And being in the group of plaintiffs considering opting out of the settlement in order to pursue their personal case may run the risk of getting nothing.
Opting out has its risks in BP case.
The three-year statute of limitations on filing a claim against BP and the other companies connected to the Deepwater Horizon explosion and gusher is running out. U.S. District Judge Carl Barbier initially approved the $7.8 billion deal in May, but called the "fairness hearing" last Thursday to weigh objections from about 13,000 claimants challenging the settlement to resolve some of BP's liability for the worst offshore oil spill in U.S. history.
Joe Rice, an attorney in the negotiations process of the settlement, says that attorneys and plaintiffs who opt out in hopes of a separate deal may do it at their own risk.
"I imagine that a lawyer thinks that if he opts out, he will file an appeal and come up with some way to resolve those claims with BP outside the class in some aggregate fashion," Rice told the Houston Chronicle. "I don't think BP has any intention of doing that at the current time."
With the three-year statute of limitations running out in April, claimants who opt not to be part of the settlement must file their claims by Jan. 24 so that BP will have the legally required 90 days to respond.
"If you don't make a presentment by Jan. 24, you start facing a risk that the statute of limitations could run before you have a chance to legally pursue your claim," Rice said.
Rice also points out that opting out of the class action makes it harder to pursue a claim, because the requirements are much more stringent, and the courts may not approve as many cases to go to trial.
"These lawyers had names of folks that they talked to sometime in the process, and they didnât even have a valid address for them, so they put them on the form without them," said Rice, who is also part of a court-appointed steering committee representing the 79,000 plaintiffs already party to the deal.
In the hearing, claims administrator Patrick Juneau estimated that about half of the 25,000 opt-out claims would meet the court requirements.
Judge Barbier, who is overseeing the mass litigation, has not given a time frame for deciding who to let out of the settlement.
Barbier did not issue a final ruling at Thursday's hearing in a New Orleans court, but he appears poised to grant final approval to the deal in the coming days, legal experts said.
"We shouldn't lose sight of the forest for the trees," Barbier said at the end of the hearing, saying that some objections "were not frankly made in good faith and bordered on being frivolous."
Attorney Brent Coon, who filed more than 10,000 opt-out claims, said the judge will first have to decide which clients "jumped through all the hoops" and which ones did not.
"If he doesn't extend opt-out criteria, I'm appealing 5,000 cases on the difficulties of how you get out of this case," Coon said.
From what one of the BP attorneys has said, that company plans - as one might expect - to make things extremely difficult for anyone who opts out. BP attorney Rick Godfrey says they intend to set a very high bar for any single or small group of plaintiffs to prove that their losses stemmed from the spill.
"For those who opt out," Godfrey said, "we will put them to the proof."
Almost sounds like a threat, doesn't it?
If you're willing to accept that proverbial half a loaf rather than nothing at all, Gulf Coast residents who want to participate in the current settlement and have not signed up yet are being given an extra year to file a claim.
Rice also said the list of participants could grow dramatically as more businesses indirectly connected to the tourism industry realize they are eligible to file.
"It is just up to people to exercise that right," Rice said. "BP will pay it if they come. We have built a claimant-friendly, transparent, open-ended claims process for the people on the Gulf Coast. All we need now is for them to come forward and get their claim."
Okay. Stay tuned, because things happening at the DoJ completely unconnected with the spill may drag out the litigation even farther...
How long can you tread water?
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