Everyone on the Gulf hopes Ken Feinberg’s new claims process works, and everyone gets the money they have coming to them for the damages they’re incurring. But we’re already off to a pretty rough start when the fishermen I represent learn that the money they earned helping to cleanup the oil spill will be counted against any eventual settlement. That means BP gets their cleanup work for free, because the oil company would have had to hire (paid) contractors to do that work. So it turns out that the fishermen were volunteering for BP – they just didn’t know it at the time.
Of course it’s understandable that there’s a strong element of distrust toward the new process, because it was worked out under a veil of secrecy. There were no public meetings or any sort of open dialogue about any of this, no transparency at all (nothing new there). But BP certainly had a seat at the table and, we’re told, a chance to lobby for provisions they wanted, like applying cleanup wages against any eventual settlement. Then the rules were announced, and now everybody has to re-apply under this new system. That, in itself, seems unfair and could make for a painfully slow and rocky transition for claimants. By the way, the application form is roughly 20 pages long. And it contains a serious provision that not even BP asked for: You have to sign under threat of perjury. I believe that’s going to intimidate a lot of folks who have even the most legitimate claims.
It’s really too early to tell how this will all shake out, but I can tell you the fishermen I’ve spoken to are very upset about risking their health to help cleanup this mess only to have those wages counted against their settlements. So yes, I think we already know that provision is likely to encourage more people to turn to the courts. But remember we’re just looking at the short-term “emergency” payments now. The real test will be when the guidelines are announced for long-term, final settlements sometime this fall. To receive those final settlements, victims of the spill will have to waive their right to sue BP in the future.
People should think twice (at least) before signing away their rights. No doubt that will be a very difficult decision because nobody yet knows the long-term impact this disaster is going to have on the Gulf – and everything tied to it.
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