Oil spill judge rules Feinberg is an agent of BP

Alejandro de los Rios Feb. 3, 2011, 11:53am


NEW ORLEANS (Legal Newsline) - U.S. District Judge Carl Barbier has issued a 15-page order stating that Gulf Coast Claims Facility administrator Kenneth Feinberg "cannot be considered 'neutral' or totally 'independent' of BP."

Barbier is presiding over the multidistrict litigation surrounding the Deepwater Horizon oil rig explosion and subsequent oil spill in the Gulf of Mexico.

Feinberg was appointed by BP to oversee its $20 billion claims fund for Gulf Coast residents seeking immediate damages because of the spill.

The order says that BP should state that the GCCF and Feinberg are acting for and on behalf of BP in fulfilling its statutory obligations as the "responsible party" under the Oil Pollution Act (OPA) of 1990.

The reasoning behind the order is that the GCCF's "hybrid role ... has led to confusion and misunderstanding by claimants, especially those who are unrepresented by their own counsel."

Barbier also is ordering BP and the GCCF to "submit additional briefing on the question of whether and how BP as the responsible party is fully complying with the mandates of OPA ... in the processing of claims."

In December, plaintiffs lawyers filed a motion in the U.S. District Court for the Eastern District of Louisiana that claimed Feinberg "seems indistinguishable from a defense attorney attempting to settle cases on behalf of BP."

Mississippi Attorney General Jim Hood supported that position, calling the fund a "surrogate" for BP.

BP attorneys Don Haycraft, Keith Jarrett, Richard Godfrey, Andrew Langan and Robert Brock filed their opposition Jan. 26.

Their motion countered that the plaintiffs wanted the court to "censor the speech of non-parties (Mr. Feinberg and the GCCF) and then dictate what they must say. ... The law permits no such thing."

The defense also cited a letter by New York University legal ethics professor Stephen Gillers to Feinberg as ethical counsel on the matter. Gillers wrote that the plaintiff's "suggestion that you are not independent because you are BP's lawyer is wrong. You are not BP's lawyer."

In his order, Barbier also states, "many other facts support a finding that the GCCF and Mr. Feinberg are not completely 'neutral' or independent from BP.

"For example, Mr. Feinberg was appointed by BP, without input from opposing claimants or the Plaintiff's Steering Committee ("PSC"), and without an order from the court.

"GCCF is settling claims against BP under OPA, but also attempting to settle claims that fall outside of OPA, such as personal injury and death claims."

The order further states that, by requiring claimants seeking a "final payment" to release their right to sue BP, "the GCCF is clearly acting to benefit BP."

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