BP Oil Spill Law Blog

In an effort to protect individual and business claimants, Attorneys General from Maryland, Delaware and North Carolina recently delivered a letter to Kenneth Feinberg asking him to address some flaws they have detected in the proposed protocol for paying BP Oil Spill claims.

These Attorneys General believe the protocol should reflect that state law on proximate cause applies only to state tort claims for damages that are not covered by the Oil Pollution Act, and that state law on proximate cause does not apply to OPA claims. The AGs believe that in the case of an OPA claim, the claimant is simply required to demonstrate that the damages incurred resulted from the BP oil release. See 33 U.S.C. § 2702(a)

The AG's also had problems with the following areas of the proposed protocol:

• Lack of a procedure for the payment or settlement of claims for interim, short-term damages beyond 90 days, as required by 33 U.S.C. § 2705.
• A requirement for claimants who seek lost profits claims to demonstrate that their loss was caused by damage or loss to property or resources "that are used by the Claimant," which is inconsistent with the requirement in 33 U.S.C. § 2702(b)(2)(E) that an injured party need only show that the loss of profits come "as a result of the incident."
• A requirement that the claimant sign a general release of all rights the claimant may have against BP, which is inconsistent with OPA.
• A limitation that no claim may be submitted to the GCCF "more than three years after the date the Protocol becomes operative," which is inconsistent with the periods of limitation provided in 33 U.S.C.§ 2717.
• Insufficient time (7 days) for a claimant to appeal a decision to the Appeals Board.
• A limitation that payment on claims will be reduced by payments received from collateral sources is a cause of concern and may be inconsistent with the liability of a responsible party under OPA or state laws. In no event should a collateral source limitation interfere with the expeditious and complete recovery by any individual or business claimant.

Source:

AGs Letter To Kenneth Feinberg

"That's a judgment call," Feinberg says. "At some point you have to make a call: These claims are eligible; these claims are not eligible. I could be wrong. You people could draw the line somewhere else."

Source:

• If $20 billion is not enough, BP will honor all financial obligations above $20 billion.
• Ken Feinberg sets this program up and decides the claims.
• Feinberg says that an oyster shucking business whose stainless steel workstations where nearly 40 employees use to shuck Gulf of Mexico oysters are empty and the owners do not believe they will open again is considered to have a valid and total loss claim.

You may download pre Gulf Coast Claims Facility BP claim forms and checklists specific to your industry that my help you gather together information you may need to prove your claim:

Commercial Fisherman Claims Form Commercial_fisherman_Claims_Form.pdf

Crabbers Claims Form Crabber_Claims_Form.pdf

Oyster Lease Owners Claims Form Oyster_Lease_Claims_Form.pdf

Commercial Shrimpers Claims Form commercial_shrimper_Claims_Form.pdf and

Commercial Claim Documentation COMMERCIAL_CLAIM_DOCUMENTATION.pdf

BP Oil Spill Claimants making tourism related economic loss claims may have their claims bolstered by the recent Louisiana Department of Culture, Recreation and Tourism study that indicates that 17% of potential regional tourists have canceled or delayed a trip to Louisiana because of the BP oil spill related pollution problems.

Furthermore, about two-thirds of the potential regional tourists feel that the oil-spill problem is worse (42.7 percent) or just as bad (19.5 percent) as the devastation caused to Louisiana in 2005 by Hurricanes Katrina and Rita.

Source:

Gulf oil spill is discouraging travel to Louisiana, study says

At a Saturday meeting in Bayou La Batre, Alabama, BP- paid Kenneth Feinberg got an earful after telling BP spill victims, "I am your lawyer."

Questions included, Where's the money? Is BP withholding claim payments until the transition to the $20 Billion Gulf Cost Claims Facility opens? Some even questioned Mr. Feinberg's credibility and clout.

Mr. Hibberts, owner of several rental properties along Mobile Bay doesn't trust Mr. Feinberg. "Based on my experience within the last hour, I don't trust him," said Hibberts. "I don't believe anything they have to say anymore."

"I've not been out of here no more than ten minutes and I went to that claims office and their comments were they don't care what he has to say." said Hibberts.

Sources:

Feinberg vows to fix claims process

Despite Skeptics, Feinberg Enthusiastic to Put $20B Oil Disaster Fund to Work

Today, Kenneth Feinberg addressed the House Judiciary Committee and testified concerning the following issues relating to the Gulf Coast Claims Facility and the Oil Pollution Act:

• Claims Eligibility;
• Economic loss and physical injury;
• Realtor and broker claims;
• Propety owner claims;
• People who work off the books and the Gulf Coast Claims Facility obligation to issue a 1099 for income related settlements;
• Federal Pollution Control Act Causation (more liberal) vs. State Law Causation.
• Final Claims Protocols will be released in August. This protocol does not need to be signed off on by BP or the Obama Administration. The final protocol will be determined by Kenneth Feinberg.
• Legal community has a valuable role to play in resolving claims both before the Gulf Coast Claims Facility and assisting with other State law and other claims.
• Feinberg says he is not accountable to BP or the Administration and only to the people of the Gulf; however, he can only be fired by BP or the Administration. He was first approached by BP, rather than the White House, about handling the Gulf Coast Claims Facility
• There will be an appeal process for claimants who do not agree with Feinberg's decision; however, the appeals panel will be hand picked by Kenneth Feinberg. Feinberg will view a large number of appeals to the appeals panel as a failure of the program. Both claimants and BP can file appeals;
• Feinberg says potential claims should do not apply to the Gulf Coast Claims Facility if they lack confidence in him;
• If the claimant's at some lose confidence in Feinberg and he has no work to do because claimant's do not sign up, he will resign.
• Feinberg and his staff are being paid by BP and he is currently being paid outside the escrow fund by BP. Neither he nor his staff are working in a pro bono capacity. BP approves his salary and his staff's salaries;
• Feinberg's jurisdiction has been verbally established by BP and the President, nothing has been put in writing concerning jurisdiction;
• Governement Claims will compete with Individual and Business Claims for the Gulf Coast Claims Facility $20 Billion;
• Undocumented workers will be eligible if there is a ruling from immigration authorizing compensation to undocumented workers;
• For bodily injury claims, Mr. Feinberg has not yet determined whether the Gulf Coast Claims Facility will pay pain and suffering in addition to medical bills and other damages but if this fund is to be consistent with the 911 fund then pain and suffering should be compensated. Mental injuries alone will not be compensated. A combination of mental and physical injuries will be compensated.

Hear the full 2 hour and 38 minute House Hearing with Ken Feinberg

Feinberg's Written Testimony

On Thursday, July 15, 2010, I attended a town hall meeting with Kenneth Feinberg in Lafitte, Louisiana. Mr. Feinberg made the following points about the Gulf Coast Claims Facility:

• You don't have to file a claim with the Gulf Coast Claims Facility- it is voluntary;
• Feinberg only has jurisdiction over individual and business claims;
• Six month emergency payment will be made without obligation to sign a release; Money beyond the six months of emergency payments will be in lump sum if you sign a release of all claims against BP. The Gulf Coast Claims Facility will only last for three years.
• Everyone who is eligible and can corroborate payment should apply;
• Corroborating Payment: YOU DO NOT NEED A TAX RETURN; however, there must be some way to prove what you made. Mr. Feinberg cannot simply give money away. You may corroborate your claim by using: 1)Tax returns, 2)Profit and loss statements, 3)Checks or check stubs, 4)Dockets and/or 5)Any third party willing to testify for you (e.g. ship captain or any other person-even your local priest, mayor, sheriff if they have knowledge of your income)
• Eligibility: Who is eligible? Mr. Feinberg has claims from 48 states. He has to draw the line somewhere. Who will be covered? Gulf Fishermen, Shrimpers, Oyster Harvester, Food Processor, Hotels on the Beach are covered. It does not matter if the oil is physically at your location. Who is not covered? A restaurant in Boston who cannot get Gulf Shrimp whose business is off 30% will not be covered; The restaurant owner in Idaho is not covered. Presumably, every other claim falls between these two extreme examples dealing with eligibility.
• Privacy Concerns: If a claim is submitted, the file will not be sent to the government.
• Claims can be filed and corroborated online. Claim can be filed online at the Gulf Coast Claims Facility website. Claims can also be corroborated online. You never have to go to an office. You can get your claim number online.
• You can use a lawyer if you want. Also, if you walk into one of the The Gulf Coast Claims Facility offices in about three weeks, the office will also provide you with people to help you file your claim. There will be people available to assist in with interpretation and filing in English, Vietnamese and Cambodian.

Additional Resources:

NEW! READ ABOUT THE GULF COAST CLAIMS FACILITY CLAIMS PROCESS HERE

Q&A: Lafitte, Louisiana July 15, 2010 Townhall Meeting With Kenneth Feinberg About
THE GULF COAST CLAIMS FACILITY CLAIMS PROCESS

In a July 15, 2010 Harahan, Louisiana meeting with local officials, Kenneth Feinberg, head of he Gulf Coast Claims Facility indicated:

"If a person has lost health insurance and is paying out of their own pocket for new insurance or paying for doctors' visits, that's compensable," he said.

Claimants won't need "a whole lot of corroboration" to receive emergency payments, Feinberg said. Tax returns, pay stubs or verification from a ship's captain could be enough, though the permanent payments will receive greater scrutiny, he said

In an August 18, 2010 letter to BP, Thad W. Allen, the retired Coast Guard admiral who commands the response to the oil spill, noted that tests had detected a seep. Seep is usually a flow of hydrocarbons from the seafloor. The letter says-

Given the current observations from the test, including the detected seep a distance from the well and undetermined anomalies at the well head, monitoring of the seabed is of paramount importance during the test period. As a continued condition of the test, you are required to provide as a top priority access and coordination for the monitoring systems, which include seismic and sonar surface ships and subsea ROV and acoustic systems. When seeps are detected, you are directed to marshal resources, quickly investigate, and report findings to the government in no more than four hours. I direct you to provide me a written procedure for opening the choke valve as quickly as possible without damaging the well should hydrocarbon seepage near the well head be confirmed.

Source:

Thad Allen's August 18, 2010 Letter to BP Regarding Seep

BP offered lucrative contracts and signing bonuses to top scientists at an Alabama University.

Scientists at other universities like Louisiana State University, Mississippi State University and Texas A&M have taken BP up on the offer. However, Alabama scientists took the high road. "We told them there was no way we would agree to any kind of restrictions on the data we collect. It was pretty clear we wouldn't be hearing from them again after that," said Bob Shipp, head of marine sciences at the University of South Alabama. "We didn't like the perception of the university representing BP in any fashion."

Source:

BP buys up Gulf scientists for legal defense, roiling academic community

A recent Washington Post Poll of Gulf Residents indicates many Gulf Coast Residents are depressed, disapprove of the federal government's response and are very concerned about the economy, environment, seafood safety and tourism.

Source:

The glum gulf (Washington Post)

Worried about the recent BP oil spill and what it could mean for your health? Here's what you can expect and how you can best protect your family's health.

Routes of exposure

Humans can be exposed to hazardous materials related to the oil spill via

• Inhalation (air)
• Ingestion (via food or water)
• Skin absorption through touch

Air Quality

You may be able to smell the oil spill from the shore. Symptoms from low-level exposure to these fumes may include irritation of the throat, skin, eyes, and nose.

When workers burn oil, particulate matter is released. If you have asthma or other respiratory illnesses, you may be especially susceptible to these symptoms. If you smell gas, see smoke, or know oil burning is occurring nearby, the CDC recommends you stay inside your home, set the air conditioner to reuse indoor air, close the windows, and avoid intense physical activity.

Water

Drinking water and household water are not expected to be compromised by the spill. The CDC does not recommend swimming in water contaminated by the oil spill. Local and state guidelines and warnings should be followed for coastal water recreational use. More information about beach safety is available at The Official Site of the Deepwater Horizon Unified Command.

Dispersants

Most people will be unharmed by brief exposure to a small amount of oil spill dispersants. Longer contact, however, may cause eye and skin irritations. If you are concerned that you have been exposed to oil or dispersants, see your doctor.

• Gulf Coast Claims Facility will not begin until the first week of August;
• Eligible claimants will receive six months in emergency payments without a release requirement.

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Sunday, tar balls were spotted in the Rigolets Pass. By Monday, oil had washed at Treasure Isle in Slidell. The Louisiana Department of Wildlife and Fisheries has issued precautionary fishing closures in parts of Lake Pontchartrain and in Lake Borgne, Lake St. Catherine and other areas.

Additional Resources:

Fishing Closures

The BP oil spill has the potential to impact 7.3 Million active businesses throughout Alabama, Louisiana, Florida, Mississippi and Texas and affect 34.4 Million employees and $5.2 Trillion in sales volume.

Source:

D&B's Preliminary Business Impact Analysis for Coastal Areas in the Gulf States