Let's Trust Big Businesses to Confess Their Sins, Compensate Victims Voluntarily

An oil-drenched peilican in the Gulf oil spill.

An oil-drenched pelican in the Gulf oil spill. (photo by Win McNamee, Getty Images; published in National Geographic)

You thought all journalists were bleeding hearts? New York Times reporter-columnist Joe Nocera proves otherwise. Nocera has actually come to the rescue of BP regarding the Louisiana oil spill and resulting litigation.

To hear Nocera tell it, the world would be a far better place if victims and their attorneys would just let mega-companies like BP clean up their own messes without complicating things by victims taking their claims for harms and losses to a judge and jury.

In his op-ed p­­iece, “Lawyers’ Business Model,” Nocera starts off with a few paragraphs about breast implant litigation he covered as a reporter 20 years ago. In the sixth paragraph he gets to something in this century: the BP oil spill. Nocera admits that he is “defending BP.” Against whom? “Against the plaintiffs’ lawyers who sued the company in Louisiana.”

Lawyers Searching for Cases

Nocera writes: “[The business model of plaintiffs’ lawyers] requires them to constantly seek out cases that can be blown up into giant mass torts, as they’re called, which can then be used to extract billions from companies.”

Yeah, that’s exactly what happened. A bunch of Louisiana plaintiff lawyers searched high and low for a company to sue, and just happened to stumble across 5 million barrels of oil destroying the Gulf Coast. The lawyers then blew that minor incident way out of proportion, just so they could make a dime at poor BP’s expense.

Nocera’s Better Way

Nocera says he has seen several mass torts where billion-dollar companies got the short end of the stick. “Over the years, I’ve thought: There’s got to be a better way.” There is, thanks to BP, Nocera reports. He lauds BP for voluntarily setting up its own claims process “to get money into victims’ hands quickly, without having to file a lawsuit.”

That’s “the better way.” When a huge corporation causes unfathomable destruction to thousands of people, rather than turning to the civil justice system, with its pesky attorneys and lawsuits, let’s just let the offending companies clean up their own messes and be in charge of handling victim compensation themselves. Why didn’t somebody think of that sooner? I’m sure Big Pharm and Big Tobacco will get onboard.

We need to make sure to circulate copies of Nocera’s column to all of the world’s big businesses, so they know that that’s how we’re doing things now. From here on out, we’ll just trust companies that are guilty of wrongdoing to step forward, confess their sins and compensate their victims fairly, without a lawsuit ever being necessary.

BP Has Its Victims at Heart

Nocera pours on the praise for BP’s voluntary claims process, through which the company has paid out $6.3 billion to victims. Does Nocera actually believe that BP would have established its own claims process and paid out billions to victims, if it had not been highly motivated by the desire to minimize damages it would otherwise be ordered to pay in court? Obviously, it is the very existence of our civil justice system that propelled BP to try to get out ahead of victims’ claims.

BP: World’s Saintliest Company

Nocera writes: “BP is the best example I’ve ever seen of a company that actually tried to find a better way.” Let’s assume for a moment BP really is as saintly as Nocera imagines. By his own admission, after decades of covering corporate litigation, Nocera does not know of a single other company that has ever responded as well. In other words, BP is the best example of responsible corporation citizenship Nocera knows of.

If that’s true, maybe we ought to hang on to the civil litigation process a little longer after all.

Oil Spill Harm Exaggerated

Nocera says that he finds it “particularly offensive” that Louisiana businesses that were “unharmed by the oil spill” will still participate in a settlement BP agreed to last year with all of those nasty Louisianans who insisted on filing lawsuits. I like how law blogger Max Kennerly, a Philadelphia trial lawyer, responded to this point in his blog post last week:

“I happened to have grown up on the Gulf Coast, and my family still lives there, and so I also happen to know that every business in the region was harmed by the oil spill. Like a herbicide on a plant, the oil spill poisoned the whole economy, from root to leaf, starting with fishing and tourism — the largest industries on the Coast — and expanding from there. There was indeed billions of dollars in ‘indirect harm.'”

One of the best responses to Nocera comes from Media Matters, an organization devoted to countering “misinformation in the U.S. media.” Media Matters points out that BP:

  • Pleaded guilty to the felony manslaughter deaths of 11 oil rig workers.
  • Pleaded guilty of lying to Congress in the subsequent investigation.
  • Agreed to a settlement in civil proceedings rather than attempt to defend itself in court.
  • And now is litigating to attempt to modify the settlement it agreed to.

Media Matters sums it up well:

“Nocera is defending corporate behavior toward victims of the ‘second-largest spill of all time’ on behalf of a company that really doesn’t need his help. … His sympathies in regards to this calamity could probably be better placed with the local residents and businesses that are still seeking fair compensation.”