Thursday, June 05, 2014

DHECC - Comment Bump, June 5, 2014

Kevin has left a new comment on your post "DHECC - Lionel Sutton Interview Part 3 - recipe fo...": 


Any idea on which firm(s) Freeh is pursuing?

On another note, this goes back to your revelation of the "expedited claims" activities. You'll recall the 9/20/2012 email with the "list of new directives" from Steve Herman and Jim Roy. Item No. 3 on that list was to "cease and desist reviewing class representatives" because, if they signed a release, they can't be class reps. 

That issue sparked a few questions about whether or not any of the class reps had actually signed a release before the "new directives" were given.

Turns out there were 3 class representatives - Brad Friloux, Henry Hutto, and Michael Guidry - who each had at least 1 of their claims processed and payment pending in early-August 2012. 

Maybe Pat Juneau would tell you if those pending payments were made and the releases signed before Herman and Roy caught it?


Anonymous said...

What's the point in discussing this at all? It doesn't matter if any of the named class representatives signed releases and we're no longer able to be class representatives. If the claimant got paid, what do they care? The only party with the right to complain about that would be BP, and even then, all they could probably do is get the case caption amended to remove the named class member who signed a release. It wouldn't change the case, or invalidate anyone's claims, or require any particular firm to step down from the PSC, so why should that be of any interest to us.

Jason Brad Berry said...

Not. No. Wrong.

Kevin said...

Anonymous at June 6, 2014 at 12:01 AM:

I'm not an attorney. The following quick thoughts are my personal thoughts and not legal opinions.

All 3 of those class reps were the only individual class reps for the state of Louisiana in the categories of the Seafood Program, VoO Charter Payment, Vessel Physical Damage, and Subsistence Damage.

They all gave sworn affidavits telling a federal court and hundreds of thousands of class members they were qualified to act as a class rep for each absent class member in those categories.

If all 3 received final and acceptable offers by August 2012, certain objectors would say those class reps were in a much better position than the class members they "represented" because they at least knew what 1 of their claims was worth BEFORE the opt-out deadline.

If they settled those claims before the Fairness Hearing, then the class may not have had any representative in 1 of those categories, if they all settled the same type of claim.

If they each settled a claim in different categories listed in their affidavits, then they all still submitted affidavits containing factual information they knew to be incorrect - each of them did not qualify to be a class rep in a category listed in their affidavits.

Do you think the class reps prepared their own affidavits?

Anonymous said...

"If they settled those claims before the Fairness Hearing, then the class may not have had any representative in 1 of those categories, if they all settled the same type of claim."

But their motion for class approval was already pending, and, remember, this isn't a litigation class,'s a settlement class. The terms of the settlement agreement never changed, and so the entire time it was being negotiated (which is when the class most needed adequate representation) they had a claim. Also, it's not like they dismissed a suit altogether or didn't still have standing under the settlement like what would happen if they entered into settlement where they are given every bit of relief they requested. Regardless, nothing in the federal rules says that class counsel must represent named class representatives, so it wouldn't impact the composition of the PSC anyway. Class counsel just have to adequately represent the class. That doesn't necessarily require that each member of the PSC represent one of the class representatives.

What would be accomplished by raising this issue now anyway? There is no way Barbier would or should remove a firm from the PSC, so I guess anyone raising this sort of issue would be doing so in order to try to have the certification overturned. Who, OTHER THAN BRENT COONS, would want that to happen? How would that help more claimants than it would hurt? Even if one of the class reps settled too early, and that causes fatal flaws for the certification, why in the world would any lawyer or CPA who represents clients in the settlement (clients who very much would like their claims paid under the settlement) want to fight to have it overturned? Any such person would be putting themselves in a position that is DIRECTLY adverse to their own clients! If I were a claimant and I saw that my lawyer or CPA was doing ANYTHING at all that might put my claim at risk, I would immediately: (1) fire them, (2) report them to the bar association, and (3) sue them. Trying to get the settlement overturned, or otherwise put it at risk while you are currently representing other claimants who accept the terms of the settlement as originally approved is an extreme betrayal of trust and loyalty. That, in my mind, is a far more scandalous than anything I've heard anyone allege the PSC was doing improper. Fighting their own clients' settlement should wind up getting a few lawyers disbarred.

Jason Brad Berry said...

I don't care if they're removed from the PSC...I care about them being brought to justice.

Anonymous said...

This all makes my head hurt.

Who was it who said: ``In the modern world, if you want to do evil, wrap it in boring?``

Kudos to all of you who actually understand what is going on.

Jason Brad Berry said...

I bet it is

Kevin said...

Anonymous at June 6, 2014 at 11:10:00 AM CDT:

I’m a class member with a claim pending in the review process. No attorney is representing me. I didn’t object to the settlement.

I do object to potential misrepresentations and conflicts between me and any class representative and the class counsel who have a fiduciary duty to me now that a class has been certified. Personally, I believe the class counsel ARE the attorneys for the class reps, too. They have filed pleadings on their behalf, and they will probably seek incentive pay for them once the settlement becomes final.

Again, I'm not an attorney like you, but "honesty" and "Fairness" Hearing should be synonymous.

If it's not a big deal, then why did Herman and Roy issue a "directive" to "cease and desist" reviewing class rep claims?

Anonymous said...


As a class member losing everything due to the spill I started processing claims. I continue to this day and can confirm the settlement is far from FAIR or TRANSPARENT.

The court vendors continue to mishandle and have caused accidental and nonprocedural delays on the part of the DHECC that result in more delayed payments.

Currently while the injunction is lifted they are still trying to sort out who gets paid while the settlement is now under threat of U.S. Supreme Court that can act and stop all payments for another 6-8 months.

Why didn’t the judge issue the order to pay all claims in which the settlement received the signed release. Then he required all others to adhere to Policy 495 that materially changes the requirements and compensation, insuring months if not years for the remaining claimants to be made whole.

I can confirm the payment process if not TRANSPARENT and administrated to be considered FAIR.

I have seen firsthand the bouncing and shuffling of claims between departments that should have received timely payments. The court vendors are now in conflict with the class members, the people hired to administrate the settlement continue to be compensated while causing these errors and delays.

When confronted on why payments and offers haven’t been received they fall back on blaming the system and lack of understanding on whom or what controls the issuing of the offers. This should be investigated the status reports appears to confirm Paj budgeted a monthly pay out of 400 million a month. What Jason has brought to light is that the “paying process is not transparent” there are powers that control who receives timely payments.

Claims continue to be set aside only to be subjected to more policies. The perfect example is now policy 495 that requires every claim to be recalculated from scratch adding months if not years of additional delays. The only winners once again are the court vendors, these are the same tactics brought on by BP to delay and deny over time reducing their liabilities. Along with the new unforeseen liability on accounting and law firms processing claims that haven’t Opted Out the clients that will now fail due to inadequate documentation or the causation test as they smooth out the revenue.

Soon many claimants will receive excluded class notices by the adoption of Policy 468. The next issue will be the statute of limitations claimants that filed will be notified after spending several months if not years waiting for an offer. They will be awakened with these notices they are excluded and now considered non class members.

Their only recourse is to file a lawsuit against BP and they will argue this issue unless the judge extends the tolling of these claimants.This has always been BP’s plan the PSC insures payments go to them and their JV partners all others are playing a game that can’t be won. By winning I mean receiving prompt payment for the losses causes by the oil spill without the need of litigation.


Jason Brad Berry said...

Anon reminds me of Ray Nagin...."You're hurting the recovery, Man! Stop talking about all the crooked shit going on!"

Anonymous said...

"The only winners once again are the court vendors"

Don't forget about the PSC. At the same time that they were filing a brief alleging that 495 was no where near the actual settlement agreement, they were running ads claiming victory.

Jason Brad Berry said...

I'm getting to that.

knowthelaw said...

Everyone should be very thankful to Jason for at least setting up a forum that candidly assesses and comments on what is happening with the BP litigation.
The class settlement for economic claims has been very difficult to follow for many reasons, and the media comments about what is going on are usually off the mark. Bottom line is that this will be one of the first class settlements ever devised where many claimants with real losses will not get compensated. BP spends their time pointing to claims that SHOULDNT get paid, but NO ONE points out the tens of thousands of claims that will not get paid, due to the complexity of this settlement and serious gaps in the agreement that leave many claimants stranded.
These were concerns expressed by several plaintiff firms before the settlement was approved, but as with most class settlements and MDLs and PSC these days, there are a number of political and strategic issues involved on both sides of the aisle. Congress tried to fix these problems at least as to oil spills -post Exxon Valdez- with the Oil Pollution Act. This law is what forced BP to set up the GCCF, which was supposed to fund $20 Billion in claims, but shut down in the MDL in favor of the class settlment. BP has saved billions and billions in the interim.
What most people dont understand is that the class is good for some cases, and bad for others. The ones that can get paid should be able to run them through this deal, and the majority of claims, which will not get paid in this process, should have been allowed another forum to proceed. BP did not want this...obviously, which has resulted in a bad compromise. If the class ultimately failed now, those claims that did get paid, and have timely submitted and qualify, would still be resolved, and those that were stiffed would get another opportunity with some other process.
Jason, again, thanks for the thankless work you do to keep a light shining on what is going on.

Jason Brad Berry said...

Thank you.

Kevin said...

knowthelaw said:

"The ones that can get paid should be able to run them through this deal, and the majority of claims, which will not get paid in this process, should have been allowed another forum to proceed."

Does anyone know if there is some sort of "moratoria" claims settlement in the works?

Anonymous said...

Response to Kevin

Does anyone know if there is some sort of "moratoria" claims settlement in the works?

Yes if the PSC doesn’t move to strike down 495 several firms are ready to intervene.

Policy 495 has materially changed the settlement and Bp hasn’t given any consideration in return along with shifting liabilities on firms and accountants processing claims.

No one considered or factored in this change prior to the Opt Out so a back end Opt Out would be needed.

This policy can now deny a recovery for failure of causation / math test or insufficient documentation.

I’m speaking from my personal experience we ran the numbers like most others to identify what action was best for the claimant.

Policy 495 is a game changer!


Kevin said...


Do you have anymore detail on a moratoria claim settlement? I noticed several PSC firms have recently filed amended complaints for what appear to be moratoria-type clients.

Are there solo firms or some sort of BP litigation co-op ready to intervene?

Kevin said...


What happens to businesses who previously met the causation test and have already been paid?

Is that clawed back?

Do employees of such businesses have to meet a new causation test?

Anonymous said...

Response to Kevin

“Do you have any more detail on a moratoria claim settlement?”

“What happens to businesses who previously met the causation test and have already been paid?”

A. If the release is signed the claim should be consider complete. In addition to all claims that exhausted the appeal process as of Oct 3, 2013 see: foot note 3 in the Order to dissolve the injunction.

Is that clawed back?

“Do employees of such businesses have to meet a new causation test?”

A. If you review the stats very little IEL claims have been paid if the BEL claim now fails due to 495 all employees will also.

Policy 468 just adopted has already killed 4 BEL claims with 79 of its employees all now considered excluded class members.


Kevin said...


Thank you for your responses to my questions in this thread and the Policy 495 issue.

Maybe you can answer this:

If the status of a claim is "Payment Pending," does that mean:

(1) an offer has been made to the claimant;

(2) the claimant has accepted that offer;

(3) a release has been signed; and

(4) the check just needs to be cut?

Anonymous said...

Kevin, that sounds about right. Claim statuses aren't always accurate, but seeing a status like that is a good sign that payment will be received soon.

Kevin said...


If you are correct, then based on the affidavits of these Louisiana class reps ("Payment Pending"), isn't it true they settled at least 1 of their claims prior to the Fairness Hearing held 3 months later where the court heard arguments that these people were qualified to fairly and adequately represent the interests of the class members with similar claims?

I don't know if you're an attorney. I'm not an attorney. Maybe Anonymous the Attorney can answer this.

It would be helpful if we also knew whether or not proposed class representatives received and accepted settlement offers from the DHECC prior to (1) the date the class reps filed the class complaint; and, (2) the date they filed the motion for preliminary approval and interim certification for a class.

Do you have any idea how long the process takes between offer & acceptance; acceptance & release; release & payment?

Anonymous said...

"isn't it true they settled at least 1 of their claims prior to the Fairness Hearing held 3 months later"

Not necessarily, but I guess its possible. Seeing "Final Payment Processing" usually means payment will come within a few days, but not always. Errors or even direct requests to stop payment could prevent the payment from actually happening.

I don't know anything about any payments to class reps, but I also don't know anything about their claims or who represents them.

Offer abd acceptance can take as long as the claimant wants I guess. I know of no limits in that regard, but a claimant would lose the right to challenge the offer if they wait beyond the appeal deadline.

Acceptance and release can also take an indefinite period as far as I know. I may be wrong, but I don't think this period is limited either.

Release and payment can take forever, as many have seen. However, usually it depends on whether they submit the release before or after the appeals. But the delay when submitting it before an appeal has nothing to do with the relation between the release and payment.

Hope that helps.

Kevin said...


Thank you. Your response helps tremendously.

It's probably safe to presume that these 3 class representatives from Louisiana, and the attorney responsible for the affidavits knew the exact status of the claims when they said "one of my claims has been processed by the Settlement Program with payment pending;"

The words "Settlement Program" indicate to me there is a definition of "Settlement Program" in some court document; probably in the order for the transition from the GCCF to the Court 'Supervised Settlement Program' ("CSSP").

Based on your explanation of the process, I'm wondering how these 3 Louisiana class reps each had at least 1 of their claims received, reviewed, processed, documentation and evidence completed, written offers made to settle those particular claims, written acceptance given and returned agreeing to settle for amount offered (timing of this could be crucial in my personal, non-lawyer opinion), and a release document signed and returned - all between June 6, 2012 when Mr. Juneau's court-supervised settlement program actually commenced operation, and August 1, 6, and 9, 2012 when the affidavits were signed.

Do you have any idea what sort of claim could be processed that quickly?

Anonymous said...

It was actually crazy fast at first. I think because they weren't bogged down yet. Anyway, I had two claims approved 8 days after they started reviewing them. The total filed to paid timeframe on those two claims was probably only 60 days. All in all I probably had at least 10-15 claims approved or paid before the fairness hearing. Then again, I have a few claims that I filed months before the fairness hearing that still haven't been approved despite being well documented and relatively simple. Tons of things have changed over time as they gained more experience reviewing claims and as the parties and claimants raised new issues. The claim statuses on the portal were comically inaccurate early on. They didn't use anywhere near the number of status categories back then as they do now. Their progress finally started to normalize around January-Feb of 2013,...but then everything ground to a halt when BP's appeals gained steam & Freeh showed up. Before that everything was constantly changing (usually for the better though).

Kevin said...

So, what's the skinny on that "sampling program" where claims were expedited?

The 3 class reps who had payments pending 3 months BEFORE the Fairness Hearing still present some questions for me. Maybe somebody has some answers they'd be willing to share.

Were their claims pending at the GCCF before the transition to the CSSP? Were they processed on a FI/FO basis, regardless of when the claims were submitted?

Neither Friloux nor Hutto were named as class reps when the class settlement complaint was filed on 4/16/12. It wasn't until the amended complaint was filed on 5/2/12 when their names first appear. They seem to have replaced Maurice Phillips and Phuong Nguyen who were originally named as class reps in the same categories.

What happened to Phillips and Nguyen?

Did Friloux and Hutto have an offer and acceptance with the DHECC in place when their names were substituted in the amended complaint?

How many Henry Huttos are there in Plaquemines Parish? There is a Henry Hutto in Plaquemines Parish who filed a lawsuit in August 2011 claiming that subsequent to a hip implant in 2007, he has suffered pain, discomfort, limitation in his range of motion, difficulty in ambulating, and other symptoms and complications caused by the implant. That suit was removed to another MDL proceeding, this time in Ohio. That proceeding is MDL2197.

Does anyone know if that Henry Hutto is the same Henry Hutto that is a class rep in MDL2179?