DHECC - An ex parte "partey"

Isn't this quaint?  Right after a hearing Judge Carl Barbier held yesterday about Act 495, he and Magistrate Judge Sally Shushan decided to wind down at Annunciation restaurant in New Orleans' Warehouse District with none other than DHECC Claims Administrator Pat Juneau.



Yeah...you know Pat...the guy BP is asking to have removed from the settlement...the guy that perjured himself in a deposition taken under Barbier's court...the guy who allowed PSC members to expedite their own claims ahead of everyone else in the settlement.

I wonder who footed the bill on this one; I seriously doubt they went dutch.

Better yet, I wonder if it was expensed to the Claims Office.  Must be nice to be so cozy with the judge who's responsible for deciding your fate.  Fortuna has certainly shone her light upon Mr. Juneau.

Who knows?  Maybe they were just discussing the Saints' problems with the pass rush....or Mary Landrieu's keg stander...or whatever Emeril was bitching at Obama about...or where you can get cheap Viagra online.

I'm certainly unsure they never once discussed the settlement.

Hey, what was that whole fuss Freeh brought up about "unclean hands" and the mere appearance of impropriety?

Ah never mind.....I hear the fried oysters are to die for at Annunciation.  The BBQ shrimp will certainly leave one with unclean hands.  

DHECC - Sutton's motion is denied

Lionel Sutton Motion for Discovery Denied

Just like that.  Shushan did it this time.

Well....Ok......

DHECC - Samples? Possibly....Random? Not likely.

Last Friday I received a tip from an anon that the blacked-out claim on the email from PSC attorney Calvin Fayard to Christine Reitano is for a company called Fab-Worx in Hammond, LA.  This is of great importance because Fab-Worx just happens to be owned by Fayard's cousin and business partner in multiple businesses, Robert A. Maurin, III.

While I haven't been able find any direct ownership on Fayard's part with Fab-Worx, the company name has multiple filings with the Louisiana Secretary of State and I'm unable to ascertain which company with "Fab-worx" in the name may have filed a claim with the DHECC.

There is a Hammond-based Fab-Worx Holding, LLC that was registered in 2011 which would put the company's incorporation date after the Deepwater Horizon accident and nullify their ability to file a claim but then there is another filing called Fab-Worx Properties, L.l.C., that was registered from a Baton Rouge location in 2008.

I am slowly uncovering multiple business ventures between Calvin Fayard and Robert Maurin, as well as ventures between his daughter and lawyer at his firm, Caroline Fayard, and Maurin.

The fact that Fayard had this particular claim expedited calls into question Patrick Juneau's explanation that the claims listed in the email chain were being used as part of a "sampling program".  If that's the case, and this blacked-out claim is indeed Fab-Worx, then we can assume the "samples" chosen were not random.  Unless Fayard randomly plucked his cousin's claim out of a hat.

Last night I faxed the following letter to Special Master Louis Freeh asking him to please investigate this matter while cc'ing the Court, Fayard and other various legal entities:

Special Master Louis Freeh,

Hello, my name is Jason Berry and I am the investigative journalist who authors The American Zombie blog here in New Orleans, La.  As you may know, I have been writing about issues that have occurred within the Deepwater Horizon Economic Claims Center since it’s inception, particularly specific members of the attorneys appointed as class counsel to the settlement, the Plaintiff Steering Committee.  

Recently, I posted a report based on information I anonymously received in the mail that confirmed an allegation I have been researching for over a year that the PSC members had expedited their own claims ahead of other class members’ claims with the knowledge and consent of the the Claims Administrator, Patrick Juneau.  

Upon publishing the story, Mr. Juneau replied to the me via email with the following explanation:

“In response to your recent inquiry, we thought that you should be made aware of the actual facts. In the fall of 2012 the DHECC Program was fast approaching the fairness hearing and the opt-out deadline.  To avoid confusion as to who should opt-out versus who should stay in the class, it was important for the class as a whole to have a representative sample of paid claims across all of the claim types in order for them to assess which was the better path forward for them.  This could not be accomplished in the time required using the first-in/first-out (FIFO) method outlined in the Settlement Agreement, which method had been used for the summer of 2012, because many of the claims were incomplete and therefore not ready for processing.

After discussion with the Court, BP and the PSC, it was determined that a larger number of claims should be examined before the fairness hearing so that the Court, the parties, objectors and claimants could see how the settlement program was working.  As noted above, since the program had encountered problems with a lot of the claims not having complete documentation it was difficult to come up with claims that could be analyzed and determined, so a sample of sufficiently documented claims was needed.

The Claims Administrator, with the knowledge and input of the PSC and BP, asked the PSC to provide a listing of such cases and a sampling was taken of those cases.  This action had nothing to do with trying to expedite a claim for any particular attorney or party. Pursuant to that request, claims were submitted, a sampling taken and determinations were made, and those results were made available to the Court and the parties at the time of the fairness hearing.  During this same time frame some of the objectors were taking the position that in order to be able to determine whether or not to opt out, they needed to see at the time of the fairness hearing a determination on the type of claims they were handling.  We therefore took samples of claims from the several of the objectors and made determinations which were also available at the time of the fairness hearing.  It is interesting to note that over 60% of the claims that were considered were not represented by the PSC. 

The issues as they stood at that time and the above outline of facts are supported by the e-mails recently made public which were subject to confidentiality.”

I have since filed a request (enclosed) with Mr. Juneau to provide me with the following:

“In the spirit of transparency of the claims process to the public it serves, I once again implore that you please provide me with a copy of (or the court record document number to) all orders, minute entries, and transcripts of each hearing, conference and telephone call (including conference calls) between and among you, the Administrator, and/or anyone on behalf of the DHECC or CAO, the PSC, BP representatives, and most importantly the Court, for each “discussion” you referenced in your response to my story.”

I subsequently contacted representatives from BP to verify that they were aware of the expedited claims.   BP’s Head of Communications Geoff Morrell replied to Mr. Juneau’s comments with the following comment:

“BP was aware of efforts by the Claims Administrator in the Fall of 2012 to get the CSSP up and running, including how to make the claims process more efficient and, correspondingly, increase the amount of claim payments in advance of the final approval hearing in November 2012.

However, there are other aspects of your blog postings -- including the e-mails from PSC members to the Claims Administrator you present -- that BP was not aware of, but  we are concerned about them and are trying to look into them now.”

Judging from Mr. Morrell’s response, it appears BP may not have been aware that the PSC attorneys and Mr. Juneau had expedited their own claims as part of the suggested “sampling program”.

Since writing this story, another matter has been brought to my attention which I believe is great cause for concern regarding the ethical matters of the expedited claims.  I have been told that the claim Mr. Calvin Fayard had expedited in the email, with Mr. Juneau’s knowledge and consent, may have been for a construction (it may not be construction depending on which company filed the claim) company owned by Mr. Juneau’s (I made this mistake in the original letter but sent a corrective letter shortly after) Mr Fayard's cousin,  Robert A. Maurin, III.  The company’s name is called Fab-Worx  and is based in Hammond, LA.  

Here is the email which details the request to expedite the claim:

Please note, there is no mention of a “sampling process” in this email exchange nor have I been able to find any mention of this process in the Fairness Hearing transcript which occurred in November of 2012, one month after the above email exchange.

As a reporter, I do not have access to claimant information and as the claim number was blacked out in the documents I received, I have no way of verifying if the above claim was indeed for Fab-Worx.  

However, you do have that access as a Special Master and investigator of the DHECC.  You also have access to the above email and the other emails I posted in my original story which can be found at the following URL:

http://www.theamericanzombie.com/2014/03/dhecc-proof-positive-of-claims-being.html

I believe this issue is of the utmost importance in respect to your ongoing investigation into alleged improprieties within the Claims Office.  If a PSC attorney was expediting his own relative’s claims above the rest of the class claims this is a clear violation of the laws of the settlement as dictated by Judge Carl J. Barbier:

“New claims may be filed during the Transition Process until such time as the Court Supervised Claims Program is established and operational as set forth above. New claims submitted shall be processed and evaluated in the order they are received. Non-deficient claims previously pending with the GCCF shall be processed and evaluated prior to any new claims filed after the creation of the Transition Process.”

The fact that this may have been a nepotistic effort for Mr. Fayard to enrich his own relative and possibly even himself by expediting his cousin’s claim is of profound importance to the public.  I believe the matter deserves investigation on your part to ensure  the claims process is being run equitably.  I trust you will pursue this matter as vigorously as you did the Thonn claim which involved the Andry Lerner Law Firm, Lionel Sutton, and Christine Reitano.  

In order to help your investigation, I have obtained some documents from the Louisiana Secretary of State database that show joint business ventures between Mr. Calvin Fayard and his cousin, Mr. Robert A. Maurin, III.  I also have found business relationships between Calvin Faryard’s daughter and member of his law firm, Caroline Fayard, and  Mr. Maurin.  I am enclosing these business filings:

Fab-Worx business filings:

Wiliston Oil and Gas (joint venture between Robert Maurin and Calvin Fayard):

Safari Investments (joint venture between Robert Maurin and Caroline Fayard):

I trust this information will help you in your investigation into the problems occurring within the DHECC and you will pursue this matter as vigorously as you did the Andry/Lerner, Sutton, Reitano, Thonn matter.  

Thank you for your consideration and please contact me if I can be of assistance on the matter.

Sincerely,

Jason Berry, Independent, Investigative Reporter,

The American Zombie

ashedambala@gmail.com

(504) 975-3922

cc:  The Honorable Carl J. Barbier

The Honorable Sally Shushan

Kenneth A. Polite, Jr, U.S. Attorney

Charles B. Plattsmier, Office of the Disciplinary Counsel

John G. Heyburn II, Chairman, Judicial Panel on Multidistrict Litigation

Calvin C. Fayard, Esq.

I am still researching the web of companies tying the Fayards and Maurin together.

I would like to ask any anon. who may be able to identify the claim number blacked-out in the email or any anon. who may have direct information identifying which claim Fayard had expedited, please email me or make an anonymous comment with the information.

Thanks.

DHECC - A BP motion that slipped under the radar

I am falling way behind on posts because my real world jobs and responsibilities are taking precedence but there is a lot going on in the BP claims world.

By now most people have seen the motion for recusal by Kurt Mix's attorneys to remove Judge Duval from his case.  Judge Duval had filed a an economic loss claim against BP without disclosing it to the court.  This only adds to Judge Duval's woes as the latest Freeh report seems to be targeting his son David's actions within the claims office and also calls into question how David was hired at the office in the first place.  I have reason to believe Magistrate Judge Sally Shushan may have also played a role in influencing Claims Office Administrator Patrick Juneau to hire David Duval.

It's not clear if David Duval used his position at the claims office to benefit claims filed by his family's law firm but lots of rumors are swirling.

While all of this is unfolding, Freeh's autonomy and integrity are also being called into question by the Andry law firm, Christine Reitano and Lionel Sutton...the accused parties in Freeh's first report. Wednesday Andry filed a motion to have Freeh removed as Special Master with both Sutton and Reitano joining that motion today.  As I write this, I believe Judge Barbier has denied that request but I haven't seen the official denial.

BP also filed a letter to Barbier requesting much of the evidence used to levy the allegations against Andry Lerner, Reitano, and Sutton.

These are all significant issues but there is one issue I want to focus on in this post that passed completely below the radar.  One week ago today, on Jan. 17th, BP filed a Motion for Leave to Class Counsel's Comments on the Special Master's Report.  What I want to point out in this report is item number 3:

Class Counsel note that Louisiana Rule of Professional Conduct 1.5(e) does not specify the time when the client’s written consent to a fee-sharing arrangement must be obtained. See Cmts.   3. Yet a practice of obtaining client consent to a shared representation “at different times” after the commencement of the representation would defeat the purpose of Rule 1.5(e) and thus should be strongly discouraged. The obvious aim of Rule 1.5(e) is to protect the client’s right to select counsel of his choosing before legal services are provided. The practice of obtaining consent to shared representation at later or different times lends itself to abuse, as the client may not know who is handling his case until well after services have already been provided. In In re Fewell, cited by Class Counsel (Cmts.   3 n.11), the Louisiana Attorney Disciplinary Board stated that “[o]bviously, it is prudent for such writings to occur at the commencement of the representation.” No. 12-DB-048 (La. Discip. Bd. Aug. 7, 2013) at 8, available at http://www.ladb.org/new/DR/handler.document.aspx?DocID=8027. The Disciplinary Board further found that the client had been informed in advance of all lawyers who would represent him and consented to the shared representation. Written consent to the representation by all lawyers in a fee-sharing agreement should be obtained at the outset of the representation and before legal services are provided. Class Counsel further suggest that express client consent to the share of the fee that each lawyer will receive in a fee-sharing agreement may not be required. See Cmts. ¶ 3 n.11. Louisiana Rule 1.5(e)(1), however, provides that fee division is permissible only if “the client agrees in writing to the representation by all of the lawyers involved, and is advised in writing as to the share of the fee that each lawyer will receive.” Since the choice of lawyers at all times Case 2:10-md-02179-CJB-SS Document 12180-2 Filed 01/17/14 Page 3 of 10

I'm not sure if I'm interpreting this correctly but I think it may confirm an issue I've been working on for the past couple of weeks regarding one specific PSC firm, Herman, Herman & Katz.

I've been informed that Herman, Herman & Katz created "fee-sharing" agreements with multiple law firms across the Gulf Coast at the onset of the DHECC.  Allegedly, they created an arrangement where the partnered law firms would submit their client's claim information to Herman, Herman & Katz who would then file the partnered firm's claims for them, under the partnered firm's name.  I'm not sure what the advantage to the partnered firms would be other than to possibly have their claims expedited by Herman, Herman & Katz within the claims office or to perhaps ensure their claims were not rejected.

I've spoken with a couple of attorneys regarding this issue and I'm still not sure if it is illegal but as BP suggests it is highly unethical.  The partnerships could create a scenario where the partnered firms' clients may not know they are being represented by Herman, Herman & Katz and more importantly it creates a scenario where the claims office, itself, may not know Herman, Herman & Katz was involved in the submittal of the claims.

This may not seem like a huge deal at first glance but the complications that arise with the overall evolution of the DHECC claims process can get pretty hairy.

For example, remember that the seafood claims are a capped fund so any money left over in that fund will be distributed pro rata to the claimants who received claims.  Depending on the extent to which a single firm, especially a PSC firm, has partnered with other law firms around the Gulf they may have a significant, if not a majority, interest in the seafood claims submitted unbeknownst to the claims office.  As you can imagine, if this PSC firm held any influence over which seafood claims were approved or denied, they could potentially be manipulating the claims process to their advantage by ensuring their firm's claims and their partnered firms' claims were approved while other claims were denied.  When all the claims are processed they could reap a substantial benefit with the pro rata payout without the claims office even knowing the PSC firm had partnered with the other firms.

There is even the potential for collusion among the PSC firms to ensure the above scenario unfolds.

This also ties back in to my original FOIA request to the DHECC where I asked for a list of the claims filed in the first four weeks of the claims office opening.  If you recall I had received reports that the PSC firms' claims had been pushed ahead of other claims and also that at least one PSC firm may have sold access to the "formula" of the claims process before the office opened.  The possibility that a PSC firm may have sold access to partnerships on top of the shared percentages upon payout also exists.

I've also been informed that the latest Freeh report was in fact a "preliminary" report to an upcoming more comprehensive report.  I still don't know if Freeh is going to reveal the identity of the page 60 law firm...a PSC firm....but it doesn't seem likely.     

DHECC - Blood in the water

This letter was sent to Judge Barbier's court today from BP counsel:

BP Letter to Barbier, Jan. 21, 2014

BP clearly knows a lot more about possible issues with Duval, Fisher, Odom, Juneau and possibly even Judge Duval and Magistrate Judge Shushan than what the last Freeh report revealed.

Keep in mind that Odom and Duval's deposition was not provided to Andry, Sutton or Reitano upon request.  However, Fisher's was provided.

There's a lot going on right now that I'm trying to iron out but I find it curious that BP did not mention the page 60 firm in this letter.  It's clear they are still going after Juneau but they seem to be adverse to addressing the PSC firm mentioned in the first report.

More coming....

Oh...and in the meantime...per Kevin...can anyone name all the folks in this picture?

It was reportedly snapped at a ritzy wedding at the Chanticleer on Nantucket island, September 13, 2003.

Happy hour on me to the first person who can name these dapper dans.

UPDATE:  This link just came in on the comment section:

http://www.tulanelink.com/tulanelink/duval_box.htm  

DHECC : Almost a smoking gun...perhaps a mushroom cloud

Last night I spent a lot of time going through the recent filings by Christine Reitano, Lionel Sutton and the Andry Law Firm, I wanted to make sure I read between the lines, detected any nuance, etc.

There is so much to point out that I'm going to break it up over multiple posts but I want to start with what I think is a bomb that Sutton dropped on page six of his filing:

Sutton Dec. 18 filing

....read this:

Perhaps more significant, while discussing the Thonn claim, Freeh noted that he discovered a second law firm that submitted at least four claims with tax returns more favorable than trip tickets.  (The very same issue that he uses with regard to the Thonn claim to accuss Sutton, Andry and Lerner of corruption and the recommendation that each be prevented from representing claimants).  In those four claims, Freeh found that the tax returns resulted in pay outs of as much as 114% greater.  Unbelievably, Freeh did not identify the second law firm or the claimants, made no allegations of corrruption and made no recommendation that the second law firm be prevented from representing claimants.  If the second law firm improperly manipulated data to the benefit of their private clients and to the detriment of their class clients, the possibility that the law firm is a member of the Plaintiff's Steering Committee, mandates disclosure, not cover up.

Emphasis theirs

Whoop....there it is!  Whoop...there it is!

It's pretty clear Sutton knows who the page 60 firm is and he's all but telling us as much in this filing. I think he also rightfully points out that what he's being accused of is pale in comparison to what the page 60 firm may have done, especially if it's a PSC firm.

Sutton even goes so far as to use the term "cover up" to point out that Freeh had no qualms naming himself, Reitano and the Andry Firm as well as the claim, Thonn, in his accusations of misconduct. But for some reason Freeh did not identify the page 60 firm or the claims this firm allegedly manipulated.

This is huge....huge....I've said from the beginning that if a PSC firm had manipulated the claims process in any way.... selling access to the "formula", expediting their personal claims ahead of the other class claimants, or manipulating the actual claims to game the system they themselves created...Humpty Dumpty is going to come crashing down and all the King's men won't be able to put him back together again.

According to Sutton's filing it appears this is exactly what happened.

I've been digging a lot on this issue and I think I have pretty good idea of what the fraudulent "manipulation" of the claims process by the unnamed firm may have been.  It involves seafood claims, particularly shrimp, and Sutton even mentions this in the paragraph above.

It involves the process by which shrimper's assessed their losses.  There are basically two ways to assess this, tax returns and "trip tickets".  The trip tickets are basically a written record of how many pounds of shrimp a fisherman brings in to market on each fishing expedition.

According to the formula for the settlement, there are "multipliers" assigned to each settlement amount pending the pounds in shrimp each shrimper produced in the years previous to the spill.  So let's say there is a 1.5 multiplier on 49,999 lbs. of shrimp produced in a year but for 50,000 lbs. of shrimp produced in a year you get a 2.5 multiplier.  Obviously, the difference in the payout is substantial.

Now imagine a husband and wife shrimp team, or even partners in a shrimp boat enterprise, using multiple boats to fish.  Let's say the husband produced 45,000 lbs. in 2009 and the wife produced 35,000 lbs.  If the law firm shifts 5000 lbs. in shrimp tickets to the husband, the husband gets bumped up to the 2.5 multiplier while the wife still gets her 1.5 multiplier.

The numbers I'm using above are hypothetical and I'm still not sure exactly how the multipliers work in respect to pounds of shrimp.  There is also another qualifier...boat size:



Still, you can see how the system is set up to be gamed if you know the ins and outs.

Another major issue to consider is that the seafood claims are a capped fund so after all the claims are paid out, any excess funds are paid out pro rata.  That means if some of the claimants were gaming the system, per their law firms, and getting more than they deserved they were doing so at the expense of the other fisherman in the settlement.  It's not like it was a harmless scam that only affected BP's coffers.

That issue takes on even more gravitas if the law firm manipulating the claims is a PSC firm because not only did the Plantiff Steering Committee create the claims process from the beginning, they have a fiduciary duty to represent all of the claimants in the MDL (multi-district litigation) case, not just their private claimants.  Therefore, they have robbed their MDL-assigned clients in order to pay their favored, private clients, hence themselves, more money.

Aside from criminal charges and potential disbarment, both BP and the class claimants may have a massive malpractice suit against this PSC firm...if indeed it is a PSC firm that submitted the fraudulent claims.

Why would Freeh not name this firm?  Is Barbier, perhaps, protecting the firm?

What's interesting is that, with this week's legal filings, there seems to be a sudden change in the court's stonewalling towards those accused in the Freeh report.  Magistrate judge Shushan released these responses to this week's filings today:

Order re Andry Motion to Compel  

Paw Affidavit

It appears the court is now willing to provide the accused with at least some of the evidence acquired by Freeh that led to the accusations in the report.  What's even more intriguing to me is the testimony and evidence the court doesn't seem to want to reveal...I'll get to that in the next post.