TAMPA, Fla. (August 29, 2012) - The deadline for BP oil spill victims ("Class Members") to opt-out of the Deepwater Horizon Economic and Property Damages Class Action Settlement and the Deepwater Horizon Medical Benefits Class Action Settlement is November 1, 2012.
It is important to note that these class action settlements do not actually provide for funds to be distributed to Class Members; they merely give BP oil spill victims the right to submit, yet again, a claim foreconomic and property damages and medical benefits.
Deepwater Horizon Economic and Property Damage
The Only Beneficiaries Are BP and the Plaintiffs' Steering Committee
TAMPA, Fla. (August 29, 2012) - The deadline for BP oil spill victims ("Class Members") to opt-out of the Deepwater Horizon Economic and Property Damages Class Action Settlement and the Deepwater Horizon Medical Benefits Class Action Settlement is November 1, 2012.
It is important to note that these class action settlements do not actually provide for funds to be distributed to Class Members; they merely give BP oil spill victims the right to submit, yet again, a claim for economic and property damages and medical benefits.
"BP has estimated the cost of the proposed settlement to be approximately $7.8 billion." Judge Barbier's admonition in his Order of August 26, 2011 is instructive: "The long term effects [of the BP oil spill] on the environment and fisheries may not be known for many years." Since, as Judge Barbier points out, the long term effects, and therefore the associated costs, of the BP oil spill on the environment and fisheries may not be known for many years, BP can only estimate its cost by multiplying the approximate number of claimants by an average amount BP is willing to pay each claimant. The average amount BP proposes to pay each claimant under the Proposed Settlements is not difficult to surmise: "The BP Parties may appeal a final compensation award determination only where the compensation amount determined by the settlement program is in excess of $25,000." (p. 58, Rec. Doc. 6276-1).
Class Members who do not opt-out will be at the complete mercy of BP, Garden City Group, Inc., BrownGreer, PLC, and PricewaterhouseCoopers, LLP. Under Feinberg/GCCF, and now under Juneau/DHCC, this means payment will be denied to approximately 61.46% of the claimants who file claims; the average total amount that will be paid per claimant will be $27,466.47
Who Should Opt-Out
All Class Members, not represented by legal counsel, who have not been fully compensated for damages resulting from the BP oil spill should opt-out. This includes any natural person or entity who or that made a claim to GCCF and was illegally forced to execute a "Release and Covenant Not to Sue" in order to receive a miniscule payment.
Each natural person or entity who or that has suffered damages resulting from the BP oil spill of April, 2010 has the legal right to, and should immediately seek, competent legal counsel to directly represent his, her, or its interests. BP oil spill victims must understand that the Plaintiffs' Steering Committee, attorneys who unscrupulously signed-up hundreds or even thousands of class members for class action lawsuits immediately after the oil spill incident, and attorneys who represent industry coalitions and organizations do not represent their individual interests.
Given that the damages suffered by the vast majority of Class Members as a result of the BP oil spill of April, 2010 are potentially so great and will be on-going, class action lawsuits should not be necessary to permit effective litigation of these claims. Here, where the amount of damages suffered by the individual is so great, the filing of an individual lawsuit should be economically feasible and in the best interests of the plaintiff.
When Should Class Members Opt-Out
All Class Members who have not been fully compensated for damages resulting from the BP oil spill by September 1, 2012 should opt-out. This will allow sufficient time for Class Members to learn: (a) the legal rights provided to BP oil spill victims under the Oil Pollution Act of 1990 ("OPA"); (b) why BP oil spill victims should not be required to prematurely waive their right to sue in exchange for a miniscule final settlement payment; and (c) why class actions may not be in the best interests of BP oil spill victims.
Opting-out would be an excellent Labor Day weekend activity for all BP oil spill victims. A properly executed Opt-Out Notice for each of the two proposed class action settlements should be mailed by Class Members on September 4, 2012.
How to Opt-Out
Not surprisingly, the Class Action Settlement Notices do not provide Class Members with an "Opt-Out" form. Furthermore, the information required to properly opt-out of the Medical Benefits Class Action Settlement, and the mailing address to where the opt-out notice must be sent, differs from the information required and the mailing address to properly opt-out of the Economic and Property Damages Class Action Settlement.
Why Class Members Should Opt-Out
The standard for reviewing a proposed settlement of a class action is whether the proposed settlement is "fair, reasonable, and adequate" and whether it has been entered into without collusion between the parties.
The United States District Court for the Eastern District of Louisiana defines "collusion" as the "lawful means for the accomplishment of an unlawful purpose" and as a "secret understanding between two or more persons prejudicial to another, or a secret understanding to appear as adversaries, though in agreement." Collusion does not require fraudulent conduct. See Dynamic Marine Consortium, SA v. Latini, MV, 179 F.3d 278 (5th Cir. 1999)
These Class Action Settlements Are Not Fair, Reasonable, and Adequate
Kenneth R. Feinberg, the former administrator of the now defunct Gulf Coast Claims Facility ("GCCF"), during widely-reported town hall meetings organized to promote GCCF, repeatedly told victims of the BP oil spill that they did not need to hire a lawyer. Feinberg explained, "The litigation route in court will mean uncertainty, years of delay and a big cut for the lawyers....I take the position, if I don't find you eligible, no court will find you eligible....I am determined to come up with a system that will be more generous, more beneficial, than if you go and file a lawsuit."
The GCCF has been replaced by the Deepwater Horizon Claims Center ("DHCC"). Patrick Juneau, the court-appointed administrator of the DHCC, repeatedly tells victims of the BP oil spill, "If you're in doubt, file the claim.....We'll do the homework for you." Juneau, with a very slight change in rhetoric, is obviously using the same "Delay, Deny, Defend" playbook which proved to be so successful for Feinberg.
The DHCC and the GCCF are virtually identical. Under the GCCF, the evaluation and processing of claims were performed by Garden City Group, Inc., BrownGreer, PLC, and PricewaterhouseCoopers, LLP. Under the DHCC, the evaluation and processing of claims shall continue to be performed by Garden City Group, Inc., BrownGreer, PLC, and PricewaterhouseCoopers, LLP. Accordingly, although Patrick Juneau has replaced Feinberg, there is no reason to believe that the percentage of claimants denied payment and the average total amount paid per claimant will change under the DHCC.
Recently Feinberg said, "I think it's a tribute to the GCCF that all the people we used have been retained. I take great satisfaction in that fact." It is unlikely that Class Members will share Feinberg's satisfaction.
Here is a perfect example of a "secret understanding between two or more persons" (BP, the PSC, the GCCF, and the DHCC) which is "prejudicial to another" (the Class Members).
The Miniscule Amount GCCF Paid to BP Oil Spill Victims
GCCF Overall Program Statistics
(Status Report as of March 7, 2012)
Total Amount Paid = $6,079,922,450.47
Total Number of Paid Claimants = 221,358
Average Total Amount Paid Per Claimant = $27,466.47
The GCCF data indicates that a total of 574,379 unique claimants filed claims with the GCCF during the period from approximately August 23, 2010 to March 7, 2012. The GCCF paid only 221,358 of these Claimants. In sum, the GCCF denied payment to approximately 61.46% of the claimants who filed claims.
These Class Action Settlements Provide for a Refund of Approximately $6 Billion to BP While Granting Excessive Compensation to the PSC and Other Counsel Performing "Common Benefit" Work
(1) The Refund to BP
Deepwater Horizon Oil Spill Trust $20.0 Billion
Approximate Amount Paid to Claimants by GCCF $ 6.2 Billion
Cost of the Proposed Settlement $ 7.8 Billion
Amount to be Refunded to BP $ 6.0 Billion
(2) The Excessive Compensation to the PSC, et al.
The PSC and other counsel allegedly performing common benefit work in MDL 2179 are not double-dipping; they are triple-dipping. The known sources of compensation received by attorneys allegedly doing common benefit work on behalf of BP oil spill victims in MDL 2179 are:
(a) Six percent (6%) of the gross monetary settlements, judgments or other payments made on or after December 30, 2011 through June 3, 2012 to any other plaintiff or claimant-in-limitation. (p. 3, Rec. Doc. 5274);
N.B. - The Donovan Law Group received a Final Payment Offer from GCCF on behalf of a client. This offer, dated June 3, 2012 and postmarked June 8, 2012, was received on June 11, 2012. This offer, along with probably hundreds of other offers made to Claimants by GCCF, is dated one day before Claimants are no longer required to pay six percent (6%) of the gross monetary settlement they receive to the MDL 2179 common benefit fund. June 3, 2012 was a Sunday. These offers were dated June 3rd in order to ensure that the PSC received the maximum amount of payment from the 6% hold-back provision.
(b) BP has agreed to pay any award for common benefit and/or Rule 23(h) attorneys' fees, as determined by the Court, up to $600 million. (p. 10, Rec. Doc. 6418);
(c) Many attorneys doing common benefit work have their own clients and have also received or will also receive a fee directly from them. (N.B. - On June 15, 2012, the MDL 2179 Court ordered that "contingent fee arrangements for all attorneys representing claimants/plaintiffs that settle claims through either or both of the Settlements will be capped at 25% plus reasonable costs.") (Rec. Doc. 6684); and
(d) Co-counsel fees received by member firms of the PSC for serving as co-counsel to non-member firms of the PSC. For example, on March 13, 2012, The Donovan Law Group received an unsolicited mass email from a member firm of the PSC. The email stated, in pertinent part, "Co-Counsel Opportunity for BP Oil Spill Cases: News of the recent BP Settlement has caused many individuals and businesses along the Gulf Coast to contemplate either filing a new claim or amending a claim that has already been submitted. If you receive inquiries of this nature we would like you to consider a co-counsel relationship with our firm. Even if someone has already filed a claim it is advisable to retain legal counsel to analyze the impact of this settlement on claimants and maximize recovery. If you receive inquiries and are interested in co-counseling with us on the BP claims, please email..."