The gulf coast claims facility and the deepwater horizon litigation: Judicial regulation of private compensation schemes

Stanford Law Review

Volumn 64, Issue 3, 2012, Pages 765-796

  McDonell, Colin ^a  

^a STANFORD LAW SCHOOL   (United States)

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EID: 84860210466     PISSN: 00389765     EISSN: None     Source Type: Journal    
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References (163)

1. Campbell Robertson & Clifford Krauss, Gulf Spill Is the Largest of Its Kind, Scientists Say, N.Y. TIMES, Aug. 3, 2010, at A14, available at http://www.nytimes.com/2010/08/03/us/03spill.html?ref=oilspills.
2. Remarks Following a Meeting with BP Leadership, 2010 DAILY COMP. PRES. DOC. 503 (June 16, 2010).
3. Status Report, OVERALL PROGRAM STATISTICS (Gulf Coast Claims Facility, Dublin, Ohio), Jan. 10, 2012.
4. Pub. L. No. 101-380, 104 Stat. 484 (codified as amended in scattered sections of the U.S. Code).
5. S. REP. NO. 101-194, at 2 (1989).
6. Id.
7. Ballard Shipping Co. v. Beach Shellfish, 32 F.3d 623, 625 (1st Cir. 1994) (discussing Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303 (1927)).
8. 33 U.S.C. § 2702(b)(2)(E) (2006).
9. Id. § 2702(a)-(b).
10. Id. § 2704(a)(3), (c)(1).
11. Id. § 2718(a).
12. Id. § 2714(a). The statute provides that the President designates responsible parties, but this authority was delegated to the Coast Guard by executive order. Exec. Order No. 12,777, § 7(d)(2), 3 C.F.R. 351, 358 (1991), reprinting 56 Fed. Reg. 54,757, 54,768 (Oct. 22, 1991).
13. 33 U.S.C. § 2714(b).
14. Id. § 2705(a).
15. Id. § 2713(a).
16. Id. § 2713(c). If a claimant presents a claim before the responsible party advertises procedures, however, he must wait until ninety days after the responsible party began advertising procedures. Id.
17. Id. § 2715(b). The Plaintiffs' Steering Committee, however, advanced the argument that this provision applies not just too interim payments but to all payments, in effect forbidding any settlement that contains a release of future claims. This argument, which conflicts with both the language and logic of OPA, is addressed in Part II.B.1.
18. Id. § 2702(d)(1)(B).
19. Id. § 2715(b).
20. Id. § 2703(a)(3).
21. Boca Ciega Hotel v. Bouchard Transp. Co., 51 F.3d 235, 238-239 (11th Cir. 1995) (noting "congressional desire to encourage settlement and avoid litigation" (citing, for example, 135 CONG. REC. H7962 (Nov. 2, 1989) (statement of Rep. Lent))).
22. Robertson & Krauss, supra note 1.
23. Press Release, BP, BP to Appoint Independent Mediator to Ensure Timely, Fair Claims Process (May 26, 2010), available at http://www.bp.com/genericarticle.do?categoryId=2012968&contentId=7062448.
24. David A. Fahrenthold & Joel Achenbach, Gulf Coast on Edge as Sept. 11 Mediator Assesses Oil Spill Claims, WASH. POST, Aug. 21, 2010, at A4, available at http://www.washingtonpost.com/wp-dyn/content/article/2010/08/20/AR2010082005403.html.
25. Remarks Following a Meeting with BP Leadership, supra note 2. BP might still have been legally responsible for more than $75 million, however, even if it had not agreed to lift the cap. The cap is waived under OPA if there is gross negligence or willful violations of safety regulations, which some experts believed would be proven at trial.
26. Margaret Cronin Fisk & Laurel Brubaker Calkins, BP Waiver of $75 Million Spill Damage Cap May Recognize Liability Reality, BLOOMBERG (May 21, 2010, 8:50 AM PT), http://www.bloomberg.com/news/2010-05-21/bp-waiver-of-75-million-spill-damage-cap-may-recognize-liability-reality.html. Members of Congress, moreover, had already introduced legislation to increase BP's liability.
27. Blake Ellis, Proposed Spill Penalty: A Year of Profits, CNNMONEY (May 13, 2010, 7:04 PM ET), http://money.cnn.com/2010/05/13/news/companies/oil_spill_bill/index.htm (discussing bill introduced by Senators Vitter and Sessions that would have increased the cap on BP's liability to $20 billion).
28. Remarks Following a Meeting with BP Leadership, supra note 2.
29. DEEPWATER HORIZON OIL SPILL TRUST 2 (2010), available at http://motherjones.com/files/2010-8-9TrustAgreement.pdf.
30. Press Release, Gulf Coast Claims Facility, Gulf Coast Claims Facility Now Processing Oil Spill Claims (Aug. 23, 2010), available at http://gulfcoastclaimsfacility.com/press1.php.
31. Protocol for Emergency Advance Payments, GULF COAST CLAIMS FACILITY (Aug. 23, 2010), http://www.gulfcoastclaimsfacility.com/proto_1.
32. Press Release, Gulf Coast Claims Facility, Gulf Coast Claims Facility Announces Next Phase of the Compensation Program for Victims of the BP Oil Spill (Dec. 13, 2010), available at http://gulfcoastclaimsfacility.com/pressB.php.
33. Id.
34. Id.
35. Id.
36. Id.
37. Id.
38. Frequently Asked Questions, GULF COAST CLAIMS FACILITY, http://gulfcoastclaimsfacility.com/faq#Q5 (last visited Mar. 9, 2012).
39. GULF COAST CLAIMS FACILITY, RELEASE AND COVENANT NOT TO SUE, available at http://gulfcoastclaimsfacility.com/sample_release.pdf.
40. Press Release, Gulf Coast Claims Facility, Weiss Announces Appointment of Judges for GCCF Appeals Process (June 9, 2011), available at http://www.gulfcoastclaimsfacility.com/press21.php.
41. Protocol for Interim and Final Claims, GULF COAST CLAIMS FACILITY (Feb. 8, 2011), http://www.gulfcoastclaimsfacility.com/proto_4.php.
42. Id.
43. Status Report, supra note 3. Updated figures are available at Overall Program Statistics, GULF COAST CLAIMS FACILITY, http://www.gulfcoastclaimsfacility.com/GCCF_Overall_Status_Report.pdf (last visited Mar. 9, 2012).
44. Multidistrict litigation is a procedure by which civil actions pending in different districts are transferred to a single district for consolidated pretrial proceedings, when the actions contain common questions of fact and consolidation would "be for the convenience of parties and witnesses and will promote the just and efficient conduct of such actions." 28 U.S.C. § 1407(a) (2006).
45. The Judicial Panel on Multidistrict Litigation, which consists of seven district and circuit judges designated by the Chief Justice of the United States, may assign the consolidated actions to a transferee judge with the consent of his district. Id. § 1407(b), (d). The transferee judge conducting the pretrial proceedings may not assign the case to himself for trial, however, but must remand cases back to the districts from which they were transferred by the conclusion of pretrial proceedings. Id. § 1407(a); Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 28 (1998). In practice, however, most cases end in settlement and thus never return to their original district courts for trial. Cf. Delaventura v. Columbia Acorn Trust, 417 F. Supp. 2d 147, 152 (D. Mass. 2006) ("[I]t is almost a point of honor among transferee judges acting pursuant to Section 1407(a) that cases so transferred shall be settled rather than sent back to their home courts for trial.").
46. In re Oil Spill by the Oil Rig "Deepwater Horizon," 731 F. Supp. 2d 1352, 1356 (J.P.M.L. 2010). The Panel separately consolidated securities cases arising from the spill and transferred them to Judge Keith Ellison in the Southern District of Texas. In re BP p.l.c. Sec. Litig., 734 F. Supp. 2d 1376, 1379 (J.P.M.L. 2010). This Comment, however, is only concerned with the non-securities multidistrict litigation in the Eastern District of Louisiana.
47. In re Oil Spill by the Oil Rig "Deepwater Horizon," 792 F. Supp. 2d 926, 928 (E.D. La. 2011).
48. Master Complaint, Cross-Claim, & Third-Party Complaint for Private Economic Losses in Accordance with PTO No. 11 [CMO No. 1] Section III(B1) ["B1 Bundle"] at 127-36, In re Oil Spill by the Oil Rig "Deepwater Horizon," MDL No. 2179 (E.D. La. Dec. 15, 2010) [hereinafter Master Complaint]. The PSC is a group of fifteen lawyers, appointed by Judge Barbier, responsible for coordinating pretrial proceedings on behalf of all plaintiffs in the consolidated cases. See In re Oil Spill by the Oil Rig "Deepwater Horizon," MDL No. 2179, slip op. at 2-4 (E.D. La. Oct. 8, 2010) (order appointing PSC).
49. In re Oil Spill by the Oil Rig "Deepwater Horizon," MDL No. 2179, slip op. at 12 (E.D. La. Oct. 19, 2010) (case management order).
50. infra notes 51-97 and accompanying text.
51. infra Part I.C.2.
52. infra Part I.C.3.
53. infra Part I.C.3.
54. BP's Supplemental Memorandum Regarding OPA & the GCCF, In re Oil Spill by the Oil Rig "Deepwater Horizon," MDL No. 2179 (E.D. La. Feb. 18, 2011), 2011 WL 1599385 [hereinafter BP's Supplemental Memorandum]; Brief Amicus Curiae of Kenneth Feinberg as Claims Administrator of the Gulf Coast Claims Facility in Response to Request for Briefing on Claims Processing Issues, In re Oil Spill, MDL No. 2179 (Feb. 23, 2011), 2011 WL 1599388; Response of the Gulf Coast Claims Facility as Amicus Curiae to the Supplemental Notice on Behalf of the State of Mississippi Filed on April 7, 2011, In re Oil Spill, MDL No. 2179 (Apr. 12, 2011), 2011 WL 1599497.
55. Response of Defendant Cameron International Corp. to Motion of Plaintiffs to Supervise Communications Between Defendant & Putative Class Members at 1, In re Oil Spill, MDL No. 2179 (Jan. 7, 2011), 2011 WL 203655; Supplemental Brief of Defendant Cameron Concerning GCCF Release Practices at 1-2, In re Oil Spill, MDL No. 2179 (Feb. 17, 2011), 2011 WL 1599378.
56. Opposition to Motion to Supervise Ex Parte Communications Between BP Defendants & Putative Class Members, In re Oil Spill, MDL No. 2179 (Jan. 4, 2011), 2011 WL 203653 [hereinafter Becnel Opposition] (filed by Becnel Law Firm); The Buzbee Law Firm's Objection to Plaintiffs' Motion to Supervise Ex Parte Communications Between Defendant & Putative Class Members, In re Oil Spill, MDL No. 2179 (Jan. 4, 2011), 2011 WL 203654 [hereinafter Buzbee Opposition] (filed by The Buzbee Law Firm).
57. Lyons & Farrar Law Firm's Objection to Plaintiffs' Motion to Supervise Ex Parte Communications Between Defendant & Putative Class Members, In re Oil Spill, MDL No. 2179 (Jan. 4, 2011) (filed by Lyons & Farrar); Objection to Motion to Supervise Ex Parte Communications Between BP Defendants & Putative Class Members, In re Oil Spill, MDL No. 2179 (Jan. 7, 2011) (filed by Samuel T. Adams); Opposition to Motion to Supervise Ex Parte Communications Between BP Defendants & Putative Class Members, In re Oil Spill, MDL No. 2179 (Jan. 7, 2011) (filed by Parker Waichman Alonso LLP).
58. Memorandum in Opposition to "Plaintiff's Motion to Supervise Ex-Parte Communications Between BP Defendants & Putative Class Members," In re Oil Spill, MDL No. 2179 (Jan. 7, 2011), 2011 WL 203657 (filed by Salas & Co.); Memorandum in Support of Motion for Reconsideration of February 2, 2011 "Order and Reasons" Regarding PSC's "Motion to Supervise Ex Parte Communications Between BP Defendants & Putative Class Members," In re Oil Spill, MDL No. 2179 (Feb. 24, 2011), 2011 WL 1599389 [hereinafter Motion for Reconsideration].
59. Buzbee Opposition, supra note 53, at 1.
60. Id. at 2.
61. Becnel Opposition, supra note 53, at 6.
62. Buzbee Opposition, supra note 53, at 2.
63. Motion to Supervise Ex Parte Communications Between BP Defendants & Putative Class Members, In re Oil Spill, MDL No. 2179 (Dec. 21, 2010) [hereinafter Motion to Supervise Communications].
64. Memorandum in Support of Motion to Supervise Ex Parte Communications Between BP Defendants & Putative Class Members at 25, In re Oil Spill, MDL No. 2179 (Dec. 21, 2010), 2010 WL 5573198 [hereinafter Plaintiffs' Memorandum].
65. Id. at 2.
66. Id. at 1-2.
67. id. at 2.
68. Submission of Revised Proposed Order, In re Oil Spill, MDL No. 2179 (Jan. 24, 2011).
69. Motion to Supervise Communications, supra note 58, at 2-3.
70. BP's Memorandum in Opposition to "Plaintiffs' Motion to Supervise Ex Parte Communications Between BP Defendants & Putative Class Members" at 21, In re Oil Spill, MDL No. 2179 (Jan. 10, 2011), 2011 WL 203656 [hereinafter BP's Memorandum in Opposition].
71. 5 U.S. (1 Cranch) 137 (1803).
72. Becnel Opposition, supra note 53, at 10.
73. Motion for Reconsideration, supra note 53, at 2-3.
74. Remarks Following a Meeting with BP Leadership, supra note 2, at 1 (emphasis added).
75. See In re Oil Spill by the Oil Rig "Deepwater Horizon," MDL No. 2179, slip op. at 1 (E.D. La. Feb. 28, 2011) (order denying motion for reconsideration).
76. Motion to Supervise Communications, supra note 58, at 16 (citing MANUAL FOR COMPLEX LITIGATION (FOURTH) § 21.12 (2004)); id. at 17-19 & n.32 (citing, for example, In re Potash Antitrust Litig., 896 F. Supp. 916 (D. Minn. 1995)).
77. BP's Memorandum in Opposition, supra note 65, at 17 (citing, for example, Gates v. Cook, 234 F.3d 221, 227 (5th Cir. 2000)); id. at 14.
78. Plaintiffs' Reply Memorandum in Support of Motion to Supervise Ex Parte Communications Between the BP Defendants & Putative Class Members at 15, In re Oil Spill by the Oil Rig "Deepwater Horizon," MDL No. 2179 (E.D. La. Jan. 17, 2011), 2011 WL 203652.
79. In re Oil Spill by the Oil Rig "Deepwater Horizon," MDL No. 2179, 2011 WL 323866, at *8 (E.D. La. Feb. 2, 2011).
80. Id. at *5-6.
81. Id. at *4-6.
82. Id. at *6-7.
83. Id. at *7.
84. Id. at *8.
85. Id.
86. id.
87. Id.
88. Statement of Interest on Behalf of the State of Mississippi at 3, In re Oil Spill, MDL No. 2179 (E.D. La. Jan. 24, 2011); Memorandum of Authorities in Support of Statement of Interest on Behalf of the State of Mississippi at 1, In re Oil Spill, MDL No. 2179 (Feb. 1, 2011), 2011 WL 1599357 [hereinafter Mississippi Memorandum]; Notice of Joinder in Motion to Supervise Ex Parte Communications Between BP Defendants & Putative Class Members at 1-4, In re Oil Spill, MDL No. 2179 (Feb. 1, 2011); Statement of Interest by the State of Florida Related to the Plaintiffs' Motion to Supervise Ex Parte Communications Between BP Defendants & Putative Class Members at 1-2, In re Oil Spill by the Oil Rig "Deepwater Horizon," MDL No. 2179 (E.D. La. Feb. 2, 2011).
89. Plaintiffs' Supplemental Memorandum Concerning BP's Failure to Comply with the Mandates of OPA, In re Oil Spill, MDL No. 2179 (Feb. 18, 2011), 2011 WL 1599380 [hereinafter Plaintiffs' Supplemental Memorandum]; Brief of the State of Alabama Regarding the Gulf Coast Claims Facility, In re Oil Spill, MDL No. 2179 (Feb. 18, 2011), 2011 WL 1599382 [hereinafter Alabama Brief].
90. Mississippi Memorandum, supra note 83, at 2-3.
91. Id. at 3.
92. Id. at 5-7.
93. Id. at 7.
94. Plaintiffs' Supplemental Memorandum, supra note 84, at 24.
95. Alabama Brief, supra note 84, at 5, 11.
96. Supplemental Notice on Behalf of the State of Mississippi Regarding Continued Violations of OPA by BP & Its Agents, Kenneth Feinberg & the Gulf Coast Claims Facilityat 1, 8, In re Oil Spill by the Oil Rig "Deepwater Horizon," MDL No. 2179 (E.D. La. Apr. 7, 2011).
97. Mississippi Memorandum, supra note 83, at 5.
98. BP's Supplemental Memorandum, supra note 51, at 2, 8.
99. Id. at 4-8.
100. Id. at 17-18 & n.21.
101. Mississippi Memorandum, supra note 83, at 11, 15.
102. BP's Supplemental Memorandum, supra note 51, at 20-21 (citing Hall v. Burger King Corp., Civ. A. No. 89-0260-CIV-KEHOE, 1992 WL 372354, at *8-9 (S.D. Fla. Oct. 26, 1992)).
103. In re Oil Spill by the Oil Rig "Deepwater Horizon," MDL No. 2179, 2011 WL 3805746, at *18-19 (E.D. La. Aug. 26, 2011).
104. Id.
105. On December 28, 2011, however, Judge Barbier issued a controversial order that, while not directly intervening in the claims process, affected payments by the GCCF. The order required that six percent of any settlement payments made by defendants in the MDL to claimants, which included payments processed by the GCCF, go to a common benefit fund from which the PSC might later receive payment for its work in the MDL. See In re Oil Spill by the Oil Rig "Deepwater Horizon," MDL No. 2179, slip op. at 1, 6 (E.D. La. Dec. 28, 2011). Several weeks later, however, Judge Barbier amended the order to exempt GCCF settlements from the six percent "hold back" requirement in instances where the claimant had never had an action pending in the MDL. See In re Oil Spill by the Oil Rig "Deepwater Horizon," MDL No. 2179, slip op. at 3, 4 (E.D. La. Jan. 18, 2012).
106. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
107. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006) (citing Allen v. Wright, 468 U.S. 737, 752 (1984)).
108. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185 (2000).
109. O'Shea v. Littleton, 414 U.S. 488, 494 (1974).
110. Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 40 n.20 (1976) (citing Warth v. Seldin, 422 U.S. 490, 522 (1975)).
111. FED. R. CIV. P. 23(a).
112. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625 (1997) (citing Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 157 n.13 (1982)).
113. Id. at 628.
114. Id. at 626-28.
115. id. at 626 n.20 (noting that Rule 23(a)(4) "factors in" conflict-free counsel).
116. Ortiz v. Fibreboard Corp., 527 U.S. 815, 852-53 & n.30 (1999) (finding class counsel's incentives to reach a settlement that favored known plaintiffs at the expense of unidentifiable class members an "egregious example of the conflict noted in Amchem" (citing Amchem, 521 U.S. at 626-27)).
117. While the analysis in Part II.B focuses on the ways in which broadening the class might run afoul of the adequacy requirement, in some instances the commonality requirement will also prevent certification of a broader class. Many experts believe that the commonality requirement will be more difficult to meet after the Court's decision.
118. Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), which held that a class of 1.5 million female employees alleging gender discrimination had not met the commonality requirement because they provided "no convincing proof" of a companywide policy of discrimination. Id. At 2556-57.
119. Sergio Campos, Wal-Mart v. Dukes and Commonality, PRAWFSBLAWG (June 20, 2011), http://prawfsblawg.blogs.com/prawfsblawg/2011/06/wal-mart-v-dukes-and-commonality.html (arguing that the Court's commonality analysis in Dukes, which required a merits analysis of whether plaintiffs had a common injury before certification, will not be limited to the employment discrimination context but will apply to all class actions).
120. Nathan Koppel, What Does Wal-Mart Ruling Mean for Class Actions?, WALL ST. J. L. BLOG (June 20, 2011), http://blogs.wsj.com/law/2011/06/20/what-does-wal-mart-ruling-mean-for-class-actions (quoting experts who believe that Dukes will make class certification more difficult both in and outside of the employment context).
121. Matthew R. Ford, Adequacy and the Public Rights Model of the Class Action After Gratz v. Bollinger, 27 YALE L. & POL'Y REV. 1, 9 (2008) (discussing the Court's inconsistent application of standing and adequacy principles to class actions).
122. 518 U.S. 343, 348-49 (1996).
123. Id. at 358 & n.6.
124. Id.; see also Blum v. Yaretsky, 457 U.S. 991, 1001 (1982) (dismissing class claim on grounds of standing and not addressing adequacy).
125. 457 U.S. 147, 155 (1982).
126. Id. at 155-59. Moreover, the Court noted in Ortiz, without further explanation, that while courts must normally address standing at the outset of litigation, class certification issues should be addressed first when they are "logically antecedent" to Article III concerns.
127. Ortiz v. Fibreboard Corp., 527 U.S. 815, 831 (1999) (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 612 (1997)). This cryptic instruction has caused much confusion among lower courts.
128. Linda S. Mullenix, Standing and Other Dispositive Motions After Amchem and Ortiz: The Problem of "Logically Antecedent" Inquiries, 2004 MICH. ST. L. REV. 703, 708 (discussing various ways lower courts have interpreted and applied the instruction).
129. 539 U.S. 244, 263 & n.15 (2003) (declining to resolve the standing or adequacy question because "whether the requirement is deemed one of adequacy or standing, it is clearly satisfied in this case").
130. This Comment will only analyze the ability of the PSC to request the various forms of relief on behalf of the putative class. While several states also filed briefs requesting intervention, none of them has asserted OPA claims on behalf of its citizens in this suit.
131. While the master complaints have defined some of the proposed classes more narrowly in some respects, such as all individuals suffering economic damages from the spill, distinctions based on type of injury are not important for the analysis below.
132. Master Complaint, supra note 45, at 127 ("Plaintiffs seek certification of the following class ('the Class'): All individuals and entities residing or owning property in the United States who claim economic losses, or damages to their occupations, businesses, and/or property as a result of the April 20, 2010 explosions and fire aboard, and sinking of, the Deepwater Horizon, and the resulting Spill.").
133. Master Complaint in Accordance with PTO No. 11 [Case Management Order No. 1] Section III.B(3) ["B3 Bundle] at 41, 46, In re Oil Spill by the Oil Rig "Deepwater Horizon," MDL No. 2179 (E.D. La. Dec. 15, 2010).
134. OPA requires presentment of a claim to the responsible party before an individual can litigate. 33 U.S.C. § 2713(a) (2006). BP acknowledged that presentment of a claim to the GCCF, instead of presentment directly to BP, would satisfy the presentment requirement. In re Oil Spill by the Oil Rig "Deepwater Horizon," MDL No. 2179 (E.D. La. Oct. 22, 2010) (order filing BP acknowledgment into the record).
135. Mississippi Memorandum, supra note 83, at 13-14 (arguing that the contracts were obtained under duress).
136. Plaintiffs' Supplemental Memorandum, supra note 84, at 2 ("The Releases represent a clear violation of the fundamental principles of OPA.").
137. Plaintiffs' Memorandum, supra note 59, at 22-23.
138. To aid the reader in following the ensuing textual analysis, the relevant portion of the statute is reprinted below: § 2715. Subrogation (a) In general Any person... who pays compensation pursuant to this Act to any claimant for removal costs or damages shall be subrogated to all rights, claims, and causes of action that the claimant has under any other law. (b) Interim damages (1) In general If a responsible party . . . has made payment to a claimant for interim, short-term damages representing less than the full amount of damages to which the claimant ultimately may be entitled, subrogation under subsection (a) of this section shall apply only with respect to the portion of the claim reflected in the paid interim claim. (2) Final damages Payment of such a claim shall not foreclose a claimant's right to recovery of all damage to which the claimant otherwise is entitled under this Act or under any other law. 33 U.S.C. § 2715.
139. While the PSC and several attorneys general argued that the releases violated OPA, the textual argument outlined above is most clearly explained in Mississippi's brief. See Mississippi Memorandum, supra note 83, at 9.
140. th Cir. 1995) (discussing the legislative intent behind OPA).
141. Melong v. Micr. Claims Comm'n, 643 F.2d 10, 13 (D.C. Cir. 1980) (noting that every court to address the issue has come out the same way).
142. Bernard v. Gulf Oil Corp., 841 F.2d 547, 551 (5th Cir. 1988) (finding that plaintiffs who had not signed releases lacked standing to represent plaintiffs who had signed releases).
143. Phillips v. Klassen, 502 F.2d 362, 366-68 (D.C. Cir. 1974).
144. Ciarlante v. Brown & Williamson Tobacco Corp., Civ. A. No. 95-4646, 1995 WL 764579, at *2-3 (E.D. Pa. Dec. 18, 1995) (excluding individuals who had signed releases from the class because the issue of whether those releases are invalid is an issue "illsuited to class treatment" because it would require the exploration of "the state of mind of each individual signer").
145. Hall v. Burger King Corp., Civ. A. No. 89-0260-CIV-KEHOE, 1992 WL 372354, at *8 (S.D. Fla. Oct. 26, 1992) (refusing to certify a class in part on grounds of typicality because plaintiffs would have to challenge various releases, which "may necessitate examination of the circumstances under which each release was executed".
146. Ingenito v. Bermec Corp., 376 F. Supp. 1154, 1171 (S.D.N.Y. 1974) (refusing to certify class seeking certification under Rule 23(b)(3) in part because "plaintiffs' attack on the settlements or releases executed by them would clearly present individual issues as to the circumstances surrounding the obtaining of the release".
147. Wagner v. NutraSweet Co., 95 F.3d 527, 534 (7th Cir. 1996) (noting that the court below was overly concerned with the effect of releases on the propriety of class certification, because Rule 23(a)(3) typicality "should be determined with reference to the [defendant's] actions, not with respect to particularized defenses it might have against certain class members".
148. FED. R. CIV. P. 23(d)(1).
149. 452 U.S. 89, 100 (1981).
150. MANUAL FOR COMPLEX LITIGATION (FOURTH) § 21.12 (2004) (citing lower court cases upholding such limitations on communications).
151. Gulf Oil, 452 U.S. at 101-04 (prescribing weighing test for orders restricting communications between plaintiff's counsel and potential class members, and striking down such an order in that case).
152. Compare Cobell v. Kempthorne, 455 F.3d 317, 320, 325 (D.C. Cir. 2006) (striking down as beyond the court's Rule 23(d) power an order requiring defendant to state on any written communications to putative class members that the information it provides "may be unreliable".
153. Abdallah v. Coca-Cola Co., 186 F.R.D. 672, 678 (N.D. Ga. 1999) (upholding limitations on defendant's direct communication with potential class members even though defendant did not give the court "any reason to suspect that it will attempt to mislead its employees and coerce them into non-participation in this case".
154. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006) (citing Allen v. Wright, 468 U.S. 737, 752 (1984)).
155. 28 U.S.C. § 2072(b) (2006) (providing that procedural rules "shall not abridge, enlarge or modify any substantive right".
156. Hudson v. Parker, 156 U.S. 277, 284 (1895) ("This court cannot, indeed, by rule, enlarge or restrict its own inherent jurisdiction and powers, or those of the other courts of the United States, or of a justice or judge of either, under the Constitution and laws of the United States.".
157. Fleming Cos. v. Abbott Labs. (In re Infant Formula Antitrust Litig.), 72 F.3d 842, 843 (11th Cir. 1995) (per curiam) ("Rule 23(d) is only a procedural law; it is not a grant of subject matter jurisdiction".
158. Cobell, 455 F.3d at 325 (striking down an order granted under Rule 23(d)(2) that went beyond giving notice of procedural matters and protected substantive rights of parties).
159. Buzbee Opposition, supra note 53, at 2.
160. 33 U.S.C. § 2705(a).
161. Id. § 2713(c).
162. The United States Department of Justice, for example, selected a firm in December of 2011 to conduct an independent audit of the GCCF.
163. DOJ Taps NY Firm to Audit Oil Spill Claims, WALL ST. J., (Dec. 21, 2011), http://online.wsj.com/article/APbca0d5382ea949cab203cf27ad9aa3fa.html.