BP Wants Thousands of Oil Spill Claims Tossed

(The oil industry, particularly BP,  is manned by the the lowest scumbags in the world. Through their incompetence and negliegence, they have ruined lives, health, livelihoods of people and have caused deaths o many others. They deserve a special place in hell for continuing to fuck with these people.--jef)

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By SABRINA CANFIELD - Court House News Service -
Friday, May 27, 2011

 NEW ORLEANS (CN) - A BP attorney told a federal judge Thursday that thousands of lawsuits for economic damages must be dismissed because they were filed before claimants tried to settle through BP's $20 billion Gulf Coast Claims Facility, administered by Kenneth Feinberg.

     Oil spill defendants also claimed immunity from liability for the toxic dispersant Corexit, saying they simply made "decisions that should have been made by the United States government."

     BP and other oil-spill defendants, including Nalco, which makes Corexit, told U.S. District Judge Carl Barbier that they are immune from liability because they were simply following orders that should have been handed down by the president of the United States under the National Environmental Emergencies Contingency Plan.

     "The point we are trying to make, your honor, is that the claims the plaintiffs are making - that the dispersants are too dangerous, etc. - these were decisions that should have been made by the United States government," Mary Rose Alexander, attorney for Nalco, told Judge Barbier toward the hearing's end.

     BP attorney Andrew Langan said the Oil Pollution Act (OPA) was set up to help claimants settle out of court. He said that one stipulation for filing an economic damages lawsuit against BP is that a claimant must have filed a claim with the Gulf Coast Claims Facility (GCCF) and been denied.

     But now that the lawsuits have been filed, Barbier, who is presiding over the consolidated litigation, wondered how to address the issue of presentment to the GCCF.

     "I could rule as a matter of law - which you have asked me to do - but I don't want to down the road have to deal with individual rulings on 100,000 claims," Barbier told Langan.

     Earlier Thursday, Barbier said the number of lawsuits so far filed in the multi-district litigation "is probably something north of 120,000 - 130,000 cases."

     Ninety-five thousand claimants have joined the litigation by filing short-form joinders that were created to allow plaintiffs to join the litigation without excessive paperwork.

     The GCCF meanwhile has been criticized for requiring extensive documentation from claimants.

     Gulf Coast lawmakers this past winter expressed frustration with the claims center, saying BP and Feinberg were intentionally stalling responses to claims to lure desperate claimants into accepting onetime quick payments, of $25,000 for businesses or $5,000 for individuals. The payments require a signed waiver stating the claimant won't litigate for more damages from BP or any of the other oil spill defendants.

     "BP's position is that any people who have claims should decide this out of court," Langan said.

     Langan said he knows that filing through the GCCF "is a huge inconvenience for the plaintiffs" and he understands the plaintiff steering committee wants to take the matters to court and "stick their stake in the ground," but he said OPA guidelines still apply.

     The next issue addressed was whether people who have lost wages because of the federal drilling moratorium can file claims with BP.

     "It is our position that 'but for causation' under OPA is not enough," Langan told the judge. Langan defined "but for causation" as that which arrives through a thought process like: "but for the oil spill I would still have a job."

     "If 'but for causation' were the standard, there would be no end to OPA litigation," Langan said.

     Barbier kept arguments moving, to stay within the 3 hours allotted for the hearing.
     Next up, Jeffrey Breit from the plaintiff steering committee told the judge the language of the Oil Pollution Act should not be read as open to debate. Much argument surrounds how OPA interacts with state and maritime law.

     Breit said that if something is not written in the act, then it isn't there. He said the act was intended as "an expansive statute" to help oil-spill victims, but the "defendant attorneys want to use OPA as a shield" against liability.

     Plaintiff liaison counsel Steve Herman said the moratorium was a foreseeable consequence of the oil spill, and BP and the other defendants are obligated to pay for lost wages resulting from the moratorium.

     Herman said "the moratorium was actually imposed by the environmental damages of the Macondo well" blowout.

     "When you have an environmental catastrophe, you expect the government to step in," Herman said. He said it wasn't the moratorium that kept companies from drilling, but the response to the oil spill.

     "Drilling in Idaho wasn't halted" in response to the spill, Herman said, only drilling in the Gulf of Mexico.

     Barbier asked what Herman thought about BP's argument that thousands of claimants have joined the litigation without going first to the GCCF.

     "If they're right about the law, how do you want to handle it?" Judge Barbier asked. "I'm sure you acknowledge that a large number of claims were filed without presentment."

     Herman said it seemed a waste of resources to go through each claim individually to make sure it has been properly filed.

     Barbier did not indicate when he would rule on the matter.

     The next issue involved oil-spill response workers who have filed claims for health problems from exposure to oil and dispersant.

     Mary Rose Alexander, representing Nalco, told the judge that using Corexit on the spill was the president's decision.

     "Plaintiffs allege that the dispersants were too toxic, too dangerous, but the Clean Water Act gives this to the president to decide," Alexander said.

     Corexit is banned in several countries including, the United Kingdom, for being highly toxic. Different forms of the dispersant were used in large amounts during the Exxon Valdez spill and were later blamed for liver and kidney failure, miscarriage and fetal death, rapid destruction of red blood cells leading to severe anemia, and other health problems.

     BP continued to spray Corexit in May 2010 even after Environmental Protection Agency Administrator Lisa Jackson told it to stop. When BP did not stop, Jackson told it to try to find a less toxic alternative.

     Michael Lyle, an attorney for O'Brien's Response Management, which bought and supplied dispersant, laid boom and performed in situ burning, said the company was acting through the federal government under the command of Coast Guard Adm. Thad Allen, and therefore shared in the government's immunity from liability.

     Lyle referred to a 2nd Circuit ruling on response workers that came after the World Trade Center bombings.

     "The facts are remarkably similar" to the World Trade disaster, Lyle said.

     "The 2nd Circuit said, 'We need contractors to come, we need them and we can't make them afraid of liability,'" Lyle said.

     "Actually, it was more compelling in our case, because it was the federal government controlling the response," not the state, Lyle said.

     Robin Greenwald of the plaintiff steering committee rebutted Lyle's argument, saying the difference between the World Trade Center bombings and the Gulf of Mexico oil spill is that the bombings were acts of terrorism while the oil spill was caused by a company that subsequently took responsibility and coordinated its own response effort.

     "The responders - all of them - worked for BP. They worked for the polluter. The World Trade disaster contractors had a relationship with the government. But without that relationship, how can the government tell the contractors what to do?" Greenwald asked.

     The hearing addressed defendants' motions to dismiss pleading bundles B1, B2 and D1 in the consolidated oil spill litigation.

     A monthly oil spill status conference took place before the hearing. The next status conference is scheduled for July 8 at 9:30 a.m.

Denied, Decieved, Delayed by BP: Gulf Residents "On Their Knees" for Recompense

Outraged Gulf Coast residents say BP's compensation fund administrator is denying their claims
Saturday, January 22, 2011 by by Dahr Jamail

"I just got off the phone with Feinberg's people and I'm really upset," says seafood merchant Michelle Chauncey from Barataria, Louisiana.

Her business, which sells wholesale and retail crabs, has not provided her with an income since the end of May, and her home is being foreclosed.

Attorney Kenneth Feinberg's Washington-based firm, Feinberg Rozen, has been paid $850,000 a month by BP to administer a $20bn compensation fund and claims process for Gulf residents and fishermen affected by the Deepwater Horizon explosion last April.

The Gulf Coast Claims Facility (GCCF), which Feinberg manages, was set up after negotiations between BP and the Obama administration, but over recent months there has been growing concern among the Coast's residents that Feinberg is limiting compensation funds to claimants in order to decrease BP's liability.

Late last month, Feinberg told Bloomberg Television that he anticipates that about half of the $20bn fund should be enough to cover claims for economic losses.

"It remains to be seen, but I would hope that half that money would be more than enough to pay all the claims," he said.

Grade F

Chauncey is angry.

"[Kenneth] Feinberg told me personally I had a legitimate claim, and that he was going to personally look into my claim and see why I wasn't being paid," she explains, adding that one of Feinberg's colleagues gave her his personal number and promised to help.

"I told Feinberg's man that I know strippers who have gotten money. So if I took off my clothes ... and worked in a bar, I'd have been paid, but since I have a seafood business I haven't been paid.

"The really sad part is that my story is not isolated," Chauncey adds. "There are loads of us, and they are all in the same predicament as I am."

Rudy Toler from Gulfport, Mississippi is a fourth generation fisherman. He submitted 62 pages of documentation to the GCCF, but says: "My claim got denied on December 4, with about 100,000 other people."

The GCCF, which also covers cleanup and remediation costs, has received more than 468,000 claims and has paid about $2.7bn to approximately 170,000 claimants (about one-third of those who have submitted claims) in the last four months.

Most of the claims that have been paid are temporary emergency payments.

"You've paid 30 per cent of the claims," Gulf Shores City councilman Jason Dyken told Feinberg at a recent meeting in Gulf Shores, Alabama. "Seventy per cent of the claims have not been paid. Where I went to school that's an 'F'."

The amount paid out averages nearly $16,000 per claimant. But according to the US department of health and human services, the 2009 poverty threshold for a family of three was $18,310.

With mounting problems from an escalating health crisis and decimated fishing and tourist industries, many consider this an inadequate amount of compensation for their loss of livelihood.

Feinberg has recently been on a tour of the Gulf Coast, holding public forums where he has often been faced with throngs of enraged residents and fishermen.

While Feinberg admits that mistakes have been made in processing claims, he has also said that many claims lack sufficient documentation to warrant payment.

"I'm trying to do the right thing," Feinberg has said. "This is an unprecedented job. There are thousands and thousands and thousands of claims. But we're getting through them, and the money is going out."

During his recent visit to the Gulf, Feinberg said: "I will bend over backwards to pay claims." But large numbers of Gulf residents and fishermen beg to differ.

"Last week I spoke up at the Town Hall meeting in Bay St. Louis, and Feinberg told me to give him my number and information and he would personally take care of it," Toler says. "Here it is a week later and I've not heard from him. You can't get answers from nobody. Nobody. Now, I'm 15 days past due on my rent. It don't seem right to me."

Like Chauncey, Toler is angered by seeing residents who are not directly involved in the seafood industry being awarded compensation cheques, while those who are have their claims denied.

"It's very frustrating," he says. "They say on the news they are going to help the fishermen and the people who deserve it while we aren't getting the help, but the people at Burger King and other stores are getting paid."

Circumventing US law?

Feinberg's claims operation is now offering three options to claimants:

• Final settlements for all present and future damages that require the claimant to agree not to seek future compensation or sue anyone involved in last year's oil spill.
• Smaller interim claims that do not require a lawsuit waiver.
• Quick payments of $5,000 for individuals or $25,000 for businesses that require a lawsuit waiver but, unlike final or interim payments, do not call for financial documentation. Only those approved last year for emergency claims can take a quick payment.

Attorney Brian Donovan, with the Donovan Law Group in Tampa, Florida, believes Feinberg is simply doing what he is being paid by BP to do.

"He's doing his job," Donovan says. "Feinberg is a defence attorney representing BP. To think otherwise is being foolish. As a defence attorney, he's doing a great job for BP. But they are saying 'go with us, or sue us'."

Donovan has written: "In lieu of ensuring that BP oil spill victims are made whole, the primary goal of GCCF and Feinberg is the limitation of BP's liability via the systematic postponement, reduction and denial of claims against BP. Victims of the BP oil spill must understand that 'Administrator' Feinberg is merely a defence attorney zealously advocating on behalf of his client BP."

Contrary to what Feinberg is telling claim applicants, according to Donovan, under the Oil Pollution Act (OPA) of 1990, a victim of the BP oil spill must first present a claim for damages to BP/GCCF and wait 90 days. If he or she is not paid, or accepts a lesser amount, that does not preclude the victim from pursuing future compensation. In addition, the GCCF/Feinberg requirement that a claimant sign a general release of all rights and claims is contrary to the OPA.

The OPA, signed into law in 1990, provided the statutory authorisation and funding necessary for the Oil Spill Liability Trust Fund (OSLTF). The National Pollution Funds Centre (NPFC), an administrative agency of the US coast guard (USCG), manages OSLTF and acts as the implementing agency of OPA.

Since 2003, USCG has operated in the department of homeland security. A primary purpose of OSLTF is to compensate persons for removal costs and damages resulting from an oil spill incident. In essence, OSLTF is an insurance policy, or backstop, for victims of an oil spill incident who are not fully compensated by the responsible party.

"If the OSLTF was used as it was intended by OPA, when BP/GCCF does not pay a claim, the victim presents the claim to OSLTF," explains Donavan. "At that point, OSLTF pays the victim and then the US attorney general, at the request of the secretary of the department of homeland security, shall commence an action on behalf of OSLTF against BP and collect the amount from BP. That's how it is written."

Donovan believes that these laws are being ignored for political reasons.

BP created the Deepwater Horizon Oil Spill Trust (DHOST) on August 6, 2010.

"The fact that, pursuant to the DHOST agreement, future production payments pertaining to BP's US oil and natural gas production, rather than hard US assets, are being used as collateral by BP, guarantees BP's continued long-term operation in the offshore Gulf of Mexico," Donovan says. "Ironically, the federal government has acquired a vested interest in ensuring the financial well-being of BP."

While Donovan's firm has been largely successful in assisting its clients in obtaining their settlements, he says: "I'm sure down the road we're going to have to file suit. I don't doubt that."

'Every trick in the book'

The criticism from angry residents, business owners and fishermen of Feinberg's handling of the GCCF has mounted over the months, and now seems to be at a fever pitch.

At a January 10, meeting in Grand Isle, Louisiana, resident and seafood worker Karen Hopkins handed Feinberg a petition, which now has nearly 800 signatures, demanding his resignation.

"We need him to pay us the money that the company he's working for owes us," Hopkins says. "He's not working for our interests. He's working to save as much of that fund for BP as he can. If he was here to serve us, he'd give us a plan for long-term testing for the chemicals they've poisoned us with."

The chemicals Hopkins referenced are the at least 1.9 million gallons of toxic dispersants BP has used to sink the oil from sight.

At the same meeting, Feinberg said: "We've paid out $1bn in Louisiana alone. Somebody's getting money. It might be the wrong people, but somebody's getting money."

Hopkins, who works for a large seafood company, says every person who complains to Feinberg about their claim is told "to leave him his claim number and he'll look into it".

"I know loads of fishermen who have never been paid one dime for emergency payments. Not one thin dime. He doesn't understand our culture, or the damage this has done to our way of life," she says.

Hopkins believes Feinberg is pressuring people to take the smaller, immediate payments, rather than pursue litigation in order to obtain appropriate levels of compensation.

"He's saying to opt in to the fund, you'll come out with more money than if you litigate this," she says. "He's scaring these people. He's not our lawyer. But he's basically saying if you try to sue us, we'll f*** you up. He's condescending. He's completely crooked and corrupt. He's trying to pull every trick in the book on us."

'Lives are being destroyed'

The lack of compensation payouts is afflicting people across the Gulf Coast.

"Most of the people I care about are hungry, they've lost their house, they're losing their cars," says Cherri Foytlin, the co-founder of Gulf Change, a community organisation in Louisiana.

"I've met so many people over the last three days who've had red beans and rice for Christmas while this man's firm is getting $850,000 a month for this. I saw people on their knees in these meetings begging this man. I don't know how he sleeps at night. He takes money from BP and claims to represent and care about people in the Gulf."

Lorrie Williams fishes crab from Ocean Springs, Mississippi. Her 11-year-old son has been sick for months with symptoms she blames on toxic chemicals related to the oil spill. Her son's blood tested positive for several of the chemicals in BP's crude oil.

"My concern is not a claim, or money, but finding somebody who is going to treat my son, and other sick people," she says. "For Feinberg to tell me to file a claim, what am I filing for? To get $5,000 since I'm sick? My fear is that in five years my child is going to have cancer. Or my husband or I will pass away and not be here to care for my child."

Kathy Birrin and her husband are financial partners in their seafood business in Hernando Beach, Florida, each owning half of the company. They both filed identical personal claims for their portion of the business' lost income to the same claims officer.

"They paid my personal claim in 10 days, but my husband's was denied six weeks later," Birrin says. "In Florida we're watching them pay strippers and waitresses, while they are denying commercial fishermen's claims. I'm hearing this same thing in all the meetings I'm attending in all four states."

Birrin describes the situation in her area of Florida as a "disaster" and adds: "Our fish are not there this year. We're way, way, way down from what we usually have. People's lives are being destroyed."

Teresa Abraham also lives in Florida, where she has a publishing business that prints tourism related material.

"Most of my clients can't pay me because they've not been paid by BP," she says. "I filed for loss of income, and of course my emergency payment was denied, like everyone else I know who's filed."

Abraham explains that Feinberg promised Florida senator Bill Nelson he would personally look at Abraham's claim, but she adds: "He didn't look at it, and it looks like I may very well go out of business in the next few weeks."

Abraham, who has been in business for 15 years, feels strongly about the way Feinberg is handling the GCCF.

"He's a self-appointed tsar and doesn't answer to anybody," she says.

"My business is down 50 per cent. People are losing their businesses. This is happening now. They are not paying claims to businesses that are desperate. This is extremely frustrating. Nobody has any jurisdiction over this guy, so there's nobody we can go to."