Tampa, FL (July 19, 2013) - Plaintiffs Pinellas Marine Salvage, Inc., John Mavrogiannis, and Selmer M. Salvesen, on behalf of themselves and other Class Members of the Proposed Economic and Property Damages Class Action Settlement who are victims of the “Delay, Deny, Defend” strategy of Kenneth R. Feinberg, et al., have filed a 25-page Motion to Nullify Each and Every Gulf Coast Claims Facility (GCCF”) “Release and Covenant Not to Sue” with the MDL 2179 Court. The motion also requests the Court to vacate its Preliminary Approval Order [As to the Proposed Economic and Property Damages Class Action Settlement], Rec. Doc. 6418 dated May 2, 2012.
The motion explains that GCCF’s “Release and Covenant Not to Sue,” which excludes approximately 200,000 BP oil spill victims from the proposed Deepwater Horizon Class Action Settlement, and the Proposed Settlement’s “Release and Covenant Not to Sue” violate federal law, State contract law, and are contrary to public policy.
The following is an excerpt from Plaintiffs’ Motion to Nullify and Vacate.
A. The GCCF Payment Methodology
During GCCF Phase I, the GCCF implemented a claims process by which eligible claimants would receive compensation for the loss of earnings or profits, removal and clean-up costs, real or personal property damage, loss of subsistence use of natural resources and physical injury or death caused by the Spill by submitting a lesser level of documentation than would be required in later stages of the GCCF. This was known as the Emergency Advance Payment (“EAP”) claims process. The GCCF accepted EAP claims from August 23, 2010 through November 23, 2010. A claimant who received an EAP was not required to execute a release and covenant not to sue BP or any other party.
During GCCF Phase II, known as the “Interim Payment/Final Payment” claims process, the GCCF received the following three types of claims:
(a) Interim Payment Claim: An eligible claimant could elect to file an Interim Payment Claim to receive compensation for documented past losses or damages caused by the Spill for which the claimant previously had not been compensated by the BP-operated facility, the GCCF or the Real Estate Fund. A claimant seeking an Interim Payment was not required to sign a release and covenant not to sue and, therefore, was able to file future Interim Payment, Quick Pay Final Payment and Full Review Final Payment Claims. According to the protocol, a claimant was permitted to file only one Interim Payment Claim per quarter.
(b) Quick Payment Final Claim: A claimant who had received a prior EAP or Interim
Payment from the GCCF could file for a Quick Payment Final Claim and receive, without further documentation of losses caused by the Spill, a one-time final payment of $5,000 for individuals and $25,000 for businesses. Prior amounts received by the claimant from the BP-operated facility and/or the GCCF were not subtracted from this payment amount. Claimants seeking a Quick Payment were required to submit with their claim form a release and covenant not to sue in which the claimant agreed not to sue BP and all other potentially liable parties.
(c) Full Review Final Payment Claim: An eligible claimant could also file a Full Review Final Payment Claim to receive payment for all documented past damages and estimated future damages resulting from the Spill. Claimants wishing to accept a Final Payment were required to sign and submit a release and covenant not to sue in which the claimant agreed not to sue BP and all other potentially liable parties. Additionally, any Full Review Final Payment awarded to a claimant was decreased by the amount of any previous payments received from the GCCF, the BP-operated facility or the Real Estate Fund.
Claim forms for Phase II became available to the public on December 18, 2010. The GCCF began receiving Interim Payment and Final Payment Claims shortly thereafter; however, the assessment of claimant eligibility and calculation of losses for those claims did not begin until February 18, 2011. Independent Evaluation of the Gulf Coast Claims Facility, Report of Findings & Observations, BDO Consulting (June 5, 2012).
B. The “Delay, Deny, Defend” Strategy of Kenneth R. Feinberg, et al.
Pinellas Marine Salvage, Inc., et al. v. Kenneth R. Feinberg, et al. and Selmer M. Salvesen v. Kenneth R. Feinberg, et al. are the only two cases of their kind filed in any court in the country. In each case, the complaint alleges, in part, that Defendants Kenneth R. Feinberg, Feinberg Rozen, LLP, and GCCF misled Plaintiffs by employing a “Delay, Deny, Defend” strategy against them. This strategy, commonly used by unscrupulous insurance companies, is as follows: “Delay payment, starve claimant, and then offer the economically and emotionally-stressed claimant a miniscule percent of all damages to which the claimant is entitled. If the financially ruined claimant rejects the settlement offer, he or she may sue.” In sum, Plaintiffs allege that BP is responsible for the oil spill incident; Feinberg, et al. (independent contractors), via employment of their "Delay, Deny, Defend" strategy, are responsible for not compensating, and thereby financially ruining, Plaintiffs and other victims of the BP oil spill.
C. GCCF’s “Release and Covenant Not to Sue”
The ultimate objective of the “Delay, Deny, Defend” strategy of Feinberg, et al. was to obtain a signed “Release and Covenant Not to Sue” from as many BP oil spill victims as possible. Here, the GCCF Status Report as of March 07, 2012 is instructive.
The status report data indicates that the GCCF paid a total of 230,370 claimants who filed claims with the GCCF during the “Phase II” period. Of these, 195,109 were either Quick Pay or Full Review Final payments; only 35,261 were Interim payments. In sum, the GCCF forced 84.68% of the claimants to sign a release and covenant not to sue in which the claimant agreed not to sue BP and all other potentially liable parties; only 15.31% of the claimants were not required to sign a release and covenant not to sue in order to be paid. See “Gulf Coast Claims Facility Overall Program Statistics” (Status Report, Mar. 7, 2012, p. 1) (a copy is attached hereto as Exhibit C).
II. LAW AND ARGUMENT
In his Preliminary Approval Order, Judge Barbier writes, “The Court preliminarily approves the Economic and Property Damages Settlement Agreement filed with this Court on April 18, 2012 (Rec. Doc. 6276-1), as amended as set forth in Interim Class Counsel’s and BP’s Joint Supplemental Motion Related to the Economic and Property Damages Settlement, as fair, reasonable, adequate, entered in good faith, free of collusion, and within the range of possible judicial approval……The Parties engaged in a multi-month, extensive, arms-length settlement process, free of collusion, and overseen by Magistrate Judge Shushan.” (p. 29, Rec. Doc. 6418). Plaintiffs respectfully disagree.
A. GCCF’s “Release and Covenant Not to Sue” and the Proposed Settlement’s “Release and Covenant Not to Sue” Violate the Oil Pollution Act of 1990.
The proposed Deepwater Horizon Economic and Property Damages Settlement Agreement excludes:
“2.2.6. Any Natural Person or Entity who or that made a claim to the GCCF, was paid and executed a GCCF RELEASE AND COVENANT NOT TO SUE..” (Rec. Doc. 6276-1, p. 11).
The Preliminary Approval Order states,
“Those who accept payments under the Proposed Settlement are required to release their claims against BP, government oil spill liability funds, and all other Defendants in MDL 2179 (except Transocean and Halliburton)…………If preliminary approval is given, the Settlement Program will process claims and make settlement payments to class members so long as they execute an individual release.” (Rec. Doc. 6418, pp. 6-7) (Emphasis added).
The Honorable Carl J. Barbier addressed the issue of whether OPA prohibits Responsible Parties from requiring victims of an oil spill to sign a release and covenant not to sue in order to be paid for their damages. Judge Barbier stated in his Order of August 26, 2011:
“…….nothing prohibits Defendants from settling claims for economic loss. While OPA does not specifically address the use of waivers and releases by Responsible Parties, the statute also does not clearly prohibit it. In fact, as the Court has recognized in this Order, one of the goals of OPA was to allow for speedy and efficient recovery by victims of an oil spill.” See Order and Reasons [As to Motions to Dismiss the B1 Master Complaint] (Document 3830, pp. 34, 35).
Plaintiffs respectfully disagree with Judge Barbier’s novel interpretation of OPA. OPA expressly prohibits Responsible Parties from engaging in a “Delay, Deny, Defend” strategy wherein the victims of an oil spill are starved and ultimately forced to sign a release and covenant not to sue in order to receive an inadequate, miniscule payment amount for the damages they incurred as a result of the oil spill.
1. The Text of the OPA Statute
OPA is a strict liability statute. In order to recover damages, a claimant merely needs to show that his or her damages “resulted from” the oil spill. OPA provides,
“Each responsible party for a vessel or a facility from which oil is discharged, or which poses the substantial threat of a discharge of oil, into or upon the navigable waters or adjoining shorelines or the exclusive economic zone is liable for the removal costs and damages that result from such incident.” 33 U.S.C. § 2702(a).
The damages referred to in 33 U.S.C. § 2702(a) include, but are not limited to:
"Damages equal to the loss of profits or impairment of earning capacity due to the injury, destruction, or loss of real property, personal property, or natural resources, which shall be recoverable by any claimant.” 33 U.S.C. § 2702(b)(2)(E) (Emphasis added).
OPA further provides,
(a) “Payment or settlement of a claim for interim, short-term damages representing less than the full amount of damages to which the claimant ultimately may be entitled shall not preclude recovery by the claimant for damages not reflected in the paid or settled partial claim.” 33 U.S.C. § 2705(a) (Emphasis added); and
(b) “Payment of such a claim [i.e. payment to a claimant for interim, short-term damages representing less than the full amount of damages to which the claimant ultimately may be entitled] shall not foreclose a claimant’s right to recovery of all damages to which the claimant otherwise is entitled under this Act or under any other law.’’ 33 U.S.C. §§ 2715(b)(1) and (2) (Emphasis added).
"Shall" means shall. The Supreme Court has made clear that when a statute uses the word "shall," Congress has imposed a mandatory duty upon the subject of the command. See United States v. Monsanto, 491 U.S. 600, 607, 109 S.Ct. 2657, 105 L.Ed.2d 512 (1989) (by using "shall" in civil forfeiture statute, "Congress could not have chosen stronger words to express its intent that forfeiture be mandatory in cases where the statute applied"); Pierce v. Underwood, 487 U.S. 552, 569-70, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988) (Congress' use of "shall" in a housing subsidy statute constitutes "mandatory language"); Barrentine v. Arkansas-Best Freight Sys., Inc.
450 U.S. 728, 739 n. 15, 101 S.Ct. 1437, 67 L.Ed.2d 641 (1981) (same under Fair Labor Standards Act); United States v. Myers, 106 F.3d 936, 941 (10th Cir.) ("It is a basic canon of statutory construction that use of the word 'shall' [in 18 U.S.C. § 3553(f) ] indicates mandatory intent."), cert. denied, 520 U.S. 1270, 117 S.Ct. 2446, 138 L.Ed.2d 205 (1997); see also Black's Law Dictionary 1233 (5th ed. 1979) ("As used in statutes ... [shall] is generally imperative or mandatory."); Environmental Defense Ctr. v. Babbitt, 73 F.3d 867 (9th Cir.1995) (“We believe our ‘shall’-means-shall approach has been implicitly recognized by the Ninth Circuit); Forest Guardians v. Babbitt, 174 F.3d 1178 (10th Cir. 1999) (finding a strict statutory construction);
Yu v. Brown, 36 F. Supp. 2d 922 (10th Cir. 1999) (agreeing with Forest Guardians in finding a strict requirement to force agencies to act under certain circumstances).
2. The Legislative History of the OPA Statute
OPA’s legislative history is shot through with general statements indicative of congressional intent to ensure that all oil spill victims are fully compensated. 135 CONG. REC. H7959 (daily ed. Nov. 2, 1989) (statement of Rep. Tauzin) (“ensure that all victims are fully compensated”); 135 CONG. REC. H7964 (daily ed. Nov. 2, 1989) (statement of Rep. Hammerschmidt) (“ensure that all justified claims for compensation are satisfied”); 135 CONG. REC. H7969 (daily ed. Nov. 2, 1989) (statement of Rep. Dyson) (“assurances that damages arising from spills will be completely compensated”); 136 CONG. REC. H336 (daily ed. Feb. 7, 1990) (statement of Rep. Carper) (“ensure that those people or those businesses that are damaged by these spills are fairly and adequately compensated”); 136 CONG. REC. S7752 (daily ed. June 12, 1990) (statement of Sen. Mitchell) (“ensure the fullest possible compensation of oil spill victims”); S. REP. NO. 101–94, at 12 (1989), reprinted in 1990 U.S.C.C.A.N. 722, 734. (“These provisions are intended to provide compensation for a wide range of injuries and are not so narrowly focused as to prevent victims of an oil spill from receiving reasonable compensation.”); 135 CONG. REC. H7893 (daily ed. Nov. 1, 1989) (statement of Rep. Quillen) (“full, fair, and swift compensation for everyone injured by oil spills.”).
As the Supreme Court explained,
“[I]n interpreting a statute a court should always turn first to one, cardinal canon before all others. We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there.” Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253–54 (1992).
The GCCF essentially stopped processing or paying OPA-mandated interim claims from BP oil spill victims on November 23, 2010. Ending this interim claims program was in direct contravention of OPA’s mandates, as that Act only envisions a claims process for presentment of interim claims.
GCCF’s “Release and Covenant Not to Sue” violates OPA: (a) by requiring the release of
future damages as requirement for receiving a payment from the GCCF claims process, in contravention of 33 U.S.C. § 2705(a) and 33 U.S.C. §§ 2715(b)(1) and (2); and (b) Feinberg, et al. intentionally failed to provide a process for presenting, processing and paying interim, short-term damages, in contravention of 33 U.S.C. § 2705(a) and 33 U.S.C. §§ 2715(b)(1) and (2).
The text and the legislative history of the OPA statute are clear. OPA expressly prohibits Responsible Parties from engaging in a “Delay, Deny, Defend” strategy wherein the victims of an oil spill are starved and ultimately forced to sign a release and covenant not to sue in order to receive a miniscule payment amount for all damages, including future damages, they incur as a result of the oil spill.
B. GCCF’s “Release and Covenant Not to Sue” and the Proposed Settlement’s “Release and Covenant Not to Sue” Violate State Contract Law.
Releases, compromises and settlement agreements are contracts and the rules of construction applicable to all contracts are used in the interpretation of such agreements. Dore Energy Corp. v. Prospective Inv. & Trading Co. Ltd., 570 F.3d 219, 225 (5th Cir. 2009).
GCCF’s “Release and Covenant Not to Sue” violates State contract law because it:
(1) was obtained through the use of economic duress;
(2) was obtained without free consent (Claimants did not consent to the release by choice, because the only option for receiving payment required Claimants to sign a release, the terms of which they had no opportunity to negotiate.);
(3) was obtained through fraud;
(4) requires Claimants to discharge, waive and release future claims (including those resulting from gross negligence) for costs and damages (including punitive damages) that are unknown and have not yet arisen;
(5) was obtained in exchange for inadequate consideration; and
(6) has as its objective the circumvention of the OPA.
Accordingly, GCCF’s “Release and Covenant Not to Sue” is void ab initio.
C. The Severability Clause in the Proposed Settlement is Not an Adequate Solution.
The Proposed Settlement includes a Severability Clause that specifically references the unconscionable releases used by the GCCF and the Release proposed for use in the Proposed Settlement’s claims process. The Severability Clause states:
“21.1. In the event that the Release contained in Section 10 above, or the Individual Releases as to all Economic Class Members contained in Section 4 above, or any portion or provision thereof, shall for any reason be held in whole or in part to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision, or portion thereof, if the BP Parties elect in their sole discretion in writing to proceed as if such invalid, illegal, or unenforceable provision, or portion thereof, had never been included in this Agreement. Alternatively, the BP Parties, in these circumstances, may elect in writing that the entire Agreement be rendered null and void consistent with the terms described in Section 21.3 below.” (Rec. Doc 6276-1, p. 82).
An illegal condition within a contract annuls the entire agreement “only to the extent to which the agreement depends on it.” Lebouef v. Liner, 396 So.2d 376, 378 (La.App. 1st Cir. 1981); La. Civil Code Ann. Art. 1893.
Any class action settlement that incorporates an unconscionable “Release and Covenant Not to Sue” for the purpose of excluding approximately 200,000 Claimants from the settlement benefits, is not “fair, reasonable, and adequate.” However, Plaintiffs respectfully point out to this Honorable Court that merely nullifying the unconscionable releases used by the GCCF, and severing the Release proposed for use in the Proposed Settlement’s claims process, and allowing the BP Parties “to proceed as if such invalid, illegal, or unenforceable provision, or portion thereof, had never been included in this Agreement” is not an adequate solution. The Proposed Settlement would still: (a) have resulted from the B1 Master Complaint which was inexplicably
filed under admiralty law rather than the OPA (a strict liability statute); (b) be in violation of the Lexecon Rule; (c) be in violation of Lloyds Leasing Ltd. v. Bates; (c) not be “free of collusion;” (d) still not be “fair, reasonable, and adequate;” and (e) still violate the OPA. See Exhibit A and Exhibit B.
In sum, GCCF’s “Release and Covenant Not to Sue” and the Proposed Settlement's “Release and Covenant Not to Sue” violate federal law, State contract law, and are contrary to public policy. Illegally excluding approximately 200,000 Claimants from the Proposed Settlement also greatly decreases the bargaining power of the Class Members and results in an increased loss of faith in the federal judicial system.