Judge Denies Sealing Confidential O'Reilly Settlements

This week, U.S. District Judge Deborah Batts, who is presiding over a federal defamation suit filed last year in New York refused to seal the confidential settlements reached between Bill O’Reilly and three women who accused the former Fox News host of misconduct. She rejected O’Reilly’s request to keep the agreements private, finding there is a long-established “general presumption in favor of public access to judicial documents.” She wrote that his concerns about disclosing “embarrassing conduct with no public ramifications” are not sufficient to trump the public’s right to view documents the court relies on to reach its decision in a case. “A possibility of future adverse impact on employment or the celebrity status of a party is not a ‘higher value’ sufficient to overcome the presumption of access to judicial documents,” Batts wrote. The judge noted, O’Reilly “asks the court to resolve a dispute by relying on the very documents he seeks to shield from public view.” Reportedly, the judge’s ruling creates an opening for attorneys to file the confidential agreements reached with the women who had accused O’Reilly of misconduct, and are now suing him for defamation for publicly dismissing their allegations as “politically and financially motivated” and part of a “smear campaign.” A former producer on The O’Reilly Factor who received a $9 million settlement was required to forfeit all audio recordings and written material — including notes, diaries, photographs, video recordings, letters and emails-- and to delete any computer files. She agreed to keep even the existence of such evidence confidential. Should the materials later become public, she was to disclaim them as counterfeit or forgeries and strict and complete confidentiality was the essence of this agreement. “The parties agree that the nature and terms of this settlement and agreement, including the existence of this agreement and the fact and amounts of any payments are to remain completely confidential.” A former Fox Business News host received a $3.25 million settlement from O’Reilly, a payout not previously disclosed. Under that settlement's terms, she could only disclose the amount of the payout to her tax advisers after the accountant signed a confidentiality agreement. The only person she told about the settlement was her husband. She, too, agreed to turn over any notes, recordings, emails, computer files or other documents dealing with any conversation she ever had with O’Reilly. The last woman received a settlement of about $100,000 as a junior producer at Fox News, in exchange for her silence. If anyone should ask what happened, she was to respond: “The matter has been resolved (or settled).” She also agreed not to disparage Fox News or any of its employees, including O’Reilly. The court opined that public would have no way to make sense of the its analysis of these claims with only partial or limited access to the settlement agreements. Just as with a Common Law right, she says, the First Amendment protects access to judicial documents if the documents “are necessary to understand the merits” of the proceeding. See full story here-- https://bit.ly/2EqvkA7 and link to ruling refusing to seal agreements here-- https://bit.ly/2GD1ZnZ

Takata Settlement Impacted by Bankruptcy

This week, 44 states and the District of Columbia agreed not to collect a $650-million deal to settle consumer protection claims so victims of Japanese airbag maker Takata Corp.'s faulty inflators can get a bigger piece of the company's remaining money. Takata was forced into bankruptcy last year amid lawsuits, multimillion-dollar fines and recall costs involving inflators that use explosive ammonium nitrate. The chemical propellant deteriorates over time when exposed to high heat and humidity and can then burn too fast, blowing apart its metal canister. Attorneys General for the states alleged that Takata concealed air bag issues and failed to disclose safety defects. Under this deal and a reorganization plan just approved by a federal bankruptcy judge in Delaware, Takata agreed not to represent its air bags as safe unless supported by scientific evidence, not to falsify any testing data, and to keep cooperating with automakers to make sure replacement inflators are available. It also agreed not to sell any airbags that use ammonium nitrate, unless for recall replacement parts. Some of the provisions already were included in an agreement with the National Highway Traffic Safety Administration. Takata had agreed under a DOJ plea to pay victims $125 million and to pay $850 million in restitution to automakers that bought its inflators and are stuck with recall and litigation costs. Under the restructuring plan, Takata will sell most of its non-air bag assets to a Chinese-owned rival for $1.6 billion. Reportedly, the airbag inflator problem touched off the largest automotive recall in U.S. history. Some 69 million inflators in the U.S. and another 60 million worldwide are being recalled, according to court documents and the National Highway Traffic Safety Administration. See more here-- http://lat.ms/2EO0McD

Law Schools TM Mediation

Competing law schools in Houston are going to mediation in a federal case in hopes of resolving a bitter trademark dispute over the new name of a 93-year-old law school. Interestingly, U.S. District Judge Keith Ellison of the Southern District of Texas set a judicial mediation before U.S. Magistrate Judge Dena Palermo at the end of the month. The University of Houston (UH) and South Texas College of Law Houston could not agree about withdrawing various trademark applications and registrations. They also could not agree about whether UH should be compensated for its expenses. The UH lawsuit claimed that South Texas had violated its trademark when it changed its name last year to Houston College of Law. The new branding, UH lawyers argued, confused prospective law students and even people voting on law school rankings, to the detriment of UH's law program. UH sought a temporary injunction, asking the judge to stop South Texas from using its new name while the case was being litigated. The injunction was granted because UH was likely to win the case before a jury in the court's view. Interestingly, the judge ordered South Texas to come up with a new name in the interim. South Texas officials decided to attach the word Houston to the end of the college's name rather than the beginning. UH apparently found this acceptable. The standard in trademark is always likelihood of confusion. Judge-directed mediation within federal district courts is sometimes seen around the country, though we don't find this in the Middle District of Florida, where private mediators are usually named in the Case Management Order (CMO) at the outset of a federal case. See story here-- http://bit.ly/2lt9vHl

Gawker Settlement Approved in BR

This week, Gawker Media won court approval to repay creditors and settle the $140 million legal judgment awarded to former wrestler Hulk Hogan that drove the online publisher into Chapter 11 Bankruptcy. U.S. Bankruptcy Judge Stuart Bernstein of New York signed off on Gawker’s reorg plan. The settlement pays Hogan $31 million to resolve privacy litigation over Gawker’s publication of a highly publicized sex video. Approval of the plan ends a four-year legal fight between Gawker and Hogan in a case tried before a Florida jury earlier this year. Liability for the resulting verdict in Hogan's favor and Gawker’s failure to stay the judgment for purposes of appeal forced the bankruptcy. Reportedly, lawyers involved in the settlement say this brings the case to a close and extinguishes any possibility of appeal. Gawker sold most of its blogs, excluding its namesake site, to Univision for $135 million. Gawker’s Chapter 11 plan splits the company’s assets and sale proceeds among its creditors. The plan also includes settlements of other defamation lawsuits. Gawker maintained its stories subject to lawsuits were true, arguing First Amendment protection, but the expense of continuing to defend litigation would have been too much. Judge Bernstein said each of the settlements was reasonable for Gawker in light of the circumstances. The deal also shields former writers and editors from future lawsuits. In exchange for receiving that protection, the writers agreed to relinquish their rights to indemnification. The Wall Street Journal writes that the releases raised a novel issue on the intersection of bankruptcy law and the First Amendment and elicited a legal brief from a collection of journalism organizations in support of the legal protections. See more here-- http://on.wsj.com/2hjh0Bt

BP Settlement

Over the course of the next 18 years, British Petroleum (BP) will pay Florida $3.25 billion or more for its role in the biggest offshore spill in U.S. history. The Deepwater Horizon drilling rig in the Gulf of Mexico exploded in 2010, killing eleven men aboard and spewing crude oil from the sea floor for almost 90 days. Along with Florida, some $18.7 billion will be paid to Mississippi, Louisiana and Alabama. BP already spent $42 billion in cleanup efforts, penalties and payouts for people whose livelihoods were directly affected by the spill. For businesses and individuals, about $5 billion was paid out. The accident led to thousands of lawsuits against BP, as well as Transocean, the rig’s owner, and Halliburton, which provided contract services for the project. Last week's settlement was the largest of BP’s agreements since the spill. BP agreed in 2012 to plead guilty and pay the government $4 billion to resolve a criminal case. BP also agreed that year to pay another $525 million over allegations of understating the size of the spill. The company also reached an estimated $10.3 billion settlement with most Gulf area residents and businesses harmed by the spill who did not opt out. That deal will probably cost more because claims that haven’t been fully processed. The settlement didn’t cover banks, casinos, insurance companies and businesses or residents in large swaths of Texas and Florida. It also didn’t include shareholders or businesses blaming BP for the Obama administration’s moratorium on deep-water drilling in the Gulf following the spill. BP has increased the amount set aside to pay for the spill to $53.8 billion which may not be enough. Investors filed a securities-fraud lawsuit, claiming BP downplayed the disaster, which goes to trial next year in Texas. A class action covers investors who bought BP’s U.S. shares from a period days after the blowout. BP will ask the U.S. Court of Appeals in New Orleans this month to block them from suing as a group, which could delay the case. Investors are seeking as much as $2.5 billion, according to court filings. BP's defense seeks to deny responsibility for those damages because the U.S. government ordered and extended the drilling ban for months. See stories here-- http://bit.ly/1H5iMIs and http://bit.ly/1NLxrOg

BP Settlement Challenged

The U.S. Circuit Court of Appeals for the Fifth Circuit ruled this week that a trial judge must reconsider BP's arguments for injunctive relief that 2012 settlement proceeds only compensate businesses whose economic losses are directly traced to the 2010 Gulf of Mexico oil spill, holding that the lower court erred last month in refusing to consider causation arguments in interpreting the consent decree. BP attacked its multibillion-dollar settlement and has previously received favorable rulings on appeal regarding disputes over payouts to businesses. BP argued court settlement administrators wrongly considered bogus or inflated claims by businesses. Plaintiffs' lawyers countered that BP undervalued claims and underestimated the number of claimants qualifying for payments. BP and the plaintiffs' lawyers had agreed on objective and specific methods of proving that losses were caused by the spill such that losses for businesses located in certain areas from Louisiana to Florida were presumed to be caused by the spill under the settlement's terms. The U.S. District judge presiding over the case felt it unreasonable to expect claimants to prove losses were directly traced to the spill, and that doing so would defeat the purpose of a class settlement. Citing lack of some colorable claims, the appellate court directed the trial judge to craft an order allowing businesses who can trace their losses to the spill to continue receiving payments, but ensuring those who cannot trace their losses to the spill don't receive compensation. BP attorneys complained dozens of claimants whose losses were caused by something other than the spill have received millions. The trial judge already expressed disappointment that BP accused the claims administrator of disregarding the settlement terms and felt that BP was attempting to rewrite unambiguous terms of the Settlement Agreement. However, the appeals court stated that by allowing recovery from the settlement fund by those who have no case and cannot state a claim, the court acts "ultra vires." Meanwhile, LawFinance Group, a provider of capital for litigation, announced the availability of the $50 million in funding due to financing demand that allows smaller plaintiffs’ firms to stay afloat while they litigate with BP over disputed claims. See stories here-- http://abcn.ws/18BY60h and http://buswk.co/1bfEs8J and opinion here-- http://www.ca5.uscourts.gov/opinions/pub/13/13-30315-CV0.pdf

DOJ Settles Airline Antitrust

The U.S. Justice Department agreed to settle with American Airlines and US Airways, ending the government’s antitrust lawsuit trying to block a merger creating the world's largest airline. The case was headed to trial this month in federal court and the parties previously agreed to a mediator suggested by the court. The Justice Department maintained the planned merger would create a monopoly, thereby reducing competition and leading to higher fares. The settlement calls for certain slots to be divested in major cities, including Boston, New York, Chicago, Dallas, Miami and Los Angeles. U.S. District Judge Kollar-Kotelly, who presided over the Microsoft antitrust case, is overseeing the litigation and must still approve the settlement. American, which has been in bankruptcy, will now exit court protection by merging with US Airways. The companies reportedly expect the merger to generate more than $1 billion in annual net synergies beginning in 2015. The merger will likely close in December, subject to the approval of the settlement by the U.S. Bankruptcy Court. See story here-- http://fxn.ws/1gGczKR

NFL Helmet Maker Mediation

Last month, before the start of the NFL regular season, thousands of former players settled with the National Football League over concussion-related suits for $765 million. However, the apparent amicable resolution to their case doesn’t mean litigation is over. NFL helmet manufacturer Riddell and former players are continuing talks because the deal doesn’t include Riddell. While those negotiations remain confidential by order of the federal judge to "refrain from publicly discussing the mediation process or disclosing any discussions they may have as part of that process,” the proposed settlement between the NFL and some 4,500 former players awaits court approval and a determination on fees. In a prior order, the presiding judge, Hon. Anita Brody, expressed her belief that "the interests of all parties would be best served by a negotiated resolution of this case. The settlement holds the prospect of avoiding lengthy, expensive and uncertain litigation, and of enhancing the game of football.” Riddell may remain exposed following a state jury verdict this year in Colorado, determining that Riddell failed to adequately warn a former football player about the dangers of concussions, resulting in a $3.1 million damages. In this federal matter, Riddell had argued their case should be heard separately from the case against the NFL, but a motion to sever was never granted before ordering the Riddell defendants into the global mediation. See articles here-- http://bit.ly/1fXmCX8 and http://bit.ly/15hvyFk

BP Settlement Fund business loss payouts to continue per Judge

New Orleans U.S. District Judge Carl Barbier denied BP's attempt to halt payments from a settlement fund to reimburse businesses and individuals for losses from the 2010 Deepwater Horizon accident in the Gulf of Mexico. The court rejected BP's arguments that the fund administrator misinterpreted claims and miscalculated payments, amounting to fictitious claims. The judge previously upheld interpretation of settlement terms governing payments to businesses affected by the spill. BP sought an injunction blocking making payments to businesses. BP maintains decisions made in claims handling expose the company to losses never contemplated in the settlement. Attorneys who brokered last year's deal with BP say the request was designed to set up an appeal to the United States Court of Appeals for the Fifth Circuit to review the matter. The oil company filed a notice of appeal and is reportedly evaluating how to proceed following the ruling to preserve rights and prevent so-called meritless awards. Last year, BP estimated it would pay roughly $7.8 billion to resolve tens of thousands of claims by businesses and individuals covered by the settlement. The company now claims it can't give a reliable estimate for the total value of the deal. According to experts, it appears difficult to reopen the settlement at the appellate level because of extensive negotiation and ultimate approval by BP and its legal team. The hearing last Friday took place during a break in the sixth week of the continuing civil trial aimed at determining the degree of culpability that BP and other companies have for the accident. See stories-- http://on.wsj.com/14KdZxJ and http://usat.ly/10kDou3