In a partnership which seems to be rapidly expanding, perhaps in advance of reports that the latter will be joining the former in party affiliation as early as this week, Louisiana Gov. Bobby Jindal and Attorney General Buddy Caldwell held a press conference today to announce tougher measures on the question of the federally-administered BP claims fund.
Specifically, the duo announced they’re teaming up to file a motion in federal court in New Orleans asking U.S. District Judge Carl Barbier to oversee the communications between BP claimants who were affected by the massive oil spill and Ken Feinberg, President Obama’s choice to administer BP’s claims fund. Feinberg’s performance in managing the claims process has been almost universally panned in the six months since he stood up his office in Jackson, Miss.
Jindal described the motion as a three-pronged affair. “First, we are asking the Court to oversee communications with claimants and third parties retained by BP and Mr. Feinberg as part of the claims process to ensure that all legal safeguards afforded to claimants under the Oil Pollution Act are protected and preserved,” he declared. “We specifically requested that the Court supervise, and when necessary, direct communications with claimants.”
“Second,” he continued, “we are also asking the Court to investigate where they may need to take steps to rectify any misleading statements or promises made by the Feinberg process and the Gulf Coast Claims Center to claimants in the past. For example, The Oil Pollution Act gives BP distinct legal duties, including the requirement of ‘a procedure for the payment or settlement of claims for interim, short-term damages.’
“As we know, BP established a $20 billion trust to pay claims arising from the spill, and Mr. Feinberg is the arbiter who receives the funds and established protocols regarding emergency payments, and now also the final payments.”
“Yet, in a recent Bloomberg interview of Ken Feinberg,” Jindal went on, “he said the ‘interim claims program has not been implemented yet.’ However, the program for emergency payments ended on November 23rd. This statement certainly needs immediate clarification.”
Jindal’s third demand was even less polite.
“Third,” said the Governor, “we are asking the Court to prohibit Mr. Feinberg and the Gulf Coast Claims Facility from requiring overly broad waivers from claimants that may release BP from claims not even subject to OPA.
“The Oil Pollution Act clearly states that ‘payment of a final claim shall not foreclose a claimant’s right to recovery of all damages to which the claimant otherwise is entitled under this Act or under any other law.’ Beyond this provision, OPA prohibits the release currently being required by Mr. Feinberg and the Claims Facility to force claimants to waive all other potential claims as a part of settling final agreements.”
Jindal noted that Feinberg’s policy makes for absurd results.
“This means that if a landowner’s property on the coast was damaged by the massive BP oil spill,” he said, “OPA allows three years for a claimant to identify the damage and file a claim with the responsible party – likely BP. However, Mr. Feinberg wants claimants to settle now on an amount of damages and forever waive any future claim against BP and any other potentially liable party – whether through OPA or any other law. This is plainly overstepping the provisions of OPA and absurdly unfair to the citizens of Louisiana who have endured many losses – affecting their families, their jobs, and their livelihoods, because of the oil spill.”
Jindal’s objections bring to mind a concern we on the Hayride noted when the BP claims fund was announced – namely, that the $20 billion “shakedown” that company was subjected to actually amounted to a Swedish massage by the Obama administration, as BP took a $10 billion tax writeoff last year as a result of the claims fund’s establishment, and when Feinberg took over the claims BP was largely absolved of the responsibility to pay individuals for the damage they had caused with the Deepwater Horizon disaster.
The Governor continued in his objections to Feinberg’s ham-handed rules.
“We have repeatedly stated our disagreement with Mr. Feinberg’s notion that to receive a final payment you must waive your right to future litigation against other parties,” he said. “This requirement contradicts federal law, strips claimants of their right to sue for losses that may become apparent later, improperly seeks to relieve BP of its responsibilities, and gives BP greater rights than federal law allows.”
Stopping Feinberg from fast-playing claims against BP is important to Jindal and Caldwell, because while the majority of the damage from the spill is past there are still continuing effects from which plaintiffs might be able to seek recovery. Specifically, the Louisiana Department of Environmental Quality says more than 304 miles of Louisiana’s coast is still oiled to some extent, with 27 miles of that coast considered heavily oiled. More than 634 miles of coastline suffered effects from the spill.
Caldwell largely played good cop to Jindal’s more aggressive stance in his tone at the presser, but the Democrat (for now?) didn’t differ with him on substance.
“We have attempted to give Mr. Feinberg and the claims process some latitude to correct itself so as to properly treat the citizens of our state,” he said. “During this period he has received constant input from our office, the Governor’s Office and other states to make the process fair, equitable and expeditious. He has not availed himself appropriately of these suggestions or of our willingness to work with him.
“Recent media reports of GCCF’s $10 million payout as part of a ‘private settlement’ at the explicit direction of BP show that this joinder motion is clearly warranted and timely. Mr. Feinberg must be placed under supervision and control. Our citizens can wait no longer for fair treatment in the claims process.”
Jindal noted the troubling result of Feinberg’s claims authority have affected a shocking number of Louisianians.
“The Attorney General and I are filing this motion today to ensure the state is taking every step we can to protect our citizens,” he said. “Indeed, Louisiana citizens filed approximately 40 percent of the 484,437 pending claims before the Gulf Coast Claims Facility – more than any other state affected by the BP oil spill. Even with this large amount of claims filed in Louisiana, the vast majority of Louisiana claimants are not currently represented by counsel. This means that tens of thousands of our citizens are virtually on their own when it comes to navigating the complex – and often times repetitive and inaccurate – claims system set up by BP and Ken Feinberg.”
Jindal also said a state investigation into spill claims has uncovered a number of red flags.
“We know from previous claims information from BP that Louisiana represents the majority of claims still in limbo,’ he noted. “However, Florida has more claims paid than Louisiana – even though we were ground zero for the catastrophe and certainly have many more claims in the system.
“While we have repeatedly asked to have more visibility into the BP-Feinberg claims process to ensure a systematic and fair process for claims payments, we have repeatedly been denied the ability to examine claims payments,” he complained. “Meanwhile, we continue to hear of incidences where people with virtually the same circumstances are receiving varying payment amounts. Increased visibility into this process will help us better understand how decisions are being made, while ensuring they are being made fairly.
“It’s clear that the process remains unfair to claimants, many of whom are now having their claims denied or delayed because of confusing and intense documentation requirements. Individuals in similar circumstances are not being treated consistently when it comes to eligibility determinations; individuals promised payment are not receiving these monies: and claim payment amounts are not being explained.”
The Governor then offered an example.
“We provided $2 million in BP grant funds to 13 community based technical assistance providers to provide free assistance in multiple languages to individuals, small business owners and operators in preparing their claims request,” he said. “This network of providers has conducted over 500 outreach efforts/events, connecting with over 17,000 individuals, businesses and nonprofits across communities impacted by the spill. This includes the operation of an Oil Spill Referral Line toll free that routes people to the claims technical assistance provider organizations.
“However, even with this technical assistance provided through the state to help claimants navigate the claims process, the system remains unclear and often overwhelming to claimants. The Court’s oversight will help the challenges in the current system.”