Tuesday, August 26, 2014

Rising Tide 9 - 2014

Yo peeps, it's that time of year.  Rising Tide 9 is upon us.  Sept. 13....same bat time same bat channel.  

Here is the schedule.

The panels are interesting and somewhat odd this year which makes for great discussion.  Come on out and support the Nawlin's blogging community...still kicking after nine years.  

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.     

Wednesday, August 13, 2014

The Wisner Trust - How deep do the conflicts run?

If you've followed the Wisner story here on AZ, you know that some members of the Plaintiff Steering Committee for the BP settlement also serve as a team of joint venture (JV) attorneys for the City of New Orleans and The Wisner Trust Advisory Committee in their litigation against BP for economic and environmental damages sustained by the 2010 oil spill.

The JV attorneys that are also on the PSC are Stephen Herman, Calvin Fayard Jr., Walt Leger and James Roy.  A fifth attorney, Fred Herman, is also a member of the JV group representing CNO and Wisner but he is not on the PSC.

These JV attorneys were initially hired by Mayor Landrieu to represent the City's interests in their claims against BP.  They subsequently took over The Wisner Trust Advisory Committee's case through what amounted to a hostile takeover of the Committee's board members thanks to Mayor Landrieu's back room maneuvers.  The Trust was initially being represented by the environmental law firm Waltzer and Wiygul but Landrieu claimed they should be replaced because they had a conflict of interest due to a lawsuit they had pending against the City regarding the Old Gentilly Landfill.

The Wisner heirs, wanting to remain with Waltzer and Wiygul, filed a complaint stating that the JV attorneys were themselves conflicted due to their role as the City's attorneys and even their role as PSC attorneys.

Federal Judge Carl Barbier ruled that it was ok for the JV's to represent both stating:
"The mere fact that the city and the donation may have different types of claims does not create an actual conflict.  Consequently, the court will grant the motion to substitute counsel. If at some future time an actual conflict arises, the court can address the matter at that time."
Perhaps that time is upon us regarding JV firm Herman and Herman.

Turns out senior partner, Russ Herman, has a pending lawsuit against the City of New Orleans over the proposed Tracage residential development in the Warehouse District.  Herman first filed a complaint with the City back in November of 2013 objecting to the height of the building among other grievances.

Since then he's filed a lawsuit against the City of New Orleans, his own client, (as well as the Tracage developers) in an attempt to block the building's construction.  The suit is Herman v. City of New Orleans and the docket # in Orleans Parish Civil District Court is 2014-896.

This is the exact reason the Mayor used to justify the removal of Waltzer and Wiygul as the Trust's attorneys against BP.  I would expect the Mayor is going to remove Herman and Herman as the City's counsel and Wisner's council any day now?  I ain't holding my breath.

As luck would have it, City Council moved to waive the conflict back in April of this year.  Jump to about 02:10:18 in the video.

That's convenient but what say Judge Barbier?

It's become brazenly clear in the past few months that the conflicts of interest with these guys are numerous and detrimental to both the City and the Wisner Trust.  It's also become brazenly clear they are not environmental lawyers and were not properly vetted to handle the Wisner case which at its core is an environmental lawsuit.

In a recent memo regarding complaints against BP for abandoning the clean up on Wisner Beach, BP seems to be keenly aware to the bogus claim the JV attorney's filed on behalf of the Orleans Parish Sheriff's Office for damages incurred to Wisner property from the oil spill.  As I pointed out in this post, OPSO has no interest in Wisner land and could not have incurred any economic loss in respect to Wisner.

BP recently referred to the claims mentioned in that post on page 5 of this legal filing.

Let us also consider that one of these JV firms serving on the PSC turns out to be the firm mentioned on page 60 of the first Freeh report....the firm that allegedly filed fraudulent seafood claims with the DHECC.  If that surfaces, does it become ammunition for BP and how would it affect the City and Wisner's claims against them?

Take it one step further and consider if these conflicts are possibly being used by BP to squeeze the JV attorneys on the City's case, Wisner's case or even in their role as PSC attorneys.

I don't have a law degree but I understand there's a damn good reason why potential conflicts of interest in litigation should be taken with the utmost scrutiny.  The conflicts that exist here could have a staggering monetary effect on both the BP settlement class the PSC/JV attorneys represent as well as the City and Wisner's litigation.

Tuesday, August 12, 2014

The Wisner Trust - What's in a name? An extra $163,837.

After a rather uneventful couple of months on the Wisner Trust battlefront, it seems the "cease fire" is over.  Or maybe it's not...first we have to figure out what the CeaseFire program even is and why it's getting the largest block of cash from Wisner next year.

(Forgive me, I couldn't resist the metaphor)

The 2014 Wisner Grant proposals have been out for a couple of weeks now and the two largest blocks of cash requested are going out to Mayor Landrieu's CeaseFire program ($348,600) and the Mayoral Fellows Program ($233,837).

Edward Wisner Donation 2014 Proposed Grants

Aside from muddy accounting issues, unclear objectives and the lack of performance measurements with the Mayor's NOLA for Life program The Lens has been reporting, you may also recall back in December of last year I made a post about some questionable accounting issues regarding the Ceasefire program:

American Zombie: The Wisner Trust - Are there missing funds from the Ceasefire New Orleans program?

In that story I posted a video of a Wisner Trust Advisory Committee Meeting where Wisner heir Michael Peneguy questions Mayoral appointee to the Trust and city attorney Erica Beck about the nature of the entities, NOLA for Life, CeaseFire New Orleans, and the Mayoral Fellows Program.

Start at about the 3:15 mark:

Wisner Advisory Committee Meeting - Nov. 26, 2013 from Jason Berry on Vimeo.

The main issue is that the Mayor's Office seemed to be shifting money from one program to another after the money had been allocated.  Beck attempted to explain the matter by stating that the Mayoral Fellows Program was simply an "outdated code" that had been changed....I still don't understand what that means or why it was "outdated".

At one point Beck tells Peneguy he is mistakenly conflating the two programs and Peneguy responds that he has to conflate them because the Mayor's office has purposely done just that.  After the meeting, Peneguy sent a series of questions to Beck including a further explanation of the budgetary relationship between CeaseFire and the Mayoral Fellows Program:

Peneguy: According to the proposed budget presentation to the City Council, the Mayoral Fellows Program is being renamed to something else and the program may not even currently exist.  My questions in respect to the $70,000 grant listed for this program are therefore:

A. What will the new name for the program be?

Beck:  The Mayoral Fellows program is not being renamed.  The budgetary fund code, which is named Mayoral Fellows, currently includes allocations for the Mayoral Fellows and Ceasefire.  The budget code may be renamed to accurately reflect everything contained therein.

B.  What is the actual intent of the current grant?

Beck:  The $70,000 Mayoral Fellows grant, which appears on 7 of the proposed grants, will be used to fund the Mayoral Fellows program.  The Mayoral Fellows program will continue to offer opportunities to young professionals who focus on mayoral priorities and gain experience in the public sector.  (The $108,180 CeaseFire grant will be used to fund CeaseFire.)

Got that?  Good because I sure don't from that explanation.  But there's a good reason why...she isn't telling us the whole story.

What Beck doesn't mention is what name they apparently renamed the fund in the municipal code. Look at this email exchange Peneguy was referring to in the video above:

So I suppose the question is what is "Fund 379" now named in the municipal code?  Are they changing the name of the Mayoral Fellows Fund to "Wisner" in order to funnel money to other programs?

Let's go back to Charles Maldanado's NOLA for Life story on The Lens:
In May, the city solicited applications. Early in July, before the participating organizations were announced, The Lens asked Landrieu spokesman Tyler Gamble how the process worked. A review panel made up of “community, educational, and philanthropic institutions,” would recommend applicants to the city, he wrote in an email. 
“There will not be a formal announcement of the review committee meeting,” Gamble wrote in the July 11 email. After the winners were announced, Gamble said the committee met on July 14 and named the participants. 
None of the Robert Wood Johnson money is being funneled to the groups, Gamble added. But the call for applications released in June mentions the possibility of “future funding opportunities.” Gamble said that refers to the pilot program.
"Future funding opportunities" is interesting fo' true.

What else is interesting is the amount o'cash being parked in the Mayoral Fellows program from Wisner in 2014...$233,837.  From my understanding of the program, traditionally a single person is awarded the grant to work with the Mayor's Office, essentially as a paid intern, and the amount paid to the fellow in the past has been up to $70,000.  Remember former appointee to the Wisner Trust Advisory Committee (predecessor to Erica Beck) Michael Sherman was a former recipient of the Mayoral Fellows grant.  Why are they now asking for $233,837 as opposed to the usual 70k?  Are they planning on increasing the single grant to that amount?  Are they going to name multiple grantees this year?

Or....are they planning on shuffling the extra $163,837 out to a different thingie altogether?

The other issue I want to point out is that the merits of the CeaseFire program are arguably just as questionable as the Nola for Life program if not more.  The New Orleans CeaseFire program was modeled off the one incorporated by the City of Chicago.  The Department of Justice audited Chicago's CeaseFire program and found it to be largely ineffective.

DOJ Evaluation of CeaseFire from Anti-Violence Strategy

This report was published in 2009, one year before Mayor Landrieu took office.  The program was already being questioned in Chicago when we decided to mimic it here in New Orleans.  In fact, the CeaseFire program was later scrapped by Chicago.

Chicago Drops CeaseFire from Anti-Violence Strategy

CeaseFire Cuts Back As City Grant Runs Out

Curious that the Mayor's administration is questioning the effectiveness of Nola for Life but not CeaseFire.  Neither program seems to have any real level of performance evaluation built in to the grant process so there's no way to judge the effectiveness of either one.

UPDATE:  Maldonado just published this story about the approval of the grants this morning on The Lens.  I did not realize Ceasefire was under the Nola for Life "umbrella".  Regardless, it adds more credence to my 2nd point about the merits of the program.  The article also states that last year the Mayoral Fellows program received the same amount as this year, $233,837 and that a single fellow received a $40,000 grant as opposed to $70,000 I stated had traditionally been paid to the recipient.  If correct that further exacerbates the question of where the money in the program is actually going.

CORRECTION:  The Mayoral Fellows grant amount has traditionally run between about $150,000 to $180,000.  Apparently only last year was it lowered to $70,000.    

Monday, August 11, 2014

The Wisner Trust - Update on Appeal, August 11, 2014

The Fourth Circuit Court of Appeal has issued an order moving the fate of the Wisner Trust to a five-judge panel with oral arguments set for September 10th.  The judges hearing the case are Dennis R. Bagneris, Sr., Terri F. Love, Max N. Tobias, Jr., Roland L. Belsome and Joy Cossich Lobrano.

I have another Wisner post coming later on tonight (hopefully), stay tuned.  I'm having some trouble with Blogger's CMS though so bear with me. 

Thursday, August 07, 2014

DHECC - Scoreboard August 6, 2014.

Anonymous has left a new comment on your post "DHECC - Scoreboard August 5, 2014": 

Tuesday night A.S.S. report as of 8/5/14.

189 Denials issued 27 denied for causation.

6 BEL claims paid totaling $65,011.00 the avg. wind fall as they like to report is $ 10,835.12

Current overall Denials now exceed Unique Claimants paid.

2,902 Eligible with no payment.
4,517 Excluded Denials.
3,844 Causation Denials.
10,674 Other Denials 
38,590 Incomplete Denials.

60,527 Denials vs. 46,216 Unique Claimants Paid 

Hopefully the PSC or BP will show the Supreme Court their A.S.S. they had no problem selling it as they defended and presented with class notice to the so called negotiated Class. 

A.S.S. “Assumed the Settlement was Satisfactory”

tears stream
down your face
when you lose something
can not

Tuesday, August 05, 2014

DHECC - Scoreboard August 5, 2014

Anonymous has left a new comment on your post "DHECC - Today's Scoreboard": 

Monday night stats, today we can report a little good news.

59 BEL claims paid for $2,825,370.00 the avg. wind fall as they like to report is $47,887.00

4 IEL claims paid for $155,793.00 the avg. wind fall as they like to report is $ 38,948.00

38 Denials issued with 27 being denied for causation. 

Wait BP is claiming people are being paid without causation well then the same is true. People are being denied that have causation but don’t pass the test that they installed. 

I think it’s great that BP is willing to drop the math test in exchange for a causation test. My bad they don’t want to drop the math test they want another test to thin the herd. 

And for the Sodomites, sorry I mean the apologist for BP who are shedding tears I have a new stat.

When you’re feeling down and looking for some A.S.S. turn to the Failed Business Class. 

With 3,786 claims submitted you can celebrate the Claims Administrator denied 2,577 and only paid 22.

A.S.S.Assumed the Settlement was Satisfactory