Tuesday, July 09, 2013

Sounds of the Jungle

The jackals are snapping at each other's heels while the media monkeys are howling in the trees.

I just read this NYT commentary by Joe Nocera which is either half-informed or fully-twisted.  I'm voting on the latter.  I can't decide whether there are worms in my meat or there is still some meat left on the bone after the worms got a hold of it....welcome to the BP settlement.

According to Nocera, Saint Feinberg "spent more time turning down bogus claims than he did approving payments to victims."

Oh yeah?

Nocera backed that thesis up by linking to this story from "the trusted voice of the people", Bloomberg, in June of 2010:

BP Victims' Fund to Fight Bogus Claims, Feinberg Says

I'm not sure why Joe decided to republish the aforementioned article about Mr. Feinberg.  There is no hard data to support the claim he's making and he's neglecting to point out that Feinberg was dismissed after Gulf Coast folks and blogs like this one pointed out that he was actually getting paid on a commission basis by BP.  We also uncovered that he had multiple contracts with other oil companies.  Would Joe have us believe that Feinberg was a champion against corruption?

Funny, seems like I remember another headline that was almost identical to the one Nocera mentioned above....let's dig back in the crypt and see if we can find that....

A Hybrid?

In that AZ post, I called out a Huffington Post article published seven months after the Bloomberg article Nocera referenced:

Gulf Oil Spill Fund Fraudulent Claims top 7,000

Sounds outrageous right?  Well, if you actually read the story instead of the headline you'll see that at that time it was written, only eight out of 7,575 claims that were being investigated were actually found to be fraudulent.  Now read that headline again and tell me if it's misleading.

The story Nocera references from Bloomberg, as well as the Huffington Post story, have no substantial data or facts to back up the claim that there were "a multitude of bogus claims" filed.  To this date there is NO SUBSTANTIAL DATA supporting this allegation of massive fraudulent claims filed against BP.

Why is that?

Hang on...I may have an answer when I explain how the claims are actually being processed.

In the meantime, Nocera makes the statement that Feinberg actually spent more time, "turning down bogus claims than he did approving payments to victims"  What criteria is he basing that statement on?  Did he hear that personally from Feinberg?

Feinberg was actually processing individual claims himself?  He was spending his personal time finding bogus claims?

Fuck no, he wasn't.  Nor was he transparent about the nature of the how the claims were being processed in the first place.  Granted, I'm just a lowly blogger, but I put in multiple calls to his office in D.C. to find out exactly what was going on...all to no avail.

Since then, I have put a lot of the pieces of the puzzle together.  Here's a possible reason why there is no substantial data to back up the fraud allegations by Feinberg and the mainstream media (who just love to throw this allegation of rampant, fraudulent claims out with no corroborating evidence).

What happens when you file a claim?

The first step in the processing of these claims under the GCCF, as well as the DHECC (in the present), goes through a company called Brown and Greer.  They developed a modeling software system that all claims are run through before they ever land on a desk.  Their computational modeling agent weeds out claims before a set of human eyes (accountant/claims processer) ever sees it.  This company, Brown and Greer, is actually a company that specializes in collecting data in class action situations like this in order to mitigate risk for clients.

Remember that last sentence (future posts).

At what point they created their modeling solution for this specific case...BP....I have not been able to determine.  I just know that they had the modeling software in place before the GCCF was created and they were hired by Feinberg to be the first "filter" for processing the incoming claims.  I've been told, but haven't been able to determine, they were hired by BP to create the modeling solution before they were hired by Feinberg.

Now, after the GCCF collapsed and the DHECC was formed, Brown and Greer was hired by Barbier, Juneau and team as a court vendor, to do the exact same thing they were doing with the GCCF.  Their software modeling process is where the rubber meats the road in the BP claims process.  Before any DHECC accountant sees a single claim, it has already been processed by Brown and Greer's modeling agent.

You know where this is going, huh?

I have been informed of three instances, documented separately, where the modeling agent was "misinterpreting" the claims in favor of lower payments for BP.  And this isn't just a single claim...I'm talking mass groups of claims may have been misconstrued by the modeling agent in order to either lower the payout according to the "zone" in which a claim was filed, or a mass amount of claims have actually been kicked out and re-queued by the modeling agent.  If kicked out, it would take another 120 days to process that claim before it even made it to an actual accountant's desk at the DHECC.

There is one confirmed case of a claim, over a year old, that was filed with all of the required information and has yet to be processed.

This evidence has been documented and will be forthcoming.  If not on this blog...on another independent online resource.

Kind of right, kind of wrong

In his defense, let's look at what Nocera did get "half-ass" right.

The PSC lawyers are gaming this system in a way that would make the most legendary Louisiana "gamers" jealous:

"So a group of lawyers — known as the Plaintiffs’ Steering Committee — persuaded their clients to skip the Feinberg process and sue BP. And in March 2012, BP settled with those lawyers."

Yes and no.  Actually more no than yes.

It wasn't only the "PSC" lawyers that were skipping the Feinberg process to sue BP independently...there were many other lawyers representing private claims other than these few PSC lawyers.  And to say that "BP settled with these lawyers on March 2012" is a joke...what they agreed to was an MDL case that would supplant the collapsed GCCF/Feinberg settlement process.    How that transpired and how these particular lawyers were named to the PSC was dictated by a single federal judge, Carl Barbier.  BP wasn't offering a settlement to "all" the lawyers who had private claims against them.

"As a condition for settling, the plaintiffs’ lawyers insisted that Feinberg be replaced by Patrick Juneau, a good-ol’-boy plaintiffs’ lawyer himself. "

Yes...he got that exactly right...adjectives and all.  What he may or may not know...is Juneau's very cozy connections to some of the PSC attorneys (I'm sure AZ commenter, Kevin, will be happy to expound).  I suspect Joe does know some of this and that is what he is alluding to.

"Over the ensuing months, the company had come to realize that Juneau’s interpretation of such concepts as “revenue” and “earnings” was, er, unique. So unique, in fact, that businesses that not only weren’t affected by the BP disaster but hadn’t even suffered losses were getting millions of dollars."

Yes...this is true...but what has yet to surface is exactly who these businesses were that benefitted FIRST, and who their "good-ol'-boy" connections, and even legal counsel, were.  I believe the bread crumbs...or filet mignon cuts, if you will....lead directly back to the PSC lawyers.

"Suddenly, BP was facing the prospect of paying tens of billions of additional dollars to people who had no justifiable claim on the money."

Perhaps...but what Nocera is failing to understand is that those people in the claims process were pushed ahead of thousands of other people along the Gulf Coast who did deserve to be compensated...and they still haven't been compensated.  

"When BP, which is based in London, complained to Judge Carl Barbier, who is overseeing all of the BP litigation in New Orleans, it got nowhere. Do I need to mention that Barbier is himself a former Louisiana plaintiffs’ lawyer? In fact, he was once the president of Louisiana Trial Lawyers Association. How cozy is that?"

Yes, I concur, 100%, on this sentiment.  But I doubt Joe has any idea how deep that rabbit hole goes.    

"Yet its efforts to do right by the Gulf region have only emboldened those who view it as a cash machine."

Yes, again.  But Mr. Nocera fails to mention that those assholes, he's previously called out, wedged themselves in between the cash machine and the people who are actually suffering from this oil spill.  And that...is what boils my blood about this commentary and the entire settlement in general.

A zombie beef  

Here's my thesis, a response to this NYT opinion by Nocera:

Yes...the PSC lawyers are greedy assholes gaming the system....but so is BP.  They are all greedy assholes and the people that are truly suffering are the hard-working, not-so-greedy, people of the Gulf Coast.    

When he labels his headline, "Justice, Louisiana Style",  he's implying that the entire state of Louisiana is intent on fucking over this poor, little, multi-national oil company, BP.  

Well, this poor, little company that is being taken advantage of has decimated the economy, ecology and culture of this state....and the damage continues to this day, with no end in sight.  If Mr. Nocera wants to fly down here and take a tour of the Louisiana coast, I'd be happy to show him the damage that has been done and what continues to unfold.  I can pull up over 100 blog posts on this blog, and others, that document it...much of it on video.  More importantly, I can drive him to the people that are suffering and show him the irreparable damage that's been done to our environment.

A distinction needs to be drawn between the lawyers/judge(s)/politician(s), that comprise the PSC/DHECC vis-a-vis the hard working people of the Gulf Coast, Louisiana folk, in specific.  These two classes of people mix like oil and water (forgive me).

What we have in this article, is a monkey howling in a tree, throwing turds at one pack of hyenas in defense of another pack.  Never mind the slaughter that's taking place underneath.

In respect to the PSC lawyers, the judges, the politicians and the defendant, BP.....they are all assholes...all of them.  I wish someone would write about that in the paper "everyone who's anyone" reads.  



jeffrey said...

Questions: 1) Why are BP's lawyers not pursuing the allegations of PSC attorneys monkeying with the queue as part of their appeal of the settlement? Or are the two issues separate?

2)If Brown and Greer's software pre-screened these claims and the claims are amounting to "irreparable injustice" (BP's words) why not just sue them?

Jason Brad Berry said...

No, no, no. Brown and Greer's screening process appears to be working to BP's advantage. In fact, it may have been set up for that exact purpose from the beginning.

The PSC lawyers aren't gaming that side of claims process but not do they care. They know their own claims will get processed, as I believe most of them already have been.

jeffrey said...

Ok but BP's larger narrative is closer to the impression one gets from Nocera which is BP is the "victim" of a lot of illegitimate claims.

I may not be understanding what I'm reading so I'm sorry if this is a dumb question. I guess what I should be asking is, if the software does such a great job of protecting BP, what is the workaround by which these attorneys are jamming in all the illegitimate claims?

jeffrey said...

Is it because they opted out? I'm sorry if I'm being dumb. I'm just trying to follow.

Anonymous said...

Jesus, this is complicated!

How is anyone not well versed in all the levels of law and liability involved simultaneously supposed to make heads or tails of any of this?

It's like the post-Katrina insurance claims mess turned into some post-nuclear diaster monster in some badly dubbed Japanese movie, the kind teenaged you watched at three am while stoned out of your mind.

A whole region's people have ended up in the "insurance" layer of Hell. God only knows why.

Getting caught up in the dreadful human evils of this process sure takes the mind off eyeless shrimp.

The traumas involved in the claims process mirror and magnify the health and ecosystem destruction... but they also take too much attention off an ongoing witnessing of changes to the land, water, and food systems.

It is hard to pay attention to both in a life that also contains laundry and lunch packing.

jeffrey said...

But then even if they opted out, Barbier is using B&G too so...

Jason Brad Berry said...

They understand how to get it through the software. Once it hits a DHECC desk it's easy

Jason Brad Berry said...

No...PSC lawyers also have personal clients who have claims in the settlement process. I believe those claims have been processed ahead of everyone else's.

It's not about opt outs.

Let me summarize, I know it's complicated but let me try.

B & G created the original modeling software, I believe at the behest of BP, in order to mitigate their own risk. I'm not sure about that part, though.

Feinberg then hired B & G and used that exact same modeling solution to process claims.

When it moved over to the DHECC, they too, used the exact same solution by hirgin B & G.

There is clear evidence that claims are being manipulated and/or misread by B & G to the favor of BP. That evidence is forthcoming.

Now...the PSC lawyers know exactly how the B & G process works. While representing all of the claims in the DHECC process, they also have individual clients that have hired them to get their claims processed in the DHECC. I believe...these claims have been processed ahead of everyone else's claims. So preferential treatment has been shown by Juneau's office to claims that are using the PSC lawyers as private counsel.

The system is being gamed by both sides, BP and the PSC lawyers. The losers are the people who have filed claims in the process and don't understand what is going on behind the scenes. Their claims are being downgraded and even outright rejected even though they filed exactly as they should have.

Jason Brad Berry said...

Wait..let me correct one thing. Opt outs are big deal but not in the particular issues I'm bringing up in this post.

Kevin said...

To paraphrase, this is what I have been repeatedly and brashly told by, I presume attorneys or other legal staff commenting on NOLA:

"The settlement will pay claims of ANY business that is located within a certain zone, as selected by BP, and who can show a "V" or "U" in profits after April 20, 2010 when compared to similar months between January 1, 2007 and December 31, 2011, AND there is no requirement that the "V" or "U" had anything to do with harm from the spill."

In other words, there is an unlimited source (BP) of money if any business of any kind mathematically qualifies.

my take on BP's complaint about how the settlement is being interpreted and administered

Kevin said...

For a quick bit of information on Pat Juneau, Calvin Fayard and Justice Dennis (who was really skeptical at yesterday's hearing) go to the following link and read the documents and comments:


I wouldn't be surprised if Pat and Justice Dennis were guests of the Fayards at a couple of recent (late-2010 and since)social gatherings in the Crescent City.

jeffrey said...

Ok I think I understand. If you're savvy enough to understand how to rig the rest of the process, you're savvy enough to get through the B&G system.

STILL it's kind of a fun question to put to BP. As in, "Hey how come these software people you hired didn't protect you from all these unjust claims you're appealing?"

Jason Brad Berry said...

Well I think they are protecting them, or at least putting a tourniquet on the hemorrhaging but it's still out of control.

Doug Handshoe said...

Joe Nocera is big business shill from way far back. I remember him writing on how State Farm was being picked on in the courts here after Katrina.

If anyone thinks media outlets like the New York Times don't have high priced briefcase boys on the payroll read Nocera and become enlightened.

After the spill I recall a NYT reporter lecturing me on the Big and little "C" of litigation in concepts like Conflicts of Interest and the mitigating effects of Chinese firewalls. It was the biggest load of horse shit I had been fed in quite some time before or since. Now these same people troll the pages of this blog and mine looking for answers since BP bitched about the fix being in against them.

BP has no standing to complain about what is happening now, especially to the extent they bought off most of the local politicians along with large segments of the plaintiff's bar early on in 2010.

The passage of time will validate the very important work you are doing Jason. Don't let up.

Jason Brad Berry said...

I needed that...thank you, Doug.

Kevin said...

Probably 1000% wrong, but it seems to me the 5th circuit may punt on the broader issue by saying they don't have jurisdiction over the matter. But, that won't stop them from offering some nasty comments about the larger issue in their reasoning for finding they have no jurisdiction.

BP's petroleum jelly division needs to work some OT.

The "run on the bank" by the well-informed may be a different story.

Mr. Freeh could be overwhelmed by the people playing both sides. I'm sure he doesn't need any help, but he just needs to remember things just happen at the right time and place for no reason.

Anonymous said...

I don't pretend to know enough about all of the details here. This reminds me of vultures circling the rotting carcass of a dead animal. It really isn't a question of if or when the vultures get to eat, it is a question of which vulture is big enough to run the other vultures off. I think I saw the same thing happen when all of that federal Katrina money made it down to Louisiana. Circling vultures!

Kevin said...

This might be your ordinary social hospitality, but I've heard that Justice Dennis and his wife were seen seated at 1 of the Fayards' tables at the Squires Ball in December 2010. When was the spill? Oh, yeah. April 2010.

This is probably 1 of those happenstance things I alluded to in an earlier comment.

It reminds me of another happenstance incident back in November 2005 when Caroline Fayard invited her then-boss, Judge Duval, and his wife to the LSU/Alabama football game with the Fayards. Now, this was a few months before the Katrina litigation had been assigned to Judge Duval. So, after the PSC was picked in the Katrina litigation, Judge Duval did disclose his close friendship with Calvin to the other attorneys involved. And, to his credit, sometime later he submitted an amended financial disclosure form disclosing the game and related expenses as a "gift".

Speaking of football games, I wonder if Fayard invited Justice Dennis, a LA Techster, to the LSU/LA Tech game in 2009?

If I remember correctly, Calvin had his staff keep pretty detailed records of those people he invited to or gave tickets to each LSU, Saints, and Hornets game. His wife (the current 1) also had "the help" keep detailed lists of those invited to, and those who attended, the Fayard social functions like mardi gras balls, Christmas parties, etc. They also kept seating charts.

Sorry. I'm just rambling...

Kevin said...

The story on nola.com today identifies a second senior attorney terminated from the claims office had been fired. The second attorney is identified by nola as the wife of the attorney who made headlines a few weeks ago. She also allegedly worked in the Feinberg claims office.

Kevin said...

Correction to my previous comment. The second attorney is not alleged to have worked in Feinberg's claims office. She is alleged to have represented claimants who made claims to the Feinberg claims office.

Kevin regrets the error.