My Thoughts on the BP Settlement “Fairness Hearing”

I had hoped to write a full article concerning my thoughts on the subject of the BP Settlement Fairness Hearing held Thursday, November 8, but I (along with 3 others) was wrongfully accused of “live streaming audio,” and forcibly removed from the federal courtroom. I won't go into that now, but you can read Ada McMahon's article for more information.

All I can tell you is that I wasn't. We didn't. And that is the most worrisome part of our ejection – it was so easy for impacted citizens to be barred from a public hearing that directly affects their future. Even though I personally don't have a legal dog in this fight, Kindra Arnesen and Michelle Chauncey (who were removed with me), and thousands of Gulf Coast citizens do. Kindra's husband is a commercial fisherman in Buras, Louisiana and Michelle used to sell crabs in Westwego, Louisiana, before the BP disaster put them out of work and made them and their families sick. This same story has happened for thousands across the Gulf Coast - the BP oil disaster turned their entire lives upside down and what happens with this settlement can either be a step toward making amends for that or can become yet another in a long line of slaps in the face.

Sadly, the precedence set by this court once again mirrors that which seems to be an almost continuous assault on our basic civil liberties concerning the redress of our governmental entities.

But honestly my concern for this settlement process goes far deeper than being blocked from the courtroom that day. I can understand that they were fearful of an outburst, although neither  my friends or I had any intention of doing so. The real question is why were we not allowed to speak in the first place? This “Fairness Hearing” was never about the public, in that only BP, the Plaintiffs' Steering Committee (PSC) and a handful of additional plaintiffs' attorneys had been given the right to comment at all.

Further, those that were allowed to give objections were repeatedly admonished by either BP, the PSC or Judge Barbier, as having no real standing with which to do so. In an article for WWL-TV, journalist David Hammer accurately described the judge's obvious disapproval of the objecting lawyers who spoke at the hearing, noting that, “Barbier listened quietly to the BP and plaintiffs' lawyers who support the settlement..,” yet, "when Barbier started listening to lawyers for some of the 13,000 registered objectors to the settlement, he challenged them at almost every turn.”

Photo: A rally outside the Federal Courthouse in New Orleans in February 2012 called for BP to be brought to justice.

Basically, the judge, BP and/or the PSC consistently aligned against any attorney who voiced an opinion not in favor of the proposed settlement. If an objector did not have clients who had opted out of the settlement, their arguments against the proposal were verbally rejected because their clients were not involved. Yet if a challenging attorney's clients had taken the settlement, the court claimed that they had no standing because their clients had already acceded to the agreement.

Who exactly was left to object? Everyone who tried had their arguments cut down within minutes of starting.

Not that this is surprising, motivation for all three entities to settle is high at this point. BP, like anyone who faces liability for a disastrous event, wants to finish this as easily and with the lowest payout as possible. Additionally, after months of grueling negotiations, the PSC's goal would now be to sign on as many people as they can as well. As for the judge, he granted preliminary approval to the settlement back in May of this year.

Even objective evidence presented at the hearing came into question. Catch records from the Louisiana Department of Wildlife and Fisheries which showed alarmingly low seafood catches since the disaster, submitted on behalf of the GO FISH coalition by counsel Joel Walzer, was discounted immediately by Patrick Juneau, the administrator of the claims process established by the settlement, who cited the record as not “accepted” as entered court evidence.

Misleading statistical evidence, which cited 95 percent of plaintiffs as having accepted the settlement, was commonly referred to as proof of “fairness.” But that number excludes all plaintiffs who did not reply to the PSC regarding the request for approval. In other words, people who did not respond to the court because they were not interested in taking the settlement at all were not counted.

Throughout the proceeding, and at every turn, it seems that BP, the PSC and the judge himself were on the same side opposing any and all objections to accepting the deal.

Repeatedly the judge reminded those in attendance of the possible pitfall of not taking the settlement and winding up in a long drawn out litigation process. That assertion was only surpassed in frequency by the amount of times the PSC and BP attorneys congratulated themselves on what a wonderful job they had done in putting the proposal together in the first place.

In fact, there was so much cheerleading and back patting by the three throughout the proceedings, I thought for a moment the observers in the front row were going to jump up and do the wave.

But then, what would you expect when you consider the sanity of the court proceedings thus far? After all, the hearing to decide the fairness of the settlement was held a full week past the deadline when individuals or businesses were allowed to opt out.  This decision was made by a judge who refused to lengthen the time limit on that deadline, yet had no problem pushing back the Department of Justice led trial against BP until after Mardi Gras and the Superbowl.

Again, I must say, that I intentionally do not have a claim to settle. The opinions expressed here are my own, and I certainly am not telling anyone to take or not to take this settlement. It is just a worry to me that this court, on some level, has quickly become a continuation of the “dog and pony show,” that has characterized so much of this disaster.

With so many of our Gulf Coast families' health and economic recovery hang in the balance, it is unnerving to suspect that once again BP is large and in charge of every aspect of the outcome of this proceeding. It seems that even in the hallowed federal court system, whose very mission should be to protect the people, justice for the families of the Gulf Coast remains elusive. We deserve better.

Cherri Foytlin is a journalist, mother of six and wife of an oil worker, who lives in south Louisiana. She is the author of "Spill It! The Truth About the Deep Water Oil Rig Explosion," and regularly contributes to www.BridgeTheGulfProject.org, The Huffington Post, and several local newspapers. In the Spring of 2011 she walked to Washington D.C. from New Orleans (1,243 miles) to call for action to stop the BP Drilling Disaster, and has been a constant voice speaking out for the health and ecosystem of Gulf Coast communities, in countless forms of media. As founder of "28 Stones," - a Gulf based media project which focuses on national movement building through art, photography, video and written word - she is working to, "help build the foundation for a cooperative and unified amplification of voices and needs, particularly of Gulf Coast communities, across the nation and globe."