Odds Against BP In Derivative Actions, Says Expert

NU Online News Service, May 11, 4:04 p.m. EDT

Shareholder derivative lawsuits against directors and officers of BP in the wake of the company's oil rig explosion could result in sizeable recoveries based on current litigation trends, an expert in the field said.

That forecast came from Kevin LaCroix, an attorney and author of the "D&O Diary" blog (www.dandodiary.com/), who is also a broker for OakBridge Insurance Services in Beachwood, Ohio.

Mr. LaCroix said recent patterns point to the possibility of a cash payout resulting from lawsuits--such as the one filed May 7 by BP shareholder Katherine Firpo, on behalf of BP, against some of the oil company's directors and officers and other defendants.

That outcome for a derivative suit brought by a shareholder on behalf of a corporation against a third party would be a change, since historically such suits have not resulted in huge payouts and generally have led to agreements for remedial measures and payment of attorney fees, he explained.

"The question of whether there ultimately will be a cash payout--there was a time when I would have said that's not very likely simply because derivatives lawsuits really never resulted in huge payouts," Mr. LaCroix said.

But more recently, he said significant payouts from derivative suits were seen. He pointed to a settlement in 2008 in which former AIG executives agreed to pay $115 million to shareholders, and a $118 million settlement of a derivative suit in 2009 involving chip maker Broadcom as examples.

"There's at least recent historical precedent to suggest a possibility that there could be a large cash payout," Mr. LaCroix said.

Whether there is a cash payout, he explained, may depend on the availability of directors and officers insurance for the executives named in the BP suit, as well as the ultimate objective of the plaintiffs and how the case fares as it proceeds.

The complaint filed on May 7, in U.S. District Court in New Orleans, alleges that BP has a history of "ignoring crucial safety issues related to the operation of offshore submersible rigs" and that executives continued to ignore safety issues after settling a previous shareholder derivative proceeding in 2006.

The complaint mentions a 2005 explosion at a BP refinery in Texas City, Texas in which investigators "determined that BP had ignored its own protocols on operating the tower," and a 2006 incident where BP had to shut down its Prudhoe Bay oilfield in Alaska after oil leaked from a corroded pipeline.

After those two incidents, the complaint states, BP continued to disregard risks.

The suit names as defendants Anthony Hayward, chief executive officer and board member of BP, as well as other directors and officers, and companies that own or have done work on the Deepwater Horizon rig such as Transocean Ltd., Cameron International Corporation, and Halliburton Energy Services, Inc.

Mr. LaCroix said he expects to see additional law firms file similar derivative complaints against BP's executives on behalf of shareholders until the courts can determine a lead law firm. He said a number of lawsuits were filed in the previous 2006 Prudhoe Bay spill.

But speaking to the potential for widespread D&O suits, he said the number of potential targets is limited to BP and a few other vendor and service companies involved in operating and working on the rig.

Howard Mills, chief insurance advisor at Deloitte, said D&O action in oil spills such as this one could be driven by the extent of the damage that ultimately occurs.

He also said if a company has a history of regulatory problems or violations, it could call risk management procedures into question, potentially putting directors and officers on the spot for how risk factors were addressed.

Mr. LaCroix said a broader issue could be whether derivative suits will become more common in future environmental events.


Resource Center

View All »

Complimentary White Paper: The Compression of Workplace Time

How brokers and carriers respond to the compression of workplace time will create significant competitive...

The Changing Insurance Consumer: 6 Ways to Create Profitable Relationships

Today’s mobile and web-savvy consumers have new expectations when it comes to interacting with your...

Contractors General Liability Coverage 102

What is a prior work exclusion? Which option is right for my client? Why do...

Sign up today to get a 50% matching credit -...

Insurance marketing sometimes seems like it's a game of swings and misses, but we're here...

Guide: 5 Steps to Selling Cyber

Cyber risk and data security is on the agenda of every business owner and executive....

Citation Correlation

Do rigger and signalperson qualifications correlate with the cause of crane and rigging accidents? ...

Complete Guide to Electronic Signatures in Property & Casualty Insurance...

In property and casualty insurance, closing new business quickly is key. Learn how to leverage...

INSTANT ACCESS: Complimentary Sales Closer Questionnaires

Help property owners or managers compare your commercial residential property insurance coverage vs. the competition....

Determining Vacant Property Perils and Valuations

Are your clients fully covered for Vacant Properties? In this economic climate, your insureds may...

Risk Management for Law Firms

This package of 3 concise risk management articles offers straightforward content and practical suggestions law...

Risk Management Report eNewsletter

Identify problems involving emerging risks, reinsurance, and business interruption with help from Risk Management Report - FREE. Sign Up Now!

Advertisement. Closing in 15 seconds.