With hundreds of thousands of claimants waiting for recovery across the entire Gulf Coast region, there is a growing number of non-attorney professionals—“claims consultants”, “public adjusters” or CPAs—offering up their services to claimants. But not all representatives are equal and in this particular case “you get what you pay for”, as Whitney Ross, Director of Finance for The Law Office of Thomas L. Young put it. Ross added that claimants who have the potential to receive a significant amount of money if their claim is successful should ask themselves: “would you rather hire a ‘consultant” or individual CPA, or would you rather enlist a consortium of attorneys, investment bankers and accounting firms who have more than 1,200 Gulf Coast clients to date?” .

A recent report from the court-appointed claims administrator should serve as a warning to claimants that hiring non-attorney professionals is a risky move when so much is at stake. In particular, the report expressed serious concern about the numbers of incomplete claims that show up during the review process. Particularly disconcerting is the fact that many of those incomplete claims aren’t just being submitted by claimants without representation. Instead 52%–a majority—of incomplete claims have been submitted by claimants who do have representation. Incomplete documentation seems to be a particular issue for claimants who had already filed a claim with the GCCF and then had it transferred to the Court-Supervised Settlement Program. 48% of incomplete claims fall into this group.

Many of the claim categories defined in the Settlement allow claimants to provide different types of supporting documentation, with some types of documents being stronger than others. When relatively weaker documents are being used, additional supporting information is often required. But the numbers of claimants who fail to provide that additional documentation is shocking. For example, within the Seafood Program, 49.9% of vessel owners, commercial fisherman vessel lessees and boat captains rely on second-tier documentation in their claims, which requires additional supporting data. But 100% of them failed to provide that supporting data, despite the availability of a form that addresses this precise issue.

As these claims processing numbers show, some of the representation that claimants are receiving is downright bad. Ross points out that “For every two claims that are approved one is being rejected, because people who lack expertise in navigating the Deepwater Horizon process are submitting claims.” As attorneys who have been working on this Settlement for months, we expect that we will see many non-attorney processors sued for malpractice as their clients miss out on compensation or receive legal advice from non-attorneys.  According to Ross , “here at The Law Office of Thomas L. Young we have signed up several clients who made the mistake of enlisting the aid of fly-by-night ‘consulting firms’, only to be ignored by these unprofessional organizations. Frankly, the clients got lucky as their previous representation were unable to file a claim that would likely have been rejected.”

Submitting a claim to the Settlement program is one thing. But submitting a claim that has a strong chance of success, that approaches the claim from every conceivable angle and that maximizes a claimants’ opportunity for recovery is something else entirely. It requires a deep understanding of the Settlement and the legal issues involved. With as much at stake as there is for BP Settlement claimants, strong, professional representation throughout the claims process is a must.

Claims administrators have estimated that nearly 40% of submitted claims are incomplete. When it comes to claims submitted by individuals for their individual economic loss, that number is 90%, especially when the individual seeks recovery for employment-related benefits losses, reimbursable search costs or reimbursable training costs.

To help make sure that claimants are sending in the necessary documentation, the Claims Program recently reminded individual claimants of the types of documents that they need to submit with their claim to make sure it is processed promptly. Claimants generally have several different types of documents they can choose from in order to support the losses or expenses that they would like covered. The important thing is to make sure you include this documentation.

To use the Check Status Portal, claimants will have to provide a Deepwater Horizon Claimant ID, the last four digits of their taxpayer ID or social security number, and enter a security code that appears on the login page. Once a claim successfully logs on to the Check Status Portal, the claimant will be able to see the types of claims that they have submitted and their processing status, including dates that actions were taken with regard to their claim. The information also includes important deadlines by which the claimant may need to respond to settlement notices.

In using the Check Status Portal, it is important for claimants to understand that they cannot use it to submit additional claim information or to respond to Notices. Those actions require full registration with the Deepwater Horizon Settlement Portal.

This affects potential claimants who simply do not wish to participate in the BP Settlement program at all, and it also affects claimants who had claims pending in the Gulf Coast Claims Facility at the time the Settlement was reached in March of this year. Class members who opt out of the BP Settlement will not be bound by its terms and will be free to pursue their own legal action. Opting out means that the class member cannot submit claims under any portion of the settlement.

Class members who wish to exclude themselves from the Settlement must submit a written request stating “I wish to be excluded from the Economic Class.” This request must include your printed name, address and phone number and must be signed by the individual or entity seeking exclusion. The request must be postmarked no later than November 1^st and mailed to:

Deepwater Horizon Court-Supervised Settlement Program
Exclusions Department
P.O. Box 222
Hammond, LA 70404-0222

Compensation for real property sales is generally limited to parcels that are designated as “residential parcels” in the county in which they are located. The property must also be located within the “Real Property Sales Compensation Zone”, as defined in the Settlement. (Check the interactive map to see if your property is included!)

Individuals who wish to submit a claim must have owned the property as of April 20, 2010 and have executed a contract for the sale of that property that was either (1) executed on or after April 21, 2010 and the sale closed before December 31, 2010; or (2) executed before April 21, 2010, but the sales price was reduced as a result of the Deepwater Horizon Spill, and the sale closed before December 31, 2010.

If the property is included within the Settlement, there is then a detailed calculation method set forth in the Settlement to arrive at a compensation amount.

At the end of July, the Claims Administration Office released information about how area organizations can apply to participate in the Promotional Fund. First, eligible applicants include public, quasi-public, non-profit or other entities or organizations that are located within the Gulf States. Those applicants can then submit materials to be considered for funding. Interested organizations must send in: (1) a description of the activities or project proposed; (2) a budget for the proposed activities; and (3) information about the financial stability of the applicant. All applications must be received no later than October 5, 2012 to be considered for funding.

Recovery in the Gulf Coast region is going to depend heavily on making sure that the tourism and seafood industries can rebound from the significant losses they suffered in 2010. That means restoring public confidence and trust in what the Gulf Coast has to offer. This Promotional Fund can serve as an important means of support in making that happen.

While final approval of the Settlement is still pending before the Court, the number of claimants electing to participate in it continues to climb. As of the last reporting offered by the Settlement Program, nearly 50,000 individuals and businesses have submitted registration information with the Settlement Program.   Those claimants have already submitted 38,000 complete claims, with another nearly 13,000 in progress.

In addition to the payments that are beginning to be processed and issued, the Program also continues to send “Outcome Notices” to claimants who have completed their claim submission.  These notices inform claimants (and their representatives) if their claim has been accepted, denied, or if additional information is necessary for processing.

For shrimp claimants, the possible benchmark periods are 2009, 2008-2009 or 2007-2009.

For oyster claimants, the benchmark period is the combination of 2007-2009.

For finfish claimants, the benchmark period is selected by the claimant and can be 2009, 2008-2009, or 2007-2009.

For blue crab and other seafood claimants, the benchmark period is selected by the claimant and can be 2009, 2008-2009 or 2007-2009

For individual seafood crew claimants, the “benchmark period” works together with the selected “base years” to determine the amount of compensation. The benchmark period is pre-determined, depending on the type of documentation the claimant submits in support of their claim and could either be April 20 through December 31 of the base years or April 20, 2009 through December 31, 2009. The base years are selected by the claimant and can be 2009, 2008-2009 or 2007-2009.

So what is the benchmark period and how is it selected?  In the most basic terms, the benchmark period is a time frame prior to the oil spill that is supposed to reflect the normal income levels for the claimant. Once selected, the revenue and income levels from this period of time will be used to determine how much money was lost in the wake of the oil spill. Here are some examples of benchmark periods for business and individual claimants, with seafood claimants covered in a later post.

For business economic loss claimants, the claimant gets to select the benchmark period from the following options: 2009, the average of 2008-2009, or the average of 2007-2009. Once selected, the benchmark period will be used across all calculations.

For individual economic loss claimants, there is both a “benchmark period” and what are called “base years”.   The claimant gets to select the base years that will be used to compare their expected earnings and what they actually earned. The claimant can select from the following options: 2009, the average of 2008-and 2009, or the average of 2007-2009. Once selected, these are the base years that will be used across all calculations.  In addition, there is the benchmark period, which is a time period—during the base years—where the claimant was employed in a job for which a claim is eligible.  Here, the benchmark period is a time frame of at least 90 consecutive days that are the same dates for which the claimant is requesting compensation.

Option A: V-Shaped Revenue Pattern: Essentially, using the Benchmark Period, demonstrating a 15% decrease in revenues in 2010 followed by an increase of 10% in 2011.

Option B: Modified V-Shaped Revenue Pattern: Again using the Benchmark Period, demonstrating a 10% decrease in revenues in 2010 followed by an increase of 7% in 2011. PLUS additional documentation, such as credit card receipts or customer registration logs, showing a decrease in customers.

Option C: Decline-Only Revenue Pattern: Using the Benchmark Period, demonstrating  a 15% decrease in revenues PLUS documentation establishing why revenues were not recovered in 2011 PLUS additional documentation, such as credit card receipts or customer registration logs, showing a decrease in customers.

Option D: Proof of Spill-Related Cancellations: Without any revenue data, providing documentation that the spill contributed to cancellations. This documentation might include letters from customers, emails, hotel logs, affidavits from third parties, cancelled contracts, and other written evidence made at the time of the oil spill.

Option E: For Seafood Retailers: Demonstrating that at least 10% of food costs during 2009 were from seafood harvesters in Zones A, B or C PLUS demonstrating a decline of 7.5% in gross profit for three consecutive months in 2010 as compared to 2009.

Option F: Reliance on “Causation Proxy Claimant”: In some circumstances, one claimant may rely on the documentation evidence provided by another claimant in close proximity that has already established causation. Only businesses with annual revenue under $75,000 are permitted to use this method.