Wednesday, November 24, 2010


The final protocol for claims related to the BP oil spill was released today by the Gulf Coast Claims Facility. Victims will choose one of the two options: 1) accept a final lump sum payment for all present and future damage in exchange for a full and final release surrendering their right to sue or 2) continue receiving quarterly interim payments based upon past damage for the that three months. If the last option is chosen, Feinburg specifically stated, “there is no guarantee that, in the future, a lump sum Final Payment will be as generous as it will be currently.” There will be an non-binding appeals process for those claimants who receive an offer of total compensation in excess of $250,000, but believe it inadequate. All claimants will be able to appeal their GCCF award to the Coast Guard and the Federal Courts. A decision regarding which option to choose should be made on a case by case basis. If you need any assistance regarding which option may be best suited for your personal and/or business claim, please contact Knox Boteler in our office.

Monday, November 15, 2010

Oil Spill Update for Business Owners

BP Oil Spill/Gulf Coast Claims Facility
update by Knox Boteler, Attorney at Law

By now, many Gulf Coast business owners have proceeded with or contemplated the filing of a claim for loss of business revenue with the Gulf Coast Claims Facility. Though the Feinburg Fund is in its third month of operation and the first of many deadlines are facing claimants later this month, no one is still sure what criteria is being used when administering a claim. While there have been repeated requests by our firm and others for additional information regarding the handling of claims, no response has been provided from the administrators. That said, please consider the following when making a claim against the “responsible parties.” Frankly, there are several pitfalls in the claims process that has not been communicated to the public:

Individuals and businesses may submit a claim for Emergency Advance Payment until November 23, 2010. The evaluation of an Emergency Advance Payment - up to six (6) months of losses - will, supposedly, be reviewed under a less rigorous standard than will be used for the Final Payment claim. Claimants can accept Emergency Advance Payments and reject the final payment if they find it to be unsatisfactory.

The Gulf Coast Claims Facility declared all claimants must apply for final payment of long term damages by August 23, 2013. However, we would encourage everyone to file ninety (90) days before this deadline because of concerns we have with the legal application of the Oil Pollution Act (OPA). Should you wait less than ninety (90) days from the deadline to bring a claim, you may be barred from filing a lawsuit.

Claimants accepting a final payment of long-term damages require the claimant to waive their right to sue BP or any of the parties responsible for the Gulf of Mexico spill.

Geographic proximity to the spill will not in itself prevent a legitimate claim from being processed. When submitting your claim, it may be beneficial for you to include a google earth map showing your business location. Too, it may be of benefit to include in your claim a brief description of your practice and the customers you serve.

At this point, DO NOT FILE FINAL CLAIMS. The claims process for final payments has not yet been established. Those persons and entities that have filed such claims will have no choice but to wait until those parameters have been set.

If your Emergency Advance Payment has been denied, you need to file a final claim before filing a lawsuit. It is not known whether a denial of an Emergency Advance Payment is a “denial” as defined by OPA.

A claim needs to state a specific dollar amount to meet OPA requirements. Also, be sure to include a claim not just for your business losses, but, also, the cost for assessing damages (accountant, appraiser, etc.). In addition, include an amount for PUNITIVE DAMAGES. While Feinburg has repeatedly stated the Fund will not consider punitive damages, it is necessary to include such a damage in order to prevent a waiver of such claim if a lawsuit has to be brought.

We anticipate the expiration of Emergency Advance Payment claims later this month will bring more criticism to the fund. Simply put, the Gulf Coast Claims Facility has only paid out a fraction of what is owed to Alabama businesses. Hopefully, this criticism will be to the benefit of all claimants, and we can write you with information that does not contain loopholes or pitfalls. In the meantime, for those of you that have made or will be making claims, please do not hesitate to contact us with questions regarding the claims process.

Please contact us if you believe you will need assistance in the presentation of your claim or would like further guidance.

Monday, November 8, 2010

US Supreme Court to Hear Important Case for Consumers

Class action lawsuits allow large groups of consumers to recover damages in legal matters involving smaller claims or cases. Many times the amount in controversy is too small to warrant an individual lawsuit. Such is the situation for Vincent and Liza Conception who caught AT&T overcharging sales tax on their cell phones. The amount of the overcharge was only $30.00 per phone but AT&T was apparently doing this to all its California customers. A class action lawsuit was brought against AT&T in California for all similarly overcharged customers by the Conceptions. However, in the fine print of the Conception's contract was a clause that said they would not bring a deceptive trade practices class action against AT&T and had to make any claim via arbitration. Arbitration is an extremely expensive procedure and it is not a forum that lends itself to small claims or cases.

The Federal Court in California ruled the clause to be void and AT&T has appealled to the US Supreme Court which has agreed to hear the case this week. Legal scholars believe this somewhat unknown and low profile case could be the death of consumer class actions in America if the US Supreme Court rules in favor of AT&T. For more information on this important case please see: AT&T Mobility Services vs. Conception.

If it wrong for a company to deceptively take $3,000,000 from one consumer it should be as equally wrong for them to deceptively take $30 from 100,000 consumers. It is our hope the US Supreme Court will agree with this logic, but we fear a favorable ruling for AT&T will open the door for more large corporations to take advantage of their customers.