Thats My Name Too - 08 September 2010 11:08 AM
The Oil Pollution Act puts the President into the claims process. http://stephensstephens.com/2010/05/file-bp-oil-pollution-act-claims-first/
This law firm’s blog says the proper procedure is to file a claim first, then if not satisfied, there is still a court remedy. So, a settlement that allows for future payment for future unpredictable damage, such as destruction of plants or small sea creatures that are fed upon by fish used in commerce, resulting in longterm reduction in the commercially available fish, makes perfect sense and avoids later court time.
Neither Stephens and Stephens nor Kennerly’s opinion in that link mention that BP is prevented from closing claims for specific acts as Jindal wishes them to be. For example, if a fisherman lost all his 2010 income as result of the spill nothing now prevents BP (in this case their government appointed surrogate Feinberg) from settling with the fisherman and agreeing to a clause that would prevent the fisherman from entering in a lawsuit relating to 2010 income losses. Jindal is saying BP should now pay for the guy’s 2010 losses and pay again latter if a new suit decides BP should have paid more for the same income latter.
Basically Jindal is trying to preserve the claimant for some odd reason. Perhaps he recognizes as does Stephens that present law reduces the number of claimants that will be available for class action suites.
Stephens says:
The government can influence the types of claims BP pays by paying those legitimate claims that BP fails to pay out of the Fund and seeking recovery from BP (plus attorney’s fees) in an action by the Attorney General.
There are risks to following the claims process. BP will be able to simply pay the most compelling claims leaving the less compelling claims for pursuit in the courts. This may undercut the ability of plaintiffs to obtain a significant punitive damage award against BP.
The ability to present interim claims, that represent less than the full claim, allows the parties to resolve the most significant claims and leave the more complex to the courts. This is not the way claims are typically managed in an individual action or a class action. Usually a settlement resolves all of the liability associated with a matter and leads to the exchange of releases precluding further court action.
The claims process envisioned under the OPA appears to manage the more difficult problems in the individual or class action matter. It attempts to provide claimants with an opportunity to settle a portion of the claim without resolving the entire claim. It also provides a claimant with at least two avenues to seek payment of each piece of its claim, first against the designated responsible party and then against the Fund. This can all occur outside the formal litigation process. While the claimant is awaiting resolution of its claim, it can obtain a loan from the Fund.
By encouraging interim claims and settlements, influenced if not monitored by the government and providing claimants with low interest loans, the OPA also attempts to manage a third weakness in the individual and class action lawsuit process which is attorney’s fees.
Jindal and Caldwell it seems to me seeks to alter the provisions of the OPA in a manner that the claimants never disappear. The OPA as these guys see it will allow the settlement of a lot of claims very quickly. Jindal and Caldwell are trying to stop that. They want all the claims available to them in any class action they wish to pursue sponsored by the state.
