mr thomas thank you for showing up in light of fear mobility difficulty well it's not easy to move around new orleans like that  oh right the next case of the morning is number seventeen three zero nine two one in re deepwater horizon barber versus b p and johnny's clams versus be p and miss lyons you have the pleasure of arguing before us again when you're ready barber and claims were both people that worked in the seafood industry claims was a person who implanted claims in the c c and barber was a captain they both settled claims in two thousand and eleven and two thousand and twelve through the g s c c f which was a group one of the many groups used by b p this one and minister by mr were in the gulf and i work in florida recipient where i don't recall specifically which part of the gulf they were from there in florida florida but in any event  both of them had ongoing businesses johnnie's clams i know have been in business for over eight years barbour had been business for many years as a as a captain and they both settled their claims in received on in total about one hundred thirty six thousand dollars and johnny's clams received about forty six thousand i can't really do the math i do have the figures here but yes they received they received certain phones johnny's clan has received twenty five thousand and prior to that he received twenty one thousand barbour received twenty five thousand and forty thousand and then about sixty six thousand one of the things that should be pointed out in terms of the barber claim is that barber  what had happened with him and that should be set forth in the briefs and as set forth in the brief barbour had basically rented his boat i guess you call it to b p to use for cleaning up oil and after they used his boat for i don't know how many months nine months or something like that they were supposed to refurbish the boat so it could be used again as a regular boat but they didn't do that and they let it yes he was he was operating it on their behalf paid in money going up on the he was he was being paid to clean up the oil spill but he was supposed to have his boat refurbished so could be used as a regular boat instead of just an oil cleanup but they did not do that for many months and there is documentation in the record which we showed which showed that basically the boat was runed by the time that they finally paid money there was i believe there was a release in terms of the the payment for the refurbishing itself but the main thing the main question has to do with the fact that these settlements that were made through the g c c f which was run by mr feinberg who is being paid eight hundred eighty five thousand dollars a month by people b p to among this this were all being done in two thousand and eleven two thousand and twelve before there was any real determination of what the damages were to the gulf and there are letters letters and a s and letters from the attorney general the united states basically saying that the goal of the the oil pollution act requires interim payments so what they are supposed to be doing is making interim payments to people so they do not get hard pressed to accept skilling to accept a payment for less than the value  there for less than the value or before they know what their actual damages are and this letter from him this is in the record letter from the attorney general says for g c c f to fulfill its mission that interim payment process must be efficient fair and straightforward it cannot be a disfavored fallback from the final claims process when a small business files for interim claims every three months and then waits ninety days for the claim to be resolved its cash flow is already running six months behind at that very moment when he needs to get back in his seat therefore i ask you to ensure that the interim claims process functions efficiently and swiftly for claimants including businesses this emit appropriate documentation etc and that has been one of the main complaints about  they were going out there and they were paying off people and saying we'll give you this money now or you can submit a claim and wait and everybody was submitting claims in waiting except under the under the o p s a they were supposed to be making interim payments without requiring releases and they were supposed to be doing that on a regular basis and they were supposed to be processing them what exactly what is your argument here i mean we are we understand the background of this but i didn't get so i thought your brief was saying the releases were under duress and the procedure used by the district court was wrong and  and that your clients are somehow words of admiralty but you are you doing a collateral attack on the g c c if at this late date or what you know that's that's been an attack throughout throughout the briefs it's been an attack that their process that was being used was willing to basically not make the interim payments as they were supposed to be doing and going out and say dangling release but you know your evidence to support your claim that the release was invalid is that right you're not saying that we should hold today that the process itself should be set aside well i mean there were motions to actually set aside all of the g c c eth releases in this case not well in the whole b p case in general but i know that that's not  but that is part of the evidence that was before the court that there were there were certainly problems in these g c c f releases what has that got to do with your claim today that the religious tradition were signed under duress well it's what's that got to do with it if you refuse to pay somebody in the interim payments that they're supposed to be paid and come to them with a bag of money and say ok you can have this now or you can wait but inside i said you can have this now or you can see right or you can sue what's wrong with that i mean welp i'm going to say you first of all just name them out you want the releases are not authorized the release is we say that the release is should not have been the court should not have summarily dismissed these claims as being released without taking any evidence concerning the methodology under which they were obtained by all the court knew what the methodology was because it prescribed the methodology and approved everything every step of the way  no not really there were letters from the attorney generals at letters and affidavits from the attorney generals of each of the gulf coast states protesting the manner in which these releases were getting being of family considerations that you need to put bread on the table is that your case in part the fact is that they were taking these releases before anybody had any idea what the damages were one of the perhaps get more money a lot more money or they could drive up to you while you're sitting in your car with your head bleeding and say we'll give you money man that's not what happened with mr barber or mr but the fellow  sheridan and at least one of them had an attorney right none of them had an attorney at the time right not at the time ok but again i mean the language is quoted in the judge's ruling here and it says understanding your right to quick payment final claim form contains important information do not sign the release unless you understand and agree to its terms if you are represented by it with an attorney or by an attorney consult with the attorney the attach releases a binding legal document by signing this document you are forever waving and releasing not claims you're under no obligation to accept the final payment of course your clients are not returned the money i mean if they send a release don't they have to return the money that would probably be the case if they were if he were owed less than what they already received but the release you how he'd been damaged or he was being paid for and when he had no idea nobody had any idea what is going to happen in just the gulf states at that point the attorney general from the state of louisiana for example says we have is they were writing these on behalf of the people and they were they were very strongly objected to the exclusion first of all the reach of the release claimants and they all filed motions to have the release claimants ex the release is cancelled and the judge barbecue day earlier in connection with the settlement agreement had said in response to this issue about cancelling the releases invalidating the releases he said this is an issue that can produce be pursued only by means of cases but for a resolution to this court or another court at which point it would be for b p to decide whether to assert such a g c c f release as an affirmative defense and then for a plain of to attempt to establish that the release is invalid but that's not what happened what happened is the court asked b p to file a motion listing everybody who was a release client and then the court simply looked at the language which didn't put any language you want the release looked at the language of the releases and said they were valid and summarily dismissed everybody who was released cause to question the court even have to do that in other words b b has why did the court have to instigate this procedure to dismiss further dismissed claims that have already been released well first of all all these release claimants and there were over two hundred thousand of them or in the class action that we talked about yesterday they were all in there because most of these people and barbour and plans were one of the few that have big enough claims to make it worthwhile to file an individual lawsuit most of these were were you know poorly paid low level seafood workers and it wasn't worth it to file individual causes of action for any of them so wh clients proceed to the claims facility because they already released is why well first of all by that time they were they were released and there were really several layers of these things in terms filing a lawsuit or similar turnitin all these cases were stayed for seven years that is not really a good alternative as far as i'm concerned if you have immediate money you need money and your alternative is to file a lawsuit which you know is going to be stayed because they're all stayed ok will your state now pending  it please the court my name is aaron nielsen i'm here on behalf of b p i want to start with something i thought was notable from the argument in the briefs they never actually address what judge barbie a said in his order to judge her b a said there is no direct this as a matter of law because congress in the oil pollution act gave you two reasonable alternatives if you don't like how the responsible party is paying you you can either file the lawsuit by judge dolly was mentioning or you can go to the oil spill liability trust fund which is administered by the coast guard b p as judge bar b explain is not a party to that at all you go to the coast guard and you say the responsible party is not paying the interim payments paid me they have no answer for the liability trust fund they have never had an answer for the liability fund so judge barbie i said well why don't you just go to the trust fund and their answer is well you know this was two thousand and eleven and the trust fund wouldn't pay us in two thousand and seventeen which is entirely not responsive to the point which is in two thousand and eleven what were your options and their options were either file a lawsuit or you could go to the gulf coast guard then do either one and now they have buyer's remorse or trying to claims are any of the question i have is they do they do make an argument that under fed or under florida law reason alternatives are not available if you're talking about an individual economic to rest claim a supposed to a business in august of two thousand and eleven he signed two releases he also has released as you know essentially working for b p to clean up the oil spill and they're called the court's attention to page one five eight six one two one five eight six two of the record which is his affidavit where he says i retained david cross quote i agreed to mr cross making a claim to be peeved for a loss i sustained as a result of the the vessels of opportunity to lang inspection and that lawyer i can go further you know i received a letter from surprise saying that i should sign this thing i'm directing me to sign a return b p a form of final release that was done push a council with a lawyer so to say that that was done and arrest makes no sense at all certainly a counsel a counsel which by the way is not in their complaint or anything in the affidavit surely a counsel knows that you can file a lawsuit or you can go to the to the postcard and to go to the point that they make well the litigation was stayed that again is not responsive to the coast guard point you can always go to the coast guard which they have never had an answer other than to say that wouldn't work in two thousand and seventeen which is just a non sequitur but the first point is well we're going to lawsuit well this is what i would do if i was in that situation if i thought the lawsuit would be stayed i would ask for pullin or injunction i would say say your honor they have a duty to get money on a point is that in effect a denial of injunctions immediately appealable then do that either so that's not responsive but again the easiest simplest cleanest way to get rid of this case which is the way the judge bar b a did it as he said go to the coast guard congress and the oil pollution act has set something up and you don't have to deal with b p and the way it works is if the how much is the coast guard paid out the coast guard has not paid they were authorized by congress i believe to pay up to a billion dollars  these things they did not pay anywhere near that is my understanding and that's because the g c f process was very generous so most people went through the g c c have process but the question is if you didn't want to what were your options were you under duress and the answer was was no or go back to your question earlier about florida law and whether this applies to whether the reason alternative tests part of it first i would urge the court to look at their pleadings below they concede two different versions of it so even assuming they're not businesses though one is johnny's clams which is obviously a business and the other was hired to run a ship for b p to go clean the oil obviously a business but even leaving that aside the other tests say you essentially have no free will well if you have alternatives you have free will it's half a dozen wind you know six on the other is the same idea which is you have to be able to have volition if you have asked congress to set up here alternative means to pursue your rights you have you haven't lost your free will you have reasonable alternatives again that's exactly on the face of judge barbie is decision so do i still waiting for the answer to what george barbie a said and i haven't seen it and i haven't heard it at their arguments today is this a motion to dismiss or motion for summary judgment what was agreed that if you have reasonable alternatives which can be resolved on a motion to dismiss i would point the court to the global leader case or leader global case on the other excuse me which was resolved on a motion to  dismiss but here's the other point about that if they thought they needed discovery it was incumbent on them to ask the court for discovery released to make that argument in their in their briefs they never once said we want told him that before and you can't raise that in a motion for reconsideration if you want me to discovery if you said that there are fact issues that can't be resolved as a matter of law it's incumbent on you to tell the district court and they didn't do that did they ever  or the facts were that would be revealed and discovering they would support thank you i don't think so your honor they do allege some of the things that we're hearing today but that doesn't go to the question of direct us which is what were your reasonable alternatives and they never talk about why the oil pollution act how it sets up the coast guard as a reasonable alternative they'll say anything about that nor do they really explain why you can't bring a claim just in court like a lot of people did and i want to talk a little bit about the exigency point i think the courts will look at the chronology of how this thing was happened so the oil spills in april two thousand and ten it's closed to the well as close to september two thousand and ten we're talking now about releases that were signed in july or august or the separate one for the ship in may two thousand two thousand and eleven or the ship in may two thousand twelve so this isn't like you know you got five minutes to sign this they've had a year to look at the situation and they did end of filing their complaint that first complaint and tell april nineteenth two thousand  barber he gets a lawyer and has time to do all of that as well with which he receive in these interim payments during that period or did that come afterwards as hundred forty six thousand it was an increment correct  i believe i don't have that exact knowledge of the top of my head i believe those payments were before because they were wrapped up in the trippers release but i don't have that off the top of my head so again i just say for the court you know i don't want to belabor the point but look at what judge barbie a said judge barbie is not out to get anybody judge barbie looked at this and said i can read the oil pollution act i can read what it says and you know  section twenty one i can read it says in the section about authorizing suit or going to the coast guard and he didn't do that so this is an easy case the fact l two one seven nine is complicated doesn't mean that every question in it is complicated this is a really easy question do you have reasonable alternatives yes yes you do you've got all these two of them so even if you assume all  horrible things they had to say about b p are true which they're not but even if you assume all of them are true that b p wasn't making interim payments or so on and so forth it wouldn't change the reality that they had reasonable alternatives when they filed  counsel first of all talking about these reasonable alternatives filing a lawsuit to me is not a reasonable alternative when these cases is stayed up and there are still stayed there's been no remove this day but the state the court issued a blanket stay of all discovery and all of the cases so all these cases have just been sitting there for now nine years anybody who filed a case it's been sitting there for nine years with no discovery that was one of the chief complaints by the a state attorney generals is their inability to assess what the damages were was back in two thousand and eleven right that was back in two thousand and ten or eleven  today i assume you would have asked for information about the manner in which the releases were obtained the manner in which the calculations are comp sorry you're caught knew all of that he knew how the releases were obtained from him or from you might have wanted to depose the people who took the releases like the remote let me ask you see have you spoken to either of these plaintiffs before you came here today do they know that their cases are up before us today i'm sure they're they know that they're up here have i spoken to them today no but i mean they are your a determination made and that these releases were valid until october of two thousand and seventeen so by then the statue of limitations for filing in the thing with them had expired oh wait a minute i mean why would a release of b p prevent them from going to a government fund i'm sorry why would a release given to b p prevent your clients from going to the government  i'm not exactly sure how that worked but i mean it was one of the many avenues that was open to people but my understanding is that first of all the oil spill my bills the trust fund never paid anybody anything and they were also expiring in december of two thousand and seventeen there was also discussion about barbara had a an attorney at some point in time which he did obviously he had us at some point in time but when his first release was signed which was termed a full in the final release that was in august of two thousand and eleven and he certainly did not have an attorney at that time and the peace council says basically yeah you're almost finished here which i'm sure everybody would like to say the same thing but one of the things i found a case concerning multi district litigation is that we grant great deference to the court in administering multi just rick legislation proceeding with due process and fundamental fairness may not be sacrificed to provide assembly line justice the plainest retain their individual identities the court still have to besides the statistics besides wanting to get all this stuff over with which i know everybody wants to