Additional Successes in the Landmark BP Litigation In October 2014, Pomerantz once again secured crucial victories in its ground-breaking litigation over BP plc's ("BP") 2010 Gulf of Mexico oil spill. This time, Pomerantz established the right of individual foreign investors who purchased foreign-traded shares of a foreign corporation to pursue claims for securities fraud in a U.S. court, thereby overcoming obstacles created by the U.S. Supreme Court’s 2010 decision in Morrison v. Nat’l Australia Bank Ltd.
A year prior, Pomerantz defeated BP’s motion to dismiss similar claims by individual U.S. public pension funds. In that ruling, U.S. District Judge Keith P. Ellison determined that sufficient wrongful conduct had occurred in the U.S. to warrant adjudication of the claims here – as versus England – even after he decided to apply English common law. He also did not credit BP’s arguments that either Morrison or the U.S. Constitution barred such an outcome as impermissible regulation of foreign commerce.
BP next sought to dismiss the cases of Pomerantz’s foreign clients on several grounds, including that the forum analysis differed for foreign investors, requiring their claims to be litigated in England, and that the Securities Litigation Uniform Standards Act (or SLUSA), which in certain instances requires dismissal of securities claims under U.S. state law, applied to our foreign clients’ (and certain U.S. clients’) English law claims and mandated their dismissal.
Pomerantz responded forcefully and again prevailed. Pomerantz partner, Matthew Tuccillo, argued these points before Judge Ellison in July 2014. Thereafter, the court entered an order rejecting BP’s argument that the forum non conveniens analysis required their cases to be litigated in England. The court also rejected BP’s argument that SLUSA barred their English law claims. See Order of September 30, 2014, Avalon Holdings, Inc., et al. v. BP p.l.c., et al., Case No. 4:12-cv-3715 (S.D. Tex.) (MDL 2185 Docket No. 1022).
Together, these landmark rulings have highlighted a new path toward recovery in U.S. courts for foreign investors pursuing foreign law claims regarding their losses in foreign-traded securities. Since Morrison was decided in 2010, foreclosing use of U.S. federal securities laws as a vehicle to recovery such losses, no other similar case in the nation has survived a motion to dismiss.
The court also ruled in Pomerantz’s favor as regards the U.S. federal securities claims being pursued by some of our foreign and domestic clients, by rejecting BP’s argument that the applicable Exchange Act section 10(b) statute of limitations and statute of repose were not tolled and that the claims were thus untimely. See Order of September 30, 2014, New York City Employees’ Ret. Sys., Case No. 4:13-cv-1393 (MDL 2185 Docket No. 1019).
Pomerantz currently represents nearly three dozen institutional plaintiffs in the BP litigation, including U.S. public and private pension funds, U.S. limited partnerships and ERISA trusts, and pension funds from Canada, the U.K., France, the Netherlands, and Australia.