GLEN COVE, NY — Those who remember the animal stories
told by Uncle Remus will remember the tar baby. Bre’r Fox built
a tar baby to trap Bre’r
Rabbit. Bre’r Rabbit said hello to the tar baby; when the tar
baby did not tip his hat or answer Bre’r Rabbit’s demands
for common courtesy, Bre’r Rabbit struck the tar baby and got
stuck to the tar. The more the rabbit struggled, the more parts of
his body stuck.
Bre’r Fox announced his intention to cook Bre’r Rabbit
alive for dinner. Bre’r Rabbit allowed as how this was a pretty
bad death but better than being thrown in the briar patch. Bre’r
Fox determined to find the worst possible death for Bre’r Rabbit
before cooking him. He threatened in turn to hang, shoot, and drown
the rabbit. Bre’r Rabbit in each case expressed some horror at
such a death but said that it least it was not being thrown into the
briar patch. Finally, Bre’r Fox threw Bre’r Rabbit into
the briar patch. The tar baby stuck to the brambles in the briar patch.
Bre’r Rabbit, who was born in the briar patch and was familiar
with every inch of it, escaped on the other side.
The oil spill has been a tar baby for BP. The original corner-cutting
on safety keeps being disclosed daily. After the accident, BP understated
the rate of the spill by a factor of something close to 100. Although
this was only one of the causes for the inexcusable failure to burn
off or scoop up as much of the oil as possible, it was an important
The top management of BP keeps making statements that can only destroy
what little public support the company has. This management has conducted
itself in a way that can only make it look like a villain, despite
the fact that the failings of the federal government are worse than
those of BP. Indeed, it looks like BP and the federal government conspired
to cut corners on safety in exchange for campaign contributions.
As a result, BP faces possible criminal prosecution of the company,
officers, and employees, as well as a decline in the sale of its products.
Above all, it faces damage settlements and awards without any enforceable
caps and with huge attorney fees and administrative costs. The minimum
estimated damages are $20 billion.
What BP does not legally face is a requirement to put money in escrow
to cover these damages or to allow the government to handle the payouts.
Although it is legally unenforceable, this escrow fund is the one “punishment” we
have inflicted on BP during what will probably be seen as the moment
of its greatest unpopularity.
BP has already paid out over 60,000 claims totaling well over $100
million. It has, however, agreed to a proposal, which was not legally
required, that it give up the processing of the claims to a government-appointed
board and to create a fund of $20 billion out of which these claims
will be paid. BP has fooled the public into thinking that the $20 billion
fund is some kind of punishment for it, a sort of toss into the briar
By accepting this proposal, BP relieves itself of the costs of processing
the claims. Even if it refunds all the actual out-of-pocket costs,
it will save the intangible costs, which will be substantial.
Much more important is that BP will not be responsible for the substantial
fees of defense attorneys in claims processed by this board instead
of handled in the more complex and expensive court system. Furthermore,
BP will not be responsible for any of the out-of-pocket costs or the
fees of the attorneys of successful claimants. Most claimants will
not hire attorneys, opting to get their money through the simpler administrative
process; if they are turned down and need an attorney, it will be the
board and not BP that turned them down. In either case, the claimants
will be less angry with BP.
BP gets a pretty good deal when it unloads all these administrative
and legal costs onto the American public. Even if some administrative
costs are deducted from the $20 billion, the intangible costs saved
and the avoidance of litigation will be a huge benefit to BP.
BP has, indeed, obtained a punishment for itself that is the equivalent
of being thrown into the briar patch.
The Confederate Lawyer column is copyright © 2010
by Charles G. Mills and the Fitzgerald Griffin Foundation, www.fgfBooks.com.
All rights reserved.
Charles G. Mills is the Judge Advocate or general counsel for the
New York State American Legion. He has forty years of experience in
many trial and appellate courts and has published several articles
about the law.
See his biographical sketch and additional columns here.
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