As of July 28, BP has yet to deposit any money in the oil spill compensation fund and Feinberg has stated that he could not begin making payments to businesses and individuals until BP makes a deposit.
Environmental lawyer, advocate for working Americans, and host of Ring of Fire, Mike Papantonio and his firm have handled thousands of cases throughout the nation, including asbestos, breast implants, pharmaceutical litigation, factory farming, securities fraud, the Florida tobacco litigation, etc., and has received numerous multi-million dollar verdicts.
Recently, he has been making frequent appearances on The Ed Show and Hardball to discuss the ramifications and implications of British Petroleum’s oil spill, in an effort to hold BP accountable for the damage that they have caused to the environment and persons, as well as to expose the lies that BP continues to feed the news media.
Kathleen Wells: You filed a class action lawsuit against BP. Talk to me about that suit, and differentiate it from the trust fund.
Mike Papantonio: I think the most important thing is: We filed a RICO case. The RICO case is much different from anything on the table. The RICO case says that the conduct of BP, Halliburton, and Transocean is really not just negligence, but it’s something that — it’s the same kind of suit you would use to go after the mob or a drug cartel or organized crime.
It’s a civil RICO case. It isn’t unique to Florida, but Florida has the most progressive – certainly the most far-reaching – civil RICO case in the country. That’s the case that I’m focusing on primarily.
Kathleen Wells: Now you are talking about the federal lawsuit that you filed recently in Pensacola. And you are alleging that the Bush administration relaxed federal regulatory oversight, etc.
Mike Papantonio: Yes. Because that’s far different than anything that the trust fund is going to be looking at. It’s not a typical OPA kind of case or typical class action. The other thing it does, because of the unique aspects of RICO, is that it allows you to ask for damages that are different from the typical kinds of damages.
For example, here, if you have a property owner in Florida and they own a home/a set of condos, there is nothing that allows, in the OPA claim, diminution of value. You can’t say these people have lost their value (It has been reduced 30 percent) because of this event.
Under this [RICO] statute, under the way that we brought the case, we then can ask for that. We can say that we have people in certain counties here that are heavily tourist areas. They are heavily reliant on the beach crowd, and because of that, the value of the property has gone down. The numbers are already fairly substantial.
That’s the damages that would flow from the RICO case. Now, any other damages as well can flow, but that’s the thing I’m focusing on.
Kathleen Wells: OK, so differentiate this from the trust fund. Why would a person come to you as opposed to filing a claim to recover via the trust fund?
Mike Papantonio: They wouldn’t. I really think most people, the typical person that has a claim – that charters a boat or a fishing business – it doesn’t make sense that they should first go out and hire an attorney if the damages are fairly easy to compute. If you’ve got somebody that’s been in the fishing business for ten years and they can say: “Well, here’s my history. I don’t have all the documents, but I can tell you, historically, I’ve been able to generate $250K in the eight or seven months, and now I can’t do that.” Why should you pay an attorney for that?
It’s different when you are talking about something as sophisticated as a taxing authority or a municipality or a hotel. You don’t just prance in and say: “Mr. Feinberg*, give me $8 million.” So those are the cases – the more complex cases – that I’m going to be handling.
If someone goes in and says, “I can’t quite articulate the amount of money that I’ve lost,” Feinberg isn’t saying you can’t have a lawyer; he is saying we are going to try and build it so that you don’t need one. It makes perfect sense.
Kathleen Wells: What is the likelihood of this $20-billion trust fund being sufficient to cover everyone’s damages?
Mike Papantanio: It’s not even close. Look, our experts tell us that the best analysis for BP — we are talking between $60-80 billion, which sounds like a lot of money, but in the big picture, this is a $115-billion company. They are way undervalued marketwise. They have staying power because they have assets that are the perennial kind of sources of money. They are always going to be there.
And so, even though that sounds like a big number, it really isn’t. And I don’t think anybody went into this with their eyes closed, thinking $20 billion was going to be enough – it’s not. Feinberg surely understood; he is very sophisticated. This is going to affect people in a diverse way, from a prioritize standpoint. You know they’ve lost their boat, they can’t make the payment on their boat, they are losing their home, they can’t feed their family – that’s what this $20-billion trust fund is for. And I think he [Feinberg] will prioritize it.
Kathleen Wells: And then there will be subsequent damages, because with the dispersants we are seeing personal injury damages — health concerns.
Mike Papantonio: Riki Ott has incredible history of data. I was with him yesterday. The stories he tells are just phenomenal. It’s serious. So, yeah, that’s a whole different claim.
Kathleen Wells: Are you in Louisiana right now?
Mike Papantonio: I’m in Pensacola right now, and it’s certainly not as affected as Louisiana, but from a tourist’s standpoint, this area is dead — the harm has already been done. We have tar balls already coming up on the beach. We have total slick that is three or four miles off shore. Everything is there [so] that a family in Topeka is not going to say: “Hey, kids, let’s load up the station wagon and go to Pensacola.”
Kathleen Wells: President Obama, in his speech, characterized BP’s conduct as reckless. Do you think that characterization is accurate?
Mike Papantonio: I think it was kind. It’s criminal! Listen, we are so upside down in the way we view this picture. This is a company that already has a history of being a felon – they killed 15 people over in Texas City; they pled the felonies. Shortly after that, they had to plead to a $350-million fine for price-fixing.
They are in business with a company that had to plead to a $500-million fine for bribery, a company that the GAO looked at, which is Halliburton, a company that the GAO determined overcharged taxpayers by $5 billion — a company, that allowed supervisory employees to rape and sodomize a 20-year-old employee and lock her up in a container for 24 hours so she couldn’t tell her story.
These are the people we are dealing with.
So, when I use the word criminal, a reporter that is not used to dealing with corporations like this, their first reaction is: That’s an odd characterization. But I deal with them all the time and I deal with corporations that aren’t criminal.
This is a criminal corporation. They are sociopaths in the way they view the world. They are predatory, and the President was very kind to them when he merely called them reckless. They are well beyond reckless.
Kathleen Wells: But will they face criminal responsibility/liability?
Mike Papantonio: If they don’t, it will be a travesty. We throw people in jail for carrying around five ounces of marijuana, and they can go to jail in excess of a year. And here, we’ve killed 11 people, and for the people responsible not to go to prison will be a travesty of justice.
Simply because they are dressed up in an Armani suit and expensive shoes and a silk tie doesn’t mean they are not criminals. It simply means we see them differently: They are not in an L.A. hood; they look different; they look like business people.
I’ve been in courtrooms with many corporations like this, and I’ve been in courtrooms with corporations that don’t function like this: They are not sociopaths; they are not predatory; they are simply negligent.
This is not simply a negligent corporation; this is a predatory, sociopathic, criminal, corporation.
Kathleen Wells: And so their conduct is intentional, you are saying? When you say it’s criminal, is it criminal negligence, you would say?
Mike Papantonio: Here’s the issue: Sometimes conduct is so reckless that we say we are going to treat them outside the analysis of negligence. A drunk driver has a blood alcohol level three times the legal limit. They drive through a school zone, and they kill a child. That is not intentional. They didn’t intend to kill the child. But their conduct is so wanton that they fall within the criminal realm.
At the very least, we have that. But the question is: Do we have something beyond that? Do we have an intentional design, where the design was: We are going to de-regulate, we are going to take control over the regulatory body that’s suppose to be the brakes, that’s suppose to stop us when we get out of hand? Do we have such control over that agency where it is a meaningless agency? And do we have a design to gain that control?
Kathleen Wells: When you characterize a company as reckless/criminal, who are the players that would be carted off to prison? Would it be the CEO?
Mike Papantonio: You would take them off to prison for reckless, wanton conduct that approaches manslaughter. In most countries you would do that. In the United States, we have been incapable of saying that. To give a parallel analysis, we know, for example, that Madoff stole billions of dollars. But we also know that there was conduct on Wall Street where we didn’t know Mr. Madoff. Madoff didn’t pull all the strings, but we know four or five people who did, and we treat them, not like criminals, but we treat them under the civil recovery – SEC civil. They should be prosecuted; they should be perp-walked.
That’s the same thing here. You see, negligence is forgivable. Somebody makes a bad mistake. OK, well, you know, people are human. We are not infallible.
But, when there is a design from day one. You see the design. You’ve taken the drink, you’ve jumped in the car, you’ve hit the gas pedal, and now you are driving 70 mph through a school zone. You know something is going to happen.
That’s what this company did.
Kathleen Wells: And who represents this company? Is it the CEO? Is it the COO? Who is going to go to prison?
Mike Papantonio: That’s the fallacy in the system, you see? This question is agonizing because you are sitting there saying: “There is no easy answer. We have built a Chinese wall around the CEO like Tony Hayward. Tony Hayward, we can’t go put in handcuffs and dress him up in one of those little orange suits and hall him away, because Tony is going to say: ‘Well, I didn’t really make the decision. This guy made the decision, collectively, with this team, collectively, with this company policy.”
And it’s a complete, utter sham.
To give you the best example I can, and this is one that is very easy to understand: Years ago, I handled the Factor VIII case. That’s where this particular company had manufactured a drug that would stop hemophiliacs from bleeding. They had created a drug from whole blood. They knew that the drug that they had created from whole blood was contaminated with the HIV virus.
After hundreds of people died — children primarily, because it’s a disease that is uniquely related to male children — after they contaminated hundreds, wiped out entire families — because that child would then spread the disease to the sister, and the sister would spread the disease to the other brother, father, and mother — after they were forced to take the product off of the market in the United States, they then took it and they shipped it to France, South America, and Asia and killed thousands of people.
In France, somebody went to prison. And that somebody paid the kind of price that we should be holding corporate types to: They went to prison.
In America, nobody was even arrested, much less sent to prison.
Kathleen Wells: Then, it becomes moot or irrelevant to paint/characterize a company as criminal, reckless, or sociopathic. It’s a moot point.
Mike Papantonio: I think you hit it on the head. It does, because even though the Supreme Court, six months ago in the United Citizens case, said that we have to treat a corporation like a person, we don’t treat them like a person.
And until somebody shows courage, and I don’t anticipate that that is going to be Holder. Holder comes from that silk stocking, corporate atmosphere. He was the guy that these corporations called on to defend them. Covington & Burling — that’s where he comes from.
Is that the guy that is going to pull the trigger on this? Probably not. But it’s going to take that kind of courage. It’s going to take an Attorney General saying: “Damnit, we just can’t allow this anymore. We have to set an example.”
Kathleen Wells: But he did announce that he is bringing a criminal investigation.
Mike Papantonio: So what! I’m pleased. I’m happy that he is. Hooray! Let’s see what it is. At the end of the day, let’s see what it really is.
How many indictments have you seen in the Goldman Sachs issue? How many indictments have you seen in AIG or any of these real, real, ugly cases that flowed from Wall Street?
Kathleen Wells: So you are basically saying this investigation has no teeth?
Mike Papantonio: It will have no teeth. It will look like it’s something, but when it is all over it’s not going to be anything. Nobody is going to go to jail.
Kathleen Wells: So corporations in this country are in a lofty position.
Mike Papantonio: They are above the law! There is no question. And until we start treating … If we are serious – if this dysfunctional, corporate-run Supreme Court that we have – if they are serious and they say we must treat a corporation like a person when it comes to giving campaign donations, they should have the right to do what a person does, well fine. It’s a two-way street: They also have the responsibility to be held accountable when they kill people, when they destroy an ecosystem, when they lie to us about their relationships with regulatory agencies, when they bribe regulators. We should be able to throw them in jail because they are a person.
Kathleen Wells: There has been no case law in United States where a CEO or an executive of a corporation has faced criminal penalties?
Mike Papantonio: That’s not accurate — there has been. But they are very few and far between. If you quantify it, what is the conduct en masse that we see in the United States? Can we go get somebody – yeah, we can. We saw it with Tyco. That was clear. We saw it with Enron, right? That was very clear: This person did this.
But most of the time they have so much insulation that we give them such a free pass that it is very, very difficult to do. It’s because we built it into the system to where the system perpetuates its willingness to protect a white-collar criminal and throw the blue-collar criminal in prison.
Kathleen Wells: And so you are saying it’s not likely that it’s going to happen with any of the executives with BP?
Mike Papantonio: No. Frankly, people with middle management should already be in prison. The people that were involved in the drug and sex orgy scandal that broke out right before this happened — they should already be in jail. What we are talking about is bribery – purely, simply bribery.
And so, when a corporation like Halliburton or BP then interacts with a regulatory agency and makes them do things that they know they are not supposed to do, and they give them something in exchange, that’s bribery.
Could we do something about it? Yes. Will we? No. Does this Attorney General have the courage to do it? No.
This is not unique to this situation. Who in the hell is Salazar? Where did he come from? The Republicans wanted Salazar. That was their guy. Where did Tim Geithner and Summers and Bill Rubin – where do these people come from?
They come from organizations that people like Eric Holder are beholden to. I mean, c’mon. I was very pleased that he was the first African-American Attorney General, but so what?
And for Eric Holder to grab himself and rise above what he has been beat into, which is the Covington & Burling culture, where he represents these people. These corporations are people they have represented all their lives.
Look, I hope he does. Nothing would please me more. But I’m not going to stand by and wait for it.
Kathleen Wells: You’re not going to hold your breath. I’m disappointed to hear this, because it speaks to the culture…
Mike Papantonio: Exactly. Most reporters don’t get that. They don’t understand that this is very complex. It’s a cultural policy issue. Let’s be honest with it – it’s a policy. We don’t throw our Harvard MBAs in prison.
Kathleen Wells: Recently, it was reported that the federal judge ruled to overturn the administration’s six-month moratorium on drilling.
Mike Papantonio: Yeah, Feldman. Of course, how ridiculous! That’s a whole different story. That’s the story of the judiciary. Now, Feldman probably isn’t the best example of that. But while we have been paying attention to the shiny thing (the shiny thing is Congress and the Senate) — how many Senators are we going to have? How many Congressmen? Are we going to be able to get our 60 votes? Are we going to be able to overcome the filibuster?
While we have been paying attention to that, Karl Rove, people like Tom Delay, people like Newt Gingrich, people like Boehner and Eric Cantor – these people have been worried: can we pack the judiciary? How many federal judges can we put in there that come from the silk stocking background of Williams & Connolly or the Byrd Law Firm? How many people can we pack in there? And that’s what they have been doing ever since Karl Rove said: “That’s the way we are going to take back America. We are going to take it back through the judiciary, both at the trial level and the appellate level.”
And it doesn’t take a rocket scientist to understand what happened to us. Seventy percent of the judiciary now is Republican appointees, and when you break it down, it is even uglier than that. They are not simply Republican appointees, they are ideologues.
That didn’t just happen. It happened while I was doing radio shows with Bobby Kennedy on “Ring of Fire” on Air America, talking about how horrible it would be to lose a congressional race, and they were packing the courts in our backyard.
Kathleen Wells: And let’s take it on the legislative level. I just did an interview with Senator Bill Nelson of your state (Florida), and I was talking about the fact that Republicans, specifically Bill Frist, mentioned that they would work to defund any legislation subsequent to it’s being passed**.
Mike Papantonio: Of course. Listen to this – jump to your story. Do you really think that Joe Barton said, “I know what I’m going to do today. I’m going to apologize to Tony Hayward. I’m going to apologize to BP?”
Tom Price, who created the Republican talking points on this, he just didn’t create the talking points that we are going to apologize. You don’t have Newt Gingrich and Boehner out there apologizing overtly, but they are still apologizing.
The legislative process that you are going to see come at this is going to be driven by the same thing it’s always driven by, and that’s money. These are just the first few paper cuts. Barton’s statement was simply: “Let me see how the real crazy teabaggers are going to respond. Let’s talk to our base.” He is talking to his base.
Who is the base? The base are the teabaggers, the nutcases that live all up and down this coast. This is teabagger central, understand? So let me begin by talking to those people. Let me begin talking to those people, before we move to the legislative aspect of giving BP a free ride (which it will happen). Barton will be in charge of Energy, if the Republicans take the Congress back. He is the guy. So let’s start floating the ideas — that’s the first step.
The second step is — you have your Murkowski’s, you have the Palins, you have all of these shills, these hacks — with a straight face, they say: “Well, we have to legislate a way for BP to stay alive.” That’s what we will see if the Democrats lose next time.
Nothing is coincidental.
Kathleen Wells: So this is a strategy. Rand Paul characterized it as un-American to criticize BP. Michael Steele and also Michele Bachmann said that the trust fund was a slush fund and a redistribution of wealth.
Mike Papantonio: Here it is. Michele Bachmann — she wasn’t just talking to you and me. She was talking to the fringe edge. Where is the fringe edge? Where are they? They’re in Texas; they’re in Louisiana; they’re in Mississippi; they’re in Alabama; they’re in North Florida. That’s where the fringe edge lives.
That is the genesis, if you will, of the teabagger movement. So they aren’t just out there willy-nilly saying this stuff. This is the first step. And then, if the Democrats lose in the next election, then it’s going to be plausible — the issue will be a discussion issue. It will enter the mainstream discussion. We will feel comfortable talking about letting BP have a break. And then we will see legislation to change some of what we’ve been able to do to get BP to do what they are supposed to do.
Kathleen Wells: So it’s like gutting it – the legislation.
Mike Papantonio: Exactly. But this is just paper cuts right now. If the Democrats lose, you will have the Barton characters in control of changing the whole nature of the way we handle BP.
Kathleen Wells: I just don’t want to be partisan about it.
Mike Papantonio: I can’t help but be partisan about it. There is nothing redeeming I can tell you on the other side, so you would be talking to the wrong person for that.
Kathleen Wells: But what I’m saying is that with the health care bill we saw some of those Blue Dog Democrats not … so we have people in both parties, right? Maybe we are talking degrees.
Mike Papantonio: That’s exactly right – it is degrees. Of course, we have the Blanche Lincolns. You are always going to have that. You are always going to have those people out there. You are always going to have the Liebermans. But when you look at the total picture, which is all I can look at, I say: Where is the biggest threat? It’s this issue of the beginning paper cuts, the talking points, telling the teabaggers that it’s un-American, telling the teabaggers that it’s socialism. All that does is pander to their craziness to begin with, and then that becomes part of the broader public discussion. And then the legislature has an easier time to change the law.
Kathleen Wells: Also, Governor Haley Barbour and Governor Jindal said that a moratorium on drilling is bad for the region and bad for the country as a whole.
Mike Papantonio: It’s crazy talk. Here’s the tough thing that politicians can’t say. When the buffalo hunters killed all of the buffalo, then they were out of work, right? They killed them. There was nothing else they could do. We are at that crossroads right now, because what’s happening is we have an entire industry that we have to evaluate from the standpoint of the greater good. Like it or not, we have to do that.
And the greater good is this analysis: If we put 30,000 people out of work because of a moratorium or because we’ve changed the way that we are handling this industry here on the coast, then we’ve saved one million jobs that have been lost because of this oil spill. One million people have lost their jobs because of this oil spill.
So am I supposed to listen to Bobby Jindal or Haley Barbour and be moved by the fact that we have to?
Plants — car manufacturing plants, steel manufacturing plants, airplane manufacturing plants — close down all the time, and they put tens of thousands of people out of work all the time. It’s the reality. It’s where we are as a society. We are a dynamic, changing society. We are not static.
And it’s the same analysis of a buffalo hunter that says: “I’ve killed all the buffalo. Well, let me go kill something else now.”
*In August, the claims system will be taken over by Kenneth Feinberg, an independent administrator appointed by President Obama. BP will pay Feinberg’s salary, but he reports neither to BP nor to the government. Feinberg will have wide discretion in setting the rules to determine who is eligible for payments through the fund.
As of July 28, BP has yet to deposit any money in the oil spill compensation fund and Feinberg has stated that he could not begin making payments to businesses and individuals until BP makes a deposit.