Disenfranchised Citizen

In the latest from the MDL litigation, Transocean, the owner of the Deepwater Horizon, alleged that their contract with British Petroleum, the leaseholder of the Macondo Well, had indemnified them against any liabilities for pollution underneath the surface of the Gulf, and also against any civil penalties under the Clean Water Act or punitive damages from being declared grossly negligent. British Petroleum, of course asserted otherwise, as did the US Department of Justice.

Well, yesterday Judge Barbier issued his rulings. He decided the contract did indeed clear Transocean from those damage claims occurring below the surface of the water, it is British Petroleum who will be the responsible party for pollution damages from the 4.9 million barrels that leaked directly from the Macondo Well. Barbier also ruled the contract did not shield Transocean from any liability for punitive damages should their company be declared grossly negligent, nor did it indemnify them from any potential civil penalties under the Clean Water Act.  

Transocean, of course, declared this ruling a victory, “This confirms that BP is responsible for all economic damages caused by the oil that leaked from its Macondo well, and discredits BP’s ongoing attempts to evade both its contractual and financial obligations. Transocean is pleased to see its position affirmed, consistent with the law and the long-established model for allocating risks in the offshore oil and gas industry…”

This only makes sense.

You see, BP was trying to skirt their responsibilities under the law and Barbier set them straight.

British Petroleum also felt themselves to be quite victorious, “Today’s ruling makes clear that contractors will be held accountable for their actions under the law. While all official investigations have concluded that Transocean played a causal role in the accident, the contractor has long contended it is fully indemnified by BP for the liabilities resulting from the oil spill. The Court rejected this view…”

This too only makes sense.

You see, Transocean was trying to skirt their responsibilities under the the law and Barbier set them straight.

And with spin factories so readily engaged, victory toasts were had all around.

Executives clapped lawyers on backs and lawyers hit speed dials to their favorite banking institutions to check account balances.

And with all these companies claiming all these victories over all these decisions, when the dust settled and the cheering finally dissipated into idle conversations about Super Bowls and stock options, it was almost kind of easy to forget that when it comes to this catastraphuk that unleashed 4.9 million barrels of oil after an explosion that killed eleven people, just how there really were no victories to be had here…

When it comes to the worst environmental disaster to hit the United States, British Petroleum had a hand in it, and so did Transocean, and for that matter so did Anardarko and Halliburton…and no matter how Barbier ruled yesterday, not one person from any of these companies has yet to spend a day in jail.

So yeah…Transocean claims victory. British Petroleum claims victory. Transocean calls British Petroleum liable and vice versa, yet eleven people are still dead while thousands of others still wait to be made whole, and all cheering aside, that’s something someone should be liable for…criminally.

Read the article:

Judge says Transocean will be shielded from paying pollution claims

Have a nice day.

How could they make it any more clear, I mean...who the hell is this O'Rourke guy? I wouldn't hire him either...

So, in determining guilt and any possible fines under the Clean Water Act, welcome to another day in court, another episode of the 3 Stooges, starring  BP, Transocean and Anadarko…Please, follow along and keep in mind that of course, no one is to blame except for everybody else.

Duh…

First, allow me to introduce Department of Justice Senior Attorney Steven O’Rourke who explained how simple this all should be under the Clean Water Act – “Any person who is the owner, operator, or person in charge of any vessel … or offshore facility from which oil is discharged” will face Clean Water Act fines.

Okay, so British Petroleum is part owner of the lease to the well, and operator of the Deepwater Horizon, Anadarko is also part owner of the lease while Transocean owns the rig.

And, O’Rourke continued, “Each defendant admits that the oil came out of the well through the blowout preventer riser and was discharged into the Gulf of Mexico. They’ve admitted they were owners and they’ve admitted the discharge from the well.”

Well, that was easy enough…all three, guilty as fuck – so moving on to the amount of the fines…

Uh…what? Not that easy? Who says its not that easy?

Oh right…

The lawyers…

David Salmons, lawyer for Anadarko said no way, man…Anadarko can’t be held liable because they are part owner of the well and the oil, it discharged from the Deepwater Horizon and since they had no control over operations onthe rig, and since the oil can’t come from both the vessel and the well, it obviously came only from the vessel.

Not guilty!

Andrew Langan, lawyer for British Petroleum said no way, man…the oil couldn’t have come from both the well and the vessel, we agree with Anadarko about that and the oil, it definitely came from the vessel and Transocean owns all that shit.

Not guilty!

Kerry Miller, lawyer for Transocean said no way, man…they are only liable for the oil that made it to the surface and all that subsea oil, you know, almost all of the oil unleashed into the Gulf…it all belonged to both British Petroleum and Anadarko who leased the well, so send them the bill, not us.

Not guilty!

And there you have it…4.9 million gallons of oil discharged into the Gulf of Mexico and the only person anyone can say for sure did it, was anyone else but me.

But wait, Mr. O”Rourke then decided to try again, do his best to summarize it for the Judge: “Transocean is saying it came from the well so BP and Anadarko are liable; Anadarko and BP are saying it came from the vessel so Transocean is liable. The government says all of them are correct. They’re all liable.”

Sigh…

I know!

It’s like he didn’t hear a single thing the other lawyers said at all…

No wonder he works for the government, obviously way too dim to work for any of these plaintiffs.

Read the article:

Gulf Oil Spill Could Bring Up to $20B in Fines

Have a nice day.

The truth is so...the truth, well, it can just be so...messy.

Ed. Note: Times Picayune now reporting investigators from both BP and the Coast Guard have gone out to the well site and found nothing. BP plans to send a ROV down to the seafloor tonight to determine if the well is leaking. Also, tests on the oil sheen spotted by Press-Register reporters has come back as a match to the oil that spilled last year. So, according to USCG and BP, no oil today, but the oil yesterday is a match to the Macondo…I feel better?

Reporters from the Alabama Press Register were out on the water near the Macondo Well site to investigate reports, floating around for over a week now, about new oil sheens on the Gulf’s surface:

“The Press-Register reporters located the area where the oil was rising to the surface by going to a point directly over the Macondo well and then moving in the direction of the prevailing surface current. The first blobs of oil seen on the surface were detected about a half-mile from the well. The frequency of the sightings increased gradually over the next half-mile.

In the Olympic swimming pool-sized area where the oil was rising most frequently, new sheens were erupting every few seconds on all sides of the 36-foot boat.

Marcus Kennedy, who piloted his fishing boat, the Kwazar, 115 miles from Dauphin Island to the well site, said he was stunned by the heavy petroleum scent in the air. A nearby data buoy recorded winds of less than 2 mph at the time”

Now, reports differ on where this oil is coming from:

BP, of course, denies this has anything to do with the Macondo Well.

Phillip Johnson, a professor at the University of Alabama feels the oil is most likely residual, just oil leaking from the 5000 feet of riser pipe left on the sea floor or oil that had been trapped in various debris from the sunk platform that’s now worked its way free.

Ed Overton, an oil chemist, feels more investigation is needed, to find out what is going on, “There is no way to say for sure whether the well is leaking, based on what is on the surface,” he said. “Of course it is suspicious.”

The Coast Guard has determined the leakage is from natural seeps and permitted pollution releases at other drilling sites, but did not elaborate how this was determined, and said no boats had been out near the well location.

Robert Bea, professor emeritus at UC-Berkeley, after looking at photographs of the sheen said, “I think the primary source with high probability is associated with the Macondo well…perhaps connections that developed between the well annulus (outside the casing), the reservoir sands about 17,000 feet below the seafloor, and the natural seep fault features” could provide a pathway for oil to move from deep underground to the seafloor, Bea said.

Lot of opinions, lot of oil, lots of possible narratives…

What’s needed is the truth.

Perhaps along with that GCCF audit, US Attorney General Eric Holder might find an independent investigator to get ahead of this story now, find out what, if anything is going on in the Gulf, throw a wrench in the spin cycle and beat that dryer to hell.  When the Deepwater Horizon went down 16 months ago, the information appeared immediately slanted to fit a damage control agenda, truth be damned…so much so the Justice Department is now investigating BP for faulty oil spill estimates.

Not that we are headed for a repeat, but it might be nice this time, to start any sort of response to these sheens from the basis of truth.

Where are the sheens coming from? Is it likely there will be more? Is it coming from the Macondo Well?

Is there something wrong with the seal, with the sea floor?

Hopefully not.

But I’d sure like to know…regardless of whatever anyone who might stand to lose public relations battles or profit thinks about it.

“Last week, in response to Internet postings by lawyers and environmental groups describing a leak, BP issued a blanket denial, stating, “None of this is true.””

A blanket denial from British Petroleum, with little to no explanation.

Even if they are right, a blanket denial is not good enough, not this time.

Read the article:

Deepwater trouble on the horizon: oil discovered floating near source of Gulf of Mexico spill (Photo gallery, video)

Have a nice day.

No Ken, not one...

In article after article on the spill and the GCCF, come the words, “slipping through the cracks,” in reference to the inevitability that some who have rightful claim to the British Petroleum compensation fund will be denied payment for any number of reasons…they couldn’t prove their physical ailments came as a result of exposure to the spill, they didn’t have the proper documentation, they didn’t get the help needed in completing their claim, they missed a deadline or maybe they even accepted a quick payment, far too soon, only to find new costs, new expenditures, new problems previously unaccounted for…

In any case, they’ve slipped.

Back in March, Feinberg, administrator of the fund, admitted as much when he said: “Here is the problem that I continually have to address … roughly 80% of the claims that we now have in the queue lack proof…That is a huge number…” Feinberg did not rule out settling claims in the future, but he added: “The claims that were denied had woeful, inadequate or no documentation to speak of.”

What he didn’t say was that all of these claims so summarily dismissed, well over 100,000 of them, were undeserving of compensation, just that they lacked proof.

So how many of them are legitimate claims made by people so harmed from the spill, but for whatever reason were unable to complete the forms to Feinberg’s satisfaction and were then denied? How many of the people who were made offers by the GCCF didn’t have the proper documentation to receive all they deserved and settled for pennies on the dollar?

How could we possibly have an answer to any of these questions?

U.S. Attorney General Eric Holder stated recently, after visiting Alabama to review progress along the Gulf Coast, “I am a little worried about the pace and the transparency” of the claims process, Holder said. “We have to ensure that it keeps pace with the restoration of this most beautiful part of the country.”

And so we come back to transparency, yet again…something Feinberg promises and doesn’t deliver, again….so the Gulf Coast is left to take his word for it, again.

Holder continued, “My voice has not been as loud as maybe it should have been…There are issues here, legitimate issues, that have to be discussed. Things have to be done better.”

Yes they do. Start by finally opening the books and making sure mistakes haven’t been made, that claimants haven’t needlessly been left behind.

Then, ask Ken Feinberg some key questions:

1. What is more important, a rigid inflexibility on what can be accepted as proof of damage in the claims process, or claimants being paid too little or left completely uncompensated?

2. Understanding your many statements about the huge undertaking this has been, with well over 400,000 claimants…how it has been hard, difficult, almost impossible to complete, shouldn’t you have hired more professionals to assist claimants and in turn, assist you?

3.  By not hiring as many people as necessary which may have made the process less manageable, didn’t you run the risk of making mistakes that have left people unpaid and if so, why did you feel it appropriate to run that risk?

4. If you truly did come to the Gulf to make things right for people, to be fair…why would it be okay for anyone deserving of compensation to go unpaid? If only a matter of timelines, research, investigation or expenditures, shouldn’t it be that the GCCF’s job is finished only when justice is done for everybody in the Gulf?

5. And shouldn’t the aggrieved party, the citizens and businesses of the Gulf Coast be the ones to decide when justice has been done, not you or the GCCF and certainly not British Petroleum?

Feinberg is running this show. He set the methodology for final and interim claims. He is in charge of determining what constitutes appropriate proof. He has taken credit for the no-sue clause attached to quick payments and final claims. He is making the rules, determining who and how many are hired, when claims offices close, when his job is done. So it would only stand to reason that Ken can make changes, just as he is doing with compensation to oyster fishers…so in that light…Ken? How many citizens of the Gulf Coast should get left behind by this process? How many should lose a house, a car, the togetherness of their family and community as a result of this spill? How many Americans should be left to fall through the cracks, for any reason?

Tough questions all but I do have a suggestion, even though it will entail me doing something I typically don’t like to do, but feel is apt given the situation: I’ll answer that question with another.

So, how many people should be left to fall through the cracks by the GCCF?

Well, how many employees of British Petroleum have gone to jail for the events that occurred on the Deepwater Horizon?

Zero.

Feinberg should be transparent and Feinberg should think outside of the box on these claims, not because he is compelled to do so by the Justice department or even Gulf Coast residents, but because it is the right thing to do. Feinberg should stop being a lawyer and start trying to understand the people and ways of the Gulf Coast so that nobody gets left behind, and he should take as long as necessary to ensure this happens.

Anything less is negligent to his duties and irresponsible to all required magnanimity.

Not one left behind in this mess: a mistake on GCCF paper could very well be someone’s livelihood and/or way of life.

Have a nice day.

Right here! It says it right here! Human Pinata!

In some recent promotional items for the University of Pennsylvania – Wharton’s 2011 Leadership Conference, Ken Feinberg lets us all know about the risks of leadership, and he says:

“You have to define risk with each situation. When I pay a fisherman, I find a payment that ends their concern, but what is the likely risk that the Gulf is safe? Have I factored into that reward a good understanding of future risk to fishing in the Gulf? Inherent is the notion of a substantive definition of risk…When administering the 9/11 fund, it turned out that my evaluation of risk was poorly done — I underestimated the support of the victim’s families and the public in general. I evaluated correctly with the BP case — I’m a human pinata.”

He evaluated “correctly”…he “ends the concerns” of the fisherman…he has factored into the “reward” a good understanding of future risk to fishing in the Gulf.

Oh, and he’s a “human pinata.”

Okay, well, let me take a few more whacks at Mr. Feinberg…

In Ken’s claims payment methodology, he takes the rather controversial standpoint that everything in the Gulf will be back to normal by 2013, and in August of that year his plan is to close up the GCCF shop for good…

Yet, I read:

…officials with the U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric Administration said assessing the damage from the BP spill is processing but that it would be another several years before a full evaluation is complete…

And if everything is improving, fishing wise in the Gulf, why do I read:

“Hundreds of angry shrimpers rallied on the steps of the state Capitol today. The focus of their anger: Ken Feinberg and BP. “Our livelihoods are at stake,” Acy Cooper told the gathered crowd. Cooper is the vice president of the Louisiana Shrimp Association, the organization that organized Wednesday’s rally. “None of us are going to make it through the winter time if we keep getting these prices. None of us.”

And if the businesses are all coming back, why am I receiving comments on this blog saying:

“I was one of the top yacht brokers in the panhandle. Annual growth of 35% to 65% annually. While yacht sales are up nationally ours are down 85% over 1st quarter of 2010. BP/Ken says that this is due to the poor economy. What they are doing to people and business here on the Gulf Coast is criminal. Why isn’t THIS on FOX or CNN? The news loves to talk about negatives like the spill but doesn’t seem to care about the actual people or the families they have impacted.”

You know what, Ken?

Sometimes people feel like pinatas not because they are making the hard choices, not because they are demonstrating great leadership, sometimes they feel like a pinata because they deserve to feel like a pinata. It certainly isn’t because you made “correct” evaluations with the oil spill. And judging by your quote at the beginning of this post, it makes me wonder if you consider your mistakes during the 9/11 fund to be less of what you did or didn’t do, but instead the fact you underestimated how many people were paying attention to the mistakes you feel you made:

“When administering the 9/11 fund, it turned out that my evaluation of risk was poorly done – I underestimated the support of the victim’s families and the public in general.”

Which begs the next question…if more people were paying attention to what you are or are not doing in the Gulf, would the expanding number of people who feel they are falling through the cracks then become mistakes? Do you consider yourself error-free down here simply because the people outside of the Gulf haven’t noticed? Or maybe a better way of putting it…Ken, if a tree falls in the woods and shatters your ego, and no one is around to hear it shatter, would it still make a sound?

Continuing on in the promotional materials, Feinberg also stresses the following characteristics of strong leadership when it comes to managing risk:

• Convey a sense of certainty
• Be transparent — “The more sunlight I let into the room, the easier it is,” he said.
• Consistency — no bias or favoritism
• Flexibility — keep an open mind
• Use sound judgement — “Give the people impacted by your decisions a say.”
• Delegate to good people — “Staff is the key.”

So, how did Ken do?

Convey a sense of certainty:

Yes, Ken has certainly conveyed a sense of certainty. When political leaders and claimants across the Gulf Coast region, and the Justice Department asked him to make certain changes in the way the GCCF operates, be it the speed of processing claims, openness with the claims process or not closing down the claims centers, Ken has certainly conveyed a resounding clear response, “No.”

Be transparent:

As I have previously written, see here, here, here, and here, Feinberg and the GCCF have never been about transparency. In fact, everybody from Congress to the Justice Department to the Attorney Generals of Alabama and Mississippi have been demanding more transparency, to which Feinberg says something along the lines of “Yes I could do better and I promise to do better,” but then he does nothing. As I’ve also previously commented, It would seem Feinberg is quite pleased with the job he has done, so pleased you would think he would take up Alabama Attorney General, Luther Strange on his offer of choosing a neutral party to look at the GCCF books, a confidential neutral party who then would report back to Strange an unbiased view of just how fair, impartial and accurate the GCCF process has been, but this would be another point where Feinberg has conveyed a certain sense of “No.” This is unfortunate. Until GCCF transparency dramatically improves, all we have is Feinberg’s word for it, which leads recent situations such as Feinberg making statements to the press claiming he has received no claims for health damages, only to have this statement undone a day or two later by himself. Complaints from claimants continue to come in via the press, editorials, and the comments sections of blogs, yet Feinberg’s transparency does not improve.

Consistency:

Mr. Feinberg could certainly be accused of a lack of consistency, and also of exhibiting bias and favoritism. One need only look so far as the whole working for British Petroleum thing, or remember when he wasn’t paying any final claims yet, except the $10 million claim he paid to a certain business partner of British Petroleum, at BP’s request, while everybody else had to wait? And even now, interim claims are not being paid while quick pays and final claims are, the two types of claims which most benefit his employer due to the signing away of the legal right to sue, so required to receive these payments.

Flexibility:

Keeping an open mind…like when he bases his payment methodology primarily on the work of one scientist who even disputes his own timeline conclusions that all will be back to pre-spill harvests by 2013. It takes a very open mind to ignore the scientific consensus predicting either: 1.) things will take many years to resolve in the Gulf, or 2.) it is impossible to know how long it will take. Ken kept an open mind through it all, until he found Dr. John W. Tunnel, Jr. who set the 2013 benchmark, though in his own report he writes “Realistically, the true loss to the ecosystem and fisheries may not be accurately known for years, or even decades…”

Use sound judgement:

Feinberg reports sound judgement to be “Give the people impacted by your decisions a say.” Okay, one might give this one to Ken. It was he who held all those town hall meetings where he gave dozens of people dozens of opportunities to give their opinions. Oh, and remember the public comment period for his methodology? Yes, that lasted two weeks and Feinberg swore that he read them all. Yes, Feinberg gave lots of people their say…course, I might argue that a better characteristic of leadership would be to not only give people opportunity to have their say, one might also want to listen too. Yes, it would seem listening would be very key…

Delegate to good people:

Like Guidepost Solutions? The ones who are doing the investigations on people who applied for quick payments despite quick payments supposedly being “no questions asked?” Also, I might suggest that you can delegate all you like, but if you close the offices so claimants don’t get any face time with the “good people,” you only set up another layer of frustration for those who are trying to be made right.

Ken’s ideas on what makes a good leader are certainly sound. I can’t nor will I argue too much with his choice of characteristics, but I do question the implication that Ken himself has demonstrated this kind of leadership. That is understandably being questioned throughout the Gulf Coast, as it should…

If the need to question it did not exist, would any of us be reading articles such as:

Action Report: Ferry operators balk at oil spill claim offer

Or:

Second lawsuit against Kenneth Feinberg filed in Florida

Or the previously mentioned:

Shrimpers rally at state Capitol

Probably not.

It would appear what Feinberg knows best about risk is how exactly to personify it to those who come to him for help, help in being made whole by British Petroleum, the company that pays his salary, and that is simply not leadership, that is abandoning ideas such as fairness, justice and judgement.

Have a nice day.

Suffering from a severe case of neutral envy...

When US District Court Judge Carl Barbier issued his ruling which declared Feinberg and the GCCF were not independent of British Petroleum, but more of a related hybrid entity, he requested all parties involved file briefs for his consideration in making a future ruling on whether the oil claims process follows the law.

And the briefs came.

And when they came, the sides were revealed.

Whereas state governments and plaintiff attorneys are obviously taking the position the GCCF needs court supervision, the Federal Government has taken up the side of Feinberg and British Petroleum.

U.S. assistant attorney general for Environment and Natural Resources, Ignacia Moreno wrote that it is not necessary for the court to monitor the Gulf Coast Claims Facility, whose success “can only be measured by whether the people of the Gulf feel fairly treated.”

Ahem…

It would appear Mr. Moreno not only missed a meeting, he missed all the meetings, every town hall meeting Feinberg held while at the same time revealing his office’s internet was either down, or the GCCF website was blocked during the public comment period. Or maybe, when those 1400 plus comments rolled in from Gulf Coast residents, he was only able to find the dozen or so positive ones while the other thousand plus negative criticisms perhaps managed a daring daylight escape over the wall of his attentions.

British Petroleum, of course, also felt judicial oversight was not necessary for the GCCF to comply with the Oil Pollution Act,  “Judicial supervision of OPA’s claims process would not promote, but instead would undermine, the fair and efficient administration of the process” according to the document filed by BP attorney Don Haycraft, with Liskow and Lewis of New Orleans…also adding “that there may be different ways to run a claims process does not mean that the GCCF’s chosen methods fail to comply with OPA.”

Nothing like a judge to get in the way of British Petroleum’s fair and efficient claims process…the same one that has paid only 1 of 54,000 interim claims filed since mid-December, or a handful of final claims despite weeks and months of waiting. Perhaps the attorneys of British Petroleum only spoke to their one corporate client they pushed to the front of the line of the claims process, the one Feinberg paid ten million dollars at British Petroleum’s suggestion.

Feinberg had a lot to say about judicial oversight as well, maybe feeling the heat from a judge who might step in and be the one thing he can no longer claim to be, neutral…

In his own brief, Feinberg stated that he is complying with the law because the oil pollution act makes no mandates regarding methods of calculating claims, nor does it specify what can or can not be included in releases signed by claimants, but as is often the case with attorneys, especially those aligned with large corporations accused of doing the public harm, what is legally permissible is often a far cry from what is morally sound. Feinberg went on to defend the transparency of his process…showing right away he apparently suffers from many of the same problems as Mr. Moreno and may be even worse considering he not only has repeatedly stated transparency is an issue he needs to improve upon, but many of the residents at his town hall meetings, when they were attacking the lack of transparency, were speaking directly to Feinberg at the time.

The Justice Department, as mentioned before, also weighed in, saying, “it does not envision court management of the claims process. Rather, the OPA claims process is intended as a mechanism by which parties may avoid litigation – not a mechanism that will generate litigation or open up new forums for disputes.”

Avoiding litigation?

From many of the comments I’ve received and many news articles I’ve read, it would appear one of the things Feinberg and the GCCF has been quite good at is driving people directly towards litigation, especially the few people in the Gulf Coast who can afford to wait for funds from such a prolonged legal process.

So now, we wait…we wait for Judge Carl Barbier’s ruling.

Gulf Coast residents wait, to see what determination will be made on the legality of the no-sue clause, the waiver.

They wait to see if the healing of the Gulf Coast will be overseen by someone who can more properly and legally define himself as neutral.

Most importantly, they wait to see if that same healing process will work on BP and Feinberg’s forced 2012 timetable, or if all will be made right by a more natural timetable led by the natural processes in the Gulf of Mexico, a timetable which will work of its own accord, unbound by the will of a company whose errors helped lead to its undoing and the individual assigned to apparently just make things right, enough.

Read the article:

BP Defends its Oil Spill Claims Process

Have a nice day.

The NOAA recently opened the skull

What a week…

Lot of news from the Gulf these past few days…so this morning, I kinda stepped back a bit and cleared the mind before taking a look at this whole mess from the outside…especially in light of a reader comment I received yesterday, who asked what people can do to keep the pressure on British Petroleum and the GCCF.

But before I get to that, first a summary of the most recent going’s ons in the Gulf…

British Petroleum:

They’ve resumed paying dividends to their shareholders, got Feinberg to pay a business partner’s $10 million dollar final claim and made a deal with the Russians only to have an injunction filed against said deal. They continue to scale back cleanup in the Gulf, despite tar balls still washing ashore, saying they are in the final cleanup stages and didn’t you know they promised to make things right? Oh, and they’re doing their best at this while being accused of manipulating gas prices.

Ken Feinberg:

He released his methodology which really helped nobody and then woke up to find out he’s not independent from BP, don’t ya know. He continues to tell the Justice Department and everybody else he’ll take their criticisms under advisement, but narcissistically plows straight ahead appearing to do nothing of the sort. His prediction that the Gulf will be fine by 2012 is based on the best guess of a scientist who is already coming under fire from scientists who weren’t paid by British Petroleum and there has been no word as of yet on whether he’s apologized to Steven Gillers, his buddy at NYU for making him famous as the man who wrote the ethical letter that appears quite unethical to most sensible people.

The Government:

Barack Obama continues to believe the Gulf of Mexico is simply a bad television show he can just turn off at his leisure while his Justice Department writes letters to display their lack of authority. The NOAA seems to believe that Feinberg’s estimate of all things well by 2012 is certainly the doomsday scenario because according to them, things have been peachy since August, all the while their ugly kid sisters, the EPA and FDA open fishing waters, swimming through tar balls to show how if the fish swim really fast, that stuff just slides right off. Scientists continue to express concerns about toxins in the water and the marine life that lives there, as are Americans according to a recent poll, 70% of them, and the government is of course renewing their concerns about the public concern, they have to…spring break is coming and there are a lot of concerned parents in the government employ.

The Wildlife:

Basically, dead…though British Petroleum, Ken Feinberg and the government will surely tell you this had nothing to do with any oil spill.

Last, but certainly not least, the residents of the Gulf Coast:

Angry, depressed, disappointed, getting sick, losing jobs, businesses, families and culture and a terribly long way from “right.” (see above)

Keeping all that in mind, back to the comment I received yesterday…what can one do to keep the pressure on British Petroleum and the GCCF.

If you happen to be in New Orleans today, you could start with:

Dr. Wilma Subra to be Principle Speaker

If not in New Orleans, I would suggest you join one of the many advocacy groups that are working hard in the Gulf to really, make things right…or make sure BP and Ken Feinberg do…

Here’s a few links to get you started, and anyone else, feel free to comment, adding more:

LEAN: Louisiana Environmental Action Network

SKYTRUTH

Gulf Restoration Network

Have a nice day

On Capitol Hill yesterday, this guy and lots of other people, they said a lot of words...and those words, they were important, to them.

So, Feinberg went to Capitol Hill yesterday and did the congressional version of his town hall tour where he promised to post the methodology of how the GCCF will determine interim and final payments to the GCCF website on Tuesday of next week, and then also promised to begin making interim payments on Feb 18th. For all the claimants disappointed by denials or low payment amounts, he maintained that people who want to appeal their denial can do so by one of two ways. If their claim is worth more than $250,000 dollars, they can appeal it to the GCCF, but if their claim is less, they have to appeal to the Coast Guard’s National Pollution Funds Center.

He also said:

1. He is doing the best he can.

2. He acknowledged shortcomings in the process and is trying to improve the GCCF’s transparency.

3. He’s neutral and independent; didn’t you get the chance to read the letter written by his friend that says so, the one his friend was paid to write by British Petroleum, and defended as accurate by British Petroleum’s lawyers?

And that’s not all…under questioning by the likes of Sen. David Vitter and Sen Mary Landrieu, he mentioned the reason he has never come through on his previous promises of posting the calculation methodologies is because he feels the need, “to get this right.” His job is complex and hey, did you know that he has referred over 7000 fraudulent claims to the justice department? Those are the kind of things that are just gumming up the works. Sen Vitter expressed his concern about the quick payments, and how it would appear that the GCCF is spending the majority of their time handling those easy cases while the people more directly impacted by the spill have been forced to wait for much needed money.

Feinberg agreed with this assessment.

Feinberg was gracious throughout the testimony.

Feinberg spun his testimony like nobody’s business, and why not?

What Feinberg knew, and what any self-aware Senator at this hearing yesterday knew was simply that Feinberg is not accountable to Congress, and he would appear to feel he is not accountable to residents of the Gulf Coast, either. A lot of questions were not asked yesterday, and also far removed from much of this equation was a great deal of context.

For those who haven’t been following the story, allow me to explain:

1. The methodology he plans to post on the GCCF website on Tuesday does nothing to help the 80,000 people who have accepted quick payments. They’ve already signed away all their rights. It could also be argued that this late in the game, whereas it will be interesting to know how the GCCF will be coming up with their numbers for interim and final payments, this information should have been posted much, much earlier so the residents damaged by BP’s catastraphuk could have been making informed decisions all along. It’s kind of like having to take finals for a college course, two weeks before the semester even begins. Now, this information will be beneficial to some, but over 400,000 people have been involved in this claims process with 66% of them denied from the get-go, so it would have been far better to have everyone informed from the beginning.

2. In explaining the appeals process, he gave the impression to Congress that people have recourse to their dissatisfaction with the claims process, but this is only true if that recourse actually helps anyone. Whereas the numbers about people who have appealed to the GCCF are hard to come by, as are most details to what the GCCF is doing (hence the complaints about lack of transparency) when people have appealed to the Coast Guard board, the numbers are in. There have been 507 appeals made and so far, 200 have been heard. All have been denied.

3. In bringing up the fact that he has sent 7000 claims to the Justice Department to be prosecuted for fraud, apparently using this as some indirect justification for the slowness of the process, well that doesn’t hold up at all and when you look at the averages in fraud cases after disasters, this also makes the people of the Gulf Coast look exceptionally honest. In any post disaster reparations period, the average amount of fraudulent claims tends to be ten percent, so when Feinberg receives 480,000 claims and he only finds 7,000 of them to be potentially fraudulent, that isn’t even two percent.

4. When it comes to subsistence claims, Feinberg has very little to say, but the numbers speak for themselves. The GCCF has received 16,000 subsistence claims, or claims by people who have been living off their catch more directly through trade within their community, eating their catch…etc. Of the 16,000 claims, the GCCF has paid only fifteen.

5. When it comes to the quick payment, much can be said. Feinberg’s stated plan for the quick payment was to clear the rolls of people who would have a hard time proving further loss by giving individuals $5000 dollars and business $25,000 dollars to essentially sign away all their rights and go away. Sen. Vitter expressed his concern that this is what is gumming up the works and keeping the people hardest hit by the oil spill from getting their claims paid. Okay, true and Feinberg almost acknowledged it in saying “I agree, commercial fishermen, shrimpers, have waited too long for the final payments and interim payments.” But what appears to left out of this is that while Vitter and Feinberg were congratulating the process and trying to deflect criticism that people are not taking the quick pay out of desperation, generally, the estimate of the people who shouldn’t and have taken quick payments is 3,000 claims. Three thousand people, many of them with families who have taken the quick money because they quite possibly were feeling desperate, because they saw no other choice, three thousand people who quite possibly felt the need to take this claim because of the slowness in the entire GCCF claims process. No matter how you look at it, that is simply three thousand people too many. Period.

6. Finally, it would appear that nobody wanted to talk too much about the fact that all these people accepting quick payment claims and those who will accept final payment are signing away their rights to sue British Petroleum and a hundred other companies. Again, forcing people to make a present day decision based on unknown futures, when their culture, their professions, and due to the ongoing sickness in the Gulf, their very lives may be at stake is simply wrong. It only benefits British Petroleum for them to do so, and British Petroleum is the primary cause of this entire mess…so why do they get the free pass, while everybody else has to take the risk of being screwed in the future?

When will somebody in the GCCF, or Congress, or the White House finally answer that question?

And on another note, when Sen. Charles Schumer recommended for some inexplicable reason that Feinberg should be put in charge of the new 9/11 first responders compensation fund, Sen. Vitter tried to get Feinberg to pre-emptively turn it down, lest it take away his focus from the Gulf of Mexico, Feinberg said he wouldn’t rule it out.

It’s good to be the king. God help ya, New York.

Have a nice day.

"I said...you're welcome!"

Transparency.

When it come to the GCCF, there is none. The Justice Department has called for transparency in how the claims process is being handled. Attorney Generals in the Gulf Coast have called for it. The residents with claims in the pipeline have demanded it. Feinberg has promised it.

But still, there is no transparency.

Instead we have a wall of secrecy erected around the GCCF and allowed to remain by the neutral arbitrator, Feinberg and as a result there is tremendous frustration by thousands of people who never asked for this oil spill, but are all suffering from its toxicity. Instead we have the stories from the ground of what exactly is occurring and these stories are alarming, disappointing and ridiculous, especially when the problems all come from the agency whose sole purpose was to make things right for the businesses and residents of the Gulf Coast.

We get allegations of private investigators hired by the GCCF. We get indiscriminate payments to some and denials to others, often for people on the same boat. We get deficiency letters that start the waiting periods for payments all over again. We get accusations of online forms with errors, posted intentionally as stall tactics by the GCCF. We get rules that change arbitrarily. We get an informational GCCF website that posts information that doesn’t make sense or is wrong.

Consider just a few of the stories being posted to a comments section on the website, ProPublica.

Regarding a visit from the private investigators hired by the GCCF:

“My advice is to get a lawyer fast and have them meet you there.  This is a EAP claim and most lawyers will give you advice without charging you for whatever you might get in your EAP payment…Not sure where you are at but this could turn real ugly if you don’t protect yourself now. These guys are not nice.  They showed up at a friends and was very very rude.  (After 3 hours of attacking her paperwork she finally called the police on them.  It was something as simple as the IRS didn’t have her name right.  She got married and they haven’t filed this years taxes so they did not know about the legal name change when she got married..  She went through HELL….for hours.  Finally they realized the problem then she was approved and then still waited almost 30 more days to get paid.) They are there to not to be on your side but on BP’s side.  After all they are the ones paying them.  Remember they are recording YOU.. it is on them but they don’t tell you.  So whatever you say is being recorded.”

Regarding indiscriminate payments to some and not to others:

“Some people were denied and have NO CLUE why! How about the folks who got denied when their coworkers who got paid the same and filed at the same were approved? how fair is that?”

“All these waiters and waitresses bragging about their money driving around in new cars and they deny the people who really need it!! I was denied and still to this day do not know why…my status states “Reason to be posted soon…” WTF-EVER! I filed for my final we will see what happens! Our leaders are being paid by BP that is why they aren’t doing shit to help anyone!”

Regarding deficiency letters and stall tactics:

“Another turn of events…I just received a call from the GCCF informing me that I would be receiving a deficiency letter in the mail. I freaked out on that poor girl! I said “ANOTHER ONE?” She said that she was just giving me a courtesy call in regards to the letter they mailed us on the 28th and upon further digging… she can see the claim I sent on the 30th and the claim on the 3rd.  ?? Seriously?  Poor girl… I wouldn’t want her job today…I get so many different answers, but no payment….I have no idea what the heck is going on… apparently they do not either…I just NOW received a courtesy call to inform me that my initial claim form was not valid. WTH?”

“The 90 days Final Claim is from the time they receive the documents.  But again if there is one thing missing you will have to re-file and then your 90 days will start all over again.  This too is another stall tactic.  The stats on the website are not correct.  Don’t rely on what you see on the website.  Feinberg will stall and delay some final and interim payments then push them out to October he will then again announce another Quick Payout for final claims.  He is using stall tactics to push to accept quicker and not fair payouts to the claimants. His advice (from an adjuster) is have an attorney and wait because the rules will change again in the next few months.”

And finally:

“Does anyone know how to withdraw a claim with the GCCF? There was no way to see what files were uploaded when they were completed uploaded and I uploaded the wrong files. Mostly I just don’t want to deal with the GCCF anymore also.”

Confused yet?

Frustrated?

This is the result of a broken system and a real lack of transparency.

When some claims are accepted, yet others are denied for no given reason…when claimants are made to feel like criminals and have to hire attorneys to ward off private investigators grilling them on their legitimate claims…when the time tables for needed payments are constantly restarted and nobody can tell them why…when the front office of the GCCF tells a claimant one thing, only to have the home office say another and no reason given for this discrepancy…when the GCCF conducts their business at a snail’s pace while people are running out of money, being forced into foreclosure and bankruptcy…when all this occurs, your system is broken.

Yet Feinberg and the GCCF soldier on unaffected, immune to the kind of charges and complaints that if levied against them in a private business, would get them fired.

The GCCF was created for the purpose of making things right on the Gulf Coast, but little is right…not for thousands of residents still stuck in this mess, not for who knows how many businesses…no, little to nothing is being made right at all for those so frustrated by this claims process, unless of course they should happen to own shares in British Petroleum stock.

Have a nice day.

"I'm trying to explain...we've decided that touchdowns will now be worth five points in the first quarter and eleven points in the fourth, unless of course the opposing team's mascot enters the playing field and if that should happen, when he enters on the five yard line the points double, and if it's the forty-five they triple, unless of course only one foot enters the field of play and then it is a negative sixteen, unless the player scoring the touchdown dives into the stand and then all is moot until we determine style points for the dive...oh, and games are no longer composed of fifteen minute quarters, but fifths now, and I'll tell you later how many minutes per fifth and...what? Seems pretty clear to me... Perhaps I've given you too much info and I should just decide the score myself...after all, I'm neutral."

Clearly defined rules.

It isn’t that difficult, or at least it shouldn’t be.

In any process where a determination is made, where a judgment will be proffered, clearly defined rules not only protect the claimant, they protect the arbitrator. Rules let people know where they stand, what they need to do, what damage they need to show and upon showing said damage, they then have a clear expectation on what it is they will receive. Clearly defined rules also protect the judge, the arbitrator from accusations of bias, malfeasance and challenges to the process itself.

Since the Deepwater Horizon exploded, the people of the Gulf Coast have been forced to live in a place with no guidelines or clarity. They struggle inside the gray haze. What’s the flow rate? Is the seafood safe? When can we get back to work? Is our way of life over? Will we get sick? What is the real toxicity of Corexit dispersant? What happened to the oil? Which scientist do you want to believe?

Some of these questions could have been answered and weren’t, while some of the questions were impossible to answer but it also seemed BP, the government and the Coast Guard were doing their best to keep people in the dark or answer nothing.

So when Feinberg, the arbitrator of the $20 billion claims fund came to town, it should have been expected that at least when it comes to the damage claims, a population so understandably twisted up by the unknown would at least have some sense of financial clarity, something they can use to plan their immediate futures.

Nope.

Feinberg and his claims process, like all things oil spill, quickly faded into the same gray cloud of confusion Gulf Coast residents have been forced to live under since the beginning of BP’s oil catastraphuk.

Consider the story of Orange Beach business owner and resident, Phyllis Pearson, who owns Paradise Cleaners:

Pearson has two separate claims for her business, one for the laundry side and one for the cleaning side. For the laundry side the claims facility paid six of the six months on the emergency payment, but on the cleaning side, they only paid two of the six months. Those inconsistencies are yet another frustration to Pearson. “There is no documentation. You just take whatever it is they decide to pay. So I have no idea how they came up with their number,” said Pearson.

Interesting that Ken Feinberg’s GCCF, the constant champion of documentation and turning claims down due to a stated lack thereof, issues no documentation of his own.

All across the Gulf Coast are people confused as to why they have been turned down, on what basis, for what reason, so much so that the Justice Department, politicians and residents across the region have called for Feinberg to be transparent about the process. Explain yourself, why fishers on a boat get a claims check, but the guy who owns the boat gets turned down…why BP was willing to pay a claimant money, but the GCCF refused…why it takes an inquiry from the Times-Picayune about a specific claim to finally get a check in the hands of a fisherman. If the fisherman was determined eligible, why not just pay?

Feinberg has stated before he is considering these requests for transparency, but has yet to offer any sort of guidelines, post anything on the GCCF website, give any clear idea to residents what their expectations may be…all while asking claimants to waive the right to sue BP and take his final settlement check with only the promise that he will be more generous than any court.

This is a sham and Feinberg should be forced to explain the process or be fired in favor of someone who will because the residents of the Gulf Coast have been forced to live with misinformation and confusion for far too long.

That, or perhaps we should all “consider” this…why is it the only two entities who aren’t complaining about a lack of transparency in the claims process are Feinberg’s GCCF and BP?

Have a nice day.