Thursday, January 20, 2011

Legal Ethics Forum: Claims Facilities and Nullification of Ethical Duties

Monroe Freedman asks: Is there something rotten in Denmark?
Legal Ethics Forum: Claims Facilities and Nullification of Ethical Duties

The reference is to the Gulf Coast Claims Facility run by Kenneth Feinberg, to the agreement his firm entered with BP, and the ethics opinion Feinberg obtained from ethics maven Stephen Gillers here (for which expense he will be reimbursed by BP).

BP/Feinberg contract: is he really independent?

Joanne Doroshow of the Center for Justice and Democracy asks whether performance incentives in the contract between BP and neutral claims administrator Kenneth Feinberg.

HERE is the document.

Monday, January 17, 2011

Remedies: Supreme Court barred back pay awards for undocumented aliens

The 1935 National Labor Relations (Wagner) Act created the National Labor Relations Board.  The NLRB  has a thin remedial palette.  In the face of a finding of an unfair labor practice it can make findings of fact, award back-pay, issue a prospective orders to cease and desist or to take affirmative actions, require posting of notices, but not it cannot impose fines or penalties.  Nor can it  issue an injunction or find a party in contempt: for that it must go to the District Court for enforcement of its directives.

In 2002 in a 5-4 decision the Supreme Court held that the Board could not order a back pay award to benefit an undocumented alien who had been the victim of an unfair labor practice.  Justice Stephen Breyer wrote the dissent for the usual suspects.  He was not concerned that the NLRB order would violate the immigration laws.  Contrary to the majority, he was of the view that toothless remedies invited defiance of the laws prohibiting employment of undocumented immigrants.  It is the classic glass half-full problem.  The conservatives want to bar the aliens, the liberals see them as likely victims of oppressive employers.

The Hoffman Plastic v. NLRB decision is HERE

OTHERWISE: Loans for Lawsuits Remain Largely Unregulated -

The story by Gary Tramontina begins:
Larry Long, debilitated by a stroke while using the pain medicine Vioxx, was facing eviction from his Georgia home in 2008. He could not wait for the impending settlement of a class-action lawsuit against the drug’s maker, so he borrowed $9,150 from Oasis Legal Finance, pledging to repay the Illinois company from his winnings.
Carolyn and James Williams. Ms. Williams borrowed $5,000 in 2007 from USClaims while pursuing a disability suit. Her case is unresolved and her debt to USClaims stands at $18,976.
“It’s not for everyone, but it’s there when you need it,” said Harvey Hirschfeld of LawCash.
By the time Mr. Long received an initial settlement payment of $27,000, just 18 months later, he owed Oasis almost the entire sum: $23,588.
OTHERWISE: Loans for Lawsuits Remain Largely Unregulated -

Wednesday, January 12, 2011

The Verdict on the Spill -

The Times editorial on the Final Report:

What’s new are the recommendations. All are sound, and most will require Congressional help.

SAFETY The commission recommended much tougher rules governing basic drilling issues like well design and vital equipment like blowout preventers. Some of these have already been put in place by the Interior Department. More broadly, it urged Congress to create an independent safety agency within the department free of any political influence and with enforcement authority to oversee all aspects of offshore drilling.

FINANCING Though it did not specify a figure, the commission implored Congress to provide “adequate and predictable” financing for regulatory oversight. It noted that money for federal regulators had remained static for 20 years while the risks associated with drilling increased dramatically as rigs moved into deeper and deeper waters.

LIABILITY The commission noted that the present $75 million liability cap for individual accidents is hardly enough to deter sloppy behavior. It recommended a much higher figure, without identifying one.

SCIENCE The Deepwater Horizon explosion revealed that both industry and federal regulators had given environmental reviews short shrift. The commission recommends that Congress amend the various laws governing offshore drilling to make sure that government scientists and fish and wildlife experts are consulted at every step of the process — from the leasing of areas for exploration to the actual drilling of individual wells.

RESTORATION Congress is urged to dedicate 80 percent of the penalties assessed under the Clean Water Act — they could be as high as $20 billion — to restoring the fragile Mississippi Delta ecosystem. The commission’s other co-chairman, William Reilly, noted that the delta had been badly degraded over the years and “is likely to continue silently washing away unless decisive action is taken.”

OTHERWISE: Iowa Gov. Branstad says Justice same-sex vote not impeachable offense

OTHERWISE: Iowa Gov. Branstad says Justice same-sex vote not impeachable offense

Tuesday, January 11, 2011

Final Report - National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling

 "a culture of complacency"
from the Final Report to the President:

"Drilling in deepwater brings new risks, not yet completely addressed by the reviews of where it is safe to drill, what could go wrong, and how to respond if something does  go awry. The drilling rigs themselves bristle with potentially dangerous machinery. The deepwater environment is cold, dark, distant, and under high pressures—and the oil and gas reservoirs, when found, exist at even higher pressures (thousands of pounds per square inch), compounding the risks if a well gets out of control. The Deepwater Horizon and Macondo well vividly illustrated all of those very real risks. When a failure happens at such depths, regaining control is a formidable engineering challenge—and the costs of failure, we now know, can be catastrophically high.  

In the years before the Macondo blowout, neither industry nor government adequately  addressed these risks. Investments in safety, containment, and response equipment and  practices failed to keep pace with the rapid move into deepwater drilling. Absent major  crises, and given the remarkable financial returns available from deepwater reserves, the  business culture succumbed to a false sense of security. The Deepwater Horizon disaster  exhibits the costs of a culture of complacency."
Final Report (Released 01/11/2011) | National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling

A ‘Job-Killing’ Law? |

House Republicans misrepresent the facts. Experts predict the health care law will have little effect on employment.
January 7, 2011
A ‘Job-Killing’ Law? |

Mass Tort Litigation Blog: Ken Feinberg Cover Story in ABA Journal

Ken Feinberg Cover Story in ABA Journal

Reporter Terry Carter provocatively asks, "Is Ken Feinberg changing mass tort law?" in the articleThe Master of Disasters

Mass Tort Litigation Blog: Ken Feinberg Cover Story in ABA Journal

Gulf Claims Czar Makes Mixed Progress on Transparency Pledges - ProPublica

Kenneth Feinberg - master of disasters
Sasha Chavkin of ProPublica reports:

On Dec. 13, Gulf spill paymaster Kenneth Feinberg promised to increase his operation’s transparency and improve its communication with claimants. Feinberg said he wouldaddress claimants’ struggles to get information about their claims by hiring field staff in the Gulf to answer their questions, publicly releasing his methodology for deciding payments and offering pro bono legal assistance to applicants.
A month later, Feinberg has made mixed progress in carrying out these promises. His reforms so far follow a familiar pattern: He has accepted criticism and responded with substantive changes, but he has also overpromised in setting his timeline for improvements and lagged in their implementation........

Gulf Claims Czar Makes Mixed Progress on Transparency Pledges - ProPublica

Friday, January 7, 2011

Propublica: Déjà-vu? The Report on BP’s Gulf Disaster Echoes Old Findings - ProPublica

Déjà-vu? The National Commission Report on BP’s Gulf Disaster Echoes Old Findings - ProPublica

From the 2003 report from the Scottish Environment Protection Agency following a series of accidents and fires at BP’s huge refinery in Grangemouth, Scotland, in 2000.

The “incidents would not have occurred if BP’s high standards and policies and procedures been followed consistently across the complex.” (Sic)

“The tendency was to place relatively high emphasis on short-term benefits of cost and speed and to be readier to make compromises over longer term issues like plant reliability. Management was perceived by technicians as hurried, and managers expressed similar concerns about technicians.”

“The company did not adequately measure the major accident hazard potential. … BP did not apply the required degree of expertise to some key technical tasks and had no overall plan as to what resources of technically competent people were required to manage the major accident hazards effectively.”

“Control of major accident hazards requires a specific focus on process safety management over and above conventional safety management. … The investigation also found that there was a more optimistic perception of safety performance than might be borne out.”

BP oil spill: Deepwater, deep trouble | Editorial | Comment is free | The Guardian

The National Oil Spill Commission, set up by order of President Obama, has concluded, in a newly released chapter that "most of the mistakes can be traced back to a failure of management". The managers are BP, Halliburton, and Transocean.  the full report is due shortly.
BP oil spill: Deepwater, deep trouble | Editorial | Comment is free | The Guardian

Tuesday, January 4, 2011

Workers' Compensation: The World Trade Center Health Program Expands The Path to Federalization

9/11 responders with Senators Schumer and Gillibrand
from Jon Gelman's workers compensation blog.
Yesterday the US Congress passed and sent to the President, The World Trade Center Health Program, marking yet another advance on the path to federalize the nation's workers' compensation program. The Federally funded and administered program provides for medical evaluation and treatment of occupational medical conditions that have been neglected or ignored by other benefit programs.

The legislation specifically provides for medical monitoring and treatment to eligible emergency responders and recovery and cleanup workers, including those who are Federal employees, who responded to the September 11, 200, terrorist attacks. Furthermore, the program will provide initial health evaluations, monitoring, and treatment to residents and other building occupants and area workers in New York City who were directly impacted and adversely affected by the attacks.