We are sending this letter to all of our clients to give them a full update on the status of the Deepwater Horizon litigation as we head into 2015. BCA recognizes that we are rapidly approaching the five year anniversary of the April 20, 2010 Oil Spill that affected our clients.
All of the cases filed anywhere in the country have been consolidated into one court; the MDL 2179 in the Eastern District of Louisiana. That Court is charged with deciding issues that are common to all cases. The Court set out a three phase trial plan to determine those issues. The phase one trial found BP 67% liable, Transocean 30% liable and Halliburton 3% liable for the spill. The phase one trial also found BP employees acted recklessly. The phase two trial found that the Oil Spill released 4 million barrels of oil into the Gulf, but captured approximately 800,000 barrels, making them liable for 3.2 million barrels of spilled oil. The phase three trial began on January 20, 2015 and will determine how much BP owes the federal government for Clean Water Act violations, potentially up to $13 billion.
All of our cases fall into three different categories, each with a handful of sub-categories: 1) Economic & Property Damage Class members and claimants, 2) Opt-Out and Excluded Claims and 3) Medical Claims. This letter covers the most important issues for each of these types of claims. Please review the contents of this letter for information concerning your specific claim.
ECONOMIC AND PROPERTY CLASS CLAIMANTS
Three years ago, BP reached an agreement with the Plaintiff’s Steering Committee (PSC) on a settlement that would cover a large percentage of the claims against BP. (Certain categories of claims such as gaming industry claims, real estate property claims, moratorium claims, etc. were explicitly excluded from the terms of the settlement agreement.) As a part of the settlement agreement, geographic areas along the Gulf Coast Area were divided into four unique zones (A-D). The Gulf Coast Area includes all of Louisiana, Mississippi, and Alabama as well as the panhandle/west coast of Florida and southeast Texas. Any qualifying (non-excluded) claimant whose losses were suffered in one of the zones was automatically a class member unless he or she ‘opted-out’ of the class settlement.
This class settlement was preliminarily approved on May 2, 2012. It began accepting and processing claims in June 2012. The MDL Court gave final approval for the Economic and Property Damage class settlement on December 21, 2012. Numerous appeals were filed with the 5 th Circuit Court of Appeals. The 5 th Circuit affirmed the MDL Court’s ruling for final approval of the Economic and Property Damage Class. Ultimately, on December 8, 2014 the U.S. Supreme Court affirmed the Economic and Property Damage Class settlement. This means that it is the exclusive remedy for class claimants. It is being administered by the Deepwater Horizon Economic and Property Claims Center (“DHECC”).
Business Claims were put on the back burner in late 2013. BP appealed the “causation clause” within the agreement and went on a Public Relations offensive claiming it was victimized by being forced to pay fraudulent claims it had never agreed to pay. BP alleged that these so-called “fraudulent claims” were losses that were not due to the spill, even thought BP lawyers had previously agreed in that these claims would be paid as part of the class settlement. While the appeal was being reviewed by the 5th Circuit Court of Appeals, all payments of Business Economic Loss claims were frozen until a final ruling was made by the 5th Circuit. Basically, BP stopped writing checks and the settlement program ground to a halt.
BP won a separate appeal challenging how business losses would be calculated. Eventually a compromise was worked out and Policy 495 was adopted in March 2014. Policy 495 added significant hurdles for the evaluation of business claims, and significantly changed the way the revenues and expenses for business claims are evaluated. All business claims had to go back and be re-evaluated under Policy 495, resulting in even further delays in processing and payment to business claims. The Court has not issued an opinion on the changes to 495, which provides further uncertainty on the final ruling for business claim calculations.
A. Individual Claims
Individual Claims under the DHECC are difficult to process due to the strict criteria requiring numerous documents and signatures from ones employer. BCA has been able to secure payments for some of our individual claimants. However, most of our clients simply aren’t able to get the necessary documents to get paid under the settlement. If you are able to provide payroll document for 2009 and 2010, your claim is much more likely to be reviewed under the terms of the settlement. Our office has been in regular contact with our clients with individual claimants who may have eligible claims. We will continue to keep you updated on any alleged deficiencies or outcomes to your claim.
B. Seafood Claims
Most of the seafood claims have been processed by the DHECC, however approximately 500 remain pending their first review. Under the terms of the agreement, whatever money out of the $2.3 Billion dollar Seafood Settlement with BP was still left in the fund after all the claims were paid would be paid out as another round of distributions. As it has been more than two years since the Court approved this program and since some cases have still not been reviewed for any first payments, over $1 Billion dollars is sitting in the fund. The Court has agreed to release SOME of this balance, or $500 Million Dollars, to distribute to all seafood claims that has previously been approved for eligibility, starting in early 2015. There will likely still also be another payment approved by the court later next year, 2016, when the rest of the first round eligibility reviews have been completed.
However, the DHECC has also started re-reviewing all the seafood claims that have been paid previously. This means they are going back and requesting additional documentation and interviews on some of our seafood claimants. Typically these delays are because the administrators are requesting income tax records directly from the IRS to confirm the losses. We are doing our best to facilitate these responses, and will pass along specifics on your case as soon as we get them.
C. Incomplete Claims
The difficulties in reviewing the various types of claims above have resulted in a number of incomplete claims that BCA is unable to cure without additional documentation from our clients. We are in regular communication with our clients trying to assist in the cure of any documentary deficiencies in their claims. These claims aren’t even being reviewed by the settlement, instead they are simply being denied as having incomplete documentation. If you have received a notice from BCA requesting additional documents, a post card, or e-mail requesting that you contact us: Please do so immediately as the failure to do so may affect your rights under the settlement. The deadline to submit claims is June 8, 2015. If your claim is not re-submitted prior to that date or is denied after that date, then you WILL NOT receive any compensation from the DHECC.
OPT-OUT AND EXCLUDED CLAIMANTS
Non-class members include both those people who opted-out of the class settlement and those people who were excluded from it, either because of their occupation or because of where they lived and worked. Regardless of the reason, non-class members are currently at the mercy of the Court as to when their case will begin moving.
Currently the only non-class cases that are showing any sign of movement are the moratorium claims. Moratorium cases are cases for people or businesses working on, or supporting, oil rigs all over the Gulf of Mexico. The rigs were shut down due to a government issued moratorium on drilling to ensure that companies avoided future catastrophic releases after the Deepwater Horizon spill. Six moratorium test cases are set for trial in the summer of 2015. These test cases will help determine what if any compensation may be due to moratorium cases.
BCA is working on a motion to get a new committee formed in order to get these cases moving. This motion will be filed with the Court in the next few weeks and will seek to establish a plan to get non-class cases resolved as soon as possible.
MEDICAL CLASS CLAIMANTS
In addition to the economic claims, some people may have medical claims. BCA sent a letter to all of its claimants late last year advising them that we have withdrawn from representing people for their MEDICAL CLAIMS related to the spill. Our firm is no longer handling these claims due to their complexity coupled with extremely low payments from the Medical Class. BCA is working to assist claimants from other firms with the handful of claimants that we have that may qualify for more than the small recoveries listed below.
Due to the very limited nature of the necessary qualifications required in order to recover money for injuries, most of our clients will not qualify to recover under the Deepwater Horizon Medical Benefits Claims Administrator (” MBCS”). Understand that you MUST have been either a Clean-Up Worker, on a Vessel of Opportunity (“VoO”), or have lived in certain zones within a approximately half a mile of the beach in order to make a claim. Almost all of the claims that have been approved to date have recovered between $900 and $1,300 total. Due to the low values that the approved claims are recovering, we have decided it would not be financially beneficial or practical for our clients to retain attorneys to handle these medical claims. Attorney’s fees and case expenses would significantly reduce the very limited client recovery, whereas if the client completes the claim form and follows the rest of the instructions, he or she may keep 100% of what they recover from the MBCS.
If you are a member of the Medical Class and you wish to pursue a claim with the MBCS, you will need to submit your own claim prior to February 12, 2015. Please do not list BCA as your attorneys on any paperwork that you submit to the MBCS.
Please visit www.deepwaterhorizonmedicalsettlement.com for more information. The website includes the types of injuries that you can get compensated for and more details on who is part of the class settlement. If you are unable to go online please contact the Medical Benefits Claims Administrator’s Office at: 1-(877)-545-5111 or DEEPWATER HORIZON MEDICAL BENEFITS CLAIMS ADMINISTRATOR, 935 GRAVIER ST. SUITE 1400 NEW ORLEANS, LA 70112. You can also e-mail them at firstname.lastname@example.org.
We can be reached toll-free at (855) 252-4670. We at BCA have been working very hard in trying to get your claims resolved and we will continue to do so. We share your frustration at the length of time that has passed and all of the delays caused by BP and the Court system. We ask for your continued patience and understanding, while at the same time encourage you to contact your local, state and federal representatives and tell them how you feel about how bad the Class Settlements are for most of the victims and the frustrations associated with five years of delays perpetrated by BP. I am sure that most of you have plenty to say about how this case has been handled and the delays caused by BP. If you have any other questions, please do not hesitate to call. Thank you.