Daniel Becnel Jr. of the Becnel Law Firm, one of a vocal group of plaintiffs lawyers who’ve spurned the MDL in favor of settling claims through Kenneth Feinberg’s Gulf Coast Claims Facility, told us that he and about 25 lawyers in the same position will take their 20,000 clients and “do our own thing” rather than join the settlement. Becnel said his clients had already been “screwed” by New Orleans federal district court judge Carl Barbier’s order that 6 percent of whatever BP agrees to pay most claimants must be held back to pay common benefit fees for the plaintiffs lawyers leading the MDL. He accused the plaintiffs steering committee of agreeing to a deal that effectively caps BP’s liabilities and offers spill victims far less than the $20 billion the oil giant put aside to settle claims through the Feinberg fund.
“BP played these boys like an accordion,” said Becnel, who also reiterated his position that the lawyers on the steering committee were entirely motivated by a quest for maximum attorney fees. (Becnel, we should note, was a driving force in trying to establish the MDL in New Orleans and tried, unsuccessfully, to win a seat for himself on the PSC.)
The steering committee, as you would expect, has a vastly different view of Friday’s settlement. The deal “will provide a full measure of compensation to hundreds of thousands–in a transparent and expeditious manner under rigorous judicial oversight,” plaintiffs co-liason counsel Stephen Herman of Herman, Herman, Katz & Cotlar and James Roy of Domengeaux Wright Roy & Edwards said in a statement. “It does the greatest amount of good for the greatest number of people.”
PSC member Ervin Gonzalez of Colson Hicks Eidson, who represents Florida plaintiffs in the MDL, told us that anyone “would have to be nuts” not to join in the settlement. The deal, he said, “is overwhelmingly beneficial for anyone who suffered any kind of loss or has any kind of medical concerns.” Gonzalez noted that it includes full damages, a presumption of causation for anyone who suffered losses in the spill, and that BP had also agreed to assign its claims against Transocean and Halliburton to the plaintiffs.
Moreover, Gonzalez said, Becnel’s contention that the settlement was capped at $7.8 billion was simply not true. “The reality is there’s no cap, and if it ends up being five times [BP's estimate of $7.8 billion] they still have to pay it,” he said.
As for the 6 percent holdback for common benefit fees that so exercises Becnel and others, the issue had already been heavily litigated before Friday’s settlement was announced. Judge Barbier ordered the holdback in January after a drawn-out battle between the PSC and detractors (mainly lawyers working to settle claims through Feinberg’s fund) who claimed that they shouldn’t have to pitch in if they weren’t involved in the MDL. Judge Barbier partly relented by exempting GCCF claims by anyone who also had a claim in the MDL, and the U.S. Court of Appeals for the Fifth Circuit upheld Barbier’s order last month.
Tony Buzbee of the Buzbee Law firm, who is considering joining Becnel in opting out of Friday’s settlement, told us that the PSC’s deal with BP means that the claimants he’s been representing in the Feinberg claims process will once again have to fork over 6 percent of their recoveries to the MDL lawyers. He also complained that the deal will require BP to pay only 60 percent of any settlement with Feinberg that hasn’t been completely finalized yet, forcing him to litigate to recover the balance. One of Buzbee’s clients will get just $7.2 of a $12 million settlement he’d already negotiated with Feinberg, he said, leaving him to fight for the rest and lose 6 percent to the PSC.
“We fought our way through the [Feinberg] process, and the only thing that’s slowed us down was the litigation,” Buzbee said “Now we’re back to square one.”
In the end, the common benefit fund issue could become moot. Judge Barbier noted in January that BP may well end up footing the bill for the fund or other attorney’s fees. But the end, in this case, is very, very far away.