Move to void all Feinberg/GCCF Releases in BP Gulf Oil Spill

Kenneth Feinberg misrepresented himself as a neutral when administering BP's statutorily-mandated claims operation before the establishment of the Court-supervised Deepwater Horizon Settlement.  Now a group of claimants has moved to nullify the releases and covenants not to sue obtained by Feinberg. - gwc
BP Oil Spill Plaintiffs Move to Void Every GCCF Release and Covenant Not to Sue

May 28, 2015 2:44am PDT by Brian J Donovan (Counsel for plaintiffs)

Daily Kos

The “Release and Covenant Not to Sue” requirement, which was the idea of Kenneth R.   Feinberg, forces economically and emotionally-stressed victims of the BP oil spill to sign a “Release and Covenant Not to Sue” in order to receive a miniscule payment amount for all damages, including future damages, they incur as a result of the BP oil spill.
The following is an excerpt from the memorandum of law which the plaintiffs filed in support of their Motion to Nullify.
I.    The Oil Pollution Act of 1990
The Oil Pollution Act of 1990 (OPA) is a strict liability statute. In order to recover damages under OPA, a claimant merely needs to show that his or her damages “resulted from” the oil spill.
OPA, in pertinent part, states:
“The responsible party for a vessel or a facility from which oil is discharged, or which poses the substantial threat of a discharge of oil, into or upon the navigable waters or adjoining shorelines or the exclusive economic zone is liable for the removal costs and damages that result from such incident.” See 33 U.S.C. § 2702(a).
The damages referred to in 33 U.S.C. § 2702(a) include, but are not limited to:
“Damages equal to the loss of profits or impairment of earning capacity due to the injury, destruction, or loss of real property, personal property, or natural resources, which shall be recoverable by any claimant.” 33 U.S.C. § 2702(b)(2)(E).
OPA further provides:
(a) “Payment or settlement of a claim for interim, short-term damages representing less than the full amount of damages to which the claimant ultimately may be entitled shall not preclude recovery by the claimant for damages not reflected in the paid or settled partial claim.” 33 U.S.C. § 2705(a); and
(b) “Payment of such a claim [i.e. payment to a claimant for interim, short-term damages representing less than the full amount of damages to which the claimant ultimately may be entitled] shall not foreclose a claimant’s right to recovery of all damages to which the claimant otherwise is entitled under this Act or under any other law.’’ 33 U.S.C. §§ 2715(b)(1) and (2).
"Shall" means shall. The Supreme Court has made clear that when a statute uses the word "shall," Congress has imposed a mandatory duty upon the subject of the command. See United States v. Monsanto, 491 U.S. 600, 607, 109 S.Ct. 2657, 105 L.Ed.2d 512 (1989).
Use of “shall” and “may” in statutes also mirrors common usage; ordinarily “shall” is mandatory and “may” is permissive. “The mandatory ‘shall’ ……normally creates an obligation impervious to judicial discretion.” Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35 (1998).
Justice Souter, in delivering the opinion of the Lexecon Court, explained, “If we do our job of reading the statute whole, we have to give effect to this plain command, see Estate of Cowart v. Nicklos Drilling Co., 505 U. S. 469, 476 (1992), even if doing that will reverse the longstanding practice under the statute and the rule, see Metropolitan Stevedore Co. v. Rambo (1995) (“Age is no antidote to clear inconsistency with a statute.” (quoting Brown v. Gardner, 513 U. S 115, 122 (1994))). The language is straightforward, and with a straightforward application ready to hand, statutory interpretation has no business getting metaphysical.”
As the Supreme Court further explained,
“[I]n interpreting a statute a court should always turn first to one, cardinal canon before all others. We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there.” Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253–54 (1992).
II.    OPA clearly prohibits Kenneth R. Feinberg’s “Release and Covenant Not to Sue.”
This Honorable Court has held:
(a) “While OPA does not specifically address the use of waivers and releases by Responsible Parties, the statute also does not clearly prohibit it;” and
(b) “In fact, as the Court has recognized in this Order, one of the goals of OPA was to allow for speedy and efficient recovery by victims of an oil spill.”
Plaintiffs respectfully point out that this Honorable Court’s reasoning, while novel, is wrong for the following reasons.
The text and the legislative history of the OPA statute are clear. OPA clearly prohibits Responsible Parties from engaging in a “Delay, Deny, Defend” strategy wherein the victims of an oil spill are starved and ultimately forced to sign a “Release and Covenant Not to Sue” in order to receive an inadequate, miniscule payment amount for the damages, including future damages, they incur as a result of the oil spill.
As noted supra, "Shall" means shall. “The mandatory ‘shall’ ……normally creates an
obligation impervious to judicial discretion.” Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35 (1998).
This Honorable Court further notes it has recognized that “one of the goals of OPA was to allow for speedy and efficient recovery by victims of an oil spill.” Plaintiffs respectfully point out that OPA requires more than merely “speedy and efficient.” OPA requires that all oil spill victims are fully compensated. Furthermore, the purpose of the Federal Rules of Civil Procedure is "to secure the just, speedy, and inexpensive determination of every action and proceeding." Fed. R. Civ. P. 1. A Plaintiff turns to the Court in search of justice, not merely a “speedy and efficient” determination of his or her case.
OPA’s legislative history is shot through with general statements indicative of congressional intent to ensure that all oil spill victims are fully compensated. 135 CONG. REC. H7959 (daily ed. Nov. 2, 1989) (statement of Rep. Tauzin) (“ensure that all victims are fully compensated”); 135 CONG. REC. H7964 (daily ed. Nov. 2, 1989) (statement of Rep. Hammerschmidt) (“ensure that all justified claims for compensation are satisfied”); 135 CONG. REC. H7969 (daily ed. Nov. 2, 1989) (statement of Rep. Dyson) (“assurances that damages arising from spills will be completely compensated”); 136 CONG. REC. H336 (daily ed. Feb. 7, 1990) (statement of Rep. Carper) (“ensure that those people or those businesses that are damaged by these spills are fairly and adequately compensated”); 136 CONG. REC. S7752 (daily ed. June 12, 1990) (statement of Sen. Mitchell) (“ensure the fullest possible compensation of oil spill victims”); S. REP. NO. 101–94, at 12 (1989), reprinted in 1990 U.S.C.C.A.N. 722, 734. (“These provisions are intended to provide compensation for a wide range of injuries and are not so narrowly focused as to prevent victims of an oil spill from receiving reasonable compensation.”); 135 CONG. REC. H7893 (daily ed. Nov. 1, 1989) (statement of Rep. Quillen) (“full, fair, and swift compensation for everyone injured by oil spills.”).
Efficiency is not the only touchstone of justice. A substantial body of opinion and a respect for jurisdictional principles suggest that a plaintiff ordinarily has a right to a trial in the forum of his or her choosing. See, e.g., Koster v. (Am.) Lumbermens Mut. Cas. Co., 330 U.S. 518, 524 (1947) (noting that a plaintiff ordinarily should not be denied the advantages of his chosen jurisdiction). Aggregation of cases for the purpose of facilitating settlement is a byproduct of §1407, but is not its central statutory purpose. See In re Patenaude, 210 F.3d 135, 144 (3d Cir. 2000).
Judicial economy is undoubtedly well-served by MDL consolidation when scores of similar cases are pending in the courts. Nevertheless, the excessive delay and marginalization of juror fact finding (i.e., dearth of jury trials) associated with traditional MDL practice are developments that cannot be defended. Delaventura v. Columbia Acorn Trust, 417 F. Supp. 2d at  153 (D. Mass. 2006). The appropriate focus for fund resolution of mass claims should be justice for the claimants, not merely judicial economy and closure for the corporate misfeasor.
A copy of the entire Memorandum of Law is available HERE.
Note: Before you read the comments on this article, I advise you to visit: BP Oil Spill: BP Pays PR Trolls to Threaten Online Critics

Housing as Holdout: Segregation in American Neighborhoods by Rashmi Dyal-Chand :: SSRN

Chris Christie won the governorship of New Jersey by several appeals - the tough on corrupt politicians meme was important.  But his promise to remake the Supreme Court of New Jersey was an important appeal to white anxiety and resentment.  Central to that was his opposition to court-mandated aid to poor school districts and the pledge (carried out) to abolish the Council on Affordable Housing the agency that implemented the Court's Mount Laurel mandate to allow affordable housing in developing suburban municipalities.  Stymied by the Democratic state Senate having failed in his court-makeover, the New Jersey Supreme Court reclaimed jurisdiction and directed the lower courts to enforce the mandate.  It brushed aside the agency (COAH) which had issued no rules or regulations after the Court had held Christie had no right to abolish it by executive order.

Rashmi Dyal-Chand, a New Jersey litigator turned law professor, reviewing three books on the persistence and effects of racially segregated housing , observes:

Although the “Mount Laurel Doctrine” was meaningfully diluted by a 1985 statute that allows municipalities to meet their “fair share” of affordable housing by contributing financially to developments in other towns, the doctrine nonetheless has had an extraordinarily positive impact on affordable housing development in New Jersey.

- GWC

Housing as Holdout: Segregation in American Neighborhoods by Rashmi Dyal-Chand :: SSRN

by Rashmi Dyal-Chand  (Northeastern U. School of Law)

How far have people who are not African American gone to keep African Americans out of their neighborhoods? And how far might they go? These are the questions that link the three recent books on housing reviewed in this article: Jeannine Bell, Hate Thy Neighbor: Move-In Violence and the Persistence of Racial Segregation in American Housing; Richard R.W. Brooks and Carol M. Rose,Saving the Neighborhood: Racially Restrictive Covenants, Law and Social Norms; and Douglas S. Massey et al., Climbing Mount Laurel: The Struggle for Affordable Housing and Social Mobility in an American Suburb.

Nebraska Abolishes Death Penalty in Veto Override

The death penalty is not fundamentally opposed by most people. But it is losing practical support. Confidence in the accuracy of the justice system has suffered with the drumbeat of exonerations, and the death penalty is now imposed with such rarity that it feels arbitrary. 
Today the nominally non-partisan but conservative single-chamber state Legislature in Nebraska overrode the veto of Gov. Pete Ricketts (R) and abolished capital punishment in the state which carried out its last execution in 1997.

 Seven years ago I predicted that New Jersey's legislative repeal of capital punishment would be a herald of change. At a one day symposium I organized (proceedings here, key resources here) we heard from prosecutors, defenders, legislators, the Governor, and the citizen group which mobilized to bring about the change. Today Nebraska followed in that track. -gwcNebraska Abolishes Death Penalty - NYTimes.com

by Julie Bosman


LINCOLN, Neb. — Nebraska on Wednesday became the first conservative state in more than 40 years to abolish the death penalty, with lawmakers defying their Republican governor, Pete Ricketts, a staunch supporter of capital punishment who had lobbied vigorously against banning it.

By a 30 to 19 vote that cut across party lines, the Legislature overrode the governor’s veto on Tuesday of a bill repealing the state’s death penalty law. The measure garnered just enough votes to overcome the veto.

The vote at the State Capitol here capped a months long battle that pitted most lawmakers in the unicameral Legislature against the governor, many law enforcement officials and some family members of murder victims whose killers are on death row. The Legislature approved the repeal bill three times this year, each time by a veto-proof majority, before sending it to Mr. Ricketts’s desk.

Read more

Same Sex Marriage in Alabama - Yes, But...

Same-sex marriage for Alabama -- but not yet
by Lyle Denniston

A federal judge in Mobile ruled on Thursday that same-sex marriage must be available throughout Alabama, for any gay or lesbian couple wishing to apply for a license — but not yet.

U.S. District Judge Callie V.S. Granade simultaneously acted on a statewide basis — to make Alabama the thirty-seventh state where such marriages would be legal — but then put her decision on hold until after the Supreme Court rules on the constitutional issue, probably late next month.

In the meantime, no gay or lesbian couple would be able to get a marriage license in Alabama — first, because the judge’s order is not now binding on the 68 state probate judges who issue such licenses, and, second, because the Alabama Supreme Court has barred all of them from doing so.

For weeks, the potential conflict between Judge Granade in federal court and the Alabama’s highest state court has been deepening, and the actions that Granade took on Thursday could have produced a direct confrontation had she not put the new rulings on hold. She did find in her ruling that the state court’s order to the judges not to issue any licenses did not prevent her from ordering them — in an independent legal proceeding — to do so.

In fact, the judge remarked that her order would have bound all 68 judges immediately, but then her own delay order postponed any such command.

In late January, in a pair of cases, Judge Granade had struck down Alabama’s ban on same-sex marriage. But those rulings each involved only a single couple, so the decisions’ binding effect was very limited. Even so, some probate judges began issuing licenses to gay and lesbian couples based on those rulings, and hundreds of those couples were actually married before the state supreme court stepped in and issued a statewide order against any such licensing, at the request of private groups opposed to such marriages. (No same-sex couples were parties in the state supreme court proceeding.)

In the meantime, lawyers for same-sex couples made a new maneuver in Judge Granade’s court. They sought, under federal court Rule 23, the creation of a statewide class that would include any same-sex couple wishing to marry, with the order to be made binding on all 68 probate judges.

They also asked the judge to issue a statewide order requiring that any member of the class who sought a license be given one by any probate judge in any county.

On Thursday, after weeks of legal maneuvering by both sides, the Mobile judge acted: She did create the class, likely to include 7,000 or more same-sex couples, at least some number of whom — perhaps many — would want to take advantage of the opportunity to wed. She did so in an eighteen-page opinion, finding that the statewide class would satisfy all of the requirements of Rule 23, and so would a class on the other side of all 68 probate judges.

Then, borrowing the reasoning of her January rulings that the Alabama ban was unconstitutional, she issued a fourteen-page opinon extending the order to issue marriage licenses to all counties in the state, for all couples seeking such permission.

That opinion laid out all of her reasoning for the new decision, then concluded with specific orders: once again, striking down the state ban, then barring all 68 judges from enforcing the state ban, and also requiring lawyers for the couples to formally notify the judges of that duty.

If her ruling had stopped at that point, Alabama would have been the latest state where marriage of gays and lesbians had become legal everywhere within its borders. But there was a fourth order, on the last page: “Because the issues raised by this case are subject to an imminent decision by the United States Supreme Court,” her order barring enforcement of the state ban is “stayed until the Supreme Court issues its ruling.”

What would happen to the judge’s new order if the Supreme Court were to find that states have the constitutional authority to refuse to allow same-sex marriages was not mentioned, but the state would almost certainly move immediately in Judge Granade’s court to apply the Supreme Court decision and vacate her rulings.

If the Justices do rule that the right to marry must be open to same-sex couples all across the nation, then Judge Granade’s rulings on Thursday would presumably go into effect very quickly, if not immediately.

An Abridged Treatise on Attorneys' Fees Awards | Law.com

An Abridged Treatise on Attorneys' Fees Awards | Law.com

by David M. Gersten

22nd Century Properties, LLC, et. al. v. FPH Properties, LLC,

No. 4D13-3537 (Fla. 4th DCA 2015)

Judge Robert Gross gives the reader a most informative and entertaining read on the issue of attorneys’ fees awards based on an offer of judgment pursuant to Section 768.79, Florida Statutes (2006). I am stepping out on a writer’s limb to state that the opinion is so well written that it transforms judicial prose into judicial poetry—indeed a hard feat given the subject matter of the opinion.

The case “arises from a real estate venture gone awry.” Apparently, the parties entered into a venture to develop properties for resale. Ultimately, the deal blew up when one partner falsified documents concerning finances and then mined the litigation landscape with stumbling blocks to prevent discovery by the other partner.

During discovery, the “appellants’ scheme unfolded like a peeled onion—each discovery request uncovered a new layer of the ploy.” The appellee had to file twenty-seven discovery motions, moved multiple times for contempt, and had to amend the complaint twice to encompass newly discovered evidence. Although the appellee moved to strike appellants’ pleadings based on fraudulent or deceptive discovery tactics, Trial Judge John J. Murphy, III, stood on the judicial decision making cliff but did not throw the pleading out. Instead, Judge Murphy entered an order excoriating the appellant:

[T]his court will not stand idly by and permit a party to file forged and fraudulent documents, to delay proceedings and to provide falsified responses to discovery requests . . . As such, this Court finds that [FPH] is entitled to recover reasonable attorneys’ fees for the extra work [it] had to undertake.

After the trial, the trial judge awarded over $1.5 million in damages. The damages were based on several causes of action. On appeal, the underlying judgment was affirmed without an opinion.

Meanwhile, two years before the bench trial, the plaintiff served the defendant with a demand for judgment pursuant to 768.79, Florida Statutes (2006), offering to settle the case for a cool $1 million. This set up a post-trial evidentiary hearing on attorneys’ fees where judge Murphy awarded appellee fees. This appeal followed.

The Law of Attorneys’ Fees

Judge Gross’ opinion takes the reader through a concise tour of the law of attorneys’ fees. The opinion touches upon a panoply of important issues like: burden of proof, evidence, expert testimony, interrelated causes of action, trial strategy, Florida Statute Section 768.79, “Lodestar,” proper and improper billing, results attained, and even the appellate court’s standard of review. Because the opinion is comprehensive and this article is limited in length, below is a highlight reel:

Read more 

LBJ Before Selma - Wait!..No, Go! /Andrew Sprung -xpostfactoid

LBJ before Selma: wait -- no, go | xpostfactoid
by Andrew Sprung

After seeing Ava DuVernay' Selma a few weeks ago, I bought Nick Kotz's Judgment Days: Lyndon Baines Johnson, Martin Luther King, Jr. and the Laws that Changed America (2005). It's a digest of LBJ and King's interactions, beginning in fruitful if sometimes tense collaboration and ending in tragic enmity.  I can't say how central a source this book itself was for the movie, but the encounters it records indicate that those who claim that Johnson was more supportive of the voting rights campaign than their early encounter in the movie implies and those who claim that the scene is an accurate depiction of a pre-Selma encounter are both right. - 
read more

Court hearing China's landmark NGO environmental lawsuit - China - Chinadaily.com.cn

China in 2014 revised its Environmental Protection Law.  Article 58 grants registered  public interest organizations standing to sue.  Though hampered by minimal resources, and judicial inexperience, but emboldened by the strong policy support found in the law, NGO's have begun to take up the challenge. - gwc

Court hearing China's landmark NGO environmental lawsuit - China - Chinadaily.com.cn



(Xinhua)

BEIJING -- A Chinese court has begun hearing a lawsuit filed by green organizations against a quarry for environmental damage in a landmark case empowered by China's strengthened environmental law.

The case, filed by Friends of Nature and Fujian Green Home, opened in Nanping Municipal Intermediate People's Court in the southeastern province of Fujian on Friday.

The two NGOs accuse four people of running an unlicensed quarry that has severely damaged vegetation on a hill in Nanping City since 2008, demanding they take responsibility for restoration work, said a lawyer for the plaintiffs.

This is the first NGO-filed case over non-pollution-related environmental damage to be heard in a Chinese court since the amended Environmental Protection Law took effect on January 1.

The law allowed city-level NGOs to launch environmental lawsuits, which conservationists said encourages more social forces to join the battle against profit-obsessed companies and local governments who neglect their green liabilities.

China has only about 80,000 officials enforcing its environmental laws, which experts say is far from enough for overseeing the country's 1.5 million companies, counting the registered ones only.

But about 700 organizations can join the fight under a new law, which allows any NGO registered at city-level or higher that has specialized in environmental protection for more than five years to initiate legal cases on pollution and environmental damage, legal experts said.

"Such environmental lawsuits can deter polluting factories by raising their lawbreaking costs and by encouraging public supervision," said Ma Yong, legal expert with the All-China Environment Federation.

But Ma said the many difficulties, including high expenses, that are involved in launching such legal actions mean a remarkable increase in environmental lawsuits is unlikely. He also opposed overpraising such cases.

"Such lawsuits are important supplement to government law enforcement and the last defense line, but not replacement," Ma said. "Most of the environmental problems still need to be solved by the government."

Public-Sector Jobs Vanish, Hitting Blacks Hard - NYTimes.com

Is anti-government and anti-tax sentiment unrelated to anti-Black sentiment?  It is practically, if not logically linked.  The sentiments converge. - gwc

Public-Sector Jobs Vanish, Hitting Blacks Hard - NYTimes.com

by Patricia Cohen


For the Ingrams and millions of other black families, working for the government has long provided a dependable pathway to the middle class and a measure of security harder to find in the private sector, particularly for those without college degrees.

Roughly one in five black adults works for the government, teaching school, delivering mail, driving buses, processing criminal justice and managing large staffs. They are about 30 percent more likely to have a public sector job than non-Hispanic whites, and twice as likely as Hispanics.

“Compared to the private sector, the public sector has offered black and female workers better pay, job stability and more professional and managerial opportunities,” said Jennifer Laird, a sociologist at the University of Washington who has been researching the subject.

During the Great Recession, though, as tax revenues plunged, federal, state and local governments began shedding jobs. Even now, with the economy regaining strength, public sector employment has still not bounced back. An incomplete recovery is part of the reason, but a combination of strong anti-government and anti-tax sentiment in some places has kept down public payrolls. At the same time, attempts to curb collective bargaining, like those led by Wisconsin’s governor, Scott Walker, a likely Republican presidential candidate, have weakened public unions.

In Memoriam: Bob Donovan, Mike Cunnion, Jack Martin

Voyages>`·.¸¸.·´¯`·...¸><((((º>: In Memoriam: Bob Donovan, Mike Cunnion, Jack Martin

Remembering my three classmates at Holy Cross College who died in Vietnam. - gwc

Teachers protest Washington school fubding failure

Despite a. State Supreme Court contempt citation, the Washington legislature has failed to fund K~12 schools.
http://educationvotes.nea.org/2015/05/21/thousands-of-wa-educators-stage-rolling-walkouts-over-school-funding/?utm_source=EdVotes&utm_medium=email&utm_content=WashingtonWalkouts&utm_campaign=052315EdVotesEmail