Friday, June 18, 2010


(Note: ESIS, Inc. is the company BP has designated to receive damage claims related to the Deepwater Horizon Spill in the Gulf of Mexico.)

ESIS, Inc.
1 Beaver Valley Road
Wilmington, DE 19803

Dear Sir or Madam:

As a BP shareholder, I submit this claim for myself and on behalf of all others similarly situated. Those responsible for my damages include BP itself as well as Mr. Svanberg, Mr. Hayward and all directors and officers, personally.

The Oil Pollution Act of 1990 (33 USC 2701 et seq.) provides a cap of liability for damages (apart from remediation) caused by an oil spill such as the current disaster at the Deepwater Horizon site. This limit is $75 million. My claim, on behalf of myself and BP shareholders, is for every dollar BP pays out for damages in excess of the statutory limit.

The answer to the question of “who pays” for a tort or injury often results from a complex mix of conflicting policy considerations. In this case, that complicated policy decision on “who pays” was made twenty years ago by the US Congress, and the officers and directors of BP have no authority to second-guess that determination or decide unilaterally what BP “should” pay. That question is settled. I am astonished that the stewards of BP’s assets would raid the treasury in pursuit of some inchoate (and unlikely) PR benefits, or perhaps to insulate themselves personally against potential criminal charges relating to BP’s actions in the Gulf. This money is not yours to spend. It belongs to the shareholders.

I demand that BP immediately cease paying damage claims in excess of its legal liability. I further demand that BP withdraw from its pledge to fund any impromptu, extra-legal escrow fund with $20 billion or any other sum.

While I look forward to a prompt response to this letter, and I remain hopeful that the officers and directors of BP will swiftly come to their senses, I reserve my rights to pursue claims with the SEC, the US Department of Justice, and any other appropriate authority.

Very Truly Yours,

Michael Kubacki, Esq.


Tuesday, June 8, 2010


For my birthday in March, I received a certificate from my son for an all-expense-paid trip, for two, to Belmont Park for the 2010 Belmont Stakes. So it was that I found myself in a car on the morning of June 5, hurtling up the NJ Turnpike and across the Verrazano Narrows Bridge, deep into the guts of Long Island. With Tex at the wheel and his friend Sam (my date) riding shotgun, I passed a pleasant couple of hours sipping coffee and studying the Racing Form, teasing out nuggets of data that would lead me to the winners that afternoon.

We had no tickets, we weren’t quite sure how to get there, and we didn’t know what awaited us. Mobs of unwashed New Yorkers jostling us, picking our pockets, and blocking our view of the horses? A 72-hour traffic snarl at the Goethals Bridge? Parking nightmares? Rude policemen with Brooklyn accents so thick we couldn’t understand their instructions, resulting in our being pummeled insensate with nightsticks? A jihadist takeover of Staten Island? There were a lot of things that might go wrong. But nothing did.

And that’s why I’m posting this article. Not only did nothing go terribly wrong, but there were a number of pleasant surprises during our afternoon at the track. I am recommending it as a day-trip for my friends and acquaintances in the Philly area.

Belmont Stakes Day features an extended racing card, with thirteen races beginning at 11:30 and ending eight hours later. We arrived about noon, easily found the general parking lot ($10 for the Belmont, free other days), took a one-minute ride on a shuttle bus, strolled up to the Grandstand gate, and paid $10 each to get in. (Grandstand admission costs $3 on other days.)

We now had the run of the place. Though we had no assigned seats (these cost extra), there are grassy areas near the paddock and there are plenty of benches on the rail, just a few feet from the track. After reconnoitering a bit, we planted ourselves in the second row of benches at the 1/16th pole (so-called because it is 1/16th of a mile from the finish line). There are better seats at Belmont Park, I suppose, but there aren’t many that were closer to the action. Should we have urgent advice for a jockey as he strained to reach the finish line, we were confident he would hear us.

It was a picnic atmosphere. Many folks had brought lawn chairs, coolers, and blankets to spread over the concrete, and all these little clots of partiers were interspersed throughout the bench area at the rail. There were families with little kids, there were tattooed cowboys, there were pretty girls in sun dresses and large hats, there were fat guys with enormous cigars in their mouths, and there were a number of young men wearing dress shirts and ties.

Seersucker was everywhere. I guess it’s a New York thing. I don’t believe I’ve seen so much seersucker since the summer of 1971, but it must have survived in Gotham, though it has transmogrified into something of a symbolic fabric. I didn’t see anyone in a seersucker suit, for example, but there were plenty of seersucker pants and cut-offs and jackets with the sleeves rolled up. One guy had cut up a seersucker jacket into a sort-of Borat-inspired vest, which he wore with sandals, thigh-high tight shorts and no shirt. Seersucker, in other words, appeared to have many meanings. Some of the locals, I think, wore it to suggest they work on Wall Street, or have a trust fund, or know someone named Vanderbilt. For others, its use was more ironic, or even mocking.

Regardless of their attire, sexual orientation, profession or country of origin, however, people were friendly. It was very much a party. Though it was crowded, and there was plenty of drinking, I saw no fights, or even arguments. Even comments directed at me because of my Phillies cap were good-natured rather than threatening. As I walked through crowds, I heard several folks call out, “Go Flyers!”

(One cautionary note: though we were treated well by everyone, New Yorkers are pushy. The normal rule of racetrack protocol is that if you put your baseball cap, or a page of Racing Form, down on your seat or bench, that seat or bench belongs to you for the rest of the day. No one would dream of usurping your spot, in part because everyone understands that some movement is required at the track, and you can’t be expected to stay in your seat every second. You have to place bets, for example, and buy a hot dog, and look at the horses being saddled in the paddock. I mean, it ain’t the opera. At Belmont, however, we had to defend our bench area repeatedly. Though we had filled it with Racing Forms and hats and duffel bags, one of us had to stay there at all times to maintain order. And even so, people were always trying to shift our stuff and take up residence. At one point, the three of us stood up to cheer as the horses approached the finish line in front of us, and when the race ended ten seconds later, I turned around to find two guys sitting in our seats. “Excuse me, guys,” I said. “We’re sitting here.” They left quietly.)

New York is enormous, chaotic and ungovernable, and it is also a financial center. All these features became apparent after a few minutes on the benches at trackside. Much like the feeling you get in Las Vegas, there was a sense of unrepentant capitalism and hustle, where everything is for sale. I very much like places with that kind of atmosphere. I feel safer in them. They remind me of a simpler time in America before everything was regulated, when it was understood that everybody was just trying to make a few bucks, and nobody thought there was anything wrong with that. New York, America’s ultimate nanny-state gulag, is the last place I expected to find it. I had envisioned a city inhabited solely by people who think they know best about what you should eat and drink and smoke, and how much rent you should pay, and how much money you should make. And obviously there are many such people in New York because there are rules about all those things. My very pleasant surprise, however, was that none of those folks showed up trackside at Belmont Park. Our little pari-mutuel Woodstock seemed to be peopled entirely by refugees from that other world where everyone seems to care more about your health and welfare than you want them to.

Guys were not-so-quietly selling Budweisers from their coolers for $4 (versus the $7 at the concession stands). An elegant Latin gentleman walked through the area with a couple boxes of cigars under his arm, offering them to discerning young gentlemen and ladies for $10 each. Cigars were abundant, in fact, in our impromptu city. Tex had brought some for our smoking pleasure, and when I declined my stogie, he promptly sold it for three times its value to a young man further down the bench. Later, another guy came over and tried to buy a cigar from me. Unwittingly, we had become a smoke shop, but we were sold out. I believe some of the young ladies in attendance were selling something also, though I did not inquire as to precisely what they were offering. Commerce proceeded unabated throughout the afternoon.

As for the racing itself, it was superb. In America, the very best stakes races are called “Graded” races, and they are graded I, II, or III. The Belmont Stakes is a Grade I race, the highest level. In addition to the Belmont, however, there were three other Grade I races that day, as well as two Grade II races. Even the lesser features were high-level allowance races featuring some of the most expensive horseflesh in the country, ridden by the most skilled jockeys in the land. For a serious horse-player, it’s an experience to be cherished. Apart from the annual Breeder’s Cup, where every race is a Grade I event, the card on Belmont Stakes Day is probably the best day of racing in the country each year. Churchill Downs on Derby Day is special, but this had to be better.

We had been cashing small tickets all afternoon, so the Belmont itself was something of a let-down, since none of us had the long-shot winner, Drosselmeyer. (“Drosselmeyer? Drosselmeyer?? DROSSELMEYER???” I muttered for twenty minutes after the race.) At that point, though, nothing could ruin what had been a classic day at the track. We had had so much fun, I was already anticipating some karmic payback in the form of a mammoth traffic tangle in our egress from the Big Apple. I had accepted it in advance, psychologically. But even THAT didn’t happen. We stumbled, somehow, onto a back exit out of the parking lot and merged easily onto the Belt Parkway. Then we sailed, unmolested, all the way home to Philly.