attorney if the member so desires; (v) that the court will exclude from the class any member who requests exclusion; (vi) the time and manner for requesting exclusion; and (vii) the binding effect of a class judgment on members under Rule 23(c)(3). Fed. R. Civ. Proc. 23(c)(2)(B). The notice requirements of Rule 23(e)(1) are less stringent: -15- Case 2:10-md-02179-CJB-SS Document 6418 Filed 05/02/12 Page 16 of 47 (1) The court must direct notice in a reasonable manner to all class members who would be bound by the [settlement] proposal. Fed. R. Civ. P. 23(e)(1). Subject to the minimum requirements of due process, notice under Rule (e)(1) gives the Court discretion over the form and manner of notice. See Fowler v. Birmingham News Co., 608 F.2d 1055, 1059 (5th Cir. 1979). Significantly, compliance with Rule 23(c)(2)(B) can satisfy the Due Process Clause. See In re Enron Cap. Secs., Derivs., & "ERISA " Litig., No. M.DL-1446, 2008 WL 4178151, at *2 (S.D. Tex. Sept. 8, 2008). D. OBJECTIONS The Court has received objections to the Joint Motion for Preliminary Approval of the Proposed Settlement from parties excluded from the proposed class definition, who urge that they should be included in the Proposed Settlement. (See Rec. Docs. 6239 (State of Florida), 6317 (Sea Farms, Inc.), 6345 & 6382 (Tobatex, Inc. and M.R.M. Energy, Inc.), 6370 (State of Miss.), 6383 (Abraham B. Bernard d/b/a United Marine Shipyard), 6406 (Asian American Hotel Owners Ass'n)). Generally, non -class members do not have standing to object to a class settlement. See 4 William B. Rubenstein, et al., Newberg on Class Actions Q 11:55 (4th ed. 2011) ("Individuals who are not class members because they are outside the definition of the class or have opted out are on a different footing [from class members]. They are not subject to res judicata by the settlement. Class action settlements typically leave intact the legal claims of others. Therefore, nonsettling parties in multiparty cases ordinarily lack standing to object to settlements on appeal. Also, there is an interest in encouraging settlements, particularly in class actions, which are often complex, drawn out proceedings demanding a finite share of judicial resources."); see also McBean v. City of New York, 233 F.R.D. 377, 384 (S.D.N.Y. 2006) ("1t was perfectly reasonable —and not at all unfair or un-adversarial—for class counsel to define the class in a way that, in their opinion, would lead to the best recovery for the class. Fairness does -16- Case 2:10-md-02179-CJB-SS Document 6418 Filed 05/02/12 Page 17 of 47 not require class counsel to act on behalf of individuals not in the class, even if at one time those individuals were included in a pretrial class definition."). Significantly, claims excluded from the proposed settlement are unaffected and preserved. The objections of Halliburton Energy Services, Inc. (Rec. Doc. 6350), a non -settling defendant, are unavailing for similar reasons. See 4 Neivberg on Class Actions § 11:55, supra.18 The Court has also received objections from parties who ostensibly meet the standing requirement. Objections raised by these parties include: (1) the Proposed Settlement does not include interim payments (State of Florida, Rec. Doc. 6239); (2) the Seafood Compensation Program does not adequately protect against future risk of fisheries damage (Gulf Organized Fisheries in Solidarity & Hope, Rec. Doc. 6353); (3) VoO charter party payments are improperly offset by economic loss payments for those not within the Seafood Compensation Program (Nat'l Ass'n of Charterboat Operators, Rec. Doc. 6402; Debbie Wilhite, Rec. Doc. 6403; Jack Wilhite, Rec. Doc. 6405; Gary Jarvis, Rec. Doc. 6406; Michael Whitley, Rec. Doc. 6407; Pamela Dana, Rec. Doc. 6408); (4) the benchmark period for the Shrimp Compensation Program should be altered so as to not require 2009 in the calculation (Unnamed Commercial Fishermen and Shrimpers, Rec. Doc. 6371); (5) the Proposed Settlement does not accurately calculate the losses of businesses in the shrimp processing industry and gives preferential treatment to shrimpers, etc., as compared to shrimp processers, etc., further down the chain of commerce (American Shrimp Processors Ass'n, Rec. Doc. 6368); (6) the Proposed Settlement improperly "` "[N]onsettling defendants in a multiple defendant litigation context have no standing to object to the fairness or adequacy of the settlement by other defendants, but they may object to any terms that preclude them from seeking indemnification from the settling defendants. Nonsettling defendants also have standing to object if they can show some formal legal prejudice to them, apart from loss of contribution or i idemnity rights." 4 Newberg on Class Actions § 11:55, supra (footnotes omitted). The terms of the proposed settlement do not appear to inhibit Halliburton's indemnification or contribution rights, particularly given that BP would assign most of the rights it may have for contribution or indemnity to the class members, who in turn, agree not to pursue compensatory claims or execute any judgments for compensatory damages that may be awarded. See note 13, supra. It also does not appear that Halliburton has shown any other form of legal prejudice that would give it standing to object. -17- Case 2:10-md-02179-CJB-SS Document 6418 Filed 05/02/12 Page 18 of 47 gives preferential treatment to hoteliers with properties near shore as compared to hoteliers with properties away from the shore (Asian American Hotel Owners Ass'n, Rec. Doc. 6404); and (7) the 6% Hold -Back should not apply where a GCCF settlement offer was accepted on March 8, 2012, during the Transition Process and prior to the Proposed Settlement (Br. of Kuzma Petrovich, Jr., Rec. Doc. 6317). The Court has considered these objections; however, in light of the standard governing preliminary approval, the opportunity for objections and opting out during the notice period, the heightened standard during the final approval stage, and the terms of the Proposed Settlement, the Court finds these objections do not warrant denial of preliminary approval. 19 E. ORDER WITH REASONS NOW, THEREFORE, based upon (i) the Settlement Agreement; (ii) the supporting briefs and papers including the Interim Class Counsel's and BP's Joint Supplemental Motion Related to the Economic and Property Damage Settlement; (iii) the proposed forms of Class Notice; (iv) the program for directing notice to the Class submitted to the Court; (v) this Court's familiarity with the questions of fact and law arising in these proceedings; (vi) this Court's observation of the conduct of counsel for the parties in prosecuting and defending this litigation, coordinating discovery, preparing for trial, and negotiating at arm's length a proposed settlement with the participation of Magistrate Judge Shushan; (vii) the recommendations of counsel for the moving parties; (viii) the requirements of substantive and procedural law; and (ix) this Court's satisfaction that the proposed settlement appears to fall within the range of possible final " As to the specific concern over the fact that the Proposed Settlement does not provide for interim payments (see Rec. Doc. 6239), the parties have represented that BP will continue to receive and process Oil Pollution Act ("OPA") claims for those excluded from the settlement class and those who opt out of the settlement class. jr. of Prelim. Approval Hr'g, 4/25/12, pp. 14-15. 49-50, Rec. Doc. 6395), see also Attach. "A" to Supp. Decl. of Cameron Azari, Ques. 15 & 25, Rec. Doc. 6414-4 at 15, 23). Presumably, that process will include an interim payments process, as well as any other requirements imposed by OPA. See 33 U.S.C. §} 2705(a), 2714(b)(2 ). -18- Case 2:10-md-02179-CJB-SS Document 6418 Filed 05/02/12 Page 19 of 47 approval, and that a hearing should be held after the best practicable notice to members of the Class to finally determine if the ternis of the proposed Settlement are fair, reasonable, and adequate within the meaning of Fed. R. Civ. P. 23(e), THE FOREGOING MOTIONS (Rec. Docs. 6266, 6269) ARE GRANTED, AND IT IS HEREBY ORDERED AND DECLARED THAT: I. Jurisdiction and Venue The Cotu-t has jurisdiction over these proceedings pursuant to 28 U.S.C. §§ 1331 & 1333, and 33 U.S.C. § 2717(b). 2. Venue is also proper in this .District pursuant to 28 U.S.C. §§ 1391 & 1407, and 33 U.S.C. § 2717(b). II. Preliminary and Conditional Certification of Class for Settlement Purposes Only 3. On a preliminary basis and for settlement purposes only, for purposes of enabling and effectuating the issuance of notice and setting of a formal hearing to determine whether the terms of the Proposed Settlement should be finally approved as fair, reasonable, and adequate, the proposed Economic and Property Damages Settlement Class is conditionally certified under Federal Rule of Civil Procedure 23(a) & 23(b)(3). The class is defined as follows: (a) CLASS DEFINITION`0 Economic and Property Damages Settlement Class shall mean the NATURAL PERSONS and ENTITIES defined in this Section 1, subject to the EXCLUSIONS in Section 2 below. If a person or entity is included within the geographical descriptions in Section 1.1 or Section 1.2, and their claims meet the descriptions of one or more of the Damage Categories described in Section 1.3, that person or entity is a member of the Economic and Property Damages Settlement Class, unless the person or entity is excluded under Section 2: 20 The Class Definition includes certain capitalized defined terms, the meaning of which is given in the Deepivater Horizon Economic and Property Damages Settlement Agreement. (Rec. Doc. 6276). Exhibits referenced in the above definition are included as exhibits to the Settlement Agreement. Exhibits 22 and 23 are also reproduced as Appendixes A and B. respectively, to this Order. Case 2:10-md-02179-CJB-SS Document 6418 Filed 05/02/12 Page 20 of 47 1.1. Individuals. Unless otherwise specified, all Natural Persons residing in the United States who, at any time between April 20, 2010 and April 16, 2012, lived in, worked in, were offered and accepted work in, owned or leased real or personal property located within, or owned or leased or worked on a vessel harbored or HOME PORTED in the States of Louisiana, Mississippi, or Alabama, the counties of Chambers, Galveston, Jefferson and Orange in the State of Texas, or the counties of Bay, Calhoun, Charlotte, Citrus, Collier, Dixie, Escambia, Franklin, Gadsden, Gulf, Hernando, .Hillsborough, Holmes, Jackson, Jefferson, Lee, Leon, Levy, Liberty, Manatee, Monroe, Okaloosa, Pasco, Pinellas, Santa Rosa, Sarasota, Taylor, Wakulla, Walton and Washington in the State of Florida, including all adjacent Gulf waters, bays, estuaries, straits, and other tidal or brackish waters within the States of Louisiana, Mississippi, Alabama, or those described counties of Texas or Florida (the "GULF COAST AREAS") (Exhibit 22), or the U.S. waters of the Gulf of Mexico and all adjacent bays, estuaries, straits, and other tidal or brackish waters within the Gulf Coast Areas, as specifically shown and described in Exhibit 23 ("SPECIFIED GULF WATERS"), or worked on a vessel in Specified Gulf Waters after April 20, 2009. With respect to SEAFOOD CREW Claims, persons must have worked on a vessel that landed SEAFOOD in the Gulf Coast Areas after April 20, 2009. and 1.2. Entities. All Entities doing business or operating in the Gulf Coast Areas or Specified Gulf Waters that: 1.2.1. at any time from April 20, 2010 to April 16, 2012, owned, operated, or leased a physical facility in the Gulf Coast Areas or Specified Gulf Waters and (A) sold products in the Gulf Coast Areas or Specified Gulf Waters (1) directly to CONSUMERS or END USERS of those products or (2) to another Entity that sold those products directly to Consumers or End Users of those products, or (B) regularly purchased Seafood harvested from Specified Gulf Waters in order to produce goods for resale; 1.2.2. are service businesses with one or more full-time employees (including owner -operators) who performed their full-time services while physically present in the Gulf Coast Areas or Specified Gulf Waters at any time from April 20, 2010 to April 16, 2012; or 1.2.3. owned, operated, or leased a vessel that (1) was Home Ported in the Gulf Coast Areas at any time from April 20, 2010 to April 16, 2012, or (2) landed Seafood in the Gulf Coast Areas at any time from April 20, 2009 to April 16, 2012; or 1.2.4. owned or leased REAL PROPERTY in the Gulf Coast Areas at any time from April 20, 2010 to April 16, 201.2, 1.3. Individuals and Entities who meet the geographical descriptions of Sections 1.1 or 1.2 above are included in the Economic Class only if their -20- Case 2:10-md-02179-CJB-SS Document 6418 Filed 05/02/12 Page 21 of 47 Claims meet the descriptions of one or more of the Damage Categories described below. 1.3.1. The following are summaries of the Damage Categories, which are fully described in the attached Exhibits 1A-15: 1.3.1.1. Seafood Compensation Program. Damages suffered by a COMMERCIAL FISHERMAN, Seafood Crew, or SEAFOOD VESSEL OWNER that owned, operated, leased or worked on a vessel that (1) was Home Ported in the Gulf Coast Areas at any time from April 20, 2010 to April 16, 2012, or (2) Landed Seafood in the Gulf Coast Areas at any time from April 20, 2009 to April 16, 2012; and damages suffered by, inter alia, OYSTER LEASEHOLDERS and IFQ Owners. (Exhibit 10). Claims for Economic Damage arising from the fishing, processing, selling, catching, or harvesting of menhaden (or '.pogy") fish are excluded from the Seafood Compensation Program and other Economic Damage Claims under this Agreement. 1.3.1.2. Economic Damage Category. .Loss of income, earnings or profits suffered by Natural Persons or Entities as a result of the DEEPWATER HORIZON INCIDENT, subject to certain Exclusions. (Exhibits 16-19) 1.3.1.3. Subsistence Damage Category. Damages suffered by Natural Persons who fish or hunt to harvest, catch, barter, consume or trade Gulf of Mexico natural resources, including Seafood and GAME, in a traditional or customary manner, to sustain their basic or family dietary, economic security, shelter, tool or clothing needs, and who relied upon subsistence resources that were diminished or restricted in the geographic region used by the CLAIMANT due to or resulting from the Deepwater Horizon Incident. (Exhibit 9) 1.3.1.4. VoO Charter Payment Category. Damages suffered by Natural Persons or Entities who registered to participate in BP's Vessels of Opportunity ("VoO") program and executed a VoO MASTER VESSEL CHARTER AGREEMENT with BP, Lawson, US.MS, USES, DRC, or any other BP subcontractor as CHARTERER, and completed the initial VoO training program. 1.3.1.5. Vessel Physical Damage Category. Physical damage that was sustained by an eligible Claimant's eligible vessel due to or resulting from the Deepwater Horizon Incident or the Deepwater Horizon Incident response cleanup operations, including the Vessels of Opportunity Program. (Exhibit 14) 1.3.1.6. Coastal Real Property Damage Category. Damages alleged by a Coastal Real Property Claimant that meet the requirements set forth in the Coastal Real Property Claim Framework. -21- Case 2:10-md-02179-CJB-SS Document 6418 Filed 05/02/12 Page 22 of 47 1.3.1.7. Wetlands Real Property Damage Category. Damages alleged by a Wetlands Real Property Damage Claimant that meet the requirements set forth in the Wetlands Real Property Claim Framework. 1.3.1.8. Real Property Sales Damage Category. Damages alleged by a Real Property Sales Claimant that meet the requirements set forth in the Real Property Sales Framework. 1.3.1.9. Individuals/.Employees in Otherwise Excluded Oil and Gas, Gaming, Banking, Insurance, Funds, Defense Contractors, Developers Industries, and any Entity selling or marketing BP -branded fuel (including jobbers and branded dealers): As more fully described in Exhibit 16 and Section 5.10 below, individuals and employees of businesses and employers in these otherwise excluded industries described in Section 2 may submit Claims for Economic Damage outside of these excluded industries, and may pursue all other recovery permitted under other aspects of the Settlement. 1.3.1.10. Individuals/Employees in Support Services to Oil and Gas Industry: As more fully described in Exhibit 16 and Section 5.10 below, individuals and employees of businesses/employers in the SUPPORT SERVICES TO OIL AND GAS INDUSTRY, described in Exhibit 16 may submit Claims for Economic Damage incurred as a result of their employment in the Support Services to Oil and Gas Industry for (i) non -moratoria business interruption from Support Services to Oil and Gas Industry activities and (ii) non oil and gas industry Economic Damages due to or resulting from the Deepwater Horizon Incident, except for moratoria claims. As is also more fully described in Exhibit 16, these individuals and employees may also pursue Claims for other Economic Damage outside the Support Service to Oil and Gas Industry, and may pursue all other recovery permitted under other aspects of the Settlement. 1.3.1.11. Businesses/Employers in Otherwise Excluded Gaming, Banking, Insurance, Funds, Defense Contractors and Developers Industries: As more fully described in Exhibit 16 and Section 5.10 below, businesses and employers in these otherwise excluded industries described in Section 2 may submit Claims only for Coastal Real Property Damage and Wetlands Real Property Damage, but are not entitled to recover under any other aspect of the Settlement. 1.3.1.12. Businesses/Employers in Support Services to Oil and Gas Industry: As more fully described in Exhibit 16 and Section 5.10 below, businesses and employers in the "Support Services to Oil and Gas Industry," described in Exhibit 16, may submit Claims for (i) non - moratoria business interruption from Support Services to Oil and Gas Industry activities and. (ii) non -oil and gas industry Economic -22- Case 2:10-md-02179-CJB-SS Document 6418 Filed 05/02/12 Page 23 of 47 Damages arising out of, due to, resulting from, or relating in any way to, directly or indirectly, the Deepwater Horizon Incident, except for moratoria claims, and may pursue all other recovery permitted under other aspects of the Settlement. (b) Exclusions from the Economic and Property Damages Settlement Class Definition 2.1. Notwithstanding the above, the following individuals and Entities, including any and all of their past and present predecessors, successors, personal representatives, agents, trustees, insurers, reinsurers, indemnitors, subrogees, assigns, and any other Natural Person, legal or juridical person or Entity entitled to assert any Claim on behalf of or in respect of any such individual or Entity in their respective capacities as such are excluded from the Economic Class. 2.2. Excluded Individuals or Entities: 2.2.1. Any Economic Class Member who or which timely elects to be excluded from the Economic Class under the deadlines and procedures to be set forth in the ECONOMIC AND PROPERTY DAMAGES SETTLEMENT CLASS ACTION SETTLEMENT NOTICE. 2.2.2. Defendants in MDL 2179, and individuals who are current employees, or who were employees during the CLASS PERIOD, of BP or other defendants in MDL 2179. 2.2.3. The Court, including any sitting judges on the United States District Court for the Eastern District of Louisiana, their law clerks serving during the pendency of the MDL, and members of any such judge's or current law clerk's immediate family. 2.2.4. The following exclusions are based on the substantive nature of the business, not the legal or juridical form of that business. Any of the following types of Entity, or any Natural Person to the extent he or she alleges Economic Damage based on their employment by such an Entity, during the Class Period are excluded: 2.2.4.1. Financial Institutions as identified in the NAICS codes listed on Exhibit 18, which include, by way of example, commercial banks; savings institutions; credit card issuers; credit insurers; factors or other sales finance entities; financial or investment advisers or portfolio managers, fund managers; investment banking entities; lending institutions; real estate mortgage or lending entities; brokers or dealers of securities, commodities, commodity contracts or loans; securities or commodities exchanges, entities serving as custodians, fiduciaries or -23- Case 2:10-md-02179-CJB-SS Document 6418 Filed 05/02/12 Page 24 of 47 trustees of securities or other financial assets; or entities engaged in other financial transaction intermediation, processing, reserve or clearinghouse activities, provided, that the following shall not be excluded solely pursuant to this Section 2.2.4.1 unless they are subject to a different exclusion: stand-alone ATMs, credit unions, pawn shops, businesses engaged predominantly in making payday loans or paycheck advances and businesses that sell goods and services and offer financing on these purchases to their customers. 2.2.4.2. Funds, Financial Trusts, and Other Financial Vehicles, as identified in the NAICS codes listed on Exhibit 18, after giving effect to the bracketed exceptions contained in NAICS Codes 525920 and 523991, which include by way of example, public -open end investment funds; investment funds; real estate investment trusts; REMICS; mutual funds; money market funds; derivatives; health and welfare funds; insurance funds; pension funds; financial trusts; and special purpose financial vehicles provided, that successions, estates, testamentary trusts, trusts of Natural Persons, bankruptcy estates, limited liability companies, corporations, Sub -Chapter "S" corporations, partnerships, limited partnerships, joint ventures, and any other businesses or juridical Entities, shall not be excluded pursuant to this Section 2.2.4.2 solely by reason of their form of legal or juridical structure or organization, except to the extent they are excluded pursuant to another exclusion in Section 2.2 of this Agreement. 2.2.4.3. Gaming, as identified in the NAICS codes listed on Exhibit 18, which includes, by way of example, casinos; casino hotels; off-track betting parlors; racetracks and other gambling establishments provided, that the following shall not be excluded solely pursuant to this Section 2.2.4.3 unless they are subject to a different exclusion: (a) bingo parlors, and (b) video gaming at bars, bingo parlors, hotels, off-track betting parlors, racetracks, restaurants and truck stops. 2.2.4.4. Insurance Entities, as identified in the NAICS codes listed on Exhibit 18, which include, by way of example, insurance carriers issuing disability, health, life, medical, property and casualty, title or other insurance; reinsurers; insurance agencies and brokerages; underwriting agencies or organizations; claims adjusters -24- Case 2:10-md-02179-CJB-SS Document 6418 Filed 05/02/12 Page 25 of 47 and processors; third -party insurance or fund administrators; or other insurance -related businesses. 2.2.4.5. Oil and Gas Industry, as identified in the NAICS codes listed on Exhibit 17, which includes by way of example, firms engaged in: extracting crude petroleum, natural gas or other hydrocarbons; drilling wells; preparing, maintaining or constructing petroleum or natural gas well - sites or other mineral extraction sites; mining; maintaining or constructing petroleum or natural gas pipeline or distribution facilities; pipeline distribution of crude petroleum, refined petroleum, oil or natural gas; petroleum or natural gas refming or other mineral refining and/or manufacturing; manufacturing petroleum lubricating oil and grease, petrochemical products, or other petroleum and coal products or chemical products derived from extracted minerals; merchant wholesaling of construction and mining (except oil well) machinery and equipment; wholesale distribution of oil well machinery, equipment and supplies; wholesale distribution of petroleum, petroleum products, other extracted minerals, chemical products produced from extracted or refined minerals, petroleum bulk stations and terminals, petroleum and petroleum products merchant wholesalers. 2.2.4.6. Defense Contractors/Subcontractors, including Firms which derive in excess of at least 50% of their annual revenue from contracts with the United States Department of Defense and Individuals whose employer qualifies as a Defense Contractor. 2.2.4.7. Real Estate Developers, including any Natural Person or Entity that develops commercial, residential or industrial properties. This includes, but is not limited to, any Entity developing an entire subdivision (as defined by the law of the state in which the parcel is located) of Real Property, including condominiums with multiple residential units and/or a residential subdivision with contiguous home sites and homes, provided, however, that Real Estate Developers shall be eligible to assert Coastal Real Property Claims under Section 5.7 and Real Property Sales Damage Claims under Section 5.9 2.2.4.8. Any Entity selling or marketing BP -branded fuel, including jobbers and branded dealers. -25- Case 2:10-md-02179-CJB-SS Document 6418 Filed 05/02/12 Page 26 of 47 2.2.5. GOVERNMENTAL ORGANIZATIONS, as defined in this Agreement, provided that Native American tribal Entities may consent to participate in the Settlement as to otherwise eligible Claims. 2.2.6. Any Natural Person or Entity who or that made a claim to the GCCF, was paid and executed a GCCF RELEASE AND COVENANT NOT TO SUE, provided, however, that the execution of a GCCF Release and Covenant Not to Sue shall not prevent a Natural Person or Entity from making a VoO Charter Payment Claim or a Vessel Damage Claim, nor shall a release covering only bodily injury prevent a Natural Person from making Claims under this Agreement. 4. With respect to the Economic Class Definition, the Court hereby adopts the defined terms and definitions set forth in the Economic and Property Damages Settlement Agreement. The Proposed Settlement and its Exhibits shall be provided to potential class members via the Notice Plan, such as by posting on the Settlement website. 5. The Court preliminarily and conditionally finds, for settlement purposes only, that the terms of the Proposed Settlement are sufficiently fair, reasonable, adequate, and consistent with governing law to warrant: (a) preliminary approval; (b) the preliminary and conditional certification of the settlement class; (c) the scheduling of the Fairness Hearing; (d) the distribution of Notice to the Class. 6. The Court is satisfied for preliminary purposes that a settlement class made up of persons or entities having claims in the specified categories should be conditionally certified. The Court is further satisfied that, pursuant to the terms of the Proposed Settlement, Class Members who opt out or who possess reserved claims will be able to pursue those claims effectively outside the Class Settlement. 7. Specifically, this Court fords and holds that the Economic Loss and Property Damage Settlement Class satisfies the following requirements of class action case law, Federal Rule of Civil Procedure Rule 23(a), and Federal Rule of Civil Procedure 23(b)(3): (a) Ascertainability: The Class, as defined above, is discrete and ascertainable. It is objectively defined by reference to geographical boundaries and other -26- Case 2:10-md-02179-CJB-SS Document 6418 Filed 05/02/12 Page 27 of 47 criteria that are known to or knowable by Class Members, and by detailed compensation frameworks that include eligibility criteria, such that those within the geographical bounds of the Class can determine whether they have experienced any of the categories of cognizable injury that are payable under the Settlement Agreement and that qualify them for Class membership. (b) Numerosity: The Economic Loss and Property Damage Settlement Class consists of more than one -hundred thousand individuals and businesses dispersed across the Gulf Coast that either (1) have already filed short -form joinders; (2) have claims pending before the Gulf Coast Claims Facility ("GCCF"); (3) filed a separate lawsuit; or (4) were harmed by the Deeptivater Horizon spill but have not filed a claim. The class is so numerous that joinder is impractical. Hence, Rule 23(a)(1)'s numerosity requirement is satisfied. (c) Commonality: The commonality requirement is satisfied because members of the Class share numerous common legal and factual questions, the resolution of which would advance the determination of one or more issues in the case. See Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 625 (1999). Common factual issues include (1) BP's share of liability compared to other defendants, (2) the facts of BP's conduct in designing the well, and (3) the facts of BP's conduct in seeking to control and contain the spill. The answers to such questions are the same no matter who in the Class asks them, or how many times they are asked. Common legal issues arising under federal law include (I) preemption questions regarding the Outer Continental Shelf Lands Act, the Clean Water Act, and federal maritime law; (2) statutory construction issues under each of these statutes, including the standard of causation that applies under the Oil Pollution Act, and (3) questions under federal maritime law, including the standard under which punitive damages are available. The questions are capable of classwide resolution, and the answers to these common questions are both critical to the litigation and have shaped the terms and conditions of the proposed Settlement. Accordingly, Rule 23(a)(2)'s commonality requirement is satisfied. (d) Typicality: The claims of the Class Representatives are typical of the claims of the Class. The Class Representatives' claims arise from the same underlying event and course of conduct; the Class Representatives share the same federal legal theories as the claims of the Class Members; and the Class Representatives include at least one representative asserting each category of loss covered by the proposed Settlement. Typicality "focuses on the similarity between the named plaintiffs' legal and remedial theories and the theories of those whom they purport to represent." Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 625 (5th Cir. 1999). In addition, the Class Representatives will advance the interests of all Class Members. Rule 23(a)(3)'s typicality requirement is therefore satisfied. (e) Adequacy: "Rule 23(a)(4) is satisfied where: (1) the named plaintiffs' counsel will prosecute the action zealously and competently; (2) the named plaintiffs possess a sufficient level of knowledge about the litigation to be -27- Case 2:10-md-02179-CJB-SS Document 6418 Filed 05/02/12 Page 28 of 47 capable of taking an active role in and exerting control over the prosecution of the litigation; and (3) there are no conflicts of interest between the named plaintiffs and the absent class members." Hamilton v. First Am. Title Ins. Co., 266 F.R.D. 153, 163-64 (N.D. Tex., 2010); see also Feder v. Elec. Data Sys. Corp., 429 F.3d 125, 129 (5th Cir. 2005). Here, the Class Representatives have been consulted and participated in the determination of the settlement terms, will fairly and adequately protect the interests of the Class, have no conflicts with each other, and are represented by qualified counsel who are competent to represent the Class and prosecute this litigation. The Class Counsel regularly engage in complex litigation similar to the present case and have demonstrated their dedication by devoting substantial effort, energy, and resources to the prosecution of this action. See Stimson v. Exxon Corp., 280 F.3d 554, 563 (5th Cir. 2002). Accordingly, Rule 23(a)(4)'s adequacy requirement is met. (f) Predominance: This is, unlike most mass torts, a single -incident disaster, governed predominantly by a single body of federal law including OPA and uniform federal maritime law. Common factual and legal questions include liability for economic damages arising from the blowout of the MC252 Well and the sinking of the Deepwater Hori.on. In the absence of settlement, as the design of Phase I of the Limitation and Liability Trial illustrates, liability would be determined predominately under a single body of federal statutory and/or common law. As noted above, there are dozens of legal and factual issues that are common to the class and the resolution of which will determine the liability of BP to the class in one proceeding. In contrast to these numerous common issues, the individual questions are few, and generally only concern issues of individual causation and damage calculation. Recognizing the significance of the common issues to this case long before a settlement was contemplated, the Court (1) stayed the resolution of all motions affecting only individual cases, see Pretrial Order 15 (Rec. Doc. 676), and (2) designed a phased trial structure in which the first three phases were allocated to the resolution of common issues, see Pretrial Order 41, as amended (Rec. Doc. 4083). The proposed Economic Class is sufficiently cohesive to warrant adjudication by representation. The claims are related, cohesive, and all arise out of the same nucleus of operative facts. See Amchem Prods. v. Windsor, 521 U.S. 591, 620-21 (1997); Sullivan v. DB Invs., Inc., 667 F.3d 273, 297, 338 (3d Cir. 2011) (en banc), cert. denied; Murrav v. Sullivan, --- S. Ct. ----, No. 11-1111, 2012 WL 779996 (U.S. Apr. 2, 2012). Accordingly, Rule 23(b)(3)'s predominance requirement is satisfied. (g) Superiority: This Court need not decide whether a class is superior from the standpoint of trial management, nor need the parties agree or concede on this point. When confronted with a "request for settlement -only class certification, a district court need not inquire whether the case, if tried, would present intractable management problems ... for the proposal is that there be no trial." Amchem, 521 U.S. at 620 (citation omitted); Billitteri v. Sec. Am., Inc., 2011 WL 3586217, at *8 (N.D. Tex. Aug. 4, 2011); In re Chinese - Manufactured Dry Wall Prods., Liab. Litig., 2012 WL 92498 (E.D. La. Jan. -28- Case 2:10-md-02179-CJB-SS Document 6418 Filed 05/02/12 Page 29 of 47 10, 2012). This is an appropriate case for class treatment, as the litigation is unusually complex and expensive, and it involves many thousands of plaintiffs whose claims arise from the same event, some with comparatively modest claims. Class treatment therefore allows many plaintiffs to recover who might otherwise be unable to do so. Moreover, a settlement that provides a comprehensive, court -supervised, and internally consistent mechanism for compensating plaintiffs is superior to many thousands of separate determinations of damages. The litigation of these issues on a case -by -case basis could give rise to disproportionate and undue expense and delay for the Parties, and such piecemeal litigation would needlessly tax the resources of the judiciary and the Parties. A class action procedure, with clearly defined roles for the parties, their counsel, and the Court, and the due process protections for absent class member claimants uniquely afforded by Rule 23, is available here, and it is superior to other available methods for fairly and efficiently resolving this controversy. Rule 23(b)(3)'s superiority requirement is satisfied. III. Preliminary Approval of Class Action Settlement and Fairness Hearing 8. The Court preliminarily approves the Economic and Property Damages Settlement Agreement filed with this Court on April 18, 2012 (Rec. Doc. 6276-1), as amended as set forth in Interim Class Counsel's and BP's Joint Supplemental Motion Related to the Economic and Property Damages Settlement, as fair, reasonable, adequate, entered in good faith, free of collusion, and within the range of possible judicial approval. 9. The Court finds, upon its own observation and experience over the course of this litigation, including monthly status conferences, weekly discovery conferences, extensive pleadings and motion practice, the design, organization and scheduling of a multi -phase trial, and the intensive discovery and preparation for these trial phases, that counsel for the Parties have significant experience in litigating complex litigation and class actions in general, have comprehensive knowledge of the issues in this litigation, and brought this experience and information to bear in negotiating a settlement suited to the circumstances of this litigation. 10. The Parties engaged in a multi -month, extensive, arms -length settlement process, free of collusion, and overseen by Magistrate Judge Shushan. The Parties engaged in substantial -29- Case 2:10-md-02179-CJB-SS Document 6418 Filed 05/02/12 Page 30 of 47 discovery and motion practice to evaluate the merits of the claims and defenses and extensively investigated and analyzed the facts and legal issues surrounding those claims and defenses. Pretrial discovery and trial preparation included approximately 311 depositions, the production, review, and analysis of millions of documents; the retention and discovery of numerous scientific, technical, and industry experts; and the extensive associated investigation and analyses of the facts and legal issues surrounding relevant claims and defenses. 11. Over the course of these many months, the Parties' counsel, assisted and informed by experts and colleagues with specialized knowledge of various aspects of the litigation and the array of claims categories, engaged in numerous and ongoing settlement discussions and negotiation sessions, both in person and via telephone conference. These activities were conducted by the authorized representatives (including, for the Plaintiffs, Plaintiffs' Co- Liaison/Interim Class Counsel and many members of the Court -appointed PSC) and proceeded without disrupting, delaying, or detracting from the Parties' thorough trial preparations, under the brisk and systematic trial preparation schedule set and maintained by this Court. During these lengthy settlement negotiations, which commenced in February 2011 and continued for more than one year, the Parties negotiated the detailed, complex, and carefully thought-out claims categories and benefits of this settlement. Likewise, the Parties negotiated the precise language and terms of the Proposed Settlement and Exhibits; the proposed administrative and transition orders; the claims forms and procedures to enable Class members to make claims under the settlement without delay; and the comprehensive Notice Plan to provide notice of the settlement, the approval process, and the dates, deadlines, and options that are important to the Class. 12. As part of these negotiations, the Parties, with the assistance of several types of subject matter experts, engaged in an extensive analysis of various types of economic injuries -30- Case 2:10-md-02179-CJB-SS Document 6418 Filed 05/02/12 Page 31 of 47 sustained by class members as a result of the Deepwater Horizon Incident. Based on this comprehensive analysis and investigation, counsel for the Parties had a solid basis for concluding that the Proposed Settlement provides meaningful benefits for class members that may have suffered economic losses as a result of the Deepwater Horizon Incident. 13. The Parties requested that this Court facilitate the transition from the GCCF to a Court -Supervised program, negotiated the details of a transition process, and submitted these processes to enable the Court to issue a series of Transition Orders commencing on March 8, 2012. The transition processes described in these orders were designed by the Parties to effectuate the directive of the Court that such transition take place without material interruption or delay to the processing and payment of claims pending in the GCCF, and to effectuate as seamless as practicable a transition to a Court -Supervised process. The Parties also designed, and made preparations for the immediate establishment, staffing, and operation of a Court - Supervised Settlement Program to commence delivery of the benefits of the settlement immediately upon entry of this Order. 14. The comprehensive system of claims frameworks featured in the Settlement Agreement is the product of many months of intensive negotiation, provides for class recovery unlimited by any aggregate cap, does not constitute a limited fund to be divided among competing claimants (with the sole exception of the $2.3 billion Seafood Compensation Program, whose allocation was placed with a court -appointed neutral), and does not place class members in conflict or competition with each other. The settlement thus provides "a procedure for distribution of the settlement fund that treats class claimants equitably amongst themselves." In re Katrina Canal Breaches Litig., 628 F.3d 185, 189 (5th Cir. 2010). The Parties agreed that claims may be made and paid under the terms of the Proposed Settlement without the imprimatur of final settlement approval. This is an unusual and particularly beneficial feature of the -31- Case 2:10-md-02179-CJB-SS Document 6418 Filed 05/02/12 Page 32 of 47 Proposed Settlement for Class Members, as is the provision that any Class Counsel fees and costs awarded by the Court will not be deducted from Class Members' recoveries or their private attorneys' fees, but will be paid by BP in addition to other class benefits. 15. At this stage, the Settlement Agreement appears fair, has no obvious deficiencies, does not improperly grant preferential treatment to the Class Representatives or to segments of the Class, and does not grant excessive compensation to attorneys. It falls within the range of possible judicial approval. The Proposed Settlement thus merits preliminary approval, particularly in light of the law collected in the Manual for Complex Litigation (Fourth) §§ 21.612, 21.62, and 21.632 (2004). 16. This preliminary approval is subject to further and final consideration at a Fairness Hearing (the "Fairness Hearing"), which shall be held at 8:30 a.m. on November 8, 2012, before this Court in Courtroom C268 of the United States District Court for the Eastern District of Louisiana, 500 Poydras Street, New Orleans, Louisiana, 70130. The Class will be provided notice of the date, time, place and purpose of the Fairness Hearing as set forth in the Notice Plan approved and issued in connection with this Order. The Court may adjourn the Fairness Hearing, as necessary, upon notice (e.g. via the Court and Settlement websites) to the members of the Settlement Class. 17. At the Fairness Hearing, this Court will consider: (1) whether to grant final approval of the Proposed Settlement pursuant to Rule 23(e) as fair, reasonable, adequate, and in the best interests of the Class and to authorize all acts necessary to consummate and effectuate the terms and conditions of the Proposed Settlement; (2) whether the Court should certify the Class for settlement purposes only; (3) whether the Court should enter a Final Judgment approving the Settlement and dismissing the Action with prejudice while retaining jurisdiction to enforce the Final Judgment, Settlement Agreement, and any follow-on litigation, including -32- Case 2:10-md-02179-CJB-SS Document 6418 Filed 05/02/12 Page 33 of 47 litigation concerning Individual Releases signed pursuant to the Settlement Agreement's claims process; (4) whether the fees and expenses submitted by Class Counsel should be approved; (5) the merits of any objections to the Settlement; and (6) such other matters as the Court may deem necessary and appropriate. 18. In considering whether to grant final approval to the Settlement Agreement after the Fairness hearing, the Court will review the six "Reed factors": (1) [T]he existence of fraud or collusion behind the settlement; (2) the complexity, expense, and likely duration of the litigation; (3) the stage of the proceedings and the amount of discovery completed; (4) the probability of plaintiffs' success on the merits; (5) the range of possible recovery; and (6) the opinions of the class counsel, class representatives, and absent class members. Reed v. Gen. Motors, Corp., 703 F.2d 170, 172 (5th Cir. 1983) (citing Parker v. Anderson, 667 F.2d 1204, 1209 (5th Cir. 1982)); see also Union Asset Allgmt. Holding A.G. v. Dell, 669 F.3d 632, 639 (5th Cir. 2012); In re Katrina Canal Breaches Litig., 628 F.3d at 194; Newby v. Enron Corp., 394 F.3d 296, 301 (5th Cir. 2004). IV. Appointment of Class Counsel, Class Representatives, Claims Administrator, Claims Administration Vendors, and Guardian Ad Litem. 19. The counsel previously appointed in Pretrial Order 46 (Rec. Doc. 4226) as Plaintiffs' Co -Liaison Counsel and Interim Class Counsel, Stephen J. Herman and James Parkerson Roy, are hereby appointed as Lead Class Counsel. 20. The counsel previously appointed by the Court to serve on the Plaintiffs' Steering Committee and to serve the common benefit, as described in its Pretrial Orders Nos. 8, 9, and 46 (Rec. Docs. 506, 508, 4226), are hereby appointed to serve as Class Counsel for the Settlement Class under Rules 23(e) and 23(g), and shall act on behalf of the Class Representatives and all members of the Settlement Class: -33- Case 2:10-ind-02179-CJB-SS Document 6418 Filed 05/02/12 Page 34 of 47 Brian H. Barr Jeffery A. Breit Elizabeth J. Cabraser Philip F. Cossich, Jr. Robert T. Cunningham Alphonso Michael Espy Calvin C. Fayard, Jr. Robin L. Greenwald Ervin A. Gonzalez Rhon E. Jones Matthew E. Lundy Michael C. Palmintier Joseph F. Rice Paul M. Sterbcow Scott Summy Mikal C. Watts Conrad S. P. Williams 21. The Individuals and Entities identified as individual and representative Plaintiffs in the Amended Class Action Complaint for Private Economic Losses and Property Damages captioned Bon Secour Fisheries, Inc., et al. v. BP Exploration & Production Inc., et al., Civil Action, No. 12-970, filed herein on May 2, 2012 (Rec. Doc. 6412) are hereby appointed as the Class Representatives of the conditionally certified Economic Class, for settlement purposes only. 22. This Order is entered for the purposes of initiating, implementing, and facilitating the procedures contained in Fifth Circuit law and those recommended in the 11annal.for Complex Litigation (Fourth) to give notice to the entire Class and proceed toward the Fairness Hearing, to assist the Class Members in learning of their rights and options under the Settlement, and to assist the Court in making its independent, informed, and final determination as to whether the Settlement Agreement merits final approval and whether the Economic Class certification should be confirmed under Rules 23(a), (b)(3), and (e), for the collective purpose of effectuating the settlement. If this Settlement Agreement is terminated or is not consummated for any reason, the foregoing certification of the Class and appointment of Class Counsel and Class Representatives shall be vacated and of no further effect with respect to any party to, or claim asserted in, this action. 23. The Court appoints Patrick Juneau as Claims Administrator to oversee the Claims Administration Vendors, who will process the claims in accordance with the Settlement -34- Case 2:10-md-02179-CJB-SS Document 6418 Filed 05/02/12 Page 35 of 47 Agreement. The Court appoints Garden City Group, Inc., BrownGreer PLC, PwC, and Postlethwaite & Netterville as Claims Administration Vendors. The Court previously appointed Mr. Juneau and Lynn Greer of BrownGreer in connection with the Transition Process established by a prior Order (Rec. Doc. 5995). Given their prior transitional appointments, Mr. Juneau, Ms. Greer, and her firm, BrownGreer, are well -positioned to begin implementation of the claims process established in the Settlement Agreement along with PwC and Postlethwaite & Netterville, pending review of the Settlement Agreement in connection with the Fairness Hearing to be held November 8, 2012. The Deepwater Horizon Court Supervised Settlement Program shall commence operation on June 4, 2012, unless otherwise ordered by the Court. 24. This Court, BP, or Lead Class Counsel may request reports or information from the Claims Administrator. The Claims Administrator shall be responsible for reporting and providing information to the Court, BP, and Lead Class Counsel periodically, or at such frequency and in such a manner as the Court directs. 25. This Court shall have ongoing and exclusive jurisdiction over the Claims Administrator and Claims Administration Vendors and shall retain such jurisdiction through and after the Settlement Agreement's Effective Date, in the event it occurs. 26. The Honorable P. Raymond Lamonica, solely in his individual capacity, is appointed as the Guardian Ad Litem for the Economic and Property Damages Settlement Class Members who are minors, lack capacity, or are incompetent in accordance with Section 31 of the Economic and Property Damages Settlement Agreement and subject to appropriate commercial terns. Such appointment shall remain in effect until the entry of a Final Order and Judgment, if that event occurs, or the date the Agreement terminates, whichever occurs first. By agreement of the Parties, reasonable fees and costs of the Guardian Ad Litem shall be "Settlement Costs" within the meaning of the Settlement Agreement. See Settlement Agreement Section 5.12.1.1.3. -35- Case 2:10-md-02179-CJB-SS Document 6418 Filed 05/02/12 Page 36 of 47 The Guardian Ad Litem's duty in Section duty in Section 31.1 of the Settlement Agreement to "investigate the potential claims for all persons who are minors or incompetent adults, who, but for their lack of capacity, may otherwise participate as Economic Class Members" shall be interpreted to mean that the Guardian Ad Litem shall inquire of existing minor or incompetent claimants that the Guardian Ad Litem learns of whether they have any claims falling into any Category covered by and not excluded from the Settlement Agreement. 27. The Guardian Ad Litem shall make an independent investigation into the terms and provisions of the Economic Loss and Property Damage Settlement Agreement on behalf of those class members who are minors, lack capacity, or are incompetent, as described in Section 31 of the Medical Benefits Settlement Agreement. Based on that investigation, prior to the Fairness Hearing, the Guardian Ad Litem shall by October 8. 2012, report to the Parties and make a recommendation to this Court as to the fairness of the Economic Loss and Property Damages Settlement Agreement with respect to those class members who are minors, lack capacity, or are incompetent. 28. The Court approves the Economic and Property Damages Trust Agreement attached as Exhibit A to the parties' memorandum in support of Interim Class Counsel's and BP's Joint Supplemental Motion Related to the Economic and Property Damages Settlement, the creation of the Economic and Property Damages Trust Agreement Settlement Trust ("Settlement Trust"), and the appointment of Patrick Juneau as Trustee and J. P. Morgan Trust Company of Delaware as Directed Trustee with limited authority as set forth in the Trust Agreement. The Court also finds that the Settlement Trust fulfills the requirements for a qualified settlement fund under section 46813(d)(2) of the Internal Revenue Code and Treasury Regulation $ 1.46813-1. The Court will retain continuing jurisdiction over the Settlement Trust. V. Approval of Class Notice -36- Case 2:10-md-02179-CJB-SS Document 6418 Filed 05/02/12 Page 37 of 47 29. The Court approves the form and content of the Economic Loss and Property Damage Class Notice as attached to the Declaration of Cameron R. Azari, Esq. (Rec. Doc. 6266- 2) as well as the Economic and Property Damage Notice Plan described in same Exhibit, as amended as set forth in Interim Class Counsel's and BP's Joint Supplemental Motion Related to the Economic and Property Damages Settlement and Exhibit B thereto, as satisfying the requirements of Federal Rules of Civil Procedure 23(c)(2)(B) and 23(e)(1), and due process. 30. The Economic Loss and Property Damage Settlement Class Notice clearly and concisely states in plain, easily understood language: (i) the nature of the action; (ii) the defmition of the class certified; (iii) the class claims, issues, or defenses; (iv) that a class member may enter an appearance through an attorney if the member so desires; (v) that the Court will exclude from the class any member who requests exclusion; (vi) the time and manner for requesting exclusion; and (vii) the binding effect of a class judgment on class members. See Fed. R. Civ. P. 23(c)(2)(B). 31. The Notice Plan contemplates direct mailed notice to individual class members, to the extent known, and their attorneys, to the extent known. In addition, the Notice Plan provides for a broad -reaching published Notice in numerous national and local media, with a notice effort covering the entire United States, primarily focusing on the main impact States of Louisiana, Alabama, and Mississippi, and enumerated counties in Texas and Florida. Furthermore, banner notice ads will appear on national and local web properties. A complete copy of the Proposed Settlement with exhibits will be provided to any individuals or entities wishing to determine whether they are class members and what their rights are under the Proposed Settlement. There will also be a case website where potential class members can obtain additional information and documents, including a list of frequently asked questions that will be regularly updated to -37- Case 2:10-md-02179-CJB-SS Document 6418 Filed 05/02/12 Page 38 of 47 provide useful information about the Settlement. This Notice Plan provides the best notice practicable under the circumstances pursuant to Fed. R. Civ. P. 23(c)(2)(B). 32. In addition, the Court finds that the Notice and the Notice Plan comply with Fed. R. Civ. P. 23(e)(1)'s requirement that the Court direct notice to Class Members in a reasonable manner. The notice is reasonably calculated to inform interested parties of the pendency of the settlement and afford them an opportunity to determine whether they are class members, seek all relevant information about the Proposed Settlement, determine their rights under the Proposed Settlement, and present their objections, if any. 33. In conclusion, the Court finds that the Economic Loss and Property Damage Settlement Class Notice and the Economic Loss and Property Damage Settlement Class Notice Plan will provide notice in a reasonable manner to all class members who would be bound by the Economic Loss and Property Damage Settlement, including individual notice to all members who can be identified through reasonable effort. The Economic Loss and .Property Damage Settlement Class Notice and the Economic Loss and Property Damage Settlement Class Notice Plan constitute the best notice that is practicable under the circumstances. 34. This Court orders that the Class Notice shall be disseminated as set forth in the Notice Plan. 35. The Court directs counsel for the Parties, no later than ten days before the date of the Fairness Hearing, to file with the Court evidence that the Notice Plan has been carried out. 36. The Court appoints Hilsoft Notifications as the Class Notice Administrator to implement the Class Notice and Class Notice Plan. This Court may, at its sole discretion, request reports or information from the Notice Administrator. The Notice Administrator shall be responsible for reporting and providing information to the Court at such frequency and in such manner as the Court directs. -38- Case 2:10-md-02179-CJB-SS Document 6418 Filed 05/02/12 Page 39 of 47 37. This Court shall have ongoing and exclusive jurisdiction over the Class Notice Administrator and shall retain such jurisdiction through and after the Settlement Agreement's Effective Date, in the event it occurs. VI. Procedures and Deadlines for Objecting, Opting Out, and Appearing at the Fairness Hearing 38. Any Economic Loss and Property Damage Class Member may present written objections explaining why the Agreement should not be approved as fair, reasonable and adequate; why attorneys' fees and expenses to Economic Class Counsel should not be awarded in the amounts requested; or why judgment should not be entered as to that Economic Loss and Property Damage Class Member. Specifically, any Economic Class Member wishing to object to any aspect of the Agreement must file a written statement of the objection(s) with the Court, and serve same on Economic Loss and Property Damage Class Counsel and BP's Counsel, by first-class mail, no later than August 31, 2012. The written statement of the objection(s) must include (a) a detailed statement of the Economic Class Member's 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 Ws/her/its objection(s); (b) the Economic Class Member's 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. -39- Case 2:10-md-02179-CJB-SS Document 6418 Filed 05/02/12 Page 40 of 47 39. Any Economic Loss and Property Damage Class Member who wishes to exclude himself, herself, or itself from the Class must submit a written exclusion request, following the instructions in the Class Notice, which must be received by Garden City Group, properly addressed and postmarked no later than October 1, 2012. All such written requests must be signed by the Natural Person or Entity seeking to exclude himself, herself or itself from the Class, but may be submitted by attorneys for such Natural Persons or Entities. 40. All Economic Loss and Property Damage Class Members who do not timely and properly Opt Out shall, in all respects, be bound by all terms of this Agreement and the Final Order and Judgment, shall be entitled to all procedural opportunities and protections described herein and provided by the Court, and all compensation for which they qualify under its terms, and shall be permanently and forever barred from commencing, instituting, maintaining or prosecuting any action based on any Released Claim against any Released Parties in any court of law or equity, arbitration tribunal, administrative proceeding, or other forum. 41. Within ten days after the deadline for Class Members to request exclusion from the Class, Class Counsel and Counsel for the Released Parties shall exchange a complete list of all timely and valid requests for exclusion received as of that date. This list may be supplemented after the Fairness Hearing to the extent any additional timely and valid requests for exclusion are submitted. 42. Any Economic Class Member may revoke his, her, or its Opt Out from the Economic Class and thereby receive the benefit of this Economic and Property Damage Settlement up until three (3) days prior to the Fairness Hearing; or later, if the BP Parties consent in their sole and unilateral discretion as provided in Section 8.2.6 of the Settlement Agreement; or otherwise, if the Court so orders on good cause shown. -40- Case 2:10-md-02179-CJB-SS Document 6418 Filed 05/02/12 Page 41 of 47 43. Upon entry of the Preliminary Approval Order, the statutes of limitation applicable to any and all claims or causes of action that have been or could be asserted by or on behalf of any Economic Class Member are hereby tolled and stayed. The limitations period shall not begin to run again for any Economic Class Member unless and until (a) they Opt Out of the Economic Class, or (b) they execute an Individual Release, or (c) the Agreement is terminated pursuant to Court order. VII. Additional Directives 44. Nothing in this Order shall be construed or used as an admission, concession, or declaration by or against any of the settling Parties: (1) as to the certification of any other class in this or any other action for any purpose other than the effectuation of the proposed Settlement Agreement; or (2) as to any fault, wrongdoing, breach, or liability. This Order shall not be construed as a finding or conclusion of the Court with respect to the merit or lack of merit of any claim asserted in this action or of any defense to any claim asserted in this action. Neither the Proposed Settlement nor the Court's orders issued in connection with consideration of the Settlement, including this Order, shall be offered into evidence or used in this or any other action for any purpose, including, but not limited to, the existence, certification, or maintenance of any other class for any other purpose. 45. In no event shall the termination or non -consummation of the Proposed Settlement affect the validity or finality of any Individual Releases signed by claimants accepting payments from the Claims Administrator and Claims Administration Vendors pending final fairness review and approval of the Settlement Agreement. Pursuant to the Court's supplemental and ancillary jurisdiction to enforce and oversee its own orders, the Court assumes and retains jurisdiction to enforce any Individual Releases signed by claimants accepting payments from the Claims Administrator and Claims Administration Vendors pending final fairness review and -41 - Case 2:10-md-02179--CJB-SS Document 6418 Filed 05/02/12 Page 42 of 47 approval of the Settlement Agreement. Additionally, if the Settlement Agreement receives final approval after the Fairness Hearing, the Court intends to retain jurisdiction over the enforcement of Individual Releases granted after the Effective Date as well. 46. Consistent with this Court's supplemental and ancillary jurisdiction, the Court explicitly retains continuing and exclusive jurisdiction over the Parties, the Economic Loss and Property Damage Settlement Class Members, and the Settlement Agreement to interpret, implement, administer, and enforce the Settlement Agreement in accord with its terms, including with respect to the validity and finality of Individual Releases signed by Settlement Class Members receiving settlement payments, during the period before the Fairness Hearing and final review of the Settlement Agreement conclude. 47. Upon consummation and approval of the Settlement provided for in the Settlement Agreement, the Settlement Agreement and each and every term and provision thereof and exhibits thereto shall be deemed incorporated herein as if explicitly set forth and shall have the full force and effect of an Order of this Court. 48. For convenience, pertinent deadlines are reproduced here: a) Notice to be sent out in accordance with the Notice Plan b) Court Supervised Settlement Program shall commence operation on June 4, 2012 c) Motion papers in support of settlement to be filed by August 13, 2012 d) Objections to be filed by August 31, 2012 e) Opt -Out period to be closed by October 1, 2012 f) Guardian Ad Litem's Report to be filed by October 8, 2012 g) Reply submissions to be filed by October 22, 2012 h) Fairness hearing on November 8, 2012 at 8:30 a.m. 49. Upon motion of any Party, the Court may, for good cause, extend any of the deadlines set forth in this Order, if necessary and appropriate, upon practicable notice to the Class, such as on the Court and Settlement websites. - 42 - Case 2:10-md-02179-CJB-SS Document 6418 Filed 05/02/12 Page 43 of 47 ORDERED this 2nd day of May, 2012. - 43 - Case 2:10-md-02179-CJB-SS Document 6418 Filed 05/02/12 Page 44 of 47 Appendix A (Settlement Agreement Ex 22) Map of Gulf Coast Area �m d4`n^ +rmr�neax rt `xamrxw „� 4 `„ P # Au „' 'e�remn r�i reg Yea Y .u:Nwv+a4M-- nra, y "1 "n. � tGm was 6 emu. s nmr -44- Case 2:10-md-02179-CJB-SS Document 6418 Filed 05/02/12 Page 45 of 47 Appendix B (Settlement Agreement Ex 23) '!'ap of Specified Gulf Waters - 45 - Case 2:10-md-02179-CJB-SS Document 6418 Filed 05/02/12 Page 46 of 47 Map of Specified Gulf Waters -46- Case 2:10-md-02179-CJB-SS Document 6418 Filed 05/02/12 Page 47 of 47 Map of Specified Gulf Waters �C'`S �Brft� st' it s�tt� ust t'skti i `�iti G�ti u3�' SOUNDABYPOtNn —_ Point �.a t," A Lon to 25.306'N M.372°W 8 25.354°N 80.265°W 25.342°N 80.251°W r{ i ty �� t ��� D 25.314°N. E 25.284°N-79,6920W -47-