Mississippi Litigation Review & Commentary : Mississippi Personal Injury Lawyer & Attorney : Phillip W. Thomas Law Firm : MS Litigation Review & Commentary

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There is some good analysis of the oil spill in legal blogs. Tennessee lawyer John Day has this post about the impact of the damage cap under the Oil Pollution Act (OPA) on his Day on Torts blog. Day points out that the cap under the OPA for this type of spill is $75 million:

You haven't seen much about it in the press yet,  but BP has the benefit of a cap that will probably limit its liability for the oil spill in the Gulf.  Section 1004 of the Oil Pollution Act (OPA), passed into law in August 1990 after the Exxon Valdez incident, limits the liability of holders of leases or permits for offshore facilities to $75 million per spill, plus removal costs.

In addition, Day points out that if the bulk of the clean up and damages are covered from the Oil Spill Liability Trust Fund, then consumers will be the ones actually paying the bill:

Thus, if the oil damages the coastline, the damages will be hundreds and hundreds of millions, the vast majority of it paid for by consumers who paid the tax on oil, and not the company that negligently created the harm.  That is a crying shame.  

Maybe this tragedy will cause people to re-examine the appropriateness of damage caps in general.   Whether they concern property damage, personal injury or wrongful death, damage caps are nothing but a bailout to those who cause harm. 

Philadelphia, Pa. lawyer and Ocean Springs native Max Kennerly has this post on his Litigation and Trial Blog commenting on the oil spill litigation and, among other things, criticizes some plaintiff lawyers’ first to file mentality:     

Some lawyers read language like the above and, as a matter of habit, throw together a slapdash complaint the moment they see bad news in the papers.

This strategy used to work, and there are indeed old cases in which the class counsel was chosen almost entirely on the basis of the first-to-file.

But those days are behind us, and the first-to-file rule has little influence in the selection of class counsel these days. As the Third Circuit's Task Force Report on the Selection of Class Counsel quoted from a Delaware securities fraud case,

Although it might be thought, based on myths, fables, or mere urban legends, that the first to file a lawsuit in this Court wins some advantage in the race to represent the shareholder class, that assumption, in my opinion, has neither empirical nor logical support.

Too often judges of this Court face complaints filed hastily, minutes or hours after a transaction is announced, based on snippets from the print or electronic media. Such pleadings are remarkable, but only because of the speed with which they are filed in reaction to an announced transaction. It is not the race to the courthouse door, however, that impresses the members of this Court when it comes to deciding who should control and coordinate litigation on behalf of the shareholder class.      

 Both posts are worth reading in their entirety.