In a sweeping ruling late Tuesday afternoon, US District Court Judge Carl J. Barbier issued a ruling that Kenneth Feinberg and The Gulf Coast Claims Facility, which has been tasked to process all claims related to the BP oil spill in the Gulf, are not independent of BP as has been asserted repeatedly by Mr. Feinberg, BP, and the Obama administration. The ruling casts in doubt a large number of claims that have been signed off on by claimants as final settlements in which they agreed not to pursue further litigation in exchange for quick payments. Many of those who have agreed to these final settlements have lost their jobs, homes, and security as a result of the BP blowout.
Stuart Smith, a New Orleans attorney who is one of the founding partners of Smith/Stag a law firm focusing on environmental law, summarized the court's decision.
SS: There is a rule of law that courts are free to prohibit false or misleading speech by a defendant and may prohibit a defendant from using speech that is coercive or prone to abuse. Judge Barbier in finding that the Gulf Coast Claims Facility (GCCF) run by Mr. Feinberg was an arm of British Petroleum and not in fact independent allowed him to apply this rule of law. Judge Barbier prohibited the Gulf Coast Claims Facility from continuing to use false and misleading speech. The judge required that the GCCF, Mr. Feinberg and his law firm to refrain from contacting claimants they know are represented by lawyers, refrain from referring to the GCCF, Kenneth Feinberg, or Feinberg/Rozen as neutral or completely independent from BP. The ruling also requires that potential victims be advised that they have a right to consult with an attorney and to refrain from giving legal advice to unrepresented claimants that they should not hire a lawyer and advise the claimants that the pro-bono attorney and community representatives retained to assist GCCF claimants are being compensated directly or indirectly by BP. In my opinion this order casts doubt as to the validity of the eighty thousand final releases obtained so far by the GCCF.
Here is the court's ruling as it was written:
IT IS ORDERED that Defendant BP, through its agents Ken Feinberg, Feinberg Rozen LLP, and the Gulf Coast Claims Facility, and any of their representatives, in any of their oral or written communications4 with claimants, shall:
(1) Refrain from contacting directly any claimant that they know or reasonably should know
is represented by counsel, whether or not said claimant has filed a lawsuit or formal claim;
(2) Refrain from referring to the GCCF, Ken Feinberg, or Feinberg Rozen, LLP (or their
representatives), as "neutral" or completely "independent" from BP. It should be clearly disclosed
in all communications, whether written or oral, that said parties are acting for and on behalf of BP
in fulfilling its statutory obligations as the "responsible party" under the Oil Pollution Act of 1990.
(3) Begin any communication with a putative class member with the statement that the
individual has a right to consult with an attorney of his/her own choosing prior to accepting any
settlement or signing a release of legal rights.
(4) Refrain from giving or purporting to give legal advice to unrepresented claimants,
including advising that claimants should not hire a lawyer.
(5) Fully disclose to claimants their options under OPA if they do not accept a final
payment, including filing a claim in the pending MDL 2179 litigation.
(6) Advise claimants that the "pro bono" attorneys and "community representatives"
retained to assist GCCF claimants are being compensated directly or indirectly by BP.
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