Claimant 1.
In the methodology, they state that they reduce the “lost income” by 50.1% based
on the thought that since revenue was down, so would expenses be down.
However, with properties (condos in our case) – there is no reduction in
expenses when the properties are not rented. We still have to pay the mortgage,
association fees, insurance, upkeep/repair, etc. Our reduction in expenses was
limited to utilities, which is a small amount – certainly not 50.1% of our income.
Claimant 2.
There has to be more than one formula for determining losses from the spill. Our
tourism based transportation business first incorporated in the summer of
2007. The first dollar we generated, was when we opened our doors on
November 28th. 2007. Therefore our first full year of revenue was 2008.
Our tax returns from 2009 show a 65% increase in revenue over 2008. In 2010,
the first quarter revenue was up 52% over the first quarter in 2009. We also were
adding more vehicles and more drivers before the spill because of the increased
demand. At the same time the hotels and resorts that call on us daily for their
guests transportation were continually increasing, along with client base.
Therefore it is a very fair assumption to say that if we were up 52% before the
spill in 2010, the rest of 2010 would be up a minimum of the 52% as well.
For us the oil spill created the perfect storm, as we were gearing up on drivers
and vehicles, the spill brought us to a screeching halt.
As for the 50.70% cut for what you say are less expenses is ridiculous. Our
vehicle debt service, offices and garage lease space, insurance, advertising,
fixed local and long distance phone costs, fixed 800 phone costs, etc. are the
largest percentage of our expenses. Were we not to pay a vehicle payment,
insurance payment, utility bill, building lease payment, etc., because of the slow
down. I don't think we would be here talking about it if we did.
I have met and worked with local and state government over the last several
months, had our story on CBS WINK TV twice just this week, and met and talked
with other business people that have had losses due to BP. I will continue to do
the things I am doing until Mr. Feinberg corrects the formula for the businesses
affected.
Our businesses may be small to some, but collectively we employ thousands of
people and drive our local economies. I trust that our elected or
appointed government officials know the impact our businesses have on on our
economy and will not allow for us to all fail because of the continued unfairness
of the GCCF.
I do not believe that our President in appointing Mr. Feinberg to over see our
claims had any idea how unfair the process would become, and I thank Senator
Nelson, through the help of Mr. Atwater's office and others for bringing it to his
attention. We had no problem working with the BP process, to bad we had to try
and improve on something that was not only being fair and working, but also with
knowing of the urgency to get the payments out timely as well.
Claimant 3.
I would go back three years (’07, ’08 & ’09) and take that average and multiply it
by a factor of three (not two as is their method).
The CFO should know this: The reason that BP and the GCCF go back only two
years is that ’07 was a very good year for business on the coast. If you look at
my beach condo rental income for ’07, it was much higher than ’08 and ’09 due
to economic downturn. 2007 was still a decent year in the economy and the
beaches—particularly those of the FL Panhandle—had recovered from the two
years of hurricanes a couple of years earlier.
Claimant 4.
I have reviewed the proposed GCCF methodology for "Full Review Final Claims"
And have come to several conclusions.
GCCF is and always has had the best interest of BP as number one priority,
GCCF and Ken Feinberg have not behaved ethically. There is a conflict of
interest in having an administrator whom is compensated by a company, be
responsible for distributing damages from a trust funded by that company.
GCCF has funded studies that show a full recovery by the end of 2012. These
studies were funded by proxy, by BP and favor BP by minimizing the financial
responsibility of BP.
The proposed methodology does not include in any way punitive damages, i.e.
damages for stress due to loss of employment.
The proposed methodology does not follow timelines of recovery as seen in past
disasters similar in nature.
There is indications that the proposed methodology does not follow guidelines
set by the oil pollution act.
The GCCF/Ken Feinberg's current funding situation is not conducive to the
speedy distribution of funds. There is no incentive to distribute funds quickly
when your business is paid by the month.
Claimant 5.
We have filed for our final claim, and are having to submit more information. As
well, we have a serious issue with how the 1099s were sent from GCCF as most
of the 6 months Emergency Advance Payment issued is covering losses in 2011,
we still had to pay the taxes in 2010. How do we get GCCF to split the
disbursements into the correct years of compensation to ensure correct tax
payment/allotment. Having to pay the taxes on the full amount of the 6 month
claim (which is compensating 4 months of 2011 and only 2 in 2010) really hurt
our taxes for this filing. I believe GCCF is further hurting the victims by not
separating the payments on the 1099s.
Claimant 6.
As I am sure you have reviewed the calculations for final payments in detail, but
would like to offer a couple of observations:
1. The look back to 2008/2009 average does not take into account
companies and individuals who have increased their sales or income from
one year to next with 2010 starting off to be their best year ever.
a. This basic flaw grossly understates my companies income as well
as many others as well
b. If a company can demonstrate consistent growth, their growth
percentage times their last actual income should be used to
estimate 2010 and future losses
2. The GCCF’s calculation is a creative shell game which is perceived to be
2 times your 2010 losses but is actually just over your 2010 losses (based
on an averaging system, which may or may not accurately reflect your
2010 losses) after they arbitrarily take 49.30% as expense savings.
a. This part of the calculation is utterly insulting. The GCCF/BP
assumes that 49.30% of my lost income is attributable to offsetting
expense savings and/or variable cost.
b. It is completely unfair for them to assume any such number much
less that high of a percentage.
c. The GCCF/BP has failed in their assumption is they think that
companies did not still have massive overhead and in most cases,
increased expenses due to the large volume of refunds and
questions regarding the oil spill.
d. Furthermore, the GCCF/BP is failing to take into account the
countless hours that Business owners have had to invest in
document preparation, filing claims for reimbursement, providing
documents to the GCCF and the list go on and on as to how our
company and many others experienced a significant increase in
labor and expenses.
e. The GCCF/BP is also failing to consider the amount of counter
public relations we have had to do on their behalf. The countless
conversations we have had with people from outside the state of FL
regarding the condition of our beaches.
f. And what about the amount of marketing and advertising that we
spent that was effectively wasted and the marketing and advertising
that needs to be sent in order to generate leads to the same level
as before the Oil incident.
3. Unfortunately, the GCCF/BP needs to understand that there is not some
magic formula that is going to work for all claimants. The truth of the
matter is that many of us would accept a reasonable final payment so we
could get back to focusing on running our businesses instead of how to be
made whole by BP. They need to keep it simple and be generous as they
do not know what the future risks are for the various areas impacted.
4. If they came out with a fair and reasonable final offer, I am sure many
would consider it; but what they have recently offered is a shell game and
likely unacceptable for most claimant.
5. Proposed payout should be simple and generous as to cover the unknown
future risk.
a. Start with a claimants documented 2010 Lost Income/Revenue.
(use 2008, 2009 and 2010 to support your claim)
b. GCCF needs to assume that expenses “saved” were offset by
expenses created by the crisis. No adjustment for expenses. This
is way too subjective and can only slow down the payouts.
c. BP/GCCF should make sure 100% of 2010 lost revenue is paid in
full.
d. BP/GCCF should assume at least a 5 year impact on most
claimants but with diminishing impact. (70%, 50%, 40%, 30%, 10%)
e. This equates to 200% or two times the 2010 lost revenue.
f.
(BP/GCCF has to remember the loss was for 8 month period but the
future losses effect all 12 months of each of the future years)
g. GCCF needs to pay for documented Preparation Expenses as
many claimants have spent a tremendous amount of time providing
documentation to GCCF and to their clients.
i. Or Call this plus 20% of total losses for document
preparation reimbursement and an apology for all the
headaches.
h. Then they should also consider adding an additional 20% for
unknown risk and yet another apology for more headaches.
i. This general payout calculation should apply to all claimants and
not exclude claims greater than $500,000 like they previously
proposed.
Example:
2010 documented lost Revenue
$200,000
this covers 2010
lost revenue
this covers
2010 documented lost Revenue time 2
$400,000
estimated lost revenue for 2011-2015
Sub Total
$600,000
Document Prep and Apology 20%
$120,000
this covers
document prep time and 1st apology
Unknown Risk and second Apology 20%
$120,000
this covers
nd
unknown risk and 2 apology
Total Final Payment
$840,000
assuming
Less BP and GCCF pmts
($150,000)
claimant got paid something already
Final check
$690,000
A payout structure like this would be fair and reasonable given the damage
that BP has caused to the environment and the economy in this area. Simply
paying the 2010 losses and offering a shell game final calculation is simple
unfair and unreasonable for BP/GCCF to expect claimants to accept.
This equates to about 4 times actual 2010 documented losses. If they want
to “do the right thing” and get the claimants paid and signing releases, BP and
GCCF are going to have to be reasonable.
BP can not forget that they are the one’s that promised to make it right. They
need to keep their promise.
Claimant 7.
As background, I am the owner of a seafood restaurant/market in the Pensacola
area that has earned a thirty year old reputation for serving only local, fresh
seafood.
The proposed methodology seems misrepresentative and subjective, and
appears to have been written by the legal arm of BP instead of an impartial
arbitrator. I expected from the GCCF a proposed settlement for future losses
based on a wide range of current scientific study and economic opinion, not the
rosiest of scenarios of overly optimistic research funded by BP. These proposals
read like the opening haggle bid by a law firm instead of an independent and
objective assessment of future losses.
It is to the benefit of all, including BP, that these claims be resolved in a timely
manner. A flood of lawsuits would put victims lives on hold for the foreseeable
future, and unending litigation would entangle BP's resources and depress stock
prices. In order to sign away all future rights, any proposal for future damage
compensation must not be only fair and equitable, but also generous. The
following proposed final claims structure, though not compensating claimants for
all potential damages, it is generous in nature , fair to the majority and would
provide most with an adequate financial compensation. Claimants should in no
way bear an inordinate percentage of the risk of future damage.
•
Use the higher of either 2008 or 2009 earnings to establish a base
income. It may not be reasonable, but it is understandable that BP would
not wish to include 2007 earnings to average. As one may easily infer
from the comments on the methodology to date, however, averaging 2008
and 2009 is not the fairest method for many claimants.
•
Eliminate the EAP and other income in 2010 from future calculations. If
full settlement occurred in 2010, an emergency "advance" repayment
might be understandable. Prior year losses paid ,however, should not be
included in the future settlement by definition. Unemployment
compensation and other assumed future income should have no bearing
on losses caused by the spill. It appears miserly of BP to expect credit for
any victim’s efforts to stay solvent during a crisis of their making.
•
Eliminate the LOI%. To impose this set percentage on every type of
business is ludicrous. And if eliminating this percentage means BP pays
businesses more than it should in some cases, so be it. Consider it
goodwill on the part of BP for the nine months thus far of stress, anxiety,
late, denied and ignored claims, damaged credit, and injured reputations.
•
36 months of lost revenues, 60 months for all aspects of the seafood
industry . Most research indicates three years to be the minimal estimate
of future damages . The seafood industry stand to lose the most, in that
should many species suffer population declines due to the inability to
spawn or sustain populations, it will be several years before the effects are
documented. Should these species endure population decimation, the
seafood industry would sustain losses not just for years, but for
generations. There is also the perception, if not reality, of tainted and
dangerous gulf seafood that could linger for many years.
The GCCF was established to administer the escrow account funded by BP to
compensate victims of the Deepwater Horizon Oil Spill in an impartial and
expeditious manner, and in compliance with OPA regulations. Mr. Feinberg
himself has alluded on numerous occasions since the GCCF's inception to his
intent to be generous and forthcoming in his administration. The proposed
methodology thus far exhibits neither, and instead appears to speak to BP's
influence in his calculations. I would ask that our elected representatives
convince Mr. Feinberg to fulfill his obligations and redouble his efforts to be the
advocate of the fund's claimants in an objective manner.
Claimant 8.
Many owners of a single condo have been offered and in many cases awarded,
the Final Payment Claim of $25 thousand.
What about those of us that own MULTIPLE condos. We were forced to put our
multiple condo claims under one claim number. However, we are at multiple
risks because of multiple addresses. In my case, I have four condos, all
documented with four deed titles, 3 years of schedule E history and every other
document requested but was only offer $25 thousand for my single claim. I have
had to file a FULL REVIEW CLAIM just to be able to consider the option final
payment.
Why was the process handled in a more timely manner for single owners than for
owners of multiple units. Owners of multiple condos have a greater burden to
rent more units. The documentation would have been the same for single
ownership as it was for multiple ownership.
Maravilla 2103
Maravilla 2210
Sterling Sands 114
Tidewater 314
Claimant 9.
I am responding to your request regarding suggestions for the GCCF going
forward. However, I do not think you will be able to do any good; I have been in
contact with Grover Robinson,my local councilman, Pensacola Mayor Ashton
Hayward, Representatives Doug Broxson and Clay Ford, Senator Bill Nelson,
and Attorney General Pam Bondi's office. Absolutely nothing has happened. Mr.
Feinberg continues to run the GCCF like the lawyer that he is; his clients, BP, are
the only interests he is concerned with.
This latest attempt at the "methodology" is nothing more than another reason to
stall payments to struggling businesses along the Gulf Coast. I'm sure he will
have to re-think his strategy at the end of the two week period, thus delaying
mapyments further.
My business is so close to closing it's doors; I filed a claim on October 14, 2010,
and have yet to receive a penny. Between the GCCF losing some of my
paperwork, thus denying my Advance Emegency claim, and having to deal with
the morons he has put in place down here, I am no closer to being reimbursed
than I was in October, and I have no idea where my claim is in the process. All of
our credit lines have been closed, I am behind on payroll taxes, property taxes,
sales taxes, mortgage and credit cards. It is almost impossible to continue
without the lost revenues we incurred. Our personal credit is also in jeopardy,
and major companies such as American Express and Chase really don't care
why we can't pay them.
Every day, I hear something more about how Feinberg is unlawfully running the
GCCF, how he is truly representing BP, how he is forcing people to sign away
their legal rights, and yet he continues to do exactly as he pleases. I think it will
take the President to remove him; after all, that's who put him there, and then
turned his back on the Gulf Coast.
I sincerely hope you can make something happen, but please forgive my
cynicism. I have been in this black hole since October.
Claimant 10.
The under BP/GCCF writing guidelines are flawed and make no sense.
I recently filed a claim for lost wages. I began a second full time job on
1/15/2010 and, following the oil spill, applied for an interim payment and was told
that I earned more in 2010 than 2009 and questioned as to what I am/was
claiming. I have two full time jobs at the two most highly-rated resorts on
Clearwater Beach. I took the second job to acheive personal financial goals. I am
not clarvoyant and did not start the second job to supplement the ANTICIPATED
lost earnings from my 1st job due to the BP Gulf oil spill. My claim was met with
enormous skeptisism by the GCCF representative.
My short term and long term disability benefits from my current employment, as
well as my life insurance benefits, have all been decreased; these are all benefits
provided by my employers based on my annual income. My credit rating has
been affected due to the slow process by the GCCF and a gross underpayment
for an emergency advance payment that caused over utilization of my credit
lines. My social security contributions have declined. My 401k contributions have
also declined as well as money I would have, void of the gulf oil spill, likely have
earned. I have lost energy rebates and refinance options (which would have
been advantaged had I not been required to survive on my second income) and
am experiencing higher finance charges as a result. When I requested help at
the GCCF office the representative was unable to step beyond the fact that I
"earned" more in 2010 (keeping in mind that the reviewed income came from
ONE job).
I have provided proof to the GCCF of all of these damages and now await their
response. The GCCF seems to have a very narrow scope for acssessing
damages. BP spent nearly $100 million dollars, during and after the oil spill, on
advertising to convince the public that they would "make it right". The GCCF then
produces a claim form asking me what I did to find alternate employment. I have
2 full time jobs and I never saw ONE BP ad saying "sell your home leave the
regio, as "it will never be right again" even though this is what the GFFC agent
stated to me.
I averaged a $600 a month increased income from 2008 to 2009 proven by my
W2's (from only ONE employer during a recession). I should not have to work 2
full time jobs to earn what I certainly would have earned working just ONE job
prior to the oil spill.
Please fight for the residents of Florida.
Claimant 11.
Thanks for your help in trying to get timely and reasonable settlements from the
Gulf Coast Claims Facility for Florida Business. I own a small Amusement and
Water park in Pensacola and we have had a significant impact to our operations
because of the oil spill. Unlike many of our colleagues in the business community
we have received compensation for our 2010 losses and now simply want to get
a grip on our future and try our best to get beyond this crisis. I have attached my
evaluation of the proposed GCCF Final Payment methodology for your review. If
the intention of the GCCF is to provide offers to us business folks which are fair
(perhaps generous) and timely this proposed plan just does not stand the test. It
is an attempt to squeeze the Small Florida Business person at a time when they
are most venerable. Rather than just venting my frustration I have a suggestion
which needs political support to be effective. The State and the Small Business
Community can work together to prevent this squeeze play from being effective.
He is my proposal:
The effected states request of their federal representatives to authorize a Bill
which would empower the SBA to extend 100% guaranteed loans to businesses
with BP related claims. These loans would be for up to 3 times their 2010
documented claims and offered at low interest rates for 5-7 year terms, the cost
to the government of these guarantees would be covered by a small portion of
the funds received as fines against BP (EPA estimates are $20-$30B). Small
businesses would be expected to repay these loans from documented damage
claims paid by GCCF or from normal profits if the tourist and fisheries industry
recovery actually happens as is predicted by GCCF. This would take the
pressure off the most venerable businesses and perhaps pressure the GCCF to
be more reasonable with our business community or face massive legal action
from businesses which can now survive without being pressured to settle for
pennies today on tomorrows dollar impacts. The interest paid by Florida
Businesses and any legal action would eventually represent additional cost to
BP.
The effected businesses need some collective help in having any chance of
counteracting the strong armed tactics of the GCCF on behalf of BP.
Thanks for your consideration and support of Florida Small Business.
Attached: BP Response (Word file)
Claimant 12.
I am a Pensacola resident who owns Gulf-front rental property in Gulf Shores, on
a beach area directly contaminated with oil. GCCF paid my emergency claim
fairly and promptly. However, I am more concerned with the long term viability of
vacation rental markets than I am with compensation for the shortfalls in my
current rental income.
The proposal for the final settlement is truly insulting. I submitted my claim to
BP/GCCF in good faith, largely due to Mr. Feinberg's early comments that he
would be fairer, faster, and more generous than a court. I hate the thought of
filing a lawsuit and hoped that the claim could be settled without hiring a lawyer.
This no longer seems to be the case.
The lodging market in our local beach communities depends both upon the
pristine nature of the environment and the amenities offered by the beach
communities. The pristine nature of our environment is potentially threatened for
years to come by the oil that scientists claim remains in the gulf, and the
unknown consequences of the unprecedented use of toxic dispersants. If the
media reports and public comments to CGGF are accurate, then these
communities are also threatened by businesses closing their doors because of
the oil spill and slow pace of claims payments. Visitors to our coast not only
want to lay on the beach and swim, they also want to play golf, eat at
restaurants, take fishing charters, and shop at the beach boutiques. If our
communities from Pensacola Beach to Gulf Shores turn into ghost towns, the
tourists will find a more attractive beach community elsewhere.
I understand that Mr. Feinberg is acting within the constraints of OPA for
restitution for lost income. However, he has shown willingness to bend the rules
when he set aside a separate fund to compensate realtors for lost income
although they didn't have standing for a claim under either federal or state law
(Mr. Feinberg's words). He could surely apply this same sense of fairness to
property owners by basing the final compensation on a much longer period of
time to help support condo prices. I fear a groundswell of owners driving values
down even more by dumping their properties out of frustration with the spill and
the difficult claims process. Mr. Feinberg admitted that property values have
been hurt, and although OPA doesn't cover compensation for this type of claim,
he could achieve the same end result by propping up property values with a
more generous settlement.
I will be sorry to lose any of the beach businesses that I have patronized over the
years. However, it is easier for most businesses to close up shop if the finances
don't work out than it is for property owners to sell a losing property.
I want a final settlement that protects the value of my investment in the condo; if
it doesn't then I don't have anything to lose by waiting for a court to adjudicate my
claim. I will definitely not assign my rights to BP for essentially one more year of
income payments. I hope that the attorneys general of our Gulf Coast states can
bring sufficient pressure to bear on GCCF to force Mr. Feinberg to settle each
individual claim based upon a valuation that is closer to what a court might
award.
Only then will he live up to his claim to be fair and more generous.
Thank you for looking out for the interests of the people of this state.
Claimant 13.
I sincerely appreciate your concern and apparent desire to help the citizens of
our Great State.
Hopefully you will consider this communication as a sincere effort to present
concerns and issues you and others will find constructive. Regretfully,
I believe Mr. Feinberg's intention in "seeking" opinions, is just another effort on
his, and his employer's part (BP), to cause intentional delays.
Unfortunately, as Feinberg has blatantly demonstrated, he feels he is now as
powerful as BP themselves, or perhaps better said "Beyond the Law". Based on
this weeks comments he made in Pensacola, when asked about this concern
with the U.S. Attorney Generals advice, and the previous advice he was given
from the Assistant U.S. Attorney General, I am honestly "afraid" your, our State's
Attorney General, Governor, Senators, or our Congressman's communications
with him, as deemed basically "meaningless".
After the Federal Judge basically reprimanded him for "misleading"
(fraudulently) and coercing over 80,000 victims, demanding they forfeit their legal
rights, it appears he can continue his theatrics and basically carry on with his
own Holocaust.
Sir, I am a "Previously" retired 62 year old married man who has not alternative
but to leave the State I was born, and have spend most of my adult life in, in
order to find work. I've contributed several hundreds of thousands of dollars in tax
revenue over the years. Regretfully, largely in part to BP's and Feinberg's
"gredious" acts, after living a lifetime of having "perfect" credit, I am now on the
verge of insolvency.
Losing my home and my investment property, and having to leave the place I've
loved, is very painful for both, my wife and I.
Below is a letter I just sent to the NPFC/Coast Guard asking them, as the
Regulatory Authority, if we have any legal alternatives that might spare us from
BP's wrath, and their employee Feinberg's carnage.
Each of the questions posed, relate to the Claims "Facility" Process. I feel are
these are some of the actual, or truly "underlying" problems. Of course, as genius
and shrewd as BP and Feinberg undeniably are, by the time these
problems are resolved, they will simply reach in their hat and pull out yet another
of their many
well designed future schemes.
Hopefully our Federal Justice system is beyond reproach, and they will be bury
BP as a result of their blatant RICO violations. In God We Trust they do! If not,
BP may end up burying the U.S. Government as a result of liabilities the Coast
Guard and the EPA created (related to using dispersants) under the Federal
Superfund Law.
Claimant 14.
Why would anyone take 1/2 what they are due for only 2 years?
Why would it take 9 months to get this far (90 days after submitted to bp O.P.A.)?
Why would anyone trust Mr. Feinberg?
WILL OUR PAYMENTS INCLUDE INTEREST?
WILL MR. FEINBERG TAKE HALF?
Will you contact me?
Claimant 15.
Thank you for allowing us the opportunity to provide feedback on the GCCF
process. There are so many problems with their system, it's good to know we
Floridians have someone watching out for us. If we had not had the help of
Misty Cash in your office, we most assuredly would be even worse off than we
are now.
I'll start with the Final Claims Methodology:
The proposal to use May, 2010-December, 2010 losses in inherently unfair. The
most glaring problem with this is that they're purposely leaving out the "high
season" months, which is when most of us make 1/2 or better of our annual
revenues. January through April, 2009 AND 2010 should be averaged to come
to a fair number. If you will recall, we had a record cold spell for a great
portion of our high season months last year, so 2009 revenues should be
factored in, to be fair.
To give some insight into the ongoing effects, January, 2011 revenues were
approximately 1/2 of 2010 revenues, which is lower than the 2009 revenues, due
to the freezing temps.
We do not know what the future holds, but the GCCF has predicted that we will
see a full recovery by 2013. They are putting us in situations in which we're
forced to accept a final claim, rather than taking the time to see how many
tourists come back to Florida in the next several months. We also have to remain
aware that the buried oil is out there and may turn up on any of our beaches.
The assertion that it simply disappeared is ridiculous. We have no ability to do
anything other than file interim claims or accept a final claim at this time. Even
with those choices, they're not paying people quickly enough. I wonder how
many businesses, homes, vehicles have been lost during these unacceptable
delay tactic time period? This appears to be unethical, at the very least, and
possibly unlawful. Forcing us into desperate financial situations and then
dangling a final claim "carrot" with full waivers of any and all claims in the
future, is ludicrous. Duress????
The entire GCCF approach has been flawed from the beginning. It is unfair and
is destroying businesses and the lives of those citizens within the business. Our
doors are temporarily shut already and will be permanently shut, at the height of
season, by Friday. We will lose hundreds of thousands of dollars over the next
few months. I can't quantify the value of the loss of the entire business yet, but
both owners put every penny we've ever earned into this business, which we've
built up over the last 9 years.
I cannot find the words to describe the stress this has put us under. We have
lost everything. Point blank, Mr. Feinberg does not seem to care. We hear the
same thing over and over again, but nothing he says carries any weight at this
point. Actions speak louder than 6 months of empty promises. 23 people out of
work and on the unemployment rolls. And that's just one single business. How
many others are in the same position? Sad state of affairs, to say the least.
I hope you'll find a way to hold him to his word to make us all "whole" again.
Thank you for standing up for us, Mr. Atwater.
GULF COAST CLAIMS FACILITY ANNOUNCEMENT OF PAYMENT OPTIONS, ELIGIBILITY AND SUBSTANTIATION CRITERIA, AND FINAL PAYMENT METHODOLOGY February 2, 2011 INTRODUCTION I. The Gulf Coast Claims Facility (“GCCF”) seeks public comment pertaining to the next phase of the claims process. In particular, the GCCF invites all claimants and other interested parties to respond to the following draft proposal governing eligibility and substantiation criteria and payment methodologies for Final and Interim Claims. (NOTE: the “Quick Payment” option is always available to any claimant who received an Emergency Advance Payment or an Interim Payment.) The public comment period will be open from Wednesday, February 2 through Wednesday, February 16, 2011. Thereafter, the GCCF will adopt final rules for adjudication and payment of all Final and Interim Claims. During the past several months, the GCCF has sought the advice and guidance of experts who have studied the present and future condition of the Gulf. In addition, the GCCF has benefitted from the valuable input of individuals and businesses whose economic livelihood depends upon Gulf resources, including those involved in all aspects of tourism, commercial and charter fishing and other industries including shrimping, crabbing, oyster harvesting, etc. The GCCF has sought a comprehensive understanding of the impact caused by the Deepwater Horizon Incident (the “Oil Spill”) and its aftermath. Experts retained by GCCF have pored through various reports and studies pertaining to the future of the Gulf, and have compiled an extensive list of references. Copies of the expert opinions and the reference materials used, are attached to this Announcement. In adopting its final rules governing payment of all Final and Interim Claims, the GCCF is gathering facts from various sources in order to develop a credible and fair payment program. 1
The purpose of the two‐week public comment period is to promote transparency and open discussion. Written comments received by the GCCF during the two‐week public comment period will be made publicly available on the GCCF website. What follows is a draft proposal; it may be modified following input received during the comment period. II. ELIGIBILITY AND SUBSTANTIATION CRITERIA (This section reads more like a theoretical premise and does not offer any specific instructions, definitions or explanations of how claimants can proceed through this process. It reads more like the limitations and exclusions section of an insurance policy.) The GCCF proposes to adopt the following principles governing the eligibility and substantiation criteria applicable to Final and Interim Claims for individuals and businesses to receive a Final or an Interim Payment from the GCCF: 1. All individuals and businesses that incurred losses due to the Oil Spill are encouraged to file a Final or Interim Claim with the GCCF. Documentation of damage attributable to the Oil Spill is essential. The term “attributable” is a purely legal term. The average employer on the coast won’t necessarily understand this jargon. It infuses great legality and interpretation into a process that is trying to avoid such legalities. Also, “damage” is not defined here or elsewhere in the document. Early on, they should describe what the common types of damages are if they are meant to be reimbursable. 2. Final and Interim Payments are available for those claimants who can prove their damages due to the Oil Spill, or who can establish a physical injury or death caused by the Deepwater Horizon Incident and its aftermath. “Damage” is used in conjunction with the term “attributable” and “prove.” How do the terms “attributable” and “prove” relate. If you have damage and are able to attribute the damages to the Oil Spill, do I now have to prove it? Can we expect people to fairly apply this? Also, what documentation is acceptable? 3. As expressly indicated from the very beginning of the Emergency Advance Payment Program, the documentation requirements for receiving either a 2
Final Payment or an Interim Payment are more rigorous and exacting than the minimal documentation requirements that governed administration of the Emergency Advance Payment Program. Each claimant is required to establish both actual financial loss and the connection between the loss and the Oil Spill. More detailed guidance on required documentation will be posted on the GCCF website (by when) to assist claimants in providing all necessary supporting documentation and to reduce or eliminate delay due to deficient submissions. Many gulf coast claimants have submitted claims for actual damages (lost income) during and subsequent to the oil spill. Were these submittals considered “interim”? If so, the employers need to be reassured that the documentation game has not changed. If these payments weren’t considered “interim,” then you have confused the documentation process. Is it safe to assume that the Emergency Advanced Payment Program (EAPP) is well defined and understood by employers filing claims. There is not information on how the EAPP differs from the interim payment process. 4. The GCCF will not presume that a given loss was or was not caused by the Oil Spill, regardless of whether or not the claimant received an Emergency Advance Payment. Each claim stands on its own merits, and the GCCF will evaluate each submission to determine whether a loss was caused (does the loss have to be totally caused or can it be partially caused) by the Oil Spill. In all cases, there must be an identifiable link between an actual loss and the Oil Spill. Evidence establishing this connection is required. For example, a claimant might provide documentation of cancelled orders for goods or services, disruptions to the supply of Gulf seafood, a termination of employment or reduction in wages that an employer confirms was caused by the Oil Spill, etc. Likewise, the GCCF will not presume that a claimant’s 2010 income or profits would have been greater or less than the claimant’s 2009 income or profits. Providing financial information about losses sustained in 2010 is but one form of proof, and will not be sufficient documentation for many individuals and businesses other than those claiming injury to specific 3
property or a specific natural resource, e.g., a beach, a swimming area, fishing grounds, etc. Documentation linking the sustained losses to the Oil Spill will be required. They are creating a very formal legal process. Documentation of this type is highly subjective. It seems that GCCF holds all the cards. Is it prudent for GCCF to ignore all data they have accumulated with regards to geography, economic stats, and other facts as it relates to claims? The claim process and its participants should both be obligated to use all information at their disposal to expedite claims. What if the same industry in another geographical area showed a greater profit in 2010 than in 2009? Individuals claiming physical injury or death due to the Oil Spill will be eligible to receive compensation from the GCCF. Such claims must be documented, proving that the physical injury or death is attributable to the Oil Spill and not some other cause. In cases where claimants assert a disability caused by the Oil Spill, evidence of partial or permanent disability, such as a Social Security or State Workers’ Compensation determination of disability, will be required in order to determine the extent of any long term impact on the ability of the claimant to work in his/her chosen profession. The SS disability application process may not be complete (it may take a few years). Why would they not accept medical diagnosis from a licensed medical provider? III. CALCULATION OF AWARDS FOR FINAL AND INTERIM PAYMENTS The GCCF has retained scientific and economic experts to comprehensively research and review studies pertaining to the impact of the Oil Spill on Gulf resources. These experts also reviewed numerous studies analyzing the economic recovery rates from other major catastrophic events affecting tourism. In addition, the GCCF consulted with numerous individuals and businesses located in the Gulf region in order to understand the possible impact to individuals and Gulf businesses due to the Oil Spill. The GCCF’s goal is to determine the impact of the Oil Spill on seafood harvests, the recovery rate for the tourism industry and the general Gulf economy. An effort has 4
been made by the GCCF to determine the length of time to full economic recovery and the related pattern of gradual recovery over time. GCCF sits on a mountain of data an continues to require that the claimant carry 100% of the burden of proving their damages and proving that the dames are attributable to the oil spill. It doesn’t make sense. Will they accept other “expert opinions” contrary to the information they have already gathered and will they share the expert information they do have. The GCCF will base its calculation of awards for Interim Payments on actual documented losses incurred by a claimant during the period immediately following the Oil Spill on April 20, 2010 and the date the Interim Claim is filed. For Final Payments, the GCCF will base its calculation on two important factors: (1) actual documented losses incurred by the claimant from the date the losses began since the Oil Spill on April 20, 2010, and (2) a future losses factor to value the risk of possible future losses as determined by the retained experts. Having examined available expert opinions, studies, reports and comments the GCCF believes that based on the existing available data: •
There is evidence of a strong recovery underway. However, the GCCF has concluded that it is reasonable to base its future payment calculations on the principle that a full economic recovery in the Gulf region is likely (but not certain) within two to three years from the date of the Oil Spill. •
Prediction is not an exact science. In light of the uncertainty that remains, the GCCF believes that it is appropriate to provide claimants desiring to finally resolve their claim at this time with a payment that accounts for the inherent uncertainty concerning the future. •
The GCCF’s conclusions are based on currently available data. The GCCF will undertake a renewed evaluation of available data every four months. If such re‐
evaluation suggests a change in the relative uncertainty concerning the future that warrants an adjustment to the payment for future risk, the GCCF will make the appropriate adjustment and will apply the adjustment to all claims submitted from that date forward. However, final claims previously submitted with complete documentation but not yet evaluated will be paid the higher of the 5
future losses factor applicable at the time the claim submitted was completely documented, or the adjusted future losses factor. •
Any claimant who disagrees with the GCCF’s approach regarding future payment calculations or is not ready to accept it, is free to opt for Interim Payments based upon documented past damage, while awaiting further evidence of Gulf region economic recovery. Can a claimant find out what the offer would be for a final payment offer as well as if it were interim and then decide what to accept? 1. Actual Documented Losses – Once claimants have demonstrated a direct connection linking (Is this another way of saying attributed to the oil spill? Proven damage?) the sustained losses for past and present damages to the Oil Spill, eligible claimants will be compensated for documented losses directly (the term “directly” another legal term revising what is considered damages) caused by the Oil Spill incurred during the period immediately following the Oil Spill on April 20, 2010 and the date of the filing of an Interim or Final Claim with the GCCF (“the loss period”). (For many claimants, much of this documented loss has already been compensated by BP and the GCCF Emergency Advance Payment Program. Such compensation will be deducted from the claimant’s total payment offer.) The calculation of these actual documented losses will be based on a comparison to income from prior years for the same months (for example the average of income earned in 2008 ‐ 2009 or another appropriate historical comparison deemed most relevant to the claimant’s experience). In these cases, the claimant’s actual loss will be determined by taking the difference between the claimant’s income during the loss period and the comparison period to arrive at the claimant’s actual loss. In other cases, for example for a “start‐up” company which anticipated generating income in 2010, a different methodology will be employed. 2. Calculation of Future Losses – The calculation of future losses will be based upon the actual losses incurred during the period immediately following the 6
Oil Spill on April 20, 2010 through December 31, 2010. The GCCF will use these actual documented 2010 losses to anticipate the gradual economic recovery expected to conclude within two to three years from the date of the Oil Spill. It is anticipated that, for all businesses other than oyster harvesting, recovery will continue in 2011 with full recovery expected in 2012. (What logic gives oyster harvesting a different time line? Couldn’t other industries driven by oyster harvesting such as oyster shuckers and seafood markets that depend substantially on oysters be equally effected?) This gradual recovery anticipates that losses in 2011 will be approximately 70% of the actual documented losses in 2010. With continuation of the recovery, the GCCF expects claimants will experience losses in 2012, but at an average of approximately 30% of the actual documented losses in 2010. Adding together the effect over 2011 and 2012, the Final Payment Offer will be equal to two times the actual documented losses in 2010. DFS should confirm that GCCF will not apply present value factors or inflation factors. The experts anticipate that individuals and businesses engaged in harvesting oysters destroyed as a result of the Oil Spill, or due to the diversion of fresh water into the Gulf in reaction to the Oil Spill, will likely require a longer recovery period than that experienced by other claimants, without the same degree of gradual recovery. Accordingly, the Final Payment Offer for those claimants will be equal to an amount four times the actual documented losses in 2010. For claimants with actual documented losses in 2010 of $500,000 or more, the GCCF will not automatically apply the future losses factor to claimant’s actual 2010 total losses. The Final Payment calculation for these claimants will be determined on an individualized basis after analyzing input from the claimant as well as the experts retained by the GCCF. The Final Payment Offer will be the actual documented losses in 2010 and an additional amount to compensate for the recovery and risk of possible future losses. 7
3. In sum, eligible claimants will be paid two times actual documented 2010 losses due to the Oil Spill to compensate for all past and anticipated future losses (except, as described above for claimants with 2010 losses of $500,000 or more). Eligible oyster harvesters will be paid four times actual documented 2010 losses due to the Spill to compensate for all past and anticipated future losses. (The Final Payment Offer will be reduced by compensation already received in Emergency Advance Payments from BP, the GCCF and other offsets.) If any claimant believes that the future of the Gulf continues to be uncertain and is not yet prepared to file a Final Claim, that Claimant may continue to file Interim Claims with the GCCF. 4. Final Payments or Interim Payments – The GCCF will pay eligible individuals or businesses either a Final Payment or an Interim Payment, as the claimant may request. The future losses factor, as determined by the GCCF, may be modified going forward as more information becomes available about the future of the Gulf Coast economy. It is, therefore, entirely possible that the future losses factor for determining the future impact of the Oil Spill in the Gulf will be increased or reduced as more information becomes available. Claimants should take this possibility into account in deciding whether to file an Interim Claim or a Final Claim. For Claimants who have filed a Final Payment Claim with incomplete 2010 documentation, the GCCF will determine and calculate the claim based upon submitted documented actual 2010 losses. (Will GCCF notify the claimant ‘s documentation information is incomplete so they can have the opportunity to submit the information) Claimant will have the option to accept the Final Payment Offer based upon submitted 2010 documentation of actual loss that was available to the GCCF for determination and calculation, or accept the payment of an Interim Payment Claim as an installment on the Final Payment 8
Offer and request the re‐evaluation of the Final Payment Claim after they have submitted additional documentation of 2010 losses. EACH CLAIMANT’S FINAL PAYMENT OFFER AMOUNT WILL BE THE LARGER OF: (1) Two times each eligible Claimant’s 2010 Actual Documented Losses (except for claimants with 2010 losses in excess of $500,000); four times each eligible oyster harvester’s 2010 Actual Documented Losses, or (2) The total actual documented losses through the date of the filing of the Final Claim. 9