Florida Plaintiffs Vow to Hold Kenneth R. Feinberg, Feinberg Rozen, LLP, and GCCF Accountable for “Delay, Deny, Defend” Strategy
Florida Plaintiffs Vow to Hold Kenneth R. Feinberg, Feinberg Rozen, LLP,
and GCCF Accountable for “Delay, Deny, Defend” Strategy
Plaintiffs Refile Motions to Remand With MDL 2179 Court
Tampa, FL (November 10, 2011) – Pinellas Marine Salvage, Inc., et al. v. Kenneth R. Feinberg, et al. and Salvesen v. Kenneth R. Feinberg, et al. were originally filed in Florida state court. Since the Judicial Panel on Multidistrict Litigation (“JPML”) has no power over cases pending in state courts, Defendants removed each case to federal court (“Middle District of Florida Court”). Defendants removed each case to federal court solely for the purpose of being able to subsequently file a “tag-along” notice with the JPML for the hopeful transfer of the cases to MDL 2179 in the United States District Court for the Eastern District of Louisiana. A Motion to Remand to State Court was filed by Plaintiffs in each case. Each case was transferred to MDL 2179 by the JPML before the Middle District of Florida Court determined the threshold jurisdictional issue: whether removal from state court was proper.
Earlier today, Plaintiffs’ counsel refiled the Pinellas and Salvesen motions to remand with the MDL 2179 Court.
In order to efficiently manage MDL 2179, the Court consolidated and organized the various types of claims into several “pleading bundles.” The “B1” pleading bundle includes all claims for private or “non-governmental economic loss and property damages.” There are in excess of 100,000 individual claims encompassed within the “B1” bundle.
On January 12, 2011, the MDL 2179 Court issued PTO No. 25, in order to clarify “the scope and effect” of the “B1” bundle Master Complaint. The Court held that any individual plaintiff who is a named plaintiff in a case that falls within pleading bundle “B1” “is deemed to be a plaintiff in the “B1” Master Complaint.” Also, “the allegations, claims, theories of recovery and/or prayers for relief contained within the pre-existing petition or complaint are deemed to be amended, restated, and superseded by the allegations, claims, theories of recovery, and/or prayers for relief in the respective “B1” Master Complaint(s) in which the Defendant is named.”
“B1” Master Complaint
In the “B1” Master Complaint, the Plaintiffs’ Steering Committee (“PSC”) alleged claims under general maritime law, the Oil Pollution Act of 1990 (“OPA”), 33 U.S.C. § 2701, et seq., and various state laws. Under general maritime law, PSC alleged claims for negligence, gross negligence, and strict liability for manufacturing and/or design defect. Under various state laws, PSC alleged claims for nuisance, trespass, and fraudulent concealment, and also alleged a claim for strict liability under the Florida Pollutant Discharge Prevention and Control Act, Fla. Stat.
§ 376.011, et seq. Additionally, PSC sought punitive damages under all claims and requested declaratory relief regarding any settlement provisions that purport to affect the calculation of punitive damages.
On August 26, 2011, the MDL 2179 Court granted in part Defendants’ Motions to Dismiss the “B1” Master Complaint. The Court ruled: (a) Admiralty jurisdiction is present because the alleged tort occurred upon navigable waters of the Gulf of Mexico, disrupted maritime commerce, and the operations of the vessel bore a substantial relationship to traditional maritime activity. With admiralty jurisdiction comes the application of substantive maritime law; (b) State law, both statutory and common, is preempted by maritime law, notwithstanding OPA’s savings provisions. All claims brought under state law are dismissed; and (c) General maritime law claims that do not allege physical damage to a proprietary interest are dismissed under the Robins Dry Dock rule, unless the claim falls into the commercial fishermen exception. In re Oil Spill by the Rig Deepwater Horizon in the Gulf of Mexico, on April 20, 2010, – – F. Supp. 2d – -, 2011 WL 3805746 (Aug. 26, 2011 E.D. La.).
Pinellas, et al. v. Feinberg, et al. and Salvesen v. Feinberg, et al.
Pinellas Marine Salvage, Inc., et al. v. Kenneth R. Feinberg, et al. and Selmer M. Salvesen v. Kenneth R. Feinberg, et al. are the only two cases of their kind filed in any court in the country. In each case, the complaint alleges, in part, that Defendants Kenneth R. Feinberg, Feinberg Rozen, LLP, and Gulf Coast Claims Facility (“GCCF”) misled Plaintiffs by employing a “Delay, Deny, Defend” strategy against them. This strategy, commonly used by unscrupulous insurance companies, is as follows: “Delay payment, starve claimant, and then offer the economically and emotionally-stressed claimant a miniscule percent of all damages to which the claimant is entitled. If the financially ruined claimant rejects the settlement offer, he or she may sue.”
Both cases, originally filed in Florida state court, are brought by Plaintiffs under the following seven identical causes of action: (a) Gross Negligence; (b) Negligence; (c) Negligence Per Se; (d) Fraud; (e) Fraudulent Inducement; (f) Promissory Estoppel; and (g) Unjust Enrichment. Defendants in both cases are the same, with the exception that William G. Green, Jr. (“Overseer” of all seafood claims for Defendant GCCF in the State of Florida and “Liaison” to GCCF who is in charge of implementing Defendants’ “Delay, Deny, Defend” strategy) has also been named as a defendant in the Salvesen case.
Plaintiffs do not assert any claims under OPA and rely solely on state law. Plaintiffs’ allegation that Defendants are in violation of OPA is merely evidence of, at the very least, Defendants’ negligence.
BP is responsible for the oil spill incident. Feinberg, et al. (independent contractors), via employment of their “Delay, Deny, Defend” strategy, are responsible for not compensating and thereby financially ruining the Pinellas and Salvesen plaintiffs and over 100,000 other victims.
The Pinellas and Salvesen plaintiffs, and all victims of the BP oil spill, continue to suffer damages from three separate sources: (a) once from the oil spill, the environmental and economic damages of which have devastated their way of life; (b) again by being left in financial ruin as a direct result of Defendants’ tortious acts; and (c) a third time for daring to demand justice, which will consume their time, energy and hopes for years to come if they are held hostage by protracted litigation.
The passage of time is the defendant’s best friend. Memories fade, witnesses are more difficult to locate, and plaintiffs lose the desire to continue to fight and either “move on” or settle for less. By declining to permit formal discovery on Kenneth R. Feinberg and the GCCF, the MDL 2179 Court is ensuring that the defendants will not be held accountable and, more importantly, the claimants-turned-plaintiffs will not be fully compensated for damages.
Discovery on Feinberg/GCCF and the associated pressure of a trial are required in order exert pressure on the parties to negotiate a settlement which reflects the true value of the claims and not one which focuses on minimizing the liability of Feinberg Rozen, LLP, Feinberg/GCCF, and the responsible parties.
Neither the Pinellas nor the Salvesen case has been dismissed by the MDL 2179 Court. Plaintiffs in both cases look forward to eventually having their cases remanded to Florida state court where they will be able to hold Defendants accountable.