It must have been a lot of fun for the lawyers at King & Spalding to write the first couple of sentences in a new amicus brief at the U.S. Supreme Court, supporting BP’s petition for review of two rulings by the 5th U.S. Circuit Court of Appeals. King & Spalding’s client is the British government, which, like BP, believes that the 5th Circuit was wrong to uphold the oil company’s 2012 class action settlement because the deal supposedly permits recoveries even to businesses with no injuries attributable to the 2010 Deepwater Horizon oil spill. By now, that’s a well-worn argument, after BP’s two ultimately unsuccessful appeals at the 5th Circuit and its failed request for an emergency stay from the Supreme Court. But when you represent the Queen of England’s government, here’s how you get to introduce yourself:
“Her Britannic Majesty’s Government of the United Kingdom of Great Britain and Northern Ireland respectfully submits the following brief in this important matter,” the brief begins. “Although Her Majesty’s Government takes no position on any points of interpretation of United States law, it notes that the combination of rulings now before this court has produced an untenable and exceptionally important result.” Soon thereafter, the UK brief cites the 1765 edition of Blackstone’s Commentaries on the Law of England for “the proposition that plaintiffs must prove all of the elements of their claims,” which, according to the brief, is fundamental to “our nations’ shared legal tradition.”
Drafting that paragraph had to be a kick for the American lawyers representing Britain. And I’m sure BP was gratified that The Financial Times gave the UK government’s amicus brief big play on Sunday. Even the class action lawyers who have fought to preserve their multibillion-dollar settlement with BP told me in an email statement that it took “gumption” for BP to persuade “the Queen of England to say that centuries-old English law would frown on BP paying damages.”
The real question, though, is whether the British government’s brief – or any of the other four amicus briefs filed last week in support of BP’s petition for certiorari – will help persuade the Supreme Court to review the case. BP is facing long odds against it. As I’ve reported, the entire court considered BP’s request for an emergency stay last summer, after the 5th Circuit said that payments to class members could resume. Among the four factors the court took into account were whether the oil company was reasonably likely to be granted cert and whether it had a “fair prospect” of winning if it were. A majority of the justices denied BP’s motion. We don’t know precisely how many, but it takes five votes to grant a stay and BP didn’t get them.
Only four justices have to vote to grant cert, so the stay denial didn’t end BP’s prospects for Supreme Court review. But by my read, BP’s cert petition, filed at the beginning of August, and the new briefs by its amici don’t assert arguments that the justices haven’t already seen from the oil company in its stay motion. I doubt, in other words, that the new briefs are going to change any justice’s mind – which means that BP had better hope that one (or more) of the justices who voted against the stay already believes its contention that the case raises constitutional issues on standing and class actions that have divided the federal circuits.