Fishers wonder how oil spill claims czar Kenneth Feinberg could deny, ignore them


Debates have raged about whether casino workers, wine distributors and a bevy of businesses located far from the Gulf of Mexico’s shores should collect oil spill claims payments. But almost lost in the shuffle is whether the very people most affected by the BP disaster – fishers – are being fully and fairly served by Kenneth Feinberg’s claims process.

With the end of a woeful shrimp season and poor prospects for oyster fishers with commercial beds devastated by fresh-water diversions, many southeast Louisiana fishers, shrimpers, crabbers and oyster harvesters are growing desperate.

This comes as Feinberg’s Gulf Coast Claims Facility ends an emergency payment program that was designed to pay a half-year of losses relatively quickly. The program has now entered a new phase, pushing claimants to consider final settlement payments based on uncertain future earnings. To accept final payments, claimants must give up their rights to sue anyone for spill-related losses.

Feinberg has also introduced a quick final payment option of $5,000 for individuals and $25,000 for businesses. The idea is to get money into claimants’ hands with little fuss and end their claims against BP. But as frustrations mount in Louisiana’s fishing communities, the quick payoff is being interpreted as a predatory trap intended to take advantage of claimants’ mounting despair.

The disgruntled fishers fall into four categories:

  1. A presumably small but increasingly vocal number who have presented Feinberg with strong documentation, including trip tickets, years of tax returns, licenses and receipts, and have gotten nothing.
  2. A much larger group that has been paid, but far less than their emergency claims called for.
  3. Another group of more than 30,000 claimants, led by an organized Vietnamese contingent in Louisiana, who have been unable to collect for loss-of-subsistence fishing.
  4. And thousands who simply can’t produce enough documentation to satisfy the Gulf Coast Claims Facility.

There is a fifth group that no one is crying for: those who got too much. Catholic Charities caseworkers report that some of their clients were inexplicably paid more than they asked for and far more than colleagues who worked on the same boats and documented identical losses. Their experience points to the underlying problem of a lack of transparency about how claims are calculated.

“Despite multiple promises to do so, GCCF still refuses to release the formula used to calculate payments,” said Rep. Steve Scalise, R-Jefferson, who represents most of southeast Louisiana’s coastal fishing communities. “People along the Gulf Coast who have been affected by the BP disaster deserve transparency with the claims process, especially considering that we continue to receive complaints about claims that were underpaid or denied with no reason given.”

A major part of the transparency problem is that Feinberg’s case managers have little control over or knowledge about a file’s status once it is sent to reviewers in Dublin, Ohio. In an effort to give local offices a measure of additional access, Feinberg has hired the Long Law Firm of Baton Rouge, among others, to place key people with access to file details in high-volume claims offices.

Promising statistics

Except for a single $10 million final payment to an unnamed retail or service business in the Houston area, all of the money Feinberg’s organization has paid so far – about $2.5 billion – has been in the form of emergency payments to 167,000 individuals and businesses.

Many of those recipients also collected two or three months of checks from BP’s internal claims process before the firm turned over custody of a $20 billion claims fund to Feinberg on Aug. 23. Fishers who haven’t been paid say they pine for the months when BP was running the show. The company set up a flat payment rate of $2,500 a month for individual fishers and $5,000 monthly for businesses.

But at the end of Feinberg’s emergency payment process, statistics show that fishers who did get paid actually came out better than they had under BP. More than 8,000 fishing boat deckhands and other individual fishers have averaged about $2,700 per month from Feinberg. More than 9,400 fishing businesses have collected an average of $6,500 a month.

For those who are satisfied with what they got, the process continues. They can now seek a final payment and sign away their rights to sue those responsible for the spill, or they can wait for the end of each quarter and seek interim payments for the preceding three months of losses.

But what about those who did not receive emergency payments and don’t understand why?

As of Saturday, there were 600 emergency claims payments still officially under review, and Feinberg said that those are mostly limited to dubious claims that the Gulf Coast Claims Facility is not comfortable paying. Feinberg said those pending claims are likely among the 2,000 to 3,000 he and his team find “very suspicious” and potential fraud cases.

But with no reasons given for denials and delays, no one can be sure. Catholic Charities caseworkers, lawyers and other fishing community advocates say fishers in that situation are facing depression and few options for re-employment.

More lawyers

The frustration has caused more fishers to turn to lawyers even though Feinberg has touted his claims process as a way to avoid having to pay a lawyer.

On Dec. 13, on the coldest day of the year, an estimated 1,100 fishers showed up to an unadvertised outreach event by Tim Porter, a lawyer from Jackson, Miss. Hundreds of people lined up outside for hours before the doors opened. Once inside, many signed forms agreeing to pay Porter’s law firm 33 percent of whatever they collect from Gulf Coast Claims Facility.

Porter said he is a recreational fisherman and he wants to make sure that other sport fishers and people who live off the water get their rightful payments. But Elmer Rogers, a commercial shrimper from Empire in lower Plaquemines Parish, urged others who attended not to sign the forms.

Rogers said lawyers are swooping in and trying to take advantage of fishers at their most vulnerable. Told about Porter’s effort, Feinberg said there’s nothing improper about it, but called it “frankly, outrageous.”

The Gulf Coast Claims Facility website says 13,000 claimants are already represented by counsel, and on Friday the five Gulf Coast states’ attorneys general urged claimants to hire lawyers before signing away any right to sue for one of the new quick payments of $5,000 for individuals and $25,000 for businesses.

Strange denials

But having a lawyer doesn’t always help a claimant navigate the GCCF process.

Jason Nunez, a Shell Beach oysterman and fishing charter boat captain whose claim sat in limbo for more than two months, had his attorney, Kevin Goldberg, check on his claim constantly. He made sure Nunez had sufficient documentation of his income: three years of tax forms, proof of losses, fishing licenses.

Claims workers assured Goldberg that all was in order. Then, last week, Nunez’s claim was mysteriously denied.

The reason given for the denial was as cryptic as those offered to explain all the delays. A GCCF supervisor told Goldberg that Nunez had documented his fishing from April to June, but not from June to October. The reason for that should have been obvious, Goldberg said.

“I said, ‘He can’t show earnings from June to October because he didn’t have any (during the spill). That’s the point.'”

Nunez’s only recourse is to start all over again with an interim claim or final claim.

Nunez said he’s baffled that three of his deckhands, using IRS 1099 Forms that he himself filled out, collected emergency payments for work on his boat. With three children and one on the way, Nunez said he’s scraping by with family loans and doesn’t know if he’ll be able to buy Christmas presents for his family if he can’t find other work, and fast.

“This is what we do; this is what we grew up doing; this is what we done all our lives,” he said. The idea of finding a new line of work “is very scary, but I’ve got to do something. Otherwise we’ll lose everything and starve.”

Still ‘under review’

At least Nunez finally found out he was denied. His brother, John C. Nunez, who also operates a boat for the Nunez family company, Fishing Magicians Inc., didn’t even get a response. As of last week, his emergency claim was listed as “under review” and Goldberg’s efforts to get more information on his behalf have yielded nothing.

Even a direct line to Feinberg doesn’t always shed light on why a claim hasn’t been paid. Rogers, the Empire shrimper, got a rare one-on-one meeting with Feinberg on Sept. 13, at the ornate Windsor Court hotel in downtown New Orleans.

He showed Feinberg a heap of tax returns, trip tickets, sales receipts, fishing licenses and sworn statements. Feinberg promised him payment in 24 to 48 hours, he said.

Rogers is still waiting.

“If someone’s been waiting since Aug. 24, there’s something missing here,” said Feinberg, who declined to share any details on a specific individual’s claim. “All I can say is there’s a very, very good reason for it.”

Whatever that reason is, it hasn’t been explained to Rogers. He has been repeatedly promised answers from Feinberg’s assistant, Amy Weiss, and when he called the GCCF with a reporter present last week, he was told that he had a “legit claim” with adequate documentation, but was given no further explanation. On Monday, staff at the Lafitte claims office were shocked to find out Rogers hadn’t been paid. They told him that their computers showed he should have been paid $46,000 on Sept. 13, the same day he met Feinberg.

He can’t afford his bills and his lights and water were cut off on Monday, he said.

Rogers’ father-in-law, Zoran Nikolovski, also a shrimper, also was denied for a mind-boggling reason. GCCF had him listed as an Orange Beach County, Ala., sheriff’s deputy. Nikolovski, who came to Empire from his native Croatia in 1981, says he’s never even been to Alabama in his life.

After The Times-Picayune asked about his claim, GCCF officials contacted Nikolovski and said his emergency payment would be paid.

Rogers, who now lives in Gretna, was thankful for that bit of good news, but his anger about his own struggles has not abated.

“Feinberg’s failing. Just admit it, Mr. Feinberg!” Rogers bellowed. “His motivation at first was to do the right thing, but now he sees it’s too much for him, and (the motivation) is to run and hide. Well, he’s leaving a trail of disaster, hurt and pain.”

For its part, GCCF acknowledges that some errors have been made.

“Given the size of the task the GCCF is handling – over 450,000 claims to date – there have clearly been some errors made, but those are not representative and, having reviewed all of the claims, are very few and far between,” Weiss said. “Any emergency claims still in the queue, which are only a handful, are being vetted as they are either very complex or problematic.”

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Stuart H. Smith is an attorney based in New Orleans fighting major oil companies and other polluters.
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