Business Services - Frequently Asked Questions
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RECENTLY ASKED BP QUESTIONS
What does the transition to Class Action mean for my claim?
It depends on the type of case. The class action settlement was preliminarily approved. The hearing on final acceptance is scheduled for November 8, 2012. We also anticipate appellate challenges to this settlement, so we can’t presume that it will ultimately be approved. However, the class settlement will begin paying claimants (in return for a final release) before final approval. This means there will not be a delay in payments to those who qualify.
That aside, certain types of claims are now likely to benefit from a more favorable method of predicting the losses suffered by a claimant in the past and going forward so we would anticipate better final offers than in the past. The new class action settlement is very specific to the type of business, the geographic location and close proximity to the Gulf, and the supporting documentation of a loss. Many types of claims are excluded because they do not fit the requirements of this new proposal. Our website fully identifies all of the types of included and excluded claims.
I have a claim with the GCCF what do I need to do now?
The MDL Court has recently ordered that the GCCF be shut down. There is a transition team wrapping up the loose ends of claims that were in the process if being concluded before the transition orders in March. The new process will have copies of all of the documentation previously remitted to the GCCF.
Can I still file a claim with the GCCF?
No. The GCCF claims process is now being transferred to a new settlement process.
If not who can I file a claim with?
New filings and updated information will all go to a new structure with new oversight. The final details have not been announced or approved by the court in charge of the oversight of the process.
Who are the people that will administer the new Class action?
The new class settlement will be managed by Pat Juneau, who replaces Ken Feinberg. Much of the previous infrastructure of the GCCF team will stay in place.
What are my rights in this settlement?
It depends first on whether you are even a qualifying claimant. This is a limited class action and there are many different qualifying criteria. If you are eligible, the process will look at your claim and supporting documentation and make an offer, not dissimilar to the way the GCCF handled claims review. They are to utilize methodologies of loss computation that should be somewhat more favorable to qualifying claimants. Unfortunately, there is no way of really knowing what the claims handlers will think of the submission in advance and once the class deadlines passes, there is no way out of the program. We believe that it would be unsound to limit recovery to the class process without knowing in advance what the offer will be and as a consequence will encourage our clients to opt out before any deadlines run. We are hopeful that offers can be made in the interim so that clients can make an educated decision about which route to go, but at the end of the day, it is best to protect the right to file suit.
What claim types will be paid under the Class Action?
The class proposal is a 1000 page document with numerous charts and graphs setting out all of the various criteria for eligibility. It includes geographic requirements, documentary requirements, type of vocation or business codes, and other limitations too numerous to identify here. Again, we commend any interested party to review the full settlement proposal and our website for more information.
What should I consider when making the decision to opt in or out or the Class Action?
This is a very difficult issue. Our recommendation at this time is to encourage all clients to opt out if they do not have an offer from the new process before the deadline date. Claimants who rely exclusively on a recovery from the class have no assurance of their recovery amount and are required to waive their right to a trial in the event the class proposal is determined to be unsatisfactory.
What should I do if I move or change contact information i.e. Phone and e-mail?
Please keep us notified of any changes in contact information and we will keep any settlement trusts or administrators duly informed. Our firm has very sophisticated electronic capabilities which link to the settlement and processing systems utilized by the various trusts.
What should I do if it becomes necessary to close my business?
We hope that everyone with a business can find ways to keep the doors open during these very financially stressful times. However, we realize that some companies were hit so hard or had so little investment capital set aside for emergencies that they just can’t make it. For those businesses that close, we will be seeking not only a measure of damages for past losses, but for the full value of the business.
Can I claim capital reinvestment while trying to save my business?
All issues of capital investment, depreciation, taxation, and the like need to be addressed between the business and a tax advisor.
If I am forced to take bankruptcy how does that come into my claim?
Bankruptcy issues involve numerous contingencies. It depends on the type of bankruptcy, what the court trustee allows, etc. For any company that is compelled to seek such protection, we need to know who the counsel for the matter is and work with him or her to best protect your interests and ensure a full recovery of your claims associated to the oil spill.
Do I need a Bankruptcy Lawyer?
We strongly recommend that you obtain legal counsel in any bankruptcy filing in order to best protect your assets from creditors and protect the corpus of your claims associated to the oil spill. If you do not know of such counsel in your area, we suggest you contact the nearest county or parish bar association and request the contact information for a board certified or other well qualified bankruptcy specialist.
I want a Lawyer but cannot afford to hire one. What can I do?
If your company needs to obtain the protections of bankruptcy law and you can ill afford one at this time, we would ask that you talk to one first and then have them contact us for the possibility of deferring payment until you obtain a recovery from BP or the trusts.
I am represented by a lawyer what further action should I take?
If you have bankruptcy counsel, be sure to have them contact an attorney with our firm involved in this case to make sure we stay in communication over the developments with the bankruptcy and the your case.
Are any types of payments are available now?
The only payments now being made available are the remaining final offers coming from the now defunct GCCF. We are cautiously optimistic that the new procedures will be in place soon on the class proposal and the transition to a new OPA presentment program.
Are Physical Injury claims covered under the Class Action?
At the present time, generally yes. The good news is that the proposed settlement will include components for a small financial recovery and long term free medical exams to monitor the health of those exposed to the oil and dispersants utilized in the cleanup. Unfortunately, the present class plan excludes individuals with traumatic injuries or injuries sustained aboard the Deepwater Horizon rig.
Can I change anything in a release that is presented to me?
No. The releases are standardized and not subject to modification. If there is something that absolutely has to be changed for some reason please let us know and we will do what we can to perfect the modifications.
Is my claim settlement taxable as income?
Although our firm does not give tax advice, different state and federal laws interpret various types of settlements as taxable or not. We would commend all claimants to consult with their tax advisor regarding these possibilities.
What if the required documents are not available? Can I still make a claim? What can I Do?
While the GCCF and now the new plan require documentation to make a claim, the reality is that for many reasons claimants do not have some or all of the documents to fully calculate and prove a compensable loss. You can file a claim for anything you can prove to be a loss. The easiest way to do this is with appropriate documentation but if you don’t have it, we will in many circumstances still ultimately be able to help you achieve some resolution to your claim.
What kind of loss will be paid under the Class action plan?
The class action plan is basically set up on two platforms. One is for payment to the businesses and individuals categorized as property or economic loss claimants. The proposal for calculating these losses and the qualifications placed on the class will restrict eligibility. This does not preclude your ability to continue to proceed outside the class through resolution with BP through OPA demands similar to the GCCF process or by filing suit against BP.
The second major category of settlement classes deals with people exposed to the oil and solvents used in the cleanup.
What kind of deductions will be taken from my claim payment?
The deductions for any payments come from several areas. The court has previously approved a process of withholding 6% of settlements for payment to class counsel for the work done on behalf of all claimants in the MDL lawsuit. This may or may not be released back if it is withheld in any given case. There has been much debate over the legality of these charges which are not yet resolved. In addition to this potential charge, claimants incur the charges of claim development. This is the contingency fee agreed to with the firms helping with our case, and in some instances the costs associated to having accounting personnel calculate your losses. In many circumstances we have been successful in having the GCCF reimburse those costs as part of the resolution of the claim. The litigation costs of the main federal lawsuit have been borne by our firm and other firms and we are not passing those costs on to any clients.
What is the 6% hold back and to whom does it apply?
The 6% holdback was ordered recently by Judge Barbier in overseeing the MDL litigation. It is to be charged off of the attorneys fees in cases as well as accounting fee reimbursements and may ultimately be refunded.
What does it mean when I sign a release?
The release required as a condition of settlement essentially states that the claimant is accepting the amount offered in full settlement of all potential causes of action against all parties due to any type of loss or injury from the spill. These are very broad releases which provide BP with finality of the claim.
Who is eligible to make a claim?
There are several laws which may provide some remedy to a claimant but the main one is the Oil Pollution Act, passed by Congress in 1990. It basically allows anyone with an injury or financial loss due to the oil spill to seek recovery for their losses. It does not set out what is required to prove the case and does not provide any geographic or other restrictions on the ability to make a claim.
Do I need to be a US Citizen to make a claim?
No. Many claimants are not US Citizens.
How much does it cost to file a claim?
The present claims process does not require a filing fee. We do pay one for the filing of the lawsuit if the claims process is not successful, which is usually around $300, which is advanced by the firm until recovery.
What do I need to prove my claim?
The best proof is good documentation. The more documentation, the easier it is to prove your claim. If it is a wage loss claim, records of past years of employment compared to employment since the spill. If a business owner, records of revenue streams before and after the spill. There are many variables to consider, so again, the more the documentation the better. The OPA does not require any specific amount of documentation to assert a claim, however.
What is a moratorium claim?
These are claims that describe losses associated with the decision to shut down new drilling work in the Gulf of Mexico immediately after the explosion aboard the Deepwater Horizon. BP has taken the general position that losses due to the temporary shutdown of drilling work in the Gulf are not their responsibility. We disagree and believe that these claims have a good chance of succeeding in court.
When will moratorium claims be processed?
At this time they are excluded from any class resolution procedures. We presently recommend that such candidates fill final presentment claims through our firm with BP and then file suit.
Will the class Action cover a moratorium claim?
No. They are expressly excluded.
What will be required to recover loss from a moratorium claim?
At this time the only clear potential remedy is to file suit. We have a number of such claims and believe they will ultimately prevail.
How will I receive my payment?
Any settlement payments are made to our trust account for disbursement consistent with the terms of the client contract. Typically the net proceeds are mailed but checks can be picked up at our home office or wire transfers can be arranged through our accounting department.
Where will my payment come from?
In the past settlement checks can from the GCCF trust account. We anticipate a similar trust account to be set up for future payments made from any trust. Ultimately, claims made directly against BP in suit will likely be paid directly by BP.
What is Real Property?
Real property can be real estate or other physical possessions.
What qualifies as lost Earnings?
There is no real definition of a qualifying loss. The GCCF made up their own criteria but we believe that the law does not have any particular definition and it is simply enough to prove that a claimant more likely than not sustained some loss due to the spill. How much evidence is actually needed is subject to some conjecture but could arguably be just the testimony of the claimant. The calculation for a loss is the ability to show that there was some reduction in earnings subsequent to the spill as compared to earnings history before the spill.
What is the definition of lost profits?
Lost profits can be measured several ways. It is basically what the claimant believes to have been financial revenues likely to have been achieved but was not due to some impact from the oil spill. This can be actual reductions in earnings or profits from the spill, lack of anticipated growth in a business or other earnings, etc.
Can I claim reinvestment in my company before closure as a loss?
We believe that all losses, including reinvestment losses, are likely to be recoverable.
Does decline in market value of real property qualify as a loss?
We believe that it does. The GCCF disagreed. We are recommending proceeding with such claims in many circumstances.
What is Loss of Subsistence Use of a Natural Resource?
This essentially refers to the inability to use and enjoy food from the Gulf as a result of the spill. Many families in the fishing and shrimping industries were heavily reliant on supplementing their food supplies with their commercial catches.
Are casino workers covered by the Class Action?
The class proposal specifically excludes the casino industry. Whether these exclusions continue, or become restricted to the casinos only, remains to be seen. We believe many claimants have provable losses in the casino industry and recommend they proceed with the claims process.
What must I do if my claim does not fit into the class action?
Ultimately BP is required to have a claims process system for all types of claims, whether subject to a class resolution or not. This is required pursuant to the Oil Pollution Act. Claimants can make their demands to the designated representative of BP and if no satisfactory offer is made within 90 days, they are allowed to file suit for their damages.
What is the MDL and what effect does it have on my claim?
The MDL is the federal court proceeding in New Orleans assigned the task of consolidating all of the lawsuits against parties associated to the oil spill for uniform discovery of litigation issues. Once those are completed, the court can entertain individual trials in cases filed there or remand cases filed elsewhere back to their forum courts for further prosecution. We believe that most of the common discovery has been completed and the timing is right to start requesting trial dates for claimants.
Can I appeal a payment by the Class Action once I have opted in?
The present class settlement allows for an appeal under restrictions, but we recommend that clients retain their legal options with the ability to file suit if they are not happy with the settlement process.
Can I make a claim to the Coast Guard, and under what conditions?
There is a backdoor claims process with the Coast Guard, but we are not aware of anyone successfully resolving a claim there.
We hope that this FAQ from our clients help address many of the questions we are getting from all of you. Unfortunately, there is a great deal of misinformation in the press and elsewhere regarding the present status of the oil spill claims process and the litigation and we are doing our best to keep our clients duly informed of what is really going on.
These types of misinformation campaigns are regrettably common in litigation impacting so many people because of the reputational damage incurred by the responsible parties and their desire to utilize public forums to put their best foot forward so to speak. Often these are greatly exaggerated from the real facts. Our firm has been at the forefront of these issues since the beginning of this tragedy and will continue to do our very best to keep our clients, the media, and the government informed as to what is really going on.
We appreciate your continued patience in dealing with all of the frustrations associated with the oil spill aftermath and the hoops that BP has continually tried to force us all to jump through. We have had many years of dealings with BP and similar irresponsible companies and we almost always ultimately prevail….so hang in there.
We also recommend you routinely reference our client website (www.bcaoilspillclients.com) along with out main website dedicated to the oil spill, www.gulfcoastdisaster.com, to stay abreast of developments.
Brent Coon & Associates