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.

Really, has that fire stopped burning yet?

After the Deepwater Horizon exploded 16 months ago, the people of the Gulf Coast were made a successive series of promises by the government, by British Petroleum and then by the administrator of the GCCF, Ken Feinberg. In their own ways, each entity promised to make the Gulf Coast whole again…first through clean-up, then through reparations and ultimately by claiming precautions and new guidelines would be put in place so something as devastating as the BP oil spill could never happen again. All of these promises have been beset in some respect by failure.

The use of Corexit dispersant which may have made things worse, the fact that sixteen months later there is still oil in the marshes and tar balls washing up on still closed beaches, the failure of promises made to participants in the VoO program, all combined with Barack Obama’s seeming forgetfulness of promises made to an entire region, symbolized by his lack of mention in his most recent State of the Union speech and then Congress’s walk back from initially harsh criticism of British Petroleum and promises of new laws and regulations…and now, the region is still left with the economic stain of the GCCF’s many failures across four states: low-balled payments, denial of health claims based on stricter guidelines than Feinberg used in previous claims programs, his admitted denial of legitimate claims for people who lack documentation and sixteen months later, far too many people still wait for payments, not hand-outs, not charity, but compensation for the damages they suffered as a result of a catastraphuk they never asked for, but continue to live with.

Is it getting better in the Gulf?

Yes.

Should it be much better than it is, are people still struggling as a result of this disaster while British Petroleum continues to make billions of dollars in profit and continues to pay Feinberg’s law firm millions of dollars in salary?

Again, yes.

So in six months the trial begins.

“The trial over last year’s Gulf of Mexico oil spill disaster will unfold in three phases and will start as scheduled on Feb. 27, 2012, U.S. District Court Judge Carl Barbier said Friday. Barbier said at a monthly status conference in the oil spill litigation that he will issue an order soon sketching out plans for next year’s trial over liability in the disaster. His plan most closely resembles the proposal submitted by Anadarko Petroleum Co., which held a 25 percent ownership stake in the ill-fated Macondo well. “I fully intend this trial will start as scheduled on Feb. 27, 2012,” said Barbier, who was appointed to the federal bench by President Bill Clinton in 1998.”

The first phase of the trial will examine the roles of various companies in the explosion, the loss of control, the sinking of the Deepwater Horizon and the beginning flow of oil.  The second phase will cover the attempts to shut down the well and how much oil was lost while the third will deal with the liability of the clean-up, the dispersants, the skimming and the boom used to cope with the spilled oil.

Also covered on Friday by Carl Barbier were the beginnings into an examination of the VoO program. Nearly one hundred boat owners have filed a complaint with the court alleging BP’s VoO program was a corrupt conspiracy that left “thousands of participants … holding the bag for millions of dollars of unpaid services, equipment, materials, repairs and decontaminations” – and that BP intended it that way.

“Lead plaintiff Clyde Crawford says BP promised the plaintiffs $1,200 to $3,000 a day to use their boats during the cleanup. Crawford says the plaintiffs signed contracts promising to be available 24 hours a day, 7 days a week, and that BP told them told several times that they would be paid their daily rate even on days they were not called to work.” According to the 111 page complaint, ”BP promised to pay for all repairs needed as the result of the work, and to pay for decontaminating the boats when their work was done…but the fishermen say the whole Vessels of Opportunity program was a corrupt conspiracy….’[Defendants] BP, Parsons Corporation, Danos & Curole, HEPACO, U.S. Environmental Services and the individual defendants have engaged in an illegal and unlawful conspiracy to defraud plaintiffs and underpay plaintiffs for services, equipment, materials, repairs and decontaminations related to the VoO program and the oil spill response,’ says the complaint.”

Judge Barbier on Friday said that he stands ready to appoint someone to deal with disputes arising out of the VoO program, ”This could expand,” he said. “I’m not sure how many of these Vessels of Opportunity cases could be out there.”

So, here comes the judge, and it would appear, along with the independent audit of the GCCF promised by US Attorney General, Eric Holder, the judge may just be what the Gulf Coast needs…

Especially when we read articles such as:

Some Amnesia Over Gulf of Mexico Oil Spill: where Tommy Beadreau, senior advisor to the US Bureau of Ocean Energy Management, Regulation and Enforcement states, “”In the United States, in our political environment, we’ve already seen in some circles a little bit of amnesia when it comes to the spill — the reasons for it and the effects of it.” Because, in case you forgot, we have a House of Representatives who would appear to have never seen a regulation or a federal level environmental agency they haven’t wanted to either destroy or defund. 

So, the Gulf Coast is left with Judge Barbier and the attorneys.

So, here’s hoping the right thing is finally done and this region eventually gets made whole, once and for all. If BP, Obama and Feinberg won’t do it, maybe the courts finally will.

Read the article:

Trial over BP oil spill will unfold in 3 phases next year

Have a nice day.

"Because in Mega City...I am the law!"

When Judge Barbier of the US District Court ordered Feinberg last week to finally, start being honest with people and stop referring to himself and the GCCF as neutral or independent of British Petroleum, he opened a very significant door.

And today is the day to kick that door down.

Barbier has asked attorneys to file briefs on the claim fund’s compliance with the Oil Pollution Act and among the items that could be settled is the legality of the no-sue clause.

To receive a payment, 86,000 claimants have waived their and their family’s right to sue British Petroleum and a hundred other companies for the damage incurred by the oil spill. Attorneys argue this was done by many under financial duress. Some might even argue the whole process has been one big game of coercion.

When Feinberg’s GCCF couldn’t follow through on their own timetables, leaving people in financial limbo as they waited for compensation from the fund, all the while their bills continued to pile up, their mortgages came due and BP started canceling cleanup contracts while their pre-spill jobs were still unavailable…well, of course many people on the Gulf Coast were feeling the financial punch, not to mention the many people who settled for quick pays simply because they’d had it with the GCCF’s arbitrary changes in the rules, their delay tactics and the varying answers from each and every GCCF adjuster…even if accepting a quick pay was to their own disadvantage in the long run.

A ruling from Barbier could open the whole thing up again for the people who should desire to get back into the fray, get a lawyer and try to get what they deserve. And really, Feinberg has nobody to blame for this but himself and his own incompetence in the way he handled the escrow account, a method which left one law professor from Hofstra University to say Feinberg acted “misleadingly, at best.”

British Petroleum, in an e-mailed statement about the February 11th deadline to file briefs said: “We do not believe that there is any basis to undo or challenge the settlements that have been concluded.”

Ken Feinberg, when contacted said: chirp…chirp…chirp…chirp…chirp…

Kevin Dean, an attorney with the Plaintiff’s firm Montley Rice said: “My firm believes that clients were forced financially to take an ill-advised settlement, and that that’s a violation of the Oil Pollution Act.”

So, today’s the day, and now that Judge Barbier has taken over jurisdiction of the Claims Process, let’s see what he has to say…

Have a nice day.

It all seemed to be going according to plan...curses.

Late yesterday afternoon, US District Judge Barbier issued a ruling that bans the “neutral” arbitrator of oil spill claims from repeating his mantra that he is independent of British Petroleum.

“After reviewing the facts and submissions by the parties, the court finds that BP has created a hybrid entity, rather than one that is fully independent of BP,” Barbier wrote in his ruling. “While BP may have delegated to Mr. Feinberg and the GCCF independence in the evaluation and payment of individual claims, many other facts support a finding that the GCCF and Mr. Feinberg are not completely ‘neutral’ and independent from BP … Mr. Feinberg is not a true third-party neutral such as a mediator, arbitrator, or court-appointed special master.”

Apparently, Judge Barbier was not that impressed by the letter Feinberg paid his friend to write, you know…the one that British Petroleum paid for, that its attorneys defended as accurate, that said Feinberg was ethical and neutral…

The ruling by Judge Barbier orders BP, Feinberg and the GCCF to refrain from contacting anyone directly who’s hired a lawyer or who should reasonably have been expected to, and also refrain from referring to themselves as neutral. In any communication, they must state they are acting for, or on behalf of BP. In addition, the ruling states Feinberg and the GCCF must advise anyone they do contact that they have a right to a lawyer and stop advising claimants they don’t need one, and inform them that the GCCF’s pro-bono attorneys are also being paid by British Petroleum.

What Barbier didn’t rule on was the no sue-clause and whether all the claimants who have accepted quick payments are released from the waiver due to being intentionally misled by Feinberg and co. However, it did open up the process and suggest to attorneys representing quick claim recipients to file briefs on their behalf that the court will consider and rule on in the near future.

Well, well, well…Hey Ken, know what that tearing sound was?

It was the sound of the self-righteous cloak you’ve wrapped yourself up in for the past five months being torn up and tossed to the floor, leaving you and your ridiculous claims of being neutral exposed…

Have a nice day.

Master of disasters...yeah, sounds about right...

After a less than successful southern swing through the Gulf States, today Ken Feinberg’s GCCF disaster tour will be on Capitol Hill to answer questions from the Senate Homeland Security Committee’s Ad Hoc Subcommittee on Disaster Recovery, chaired by Senator Mary Landrieu. The questions are expected to be aggressive, tough and the demands will be high. Rep Steve Scalise from Jefferson Parish set a preemptive tone this week by issuing a letter calling for the GCCF to change their ways:

“The people of Louisiana deserve transparency throughout the claims process and Mr. Feinberg has refused to adapt the process to better suit the needs of the people affected by the BP disaster,” Scalise said. “The GCCF’s opaque nature detracts from its credibility and adds to claimants’ frustration as they try to understand why their claim was denied or underpaid, and Mr. Feinberg has acknowledged this problem in the past but has failed to modify the GCCF’s approach. As a result of this, many claimants have fallen through the cracks, and can’t get answers to basic questions about their claims. Mr. Feinberg must be held accountable to the victims of this disaster, and I eagerly await his response to my request.”

Mr. Feinberg is expected to answer this today by saying he is…

1. Doing the best he can.

2. Promising to be more transparent…again…

3. Denying accusations he is not neutral…again…

Rep. Scalise, in his letter, questioned why Feinberg would consider pulling 150 local people out of the claims offices at a time when few claimants can get an answer to their questions, especially considering Feinberg’s previous commitments to keep local people in those offices, as it would seem more people are needed to help the GCCF complete their task, not less. Beyond this, Scalise would like to know details on who is being paid and why and maybe even more importantly, who isn’t and why not. He is also seeking information regarding the formula for how payments are calculated, the total number of people employed by the GCCF, and the number of unprocessed six month emergency claims and justifications for why these claims remain unpaid.

Mr. Feinberg is expected to answer this today by saying he is:

1. Doing the best he can.

2. Promising to be more transparent…again…again…

3. Denying any accusation he is not neutral, because he has a letter stating so, written by a friend of his who was paid $950 dollars an hour to do so, paid with BP’s money.

Meanwhile:

The Attorneys General of the Gulf Coast States continue to weigh in on all matters GCCF with Mississippi AG, Jim Hood requesting that US District Court Judge Carl Barbier appoint someone who would have oversight over the operations of Ken Feinberg and the GCCF, and determine whether Feinberg’s no-sue clause is overly broad. Hood says Feinberg continues to deny the state’s attorneys access to the GCCF database that would provide details on the claims payments. Feinberg, despite saying that when then claims process is over this same information will be given to British Petroleum, has told the attorneys he is unwilling to compromise the privacy of claimants.

Meanwhile:

Plaintiff’s attorneys have submitted a petition to US District Court Judge Barbier stating their belief that all claims Feinberg and the GCCF are making about their ability to act independently of BP is both “inaccurate and misleading.”

Highlights of the petition include:

“A recognized standard of accuracy is whether the statements are materially misleading considered as a whole, which is the modern definition of fraud,” UC law professor, Geoffrey Hazard chided in his 10-page statement.

He contends that the claims on behalf of the facility’s impartiality “portray GCCF procedure as more just and fair than that in the ordinary tort system.” Hazard said such notions are belied by conditions on claims payouts, such as requiring claimants to sign away their legal rights to sue BP or other liable parties at a later date, regardless of future harm to their health or financial well-being arising from heretofore unknown consequences of the spill.

“The GCCF procedure requires claimants, in order to receive final payment, to release BP from types of damages … that are not being considered by the GCCF,” Hazard wrote. Additionally, Hazard insists that there’s no way the Feinberg-run fund can maintain objectivity when BP is paying all of its expenses — including the $800,000-per-month fee charged by Feinberg’s law firm. “GCCF is not entirely independent because its operating expenses, which are substantial, come from BP,” Hazard wrote. “The GCCF is not a mediator, according to ordinary understanding of that term, because it was established unilaterally by BP and not with agreement of opposing claimants.”

Mr. Feinberg is expected to answer this by saying he is:

1. Doing the best he can.

2. Okay, really, I promise I will be more transparent…ASAP.

3. Seriously, read the letter my friend wrote, it cost BP well over a thousand dollars…

Meanwhile:

An expert tasked by the Plaintiff’s Steering Committee to review aspects of the operation of the GCCF has also found many problems with the claims made by Feinberg about his ability to act independently. Edward F. Sherman, Professor of Law at Tulane University addressed the operation and role of the claims facility in his five page declaration to Judge Barbier’s court, and through this declaration he reports he is concerned by the following conclusions:

- Feinberg and BP, while maintaining that Feinberg is independent, the arbitrator in fact consulted with BP about the standards for payment of claims, and the fee arrangement, paid by BP was not publicized and most claimants would not have known about it and should have, in order to take this into account before accepting a payment offer from the GCCF.

- That Feinberg, while maintaining his “independence” indicated to claimants they would be better off settling their claims with the GCCF rather than litigating.

- Claimants should be made aware who is paying the bills of the private attorneys hired by Feinberg in helping claimants determine their best options.

- Finally, “The kind of release required by the GCCF in order for a claimant to receive a final payment also raises question as to how independent the GCCF is…”

Professor Sherman gives his opinion that the court should limit or clarify the GCCF’s communications with claimants and in their public announcements, so the claimants can be said to have made informed choices.

But of course, BP has a different opinion on the matters raised by Professor Sherman: Attorneys for BP have filed a motion in opposition to a recent plaintiff filing asking that U.S. District Judge Carl Barbier supervise communications between defendants and the Gulf Coast Claims Facility (GCCF) in the Gulf oil spill litigation. BP attorneys…point to a letter by New York University legal ethics professor Stephen Gillers to Feinberg as ethical counsel on the matter. Gillers wrote that the plaintiff’s “suggestion that you are not independent because you are BP’s lawyer is wrong. You are not BP’s lawyer.”

Feinberg is expected to add:

1. See, I told you I had a letter saying I was “independent,” written by a friend, paid for by British Petroleum and now defended as accurate and legitimate by British Petroleum’s own lawyers.

2. What do you mean, conflict of interest?

3. I’m neutral damnit, and didn’t I say I was going to be more transparent, really, I promise…again…and again…and again…sometime, really, in the near future, the transparency is so close I can taste it…

Meanwhile:

Gulf Coast residents have had several tastes of the claims facility’s operations and promises, and they taste like shit.

So what happens when Ken Feinberg goes to congress and is grilled by congress type people? Well, as indicated on Tuesday evening, the President is MIA on this one, and the president is one of the few people who can apply pressure on this situation. Attorney’s, local, state and federal politicians, the Justice Department have been making demands for months with little to show for it but more mea culpas and promises from Feinberg and the GCCF, all for naught. So, I’d love to say that this little congressional session will make Feinberg think, will make him take a step back, will result in him appearing more neutral, but my hopes are slim at best…

Though not a fan of litigation, it would seem that it is in claimants best interest to hire lawyers, after all, Feinberg is one, and has many at his disposal, and so does British Petroleum and everyone else at fault in this whole mess. Much as Feinberg strove to keep this all out of the courts, it is his very tactics in the claims process that is driving more and more people there, seeing it as their only means of making things right.

Then again, what do I know…I’m just a social worker.

Have a nice day.