THE DEEPWATER HORIZON OIL SPILL MULTI-DISTRICT LITIGATION UPDATE Rhon E. Jones Environmental Section Head Beasley, Allen, Crow, Methvin, Portis & Miles, P.C.

Overview  Since April 2010, over 3oo lawsuits have been filed against BP and other operators, contractors and owners regarding the Deepwater Horizon platform and Macondo well.  Suits are focused in the following areas  Economic losses to businesses  Personal injury from exposure to oil and dispersants  Personal injury claims by workers aboard the DH.  RICO and conspiracy claims  Government loss of revenue claims  Loss of wage claims

The MDL Proceeding  The purpose of an MDL proceeding is to consolidate multiple, similar actions arising out of an occurrence in one location for manageability and consistency.  Under 28 U.S.C. § 1407(a), consolidation is proper when: “civil actions involving one or more common questions of fact are pending in different districts,” those actions may be transferred to any district for coordinated or consolidated pretrial proceedings.

The MDL Proceeding  Initially, the Judicial Panel of Multi-District Litigation meets and determines what cases will be transferred and the location they will be transferred to.  Once the MDL court is selected, that court:  Presides over all substantive proceedings  Cases are coordinated rather than consolidated;  The cases remain separate cases

The MDL Proceeding What Cases are Subject to Transfer?  The MDL considers 4 factors:  Common Questions of Fact: Interpreted broadly, not identically, or even common to all parties.  Convenience of Parties and Witnesses: As to all circumstances – not just to one party.  Promotion of Just and Efficient Conduct  Subsidiary Issues: Location of transferor districts; complexity of cases; possibility of conflicting rulings.  Either a party subject to transfer may initiate, or the MDL panel may initiate a transfer sua sponte.

What Has Happened  On July 29, the JPML met in Boise, Idaho to determine the appropriate judge and venue for the oil spill cases.  On August 10, the JPML ordered that the MDL location would be the Eastern District of Louisiana, and that Judge Carl Barbier would be the presiding judge.  Since that time, the JPML has ordered the transfer of over 150 cases to the E.D. La., with more to be transferred.

An Overview of the Court The Eastern District of Louisiana  Located in New Orleans, Louisiana.  The Court, has extensive experience in litigating MDL actions.  Vioxx Marketing, Sales Practices and Products Liaiblity Litigation.  Chinese-Manufactured Drywall Products Liability Litigation  FEMA Trailor Formaldehyde Products Liability Litigation.  Apple Iphone 3G and 3GS “MMS” Marketing and Sales Practices Litigation.

An Overview of the Court The Presiding Judge Carl J. Barbier Education: Southeastern Louisiana University, B.A., 1966 Loyola University New Orleans School of Law, J.D., 1970 Federal Judicial Service: Judge, U. S. District Court, Eastern District of Louisiana Nominated by William J. Clinton on May 19, 1998; Confirmed by the Senate on September 28, 1998, Commission on October 1, Professional Career: Law clerk, Hon. William Redman, Louisiana Court of Appeal, Fourth Circuit, Law clerk, Hon. Fred Cassibry, U.S. District Court, Eastern District of Louisiana, Private practice, New Orleans, Louisiana,

An Overview of the Court Supporting Cast  Judge Sally Shushan will serve as the magistrate judge for the oil spill litigation.  Francis McGovern: Serves as the special master. Mr. McGovern is a nationally acclaimed scholar, professor and special master in dispute resolution of mass actions.

Structure of Legal Team A chain of command must be structured to manage the enormous burden of fact gathering, discovery, testing and overall direction of such a massive case:  Lead Counsel: Louisiana attorneys Jim Roy and Steve Herman were selected as lead attorneys in the oil spill litigation.  Steering Committee: On October 9, 15 lawyers total were selected from all of the impacted states to collaboratively steer the litigation.  Workgroups: Formed to assist in the pleading, research, discovery, and environmental testing.

Recent Developments  Oil Pollution Act strict liability test trials to begin in the Spring of  Limitation of Liability trial to commence in February  The Court has entered an Order barring BP from raising the OPA damage cap as a defense.  The Plaintiffs have already served a host of discovery requests on the Defendants.  The Court: “It is never too early to talk about settlement”

QUESTIONS?