The Gulf Coast Claims Facility ("GCCF") -- the agency responsible for doling out the $20 billion fund that was set up by BP as a result of the April 20, 2010 Deepwater Horizon incident (the "Spill") -- has issued its Protocol for the submission and resolution of Interim and Final Claims. The Protocol can be found here. The Protocol addresses issues concerning the submission of claims for removal and clean up costs, damage to real and personal property, subsistence use of natural resources, injury and death, and lost profits and earnings capacity.

Those of you who follow our blog posts know that we have given particular attention to the GCCF’s reimbursement of lost profits and earnings capacity. Claimants that incurred a loss in profits or earning capacity due to the injury, destruction, or loss of real property, personal property or natural resources as a result of the Spill may submit a claim. The Protocol does not require the claimant to be the owner of the injured property or resources in order to recover for lost profits or earnings.

The GCCF has also issued guidance on the information that should be submitted with the claim, including:

  • Identification of injury, destruction, or loss to a specific property or natural resource.
  • Information concerning the Claimant’s lost profits or earnings that were caused by the injury, destruction, or loss of specific property or natural resource as a result of the Spill (such as lost earnings by a fisherman whose fishing grounds have been closed or a hotel or rental property that has had decreased profits because beaches, swimming, or fishing areas have been affected by the oil from the Spill).
  • Reduction of earnings or profits, or increase in expenses resulting from such damage.
  • Amount of profits and earnings or expenses in comparable time periods.
  • Earnings received from alternative employment or business during the period when the loss was suffered, and expenses incurred in generating the alternative earnings.
  • Savings to overhead and other normal expenses not incurred as a result of the Spill.

In addition to the recovery of lost profits and earnings capacity, claimants may also be able to recover the reasonable cost of estimating the damages claimed, but not attorney’s fees or other administrative costs associated with preparation of the claim. As a threshold matter, the GCCF will only pay for harm or damage that is proximately caused by the Spill.