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BP Oil Spill: Why the GCCF “Release and Covenant Not to Sue” Is Illegal

BP Oil Spill: Why the GCCF “Release and Covenant Not to Sue” Is Illegal

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Published by TheDonovanLawGroup
In sum, GCCF’s “Release and Covenant Not to Sue” and the Proposed Settlement’s “Release and Covenant Not to Sue” violate federal law, State contract law, and are contrary to public policy. Illegally excluding approximately 200,000 Claimants from the Proposed Settlement also greatly decreases the bargaining power of the Class Members and results in an increased loss of faith in the federal judicial system.
In sum, GCCF’s “Release and Covenant Not to Sue” and the Proposed Settlement’s “Release and Covenant Not to Sue” violate federal law, State contract law, and are contrary to public policy. Illegally excluding approximately 200,000 Claimants from the Proposed Settlement also greatly decreases the bargaining power of the Class Members and results in an increased loss of faith in the federal judicial system.

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Published by: TheDonovanLawGroup on Dec 03, 2012
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05/14/2014

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UNITED STATES DISTRICT COURTEASTERN DISTRICT OF LOUISIANAIn Re: Oil Spill by the Oil Rig MDL No. 2179"Deepwater Horizon"in the Gulf of Mexico,on April 20, 2010 SECTION: JThis Document Relates to:All Cases JUDGE BARBIERMAG. JUDGE SHUSHAN_____________________________________________/ 
PLAINTIFFS’ MEMORANDUM IN SUPPORT OF THEIR MOTION TO
NULLIFY EACH AND EVERY GULF COAST CLAIMS FACILITY
“RELEASE AND COVENANT NOT TO SUE” and
VACATE PRELIMINARY APPROVAL ORDER[As to the Proposed Economic and Property Damages Class Action Settlement]
Pinellas Marine Salvage, Inc., John Mavrogiannis, and Selmer M. Salvesen ("Plaintiffs"),on behalf of themselves and other Class Members of the Proposed Economic and PropertyDamages Class Action Settlement
who are victims of the “Delay, Deny, Defend” strategy
of Kenneth R. Feinberg, et al., respectfully request that this Honorable Court: (a) nullify each
and every Gulf Coast Claims Facility (“GCCF”) “Release and Covenant Not to Sue;” and
(b) vacate its Preliminary Approval Order [As to the Proposed Economic and PropertyDamages Class Action Settlement], Rec. Doc. 6418 dated May 2, 2012, for the followingreasons.
PRELIMINARY STATEMENT
On February 25, 2011, Pinellas Marine Salvage, Inc. and John Mavrogiannis filed theiraction against Defendants Kenneth R. Feinberg and Feinberg Rozen, LLP, d/b/a Gulf CoastClaims Facility, in the Circuit Court of the Sixth Judicial Circuit in and for Pinellas County,
Case 2:10-md-02179-CJB-SS Document 7461-1 Filed 09/24/12 Page 1 of 25
 
Florida asserting claims for gross negligence, negligence, negligence per se, fraud, fraudulentinducement, promissory estoppel, and unjust enrichment under Florida state law. The case wassubsequently transferred by the JPML to the MDL 2179 Court on August 9, 2011.
See Pinellas Marine Salvage, Inc., et al. v. Kenneth R. Feinberg, et al.
, 2:11-cv-01987.On June 15, 2011, Plaintiff Salvesen filed his action against Defendants Kenneth R.Feinberg, Feinberg Rozen, LLP, GCCF, and William G. Green, Jr. in the Circuit Court of theTwentieth Judicial Circuit in and for Lee County, Florida asserting claims for gross negligence,negligence, negligence per se, fraud, fraudulent inducement, promissory estoppel, and unjustenrichment under Florida state law. The case was subsequently transferred by the JPML to theMDL 2179 Court on October 6, 2011.
See Salvesen v. Feinberg, et al.
, 2:11-cv-02533.Plaintiffs Pinellas Marine Salvage, Inc. and John Mavrogiannis re-filed their Motion toRemand and Memorandum in Support with this Honorable Court on November 14, 2011 (Rec.Doc. 4574). On December 1, 2011, Plaintiffs Pinellas Marine Salvage, Inc. and JohnMavrogiannis filed their Motion in Opposition to Class Certification of Any Action in MDL No.2179 and Memorandum in Support (Rec. Doc. 4782). Plaintiffs Pinellas Marine Salvage, Inc.and John Mavrogiannis filed their Motion to Vacate Preliminary Approval Order [As to theProposed Economic and Property Damages Class Action Settlement] and Memorandum inSupport on July 13, 2012 (Rec. Doc. 6902 and 6902-1) (a copy of Rec. Doc. 6902-1 is attachedhereto as Exhibit A). These three motions remain pending in this Honorable Court.Plaintiff Salvesen re-filed his Motion to Remand and Memorandum in Support with thisCourt on November 14, 2011 (Rec. Doc. 4575). On December 4, 2011, Plaintiff Salvesen filedhis Motion in Opposition to Class Certification of Any Action in MDL No. 2179 and-2-
Case 2:10-md-02179-CJB-SS Document 7461-1 Filed 09/24/12 Page 2 of 25
 
Memorandum in Support (Rec. Doc. 4798). Plaintiff Salvesen filed his Motion to Vacate Orderand Reasons [As to Motions to Dismiss the B1 Master Complaint] and Memorandum in Supporton April 8, 2012 (Rec. Doc. 6186). Plaintiff Salvesen filed his Motion to Vacate PreliminaryApproval Order [As to the Proposed Economic and Property Damages Class Action Settlement]and Memorandum in Support on July 2, 2012 (Rec. Doc. 6831 and 6831-1) (a copy of Rec. Doc.6831-1 is attached hereto as Exhibit B). These four motions remain pending in this Court.
I. BACKGROUNDA. The GCCF Payment Methodology
During GCCF Phase I, the GCCF implemented a claims process by which eligibleclaimants would receive compensation for the loss of earnings or profits, removal and clean-upcosts, real or personal property damage, loss of subsistence use of natural resources and physicalinjury or death caused by the Spill by submitting a lesser level of documentation than would berequired in later stages of the GCCF. This was known as the Emergency Advance Payment
(“EAP”) claims process. The GCCF accepted EAP claims from August 23, 2010 through
November 23, 2010. A claimant who received an EAP was not required to execute a release andcovenant not to sue BP or any other party.
During GCCF Phase II, known as the “Interim Payment/Final Payment” claims process,
the GCCF received the following three types of claims:(a) Interim Payment Claim:
 
An eligible claimant could elect to file an Interim PaymentClaim to receive compensation for documented past losses or damages caused by theSpill for which the claimant previously had not been compensated by the BP-operatedfacility, the GCCF or the Real Estate Fund.
A claimant seeking an Interim Paymentwas not required to sign a release and covenant not to sue
and, therefore, was able tofile future Interim Payment, Quick Pay Final Payment and Full Review Final PaymentClaims. According to the protocol, a claimant was permitted to file only one InterimPayment Claim per quarter.-3-
Case 2:10-md-02179-CJB-SS Document 7461-1 Filed 09/24/12 Page 3 of 25

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