Friday, August 15, 2014

DHECC - for better or worse

From the beginning of my reporting on the Deepwater Horizon Economic Claims Center and the Plaintiff Steering Committee (PSC) that was chosen to represent the entire class of claimants for their economic losses caused by the BP oil spill, I've alleged that the PSC expedited their own personal clients' claims ahead of everyone else in the class.  This was a clear violation of the terms of the settlement.

At first the allegation was denied.  Then I provided proof that they had expedited at least 409 claims, most of them their own, ahead of the other claimants with the full knowledge and consent of Claims Administrator Patrick Juneau.  The response then shifted from denial to "those claims were part of sampling program", as if that somehow justified the action.  The PSC and MSM's favorite go-to pundit on the settlement cried "It's much ado about nothing" while failing to disclose his own conflicts of interest.

The argument was also made that it didn't really matter if the PSC got their own clients paid first because everyone was going to get paid eventually anyway.

Then Act 495, a policy which requires claimants to match revenues to expenses, was passed and completely changed the terms of the settlement.  AZ commenter IN-HALE has been documenting the butchering effects of this act here on the blog since it was enacted.  Thousands of claims have already been kicked out or denied....we now have a completely different, more stringent, settlement class to the great benefit of BP and the great detriment of the remaining class claimants.

Now, BP is asking Judge Barbier to retroactively enforce act 495 and claw back claims that have already been paid out that did not match revenues to expenses.

The PSC just filed this opposition memorandum in Judge Barbier's court petitioning the judge to deny the retroactive enforcement of 495 which would prevent these claw backs.  I want you to read the language the PSC used (right out of the gate on page 1) from the original settlement contract agreed to by both BP and the PSC:
If the Court does approve the proposed class action settlement, an appellate court could reverse the approval.  In addition, it is possible that the terms of the proposed settlement may change in the future-for - for better or worse - as a result of further legal proceedings.  However, if you sign this Individual Release, none of those uncertain future events will affect you....  In fact, even if the Court does not approve the proposed class action settlement agreement or the approval is reversed by an appellate court, you shall continue to be bound by this Individual Release. 
In the initial settlement agreement the PSC acknowledged that the terms of the settlement may change.  They acknowledged this possibility, in print, in the agreement they wrote.  They were fully aware that 495 or another deviation could change the terms of the original settlement down the road and still they expedited their own claims ahead of every one else's.

They are now using this language to try and block 495 from being enacted retroactively which may affect their own personal claims as well as thousands and thousands of others.  That's still not going to help the remaining claimants who never got a dime from the settlement and are now shit outta luck.

So....I want someone to tell me how the PSC expediting their own claims is not a big deal.

Please...I'm all ears.

In specific, I'd love Louis Freeh to answer that.     

24 comments:

Anonymous said...

Are you saying that this was some kind of secret? That release language, and/or the fact that the terms could possibly change in the future based on later court decisions? Didn't everybody know that already?

Anonymous said...

"Didn't everybody know that already?"
Maybe.
But everybody didn't know that Juneau was misinterpreting the settlement language.
And everybody didn't have the opportunity to get their claims pushed through before BP realized what was happening and the 5th circuit corrected Juneau's mistake.

Jason. Do you know if Freeh has questioned Reitano about the PSC expediting claims. If I recall correctly, she was the first person Juneau hired so she should have first hand information about what was going on. I bet she would not mind spilling the beans at this point.

Anonymous said...

I think perhaps AZ might be saying all this is some kind of bullshit, anon.

Dambala - Jason Brad Berry said...

Really? You don't understand what I'm saying?

You don't see the issues? You don't see the conflicts? You don't see the racket?

Don't know how to help you if you're that blind, brah.

Anonymous said...

"Didn't everybody know that already?"
Maybe.
Did everybody know that Juneau was misinterpreting the settlement?
Probably not.
Did the PSC know?
Probably.
Did anybody other than PSC clients get their claims pushed through before BP realized what Juneau was doing?
No.

Dambala - Jason Brad Berry said...

Could anybody have been apart of the "sampling program"?

No

Judge Shushan said any claimant could read the settlement and know exactly what they would get and how the process would work. Is that true for those people now?

No.

Two DHECC employees were fired, plastered in the media as criminals by Louis Freeh who even suggested criminal charges be brought against them for allegedly attempting to expedite a single claim....which was patently false. Have there been any repercussions for the fucking class counsel that actually did expedite their own claims?

Fuck no.

But here's the big I don't know:

Did the PSC attorneys know the matching issue was going arise later on in the settlement? Did they know the settlement was going to change while they were rushing through their own claims? Did they know BP was only intent on paying a specific amount when the DHECC settlement was negotiated and did they know the amount claims coming in would top that amount?

And here's the really big I don't fucking know:

What level of collusion has occurred between BP attorneys and the PSC....ex parte?

Dambala - Jason Brad Berry said...

I've already proven that one PSC firm, Herman and Herman, was illegally negotiating the Wisner Trust case with BP attorneys. Has anything been done about that?

No.

Anonymous said...

Jason. Do you know if Freeh has questioned Reitano about the PSC expediting their own clients claims? She was the first person hired by Juneau and probably has a lot of information on the "sampling" program.

Dambala - Jason Brad Berry said...

No he hasn't and he won't. The last thing any of these guys want is Christine Reitano going on the record and telling the truth. It would fuck all of them including Freeh.

Anonymous said...

"The last thing any of these guys want is Christine Reitano going on the record and telling the truth."

I guess that's why Reitano's suit against BP was stayed by Barbier but Gibby Andry's suit against BP was not.

Dambala - Jason Brad Berry said...

You betcha

Anonymous said...

What does 600 million buy you.

16. COOPERATION OF PARTIES AS TO CONSUMMATION OF SETTLEMENT.

16.1. The Parties agree to take all actions necessary to obtain final approval of this Agreement and entry of a Final Order and Judgment, including the terms and provisions described in this Agreement, and dismissing all Released Claims against all Released Parties with prejudice. Upon the Effective Date, the Parties also agree to take all actions and steps necessary to obtain dismissal of all other lawsuits that are pending and/or may be filed against BP, arising out of, due to, resulting from, or relating in any way to, directly or indirectly, the subject matter of the Deepwater Horizon Economic Litigation, to the extent of Released Claims against Released Parties.

17. COOPERATION OF PARTIES AS TO SUPPORT OF SETTLEMENT.

17.1. The Parties agree to support the final approval and implementation of this
Agreement and defend it against objections, appeal, or collateral attack. Neither the Parties nor their Counsel, directly or indirectly, will encourage any person to object to the Economic and Property Damages Settlement. Nothing in this Agreement shall impair BP’s right to take any action to defend itself in any trial where BP is a party.

20. DUTIES OF ECONOMIC CLASS COUNSEL.

20.1. Interim Class Counsel and Proposed Economic Class Counsel acknowledge that under applicable law their duty is to the entire Economic Class, to act in the best interest of the Economic Class as a whole, with respect to promoting, supporting, and effectuating, as fair, adequate and reasonable, the approval, implementation, and administration of the Settlement embodied in this Agreement, and that their professional responsibilities as attorneys are to be viewed in this light, under the ongoing supervision and jurisdiction of the Court that appoints them to represent the interests of the Economic Class.

Anonymous said...

What does 600 million buy you.

16. COOPERATION OF PARTIES AS TO CONSUMMATION OF SETTLEMENT.

16.1. The Parties agree to take all actions necessary to obtain final approval of this Agreement and entry of a Final Order and Judgment, including the terms and provisions described in this Agreement, and dismissing all Released Claims against all Released Parties with prejudice. Upon the Effective Date, the Parties also agree to take all actions and steps necessary to obtain dismissal of all other lawsuits that are pending and/or may be filed against BP, arising out of, due to, resulting from, or relating in any way to, directly or indirectly, the subject matter of the Deepwater Horizon Economic Litigation, to the extent of Released Claims against Released Parties.

17. COOPERATION OF PARTIES AS TO SUPPORT OF SETTLEMENT.

17.1. The Parties agree to support the final approval and implementation of this
Agreement and defend it against objections, appeal, or collateral attack. Neither the Parties nor their Counsel, directly or indirectly, will encourage any person to object to the Economic and Property Damages Settlement. Nothing in this Agreement shall impair BP’s right to take any action to defend itself in any trial where BP is a party.

20. DUTIES OF ECONOMIC CLASS COUNSEL.

20.1. Interim Class Counsel and Proposed Economic Class Counsel acknowledge that under applicable law their duty is to the entire Economic Class, to act in the best interest of the Economic Class as a whole, with respect to promoting, supporting, and effectuating, as fair, adequate and reasonable, the approval, implementation, and administration of the Settlement embodied in this Agreement, and that their professional responsibilities as attorneys are to be viewed in this light, under the ongoing supervision and jurisdiction of the Court that appoints them to represent the interests of the Economic Class.

Anonymous said...

Friday Night reported on 8/16/14

It just might be time to give BP what they want “Litigation”

Or request a New Class Notice that includes the changes made by Policy 495

From the Class Notice:
5.Why is there a settlement?

The Court has not decided the case in favor of Plaintiffs or BP. Instead, after extensive, arm’s length negotiations, the Plaintiffs and BP have agreed to settle this case to avoid the cost, delay, and risk of a trial. The Class Representatives and their lawyers think the proposed E&PD Settlement is best for all E&PD Class Members.

If you review the stats it’s now clear this settlement is not what is best for the E&PD Class.

1.2,922 claimants believed the settlement was better than GCCF now Eligible with No Payment.

2.4,554 claimants believed they were Class Members now Excluded.

3.7,331 claimants filed after signing the GCCF Release.

4.3,986 claimants filed but failed the Causation Test.

5.10,705 claimants were Denied as Other (by footnotes, exclusions and Zone Maps)

6.39,032 claimants received Incomplete Denials.
(With over 500 policies they still can’t satisfy the document requirements.)

7.2,926 claimants elected to accept the 40% offered by GCCF.

On the flip side.

1.4,666 Seafood Unique Claimants paid.

This is a separate fund basically part of the settlement but not part of the BEL class.

2.5,280 VoO payments exception to the GCCF release but technically not class members.

So what’s left?

1.19,476 Coastal Real Property owners getting reimbursed for 2010 property taxes.

2.4,764 IEL payments when 43,379 filed for loss.

3.10,301 BEL payments when 102,677 filed for loss.

4.457 Start Ups payments when 5,609 filed for loss.

5.22 Failed Business payments when 3,792 filed for loss.

With these stats why would anyone want to defend this settlement or even claim this is a "Settlement."

IN-HALE

Anonymous said...

Deepwater horizon settlement needs a name change to “BP’S DEEPWATER HORIZON TRAP”

Since the CA reported payments would resume on June 2, 2014 thru Aug 15, 2014 listed below are the new denials issued on the Individual and Business Class.

95 Eligible with no payment.
570 Excluded Denials.
971 Causation Denials.
328 Other Denials.
7,745 Incomplete Denials.

9,709 total of claims denied in the last 11 weeks.

1169 payments made to the same group.

108 signed releases and accepted the 40% balance offered by GCCF.

And what is the PSC doing about it ?????

Trying to preserve the payments they received on the expedited claims. Hopeful they will publish every claw back and name names like the Thonn case. Then Jason you will have the proof your critics are looking for.


IN-HALE

Anonymous said...

Response to:

That release language, and/or the fact that the terms could possibly change in the future based on later court decisions? Are you saying that this was some kind of secret?

I personally don’t believe this was properly identified in the class notice or in the settlement language. At the time 1200 pages, causation test, class membership and zones were the issues.

Q 22. What am I giving up to get a payment? What am I giving up to get a payment?
Class notice instructs the interested parties to sec: 10 of the settlement. No mention about the changes better or for worse.

Didn't everybody know that already?

I don’t believe so, the only ones that read this was the claimants with offers they received the release and if they retained counsel it was explained prior to signing it.

Found in Exhibit 26

If the Court does approve the proposed class action settlement, an appellate court could reverse the approval. In addition, it is possible that the terms of the proposed settlement may change in the future—for better or for worse—as a result of further legal proceedings. “However, if you sign this Individual Release, none of those uncertain future events will affect you.”


A gift to the PSC, by the way how come they didn’t fight this in the clarification order on the appeals? Over 85% of them were sent back to be redone under Policy 495.

“However, if you sign this Individual Release, none of those uncertain future events will affect you.”


IN-HALE

Anonymous said...

Anonymous said...
"With these stats why would anyone want to defend this settlement or even claim this is a "Settlement."

It would be interesting to compare these stats with the stats touted by Juneau and the PSC prior to the fairness hearing.
Not only were they making sure their own claims got paid before BP figured out what Juneau was doing, but they were using those payments to convince the public that the settlement was a good thing.
Sampling, give me a break. Show me one quote from Juneau or the Judge where they referred to samples before Jason raised the issue.
One does not have to be a conspiracy theorist to suspect that Barbier, Juneau and most of the PSC knew exactly what they were doing. All of these guys have been in the game a long time and this was their big opportunity to use everything they learned to get the payday they all dreamed about

Anonymous said...

Response to Q: It would be interesting to compare these stats with the stats touted by Juneau and the PSC prior to the fairness hearing.

Case 2:10-md-02179-CJB-SS Document 7594-3 Filed 10/05/12 Page 1 of 2

http://www.deepwaterhorizoneconomicsettlement.com/docs/ClaimsAdminReport_3.pdf

October’s 2012 reports is not as detailed with explanations for denials and the slide report is not much help but touted the 95 % accepted rate.

http://www.deepwaterhorizoneconomicsettlement.com/docs/Slides-CA-Report-Fairness-Hearing-11-08-12.pdf

1784 payments with 1210 going to the VoO for $50,720,700.00 only two documents required.

30 Seafood

6 Individuals.

65 BEL Claims.

0 Start Ups.

0 Failed Businesses

415 Coastal Property

6 Wetlands

50 Real Property Sales

1210 VoO

2 Vessel damage

IN-HALE

Anonymous said...

"What level of collusion has occurred between BP attorneys and the PSC....ex parte?"

Settlement talks are always ex parte. In a sense, they're also collusive, because both sides want resolution, albeit on their own terms.

Looks to me like the PSC got worked by BP's attorneys.

As for BP restitution claim, that seems like a ridiculous long shot. But if it turns out the deal isn't enforceable after all, then shouldn't the class members whose claims were denied under the (unenforceable) settlement be allowed to resurrect their claims by pursuing BP in court?











Anonymous said...

95% acceptance rate prior to the fairness hearing vs 10% acceptance rate now.
Somebody got worked, but I can think of 600 million reasons that it was not the PSC.

Anonymous said...

Comparing the CA report #3 Oct 5, 2012 and the report given at the Fairness hearing on Nov 8, 2012

http://www.deepwaterhorizoneconomicsettlement.com/docs/ClaimsAdminReport_3.pdf

$422,502,376 reported “Payable Notices” as of Oct 3, 2012

Taken from the Fairness Hearing Nov 8, 2012 the number jumps but no official report on file for Nov 2012.

$952,671,136 in “payable notices” under the new settlement calculations have been issued as of November 6, 2012.

For those claims for which we have issued payable notices, we have experienced a __95%__ acceptance rate – meaning, for those who have received notice of an award, 95% of the responses have been favorable, accepting the amount calculated.

It appears there was a big push to get offers out and accepted for reporting issues the amounts more than doubled within a month. Accepting a claim can be done by a click on the portal what’s interesting is the quickness of the amount of offers and acceptance of them. It takes time to evaluate the calculations to confirm the offer is accurate unless they are VoO, Wet lands and Coastal Real Property claims but amazingly the offers made did have a 95% acceptance rate.

Could this be the real reason why claims were expedited????

http://www.deepwaterhorizoneconomicsettlement.com/docs/Claims_Admin_Report_4.pdf

Between Oct 3 and Nov 6, 2012

Seafood Offers accelerated to over $300 million.

BEL Offers accelerated to over $500 million.

VoO Offers accelerated to over
$200 million.

With another 4500 Coastal Real property offers made.

So BP is on record stating the PSC members did received a large amount of settlements payments. The only one with access like Louis Freeh could see what firms received offers prior to Nov 6, 2012 then you would have your smoking gun.

IN-HALE

Anonymous said...

Another fun fact:

BP only filed 15 appeals in 2012 most of them to correct VoO offers on boats that never were assigned work.

We currently have roughly 800 million in payments held up in the appeal process. These are claims accepted with most of them having signed releases.

http://www.deepwaterhorizoneconomicsettlement.com/docs/Appeal_Panelist_Decisions.pdf

Top left coded 2012-1 thru 15

IN-HALE

Anonymous said...

Recently, two of the U.S. Chamber of Commerce (they of the Amicus brief supporting BP)newspapers, The Southeast Texas Record.com and the Louisiana Record have published letters highly critical of the PSC and the Settlement Agreement. They would not do this unless there was a shift with BP. My guess is that they know it will take time to get the agreement thrown out, but have started the process. This will allow them to stiff the PSC on their precious $600,000,000 "Common Benefit Fund." I guess they figure the signed releases will protect them from most of the cases which will have been resolved and they will fight to have to reconsider claims that have been denied. The PSC had better wake up and realize they were never going to get the money anyway and they had better start taking their fiduciary duty to all victims seriously! They have put themselves squarly in a huge conflict of interest and the sooner they start fighting to throw all of this out and let these cases be resolved with the threat of trials (the only thing BP is scared of), the better off they will be. Even if they get the $600 million, they will have to pay it and more back out as settlement for their breach of duty they owe all victims.

Kevin said...


"They would not do this unless there was a shift with BP. My guess is that they know it will take time to get the agreement thrown out, but have started the process."

What kind of "shift?"

Get what "agreement" thrown out?

Just trying to understand those comments.