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APPEAL PANEL DECISION FORM

I. CLAIMANT AND CLAIM INFORMATION

Claimant Name Last/Name of Business

First Middle

Claimant ID Claim ID

Claim Type Start-Up Business Economic Loss

Law Firm

II. DECISION

Denial Upheld

Denial Overturned

III. PRIMARY BASIS FOR PANELIST DECISION

Please select the primary basis for your decision. You may also write a comment describing the basis for your decision.

Claim should have been excluded.

Claim should have been denied.

Claim should not have been excluded.

Claim should not have been denied.

No error.

Comment (optional):

Error in documentation review. See attached opinion uploaded into the portal.

.

2017-2813

1

DWH:

Claim ID:

Written Reasons and Opinion:

This Claimant is a software products and services company located in Madison, Mississippi (Zone D). Following initial review, its Business Economic Loss claim was reclassified to that of a Start-Up and denied for failure to satisfy the Settlement Agreement Exhibit 7 causation requirements. Challenging that decision, Claimant argues that it is the successor to an entity which was formed in 2005 whose assets and liabilities it acquired via a stock sale one month prior to the Spill. In response, BP points to the fact that Claimant was formed as a limited liability company under Mississippi law on March 19, 2010 and therefore cannot overcome the recent ruling of the District Court on Discretionary Review that “an entity could not have been in operation before that entity even existed.” For that reason, it does not have more than one month of pre-Spill operating history and, consequently, is a Start-Up Business.

According to Claimant:

Claimant is the successor entity to a formed in 2005. See Exhibit B, Formation Documents. is a software development and infrastructure entity focused mainly on -based software products and services to third-party customers. In 2005, developed an division (the Division”) to offer software products and services to customers. During this time, maintained its businesses (including the business) as separate and distinct divisions within the overall structure of . See Exhibit C, Affidavit of . Importantly, the division was accounted for separately from the other divisions within The Division maintained its own monthly profit & loss statements and balance sheet, dating back to the Division’s start in 2005. , the current owner of Claimant, was the Division Manager since 2005. See Ex. C. It was decided by leadership in 2009 to move the Division, together with its existing customer base, assets and liabilities, into a separate Limited Liability Company,

, which is Claimant.

Claimant was formed by the filing of a Certificate of Formation with the Mississippi Secretary of State on or about March 19, 2010. See Exhibit D, Certificate of Formation. All of the assets and liabilities of the Division were transferred to . See Ex. C at ¶4. At the time of the transfer, ,

2

through its president , informed that it was “moving the business unit into a separate company . . . [and its name] will be

’” See Exhibit E, Letter from to ., dated Feb. 22, 2010. The letter stated was moving the to so that

could “be entirely focused on software sales and services, and not negatively be impacted by the seller business.” Id. at ¶2. Importantly, the letter further stated that would “continue working directly with the sales team in the marketplace. . . continuing to leverage the history and any opportunities that may development [sic] in the future . . . [t]here will be no changes in offices, systems and other resources.” Id. (emphasis added). This letter clearly documents the intent to continue the same operations in as were managed by in its Division.

After moved the Division into sent letters to the customers of the division informing them of the change. Specifically, these letters told the customers that VSS “will be moving the business unit into a separate company . . . [t]he new name will be ‘ .’” See Letters from to various customers, dated March 30, 2010, attached hereto as composite Exhibit F. After these customer transfers went into effect, , who had beenthe vice president in charge of the Division and had run day-to-dayoperations at since the transfer, purchased 100% of the equity units of ,which was (and still is) servicing all of the assets and liabilities formerly rununder the banner of Division. See Exhibit G, Affidavit of

Document ID Claimant’s Opening Memorandum.

Examination of the record supports this recitation of Claimant’s history and BP does not dispute it.

The Discretionary Review Decision (dated February 24, 2016) cited by BP involved a claiming entity which submitted income tax returns acknowledging that it did not exist prior to May 25, 2010. Said the Court:

Thus, by definition, this claimant entity was not in operation as of the date of the Oil Spill. The fact that prior to that date, some other person or entity may have incurred expenses relative to this venture does not change this conclusion – by definition, an entity could not have been in operation before that entity even existed.

Claimant, instead, relies upon a later Discretionary Review Decision (dated April 18, 2017) wherein the issue was whether, as here, the claim should be processed under the regular BEL Framework or the Start-Up BEL Framework. After noting that the latter applies to businesses

3

that commenced operations after October 20, 2008, the Court stated that in November, 2009, the Claimant entered into a “Asset Purchase Agreement” with a business that had existed for 25 years. Although it purchased substantially all of that business’ assets, it did not purchase every one, nor did it purchase its liabilities. Therefore, it concluded that the Start-Up Framework applied, citing a March 8, 2017 per curium opinion from the Fifth Circuit which declared that:

[t]he substance of the transaction – an asset transfer – is critical to the outcome ofthis case. Although substantially all of __________ assets and liabilities weretransferred as part of the transaction, it is undisputed that _________ retainedcertain assets and liabilities. Although there may be certain businessorganizations or transactions in which the same business claimant and BEL claimcontinue throughout, the asset transfer used in this case does not present such asituation.

Clearly, then, the Fifth Circuit has acknowledged the potential for formation of business organizations or execution of transactions pursuant to which the same business claimant and BEL claim continue throughout, thus entitling the successor entity to claim its predecessor’s operating history in support of a BEL claim.

De novo review of this Claimant record persuades this panelist that the transactions at issue here achieved just what the Fifth Circuit stated was possible: A seamless continuation of the Division established by Claimant’s predecessor in 2005, thus entitling Claimant to pursue the BEL claim it originally filed. For that reason, this Claimant appeal is sustained.

Denial overturned.

August 22, 2017



Claimant Name Last/Name of Business First Middle


Claim Type Business Economic Loss

Law Firm

II. DECISION

Select the Compensation Amount set forth in either BP’s Final Proposal or the Claimant’s Final Proposal as the final outcome on the claim and check the appropriate box to signify your decision.

BP’s Final Proposal

Compensation Amount $0

Risk Transfer Premium 2.50

Prior Payment Offset $0

Claimant’s Final Proposal

Compensation Amount $59,343





Error in documentation review.

Error in calculation.

Error in RTP multiplier.

Error in Prior Spill-Related Payment Amount.

No error.

Comment (optional):

See attached opinion uploaded into the portal.

2017-2814

DWH:

Claim ID:


This is a BP appeal of one of a number of Business Economic Loss awards made to this Claimant’s facilities located in the Gulf Coast Areas. This appeal seeks to overturn an award to Claimant’s Store located in Treasure Island, Florida (Zone A). The principal issue here, as in most of the numerous companion appeals, is whether or not Claimant is a franchisor and thus unable to satisfy the CAO Policy 467 definition of a Facility. The facts and issues in this appeal are identical to those in Claim ID which is the subject of a very thorough and scholarly opinion and decision by a distinguished fellow panelist. Because this panelist cannot begin to improve upon that decision and agrees with its findings and conclusions, it is adopted herein by reference.

For the foregoing reasons, following de novo review, this BP appeal cannot be sustained. The decision of the Claims Administrator is affirmed and Claimant’s Final Proposal is therefore selected.

August 22, 2017






Law Firm

II. DECISION





Prior Payment Offset $











No error.

Comment (optional):

2017-2815

- Claim ID

BP appeals the Settlement Program’s determination that Claimant’s convenience store in

Tierra Verde, Florida is a Facility. As in numerous companion appeals, BP argues that Claimant is

a franchisor and thus unable to satisfy the definition of a Facility in Policy 467.

The critical facts do not appear to be in material dispute. Claimant owns the real property

upon which the convenience store is located. It entered into a franchise agreement calling for a turn

key, rent-free arrangement in which the franchisee operates the store in return for an initial fee and

a percentage of monthly profits. Claimant owns the underground gasoline storage tanks and pumps,

as well as the gasoline. receives the proceeds from the sale of gasoline after paying the

franchisee 1.5 cents/gallon. The permits to sell gasoline as well as the licenses necessary for

operation of the store are held by . Although Claimant has no permanent on-site employees,

at least five categories of employees visit the store periodically, performing various

functions. also furnishes a Business Transformation Initiative which handles payroll,

payment of invoices, store inventory and payment of sales tax. Otherwise, the day-to-day operations

of the store are performed by employees of the franchisee.

On appeal, BP’s principal argument is that Claimant cannot satisfy the third prong of the

definition of Facility in Policy 467 because it does not perform and/or manage operations at the store.

As BP sees it, the franchisee, not , employs the store personnel and is responsible for

operating the store. Because Claimant is a franchisor, BP therefore argues that it neither performs

or manages the store’s operations nor does it provide services or products.

Claimant argues in response that Policy 467 does not require it to employ the persons

working in the store as long as it has employees or agents who themselves perform work at the

location and/or it provides services or products at the location. Because it sells its own gasoline and

other branded products such as chips, cookies, coffee, ice cream, etc., Claimant argues that

it provides both services and products at the store.

Claimant also relies on Policy 467(V)(H) regarding ownership of the location. This section

provides that “[a] franchise location will typically be considered a Facility of the franchisor Entity

if the franchisor owns or leases the real property on which the franchise is located.” Because it owns

the real property, Claimant argues that it qualifies ipso facto as a Facility. Indeed, it appears that the

Settlement Program relied on this provision in determining that the definition of Facility was met.

BP rebuts this argument by pointing out that merely owning or leasing the real property is not enough

in light of the first and third prongs of the Facility definition.

In Policy 467, the Claims Administrator set forth the definition of a Facility, establishing the

following criteria:

(a) A separate and distinct physical structure or premises;

(b) Owned, leased or operated by the Business Entity;

(c) At which the Business Entity performs and/or manages its operations.

The Administrator went on to emphasize that an entity must satisfy all three prongs to qualify as a

Facility.

Policy 467 (IV)(B) further establishes the criteria for when an entity performs or manages

its operations:

B. Definition of “Performs or Manages.”

1. Performs: An Entity “performs” operations at alocation if, in the normal course of its business, it hasemployees or agents who performs their work at thatlocation and/or it provides services or products at thatlocation.

2

2. Manages: An Entity “manages” its operations at alocation if, in the normal course of its business, it hasemployees or agents present at the location, on a full-time or part-time basis, who are responsible for themanagement, supervision, or direction of theoperation of the Entity.

3. Overall Criterion: An Entity does not “perform” or“manage” operations at a location unless it canidentify the expenses and revenues, if any, associatedwith the operations at that location separately from theexpenses and revenues of other locations owned,leased or operated by the Entity.

On appeal, Claimant initially argues that it satisfies the “Performs or Manages” prong

because it has employees who perform their work at the store. Claimant lists a Field Consultant,

Market Manager, Asset Protection Specialist, Environmental Compliance Specialist and Property

Specialist as categories of its employees who perform their work periodically at the store. BP

counters that has provided little or no evidence of any actual role played by these

employees in the operation of the store. De novo review reveals that the connection of these

employees to this particular store (or any store) is tenuous. As explained below, it is not necessary

to analyze the role and location of Claimant’s employees in order to make the Facility determination.

As noted, Policy 467 also allows an entity to establish that it performs operations at a location

if it provides services or products at that location. In response to a request from this panelist for a

detailed description of any products and services offered by at this store, Claimant provided

the following:

Each Store Sells Exclusive Branded Products and Gasoline.Each store sells exclusive branded productsincluding potato chips, cookies, coffee, candy, beef jerky, ice cram,bakery items, and Slurpees (see attached from websiteidentifying the branded products in each store). Gasolinesales, of which approximately 70% are paid at the pump and have no

3

interaction with store personnel, are entirely the responsibility ofClaimant , who owns the underground gas storage tanks,hold all licenses to sell the gasoline, and receives all revenue from gassales (other than 1.5 cents per gallon paid to the franchisee).Claimant stores offer for sale all products in each storeand gasoline at the outside pumps in accordance with the franchiseagreement. Claimant receives approximately 50% of the in-storegross profits (i.e., after the payment of expenses) and all revenue (less1.5 cents per gallon) of gasoline sales. Further, owns thereal property for the store for Claim and leases the realproperty for the store for claim . Claimant provides allzoning, builds each store, and provides all equipment. Claimantprovides a turnkey operation to each franchisee and, in accordancewith the franchise agreement, continues to be engaged in each store’soperations (see discussion at Doc ID , p. 3-4). Claimantholds the licenses necessary to operate each store either exclusivelyor jointly with the franchisee (see discussion in Final ProposalMemorandum, Doc ID , P. 8). Without these licenses heldby Claimant, neither store could operate.

This panelist is sufficiently persuaded that the sale of the branded gasoline and food

products is sufficient to satisfy the “services or products” requirement of Policy 467(IV)(B)(1). To

the extent the Settlement Program relied solely on Claimant’s ownership of the real estate in its

determination, it failed to analyze all the requirements of Policy 467. De novo review nevertheless

confirms that the Settlement Program was correct in determining that the subject store qualifies as

a Facility.

BP also complains that the Settlement Program misclassified two categories of expenses,

Cash Shortages and Lottery Shortages as fixed costs when they should have been variable. BP

argues that these expenses are analogous to bad debt or inventory adjustments that are listed as

variable expenses in Exhibit 4D. Claimant concedes that Cash Shortages and Lottery Shortages

should have been treated as variable expenses. Claimant opposes remand, arguing that this expense

4

reclassification would result in only a small change in the award. In light of BP’s Final Proposal of

$0, this panelist agrees.

This is a baseball appeal in which Claimant’s Final Proposal must prevail and is therefore

selected.

5






Law Firm

II. DECISION
















No error.

Comment (optional):

This appeal concerns one of Claimant's numerous locations located in the Gulf Coast Area. BP raises two issues. First, BP

argues that the Program misclassified several expenses. Second, BP argues that the location that is the subject of this appeal doesn't qualify as a Facility. For the reasons set forth by the Panelist in Claim (the issues raised by BP in

that appeal are identical to those raised in the instant appeal), this Panel adopts Claimant's Final Proposal.

2017-2816






Law Firm

II. DECISION
















No error.

Comment (optional):




2017-2817






Law Firm

II. DECISION
















No error.

Comment (optional):

BP appeals a BEL award in the pre-RTP amount of $79,872.67 to Claimant, a Franchisor whose convenience store/gas station is located in the Recovery Zone. It asserts two errors. The first of these has been asserted previosly in other appeals, and concerns the argument that this franchisor was not operating a "facility" as construed by the Settlement Agreement abd Policy 467. After de novo revieand extensive communications with other panelists handling similar appeals,, in the interest of efficiency and brevity, this panelist adopts the well presented reasons on this very same issue submitted by its fellow panelist in Claim ID , which held that under the same franchise agreement as herein

2017-2818

Claimant/franchisor did qualify as operating a "facility.' BP's second ground for appeal is to question the categorization by the Program of "cash shortages" and "lottery shortages" expenses. As in Claim ID , the Claimant herein conceded the correctness of BP's position as reflected in its reduced final proposal amount. In a "baseball" appeal where BP makes an unrealistic final proposal of $0, this panelist must choose Claimant's proposal as by far closest to the correct result.






Law Firm

II. DECISION
















No error.

Comment (optional):




2017-2819






Law Firm

II. DECISION



Compensation Amount $

Risk Transfer Premium












No error.

Comment (optional):

BP appeals the BEL award to claimant,a convenience store in Naples,Florida.BP asserts claimant is a franchisor and does not qualify as a facility eligible for compensation under the Settlement Agreement.BP also asserts the Settlement Program misclassified certain expenses that inflated the award.This threshold issue has been reviewed by other panelists in numerous related appeals and consistently rejected.For the reasons stated therein,this panelist adheres to resolution of this issue in claimant's favor.The remaining issue relates to classification of cash shortages and lottery shortages as fixed expenses rather than as variable expenses.In its final proposal,claimant,in an effort to moot this claim of error,has reduced

2017-2820

the award amount from $54,006.49,pre-RTP, to $52,272.00, pre-RTP. BP in its final proposal has tendered the sum of zero dollars.In this baseball appeal process this panelist selects claimant's final proposal over that of BP.Accordingly, the decision of the Claims Administrator is affirmed and the appeal of BP is denied.






Law Firm

II. DECISION
















No error.

Comment (optional):


2017-2821

DWH:

Claim ID:


This is a BP appeal of one of a number of Business Economic Loss awards made to this Claimant’s facilities located in the Gulf Coast Areas. This appeal seeks to overturn an award to Claimant’s Store located in Dover, Florida (Zone D). The principal issue here, as in most of the numerous companion appeals, is whether or not Claimant is a franchisor and thus unable to satisfy the CAO Policy 467 definition of a Facility. The facts and issues in this appeal are identical to those in Claim ID which is the subject of a very thorough and scholarly opinion and decision by a distinguished fellow panelist. Because this panelist cannot begin to improve upon that decision and agrees with its findings and conclusions, it is adopted herein by reference.

For the foregoing reasons, following de novo review, this BP appeal cannot be sustained. The decision of the Claims Administrator is affirmed and Claimant’s Final Proposal is therefore selected.

August 22, 2017






Law Firm

II. DECISION
















No error.

Comment (optional):

As in many other appeals, BP herein appeals a BEL award in the pre-RTP amount of $116,497.09 to the franchisor of a convenience store/gasoline station located in the Recovery Zone. Its two grounds for appeal have already ben discussed and ruled upon in eloquent and comprehensive fashion by a fellow panelist in Claim ID . After extensive discussion among the panelists and de novo review, this panelist finds that the present appeal merits the same fate as , which involved the two theoretically identical issues (franchisor deemed to be operating the subject "facility" under Policy 467 and misclassification of certain expenses conceded by Claimant by a reduction of its final proposal amount). Accordingly,

2017-2822

Claimant's final proposal , especially in contrast to BP's final proposal of $0, is hereby chosen as the correct result.






Law Firm

II. DECISION
















No error.

Comment (optional):

2017-2823

Claim ID

BP appeals the Settlement Program’s determination that Claimant’s convenience store in

Clearwater, Florida is a Facility. As in numerous companion appeals, BP argues that Claimant is

a franchisor and thus unable to satisfy the definition of a Facility in Policy 467.

The critical facts do not appear to be in material dispute. Claimant leases the real property

upon which the convenience store is located. It entered into a franchise agreement calling for a turn

key, rent-free arrangement in which the franchisee operates the store in return for an initial fee and

a percentage of monthly profits. Claimant owns the underground gasoline storage tanks and pumps,

as well as the gasoline. receives the proceeds from the sale of gasoline after paying the

franchisee 1.5 cents/gallon. The permits to sell gasoline as well as the licenses necessary for

operation of the store are held by . Although Claimant has no permanent on-site employees,

at least five categories of employees visit the store periodically, performing various

functions. also furnishes a Business Transformation Initiative which handles payroll,

payment of invoices, store inventory and payment of sales tax. Otherwise, the day-to-day operations

of the store are performed by employees of the franchisee.

On appeal, BP’s principal argument is that Claimant cannot satisfy the third prong of the

definition of Facility in Policy 467 because it does not perform and/or manage operations at the store.

As BP sees it, the franchisee, not employs the store personnel and is responsible for

operating the store. Because Claimant is a franchisor, BP therefore argues that it neither performs

or manages the store’s operations nor does it provide services or products.

Claimant argues in response that Policy 467 does not require it to employ the persons

working in the store as long as it has employees or agents who themselves perform work at the

location and/or it provides services or products at the location. Because it sells its own gasoline and

other branded products such as chips, cookies, coffee, ice cream, etc., Claimant argues that

it provides both services and products at the store.

Claimant also relies on Policy 467(V)(H) regarding ownership of the location. This section

provides that “[a] franchise location will typically be considered a Facility of the franchisor Entity

if the Claimant owns or leases the real property on which the franchise is located.” Because it leases

the real property, Claimant argues that it qualifies ipso facto as a Facility. Indeed, it appears that the

Settlement Program relied on this provision in determining that the definition of Facility was met.

BP rebuts this argument by pointing out that merely owning or leasing the real property is not enough

in light of the first and third prongs of the Facility definition.

In Policy 467, the Claims Administrator set forth the definition of a Facility, establishing the

following criteria:

(a) A separate and distinct physical structure or premises;

(b) Owned, leased or operated by the Business Entity;

(c) At which the Business Entity performs and/or manages its operations.

The Administrator went on to emphasize that an entity must satisfy all three prongs to qualify as a

Facility.

Policy 467 (IV)(B) further establishes the criteria for when an entity performs or manages

its operations:

B. Definition of “Performs or Manages.”

1. Performs: An Entity “performs” operations at alocation if, in the normal course of its business, it hasemployees or agents who performs their work at thatlocation and/or it provides services or products at thatlocation.

2

2. Manages: An Entity “manages” its operations at alocation if, in the normal course of its business, it hasemployees or agents present at the location, on a full-time or part-time basis, who are responsible for themanagement, supervision, or direction of theoperation of the Entity.

3. Overall Criterion: An Entity does not “perform” or“manage” operations at a location unless it canidentify the expenses and revenues, if any, associatedwith the operations at that location separately from theexpenses and revenues of other locations owned,leased or operated by the Entity.

On appeal, Claimant initially argues that it satisfies the “Performs or Manages” prong

because it has employees who perform their work at the store. Claimant lists a Field Consultant,

Market Manager, Asset Protection Specialist, Environmental Compliance Specialist and Property

Specialist as categories of its employees who perform their work periodically at the store. BP

counters that has provided little or no evidence of any actual role played by these

employees in the operation of the store. De novo review reveals that the connection of these

employees to this particular store (or any store) is tenuous. As explained below, it is not necessary

to analyze the role and location of Claimant’s employees in order to make the Facility determination.

As noted, Policy 467 also allows an entity to establish that it performs operations at a location

if it provides services or products at that location. In response to a request from this panelist for a

detailed description of any products and services offered by 7 at this store, Claimant provided

the following:

Each Store Sells Exclusive Branded Products and Gasoline.Each store sells exclusive branded productsincluding potato chips, cookies, coffee, candy, beef jerky, ice cram,bakery items, and Slurpees (see attached from websiteidentifying the branded products in each store). Gasolinesales, of which approximately 70% are paid at the pump and have no

3

interaction with store personnel, are entirely the responsibility ofClaimant , who owns the underground gas storage tanks,hold all licenses to sell the gasoline, and receives all revenue from gassales (other than 1.5 cents per gallon paid to the franchisee).Claimant stores offer for sale all products in each storeand gasoline at the outside pumps in accordance with the franchiseagreement. Claimant receives approximately 50% of the in-storegross profits (i.e., after the payment of expenses) and all revenue (less1.5 cents per gallon) of gasoline sales. Further, owns thereal property for the store for Claim and leases the realproperty for the store for claim . Claimant provides allzoning, builds each store, and provides all equipment. Claimantprovides a turnkey operation to each franchisee and, in accordancewith the franchise agreement, continues to be engaged in each store’soperations (see discussion at Doc ID , p. 3-4). Claimantholds the licenses necessary to operate each store either exclusivelyor jointly with the franchisee (see discussion in Final ProposalMemorandum, Doc ID , P. 8). Without these licenses heldby Claimant, neither store could operate.

This panelist is persuaded that the sale of the branded gasoline and food products

is sufficient to satisfy the “services or products” requirement of Policy 467(IV)(B)(1). To the extent

the Settlement Program relied solely on Claimant’s leasing of the real estate in its determination, it

failed to analyze all the requirements of Policy 467. De novo review nevertheless confirms that the

Settlement Program was correct in determining that the subject store qualifies as a Facility.

BP also complains that the Settlement Program misclassified two categories of expenses,

Cash Shortages and Lottery Shortages as fixed costs when they should have been variable. BP

argues that these expenses are analogous to bad debt or inventory adjustments that are listed as

variable expenses in Exhibit 4D. Claimant concedes that Cash Shortages and Lottery Shortages

should have been treated as variable expenses. Claimant opposes remand, arguing that this expense

4

reclassification would result in only a small change in the award. In light of BP’s Final Proposal of

$0, this panelist agrees.

This is a baseball appeal in which Claimant’s Final Proposal must prevail and is therefore

selected.

5




First

Middle



Law Firm

II. DECISION




Risk Transfer Premium .25



Compensation Amount $331,104.25



Remand to Claims Administrator







No error.

Comment (optional):

BP appeals the BEL award to claimant,a cattle farm in Senatobia,Mississippi.BP asserts the Settlement Program(SP)

incorrectly classified "labor income" as revenue.BP argues such item was a reimbursed cost and "should be treated as an offset against the incurred expenses, not as revenue." Claimant argues that the SP decided this issue correctly and that BP

fails to explain how this error warrants a zero dollar award to claimant.

2017-2824

A review of the record discloses the SP determined claimant's financial records were not sufficiently matched and applied

policy 495 and the AVM methodology to process the claim. In the course of this evaluation,the SP adjusted and reallocated revenues contrary to recent court pronouncements so that remand is necessary.The seminal issue presented by BP does

not warrant correction or remand.Calculation note,paragraph 15,styled "Labor Income",fully explains the rationale behind the determination of the SP why this item should be considered part of the normal course of claimant's business

income.There is no sufficient reason provided by BP to disturb this decision.Even if there were error in this regard,given the magnitude of this award,such error would not result in or support a zero dollar award.Accordingly,this claim is remanded to

the Claims Administrator for further evaluation and processing consistent with the foregoing.




First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

BP appeals the BEL award to claimant,a chain pharmacy located in Orange Beach,Alabama. BP asserts the Settlement

Program(SP) misclassified claimant's "work opportunity tax credit" as part of payroll rather than as a fixed expense "Tax". Claimant responds that the SP properly classified this item as an adjustment to salaries and wages.Claimant,without

formally filing a cross-appeal,requested in its final proposal a tourism designation RTP of 2.50 rather than the RTP of 1.50

awarded by the SP in the eligibility notice. A review of the record discloses the issues presented for review herein are identical to those presented and resolved in

2017-2825

panel decision for claim number ,rendered on July 27,2017. There,the panelist received a summary of review from

the SP acknowledging the work opportunity tax credit had been improperly classified;and that corrected as a fixed expense,claimant's award would be reduced.The panelist there also concluded the request of claimant for an enhanced RTP

was untimely and unjustified.On the record before this panelist,it is concluded,that for reasons so ably expressed in the referenced decision,the final proposal of BP should prevail and it is selected over that of claimant.




First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

Claimant operates a chain of home healthcare and home hospice providers in Mississippi, including the facility that is the subject of this claim in Meridian, Mississippi. The Settlement Program awarded $149,854.77 (pre-RTP). BP appeals, asserting the Settlement Program erred because it failed to obtain consolidating financial statements as required by Exhibit 5 for multi-facility claimants. BP also raises the now-familiar attestation issue but deferred argument sue to the stipulation between BP and class counsel. Accordingly, this panel will not address that issue. Exhibit 5, states “Consolidating financial statements are required for the Multi-Facility Business specifying profit and loss for

2017-2826

all Facilities and detailing eliminating entries required.” BP contends this was not done and thus argues that the claim be remanded. Alternatively, BP submitted a final proposal of $0. Claimant acknowledges that it is a Multi-Facility Business with its Headquarters located within the Gulf Coast Areas and that it has one or more Facilities located outside of the Gulf Coast Areas. Claimant maintained separate contemporaneous profit and loss statements for each Facility during the Benchmark Period and 2010. Claimant maintains that in accordance with Exhibit 5, it could, at its option, elect to either file a claim for each individual Facility located in the Gulf Coast Areas that the Multi-Facility Business chooses to include in the claim, or file a consolidated claim on behalf of all Facilities located in the Gulf Coast Areas. Claimant chose to file a claim for each individual Facility. Consequently, Claimant was not required to provide the Additional Multi-Facility Business Documentation, as it elected to file separate claims for each Gulf Coast Area facility, including this one. After de novo review, the panel finds that there is neither basis for remand nor record support for BP’s final proposal of $0. Claimant’s final proposal, consistent with the award of the Claims Administrator, is hereby selected as the correct result. The panel further notes that Appeal Panels in Claims have reached a similar result.



Claimant Name

Last/Name of Business

First Middle



Law Firm

II. DECISION





Prior Payment Offset $65,192.64












No error.

Comment (optional):

Claimant is a contractor that performs marine work on docks, seawalls, and boat lifts. It is undisputed that Claimant’s business is physically located in Altha, Florida (Zone D).Claimant’s financial statements triggered four Policy 495 matching criteria and the Program calculated the award ($76,276.86 pre-RTP of .25) using the Construction Methodology. Because

2017-2827

an ISM was utilized, the claim must be remanded for recalculation using the AVMM pursuant to the Fifth Circuit’s Policy 495 Order and the District Court’s Interim Order. The remand notwithstanding, Claimant has raised additional issues on appeal that are discussed below. Claimant argues that, despite his Zone D location, the majority of his work is performed in Zones A and B and, therefore, he is entitled to an enhanced RTP of 1.25. The Settlement Agreement is quite clear that a BEL claimant’s zone determination is based upon its physical location, not where its work is performed. De novo review demonstrates overwhelming evidence that Claimant’s business is located in Zone D and there is no evidence at all that Claimant maintains a facility in either Zone A or Zone B. Accordingly, the Zone D determination was correct. Claimant also contends, apparently, that it is entitled to a tourism designation. Claimant did not file an opening memorandum as required and the panel can only glean from the record that Claimant’s argument is based upon the fact that its work is performed on behalf of hotels, rental properties, and state campgrounds. The Program considered this; however, since Claimant’s work was not performed for tourists themselves, a tourism designation was not warranted. The determination of whether a business is entitled to a tourism designation is based upon the totality of the circumstances. After a review of the record, the panel concludes that the totality of the circumstances do not show that Claimant’s business caters to tourists and therefore the denial of a tourism designation was proper. Then sole basis for remand is the Program’s use of an ISM and the claim is remanded for recalculation under the AVMM. Claimant’s remaining arguments are denied.




First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned








No error.

Comment (optional):

Claimant,a rental company in Mobile,Alabama,appeals the denial of its BEL claim on the basis it failed to satisfy the

causation requirements of Exhibit 4B of the Settlement Agreement.Claimant asserts the Settlement Program(SP) misapplied the provisions of the Decline-Only customer mix test when a segment of claimant's clientele were improperly classified as

non-local clients.Claimant posits that under its business model many of its non-local clients lease office space from claimant

for an extended period of time while they test the local market and search for long-term lease space.Claimant argues under these circumstances these clients are local customers and should not be classified as "non-local." BP responds that the SP

correctly analyzed the customer mix data provided by claimant. A review of the record discloses that the SP determined the claim was not sufficiently matched and applied policy 495

and the AVM methodology to process the claim.In the course of this evaluation the SP made adjustments to revenues received in November 2009-2011 to restate revenues to months actually earned.This adjustment appears contrary to

recent court decisions and requires remand.Upon remand,the SP will re-evaluate causation to determine if claimant passes

without resort to customer mix data.Relative to the issue raised by claimant concerning correctness of customer mix data,this panelist finds no error.The calculation notes, DOC ID ,paragraph 13 styled "Customer Mix Data: Long-

Term Customers", reflects this entry: "***The Claimant indicated the specific customers that were long term renters of

2017-2828

business space.***. As long term renters for use of commercial space,the locations of those customers were considered

the location of the rental space,rather than the location of their headquarters,per policy 345 v.3." Thus,it appears the SP analyzed the customer mix data in conformity with claimant's contentions.Accordingly,this claim is remanded to the Claims

Administrator for further evaluation and processing consistent with the foregoing.




First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

Claimant,the owner of an restaurant in Semmes,Alabama,appeals the denial of its BEL claim on the basis claimant

was not doing business on or before April 20,2010.Claimant argues that it purchased a chain of existing restaurants from its predecessor in October 2010 through bankruptcy proceedings.Prior to the purchase,claimant was operational before and

after April 20,2010,and continued to operate uninterrupted when the change in ownership occurred and thereafter.A review

of the record discloses claimant itself was not incorporated until October 2010,and had no operating history before then. Claimant acquired all of its predecessor's assets through bankruptcy sale.In this procedural posture,three recent

discretionary review court decisions appear to govern the issue presented. See decisions 2015-1699; 2015-1820; and 2016-300.These decisions were grounded on an interpretation of the Settlement Agreement itself and not resort to existing

policies of the Claims Administrator.Several recent panel decisions have also concluded similarly.Based on the foregoingreasons,the decision of the Claims Administrator is affirmed and the appeal of claimant is denied.

2017-2829




First Middle



Law Firm

II. DECISION

















No error.

Comment (optional):

Claimant is a cotton gin cooperative operating in Chatham, Mississippi, Zone D. The Policy 495 criteria were triggered and

either the AVM Methodology or the Agriculture Methodology was used to analyze/calculate the award. Which methodology was used is in debate. The eligibility notice says the Vendor Accountants used the AVM but the Accountant Notes on

reconsideration state the Agriculture Methodology was utilized. No matter because the claim will have to be remanded

2017-2830

anyway because the Accountant Notes show revenue was moved/reallocated in numerous instances which are clearly not

errors. See notes #7, #8, #9, #10, #11 and #12. Note #17 states the claim was analyzed under the Agriculture Methodology. BP argues this note must be a misstatement, nevertheless, as previously revealed, there are numerous

revenue reallocations which have now been prohibited by the presiding courts. The claim is remanded for further analysis that does not move revenues.



Claimant Name


First Middle



Law Firm

II. DECISION







Compensation Amount $1,062,368.49









No error.

Comment (optional):

I concur in the decision entered by my co-panelists.

2017-2831

I join in this opinion: Claimant operates landfills and provides waste transport services nationwide and filed this claim for its facility located in Brewton, Alabama, 45 miles from the Gulf of Mexico. (Zone D). The Settlement Program awarded Claimant $1,062,368.49 ($1,327,960.61 post-RTP). BP contests that the Settlement Program (“SP”) erred by relying on financial data that changed after 2008. Specifically, BP argues that Claimant changed accounting systems after 2008 and utilized different account names and account groupings for its expenses and revenue line items. BP claims that “[w]ithout a chart of accounts and account mapping, the shift makes it impossible to compare Claimant’s financial performance between the benchmark and compensation periods.” BP protests that this “makes it impossible to properly classify many of Claimant’s expenses” and “the SP failed to request any further information regarding Claimant’s accounts.” BP further argues that the Program Accountants failed to investigate the reported revenue in September 2011. In particular BP contests that Claimant reported $895,185 in revenue in September 2011—more than $200,000 more than in any other month that year, and more than $100,000 more than any other month since 2009. Thereby BP concludes that such fundamental error mandates a remand, as it “leads not only to the misclassification of a number of accounts, but also an erroneous calculation of Claimant’s compensation.” Alternatively, BP proposes an award of “0”.

Claimant rebuts asserting that the “Program Accountants reviewed, analyzed, and inquired of the Claimant on several occasions regarding Claimant’s various revenue and cost categories.” Claimant cites to the Program Accountant’s work papers issued in conjunction with the Eligibility Notice as proof that the SP used its judgment and determined it had sufficient information on which to base an award. Claimant further asserts that “[t}he Program Accountants did inquire about the revenue earned in [September 2011] to which Claimant provided a response. As stated by Claimant, the “increased amount of revenue during May 2007, June 2008, and September, 2011 was due to a few additional large special waste jobs that were serviced in the months recorded.”

The Panelists to this appeal upon review of the record unanimously conclude that under the terms of the Settlement Agreement the professional discretion of the SP was exercised and is due to be upheld. Certainly under the baseball approach to this review Claimant’s Proposal of $1,062,368.49 pre-RTP ($1,327,960.61 post-RTP) is a more accurate assessment of the award than is “0”. Further, remand is neither necessary nor appropriate. There is no error, and the appeal of BP is due to be denied.




First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

Claimant,a plant nursery in Steinhatchee,Florida,appeals the correctness of its BEL award. Claimant asserts the Settlement Program(SP) failed to designate claimant a zone A business with a higher RTP which resulted in claimant receiving an overall zero dollar award after prior payment offsets were applied to it. The basis of claimant's argument is that since most of its customers are located in zone A claimant was entitled to a zone A designation.BP argues this contention is incorrect; and that even if claimant were awarded a zone A designation and a higher RTP,the overall award would still result in a zero dollar award.

2017-2832

A review of the record discloses claimant,on its BEL claim form,declared it was a zone D business.This location governs since claimant's business operations are in zone D irrespective of where claimant's customers are located.Furthermore,claimant has not justified the higher amount for the pre-RTP award suggested in the initial and final proposals.The underlying award of $20,657.93,pre-RTP,contained in the eligibility notice must prevail.Finally,even if claimant was classified a zone A claimant and given a RTP of 2.50,the overall award would still net out at zero dollars because the prior payment offset of $89,516.81 is greater than claimant's adjusted award argued for in this appeal. Accordingly,the decision of the Claims Administrator is affirmed and the appeal of claimant is denied.




First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

No error. See attached opinion uploaded into the portal.

2017-2833

DWH:

Claim ID:


This is one of many appeals filed by this Claimant on behalf of its many stores located in the Gulf Coast Areas. This appeal involves its Store located in Fort Walton Beach, Florida (Zone C). A Start-Up Business Economic Loss claim filed in respect of that store was denied for failure to satisfy the causation requirements contained in Settlement Agreement Exhibit 7. In this appeal, Claimant argues that the Claims Administrator wrongly applied CAO Policy 495 and modified its profit and loss statements, notwithstanding that analysis of its financial data did not trigger any matching criteria. Because that action resulted in its failure to satisfy causation, Claimant asks that its claim be remanded to the Administrator for proper analysis without the application of Policy 495.

As BP correctly notes, the Administrator’s Calculation Notes indicate that while Claimant’s P&Ls did trigger Policy 495 matching criteria, he nevertheless made no adjustments to Claimant’s revenues. He determined that the documentation provided was not sufficient to establish causation in keeping with the Exhibit 7 requirements. Document ID

Claimant is simply mistaken.

Following de novo review and for the reasons stated herein, this Claimant appeal cannot be sustained. The decision of the Claims Administrator is affirmed.

Denial upheld.

Decision: August 29, 2017




First

Middle


Claim Type Subsistence

Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

Uploaded

2017-2834

CLAIM ID NO.

Claimant, , appeals from the denial of this Subsistence Claim. Claimant asserts he received a Post-Reconsideration Denial which stated he had to explain how his Redfish and Speckled Trout were harvested. Claimant provided a letter stating he used his recreational license to harvest Redfish and Speckled Trout, and concludes his claim is now complete. Even without this letter, Claimant argues he had a valid claim, as “Multiple Appeal Panel decisions have stated that a claim should not be denied for one or two allegedly unlicensed species when there are multiple other species eligible for payment.” Claimant requests his claim be remanded back to the Settlement Program for processing.

BP maintains Claimant failed to fulfill his obligation under the Settlement Agreement to identify the quantity of lost natural resources due to the Spill, as Claimant submitted multiple, contradictory sworn statements to the Settlement Program aimed at maximizing his potential award. Claimant’s most recent subsistence claim form, his third, alleged that in the year before the spill be caught wild fish and game totaling 7,995 pounds (down from 25,728 pounds originally claimed).

Claimants who submit claims under the Subsistence Framework must “[i]dentify the quantity of lost natural resources, including Seafood and Game.” Settlement Agreement, Ex. 9.B.2. The Settlement Agreement requires the Settlement Program to determine the quantity of lost natural resources “based on information provided by the claimant in intake forms and interviews with the Claims Administrator.” Settlement Agreement, Ex. 9.B.2.a. The Settlement Agreement provides that “[q]uantities of lost natural resources shall not exceed reasonable consumption rates.” Id., Ex.9.B.2.c.

Appeal Panelists have repeatedly rejected attempts by Claimants to assert inflated and inconsistent catch totals with no reasonable explanation. This claim falls squarely into that category, and is plainly rife with inconsistencies and dubious catch totals. It is found to be inflated beyond reason, and to be incredible and implausible on its face. Consequently, Claimant’s request for a remand is

denied, as is his appeal. The Denial herein as issued by the Claims Administrator is hereby upheld.




First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):


2017-2835

DWH:

Claim ID:


This Claimant, a residential building contractor located in Dothan, Alabama (Zone D) appeals the denial of its Business Economic Loss claim for failure to satisfy the causation requirements contained in Settlement Agreement Exhibit 4B. The Administrator reviewed Claimant’s financial data in keeping with CAO Policy 495 requirements, concluded that matching issues existed and resolved them utilizing the Construction Methodology. According to the Claims Administrator:

This claim has been evaluated under Policy 495, which allows for the restatement of revenues and/or expenses in the event that the Settlement Program identifies an error (as defined in Policy 495) or a mismatch of revenues and variable expenses. Furthermore, under Policy 495, this claim has been evaluated under the Construction Methodology, which also allows for the reallocation of revenues in order to "sufficiently match" the claim's revenues and variable expenses. As a result of such restatement and/or reallocation, this claim did not meet the revenue pattern causation requirements established by Exhibit 4B of the Settlement Agreement.

Docket ID , Note 16, Policy 495.

In this appeal, Claimant argues that analysis of its financial data pursuant to the Construction Methodology flies in the face of the Settlement Agreement and prior interpretive decisions of the Fifth Circuit which prohibit the movement of revenues and rerunning of causation after adjustment by the Claims Administrator. Consequently, since that issue is pending before the Fifth Circuit, this panel should refrain from ruling on its appeal until the Court has spoken. Indeed, the Court has since spoken and has declared that the Industry Specific Methodologies contained in Policy 495 contravene the terms of the Settlement Agreement and cannot be utilized in calculating BEL claims.

For the foregoing reasons, this Claimant appeal is sustained and the claim is remanded to the Claims Administrator for further proceedings in keeping with the Fifth Circuit Opinion and subsequent District Court Orders implementing it.

Denial overturned.





First Middle


Claim Type Failed Business Economic Loss

Law Firm

II. DECISION




Risk Transfer Premium 0












No error.

Comment (optional):

See reasons submitted to Appeals Coordinator.

2017-2836

1

Reasons for Decision Claim # August 17, 2017

Claimant filed a Failed BEL Claim for each Facility located in the Gulf Coast Area.

BP appeals the amount of Claimant’s award for reasons set forth below.

In 2009 Claimant operated 8 locations. All of the stores were owned by the Claimant, the parent company. Claimant borrowed money and put the 8 stores up as collateral on the loan.

Prior to the Spill, 2 of the stores closed, so that at the time of the Spill, 6 stores were in operation.

When Claimant failed after the Spill, Claimant’s debt was discharged. In performing its calculations, the Program allocated the discharged debt to the stores. The Program chose to allocate Claimant’s debt among all 8 stores, not just among the 6 stores that were still operating at the time of the Spill.

BP has appealed, arguing that the Claimant’s discharged debt should have been allocated 6 ways, not 8, because only 6 stores were open at the time of the Spill.

Additionally, BP has argued that Claimant’s EBITDA, not Claimant’s discharged debt, should have been allocated to the stores.

This Panel requested a Summary of Review in which the Program was asked the following:

1. Why did the Program allocate the discharged debt to all eight storesrather than the six that were open at the time of the Spill?

2. Why did the Program allocate the discharged debt rather than allocatingthe EBITDA?

The Program responded as follows:

1. DWH Accountant allocated the discharged debt to all eightstores rather than to the six that were open at the time of theSpill because the debt borrowed was dependent on andpertained to all eight locations when the loan was issued. As

2

such, the common debt discharged totaling $363,069 was allocated to all eight stores.

2. The allocation of debt is based on the expenses for all eightlocations in 2009. As documented in Calculation Note 15 (DocFile ID ), DWH Accountant determined thedischarged debt was used to finance the working capital foreach location, i.e., finance each location's operations. As such,each location's expenses more closely represented the use ofthe loan proceeds.

EBITDA is largely dependent on revenue which is impacted by many factors such as demand and the price/quantity of product offerings. For this reason, it does not correlate as closely to the working capital of a business as expenses do. As such, DWH Accountant determined expenses to be a better representation of each location's share of discharged debt rather than each location's EBITDA.

This Panel agrees with the Program’s decision to allocate the discharged among all 8 stores, further agrees with the Program’s decision to allocate debt to the stores rather than EBITDA.

After a de novo review, this Panel adopts Claimant’s Final Proposal.




First Middle



Law Firm

II. DECISION





Prior Payment Offset $332,352











No error.

Comment (optional):

BP appeals the BEL award to claimant,a shrimp processing and packaging operation in Dulac,Louisiana.BP asserts the

Settlement Program(SP) erred when it determined claimant was a "primary seafood processor"and assigned a RTP of 3.0 to claimant.( BP challenged the treatment of certain governmental payments to claimant in its notice of appeal but did not

pursue this issue further in its supporting memorandum.For this reason this argument is deemed withdrawn.) BP argues

that claimant 's tax returns do not support a finding that claimant is in the seafood industry; and even if claimant is engaged in the seafood business,it is a secondary purchaser of such items entitled only to a RTP of 2.25. Claimant argues it

2017-2837

is a landing site which provides facilities for commercial fishermen to unload their catch and from whom claimant directly

purchases domestic shrimp it then processes and sells to other parties in the normal course of business. A review of the record discloses the SP determined the claim was not sufficiently matched and applied policy 495 and the

AVM methodology to process the claim.The record reflects claimant provides a landing site for commercial fishermen to unload and clean their catch.In turn,claimant is allowed to purchase directly from these fishermen shrimp that claimant

processes and prepares for sale to other parties.All of claimant's product is locally harvested seafood.Claimant thus satisfies the definition of "primary seafood processor" under Exhibit 3,Section 2 of the Settlement Agreement. Another issue raised

by BP relative to unaddressed COG's spikes in 2009 and 2010 is procedurally barred as it was not presented in the notice of

appeal filed on May 10,2017.Accordingly, the decision of the Claims Administrator is affirmed and the appeal of BP is denied.




First Middle



Law Firm

II. DECISION

















No error.

Comment (optional):

filed this Business Economic Loss claim under the Settlement Agreement. The Settlement Program

applied the Construction Methodology in reaching its recommended award to Claimant.

Because the Construction Methodology was applied rather than the AVMM or General Business Economic Loss (if the claim

2017-2838

was sufficiently matched), the claim must be remanded to the Settlement Program for recalculation.

There is another appellate issue, however. BP challenges the Settlement Program’s change of zone classification from

Zone C to Zone A. The record is not sufficient to support the Zone A classification by the Settlement Program. On remand, Claimant may supplement the record as to the Zone Classification and the Settlement Program is instructed to reassess the

Zone Classification.

Based upon the above, the claim is remanded.






Law Firm

II. DECISION

















No error.

Comment (optional):

BP appeals the BEL award to claimant,a multi-facility paving and road contractor located in Tallahassee,Florida.BP in its

supporting memorandum argues four issues: the Settlement Program(SP) failed to address whether claimant is an excluded DOD contractor; the SP failed to allocate properly expenses among claimant's various facilities; the SP erred by including

claimant's "Other Income-Joint Venture" income in the calculation of revenue; and the SP misclassified claimant's

2017-2839

"Management Fee" expenses as fixed. BP in its notice of appeal did not raise the DOD exclusion as an assignment of

error.While BP did raise the issue of out-of-zone facilities,it did not brief that issue directly but only challenged how expenses were allocated among its other four existing facilities.Finally,even though BP did raise the issue of inter-company

transfers in its notice of appeal,it did not directly argue this issue further in its supporting memorandum. In light of the foregoing observations and review of the record,this panel unanimously concludes resolution of this appeal

is governed by the decision entered on August 8,2017,in claim number by a separate panel involving the same claimant and the identical four issues briefed by the parties herein.Accordingly,for the reasons stated therein,this claim is

remanded to the Claims Administrator for further evaluation consistent therewith.






Law Firm

II. DECISION

















No error.

Comment (optional):

See Separate Decision

2017-2840

I join in this opinion: BP appeals the BEL award to claimant, a multi-facility paving and road

contractor headquartered in Tallahassee, Florida. BP raises four issues for review. A review of

the record discloses that the SP determined the claim was not sufficiently matched and applied

Policy 495 and the Construction Methodology to process the claim. For this reason, remand is

required under recent court decisions for re-evaluation with the AVM methodology to be

applied. A review of the record also discloses the four issues presented herein are identical to

those issues resolved on August 8, 2017, by a separate panel in claim number 91974 involving

the same claimant. As a result of such record review this panel unanimously concludes

resolution of this appeal is governed by the prior referenced panel decision. Accordingly, this

claim is remanded to the Claims Administrator for further evaluation and processing consistent

with the foregoing.






Law Firm

II. DECISION

















No error.

Comment (optional):


2017-2841

I join in this opinion: BP appeals the BEL award to claimant, a multi-facility paving and road

contractor headquartered in Tallahassee, Florida. BP raises four issues for review. A review of

the record discloses that the SP determined the claim was not sufficiently matched and applied

Policy 495 and the Construction Methodology to process the claim. For this reason, remand is

required under recent court decisions for re-evaluation with the AVM methodology to be

applied. A review of the record also discloses the four issues presented herein are identical to

those issues resolved on August 8, 2017, by a separate panel in claim number 91974 involving

the same claimant. As a result of such record review this panel unanimously concludes

resolution of this appeal is governed by the prior referenced panel decision. Accordingly, this

claim is remanded to the Claims Administrator for further evaluation and processing consistent

with the foregoing.




First Middle



Law Firm

II. DECISION





Prior Payment Offset $2,065,709.40











No error.

Comment (optional):

2017-2842

BP appeals the BEL award to claimant, a resort hotel in Key West, Florida. BP asserts the Settlement Program (SP) failed to determine if reported related party transactions were at arm’s length; and the SP misclassified “management fee” expense and operational expenses such as linen, laundry and cleaning as fixed rather than as variable expenses. Claimant responds that the SP recognized the related party issue, directed inquiry to claimant and correctly concluded after research that any transactions noted were at arm’s length. Claimant also argues that the expenses were correctly classified as fixed in accordance with Exhibit 4D of the Settlement Agreement.

A review of the record discloses the SP determined the claim was sufficiently matched and used the general BEL methodology to process the claim. No revenues or expenses were adjusted or restated contrary to recent court decisions. The record also reflects the SP directed inquiry to claimant when the SP observed reference to related party activities in claimant’s federal tax returns. In DOC ID claimant explained the nature and basis of such transactions in this manner: “ The property would record a debit to management fee expense and a credit due to related party.” The SP was satisfied such transactions were arm’s length transactions and this panel finds no basis to disturb this determination of the SP.

Finally, relative to BP’s argument that the “management fee” expense and operational expenses such as linen, laundry and cleaning were misclassified as fixed expenses, this panel rejects such argument. The management fee expense involved herein is akin to a franchise fee which is classified as a fixed expense under Exhibit 4D. The other challenged expenses are by their nature required for day-to-day operations of the hotel and fixed. They are akin to “supplies” which are classified as fixed expenses under Exhibit 4D as well. See also panel decision in claim number , decided July 18, 2017. Accordingly, the decision of the Claims Administrator is unanimously affirmed and the appeal of BP is denied.




First

Middle


Claim Type Individual Economic Loss

Law Firm

II. DECISION
















No error.

Comment (optional):

BP appeals the IEL award to claimant,a member of a law firm located in Oldsmar,Florida. BP asserts the Settlement

Program(SP) "erred because it appears that Claimant is an owner of the law firm and does not qualify to make an IEL claim". BP further argues claimant's SWS statement is deficient and does not measure up to causation standards.Claimant

argues he is eligible to file an IEL claim as two other firm members filed IEL claims and were compensated without

challenge; his claim is based on lost W-2 wages; and his SWS is sufficiently detailed to satisfy the requirements of the Settlement Agreement.

2017-2843

A review of the record discloses that claimant is a member of a law firm engaged in an active trial practice.The firm with

whom claimant is employed did not file its own separate BEL claim.BP argues that,since the firm itself did not file a BEL claim that the SP validated,the firm is not an "eligible employer" for whom claimant worked,thus rendering this instant

claim defective and premature.This argument has no basis or support in the Settlement Agreement or decisional law.Furthermore,since the employing entity was never compensated under the BEL framework,claimant is not barred under

the double recovery provisions of the Settlement Agreement for his lost W-2 wages. See e.g., panel decision in claim number decided August 23,2017.Finally,the recitations contained in the submitted SWS (DOC ID ) are

sufficient to pass muster and support the IEL.There is no error.Accordingly,the decision of the Claims Administrator is

affirmed and the appeal of BP is denied.




First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):


2017-2844

Appeal Panel Decision Reasons

Claim ID

a staff, payroll servicing company domiciled in Auburndale, Florida,

appeals the denial of its BEL claim. The denial was made on the basis that CS was not a member

of the Economic Class. Claimant insists that it fits within the Class member definition which

includes a "service business with one or more full-time employees...who performed their full

time services while physically present in the Gulf Coast Areas...any time from April 20, 2010 to

April 16, 2012". points to the location of its HR Director who performed her full time duties

at a satellite office which was within the Claim Zone. Claimant maintains there was evidence of

lease payments which provides support that the location was a "facility" since it was a separate

and distinct physical structure, leased by the company at which the entity performed or managed

its operations.

Despite these contentions, as BP points out, there is no evidence that the company leased the

premises in question. maintains only that the employee was reimbursed for expenses she

incurred in this office. However, there is no support in the record that Claimant owned or leased

the location during the requisite period. Exhibit 5 defines a Multi-Facility Business as "A

business entity that, during the period April 1, 2010 through December 31, 2010 maintained

Facilities in more than one location and had at least one Facility within the Gulf Coast Areas".

Although there is evidence that bought the property in 2011 to be eventually conveyed to the

employee, this does not satisfy the requirements which necessitates the maintenance of a Facility

between April 1, 2010 and December 31, 2010. Claimant did not own or lease the location

during this period and this is fatal to the claim.

BP also points out that did not identify the expenses and revenues associated with the

operations of the separate location. BP seems to be correct on this point as well but it is not

necessary to examine this issue in greater detail in view of the fundamental flaw in the claim

previously addressed. The denial of this claim is affirmed.




First

Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

Claimant appeals a Post-Reconsideration Denial of this Subsistence Claim which stated he did not have a license to harvest

tuna. Claimant explains he subsequently provided a Subsistence Interview Form removing tuna, and requests his claim be remanded back to the Settlement Program.

Claimant initially asserted on his sworn Claim Form that he harvested over 35 tons of subsistence seafood in the year before the Spill and consumed that amount with two dependents, including an infant. He used that amount as the basis for

his alleged lost catch totals. On his third submittal, he settling on a lost catch total of 9,878 pounds, or an average of nine pounds per person, per day

for an entire year. Based on these absurd claims, Claimant has failed to fulfill his obligation under the Settlement Agreement to credibly identify the quantity of lost natural resources due to the Spill. This Appeal Panel has repeatedly

rejected attempts by claimants to assert inflated catch totals. This claim is inflated beyond reason and is found to be

incredible and implausible. Extreme variances of representations of catch totals, all incredible and implausible, warrant denial of a request for remand based solely upon the elimination of a species because of being unlicensed. Claimant’s

appeal is denied, and the denial as entered by the Claims Administrator is hereby upheld.

2017-2845



Claimant Name


First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

Claimant,a hospital in Alexandria,Louisiana,appeals the denial of its BEL claim on the basis it failed to satisfy the causation

requirements of Exhibit 4B of the Settlement Agreement.Claimant asserts the Settlement Program(SP) erred in its

application of policy 495 of the claim along with its decision to use the general BEL methodology to evaluate the claim.Other than arguing the SP used inconsistent methodologies over the course of the claims process,claimant offers no

other basis to show how the outcome requires alteration. A review of the record discloses that the SP preliminarily found the claim was not sufficiently matched under the criteria

of policy 495.After further analysis the SP decided to proceed with evaluation of the claim using the general BEL

methodology.Claimant uses accrual basis of accounting and the calculation notes reflect no revenues or expenses were restated or adjusted contrary to recent court decisions.The record fails to disclose the SP abused its discretion in selecting

the general BEL methodology to process the claim and in its determination that claimant did not pass causation.Claimant has presented no reasons to disturb this determination.Accordingly,the decision of the Claims Administrator is affirmed and

the appeal of claimant is denied.

2017-2846



Claimant Name


First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

Claimant is a designer and manufacturer of custom tempered glass located in Sarasota, Florida The Settlement Program calculated an award for Claimant of $2,118.09 pre-RTP. Claimant appeals asserting that the Settlement Program erroneously classified Claimant’s expense “Building Rent” (called “Building Rent-Fl Plant” on the 2007 P&Ls) as “COGS - Variable (VARIABLE).” Claimant contends that this expense is clearly constant month after month. Further, “Rental Expense” is a listed fixed expense in Settlement Agreement Exhibit 4D, Attachment A. While this expense does appear in

2017-2847

the Claimant’s COGS section of their P&Ls, Appeals Panels decisions support Settlement Program evaluation of COGS expenses to determine their nature. Exhibit 4C of the Settlement Agreement provides: “For claimants that include Cost of Goods Sold (COGS) in their financial statements, COGS will be treated as a variable expense after excluding, to the extent possible, the following cost items which may be embedded in COGS and are likely to be fixed in nature: Fixed COGS Payroll, Amortization, Depreciation, Insurance Expense, Interest Expense, and Contract Services.” Claimant asserts that it seems apparent that the Settlement Program vendor accountants applied this entirely literally, without any consideration of whether or not Building Rent was fixed or variable in nature. Claimant believes that while the Settlement Program vendor accountants are given wide latitude in their accounting judgments, they clearly felt restricted here from making a judgment. While this expense does appear in the Claimant’s COGS section of their P&Ls, Appeals Panels decisions support Settlement Program evaluation of COGS expenses to determine their nature. BP counters that under Exhibit 4C, these line items are not identified as fixed COGS, and thus should be treated as variable. It is irrelevant, says BP, that “Rental Expense” can be treated as a fixed expense under certain circumstances, as the Settlement Agreement lists specific COGS that will be treated as fixed under Exhibit 4C, and Claimant’s line items are not included within this list. Pursuant to Policy 361, the Claims Administrator is to treat expenses as Variable or Fixed if they fall within either of those categories pursuant to Exhibit 4D, Attachment D. If the Claims Administrator finds that the expense does not fit within the description of the Variable or Fixed expense categories in Exhibit 4D, Attachment A, the accountants will use discretion to apply the classification that best conforms to delineations made by the parties. There was no correlation between Claimant’s “Building Rent” expense and the revenues earned. This panelist agrees with Claimant that any reasonable person would observe that this expense does not vary with revenue on a monthly basis. BP attempts to distinguish an Appeal Panel decision cited by Claimant discussing whether an expense was fixed “after a detailed inquiry” as inapposite here, however, this panelist has done a detailed inquiry upon de novo review and finds for the Claimant. Claimant’s Final Proposal is adopted.



Claimant Name


First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

Claimant,a construction consulting firm in Fort Myers,Florida, appeals the denial of its BEL claim on the basis it failed to satisfy the causation requirements of the Decline-Only causation test when it did not provide sufficient documentation of

factors outside its control that prevented recovery of necessary revenues in 2011.Claimant asserts the Settlement

Program(SP) incorrectly determined claimant had not submitted such sufficient factors when in fact claimant had provided three different factors relating to such.Claimant further argues policy 474 is excessive in its requirement that imposes

objective,third-party documentation in this regard and is contrary to the plain terms of the Settlement Agreement.BP posits the SP properly applied policy 474.BP also argues the SP correctly concluded the three reasons cited by claimant as

"outside factors" were not sufficient.

A review of the record discloses the SP determined the claim was not sufficiently matched and applied policy 495 and the AVM methodology to process the claim.The SP also resorted to use of policy 474 in processing the claim.The challenge by

claimant to policy 474 and its requirement of submission of objective,third-party documentation has been nullified by the U.S.Fifth Circuit Court of Appeals in its recognition and acceptance of this requirement in the recent review of a similar BEL

issue.See decision number 16-30786,decided April 27,2017.Thus,this challenge to application of policy 474 is rejected.Beyond this issue of whether the submission of claimant was objective, third-party documentation,this panelist

concludes the three reasons or factors cited by claimant were substantively insufficient to constitute factors outside the

control of claimant preventing recovery of revenues in 2011.One of claimant's principals made the conscious,voluntary

2017-2848

decision to forego his primary responsibility to claimant to assist his companion in her new business venture.This choice

was an internal decision-making event not beyond claimant's control.Furthermore,the loss of a customer due to dissolution of its license in 2011 by itself is not a sufficient showing.Claimant did not show when in 2011 the customer ceased

operations or how and to what extent this loss of one customer caused or prevented claimant from recovering revenues in 2011.This much is required under recent court and panel decisions to establish the presence of outside factors beyond the

control of claimant.See decision number 16-30786,infra.See also panel decision in claim number ,dated July 22,2017.Lastly,reliance on trade journals and other publications reflecting changes in market conditions or shifting trends

has been held insufficient documentation to establish the existence of outside factors.Review of the record reveals no

evidence to this panelist that revenues or expenses were restated or adjusted impermissibly and contrary to recent court decisions.Remand is not warranted.For the above-stated reasons,the decision of the Claims Administrator is affirmed and





First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):


2017-2849


Claim ID

a veterinary clinic in Zone C, appeals the denial of its

claim due to a failure to establish causation under the Zone C Decline-Only test in Exhibit 4B.

The Program determined the Down Only standard was not satisfied due to Claimant's aggregate

monthly revenue decline of 8.48% which fell short of the 8.5% threshold required.

contends it is proper for the Claims Administrator to round up because " the examples noted in

Exhibit 4B do require rounding up". BP counters that rounding is not allowed and references a

decision from the District Court as support for its position. In this instance, the Appeal Panel had

found that the Claimant passed the causation requirement of a decline of 15% or more, despite

the accountant's determination that the decline was actually 14.9957 %. The District Court stated

as follows: " The provisions of the Settlement Agreement require a revenue decline of 15% or

more. The decision of the Appeal Panel is therefore REVERSED. The claim is REMANDED to

the Settlement Program for re-assessment and/or explanation of whether and how the

requirement of a 15% decline in revenues has been satisfied, and if it has not, whether and how

the claimant satisfies the causation requirements of Exhibit 4B on any other basis."

Claimant argues that the decision does not stand for the proposition that the exact number must

be satisfied, evidenced by the fact that the Court remanded the case. This panelist disagrees with

this contention. The Court explicitly stated that the exact threshold had to be met, and a number

that is close does not suffice. It was on this basis that the District Court reversed the finding of

the Appeal Panel that an extremely close number was sufficient to meet the applicable standard

and justify an award. If rounding was allowed, the bright lines in the Settlement Agreement

would become somewhat meaningless and would allow for endless arguments about what

numbers are close enough to satisfy the standards set forth in the Agreement. The denial of this

claim is affirmed.




First

Middle


Claim Type Wetlands Real Property

Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

filed this Wetlands Real Property claim. The Settlement Program denied the claim multiple times.

appeals.

claims to be the owner of a parcel of wetlands property in Cameron Parish, Louisiana. BP appears to challenge her

ownership by characterizing her ownership as “alleged.” The issue is not briefed, however, and this opinion presupposes is the owner of the parcel in question based on the record.

We then move to the heart of the appeal, which concerns whether the parcel is within the Compensation Zone. Claimant

relies on the legal description of the property, the Settlement Program’s mapping tool, and on Exhibits 12C and 12D of the Settlement Agreement. BP relies upon the Settlement Program’s mapping experts who have repeatedly concluded

Claimant’s parcel is outside of the Zone.

The conclusion is based upon the Wetlands Property Database. Exhibit 12A provides that the database contains the best

available parcel data and is presumptively correct.

The record contains some evidence to the contrary but nothing to the level that would rebut the presumption that the

database is correct.

2017-2850

The Settlement Agreement permits parcels outside the Zone to be included for compensation purposes if certain criteria relating to oiling is present. No such evidence exists here.

Therefore, the Settlement Program properly concluded that Claimant may not recover under the Wetlands framework.



Claimant Name


First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

Claimant is a medical provider located in Sulphur, Louisiana, Zone D. The Policy 495 criteria were triggered and the AVM Methodology was used to analyze the claim. There is no indication revenues were reallocated. The result was that while

Claimant passed the Decline-Only Revenue Test it failed the Customer Mix requirements. As usual, this Claimant attempted

to cure the failure by submitting additional data which added the addresses of numerous patients. Claimant created submittals that deleted the names of patients but showed the zone they lived in and dates of treatment. Claimant argues

under HIPPA it could not reveal more. BP argues the Program could not accept such non-contemporaneous created data. Probably true under the express terms of the Settlement Agreement but Claimant's financials also failed to show a decline

of greater than 10% of revenues from non-local customers from May-June 2010 compared to the same period of 2009. It

further failed to prove a decline of greater than 10% of revenues generated from customers in Zones A-C. The claim was properly denied.

2017-2851




First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

Claimant,a furniture making company located in Tupelo,Mississippi,appeals the denial of its Start-Up BEL claim on the basis

it was not in operation on or before April 20,2010.Claimant asserts the Settlement Program(SP) incorrectly reclassified its BEL claim as a Start-Up BEL claim in concluding it was not in operation on April 20,2010,as required by Section 1.2 of the

Settlement Agreement. Claimant argues its predecessor,

commenced operations in 2002;and in 2010 its board of directors changed the business name to to be consistent with its name usage in the marketplace. Claimant posits there was no interruption in its business cycle and

activities and thus it was an "ongoing concern." BP responds that did not come into existence until September 27,2010,when it incorporated with the State of Mississippi.BP argues that under recent court and panel decisions the SP

correctly denied the claim. A review of the record discloses that was not incorporated and in legal existence until September 27,2010.Claimant

at that time acquired the assets of its predecessor via an asset transfer agreement.Each entity has in the public

records a different EIN and date of incorporation.The record also reflects claimant did not begin to file federal tax returns until 2010 with revenues reported for only a part of the year as evidenced in its P&Ls.The SP conducted sufficient outreach

to make its determination.It is clear that under recent discretionary review court decisions the SP was correct in its stated reasons for denial.See e.g.,decision number 2016-300.Accordingly,the decision of the Claims Administrator is affirmed and


2017-2852






Law Firm

II. DECISION

Denial Upheld

Denial Overturned








No error.

Comment (optional):

Claimant, grows cotton and peanuts in Jay, Florida. The Settlement Program applied Policy

495’s Agriculture methodology and denied this claim because Claimant fails all of Exhibit 4B’s revenue pattern tests. Claimant appeals, challenging the Settlement Program’s application of the Agriculture Methodology to this claim. On May

22, 2017, the Fifth Circuit held that Industry Specific Methodologies (“ISM”) are inconsistent with the Settlement

Agreement and prior Fifth Circuit Opinions. See In re: Deepwater Horizon, App. No. 15-30377 (5th Cir. May 22, 2017). Implementing this opinion, the District Court ordered all claims to which an ISM, such as the Agricultural methodology, was

applied be remanded to the Settlement Program and reprocessed using the AVM Methodology for unmatched claims. Accordingly, this claim is remanded.

2017-2853




First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned








No error.

Comment (optional):

Claimant,a construction company in Thibodaux, Louisiana,appeals the denial of its BEL claim on the basis it failed to satisfy

the causation requirements of Exhibit 4B of the Settlement Agreement.Claimant asserts because the Construction Methodology was used to evaluate the claim,it is entitled to remand and further review under recent court decisions.

Claimant also argues that it has presented new data to satisfy both prongs of the Decline-Only Revenue Pattern Test as

well as Proof of Spill-Related Cancellations previously not considered by the Settlement Program(SP). BP argues such new submissions are untimely and insufficient.

A review of the record discloses the SP determined the claim was not sufficiently matched and applied policy 495 and the Construction Methodology to evaluate and process the claim.For this reason,remand is warranted using the AVM

methodology to be applied.The SP has not had full opportunity to address claimant's new submissions which this panelist does not find to be untimely.Remand will afford claimant one last chance to cure any deficiencies in its prior submission

with regard to its alternative theories of proof of sufficient causation showing.Accordingly,this claim is remanded to the

Claims Administrator for further evaluation and processing consistent with the foregoing.

2017-2854




First

Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

In this baseball arbitration appeal, Claimant has reduced his Final Proposal dramatically, virtually conceding BP's position

on the merits. Based on the math, Claimant's Final Proposal is selected as being closest to the correct calculation.

2017-2855




First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned








No error.

Comment (optional):

Claimant,a farming operation in Atmore,Alabama,appeals the denial of its BEL claim on the basis it failed to satisfy the

causation requirements of Exhibit 4B of the Settlement Agreement.Claimant asserts the SP incorrectly applied policy 495 when it used the Agriculture Methodology to process the claim.Other issues were raised by claimant in its notice of

appeal,but in its brief,argues just this one issue.Claimant argues in light of recent court decisions the SP should have used

the AVM methodology to evaluate and process the claim.BP argues the SP correctly applied the Agriculture Methodology.A review of the record confirms the Agriculture Methodology was used by the SP. Therefore,recent court decisions mandate

remand of this claim with the AVM methodology to be used to evaluate and process the claim without restatement of revenues except to correct errors as allowed by policy 495.Accordingly,this claim is remanded to the Claims Administrator

for that purpose.

2017-2856




First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned








No error.

Comment (optional):

Claimant is a residential and commercial architectural design firm located in Opelousas, Louisiana, Zone D. The Policy 495

criteria were triggered and the Vendor Accountants utilized the Professional Services Methodology to restate the P/Ls. The result was a failure of causation under Exhibit 4B. While Claimant passed the decline-only portion, it did not meet the three

prong requirements dealing with the Customer-Mix Test. A review of the Accountant Notes at #10 and #14 show the

Vendor Accountants reallocated revenues to exclude them from creating variances they had identified. This movement of revenue was not intended to correct errors. The recent decisions of the presiding courts require the remand of this claim

for recalculation under the AVM Methodology.

2017-2857




First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

See written reasons uploaded

2017-2858

CLAIMANT: CLAIM ID:

This is a Claimant’s appeal of the Settlement Program’s denial of its Wetlands RealProperty Claim for a parcel Claimant owns in Plaquemines Parish, Louisiana.

The parcel in question is clearly not within the Wetlands Real Property Claim Zone setforth in Exhibit 12 of the Settlement Agreement. Thus, Claimant’s parcel could only be addedto the Wetlands Real Property Claim Zone if the parcel is documented as containing thepresence of oil pursuant to SCAT or an official assessment conducted by the National ResourceTrustees in connection with the DWH Spill.

Claimant asserts that the Natural Resource Trustee’s “Deepwater Horizon Oil Spill: FinalProgrammatic Damage Assessment and Restoration Plan and Final ProgrammaticEnvironmental Impact Statement” proves the presence of oil on the parcel in questionsufficient to add the parcel in question to the Wetlands Real Property Claim Zone.

BP replies:

“Claimant attaches to its reply memorandum excerpts from aNatural Resources Trustees report. But contrary to Claimant’ssuggestion, that general report - which has been known to theClaims Administrator since it was published - does notdemonstrate the Natural Resource Trustees have “documentedthe presence of oil” on Claimant’s parcels. See SettlementAgreement, Exhibit 12A at 3. Instead, Claimant asserts vaguelythat its parcels are somewhere within the boundaries of aerialphotographs in the report. Even if that were the case, that wouldnot constitute evidence that the SCAT teams or Natural ResourceTrustees documented the presence of oil on Claimant’s parcels.”

This panelist notes that Claimant has several pending appeals contesting the SettlementProgram’s denial of Wetlands Real Property Claims involving other parcels owned by Claimant. The decision herein by this panelist is related solely to the parcel in question and is based uponthe panelist’s de novo review of the record involving this parcel. That being said, the panelfinds that the Claimant has not proven that the parcel in question was oiled. Therefore, theSettlement Program was correct in denying this claim.




First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

Claimant,a property owner in Plaquemines Parish,Louisiana,appeals the denial of its Wetlands Real Property Claim(WRPC)

on the basis the subject parcel was not located in the WRPC zone.Claimant does not dispute the parcel is not physically located in the the WRPC zone but argues it should be added thereto because it is oiled and eligible to be added to the

WRPC zone.Claimant also argues it has provided,through an arm of the Natural Resource Trustee,the Louisiana Coastal

Protection and Resource Authority,a document showing the presence of oil on the subject parcel.BP responds that the report relied on by claimant is vague and not sufficiently specific to establish the documented presence of oil on the subject

parcel. A review of the record confirms the subject parcel is not located in the WRPC zone.This review also demonstrates that

claimant has failed to prove satisfactorily the subject parcel was oiled as asserted and should be added to the WRPC zone.Accordingly, the decision of the Claims Administrator is affirmed and the appeal of BP is denied.

2017-2859




First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):


2017-2860

CLAIMANT: CLAIM ID:

This is a Claimant’s appeal of the Settlement Program’s denial of its Wetlands RealProperty Claim for a parcel Claimant owns in Plaquemines Parish, Louisiana.

The parcel in question is clearly not within the Wetlands Real Property Claim Zone setforth in Exhibit 12 of the Settlement Agreement. Thus, Claimant’s parcel could only be addedto the Wetlands Real Property Claim Zone if the parcel is documented as containing thepresence of oil pursuant to SCAT or an official assessment conducted by the National ResourceTrustees in connection with the DWH Spill.

Claimant asserts that the Natural Resource Trustee’s “Deepwater Horizon Oil Spill: FinalProgrammatic Damage Assessment and Restoration Plan and Final ProgrammaticEnvironmental Impact Statement” proves the presence of oil on the parcel in questionsufficient to add the parcel in question to the Wetlands Real Property Claim Zone.

BP replies:

“Claimant attaches to its reply memorandum excerpts from aNatural Resources Trustees report. But contrary to Claimant’ssuggestion, that general report - which has been known to theClaims Administrator since it was published - does notdemonstrate the Natural Resource Trustees have “documentedthe presence of oil” on Claimant’s parcels. See SettlementAgreement, Exhibit 12A at 3. Instead, Claimant asserts vaguelythat its parcels are somewhere within the boundaries of aerialphotographs in the report. Even if that were the case, that wouldnot constitute evidence that the SCAT teams or Natural ResourceTrustees documented the presence of oil on Claimant’s parcels.”

This panelist notes that Claimant has several pending appeals contesting the SettlementProgram’s denial of Wetlands Real Property Claims involving other parcels owned by Claimant. The decision herein by this panelist is related solely to the parcel in question and is based uponthe panelist’s de novo review of the record involving this parcel. That being said, the panelfinds that the Claimant has not proven that the parcel in question was oiled. Therefore, theSettlement Program was correct in denying this claim.




First

Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

2017-2861

- Claim ID

On August 15, 2016, the Settlement Program denied the Subsistence claim of this resident

of Galliano, Louisiana after the Field Visit team was unable to verify the quantities of seafood

claimed. Claimant’s Notice of Appeal states:

During field interview was very overwhelming and was not awarethat I had to give eight of fish per species, per trip. I do not weighfish only measure length to be sure legal limit. I do limit out onspecials majority of my trips. Fish is a major portion of my freezersupply. My original claim had my sone on it out of habit, then Irealized he was just born at the time of spill. My original claim alsodid not have my ex-husband on it. Nations added him to claim aftermy field interview - we married at time of spill but legally separatedwhen claim was filed. Major concern is at the time I filed my claimI did have a b/f who lived with me who also filed a claim and I’mconcerned he used my address because I was continuously askedabout a John Dufrene who I do not know but his name is John Webb.

On her initial Subsistence claim form, Claimant listed the following species and quantities:

Finfish 15,108 lbs.Flounder 120 lbs.Mackerel 5,688 lbs.

20,916 lbs.

Because the claim was for an amount greater than $10,000, a Field Visit was initiated to investigate

the accuracy of the claim as required by Exhibit 9E.

The Field Visit was conducted on April 17, 2017. On April 27, 2017, Claimant filed an

amended Subsistence Interview Form in which she reduced her catch totals. See ID . This

time, she reported a total loss of 3,186 pounds across the same species. On the same date, the

Settlement Program issued a Post-Reconsideration Denial Notice based on the recommendation of

the Field Visit team.

Inter alia, the Field Team made the following findings and conclusions as a result of the

visit:

! In Document ID , the Claimant reported an impairment period beginning4/20/10 through 3/7/12 and reported fishing over a 23-month period beginningJanuary 2010 and December 2012. In Doc ID , the Claimant reported animpairment period beginning 5/1/10 through 12/3/11 and reported fishing over a 20-month period between January 2010 and December 2011.

! The Claimant reported two different harvest/loss poundage totals. The originalestimation of harvest/loss dated 5/18/15 identified ten species with a combinedweight of 18,648 pounds (Document ID ). The amended estimationidentified eight species with a combined weight of 15,348 pounds of harvest/loss.Crabs and shrimp were dropped from the claim on 9/1/16 (Document ID ).

! The Claimant reported fishing 10 months out of the year at an estimated frequencyof 1.5 days per week. The Claimant reported that she did not fish in January orDecember.

! The Claimant reported an impairment period of 20 months, less the three months ofreported non-fishing activity, for a total of 17 months, which would equate to a lossof 110 fishing opportunities.

! The Claimant reported the loss of eight finfish species totaling 15,108 pounds at thetime of the interview, but reduced the poundage for flounder from 1,080 pounds to120 pounds.

! The Claimant reported at the beginning of the Field Visit that her father’s boat wasused 100% of the time to harvest all claimed species. Later in the Field Visit, theClaimant reported harvesting several finfish species from Grand Isle and Firkinbeaches.

! The Claimant was unable to provide any reasonable explanation of her losses thatwould establish a good faith attempt to estimate her harvest/loss. By way ofexample, the Claimant reported the loss of 5,688 pounds of Spanish mackerel duringthe 17 month impairment period over which she reported fishing four times permonth only five months out of the year. The Claimant reported that she harvestedon an average six Spanish mackerel for a total of 18 pounds per trip, with anapproximate weight of 3 pounds each and an approximate length of 12 to 15 incheseach. Multiplied by 10 months of fishing impairment over 4 trips per month, thiswould have resulted in an average of 720 pounds of harvest/loss significantly lessthan the 5,688 pounds claimed. The Claimant provided similar conflictingcalculations as to species of white trout, speckled trout and sheepshead whichlikewise did not support the claimed poundage losses.

! When asked to estimate the average overall per trip finfish harvest, the Claimantresponded that over 100 pounds was her aver for every trip.

The Field Team thus determined that the Claimant’s asserted catch totals were grossly

unreasonable and implausible.

2

On appeal, Claimant makes no effort to justify the amount of her initial claim nor provide

any reasonable explanation for the downward revision of the catch totals. The initial assertion that

Claimant harvested over 18,0000 pounds of seafood for Subsistence is unreasonable and implausible

on its face. The amended claim form does nothing to cure the obviously excessive amount initially

claimed. De novo review confirms that the Settlement Program was wholly justified in denying this

claim. Denial upheld.

3



Claimant Name


First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

Claimant filed separate claims for multiple rental car facilities located in Alabama, Mississippi, and Florida. This appeal involves Claimant’s store located in Tallahassee, Florida. The Settlement Program awarded $63,124.46 (pre-RTP) in its BEL claim. BP appeals the award. This appeal involves a single issue: Whether the Program correctly excluded the line item “500010-Dr Cos-Inventory Adjustment” from revenue. BP maintains that this item represents the gain or loss on the sale of cars in Claimant’s

2017-2862

inventory and should be included as revenue. The Program disagreed and excluded it as revenue pursuant to Policy 328 v.2 as “not typically earned as revue under the normal course of operations” of Claimant’s business. BP asserts that Claimant sells vehicles all the time (according to its website) and this error caused Claimant’s award to be inflated by $2,702.22. Accordingly, BP submitted a final proposal of $60,422.24 (pre-RTP). Claimant responds that its parent company Enterprise Holdings, Inc., actually sells the vehicles and allocates the recaptured depreciation to subsidiaries like Claimant. Claimant itself does not sell any vehicles and, for that reason, does not include the inventory adjustment line item as revenue in its P&Ls. After de novo review, this panel agrees with the Claimant and determines that the award was correctly calculated. The panel further notes that at least two other Appeal Panels have decided this same issue in Claimant’s favor (See Claims

). Claimant’s final proposal is the correct result and the appeal is denied.




First

Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

At first blush, this matter is no different from many other appeals handled impeccably by Claimant's outstanding law firm.

Claimant, the shareholder in a Subchapter -S corporation which made its own BEL claim, appeals the threefold denial of his IEL claim for w-2 wages reported not in Schedules C,D, or E of his Form 1040, but rather on line 7 thereof. Claimant's

counsel again makes a forceful and detailed statutory and constitutional argument that former Policy 363 was overbroad,

and that his client should be eligible for an IEL claim under Section 38.84 of the Settlement Agreement. The only difference in this appeal is that somehow BP's counsel missed a deadline and filed no opposition memorandum. This was verified by

Claimant's counsel in a "Reply" (nothing to reply to!) Memorandum which attached documentation from the Claims Administrator confirming that no BP memorandum was filed. Claimant takes this omission by BP to argue that it has

thereby tacitly consented to the validity of Claimant's appeal. Normally this panelist does not suffer well missing memoranda on appeals under this Program. After some reflection,

however, this panelist feels constrained to nevertheless deny this appeal. First, it is duty-bound to perform a de novo

review of this record and rule accordingly. Secondly, and most importantly, to rule otherwise would be in direct contravention of repeated decisions by our supervising Courts that have ruled that such IEL claims under these precise

circumstances cannot be sustained. Accordingly, with some admitted hesitation, this panelist sustains the denial of Claimant's IEL claim.

2017-2863




First

Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

Reasons uploaded on portal

2017-2864

CLAIMANT:CLAIM ID:

This is an appeal by Claimant contesting the Settlement program’s denial of hisSubsistence Claim.

Claimant’s original Subsistence Claim Form asserted that Claimant harvested 432 lbs ofcrab and 10,000 lbs of shrimp in the year before the Spill. He also claimed the harvest of 3,900lbs of assorted saltwater finfish. The total amounted to over 7 tons. The Settlement Programmade inquiries as to how the Claimant harvested the shrimp and crab because the originalSubsistence Claim Form did not provide that information. The Settlement Program issued anIncompleteness Notice and six months later it issued a Denial Notice.

Claimant then files an Amended Subsistence Claim Form, signed only by his attorney,eliminating crab as a harvested species and reducing his claimed shrimp harvest to only 1,000lbs. The difference between the two Subsistence Claim Forms is almost 10,000 lbs. In theAmended Form, he asserts he used rods, reels, nets, boat, bait, casting and trolling to harvest hiscatch.

Six months later, he files a Subsistence Interview Form, signed only by his attorney,reducing his shrimp harvest yet again to only 450 lbs.

Claimants counsel, in Claimant’s Reply Brief states:

“Claimant did make changes on his claim form for two species outof the six total. First, Claimant removed crab due to licensingissues. Second, a math error was made when calculatingClaimant’s shrimp harvest. Claimant had no intention of claiming,10,000 pounds of shrimp, obviously, that is a ridiculous andoutrageous number and it was produced through math error. Theother species stayed consistent throughout.”

To this panelist, the reduction of shrimp harvest from 10,000 lbs to 1,000 lbs to 450 lbscannot be explained as a “math error”. To this panelist, it is a calculated attempt to come up witha harvest amount that would pass muster. Accordingly the Settlement Program’s denial of thisclaim is affirmed.




First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

filed this Business Economic Loss claim under the Settlement Agreement. The Settlement Program determined is due a Compensation Amount of $319,872.57. BP appeals.

This is a “baseball” appeal, meaning the Final Proposal closest to the correct award prevails. With reluctance, and based solely on the record, I conclude the Settlement Program’s determination is the correct award. As Claimant’s Final Proposal adopts the Settlement Program determination, it prevails.

2017-2865

BP raises a single, common-sense point, which if it had support in the record, would prevail. It does not, however. BP argues Claimant’s expenses for “Property and Grounds” at three properties should have been characterized as 50% fixed and 50% variable. BP did not calculate the effect such a finding would have had. Presumably, BP’s Final Proposal would reflect such an award. Instead, BP seeks a remand. However, there is no basis in the record to remand. There is not an obvious calculation error. There is no new information. There is just a record that supports the Settlement Program determination. Claimant’s Final Proposal prevails.




First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

Uploaded

2017-2866

CLAIM ID

Claimant is a business that provides a variety of marina based boat tours and excursions. Claimant brought four separate claims on behalf of four of its facilities:

The Settlement Program awarded Claimant $992,819.59 pre-RTP for this, the claim. BP asserts the Settlement Program erred by treating the , a vessel, as a facility when the Settlement Agreement provides that vessels are not facilities as defined by the Settlement Agreement and Policy 467. BP argues Claimant’s P&Ls correspond to the vessel rather than any land-based facility, so the Settlement Program erred by calculating Claimant’s award for a vessel under Exhibit 5’s Multi-Facility Business Economic Loss (“BEL”) Framework. As additional grounds, BP maintains the Settlement Program also erred by classifying Claimant’s boat supplies expenses as fixed rather than variable and by failing to investigate Claimant’s related party transactions.

The record reflects Claimant’s tours are named after its four boats, which are specific to each tour. Claimant leased land-based facilities for each location. Each boat operated out of a different home port in Key West, FL, through separate lease agreements. Each boat was used exclusively for its designated tour. Claimant’s Multi-Facility P&Ls are broken down by the land based facility from which tours are conducted, as confirmed by the Settlement Program, and not by vessel, the interpretation urged by BP.

BP previously appealed Claim IDs on the same issues that it raises on this claim, with the exception of the related transaction question, which will be addressed below. On both of the earlier claims, the Appeal Panelist found in favor of Claimant on all issues. In the first decision for Claim ID the Appeal Panelist held, “The record establishes that Claimant has four different vessels, all of which operate from different departure points. Claimant owns or leases land-based facilities for each location and its business is broken down by the tours offered, not the vessel itself. Contrary to the speculation BP offers, none of the boats dock at multiple departure points. Claimant has a separate dock lease for each location and its financial information directly relates to each facility, not simply the vessel.” The Panelist goes on to state, “The panel also

rejects BP’s argument that ‘Boat Supplies’ should be classified as variable. In this instance, ‘Boat Supplies’ is equivalent to “Office Supplies” which are a fixed expense under Exhibit 4D. “

Then, in the second Appeal Panel Decision for Claim ID the Appeal Panelist relied on the first decision, stating, received a BEL award of $170,553.42 pre-RTP. BP appeals, contending the Program did not priorly assess whether claimant satisfied the requirements for a facility and also suggested the Claims Administrator misclassified ‘boat supplies’. In a well written and well documented brief, claimant demonstrated it leased land based facilities for 4 separately located tours and satisfied the requirements for a facility in all aspects, included P and L's broken down for each location. This Panelist adopts the reasoning set forth in companion case, , for one of the other tour locations. The decision in also addresses and refutes BP's contention regarding boat supplies. BP's appeal is dismissed and the Program's award, which is in accord with claimant's final proposal, is affirmed.”

Hence, the central issues have been the subject of Appeal Panel decisions on two separate occasions, and Claimant has prevailed in each instance. This Panelist reaches the same determination on the merits, as well as respecting the necessity to promote internal consistency as to given issues, certainly within connected cases involving the same Claimant. Further, the record establishes the Settlement Program investigated related party transactions and correctly determined there were no related party transactions. The financial document cited by BP was a reconciliation of bank statements with Claimant’s financials, and the line items subject to the Claims Administrator’s inquiry were not included in the Compensation calculation conducted by the Settlement Program. The income from these entities was not included in the Compensation calculation, and did not affect the claim. Additionally, upon specific inquiry and investigation, the Settlement Program was satisfied there were no related party transactions with respect to “due from affiliates” affecting the financials, because there were no related party transactions. BP offers no evidence to the contrary.

Accordingly, BP’s appeal is denied, and Claimant’s Final Proposal, consistent with the Award of the Claims Administrator, is hereby selected.

The financial document cited by BP was a reconciliation of bank statements with Claimant’s financials, and the line items subject to the Claims Administrator’s inquiry were not included in the Compensation calculation conducted by the Settlement Program. The income from these entities was not included in the Compensation calculation, and did not affect the claim. Further, upon investigation, the Settlement Program was satisfied there were no related party transactions with respect to “due from affiliates” affecting the financials, because there were no related party transactions. BP offers no evidence to the contrary.

Accordingly, BP’s appeal is denied, and Claimant’s Final; proposal, consistent with the Award of the Claims Administrator, is hereby selected.




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II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional): The Settlement Program denied this Subsistence claim. The Settlement Program first denied the claim because Claimant was not licensed to fish all of the species that she claimed. Claimant thereafter submitted a new Claim Form, this time

dropping 600 pounds of oysters (for which she had no license), 360 pounds of yellowfin tuna (a federally regulated highly-migratory species for which she had no license), 60 pounds of crabs (for which she had no license), and 3,000 pounds of

speckled trout. Doc. Claimant also dropped her “friend” from the claim and instead increased the alleged consumption percentages of the other four individuals. Finally, Claimant submitted a third Claim Form, again substantially altering her

representations regarding lost catch. This time, Claimant alleged 9,009 pounds of wild seafood caught and consumed --

nearly five tons. The Settlement Program again denied the claim because the Field Team could not verify her incredible and contradictory allegations. Claimants who submit claims under the Subsistence Framework must “[i]dentify the quantity of

lost natural resources, including Seafood and Game.” The Settlement Agreement requires the Settlement Program to determine the quantity of lost natural resources “based on information provided by the claimant in intake forms and

interviews with the Claims Administrator.” The Settlement Agreement provides that “[q]uantities of lost natural resources

shall not exceed reasonable consumption rates.” Here, Claimant failed to fulfill her obligation under the Settlement Agreement to identify the quantity of lost natural resources due to the Spill. Claimant submitted multiple, contradictory

sworn statements to the Settlement Program aimed at maximizing her potential award. The Appeal Panel has repeatedly rejected attempts by Claimants to assert inflated and inconsistent catch totals with no reasonable explanation and this

panelist will do so again. Claimant’s appeal is denied.

2017-2867



Claimant Name


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II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

Although this Panel upholds the FWA denial, it should be noted that there has not been a finding of fraud – rather the Claim was denied because the Claimant failed to provide the information necessary for FWA to complete its investigation.

2017-2868



Claimant Name


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Law Firm

II. DECISION



Compensation Amount $1,567,081













No error.

Comment (optional):

Claimant is a company that chemically preserves wood and is located in Irvington, Alabama (ZoneC). The Settlement Program ("SP")'made an Eligibility Determination that Claimant was entitled to an award of $2,611,802.02 (with an RTP of .25).

BP appeals this determination on 4 grounds:

2017-2869

First, BP submits the SP should have applied a Policy 495 matching methodology to address matching issues. More specifically, BP claims that even though none of the 7 matching criteria was triggered, the SP should have further investigated Claimant's financial records for other significant indicia to conclude the claim may not be sufficiently matched. BP references (1) "large swings in variable margin percentage just below the 50% threshold; and (2) numerous outlier months with significant negative variable margins in October 2008, 2009, and 2010. Claimant responds that such findings do not cause the SP to determine the claim was not sufficiently matched. Indeed, the SP "exercised its professional judgment, properly analyzed the [C]laimant's financial records, and determined that [Claimant's ] financial records were sufficiently matched" such that Policy 495 matching methodology was not necessary.

Second, BP submits the SP misclassified "Managerial Fees" as a fixed expense. It asserts that more properly classifying it as a variable expense would have reduced the award. Claimant responds that said fees were properly classified as fixed based upon Policy 361 v. 5, which states that "expenses will be treated as variable or fixed if they fall within Exhibit 4A...." In this claim "Managerial Fees" is included in corresponding Attachment A. Accordingly, the SP properly classified said expense as fixed.

Third, BP submits the SP erred by treating Claimant's "Profit Sharing" expense as "fixed owner/officer salaries". It asserts that treating such expense at this non-headquarter location as fixed directly conflicts with the SP's own reasoning "that owner/officer salaries typically are reported only at the headquarter level." Thus, BP argues that "this line item should have been classified as payroll, which would reduce Claimant's award." Claimant responds that the SP had extensive information about the Claimant and the nature of its business. In fact, the SP inquired into payroll classifications, and in its professional judgment the SP determined that Profit Sharing "be designated as fixed owner officer" expense and that no further outreach or adjustment was deemed necessary.

Fourth, BP submits the attestation requirement was not properly determined, but by stipulation both sides have preserved this issue for later considerations.

The Panelists herein unanimously conclude Claimant's Proposal to be accepted; find no error in the calculations; and affirm the SP's eligibility determination of $2,611,802.02 (with an RTP of .25). Accordingly, the appeal of BP is denied.




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II. DECISION



Compensation Amount $(1,416.48)













No error.

Comment (optional):


2017-2870


Claim ID

filed an IEL claim and received a negative award. Claimant appeals, arguing the Compensation Period used in June 2010 was spread from 6/16/10 to 6/29/10 when the applicable period should have been 6/5/10 to 6/29/10, which would have resulted in a lower per diem rate and a net award in the case. The Settlement Program found that actual earnings during the Compensation period exceeded her expected earnings for the Benchmark period and, therefore, Claimant was not eligible for an award. Claimant submitted payroll information showing a payment of $425 on June 4, 2010 and a payment of $2,125 on June 29, 2010 but no payments in between these dates. The Program stated " because Claimant did not provide pay period earnings or an SWS-9/9A ...for 6/5/10 to 6/15/10, we cannot consider this period in the claimant's loss calculations." The Claims Administrator requested either an explanation or the missing document but, unfortunately, claimant failed to comply with the request. Under these circumstances, the negative award from the Program, which is in accord with BP's final proposal, is affirmed.



Claimant Name


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II. DECISION
















No error.

Comment (optional):

See previously uploaded decision.

2017-2871


Claim ID

Claimant is a church in Florence, Alabama. The Settlement Program awarded Claimant a compensation amount of negative $1,013.65 pre-RTP, and Claimant appeals asserting that the Settlement Program erred by classifying its expenses as variable. According to Claimant, this expense is tithe and other offerings that are voluntarily paid to the by its members.

then, in turn, pursuant to the church manual and , is obligated to pay the entire amount of that money to the . The

rules governing membership in the specify that as a condition of membership the local churches must submit tithes and offerings to the

on a monthly basis. Claimant contends that Payment to the is a fixedexpense to the church as it is a requirement for the church to remain a member of the conference,and is a monthly regularly reoccurring expense, just like dues, subscriptions or monthly utilityexpenses. Apparently, says Claimant, the Accountant Reviewer saw that donations/contributionsare a variable cost as listed on Exhibit 4D Attachment A and assumed that because “Expense” is “funds paid to its from collections of tithes and otherofferings from its church members and is a requirement to maintain membership within theconference" that this would fall into the category of donations/contributions. But Claimant saysthat a donation or gift is by its very nature voluntary as to the person making the gift or donation.It is in no way mandatory or required. Therefore, these tithes and offerings are only voluntarygifts and contributions of the member, not the church. The church, to the contrary, takes thesetithes and offerings and is required to pay these tithes and offerings to the conference in theirentirety on a monthly basis as a condition precedent to the local church’s continued affiliationwith the . Therefore, this mandatory required monthly submissions are, inessence, dues that the local church pays to continue its membership in the conference. It wouldbe no different than “subscriptions” in nature and definition. Stated differently, the mandatorysubmissions by the church of the donations/contributions of members, are not, by definition,donations and contributions to the by the church because they are not voluntary innature, but rather, mandatory and necessary for continued membership in the . Asstated in Policy 361 v.5, the accountant reviewers, if the expense does not fit the description ofthe variable or fixed expense categories in Exhibit 4D Attachment A, are required to use sounddiscretion to apply the expense to the listed classification that best conforms to the delineationsmade by the parties. Therefore, according to Claimant, “unequivocally and without question, thismandatory fixed payment expense to is absolutely necessary to remain amember,” and it should be categorized as dues or subscriptions, both of those are fixed costs andare the categories that most closely identify the nature of this expense to the non-profit businessentity. Thus, asserts Claimant, the Accountant Reviewer mistakenly abused this discretion inviolation of the requirement “to apply the classification that best conforms to the delineationsmade by the Parties as reflected in Ex. 4D.”BP asserts that the Settlement Program specifically found that the “expense fluctuates monthly,”that “its annual percentage of expense to total revenue varies year to year,” and that the expense

“is required for the Claimant’s operations.” Thus, the Settlement Program correctly classified the expense as Donations/Contributions-Variable. Claimant argues that the expenses are fixed because “as a condition of membership the local churches must submit tithes and offerings to the on a monthly basis.” But regardless of whether Claimant was required to pay the fees, the amount of the payments varied directly in relation to the amount of Claimant’s revenue. Claimant does not and cannot deny that there is a direct relationship between its collections and the amount of expenses. Thus, the Settlement Program correctly determined that these expenses are appropriately classified as variable. These expenses, says BP, are equivalent to franchise expenses paid by a franchise to a parent company, which are based on the amount of business that the franchise does each month. The franchise is required to pay the franchise fees, but the amount varies directly in relation to the level of the franchise’s business, and like Claimant’s , the Settlement Program routinely treats franchise expenses as variable. Claimant counters that these tithes and offerings are only voluntary gifts and contributions of the member, not the church. The church takes these tithes and offerings and is required, pursuant to church policy contained in the church manual and according to the , to pay these tithes and offerings to the conference in their entirety on a monthly basis as a condition precedent to the local church’s continued affiliation with the . Therefore, these mandatorily required monthly submissions are, in essence, dues that the local church pays to continue its membership in the conference. Stated differently, the mandatory submissions by the church of the donations/contributions of members, are not, by definition, donations and contributions to the by the church because they are not voluntary in nature, but rather, mandatory and necessary for continued membership in the It should be categorized as dues or subscriptions-Fixed. Claimant argues that a recent Appeal Panel Decision, 2017-797, totally affirms Claimant’s position. That appeal involved a church which the Settlement Program made a reward. BP appealed alleging the Settlement Program incorrectly classified two of claimant’s expenses. Claimant had a church tax account that represented the normal remittance of its collection to the diocese for professional and administrative services for the Claimant and the Settlement Program classified it as a fixed expense under Exhibit 4D. BP argued that the expense should be classified as variable. The Appeal Panelist points out that the church tax is not a true tax but a fixed expense for professional and administrative expenses. Likewise, a certain portion of church revenue donated to the is remitted to the

for professional and administrative services, including the Pastor’s salary and benefits. Claimant denies that there is a direct relationship between its collection and the amount of expenses. The fixed expense tithe and offering categories mandatorily paid to the conference for membership benefits in the , are exactly the same as dues or subscriptions on Exhibit 4D, Attachment A, to the Settlement Agreement, which are fixed costs, says Claimant. Just like other fixed monthly expenses such as utilities, the payment is not the same each month, but it is never-the-less considered a fixed expense as upheld in Appeal Panel Decision 2017-797. As to BP’s alleged error in the classification of “Church Tax” as a fixed expense, Claimant responds that again, BP cites other unidentified claims as support for its position that these fees should be categorized as Variable expenses in the calculation of the award to Claimant. However, unlike the other claimants to which BP refers, this expense for this Claimant is not a normal remittance of a certain portion of the collection to the diocese. For Claimant, the expense captured in this expense account is fixed assessments based on income for professional and administrative services for Claimant. As such, the Program correctly classified

this expense as Fixed pursuant to Exhibit 4D. After receiving a response from the Settlement Program for a Summary of Review it was determined that the Program Accountants classified the expense as a Variable cost as it represents the remittance of funds collected from its members through tithes and offerings to the . This expense account directly relates to the amount of donations received by the Claimant’s members and is therefore a Variable cost. The difference between the treatment of expense in this claim and “Church Tax” in Appeal Decision 2017-797, is that “Church Tax” expense in 2017-797 is not a remittance of funds collected directly from members, but instead is a fixed assessment for professional and administrative services for that Claimant. Accordingly, this panelist finds for

BP and denies Claimant’s appeal.



Claimant Name


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II. DECISION
















No error.

Comment (optional):

filed this Business Economic Loss claim on behalf of its Holmes Beach, Florida location. The Settlement Program determined Claimant was entitled to a negative Compensation Amount and a RTP

multiplier of 1.50. appeals.

There are two issues on appeal: (1) whether the Holmes Beach location should have a “Tourism” designation and (2) the

2017-2872

Settlement Program’s treatment of reported Cost of Goods Sold marked down to contra-revenue accounts.

With respect to the “Tourism” designation, the pharmacy is located within 1000 feet of water. It is surrounded by dive

shops, nature and wildlife preserves, and botanical gardens. That said, a pharmacy is still a pharmacy. The record evidence supports the proposition that the pharmacy depends on locals for a strong majority of its 2010 prescriptions drug

sales. The record does not speak clearly as to other years but there is no reason to assume 2010 was an aberration. Indeed, if it was, Claimant would have provided that information. In sum, the Settlement Program correctly concluded

Claimant is not entitled to a Tourism designation.

With respect to the second issue, a Summary of Review requested in the claims demonstrates that BP is correct on the

second issue.

BP’s Final Proposal represents the correct result and prevails.




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II. DECISION
















No error.

Comment (optional):

See Decision Comment uploaded.

2017-2873

Claim ID

Claimant operator of a liquor store in Clearwater, Florida until it went out of business in approximately August of 2010, appeals the denial of its Failed Business Economic Loss claim. Creditor judicially foreclosed on the business location, and seized and sold all of the inventory and other assets. The clerk of the court executed an Amended Certificate of Title for the real property and personal property in March of 2011 in favor of . The bank also obtained a “deficiency” judgment against on March 3, 2011 in the amount of $700,921.33, representing the balance of the underlying debt, interest, attorneys fees and other fees after credit was given for “Amount of Bid” of $401,000.00. The Settlement Program (“the SP”) denied claim because it determined, based on how it interpreted the directives of Exhibit 6 to the Settlement Agreement (“Failed Business Compensation Framework”) and Policy 506 v. 2, that Net Liquidation Value exceeded its total enterprise value [TEV], resulting in a negative number for compensation. Section V.1.e. of Exhibit 6 directs the SP to “[c]alculate claimant compensation by subtracting the Net Liquidation Value from the Pre-DWH Spill TEV.”

argues that the SP miscalculated the Net Liquidation Value. Section V.1.d. of Exhibit 6 prescribes that the SP “[d]etermine the Liquidation Value as either (i) the court-approved reorganization value, to the extent reorganized under bankruptcy law process or (ii) sales proceeds from assets liquidated plus [circumstances not present in this claim].” Policy 506 v. 2 expands on that to say that for the Liquidation Value of Assets, “[t]he value of assets already sold by claimant will represent the gross proceeds, net of any out-of-pocket expenses associated with the sale…. Out-of-pocket expenses will not include the settlement of any long term interest bearing debt obligations associated with the sale….” Calculation Note 13 states that “DWH Accountants calculated post-spill creditor payments of $701,577. This was the difference between the liabilities as of 4/30/2010 and the liabilities as of December 31, 2010. The liability balance as of 4/30//2010 was taken from the liability balance per the Federal Tax Return balance sheet as of 1/1/2010. This amount was included in the claimant’s liquidation value.” To the extent the panelist follows all of that, he doesn’t find support for the approach in either Exhibit 6 or Policy 506 v. 2. Be that as it may, the SP employed it by simply using as the figure for Liquidation Value of Assets the “Creditor Claims Existing pre-DWH Spill & Discharged Subsequently” in the SP-determined amount of $612,306.00. Subtracting that figure from the calculated TEV of $287,104.67, a negative compensation of $325,201.33 was derived. The panelist has “reverse engineered” from the data in the record that SP came up with the figure of $612,306.00 by lifting from 2010 federal tax return the figure of $119,969 for “Other current liabilities” and the figure of $581,608 for “Mortgages, notes, bonds payable in less than 1 year,” and adding them together to get a figure of $710,577.00, and then deducting from that sum the figure of $89,217.00, which it calculated as “contributions from owner post- spill.” The major flaw in those calculations is that $612,306.00 was not “Discharged Subsequently.” Rather, it is embedded in the aforesaid deficiency judgment

obtained against in the net amount of $700,921.33, which has never been discharged and continues to earn post-judgment interest “at the prevailing rate.” As pointed out to the SP on multiple occasions, it had not entered into any sort of bankruptcy and no part of the net judgment had been forgiven to any extent by . The only “long term interest bearing debt obligation associated with the sale” was the $401,000.00 bid amount credited to in the calculation of the net deficiency judgment amount. argues in its Final Proposal that

“the net liquidation value was $401,000.00,” the amount of the “sales proceeds from assets liquidated.” The panelist agrees but, unfortunately for , it has won the battle but not the war. Using $401,000.00 as the Net Liquidation Value, still results in a negative compensation amount when that amount is subtracted from the TEV of $287,104.67, thus requiring a denial of the claim.

attempts to avoid that result by arguing in its Final Proposal that “it makes no sense that the pre-Spill Total Enterprise Value was $287,104.67 when the liquidation bid was $401,000.00. This was an accountant flaw.” offers nothing more on that score and the panelist has reviewed the SP’s calculation of the TEV and finds it fully in accord with the formula prescribed by Section V.1.a.-c. of Exhibit 6, and has not cited any accountant flaw involved. Under the BaseballProcess, BP’s Final Proposal of negative $335,201.33 is closer to the mark than FinalProposal of positive $425,000.00 (for which it offers no underlying calculations or explanation forhow it was derived), even though the negative number in fact due to be recognized is not as largeas the SP calculated. BP’s final Proposal is selected. Appeal denied.




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II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

The Settlement Program denied this Subsistence claim because Claimant (1) did not hold a fishing license for his

subsistence catch and (2) did not provide sufficient proof that he was entitled to an exemption from licensing requirements. Claimant requested that the Settlement Program conduct an interview to verify his eligibility for the public pier exemption.

The Settlement Program conducted the interview as requested and found that (a) Claimant was provided a “poor

description of Cedar Point Pier,” where Claimant said he fished, (b) Claimant “reported selling some of his catch,” and (c) Claimant asserted that he fished in locations other than public piers, even though Claimant did not have a valid fishing

license. Accordingly, because Claimant failed to provide credible information regarding his purported Subsistence catch and did not show that he possessed the required fishing licenses, the Settlement Program appropriately denied this claim and,

therefore, the Settlement Program’s determinations were correct and are upheld.

2017-2874




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Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):


2017-2875

– Claim

For want of a sale, this claim was lost.

Claimant managed vacation rentals catering to tourists on Pensacola Beach,

Florida (Zone A). At the time of the spill, Claimant had a single shareholder who,

subsequently in June of 2011 and in preparation for retirement, transitioned the

business to include his family members. The result was a new corporation,

which purchased Claimant’s assets for $800,000 and

continued in the same line of business. Claimant filed a BEL claim which the

Settlement Program calculated under the Failed Business framework. Because

Claimant showed a negative EBITDA post-asset sale, the claim was denied.

Claimant appeals.

Claimant maintains that the Settlement Program erroneously calculated its

claim under the Failed Business framework (Exhibit 6) rather than the BEL

framework (Exhibit 4). Claimant argues that it is not a “failed business” but rather

an ongoing concern that continued operations with no fundamental changes in the

operation of the business other than the addition of shareholders and a change of

name. 1 Claimant contends that the sale of assets was done for the original owner’s

estate planning purposes and that the transition to the new name for marketing

strategy did not occur until 2012. In short, Claimant argues that it “is the epitome

of the type of business the Settlement Program was meant to compensate.”

The Settlement Agreement defines a “Failed Business” as follows:

A “Failed Business” shall be an entity that commenced operations

prior to November 1, 2008, and that, subsequent to May 1, 2010 but

prior to December 31, 2011, either (i) ceased operations and wound

down, or (ii) entered bankruptcy (through the filing of a petition for

bankruptcy protection in a court of competent jurisdiction), or (iii)

otherwise initiated or completed a liquidation of substantially all of its

assets.

Policy 506 sought to interpret the definition of a “Failed Business” and states

at section II.B.(d):

1 Claimant notes that “[N]othing about this business changed, including the name, until

2012. In other words, the business operated under the same name, stayed in the same

locations, used the same essential personnel, maintained the same relationships with

vendors and clients, used all the same form documents and used the same website . . .”

(d) Disposal of a business: If during the period subsequent to May

1, 2010 but prior to December 31, 2011 the owner sells the entire

business Entity, the Settlement Program will be guided by Policy 354,

Evaluation of Claimants with Substantive Changes in Business

Ownership or Operating Activities, as revised from time to time

(emphasis added).

Claimant argues that it did not “liquidate” its assets in that it did not

“determine the liabilities and apportion assets toward discharging the indebtedness

of a person or business or settle (a debt) by payment or other settlement.” Noting

that Policy 506 was not adopted by the Claims Administrator until June 11, 2014,

well after the November 1, 2012 deadline for Claimant to opt out of the Settlement

Agreement and application of the policy to this claim denies Claimant due process.

BP responds that Claimant sold substantially all of its assets to which

is a completely separate entity with a separate EIN. In addition, the asset purchase

agreement required Claimant’s “cooperation . . . [to] affect the transfer of ownership

of the Acquired Assets to Purchaser” and precluded Claimant from continuing to

use its previous trade name. BP contends this demonstrates that the transaction

was no tantamount to a “name change only” as Claimant argues.

The resolution of these issues is a close question for this panel which, frankly,

is sympathetic to Claimant’s position. The panel is mindful of two previous Appeal

Panel decisions involving this same claimant and these same issues which were

decided adversely to Claimant (See Claims ). The panel is also

cognizant of the prior decisions of the supervising District Court which held that an

entity that did not exist at the time of the spill does not qualify for compensation

under the Settlement Agreement (See Discretionary Review Decisions 2015-1699

and 2015-1820). After careful review, this panel reluctantly concludes that the

appeal should be denied but takes no position on Claimant’s constitutional due

process argument. Such a ruling is best left to the wisdom of the District Court

should Claimant seek review there.




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II. DECISION
















No error.

Comment (optional):

This appeal of Claimant's failure to qualify for a Failed BEL claim involves the same issues involving the same Claimant as

recently decided by this panel in Claim ID . For the sake of brevity and efficiency, the reasons in the aforementioned decision are adopted herein as equally applicable to the present claim.

2017-2876




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II. DECISION



Compensation Amount $(27,706)














No error.

Comment (optional):


2017-2877

CLAIMANT: CLAIM ID:

This is one of several BEL claims filed by this Claimant. The Claimant filed this claim asa BEL claim but the Settlement Program reviewed the matter and converted it to a Failed BELclaim and subsequently denied the claim.

The issues raised by Claimant on appeal are identical to the issues raised on appeal byClaimant in Claim ID The panelist in that appeal recently posted the decision in thatappeal together with written reason that set forth the issues on appeal together with the reasonswhy Claimant’s appeal had to be denied. After an independent review, this panelist finds thatClaimant’s appeal must be denied and adopts the written reasons in Claim ID byreference.




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II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

Claimant, a Pensacola, Florida-based vacation rental management enterprise, appeals the Program's multiple denial of its claim, which Claimant submitted as a BEL matter but which was converted by the Program to a Failed BEL claim under Exhibit 6 of the Settlement Agreement. The claim was denied for failure to meet the revenue requirements for a Failed BEL claim. Claimant argues that it does not qualify under the definition of a "Failed Business" under the Agreement or Policy 506. Of relevance to its argument, said definition includes within "Failed Businesses" those entities that liquidated substantially all of their assets prior to Dec. 31, 2011. Herein, Claimant argues that no such thing occurred. It asserts that it had been a long-standing enterprise that in what its counsel describes as "an estate-planning transaction" in June of 2011 formed an entity named wherein several younger members of the original stockholder's family were added as new shareholders for purposes of continuity of the business. Claimant argues that the same support staff and infrastructure was kept in place thereafter and that the company did not even commence to use its new name until March of 2012. BP responds that the record reflects that the June of 2011 transaction which created reflected by Claimant's sale of all of its assets for $800,000.00, and that in fact for the 12 months prior to May 1, 2010, Claimant showed a negative "EBITDA" in its financials, thus disqualifying it from an award under the terms of the Settlement Agreement. This panelist, after de novo review, empathizes with Claimant's position that was a mere continuation of a long-standing business changed to infuse new family blood into the enterprise. Unfortunately, the District Court, in several prior

2017-2878

decisions well familiar to this panel (See, eg, 2015-1699, 2015-1820) has essentially drawn a "bright line" concerning the significance of dates of formation and existence of new legal entities. Regardless of the cogent and logical reasons for the formation of , a new legal entity was created before December 31, 2011 when Claimant sold all of its assets to As such, under the Court's rationale in past decisions, Claimant ceased to exist prior to December 31, 2011. Claimant's alternative argument of the violation of due process rights by the amendment to Policy 506 is a matter that would more properly be considered by a reviewing court should Claimant choose to do so. Accordingly, the decision of the Program, finding that Claimant was a Failed BEL that failed to qualify for an award under the provisions of the Settlement Agreement, must be affirmed and this appeal denied.



Claimant Name


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II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

filed this Wetlands Real Property claim. The Settlement Program denied the claim on the basis that the parcel in question is outside the Compensation Zone. appeals.

We wander again into the murky waters of whether a parcel is within the Wetlands Compensation Zone. Like other claimants before it, argues that the Settlement Program mapping tools indicate the parcel is within the Zone. In

addition, points out that Exhibits 12C and 12D of the Settlement Agreement demonstrate that the parcel is within the Zone.

However, Exhibit 12A provides that the Wetlands database is the basis for Settlement Program determinations. As such, it “is presumed to be the best available evidence.” While this presumption is rebuttable, the record does not provide any

evidence the database is wrong. The tools and samples cited by are for informational purposes and are not official designations. This has been a continuing cause of misunderstanding in Wetlands denials. Nevertheless, the database

governs absent sufficient evidence that the database is wrong.

The Settlement Program properly denied the claim.

2017-2879




First Middle



Law Firm

II. DECISION

















No error.

Comment (optional):

Claimant owns and operates retail drug stores in the Gulf region. This facility is located at in Long

Beach, Mississippi. The Program designated the location as a Zone A property and made an award. BP appeals the single issue of whether Claimant's location is Zone A or C. BP attaches the Settlement Agreement Loss Zone Map which clearly

shows the Zone A boundary is the CSX railroad track and not the street which runs parallel to the track. As we all know,

2017-2880

close only counts in horseshoes and hand grenades. BP urges a denial of the claim and assures the panel that Claimant

cannot pass causation as a Zone C claim. Well maybe so, but this panel member must remand the claim to the Administrator to make that initial calculation.




First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

Claimant,a hardware supply business in Mobile,Alabama,appeals the denial of its BEL claim on the basis it failed to satisfy

the causation requirements of Exhibit 4B of the Settlement Agreement.Claimant asserts the Settlement Program(SP) failed to analyze the claim under the Multi-Facility BEL framework.Claimant argues it has three divisions within its

operations:paving,local and military,with the latter being a separate and distinct facility from the other two and located in

Mississippi.Claimant contends the military division thus also qualifies for an award separate from the other two.BP responds that the SP correctly determined claimant was not a multi-facility claimant and that it did not pass causation under the BEL

framework.BP also argues the military division would be excluded from compensation in any event under the DOD contractor exclusion contained in the Settlement Agreement.

A review of the record discloses that the SP determined the claim was not sufficiently matched and applied policy 495 and the AVM methodology to process the claim.A further review of the record does not support claimant's argument.First,it

is noted in response to question 2 on its BEL claim form,claimant answered "NO" to whether its business maintained more

than one separate and distinct location.The record also reflects on December 18,2014,the SP directed this inquiry to claimant : "If the claimant operates multiple facilities,please update Section B Q.2 under the BEL section on the portal and

submit an additional claim form for each property for which the claimant wishes to file." On December 23,2014,claimant responded as follows: " does NOT operate multiple facilities.They do have three streams of revenue for three

different parts of their business.One of these streams,the military,is clearly inappropriate for the settlement purposes.That

is the reason we sent separate reports on each stream of revenue. reports that their other streams of revenue

2017-2881

were damaged.We thought then and think now it is fair to exclude the military portion of their business as this claim is

concerned." Claimant did not file any amended documents until nearly three years later when the SP rendered its adverse decision.These referenced responses of claimant are binding on claimant and contradict the contentions it now makes.They

also support BP's contentions that claimant's military division is an excluded DOD contractor.No error exists.Accordingly,the decision of the Claims Administrator is affirmed and the appeal of claimant is denied.




First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

Claimant operates branded restaurants and convenience stores that sell from its headquarters located in Corinth, Mississippi (Zone D). It filed a consolidated claim for all of its facilities in the Gulf Coast Areas. No matching criteria were triggered and the claim was calculated according to the BEL methodology which resulted in a $789,737.37 (pre-RTP) award. BP raises a number of issues on appeal, including the familiar “attestation” argument which, by stipulation with class counsel, was not addressed and which this panel does not address. BP also raises the oil and gas industry exclusion and

2017-2882

argues that the Program failed to correct “clear matching problems” in Claimant’s financial statements. BP argues that Claimant is in reality a wholesale petroleum distributer that should be excluded under Exhibit 17 which lists certain NAICS codes that fall within the exclusion. BP contends that Claimant’s NAICS code should be 424720 (Petroleum and Petroleum Products Merchant Wholesalers) and points out that, although Claimant’s notes that 80% of its sales are at the retail level, this percentage “misrepresents Claimant’s true business,” noting that Claimant supplies fuel to its own stores and wholesale volumes and prices. BP also notes that Claimant’s tax returns initially reported its NAICS code as 424720 but was only amended the returns later to include a new retail NAICS code after discovering that it would be excluded from the Settlement Class based on its accurate wholesale NAICS Code. BP also notes that Claimant sold it

restaurants to “focus more time on their wholesale oil and fuels business.” Finally BP argues that there are clear matching issues in Claimant’s financials that the Program failed to investigate. BP submitted a final proposal of $0. In response, Claimant argues that, during the applicable periods, Claimant operated 20 stand-alone convenience stores and over 10 restaurants. The restaurants were not sold until 2016. With regard to the NAICS code, Claimant notes that its annual filings with the Mississippi Secretary of State from 2007-2011 reflect 447110 as its NAICS code. The Claims Administrator is tasked with independently determining the proper NAICS code for each BEL claimant, regardless of the code used by the claimant in its tax returns. De novo review of the record demonstrates that the Program adequately investigated the nature of Claimant’s business and there is a sufficient basis for using 447110 as Claimant’s NAICS code. BP’s argument that Claimant should be exclude is not persuasive and BP’s position that the claim should be remanded for further investigation of matching issues is likewise, particularly in light of the fact that no matching criteria were triggered under Policy 495. After careful review of the record, the panel determines the award is proper and that there is no record support for BP’s final proposal of $0. Accordingly, Claimant’s final proposal is selected as the correct result in this baseball appeal.




First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):


2017-2883


Claim ID

The Settlement Program's FWA Department denied the BEL claim of

because claimant was found to be uncooperative.with the Program when it investigated the

validity of the claim. This claim was filed February 17, 2013. Claimant submitted documents

that evidenced a discrepancy between its P and Ls and tax returns. On May 6, 2013 and in

February and April 2014, the Program issued a Notice of Document Investigation and served

notice that claimant's earnings could not be verified based on the submitted financial documents.

On March 27, 2015, FWA requested information seeking to reconcile the receipts and income on

the P and Ls and the tax returns. Claimant requested a 30 day extension but failed to address the

request. FWA issued a Notice suspending the claim on June 30, 2015, again notifying claimant

of the failure to provide the necessary documents. When the information was not provided once

again, the Settlement Program issued a Notice of FWA Claim Denial on September 17, 2015 in

accordance with Policy 488. It took until June 2017, which is after this appeal, for claimant to

submit documents which allegedly address the discrepancies which the Settlement Program has

been pointing to for over 4 years. Claimant complained of switching accountants, file storage

offsite, etc. However, none of the issues referenced by claimant justify the type of delay that

occurred in this case, along with no effort to provide a reasonable explanation. The Settlement

Program could grind to a halt if parties were allowed to subvert the claims process to this extent.

The FWA denial of this claim is affirmed.




First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

filed a Start-Up Business Claim which was denied due to a failure to satisfy the Customer Mix

Test. Claimant appeals, contending the Program committed errors in the analysis of the information provided and also suggested there was additional address data submitted which the Program failed to consider. On the contrary, the record

demonstrates the Program did evaluate Claimant's additional information which still resulted in a finding that the %

Revenue Increase from Zone A-C Customers amounted to a minus 75.97%. As the District Court has confirmed, a party has the burden of satisfying the Test; it is not incumbent on the Program to remedy problems with the submitted data.

Claimant has not met its burden in this case. The denial of this claim is affirmed.

2017-2884




First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

Claimant operates a string of retail pharmacies. This facility is located in Cut Off, Louisiana, Zone B. This specific claim was

denied for failure to meet causation under Exhibit 4B. Claimant appeals requesting the panel award a Tourism Designation so causation will be assumed. Claimant submits a laundry list of "facts" it contends prove it should be given the tourism

designation. For example, it says it is the closest drug store to Grand Isle, Louisiana, an area noted for fishing, boating and

other marine activities. It claims to be surrounded by water and numerous hotels which cater to tourists. BP submits area maps which show Claimant is located in a residential area that has commercial entities like a gas station,

three churches, a bank and a hardware store. Further, BP shows there is a drug store located 6.3 miles closer to Grand Isle than this store. Pharmacies are not among businesses listed under the Settlement Agreement entitled to the tourism

designation. There is no reason factually or under the Settlement Agreement to reverse this denial.

2017-2885



Claimant Name


First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

Claimant filed several Wetland Real Property claims. It was found eligible for compensation on some and denied on others. This claim was denied because the Program mapping experts found this parcel was not located within the Wetland Real

Property Claim Zone. As is well recognized now there are only two specific ways to have parcels added to the claim maps.

1) SCAT confirmed presence of oil or 2) an official assessment conducted by the Natural Resource Trustees showing oiling.See Exhibit 12 A. The Claimant submitted a SWS from a surveyor and a boat captain who mobilized SCAT and NRT teams

but submitted no official report from either group supporting the claim. That is a requirement of Section 1.E and 1.F ofExhibit 12A. The denial is affirmed.

2017-2886



Claimant Name


First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):


2017-2887


Claim ID

the operator of a Clearwater, Florida beach Inn, received an award of $505,142.41 pre-RTP. BP appeals, raising 2 points of error, and presents a final proposal of $356,970.50. Both parties agree with a payment offset of $49,428.95.

BP's first argument is that the Settlement Program erred in classifying " management fees" as a fixed expense. According to BP. this cost consistently constitutes 5% of revenue and, since the item rises and falls in direct relation to the level of Claimant's business, it should be characterized as a variable cost. explains that the management fees are payments with year end adjustments for profitability made to the 3 owners. The Program Accountants classified this cost as "Overhead" which lead to the classification as a fixed expense. A review of Exhibit 4D, which controls the categorization of expenses, demonstrates that " Overhead" is a more fitting description of this item than any other category in 4D. Therefore, the Claims Administrator did not err in considering this expense as a fixed cost. The fact that there may be adjustments to this item does not alter the nature of the expense in the context of the Settlement Agreement.

BP also contends that " materials and supplies" should have been characterized as 50% fixed and 50% variable. The item in question related to renovation expenses and Claimant demonstrated that the Program did in fact split the entries in question between fixed and variable. The award by the Settlement Program, which is in accord with Claimant's final proposal, is affirmed.




First

Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

appeals after receiving a Subsistence award of $1,607.03 pre-RTP. Claimant asserts in his Notice of Appeal that he will submit authorization for the Social Security Administration to release SS number verification for family members claimed as dependents. Despite this assertion, claimant failed to do so and failed to provide SSNs for 8 of his 9 claimed family members as required by Policy 472. The award by the Settlement Program, which is in accord with BP's final proposal, is affirmed.

2017-2888




First Middle



Law Firm

II. DECISION

















No error.

Comment (optional):

BP appeals the BEL award to claimant,a civil engineering firm in Lynn Haven,Florida.BP asserts the Settlement Program

(SP) incorrectly applied policy 495 and the Construction Methodology to process the claim; and that the SP failed to address related party issues. ( In its notice of appeal filed on May 11,2017,the application of the Construction Methodology

was not raised as the controlling Fifth Circuit decision was rendered subsequent to that date. Another issue relating to the

2017-2889

DOD exclusion was raised but not briefed and is deemed waived.) Claimant argues that the SP correctly applied the proper

methodology and did not abuse its discretion relative to related party transactions. A review of the record discloses the SP determined the claim was not sufficiently matched and applied policy 495 and the

Construction Methodology to process the claim. Under recent court decisions remand is required with this claim to be evaluated and processed using the AVM methodology.Since remand is mandated,the SP can further consider and review

any related party issues that may exist since the record is unclear whether such issues were considered or researched.Accordingly,this claim is remanded to the Claims Administrator for further evaluation and processing consistent

with the foregoing.



Claimant Name


First Middle



Law Firm

II. DECISION

















No error.

Comment (optional):


2017-2890

DWH:

Claim ID:


This Claimant, a commercial building contractor located in Athens, Alabama (Zone D) received a pre-Risk Transfer Premium Business Economic Loss award of $518,074.85. In its Notice of Appeal, BP asserted that the claim does not comply with the attestation requirement recognized by the Fifth Circuit in its March 3, 2014 Opinion; further, that the Claims Administrator erred in his treatment of Claimant’s supplies expenses.

In its Initial and Final Proposal memoranda, BP abandoned the latter error assignment and stood on the former. In doing so, it referenced the stipulation previously entered into by and between it and class counsel, stating it was preserving the issue for further review but not briefing it. It then requested remand to the Claims Administrator with instructions to investigate Claimant’s attestation that the Spill caused its economic loss. Alternatively, it submitted a zero dollar Final Proposal compensation amount.

In response, Claimant rejects BP’s error assignments and filed a cross appeal alleging errors made by the Administrator in utilizing data from its profit and loss statements in the calculation of its claim. It cites variances between expense amounts recorded on its P&Ls and those appearing on the Financial Data Used by Accountants (Excel) which collectively understate its award by $24,600. For that reason, it submitted a Final Proposal compensation amount of $537,835 pre-RTP which it states corrects that error.

Review of the record reveals that the Administrator used the Construction Methodology for the purpose of correcting matching issues found during the required CAO Policy 495 analysis of Claimant’s financial data. That, of course, necessitates remand in keeping with the Fifth Circuit’s Policy 495 Opinion and subsequent Orders of the supervising District Court.

For the foregoing reasons, following de novo review, BP’s appeal is denied. The claim is remanded to the Claims Administrator for further processing in keeping with the cited court decisions. In so doing, the Administrator is instructed to review and appropriately resolve Claimant’s data input issues.




Claimant Name


First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

Claimant operates a bar and restaurant located in Land O Lakes, Florida (Zone D), and the Settlement Program denied this Start-up BEL on the basis that Claimant does not satisfy the requirements of Exhibit 7’s Customer Mix Test. On appeal,

Claimant argues that the Settlement Program incorrectly assigned a date of June 1 to each of its transactions listed in its

Customer Mix Test data under Policy 345. Specifically, Claimant contends that this date designation for its transactions resulted in the revenues in each month being assigned the Zone most favorable to BP. BP asserts that this argument is

nonsensical as the dates ascribed to any transaction are irrelevant as long as they fall within the three-month Benchmark or Compensation periods because only the aggregate revenue within the applicable periods is utilized in the Customer Mix

Test. Further, BP asserts that it appears that Claimant mistakenly attributes the changes in particular customers’ Zone

designations to the date ascribed to the transactions rather than to the Settlement Program’s proper application of Policy 345 to its Customer Mix data. BP contends that notwithstanding the Settlement Program’s proper application of Policy 345

to this claim, Claimant still fails the Customer Mix Test even if no Policy 345 adjustments were made to its Customer Mix data. In response to a request by this panelist for a Summary of Review on this issue

the Settlement Program replied that the updated Customer Mix data provided by the Claimant identifies sixteen addresses that were previously determined to be “unknown” by Program Accountants, and provides an updated Zone D location for

each address determined solely by the customer’s zip code. In accordance with Policy 345 v.3, Program Accountants do not

determine Zone based solely on zip code. Policy 345 v.3 states, “For any customer address provided in the form of a P.O.

2017-2891

Box and/or any customer address in which the mapping software company’s geo-coder can only identify the City and/or Zip

Code, the Claims Administrator will consider the Economic Loss Zone of the customer and the distance between the customer and the claimant to be unknown.” However, the Program concedes that if the Program Accountants were to use

the 3-month aggregate totals and apply the Zone D changes from the Claimant’s updated Customer Mix data determined strictly on zip code notwithstanding that such customer addresses are deemed “unknown” under Policy 345 v.3, the

Claimant would pass the Customer Mix Test. Unfortunately for this Claimant we are bound by the terms of the Settlement Agreement and how the Agreement has been interpreted by the Courts. In re DWH No. 17-2480, dealt with Claim ID

, and like the Claims Administrator, the Court acknowledges that the Customer Mix Test is an impossible hurdle for

many, although not all, claimants. The Court agreed with the Claims Administrator that the Settlement Agreement places on the claimant the burden of meeting the Customer Mix Test and that the Customer Mix Test’s documentation

requirements are mandatory. The Court likewise agreed with the Claims Administrator’s method of treating revenue from “unknown” customers. The Court stated that these provisions were the product of intense negotiation between Class

Counsel and BP, and although Claimant in Claim ID submitted about 600 pages of documents to show it meets the

Customer Mix Test, its documentation did not include each customer’s address, transaction date, and sale amount. Consequently, the Court held that the Appeal Panel was correct when it concluded that Claimant did not provide the

requisite level of proof to pass the Customer Mix Test. The location of the customer deals with where the customer resides. It is residence that is relevant. In other words, the Settlement Program must have addresses, and P.O. boxes do not

provide that information. This limitation on the use of P.O. Boxes in certain instances may appear to be unreasonable, but it is what was negotiated and included in the Settlement Agreement. Claimant’s appeal is denied.




First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned








No error.

Comment (optional):

Claimant,a farming operation in Bonita,Louisiana,appeals the denial of its BEL claim on the basis it failed to satisfy the

causation requirements of Exhibit 4B of the Settlement Agreement.Claimant asserts the Settlement Program(SP) incorrectly applied policy 495 when it used the Agriculture Methodology to process the claim and to restate crop disaster

payments.Claimant argues in light of recent court decisions the SP should have used the AVM methodology to evaluate and

process the claim without restating revenues. BP argues the SP correctly applied the Agriculture Methodology.A review of the record confirms the Agriculture Methodology was used by the SP. Therefore,recent court decisions mandate remand of

this claim with the AVM methodology to be used to evaluate and process the claim without restatement of revenues except to correct errors as allowed by policy 495.Accordingly,this claim is remanded to the Claims Administrator for that purpose.

2017-2892




First

Middle



Law Firm

II. DECISION



Compensation Amount $(.61)













No error.

Comment (optional):

2017-2893

- Claim ID

The Settlement Program awarded negative $0.61 on the IEL claim of this resident of Ocean

Springs, Mississippi. Claimant was employed at several sandwich locations during the

Benchmark and Compensation Periods. However, she only identified one of them on her IEL claim

form. The Settlement Program treated Claimant’s earnings from the other as non-claiming

jobs and offset the earnings, resulting in the negative award. Claimant appeals.

The essence of Claimant’s argument is that she was employed by ; hence, her

claiming job encompasses all her earnings from the various locations. Stated differently,

Claimant argues that she simply worked at multiple locations of the same claiming job. Claimant

therefore urges that all of her earnings should have been considered in calculating her gross

earnings. Claimant argues that the Settlement Program erred in offsetting the earnings from the

stores not listed on her claim form.

BP responds that Claimant identified only one of her jobs as her claiming job on her

claim form. BP also argues that, although the IEL framework permits a Comparable Job to be

factored into the Claimant’s wages, only a job with the same employer or a job with a new employer

in which the claimant’s income changed by less than 20% will qualify. In essence, BP argues that

by identifying only one of her jobs as her Claiming Job, the other jobs must be

treated as non-claiming Jobs and offset against Claimant’s lost earnings.

BP is correct that Claimant listed only the in Ocean Springs, Mississippi on her

claim form as her Claiming Job. Claimant argues that this should have been sufficient because her

other jobs were at other locations. However, careful review of Claimant’s W-2s and tax

returns demonstrates that the other locations are owned and operated by different

corporate entities. Thus, Claimant’s argument that all of her earnings should be considered

earned at single job is not supported by the record.

No error in the calculation of this claim has been demonstrated. Accordingly, BP’s Final

Proposal is the correct result and is selected.

2




First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned








No error.

Comment (optional):

The Settlement Program denied BEL claim for failure to satisfy causation. Claimant appeals,

alleging the Program erred when it applied the Construction Methodology. Subsequent to this Appeal. the 5th Circuit issued its ruling that the application of the Construction Methodology is improper and all cases evaluated under this framework

must be remanded. BP, in recognition of the Court's decision, does not object to a remand in this case. Accordingly, this

matter is remanded for further processing in accordance with the May 2017 ruling by the 5th Circuit.

2017-2894




First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

a shipyard which performs service and maintenance on vessels navigating the Mississippi River, received a BEL award of $2,282,425.00 pre-RTP. BP appeals, listing numerous issues in its Notice of Appeal, and presents a final proposal of 0. Despite detailing several objections in the Notice, BP raised only the question of Moratoria in its subsequent brief, so only this issue is preserved for Appeal. Even with respect to the Moratoria contention, BP arguably did not reference this item in the Notice and Claimant strenuously objects to the preservation of even this argument since it was not addressed with specificity in the Notice. The

2017-2895

closest BP came to pointing to this item in the Notice is the contention that " the Settlement Program" failed to properly address whether Claimant is an excluded member of the Oil and Gas Industry". argues that Rules 9 and 14 governing the Appeal Process make it clear that an issue that is not raised with " reasonable specificity" in the Notice should be waived. Being an excluded member of the Oil and Gas Industry is not coterminous with being subject to Moratoria review. An entity can be an excluded Oil and Gas business but not subject to Moratoria review and a party may be covered by Moratoria but not a member of the Oil and Gas Industry, as the category is defined in the Settlement Agreement. Nevertheless, despite this arguably fatal flaw in BP's appeal, this Panel will proceed to examine appellant's argument on the merits. BP's principal contention is that Claimant's website indicates that the company "can service offshore vessels and rig needs". BP posits that, since the Settlement Agreement stipulates that "any loss whatsoever " caused by the federal regulatory action directed at offshore oil activity implicates the Moratoria provision, Claimant's self-description necessitates a Moratoria review. counters with 2 affidavits from one of the principal shareholders of the company which states as follows: " The last work that did on a vessel used in the offshore oil and gas industry was on the

...in 1982. Since that time, has not performed any work on vessels or rigs used in the offshore oil and gas industry even though it has the capability to do so". Not only does this representation demonstrate a good level of specificity, it is also consistent with other information in the file indicating that the company's mission is to service and repair barges and boats that ply the Mississippi River. BP's reference to one statement on Claimant's website is too thin a reed to justify a Moratoria review in the face of the countervailing evidence in the record. It should also be noted that, although this Claimant was classified under a construction NAICS code, the Settlement Program adopted the AVM methodology and there is no indication that any revenues were moved. Accordingly, remand is not required. The award by the Program , which is in accord with Claimant's final proposal, is affirmed.




First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):


2017-2896


Claim ID

a vacation property owner, appeals the denial of its Failed Business Economic Loss Claim. The Program determined that Claimant's Net Liquidation Value exceeded its Pre-Spill Total Enterprise Value by $486,015.85. contends the Claims Administrator erroneously included $505,203 from the sale of assets in calculating the Liquidation Value. Claimant argues that, if this amount is excluded, the Liquidation Value would be 0, resulting in a compensation amount of $18,984.15

Claimant in this case owed a mortgage debt to a lender and sold its business property worth $505,203 in order to pay off the debt. argues that these proceeds amount to "costs" that should be excluded from the calculations pursuant to the terms of the Settlement Agreement.

BP points to Policy 506 which states that the Liquidation Value of Assets is determined by " gross" sales proceeds from liquidated assets, net of out of -pocket costs associated with the sale. Additionally, the Policy provides that "Out-of-pocket expenses will not include the settlement of any long term interest bearing debt obligations associated with the sale." As BP points out, in keeping with 506, the sale of Claimant's property to settle its debt obligation is precisely the type of proceeds that should

not be included as out-of pocket expenses. argues that Policy 506 goes beyond the terms of the Settlement Agreement which states that sales proceeds are " net of actual costs". However, sales proceeds would not generally be considered a cost, which is more commonly understood to mean an expense that has to be paid to effectuate the transaction. Accordingly, the Policy does seem consistent with the language in the Settlement Agreement and the Program was correct to include the sales proceeds in the Liquidation Value of Assets. Under this scenario, Claimant's Net Compensation amount was appropriately found to be a negative number. The denial of this claim is affirmed. --




First

Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

The Settlement Program determined Claimant was eligible for an award of negative $5,134.59. In calculating Claimant’s award, the Settlement Program offset Claimant’s earnings from Claimant’s work at Claimant’s Non-Claiming Job. Claimant appeals arguing the offset was improper. Claimant further argues the Settlement Program’s Benchmark Period, from May to July 2009, was incorrect, and that the period from May to December 2009 should have been used. Exhibit 8A defines a Non-Claiming Job as “[a]ny job from which Claimant generated earnings during the Benchmark Period and/or the Compensation Period (including Schedule C or F activities) and for which Claimant does not seek compensation.” The

2017-2897

Settlement Agreement requires that earnings from Non-Claiming Jobs be used to offset any lost earnings from a claimant’s Claiming Job. In calculating Claimant’s award amount the Settlement Program offset Claimant’s lost earnings with Claimant’s earnings from Claimant’s Non-Claiming Job. Claimant argues this was incorrect, and that because the compensation Claimant received from Claimant’s Non-Claiming Job was through self-employment, these earnings are not eligible to be used as offsetting earnings. However, the Settlement Agreement does not distinguish between claimants who receive income from a Non-Claiming Job as an owner or a wage-earning employee. In the definition provided for Non-Claiming Jobs, the Settlement Agreement includes earnings from Schedule C activities during the compensation period. Therefore, Claimant’s $6,634.59 earnings from Claimant’s Non-Claiming Job were appropriately classified as earnings from a Non-Claiming Job, and because Claimant’s offsetting earnings exceed Claimant’s expected earnings of $4,500, Claimant has not suffered a loss. Claimant further argues the Settlement Program erred by not selection the most advantageous Compensation Period, and that the Settlement Program should have used May to December 2009 rather than May to July 2009. However, using the period of May to December does not provide a more advantageous Benchmark Period and Claimant’s lost earnings still amount to $1,500. Even when using Claimant’s desired Compensation Period, Claimant’s offsetting earnings still exceed Claimant’s lost earnings. Accordingly, BP’s Final Proposal is adopted and Claimant’s appeal is denied.




First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):


2017-2898

DWH:

Claim ID:


This Claimant operates a rice farm in Winnie, Texas (Zone D). Its Business Economic Loss claim was denied for failure to satisfy the Settlement Agreement Exhibit 4B causation requirements. More specifically, the Claims Administrator determined, after analyzing Claimant’s financial data in keeping with the requirements of CAO Policy 495, multiple matching issues existed which he resolved utilizing the Agriculture Methodology.

In this appeal, which was filed prior to the Fifth Circuit’s Policy 495 Opinion, Claimant argues that the Industry Specific Methodologies contained in said Policy are inconsistent with the causation and compensation provisions of the Settlement Agreement, as well as prior Fifth Circuit Opinions dealing with those issues. Accordingly, it requests remand for recalculation of its claim; alternatively, it asks this panelist to withhold a decision pending the then anticipated ruling of the Fifth Circuit.1

Claimant’s counsel was prescient, indeed, and, as we all now know, the Court has struck down and prohibited the further use of the ISMs in calculating BEL claims.

A careful review of this Claimant record reveals that numerous of its revenue streams were reallocated in keeping with the Agriculture Methodology according to the Administrator’s Calculation Notes:

As a result of such restatement and/or reallocation, this claim did not meet the revenue pattern causation requirements established by Exhibit 4B of the Settlement Agreement.

Docket ID , Note 17, Agriculture Methodology.

For the foregoing reasons, in keeping with the ruling of the Fifth Circuit and subsequent District Court Orders implementing it, this Claimant appeal must be sustained and the claim remanded to the Claims Administrator for further processing utilizing the Annual Variable Margin Methodology without smoothing or reallocating Claimant’s revenues except for the purpose of error correction.

Denial overturned.





First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned








No error.

Comment (optional):

Claimant,a waste product recycling company located in Baton Rouge,Louisiana,appeals the denial of its BEL claim on the

basis it failed to satisfy the causation requirements of Exhibit 4B of the Settlement Agreement.Claimant asserts the Settlement Program(SP) incorrectly excluded revenues of a related third party as part of claimant's revenues in 2011 which

caused claimant to fail causation.Claimant argues this third party was a division of claimant that continued to function in

the same capacity with claimant even after corporate restructuring took place in late 2010.BP argues the SP had a reasonable basis to exclude such revenues because this third party became a separate and distinct entity.

A review of the record discloses that the SP determined the claim was not sufficiently matched and applied policy 495 and the AVM methodology.The record also reflects in the calculation notes,paragraph 11,styled "Profit and Loss Statements

Used in Calculation", these findings: "The Claimant*** had a division called through the end of 2010.

As of January 1,2011, was established as an LLC and was a

disregarded entity under a new parent company, . Also,on this same date,[claimant] became a subsidiary of ."

"***. As [claimant] and are two separate legal entities

2017-2899

with unique EINS,this claim for [claimant] cannot include the 2011 activity of

.***" This determination of the SP was reasonable and should not be disturbed.Although the AVM methodology was used by

the SP,the record shows some revenues were restated contrary to recent court decisions.Therefore,remand is required for further evaluation and processing consistent with the foregoing pronouncements.




First

Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

Written reasons uploaded on portal

2017-2900

CLAIMANT:CLAIM ID:

This is a Claimant appeal of the Settlement Program’s denial of his Subsistence Claim. The claim was denied because Claimant failed to specify the equipment used to harvest severalclaimed species.

On June 2, 2015 Claimant signed his original Subsistence Claim Form. As of that date(which is over 5 years after the Spill), Claimant asserted the following harvest of seafood in theyear before the Spill:

Crabs 960 lbsDrum 480 lbsFlounder 960 lbsMullet 2,880 lbsOysters 36 lbsRedfish 480 lbsSheepshead 2,400 lbsShrimp 800 lbsSpeckled Trout 2,400 lbs

11,396 lbs

Claimant asserts he harvested 5.7 tons of seafood using rods, reels and nets. This Claim Formwas signed under penalty of perjury.

After the Post-Reconsideration Denial Notice of May 25, 2017, Claimant’s counsel writesa letter to the Settlement program attempting to explain the harvest methods for crab, shrimpand oysters. The letter also states:

“The species were much higher on a previous Teal Claim Formdue to a calculation error and have been lowered on the mostrecent Subsistence Interview Form to the correct weights”.

The referenced Subsistence Interview Form reduces the harvest weights of crab and shrimp byabout 50%. Claimant reduces his finfish harvest weight for each species by 20%. Thus, 7years post-Spill Claimant remembers that he harvested 20% less finfish than he recalled 5years after the Spill. Claimant’s counsel, in its Reply Brief explains:

“Claimant’s Subsistence Claim Form did change, only once andonly slightly. Subsistence claims are based on estimations andaverages. Claimant did not weight and take detailed notes ofwhat fish he caught in the year 2009 in anticipation of BPwreaking havoc on the Gulf of Mexico. If Claimant’s weightschanged slightly, it was to a more accurate number afterclarification of the initial intake form and a further understanding ofthe term average.”

Claim ID Page 2

The Dictionary.Com defines “slight” as “small in amount or degree” and “trivial”. Thedifference in harvest weights on the above-referenced Claim Forms is over a ton. To thispanelist that does not qualify as small or trivial. This panelist also cannot understand how twoyears later (and over 7 years after the Spill) Claimant suddenly realizes he harvested over a tonless seafood in 2009.

After de novo review, this panelist finds that the Settlement Program correctly deniedthis claim.




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II. DECISION
















No error.

Comment (optional):

Claimant filed an appeal, but did not specify why this Panel should modify the award. Claimant didn't file a memo. That

notwithstanding, this Panel conducted a de novo of the record. This Panel finds that the Program correctly processed this Claim based on the information provided by Claimant. BP's Final Proposal is adopted.

2017-2901




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II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

2017-2902

- Claim ID

The Settlement Program denied the Subsistence claim of this resident of Abbeville, Louisiana

because a Field Visit team was unable to verify the quantities of seafood claimed. Claimant appeals.

On his Subsistence claim form, Claimant asserted that he harvested the following species and

quantities of seafood using crab traps:

Crab 1,500 lbs.Flounder 1,500 lbs.Sheepshead 1,500 lbs.Black drum 1,500 lbs.Catfish 900 lbs.Yellow croaker 3,000 lbs.Softshell crab 900 lbs.

10,800 lbs.

Claimant alleged that all the non-crab species were harvested as bycatch from his crab traps.

Because the claimed compensation amount exceeded $10,000, a Field Visit was conducted on July

18, 2014. Finding that the claim was not credible, the Field Team recommended that the claim be

denied.

Claimant sought re-review. In response, the Field Team determined in pertinent part that the

harvest of flounder, sheepshead, black drum, catfish and croaker in the volumes claimed on a

consistent basis using crab traps was unreasonable. In addition, the Field Team found that 90% of

the claimed species were harvested in areas that were never closed due to the spill. Claimant was

also unable to produce the basic gear used in harvesting of any of the reported species.

On appeal, Claimant argues that he properly verified the quantities of his Subsistence claim

during the Field Visit and answered all the questions posed to him by the Field Team.

sufficiently provided everything to the DHECC that was asked of him.” Claimant also

argues that he was unable to produce the gear and equipment because he sold his vessel and crab

traps while the claim was pending. BP responds that the harvesting of over 5 tons of seafood as

bycatch is unreasonable and that the Claimant provided no realistic explanation supporting the

claimed quantities. BP also argues that typical bycatch from crab traps represents less than 5% by

weight of the total harvest of the traps. BP’s position is that the amount claimed is neither credible

nor plausible, especially when asserted as bycatch.

De novo review persuades this panelist that the Settlement Program was correct in rejecting

this claim. The quantity of seafood alleged to have been harvested for Subsistence, as bycatch, is

neither credible nor plausible. Accordingly, the denial is upheld.

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II. DECISION
















No error.

Comment (optional):

Claimant, a Santa Rosa Beach, Fl.(Zone A) seafood restaurant, appeals pro se the Program's negative award in connection

with a Failed BEL claim the Program had converted from a BEL claim. Claimant asserts that it initially leased the restaurant to a third party, and that when that operation failed, Claimant's principal reopened the restaurant full-time. It admits that

at one relevant point it changed its business entity type from a corporation to an LLC, but that this change did not occur

until December 31, 2012, such that it would be beyond the December 31, 2011 parameters for Failed BELs as defined in Exhibit 6 of the Settlement Agreement. It therefore claims it should be reconsidered as a BEL claimant because it continued

2017-2903

operations well into 2011.

BP responds that the record shows that Claimant leased the subject restaurant, which began receiving revenue in February, 2009, but that the restaurant closed when the lesee vacated the lease in October of 2010, well within the

December 31, 2011 definitional limits of Exhibit 6 for a Failed BEL. BP further shows that the Florida Department of Revenue records show Claimant's operation as "inactive" commencing October 31, 2010.

After de novo review of this record failed to confirm Claimant's allegation of a continuation of the restaurant business after its lease was vacated, this panelist, in the "Claimant-friendly" spirit advocated in the Settlement Agreement, invited

this pro se Claimant to provide documentary proof of its continuing operation of the restaurant after October of 2010. It

was given a deadline to provide such proof, which has now elapsed without receipt of anything from Claimant. Accordingly, BP's final proposal, affirming the negative Failed BEL award, is hereby chosen in this "baseball" appeal process.




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II. DECISION

Denial Upheld

Denial Overturned








No error.

Comment (optional):

See previously upload decision.

2017-2904


Claim ID

Claimant’s BEL claim was denied and Claimant appeals. The Settlement Program noted that

Claimant receives annual lump sum rent payments for leased land and equipment that covers an

entire 12-month period, so the Settlement Program adjusted Claimant’s Profit and Loss

Statements (“P&Ls”) by attributing the rent payments to the full 12-month period. Claimant

asserts that these adjustments are not permitted under the Settlement Agreement as interpreted by

the May 22, 2017 Opinion of the United States Court of Appeals for the Fifth Circuit (“Policy

495 Opinion”). In the Policy 495 Opinion, the Fifth Circuit affirmed the AVM Methodology and

reversed the District Court’s Order approving Policy 495 with respect to the Industry Specific

Methodologies (ISMs), and remanded for proceedings consistent with the Policy 495 Opinion. In

reaching its holding, the Fifth Circuit explained:

“The Settlement Agreement grants each claimant the right to choose his or her Compensation

Period, consisting of three or more consecutive months between May and December 2010. If the

Claims Administrator is permitted to remove revenue from the Compensation Period, and spread

it throughout the non-compensation months, the claimant’s choice no longer matters. June is the

same as December, and November is the same as July. This is not the agreement that the parties

entered into. And we decline to rewrite the Settlement Agreement under the guise of contractual

interpretation.”

Claimant asserts that he Settlement Agreement is misapplied when, in absence of an Error,

revenues are smoothed across a year into months when they were not recognized or received.

Sufficient matching is achieved by moving expenses to the months where the revenues to which

they relate are recorded, as is the case in the AVM Methodology. Despite application of the

AVM Methodology, which would have achieved sufficient matching by itself, the Settlement

Program restated the Claimant’s revenues through these adjustments resulting in the smoothed

Compensation Period revenues used in the calculation. It is important to note that no Error was

ever identified and there is no Error on any of Claimant’s P&Ls. Error is specifically defined in

Policy 495 as follows:

“’Errors’ will be defined as accounting transactions that have been identified in the ordinary

course of processing to have been inappropriately recorded in the claimant’s contemporaneous

P&Ls and will include, but not be limited to: duplicate accounting entries; debit entries recorded

as credits or vice versa; mistakes in applying applicable accounting principles based on the

claimant’s method of accounting; oversights or misinterpretation of the facts; input or calculation

errors; and/or postings to the incorrect revenue and/or expense categories. Recognizing 4 that the

Settlement Agreement does not mandate that the P&Ls be based on GAAP or any particular

basis of accounting, the CSSP will analyze the P&Ls under the basis (e.g., accrual, cash,

modified cash, income tax, etc.) of accounting used by the claimant in the normal course of

business and reflected in the contemporaneous P&Ls. In general, accounting estimates now

determined to be inaccurate based on subsequent events will not be considered accounting errors

if the entries were made using the best available information at the time. “

Thus, says Claimant, the Calculation Notes do not proclaim to have found any error on

Claimant’s P&Ls, and there are no errors in the Claimant’s financial data. There was no

legitimate basis for the revenue restatement that occurred in the adjustments. On May 25, 2017,

the United States District Court entered its Interim Order Implementing Fifth Circuit’s Policy

495 Opinion in which the Court ordered “any BEL claims currently on appeal before the Appeals

Panel involving ISMs or otherwise involving the restatement of revenues (except for the purpose

of correcting errors) shall be remanded to the Settlement Program for further consideration and

processing in accordance with the 495 Opinion.” Claimant contends that its claim is due to be

remanded to the Settlement Program for further processing because its revenues were restated for

reasons other than for the purpose of correcting errors. BP contends that the AVM Methodology

affirmed by the Fifth Circuit expressly grants the Settlement Program accountants authority to

correct P&Ls containing errors “and mismatches of revenues and expenses” before

proportionally moving expenses to revenue. The Interim Order recognizes that the Settlement

Program accountants retain the discretion to address “errors”. BP goes on to say that the

reference to “error” in the Interim Order “appears to adopt Policy 495’s use of the term as

shorthand for ‘errors and mismatches’.” Not so. The Settlement Program moved, smoothed and

reallocated Claimant’s revenue in contravention and misapplication of the Settlement

Agreement. Claimant’s revenues were restated for reasons other than to correct errors; therefore,

the District Court’s May 25 Order requires remand of this claim. “Error” is specifically defined

in Policy 495 and it is not “shorthand” for “errors and mismatches of revenues and expenses.

Finally, BP offers in support of its incorrect argument citations to old District Court orders that

were overruled by the Policy 495 Opinion and the May 25 Order implementing it. Accordingly.

The claim is remanded.




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II. DECISION
















No error.

Comment (optional):

Claimant is a hair salon that operated at Tierra Verde, Florida, Zone A. The business had an EBITDA of $9962.40 for the twelve months prior to the spill. Following the spill the business failed. The Administrator calculated an award assuming causation due to the Zone A location. Claimant appeals demanding a Tourism Designation and asserting that it served at least 50% non-residents. Its NAICS Code is not one entitled to the designation under Exhibit 2 and other than its appeal notice Claimant submits no documentation to prove its claim under the "totality of the circumstances" of Policy 289 v 2. Claimant filed no memorandum in support of its appeal and instead filed a letter, post appeal, stating it had decided to

2017-2905

accept the award but desiring the claim be remanded for an accounting award to be added. That is not a remand issue permitted by the Settlement Agreement. This Claimant may have benefitted from representation by counsel but the panel finds no abuse by the Program and the award is affirmed.




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No error.

Comment (optional):

See uploaded decision.

2017-2906

– Claim

BP appeals the IEL award to the claimant ($38,759.99 pre-RTP), asserting

that Claimant is an owner/officer of a business that was previously compensated in

a BEL claim.

De novo review of the record reveals that Claimant owns 50% of the stock and

is the President of the corporation that is the claiming job for her IEL claim. BP

argues that claimants alleging losses related to business income required to be

reported on IRS Form 1040 Schedules C. E, or F are governed by the BEL

framework. BP asserts that, since Claimant’s loss of income “flows directly from her

business, her claim must be valued solely under the BEL Framework – not the IEL

Framework.”

After review of BP’s position, the panel sought a summary of review to which

the Program responded in record time. The basis for the award was explained as

follows:

The BEL claim received a $0 Eligibility Notice . . . The

business did not file a claim in the Gulf Coast Claims

Facility (“GCCF”). Payment of the IEL claim, if eligible,

would not present a “double payment” situation because

the business did not receive a payment in the Program or

the GCCF.

BP also notes the District Court’s decision on April 25, 2016 which denied an

IEL claim to an IEL claimant who was an owner of a business that filed a BEL

claim and received a substantial compensation amount where the owner/officer

compensation was treated as a fixed expense, reasoning that the business benefitted

from this classification. What distinguishes this claim from the above is that, here,

Claimant’s business did not receive compensation and, thus, did not benefit from

classifying her W-2 wages as a fixed expense. Therefore, there is no double recovery.

The Settlement Program correctly calculated the award and the appeal is denied.




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II. DECISION

Denial Upheld

Denial Overturned








No error.

Comment (optional):

Claimant is a HV/AC service company based in Shreveport, LA that specializes in installing and servicing plumbing, heating

and air conditioning equipment. Claimant appeals from the denial of its BEL claim on grounds the requirements of Exhibit 4B of the Settlement Agreement were not satisfied.

The Post-Reconsideration Denial Notice Stated, “we have received and evaluated your subsequent Reconsideration Request. Under Policy 495, this claim has been evaluated under the Construction Methodology, as materials are recorded

as incurred on a monthly basis. As variable expenses are an accurate indicator of the business' monthly activities and the Claimant has a Construction NAICS code, the application of the Construction Methodology has been deemed appropriate.

The Construction Methodology allows for the reallocation of revenues in order to "sufficiently match" the claim's revenues and variable expenses…We have determined that your claim remains denied for the reason(s) stated in Section II: Denial

Explanation.” See Post-Reconsideration Denial Notice at 2.

This case is directly impacted by the Fifth Circuit Court of Appeals decision dated May 22, 2017 (the “495 Opinion”), which

stated, in part, “Because the AVMM is consistent with the text of the Settlement Agreement, but the four ISMs are not, we

2017-2907

AFFIRM as to the AVMM, REVERSE as to the ISMs, and REMAND for proceedings consistent with this opinion.” This was

followed by the May 25, 2017 Order of the District Court that the consideration of any BEL claims currently on appeal before the Appeals Panel involving ISMs shall be remanded to the Settlement Program for further consideration and

processing in accordance with the 495 Opinion of the Fifth Circuit Court of Appeals. Here, the Settlement Program applied the Construction Methodology, one of the prohibited ISMs. Accordingly, this matter is hereby remanded for further

consideration by the Settlement Program in light of the 495 Opinion and the May 25, 2017 Order of the District Court.




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II. DECISION

Denial Upheld

Denial Overturned








No error.

Comment (optional):

Claimant,a resident of Bourg,Louisiana,appeals the denial of his Subsistence claim on the basis he failed to submit proper

documentation to fish for certain listed species,including crab.Claimant asserts he provided such documentation including a recreational license to harvest crab.The Settlement Program(SP) denied the claim in its entirety on the grounds that while

claimant possessed a license to harvest crab in 2010 it did not become effective until after the spill on April 20,2010.BP

argues the SP properly denied the clam on this basis and further argues claimant's harvest totals are implausible.A review of the record discloses that after denial notices issued,claimant removed crab as a listed species. In this procedural posture

this claim is no different from so many others where remand has been decreed in other panel decisions.This panelist also defers ruling on BP's implausibility argument until it is first addressed by the SP.Accordingly,this claim is remanded to the

Claims Administrator for further evaluation and processing.

2017-2908



Claimant Name


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II. DECISION

















No error.

Comment (optional):

Claimant is a construction company in Wesley Chapel, Florida (Zone D). Claimant’s financials triggered matching criteria and the Settlement Program applied the Construction Methodology to calculate Claimant’s award. In light of the Fifth

Circuit’s Policy 495 Opinion and the District Court’s subsequent order, use of the ISM instead of the AVMM requires a

2017-2909

remand. Accordingly, this claim is remanded to the Program for recalculation.



Claimant Name


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II. DECISION

















No error.

Comment (optional):

BP appeals from a BEL award to Claimant . BP asserts, “The Settlement Program failed to properly address certain book-to-tax variances. Further, the Settlement Program erred by not performing a proper

calculation pursuant to Exhibit 4 of the Settlement Agreement.” The Settlement Program applied the Professional Services

2017-2910

methodology ISM in this matter.

Since BP noticed its appeal, however, the United States Court of Appeals for the Fifth Circuit issued its May 22, 2017 ruling

and June 21, 2017 denial of rehearing. BP acknowledges the Fifth Circuit’s May 22, 2017 ruling and the District Court’s May 25, 2017 order implementing that ruling and requests that the Appeal Panel remand this claim to the Settlement Program

to recalculate Claimant’s award under Policy 495’s Annual Variable Margin (“AVM”) Methodology. Accordingly, BP concedes remand is appropriate.

Claimant cross-appeals, maintaining that if Claimant’s revenue account “404-Reimbursable Expenses Inc” is excluded from the claim calculation, then the corresponding expenses must also be excluded. To correct this, Claimant argues, the

amount recorded each month in expense account “404-Reimbursable Expenses Inc.” should be deducted from the expense account “698-Reimbursable Job Expenses,” so that the reimbursed revenue and corresponding expenses are both excluded

from the claim calculation. As one balances the other, either both should be included, or both excluded, concludes

Claimant.

BP maintains that because this matter must be remanded for Policy 495 issues, the Settlement Program can evaluate Claimant’s cross-appeal explanation in the course of remand. This is an appropriate course of action, and the cross-appeal

issue shall be reconsidered during the course of the remand. The matter is hereby remanded for reconsideration of the cross-appeal issue, as well as application of the AVM methodology in accordance with the decisions cited above.



Claimant Name


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II. DECISION

Denial Upheld

Denial Overturned








No error.

Comment (optional):

Uploaded

2017-2911

CLAIM ID NO.

Claimant, , is an owner and operator of a motion picture theater facility located in Baton Rouge, Louisiana. The Settlement Program denied this claim because Claimant’s revenue patterns fail to satisfy Exhibit 4B’s threshold requirements. On appeal, Claimant argues: (1) that the Fifth Circuit’s May 22, 2017 opinion requires the reversal of the Settlement Program’s

application of Policy 218 to this claim; and (2) that Footnote 2 to Policy 495 supersedes Policy 218, allowing its claim to proceed without revenue reallocation despite the fact that its P&Ls are recorded on a 52/53 week basis. In opposition, BP argues the Settlement Program properly determined that Policy 218 applied, and that Claimant does not meet the requirements of Exhibit 4B.

It is undisputed that Claimant’s P&Ls are recorded on a 52/53 week basis. In other words, Claimant’s P&Ls are not divided according to calendar years but rather in increments of 52 weeks and 53 weeks. Policy 218 provides that the Program’s accountants have the ability to convert 13-period revenue and expense statements into a twelve month year by allocating each period's revenue and expense items into their respective months. BP maintains that here, by analogy, the Settlement Program properly reallocated Claimant’s revenue and expense items to “correctly reflect the actual monthly revenue earned and expenses incurred from January 2007-December 2011,” as required by Policy 218, citing the Accountant Causation Compensation Schedules.

However, Claimant’s P&Ls used a 12-month reporting period divided into 52/53 weeks, sequentially. This represented a 12 period reporting period, not 13. Thus, Policy 218 was not applicable, as has been held to be the correct interpretation in a number of previous Appeal Panel decisions addressing the 4-4-5 week reporting period methodology, another 12-month reporting period variant to use of strict calendar months.

Moreover, as urged by Claimant, this case is directly impacted by the Fifth Circuit Court of Appeals decision dated May 22, 2017 (the “495 Opinion”), decided just

after the Post-Reconsideration Denial Notice and Claimant’s Notice of Appeal in this case. As a follow-up, the District Court entered its Order of May 25, 2017, which holds, in pertinent part, that, “IT IS FURTHER ORDERED that the consideration of any BEL claims currently on appeal before the Appeals Panel involving ISMs or otherwise involving the restatement of revenues (except for the purpose of correcting errors) shall be remanded to the Settlement Program for further consideration and processing in accordance with the 495 Opinion.”

Accordingly, the restatement of revenues at issue in this matter require remand in light of the May 25, 2017 District Court order. Accordingly, Claimant’s appeal is granted, both on grounds that Policy 218 was inappropriately applied, as well as on the basis that the May 25, 2017 Order of the District Court so requires. This matter is remanded for recalculation without restating Claimant’s periodic revenues as set forth in its P&Ls.




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II. DECISION

Denial Upheld

Denial Overturned








No error.

Comment (optional):

Claimant,a farming operation in Beaumont,Texas,appeals the denial of its BEL claim on the basis it failed to satisfy the

causation requirements of Exhibit 4B of the Settlement Agreement.Claimant asserts the Settlement Program(SP) incorrectly applied policy 495 when it used the Agriculture Methodology to process the claim and restate revenues.Claimant argues in

light of recent court decisions the SP should have used the AVM methodology to evaluate and process the claim.BP argues

the SP correctly applied the Agriculture Methodology.A review of the record confirms the Agriculture Methodology was used by the SP.Therefore,recent court decisions mandate remand of this claim with the AVM methodology to be used to evaluate

and process the claim without restatement of revenues except to correct errors as allowed by policy 495. Accordingly,this claim is remanded for that purpose.

2017-2912




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II. DECISION

Denial Upheld

Denial Overturned








No error.

Comment (optional):

Claimant,a law firm in Mandeville,Louisiana,appeals denial of its BEL claim on the basis it did not satisfy the causation

requirements of Exhibit 4B of the Settlement Agreement. Claimant asserts the Settlement Program(SP) incorrectly applied policy 495 when it used the Professional Services

Methodology to process the claim. Claimant argues in light of recent court decisions the SP should have used the AVM

methodology to evaluate and process the claim.BP argues the SP correctly applied the Professional Services Methodology(PSM). A review of the record confirms the PSM was used by the SP.

Therefore,recent court decisions mandate remand of this claim with the AVM methodology to be used to evaluate and process the claim.Remand to the Claims Administrator is directed consistent with the foregoing.

2017-2913




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II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):


2017-2914

DWH:

Claim ID:


This Claimant, owner of a marina located in the New Orleans area (Zone A) appeals the denial of its Start-Up Business Economic Loss claim. The claim was denied upon a finding by the Claims Administrator that its operating history commenced on or after April 20, 2010. In seeking to overturn that decision, Claimant argues (1) the Settlement Agreement does not require commencement of operation before the Spill; rather, any business that operated “at any time from April 20, 2010 to April 16, 2012” is an eligible Class Member; (2) the decision is in direct contrast to the Administrator’s own official Start-Up Business Economic Loss Guide to Documents Required For Your Claim; to-wit, “the business did not need to be in operation at the time of the Spill.”; (3) it filed its claim for compensation based upon Section IV.A.1.b. of Exhibit 7 that permits Claimants to establish expected revenue and variable costs based on financial projections for the Start-Up Business and (4) it incurred substantial costs and expenses prior to April 20 of a nature indicative of the actual start-up of business operations, in keeping with CAO Policy 362 v. 2.

BP, in response, rejects each as insupportable. In respect of (1), Settlement Agreement Section 1.2 requires, for Class membership, that entities be doing business or operating in the Gulf Coast Areas or Specified Gulf Waters on the date of the Spill. That provision overrides any suggestion, as in point (2), that the Administrator’s guidelines provide a different conclusion. (3) Claimant’s citation to the section of Exhibit 7 is meaningless with respect to operating history inasmuch as it is a provision for determination of expected profit or loss in calculating such a claim. Finally, with respect to (4), the pre-Spill expenses offered by Claimant include costs of construction, repairs and maintenance, engagement of a subcontractor and bank service charges. As the District Court has observed in Discretionary Review Decisions on more than one occasion, such expenses are not indicative of the actual commencement of business operations in this context.

This panelist agrees. Claimant does not have the requisite operating history to qualify for compensation as a Start-Up Business. It has not established an operating history that commenced before the Spill. It is undisputed that it did not sell products or perform full time services before that time nor did it report any revenue on its income tax returns until 2011. By its own admission, Claimant was in the process of building its business at the time of the Spill. Indeed, it began the initial construction of its building approximately one week beforehand. Document ID Claimant’s Opening Memorandum at pages 5 and 7.

For the foregoing reasons, this Claimant appeal cannot be sustained.

Denial upheld.




Claimant Name


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II. DECISION

Denial Upheld

Denial Overturned








No error.

Comment (optional):

Claimant,a public works contractor inNew Iberia,Louisiana,appeals the denial of its BEL claim on the basis it failed to satisfy the causation requirements of Exhibit 4B of the Settlement Agreement.Claimant asserts because the Settlement

Program(SP) used the Construction Methodology to evaluate the claim,it is entitled to remand and further review under

recent court decisions.Claimant also argues that it has additional new data not presented to the SP to show it can satisfy both prongs of the Decline-Only Revenue Pattern test.BP argues such new submissions are untimely and even under re-

evaluation using the AVM methodology claimant will not pass causation. A review of the record discloses the SP determined the claim was not sufficiently matched and applied policy 495 and the

Construction Methodology to evaluate and process the claim.For this reason,remand is warranted with the AVM

methodology to be applied.The SP also gave conflicting reasons in post-review denial notices why claimant did not pass the Decline-Only test.Claimant did not have ample opportunity to cure any deficiencies in its prior submissions.Remand will

afford claimant one last chance to do so.Accordingly,this claim is remanded to the Claims Administrator for further evaluation and processing consistent with the foregoing.

2017-2915




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II. DECISION

Denial Upheld

Denial Overturned








No error.

Comment (optional):

filed this Business Economic Loss claim under the Settlement Agreement. The Settlement

Program denied the claim after finding Policy 495 was triggered. appeals.

The claim is remanded to the Settlement Program. The Settlement Program applied the Construction Methodology.

Pursuant to guidance from the U. S. Court of Appeals for the Fifth Circuit, the AVMM should have been applied if Policy 495 was triggered.

2017-2916




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II. DECISION
















No error.

Comment (optional):

Claimant filed an IEL claim and the Settlement Program awarded Claimant $870.78, pre-RTP. Claimant appeals arguing the Settlement Program erred by 1) failing to include all of Claimant’s wages from every one of Claimant’s employers in the award calculation, and 2) by failing to reimburse Claimant’s expenses and employment benefits. As to Claimant’s contention that the Settlement Program erred in not including compensation from all of Claimant’s employers, the Settlement Program was correct to not include wages from Claimant’s other employers because they were not listed as the Claiming Job on Claimant’s individual economic loss form. Under Exhibit 8A of the Settlement Agreement, a Claiming Job is only eligible if

2017-2917

Claimant was employed or received an offer at Claiming Job on or before April 20, 2010. Certain of Claimant’s employers are not eligible Claiming Jobs because Claimant did not start working at these jobs until 2011. Settlement Agreement, Exhibit 8A, defines reimbursable job search costs to include documented travel and job search costs actually incurred after April 20, 2010 in searching for alternative employment due to job loss or work reduction after the DWH Spill. Claimants seeking reimbursement must submit documentation reflecting all amounts incurred. Here, the Settlement Program determined the reimbursement of a hotel invoice, small personal loan and living expenses were not a type of job search expense that is compensable under the Settlement Agreement. Claimant has not demonstrated the hotel stay was actually related to a job search. In any event, the loan and living expenses clearly are not eligible for reimbursement, and Claimant indicated not wishing to be reimbursed for these expenses on the economic loss form. Claimant further seeks reimbursement for its loss of employment benefits. The Settlement Program explained to Claimant, “[y]ou cannot receive compensation for this retirement plan because the documents you submitted indicate that you were not enrolled in the plan as of April 20, 2010, or you did not accept an offer of employment by April 20, 2010, with benefits commencing between May 1, 2009, and December 31, 2011.” The Settlement Program was correct to not reimburse Claimant because the documentation submitted by Claimant is for September and December 2010 and does not indicate Claimant was enrolled in the plan as of April 20, 2010, as required by the Settlement Agreement. BP cross appeals contending that Claimant’s sworn written statement is inadequate, and Claimant has not demonstrated eligibility for any IEL award. The Settlement Agreement provides that where an IEL claimant did not work for an Eligible Employer, the claimant can satisfy this requirement by providing an Employer SWS “attributing the claimant’s loss of income during the Compensation Period to the DWH Spill.” The Settlement Agreement requires the SWS to “articulate in detail how the claimant’s losses . . . are causally related to the DWH Spill.” The Settlement Program must “evaluate the credibility and reliability of the information provided by the employer and the claimant, including any SWS”. BP contends the Settlement Program erred in determining Claimant’s SWS was sufficient. Claimant’s submitted two SWS’s, the first of which indicates Claimant’s employer refused to complete the SWS, and no detail is provided linking Claimant’s losses to the Spill. BP asserts that Claimant’s SWS for is also similarly inadequate because it merely states “due to the BP oil Spill my hours were drastically cut as a result of declining business,” which fails to provide the required detail. BP points out that the SWS’ use of “my hours” tellingly suggests that, having failed to obtain another SWS, Claimant completed this form on his own. However, says BP, this explanation is generic and does not articulate in detail how Claimant’s losses were related to the Spill, as required by the IEL Framework. Claimant’s Final Proposal (without explanation) is for $477,000. BP’s Final Proposal is $0. Claimant’s appeal is denied, and BP’s cross appeal granted. Thus, BP Final Proposal of $0 is adopted.




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II. DECISION

Denial Upheld

Denial Overturned








No error.

Comment (optional):

On appeals, Claimant's counsel has submitted what appears to be new information, including affidavits that set out Claimant's new counsel's investigation into the fraud allegations. In light of this new information, and the seriousness of the allegations, this matter is remanded for further investigation. On remand, investigators shall follow up on the information supplied by Claimant's counsel.

2017-2918



Claimant Name


First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

filed this Business Economic Loss claim on behalf of its Phenix, Alabama facility. The Settlement Program determined was due a Compensation Amount of $171,922. BP appeals.

BP raises three issues and preserves it rights as to a fourth issue. The record either directly contradicts BP’s positions on

2017-2919

the three issues or contains no support for the position advocated by BP.

The first issue relates to “material fluctuations” in recorded revenue. BP fails to disclose to the Panel that “the high variances” was thoroughly examined by the Settlement Program (see Calculation Notes 7, 8, 9, 10, and 11). The variance triggered application of Policy 495. This was also not disclosed by BP in its Initial Proposal. Further, the Settlement Program applied the AVMM, which produced a result deemed to be sufficiently matched. Nor did BP disclose the application of the AVMM.

BP’s second point claims incorrectly that the Settlement Program did not obtain a reconciliation of tax returns or P&Ls. Claimant cites multiple documents demonstrating it did provide a reconciliation to the Settlement Program.

BP’s third point on embedded revenue items was raised but not briefed in its Initial Proposal. It is speculative at best and also waived by failure to brief.

BP preserves its attestation argument for a later day.

The Settlement Program correctly awarded $171,922 with an RTP of 0.25.




First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

Claimant,a cattle trader in Hartford,Alabama,appeals the correctness of its BEL award. Claimant asserts the Settlement

Program(SP) misclassified its veterinarian expense as a fixed expense rather than as a variable expense.Claimant argues that this expense is mainly comprised of the cost of medicine used for livestock; and as a consumable good it should be

treated as a variable expense.BP argues the SP correctly classified this expense as "Contract Services/Fixed" for reasons

explicated in the calculation notes. A review of the record discloses that the SP determined the claim was not sufficiently matched and applied policy 495

2017-2920

and the AVM methodology to process the claim.No impermissible adjustments to revenues or expenses were made.In its

analysis of the claim the SP requested claimant to explain the "460-Veterinarian" expense account. Claimant responded: "Horses and cattle are treated prior to any sale.Ancillary veterinary services are also required.All costs associated with

medicine,health certificates and vet bills go into this account." Based on this response the SP in paragraph 11 of the calculation notes styled "Expense Account Description", classified this expense as "Contract Services" and fixed.

Notwithstanding claimant's contention that most of the expense was comprised of the cost for medicines,such medicines may still need to be obtained and administered through the auspices of a veterinarian.There is sufficient basis in the record

to support the conclusion of the SP this expense was fixed in nature.There is no error.Accordingly,the decision of the

Claims Administrator is affirmed and the appeal of claimant is denied.




First

Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

filed this claim under the Settlement Agreement. The Settlement Program

determined that the Failed Business Economic Loss framework applied and denied the claim. appeals.

The appeal presents an issue of construction of Exhibit 6, §38.68 and Policy 506v2. §38.68 states:

Failed Business shall mean a business Entity that commenced operations prior to November 1, 2008 and that, subsequent

to May 1, 2010 but prior to December 31, 2011, either (i) ceased operations and wound down, or (ii) entered bankruptcy or (iii) otherwise initiated or completed a liquidation of substantially all of its assets, as more fully described in Exhibit 6.

Claimant construes this language to mean it poses a two or three pronged test in which all elements must be present to

disallow a claim. §38.68 does not bear this construction. The multiple use of the conjunction “or” would otherwise be

superfluous.

Claimant filed bankruptcy in June 2011. It began operations before November 1, 2008. As a result, Claimant was properly characterized by the Settlement Program as a “Failed Business.” Since Claimant entered bankruptcy after May 1, 2010 but

before December 31, 2011, §38.68 operates to exclude the claim because of the bankruptcy.

2017-2921

argues that Policy 506v2 permits a case by case review of Chapter 11 bankruptcies even if otherwise disallowed.

actually filed a Chapter 12 bankruptcy. I do not reach the issue of whether Policy 506v2 applies only to Chapter 11 proceedings. Policy 506 cannot be construed to contradict the clear and unambiguous language of §38.68, however.

The Settlement Program properly applied the terms of the Settlement Agreement and disallowed this claim.




First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned








No error.

Comment (optional):

Claimant, a contractor specializing in building permanent and temporary fencing located in

Clearwater, Florida, brings this appeal from the denial of its business and economic loss claim.

As an initial matter, this Claim was evaluated by applying the Construction Methodology of Policy 495. Claimant correctly

maintains the question of whether Claimant passes the V-test, the modified V-test, or must meet the additional requirements of the Decline Only test cannot be determined until the Settlement Program employs the Average Variable

Margin methodology, rather than the Construction Methodology to evaluate the claim. The District Court’s Order of May 25, 2017 specifically requires any BEL claims currently on appeal before the Appeal Panel involving ISMs, including the

Construction Methodology, to be remanded. The purpose of the remand is to permit the Settlement Program to determine both whether the claim passes any of the tests to qualify for a BP claim (i.e., V-Test, Modified V-Test, or Decline Only) and,

if qualified, to calculate the amount of the claim.

This appeal involves a collateral issue. In denying the Claim, the Settlement Program found that, “although the Claimant

passes the mathematical portion of the Decline-Only Causation Test, the Claimant did not establish causation for the

2017-2922

Decline-Only Causation Test as the Claimant did not provide specific, objective, third-party documentation that identifies

factors outside the control of the Claimant that prevented the recovery of revenues in 2011 as required by Exhibit 4B of the Settlement Agreement and Policy 474.” Based upon the evidence proffered in this regard by Claimant, the appeal is

denied, as those submittals did not constitute sufficiently specific documentation in the nature of the examples set forth in Policy 474. Accordingly, this issue is put to rest. Nevertheless, as required by the Policy 495 opinion of the Fifth Circuit

Court of Appeal and the District Court’s May 25, 2017 Order, this case is hereby remanded for application of the AVM methodology to test whether it is eligible for further calculation of an award.




First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

Claimant is a fabricator and erector of structural steel for commercial buildings in Harpersville, Alabama, Zone D. The Policy

495 criteria were triggered and the AVM Methodology was used to restate the P/Ls. The result was a denial of the claim for failure to pass causation. The Claimant appeals asserting that the Vendor Accountants made year-end adjustments of

revenues that would be prohibited by the recent court decisions. This panel member requested the Administrator review

the claim and report whether the December revenues had been reallocated in a manner that would trigger remand based on the presiding court decisions. The answer in this specific claim is no. What actually occurred is that the Claimant, in the

ordinary course of its business uses the accrual accounting basis for each month of the year except December. At that point in its fiscal year, at the request of its lenders and bonding companies, it switches to a cash basis in order to reflect a

percentage of completion of all contracts. The Vendor Accountants reallocated those adjustments back to the accrual method in order to create a consistent methodology which is required by Policy 464. The Administrator did not reallocate

revenues to another month or year. The Administrator states in his report that this claim would be analyzed in exactly the

same way if remanded. The claim was analyzed using the AVM Methodology so there is no automatic remand unless revenues were reallocated. They were not. The denial is affirmed.

2017-2923



Claimant Name


First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):


2017-2924

DWH:

Claim ID:


This Claimant, a large concrete and masonry subcontractor located in Lehigh Acres, Florida (Zone D), appeals the denial of its Business Economic Loss claim for failure to satisfy the Settlement Agreement Exhibit 4B causation requirements. The Claims Administrator determined that, although Claimant passed the mathematical portion of the Decline-Only Revenue Pattern Causation Test, it did not provide specific, objective, third party documentation that identifies factors outside its control that prevented recovery of its revenues in 2011. Claimant’s Requests for Re-Review and Reconsideration were denied for the same reason.

Claimant then brought this appeal arguing that the Claims Administrator erred by rejecting evidence it submitted of new competitors which entered its market in 2011. More importantly, as will be seen hereafter, Claimant noted in a footnote in its opening memorandum that it also objected, for preservation purposes only, to the Administrator’s application of Policy 495. It asserts that its claim was originally filed on March 20, 2013, some 14 months prior to the approval of said policy and, at the time of that filing, its profit and loss statements clearly passed the standard Exhibit 4B V-Shaped Revenue Pattern Test but that following implementation of that policy, its revenues were wholly restated, as a result of which it no longer met that causation test and was reclassified as a Downturn-Only claim.

In a short and succinct opposition memorandum, BP argues that the Administrator committed no error; that Claimant’s evidence of outside factors preventing its 2011 revenue recovery was insufficient and, moreover, Claimant did not submit data adequate to pass the Customer Mix Test.

In a supplemental memorandum, Claimant pointed out that its claim was processed under the Policy 495 Construction Methodology which subsequently was invalidated by the Fifth Circuit and requests remand for further processing in keeping with that decision. Examination of the record revealed that Claimant is correct:

This claim has been evaluated under Policy 495, which allows for the restatement of revenues and/or expenses in the event that the Settlement Program identifies an error (as defined in Policy 495) or a mismatch of revenues and variable expenses. Furthermore, under Policy 495, this claim has been evaluated under the Construction Methodology, which also allows for the reallocation of revenues in order to "sufficiently match" the claim's revenues and variable expenses. As a result of such restatement and/or reallocation, this claim did not meet the revenue pattern causation requirements established by Exhibit 4B of the Settlement Agreement.

Document ID Note 17, Methodology.

For the foregoing reason, this Claimant appeal is sustained and the claim is hereby remanded to the Claims Administrator for further processing in keeping with the decision of the Fifth Circuit and subsequent Orders of the supervising District Court.

Denial overturned.




Claimant Name


First Middle



Law Firm

II. DECISION

















No error.

Comment (optional):

See unanimous full written opinion of co-panelist entered separately.

2017-2925

1

DWH:

Claim ID:


In this appeal of a $1.22 million Business Economic Loss award to a cotton cooperative located in Greenwood, Mississippi (Zone D), BP assigns error to the Claims Administrator in his treatment of Claimant’s officer and payroll compensation. It also raises, for preservation purposes, its now familiar attestation issue but does not brief it, relying instead upon its prior stipulation with Class Counsel.

According to BP:

Claimant did not separate its officer compensation, which is a fixed expense, from its ordinary payroll on its contemporaneous profit and loss statements (P&Ls). See, e.g., Claimant 2007 P&Ls (Doc ID ). Claimant later submitted revised P&Ls, but it appears that Claimant may have mislabeled the 2010 officer compensation. Each year from 2007 to 2009, Claimant’s ordinary payroll was considerably smaller than its officer compensation. For example, in 2007, Claimant recorded $68,392 in payroll, and $158,359 in officer compensation. Likewise, in 2008 Claimant recorded $57,754 in payroll, and $162,934 in officer compensation. In 2010, however, it appears that these line items were swapped, as Claimant reported $188,095 in payroll, and only $62,103 in officer compensation:

* * *

There is no indication in the record that Claimant’s employee compensation model suddenly shifted in 2010. Accordingly, this appears to be a simple oversight. BP respectfully requests remand with instructions to obtain source documentation confirming the amount of Claimant’s payroll and officer compensation.

Document ID , BP’s Initial Proposal Memorandum at page 2.

Claimant argues, in reply, that it did not mislabel its 2010 officer compensation; that, in fact, a reconciliation explanation and schedule it provided to the Administrator sufficiently addressed that issue. Moreover, all documentation referenced by BP was available to and considered by the Administrator in making his determination. Insofar as payroll is concerned, that appears to be correct. According to the Calculation Notes:

Accounting Review identified an increase to payroll beginning in September 2010. The Claimant confirmed that the increase in payroll was related to an increase in the number of bales handled. The number of bales increased in FY

2

2011 and FY 2012 compared to the number of bales handled in FY 2010; therefore, more employees were needed (Doc ID: , pg. 1). Accounting Review determined that the data from the profit & loss statements confirms the explanation given by the Claimant; therefore, outreach for additional information regarding payroll was not performed.

Document ID , Note 11: Payroll – FY 2010.

However, that does not explain the marked reduction in officer compensation. This panel considered whether to instruct the Claimant to explain but, for the reasons that follow, decided to leave that inquiry to the Claims Administrator.

Careful examination of the record reveals the Administrator appears to have made certain adjustments to revenue that would require remand in keeping with the court’s Policy 495 Order. For example:

Accounting Review identified that dividend income was recorded within the revenue line item (Doc IDs: pgs. 6-8, 17-18, 31, 42;

, pgs. 7-8; 19-22). The Claimant explained in Doc ID: pgs. 1-2 that Dividend Income is earned on the investment from k and theinvestment in . Any entries indicating that they were related to income from

were excluded from the calculation. All other entries werespread evenly over the applicable fiscal year.

Id., Note 17: Dividends Adjustments 11-12 and

Accounting Review identified that patronage and rebate income was recorded within the revenue line item (Doc IDs: , pgs. 7, 19, 32, 42; , pgs. 8, 20). The Claimant explained in Doc ID: , pgs. 1-2 that is earned on the investment from and the investment in Any entries indicating that they were related to income from were excluded from the calculation. All other entries were spread evenly over the applicable fiscal year.

Id., Note 18, Patronage/Rebate Revenue Adjustments 13-14.

Although the Variable Margin Methodology was utilized by the Administrator in calculating Claimant’s award, it is clear these adjustments were not made simply for the purpose of correcting errors in Claimant’s P&L statements. As the Fifth Circuit’s Policy 495 Opinion and subsequent District Court Orders implementing it make plain, reallocating or smoothing of revenues for any purpose other than correcting errors, is expressly prohibited. That being the case, this panel is unanimously of the opinion that this claim must be remanded to the Claims Administrator for further processing in keeping with those Orders. In so doing, he is instructed

3

to inquire into the officer compensation recorded by Claimant in 2010 and take such further action, if any, as he deems appropriate.





First Middle



Law Firm

II. DECISION

















No error.

Comment (optional):


2017-2926

Reasons for Decision

Claim #

August 18, 2017

BP appeals the amount of this BEL award.

At the outset, this matter must be remanded in light of the Program’s

application of the Construction Methodology.

Regarding the issues raised by BP on appeal, BP first sets forth the

“attestation” argument, which has been rejected by all Panels, and is

rejected by this one as well.

BP also contends that "equipment lease expenses" were incorrectly

classified as fixed instead of variable. BP states that "[b]ecause these

equipment lease expenses were incurred over a short non-recurring time

frame, it appears that these expenses were directly related to a particular

job requiring specialized equipment."

Despite this contention, the Settlement Agreement in Exhibit 4D

clearly characterizes "lease expense" as fixed. This classification controls

and there is no support in the Settlement Agreement for BP's theory

regarding expenses "incurred over a short non-recurring time frame." BP's

argument on this issue is dismissed.




First

Middle



Law Firm

II. DECISION

















No error.

Comment (optional):

Uploaded

2017-2927

CLAIM ID NO.

Claimant is a contractor located in Gulf Breeze, Florida. Claimant appeals the Settlement Program’s award of $2,103 (pre-RTP), asserting three grounds, arguing that there was an error in determining the RTP; an error in prior payment offsets; and an error in reviewing the submitted documents.

Claimant contends that its business is located in Economic Loss Zone A. However, Claimant offers no evidence or argument to counter the Settlement Program’s application of the Settlement Program’s map, which reflects the address Claimant provided in Gulf Breeze, Florida, is located in Zone C. Therefore, there was no error in the RTP determination.

Secondly, although Claimant cites prior payments as a reason for contesting the award, Claimant did not receive any prior payments, and the Settlement Program did not deduct any from the original award. Accordingly, there was no error in prior payment offsets.

The third allegation is that the Settlement Program erred in reviewing the submitted documentation, but does not specify which documents were reviewed in error or how they should be re-reviewed. Nevertheless, this case is directly impacted by the Fifth Circuit Court of Appeals decision dated May 22, 2017 (the “495 Opinion”), which stated, in part, “Because the AVMM is consistent with the text of the Settlement Agreement, but the four ISMs are not, we AFFIRM as to the AVMM, REVERSE as to the ISMs, and REMAND for proceedings consistent with this opinion.” This was followed by the May 25, 2017 Order of the District Court that the consideration of any BEL claims currently on appeal before the Appeals Panel involving ISMs shall be remanded to the Settlement Program for further consideration and processing in accordance with the 495 Opinion of the Fifth Circuit Court of Appeals. Here, the Settlement Program applied the Construction Methodology, one of the prohibited ISMs. Accordingly, this matter is hereby remanded for further consideration by the Settlement Program in light of the 495 Opinion and the mandatory directive of the May 25, 2017 Order of the District Court.




First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned








No error.

Comment (optional):

Claimant,a farming operation in Tippo, Mississippi,appeals the denial of its BEL claim on the basis it failed to satisfy the

causation requirements of Exhibit 4B of the Settlement Agreement.Claimant asserts the Settlement Program(SP) misapplied the provisions of the Decline-Only customer mix test when certain governmental sources of revenue were treated as local

customers rather than as non-local customers.Claimant argues that "counter cyclical payments" received by claimant from

the U.S. Department of Agriculture(USDA) emanate from a governmental agency located outside claimant's economic zone and more than sixty miles away.BP responds simply that the SP properly applied the provisions of the Settlement

Agreement. A review of the record discloses that the SP determined the claim was not sufficiently matched and applied policy 495

and the Agriculture Methodology to process the claim. The record also shows the SP determined that,since there was a local branch office that oversaw the administering of government subsidy payments,its local address should be used for

purposes of the customer mix test.This panelist disagrees.Because the Agriculture Methodology was used to process the

claim,remand is required under recent court decisions.If,upon remand using the AVM methodology,the SP determines it is still necessary to resort to application of the customer mix test,the SP should treat "counter cyclical payments" received by

claimant from the USDA as emanating from Washington,D.C.,and not from a local address.Accordingly,this claim is

2017-2928

remanded to the Claims Administrator for further evaluation and processing consistent with the foregoing.




First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):


2017-2929

DWH:

Claim ID:


This Claimant, a taxidermy and supply business located in Lucedale, Mississippi (Zone D) appeals the denial of a Business Economic Loss claim filed on its behalf. The claim was denied upon a finding by the Claims Administrator that claimant’s financial data did not satisfy the requirements of the Customer Mix Test found in the Settlement Agreement Exhibit 4B Decline Only Revenue Pattern test. It did satisfy the outside factors analysis. Claimant’s Requests for Re-Review and Reconsideration were denied.

On appeal, Claimant contends the Administrator erred in reviewing its customer mix data. It also submits that its own accounting software inadvertently reported post office box addresses instead of physical addresses for certain of its customers and supplies correcting entries. Finally it asserts it was not provided an opportunity to explain the difference in certain of its customer mix data and the revenues reflected on its profit and loss statements for August and September, 2009.

BP opposes contending (1) Claimant did not submit adequate third party documentation of factors outside its control that prevented recovery of its revenues in 2011; and (2) the customer mix data previously submitted, as well as that submitted post appeal, do not change the result and Claimant would still fail the Customer Mix Test even if these additional addresses were included in the customer mix analysis.

Following preliminary review, this panelist asked the Claims Administrator to review Claimant’s latest submissions and then provide a Summary of Review containing his detailed analysis and evaluation of them. In due course, he provided a lengthy and detailed response. With respect to the outside factors issue raised by BP, he said:

During the Initial and Re-Review reviews of this claim, the Settlement Program reviewed all the documentation that the Claimant submitted and determined that the Claimant did not satisfy the Additional Analysis prong. However, during the Reconsideration Review, the Program reversed its answer and determined that the Claimant had satisfied the Additional Analysis prong. The Program then determined that the Claimant failed the Customer Mix prong, which resulted in the Post-Reconsideration Denial Notice. After reviewing the documentation again as a result of the Appeal process, the Settlement Program has determined that the Claimant did not satisfy the Additional Analysis prong.

During the Reconsideration Review, the Settlement Program previously concluded that the Claimant satisfied the Additional Analysis prong based on Doc File ID , which is a letter from the former CEO of

). This letter indicates that the Claimant was a vendor of , and that was purchased by another business, , in July 2011. The Settlement Program concluded that this letter

demonstrated the loss of a significant customer by the Claimant in 2011. However, upon further review in the drafting this Summary of Review, the Settlement Program again determined that this letter did not satisfy the Additional Analysis. letter did not say that stopped using the Claimant as a vendor in 2011, nor does it describe how the transaction between prevented the Claimant’s revenue from recovering in 2011. The Claimant did not provide any other documents that are sufficient to satisfy the Additional Analysis prong.

Document ID .

This Claimant was understandably outraged by this portion of the response and insisted that the affidavit of its owner and correspondence from its former client, together with customer transaction lists more than satisfied the requisite tests. At this point, it argues, the Administrator should not be permitted to reverse course and withdraw his previous determination on that important point. After review of Claimant’s submissions, this panelist is inclined to agree and would reverse that finding but, for the reasons which follow, that would be of no help to Claimant.

The Summary of Review did not provide the level of detail this panelist sought with respect to Claimant’s Customer Mix Test evidence, so a supplemental inquiry was submitted to him. Here is his reply:

There were no perceived deficiencies with the Claimant’s updated Customer Mix data provided on appeal. Program Accountants were able to utilize the corrected addresses and run the Customer Mix Test. Using that data, however, the Claimant simply does not pass the mathematical portion of the Customer Mix Test, even when these corrected addresses are taken into consideration.

Document ID .

It is clear, then, that despite this panelist’s misgivings over the Administrator’s conclusion with respect to the Additional Analysis or Outside Factors test, Claimant still cannot satisfy the Customer Mix Test and that is fatal to its claim.

For the foregoing reasons, following de novo review, this Claimant appeal cannot be sustained. The decision of the Claims Administrator is affirmed.

Denial upheld.




Claimant Name


First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

Claimant, a LaPlace, La (Zone C) operator of a golf course, tennis courts, and banquet and event facilities, appeals pro se the Program's denial of its converted Start-up BEL claim. In its Notice of Appeal, which it adopts as its Openeing Memorandum, Claimant asserts that the Program's "process kept changing,' and that ultimately in order to minimize its losses it shut down in August of 2010 and was seized and foreclosed upon. As a result, it claims it was unable to show "the back side of the V-shaped revenue pattern." Claimant asserts total losses in the incredible amount of over $10 million resulting from revenue losses, defaulted loans taxes, and foreclosed property. This panelist reached out to the Program for an explanation as to why it determined under Policy 362 that Claimant had no operating history before April 20, 2010 (and thus denied Claimant's Start-up BEL claim), especially in light of Claimant's submission on appeal of a certificate from the Louisiana Secretary of State indicating it was qualified to do business since April of 2005. In due course, in pertinent part, the Program responded : " is owned and operated by [Claimant]. The Claimant provided what appeared to be profit and loss

statements for ' ' from 2007 through 2011....However, these...were actually for [Claimant], which conducts other business activity besides... . Additionally , the Claimant informed the Settlement Program that the golf course business ceased operations on 8/23/10, when it filed for Chapter 7 bankruptcy.... Because

is a wholly owned subsidiary of [Claimant], the ...Program evaluated all losses prior to foreclosure of ..under Claim ID , which is the claim for [Claimant]. The ...Program denied Claim ID on 9/5/13 for failing

2017-2930

all Causation tests. The only remaining business activity that could be attributed to the golf course business under Claim ID 93378 began after the date of the Spill. As a result, the ...Program reclassified Claim ID from the BEL framework to the Start-up BEL framework and then denied the Claim under Policy 362 because the operating history commenced after 4/20/10." The Program's reply satisfies this panelist, on de novo review, that it acted correctly in converting and denying this claim. accordingly, the denial is affirmed.




First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):


2017-2931

DWH:

Claim ID:


This Claimant, a law firm domiciled in Oxford, Mississippi (Zone D) appeals the denial of its Business Economic Loss claim. Its practice involves handling of many short and long term engagements, the latter of which are principally compensated on a contingent fee basis. Examination of Claimant’s financial data revealed matching issues which the Claims Administrator resolved utilizing the CAO Policy 495 Professional Services Methodology.

Claimant brought this appeal, arguing that the Professional Services Methodology violated the terms of the Settlement Agreement and the Fifth Circuit’s 2013 BEL Opinion. It sought remand or, in the alternative, a stay pending Class Counsel’s appeal of this issue which was then pending in the Fifth Circuit. Its Final Proposal memorandum was submitted ten days prior to that decision which, of course, prohibited the use of the four Industry Specific Methodologies, including the one applied here.

For the foregoing reason, and in keeping with the Fifth Circuit’s Policy 495 Opinion and subsequent Orders of the District Court implementing it, this claim must be remanded to the Claims Administrator for further processing utilizing the Annual Variable Margin Methodology. No smoothing or reallocation of revenues except for the purposes of error correction, will be permitted. Claimant’s appeal is therefore sustained.

Denial Overturned.




Claimant Name


First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

The filed this Business Economic Loss claim under the Settlement Agreement. The Settlement Program ultimately determined that Claimant was entitled to a Compensation Amount of $650,654 with a RTP of 0.25. BP appeals.

BP raises two issues: (1) Claimant did not pass the Decline-Only Causation Test; and (2) the Settlement Program erred in

2017-2932

its allocation of an April 2009 bonus. The first issue revolves around whether Claimant submitted “specific documentation identifying factors outside the control of Claimant that prevented the recovery of revenues in 2011.” This requirement has ensnared many a claimant. In this instance, however, the Settlement Program reviewed the documentation provided by Claimant and concluded it met the standard. Claimant’s excellent Memorandum in Support of its Final Offer contains a detailed discussion of the evidence supporting the Settlement Program determination. See pages 2-3. Objective, specific, third-party documentation is required. The data meets the test. Further, the dependence of Claimant and on the Baldwin County economy supports the Settlement Program determination as well. Ultimately, the Settlement Program’s determination should be given some consideration. The second issue involves the April 2009 bonus. The Settlement Program investigated it. The Settlement Program concluded Policy 495 was triggered and applied the AVMM. The result was the Settlement Program’s award to Claimant is sufficiently matched to meet the legal standard. This is a “baseball” appeal, meaning the final proposal closest to the correct award prevails. BP argues for $0.00 while Claimant adopts the Settlement Program award. Claimant prevails on its Final Proposal.



Claimant Name


First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):


2017-2933


Claim ID

received an award of $217,702.13 with an RTP of 3.0. presented a final proposal of $201,058.64 with an RTP of 3.0. BP appeals and submits a Compensation Amount of $172,420.09 with a 2.25 RTP. Both parties agree with a Payment Offset of $89,600.

BP raises the following 3 issues in its Appeal: 1) The Program erroneously adjusted Claimant's sales tax accounts; 2) The Claims Administrator misclassified Car/Truck expense as a fixed cost; 3) The Program erred in considering a member of the Primary Seafood Industry entitled to a3.0 RTP.

Claimant conceded the sales tax issue as well as on the classification of the Car/Truck expense. As a result of these concessions, adjusted its initial proposal of $217,702.13 to a final proposal of $201,058.64. In view of the parties' apparent agreement on these 2 issues, this Panelist requested information from the Claims Administrator as to the proper compensation amount after allowing for these adjustments. The Program responded, indicating that the award after these adjustments would be $189,717.74.

The remaining and dispositive issue in this case relates to the Claims Administrator's classification of Claimant as a member of the Primary Seafood Industry entitled to a 3.0 RTP. BP suggests that Claimant described itself in correspondence as a "finfish processor" and pursuant to Policy 346 v.2, Claimant cannot be characterized as a Primary Seafood Processor with the higher RTP unless it demonstrates that Shrimp/Crab/Oyster is not a minor and insignificant portion of the Claimant's operations. Nevertheless, did effectively prove that Shrimp/Crab/Oysters is not a "minor and insignificant portion" of its operations. The company's contemporaneous P and Ls for 2008 and 2009 show that over 50% of sales were attributable to shrimp, crab and oysters. Policy 346 v.2 actually states that Primary Seafood Processors are entitled to an RTP of 3.0 "unless it is apparent from the claim materials that Shrimp/Crab/Oyster processing is a minor component of Claimant's operations". Accordingly, the higher RTP is actually a rebuttable presumption and this presumption has clearly not been overcome when a majority of the company's sales relate to the designated species.

BP's second contention regarding the RTP was also effectively addressed by Claimant. BP suggests that invoices in the record evidence that " Claimant deals with seafood outside the Gulf of Mexico". The invoices appellant references do show catch outside the Gulf as well as from the Gulf. However, as Claimant points out, the invoices at issue relate to a post-Spill period when Gulf seafood was not readily available. Additionally, purchases in this period are not relevant to the Benchmark period applicable to this case. As a result, there is a finding herein that Claimant was properly classified as a Primary Seafood Processor with an RTP of 3.0.

In view of the Claimant's stipulations referenced earlier and the Claims Administrator's determination that the correct compensation amount in light of these concessions is $189,717.74, the proper final award should be $189,717.74 with an RTP of 3.0. In the context of this baseball appeal, Claimant's final proposal of $201,058.64 with an RTP of 3.0 is closer to the appropriate award than BP's final number of $172,420.09 with an RTP of 2.25. Accordingly, Claimant's final proposal is selected as the proper final result.




First Middle



Law Firm

II. DECISION
















No error.

Comment (optional): BP appeals a BEL award in the amount of $222,568.47 pre-RTP to a Birmingham, Alabama paint store, asserting three points of error. Two of these arguments have been consistently rejected by prior decisions of this panel (See Ids ,

) In the interest of efficiency, these decisions are adopted herein. BP also contends that the Program failed to adequately address issues relating to cross year revenue. This Panelist finds that the Claims Administrator properly considered the pertinent revenue issues and appropriately exercised its discretion. Accordingly, the award by the Settlement Program, which is in accord with Claimant's final proposal, is affirmed.

2017-2934




First Middle



Law Firm

II. DECISION
















No error.

Comment (optional): BP appeals the BEL award to claimant,a retail paint store located in Chalmette,Louisiana.BP asserts the Settlement Program(SP) erred by allocating COGS incurred by its divisions to the individual stores when these expenses were not

incurred at the store level.BP also asserts the SP erred by failing to obtain sales and use tax returns.These issues have been reviewed by other panelists in other related appeals and determined adversely to BP. See decisions in claim numbers

dated August 9,2017. This panelist is in agreement with these decisions and finds no reason to depart from them.Accordingly,the decision of the Claims Administrator is affirmed and the appeal of BP is denied.

2017-2935




First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

BP appeals a BEL award in the pre-RTP amount of $98,339.71 to a Fort Myers, Florida paint store asserting three grounds consistently rejected by prior decisions of this Panel.(See Claim IDs ) In the interest of efficiency, these decisions are adopted herein. Accordingly, the award by the Settlement Program, which is in accord with Claimant's final proposal, is affirmed.

2017-2936




First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

BP appeals the BEL award to claimant,a retail paint store located in Jackson,Mississippi.BP asserts the Settlement

Program(SP) erred by allocating COGS incurred by claimant's divisions to the individual stores when these expenses were not incurred at the store level. BP also asserts the SP erred by failing to obtain sales and use tax returns of claimant.Next,

BP asserts the SP erred when it misclassified "72 All Other"expenses as fixed rather than as variable.Finally,BP asserts the

SP erred in its treatment of the expense account"55_INST_L_G". These first three issues have been reviewed by other panelists in other related appeals and determined adversely to BP. See e.g.,decisions in claim numbers

2017-2937

,dated August 9,2017.As to the remaining issue,this panelist concludes paragraph 14 of the calculation notes

provides ample justification for the adjustment made by the SP.This panelist is in agreement with those earlier referenced decisions and finds no reason to depart from them.Accordingly, the decision of the Claims Administrator is affirmed and the

appeal of BP is denied.




First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

See previously submitted Decision Comment for uploading.

2017-2938


Claim ID 3

The Settlement Program awarded $63,226.62, pre-RTP to the Claimant’s retail facility in Kosciusko, Mississippi. The AVM methodology was used to resolve matching issues. BP appeals, raising three assignments of error. First, BP argues that the Settlement Program incorrectly allocated COGS by Claimant’s manufacturing and purchasing divisions to the Claimant’s individual stores. BP also contends that the program accountant erroneously consolidated certain variable expenses into a single expense line item. Finally, BP maintains that the Settlement Program failed to require Claimant to provide sales and use tax returns. BP’s first assignment of error is based on Claimant’s business model which includes divisions for manufacturing and purchasing paint as well as retail and commercial sales. BP argues that Claimant incurred four specific categories of expenses at the division level which were allocated by the Settlement Program to each retail store based on the store’s percentage of total COGS. BP argues that these expenses were not incurred by any of the individual stores and should not have been included on the P&Ls. Claimant responds that the reviewing accountants went into great detail investigating the Margin Variance methodology used in its P&Ls, making a number of adjustments including the COGS accounts that are the subject of BP’s appeals. Indeed, the Calculation Notes explain the adjustments and their relationship to the individual stores:

Per Doc ID , the Claimant explained that the detailed store level P&L statements referenced above, include financial activity before certain margin adjustments are applied. These margin adjustments are used by management to track certain costs related to inventory, inventory valuation, and to assist in decision making surrounding COGS at both the division and store-level (Global Note Contact ID ). A portion of these adjustments are allocated from the manufacturing division to the stores division (A100) as a whole, rather than to the individual store P&Ls. The retail stores are treated as their own consolidated operating entity. All management adjustments were made in order to true-up costs and arrive at the actual COGS for the products sold at the store (Global Note Contact ID: ). The Claimant provided the following information about each margin adjustment recorded at the division-level in Doc ID: and Global Note Contact : 1. Overbill & Overbill Contra - A standard price for items sold is seteach year (i.e. standard costing). In certain instances, this standardcost must be adjusted. For example, actual costs of items or rawmaterials may fluctuate throughout the year. These costs usually goup, but can also go down depending on seasons, climate, freight, etc.2. APDC - Associated products in the distribution center. Instead ofshipping products directly multiple stores, the Claimant orders items

and bulk ships them to a regional distribution center. Items are then delivered from this distribution center to the stores to replenish what is sold. By purchasing and shipping small ticket items in bulk, the Claimant is able to secure various volume discounts and rebates from these suppliers. 3. LIFO Adjustment - Inventory adjustments made in the normalcourse of business to account for the Last In First Out method ofaccounting.4. Vendor Credits - Volume discounts, rebates and other product costreductions earned during the manufacturing process.DWH Accountant determined that all four of these items are directcosts to the filing facilities, and need to be allocated to the store-levelP&Ls. The Claimant also explained that “Other-COGS” wasrecorded at the division level. However, this account relates toeliminations upon consolidations for tax purposes, and is notindicative of true cost savings at the store level (Doc ID: pg. 1).

De novo review sufficiently persuades this panelist that the margin adjustments were a reasonable exercise of the vendor accountant’s professional judgment. Claimant’s P&Ls include a line item entitled “72_ALL_OTHER.” This category includes a number of miscellaneous expenses which the program accountant classified as 100% fixed. BP argues that this category includes repairs and a number of other expenses that are variable. BP appears to argue that this line item should have been allocated 50% fixed and 50% variable. Claimant responds that it has received over 80 BEL awards and that BP has not questioned the classification of the “72_ALL_OTHER” expenses in numerous companion appeals. Beyond that, Claimant points out that this expense category consists of expenses that are fixed as opposed to variable in nature. The Calculation Notes reflect that the program accountant examined this category and determined that the expenses were properly classified as fixed:

64/72_ALL_OTHER - Multiple miscellaneous expenses including various taxes paid, service contract fees, insurance, and advertising/marketing expenses. Given the items are largely fixed in nature, account has been classified as Miscellaneous Expense - Fixed.

Although BP argues that this error reduces Claimant’s compensation, no misapplication of Exhibit 4D has been shown. This assignment of error is without merit. BP also argues that as a retail business, Claimant was obligated under Exhibit 4A to provide monthly sales and use tax returns for the Benchmark Period, 2010 and if necessary, 2011. BP complains that the Settlement Program erred in failing to require the Claimant to furnish these documents because it is a retail store. BP argues that Claimant is not entitled to compensation absent the submission of these documents but fails to explain how the sales and use tax returns would have altered the award. Claimant points out that the Settlement Program assigned it NAICS Code 325510 - Paint and Coating Manufacturing. This industry comprises establishments primarily engaged in mixing pigments, solvents and binders into paints and other coatings and/or manufacturing allied paint products such as putty and paint remover. The Settlement Program presumably assigned this code based on the fact that Claimant is engaged in the manufacturing and purchasing of paint as well as its retail and commercial sales. Hence, Claimant argues that sales and use tax returns are

not required. This was a reasonable approach by the Settlement Program based on the overall nature of Claimant’s business operations. No error has been shown. Although BP submitted a Final Proposal of $48,198.62, no error has been demonstrated that would require remand or justify selection of BP’s Final Proposal. Claimant’s Final Proposal is the correct result and is therefore selected.




First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

BP appeals a BEL award in the amount of $93,605.97 pre-RTP to a Lafayette, La. paint store, asserting two grounds consistently rejected by prior decisions of this panel (See Claim IDs ) In the interest of efficiency, these decisions are adopted herein. Accordingly, the award by the Settlement Program, which is in accord with Claimant's final proposal, is affirmed.

2017-2939




First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

BP appeals the BEL award to claimant,a retail paint store in Mandeville,Louisiana. BP asserts the Settlement Program(SP)

erred by allocating COGS incurred by claimant's divisions to the individual stores when these expenses were not incurred at the store level. BP also asserts the SP erred by failing to obtain sales and use tax returns of claimant.These issues have

been reviewed and considered by other panelists in other related appeals and determined adversely to BP.See

e.g.,decisions in claim numbers ,dated August 9,2017.This panelist is in agreement with those decisionsand finds no reason to depart from them.Accordingly,the decision of the Claims Administrator is affirmed and the appeal of

2017-2940

BP is denied.




First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

See previously uploaded Decision Comment.

2017-2941


Claim ID The Settlement Program awarded $61,206.66, pre-RTP to the Claimant’s retail facility in Montgomery, Alabama. The AVM methodology was used to resolve matching issues. BP appeals, raising two assignments of error. First, BP argues that the Settlement Program incorrectly allocated COGS by Claimant’s manufacturing and purchasing divisions to the Claimant’s individual stores. BP also maintains that the Settlement Program failed to require Claimant to provide sales and use tax returns. BP’s first assignment of error is based on Claimant’s business model which includes divisions for manufacturing and purchasing paint as well as retail and commercial sales. BP argues that Claimant incurred four specific categories of expenses at the division level which were allocated by the Settlement Program to each retail store based on the store’s percentage of total COGS. BP argues that these expenses were not incurred by any of the individual stores and should not have been included on the P&Ls. Claimant responds that the reviewing accountants went into great detail investigating the Margin Variance methodology used in its P&Ls, making a number of adjustments including the COGS accounts that are the subject of BP’s appeals. Indeed, the Calculation Notes explain the adjustments and their relationship to the individual stores: Per Doc ID: , the Claimant explained that the detailed store level P&L statements referenced above, include financial activity before certain margin adjustments are applied. These margin adjustments are used by management to track certain costs related to inventory, inventory valuation, and to assist in decision making surrounding COGS at both the division and store-level (Global Note Contact ID: ). A portion of these adjustments are allocated from the manufacturing division to the stores division (A100) as a whole, rather than to the individual store P&Ls. The retail stores are treated as their own consolidated operating entity. All management adjustments were made in order to true-up costs and arrive at the actual COGS for the products sold at the store (Global Note Contact ID ). The Claimant provided the following information about each margin adjustment recorded at the division-level in Doc ID: and Global Note Contact Ids: 1. Overbill & Overbill Contra - A standard price for items sold is set each year (i.e. standard costing). In certain instances, this standard cost must be adjusted. For example, actual costs of items or raw materials may fluctuate throughout the year. These costs usually go up, but can also go down depending on seasons, climate, freight, etc. 2. APDC - Associated products in the distribution center. Instead of shipping products directly multiple stores, the Claimant orders items and bulk ships them to a regional distribution center. Items are then delivered from this distribution center to the stores to replenish what

is sold. By purchasing and shipping small ticket items in bulk, the Claimant is able to secure various volume discounts and rebates from these suppliers. 3. LIFO Adjustment - Inventory adjustments made in the normalcourse of business to account for the Last In First Out method ofaccounting.4. Vendor Credits - Volume discounts, rebates and other product costreductions earned during the manufacturing process.DWH Accountant determined that all four of these items are directcosts to the filing facilities, and need to be allocated to the store-levelP&Ls. The Claimant also explained that “Other-COGS” wasrecorded at the division level. However, this account relates toeliminations upon consolidations for tax purposes, and is notindicative of true cost savings at the store level (Doc ID: , pg. 1).

De novo review sufficiently persuades this panelist that the margin adjustments were a reasonable exercise of the vendor accountant’s professional judgment. BP also argues that as a retail business, Claimant was obligated under Exhibit 4A to provide monthly sales and use tax returns for the Benchmark Period, 2010 and if necessary, 2011. BP complains that the Settlement Program erred in failing to require the Claimant to furnish these documents because it is a retail store. BP argues that Claimant is not entitled to compensation absent the submission of these documents but fails to explain how the sales and use tax returns would have altered the award. Claimant points out that the Settlement Program assigned it NAICS Code 325510 - Paint and Coating Manufacturing. This industry comprises establishments primarily engaged in mixing pigments, solvents and binders into paints and other coatings and/or manufacturing allied paint products such as putty and paint remover. The Settlement Program presumably assigned this code based on the fact that Claimant is engaged in the manufacturing and purchasing of paint as well as its retail and commercial sales. Hence, Claimant argues that sales and use tax returns are not required. This was a reasonable approach by the Settlement Program based on the overall nature of Claimant’s business operations. No error has been shown. Although BP submitted a Final Proposal of $49,557.00, no error has been demonstrated that would require remand or justify selection of BP’s Final Proposal. Claimant’s Final Proposal is the correct result and is therefore selected.




First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

BP appeals a BEL award in the pre-RTP amount of $137,817.09 to a Montgomery, Alabama paint store asserting three grounds consistently rejected by prior decisions of this panel (See Claim IDs ) In the interest of efficiency, these decisions are adopted herein. Accordingly, the award by the Settlement Program, which is in accord with Claimant's final proposal, is affirmed.

2017-2942




First Middle



Law Firm

II. DECISION
















No error.

Comment (optional): BP appeals the BEL award to claimant,a retail paint store in New Albany,Mississippi.BP asserts the Settlement Program(SP) erred by allocating COGS incurred by claimant's division to the individual stores when these expenses were incurred at the

store level.BP also asserts the SP erred by failing to obtain sales and use tax returns of claimant.These issues have been reviewed and considered by other panelists in other related appeals and determined adversely to BP.See e.g.,decisions in

claim numbers , dated August 9,2017.This panelist is in agreement with those decisions and finds no reason to depart from them.Accordingly,the decision of the Claims Administrator is affirmed and the appeal of BP is denied.

2017-2943




First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

BP appeals a BEL award in the amount of $80,264.50 pre-RTP to an Oxford, Mississippi paint store, asserting two grounds consistently rejected by prior decisions of this panel (See Claim IDs ) In the interest of efficiency, these decisions are adopted herein. BP also raises the familiar "attestation" argument. This theory has been rejected by virtually every Panel that has considered it and it is rejected in this case as well. Accordingly, the award by the Settlement Program, which is in accord with Claimant's final proposal, is affirmed.

2017-2944




First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

BP appeals the BEL award to claimant,a retail paint shop in Panama City Beach,Florida.BP asserts the Settlement

Program(SP) erred by allocating COGS incurred by claimant's division to the individual stores when the expenses were incurred at the store level.BP also argues that the expense "72_ALL_OTHER" was misclassified as fixed.Finally,BP argues

that the SP erred by failing to obtain sales and use tax returns of claimant.These issues have been reviewed and

considered by other panelists in other related appeals and determined adversely to BP.See e.g.,decisions in claim numbers ,dated September 9,2017.This panelist is in agreement with those decisions and finds no reason to

2017-2945

depart from them.Accordingly,the decision of the Claims Administrator is affirmed and the appeal of BP is denied.




First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

BP appeals a BEL award in the amount of $413,182.87 pre-RTP to a Richland, Mississippi paint store, asserting three grounds consistently rejected by prior decisions of this panel (See Claim IDs ) In the interest of efficiency, these decisions are adopted herein. Accordingly, the award by the Settlement Program, which is in accord with Claimant's final proposal, is affirmed.

2017-2946




First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

BP appeals the BEL award to claimant,a retail paint store in Sulphur,Louisiana.BP asserts the Settlement Program(SP) erred

by allocating COGS incurred by claimant's division to the individual stores when the expenses were not incurred at the store level.BP also argues that the SP erred when it classified the expense "72_ALL _OTHER" as fixed.Finally,BP argues the SP

erred by failing to obtain sales and use tax returns of claimant.These issues have been reviewed and considered by other

panelists in other related appeals and determined adversely to BP.See e.g.,decisions in claim numbers ,dated August 9,2017.This panelist is in agreement with those decisions and finds no reason to depart from

2017-2947

them.Accordingly,the decision of the Claims Administrator is affirmed and the appeal of BP is denied.




First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

See Decision Comment previously uploaded.

2017-2948


Claim ID

The Settlement Program awarded $293,762.27, pre-RTP to the Claimant’s retail facility in Texas City, Texas. The AVM methodology was used to resolve matching issues. BP appeals, raising two assignments of error. First, BP argues that the Settlement Program incorrectly allocated COGS by Claimant’s manufacturing and purchasing divisions to the Claimant’s individual stores. BP also maintains that the Settlement Program failed to require Claimant to provide sales and use tax returns. BP’s first assignment of error is based on Claimant’s business model which includes divisions for manufacturing and purchasing paint as well as retail and commercial sales. BP argues that Claimant incurred four specific categories of expenses at the division level which were allocated by the Settlement Program to each retail store based on the store’s percentage of total COGS. BP argues that these expenses were not incurred by any of the individual stores and should not have been included on the P&Ls. Claimant responds that the reviewing accountants went into great detail investigating the Margin Variance methodology used in its P&Ls, making a number of adjustments including the COGS accounts that are the subject of BP’s appeals. Indeed, the Calculation Notes explain the adjustments and their relationship to the individual stores:

Per Doc ID , the Claimant explained that the detailed store level P&L statements referenced above, include financial activity before certain margin adjustments are applied. These margin adjustments are used by management to track certain costs related to inventory, inventory valuation, and to assist in decision making surrounding COGS at both the division and store-level (Global Note Contact ID ). A portion of these adjustments are allocated from the manufacturing division to the stores division (A100) as a whole, rather than to the individual store P&Ls. The retail stores are treated as their own consolidated operating entity. All management adjustments were made in order to true-up costs and arrive at the actual COGS for the products sold at the store (Global Note Contact ID: The Claimant provided the following information about each margin adjustment recorded at the division-level in Doc ID: and Global Note Contact Ids: : 1. Overbill & Overbill Contra - A standard price for items sold is seteach year (i.e. standard costing). In certain instances, this standardcost must be adjusted. For example, actual costs of items or rawmaterials may fluctuate throughout the year. These costs usually goup, but can also go down depending on seasons, climate, freight, etc.2. APDC - Associated products in the distribution center. Instead ofshipping products directly multiple stores, the Claimant orders itemsand bulk ships them to a regional distribution center. Items are thendelivered from this distribution center to the stores to replenish what

is sold. By purchasing and shipping small ticket items in bulk, the Claimant is able to secure various volume discounts and rebates from these suppliers. 3. LIFO Adjustment - Inventory adjustments made in the normalcourse of business to account for the Last In First Out method ofaccounting.4. Vendor Credits - Volume discounts, rebates and other product costreductions earned during the manufacturing process.DWH Accountant determined that all four of these items are directcosts to the filing facilities, and need to be allocated to the store-levelP&Ls. The Claimant also explained that “Other-COGS” wasrecorded at the division level. However, this account relates toeliminations upon consolidations for tax purposes, and is notindicative of true cost savings at the store level (Doc ID: , pg. 1).

De novo review sufficiently persuades this panelist that the margin adjustments were a reasonable exercise of the vendor accountant’s professional judgment. BP also argues that as a retail business, Claimant was obligated under Exhibit 4A to provide monthly sales and use tax returns for the Benchmark Period, 2010 and if necessary, 2011. BP complains that the Settlement Program erred in failing to require the Claimant to furnish these documents because it is a retail store. BP argues that Claimant is not entitled to compensation absent the submission of these documents but fails to explain how the sales and use tax returns would have altered the award. Claimant points out that the Settlement Program assigned it NAICS Code 325510 - Paint and Coating Manufacturing. This industry comprises establishments primarily engaged in mixing pigments, solvents and binders into paints and other coatings and/or manufacturing allied paint products such as putty and paint remover. The Settlement Program presumably assigned this code based on the fact that Claimant is engaged in the manufacturing and purchasing of paint as well as its retail and commercial sales. Hence, Claimant argues that sales and use tax returns are not required. This was a reasonable approach by the Settlement Program based on the overall nature of Claimant’s business operations. No error has been shown. Although BP submitted a Final Proposal of $249,476.00, no error has been demonstrated that would require remand or justify selection of BP’s Final Proposal. Claimant’s Final Proposal is the correct result and is therefore selected.




First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

BP appeals the BEL award to claimant,a retail paint store in Tupelo,Mississippi.BP asserts the Settlement Program erred

when it failed to obtain sales and use tax returns of claimant.This issue has been reviewed and considered by other panelists in other related appeals and determined adversely to BP. See e.g.,decisions in claim numbers

,dated August 9,2017.This panelist is in agreement with those decisions and finds no reason to depart from

them.Accordingly,the decision of the Claims Administrator is affirmed and the appeal of BP is denied.

2017-2949




First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

BP appeals a BEL award in amount of $90,471.97 pre-RTP to a Waveland, Mississippi paint store, asserting three grounds consistently rejected by prior decisions of this panel (See Claim IDs ) In the interest of efficiency, these decisions are adopted herein. Accordingly, the award by the Settlement Program, which is in accord with Claimant's final proposal, is affirmed.

2017-2950




First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):


2017-2951


Claim ID

The Settlement Program awarded $56,054.63, pre-RTP to the Claimant’s retail facility in Daphne, Alabama. The AVM methodology was used to resolve matching issues. BP appeals, raising three assignments of error. First, BP argues that the Settlement Program incorrectly allocated COGS by Claimant’s manufacturing and purchasing divisions to the Claimant’s individual stores. BP also contends that the program accountant erroneously consolidated certain variable expenses into a single expense line item. Finally, BP maintains that the Settlement Program failed to require Claimant to provide sales and use tax returns. BP’s first assignment of error is based on Claimant’s business model which includes divisions for manufacturing and purchasing paint as well as retail and commercial sales. BP argues that Claimant incurred four specific categories of expenses at the division level which were allocated by the Settlement Program to each retail store based on the store’s percentage of total COGS. BP argues that these expenses were not incurred by any of the individual stores and should not have been included on the P&Ls. Claimant responds that the reviewing accountants went into great detail investigating the Margin Variance methodology used in its P&Ls, making a number of adjustments including the COGS accounts that are the subject of BP’s appeals. Indeed, the Calculation Notes explain the adjustments and their relationship to the individual stores:

Per Doc ID: , the Claimant explained that the detailed store level P&L statements referenced above, include financial activity before certain margin adjustments are applied. These margin adjustments are used by management to track certain costs related to inventory, inventory valuation, and to assist in decision making surrounding COGS at both the division and store-level (Global Note Contact ID ). A portion of these adjustments are allocated from the manufacturing division to the stores division (A100) as a whole, rather than to the individual store P&Ls. The retail stores are treated as their own consolidated operating entity. All management adjustments were made in order to true-up costs and arrive at the actual COGS for the products sold at the store (Global Note Contact ID . The Claimant provided the following information about each margin adjustment recorded at the division-level in Doc ID: and Global Note Contact Ids: : 1. Overbill & Overbill Contra - A standard price for items sold is seteach year (i.e. standard costing). In certain instances, this standardcost must be adjusted. For example, actual costs of items or rawmaterials may fluctuate throughout the year. These costs usually goup, but can also go down depending on seasons, climate, freight, etc.2. APDC - Associated products in the distribution center. Instead ofshipping products directly multiple stores, the Claimant orders items

and bulk ships them to a regional distribution center. Items are then delivered from this distribution center to the stores to replenish what is sold. By purchasing and shipping small ticket items in bulk, the Claimant is able to secure various volume discounts and rebates from these suppliers. 3. LIFO Adjustment - Inventory adjustments made in the normalcourse of business to account for the Last In First Out method ofaccounting.4. Vendor Credits - Volume discounts, rebates and other product costreductions earned during the manufacturing process.DWH Accountant determined that all four of these items are directcosts to the filing facilities, and need to be allocated to the store-levelP&Ls. The Claimant also explained that “Other-COGS” wasrecorded at the division level. However, this account relates toeliminations upon consolidations for tax purposes, and is notindicative of true cost savings at the store level (Doc ID: ,pg. 1).

De novo review sufficiently persuades this panelist that the margin adjustments were a reasonable exercise of the vendor accountant’s professional judgment. Claimant’s P&Ls include a line item entitled “72_ALL_OTHER.” This category includes a number of miscellaneous expenses which the program accountant classified as 100% fixed. BP argues that this category includes repairs and a number of other expenses that are variable. BP appears to argue that this line item should have been allocated 50% fixed and 50% variable. Claimant responds that it has received over 80 BEL awards and that BP has not questioned the classification of the “72_ALL_OTHER” expenses in numerous companion appeals. Beyond that, Claimant points out that this expense category consists of expenses that are fixed as opposed to variable in nature. The Calculation Notes reflect that the program accountant examined this category and determined that the expenses were properly classified as fixed:


Although BP argues that this error reduces Claimant’s compensation, no misapplication of Exhibit 4D has been shown. This assignment of error is without merit. BP also argues that as a retail business, Claimant was obligated under Exhibit 4A to provide monthly sales and use tax returns for the Benchmark Period, 2010 and if necessary, 2011. BP complains that the Settlement Program erred in failing to require the Claimant to furnish these documents because it is a retail store. BP argues that Claimant is not entitled to compensation absent the submission of these documents but fails to explain how the sales and use tax returns would have altered the award. Claimant points out that the Settlement Program assigned it NAICS Code 325510 - Paint and Coating Manufacturing. This industry comprises establishments primarily engaged in mixing pigments, solvents and binders into paints and other coatings and/or manufacturing allied paint products such as putty and paint remover. The Settlement Program presumably assigned this code based on the fact that Claimant is engaged in the manufacturing and purchasing of paint as well as its retail and commercial sales. Hence, Claimant argues that sales and use tax returns are




First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

Reasons uploaded

2017-2952

CLAIMANT:CLAIM ID:

This BEL claim is for Claimant’s Clarksdale, Mississippi facility. The Settlement Program(SP) awarded Claimant the sum of $32,604.80 (pre - 0.25 RTP) and BP appeals on the“attestation requirement” argument and on the SP’s alleged failure to obtain Claimant’s salesand use tax returns.

BP’s “attestation requirement” argument is without merit. BP’s allegations regardingClaimant’s sales and use tax returns has been raised in many prior appeals decided by theAppeal Panel. In the Appeal Panel decision in Claim ID 307905, the issue was discussed asfollows:

“BP also argues that as a retail business, Claimant was obligatedunder Exhibit 4A to provide monthly sales and use tax returns forthe Benchmark Period, 2010 and if necessary, 2011. BP complainsthat the Settlement Program erred in failing to require theClaimant to furnish those documents because it is a retail store. BP argues that Claimant is not entitled to compensation absentthe submission of these documents but fails to explain how thesales and use tax returns would have altered the award.

Claimant points out that the Settlement Program assigned itNAICS Code 325510 - Paint and Coating Manufacturing. Thisindustry comprises establishment primarily engaged in mixingpigments, solvents and binders into paints and other coatingsand/or manufacturing allied paint products such as putty andpaint remover. The Settlement Program presumably assigned thiscode based on the fact that Claimant is engaged in themanufacturing and purchasing of paint as well as its retail andcommercial sales. Hence, Claimant argues that sales and use taxreturns are not required. This was a reasonable approach by theSettlement Program based on the overall nature of Claimant’sbusiness operations. No error has been shown.”

After de novo review, this Panelist adopts the reasoning in the above-quoted Paneldecision and concurs that the SP made no error. Claimant’s Final Proposal prevails.




First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

BP appeals a BEL award of $171,599.54 to a Dickinson, Tx paint store. Its two asserted grounds for appeal have been asserted many times in identical fashion in other matters involving other stores owned by the same Claimant. In the interest of brevity and efficiency, this panelist hereby adopts the decisions of prior panels rejecting BP's arguments (See, eg, Claim ID's ). Accordingly, Claimant's final proposal, affirming the entire award, is hereby chosen in this "baseball" appeal.

2017-2953




First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

Reasons uploaded

2017-2954

CLAIMANT:CLAIM ID:

BP appeals the BE: award of $360,126.78 (pre - 0.25 RTP) to Claimants Galveston,Texas facility on the following grounds:

1) Claimant did not operate a facility in Galveston at the time of the Spill;2) The Settlement Program (SP) erred in the allocation of the costs of goods

sold (COGS);3) The SP misclassified expenses;4) The SP failed to obtain sales and use tax returns.

Issue 1

BP asserts Claimant’s facility, located at was not constructeduntil 2013. BP is correct. However, from 2007 until December 2013, Claimant’s facility inGalveston was located at . That location was operating at times pertinent tothe Settlement Agreement and the submitted P&L’s are for that location. BP’s appeal on thisissue is without merit.

Issue 2

BP has raised this exact issue in many other appeals involving this Claimant. In a priorAppeal Panel decision (Claim ID ), the Panelist provided superb analysis of this issue. After de novo review, the Panel adopts that analysis and reasoning. BP’s appeal on this issuefails.

Issue 3

BP argues that certain expenses were misclassified. BP made that same argument on theappeal of Claim ID (cited above). For the reason set forth by the Appeal Panelist in thatClaim and following a de novo review, this Panelist finds no error by the SP. Further, BP itself says its “proper classification” would reduce the Compensation Amount by 0.00129 percent. It isnoted BP’s Final Proposal is $0.00.

Issue 4

This issue has been raised by BP in many of BP’s appeals involving this Claimant. Forthe reasons cited by this Panelist in Claim ID , BP’s appeal on this issue is without merit.

For all of the reasons cited above, the Panel finds that Claimant’s Final Proposal is theproper result.




First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

BP appeals a BEL award in the pre-RTP amount of $67,757.63 to a Gretna, La paint store on four grounds. The first three grounds have been asserted identically in many prior appeals involving other stores of this Claimant, and in the interest of brevity and efficiency this panelist adopts the reasoning in prior panel decisions (see, eg, and

) in rejecting BP's arguments. As to BP's fourth asserted grounds for appeal, it, as in Claim ID , asserts that certain bad debt expenses of Claimant should have been reallocated to prior years by the Program accountants based upon certain speculative conclusions. For the reasons stated in the decision in Claim ID , this panelist is unwilling to

2017-2955

undermine the broad discretion afforded the Program accountants by Policy 495, especially since the AVM methodology was already used in this case to sufficiently match revenues and expenses. Accordingly, Claimant's final proposal, affirming the award in its entirety, is hereby chosen in this "baseball" appeal.




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Law Firm

II. DECISION
















No error.

Comment (optional):

Reasons uploaded

2017-2956

CLAIMANT:CLAIM ID:

BP appeals the Settlement Program’s award of $40,627.56 (pre - 0.25 RTP) toClaimant’s Madison, Alabama facility on three grounds:

1) The “attestation issue”;2) Misclassification of expenses;3) The Settlement Program’s failure to obtain Claimant’s

sales and use tax returns.

All three of BP’s appeal grounds have previously been rejected in BP’s appeals of manyawards to other Claimant facilities. For example, see the clear and concise Written Reasonsfrom the Appeal Panel in Claim ID . After review of this record, this Panelist sees nonew issues or arguments and therefore adopts the Written Reasons in Claim ID .

While BP’s appeal is denied, the Panelist commends BP for a Final Proposal whichdiffered from the Compensation Amount by only $537.36.




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II. DECISION
















No error.

Comment (optional):

BP appeals a BEL award in the pre-RTP amount of $47,864.72 pre-RTP to a Mobile, Al paint store on two familiar grounds unsuccessfully asserted in many prior appeals. In the interest of brevity and efficiency, this panelist hereby adopts the decisions in Claim IDs in rejecting the grounds for BP's appeal. Accordingly, Claimant's final proposal, affirming the entire award, is hereby chosen in this "baseball" appeal.

2017-2957




First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

BP appeals a BEL award in the pre-RTP amount of $96,835.63 to a New Orleans, La paint store, asserting three grounds that it has consistently asserted unsuccessfully in prior appeals involving the same Claimant. In the interest of brevity and efficiency, this panelist hereby adopts the reasons rejecting BP's arguments as contained in Claim IDs

. Accordingly, Claimant's final proposal, affirming this entire award, is hereby chosen in this "baseball" appeal.

2017-2958




First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

BP appeals a BEL award in the pre-RTP amount of $84,452.05 to a New Orleans, La paint store asserting three grounds consistently rejected by prior decisions of this panel (See, eg, Claim IDs ). In the interest of brevity and efficiency, those decisions are hereby adopted. Accordingly, Claimant's final proposal, affirming the entire award, is hereby chosen in this "baseball" appeal.

2017-2959




First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

Reasons uploaded

2017-2960

CLAIMANT:CLAIM ID:

This is a BP appeal of the Settlement Program’s (SP) award to Claimant’sHarvey, Louisiana facility. All of BP’s issues on appeal of this claim werepreviously raised by BP in an appeal in Claim ID . This Panel hasconducted a de novo review of the record in this instant appeal and hasreviewed the written reason authored by the Panel in Claim ID . ThePanel adopts the written reasons submitted by the Panel in Claim ID and determines that BP’s appeal is without merit and Claimant’s FinalProposal is the correct result.




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II. DECISION
















No error.

Comment (optional):

BP appeals a BEL award in the pre-RTP amount of $190,996.92 to a Plant City, Fl. paint store on four grounds. The first three grounds have been asserted identically by BP in multiple prior appeals. After a de novo review of this record, this panelist agrees with the rationale applied in prior appeal decisions (See, eg, in denying these arguments and adopts them by reference. In its fourth argument, BP asserts that the Program accountants failed to address certain cross-year bad debt expenses of Claimant. Specifically, BP claims that the Program should have reallocated Claimant's 2011 bad debt recovery expenses to

2017-2961

April of 2010, because Claimant's relatively smaller 2011 annual debt expense "implies" that it is related to the large spike in bad debt expense reported in April of 2010. As pointed out by Claimant, the Program accountants reviewed some 135 of Claimant's locations and spent a considerable time in dialogue with Claimant's representatives to understand and verify their accounting policies. Additionally, this claim was subjected to the AVM methodology of Policy 495, requiring allocation of expenses to only "sufficiently" match them with revenues. The discretion granted these accountants by Policy 495 cannot be undermined on this record. Accordingly, Claimant's final proposal, affirming the entire award, is hereby chosen in this "baseball" appeal process.




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II. DECISION
















No error.

Comment (optional):

Reasons uploaded

2017-2962

CLAIMANT:CLAIM ID:

The Settlement Program awarded Claimant’s Ruston, Louisiana facility the sumof $99,088.06 (pre - 0.25 RTP). BP appeals asserting three common issues which BPhas raised in numerous other appeals of awards to this Claimant. The Written Reasonsdrafted by a fellow Appeal Panelist in Claim ID provide clear and concisereasons why BP’s appeal fails. After review, this Appeal Panelist adopts those reasonsand selects Claimant’s Final Proposal as the correct result.




First Middle



Law Firm

II. DECISION

















No error.

Comment (optional):

This panelist adopts and concurs in the unanimous decision previously uploaded herein.

2017-2963

1

Reasons for Decision Claim # August 30, 2017

Claimant, is a non-profit corporation whose primary mission is to support

Claimant filed a BEL Claim and was awarded $2,791,379.56 pre-RPT. Both BP and Claimant appeal the Settlement Program’s award.

Summary of BP’s Issues

First, BP argues that donations received by Claimant are not revenue. Second, BP argues that a five-year $5 million pledge received in

September 2009 should have been allocated over 5 years rather than being recorded in September 2009.

Third, BP argues that donations associated with

tickets should have been allocated evenly over the seasons.

Lastly, BP argues that the Program failed to match expenses with

corresponding distributions of donations.

Analysis of BP’s Issues

First, the Fifth Circuit has held that donations to non-profits are revenue. BP attempts to distinguish this holding by arguing that Claimant is simply a pass-through conduit for these donations. This position was put forth by BP in a similar appeal (Claim involving a non-profit. For the Reasons set forth in that Appeal Panel’s decision, this Panel rejects BP’s argument. Second, regarding BP’s argument that the September $5 million pledge should be allocated over 5 years, the Fifth Circuit has recently held that, except for error, Policy 495 requires that revenue be recorded in the month(s) in which it was received. Reallocation (smoothing) of revenue is prohibited. As such, this Panel declines to follow BP’s suggestion, again approving of the Reasons submitted in Claim Likewise, BP’s third suggestion -- that donations related to

tickets be smoothed over the respective seasons – is prohibited by the Fifth Circuit’s recent Policy 495 decision.

2

Lastly, BP’s position that the Program failed to adequately match expenses to revenues is rejected by this Panel. The Fifth Circuit has held that where a claimant’s P&Ls are determined to be insufficiently matched, the AVMM shall be applied. The Program followed that mandate in the instant appeal.

Summary of Claimant’s Non-Tourism Issues

First, Claimant contends that the Program erroneously coded certain expense accounts. Specifically, Claimant argues that the following expenses should have been classified Fixed rather than Variable: Arbitration Fees, Hurricane Repairs, and Supplements.

Second, Claimant argues that the Program erroneously moved

revenue from the month(s) in which it was received and reallocated it on an annual basis.

Analysis of Claimant’s Non-Tourism Issues First, with respect to the classification of certain expenses, this Panel has reviewed the nature of the three expenses listed above and agrees with Claimant that they should have been coded as Fixed rather than Variable.

Arbitration fees consist of payments to attorneys, accountants, and experts. These payments are for Professional Services, which is a Fixed expense according to Exhibit 4D.

Regarding Hurricane Repairs, although the Program classified the

insurance proceeds as Other, the repair expenses associated with that revenue were classified as Variable. Generally, expenses that are variable are ones that change in relation to the level of sales by a business. Fixed expenses are those costs that the business must expend regardless of the sales level. Here, repairing the damage caused by a hurricane had no relationship to sales, nor were these repairs regular and recurring.

And as to Supplements, these payments were made based

upon a contractual agreement with an independent contractor. The payments were a fixed annual amount paid in equal monthly installments. Thus, these expenses are more properly payments for Contract Services, which is a Fixed expense under Exhibit 4D. Second, this Panel agrees that the Program erroneously reallocated revenue for reasons other than error. Per the District Court’s recent

3

instructions, this matter will be remanded for reevaluation in accordance with the Fifth Circuit’s Policy 495 decision and the District Court’s Orders.

Claimant’s Tourism Arguments In addition to the above accounting issues, Claimant argues on appeal that it should have been designated Tourism. Tourism is defined in Exhibit 2 of the Settlement Agreement as “businesses which provide services such as attracting, transporting, accommodating or catering the needs or wants of persons traveling to, or staying in, places outside their home community.” Exhibit 2 provides a list of NAICS codes that are presumed Tourism. Claimant’s code does not appear on that list. That said, Policy 289 v.2 provides that a claimant may still be considered for Tourism if the claimant’s business meets the definition set forth in Exhibit 2. Further, Policy 286 v.2 provides that the “[c]haracterization of a claimant’s business as Tourism vs. Non-Tourism shall be based on the totality of circumstances, including consideration of the business’ activities during the Benchmark Period and the Class Period.”

In support of its Tourism position, Claimant sets forth the following rationale: Claimant’s location is a tourist destination a. Claimant argues that is a recognized tourist attraction. is advertised as an attraction to tourists on the official

tourism website. Claimant owns a number of facilities located in and around b. One of those campus attractions is

Claimant provided the funding for renovating Visiting is listed as one of the “Free Things” to do in on official tourism website.

c. Another attraction is For a number of years, has hosted events which attract non-locals. Additionally,

events (e.g. concerts) take place at

4

Claimant’s revenue comes largely from non-locals a. From 2007 through 2011, 42% of Claimant’s total revenue was directly tied to individuals residing more than 60 miles from

Claimant’s activities attract non-locals a. In order to attract non-locals to events, Claimant sponsors the

which is a speaking engagement Most of the stops on the tour are in areas

outside of b. In a further effort to attract non-locals to Claimant has established chapters in numerous locations outside of These chapters encourage non-locals to support and encourages non-locals to visit Claimant’s activities cater to or accommodate non-locals As a preamble to the following list of activities, according to Claimant, 58% of all -related donations were made by non-locals. a. Claimant facilitates the purchase of a majority of which are non-locals. b. Claimant also accommodates the needs of visiting by administering the ticket program whereby

are distributed c. Claimant owns the following portions of

In light of the above % of sales to non-locals, Claimant provides a significant number of to non-locals. d. Claimant also owns all of the As part of that ownership, Claimant provides and bears the expense of all

. Based on the above-referenced data, a significant number of visitors to these are non-locals. e. Claimant owns the licensing rights for the Claimant provides Approximately 33% of all sales are to non-locals. As such, Claimant’s cater to a significant number of non-locals.

5

f. Claimant has constructed numerous parking lots which on are filled with non-locals’

BP’s Tourism Rebuttal First, BP focuses on Claimant’s stated mission, which is to defray the cost of more than retire present indebtedness, and help maintain and improve BP argues that

and retiring indebtedness have nothing to do with attracting or accommodating or catering to non-locals. Claimant’s mission is to support and raise funds for not attract tourists. Second, with respect to the source of revenue, BP contends that receiving donations from non-locals does not equate to accommodating or catering to non-locals. The person who makes a donation is not traveling or staying outside of his or her community when the donation is made, and Claimant is not providing tourism services at the time of the donation.

Claimant’s Tourism Reply First, Claimant argues that there is no requirement in the Settlement Agreement that a business engage only in tourism activities. Claimant makes reference to several Appeal Decisions where the % of tourist-related activity was less than 100%. Second, as to the mission of retiring indebtedness, Claimant notes that the majority of this debt was incurred in building or improving Claimant-owned which Claimant argues accommodates and caters to a significant number of non-locals. Hence, retiring that debt has a direct link to tourism. Lastly, Claimant argues that the source of revenue is relevant in evaluating the totality of circumstances.

Panel’s Tourism Analysis Claimant contends that it satisfies the “totality of circumstances” criteria for receiving a Tourism designation as set forth in Policy 286 v.2. Although not binding on Appeal Panelists, virtually all, including the members of this Panel, have followed the “totality of circumstances” standard. Hence, this Panel’s task is to determine whether or not the totality of circumstances support a finding that Claimant provided services to persons traveling outside their home community.

6

If this Panel were to base its decision solely on the source of Claimant’s revenue, Claimant’s argument might fail. This Panel agrees with BP that in this instance, the location of donors is mostly irrelevant. BP correctly points out that the non-locals donors are not traveling or staying outside of their community when they make the donation. While the source of revenue has been critical to a determination in other appeals as to whether or not a claimant catered to non-locals, those appeals involved situations in which the non-local was physically present at the claimant’s location (e.g., restaurant, water park, grocery store). In other words, at the moment when the revenue changed hands, the non-local was outside of his or her community. Somewhat more relevant, but not sufficient by itself, is Claimant’s location. This Panel concedes that what constitutes a tourist attraction is probably in the eye of the tourist. That said, a

and a are at best unusual tourist venues. Most persuasive to this Panel regarding Tourism is the fact that Claimant engages in activities that provides services to persons traveling outside of their community. There can be little doubt that a significant portion of Claimant’s activities are directly related to accommodating the needs of non-locals. Claimant owns and operates a substantial portion of venues that are frequented by non-locals. These non-locals are parking in lots built and owned by Claimant. They are built and made available by Claimant. And some of them are

provided by Claimant. BP’s only counter to this fact is that Claimant engages in many other activities that are not related to tourism – This may be true. But this Panel agrees with Claimant that the Settlement Agreement doesn’t place a % requirement on Claimant’s tourism activities. This Panel recognizes that a number of Appeal Panels have required that the Claimant’s relationship to tourism be more than just minimal or incidental. However, in the instant matter, Claimant’s partial ownership and operation of the venues frequented by non-locals constitutes a direct connection to tourism, and the scope of Claimant’s tourism-related activities is significant. In light of the above, this Panel finds that under the totality of circumstances, Claimant satisfies the definition of Tourism set forth in the Settlement Agreement.

7

Conclusion

After a de novo review of the record, this three-member Panel unanimously issues the following instructions: 1. Because the Program reallocated revenue for reasons other than error, this matter is remanded with instructions that the Program reevaluate the Claim in accordance with the District Court’s recent Policy 495 Orders. 2. On remand, the Program shall reclassify the following expenses as Fixed: Arbitration Fees, Hurricane Repairs, and Supplements. 3. Further, on remand, the Program shall designate Claimant Tourism.




First Middle



Law Firm

II. DECISION

















No error.

Comment (optional):

The Construction Methodology was applied to this Claim. Per the District Court's instructions, this matter is remanded for

re-evaluation in accordance with the Court's Orders.

2017-2964




First Middle



Law Firm

II. DECISION
















No error.

Comment (optional): BP appeals the BEL award to claimant,a dialysis provider located in New Orleans,Louisiana. BP asserts that because of the nature of claimant's services,which provides life-sustaining medical treatments,its revenue

pattern is "inelastic" in that claimant is not affected by the vicissitudes of the market place.Its product is always in demand.BP argues there is no possibility the oil spill of April 2010 would have caused economic damage to claimant's

business.This argument,while novel,is not persuasive and ignores the clear terms of the Settlement Agreement.Accordingly,the decision of the Claims Administrator is affirmed and the appeal of BP is denied.

2017-2965




First Middle



Law Firm

II. DECISION

















No error.

Comment (optional):


found that Policy 495 was triggered and applied the Professional Services Methodology. The claim is remanded to the Settlement Program for reassessment given the decision of the U. S. Court of Appeals for the 5th Circuit requiring the

AVMM to be applied in such circumstances.

2017-2966

The appeal presents other issues but the issues arise from application of the Professional Services Methodology. Since the AVMM must be applied, BP’s issues and Claimant’s responses are not addressed by this opinion requiring a remand.




First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

Claimant operates veterinary hospitals and clinics throughout the U.S. (and three Canadian provinces) and filed a BEL claim for its facility in Sarasota, Florida (Zone D). The Settlement Program awarded $46,328 (pre-RTP) using the BEL methodology. Dissatisfied, Claimant appeals the award and submitted a final proposal of $402,340. Claimant takes issue with the Program’s loss periods in general and in its failure to extend Claimant’s Compensation Period through December 2012. De novo review reveals that Claimant did not provide tax returns for 2007 or 2008 and, thus, the Program could only used 2009 as the Benchmark Period. Similarly, Claimant provided profit and loss statements through

2017-2967

2011 but none for 2012 upon which the Program could base additional compensation. Moreover, as BP correctly notes, there is no provision in the Settlement Agreement that permits extending the Compensation period into 2012. Beyond that, Claimant disagrees with the Program’s allocation of fixed and variable expenses, particularly as they relate to payroll. The panel has reviewed the allocations and finds no error on the part of the Program. There is no support in the record for Claimant’s final proposal and, therefore, the award as represented by BP’s final proposal is selected as the correct result. The appeal is denied.




First

Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned








No error.

Comment (optional):

The Settlement Program denied Claimant Subsistence claim because he failed to schedule a Field Visit. Claimant appeals

stating that he received the Field Visit Notice when he was working offshore and unable to access it, and that when he returned, his claim had been denied. BP asserts that Claimant’s appeal should be denied because at the time he received

the Field Visit Notice, he was represented by counsel who is highly experienced with the Subsistence claims process.

Claimant’s counsel would have received a copy of the notice and could have scheduled the Field Visit for a date after Claimant returned or informed the Settlement Program that Claimant was away. Given that he was represented, says BP,

Claimant may not now complain that he was not on notice of the requirement that he schedule a Field Visit. However, the file reflects that Claimant’s attorney wrote a letter to Claimant stating that he had made multiple attempts to contact client

at the time of Claimant’s scheduled interview, but was not able to reach Claimant, and simultaneously in that letter withdrew from representing Claimant (Doc. ID #

This panelist certainly can agree with BP that this attorney is “highly experienced” based on the number of Subsistence

claims he has filed. However, the flip side to that is maybe counsel has too many of these claims to be able to handle them all appropriately. Claimant should not be penalized because of that. Accordingly, this panelist feels that it is fair, just and in

the spirit of the Settlement Agreement to give this Claimant one more opportunity to schedule a Field Visit, and therefore,

2017-2968

the claim is remanded for that purpose.

.




First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):


2017-2969


Claim ID

a fiber box manufacturer, appeals the

denial of its claim, asserting the Program erroneously classified Claimant as a Startup company

(started within 18 months of the spill). asserts the "business had been identical in

substance from its inception in 1994 to specifically in 2004, when the three current officers and

family members began the management of the company through 2009, when there was a

REORGANIZATION (only for tax purposes) with no changes to customers, products, vendors,

or any sale of assets."

The relevant facts are as follows: A company named

originated in 1992 for the purpose of selling furniture supplies in Mississippi. The owners of

were . In 2004, 3 children became officers with

. In 2009, according to Claimant, the entity was " renamed"

The owners of are the 3 children of the owners

of S . These 3 children became officers at in 2004 and remained as officers

with after its formation in January 2009. Claimant contends that was a

mere continuation of , with the same location, customers, vendors and business model.

Accordingly, Claimant characterizes the reorganization into the successor company as nothing

more than the restructuring of a closely held family business for tax purposes. Claimant points to

several Panel decisions as support for its contention that a company can bootstrap onto the

operations of a predecessor entity when there is simply a change in business structure with no

change in the business operation.

Unfortunately for claimant there is a key factor that makes this case distinguishable from those

addressed in the Panel decisions cited by Claimant in its Appeal Memorandum.

owned and operated the assets necessary for the fabrication of the cardboard products, whereas

the successor entity performs the manufacturing but does not own the assets necessary for

manufacturing. In fact, Claimant acknowledges that, although it performs daily operations, the

company " holds no physical assets". Claimant characterizes this as " constructive ownership" of

the assets and contends there was no reason to transfer title of the assets from the original entity

to the successor company because this would have "defeated the value of the restructuring made

to avoid potential liability issues". Nevertheless, the business reason why the assets were not

transferred is irrelevant. did not own the same assets as the original company and

these assets were not some extraneous piece of movable property, they were fundamental to the

manufacture of claimant's product. were 2 different entities and the

successor company cannot bootstrap onto the operation of the original entity as if one was a mere

continuation of the other. The Program correctly classified Claimant as a Startup business.

Accordingly, the denial of this claim is affirmed.




First

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Law Firm

II. DECISION

Denial Upheld

Denial Overturned








No error.

Comment (optional):

Claimant,a resident of Luling,Louisiana,appeals the denial of his Subsistence claim on the basis he failed to submit proper

documentation to fish for certain listed species,including crab and finfish.Claimant asserts he provided such documentation including his lifetime license issued by the State of Louisiana.The Settlement Program(SP) denied the claim in its entirety on

the grounds claimant did not show how crab or finfish were properly harvested. BP argues the SP properly applied policy

492 in denying the claim in its entirety and that claimant's harvest totals are implausible. A review of the record discloses that after denial notices issued,claimant removed crab as a harvested species and relied on its original submission that all

species were harvested by means of rod and reel.In this procedural posture this claim is no different from so many others where remand has been decreed in other panel decisions.This panelist defers ruling on BP's implausibility argument until it

is first addressed by the SP.Accordingly,this claim is remanded to the Claims Administrator for further evaluation and processing.

2017-2970




First

Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned








No error.

Comment (optional):

Claimant,a resident of Port Sulphur,Louisiana,appeals the denial of his Subsistence claim on the basis he failed to submit

proper documentation to fish or hunt for certain listed species, including crab and duck.Claimant asserts he produced such licenses showing he was authorized to harvest all claimed species.The Settlement Program(SP) denied the claim in its

entirety on the grounds the documents did not show he was properly licensed to harvest all claimed species,particularly

crab and duck.BP argues that claimant failed to submit timely,proper documentation and that the SP correctly applied policy 492 in denying the claim in its entirety.A review of the record discloses after the denial notice issued claimant

amended his claim to remove crab and duck as claimed species.In this procedural posture this claim is no different from so many others where remand has been decreed in other panel decisions.Accordingly,this claim is remanded to the Claims

Administrator for further evaluation and processing in light of the foregoing.

2017-2971




First

Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):


2017-2972

Claim ID

Claimant a pedicab operation in Key West, Florida, appeals the denial of his BEL claim following a Fraud Waste and Abuse review. The pertinent underlying facts are these:

On 11/03/2014, the Claimant submitted a BEL Claim Form. In support of his claim, on 11/04/2014 the Claimant submitted a 2009 Form 1040 with a Schedule C-EZ (the “Original 2009 Form 1040”) and 2009 P&Ls which reported $34,700 in Gross Receipts, $800 in Total Expenses, $33,900 in Total Income. 2009 was Benchmark Period.

The Settlement Program (“the SP”) subsequently obtained a 2009 IRS tax transcript reflecting that originally filed his 2009 Form 1040 on 04/15/2010 but later amended his 2009 Form 1040 on 6/01/2012. The IRS tax transcripts for 2009 reported Adjusted Gross Income, Taxable Income, Self-Employment Taxable Income, and Total Self-Employment Tax that were different than the 2009 Form 1040 that the Claimant provided to the Settlement Program as reflected in the below table:

2009 Original Tax Return 2009 Tax Transcript

Adjusted Gross Income $31,505 $18,209 Taxable Income $22,155 $0 Self-Employment Taxable Inc. $31,307 $12,306 Total Self-Employment Tax $4,790 $1,883

In spite of this discrepancy, the Settlement Program deemed the Claim eligible for payment and issued an Eligibility Notice on 08/21/2015. However, on 09/02/2015, BP appealed the award amount citing the discrepancies in the financial records including, but not limited to, its tax returns, tax transcripts, bank statements, and profit and loss statements. On 11/10/2015, this panelist remanded the claim to the Settlement Program for further investigation of the tax discrepancies.

After remand and the SP’s request that produce a copy of his full 2009 Amended Form 1040, submitted a copy of it. In Part II of the form, entered his explanation of “Changes to Income, Deductions, and Credits” stating, in pertinent part, “Taxpayer erroneously reported income on Schedule C for months that he did not work due to illness.”

The Amended Form 1040 also included a Schedule C that reported Gross Receipts of $20,100 and Total Expenses of $6,775. These figures differed from those within the Original Form 1040, which included a Schedule C that reported Gross Receipts of $34,700 and Total Expenses of $800.

The 2009 P&Ls, which reconcile with the originally filed 2009 Tax Return, indicate that they were actually created on 10/16/2014, over two years after the Claimant filed the Amended 2009 Form 1040. Despite this, Claimant swore under penalty of perjury on its Claim Form

“… that documents attached to or submitted in connection with this form and the information contained therein are true, accurate, and complete to the best of [its] knowledge…”

Claimant contends in his submission on appeal that he filed the Amended Form 1040 “in error,” after recalling that there were three months where he did not work or earn any income due to illness. He claims “error on accountant’s part in the calculation of the income by reviewing incomplete financial documentation provided by Claimant at the time, and advising Claimant to amend the 2009 tax returns.”

In the SP’s “Summary of FWA Findings,” contention about error due to the accountant’s reliance on incomplete information was rebutted as follows: “the Claimant’s Original 2009 Form 1040 actually agreed with the 2009 P&Ls. For this reason, the Claimant must have originally provided its accountant with complete financial documentation. Moreover, the Amended 2009 Form 1040 included a specific statement that the amendment to the 2009 Form 1040 was made because the “taxpayer erroneously reported income on Schedule C for months that he did not work due to illness”, which further refutes this argument because the Amended 2009 Form 1040 appears to indicate that the original 2009 Form 1040 had too much financial information based on the Claimant’s reporting of income to the IRS for months that the Claimant was purportedly not working. As such, it was clearly not an “error” that the tax return was amended; rather, it was intentional following the advice of the Claimant’s accountant.”

counsel posits on appeal, “Why would Claimant amend his 2009 tax return, if this actually reduces the actual value of his claim by over fifty-percent?” This argument misses the point. The Settlement Program does not contend that amended the 2009 Form 1040 to garner a higher compensation. Rather, he amended the 2009 Form 1040 to more accurately reflect his business revenues, but then intentionally withheld the Amended 2009 Form 1040 because it would have negatively affected the claim value. He used the original 2009 Form 1040 with the SP, to obtain a higher award, but withheld from it the Amended Form 1040 he used with the IRS to lower his tax burden. amended the original 2009 Form 1040 less than 2 months before submitting his BEL Claim. Therefore, knew that the original 2009 Form 1040 contained inaccurately higher Gross Receipts and lower Expenses. Despite this, chose to submit the original 2009 Form 1040 to the Settlement Program rather than the Amended Form 1040. This represents a clear attempt to knowingly submit materially misleading financial information to the Settlement Program in support of the Claim.

The SP, through its FWA review, is entitled to deny a claim when there is clear and compelling evidence that a claim contains false, misleading, forged or fabricated documents, information or statements material to the evaluation of the claim, which does not appear to result solely from an error or mistake.

That level of proof is established by the record and the denial is upheld. Appeal denied.




First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned








No error.

Comment (optional):

Claimant, , grows cotton, soybeans, wheat, and corn in Belzoni,

Mississippi. The Settlement Program denied Claimant’s BEL claim after application of Policy 495’s Agriculture Methodology. Claimant appeals on the grounds that the Settlement Program erred in applying the Agriculture Methodology to its claim.

This case is directly impacted by the Fifth Circuit Court of Appeals decision dated May 22, 2017 (the “495 Opinion”), which stated, in part, “Because the AVMM is consistent with the text of the Settlement Agreement, but the four ISMs are not, we

AFFIRM as to the AVMM, REVERSE as to the ISMs, and REMAND for proceedings consistent with this opinion.” This was followed by the May 25, 2017 Order of the District Court that the consideration of any BEL claims currently on appeal

before the Appeals Panel involving ISMs shall be remanded to the Settlement Program for further consideration and processing in accordance with the 495 Opinion of the Fifth Circuit Court of Appeals. Here, the Settlement Program applied

the Agriculture Methodology, one of the prohibited ISMs. Accordingly, this matter is hereby remanded for further

consideration by the Settlement Program in light of the 495 Opinion and the May 25, 2017 Order of the District Court.

2017-2973




First

Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

Claimant filed a subsistence claim for loss of harvest near her home in Slidell, Louisiana. The claim was denied three times

for failure of the Claimant to submit proof she was licensed to fish the species she listed on her claim as required by Exhibit 9. This is not an amended claim where Claimant amended her claim to omit specific species. In this claim the Claimant

submitted a list of her basic fishing licenses but none of them were valid and effective at the time of the spill. Of note, the

Claimant's attorney did not brief the issue. The denial is affirmed.

2017-2974




First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

Claimant is a health care provider that filed a multi-facility claim. This specific location is in Port Charlotte, Florida, Zone C.

The claim was analyzed under the General BEL framework and failed causation. Claimant asserts that it passed the Decline-Only Revenue test and has now submitted Customer Mix data to prove it is entitled to an award. The record does not

support the claim. The Vendor Accountants have reviewed this same data on three occasions and denied the claim every

time. For example, the Claimant identified only one non-local customer in 2009 and none for 2010 that provided revenue. The claim remains denied.

2017-2975




First

Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):


2017-2976

Claim ID

Claimant appeals the denial of his Subsistence claim. He timely filed no Opening Memorandum, but after BP filed its Opposition Memorandum noting that fact and also detailing all of the inconsistencies and improbabilities in the various versions of his claim submitted to the Settlement Program, he filed ten days later a short statement captioned “Opening Memorandum.” Claimant is obviously an avid fisherman holding all of the necessary licenses for the species of finfish he claimed, but ample bases for the denial are set out in the report of the Field Team about its September 29, 2016 visit with Claimant. Pertinent portions of that report are these:

2. The Claimant reported 40 percent of his fishing was conducted from hisbrother’s vessel and 60 percent was conducted from shoreline locations.

3. The Claimant reported fishing three to four days per week while working40 hours per week. The Claimant stated that he fished all 12 months of theyear.

4. The Claimant reported the use of rods and reels, nets, boat, and castingequipment as described methods of harvest for all listed species. TheClaimant demonstrated licenses for the described methods of fishing.

5. The Claimant represented the harvest/loss of 10 species of finfish with acombined lost weight of 21,628 pounds.

6. The Claimant reported primary fishing locations as Lafitte, Hopedale,Rigolettes, Pointe A La Hache, Venice, Grand Isle, the Gulf of Mexico,Barrier Islands out of Shell Beach, Black Creek, Golden Meadow, BlackBay, and Terrebonne Bay. Most areas were within the closure area(s),except that Black Creek is not a location known to the Field Team. TheClaimant was unable to specify exact locations, routes or particular canals,bayous or land marks within the announced towns or significant bodies ofwater mentioned.

7. The Claimant reported information that discredited his familiarity with redsnapper, black drum and flounder by stating creel limits and/or seasonswhich were contrary to state or federal regulations.

8. According to the information provided by the Claimant, his harvest fromthe shoreline was as productive as his harvest from a vessel, with 60 percentof the total harvest (12,977 pounds) occurring from shoreline locations.

9. The Claimant produced five rods and reels, two filet knives, one electricfilet knife, one 48-quart ice chest, one chest freezer (three feet) and onerefrigerator freezer. The Claimant advised the team that he utilized hismother-in-law’s freezer next door to his residence for storage. The Claimantwas asked if his mother-in-law still possessed the freezer, and the Claimant

indicated that she did. When asked by the Field Team if the freezer could be photographed, the Claimant then stated she no longer possessed the freezer.

The information provided by the Claimant to the Field Visit Team did not support the validation of the loss of 21,628 pounds of finfish over a 20-month impairment period. The Claimant was primarily a shoreline fisherman reporting the harvest of approximately 100 pounds of finfish per fishing trip throughout the year. The Claimant reported to the Field Team during the interview that his average harvest was around 150 pounds per trip. Although the Claimant met the general qualifications of the Settlement Program and possessed general fishing knowledge/experience, the Field Team deemed the claimed poundage of finfish to be grossly excessive. The Claimant did not supply information that permitted adjustment of this claim or that substantiated the 150-pound average harvest per trip or the 21,628 pounds of losses alleged in the claim. Based on this information, the Field Team recommended denial of this claim.

Claimant states in his belated “Opening Memorandum,” in pertinent part, “I myself cannot be as accurate as to the exact quantities of fish caught during the time of/before the spill. I can give an estimate, however, the number of pounds could have been overstated by a small percentage.” That is certainly an understatement. As BP justifiably points out in it Opposition Memorandum, after it had noted the various inconsistencies between Claimant’s accounts of his losses and his statements to the Field Team:

Indeed, the Field Team’s denial should be upheld because Claimant’s consumption totals are not reasonable as required by the Settlement Agreement. Exhibit 9 § B.2.c. Claimant submitted two Teal Forms and two Interview Forms stating different accounts of his lost catch:

Species Form 1 Form 2 Form 3 Form 4 Difference Final lbs. / person (4)

Black Drum 500 500 1,080 540 40 135

Catfish 1,000 1,000 1,800 900 -100 225

Croaker 500 500 720 360 -140 90

Flounder 1,200 1,200 1,728 864 -336 216

Mullet 1,000 1,000 3,600 1,800 800 450

Redfish 500 500 1,800 900 400 225

Sheepshead 500 500 1,800 900 400 225

Red Snapper 100 100 100 97 -3 24

Speckled Trout 500 500 1,800 900 400 225

White Trout 1,000 1,000 7,200 420 -580 105

Totals 6,800 6,800 21,628 7,681 881 1,920

Sources:

Doc ID Form Date

Claim Form

2/27/201

Interview Form

2/28/2013

Claim Form 7/13/2

Interview Form

1/19/2017

Change in dependents: 1

From To 3 4

Even using Claimant’s most-modest estimate of his catch—the 6,800 pounds from the first Teal Form and the first Interview Form—basic calculations reveal that his alleged consumption is unreasonable. Both forms alleged that he consumed 100% of his subsistence catch along with his wife and son, and that each consumed subsistence seafood as 45% of their diets. See Initial Teal Form (Doc. ID # at 3); Initial Interview Form (Doc. ID # at 3). This amounts to an average consumption of 2,266.7 pounds of seafood per family member in the year before the Spill—an average of 6.2 pounds of seafood per day. But because this amount only constituted 45% of Claimant’s and his dependents’ diets, they would have each had to consume an additional 2,770.3 pounds of food as the remaining 55% of their diets in the year preceding the Spill (7.59 pounds per day) for a total of 5,037 pounds of total food in the year before the Spill (13.8 pounds per day). Thus, because even Claimant’s lowest account of his lost catch is not reasonable, the denial in his claim should be upheld.

This panelist deems there to have been ample reason for the denial of this claim. Appeal denied.



Claimant Name


First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

No error. See attached opinion uploaded into the portal

2017-2977

DWH:

Claim ID:


This Claimant operates a high end retail clothing store in Greenville, Mississippi (Zone D). Its Business Economic Loss claim was denied for failure to satisfy the Settlement Agreement Exhibit 4B causation requirements. As has been the case so often in the past, the reasons expressed in the original Denial Notice as well as those proffered in rejection of Claimant’s subsequent Request for Reconsideration are all boiler plate. They do not specifically inform Claimant that while the Claims Administrator determined it passed the mathematical portion of the Modified V-Shaped Revenue Pattern Causation Test, it did not provide customer mix data sufficient to satisfy the additional Customer Mix Test. However, the Calculation Notes contained in the Claims Administrator’s Accountant Compensation Calculation Schedules do clearly contain that information. See Document ID , Notes 8 (Customer Mix with Customer Data Differences to the P&Ls), 9 (Methodology-AVM/BEL) and 10 (Causation Results: Modified V).

Apparently unaware of that determination, in this appeal Claimant contends, without explanation, it should have passed the mathematical portion of the V-Shaped Revenue Pattern Test because it adequately demonstrated a 15% decline in revenues after the Spill; further, that error was committed in concluding it did not provide evidence in support of its claim.

Rather than remand for further processing, this panelist preferred to hear directly from the Claimant and instructed it to review the cited Calculation Notes together with BP’s opposition memorandum (which completely refuted each of its arguments) and provide a detailed response. It did so within the time allotted; however, it completely ignored the instruction to respond to the Calculation Notes and instead argued strenuously that the Administrator erred in reallocating revenues which prevented it from demonstrating a greater than 15% decline. Citing the recent Fifth Circuit Policy 495 Opinion, Claimant requests remand for further processing.

Because it was not apparent to this panelist that a prohibited reallocation of revenue had been made, the Claims Administrator was asked to review Claimant’s memorandum and provide his analysis of it. In due course he replied:

The cited adjustment was made to correct an error and Program Accountants would still make the adjustment in light of the Fifth Circuit Opinion Regarding Policy 495. This adjustment did not restate or reallocate revenue from one month to another, but instead reclassified sales out of COGS and into revenue on the P&Ls.

The inclusion of this adjustment does not change the Claimant’s Causation results. Without this adjustment, the Claimant’s revenue as originally presented on its P&Ls still fail the V-Shaped Revenue Pattern Causation Test. The Claimant passes the revenue portion of the Modified V-Shaped Revenue Pattern Test, but has not provided Customer Mix data required for Customer Mix Testing. For this reason, the Claimant still fails Causation.

Document ID

De novo review of the entire Claimant record persuades this panelist that the Claims Administrator committed no error. Despite its protestations, Claimant did not satisfy the Exhibit 4B causation requirements and cannot recover. Its appeal is therefore denied.

Denial upheld.





First

Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

Error in documentation review. See attached decision uploaded into the portal.

2017-2978

1

DWH:

Claim ID:


This is a Claimant appeal from the denial of an Individual Economic Loss claim. The explanation contained in the Denial Notice issued by the Claims Administrator states:

Our records reflect that you submitted an Economic Loss claim for your business in addition to this Individual Economic Loss claim. You cannot recover employment losses from a job at a business for which you have submitted an Economic Loss Claim.

Document ID

Claimant sought Re-Review, contending that while he is employed as Chief Operating Officer by the venerable and internationally known in New Orleans, which previously filed a Business Economic Loss claim and received an award, he holds no ownership interest in it. Further, his salary was not recorded as Owner/Officer Compensation nor was it classified as Fixed in his employer’s claim calculation. That request was denied.

Undaunted, Claimant sought Reconsideration. That request met the same fate with the following explanation:

The claimant requested Reconsideration after receiving a Denial Notice. In accordance with the Settlement Agreement, payroll costs for owners or officers of a business are treated as a fixed expense. The Business Economic Loss Framework includes compensation for the fixed expenses associated with owner or officer payroll costs. Any Individual Economic Loss claim filed for these same losses is not compensable under the Settlement Agreement. We determined that the losses the claimant claimed under the Individual Economic Loss framework for the Claiming Job at are the same losses the claimant claimed under the Business Economic Loss framework. The claimant submitted a claim to either the DWH Settlement Program or the GCCF and received Payment for these same losses. As such, the claim is Denied after Reconsideration review.

Document ID

Claimant then filed this appeal, contending again that he holds no ownership interest in his employer; that his wages are not included in his employer’s Owner/Officer compensation; that it

2

was classified as Payroll, as opposed to Fixed in his employer’s BEL award calculation; consequently, there is no basis for the Administrator to conclude that his claim will result in an impermissible double recovery. He cites three Appeal Panel Decisions involving identical claims which support his position that his claim is compensable.

BP, on the other hand, argues that his employer’s 2010 tax return lists Owner/Officer Salary in excess of $1.5 million which amount the Administrator treated as fixed in his calculation of the employer’s BEL claim. Because Claimant was an officer of the employer, BP submits that the Administrator committed no error in concluding his compensation was treated as fixed. Making an award to an IEL claimant where that claimant’s employer has already recovered would result in an impermissible double recovery, it says, citing a redacted Appeal Panel Decision as well as two Discretionary Review Decisions issued by the District Court on September 30, 2016. While it urges the panel to uphold the Administrator’s decision, BP advises, in the alternative, that it would not object to this panelist obtaining a Summary of Review.

It is significant to note that BP makes no mention of Claimant’s lack of an ownership interest in his employer because the decisions it cites involve IEL claimants who were also co-owners of the entities which employed them. That was the deciding factor in each one of them. The District Court has since laid this troublesome issue to rest in two Discretionary Review Decisions handed down on August 8, 2017. See 2017-489 and 2017-243. Instead of attempting to summarize these important decisions, the first (2017-489) is quoted hereafter in its entirety:

Two unrelated Individual Economic Loss (“IEL”) claims with identical issues are before the Court. In both matters, the Claimant is an officer/employee of a business that filed (and received payment on) a Business Economic Loss (“BEL”) claim; however, neither Claimant holds any ownership interest in his respective employer. The Settlement Program treated the Claimants’ wages as a fixed expense when it calculated the Claimants’ employers’ BEL claims. Consequently, the employers’ BEL awards were somewhat higher than they would have been had the Claimants’ salaries been treated as a variable expense.1 In Claim No. 333992, the Appeal Panel concluded that the Claimant’s IEL claim must be denied in order to avoid a double recovery. The Appeal Panel that reviewed Claim No. 98154 reached the opposite conclusion. For the reasons outlined below, the Court holds that neither Claimant is precluded from recovering on its IEL claim.

__________________________ 1 The Court assumes that the reader is familiar with the Economic Settlement and the BEL framework (Exhibit 4) in particular. A recent opinion from the Fifth Circuit explains how designating an expense as fixed or variable affects the calculation of a BEL claim. See In Re: Deepwater Horizon, No. 16-30547, 2017 WL 3046323, -- F.3d -- (5th Cir. July 19, 2017).

3

First, although both this Court and the Fifth Circuit have held that a claimant who is an officer and an owner in a business may not may not recover on his IEL claim for reduced wages when his business has recovered on its BEL claim, see In Re: Deepwater Horizon, No. 16-30547, 2017 WL 3046323, -- F.3d -- (5th Cir. July 19, 2017), affirming In re: Oil Spill by the Oil Rig “Deepwater Horizon,” No. 10-md-2179, Rec. Doc. 16432 (E.D. La. Apr. 25, 2016), those decisions did not consider the scenario presented here: a claimant who is an officer in but not

an owner of the business/BEL claimant. Thus, the prior holdings do not necessarily dictate the result here.

Second, the distinction between an owner/officer and a non-owner/officer is significant. In denying the IEL claim in the owner/officer context, this Court and the Fifth Circuit relied on the fact that the BEL framework inherently compensates the business claimant for reduced owner/officer compensation by treating owner/officer compensation as a fixed cost. Furthermore, this Court reasoned that “[e]ven if this additional compensation to the Firm is not passed directly to the Claimants, Claimants, as owners of the Firm, still benefit from the increased value to the business.” (No. 10-md-2179, Rec. Doc. 16432 at 3).2 Anon-owner/officer does not reap this benefit. Thus, there is no risk of these IEL Claimants receiving double recovery.

BP’s response to the second point is that even though these Claimants may not receive double recoveries, BP would still be required to pay twice for the same loss (i.e., the officer’s reduced wages), and “[n]othing in the Settlement Agreement suggests, much less requires, that BP must repeatedly pay for the same loss.” (BP Request for Discret. Review at 3, Claim No. 98154). The Court’s reply to this argument is also its third point of reasoning: The fact that BP ends up paying twice for the same loss does not automatically bar recovery under the Economic Settlement. Indeed, there are instances where the Economic Settlement contemplates that BP will pay twice for the same loss. Consider the following hypothetical: Suppose that prior to the oil spill Business X typically hired John Smith, an independent contractor, to clean its store once a week. In an effort to cut costs, Business X decides to not hire John Smith or any other cleaning service from May-December 2010. Because the BEL framework deems “Cleaning and Housekeeping Costs” as a fixed expense, the award to Business X is not reduced to reflect this cost savings. Nevertheless, the fact

______________________________________ 2The Fifth Circuit also noted that “the district court found that the BEL framework ‘inherently’ compensates the business claimant for reduced owner/officer compensation, and the owners of

the firm benefit from this compensation.” 2017 WL 3046362 at *2 (emphasis added). However, it is not clear whether the emphasized language formed part of the Fifth Circuit’s ratio decidendi, or whether the court of appeals was merely repeating (as procedural background, e.g.) what this Court had found.

4

That Business X’s BEL award is higher than it would have been if Cleaning and Housekeeping Costs was treated as a variable expense does not preclude John Smith from receiving compensation under the Economic Settlement for his own economic losses. Indeed, BP stated in a brief to the Fifth Circuit that it has never argued, nor would it ever argue, that a claimant like the hypothetical Mr. Smith would be ineligible for payment simply because an unrelated third party benefitted from the way in which the BEL framework treats Cleaning and Housekeeping Costs. (Appellee Br. 9 n.2, No. 16-30547 (5th Cir. Nov. 2, 2016)).

Fourth, the Claimants’ IEL claims are not excluded by Section 38.84 or Exhibit 8A. Section 38.84 states:

Individual Claimant shall mean a Natural Person who is an Economic Class Member alleging Economic Damage arising out of, due to, resulting from, or relating in any way to, directly or indirectly, the Deepwater Horizon Incident with a Claim in addition to or other than a Claim for Economic Damage related to

such Natural Person’s sole proprietorship business or other self-employment as reflected on Schedule C, D or E of a federal income tax form.

(emphasis added). Exhibit 8A, the IEL Framework, states in pertinent part:

Individual economic loss claims are claims by Individuals, who shall be defined as (i) Natural Persons who (a) satisfy (or whose employers satisfy) the Class Definition . . . and (ii) who seek compensation for lost earnings from employment due to or resulting from the DWH Spill . . . with the following exceptions:

All Natural Persons . . . claiming losses related to business income

required to be reported on Internal Revenue Service Form 1040

Schedules C, E or F are governed by the Documentation Requirements for Business Economic Loss claims. Causation requirements for Business Economic Los Claims, and Compensation Framework for Business Economic Loss Claims, or, if appropriate, the Failed Business Framework or the Start-up Business Framework, rather than this Framework for Individual Economic Loss Claims.

Again, these Claimants hold no ownership interest the businesses that employ them. Thus, their IEL claims are not “related to [their] sole proprietorship business or other self-employment as reflected on Schedule C, D or E of a federal income tax form”;

5

nor do they claim losses “related to business income required to be reported on Internal Revenue Service Form 1040 Schedules C, E or F.”

This decision, of course, compels the result herein. Claimant’s appeal is therefore sustained and the claim is remanded to the Claims Administrator for processing as a Business Economic Loss claim.

Denial overturned.





First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned








No error.

Comment (optional):

Claimant operates a private K-12 school in Seminole, Florida, Zone C. The Policy 495 criteria were triggered and the Vendor

Accountants utilized the Education Methodology to analyze the claim. A review of the file documents and the Accountant Notes clearly show the reallocation of Claimant's revenues throughout the school academic year, including summer school.

Claimant's revenue includes tuition, charitable contributions, fundraising donations and fees from sporting events etc. This

claim must be remanded to the Program for recalculation of the claim using only the AVM Methodology. This result is demanded by the presiding courts. There were no issues to resolve prior to remand.

2017-2979




First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

Claimant owns/operates a plant nursery wholesaler business located in New Iberia, Louisiana, Zone B. Claimant owns/operates four distinct but related divisions. The Policy 495 criteria were triggered and the AVM Methodology was used to analyze the financials. No revenue appears to have been reallocated. BP appeals raising two issues. First, BP speculates that some revenues from one of the divisions was included in the calculations of the award. SWS were submitted from both the individual owner of the Claimant and the accountants for the company that no such inclusion of revenue from the separate entities was included. That is accepted and ends the inquiry. Second, BP asserts that certain rental revenue was

2017-2980

classified as non-recurring in nature and should have been treated as ordinary income in normal course of business operations. The Claimant offered to reduce the award by $21,599.00 pre-RTP to resolve the appeal but apparently BP chose not to accept the reduction. Therefore, the Final Proposal of the Claimant is accepted as closest to correct even if the rental income was misclassified.




First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):


2017-2981

1

DWH:

Claim ID:


This manufacturer of metal products located in Gadsden, Alabama (Zone D) received a Business Economic Loss award of $712,580.09 pre-RTP. BP’s Notice of Appeal raised its now familiar attestation issue and contended the Claims Administrator failed to properly address potential related party issues. In its Initial and Final Proposal memoranda, BP abandoned the latter claim and, pursuant to the stipulation it entered into with Class Counsel, preserved the attestation issue for further review but did not brief it. It submitted zero dollar Initial and Final Proposal compensation amounts.

Claimant filed a cross appeal asserting that the Administrator erroneously misclassified a number of its fixed expenses which had been included under the umbrella heading “Overhead” as a component of COGS on its profit and loss statements, as variable. Arguing that it provided a breakout of each of those expenses to the Administrator, he nevertheless failed to reclassify them as Fixed and, instead, classified each as COGS – Variable. The Claims Administrator confirmed that action, advising that:

Program Accountants classified all expenses in the Claimant’s COGS overhead breakout, including the expenses identified in the Claimant’s Cross Appeal, in accordance with Exhibit 4C. Exhibit 4C states, “For claimants that include Cost of Goods Sold (COGS) in their financial statements, COGS will be treated as a variable expense after excluding, to the extent possible, the following cost items which may be embedded in COGS and are likely to be fixed in nature: Fixed COGS Payroll, Amortization, Depreciation, Insurance Expense, Interest Expense, and Contract Services.”

As the expenses identified in the Claimant’s Cross Appeal are included in COGS on both its P&Ls and Federal Tax Return, and are not one of the Fixed COGS items identified in Exhibit 4C, Program Accountants classified the expenses as COGS – Variable.

Document ID Summary of Review.

2

In response, Claimant argues:

In this case the contemporaneous profit and loss statements maintained by the Claimant included a single line called overhead. Claimant explained to the reviewer that:

The client historically includes a series of items under the umbrella "Overhead" as a component of COGS on their P&Ls to account for all of the listed items. As shown on the detail provided (DOC FILE ID the line item includes a host of items including some general labor charges and other many fixed accounts. The claim submission breaks this out as individual line items." It is also noted that, " A review by our accountants of the Overhead account revealed that many different fixed variables, and payroll expenses were included in the account, many of which would not be considered COGS or would require classification under the Settlement Agreement in a manner different than overhead. Because these amounts were material, our accountants worked with the claimant to breakout the subaccounts." The Administrative and Selling Expense accounts were comprised of several subaccounts as well. (Doc ID p. 2) (Doc ID

p. 1).

The reviewer used the provided overhead breakout, but failed to code the line items in accordance with the settlement agreement. The following accounts were miscoded variable when they should have been fixed.

Overhead - RENT - MACHINERY & EQUIPMENT Overhead - PACKAGING MATERIALS Overhead - NON-PRODUCTION SUPPLIES Overhead - PRODUCTION SUPPLIES Overhead - RENT ON BUILDING Overhead - EXPENDABLE TOOLS Overhead - MATERIAL SCRAP Overhead - UTILITIES - ELECTRIC, GAS & WATER

The line Selling & Administrative Expenses - Corporate Salary Allocation should have been coded as payroll and the line Overhead - REPAIRS & MAINTENANCE - MACHINERY & EQUIPMENT should have coded as repairs and maintenance.

3

The reviewer classified each item as COGS variable. The classification is likely because of a misreading of Exhibit 4C. Exhibit 4C includes the following directive:

For claimants that include Cost of Goods Sold (COGS) in their financial statements, COGS will be treated as a variable expense after excluding, to the extent possible, the following cost items which may be embedded in COGS and are likely to be fixed in nature: Fixed COGS Payroll, Amortization, Depreciation, Insurance Expense, Interest Expense, and Contract Services.

The use of the phrase "embedded in COGS" is important. The paragraph does not say that a fixed item is transformed into a variable item simply because the Claimant uses a Cost of Goods Sold heading on its p and l's. Certainly the paragraph does not mean that simply listing a fixed item as part of Overhead under a heading of Cost of Goods transformed each line into a variable item. The plain intent of the paragraph is to allow a claimant, keeping in mind the claimant friendly aspect of the Agreement, with a single line item of COGS to separate from the line item the five fixed items listed in the paragraph. The intent of the provision is to be claimant friendly, allowing the claimant to expand the items representing a single COGS line item and pull out the listed fixed components.

This construction is confirmed by a later provision in 4C. On page 2, at item 2c, the Exhibit directs the accountants to subtract:

Variable portion of COGS, calculated by excluding salary costs (which are discussed below in the definition of Fixed and Variable Payroll Expenses) and fixed expenses included within COGS, including Amortization, Depreciation, Insurance Expense, and Interest Expense and Contract Services. (Emphasis added).

The plain meaning of that provision is that the five items listed can be pulled out of COGS, not that fixed items are automatically variable when the parties agreed they are fixed (like supplies and rent). If that were the case, the inclusion of the word "including" would have no meaning. The Agreement, taken as a whole states, that fixed items within a COGS heading do not become variable merely because they are within such a heading.

The classification of these fixed items as variable COGS does not comply with the directives of the Settlement Agreement. First, the program is not classifying an expense "embedded" in COGS. Further, the classification violates the goal of the class-wide settlement outlined above to achieve consistency in the compensation awarded between class members. To calculate the claims of two class members differently based solely on whether a line was included as COGS

4

on the tax return is not logical. The COGS paragraph which directs the program to help the claimant by "unembedding" certain expenses to be treated as fixed does not compel treating defined fixed expenses as variable.

The classification of these clear fixed items, like rent, utilities and supplies, as fixed expenses has been confirmed in at least one appeal decision where the above argument was made by the Claimant. See Appeal Decision in Claim No.

(attached).

Correcting these errors result in an increase in the compensation amount by $497,325 (a total compensation amount of $1,209,905) with an RTP of .25. Claimant would not oppose a remand as well to correct the erroneously coded items.

Document ID Claimant’s Initial Proposal Memorandum.

Claimant cites, in support of its position, a prior Appeal Panel Decision wherein the panelist quoted from and accepted its position, declaring that he was unaware of any provision in the Settlement Agreement which would authorize the departure from the clear mandate of Exhibit 4C that the expenses at issue in that appeal are to be classified as fixed. See Claim ID This panelist came to the same conclusion, following the same analysis, in a decision issued on August 15, 2017. See Claim ID

According to Claimant, correction of those errors results in an increase of $497,325 in the compensation amount awarded it to a total of $1,209,905 pre-RTP. However, Claimant did not include his calculation of that amount. For that reason, the Claims Administrator was asked to advise whether, if the disputed expenses were treated as fixed, as opposed to COGS – Variable, the compensation amount proposed by Claimant would be accurate. In short order, a Summary of Review issued advising that the correct amount would be $1,192,374.99, pre-Risk Transfer Premium.

Following de novo review and for the foregoing reasons, this panelist has concluded that BP’s appeal cannot be sustained, that Claimant’s cross appeal is meritorious and is hereby granted. Since Claimant’s Final Proposal is closer to the correct amount identified by the Claims Administrator, it is therefore selected in this Baseball appeal.





First Middle



Law Firm

II. DECISION

















No error.

Comment (optional):

The written decision entered by my co-panel members is adopted by reference as the decision in this appeal.

2017-2982

CLAIM ID NO.

Claimant, is a highway construction contractor located in Tuscaloosa, Alabama. The Settlement Program issued an award of $12,899,635.39, pre-RTP. BP appeals, and Claimant cross-appeals. As will be addressed below, this matter must be remanded for further consideration due to the use of Policy 495’s Construction Methodology; however, several collateral issues were raised and will be addressed herein.

BP first asserts the claim does not comply with the attestation requirement as recognized in the Fifth Circuit’s March 3, 2014 opinion, 744 F.3d 370, 377-78 (5th Cir. 2014). Pursuant to the stipulation entered into between BP and the Class, BP is preserving this issue for further review. Claimant asserts the “claim form” argument has been consistently rejected as a recast alternate causation argument, but declines to address the issue any further. The Panel notes that the issue has been preserved pursuant to the stipulation referenced by BP.

As a second issue, BP argues the Settlement Program erred in its treatment of Claimant’s Contra G&A Salary Allocation expense account. However, an examination of the record discloses the officer compensation was separately and correctly stated in the P&Ls. The item was originally recorded in Payroll-Officers (coded fixed) and was subsequently reclassified via the Contra G&A Salary Allocation (coded variable) to the appropriate COGS account. The netting of these entries washes out, and does not distort variable cost. Due to this wash out, the subject entry remained accurately coded as a fixed expense per the Settlement Agreement in the account it was originally booked in, Payroll-Officers. The Program Accountants carefully explained their coding and understanding in Note 12 of the accountant compensation schedule. BP’s appeal as to this issue is denied.

As a third issue, BP maintains the Settlement Program erred in its treatment of bad debt expense. Specifically, BP argues that the Settlement Program failed to allocate adjustments to previously-recorded bad debt expense to the months in which the bad debt expense (and the underlying revenue) was originally recorded. BP asserts that proper matching requires that (i) bad debt expense be

recorded in the months in which no longer collectible revenue was previously recorded, and (ii) adjustments to bad debt expense (reflecting that the entity was able to collect the previously-uncollectible revenue) be recorded in the same months as well. This issue was succinctly addressed by the Appeal Panel in Decision Claim ID in which the Appeal Panelist observed:

“The treatment of bad debt expense has been the subject of prior appeal panel decisions where similar arguments have been raised. The majority, if not all, of these decisions have not required reallocation of the expense either before or after application of the AVM methodology. In at least one panel decision, the claim was remanded with instructions to reverse the accountant’s reallocation of the bad debt - the opposite of the relief BP seeks here. The recurring focus throughout the decisions is whether the bad debt expense is consistently recorded in the month in which it is deemed uncollectible throughout the P&Ls. Here, Claimant’s P&Ls reflect the required consistency in the Benchmark and Compensation Periods. Policy 495 affords considerable discretion to the program accountant to exercise professional judgment in determining if revenue and/or expenses should be reallocated. The District Court has recognized and upheld the reasoned exercise of this discretion. Bearing in mind that neither the Settlement Agreement nor Policy 495 require perfect matching and recognizing that none of the Policy 495 criteria were triggered in this case, the program accountant was within his professional judgment in deeming the financials adequately matched. BP has failed to demonstrate any abuse of that discretion.”

The Panel’s analysis is directly applicable to the instant case; hence, BP’s appeal is denied as to this issue.

As its next issue, BP asserts the Settlement program failed to investigate related party transactions pursuant to Policy 328 v. 2, as such receipts may be distorted in terms of their amount, their timing, or both. BP points to the alleged ownership by of a minor vendor for an isolated expense by Claimant’s president as raising this suspicion. Importantly, this was not a revenue item. BP presents nothing that would indicate the transaction in question, or any others, were not at arm’s length. This Panel finds BP’s position to be based upon speculation and conjecture. A de novo review of the financials and tax returns demonstrate no irregular patterns or practices with respect to this matter. Nothing in the record

would have triggered a discretionary investigation by the Claims Administrator under Policy 328 v. 2. BP’s appeal is denied as to this issue.

Claimant cross-appeals, arguing the claim award incorrectly coded the following accounts as variable when the Settlement Agreement provides that they are fixed:

Rent - Miscellaneous Trucks Equipment Lease Equipment Rental

In this case, the reviewer justified the coding by stating: “Due to the nature of the Claimant's business, the following P&L expense accounts were deemed to be direct job costs and thus have been classified as Other - Variable for the purposes of the claim calculation: ‘Rent -Dump Trucks/ Lowboys’ ‘Rent- Miscellaneous Truck’ ‘Permits’ ‘Equipment Rental’ ‘Equipment Lease’ ‘Estimating & Plans Expense." It was noted at Reviewer Note 11 that "Equipment Lease" is included in Cost of Goods Sold on the federal tax returns.

Claimant argues, citing the “495 opinion” entered recently by the Fifth Circuit, that the Administrator’s duty is to apply the Settlement Agreement as written. The Court held, “When we said, in Deepwater Horizon I, that the Claims Administrator should ‘process claims in accordance with economic reality,’ we assumed that doing so would comport with the text of the Settlement Agreement.” In re Deepwater Horizon No. 15-30377, May 22, 2017, slip op at 7-8.

Further, Claimant maintains the reason given regarding the deviation from Attachment A at Exhibit 4D is not supported by the record. The lines at issue are not included within COGS on the profit and loss statements, and there is nothing in the Settlement Agreement that implicates use of the Federal income tax returns, as opposed to the P&Ls. The Panel finds Claimant to be correct, and application of the classifications provided for in Attachment A require that Claimant’s cross-appeal be granted with respect to truck rental, equipment lease and equipment rental expenses, which shall be classified as fixed expenses.

As noted at the outset, the Settlement Program issued an award on Claimant’s BEL claim after application of Policy 495’s Construction Methodology. This case is

directly impacted by the Fifth Circuit Court of Appeals decision dated May 22, 2017 (the “495 Opinion”), which stated, in part, “Because the AVMM is consistent with the text of the Settlement Agreement, but the four ISMs are not, we AFFIRM as to the AVMM, REVERSE as to the ISMs, and REMAND for proceedings consistent with this opinion.” This was followed by the May 25, 2017 Order of the District Court that the consideration of any BEL claims currently on appeal before the Appeals Panel involving ISMs shall be remanded to the Settlement Program for further consideration and processing in accordance with the 495 Opinion of the Fifth Circuit Court of Appeals. Here, the Settlement Program applied the Construction Methodology, one of the prohibited ISMs. Accordingly, this matter is hereby remanded for further consideration by the Settlement Program in light of the 495 Opinion and the May 25, 2017 Order of the District Court, together with the findings of the Panel with respect to the collateral issues outlined above.




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II. DECISION
















No error.

Comment (optional):

Claimant operates women’s and teen’s clothing stores. This claim is for Store # located in Montgomery, Alabama, which the Settlement Program awarded $38,389.42 pre-RTP. Claimant appeals, arguing the Settlement Program erred in its conversion of Claimant’s 13-period financial statements to a 12-month calendar basis, and in the assignment of accounts. The Claimant prepares its financial statements on a fiscal year basis ending in January utilizing the retail calendar (4-week period, 4-week period, 5-week period). To property calculate the Claimant’s award under the Settlement Agreement, the Settlement program was required to convert the Claimant’s financial statements from a fiscal year to a calendar year.

2017-2983

Claimant contends that the Settlement Program failed to correctly convert the Claimant’s financial statements to a calendar year and submits the work papers (Doc ID Claimant asserts is the correct conversion of the Claimant’s financial statements from a fiscal year to a calendar year. The Claimant's work papers (Doc ID: correctly converted the Claimant's financial statements from a fiscal year to a calendar year. The monthly revenue and expenses highlighted in yellow in the Claimant's work papers also reconcile exactly to the revenue and expenses as converted by the DWH Accountant and used in the prior calculation as seen in Doc ID Utilizing the correct conversion of the Claimant’s financial statement to calculate the Claimant’s award under the Settlement Agreement, the Claimant should have been awarded $42,978 pre-RTP, which is Claimant’s Final Proposal. Accordingly, Claimant’s appeal is granted and Claimant’s Final Proposal selected.




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II. DECISION
















No error.

Comment (optional):

Claimant sells building materials in Oxford, Mississippi (Zone D). The Settlement Program awarded $87,844.96 (pre-RTP) to Claimant in its BEL claim. BP appeals. At issue is the Program’s classification of Claimant’s expenses for “Tornado Repairs.” The record reveals that Claimant spent $161,938.25 from February-September 2008 for “tornado repairs” on its warehouses, offices, showroom, and lumber yard racks. Claimant acknowledges “these were not operating expenses incurred in the ordinary course of business but rather a result of a one-time extraordinary event.” As such, the Program accountants considered the expense to be

2017-2984

“Renovation Expense – Fixed.” BP contends that “Repairs” are listed as a variable expense under Exhibit 4D and that reclassifying “Tornado Repairs” reduces the claim substantially. BP submits a final proposal of $55,444.86 (pre-RTP) to account for the difference. Exhibit 4D does not define the term “repairs” although the categorization does exclude “maintenance.” The significant amount of expense indicates damage well beyond a simple “repair” such as replacing a broken pipe, water heater, or an air conditioning unit. It is obvious that Claimant’s business was severely damaged by a tornado and one questions if Claimant had designated the expenses as “Tornado Renovation” whether the issue would be the same. The panel concludes that it is the nature of the expense rather than the nomenclature that is controlling. Policy 361 v.5 allows the Claims Administrator discretion to apply the expense classification that best conforms to the delineation sin Exhibit 4D if an expense does not fall into one of the categories. After de novo review, the panel finds Claimant’s argument the more persuasive and concludes that the Program’s decision to classify the expenses as fixed renovation costs was within the accountant’s discretion. Accordingly, the Claimant’s final proposal is selected as the correct result.




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II. DECISION
















No error.

Comment (optional):


2017-2985


Claim ID

The Settlement Program awarded $112,124.90, pre-RTP to the Claimant’s retail facility in Baton Rouge, Louisiana. The AVM methodology was used to resolve matching issues. BP appeals, raising three assignments of error. First, BP argues that the Settlement Program incorrectly allocated COGS by Claimant’s manufacturing and purchasing divisions to the Claimant’s individual stores. BP also contends that the program accountant erroneously consolidated certain variable expenses into a single expense line item. Finally, BP maintains that the Settlement Program failed to require Claimant to provide sales and use tax returns. BP’s first assignment of error is based on Claimant’s business model which includes divisions for manufacturing and purchasing paint as well as retail and commercial sales. BP argues that Claimant incurred four specific categories of expenses at the division level which were allocated by the Settlement Program to each retail store based on the store’s percentage of total COGS. BP argues that these expenses were not incurred by any of the individual stores and should not have been included on the P&Ls. Claimant responds that the reviewing accountants went into great detail investigating the Margin Variance methodology used in its P&Ls, making a number of adjustments including the COGS accounts that are the subject of BP’s appeals. Indeed, the Calculation Notes explain the adjustments and their relationship to the individual stores:

Per Doc ID: the Claimant explained that the detailed store level P&L statements referenced above, include financial activity before certain margin adjustments are applied. These margin adjustments are used by management to track certain costs related to inventory, inventory valuation, and to assist in decision making surrounding COGS at both the division and store-level (Global Note Contact ID: A portion of these adjustments are allocated from the manufacturing division to the stores division (A100) as a whole, rather than to the individual store P&Ls. The retail stores are treated as their own consolidated operating entity. All management adjustments were made in order to true-up costs and arrive at the actual COGS for the products sold at the store (Global Note Contact ID: The Claimant provided the following information about each margin adjustment recorded at the division-level in Doc ID: and Global Note Contact Ids: : 1. Overbill & Overbill Contra - A standard price for items sold is seteach year (i.e. standard costing). In certain instances, this standardcost must be adjusted. For example, actual costs of items or rawmaterials may fluctuate throughout the year. These costs usually goup, but can also go down depending on seasons, climate, freight, etc.2. APDC - Associated products in the distribution center. Instead ofshipping products directly multiple stores, the Claimant orders items

and bulk ships them to a regional distribution center. Items are then delivered from this distribution center to the stores to replenish what is sold. By purchasing and shipping small ticket items in bulk, the Claimant is able to secure various volume discounts and rebates from these suppliers. 3. LIFO Adjustment - Inventory adjustments made in the normal course of business to account for the Last In First Out method of accounting. 4. Vendor Credits - Volume discounts, rebates and other product cost reductions earned during the manufacturing process. DWH Accountant determined that all four of these items are direct costs to the filing facilities, and need to be allocated to the store-level P&Ls. The Claimant also explained that “Other-COGS” was recorded at the division level. However, this account relates to eliminations upon consolidations for tax purposes, and is not indicative of true cost savings at the store level (Doc ID: pg. 1). De novo review sufficiently persuades this panelist that the margin adjustments were a reasonable exercise of the vendor accountant’s professional judgment. Claimant’s P&Ls include a line item entitled “72_ALL_OTHER.” This category includes a number of miscellaneous expenses which the program accountant classified as 100% fixed. BP argues that this category includes repairs and a number of other expenses that are variable. BP appears to argue that this line item should have been allocated 50% fixed and 50% variable. Claimant responds that it has received over 80 BEL awards and that BP has not questioned the classification of the “72_ALL_OTHER” expenses in numerous companion appeals. Beyond that, Claimant points out that this expense category consists of expenses that are fixed as opposed to variable in nature. The Calculation Notes reflect that the program accountant examined this category and determined that the expenses were properly classified as fixed: 64/72_ALL_OTHER - Multiple miscellaneous expenses including various taxes paid, service contract fees, insurance, and advertising/marketing expenses. Given the items are largely fixed in nature, account has been classified as Miscellaneous Expense - Fixed. Although BP argues that this error reduces Claimant’s compensation, no misapplication of Exhibit 4D has been shown. This assignment of error is without merit. BP also argues that as a retail business, Claimant was obligated under Exhibit 4A to provide monthly sales and use tax returns for the Benchmark Period, 2010 and if necessary, 2011. BP complains that the Settlement Program erred in failing to require the Claimant to furnish these documents because it is a retail store. BP argues that Claimant is not entitled to compensation absent the submission of these documents but fails to explain how the sales and use tax returns would have altered the award. Claimant points out that the Settlement Program assigned it NAICS Code 325510 - Paint and Coating Manufacturing. This industry comprises establishments primarily engaged in mixing pigments, solvents and binders into paints and other coatings and/or manufacturing allied paint products such as putty and paint remover. The Settlement Program presumably assigned this code based on the fact that Claimant is engaged in the manufacturing and purchasing of paint as well as its retail and commercial sales. Hence, Claimant argues that sales and use tax returns are




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II. DECISION
















No error.

Comment (optional):

See uploaded decision

2017-2986

– Claim

BP appeals the award ($57,296.49, pre-RTP) to the Claimant, a Zone C

interior designer in Santa Rosa Beach, Florida.

The record reveals that from 2005 – 2009, was employed on a full

time basis with as an interior designer. Prior to 2008, she worked on a

commission basis and then entered into a contract with in January 2008

and was paid a salary of nearly $22,000 less than she previously earned on

commission. While employed with formed the claimant limited

liability company in 2007 and earned “extra income” which amounted to about 4% of

her salary in 2007 and 10% of her salary in 2008. was abruptly

terminated from in April of 2009 and found employment elsewhere but

reported no income from the claimant in 2009. The record demonstrates no

economic activity by Claimant in 2009, either by income earned or COGS. She

capitalized the claimant company with her own funds and set up a home office to

begin operations on January 1, 2010.

The Settlement Program calculated the claimant’s award using the Start-Up

BEL framework in Exhibit 7 rather than the Exhibit 4 BEL framework. BP

contends that this was error and argues that since Claimant commenced operations

before October 20, 2008, the general BEL framework should have been used. BP

submits a final proposal of $3,850 (pre-RTP) which it represents is the award if

calculated under the BEL framework.

The panel requested a summary of review from the Program explaining why

the Start-Up BEL framework was used. In due course, the Program responded as

follows:

. . . the Claimant was operational in 2007 and 2008. However, the

Claimant did not provide a 2009 Schedule C tax return or 2009 Profit

and Loss statements. Further, the Claimant stated in Doc ID:

that only one small job was performed in 2007 and that the

business was fully activated in 2010.

. . .

As the business appeared to be dormant throughout 2009 and resumed

business operations in January 2010, January 1, 2010 (when the

Claimant resumed operations) was utilized as the business

commencement date, and the claim was processed as a Start-Up BEL

claim.

The Summary of Review naturally touched off yet another round of

submissions by both parties. BP argues that BP’s assumption that Claimant was

dormant in 2009 is “baseless” yet Claimant confirms in her supplemental filing that

she conducted no operations at all in 2009.

The date upon which a business commences operations is determined by a

“totality of circumstances” test. There have been a number of appeals where

claimants have attempted to establish commencement of operations by noting

expenses incurred before the spill. In those cases, BP has taken the opposing view

and the District Court has held that such expenses must be “indicative of the start-

up of business operations.” See Discretionary Review Decision 17-6171.

Although the Claimant was “operational” in 2007 and 2008, the record

supports the conclusion that the business was not operational in 2009 and “re-

initiated” operations in 2010. Under the circumstances, it was reasonable for the

Program to calculate the award under the Start-Up BEL framework. The award is

affirmed and the appeal is denied.




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No error.

Comment (optional):

Claimant is a producer and seller of construction aggregate, stone, sand, and gravel in Tremont, Mississippi (Zone D). The Program awarded $509,352.48 (pre-RTP) for Claimant’s BEL claim and BP appeals. In addition to the now-familiar attestation argument (that Claimant is located “300 miles from the Gulf of Mexico”), BP argues on appeal that the Settlement Program misclassified Claimant’s expense for “Depreciation, Depletion & Amortization” as fixed and that “depletion” is the “using up of natural resources by mining, drilling, quarrying stone, or cutting timber” and that the IRS permits a deduction for it. BP claims that this is a “classic variable expense” and that,

2017-2987

because Claimant’s business involves quarrying stone, it is “likely” that most of this line item involves depletion. BP urges a remand for recalculation. In the alternative, after submitting an initial proposal of $0, BP submitted a final proposal of $305,612 “in the interest of compromise” without any explanation. Claimant responds by noting that Policy 361 directs the Program accountants to use their discretion to apply the classification that best conforms to the delineations of expenses in Exhibit 4D if an expense does not fall within one of the listed categories. Claimant argues that “depletion” is similar to “depreciation” and, since the two are part of the same line item, it was appropriate to categorize them similarly. Claimant draws a comparison with two other panel decision involving cutting of timber in which depletion was classified as a fixed expense. Most persuasive to this panel is Claimant’s argument that, even if the entire line item was re-coded as variable, the effect on the claim would reduce it by $53,000 post-RTP. This is a baseball appeal. BP provides no support for its final proposal and, therefore, the panel selects Claimant’s final proposal as the correct result.




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II. DECISION

















No error.

Comment (optional):

Claimant is a multi-facility accounting firm. This claiming facility is located in Pensacola, Florida, Zone B. The Policy 495 criteria were triggered and the Vendor Accountants utilized the AVM Methodology to analyze the claim. Following an award, BP appeals raising an accounting issue related to the treatment by the Claimant of certain revenues classified as "WIP Reserve Adjustments". Basically, it appears the Claimant wrote off $446,166.16 in December, 2010 and then reversed the

2017-2988

write off over the next six months of 2011. BP speculates this was done to avoid federal income tax or to shift the revenue into 2011, but whatever the reason the claim must be remanded to allow the Program to investigate the revenue movement. This panel member, due to the recent presiding court decisions related to revenue movement of any kind, requested a Summary of Review from the Administrator as to how the entry was analyzed and would the award be affected by the recent court decisions. Essentially, the Administrator replied that additional outreach would be necessary to understand the nature of the "WIP Reserve Adjustments" and whether the decision would change on remand. The Administrator supplied the parties and this panel member with the two questions it intends to ask Claimant. The Administrator will then determine if any recalculation of the award must be considered to comply with the court orders. A remand is necessary.




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II. DECISION
















No error.

Comment (optional):

Please refer to uploaded decision.

2017-2989


Claim ID

Claimant, a hotel operator located in New Orleans, appeals the Program's Start-Up BEL award in the pre-RTP amount of $768,540.23. It avers that the Program erred in "zeroing out" two months (September and October, 2011) from Claimant's optimal Benchmark Period on the basis of drastically reduced activity caused by repairs to its hotel during that two-month period. It argues that no provision in Exhibit 7 of the Settlement Agreement allows such "zeroing out" in the middle of a Benchmark or Compensation period. It further argues that essentially, the Program in doing so resorted to applying an "alternative causation" theory (eg, property under repairs) in violation of the spirit of Policy 308v2. Claimant argues that if one includes the Program's own calculation of Variable Profit for these two months, the resulting award is $1,009,078.23 pre-RTP, which it adopts as its final proposal. BP replies that Exhibit 7 allows compensation for "expected profit," but that during the two subject months there was no profit expectation, since Claimant was generally closed for renovations. This panel requested a Summary of Review concerning the Program's justification under the Settlement Agreement for "zeroing out" the two months that were part of Claimant's Benchmark Period, and also hypothetically requested a recalculation of the award were the two aforementioned months' variable profit included in computations. In due course, the Program responded in pertinent part that it used its professional judgment to decree that the "Expected Profit" as defined in Exhibit 7 was zero, because Claimant was generally closed for repairs during those two months. The Program further responded that if the two said months were included in award computations, the pre-RTP amount of the award would be $1,009,084.23. After careful review and due consideration, this panel is in unanimous accord with the position of Claimant. As pointed out by Claimant, Exhibit 7 repeatedly states that "expected revenue" is based upon "actual" profit and loss in the Benchmark Period. Nowhere in Exhibit 7 is it stated that different revenue/expense amounts should be used in cases where an entity was temporarily closed during part of its Benchmark Period. Additionally, though on its face applicable technically only to BEL and IEL claims, this panel is cognizant of the general philosophy espoused in Policy 308v2: "The Claims Administrator will...compensate eligible...claimants for all losses payable under the terms of the Economic Loss frameworks in the Settlement Agreement, without regard to whether such losses resulted or may have resulted from a cause other than the Deepwater Horizon oil spill provided such claimants have satisfied the specific causation requirements set out in the Settlement Agreement..."

As such, this panel finds that "zeroing out" the two subject months due to a temporary closure for repairs is in essence the attempted infusion of an "alternative causation" factor prohibited both by the aforesaid policy and many prior decisions of this panel and of the supervising courts. It further finds that the Program exceeded its professional judgment by applying this "alternative causation" theory.

Accordingly, Claimant's final proposal of $1,009,078.23, including the said two months in an award computation, and verified by the Program as accurate within a few dollars, is hereby selected by this panel.




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II. DECISION

















No error.

Comment (optional):

Claimant is a retailer of diamonds and other jewelry products, with approximately 1,890 retail locations. This claim is for store located in Birmingham, Alabama (Zone D), over 250 miles from the Gulf. The Settlement Program (SP) awarded Claimant $64,387.03 (pre-RTP .25). BP argues that in calculating Claimant’s award the Settlement Program (SP) misclassified three expense line items as payroll and fixed, rather than as variable: (1) “Field Incentive”; (2) “Total Field

2017-2990

Bonus”; and (3) “Percent Rent.” As to the general issue of variable over fixed expenses, BP asserts that “it is the actual nature of the expense at issue that is controlling, and not simply the label ascribed to it in Claimant’s records.” As to the specific grounds herein: First, BP argues the SP misclassified Claimant’s “Percent Rent” expense as fixed rather than variable. BP claims the SP “mechanically deemed the ‘Percent Rent’ line item as fixed because Exhibit 4D has a category for fixed rental expense.” However, it asserts Claimant’s financial documents specifically list three separate categories related to rent: (1) “Fixed Rent”; (2) “Extra Charges”; and (3) “Percent Rent.” While Claimant’s “Fixed Rent” and “Extra Charges” line items remain consistent from month to month, the “Percent Rent” line item varies drastically from month to month, fluctuating along with Claimant’s gross profit, and paid only in particular months throughout the year. This expense, contests BP, varies with Claimant’s revenue, and should have been classified as a variable cost and/or reallocated. Claimant submits that the SP correctly considered Percentage Rent to be fixed. Claimant asserts that Exhibit 4D of the Settlement Agreement clearly outlines that rental expense is to be considered fixed. Thus, Percent Rent should be considered fixed. Second, BP suggests that the SP misclassified Claimant’s “Field Incentive” and “Total Field Bonus” expenses as payroll: “Employee commissions such as Claimant’s are classified as variable expenses pursuant to Exhibit 4D of the Settlement Agreement and as such must be classified as variable irrespective of whether they are paid to employees as compensation.” BP points out that Claimant’s own professionally-prepared financial documents differentiate between “Fixed Payroll Expenses” and “Variable Payroll Expenses,” and include the line items “Field Incentive” and “Total Field Bonus” as variable expenses. Claimant again points out under Exhibit 4D of the Settlement Agreement these are a “Payroll” category, which may include both fixed and variable expenses, but as payroll related they are appropriately classified as fixed. Claimant asserts the SP correctly classified Field Incentive and Field Bonus as Payroll expenses under Exhibit 4D. Upon Summary of Review this Panelist sought additional information on nature of the expense classifications “Rent – Percent Rent”, “Payroll – Field Incentive”, and “Payroll – Total Field Bonus”. In response the SP explained: “Program Accountants classify expenses in accordance with Exhibit 4D [,which] specifically categorizes rental expenses as a Fixed cost…” “Program Accountants classified the expenses “Payroll – Field Incentive” and “Payroll – Total Field Bonus” as Salaries & Wages (Payroll) instead of Commissions (Variable), because both of these expenses included the expense heading “Payroll” and because the expense title itself did not indicate that these expenses were for commissions paid.” SP’s SOR response goes on to suggest that “[i]f Program Accountants were to classify the expenses “Payroll – Field Incentive” and “Payroll – Total Field Bonus” as Commissions (Variable) instead of Salaries & Wages (Payroll), the pre-Risk Transfer Premium and pre-Prior Payment Offset Compensation Amount would decrease from $64,387.03 to $62,181.93.” BP again reiterated in its SOR Response that “…the Settlement Program erred by ignoring the true nature of these expenses. The Summary of Review confirms that the Settlement Program classified these expenses because they contain the word ‘Rent’ and the heading of others contained the word ‘Payroll.’” While this Panelist believes BP’s protestation is valid, it is likewise determinative that the differential of $62,181.93 (pre-RTP.25) (as acknowledged by the SP in its SOR Response) versus the Claimant’s Final Proposal was $64,387.03 (pre RTP .25) is closer than BP’s Final Proposal of $48,911.33 (pre RTP .25). Accordingly, this decision is remanded for the purpose of awarding the amount the SP has last acknowledged in the SOR of $62,181.93 (pre-RTP.25) for which the Claimant’s Proposal is hereby chosen and the appeal of BP is denied.




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II. DECISION
















No error.

Comment (optional):

Claimant operates multi-facility manufacture and retail sale paint stores. This claim relates to its Foley, Alabama store. No Policy 495 criteria were triggered so the General BEL framework was used to analyze the claim. Following an award BP appealed raising three issues. Two have been consistently rejected by fellow panel members. Those are related to COGS and failure to obtain Sales and Use tax returns. They are rejected here as well. See Appeal Panel Decision # The third issue involves an expense item labeled "72 All Other" expenses. It is a miscellaneous expense item that includes various taxes paid, service contract fees, insurance and advertising/marketing expenses. BP argues it should have been

2017-2991

divided on a 50-50 split between fixed and variable expenses. The Vendor Accountants used their discretion and classified them as all fixed. Even if wrong, BP sets the reduction to the award at $793. That reduction is simply not enough to justify a remand. This panel member is not convinced an error has been made in classifying this expense. The award is affirmed.




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II. DECISION
















No error.

Comment (optional): Claimant operates multi-facility manufacturing and retail paint stores. This claim is related to its store in Port Charlotte, Florida, Zone C. No Policy 495 criteria were triggered so the claim was calculated using the General BEL framework.

Following an award BP appeals raising two issues. First, misallocating the manufacturing division of costs of goods sold and Second, the Administrator failed to obtain sales and use tax returns. These two issues have been considered and rejected

by prior panel members and this panel member has read and considered numerous opinions and finds them persuasive. The decision in Claim # as it relates to these issues is adopted as the decision and reasons in this claim.

2017-2992




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II. DECISION
















No error.

Comment (optional):


2017-2993


Claim ID

The Settlement Program awarded $298,105.45, pre-RTP to the Claimant’s retail facility in Grove, Texas. The AVM methodology was used to resolve matching issues. BP appeals, raising two assignments of error. First, BP argues that the Settlement Program incorrectly allocated COGS by Claimant’s manufacturing and purchasing divisions to the Claimant’s individual stores. BP also maintains that the Settlement Program failed to require Claimant to provide sales and use tax returns. BP’s first assignment of error is based on Claimant’s business model which includes divisions for manufacturing and purchasing paint as well as retail and commercial sales. BP argues that Claimant incurred four specific categories of expenses at the division level which were allocated by the Settlement Program to each retail store based on the store’s percentage of total COGS. BP argues that these expenses were not incurred by any of the individual stores and should not have been included on the P&Ls. Claimant responds that the reviewing accountants went into great detail investigating the Margin Variance methodology used in its P&Ls, making a number of adjustments including the COGS accounts that are the subject of BP’s appeals. Indeed, the Calculation Notes explain the adjustments and their relationship to the individual stores:

Per Doc ID: the Claimant explained that the detailed store level P&L statements referenced above, include financial activity before certain margin adjustments are applied. These margin adjustments are used by management to track certain costs related to inventory, inventory valuation, and to assist in decision making surrounding COGS at both the division and store-level (Global Note Contact ID: A portion of these adjustments are allocated from the manufacturing division to the stores division (A100) as a whole, rather than to the individual store P&Ls. The retail stores are treated as their own consolidated operating entity. All management adjustments were made in order to true-up costs and arrive at the actual COGS for the products sold at the store (Global Note Contact ID: The Claimant provided the following information about each margin adjustment recorded at the division-level in Doc ID: and Global Note Contact Ids: : 1. Overbill & Overbill Contra - A standard price for items sold is seteach year (i.e. standard costing). In certain instances, this standardcost must be adjusted. For example, actual costs of items or rawmaterials may fluctuate throughout the year. These costs usually goup, but can also go down depending on seasons, climate, freight, etc.2. APDC - Associated products in the distribution center. Instead ofshipping products directly multiple stores, the Claimant orders itemsand bulk ships them to a regional distribution center. Items are thendelivered from this distribution center to the stores to replenish what

is sold. By purchasing and shipping small ticket items in bulk, the Claimant is able to secure various volume discounts and rebates from these suppliers. 3. LIFO Adjustment - Inventory adjustments made in the normal course of business to account for the Last In First Out method of accounting. 4. Vendor Credits - Volume discounts, rebates and other product cost reductions earned during the manufacturing process. DWH Accountant determined that all four of these items are direct costs to the filing facilities, and need to be allocated to the store-level P&Ls. The Claimant also explained that “Other-COGS” was recorded at the division level. However, this account relates to eliminations upon consolidations for tax purposes, and is not indicative of true cost savings at the store level (Doc ID: pg. 1). De novo review sufficiently persuades this panelist that the margin adjustments were a reasonable exercise of the vendor accountant’s professional judgment. BP also argues that as a retail business, Claimant was obligated under Exhibit 4A to provide monthly sales and use tax returns for the Benchmark Period, 2010 and if necessary, 2011. BP complains that the Settlement Program erred in failing to require the Claimant to furnish these documents because it is a retail store. BP argues that Claimant is not entitled to compensation absent the submission of these documents but fails to explain how the sales and use tax returns would have altered the award. Claimant points out that the Settlement Program assigned it NAICS Code 325510 - Paint and Coating Manufacturing. This industry comprises establishments primarily engaged in mixing pigments, solvents and binders into paints and other coatings and/or manufacturing allied paint products such as putty and paint remover. The Settlement Program presumably assigned this code based on the fact that Claimant is engaged in the manufacturing and purchasing of paint as well as its retail and commercial sales. Hence, Claimant argues that sales and use tax returns are not required. This was a reasonable approach by the Settlement Program based on the overall nature of Claimant’s business operations. No error has been shown. Although BP submitted a Final Proposal of $191,520.00, no error has been demonstrated that would require remand or justify selection of BP’s Final Proposal. Claimant’s Final Proposal is the correct result and is therefore selected.




First

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II. DECISION
















No error.

Comment (optional):

Claimant,a boat repair business located in Pensacola,Florida,appeals the correctness of its BEL award.Claimant asserts the

Settlement Program(SP) improperly applied policy 495 when it adjusted a portion of claimant's financials contrary to recent court decisions. Claimant argues the SP adjusted a COGS expense and restated it incorrectly.BP argues the COGS expense

represented discounts to prices charged to customers and was reclassified by the SP as a reduction to claimant's revenues

in the same month as actually recorded. A review of the record discloses the SP determined the claim was not sufficiently matched and applied policy 495 and the

2017-2994

AVM methodology to process the claim.The record also reflects the SP made the following adjustment to "Discounts Given"

as explained in paragraph 10 of the calculation notes: "DWH Accountant observed 'Discounts Given' in the Costs of Goods Sold section of the Claimant's P&Ls. As these discounts appeared to represent reductions to the prices charged to

customers,DWH Accountant reclassified 'Discounts Given' as a reduction to the Claimant's revenue." This adjustment appears correct and did not involve the impermissible restatement or reallocation of claimant's financials as the item

adjusted remained in the same month as previously recorded.Thus,this panelist concludes the SP correctly applied policy 495 and the AVM methodology without offending recent court pronouncements.Accordingly,the decision of the Claims

Administrator is affirmed and the appeal of claimant is denied.



Claimant Name


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II. DECISION
















No error.

Comment (optional):

Claimant,a specialty aggregate materials supplier in Perkinston,Mississippi,appeals the correctness of its BEL award.Claimant asserts the Settlement Program(SP) incorrectly applied policy 495 when it failed to consider claimant's

restated financial records during the review process.Claimant argues the SP requested revised P&Ls reflecting revenue in

the month actually earned rather than P&Ls based on the timing of its deposits of revenues when received.Claimant contends the SP never considered this revised data thus flawing the award.BP argues claimant used cash basis accounting

2017-2995

and that its P&Ls reconciled with its federal tax returns.

A review of the record discloses that the SP determined the claim was not sufficiently matched and applied policy 495 and the AVM methodology to process the claim.A review of the calculation notes reflects the SP considered three areas of

concern in the course of its review: multiple P&Ls submitted by claimant; recognition of revenues process; and variances in tax returns and P&L information.Claimant has failed to demonstrate how the SP committed error in the adjustments and

reconciliations it made. This panelist can find no basis to disturb the determination made by the SP in its application of the AVM methodology.Accordingly,the decision of the Claims Administrator is affirmed and the appeal of claimant is denied.




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II. DECISION
















No error.

Comment (optional):

Claimant, a resident of Theodore, Al, appeals the Program's Subsistence award in the pre-RTP amount of $1082.07. In his Notice of Appeal, his counsel simply states that Claimant lost more than the 72 days of fishing time upon which his award was based. No Supporting Memorandum was filed, which on a procedural basis alone justifies the dismissal of this appeal. Even if we were to proceed to the merits, it is clear that Claimant has not come forth with any specific objective evidence that his fishing time in his asserted area, Dauphin Island, Alabama, exceeded 72 days. The website of the State of Alabama Department of Conservation and Natural Resources indicates that the Dauphin Island waters were closed as early as June

2017-2996

10, 2010 and were reopened at the latest on August 16, 2010. Some areas around Dauphin Island were reopened much earlier than that. The Program's 72-day finding was, if anything, a generous finding for this Claimant. Indeed, his counsel's final proposal of $20,000.00, with no explanation or justification, exceeds by $10,000.00 the maximum amounts that may be awarded without a required Field Visit (See Exhibit 9, Sec E of the Settlement Agreement). Accordingly, BP's final proposal which affirms the underlying award is hereby chosen in this "baseball" appeal process.




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II. DECISION

















No error.

Comment (optional):

Claimant is a Boyle, Mississippi farm (Zone D). Claimant’s financials triggered matching criteria and the Settlement Program calculated the award based upon the Agricultural Methodology. Use of the ISM requires remand of this claim for recalculation under the AVMM pursuant to the Fifth Circuit’s Policy 495 Opinion and the subsequent order from the District Court.

2017-2997

The panel has also considered the additional issue raised on appeal by BP. The record reveals that Claimant shares common ownership with and performed custom work for . in September and October of 2011. The revenue from this work was recorded in 2012 and the Program moved it to 2011. BP contends that the Program should have investigated the related party issue further and, even if the revenue was correctly considered, it should have been allocated during the entire rice and soybean season. De novo review suggests otherwise. The Program investigated this issue and noted that Claimant charged $28 per acre for its work which the Program found to be the average rate for the industry. It was appropriate for the Program to reallocate the revenue for the custom work to the months it was performed. Accordingly, the panel finds the issues raised by BP to be without merit. The claim is remanded to the Program for the sole purpose of recalculating Claimant’s award under the AVMM.



Claimant Name


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Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

Claimant, a Byhalia, Ms (Zone D) installer of underground utilities, appeals through its accountant the Program's conversion of its BEL claim to a Failed BEL claim and its subsequent denial of an award because as a Zone D Failed BEL claimant it

could not satisfy either the "Tourism" or "Seafood Distribution Chain" definitions required by Exhibit 6 of the Settlement

Agreement. Claimant argues that it has been operating under the same name in a business owned 100% by since 2005. It

then admits that on October 1, 2010, it had a "change of ownership," and became a part of As of that date, Claimant had several long-term projects still to perform, which were billed under the auspices of of which

was a stockholder. Claimant avers that since continued the operations of Claimant and was partially owned

by its owner, , that it did not fit the definition of a "Failed Business" under the provisions of Section 38.68 of the Settlement Agreement.

A de novo review of this record confirms that the matter was properly denied. Records reflect that was only a 20% stockholder in Indeed, even were it 100% stockholder, the fact that the subject business was being operated at

relevant times by a different entity qualified Claimant as a Failed Business. This is based upon certain "bright line" concepts for business entities advanced by the supervising District Court (See, eg, decisions 2015-1820 and 2016-263).

Since Claimant admitted even in its claim form that it qualified neither for Tourism nor Seafood Distribution Chain status, as

a Zone D Failed BEL claimant its claim was ineligible for an award under Exhibit 6 of the Settlement Agreement.

2017-2998




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II. DECISION
















No error.

Comment (optional):

See upload.

2017-2999

Claim No.:

Claimant is an asphalt manufacturing and construction company headquartered in Dothan, Alabama, which received an award of $4,112,572.75, pre-RTP. BP appeals, first contending that the Settlement Program (SP) failed to properly investigate Claimant’s revenues. Claimant utilizes the percentage of completion revenue recognition method. This means that Claimant recognized revenue on a monthly basis based on its estimate of the degree of completion of the project and the costs remaining to be incurred. Claimant provided internal revenue recognition reports to substantiate its revenues, but did so, according to BP, only for two months in 2009 (October and November). The SP determined that these two reports reconciled to the P&Ls, but BP contends that the SP did not request supporting documentation for any other month in the relevant time period. Thus, BP asserts that because the SP did not request the “necessary documentation to substantiate Claimant’s revenues in months other than October and November 2009,” this issue warrants remand. Panelists requested a Summary of Review on this issue. The request and response were as follows: “[Request]: BP argues that the Program did not request the “necessary documentation to substantiate Claimant’s revenues in months other than October and November 2009.” Specifically, BP contends that Claimant did not provide internal recognition reports for months other that October and November 2009. a. Is BP correct or incorrect? b. If correct, why didn't the Program request these reports for other relevant months? [Response]: The Claimant did not provide internal revenue recognition reports for months other than October and November 2009. Per Calculation Note 12: "The Claimant provided internal revenue recognition reports, entitled 'Profit Recognition Report' for October and November 2009 as supporting documentation for the revenues recognized in these periods. (Document ID: and DWH Accountant reviewed these reports and the revenues recorded per the P&Ls for these months closely matched the total revenues per the internal reports." Based on the aforementioned, DWH Accountant exercised professional judgement in determining that additional support for the Claimant's revenues were not necessary.” As a result of this response, Panelists unanimously conclude that the SP’s professional judgment was sound and the Claimant’s Proposal in this regard is due to be accepted. Next, BP contends that the SP also misclassified Claimant’s “Automobile - shop rental” expense as Fixed instead of Variable. BP asserts that it appeared that this line item related to automobile rentals in connection with specific construction jobs, and as such should have been classified as variable travel expense pursuant to Exhibit 4D of the Settlement Agreement.

Claimant responds by asserting that BP failed to state the revenue investigation issue on the Notice of Appeal, thus violating the provisions of Rule 14 of the Rules Governing the Appeals Process. Therefore, Claimant contends that this issue should not even be considered. Claimant than recites a litany of communications, documents and reports requested and reviewed by the Settlement Program relating to this issue, and further asserts that what documents are needed for such a determination is within the Claim Administrator’s sole discretion. As to BP’s allegation relating to “Auto-shop rental,” Claimant points out that the title of the expense says it relates to the “shop.” Claimant has a separate account for travel-related auto expense and the expense is in almost the exact same amount from one month to the next which would not be expected of travel related expenses.

As to this issue the Panelists also requested a Summary of Review and received the following response:

“[Request]: BP also argues that “Automobile - shop rental” relates to automobile rentals in connection with specific construction jobs.

a. Is this correct or incorrect?b. If correct, what is the basis for classifying this expense as fixed?

[Response]:“The expense line "Automobile-shop rental" was classified as Rental Expense - Fixed in accordance with Exhibit 4D of the Settlement Agreement. DWH Accountant did not specifically inquire as to the nature of "Automobile-shop rental" and therefore cannot confirm whether the expense relates to automobile rentals in connection with specific construction jobs. However, if the expense was classified as Variable, the Compensation Amount would be $4,106,639.09, prior to Risk Transfer Premium and Prior Payment Offset. This is a Compensation Amount difference of $5,933.66 as compared to the Eligibility Notice issued on March 28, 2017 (Doc ID:

As a result of this response the Panelists conclude that the “Auto-shop rental” was properly classified as a fixed expense. However, as the SP points out, even if the expense was considered variable, which this Panel does not conclude, it would not have made a material difference in the award to change the result.

In addition, BP appeals on the attestation issue but pursuant to the stipulation entered into between BP and the Class Counsel this issue is preserved for further review at a later time.

Accordingly the Panel unanimously concludes that the Claimants Proposal/Award of $4,112,572.75, pre-RTP is due to be accepted, that there was no error in the calculations, and that the appeal of BP is due to be denied.




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II. DECISION



Compensation Amount $4.64














No error.

Comment (optional):

Claimant appealed the amount of his IEL claim award. On August 9th the panelist emailed the Settlement Program as follows:

I request a Summary of Review for this claim as follows: Claimant was originally awarded a Compensation

2017-3000

Amount of $2,319.22 on his IEL claim. (Doc. ID A Post-Re-Review Eligibility Notice issued December 14, 2016 (Doc. ID retained that amount, advising “The Claimant requested Re-Review after receiving an Eligibility Notice. The previously submitted SWS-12 for is insufficient because it includes an electronic signature from the employer. The Program requires an SWS-12 that includes a handwritten employer signature.” A Post-Reconsideration Eligibility Notice issued February 1, 2017 (Doc. ID reduced the Compensation Amount to $4.64, explaining, “The claimant’s attorney requested Reconsideration after receiving a Post-Re-Review Eligibility Notice. The Settlement Agreement requires us to determine the Compensation Period and Benchmark Period that results in the most favorable outcome for the claimant. We determined that a Compensation Period of 5/16/2010 to 10/9/2010 with a Benchmark Period of the same dates in 2008 and 2009 Base Years results in the most favorable outcome for the claimant. A such, the losses related to all Claiming Jobs amount decreased.” On February 21, 2010 uploaded a copy of the SWS-12 for

bearing a handwritten employer signature. (Doc. ID and did likewise for his other claiming job with on April 6, 2017 (Doc. ID In Final Proposal he details a set of circumstances which he says

prevented earlier satisfaction of the requirement for SWS-12 forms bearing handwritten signatures. My questions for Summary of Review are (1) why and how did the determination of “the most favorable outcome” for result in a drop in the Compensation Amount from $2,319.22 to $4.64; (2) would the SWS-12 for submitted February 1, 2017 suffice if accepted; and (3) what would be the Compensation Amount if both claiming jobs were given recognition and “the most favorable outcome” were truly sought by the Settlement Program? In due course, the Settlement Program responded as follows: The Claims Administrator submits the following response to the Appeal Panelist’s request for further information concerning the Individual Economic Loss (“IEL”) claim referenced above. The Appeal Panel asked for a Summary of Review explaining how and why the Claimant’s Compensation Amount was reduced on Reconsideration, as well as what the Amount would be if both Claiming Jobs passed Causation. Claimant filed an IEL claim for two Claiming Jobs, one at and another at .

provided 2008-2010 W-2s for both jobs, and Pay Period Earnings Documentation (“PPED”) for also submitted financial documents for a Non-Claiming Job at , a job she held from

1/1/2009-12/31/2009. The Claimant provided a SWS-12 from , stating that the Claimant had a work gap in May of 2010, directly due to the Spill (Doc ID The review completed on 12/1/2016, concluded that the explanation for the gap in her earnings of 5/16/2010 – 10/2/2010 was that the “Claimant was involuntarily furloughed by his or her employer due to the Spill”. The Program assigned $0 earnings for this period. The optimal Benchmark Period for that review was 5/16/2009 – 12/18/2009. Because of the Spill-related gap, the Program used the income from 5/16/2009 – 10/2/2009 in the earnings loss calculation. In the subsequent review completed on 1/27/2017, the designated explanation for the 5/16/2010 – 10/2/2010 gap was “Unknown,” which resulted in a Non-Spill-related gap designation. A Non-Spill-related gap still counts towards the 90-day Compensation Period requirement from the Settlement Agreement, but the system does not use $0 earnings to calculate a loss. The optimal Benchmark Period for the 2017 review was 5/16 – 10/9 in 2008 and 2009. Because of the Non-Spill-related gap from 5/16/2010 – 10/2/2010, the Program used an average of the income from 10/3/2008 - 10/9/2008, and 10/3/2009 – 10/9/2009. This led to a smaller Lost Earnings calculation. The Claimant did not provide a SWS-12 from until 2/21/2017. Accordingly, it was not considered in the claims review process. To determine the Compensation Amount if both Claiming Jobs were eligible, a full review through the system would be required given the complexity of the calculation involved. The panelist deems the appropriate course under all of the circumstances is to remand the claim to allow the Program to consider the SWS-12 from and determine the Compensation Amount due if both Claiming Jobs are considered. Claim remanded.




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II. DECISION
















No error.

Comment (optional):

Claimant operates a store in Corinth, Mississippi. The Settlement Program awarded Claimant $42,300 pre-RTP. Claimant appeals this award contending that the Settlement Program erroneously calculated this claim using the AVM methodology instead of processing it under the standard BEL Exhibit 4C. The Claimant has filed prior appeals with identical issues as the instant appeal (e.g. Claims ). In those claims, as here, Claimant’s financials triggered matching criteria and the AVM was applied. Claimant argued in those appeals, as it does

2017-3001

here, that there were logical explanations for the variable margin variances that the Program failed to investigate. The Appeals Panel disagreed and upheld the discretion of the Program to apply a Policy 495 methodology. Here, the Settlement Program found sufficient basis to apply the AVM after matching criteria were triggered. This is in keeping with the dictates of Policy 495 and prior decisions of the District Court. This panelist finds an insufficient basis to overturn the Settlement Program’s decision and denies Claimant’s appeal. BP’s final proposal adopted.



Claimant Name


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II. DECISION
















No error.

Comment (optional):

See written reasons uploaded to portal

2017-3002

CLAIMANT:CLAIM ID:

The Settlement program originally denied this claim after reallocating grant revenuesreceived by Claimant and applying the AVM Methodology of Policy 495. While the claim wasunder Reconsideration, the May 22, 2017 U.S. Fifth Circuit ruling occurred and the U.S. DistrictCourt’s May 25, 2017 Interim Order was issued. Thereafter, the Settlement Program reversed thereallocation of grant revenue and recorded the grant revenue in the month it was received. Then,Claimant’s financials were subjected to analysis under the AVM Methodology and an EligibilityNotice was issued awarding Claimant the sum of $213,803.07 (pre - 0.25 RTP).

BP appeals that award asserting that the Settlement Program’s reversal of the reallocationof grant revenues was incorrect because the reallocation was correct and necessary to correct“errors” as allowed under Policy 495. However, the District Court’s Order is crystal clear instating that the Settlement Program “shall not reallocate revenues, except for the purpose ofcorrecting errors”. In this case, Claimant utilized the cash accounting basis and recorded revenuein the months the revenues were actually received. This does not qualify as an “error”. Therefore, the Settlement program followed the District Court’s Orders in analyzing this claim. Likewise, the Appeal Panel is compelled to do the same. BP’s appeal is denied.




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II. DECISION
















No error.

Comment (optional):

See written reasons uploaded to portal

2017-3003

CLAIMANT: CLAIM ID:

Claimant originally filed a Multi-Facility for four vacation rental properties he andhis wife owned and operated in Sugarloaf Key, Florida (Zone A). As required he filed aClaim Form for each of the four properties (Claim ID’s )and all of these claims were filed before the June 8, 2015 deadline. The SettlementProgram issued an Eligibility Notice for the Multi-Facility claim on December 21, 2016. Claimant requested Re-Review after apparently determining that he could maximize hisrecovery if the four properties were analyzed individually and not as a Multi-Facilityclaim. The Settlement Program then analyzed each claim individually and on this claimawarded Claimant the sum of $75,514.38 (pre - 2.50 RTP). BP appeals.

BP first takes issue with the Settlement Program allowing the Claimant to havethe claims analyzed individually asserting that doing so allows the Claimant to file newclaims after the June 8, 2015 deadline. BP’s position is without merit. The record isclear that four claims for each of Claimant’s properties were filed before the deadline. Further, the Settlement Agreement makes it abundantly clear that the ClaimsAdministrator must afford Claimant the best opportunity to receive the maximumcompensation under the terms and provisions of the Settlement Agreement (SeeSection 4.3.8). That is exactly what the Claims Administrator did here. By analyzingthe four claims separately, the Claimant received more compensation than he wouldhave received as a Multi-facility Claimant.

BP also appeals asserting that the Settlement Program erred in allowingClaimant to create and provide P&L’s on a facility by facility basis when such P&L’swere not contemporaneously created. However, Policy 464 does allow Claimant’s whodid not maintain P&L’s in the ordinary course of business to create monthly P&L’sbased on contemporaneous alternate source documents. The record reflects that iswhat Claimant did in this case and it passed muster with the Claims Administrator’sprofessional accounting staff. BP’s appeal on that issue fails.

After de novo review, Claimant’s final Proposal prevails.




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II. DECISION

















No error.

Comment (optional):

See attached decision uploaded into the portal.

2017-3004

DWH:

Claim ID:


In this appeal of a Business Economic Loss award to a Birmingham, Alabama (Zone D) general contractor which specializes in landscaping and installation of irrigation systems, BP asserts that the Claims Administrator erred in his treatment of Claimant’s Automobile Expense. It requests remand to address the issue; alternatively, it submits Initial and Final Proposals reducing Claimant’s award from $196,922.44 pre-Risk Transfer Premium to $146,978.44 pre-RTP to account for the alleged error.

Examination of the record reveals that in reviewing Claimant’s financial data in keeping with the requirements of CAO Policy 495, the Administrator determined that matching issues existed which he corrected utilizing the Construction Methodology. That necessitates remand in keeping with the May 22, 2017 Fifth Circuit Policy 495 Opinion and subsequent Orders of the supervising District Court. In so doing, however, this panelist will address BP’s expense issue.

According to BP:

Pursuant to the Settlement Agreement, automobile expenses are classified as fixed costs while fuel and repair expenses are classified as variable costs. See Settlement Agreement, Exh. 4D. Claimant’s profit and loss statements (“P&Ls”) include an “Automobile Expense” line item that was categorized as a fixed expense by the Settlement Program. See Financial Data Used by Accountants (Doc. ID Claimant’s P&Ls also include separate line items for fuel and repair costs—including “Fuel,” “Repairs/Maintenance,” and “Equipment Repairs”—that were categorized as variable expenses by the Settlement Program. See id.

However, Claimant’s P&Ls do not show significant variable expenses that are associated with these fuel and repair line items. See id. In fact, there are no “Fuel” expenses recorded at all from 2009 through 2011, while there are such expenses recorded for 2007 ($42,797.92) and 2008 ($6,896.50). See id. Additionally, no “Repairs/Maintenance” expenses are recorded at all. See id. Further, the “Equipment Repairs” expenses for 2009, 2010, and 2011 were $916.96, $1,254.64, and $2,153.16 respectively. Meanwhile, the “Automobile Expense” line item is one of Claimant’s largest expense line items and it fluctuates every month, indicating that this is not a fixed expense that is unrelated to Claimant’s sales. Therefore, it is likely that fuel and repair costs are embedded within the “Automobile Expense” line item.

Document ID BP’s Initial Proposal Memorandum.

The record does not support BP’s position. As Claimant correctly notes, its Repairs/Maintenance expenses were properly categorized as 50% variable and 50% fixed. Document ID Claimant’s Monthly P&Ls (Restated), page 3. Insofar as Claimant’s fuel costs are concerned, outreach to the Claimant satisfied the Administrator that those costs were included under its “Credit Card Account”, along with purchases of materials and meals; as these expenses are all variable, he classified them as “Other – Variable”. Accordingly, this BP issue is insupportable.

Following de novo review, and for the foregoing reasons, this BP appeal is denied. The claim is remanded to the Claims Administrator for further processing in keeping with the rulings of the Fifth Circuit and the District Court.

Decision: September 5, 2017




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Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

Reasons uploaded

2017-3005

CLAIMANT: CLAIM ID:

Claimant submitted an original Subsistence Claim asserting he harvested 11,040 lbs. ofwild seafood in the year before the Spill. The Field Team conducted an interview and field visitand denied the claim. The Claimant requested Re-Review. The Post Re-Review Denial Noticestates:

“The claimant requested re-review of the entire claim. We issueda Denial Notice (Doc File ID on 12/5/2016. As a resultof the field visit conducted on this claim, the Field Team validatedthe information presented with the re-review request does notsupport the reversal of the original determination of a denial. Theunreasonable determination by the Field Team is based on theClaimant’s stated harvest of 11,040 pounds of lost fisheriesproduct during the given 12-month harvest period which isunreasonable for even the best of Louisiana fishermen. TheClaimant incorrectly identified 5 of the 7 claimed species from acolored species chart provided by the Field Team. In addition, theClaimant only possessed one refrigerator/freezer, which isinadequate cold storage to store his claimed poundage.”

The Claimant sought Reconsideration lowering his harvest amount to 3,610 lbs. The Post-Reconsideration Denial Notice states:

“The claimant requested reconsideration, indicating we failed toconsider relevant information. In support of the request forreconsideration. The claimant submitted an amended SubsistenceInterview Form (Doc File ID reducing the weights of theclaimed loss of species and photographs of his fishing equipment. However, this claim is Denied as a result of the Field Team Visit.

The information presented with the reconsideration request doesnot support the reversal of the original and re-revieweddetermination of a denial. The unreasonable determination by theField Team is based on the Claimant’s originally stated harvest of11,040 pounds of lost fisheries product, as discussed at the fieldvisit, during the given 12-month harvest period. The harvest of306 pounds of fish each trip for 36 trips in a year is beyondunreasonable for even the best of Louisiana fishermen. With thereconsideration request, the Claimant reduced his total poundagefrom 11,040 to 3,610 pounds stating that the original poundagerepresented a group harvest. However, during the field visit, theClaimant stated that he was the sole person responsible for thereported poundage.

Claim ID Page 2

The Claimant had over 3 years form his original claim formsubmission until the date of the field visit to reduce his poundageto reflect a more reasonable harvest. Because the poundage wasnot reduced prior to the field visit, the Field Team does notrecommend a change in the determination made in this claim.

Even if the Field Team were to consider the reduced poundage, theClaimant would still be claiming over 100 pounds per trip, which isconsidered unreasonable. In addition, the Claimant incorrectlyidentified 2 of the 7 claimed species (flounder and white trout)from a colored species chart provided by the Field Team.

The Field Team recommends upholding the denial of this claim inits entirety.”

The Appeal Panelist has conducted a de novo review of the record in this matter. That reviewconvinced the Panelist that the Claims Administrator was correct in denying this claim. Threeyears after swearing that he alone harvested 11,040 lbs. of seafood, Claimant suddenlyremembered he only harvested less than 1/3 of that amount. That assertion coupled with theField Visit Team’s findings support the denial.




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Law Firm

II. DECISION

Denial Upheld

Denial Overturned








No error.

Comment (optional):

Claimant,a resident of Gray,Louisiana,appeals the denial of his Subsistence claim on the basis he failed to submit proper

documentation to fish and hunt for listed species.Claimant asserts he possessed such documentation including his lifetime license issued by the State of Louisiana.The Settlement Program(SP) denied the claim in its entirety on the grounds

claimant did not produce such necessary licenses or show exemption therefrom.BP argues the SP properly denied the claim

and further argues claimant's harvest totals are implausible. A review of the record discloses after denial notices issued claimant produced legible copies of his combination lifetime fishing and hunting license issued by the State of Louisiana on

August 5,2003.In this procedural posture this claim is no different from so many others where remand has been decreed in other panel decisions.This panelist defers ruling on BP's implausibility argument until it is first addressed by the SP.

Accordingly,this claim is remanded to the Claims Administrator for further evaluation and processing.

2017-3006




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Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

The Settlement Program denied Claimant’s Subsistence claim because the highly inflated and contradictory allegations of

lost catch he submitted, and rightfully so. The review of the Field Visit states:

“Based on the history of the numerous changes made in the life of this Claim, the Field Team could not validate any

reasonable method the Claimant used to estimate harvest/losses reported. The Field Team recommend denial based upon the Claimant’s ever-changing information, which if accurate would have meant that he had four harvests per month over

an 18- month impairment period which would equate to 72 trips. With a total alleged harvest 8,960 pounds of finfish, this would require 124 pounds per trip. The information provided by the Claimant suggested that he harvested all finfish at a

continuous rate from March through December of each year. The reported harvest success would be at stark contrast with traditional harvest success rates in the areas fished by the Claimant in comparison to migration patterns, fish sizes and

consistency of available fisheries resources throughout the year. The Field Team deemed the harvest/loss of over 100

pounds of finfish per trip over a 72-trip run while only fishing four times per month to be unreasonable.”

Claimant does not even attempt to address the glaring inconsistencies among his own prior sworn statements. Nor does Claimant address the Field Team’s conclusion that his claimed catch was clearly inflated and unreasonable. The Appeal

Panel has repeatedly rejected attempts by Claimants to assert inflated and inconsistent catch totals with no reasonable

explanation, and this Appeal Panel will do the same. Claimant’s appeal is denied.

2017-3007




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II. DECISION
















No error.

Comment (optional):

BP appeals a Subsistence award in the pre-RTP amount of $26,611.61 to a Lucedale, Ms claimant and his alleged dependents. First, it asserts that the Program erred by considering loss information from Mississippi waters,when an original award pertained to Claimant's assertions that his harvesting area was off the Alabama Gulf coast. A de novo review of this record indicated that Claimant's counsel erroneously submitted SCAT maps that included not only Alabama closures but also those in Mississippi; however, the Program's award was a reflection of its review of Claimant's SWS 43 and certain objective data submitted pertaining to oiled Alabama waters (See Doc ID ). The SCAT map error was therefore

2017-3008

irrelevant to the award. BP further assails the volume of harvest upon which the award was made, asserting it was unreasonable and in fact based upon an estimate for two fishing seasons rather than one. A review of this record reflects that an award was made to cover the better part of two seasons, from April, 2010 to the latter part of 2011, justifying the essentially double volume. This panelist has reviewed scores of Subsistence claim forms, and the per season allegation of lost harvest herein (5404 pounds from some 8 species and many family members) is not unreasonable, in stark contrast to many claims rejected by this panelist involving ridiculously inflated or inconsistent representations. Indeed, the Field Visit Team of the Program independently verified the claimed harvest. This panelist on this record cannot undermine those findings. Lastly, BP questions the fluctuation in the number of Claimant's claimed dependents. As explained by Claimant's counsel, this was a function of certain dependents who were unverified by the Program or those who requested removal from this claim. In sum, on this record, this panelist must choose Claimant's final proposal, which affirms the award in its entirety, especially in light of BP's unrealistic final proposal of $0.



Claimant Name


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Law Firm

II. DECISION

Denial Upheld

Denial Overturned








No error.

Comment (optional):


2017-3009

CLAIMANT:CLAIM ID:

Claimant operates a Catholic Church and a Catholic elementary school in Laplace,Louisiana and filed a Multi-Facility BEL Claim in January, 2013. In February, 2014 Claimantfiled a separate claim for the school only (Claim ID Then Policy 495, with theEducation Methodology, was promulgated. The Claims Administrator (CA) analyzed the claimas a Multi-Facility claim and denied the claim for failure to pass the causation test. Claimantappealed, asserting the CA applied the Policy 495 Education Methodology to the entire claim andrequested that the claims be analyzed separately and not as a Multi-Facility claim.

The Appeal Panel granted Claimant’s appeal and instructed the CA to analyze the claimsseparately. The CA did so and denied both claims for failing causation tests. Claimant appealedboth denials. Then, while both appeals were pending, the U.S. Court of Appeals for the FifthCircuit issued its May 22, 2017 ruling overturning the Educational Institution Methodology ofPolicy 495. Subsequently, the Appeal Panel remanded the school’s claim to the CA withinstructions to apply the AVM Methodology and to refrain from reallocating revenue except tocorrect errors. That claim (Claim ID is currently in accounting review.

In the instant appeal (Claim ID Claimant now seeks to have the Appeal Panelremand this claim with instructions to the CA to analyze both the school and the church as aMulti-Facility claim, which Claimant now asserts would maximize Claimant’s recovery.

The Appeal Panel congratulates Clamant’s counsel for his dogged determination to securecompensation for his client, Neither Claimant not its counsel can be blamed for the multiplecourt decisions interpreting the Settlement Agreement and changing the rules under which claimsmust be analyzed under the Settlement Agreement. Thus, its not the fault of Claimant nor itscounsel that we are back where we started.

According, as the school’s claim has not been adjudicated, this matter is remanded to theCA to analyze the claims as a Multi-Facility claim under the AVM Methodology of Policy 495. Further, the CA shall not reallocate revenue except to correct errors, per the Order of the U.S.District Court.




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Law Firm

II. DECISION

Denial Upheld

Denial Overturned








No error.

Comment (optional):


2017-3010

CLAIMANT:CLAIM ID:

Claimant filed a Start-Up BEL claim (Zone B) which was denied by the SettlementProgram upon a finding that Claimant did not pass the Customer-Mix test of Exhibit 7 of theSettlement Agreement. Claimant appeals.

Claimant asserts that the address for two customers were classified by the SettlementProgram as Zone D. Claimant, on appeal, provides documentation to attempt to prove that oneof the customers in question lives in Zone B and the other lives in Zone C. Claimant previouslylisted the two customers as follows:

1)

Houma, Louisiana 70363

2)

Pensacola, Florida 32506

The Settlement Program could not identify these 2 addresses as valid and classified both asZone D customers.

On appeal, Claimant produced 2017 documents from the Terrebonne Parish AssessorsOffice allegedly proving that correct address is:

Houma, Louisiana 70363

Claimant asserts the Assessor’s documentation shows that has lived at that addresssince 2006.

On appeal, Claimant provides documents from the office of the Escambia CountyProperty Appraiser which allegedly prove that ’ correct address is :

Pensacola, Florida 32506

Claimant further asserts that these documents prove that has resided at thataddress since 2000.

Claimant asserts that if address is assigned to Zone B and ’ addressis assigned in Zone C, Claimant passes the required Customer-Mix test.

The Settlement Program’s professional staff has not bad an opportunity to review theaforementioned documentation. Therefore, this matter is remanded back to the SettlementProgram for its staff to evaluate this new documentation and determine if Claimant passes theCustomer-Mix test.




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II. DECISION
















No error.

Comment (optional):

Reasons uploaded

2017-3011

CLAIMANT:CLAIM ID:

This is a Claimant appeal of a negative award to Claimant on his IEL claim. The AppealPanel has reviewed the record and is satisfied that the Claims Administrator properly calculated theaward. Further, as BP correctly points out, even if the Claims Administrator adopted Claimant’sarguments, the result would still be a negative award. Claimant’s appeal is without merit.




First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned








No error.

Comment (optional):


2017-3012

DWH:

Claim ID:


This Claimant operates a sugarcane farm in New Iberia, Louisiana (Zone B). Its Business Economic Loss claim was denied for failure to satisfy the Settlement Agreement Exhibit 4B causation requirements. In this appeal, Claimant argues that the Claims Administrator erred by (1) improperly allocating its subsidy and disaster payment revenue items across its calendar yearand/or crop season; and (2) processing the claim under the Policy 495 Agriculture Methodology.

Review of the record confirms that Claimant is right on both counts. Following review of Claimant’s financial records in keeping with CAO Policy 495, the Administrator determined that matching issues existed and resolved them by utilizing the Agriculture Methodology. While doing that, it also excluded from revenue certain crop insurance and disaster payments Claimant received. This latter decision was reversed following Claimant’s Request for Reconsideration but its objection to application of the Agriculture Methodology and the smoothing of its revenues was declined in a reconsideration denial handed down prior to the May 22, 2017, Fifth Circuit Decision. That decision, of course, compels the result here.

For the foregoing reasons, and in keeping with the decision of the Fifth Circuit and subsequent Orders of the supervising District Court, this claim is therefore remanded to the Claims Administrator for further processing utilizing the Annual Variable Margin Methodology. In doing so, Claimant’s revenues are not to be reallocated or smoothed.





First

Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

Reasons uploaded

2017-3013

CLAIMANT: CLAIM ID:

Claimant owns 51% of which filed and was paid on a BEL claim. Claimant filed this IEL claim for his W-2 wages from . The Settlement Programdenied the IEL claims three times finding that as an owner, Claimant’s losses were covered in theBEL award to Claimant appeals.

Claimant asserts that the Settlement Program treated owner/officer compensation as avariable expense (payroll) in calculating the BEL award to However, as BP pointsout and as the record reviewed by the Appeal Panel confirms, the Settlement program restated

“Owner’s Bonuses and Compensation” as “Owner/Officer Salaries” and thus afixed expense. Therefore, based on the ruling of the U.S. District Court and the U.S. Court ofAppeals for the Fifth Circuit, Claimant would enjoy double-recovery if he was paid on his IELclaim.

The Settlement Program correctly denied the IEL claim.




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II. DECISION
















No error.

Comment (optional):

Claimant submitted a Subsistence claim in May 2013 alleging that prior to the spill, he fished for subsistence purposes in Dauphin Island, Orange Beach, Gulf Shores, Mobile Bay, Bayou La Batre, Gulf State Park, and Ono Island. Claimant stated that all of these sites were either closed or impaired from May 1, 2010 to December 31, 2010 and that he resumed fishing on March 1, 2011. Claimant further alleged that he shared his subsistence catch with seven dependents. However, Claimant did not provide Social Security numbers for any of these individuals and did not submit the required SSA-89 forms. More than three years later, Claimant submitted another claim form. Here again, Claimant stated that his fishing

2017-3014

areas were closed or impaired from May 1, 2010 to December 31, 2010 and that he resumed fishing on March 1, 2011. Claimant again did not provide required documentation to substantiate his alleged dependents. Based on Claimant’s submissions, the Settlement Program awarded $1,677.31 pre-RTP. This award reflected Claimant’s consumption (but not the alleged consumption of the other seven individuals, for which Claimant had not provided substantiating documentation) and a Loss Period of 72 days for closures and/or impairment to Claimant’s alleged fishing grounds. A month after receiving this Eligibility Notice, Claimant submitted a new sworn subsistence interview form adding certain species to the claim which he previously “omitted by mistake,” and Claimant also added 13 months to his supposed period of impairment. Claimant referred to “oil [and] tar in the water” and “news reports of seafood being contaminated.” Claimant then requested Re-review. The Settlement Program affirmed a Loss Period of 72 days based on closure and/or impairment of Claimant’s supposed fishing grounds. The Settlement Program also affirmed its use of Claimant’s consumption, but not the consumption of the seven other individuals for which Claimant had provided no supporting documentation. Claimant then requested Reconsideration. The Settlement Program affirmed a 72-day Loss Period and consumption based on one eligible individual, for an award of $1,467.82 pre-RTP. Claimant now appeals, again seeking his newly-expanded impairment period and submits documents that his “Counsel has previously submitted” purporting to show that Claimant’s fishing grounds are “subject to substantial daily in and out tidal flow from the Gulf.” Claimant also seeks remand for an opportunity to submit SSA-89 forms for his supposed dependents. If a claimant asserts that the Loss Period is longer than the period of official closures, that claimant must submit “objective evidence of actual impairment” to substantiate the longer Loss Period. Here, Claimant has failed to submit any objective evidence of actual impairment beyond the 72 days of closure identified by the Settlement Program. After receiving his initial Eligibility Notice, Claimant expanded his supposed Loss Period by more than a year -- including nine months beyond the date he previously swore he resumed fishing. The Settlement Program’s determination regarding Claimant’s Loss Period was correct and is affirmed. Claimant seeks remand so that he may submit documentation for his supposed dependents. Claimant, who is represented by counsel, had more than four years between the time of his initial claim and the issuance of his Post-Reconsideration Eligibility notice to provide such information. Indeed, Claimant requested Re-review and Reconsideration without submitting any of this documentation. Accordingly, the Settlement Program’s determination stands. Claimant’s appeal is denied.



Claimant Name


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II. DECISION
















No error.

Comment (optional):

Claimant operates specialty pharmacy and drug stores throughout Florida. This appeal involves Claimant’s store located at in Gulf Breeze, Florida (Zone A). Claimant received an Eligibility Notice in the amount of

$138,016.57 (pre-RTP of 1.5) for its BEL claim but challenges the Settlement Program’s determination that it did not qualify for a tourism designation and the concomitant enhanced RTP of 2.5. BP does not contest the compensation amount but disagrees with Claimant’s claim that it qualifies for a tourism designation.

2017-3015

In support of its claim of tourism, Claimant notes that the store is located within ½ mile if coastal waters to the north and south and is located directly on “the main thoroughfare to the famous beaches of the .” Claimant further notes that the location is near several boat ramps, a nature preserve, and a golf club. Finally, Claimant argues that 6% of the total population residing within 3 miles of the store resided in seasonal housing of some sort. This information was provided by a database from information gathered by the U.S. Bureau of Labor Statistics and the U.S. Census Bureau. Claimant attempts to make a three dimensional argument using a two dimensional map. This panel is very familiar with the location of this store. While none of the statements made by the Claimant are inherently incorrect, the store is in the heart of Gulf Breeze and primarily services the local population. While it may experience a spike in business during the summer months when beach traffic is at its peak, the increase in sales can be as affected by locals traveling to Pensacola Beach as tourists themselves. A tourism designation is based upon the totality of circumstances. This panel concludes that any connection between this store and tourism is tangential and the circumstances do not substantiate a tourism designation under the Settlement Agreement. The original award was correct and BP’s final proposal that mirrors it is the correct result.




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II. DECISION
















No error.

Comment (optional):

Claimant is a pest control business and this claim is for the facility located in Houma, Louisiana. The Settlement Program awarded Claimant $75,340.00 pre RTP. BP appeals alleging that the Settlement Program failed to inquire into the nature of the following expenses, which resulted in them being misclassified as fixed rather than variable expenses:

· “Materials & Supplies - PC Tools & Equipment”· “Materials & Supplies – Products/Equipment”· “Materials & Supplies – Moisture Vents”

2017-3016

· “Materials & Supplies- Term Tools and Equip”· “Materials & Supplies – Insulation M&S”

BP asserts that the Settlement Program misclassified these materials and supplies expenses as fixed, rather than variable expenses, despite the fact that Claimant incurred these expenses as part of Claimant’s revenue production activities. Claimant concedes that the “Moisture Vents,” “Products / Equipment,” and “Insulation M&S” accounts all report the costs of consumable goods that are purchased as needed by Claimant. Accordingly, these accounts should be classified as variable expenses. However, Claimant contends that the reclassification of the “Moisture Vents” expense has only a minor effect on the compensation amount calculation because Claimant recorded only $3,237.00 in charges to this account on the Claim’s P&Ls during the 2007–2010 period. The reclassifications of the “Products / Equipment” and “Insulation M&S” accounts have no effect on the compensation amount calculation because Claimant did not record any expenses to either of these accounts on the Claim’s P&Ls during 2007–2010. However, Claimant contends that the “PC Tools & Equipment” and “Term Tools & Equipment” accounts, by contrast, record the fixed expenses of equipment used for pest control and termite services. These tools include drills, entrenching tools, pesticide tanks, hoses, and other similar reusable equipment that is used to treat and prevent pest and termite infestations. Thus, says Claimant, these tools are not consumable goods. With Claimant’s concession and adjustment to its Final Proposal, this panelist concurs with and adopts Claimant’s Final Proposal.




First

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Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

Claimant, a resident of River Ridge, La, appeals the Program's denial of his Subsistence claim. Interestingly, after initial

processing, the Program actually found that Claimant was entitled to an award for himself and certain family members. It was only after Claimant attempted to obtain a higher award by providing confirmatory information about two minor

dependents that the Program denied the entire request for an award based upon its finding that Claimant did not have

licensure that was valid during the loss period he was claiming. Claimant now appeals on the basis that he was in fact licensed at the time he claims his loss started, which was August 18, 2010. Claimant specifically denies that he ever

asserted that his loss period commenced on the same date as his alleged closure period of April 20, 2010. Parenthetically, it appears that had Claimant left well enough alone and not attempted to obtain a higher award by

qualifying his two minor dependents, we would not be considering this appeal. Nevertheless, the matter is now before us to consider whether or not he asserted a valid Subsistence claim under the provisions of the Settlement Agreement. This

panelist, after de novo review, opts to bypass Claimant's interesting argument that he was in fact licensed before and at

the beginning of his claimed loss period, because it finds that this record fails to qualify Claimant as an eligible Subsistence fisherman at all. Under Exhibit 9 Section A.2 of the Settlement Agreement, such eligible fishermen are those who fish "to

sustain his or her basic personal or family dietary...needs." Specifically, recreational fishermen are excluded from this class under Section A.4 of said Exhibit. Claimant was employed as a insurance agent since 2009. He was not licensed

at all to fish from June 30, 2009 through August 18, 2010. This unexplainable gap in licensure (including during the first

four months that his alleged harvest area was closed) and his "day job" as an insurance agent is clearly inconsistent with

2017-3017

any claimed status as a qualifying Subsistence fisherman who fished to sustain his family's basic dietary needs. As such,

this panelist finds that the Program, though admittedly late in its finding, was correct in denying Claimant a Subsistence award.




First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):


denied the claim because Claimant did not pass the Customer Mix portion of Exhibit 4B’s Modified V-Shaped Revenue Pattern Test. appeals.

Claimant passed the revenue portion of the Modified V-Shaped Revenue Pattern Test. This is important because the Settlement Program excluded several items claimed as Revenue by Claimant. Thus, even if these items were incorrectly

excluded by the Settlement Program, no error flows from the exclusion because Claimant would still be required to pass the Customer Mix Test. Therefore, our analysis focuses on Claimant’s challenge to the Customer Mix Test.

With respect to the customer mix issue, Claimant contends the Settlement Program

(1) Improperly entered the data;

(2) Misclassified customer revenues;(3) Abused its discretion by imposing a matching review not contemplated by the Settlement Agreement; and

(4) Provided insufficient notice because of lack of specificity.

These points amount to a challenge to Policy 345, a Policy approved by the supervising district court. For example, the

Settlement Program’s use of location software is encompassed in Policy 345. Likewise, the Settlement Agreement and

2017-3018

Policy 345 impose a burden on Claimant to produce proof sufficient to satisfy the Customer Mix Test. Here, the problem is

the proof submitted by Claimant. For example, when Claimant provided updated addresses, the Settlement Program redid the calculations. The proof though remained insufficient. At its heart, Claimant’s problem is not the Settlement Program’s

application of the Customer Mix Test but rather Claimant’s own failure to produce evidence meeting the test.

The Settlement Program correctly denied the claim.




First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

filed this Business Economic Loss claim under the Settlement Agreement. The Settlement

Program denied the claim and appeals.

The Settlement Program’s denial is based upon Claimant’s failure to pass the Customer Mix portion of Exhibit 4B’s Modified

V-Shaped Revenue Pattern. Claimant argues the Settlement Program erred in not considering the financial statements of as a part of the claim.

is a pass-through entity in which is a partner. properly sent a K-1 to as Shareholder’s Share of

Investment Income. The amount of income reported on the K-1 matches “Income from ” line item on Claimant’s tax returns. Claimant argues the Settlement Program erred in excluding this revenue from the calculation. Its

points to the Settlement Program’s treatment of a different source of income,

The Settlement Program did indeed treat the income derived from differently than the income derived from

As Calculation Notes 7, 8, and 14 indicate there is a reason for the disparate treatment. Note 14 states “ income is reported as Gross Receipts” whereas the income from is a “distribution” from a different entity. The

Settlement Program correctly made the accounting distinction and that judgment ultimately caused the exclusion of

revenue from claim. The Settlement Program was correct.

2017-3019

With respect to the customer mix issue, the Settlement Program correctly concluded that Claimant fails the test regardless. See Calculation Notes 13 and 16 for a more detailed explanation.

The Settlement Program properly denied the claim.




First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):


2017-3020

1

DWH:

Claim ID:


This Claimant is a lumber and construction materials merchant wholesaler located in Decatur, Alabama (Zone D). Its Business Economic Loss claim was denied for failure to satisfy the Settlement Agreement Exhibit 4B causation requirements. In this appeal, Claimant contends the claim was denied because the Claims Administrator wrongly determined it was not operating at the time of the Spill. According to Claimant:

is a partnership formed by a merger of two pre-existing firms in 2009. and formed a partnership

called . Claimant and still exist and are the partners of the Partnership. They combined operations by opening a partnership. The claim was filed using consolidated P&Ls for the predecessors prior to the merger, and the P&Ls of subsequent to the merger. Given the inconsistent guidance provided by the claims center with regard to changes in business structures, we filed a claim for each partner and the partnership itself. Claimant is not attempting to recover for both the partners and the partnership. However, we believe one or the other is entitled to file a claim. It is just not clear which. This claim would have been allowed under prior policy 354. Under Policy 354(c):

If the TIN of a business entity changes because the nature of the entity changes (e.g., a sole proprietor changes to a partnership), but there is no change in the business’ operations, then the Claims Administrator will typically use both TINs in the analysis of the claim. Example: A footwear/apparel retailer located in Gulf Shores was wholly owned by one individual up until May 2009 and subsequently changed to a partnership of four owners. There was no change in the business’ operations other than a mere change in business structure. The financials from both TINs would be included in the analysis of the General BEL claim.

Instead, the claims center only used the financial information from 2009 to 2011. Because of this, Claimant did not pass the v-shaped causation test.

Document ID Claimant’s Opening Memorandum.

2

BP says, in response:

Claimant is a partnership that was formed in 2009 by the merger of .1 See id. Claimant does not

dispute that it fails all of the revenue pattern tests under Exhibit 4B. Rather, it argues that the Settlement Program should have evaluated this claim as a continuously operating business, using 2007-2008 financial data from its two predecessors. See id. Claimant is mistaken. Claimant only came into existence in 2009 at the time of the merger. Indeed, it was assigned a new Employer Identification Number by the Internal revenue Service in February 2009, demonstrating that it is an entirely new entity. See Tax ID Verification Letter (Doc ID Thus, anything prior to that time is irrelevant to this claim.

Claimant does not – and cannot – rely on any rule or policy that would support this request. Indeed, Claimant only refers to “prior” Policy 354, admitting that it has been withdrawn and is thus inapplicable here.2 The Settlement Program thus properly evaluated this claim based on Claimant’s documentation and determined that it failed to satisfy the causation requirements of the Settlement Agreement.

____________________________ 1 Claimant notes that it also filed claims for each of these entities. BP believes that the name “ ” is an error, and that Claimant meant to refer to , which filed a claim with the Settlement Program.

Document ID BP’s Opposition Memorandum.

The record reflects email exchanges by and between the claims analyst and Claimant’s counsel on two occasions and a subsequent telephone conference with counsel respecting this issue. In response to counsel’s inquiry, the analyst replied:

Because these are three separate businesses with separate TINs that operated at the same time, these are three separate legal Entities. Your firm correctly filed three Claimant IDs for these. The claimant can file for all three Entities, but we will consider only financials belonging to each particular Entity. So, for we consider only revenues/expenses associated with not

.

Contact Notes Report, July 20, 2016, Contact ID

3

The telephone conference is summarized as following:

On February 10, 2017 at 9:30AM Accounting Review called the Claimant's attorney _____________ at ___________. Analysts _________ and _______ spoke to ______ regarding the Request for Re-review noted in Doc ID

Accounting Review explained the same stance still stands as the conversation noted on July 20, 2016 Contact ID The Claim for

will only be considering information for that EIN and other activity prior with a different EIN would not be considered. _____ understood and stated he filled for Re-Review as a formality to go to the appeal panel. Both parties thanked each other for the time and the call was ended.

Contact Notes Report February 10, 2017, Contact ID

It is clear from the foregoing that Claimant’s belief that the Claims Administrator concluded it was not operating at the time of the Spill, is incorrect. Its argument that it should be treated as a continuously operating business using 2007 – 2008 financial data from its two partners might have greater credibility had those partners not maintained their separate legal Entities and Taxpayer Identification Numbers. That distinguishes Claimant’s situation from the example it cited from prior CAO Policy 354 (c). As the analyst determined, these are three separate businesses with separate TINs that operated at the same time. For that reason, he correctly concluded that only the revenues and expenses associated with Claimant and not those of its partners, should be considered in evaluating this BEL claim.

Following de novo review and for the foregoing reasons, this Claimant appeal is denied. The decision of the Claims Administrator is affirmed.

Denial upheld.





First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned








No error.

Comment (optional):


found that the claim triggered Policy 495 and applied the Agriculture Methodology. The Settlement Program denied the claim because failed the Exhibit 4B causation tests. appeals.

The claim is remanded to the Settlement Program. Pursuant to governing law, the Settlement Program is to apply the AVMM.

No other issues raised by the parties on appeal need to be addressed at this juncture.

2017-3021




First

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Law Firm

II. DECISION

Denial Upheld

Denial Overturned








No error.

Comment (optional):

filed this Business Economic Loss claim under the Settlement Agreement. The Settlement Program denied

claim because it failed to meet the requirements of Exhibit 4B of the Settlement Agreement.

The Settlement Program, however, found that the claim triggered Policy 495 and applied the Agriculture Methodology.

contends correctly that the AVM Methodology should have been applied. Further, states that if the AVMM is applied, she passes the Exhibit 4B tests.

The AVMM should have been applied under governing law. The Settlement Program’s denial is reversed and the claim is

remanded for application of the AVMM.

This opinion does not address whether Claimant is correct in her assertion that the claim passes the Exhibit 4B causation

tests if the AVMM is applied. That is for the Settlement Program to determine.

2017-3022



Claimant Name


First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned








No error.

Comment (optional):

filed this Business Economic Loss claim under the Settlement Agreement. The Settlement Program determined that the claim triggered Policy 495 and applied the Construction Methodology. As a result,

the Claimed failed the causation tests of Exhibit 4B. Modern appeals.

Under governing law, the application of the Construction Methodology was erroneous. The claim is remanded to the

Settlement Program for reassessment and application of the AVMM.

2017-3023




First

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II. DECISION
















No error.

Comment (optional):

filed this Individual Economic Loss claim under the Settlement Agreement. The Settlement Program found was due a negative Compensation Amount. appeals.

contends she is due a Compensation Amount of $5,000. BP disagrees and further notes the Settlement Program miscalculated the Compensation Amount in favor.

2017-3024

The record does not support argument. BP appears to be correct in its assertion that the Settlement Program should have found a Payment Offset of $8,400.

This is a “baseball” appeal, meaning the Final Proposal closest to being correct prevails. BP’s Final Proposal represents the correct award and prevails.




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Law Firm

II. DECISION
















No error.

Comment (optional):


2017-3025

DWH:

Claim ID:


This Claimant, located in Baton Rouge, Louisiana (Zone C) provides industrial tools to customers in a multi-state area. It received a pre-Risk Transfer Premium Business Economic Loss award in the amount of $71,599.23. In this appeal, it argues that the Claims Administrator erred in classifying “Sales Taxes” as a contra-revenue line item instead of a variable expense in keeping with Settlement Agreement Exhibit 4D. According to Claimant, it has consistently treated sales taxes as an expense, not as contra-revenue, for financial statement reporting and on its tax returns. It has elected to report sales taxes on a gross basis (as revenue and an expense) for those purposes. It therefore submits a pre-RTP compensation amount of $74,634.12 which it says results when that error is corrected.

According to the Claims Administrator:

DWH Accountant noted Sales Tax recorded in operating expenses on the Claimant's P&L. As such, DWH Accountant made adjustments 3 and 4 to remove Sales Tax from operating expenses and restate as a contra revenue account. Since expenses are not necessary for causation in 2011, DWH Accountant utilized the P&L at Doc ID p. 11-14 for adjustment purposes.

Document ID Calculation Note 11, Sales Tax: Adjustments 3 & 4.

BP argues, in response, that Exhibit 4D contemplates classifying sales taxes as variable in circumstances where they represent part of the payment a Claimant makes for operating expenses such as purchase of supplies or equipment. In this case, Claimant’s sales taxes do not represent payment for operating expenses; instead, they are simply a pass-through account which reflects taxes paid by Claimant’s customers which were then remitted to the State. In support of its position, BP cites a redacted Appeal Panel Decision which squarely so held.

De novo review of the record persuades this panelist that BP is correct. These were not out-of-pocket expenses paid by Claimant; rather, they document tax payments made by its customers upon purchase of Claimant’s products which Claimant was obliged by law to collect on behalf of the State. The Claims Administrator committed no error in making the above-quoted adjustments.

For the foregoing reasons, this Claimant appeal is denied and BP’s Final Proposal, which equals the amount of the Administrator’s award, is therefore selected.





First Middle



Law Firm

II. DECISION

















No error.

Comment (optional):


2017-3026


Claim ID

Claimant, is a landscape contractor located in Dade City, Florida. The Settlement Program awarded Claimant $390,033.44 pre-RTP. BP appeals asserting that the Settlement Program failed to investigate and exclude related-party transactions and out of zone revenues, expenses, and facilities. Here, the Settlement Program applied Policy 495’s Construction Methodology to this claim, and the Fifth Circuit’s May 22, 2017 ruling and the District Court’s May 25, 2017 order implementing that ruling requires remand of this claim for the Settlement Program to process this claim under Policy 495’s Annual Variable Margin Methodology. However, this Appeal Panel will deal with the related-party transactions and out of zone revenues, expenses, and facilities issues raised by BP. As to the related-party issue, BP asserts that was the 100% owner of the Claimant business as of 2008. is also the owner of numerous other companies listed on the Florida Secretary of State website. Many of these companies are mentioned in Claimant’s financial documents concerning variable expenses and revenues for Claimant. The Settlement Program correctly classified these expenses as N/A and excluded them from their calculation. But, says BP, the Settlement Program failed to identify and exclude other related-party transactions that are apparent from an analysis of Claimant’s financial documents. First, Claimant’s tax returns list substantial amounts for an asset called “Due from Related Companies.” According to BP this appears to be an intercompany loan that occurred between Claimant and . But the Settlement Program did not investigate whether any of these funds were included in Claimant’s revenues. Second, Claimant’s P&Ls list

and which appear to be direct references to the related entities. ” is listed as a Cost of Goods Sold line

item. The Settlement Program included this sizable variable expense ($204,362.34 in 2009, $390,630.77 in 2010, and $436,421.66 in 2011) in its calculation without investigating whether the expense should have been excluded as a related-party transaction. Third, Claimant’s journal entries and tax reconciliation documents refer to an expense line item called

that either is embedded within Claimant’s COGS or is consolidated into another line item. BP request that on remand, the Settlement Program should investigate these related-party transactions to determine whether they should be excluded according to Policy 328. Claimant counters that despite the SP's investigation and conclusions which lead to some related party transactions being reclassified as "Other N/A" and excluded, BP appealed requesting that the SP's accountants be ordered to re-investigate potential related party transactions. First, BP argues that the SP failed to investigate an intercompany loan with

. and determine if it was included in revenue. In reality, this was a balance sheet transaction and was not recorded as revenue on CHI's P&Ls, nor was interest collected and as such, had no impact on the SP's calculations. BP's second example of a potential related party transaction seems to stem from confusion over the Claimant's business name. BP argues that the line items should be reinvestigated as related party transactions because they "appear to be direct references to the related

." Presumably, says Claimant, BP is referring to

which is an entirely separate entity that records its P&Ls and files taxes separately from . In reality, line items

reference a department of called . That department performs smaller handyman type projects, such as pressure washing, drywall repair, crack repair, painting, pool maintenance and service work and was named for marketing purposes. Moreover, the revenues and expenses relate only to and have nothing to do with

or other members of the family of companies. Other examples cited were determined by the SP to be "account balances" and "were not significant". As to the out of zone revenues, expenses, and facilities issue, BP points out that losses a business incurred in Facilities located outside the Gulf Coast Areas are not compensable under the Settlement Agreement. Claimant’s website is for all of Claimant’s and lists Claimant’s address as the headquarters, with regional offices located in Sarasota, Jacksonville, and Orlando. Claimant’s news section notes that many of its “Landscape Maintenance” projects were performed at various job sites out of zone. Claimant’s P&Ls incorporate expenses from these regional offices. According to BP, this indicates that Claimant performed operations at job sites outside the Gulf Coast Area, and therefore, the Settlement Program should have inquired as to Claimant’s operations to determine whether Claimant operated out of zone facilities and whether out of zone revenue was included in Claimant’s P&Ls. The projects either do not relate to concern a separate and distinct entity or are projects that relate to activities located within a compensable loss zone. A review of all of the more than seventy-five projects listed on BP's Exhibit D yields only one instance whereby derived any revenue at all. In that sole project, the construction occurred at

located inside a compensable loss zone (Zone D) and was managed from Zone D, and therefore, should not be excluded. All other projects listed on BP's Exhibit D involve separate and distinct entities that are members of the family but were not performed by and did not contribute to its revenue. BP characterizes other members of the family as "regional offices" and as "Facilities", however, these are separate and distinct entities as shown. BP cited excerpts from a news article implying that was the subject. In fact, the article is about the family of companies as a group and does not even contain the word The family of companies advertises in this manner as a positive article can benefit all of the entities as opposed to only one entity benefiting when only that specific company is referenced. A similar reasoning applies to BP's Exhibit C which lists some members of the family as regional offices of rather than by their specific entity name which could easily lead to confusion given the number of entities. The other entities are separate businesses that do not meet the definition of a "Facility" as BP alleges in light of Policy 467. Revenue derived from out of zone activities should not be excluded when the project is managed or performed by a business within a compensable zone. Panel decisions illustrate that even if the SP or this Panel decides did in fact derive revenue from an activity performed outside of the compensable zones, such revenue should not be excluded as it would have been managed or performed from its headquarters which is within a compensable zone rather than a different Facility as defined by Policy 467. A de novo review of the two issues raised by BP leads this panelist to find in Claimant’s favor on these issues, and this claim is remanded for reprocessing for the purpose of recalculating it using the AVM Methodology in accordance with the Judge Barbier’s May 25th Order.



Claimant Name


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Law Firm

II. DECISION
















No error.

Comment (optional):

BP appeals a Failed BEL award of $50,393.35 to a Santa Rosa Beach, Fl owner of two home repair and remodeling franchises. Its sole assertion on appeal is that the Program erroneously assigned Claimant a SIC code of 8741 ("Management Services"), requiring the use of a Market Value of Invested Capital ("MVIC") multiplier of 5.00. According to BP, OSHA (as per website information) allows said SIC code only for entities that do not provide an operating staff. Claimant's financials in fact indicate the use of subcontractors consistent with use of an operating staff, thus disqualifying

2017-3027

Claimant from the 8741 SIC code. Instead, argues BP, Claimant merited a SIC code of either 7299-9905 ("Handyman Services"), 7299-9906 ("Home Improvement and Renovation Contractor Agency") or 1521 ("General Contractors"). In the first two instances, the multiplier would be reduced to 2.3. In the last instamce, the multiplier would be 3.2. It makes a final proposal of $16,735.50, consistent with a SIC code with a multiplier of 2.3. Claimant, though represented by counsel, provided no opposition whatsoever to BP's appeal other than to seek a full affirmance of the award in its final proposal. This panelist will not assist Claimant when its own counsel failed to do so in this matter. A de novo review of this record indicates that in its original claim form, Claimant itself described its operation as "remodeling and small construction." On its letterhead in this record, Claimant's business (which operates under the name " ") uses the slogan " ". This panelist, with no assistance from Claimant, must conclude that BP is correct, and that whether Claimant is a handyman operation or a home improvement contractor, it merits an MVIC multiplier of 2.3 under the above mentioned SIC occupational designations. Accordingly, BP's final proposal, utilizing the said lower multiplier, is hereby chosen in this "baseball" appeal.




First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

Claimant operates two restaurants in Key West, Florida (Zone A). No matching criteria were identified in Claimant’s financials and the Settlement Program awarded Claimant $374,112.03 (pre-RTP) for its BEL claim. BP appeals. BP raises three issues on appeal. First, it claims that the Program failed to address material discrepancies between Claimant’s tax returns and P&Ls regarding expenses. BP asserts that further investigation would have reduced Claimant’s award by $30,596 (pre-RTP). BP next asserts that the Program should have investigated month-to-month and year-to-year variations in the expense categories “Employee Benefit (2009)” and “Company Contributions/Benefits (2010)” which should

2017-3028

have been classified as fixed. BP maintains that the Program “mechanically” classified these expenses as fixed without fully investigating the true nature of the expense. Similarly, BP contends that “Licenses and Permits” expenses were mechanically classified as fixed when they could have been variable. BP argues that this combination of errors inflates the award by an additional $36,130.35 (pre-RTP). Finally, BP contends that the Program erroneously classified “Building Repairs” and “Equipment Repairs” as variable rather than a 50/50 split between fixed and variable since Claimant did not separate repairs and regular maintenance. BP contends this reclassification would reduce the award by $15,120 (pre-RTP). BP submits a final proposal of $298,905.61 (pre-RTP) which it contends accounts for these errors. The panel has conducted a de novo review. Claimant’s memorandum in response to BP’s arguments is not enlightening; however, after a full review of the record, the panel finds no error by the Program with regard to the discrepancy between Claimant’s tax returns and its P&Ls or with the classifications for “Employee Benefit (2009)” and “Company Contributions/Benefits (2010)” and “Licenses and Permits” expenses. While BP may have a valid point with regard to the repairs expense, the panel finds that remand is not appropriate and that, even if the Program erred on this issue, Claimant’s final proposal in this baseball appeal is closer to the correct result than is BP’s final proposal. Accordingly, Claimant’s final proposal is selected as the correct result.




First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

Claimant is a physician owned company located in Decatur, Alabama (Zone D) that provides supply purchasing services to

private-practice groups and medical-healthcare entities. The Settlement Program determined that Claimant has failed the Customer Mix Test. Claimant appeals, arguing that the Settlement Program did not properly analyze the Customer Mix Test

in that the Settlement Program incorrectly determined that one of its customers, , was located more than

60 miles away from Claimant. According to Claimant, is actually “within a 60 mile radius” of Claimant when a straight line is drawn across a map generated from Google Maps, allegedly making only 55.10

miles away from Claimant. Policy 345 v.3 specifically 2 states that “[i]n determining the distance between the claimant and its customers, the Claims Administrator’s mapping software company will use the distance measured by roads and/or

walkways.” The only way that Claimant can argue that is located less than 60 miles away from it is by ignoring Policy 345 v.3’s clear mandate and drawing an arbitrary straight line across a map generated from Google Maps

that expansively traverses broad swaths of non-road and non-walkway terrain and open bodies of water such as the

Tennessee River. The map generated from Google Maps that Claimant includes within its opening memorandum contains three different routes along roads from to Claimant. The map states that all three routes are more than

60 miles long. Claimant contends that Policy 345 v.3 was promulgated by the Claims Administrator to help implement the Parties’ agreement, but according to Claimant, it goes too far and adds stricter requirements than are actually contained in

the Settlement Agreement. Thus, the Claimant is asking this panelist to ignore or overrule this Policy. This panelist

disagrees. This Policy reasonably and practically implements the Settlement Agreement. Claimant’s appeal is denied and

2017-3029

that the Settlement Program’s denial is upheld.




First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

Claimant owns and operates manufacturing and retail sale paint stores throughout the Gulf Region. This facility is located in

Houma, Louisiana, Zone B. No Policy 495 criteria were triggered so the General BEL framework was used to analyze the claim. BP appeals raising appeal issues that have been reviewed by this and other panel members previously. These include

1) the manufacturing division of COGS; 2) "72-All Other" expenses; 3) failure to obtain sales/use tax returns and 4) not

properly addressing cross-year revenues and expenses related to bad debt recovery. The first three issues have beenaddressed many times and need not be reviewed again here because this panel member has addressed these issues and

2017-3030

adopted the written reasons of other panel members related to them in other appeals. See panel decisions # 3 ,

. The last issue is related to bad debt collection from prior years not being brought back to a year the bad debt was incurred. The Vendor Accountants inquired into the collections and used their professional judgment in

how they treated the items. Bad debt collection is an uncertain activity at best. Allowing them to remain in the year when collected does not mean they were moved in violation of recent decisions of the presiding courts. The award is affirmed.




First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

Claimant owns and operates numerous manufacturing and retail sale of paint facilities throughout the Gulf Region.

Claimant was awarded compensation in about 80 claims it filed. BP has appealed many of these awards on basically the same or similar grounds. This claim raises the consistently rejected attestation argument as well as error in handling the

manufacturing division of COGS and an expense item labeled "72-All Other" expenses. BP argues it was classified as fixed

and should have been at least 50-50 split between varied and fixed. A review of the item shows it includes various taxes paid, service contract fees, insurance and advertising/marketing costs. Most of these expenses are classified as fixed under

2017-3031

the Settlement Agreement. All three of these appeal issues have been decided by written opinions which are adopted

herein as the decision in this appeal. See, Appeal Decisions #s, . The decision of the Administrator is affirmed.




First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

Claimant owns and operates manufacture/retail sales paint stores in the Gulf Region. This claim facility in New Orleans, Louisiana, Zone D. The criteria of Policy 495 were triggered and the AVM Methodology was utilized to analyze the claim. Following an award BP appeals raising the now familiar issues of: 1) division of COGS; 2) treatment of "72-Other Expenses"; 3) failure to obtain sales/use tax returns; 4) attestation form; 5) anomalies in revenues. BP offers $93,857.90 a the correct award without showing how it calculated the amount. These issues have been resolved by this and other panel members for the last few weeks. The first four issues bear no further comment. See claim decisions #s ;

2017-3032

. The final issue is anomalies in revenues. The presiding courts have directed the Vendor Accountants to only use the AVM Methodology, which was done here. BP points to no movement/reallocation of revenue that has been prohibited. The award is affirmed.




First

Middle



Law Firm

II. DECISION



Compensation Amount $(514.90)













No error.

Comment (optional):

Claimant through counsel attempts to appeal an IEL award of negative $514.90. In a direct violation of this panel's Appeal Rules (See Rule 10), Claimant's counsel's Notice of Appeal is utterly (if politely) vacuous ("Claimant hereby requests appeal. Thank you."). Claimant's counsel further failed to file a Supporting Memorandum in the record, leaving this panelist in the dark as to the basis of his appeal. Indeed, a de novo review of the record confirms the Program's negative award was appropriate, since Claimant's Expected Earnings from his Claiming Job with ($2814.61) were exceeded by his Actual Earnings ($3329.51). Accordingly, BP's final proposal affirming the negative award must be chosen in comparison

2017-3033

to Claimant's final proposal of $1000.00, which was left totally unexplained by his counsel.




First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

No error. See opinion uploaded into the portal.

2017-3034

DWH:

Claim ID:


This is an appeal from the denial of one of many Start-Up Business Economic Loss claims which were filed by this Claimant. The claim was denied for failure to establish an operating history as of April 20, 2010. Claimant owns 22 located throughout the Gulf Coast Areas which it purchased through a bankruptcy proceeding in October of 2010. This appeal involves Claimant’s Restaurant which is located in Mobile, Alabama (Zone C). Prior to the purchase, this location was a fully operational which was in operation at the time of the Spill and continued to operate without interruption until the ownership changed. Following the change in ownership, it continued to operate as an ongoing business with no fundamental change in operation.

The factual background, procedural history and legal issues raised in this appeal are factually indistinguishable from those found in Claim ID which was the subject of a thorough discussion and analysis by a distinguished fellow panelist who concluded that Claimant’s appeal could not be sustained.

Following de novo review, this panelist agrees with the findings and conclusions contained in that decision and adopts it herein by reference. This appeal is likewise denied.

Denial upheld.




Claimant Name


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Law Firm

II. DECISION

















No error.

Comment (optional):


2017-3035

DWH:

Claim ID:


This claim is back before this panelist following an earlier appeal and remand to the Claims Administrator with instructions to include certain contested donations and contributions in Claimant’s revenue. In due course, an Eligibility Notice containing a pre-Risk Transfer Premium compensation amount of $252,845.99 was issued. BP filed a Notice of Appeal wherein it contended the Administrator failed to properly investigate certain related party transactions and failed to properly evaluate and address non-cash contributions Claimant received. In its subsequently filed Initial Proposal memorandum, BP makes no mention of the related party transaction issue and it is considered abandoned. It submits a zero dollar Final Proposal compensation amount and requests that the claim be remanded for an analysis of Claimant’s non-cash donations.

The essence of BP’s argument is that Claimant’s books reflect hundreds of thousands of dollars in Donations in Kind, including military equipment (including a 42 foot U. S. Navy periscope once used on a Ballistic Missile Submarine), firearms, armed forces dress uniforms and other memorabilia but do not show what portion of certain revenue accounts are attributable to them nor any information in the record explaining Claimant’s methodology for valuing them and, consequently, no analysis by the Administrator.

To the contrary, responds Claimant, its donated items are appraised by professionals; the donors are provided with a contribution letter verifying the valuation of each item, as required by the Internal Revenue Service; and the amounts are also listed on its IRS Tax Return Schedule B – Schedule of Contributors. The values are stipulated and recorded at the time of the donation. Claimant also submitted, with its Final Proposal memorandum, a letter of explanation which further clarifies the process by which it appraises the donations and supplied several sample letters as supporting evidence.

After careful examination of the documents in question, this panelist has concluded that BP’s position cannot be sustained and its appeal must be denied. Nevertheless, remand is required for an entirely different reason. According to the Administrator:

The Claimant received an in-kind donation of advertisement from the Tampa Bay Times. This donation was recorded at year-end, in November of 2009, 2010, and 2011. The in-kind donation was used over each year. Therefore the in-kind donation was debited from November in 2009, 2010, and 2011, and spread evenly over each fiscal year (December 08-November 09; December 09-November 10; December 10-November 11). See Doc ID pgs. 2 & 8.

Document ID Note 10, In-Kind Advertising Donations (Adjs. 1 & 2).

This spreading or smoothing of the value of those donations is prohibited by the Fifth Circuit’s Policy 495 Opinion and subsequent Orders of the District Court. Accordingly, this claim must be, and it is hereby, remanded to the Claims Administrator with instructions to process it in keeping with that opinion.





First

Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

2017-3036

- Claim ID

This is the second appeal of this Subsistence claim. On the original appeal, this panel

overturned the Settlement Program’s denial for failure of the Claimant to submit a federal duck

stamp. On remand, the Settlement Program was instructed to process and recalculate the claim based

on Claimant’s Amended Subsistence form which deleted duck as a claimed species. On remand, the

Settlement Program determined that a Field Visit was required because the amount of the claim

exceeded $10,000. On April 19, 2017, the Field Visit was conducted by telephone. As a result, the

Field Team concluded that it was unable to verify the quantities of seafood claimed by the Claimant

and denied the claim a second time.

Claimant appeals, arguing that the Field Interview was conducted eight years after the events

took place and conducted by investigators who asked vague and misleading questions in order to

coax Claimant into giving information inconsistent with his claim form. More specifically, Claimant

challenges three areas of inquiry relied on by the Field Team:

(1) Claimant could not verify when he stopped and resumed Subsistence harvesting

activities after the Spill;

(2) Claimant reported harvesting Subsistence seafood and game in areas that were not

closed, although his Sworn Claim form asserts that 100% of his pre-Spill harvest was

in closed or impaired areas; and

(3) Claimant reported the illegal harvest of black drum.

Claimant argues that as to items (1) and (2), any failure of recollection after many years should not

be fatal to the claim. As to item (3), Claimant argues that he was goaded by leading questions and

joking by the interviewer into acknowledging that on occasion, he caught more drum than was

legally permitted. Because the drum fish catches occurred in non-closed areas, Claimant argues that

they are irrelevant to the claim.

BP responds that Claimant could not verify the key details of his claim as alleged on his

sworn claim form. BP also argues that Claimant was unable to verify that his lost Subsistence

harvest occurred within the dates and at locations in which his fishing areas were closed or impaired

due to the Spill. BP adds that Claimant’s admitted harvest of excessive black drum casts doubt on

the credibility of the entire claim.

A Summary of Review provided by the Settlement Program includes the following findings:

! The Claimant reported losses as a recreational fisherman

while continuing commercial harvesting of shrimp and

oysters along with customary bycatch in trawls, skimmer nets

and dredging as demonstrated through Trip Ticket sales. For

this reason, the Field Team was unable to reasonably quantify

the Claimant’s Subsistence losses considering that the

Claimant continues his commercial fishing activities

following the Spill.

! All of the reported areas of harvest activity for fishing and

game species were not within the closure areas(s), and the

Claimant could not estimate periods when he stopped

recreational fishing and when he resumed. The Claimant also

reported that he could not remember whether the areas he

2

listed as his primary fishing and hunting locations were

officially closed as a result of the Spill.

De novo review persuades this panelist that Claimant’s continued commercial harvesting of

shrimp and oysters is fatal to the claim. Trip Tickets in the record demonstrate that Claimant

continued commercial fishing throughout his alleged periods of impairment and in his fishing

grounds. Claimant reported his primary fishing locations as Johnson Bayou, Grand Chenier,

Hackberry, Vermillion Bay, Sabine River, Atchafalaya and a few other locations. Most of these

areas were not within closure areas nor did Claimant identify any specific offshore fishing locations.

On this basis, the Settlement Program was justified in denying the claim. The record also supports

the Settlement Program’s conclusion that Claimant failed to demonstrate the extent to which his

asserted losses were within impaired or closed areas.

Claimant filed his original Subsistence claim on July 2, 2013. As noted, the Field Visit was

not undertaken until April 19, 2017. Claimant’s criticism of the time that transpired before the

Settlement Program requested the Field Visit has merit. The purpose of the Field Visit is to verify

the reliability of the information on the claim form. However, claimants should not be penalized

where the passage of time has legitimately obscured minute details. In a claimant-friendly process,

it is incumbent on the Settlement Program to schedule Field Visits in a timely manner just as it is

incumbent on claimants to provide accurate information.

For the foregoing reasons, the denial of this claim is upheld.

3




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Law Firm

II. DECISION
















No error.

Comment (optional): Claimant owns and operates paint stores across the Gulf Region. This facility is located in Jefferson, Louisiana, Zone D. No Policy 495 criteria were triggered and the claim was analyzed under the General BEL framework. BP appeals the award by

the Administrator on three very familiar grounds that have been consistently rejected by the panel. These are the failure to obtain sales/use tax returns, misclassification of "72-All Other" expense item, and manufacturing division of COGS. The

panel has discussed these items and rejected them without exception. They are rejected again today. See, Claim Decisions # . The award is affirmed.

2017-3037




First

Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):


2017-3038

DWH:

Claim ID:


This Claimant raises cotton, soybeans, corn and wheat on his farm in Tallulah, Louisiana (Zone D). His Business Economic Loss claim was denied for failure to satisfy the Settlement Agreement Exhibit 4B causation requirements. In this appeal, he argues that the Claims Administrator erred by excluding from his revenues crop insurance and disaster payments he received due to his participation in certain federal government programs. Had they been included, he contends, he would have satisfied the requisite causation tests.

As BP correctly notes in reply, Claimant is mistaken. Analysis of the Claims Administrator’s extensive Calculation Notes reveals that each of the myriad payments was carefully analyzed and treated as revenue when the claim was calculated. However, in analyzing Claimant’s financial data in keeping with the requirements of then extant CAO Policy 495, he utilized the Agriculture Methodology to resolve certain matching issues which he detected. Since that is one of the Industry Specific Methodologies subsequently outlawed by the Fifth Circuit in its May 22, 2017 Policy 495 Opinion, this claim must be remanded to the Claims Administrator in keeping with that Opinion and subsequent Orders of the supervising District Court.

For the foregoing reasons, Claimant’s appeal cannot be sustained. Nevertheless, the claim must be and it is hereby, remanded to the Claims Administrator for further processing in keeping with the Court’s decisions.

Denial Overturned.





First

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Law Firm

II. DECISION
















No error.

Comment (optional):

2017-3039

- Claim ID

was awarded $743.73, pre-RTP on his Subsistence claim based on a loss

period of 72 days. He now appeals, arguing that his fishing areas in Orange Beach and Gulf Shores,

Alabama were closed and impaired until July of 2011. Claimant therefore asserts that the loss period

should have been 395 days.

In response, BP argues that the record only supports a loss period of 66 days based on

documents from the Alabama Department of Conservation and Natural Resources, adding that

Claimant’s fishing area was only officially closed for 50 days. Evidently, the Settlement Program

extended the period to 72 days. The basis of the additional 6 days of closure or impairment is

unclear from the record. More fundamentally, BP argues that Claimant has failed to provide

objective evidence of actual impairment beyond the documented closure period.

Policy 316 v.4 requires a claimant to provide objective evidence of actual impairment of a

fishing location in order to extend the loss period beyond the closure period for the applicable area.

Evidence of this nature requires documents establishing that the location was impaired by the spill.

Examples of sufficient documentation include reports of continued oiling, date stamped photographs,

boom location reports and other relevant documents. Notably, Policy 316 v.4 makes clear that

generic articles or reports of oil related damage to those describing fears of seafood safety are

insufficient to meet the objective evidence standard.

Here, all the documentation relied on by the Claimant is general in nature. Only a few

mention Claimant’s fishing areas near Orange Beach and Gulf Shores, Alabama and none provides

any dateline for the alleged impairment period asserted by the Claimant. In fact, there are only

minimal references to any specific impairment in the materials relied on by the Claimant. Such

generic information is insufficient to satisfy the Claimant’s burden under Policy 316 v.4.

BP makes a convincing argument that the record only supports a closure period of 66 days.

Because BP did not cross-appeal on this issue, the Settlement Program’s determination of a 72 day

loss period is upheld. Otherwise, Claimant’s appeal is denied.

2




First

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Law Firm

II. DECISION
















No error.

Comment (optional):

Reasons uploaded

2017-3040

CLAIMANT:CLAIM ID:

Claimant filed a Subsistence Claim and was awarded the sum of $499.50 (pre - 2.25RTP). Claimant’s counsel filed a Notice Appeal which stated simply “Please see all thedocuments”. Claimant’s counsel filed no Memorandum in Support of Initial Proposal and noMemorandum in Support of Final Proposal. Claimant’s counsel did file an Initial Proposal anda Final Proposal of $11,000.00 (pre - 2.25 RTP). Claimant’s counsel provided nothing on Appealto inform BP or the Appeal Panel why Claimant is entitled to a larger award.

Faced with the same situation is another Subsistence Appeal, another Appeal Panelistheld:

“Although some panelists would interpret the Claimant-friendlyspirit of the Settlement Agreement to at this point request Claimantfor more information, this panelist strongly believes that “claimfriendliness” does not require spoon-feeding and enabling aClaimant represented by counsel that has done little or nothing topreserve a Subsistence claim”.

This Appeal Panelist wholeheartedly agrees with the above quoted decision. Claimant’sappeal is denied.




First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned








No error.

Comment (optional):

Reasons uploaded

2017-3041

CLAIMANT:CLAIM ID:

Claimant is a site preparation civil contractor located in Ragley, Louisiana (ZoneD). The Settlement Program submitted Claimant’s financial to the ConstructionMethodology Framework of Policy 495 and denied the claim. Claimant timely appealedand both Claimant and BP agree that the claim must be remanded to the SettlementProgram to calculate using the AVM Methodology Framework of Policy 495. TheAppeal Panel agrees and this matter is therefore remanded to the Settlement Programto process accordingly.



Claimant Name


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Law Firm

II. DECISION

Denial Upheld

Denial Overturned








No error.

Comment (optional):

2017-3042

- Claim ID

On two occasions, the Settlement Program denied the BEL claim of this roofing and

sheet metal contractor in New Orleans (Zone D). Four of the seven Policy 495 criteria were

triggered and the program accountant utilized the Construction Methodology because Claimant’s

COGS were deemed reflective of the work being performed. Claimant’s appeal initially challenged

the use of the Construction Methodology. The Notice of Appeal specifically charges that the

reallocation of revenue implicit in the Construction Methodology is at odds with the purpose of

Policy 495. While this appeal was pending, the 5 Circuit’s decision of May 22, 2017 struck downth

use of the Industry Specific Methodologies (ISMs) of Policy 495, leaving the AVM methodology

as the only acceptable approach for correcting mismatches of revenue and expenses.

This decision and subsequent orders of the District Court are controlling on this issue, which

BP concedes. Accordingly, this claim is remanded to the Settlement Program for recalculation using

the AVM methodology.




First

Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

2017-3043

- Claim ID

The Settlement Program denied the Subsistence claim of this fisherman from Belle Chasse,

Louisiana. After a Field Visit, it was determined that the quantities of seafood claimed could not

be verified. More specifically, the Settlement Program determined that the Claimant harvested more

shrimp in 2010 than previous years and sold all of his catch at commercial docks without retaining

any for personal consumption.

On appeal, Claimant explains this discrepancy as follows:

After the Oil Spill, I was afraid there may be chemical dispersant,which was why I sold all the shrimp to the docks and did not keepthem including the by-catch seafood for personal consumption. I didnot want my family members to be severely ill due to the Oil aftereating the seafood that I caught from the Gulf, whom have Asthmaand Hepatitis B. Moreover, the Oil Spill on April 20 , 2010 was theth

first time happened in Louisiana and I do not know what will happenif we eat those seafood. I do not know if it was safe for us to eat themand that is why I do not bring them home. In addition, I believe thedocks and processor might have the tools or equipment to clean theOil; where as, I do not have the technology/equipment. Thus, I askthat you please review my claim once more, evaluate, and compensateme fairly under the Settlement Program during this AppealProcessing. Thank you.

In response, BP argues that Claimant’s trip tickets verify that he caught and sold significantly

more seafood in the period following the spill than in the seasons preceding it. BP therefore argues

that Claimant suffered no Subsistence loss.

Claimant’s statement that he did not continue Subsistence fishing after the spill is

questionable at best. The record establishes, and Claimant concedes, that he elected not to distribute

any of his catch or by-catch to his family members for Subsistence purposes while selling it to

commercial docks. This severely undercuts Claimant’s argument that his actions were motivated

by concern for the health of his family members. The Settlement Program was justified in accepting

the Field Team’s recommendation that the claim be denied. Accordingly, the denial is upheld.



Claimant Name


First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):


2017-3044

CLAIMANT:CLAIM ID:

Claimant operates a tow/tug boat company out of Marrero, Louisiana (Zone C). Claimant’s financials only passed the mathematical revenue portion of the Decline-OnlyRevenue Pattern of Exhibit 4B of the Settlement Agreement. The claim was originally deniedbecause the Settlement Program determined that Claimant had not satisfied the second prong ofthe Decline-Only Revenue Pattern test, that is providing specific documentation that identifiesfactors outside of the control of the Claimant that prevented the recovery of revenues in 2011.

Following the Post Re-Review Denial Notice, Claimant apparently presented thedocumentation required by the Settlement Program to pass the second prong of the test. However, the Settlement Program then issued a Post-Reconsideration Denial Notice. TheAccount Compensation Calculation Schedule (Doc. 1D at Note 13 clearly states thatthe Claim was denied now because Claimant did not pass the Customer -Mix test of the Decline-Only Revenue Pattern:

“ On 4/27/2017, the Claimant requested Reconsideration andprovided specific documentation that identifies factors outside thecontrol of the Claimant that prevented the recovery of revenues in2011 as required by Exhibit 4B of the Settlement Agreement. (DocID: pg. 1-2). Accounting Review noted that thisinformation was previously provided and considered with the Re-Review request on 1/12/2017. (Doc ID: pg. 5). However, the Claimant has not met the third prong of the Down-Only revenue pattern test, which is providing customer mix data. The customer mix data is required to complete the customer mixtest/Causation analysis of the claim. Therefore, the determinationremains the same.”

Claimant, represented by counsel, then files the instant appeal. Claimant’s counsel, in theopening Memorandum addresses only the second-prong of the Decline-Only Revenue Pattern test(the outside factors portion) and never discusses the alleged failure of Claimant to pass theCustomer-Mix test.

When the original Denial Notice was issued, Claimant and its counsel were on notice thatClaimant’s only shot at recovery was through the Decline-Only Revenue Pattern test. Claimantthen had nearly 5 months to produce documentation to satisfy the second and third prongs of theTest. While Claimant may have satisfied the second prong, a de novo review of the recordsatisfies the Panel that Claimant did not satisfy the third prong. Thus Claimant’s appeal isdenied.




First

Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned








No error.

Comment (optional):

2017-3045

- Claim ID

The Settlement Program denied the BEL claim of this farmer from Newton, Alabama (Zone

D) for failure to satisfy the causation requirements of Exhibit 4B. After Policy 495 criteria were

triggered, the program accountant applied the Agriculture Methodology to resolve matching issues.

On appeal, Claimant initially argued that the claim should not be decided while Class

Counsel’s appeal of the Industry Specific Methodologies (ISMs) of Policy 495 was pending. During

the course of the appeal, the 5 Circuit resolved that issue, determining that the moving, smoothingth

or reallocation of revenue is inconsistent of the text of the Settlement Agreement. Claimant now

argues that the 5 Circuit decision, along with subsequent orders of the District Court, requires thatth

the claim be remanded for application of the AVM methodology. BP concurs and likewise requests

remand for recalculation.

The Settlement Program’s denial is overturned and this claim is remanded to the Settlement

Program for recalculation consistent with the rulings of the courts.






Law Firm

II. DECISION
















No error.

Comment (optional):

This appeal concerns one of Claimant's numerous locations in the Gulf Coast area. BP appeals the award of $43,389.25, raising 2 points of error. BP alleges the Program misclassified several expenses and the location at issue does not qualify as a facility. Adopting the reasons set forth in the Appeal Decision in Claim # BP's arguments are found to be without merit and Claimant's final proposal is selected as the proper award.

2017-3046






Law Firm

II. DECISION
















No error.

Comment (optional):

This appeal concerns one of Claimant's numerous locations in the Gulf Coast area. BP appeals the award of $163,402.58, raising 2 points of error. BP alleges the Program misclassified several expenses and the location at issue does not qualify as a facility. Adopting the reasons set forth in the Appeal Decision in Claim # , BP's arguments are found to be without merit and Claimant's final proposal is selected as the proper award.

2017-3047




First Middle



Law Firm

II. DECISION

















No error.

Comment (optional):

Claimant is a commercial/industrial contractor located in Defuniak Springs, Florida, Zone D. Claimant passed the Decline-

Only Test and supplied sufficient documentation to prove it had experienced factors outside its control that prevented it from recovering its lost revenues in 2011. However, that may well not matter on remand since the Vendor Accountants

utilized the Construction Methodology to analyze the claim. Remand is directed by the presiding courts and upon remand

2017-3048

the Program must use the AVM Methodology to reanalyze the claim and calculate the award without moving any revenues.

The claim is remanded.



Claimant Name


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Law Firm

II. DECISION

















No error.

Comment (optional):

Claimant is non-profit corporation promoting affordable healthcare services. It operates out of Baton Rouge, Louisiana, Zone D. Following an award, BP appealed asserting three errors, which if corrected, would cause the Claimant to fail

causation under Exhibit 4 B. BP complains about the treatment of various expenses but that alone would not reduce the

2017-3049

award. The Vendor Accountants found the criteria of Policy 495 were triggered and utilized the AVM Methodology to

analyze the financials. The problem arises upon review of the Calculation Notes in the light of the recent rulings of the presiding courts. Note 7 shows the Vendor Accountants made adjustments to "Grant Revenue", Misc Grants", "Management

Fees", and "Other Fees". Some of the revenues were spread evenly throughout the fiscal year. Grant Revenues were not because they were generally passed along to pre-specified clinics. Nevertheless, the moved revenues were not done to

correct errors. The courts have held revenue should not be moved, so the claim is remanded to the Program for recalculation of the award.




First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned








No error.

Comment (optional):


determined that the claim triggered Policy 495 and then applied the Agriculture Methodology to the claim. The Settlement Program then denied claim because it did not pass the Exhibit 4B causation tests. Claimant appeals.

Recent guidance from the U. S. Court of Appeals for the Fifth Circuit requires application of the AVMM if Policy 495 is triggered. The claim is remanded to the Settlement Program in light of the Fifth Circuit holding.

2017-3050



Claimant Name


First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned








No error.

Comment (optional):

filed this Business Economic Loss claim under the Settlement Agreement. The Settlement Program denied the claim because did not pass the Exhibit 4B causation tests.

Claimant appeals.

The Settlement Program determined the claim triggered application of Policy 495. The Settlement Program then applied

the Construction Methodology. Having done so, the Settlement Program concluded Claimant did not provide specific documentation of factors outside its control that prevented recovery of revenues.

The claim is remanded to the Settlement Program for application of the AVMM as required by recent guidance from the U. S. Court of Appeals for the Fifth Circuit.

2017-3051




First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned








No error.

Comment (optional):


applied the Construction Methodology and determined Claimant failed the Customer Mix portion of the Modified V-Test. appeals.

On appeal, points to recent guidance from the U. S. Court of Appeals for the Fifth Circuit requiring application of the AVMM. BP acknowledges the controlling law but argues would receive a negative Compensation Amount if the

AVMM is applied. This may be but Claimant has a right to have its claim correctly calculated in full conformance with governing law.

The claim is remanded to the Settlement Program for application of the AVMM.

2017-3052




First

Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

filed a Subsistence claim under the Settlement Agreement. The Settlement Program denied the claim

because did not prove he was licensed to hunt or fish before and at the time of his losses. appeals.

While on appeal, has produced licensing documentation. BP concedes he was licensed to fish before and at the

beginning of his losses. This is sufficient of course to establish right to recover.

BP argues instead an issue not decided below: catch claims are implausible. A review of Subsistence claim form reveals not only a highly implausible catch total but an impossibly large amount to be consumed by a three

person household.

This issue was not addressed by the Settlement Program. While this appeal is de novo, I have repeatedly declined to base

an appellate position based on issues not raised by the Settlement Program. Therefore, while I agree the catch totals are implausible, and possibly fraudulent, I leave that initial determination to the Settlement Program experts. The claim denial

is reversed.

2017-3053




First

Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):


2017-3054

DWH:

Claim ID:


This Claimant is a corn and soybean farmer located in Oak Grove, Louisiana (Zone D). His Business Economic Loss claim was denied for failure to satisfy the Settlement Agreement Exhibit 4B causation requirements. He argues, in this appeal, that the Claims Administrator erred by (1) improperly allocating his crop subsidy and disaster payment revenue items across his calendar year and/or crop season; and (2) processing his claim under the CAO Policy 495 Agriculture Methodology.

Examination of the record confirms the accuracy of Claimant’s submission on both counts. Following review of his financial records in keeping with Policy 495, the Administrator determined that matching issues existed and resolved them by utilizing the Agriculture Methodology. While so doing, it also excluded from revenue certain crop insurance and disaster payments Claimant received. This latter decision was reversed following Claimant’s Request for Reconsideration but his objection to application of the Agriculture Methodology and the smoothing of his revenues was declined in a decision handed down prior to the May 22, 2017, Fifth Circuit Decision. That decision, of course, compels the result here.

For the foregoing reasons, and in keeping with the decision of the Fifth Circuit and subsequent Orders of the supervising District Court, this appeal is sustained and the claim is therefore remanded to the Claims Administrator for further processing in keeping with those decisions.

Denial overturned.





First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

Claimant, a Lake Charles, La (Zone C) commercial real estate entity, appeals the Program's conversion of its BEL claim to a

Start-up BEL claim and its subsequent finding that as a latter entity, it failed to meet the Settlement Agreement's "customer mix" test requirements.

Claimant asserts that its owner, , has conducted commercial real estate operations since the 1990's, but that

thereafter he shifted that existing line of business to take advantage of a nationally known trademark and logo. It further asserts that the Program staff advised it to file claim forms under both Claimant's name and , always

acknowledging that it was a single entity. (No evidence of such advice was found in the subject portal). Claimant further asserts that evidence of its status as a single entity is found in the fact that business taxes for both of the above entities

were filed on Schedule E of form 1040 return. It asserts that had its claim been evaluated as a single entity under BEL standards, it would have been found to have operated for many years before the Spill and entitled to an award.

It seeks a remand for that purpose, stressing the "claimant-friendly" spirit of the Agreement.

As noted by BP (and as admitted by Claimant in its claim form), Claimant was not formed as an LLC until January of 2010. This panelist is well aware of past decisions of the District Court essentially drawing a "bright line" on the dates of

formation of said entities ("By definition, an entity could not have been in operation before that entity even existed." 2015-1699). By definition, therefore, Claimant had no operating history before April 20, 2010, and under Policy 362v2 and Exhibit

7 of the Agreement it could qualify only as a Start-up business. Under the standards of the Agreement, Claimant failed to

meet the "customer mix" provisions required for Start-up BEL claims. The fact that Claimant's business taxes may have

2017-3055

been listed in Schedule E tax return is not controlling here, since such data simply indicates that had

an interest in this entity. In contrast and of relevance to its status as a separate entity, Claimant maintained a separate EIN and made its own separate tax filings. Accordingly, finding that Claimant was a separate entity that had not commenced

operations before April 20, 2010, this panelist concurs in the Program's findings that as a Start-up business it failed to meet the criteria required under the Agreement to merit a Start-up BEL award.




First

Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

filed this Subsistence claim under the Settlement Agreement. The Settlement Program denied the claim

because a Field Visit Team could not verify the quantities of game and fish claimed. appeals.

This claim is a textbook example of the preferred handling of a claim by the Settlement Program when catch claims are

implausible or highly exaggerated.

The Field Visit Team is constituted of experts on the issues involved. During the April 13, 2017 visit, Claimant offered versions of his claimed losses that contradicted his earlier claims. Just as important, the Field Visit Team concluded, “The

Claimant is reporting the harvest of per trip poundage which is grossly unreasonable for the best of fishermen.” The claimed poundage does not demonstrate a good faith effort to calculate actual losses.

I agree and affirm the Settlement Program’s denial of his claim.

2017-3056




First

Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

filed this Subsistence claim under the Settlement Agreement. The Settlement Program denied the claim

because did not prove he was appropriately licensed or was exempt from licensing requirements. appeals.

On appeal, BP urges the denial be upheld but argues on grounds that go well beyond the licensing issue. I decline to

decide the matter on issues not made the basis of the Settlement Program denial.

The issue on appeal then is whether Claimant was appropriately licensed and provided such information to the Settlement Program. My review of the record does not indicate that Claimant provided evidence of licensure for hunting and fishing.

The Settlement Program also tried to substantiate licensure through other data sources but could not confirm licensure.

Given this, the Settlement Program correctly denied the claim. Issues relating to catch totals and the

implausibility of those claims are not adjudicated.

2017-3057




First

Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

2017-3058

- Claim ID

The Settlement Program denied the Subsistence claim of , an 85 year old

resident of Coden, Alabama. A Field Visit Team determined that it was unable to verify the amounts

of the claimed harvest. Claimant appeals, arguing that his dementia and hearing loss comprised his

ability to hear and understand the Field Team’s questions during the interview.

The essence of Claimant’s position is that as a lifelong fisherman, he possessed the

knowledge and experience to harvest the species and amounts of seafood claimed. Because he was

retired and lived on the water, Claimant argues that he fished on a regular basis. Thus, Claimant

urges that he was able to harvest the quantities claimed. Claimant also argues that many of the

interview questions were confusing and difficult for him to understand.

According to a Summary of Review from the Settlement Program, the Field Visit took place

on June 7, 2016 at the Claimant’s home. Also participating were three representatives of Claimant’s

counsel, one of whom joined by telephone. The Field Team noted that Claimant reported unrealistic

harvest amounts of king mackerel, red snapper and other species. He was likewise unable to produce

his fishing gear, reporting that he had given it away. The Field Team concluded that there was no

basis to verify the loss of 4,240 pounds of seafood as claimed. The Summary of Review seems to

question whether the Claimant ever participated in any fishing activities during the relevant period.

Claimant’s argument that his physical and mental infirmities affected the interview is

undermined by the presence and participation of his legal representatives. The Settlement Program

might be criticized for conducting a Field Visit 7 years after the fact, which could have affected

Claimant’s memory. However, his admission that other persons harvested 50% of the asserted catch

is equally damaging to his claim. De novo review leads this panelist to the conclusion that the

amount claimed, whether viewed in terms of daily consumption or annual total, is unreasonable and

therefore not credible. On this basis, the Settlement Program was entitled to deny the claim.

Accordingly, the denial is upheld.

2




First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

2017-3059

- Claim ID

The Settlement Program denied the BEL claim of this swimming pool company in Naples,

Florida (Zone D). Although Claimant satisfied the mathematical portion of the Modified-V Test

and Decline-Only Test, the Settlement Program determined that it failed the Customer Mix Test.

Claimant appeals.

On appeal, Claimant argues that the program accountant erroneously concluded that no

Customer Mix data was submitted. Indeed, the Contact Notes state at Note 10 that “The Claimant

did not provide customer mix documentation as required by the Settlement Program. As such, the

Claimant did not satisfy the requirements of the Customer Mix test.” Claimant argues that the

Customer Mix analysis performed by the Settlement Program demonstrates that no Custom Mix

information was considered prior to the denial. See Doc ID . Claimant argues that it had

uploaded Customer Mix data on February 21, 2017 which was available but not considered by the

program accountant. BP responds that Claimant failed to submit Customer Mix documentation for

the same three month period for which it passes the Modified V test and Decline-Only tests. BP

points to this omission as the basis for Claimant’s failure to satisfy the Customer Mix Test.

De novo review reflects that on April 25, 2017, the program accountant requested Customer

Mix data for May - June, June - August and August - October for 2009 and 2010. The Customer

Mix lists previously submitted by the Claimant covered only October - December 2009 and the same

months in 2010. No additional Customer Mix data was uploaded by the Claimant after receiving

the program accountant’s request. Under these circumstances, the Settlement Program was correct

in its analysis of the Customer Mix test and its conclusion that Claimant did not pass it.

For the forgoing reasons, Claimant’s appeal is denied.




First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

Claimant owns and operates twenty-four long term rental units located in Panama City, Florida, Zone A. The Policy 495

criteria were triggered and the Vendor Accountants used the AVM Methodology to analyze the claim. Claimant filed a consolidated claim seeking compensation for the entire business. Exhibit 5 permits the Claimant to choose one of two ways

to file a Multi-Facility claim. 1) for each individual facility; or 2) a consolidated claim for the entire business. Compensation

is then determined for all facilities consolidated within the BEL framework. Claimant has no facilities outside the Gulf Region. The award calculated by the Vendor Accountants is a negative number. Claimant appeals arguing that the Vendor

2017-3060

Accountants should not have included revenue from several units it acquired in early 2010 that did not generate income

until after the spill. However, it owned these units during the relevant time period prior to the spill. Exhibit 5 does not permit exclusion from a consolidated claim revenues from facilities located within the Gulf Region. The award is affirmed

and the appeal denied.




First

Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

2017-3061

- Claim ID

On his initial Subsistence Claim form, Claimant asserted a consumption rate of 50% for five

species and six dependants. The Settlement Program was unable to verify any of the dependants and

therefore issued an Eligibility Notice with an award of $190.46, pre-RTP. On reconsideration, the

Settlement Program was able to verify some of the additional dependants and issued a Post-

Reconsideration Eligibility Notice with a compensation amount of $1,256.06, pre-RTP. Prior to his

request for reconsideration, Claimant amended his claim form which, inter alia, modified his

claimed consumption rate to 100%. However, the revised award was based on the original

consumption rate of 50%.

On appeal, Claimant argues that he should have received compensation at the rate of 100%

of his lost catch. Claimant explains that the original 50% consumption rate was incorrect because

he believed his family consumed 50% and froze 50% of his harvest for later consumption. Claimant

further argues that he sent in his claim form at the last minute. A fishing companion, according to

Claimant, received a larger Subsistence award. Hence, Claimant argues that his award should be

increased by 50%.

In response, BP argues that Claimant’s Subsistence Claim form was filed 11 days before the

June 8, 2015 deadline, not at the last minute. On the merits, BP argues that the initial 50%

consumption rate asserted by Claimant was on a Sworn Claim form. BP also urges that Claimant

has provided no legitimate explanation for a higher consumption rate.

De novo review demonstrates that Claimant’s appeal cannot be sustained. This panelist finds

Claimant’s explanation to be truthful but inadequate under the Settlement Agreement. If Claimant’s

family consumed 50% and froze 50% of his catch for later consumption, he would and should have

known this at the time of his initial claim form. Further, the amounts awarded to other claimants has

no bearing on the instant claim.

The Settlement Program’s decision was correct in the amount awarded. Accordingly, BP’s

Final Proposal is selected and Claimant’s appeal is dismissed.

2




First

Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

Claimant is a flooring contractor located in Houma, Louisiana Zone B that filed a Failed Business BEL claim. When the claim

was denied Claimant requested reconsideration and then submitted new P/Ls without any explanation as to the discrepancies between the two sets of financials. The Program refused to reconsider the claim based on these new P/Ls.

Claimant then filed this appeal but does not submit a brief to support/explain its actions. This claim deserves no further

consideration. The denial is affirmed.

2017-3062




First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

Initially in its appeal of the denial of its Start-up BEL claim, Claimant, a merchandise store located in Crestview, Fl (Zone

D), focused on the allegation that it had been unaware that all its submitted Customer Mix data had not been received by the Program analysts until it received notice of this deficiency a few days after the expiration of the deadline to seek

reconsideration. It thence appealed the findings of the Program and attached to its appeal its entire extensive Customer

Mix data. This panelist thereafter requested that the Program reevaluate said data and determine whether its findings might change with a full version of the data provided. In due course, the Program analysts provided proof that even with

the entire version of Claimant's data, it still failed the requisites of the Customer Mix test. After the Program's results were reviewed by Claimant, its attack then focused on the Program's utilization of Policy 345v3, including its requirement that all

P.O. Box addresses and cash sales be deemed unverified addresses and therefore considered "unknown" for Customer Mix purposes. After de novo review of this record, this panelist agrees with the findings of the Program. Indeed, at least one

recent decision by the District Court (2016-1865) has approved the Program's requirement that Customer Mix data should

be restricted to customers providing actual street addresses. Accordingly, this panelist must deny Claimant's appeal of this matter.

2017-3063




First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

filed this BEL claim for its location in Ridgeland, MS. The claim was denied because

Claimant did not establish causation for the Decline Only Test, specifically because it did not provide adequate documentation identifying factors outside the control of claimant that prevented the recovery of revenues in 2011.

appeals, suggesting that it had presented sufficient documentation to satisfy the relevant standard. Specifically, Claimant

points to documents from the Department of Labor showing that, while the U.S. had an overall unemployment rate of 8.9% during the relevant time period, local market had an unemployment rate of 14.9%. Additionally, Claimant

asserts that the data demonstrates that the number of households with sufficient income to patronize restaurants declined in 2011.

Despite these contentions, the information submitted by claimant is far too general to satisfy the standard. Appeal

decisions have consistently recognized that macro-economic references are not sufficient to satisfy the requirement with

respect to outside factors preventing the recovery of revenues in 2011. The illustrative factors identified in the Settlement Agreement demonstrate that the factors must specifically affect a claimant and cannot just relate to general economic

conditions that would impact a large number of businesses. Claimant has not satisfied the requirement of providing proof of the requisite outside factors and, therefore, the denial of this claim is affirmed.

2017-3064




First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):


2017-3065


Claim ID

filed this BEL claim for its location in Greenwood, MS. The

claim was denied because Claimant did not establish causation for the Decline Only Test,

specifically because it did not provide adequate documentation identifying factors outside the

control of Claimant that prevented the recovery of revenues in 2011. appeals,

suggesting it had presented sufficient documentation to satisfy the relevant standard. Claimant

points to documents from the Department of Labor showing the restaurant's local market had a

higher unemployment rate than the national average during the relevant time period.

Additionally, Claimant asserts that the data demonstrates that the number of households with

sufficient income to patronize restaurants declined in 2011.

Despite these contentions, the information submitted by Claimant is far too general to satisfy the

standard. Appeal decisions have consistently recognized that macro-economic references are not

sufficient to satisfy the requirement with respect to outside factors preventing the recovery of

revenues in 2011. The illustrative examples identified in the Settlement Agreement demonstrate

that the factors must specifically affect a Claimant and cannot just relate to general economic

conditions that would impact a large number of businesses. Claimant has not satisfied the

requirement of providing proof of the requisite outside factors and, therefore, the denial of this

claim is affirmed.




First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

2017-3066

- Claim ID

The primary issue on this appeal is whether the Claimant can satisfy the outside factors prong

of the Decline-Only Revenue test. Claimant operates a adjacent to the airport in

Birmingham, Alabama (Zone D). The Settlement Program denied the claim based on the inability

of the Claimant to satisfy the second and third prongs of the Decline-Only Test. Specifically, the

program accountant determined that Claimant failed to submit specific documentation identifying

factors outside its control that prevented the recovery of revenues in 2011. On appeal, Claimant

argues that Policy 474 imposes additional causation criteria not required by the Settlement

Agreement. Claimant appears to be arguing that once it produces specific documentation of factors

outside its control, no additional causation criteria is required. Claimant argues that two hotels

entered Claimant’s market in 2011, a , that were located 15

and 18 miles, respectively, from Claimant’s location. Claimant also argues that a tornado struck

Birmingham on April 27, 2011, causing millions in property damage. Claimant argues that these

events were outside its control and impeded its 2011 recovery of revenues. Claimant submitted a

graph along with its memorandum that it argues supports a negative revenue trend commencing in

April of 2011. Claimant argues that neither the Settlement Agreement nor Policy 474 require that

it demonstrate a direct hit from the tornado in order to demonstrate an impact on the ability to

recover revenues.

In response, BP argues that the two hotels cited by the Claimant are located at too great a

distance to have any negative impact on Claimant’s revenues. As BP sees it, neither is located near

the airport nor is in direct competition with the Claimant. BP adds that both hotels opened near an

already existing not owned by Claimant, which demonstrates that they are not

competitors of the Claimant.

With regard to the tornado, BP acknowledges its occurrence but argues that Claimant failed

to submit any documentation indicating that its facility was damaged or that its revenue was

negatively affected in any way by the event.

Exhibit 4B of the Settlement Agreement requires the Claimant to present specific

documentation of factors outside its control that prevented the recovery of revenues in 2011. Policy

474 goes further, requiring the submission of objective, third-party documentation. This policy also

permits a claimant to submit an affidavit supplementing or corroborating third-party documentation.

Some appeal panels have recognized that the objective, third-party documentation requirement of

the policy imposes a greater burden than Exhibit 4B. For purposes of this appeal, the language of

the Settlement Agreement will be applied.

Section II (C) of Exhibit 4B provides that documentation identifying factors outside the

claimant’s control may include information such as the entry of a competitor and other unforeseeable

and unanticipated events. While the list of potential factors is not exhaustive or one dimensional,

the evidence must demonstrate factors that are claimant-specific and documented. Stated

differently, in order to be sufficient, an outside factor must have a demonstrable affect on the

claimant’s business. Here, documentation of this nature is lacking. Hence, the reviewing accountant

or an appeal panel would be left to speculate about any connection between the newly opened hotels

and/or the tornado and Claimant’s revenue stream in 2011. While the Settlement Agreement does

not require the Claimant to demonstrate the exact market share a competitor may have gained, there

must be some specific evidence that establishes a connection with the failure to recover revenues.

2

Claimant also argues that it satisfied the third prong of the Decline-Only Revenue Test, i.e.,

the Customer Mix Test. Because the Claimant was unable to satisfy the second prong, it is

unnecessary to address this issue.

For the foregoing reasons, the Settlement Program was correct in denying this claim.

Accordingly, the denial is upheld and appeal is dismissed.

3



Claimant Name


First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

2017-3067

- Claim ID

The Settlement Program initially awarded $14,717.63, pre-RTP to this urology clinic in

Trinity, Florida (Zone D). Unsatisfied, Claimant sought reconsideration, arguing that the Settlement

Program failed to consider relevant information. This time, the Settlement Program denied the claim

after excluding pass-through income received by Claimant from two related professional entities.

Claimant now appeals.

On appeal, Claimant argues that the Settlement Program mechanically applied Policy

328 v.2 in determining that the excluded revenue was pass-through in nature. Claimant argues that

its regular operations include all orders received, processed, billed from, accounted for and managed

within one physical location that is owned by the Claimant. Claimant appears to contend that the

two related entities from whom it received income, and

, are part of its organization and that the revenue from these entities should be

included in the calculation.

BP responds that Claimant’s revenue is entirely pass-through income and that the two related

parties could have filed their own BEL claims but did not do so. BP adds that this revenue was not

derived from Claimant’s operational activity but from its ownership interest in the two related

entities.

De novo review confirms that Claimant treated the revenue as pass-through investment

income on its tax returns which undermines its argument here. Policy 328 v.2 requires the exclusion

from revenue of income streams not typically earned as revenue under the normal course of

operations. The record reflects that Claimant purchased ownership interests in the two entities and

it appears that it received monthly payments from them as reflected by the P&Ls. The Calculation

Notes indicate that the program accountant reviewed the tax returns and made note of the nature of

these payments:

The Claimant’s tax returns show all income recorded on theClaimant’s profit and loss statements as pass-through income from

. Accounting Review has excluded Fees-Collected and MiscellaneousIncome in accordance with Policy 328 v2 of the SettlementAgreement (Doc File ID pp. 88-89, 117-118, 147-148,176-177, & 209-210).

Policy 373 v.2 is the yin to the yang of Policy 328 v.2. Policy 373 v.2 explains that all

recurring revenue streams that are within the business’s normal course of operations should be

included in the revenue analysis. But Claimant has failed to demonstrate that the revenue at issue

was derived from its normal course of operations as opposed to its ownership interests in the other

entities. The Settlement Program was correct in the exclusion of this revenue and the ultimate denial

of the claim. Accordingly, the denial is upheld.



Claimant Name


First Middle



Law Firm

II. DECISION



Compensation Amount $(4,507,188.54)













No error.

Comment (optional):

Claimant owned and operated a mixed use shopping center that offered residential and commercial units located in Key West, Florida, Zone A. It submitted a Failed Business Loss claim and following review was notified it had received a negative award calculation. Claimant appeals. The Policy 495 criteria were triggered but a review of the Accountants Notes revealed no revenues were reallocated. The shopping center has been foreclosed on by the lenders. No purpose is served by a reciting the mathematical calculations by the Program. The issue on appeal is the methodology used to reach the

2017-3068

calculation that led to the negative award. Exhibit 6 of the Settlement Agreement requires the Vendor Accountants to calculate a Pre-Spill Total Enterprise Value. To do so a 12 month EBITDA is calculated and multiplied by Claimant's Market Value Of Invested Capital (MVIC). That calculation results in the Pre-Spill Total Enterprise Value. Claimant argues the calculation shorted it because the Vendor Accountants used a value of its property of about $5 million when in fairness it should have used the appraisal submitted to the lenders of $11.5 million. The Vendor Accountants used their professional judgment and followed the negotiated terms of Exhibit 6 which control this and all other claims. Exhibit 6 @ 10 shows it applies to the real estate industry and unfortunately for this Claimant resulted in a calculation of no loss under its terms. The decision of the Administrator is affirmed.




First

Middle



Law Firm

II. DECISION

















No error.

Comment (optional):


2017-3069

CLAIMANT:CLAIM ID:

This is a BP appeal of an IEL award to an Irvington, Alabama resident. The SettlementProgram awarded Claimant the sum of $52,766.34 (pre - 3.00 RTP). BP asserts three mistakesby the Settlement Program, namely:

1) the Program erred in its calculation of Claimant’soffsetting earnings;

2) the Program did not reduce Claimant’s award by the PriorOil Spill-Related Payments Claimant received; and,

3) the Program also failed to offset Claimant’s VoO payment.

BP asserts that correction of these errors by the Program would render this claim non-compensable.

After a preliminary review of the file materials, the Appeal Panelist submitted a Requestfor Summary of Review to the Settlement Program and, in due course, received the following:

“The Claims administrator submits the following response to theAppeal Panelist’s request for further information concerning theIndividual Economic Loss (“IEL”) claim referenced above. TheAppeal Panel asked for a Summary of Review explaining how theOffsetting Earnings and Prior Payments were calculated andapplied.

Claimant filed an IEL claim for his employmentat provided 2008-2011W-2s as well as 2009-2011 Pay Period Earnings Documentation(“PPED”) demonstrating his earnings at this Claimant Job. Theclaimant also held a Non-Claiming Job as (Boat Captain). This job was demonstrated through submitted2010-2012 Schedule Cs.

The Settlement Agreement calculates Claimant Lost Earnings bycalculating the Expected Earnings from a Claimant Job minus theclaimant’s Actual Earnings during the Compensation Periodminus any Offsetting Earnings. Offsetting Earnings represent thetotal earnings from any Non-Claiming Job made during theCompensation Period as compared to the Benchmark Period. TheProgram calculates any Offsetting Earnings by totaling the sum ofthe Daily Pay Rates for all Non-Claiming Jobs during theCompensation Period. For the claimant’s Offsetting Earningscalculation, the Program determined the optimal CompensationPeriod is 6/16/2010 - 4/30/2011 and found that the total Daily PayRates for the Non-Claiming Job equaled $10,187.52 during thissame period.

Claim ID Page 2

During the Final Claimant Calculation, the Program analyzedwhether the claimant had Prior Payments that must be offset fromthe outcome. The claimant was a commercial fisherman for

according to Doc ID . TheProgram determined that the $43,000 Emergency AdvancePayment awarded in GCCF would offset against any SeafoodCompensation Program claim that the Claimant might file. TheClaimant did not file a Seafood claim, so there was no offset forthe GCCF payment. The VoO Charger Settlement payments areoffset to the BEL claims when the boats are directly used in a Non-Seafood related business. These VoO payments do not offsetagainst IEL claims, so there were no Prior Payment Offsets.”

The Summary of Review and the Appeal Panelist’s de novo review of the record in thismatter convinces the Appeal Panelist that the Settlement Program properly calculated Claimant’soffsetting earnings. Further, the Settlement Program properly determined that there were noapplicable Prior Payment Offsets. Therefore, BP’s appeal is denied.

In its Final Proposal, Claimant increased the Compensation Amount from $52,766.34(pre - 3.00 RTP) to $59,734.28 (Pre - 3.00 RTP) asserting for the first time that there should beno non-claiming job offset. A review of the record reveals that Claimant did not assert a Cross-Appeal raising this issue. For the reasons set forth above, the Appeal Panel determined that theSettlement Program properly calculated the offset.

If the Appeal Panel selected Claimant’s Final Proposal, the Claimant would enjoy a windfall ofabout $28,000.00. The record does not support Claimant’s Final Proposal and this matter isremanded to the Settlement Program to issue a Post-Appeal Eligibility Notice in the sum of$52,766.34 (pre - 3.00 RTP).



Claimant Name


First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

2017-3070

- Claim ID

The Settlement Program denied the BEL claim of this anesthesiology group in Pensacola,

Florida (Zone C) for failure to satisfy the causation requirements of Exhibit 4B. Claimant’s Notice

of Appeal states:

Appeal is necessary because the Settlement Program failed to followadopted policies governing Multi-Facility treatment and failed tocorrectly apply policy statements regarding the definition of aFacility.

Claimant has contracts under which it provides anesthesiology services to hospitals in

, Florida and , Florida. The hospital is located in Zone A.

The hospital in is located in Zone C. Claimant maintains separate P&Ls for its work at

each hospital. Claimant’s headquarters in is also located in Zone C.

The essence of Claimant’s appeal is that it submitted only the P&Ls for the

location and should be entitled to the presumed causation of a Zone A facility. The Settlement

Program determined that the Claimant was not a Multi-Facility Claimant because neither of the

hospitals qualified as a Facility under Policy 467. The program accountant therefore combined the

P&Ls and applied the causation tests applicable to Claimant’s Zone C headquarters. As a result,

Claimant was unable to satisfy any causation tests. On appeal, Claimant challenges the Facility

determination and the consolidation of the P&Ls. Claimant also argues that the Settlement Program

erred in applying the AVM methodology.

In response, BP argues that Claimant’s work at the two hospitals does not qualify as separate

Facilities under the Settlement Agreement. BP argues that Claimant neither operates the hospitals

nor owns or leases these structures. Hence, BP argues that the Settlement Program properly treated

the Claimant as a Zone C entity.

Policy 467 defines a Facility as: (a) a separate and distinct physical structure or premises;

(b) owned, leased or operated by the Business Entity; (c) at which the Business Entity performs

and/or manages its operations. Although Claimant argues that it performs operations at each

hospital, BP dismisses this argument as superfluous. Ultimately, it is unnecessary to resolve this

issue because Claimant neither owned, operated or leased either of the hospitals. Moreover, there

is no evidence that Claimant operated a separate office, operating room or structure on the hospital

premises. The Settlement Program was correct in determining that the Claimant’s operations at the

two hospitals are not separate Facilities.

Claimant also argues that the program accountant incorrectly applied the AVM methodology,

arguing that its P&LS were sufficiently matched. De novo review fails to confirm application of the

AVM methodology in the first instance. The Calculation Notes simply state that the claim did not

meet the revenue pattern causation requirements without reference to any methodology. This

assignment of error is without merit.

The denial of this claim was correct and is upheld.

2




First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

Written reasons uploaded on portal

2017-3071

CLAIMANT:CLAIM ID:

Claimant originally filed a BEL claim. In due corse, the Claims Administrator (CA)issued a Notice of Reclassified Claim after the CA determined it was actually a Start-Up BELclaim. Thereafter, the CA determined that Claimant’s financials did not meet the requirements ofExhibit 7 of the Settlement Agreement and denied the claim. Claimant appeals asserting the CAerred when it reclassified the claim.

A short history of (claimant) and is in order. wasincorporated in 1974 and the stock in the corporation was eventually owned by a father (

) and his two sons ( ). The corporation designed,fabricated and distributed metal highway signage structures out of its Birmingham, Alabamafacility. Prior to June 26, 2009, owned 19.72% of the corporation and each owned 40.14% of the corporation.

On June 26, 2009 a new entity was created, namely (the Claimant). Thatentity was owned by (83.40%), (6.39%), (6.89%) and

(3.32%). Claimant had a new and different Tax I.D. number. Claimant purchased someof the assets of changed its name to but it was not liquidated. Claimant asserts that its claim should not have been reclassified as aStart-Up BEL claim but rather as a general BEL claim because the June 2009 transaction wasreally a “Recapitalization” of the original Corporation.

It is undisputed that Claimant did not come into existence until June 26, 2009. The salefrom the corporation was an asset sale not a stock sale. It is clear that Claimant did not have anoperating history more than 18 months before the Spill.

The supervising U.S. District Court’s Discretionary Review decisions provide guidancehere, namely the Order and Judgment of the Court, 2:17-CV-01961-CJB-JWC (April 18, 2017)and 2:16-CV-0287-CJB-SS (March 30, 2016). In the latter, the Court held:

“The transaction was a sale of assets, not a sale of the company’sstock. Further, it was not merely a change in corporateorganization. The transaction was something other than a singleentity merely changing its legal form or organization; it was a saleof assets from one entity to a separate entity with a different set ofowners.”

Further, as the District Court stated in the Order and Judgment, 2-16-CV-00443-CJB-SS(February 24, 2016):

“...by definition, an entity could not have been in operation beforethat entity even existed.”

Claim ID Page 2

After full review of the record in this matter, the Appeal Panel finds that the CA properlyreclassified this claim as a Start-Up BEL claim. Therefore, Claimant’s appeal does not prevail.



Claimant Name


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Law Firm

II. DECISION
















No error.

Comment (optional):


2017-3072


Claim ID

operates a chain of pharmacies. The claim at issue in this case relates to . Claimant received an award of $47,232.33 with an RTP of 1.50 but now appeals, arguing that it should have been entitled to a tourism designation.

BP points out that the Settlement Program often looks at what percentage of a pharmacy's sales are for prescription drugs since these are generally local sales. BP suggests that the average percentage attributable to prescriptions for this store in 2007-2011 was 65%. Appellant submitted sales information for this location applicable to 2009 and 2010. This data shows that roughly 54% of non-pharmaceutical sales were to non-locals for these years. However, this submission also demonstrates that roughly 73% of prescription drug sales were to locals. Moreover, since prescription drug sales accounted for approximately 75% of overall sales, almost 70% of total sales at this store were to locals. Under these circumstances, the Program's finding that Claimant is not entitled to a tourism designation is found to be correct and the award, which is in accord with BP's final proposal, is affirmed.




First

Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

2017-3073

- Claim ID

Claimant appeals the denial of her IEL claim by the Settlement Program. Claimant is the sole

owner of a real estate broker in Largo, Florida. She was paid compensation

that was reported on Form W-2. The Settlement Program’s denial was based on the prior BEL award

to in Claim ID # In that BEL claim, the Settlement Program treated

Claimant’s W-2 wages as a fixed expense.

On appeal, Claimant argues that the rule against double recovery in the IEL/BEL context is

not supported by the Settlement Agreement or any of the Claims Administrator’s current policies.

Claimant argues that her wages were not reported on Schedules C, D or E of a Form 1040 and that

she was neither a sole proprietor nor a self-employed individual as contemplated by Section 38.84

of the Settlement Agreement. Claimant goes further to point out that is

a Sub-Chapter - S corporation under the Internal Revenue Code. Because such corporations are not

doubly taxed because revenue flows through to the shareholders, Claimant argues that her

compensation is not self-employment income. Finally, Claimant argues that payment of the instant

IEL claim would not, in fact, result in a double recovery.

In response, BP points to discretionary review decisions of the District Court which have

upheld the denial of IEL claims by owners of business entities that have asserted BEL claims. BP

argues that whether a business owner received W-2 wages does not alter the analysis.

Unfortunately for Claimant, the courts have weighed in on this issue and resolved it adversely

to her position. On July 19, 2017, the 5 Circuit affirmed the District Court which held that the BELth

framework “inherently” compensates a business for reduced ownership/officer compensation, which

benefits the owners:

Claimants ask that CSSP compensation not only their businessthrough a BEL claim, but also the claimant’s themselves asemployees through an IEL claim. The Settlement Agreement, whenread as a whole, does not allow this double compensation. The BELframework, by compensating the business for the owner’s lost wagesthrough the fixed-cost designation of their wages, precludescompensating those same owners for the same wages through an IELclaim.

This panelist is sympathetic to Claimant’s arguments regarding the text of the Settlement

Agreement - that there is no provision specifically prohibiting an IEL claim by an owner or, for that

matter, prohibiting a double recovery in such cases. Regardless, the courts have spoken on the issue

and appeal panels are bound to apply these pronouncements.

For the foregoing reasons, the Settlement Program was correct in denying this claim.

Accordingly, the denial is upheld.

2




First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

The Settlement Program denied this Failed Business Economic Loss claim because Claimant does not satisfy the “Tourism”

or “Seafood Distribution Chain” definitions, and in accordance with Exhibit 6 of the Settlement Agreement, the Settlement Program does not compensate such businesses. Claimant appeals stating: “We submitted an application that detailed

information. After the oil spill clean-up, we had to close our business. What can be clearer than that?! I want this case kept

alive, please!” Claimant has not filed an Opening Memorandum as required by the Rules Governing the Appeals Process. BP further asserts that Claimant ignores the bar against oil and gas support business from recovering for their losses following

the federal government’s moratoria. Here, the Settlement Program correctly assigned Claimant NAICS Code 488330. The Failed BEL Claim Form for Claimant describes the business activity as owning and operating a lift boat that was leased to

companies servicing or owning oil and gas leases in the Gulf of Mexico. An Appeal Panel has held that “Section 2.2.4.5 of the Settlement Agreement looks to the substantive nature of the business not form.” Here, says BP, the “substantive

nature of the business” is inherently an oil and gas support company, and therefore, Claimant falls squarely under NAICS

Code 488330 and may not participate in the settlement. Finally, Claimant has failed to demonstrate that it has any connection to Tourism. The Appeal Panel upholds the Settlement Program’s denial of this claim.

2017-3074



Claimant Name


First Middle



Law Firm

II. DECISION

















No error.

Comment (optional):

received a pre-RTP BEL award of $31,669.99. Claimant appeals, arguing the Program should not have utilized the Agricultural Methodology in this case. A few days after claimant filed the appeal, the 5th Circuit came out with its ruling invalidating the use of the Agricultural Methodology and ordaining the application of

2017-3075

the AVM methodology. Accordingly, this matter is remanded for further processing in accordance with the 5th Circuit's May 2017 decision.




First Middle



Law Firm

II. DECISION

















No error.

Comment (optional):

received an award of $ 374,189.28 pre-RTP which BP appeals. This claim was processed under the Agricultural Methodology. Both parties agree that this claim must be remanded pursuant to the 5th Circuit's ruling invalidating the use of the Agricultural Methodology. There are no issues that are appropriate for resolution prior to this remand. Accordingly, this matter is remanded for further processing in accordance with the prior decision of the 5th Circuit.

2017-3076




First Middle



Law Firm

II. DECISION

















No error.

Comment (optional):

Reasons uploaded

2017-3077

CLAIMANT:CLAIM ID:

The Claims Administrator (CA) awarded Claimant the sum of $89,945.18 (pre - 0.25RTP) for its store in Naples, Florida. BP appeals asserting four issues on appeal. Three of theissues BP raises have been consistently ruled upon and found to be without merit by the AppealPanel. Thus, in this appeal, the Panelist finds those issues are without merit.

BP’s fourth issue on appeal was peculiar to this particular appeal. BP asserts the CAerred in applying the AVM Methodology to this claim because Claimant’s Financials weresufficiently matched. BP asserts the CA erroneously included January 2007 and February 2007in the Policy 495 matching analysis. BP asserts, and Claimant does not dispute, that this storewas not in operation in January and February of 2007. BP asserts the CA should have analyzedthis as a General BEL Claim and that doing so would result in an award reduced by $21,124.50(pre - 0.25 RTP).

The Panelist requested a Summary of Review from the CA and, in due course the CAreplied:

“The Claims Administrator submits the following response to theAppeal Panelist’s request for information on the claim referencedabove. Specifically, the Appeal Panelist asked why the SettlementProgram used January 2007 and February 2007 in the Policy 495matching analysis and if those months were removed, whetherany of the Policy 495 tests would be triggered. The AppealPanelist also asked what the Compensation Amount would be ifthe General BEL methodology was used.

DWH Accountant inadvertently included January 2007 andFebruary 2007 in the Policy 495 matching analysis. If Januaryand February 2007 were excluded from the matching analysis,there would not have been a Policy 495 matching criteriatriggered and the General BEL Methodology would have beenutilized. Utilizing the General BEL Methodology results in aCompensation Amount of $67,412.09, prior to Risk TransferPremium and Prior Payment Offset. Utilizing the Annual VariableMargin methodology results in a Compensation Amount of$112,431.48 prior to Risk Transfer Premium and Prior PaymentOffset. This is a compensation difference of $45,019.39.”

In a claims process as massive as DHCC, mistakes are going to be made and this is onesuch instance. The Panelist notes that the Summary of Review contained a typographical errorbecause utilization of the AVM Methodology would result in an award of $112,431.48 post -RTP.

Based upon the Summary of Review and the Panelist’s de novo review of the record,this matter is remanded to the CA solely to issue a Post Appeal Eligibility Notice in the sum of$67,412.09 (pre - 0.25 RTP) plus Accounting Support if applicable.




First

Middle



Law Firm

II. DECISION

















No error.

Comment (optional):


2017-3078

DWH:

Claim ID:


This BP appeal of a Business Economic Loss award to a Dundee, Mississippi (Zone D) cotton farmer is back before this panelist following an earlier BP appeal which resulted in remand to the Claims Administrator with instructions to investigate whether rental revenues received from related parties resulted from transactions conducted at arms length as required by Policy 328.

In this current appeal, BP contends that the Administrator made no effort to investigate this issue as instructed; instead, it relied upon bald assertions previously made by Claimant and merely asked about the timing of Claimant invoices and payment receipts.

To the contrary, Claimant submits that it provided its General Ledgers as well as the Rental Agreements with attached lists of rented equipment, together with invoices for the work performed, all of which clearly demonstrate that the contested transactions were indeed conducted at arms length. Accordingly, Claimant asserts that the Administrator correctly applied the proper methodology and appropriately exercised discretion in reviewing the related party issues.

Examination of the record supports Claimant’s position. The Administrator’s detailed Calculation Notes confirm post-remand inquiries directed to the Claimant with respect to the Rental Agreements executed with each of Claimant’s three related parties and the receipt of satisfactory responses. Document ID , Note 22, Post-Injunction Remanded Appeal.

This BP error assignment is therefore rejected.

However, further review of the record reveals that, upon reviewing Claimant’s financial data in keeping with the requirements of CAO Policy 495, the Administrator utilized the Agriculture Methodology to resolve matching issues which that inquiry revealed. During the course of that application, the Administrator moved, smoothed and reallocated numerous of Claimant’s revenues. That necessitates remand in keeping with the subsequent Fifth Circuit Policy 495 Opinion and ensuing District Court Orders.

For the foregoing reasons, this claim is therefore remanded to the Claims Administrator for further processing in keeping with those decisions.





First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

filed this Business Economic Loss claim under the Settlement Agreement. This particular claim is on behalf of its Anniston, Alabama store. The Settlement Program determined the store was entitled to a Compensation Amount of $84,635.22 pre-RTP. BP appeals.

The Claims Administrator issued more than 80 awards to and its stores. BP has challenged almost all of them. The issues raised by BP vary from claim to claim but all fall into four categories. This is pertinent because the

2017-3079

appeal opinions filed so far have ruled in favor of on all points. This has a precedential impact unless clearly in error.

We turn to BP’s attestation argument, made here and in some other claims. This has been preserved for determination by higher courts. While Appeal Panelists have uniformly rejected the attestation claim, it will be resolved elsewhere. BP raises three arguments in this claim: (1) COGS adjustments to P&L statements; (2) issues involved fixed and variable costs; and (3) requirements for sales and use taxes.

BP argues the Settlement Program erred by allocating COGS to individual stores. BP has taken a different position in other cases. Here the Settlement Program did an exhaustive review of the financials and the revised P&L statements reflect the adjustments made. The record overwhelmingly supports the Settlement Program determination.

The next argument relates to classification of expenses BP contends are variable. The Settlement Program determined that the expenses are “largely fixed in nature.” In BP’s Initial Proposal, it failed to offer any breakdown of the effect of the error, if any, on fixed versus variable expenses. In its Final Proposal, BP makes a Final Proposal of Compensation Amount of $59,538.42 but does not articulate how much of that is for claimed error on COGS and how much is for claimed error on variable expense. Given this omission by BP, and the applicable “baseball” rules applying to this decision, there is no basis to uphold BP’s position as to variable expense. We do not know from BP what the quantification would be if BP was right on variable expense alone.

BP’s third point relates to the need for filing sales and use tax reports. Given ’ NAICS code, it appears no such reports are required.

The Settlement Program correctly determined was entitled to $84,635.22, pre-RTP.




First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

filed this Business Economic Loss claim under the Settlement Agreement. This particular claim is on behalf of its Biloxi, Mississippi store. The Settlement Program determined the store was entitled to a Compensation Amount of $252,183.04, pre-RTP. BP appeals.


2017-3080

appeal opinions filed so far have ruled in favor of on all points. This has a precedential impact unless clearly in error. BP raises three arguments: (1) COGS adjustments to P&L statements; (2) issues involved fixed and variable costs; and (3) requirements for sales and use taxes. BP argues the Settlement Program erred by allocating COGS to individual stores. BP has taken a different position in other cases. Here the Settlement Program did an exhaustive review of the financials and the revised P&L statements reflect the adjustments made. The record overwhelmingly supports the Settlement Program determination. The next argument relates to classification of expenses BP contends are variable. The Settlement Program determined that the expenses are “largely fixed in nature.” The effect of any variable expense error is $3,650, post-RTP. In this “baseball” appeal, an error of $3,650 is not enough to swing the award BP’s way when its Final Proposal is $163,671 and

is $262,549.13. BP’s third point relates to the need for filing sales and use tax reports. Given NAICS code, it appears no such reports are required. The Settlement Program correctly determined the Compensation Amount to which was entitled.




First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

filed this Business Economic Loss claim under the Settlement Agreement. This particular claim is on behalf of its Gulfport, Mississippi store. The Settlement Program determined the store was entitled to a Compensation Amount of $262,549.13, pre-RTP. BP appeals.


2017-3081

appeal opinions filed so far have ruled in favor of on all points. This has a precedential impact unless clearly in error. This is pertinent because the appeal opinions filed so far have ruled in favor of . This has a precedential impact unless clearly in error.

BP raises three arguments in this claim: (1) COGS adjustments to P&L statements; (2) issues involved fixed and variable costs; and (3) requirements for sales and use taxes.

BP argues first that the Settlement Program erred by allocating COGS to individual stores. BP has taken a different position in other cases. Here the Settlement Program did an exhaustive review of the financials and the revised P&L statements reflect the adjustments made. The record overwhelmingly supports the Settlement Program determination.

The next argument relates to classification of expenses BP contends are variable. The Settlement Program determined that the expenses are “largely fixed in nature.” If BP is correct with respect to variable expenses, it reduces the award by $2,255 “post-RTP”. This is not enough to change the outcome given the “baseball” nature of the appeal.

BP’s third point relates to the need for filing sales and use tax reports. Given NAICS code, it appears no such reports are required.





First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

filed this Business Economic Loss claim under the Settlement Agreement. This particular claim is on behalf of its LaPlace, Louisiana store. The Settlement Program determined the store was entitled to a Compensation Amount of $66,719.85, pre-RTP. BP appeals.


2017-3082


BP raises three arguments: (1) COGS adjustments to P&L statements; (2) issues involved fixed and variable costs; and (3) requirements for sales and use taxes.

BP first argues that the Settlement Program erred by allocating COGS to individual stores. BP has taken a different position in other cases. Here the Settlement Program did an exhaustive review of the financials and the revised P&L statements reflect the adjustments made. The record overwhelmingly supports the Settlement Program determination.

If BP is correct on variable versus fixed expenses, the award is reduced by $2,023, “post-RTP.






First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

filed this Business Economic Loss claim under the Settlement Agreement. This particular claim is on behalf of its New Orleans, Louisiana, store. The Settlement Program determined the store was entitled to a Compensation Amount of $88,187.70, pre-RTP. BP appeals.


2017-3083

appeal opinions filed so far have ruled in favor of on all points. This has a precedential impact unless clearly in error. We turn to BP’s attestation argument. This has been preserved for determination by higher courts. While Appeal Panelists have uniformly rejected the attestation claim, it will be resolved elsewhere. In its Appeal Notice and briefing, BP contends that the Settlement Program erred in failing to obtain sales and use tax returns. However, the Settlement Program determined such returns were unnecessary given the NAICS code assigned to

. Given that BP does not attack the NAICS code determination, it cannot overcome the Settlement Program’s decision that no sales and use tax were required. BP’s Final Proposal is $0.00. Final Proposal adopts the Settlement Program Compensation Award.

prevails. The Settlement Program correctly determined was entitled to $88,187.70 pre-RTP.




First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

filed this Business Economic Loss claim under the Settlement Agreement. This particular claim is on behalf of its Oxford, Mississippi store. The Settlement Program determined the store was entitled to a Compensation Amount of $76,445.92, pre-RTP. BP appeals.


2017-3084


We turn to BP’s attestation argument. This has been preserved for determination by higher courts. While Appeal Panelists have uniformly rejected the attestation claim, it will be resolved elsewhere. BP raises three other arguments: (1) COGS adjustments to P&L statements; (2) issues involved fixed and variable costs; and (3) requirements for sales and use taxes.

BP raises two other arguments: (1) issues involved fixed and variable costs; and (2) requirements for sales and use taxes.

TWith respect to fixed versus variable expenses, the Settlement Program determinated that the expenses were “largely” fixed. In BP’s Initial Proposal, it contends that variable and fixed should be reclassified as 50% variable and 50% fixed. If correct, this would reduce the award by $1,083 “post-RTP.” There is, however, no evidence submitted by BP to overcome the Settlement Program’s determination that such costs were “largely” fixed. Therefore, there is no basis to accept BP’s 50/50 proposal.

This is a “baseball” appeal, meaning the Final Proposal closest to the correct award prevails. There still must be record evidence however to justify a 50/50 allocation to overcome a specific conclusion by the Settlement Program accountants that the expenses were “largely” fixed. “Largely” means more than 50%.






First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

filed this Business Economic Loss claim under the Settlement Agreement. This particular claim is on behalf of its Riverview, Florida store. The Settlement Program determined the store was entitled to a Compensation Amount of $59,548.16, pre-RTP. BP appeals.


2017-3085


BP raises three arguments: (1) COGS adjustments to P&L statements; (2) issues involved fixed and variable costs; and (3) requirements for sales and use taxes.

BP first argues that the Settlement Program erred by allocating COGS to individual stores. BP has taken a different position in other cases. Here the Settlement Program did an exhaustive review of the financials and the revised P&L statements reflect the adjustments made. The record overwhelmingly supports the Settlement Program determination.

BP alleges the Settlement Program misclassified certain expenses as fixed rather than variable. It calculates the error, if any, at $675 “post-RTP.” The issue is moot, however, because of the “baseball” nature of this appeal. Claimant adopted the Settlement Program determination of $59,548.16, pre-RTP. BP submits a Final Proposal of $10,988, pre-RTP. To prevail, BP had to be correct on its COGS issue. As discussed, BP was incorrect. Therefore, Claimant’s Final Proposal prevails.

BP’s third point relates to the need for filing sales and use tax reports. Given ’ NAICS code, it appears no such reports are required.





First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

filed this Business Economic Loss claim under the Settlement Agreement. This particular claim is on behalf of its Mobile, Alabama store. The Settlement Program determined the store was entitled to a Compensation Amount of $70,031.02, pre-RTP. BP appeals.


2017-3086


BP raises three arguments: (1) COGS adjustments; (2) issues involved fixed and variable costs; and (3) requirements for sales and use taxes.

BP argues first that the Settlement Program erred by allocating COGS to individual stores. BP has taken a different position in other cases. Here the Settlement Program did an exhaustive review of the financials and the revised P&L statements reflect the adjustments made. The record overwhelmingly supports the Settlement Program determination.

BP contends next that the Settlement Program misclassified certain variable expenses as fixed. While I agree that the Settlement Program’s determination was that these “largely” fixed expenses should have been partially characterized as variable, the effect of this on the appeal is non-existent. If BP is correct and the expenses should be 50% variable and 50% fixed – despite a Settlement Program finding that they were “largely” fixed - the award would be reduced by about $500. Given the baseball nature of this appeal, the outcome does not change. Claimant’s Final Proposal is closer to the correct award and thus prevails.

BP’s third point relates to the need for filing sales and use tax reports. Given NAICS code, it appears no such reports are required. The Settlement Program correctly determined was entitled to $70,031.02, pre-RTP.




First

Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

Claimant is a restaurant server at (Claiming Job) in New Orleans, Louisiana. The Settlement Program calculated her compensation amount as $58.68, and found that she had received $2,000.00 in prior spill-related payments. Because Claimant received prior spill related payments that must be offset and that exceed the calculated Compensation Amount, she is eligible for an award of $0. Claimant appeals, but makes no argument in support of her appeal except simply stating: “I believe we have submitted sufficient documents to show compensation.” Claimant has done nothing in her appeal to explain why the Settlement Program’s decision was in error or how the documents submitted support a

2017-3087

different determination. No such error exists. Claimant’s appeal is denied.




First

Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):


2017-3088

The IEL claim of was dismissed because he was an owner of a business that previously recovered under the BEL framework and the Program determined there could be no award for claimant’s lost wages under these circumstances. appeals, arguing there is no language in the Settlement Agreement requiring the denial of an IEL claim brought by a business owner of a company that received a BEL award.

Claimant argues vociferously that he is neither a sole proprietor or self employed. Additionally, maintains the denial violates his right to due process since it is contrary to the notice he received which did not disclose “ after –the-fact modifications to the Agreement’s Class Definition and IEL eligibility provisions”.

Despite these protestations, as BP points out, the District Court has squarely addressed the propriety of an IEL claim where claimant is an owner of a business for which he seeks lost wages, where that business has already recovered under the BEL framework. The Court held:

Because owner/officer compensation was treated as a fixed cost based on pre-spill wages, the Firm is paid as if there was no reduction in owner/officer compensation during the post –spill period, and the BEL award to the Firm is therefore higher than it would have been if the cost –savings in owner/officer compensation had been treated as a variable cost. Thus, the firm benefitted from this classification… Because the Settlement’s BEL framework has inherently compensated the Firm for the reduced owner/officer compensation, permitting the claimants to recover for the same losses under the IEL framework would constitute a double recovery.

See 4/25/2016 Order and Reasons from the District Court

There is no question in the immediate case that claimant is an owner of the company in question or that the Settlement Program treated claimant’s wages as fixed in the businesses’ BEL claim. Moreover, the prohibition dictated by the District Court applies where, as here, the claimant receives W-2 wages. See 9/30/2016 Order from the District Court

Further, claimant cannot buy a reprieve from the rule set forth by the Court because this issue “is under appeal”. At this stage, this ruling is the law of the case and must be followed, unless and until there is additional authority dictating a different result. Accordingly, the denial of this claim is affirmed.




First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):


denied the claim because Claimant did not pass any of Exhibit 4B’s causation tests. The denial is of the claim before this panelist, Claim No. .*

appeal misrepresents what occurred in the processing of its claims. Contrary to allegations, the Settlement Program did not include discontinued entities in its calculations. In fact, the Settlement Program used the

Dothan, Mobile, and Pensacola stores in the calculation, as well as another extant entity. This was entirely proper.

The next point relates to attempt to “unconsolidate” its claims. This is based on the assumption that Dothan would have a viable claim (see Opening Memorandum, at 1). BP strenuously opposes this because the claim has been

prosecuted as a consolidated claim at Claimant’s request.

The issue is troubling for two other reasons. First, the Settlement Agreement requires that the process be claimant-

friendly. Second, BP is correct in noting in its Opposition at page 2, Footnote 2 that “Claimant does not clearly identify which revenues and expenses are associated specifically with the Dothan location, and thus the Settlement Program cannot

calculate its claim based only on the Dothan store.”

2017-3089

The consolidated claim is before this Panel. The Settlement Program properly denied consolidated claims in Claim

Number . Whether any claims survive or are still alive in Claim Number is not before this Panel.

* contends a different claim exists on behalf of its Dothan location: Claim No. . That specific claim is notbefore this Panel. The consolidated claim is before the Panel.




First

Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):


concluded did not pass Exhibit 4B’s causation tests and issued a claim denial. appeals.

Despite an eloquent Opening Memorandum, argument fails because it is based on an erroneous supposition.

contends, “The denial of this Claim was based on the Claim’s evaluation using the Professional Services ISM under Policy 495…” See Claimant’s Opening Memorandum at 1. If is correct in this contention, he is also

correct that the claim should be remanded.

However, is wrong. The AVMM was used. See Calculation Notes at Note 3 “AVM Methodology.” See also Accountant Causation Calculation Schedule at Note 9. It seems probable that Claimant’s misapprehension flows from the

Settlement Program’s assignment of a Professional Services NAICS Code Number to his claim. This has nothing to do,

however, with the Methodology used to process the claim. The AVMM was used.

The Settlement Program correctly denied claim.

2017-3090




First

Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

filed this Individual Economic Loss claim under the Settlement Agreement. The Settlement Program denied

the claim because he was not entitled to recover under the IEL framework because he owns the business from which he was claiming lost wages and he had already recovered those losses through the BEL process. appeals.

On appeal, correctly notes that the basis for the Settlement Program’s position in IEL claims is the fear of a double-recovery. The Settlement Program’s position also ignores the language of the Settlement Agreement with respect to lost

W-2 wages. The Settlement Program prohibition applies to those whose business earnings are reported on Schedule C, D,or E – and does not include W-2 wages. BP, however, cites several opinions from the supervising federal court in support

of its position. These opinions, if applicable, are controlling here.

In this case, is a 50% owner of . filed a Business Economic

Loss claim in 2013. In the claim, W-2 wages were treated as a fixed expense. claim was paid. This means benefitted because his business used the W-2 wages in the claim calculation.

These circumstances are precisely the concern expressed by the supervising federal court about double recoveries. More

recently, the U. S. Court of Appeals refused to craft or read into the Settlement Agreement some solution for IEL claimants

that would address the portion of the Claimant’s loss that would not be a double recovery.

2017-3091

The District Court’s pronouncement in a case involving W-2 wages is controlling here, despite the specific language of the Settlement Agreement. Therefore, the Settlement Program’s denial of the claim is upheld because of the potential for a

double recovery.




First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

filed this Start-Up Business Economic Loss claim under the Settlement Agreement. The

Settlement Program denied the claim on multiple occasions because did not pass the Customer Mix Test required for Start-Up BEL claimants. appeals.

There are two issues on appeal: (1) whether the claim should be remanded to the Settlement Program for reconsideration because the Settlement Program applied the AVMM without identifying or correcting any errors; and (2) whether

passes Exhibit 7’s Customer Mix Test.

On appeal, the panelist sent a Request for Information/Summary of Review addressing these issues. The Settlement Program’s response is illuminating and dispositive.

With respect to Claimant’s first issue, the Settlement Program states, “This claim was not processed using an Industry Specific Methodology.” This dispatches Claimant’s argument that the AVMM was utilized despite the absence of a matching

issue or error.

In addition, the Settlement Program was requested to examine all of Claimant’s Customer Mix data and determine whether

Claimant passed the Customer Mix Test. The Settlement Program concluded, “BP is correct that the Claimant fails the

2017-3092

Customer Mix Test.” The Settlement Program added that it used all of the data provided by Claimant. See Accountant

Causation Calculation Schedule (Doc. .

The Settlement Program correctly denied the claim.




First

Middle



Law Firm

II. DECISION

















No error.

Comment (optional):

BP appeals the IEL award to claimant,a boat salesman employed by a marine dealer in Largo,Florida.BP asserts the Settlement Program(SP) incorrectly calculated claimant's compensation when it used the wrong amount from claimant's non-claiming job as an offsetting earning credit.Claimant argues there are no offsetting earnings from his non-claiming job since these earnings from it during the compensation period did not exceed those from the benchmark period as required

2017-3093

by the Settlement Agreement. A review of the record discloses that claimant's compensation period was September 10,2010, to December 16,2010; and his benchmark period was September 10,2009 to December 16,2009.Claimant's earnings for the compensation period did not exceed those for the benchmark period. The post-reconsideration eligibility notice issued on May 24,2017,reflects no offset earnings were applied to claimant.For these reasons,BP's argument fails and its final proposal is rejected.Inexplicably,claimant's final proposal is nearly $2,000 more than its initial proposal which was in accord with the amount awarded by the SP.This final proposal has no support in the record.Because neither final proposal of the parties is supported by the record,this claim is remanded to the Claims Administrator with directions a final eligibility notice be issued consistent with that issued on May 24,2017.




First

Middle



Law Firm

II. DECISION



Compensation Amount $(973.30)













No error.

Comment (optional):

filed this Business Economic Loss claim under the Settlement Agreement. The Settlement Program concluded that was entitled to a negative Compensation Amount. appeals.

contends correctly that the Settlement Program is required by the Settlement Agreement to select a compensation period that maximizes recovery. argues this is from June through August and that the Settlement Program used September through November.

2017-3094

The Settlement Program considered this argument in response to attempt at Reconsideration. The Settlement Program accountants reviewed “all available Benchmark Periods.” Calculation Note 11. After that review, the Settlement Program reaffirmed that September to November was Optimum Benchmark Period. Calculation Note 7 is also relevant. Regardless, the Settlement Program has addressed the issue repeatedly and Claimant is incorrect in his assumption that the outcome is different if some other period is chosen. BP’s Initial Proposal notes that Clamant would have a negative Compensation Amount of $1,439.17 if Claimant’s argument was adopted.

The Settlement Program correctly concluded that Claimant’s Compensation Amount is a negative $973.30. In this “baseball” appeal, BP’s Final Proposal adopts the Settlement Program’s determination and prevails.




First

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II. DECISION
















No error.

Comment (optional):

filed this Individual Economic Loss claim under the Settlement Agreement. The Settlement Program determined was due a Compensation Amount of $28,976.12. BP appeals on two grounds.

BP’s first point of error is that the Settlement Program erred because losses are not covered by the Individual Economic Loss framework. BP correctly cites governing Settlement Agreement provisions. Individual Economic Loss claims are only for losses “in addition to or other than a Claim for Economic Damages related … to sole proprietorship business or

2017-3095

self-employment as reflected on Schedule C, D, or E of a federal income tax form.” , however, is a W-2 employee. He was not in a sole proprietorship or self-employed and required to file a Schedule C, D, or E. Thus, by definition, has an IEL claim. This is true even though is a 19% outright owner of

.* W-2 comes from . Had the drafters desired to exclude W-2 employees from IEL claims, they could have. Instead, they targeted those required to file Schedule C, D, or E. While my ruling on the following issue is dispositive of the claim, there is support for BP’s position on W-2 workers and the IEL framework. The District Court has found that where an owner has been compensated through the BEL framework, the owner as an employee, cannot recover “for the same losses” under the IEL. Double recoveries are not permitted. While a strict interpretation of the Settlement Agreement leads me to reject that position as to W-2 employees as opposed to those who file Schedule C, D, or E, the District Court’s holding in a different case may have some applicability here. It is moot, however, given the outcome on the following point. This brings us to BP’s second argument on the sufficiency of the SWS-12 form. It is signed by , who shared with

a joint interest in the company of 81%. BP argues that the SWS-12 does not “articulate in detail” the causal relationship between the Claimant’s losses and the Spill. I agree. explanation uses words like “devastated” and “tremendous losses” but does not quantify them. Moreover, there is no attempt at all to state what specific amounts Claimant had earned working on those jobs before and then after the Spill. summarizes with a general statement: “Specifically, for claim, his income was negatively impacted by the lack of IT services and equipment purchases by other business also affected by the Spill.” This is not sufficiently detailed to meet the test. BP prevails. * He owns the balance jointly with .



Claimant Name


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II. DECISION
















No error.

Comment (optional):

filed this Business Economic Loss claim on behalf of its Tuscaloosa, Alabama facility. The Settlement Program determined was due a Compensation Amount of $72,792.38. BP appeals.

There are two issues raised. First, BP contends that the claim does not comply with the attestation requirement. The issue is preserved by stipulation between BP and the Class and is not decided here.

2017-3096

The second issue is BP’s contention that Claimant’s monthly revenue is erratic. This is, of course, true to a degree and the fluctuations are one reason why the claim triggered Policy 495. To address fluctuations, the Settlement Program applied the AVMM. See Calculation Note 14. Once Policy 495 is triggered and the AVMM applied, the end result is a claim that is sufficiently matched as a matter of law.

BP does not point to any error in professional judgment in the processing of the claim. The Settlement Program was required to apply Policy 495 when one or more indicia of mismatched revenues/expenses was identified. The AVMM was also the correct methodology.

This is a “baseball” appeal, meaning the Final Proposal closest to the correct award prevails. Claimant adopted the Settlement Program’s determination while BP argues for an award of $0.00. There is no evidence to support an award of $0.00. The only record evidence supports the Settlement Program’s determination. Since Claimant’s Final Proposal adopts the Settlement Program finding, it prevails.






Law Firm

II. DECISION

Denial Upheld

Denial Overturned








No error.

Comment (optional):

Claimant operates row crop farms in Milton, Florida, Atmore, Alabama, and Greensboro, Alabama. The Settlement Program

denied its BEL claim upon a finding that it failed to establish causation. Claimant appeals, simply stating that the Program “failed to consider relevant information.”

It is noted that, although represented by counsel, Claimant failed to file a memorandum with its initial proposal setting

forth the basis of the appeal as required by Exhibit 25. This fact was not lost on BP which argues that the appeal is procedurally defective and that the denial should be upheld. Ordinarily, this panel would agree; however, in a stroke of

serendipity for the claimant, de novo review reveals that the denial was based upon an analysis under the Agricultural Methodology. The Fifth Circuit explicitly held in its May 24, 2017 Policy 495 opinion that the use of an ISM was improper

and the District Court has required remand of claims that were based upon ISMs. After consideration, this panel concludes that the proper course is to remand the claim to the Program for recalculation under the AVMM to determine what, if any,

effect such recalculation has on Claimant’s qualification for compensation.

2017-3097




First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):


2017-3098


Claim ID

The Start Up BEL claim of was denied due to a failure to

satisfy the Customer Mix test. Claimant appeals,urging in the Notice that the Customer Mix test

should be "calculated for all 10 possible periods " instead of "only the 3 month periods in which

the revenue decrease of 8.5% occurred". In its supporting memorandum, also suggests

the Program erroneously reviewed the Customer Logs as being equivalent to the claimant's

revenue as identified on the P and L statements and this had a negative impact on the

calculations. Claimant did not identify what specific impact this alleged discrepancy would have

on the Customer Mix calculations. Moreover, this issue was not raised in the Notice of Appeal

and was not addressed at all in claimant's final memorandum in support of the Appeal.

Accordingly, this argument was not adequately noticed and seems to have been abandoned and,

therefore, will not be considered herein.

BP did address contention that the Program was not required to use the same three

month period selected for the revenue portion of the causation test and, as a result, the Claims

Administrator should have run the Customer Mix data over all ten possible periods to see if

claimant passes any of them. BP points to Settlement Agreement Exhibit 7 which states that a

start-up claimant in Zone D must establish an aggregate 10% increase in the share of total

revenue generated by customers located in Zones A-C " over the same period of three

consecutive months from May 2011 to April 2012 as selected by the claimant for the upturn

revenue pattern... compared to the same three consecutive month period for May 2010 to April

2011."

In the face of this contention by BP, claimant seemingly abandoned the argument raised in the

Notice of Appeal and presented a totally new position in its final brief. therein no longer

mentions the "10 possible periods" but suggests the Customer Mix data evaluated by the

Program was on an Accrual basis while the company's statements were on the Cash basis. There

is no merit to claimant's newfound objection which was also not properly raised in the Notice or

even suggested in its opening memorandum in support of the Appeal. The denial of this claim is

affirmed.




First

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Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):


2017-3099

1

DWH:

Claim ID:


This Claimant, a resident of Scott, Louisiana, appeals the Fraud Waste and Abuse denial of his Subsistence claim. Although represented by counsel, the record does not contain the opening memorandum required by the Appellate Rules. However, Claimant’s Notice of Appeal contains the following comment:

On 8/9/16 there was a revised subsistence claim form submitted, after reviewing information with the client an input error was discovered. The client advised that he advised that he caught redfish, which due to the dialect in the area causing miscommunication, red snapper was selected in error. The same miscommunication caused his loss periods to be reported in error.

Document ID

The following excerpts from the Summary of Denial Findings prepared by the FWA Department are illuminating:

The Claimant intentionally tried to take advantage of the Settlement Program in a way that rose above error or mistake by falsely misrepresenting his claim. The Claimant submitted a Claim Form on 07/31/2012 asserting a loss period of 07/25/2010-01/02/2011. However, the Claimant also submitted a Certified License Record which revealed an effective date of 07/03/2011 for his 2012 license, or almost a year after the beginning of his alleged loss period and nearly 15 months after the Spill. Other than the 2012 license, there is no record of the Claimant being licensed in 2008 and 2009 prior to the Spill (despite that the Claimant alleged to have harvested 7 Tons of seafood in 2009), and the Claimant has not submitted any proof of, licensure as of his alleged loss period.

The Claimant submitted a Claim Form which did not include red snapper as a species allegedly harvested prior to the Spill. The Claimant subsequently submitted an Interview Form which included the lost harvest of 300 lbs. of red snapper, an offshore species, allegedly from inshore locations. The Claimant provided no reasonable explanation for the inclusion of red snapper or other changes on the Interview Form, despite that Claimant did not harvest red snapper prior to the Spill according to his sworn Claim Form. The Claimant’s inclusion of

2

red snapper on his sworn Interview Form despite that the Claimant did not allege to have previously harvested red snapper clearly demonstrates the Claimant’s inclusion of that species within his loss was not solely the result of error or mistake.

* * *

On Reconsideration, the Claimant’s Counsel provided the following comment:

“Upon review of this claim, it was noted that the incorrect Claim Form and Subsistence Interview Form was uploaded by a representative from the firm. The correct forms have been uploaded today, August 9, 2016.”9

The Claimant submitted amended Claim and Interview Forms with red snapper removed (Doc ID ). Though red snapper was removed from the list of post-Spill losses, the Claimant did not provide any reason for the amendment other than the allegation that “incorrect forms” were uploaded. However, this statement is self-serving and not supported by the record. The Forms are those of the Claimant, including his name and social security number. The Forms were executed by the Claimant who swore under penalty of perjury that the allegations within the Form were true and accurate to the best of the Claimant’s knowledge. In light of this, the Claimant’s “explanation” that the “incorrect” Forms were uploaded to the Claim File is simply not adequate to refute the basis for this FWA Denial. If anything, the concession that the Forms were “incorrect” in their inclusion of species and quantities the Claimant could not have feasibly harvested or lost, despite being sworn as accurate by the Claimant, confirms the basis of the FWA Denial as valid. Moreover, the Claimant failed to address his lack of licensure at the beginning of his loss period or at the time of the Spill. Accordingly, FWA upheld the Denial on Reconsideration.

_________________________________ 9Reconsideration Request Comment

3

* * *

The Claimant’s Counsel provided the following comment:

“On 8/9/16 there was a revised subsistence claim form submitted, after reviewing information with the client an input error was discovered. The client advised that he advised that he caught redfish, which due to the dialect in the area causing miscommunication, red snapper was selected in error. The same miscommunication caused his loss periods to be reported in error.”10

Again, this attempted explanation is refuted by the record. The Claimant alleged the loss of both redfish and red snapper on his original Interview Form, which contradicts the Claimant’s Appeal comment that there was a “miscommunication” in light of the “dialect” such that red snapper was incorrectly “selected in error” in the Claim instead of redfish. The Claimant, who could provide no proof of licensure at the beginning of his loss period, claimed red snapper, an offshore species, which he could not have harvested in the quantities alleged from his inshore fishing locations and only removed red snapper following FWA Denial for false harvest allegations.

________________________________________

10Appeal Request Comment

Document ID pages 8 – 10.

De novo review of this entire Claimant record compels this panelist to the same conclusion. This is yet another reprehensible effort to take advantage of a well-intended and generous Settlement Program provision which was designed to fairly compensate those many, many individuals who relied upon their Subsistence harvests to feed themselves and their families. This Claimant appeal is therefore rejected.

Denial upheld.




Claimant Name


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Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):


2017-3100


Claim ID

The Start-Up BEL claim of was denied

for failure to satisfy the Customer Mix Test. Claimant appeals, suggesting the Program

erroneously found there was inadequate substantiation for the client list provided.

On February 3, 2017, the Program sent correspondence to stating " ... no customer

mix information has been provided in the past 68 days. Please provide the customer mix

information by the close of business on Wednesday, February 8, 2017." After claimant made a

submission, the Program sent a communication on February 8, 2017 requesting claimant

"supplement this information with the invoices and/or source documentation used to determine

the dates, addresses, and amounts billed to each customer." The Program Accountants repeated

this request on February 10, February 15, February 17 and February 21. On February 23,

claimant filed a document but this information created its own questions about how the data was

compiled and what source documents were used. The Accountants asked for answers to those

questions on March 2, March 10, March 17 and March 27. Despite an indication from claimant

that the issues would be addressed, no adequate response was ever provided.

ultimately just pointed back to the documentation which the Program correctly found to be

inadequate and which claimant had promised to supplement but never did. Claimant has not

cured the deficiencies in its Customer Mix information and ,therefore, the denial of this claim is

affirmed.




First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

Claimant appeals the denial of its Start-Up BEL claim. Although Claimant has been represented by counsel throughout, its

Notice of Appeal states only, "Claimant would like to submit an appeal for this matter." Brevity may be " the soul of wit" in Hamlet but more is required of a Notice of Appeal. Exhibit 25 to the Settlement Agreement, Paragraph 2, provides that

the Notice will state "the issues being appealed and the relief requested." Rule 9 of the Rules Governing The Appeals

Process states that "[t]he original appellant shall be limited to the issues raised in its Notice of Appeal...." and Rule 14 states likewise. Compounding the deficient presentation by Claimant, it has not filed an Opening Memorandum although

Rule 18 of the Rules states that a claimant "shall' submit one within 10 says of filing its Notice of Appeal. These procedural defaults provide a sufficient basis for denying this appeal. Moreover, in conducting a de novo review, the panelist sees that

the Claimant failed to satisfy any of the causation tests, including failing to demonstrate that it was entitle to recognition as a member of the Tourism Industry. Denial upheld and appeal denied.

2017-3101




First

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Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

filed this Subsistence Claim under the Settlement Agreement. passed away in 2012, before giving a

Sworn Written Statement or a Field Subsistence Interview. The Settlement Program denied his claim because the Field Visit Team could not verify that he had fished in the quantities claimed. brother-in-law, , provided

information for the SWS and , a sister, provided information for the Field Subsistence Interview.

On appeal, and those acting on his behalf, contend that has a “legitimate” subsistence claim.

BP rejoins that the Settlement Program’s Field Visit Team concluded that claim to have harvested 10,278 pounds

from predominately shoreline fishing was not credible. The Field Visit Team consists of experts and those experts did not find the claimed totals to be reasonable, as the Settlement Agreement requires.

To rebut this conclusion, Claimant’s representatives offer lamely that a similarly situated claimant they represented did recover. This proves, of course, nothing with respect to claim.

The record then supports the Settlement Program’s denial of the claim.

2017-3102




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Law Firm

II. DECISION
















No error.

Comment (optional):

filed this Business Economic Loss claim under the Settlement Agreement. The Settlement Program determined was due a Compensation Amount of $61,936.19, pre-RTP. BP appeals.

As BP observes in its Initial Proposal, the appeal raises an important issue concerning the proper interpretation of the recent decision of the U. S. Court of Appeals for the Fifth Circuit. Specifically, BP posits, “Where a claimant has recorded revenue in the wrong month… Policy 495 and the AVMM permit the Settlement Program’s accountants to correct the mis-

2017-3103

recorded revenue.” BP’s Initial Proposal, at 1.

This contention presumes the revenue was recorded in the wrong month. In this case, the three grants were recorded as revenue in the month the check was received. Therefore, the revenues were not “mis-recorded” as BP contends. There does not exist therefore a mistake or “error” to correct under Policy 495. The issue is whether the revenue as recorded correctly by Claimant creates a mismatch of revenue and variable expenses. The Settlement Program applied the AVMM to correct for any mismatches but “did not adjust revenue in accordance with Interim Court Order.” See Calculation Note 6.

The record demonstrates there was no error in the recording of revenues. They were recorded when received. The Settlement Program in its discretion did not re-allocate those revenues to varying months. The Settlement Program did identify an “inconsistent variable margin” and applied Policy 495 and the AVMM. The result was a sufficiently matched claim under the governing law. This is true regardless of the Settlement Program’s interpretation of the Interim Court Order entered May 25, 2017 by the supervising federal court.

This is a “baseball” appeal, meaning the Final Proposal closest to the correct award prevails. The Claimant adopted the Settlement Program determination of $61,936.19, pre-RTP. BP’s Final Proposal is $34,201. Given that the Settlement Program determination is correct, Claimant’s Final Proposal prevails.




First

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Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

Claimant, a disabled resident of Lockport, Louisiana, appeals the denial of his Subsistence claim.

De novo review of the record reveals that this claim is yet another subsistence claim involving multiple sworn statements by a claimant with wildly varying and inflated claims of loss. In his initial claim form, Claimant attested that he lost 112,456

pounds of subsistence from the previous year, including 17,280 pounds of crab, 10,000 pounds of mullet, 12,500 pounds of

speckled trout, 5,600 pounds of shrimp, 2,400 pounds of grouper, and 50,000 pounds of white trout. He claimed that this was all subsistence to support himself. Notably, Claimant signed this form himself under penalty of perjury. Over a year

later, he filed an amended claim form, revising some totals and omitting the shrimp and crab. Two subsistence interviews later, Claimant stated under oath that he’d only lost 3,792 pounds of subsistence, a mere 3% of his original claim. The

panel notes that, from the original claim to the last interview, his claim for catfish decreased from 6,000 pounds to 286 pounds. Similarly, his claim for grouper decreased from 2,400 pounds to 96; mullet dropped from 10,000 pounds to 343;

white trout from 50,000 pounds to a mere 857; and speckled trout decreased from its original 12,500 pounds to only 429.

Claimant also claimed at one point to have harvested 600 pounds of rabbit but ultimately swore that it was only 73 pounds. The Subsistence Field Team also paid Claimant a visit and concluded that he reported harvest of species in areas that were

never closed, that he harvested offshore regulated species out of season, and that his claimed totals were unreasonable and exaggerated. Claimant argues that some of the totals were misrepresented by his attorney and notes as an example

his claim for striped bass, perhaps the only species that remained consistent throughout his claim forms and interviews.

Claimant suggests that if the panel finds the claim totals to be unreasonable that his award be reduced, not denied.

2017-3104

The Appeals Panel has consistently rejected appeals from claimants who have submitted inflated and inconsistent claims

under oath. Claimant’s sworn claim that he personally harvested over 50 tons of subsistence to feed himself defies explanation and should not be condoned. Based upon the record, the panel finds the denial of the claim was appropriate

and the appeal is denied.




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Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):


2017-3105


Claim ID The BEL claim of was denied because claimant was found to be an excluded defense contractor or subcontractor. Claimant appeals, arguing it did not derive more than 50% of its 2010 revenue from contracts or subcontracts with the United States Department of Defense and, therefore, it should not have been subject to the exclusion. The gravamen of argument is that the Program included revenue from a DoD job that was not included on the company's 2010 tax return. Claimant asserts the return follows the completed contract accounting method and the job in question was not completed until 2015. BP, on the other hand, points out that the company received $1,152,594.04 in 2010 revenue from 2 DoD contracts and, since the firm's total revenue in that year was only $2,264,163, over 50% of its 2010 income was attributable to DoD contracts. Additionally, BP suggests it would be folly for the revenue to be shifted to 2015, when the DoD work happened to be completed. BP asserts that, in 2010, claimant operated as a DoD contractor and received cash from the DoD for its work as a contractor, and this is the exact scenario which is meant to trigger the exclusion.

points to Policy 465 as support for its position that the evaluation of its 2010 revenue should be guided by the framework utilized in its 2010 tax return. This Policy confirms that the exclusion applies to businesses that derive at least 50% of their "annual revenue" from DoD contracts. More significantly for this case, 465 delineates as follows: " DEFINITIONS...Annual Revenue: The revenue reported on the claimant's 2010 federal tax return during that claimant's 2010 fiscal year". BP makes an argument with regard to how the exclusion should be most logically applied. However, there is a finding herein that, in keeping with Policy 465, the revenue shown on the 2010 tax return determines whether claimant is subject to the exclusion. had only $707,806 in 2010 revenue on its tax return which was attributable to DoD contracts. Since the company's 2010 tax return shows $2,264,163 in revenue, the percentage applicable to DoD work was 31.26% and, therefore, the exclusion is not triggered. Accordingly, this case is remanded for further processing in accord with this decision.




First

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Law Firm

II. DECISION

Denial Upheld

Denial Overturned








No error.

Comment (optional):

The Program applied the Professional Services Methodology to this Claim. Pursuant to the District Court's recent Policy 495

Orders, this matter is remanded for reevaluation in accordance with those Orders. This Panel takes no position on any other issues raised by the Parties in this appeal and reserves to the Parties the right to raise those, and any other, issues

following the Program's reevaluation.

2017-3106




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II. DECISION
















No error.

Comment (optional):


2017-3107


Claim ID

received an IEL award of $36,487.52 pre-RTP. BP appeals, arguing the Settlement Program erred because the Settlement Agreement expressly limits business owners such as claimant to claims under the BEL framework and, therefore, this claim should be denied.

Claimant submitted an IEL claim for his losses resulting from the spill while employed at Claimant is a part owner of this business. However, did not

receive an award through the Settlement Program. Instead, the company obtained compensation through the Court appointed Neutrals. As claimant asserts, the Neutrals were not guided by the methodology provided in the Settlement, which requires owner compensation to be a fixed cost in a BEL claim.

This Panelist has no knowledge with respect to the mechanisms involved in the Neutrals process or what considerations are relevant in determining offers and agreements. However, claimant is correct in asserting that the company received compensation outside of the scope of the Settlement Agreement.

The Fifth Circuit has addressed the issue of IEL claims asserted by a business owner after that business has received compensation under the BEL framework. The Court held as follows " The BEL framework , by compensating the business for the owner's lost wages through the fixed-cost designation of their wages, precludes compensating those same owners for the same wages through an IEL claim." See Fifth Circuit Decision filed 7/19/2017

The instant case does not present the same scenario addressed by the Court. The business was not compensated through the BEL framework with a calculation categorizing owner's lost wages as fixed.Instead, the company received compensation through an extrajudicial process that was not necessarily determined by the formula in the Settlement Agreement. Under these circumstances, there is no basis to dismiss Battle's IEL claim and, therefore, the award in favor of the claimant is affirmed




First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):


2017-3108

Reasons for Decision Claim # September 15, 2017 Claimant filed a Failed BEL Claim for each Facility located in the Gulf Coast Area.

BP appeals the amount of Claimant’s award. In 2009 Claimant operated 8 locations. All of the stores were owned by the Claimant, the parent company. Claimant borrowed money and put the 8 stores up as collateral on the loan. Prior to the Spill, 2 of the stores closed, so that at the time of the Spill, 6 stores were in operation. When Claimant failed after the Spill, Claimant’s debt was discharged. In performing its calculations, the Program allocated the discharged debt to the stores. The Program chose to allocate Claimant’s debt among all 8 stores, not just among the 6 stores that were still operating at the time of the Spill. BP has appealed, arguing that the Claimant’s discharged debt should have been allocated 6 ways, not 8, because only 6 stores were open at the time of the Spill. In a companion appeal (Claim # involving the identical issue, the Program issued a Summary of Review explaining why the Program allocated the discharged debt to all 8 stores rather than the 6 that were open at the time of the Spill. The Program rationale was as follows:

DWH Accountant allocated the discharged debt to all eight stores rather than to the six that were open at the time of the Spill because the debt borrowed was dependent on and pertained to all eight locations when the loan was issued. As such, the common debt discharged totaling $363,069 was allocated to all eight stores.

This Panel agrees with the Program’s rationale to allocate the discharged among all 8 stores. [This Panel notes that several other Panels reached a different conclusion. This Panel respectfully disagrees with those conclusions.] After a de novo review, this Panel adopts Claimant’s Final Proposal.




First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned








No error.

Comment (optional):

The BEL claim of which was processed under the Construction Methodology, was

denied and claimant appeals. argues the Settlement Program erred in applying the Construction Methodology and points to the 5th Circuit's decision disallowing the use of this framework. BP counters that the Program " properly applied

the Construction Methodology because claimant's NAICS code falls within this matching framework and its variable

expenses more closely reflect the claimant's monthly business activities." It is hard to understand how BP can continue to argue for the application of the Construction Methodology in the face of the Court's decision disallowing this framework.

This matter is remanded for further processing in keeping with the 5th Circuit's holding.

2017-3109




First Middle



Law Firm

II. DECISION

















No error.

Comment (optional):


2017-3110

1

Reasons for Decision Claim # September 20, 2017 Claimant appeals the amount of it BEL award. First, Claimant contends that the Program made an improper adjustment (“DWH Adjustment 6”) to its COGS.

The record reflects that there was a discrepancy of about $180,000 between Claimant’s P&Ls and Claimant’s tax return. Based on this discrepancy, the Program adjusted Claimant’s COGS by this amount.

Claimant agrees that the difference between the COGS beginning and

ending balance should be included in COGS expenses. However, Claimant contends that this difference was included twice.

According to Claimant, the cause of this was the incorrect preparation

of the tax return. Had the return correctly stated the amount of COGS, then the Program’s adjustment to inventory would not have been necessary.

BP doesn’t really refute Claimant’s argument, except to say that the

Program has no obligation to ensure that Claimant’s documentation is correct, and that it was reasonable for the Program to rely upon the documentation submitted.

Based on a review of the financial documents, this Panel agrees that

the tax return contains an error regarding COGS, and that if that error were corrected, then DWH Adjustment 6 wouldn’t be necessary.

Second, Claimant argues that “Reconditioning” expenses should have

been classified as Fixed rather than as Variable. BP contends that because this expense was included under COGS, then Exhibit 4D’s classifications don’t apply.

Other Panels have rejected BP’s similar argument, and instead looked

to Exhibit 4D for guidance on how to classify expenses. This Panel agrees that this expense is a Maintenance and Repair expense and should be classified and allocated accordingly.

Third, Claimant argues that “Title/Tag Transfer Fees” should have

been classified as Fixed rather than as Variable. BP offers the same response as above. This Panel agrees with Claimant that, pursuant to Exhibit 4D, this expense is a Licenses and Taxes expense and should be classified accordingly.

2

Lastly, Claimant submits an accounting support invoice on appeal. On remand, the Program is instructed to review.

In light of the above, this matter is remanded for further processing in accordance with the following instructions:

1. DWH Adjustment 6 shall be vacated.

2. Expense items “Reconditioning” and “Title/Tag Transfer Fees” shall bereclassified, and if necessary, allocated.

3. The accounting support invoice submitted on appeal by Claimant shall bereviewed and, if it meets the Program’s criteria, processed.



Claimant Name


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Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

The Failed BEL claim of a private security service, was denied due to a failure to provide documentation that the alleged losses were a result of the Spill. Claimant

appeals, suggesting " there can be no doubt the oil spill affected my company and the revenue I usually make in one year."

Not only does this Notice not adequately set forth the basis of the Appeal but appearing pro se, also failed to file the required Memorandum in support of the Appeal until well after the deadline. More importantly, claimant did not

provide any documentation and/or affidavits that provide evidence that the Spill was a substantial cause of any revenue decline. Accordingly, pursuant to Exhibit 6 and Policy 481, as a Failed Start-Up Business, has not established

causation as required. The denial of this claim is affirmed.

2017-3111




First

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Law Firm

II. DECISION
















No error.

Comment (optional):

IEL claimant appeals the denial of his claim. His Claiming Job was with . The Settlement Program determined that he had a Non-Claiming Job at and offset his earnings from it, producing a negative $27,254.64 award. filed an Initial Proposal (labeled “Follow Up Memorandum,” Doc. ID in which his attorney argued:

Claimant seeks a remand for a full review on this case.

2017-3112

works for , who received settlement funds in the BP Matter. Claimant suffered a loss due to the BP Oil Spill. The reason for this appeal is because the DHECC incorrectly applied the income from the event planners to claim. This is incorrect, and prevents a full review. did not receive any direct pay from business, and solely worked for . As such, please remand for a full review and consider only the W-2 income from There are no offsetting earnings, as only worked for one employer and received no income from other sources.

Initial Proposal Compensation Amount was $2,000.00, without explanation of how that figure was derived.

and his wife filed a joint tax return for 2010 and Schedule C (Form 1040) reflects that they were co-owners of and realized gross profits for the year of $97,790.00, with a net profit of $55,663.00. Exhibit 8A to the Settlement

Agreement, prescribing the framework for IEL claims, states in part in paragraph F of the Definitions section, “Any job from which the claimant generated earnings during the Benchmark Period and/or the Compensation Period (including Schedule C or F activities) and for which the claimant does not seek compensation shall be a Non-Claiming Job.” Thus, for IEL claims, the Settlement Agreement does not distinguish whether Non-Claiming Job income is derived from Schedule C ownership or W-2 wages. Therefore, the Settlement Program properly offset Schedule C income from against his W-2income from . Moreover, 8A requires the Settlement Program to calculate an eligible claimant’s award,by subtracting the claimant’s Actual Earning’s from the claimant’s Expected Earnings. As the Settlement Program found,

Expected Earnings were $27,527.63 and his Actual Earnings were $30,948.45, per the Post-ReconsiderationEligibility Notice. does not dispute on appeal the Settlement Program’s calculation of either amount. Accordingly,because his Actual Earnings exceeded his Expected Earnings by $3,420.82, before the application of any offsets, he isentitled only to a negative compensation amount. BP points that out in its Initial Proposal and Final Proposal, but does not address the issue in his Initial Proposal and has not filed a Final Proposal. Under the mandatory Baseball Process,the panelist chooses BP’s Final Proposal of negative $27,254.64, the amount of the award calculated by the SettlementProgram, over Final Proposal (defaulting to his Initial Proposal) of $2,000.00. Appeal denied.




First

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II. DECISION
















No error.

Comment (optional):

Claimant filed his IEL claim and was awarded a substantial sum of $880,754.63. BP appealed and the initial Appeal Panelist remanded the claim for review of certain documents that were filed after the initial award was made. Essentially, the issue is a question of control by this Claimant of a minority owned/controlled business that shares the same address. BP argues Claimant, a man, controls this company and can set his own salary. Claimant responds that it is not possible for him to own/control a minority company which must be owned woman in this case. BP's concern may be more of an "in effect" control argument but the Settlement Agreement and the presiding courts have clearly respected the legal creation of an

2017-3113

entity. The Program informed the parties it had reviewed the submittals as directed by the Appeal Panel and restated its award in the same amount. It is time to move on. The award is affirmed.




First

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Law Firm

II. DECISION

















No error.

Comment (optional):

filed this Individual Economic Loss claim under the Settlement Agreement. The Settlement Program

determined Claimant was entitled to a negative Compensation Amount. appeals.

The Settlement Program issued a Post-Reconsideration Eligibility Notice in late June, 2017. It gave notice that Claimant

2017-3114

would not receive any money. About a week later, Claimant filed 2007 and 2008 W-2s. Claimant thereafter exercised his

right to appeal.

Claimant contends that the Settlement Program should have requested the 2007-08 W-2s and that the claim should either be remanded for further calculation or that Claimant’s Final Proposal should be chosen. BP argues that the additional

documentation is too late and violates the Rules Governing the Appeal Process.

Lost in the mists of argument are several points. First, the Settlement Agreement mandates a Claimant-Friendly process.

Second, Claimant has put the Settlement Program to considerable extra effort by failing to provide all information. That said, the documents of which BP complains were on file before the appeal was taken. Therefore, the Rules Governing the

Appeals Process, Rule 13(h) has not been violated.

Claimant suggests the Settlement Program should have requested the 2007-08 W-2s. Although the responsibility lies,

under the Settlement Agreement, with Claimant, the Settlement Agreement mandate of a Claimant-Friendly process controls here. The claim is remanded to the Settlement Program for recalculation using the additional documentation

provided belatedly by Claimant.




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II. DECISION
















No error.

Comment (optional):


2017-3115

1

a marina in Venice, LA, received an award of $203,322.39 with a 2.0 Tourism RTP. Both parties agree on a payment offset of $227,100.00. BP appeals, raising 3 points of error. BP contends claimant was not entitled to a tourism designation, was an excluded real estate developer, and also that the Program failed to address book-to-tax variances.

Appellant first points out that the NAICS code for marinas is not included on the list of tourism businesses in Exhibit 2. Additionally, BP maintains that, while the claimant has lodging and a restaurant onsite which may cater to tourists, claimant’s “marina purchases” and “fuel and gas purchases” dwarf its restaurant and lodging expenses. BP argues there is no evidence that marina and fuel customers are primarily tourists, instead of locals utilizing the marina to dock and re-fuel their boats.

This Panelist sent an inquiry to the Claims Administrator asking why claimant received a Tourism designation. The Program provided the following excellent response:

owns and operates a full-service

marina located in Venice, Louisiana. We assigned a NAICS Code of 713930

(Marinas), which is not included on Exhibit 2 as a NAICS Code that automatically

receives an Industry Designation of Tourism. However, we assigned an Industry

Designation of Tourism pursuant to Policy 289 v.2 because the claimant provided

significant products and services that fall under NAICS Codes listed on Exhibit 2.

From 2007 through 2010, the claimant’s Profit & Loss Statements indicate that it

derived 56.44% of its total revenue from the following Exhibit 2 business activities

(Doc. 5960092, pp. 29, 31, 33, 35):

(1) Bait Shop – NAICS Code 451110 (Sporting Goods Stores)

(2) Fuel and Gas Sales – NAICS Code 447190 (Other Gasoline Stations)

(3) Restaurant Sales – NAICS Code 722110 (Full-Service Restaurants)

(4) Lodging Sales – NAICS Code 721199 (All Other Traveler Accommodation)

Therefore, the Claims Administrator determined that there was sufficient evidence

to conclude that “provide[s] services such as attracting,

transporting, accommodating, or catering to the needs or wants of persons

traveling to, or staying in, places outside their home community.” As a Tourism

business in Zone B, the claimant was entitled to an RTP of 2.0.

Moreover, the population in Venice is roughly 200 people. While there are additional people who live in the surrounding area who would be considered locals, the region is sparsely populated. Accordingly, it is logical to assume that the great majority of customers came from a good distance away because the few people who live in the Venice area are not enough on their own to support a marina the size of the claimant. Based on this reality and the cogent explanation from the Claims Administrator, there is a finding that the claimant was entitled to a tourism designation.

BP also points to a narrative history provided by claimant which references real estate development activities in 2008, 2009 and 2010. BP suggests this admission demonstrates that claimant should be

2

excluded as a Real Estate Developer. Once again, this Panelist turned to the Claims Administrator to address this issue.

The CA responded as follows:

Regarding the Real Estate Developer determination, the Settlement Program found

that was not sufficiently engaged in Real Estate Development Activity

during 2010 such that it may reasonably be characterized as a Real Estate Developer

as defined in Policy 468.

Policy 468, Section II.C. – Criteria for Analysis states:

The Claims Administrator will examine any of the following information available

on the Entity to determine whether it was more likely than not that the Entity was

sufficiently engaged in Real Estate Development Activity during 2010 such that it

may reasonably be characterized as a Real Estate Developer…

The policy then lists five criteria to consider in this analysis, including the business

designation on the tax return, 2010 permits and/or licenses, revenue sources, types

of expenses, and other available information. The Settlement Program examines

these criteria collectively to determine whether an Entity was sufficiently engaged

in Real Estate Development Activity during 2010 to warrant exclusion.

2010 Form 1065 lists the principal business activity as

“Lodge/Marina” and the principal product or service as “Sportsman” (Doc.

p. 7). Also, according to Policy 468, Section II.C.3, “any revenue from

real property sales reported by the Entity on its 2010 Tax Return as ordinary income

(other than depreciation recapture), rather than as capital gains income, typically

shall be considered to be revenue associated with Real Estate Development

Activity.” Although the claimant submitted correspondence that refers to

developing and selling waterfront home sites in 2008-2010 (Doc. 6, p. 4-6),

the tax returns for these years show that all condominium and lot sales were

reported as capital gains as opposed to ordinary income (Doc. p. 39; Doc.

p. 9; Doc. 42 6240, p. 13).

In addition, 2010 Profit & Loss Statements do not contain any

expenses indicative of potential Real Estate Development Activity as listed in Policy

468, Section II.C.4. The COGS include (1) marina purchases, (2) fuel and gas

purchases, (3) restaurant purchases, and (4) lodging costs, and the Operating

Expenses are consistent with those expected of a marina (Doc. , p. 35-36).

Correspondence from the claimant indicates that the homes at the marina were built

by a separate Entity, and that all development costs

were incurred by that Entity (Doc. , p. 4).

submitted listing the type

of business as “Occupational (Retail)” (Doc. ; Doc. ), but did not

submit any licenses related to real estate development. A search of the Louisiana

3

State Licensing Board for Contractors website returned no results for the claimant.

operates a website at which describes

its marina services, short-term accommodations, restaurant, and branded apparel and

accessories for sale.

As described above, the Settlement Program concluded that did not

trigger any Policy 468 criteria for potential Real Estate Development Activity. As

such, the Settlement Program determined that the claimant was not sufficiently

engaged in Real Estate Development Activity during 2010 such that it may

reasonably be characterized as a Real Estate Developer.

This Panelist finds the details provided by the CA to be compelling and, therefore, BP’s argument on this issue is dismissed as well.

BP’s last contention is that the Program failed to investigate discrepancies between claimant’s P&Ls and tax returns. However, provided a book to tax reconciliation of all the years of financial statements and income tax returns provided. The Program Accountants adequately evaluated the discrepancies and found they were sufficiently explained due to depreciation expense and asset sales. Additionally, the Program noted that claimant created P&Ls using bank statements and, therefore, revenue items included all deposits. Accordingly, the Accountants properly found that the source P&Ls included amounts which are not revenue to the claimant. BP’s argument on this issue is found to be without merit. For the foregoing reasons, the award from the Settlement Program, which is in accord with claimant’s final proposal, is affirmed.



Claimant Name


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Law Firm

II. DECISION
















No error.

Comment (optional):

2017-3116

- Claim ID

The Claims Administrator awarded $468,415.90, pre-RTP to this timber sales company

in Thomasville, Alabama (Zone D). When matching criteria were triggered, the AVM methodology

was utilized. In addition to growing and selling timber, Claimant leases acreage for hunting,

residential and commercial purposes. Many of its hunting leases require that the payments be made

in a lump sum in advance. Under Claimant’s cash basis accounting, the lump sum lease payments

were recorded in the month they were received.

On appeal, BP argues that the Settlement Program erred in failing to reallocate the hunting

lease revenue across the periods of the leases. To support this position, BP argues that the AVM

methodology permits the program accountants not only to reallocate revenue to correct for errors but

also to correct mismatches of revenue and expenses as a first step in the methodology. Citing Policy

495, BP argues that “Contemporaneous P&Ls submitted by the claimant will be restated if in

analyzing and processing a claim, the CSSP accounting vendors identify either an error (as

previously defined) or a mismatch of revenue and variable expenses which can be explained and

supported by appropriate documentation.” See Policy 495 at 7. In spite of the 5 Circuit decisionth

striking down the reallocation of revenue, BP urges that the AVM methodology specifically permits

the reallocation of revenue.

Claimant responds in a predictable fashion, arguing that the 5 Circuit’s prohibition againstth

the moving, smoothing or reallocation of revenue conflicts with the plain text of the Settlement

Agreement. Thus, the issue presented is whether the provisions of Policy 495 permit reallocation

of revenue as a first step of the AVMM and, if so, whether such provision survived the 5 Circuit’sth

decision of May 22, 2017.

Careful review of the 5 Circuit decision in Deepwater Horizon I, read together with theth

May 22, 2017 decision, leads to the conclusion that BP’s argument is without merit. The

primary rationale for the 5 Circuit’s most recent decision is that the moving, smoothing orth

reallocation of revenue infringes on the Claimant’s right to select his Benchmark Period.

Assuming arguendo that the provisions of the AVMM do include a first step reallocation of

revenue, such reallocation would have an identical impact on the ability of the claimant to

select the Benchmark Period. Indeed, BP’s argument seeks the obvious smoothing of the

hunting lease revenue over the period of the leases. There is nothing in the 5 Circuitth

decision that suggests that the AVMM includes such a first step nor that revenue reallocation

in any form might still be permissible. No reasonable interpretation of the AVMM or the 5th

Circuit’s decision permits the end run suggested by BP.

The 5 Circuit has invalidated any reallocation or moving of revenue other than toth

correct for errors. Nothing in the 5 Circuit decision of May 22, 2017 or the text of Policyth

495 can be reasonably interpreted to the contrary. Accordingly, BP’s appeal is dismissed and

Claimant’s Final Proposal is selected.

2




First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

Claimant a family restaurant located in Millport, Alabama (Zone D), appeals the denial of its BEL

claim. passed the financial portion of the Modified V-Shaped Revenue Pattern test (although no other revenue pattern test), but the Settlement Program concluded it failed to satisfy the additionally required “Customer Mix” prong of

that test.

, proceeding pro se (although it was represented by its accountant during the claims process), submits this Opening

Memorandum:

was denied for not passing the customer mix test. Documentation has been provided that shows that should pass the customer

mix test and continue review as a seafood retailer. During 2009 and 2010,

purchased seafood from . is owned by and was established in Orange Beach, AL on 12-2-1988. works out of a

building located at , AL 36523. This building is owned by who is a company that does business with.

also still maintains the P.O. Box in Bayou La Batre for business matters

as well. picks up the gulf harvest seafood on Tuesday of each week from

2017-3117

Bayou La Batre and delivers the seafood to customers throughout Alabama. All

seafood that was purchased from was harvested in the Gulf of Mexico and operations were being conducted in the Bayou La Batre and

Coden area. The settlement program determined facility to be located in Gilbertown, Al. There is no actual facility that. That is simply where the

owner lives. All work that is done by is performed in Bayou La Batre and Coden, Al.

The claimant respectfully requests that the claim be remanded to Settlement Program for further review.

Section I (3) of Exhibit 4B states that a claimant located in Zone A, B or C which is a “Seafood Retailer” is not required to

provide evidence of causation. As noted, located in Zone D, so it cannot partake of this exemption even if it qualifies as a Seafood Retailer per the definition for same at Exhibit 3, Section 3.d.

Section III.E. of Exhibit 4B provides that Zone D claimants “defined as ‘Seafood Retailers’ (including restaurants)” can pass

causation if they demonstrate:

purchases of Gulf of Mexico harvested seafood from Zone A, Zone B or Zone C

vendors represented at least 10% of food costs during 2009, as reflected in historical purchase orders and/or invoices.

AND a decline of 7.5% in gross profit (gross sales less cost of goods sold) over a period

of three consecutive months between May-December 2010 compared to the same

months in 2009.

As noted, attempts to meet those criteria by referencing seafood it purchased from . Despite the

location for it proposes in its Opening Memorandum, the report from the Alabama Secretary of State exhibited to an April 4, 2017 submission (Doc. ID ) listed the company’s “Reporting Address” as

, Gilbertown, Alabama, a Zone D location. argues in its Opening Memorandum that that “is simply where the

owner lives,” but is otherwise described in that memorandum in such a way as to reveal it to be a one-man show with no established “Facility,” as defined by Policy 467, at any other location. The fact that its owner, ,

“works out of a building” in Coden, Alabama, owned by a company does business with, doesn’t elevate that location to the status of a Facility of . Therefore, the panelist finds no basis for rejecting the Settlement

Program’s determination that is a Zone D vendor.

The Customer Mix prong of the Modified V-Shaped Revenue Pattern test provides, in pertinent part, that a claimant must

demonstrate a 10% decline in the share of total revenue generated by non-local customers, or a 10% decline in total revenue generated by customers in Zones A-C, all with respect to three consecutive months selected by claimant from May

– December 2009 compared to those same three months in 2010, as reflected in four specified categories of customer

records. Claimant has not submitted the required Customer Mix documentation. On March 13, 2017, the SettlementProgram emailed representative accountant explicitly to advise of the absence of Customer Mix data, and that

failure to submit that date would be fatal to the claim. No information about customers, as opposed to its vendor, was forthcoming. Accordingly, has not satisfied the Customer Mix test and its claim was properly

denied on that basis. Denial upheld and appeal denied.




First

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Law Firm

II. DECISION
















No error.

Comment (optional):


2017-3118


Claim ID

received an IEL award of $321,326.17 pre-RTP. BP appeals and presents a final proposal of 0. In the Notice of Appeal, BP asserts that claimant is not eligible under the IEL framework because claimant was an owner of the business for the claiming job.

Despite appellant's contention, the business did not receive an award through the Settlement Program. Instead, the company obtained compensation via the court appointed neutrals outside the Settlement Program. As claimant pointed out, the neutrals were not bound by the methodology provided in the Settlement, which requires owner compensation to be fixed in a BEL claim. Accordingly, the 5th Circuit's ruling prohibiting an IEL award, where an owner's compensation has been determined to be fixed in the context of a BEL recovery, is not applicable in this case. Since the business received compensation in an extrajudicial settlement which was outside the scope of the Settlement Agreement and its methodologies, there is no basis to dismiss

IEL claim.

BP, in its Memorandum, also asserts that claimant failed to provide a sufficiently detailed SWS to support an IEL claim. Since this issue was not raised in BP's Notice of Appeal, this contention is arguably due to be summarily dismissed. Additionally, claimant's SWS-12 adequately describes how decreased governmental spending on infrastructure projects as a result of the spill negatively impacted his legal practice which was primarily focused on eminent domain matters. Further, there is no authority for BP's suggestion that a SWS is invalid if drafted by the claimant himself when that claimant is the owner of the business. The sworn statement presented in this case was sufficient to support IEL claim. Accordingly, the award by the Program, which is in accord with claimant's final proposal, is affirmed.




First

Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

See uploaded decision.

2017-3119

– Claim

Claimant, a fisherman from Cut Off, Louisiana, filed a Subsistence claim. Because the compensation amount would exceed $10,000, a field visit was required. The field team could not verify Claimant’s harvest amounts, noting that Claimant could not verify the time period that he based his claim on and that the catch totals exceeded any reasonable harvest. The team also noted that Claimant’s cold storage was insufficient to handle the amount of harvest claimed before consumption. Accordingly, the claim was denied. Claimant sought Re-Review and Reconsideration without success and thereafter filed this appeal.

The record reveals that Claimant submitted an initial claim form describing his losses at 11,680 pounds. A slightly revised amended claim form was later submitted which claimed over 10,000 pounds of lost subsistence. BP contends the denial was appropriate and that the claim was inflated.

At first glance, this appeared to be yet another Subsistence claim for grossly inflated catch which this panel, and others, have routinely considered inappropriate and have upheld denials. However, in his reply to BP’s memorandum, Claimant raised a more disturbing issue, asserting that the claim was inflated by his attorney. Claimant maintains that he provided a far more reasonable loss of 2,080 pounds of subsistence to the attorney and that the attorney inflated the total by 82% when filing the claim. Claimant attached the documentation purportedly provided to the attorney in support of his argument to his reply memorandum. The panel can only speculate whether a claim for these amounts would have been paid and obviated the need for this appeal. Unfortunately, this was not the claim that was submitted.

This panel sympathizes with the Claimant, but the Appeals Panel is only authorized to decide the claim based upon the record submitted. Unfortunately, based on the claim submitted, the catch totals appear to be excessive and the Program was justified in its analysis and decision. Accordingly, the panel has no choice but to uphold the denial of the claim.




First

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Law Firm

II. DECISION
















No error.

Comment (optional):

The Settlement Program awarded $505.95 pre-RTP based on a loss period of 72 days on his Subsistence claim. Claimant appeals, stating that he “has submitted documentation showing that he has lost more than 72 day [sic] of fishing time please see all documents uploaded.” On appeal, Claimant submits some photographs of himself going fishing and holding fish, and a new Sworn Written Statement which removes Mobile Bay from Claimant’s fishing areas, leaving only Dauphin Island. Besides the fact that these new documents are of questionable validity under Rule 13(h) of the Rules Governing the Appeal Process, they fail to substantiate a longer loss period because they are not objective evidence of actual impairment.

2017-3120

Pol. 316v4 § I. Claimant submitted an Initial Proposal of $20,000 pre-RTP, but did not provide a memorandum explaining how this amount was calculated. Claimant’s Notice of Appeal also provides little insight into how Claimant arrived at his award. Under the circumstances Claimant’s appeal must be denied.




First

Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

BP appeals the Subsistence claim award to claimant,a fisherman in Westwego,Louisiana.BP argues that claimant improperly

harvested certain claimed species which should have been excluded from the subsistence catch totals.BP also argues that claimant made contradictory statements relative to his fishing activities before and after the Spill.Finally,BP argues that

claimant did not adequately establish what species were harvested for subsistence purposes and that the harvest totals

were inflated. A review of the record discloses that in addition to himself and his spouse,claimant listed an extended family of twelve

2017-3121

persons.Claimant is a commercial fisherman who also possesses recreational fishing licenses,but primarily subsists on by-

catch from his commercial fishing activities.The Settlement Program(SP) determined that claimant's loss period was 250 days.BP's argument that two of claimant's listed species,redfish and speckled trout,were harvested commercially and

improperly,and thus subject to exclusion,is not supported by the record.Furthermore,claimant had licenses to harvest these species recreationally ; and over the loss period claimed 500 pounds for redfish and 200 pounds for speckled trout. None of

the harvest totals for the various eight claimed species appears inflated.The contradictory statements made by claimant referenced by BP are not consequential or of significant relevance.Lastly,this panelist concludes the SP sufficiently

investigated the claim with a Field Visit Team and determined claimant met the requirements of the Settlement Agreement

to support his claim.There is no error. Accordingly,the decision of the Claims Administrator is affirmed and the appeal of BP is denied.



Claimant Name


First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

Claimant, operates a chain of pharmacies. The pharmacy at issue in this Start-Up BEL claim is located in Naples, Florida (Zone D). The Settlement Program denied this claim because the pharmacy did not satisfy Exhibit 7’s

“Customer Mix Test.” Claimant appeals, and the sum total of what Claimant submits follows:

“The DHECC misapplied the requirements of Exhibit 7 in a way that unfairly disadvantaged claimant . Claimant

has submitted adequate and detailed information to satisfy the Customer Mix Test required of Start-Up locations. Specifically, has submitted detailed pharmacy records and data that is sufficiently detailed to identify the

vast majorities of revenues received at this location. If properly analyzed, this data clearly demonstrates that this location

experienced the sort of revenue fluctuations in non-local customers and customers from Zones A-C as defined in Exhibit 4B and Exhibit 7. DHECC has either misinterpreted the data submitted by claimant , or the requirements of the Customer

Mix Test contained in the Settlement Agreement. If the latter is true, reminds the Appeal Panel that is incumbent upon the Claims Administrator to resolve ambiguities in the Settlement Agreement in the manner most favorable to the

claimants.”

Thus, Claimant asserts that the Settlement Program “misapplied” the test to the data but it really does not explain how.

Moreover, the Appeal Panel has denied Claimant’s prior appeals under identical circumstances. E.g., Claim . Upon de

2017-3122

novo review the Settlement Program’s determination is affirmed and Claimant’s appeal is denied.




First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):


2017-3123

1


Claim #

September 20, 2017

Claimant appeals the denial of its Claim.

The following facts and chronology are pertinent to this Panel’s

decision:

1. Claimant, , came into legal existence on January 12, 2009.

2. In March 2009, Claimant purchased the pharmacy business assets of

. Specifically, Claimant purchased “the furniture,

equipment, inventory, and goodwill” of the pharmacy business. The “Bill of

Sale” included an itemized list of the equipment assets purchased.

3. No stock was purchased or transferred or exchanged in March 2009.

4. Following the purchase, the EIN number for the pharmacy business was

changed.

5. Almost a year later, in February 2010, , who owned 50% of

. and who also owned 50% of Claimant, exchanged

her 50% interest in Claimant for another individual’s interest in multiples

companies.

The Program initially processed this Claim as a BEL claim. However,

upon further inquiry, the Program reclassified the Claim as a Start-up BEL,

based on the Program’s conclusion that Claimant commenced operation in

March 2009, less than eighteen months before the Spill. Claimant failed the

causation tests applicable to Start-up businesses.

Claimant now appeals, arguing that it should have been allowed to

piggy back onto its predecessor’s operating history, thus giving Claimant

BEL status, and presumably enabling Claimant to pass causation.

The District Court has allowed piggy backing where the sale involved

a stock transfer. However, where the sale was an asset sale, the Court had

held that the Claimant did not commence operations until the time of the

asset sale.

In the instant matter, it is clear that assets were purchased in March

2009. Claimant, however, argues that this was not only a sale of assets, but

also a stock transfer. In support of the latter, Claimant cites the February

2010 stock exchange.

2

Although somewhat creative, Claimant’s reference to the subsequent

stock transfer does not negate the fact the sale in March 2009 was an assets

only sale. No stock changed hands. No stock purchase or exchange or

transfer took place.

The District Court, and frankly other Appeal Panel decisions issued

since the District Court’s seminal decision, has been pretty clear that there is

no wiggle room on this issue. Absent a stock purchase or transfer or

exchange in March 2009, Claimant cannot piggy back on its predecessor’s

operating history. As such, the Program was correct to process this Claim as

a Start-up BEL.




First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

BP appeals a BEL award of $560,146.16 (pre-RTP) to the Seffner, Fl (Zone D) facility of a franchise , questioning claims form attestation (which has been reserved for future resolution by the parties) and assailing the classification as Fixed of certain expenses. First, it asserts that the Program misclassified Claimant's franchise fees as Fixed, when Exhibit 4D requires they should be deemed Variable. Indeed, the record confirms that these fees do in fact vary directly with Claimant's monthly revenues. Secondly, BP questions the classification as Fixed of Claimant's Maintenance expenses, arguing that from 2002 through

2017-3124

Feb. 2010, the Repair/Maintenance category was subsumed in the Maintenance category, requiring a 50-50 split between Fixed and Variable under Exhibit 4D. Lastly, it asserts the misclassification as Fixed of the expense category Advertisement, Promotions--Food, Rent, and Management Fees. It makes its familiar argument that this expense should be deemed Variable because it varies in relation to revenues. BP chooses not to recompute a prospective BEL award were its arguments accepted, but instead proposes $0. Claimant actually agrees with BP's arguments concerning Franchise and Maintenance fees, but refers to Exhibit 4D and Policy 361v5 to justify the discretion and judgment of the Program in delineating Advertising,et al fees as Fixed. It further points to at least three other franchise locations receiving similarly classified Advertising expenses that went unquestioned by BP. Claimant actually recomputes its award based upon its concessions to BP and makes a reduced final proposal of $509,080.43. Based on the "baseball" appeal process, this panelist has little difficulty in choosing Claimant's realistic final proposal in stark contrast to that of BP.




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II. DECISION
















No error.

Comment (optional):

BP appeals a sizeable ($31,108.77, pre-RTP) Subsistence award to a Chalmette, La claimant. In its appeal, BP denies that the record established either Claimant's alleged loss period or the harvest loss awarded. It asserts that the Program's Field Visit Team failed to explain how the claim was first denied in total and then how such a sizeable award was made. This panelist agreed with BP that a Summary of Review was desirable to have the Program explain and justify the award made. In due course, a very detailed response was made to this request by the Program. In pertinent part, the Program noted that Claimant claimed that he fished in several zones, which a Program reviewer

2017-3125

submitted to the Subsistence Activity Location Identifier ("SALI") tool, which confirmed the the claimed locations to be closed from April 26, 2011 until July 1, 2012. Since Exhibit 9B of the Settlement Agreement prohibits any loss period beyond Dec. 31, 2011, the chosen closure period was a total of 250 days, from April 26 through Dec. 31, 2011. Because,based on the total claimed harvest, the prospective award would exceed $10,000 pre-RTP, the Program gave Claimant notice of a required Field Visit. When Claimant initially failed to respond, it issued a Denial Notice. Thereafter, Claimant requested a Re-Review and cooperated fully with scheduling a Field Visit. The Program reviewed all pertinent data submitted by Claimant and performed the Field Visit in January of 2017, which involved not only interviewing Claimant but also examination of his fishing equipment, which included an 86-foot vessel rigged with four trawls. The Field Visit representative reported that Claimant was quite knowledgeable in the reported species harvested and was legally licensed to harvest all species claimed. The locations reported as primary fishing areas were within verified closure areas and Claimant's core group of seven dependents were validated by Social Security numbers. The Program thusly satisfied itself that Claimant's representations were reasonable and made the subject award. After de novo review, this panelist fully concurs with the Program's findings and award.






Law Firm

II. DECISION

















No error.

Comment (optional):


2017-3126


Claim #

September 20, 2017

BP appeals the amount of this BEL award. Based on the Program’s

Summary of Review, this matter is remanded.

First, the Program acknowledges that there may have been revenue

restatements that violate the District Court’s Orders.

Second, BP questioned whether or not the Program had properly

evaluated the Claimant’s headquarters location. The two locations at issue

are in different Zones. The Program noted the following:

The Settlement Program was aware of some of the information

about the claimant’s operations at the location but

chose the location over the location

because of the claimant’s representations on the Claim Form

and the understanding that the claimant wished to claim for

losses from the location based on its

inclusion of that address on its Claim Form.

If we reviewed this claim today, the Settlement Program would

conduct further research on the number of Facilities and the

location of each under Policy 467. If the claimant is a Multi-

Facility Business, we would determine whether the claimant

intended to file a Consolidated claim or separate claims and, if

the claimant intended to file a Consolidated claim, evaluate the

Corporate Headquarters location.

Based on the Program’s responses, this matter is remanded in order

to address the above issues.




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II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):


2017-3127


Claim #

September 20, 2017

This Claim was denied for the following reason:

The claimant requested reconsideration of the entire claim. We

issued a Denial Notice on 2/21/2017 (Doc File ID ),

identifying missing documents required. Subsistence Claimants

must submit copies of state and/or federal fishing or hunting

licenses applicable to all claimed species. The licenses must be

valid before and at the start of the claimed loss period or valid

at the time of the Spill. Alternatively, the claimant may submit a

document that identifies any licensing exemption claimed and

proof of the claimed exemption. The claimant did not submit

additional responsive documents in support of the request of

re-review. Therefore, this claim remains denied for the

required license(s) and/or exemption(s).

On appeal, Claimant states that his “is still in the process of providing

a Certified License Record and other documentation to establish a valid

claim.

Based on a review of the record, Claimant has had ample notice and

ample opportunity to submit the required documentation.

The denial of this Claim is upheld.




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II. DECISION
















No error.

Comment (optional):

BP appeals the IEL award to claimant,a business owner in New Orleans,Louisiana.BP asserts that claimant,as owner of the

business by whom he is employed,may only recover for lost wages through a separate BEL claim and is not eligible to file an IEL claim.Claimant argues his claim is based on recovery of lost W-2 wages not reflected on Schedules C,D or E of his

federal tax returns as contemplated by Section 38.84 of the Settlement Agreement.

A review of the record discloses that claimant is the owner of his business and receives W-2 wages. Claimant's company filed a separate BEL claim but withdrew it and was not compensated by the Settlement Program(SP). The award

2017-3128

calculations by the SP was based on claimant's W-2 earnings and was not based on net distributions or dividends received

from the business that would be reported on Schedules C,D or E. Thus,this claim is allowable under Section 38.84 of the Settlement Agreement.Furthermore,since claimant's company was not compensated under the BEL framework,there is no

bar to recovery of lost W-2 wages in this IEL claim.The panel decisions relied on by BP are inapposite and factually distinguishable.There is no error.The decision of the Claims Administrator is affirmed and the appeal of BP is denied.



Claimant Name


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II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):


2017-3129

Claim ID

Claimant is a multi-facility orthopedic sports medicine medical practice. This claim involves its location in , Louisiana. The Settlement Program denied this claim on the basis that Claimant does not satisfy the Customer Mix Test. Claimant appeals contending (1) that the Settlement Program erred in its treatment of variances between Claimant’s Customer Mix data and P&Ls; (2) that Policy 345’s treatment of P.O Box and incomplete addresses as unknown, is improper; and (3) that this claim should be remanded based on Claimant’s newly submitted Customer Mix data. As to ground (1), Claimant argues:

Neither the Settlement Agreement nor Policy 345 discloses any requirement that the amounts in the Customer Mix information need to match those of the Claimant's P&Ls. Nothing in Exhibit 4B indicates that any revenue other than revenue generated by customers will be considered as part of the test. The determination of whether the customer pattern changed is determined based on the share of total revenue generated by customers, not the total revenue. Policy 345 v.3, C. makes it clear that what is to be compared is revenue "generated from" customers, not any other revenue. The revenue numbers which appear in Claimant's financial statements can include additional components derived from activities that are not patient care and were not billed to the patient, insurer, Medicare or Medicaid. Such activities can include, for example, medical-legal work like independent medical examinations, workers' compensation evaluations, participation in medical review panels, preparing expert reports, and deposition or trial testimony. Thus, Claimant asserts that because neither Exhibit 4B or Policy 345 v.3 requires that the customer generated revenue data reconcile with the financial statements, the examiners erred in performing that reconciliation and considering all differences found to be adverse to Claimant's claim.

BP contends:

The Settlement Program’s Customer Mix calculation in this claim is based on a faithful application of Policy 345, and Claimant still fails the Customer Mix Test even if its corrected data is considered. Claimant’s Customer Mix data contains significant variances with Claimant’s P&Ls. Accordingly, the Settlement Program treated the revenue from these customers and P&L variances as unknown and excluded the revenue from the Benchmark Period and included the revenue in the Compensation Period. The Customer Mix Test requires a claimant to provide proof of a 10% decline in “the share of total revenue generated by [certain] customers.” (Claimant failed the Customer Mix Test with a negative 375.21% revenue decline from non-local customers and a negative 122.61% revenue decline from Zone A-C customers.) Customer Mix data cannot include “total revenue” if the data does not reconcile with the P&Ls. Policy 345 also confirms this requirement by providing illustrations of Customer Mix calculations where the Customer Mix data does not reconcile with the P&Ls. Requiring Customer Mix data for all revenue, as reflected in a Claimant’s P&Ls, ensures that a claimant cannot engineer a subset of Customer Mix data that guarantees a passing Customer Mix Test result.

BP draws attention to two decisions issued by the supervising district court on May 5, 2017, which have direct bearing on this issue. In Case 2016-1949, the Court declared:

Under the Customer Mix Test, as applied under Policy 345 v.3, revenue from a customer whose address is “unknown” is considered to be local (or outside Zones A-C) during the Benchmark Period and non-local (or inside Zones A-C) during theCompensation Period. Rather than treat “unknown” revenue in this manner, theSettlement Program appears to have ignored entirely Claimant’s “unknown”revenue and based its computation upon only revenue for which Customer Mix datawas provided. This contradicted not only Policy 345 v.3 but also Settlement Exhibit4B, upon which that Policy is based. (See Settlement Exh. 4B p. 4 (requiringclaimant to demonstrate decline in 10% “in the share of total revenue generated bynon-local customers”) (emphasis added))

In Case 2016-1865, the Court expressed its agreement with the Claims Administrator’s Policy 345 v.3 approach to “unknown” customers, whereby:

A claimant who cannot establish the location for all of its customers does not automatically fail the Customer Mix Test; however, revenue from “unknown” customers during 2009 is deemed to be “local” (or from customers outside Zones AC), while revenue from “unknown” customers during 2010 is deemed to be “non-local” (or from within Zones A-C). (Id. at 3 & 4) In this manner, Policy 345 v.3 prevents claimants from benefitting from their failure to provide complete customer mix data.

In a footnote to its expression of approval for that approach, the Court observed “Policy 345 v.3’s interpretation flows in part from the fact that the Customer Mix Test compares the share of ‘total revenue’ generated by non-local or Zone A-C customers from two time periods. ‘Total revenue’ means the revenue recorded on the claimant’s profit and loss statements for the selected period, not just the revenue for which the claimant is able to produce Customer Mix data.”

As to Claimant’s contention that reconciliation is not possible because its “financial statements can include additional components derived from activities that are not patient care,” BP asserts that Claimant does not adequately explain why these additional components cannot be tied to specific customers. Moreover, without the requisite documentation, Claimant cannot satisfy the Customer Mix Test, as the document requirements are mandatory.

Claimant counters:

In the healthcare context, all of the customers are patients and all the patients are known. The risk that some customers were not identified does not exist; all medical care is documented. There is no question that some subset of patients was created to meet the customer mix test, so the usual reason cited for a comparison between customer revenues and financial statement data does not come into play at. If the goal of the customer mix test is to determine whether there was a percentage drop

in the Zone A-C or non-local customers in 2010, the consideration of non-customer revenue adds nothing to that inquiry. And the use of non-customer revenue to create fictitious customers is entirely inappropriate in the healthcare context. Appeal Panel decisions 2017-81 and 2017-108 have recognized the lack of any basis for reconciliation of customer revenues with the financial statements. (However, BP cited Appeal Panel decisions that hold that there was nothing improper in the Program's treatment of certain revenue information due to the discrepancy between the mix data and the P and L's, as a measure to ensure consistency).

Other than stating generically that non-patient activities that generate revenue “can include, for example medical-legal work like independent medical examinations, workers’ compensation evaluations, participation in medical review panels, preparing expert reports, and deposition or trial testimony,” Claimant has offered no specifics about the revenues recorded in its P&Ls that are at variance with its Customer Mix data. It has not said it can’t identify and explain them. Arguably, certain of the categories Claimant has listed could have a “customer” associated with them in the form of the attorney engaging Claimant’s services for the forensic service, if not the “underlying” patient.

In the final analysis, the panelist considers the Court’s footnote to its decision in Case 2016-1865 to be controlling, and to require consideration of all “the revenue recorded on the claimant’s profit and loss statements for the selected period, not just the revenue for which the claimant is able to produce Customer Mix data.” Therefore, the panelist rejects this ground of Claimant’s appeal.

Claimant’s challenge of Policy 345’s treatment of P.O Box and incomplete addresses as unknown, is disposed of by the fact that the District Court has approved Policy 345, noting that it “agrees with the Claims Administrator’s method of treating revenue from ‘unknown’ customers. These provisions were the product of intense negotiation between Class Counsel and BP.” Finally, Claimant’s contention that this claim should be remanded based on its newly submitted Customer Mix data (even assuming Claimant’s untimely submission can be considered), Claimant would still fail the Customer Mix Test. Once these additional addresses are included in the Customer Mix calculation, Claimant fails the Customer Mix Test with revenue increases from non-local customers and from Zone A-C customers. Thus, Claimant’s revised Customer Mix data does not change the outcome of this appeal.

Denial upheld and appeal denied.



Claimant Name


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II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):


2017-3130


Claim ID

Claimant is a multi-facility orthopedic sports medicine medical practice. This claim involves its

location in , Louisiana. The Settlement Program denied this claim on the basis that

Claimant does not satisfy the Customer Mix Test. Claimant appeals contending (1) that the

Settlement Program erred in its treatment of variances between Claimant’s Customer Mix data

and P&Ls; (2) that Policy 345’s treatment of P.O Box and incomplete addresses as unknown, is

improper; and (3) that this claim should be remanded based on Claimant’s newly submitted

Customer Mix data. As to ground (1), Claimant argues:

Neither the Settlement Agreement nor Policy 345 discloses any requirement that the

amounts in the Customer Mix information need to match those of the Claimant's P&Ls. Nothing

in Exhibit 4B indicates that any revenue other than revenue generated by customers will be

considered as part of the test. The determination of whether the customer pattern changed is

determined based on the share of total revenue generated by customers, not the total revenue.

Policy 345 v.3, C. makes it clear that what is to be compared is revenue "generated from"

customers, not any other revenue. The revenue numbers which appear in Claimant's financial

statements can include additional components derived from activities that are not patient care

and were not billed to the patient, insurer, Medicare or Medicaid. Such activities can include, for

example, medical-legal work like independent medical examinations, workers' compensation

evaluations, participation in medical review panels, preparing expert reports, and deposition or

trial testimony.

Thus, Claimant asserts that because neither Exhibit 4B or Policy 345 v.3 requires that the

customer generated revenue data reconcile with the financial statements, the examiners erred in

performing that reconciliation and considering all differences found to be adverse to Claimant's

claim.

BP contends:

The Settlement Program’s Customer Mix calculation in this claim is based on a faithful

application of Policy 345, and Claimant still fails the Customer Mix Test even if its corrected

data is considered. Claimant’s Customer Mix data contains significant variances with Claimant’s

P&Ls. Accordingly, the Settlement Program treated the revenue from these customers and P&L

variances as unknown and excluded the revenue from the Benchmark Period and included the

revenue in the Compensation Period. The Customer Mix Test requires a claimant to provide

proof of a 10% decline in “the share of total revenue generated by [certain] customers.”

(Claimant failed the Customer Mix Test with a negative 375.21% revenue decline from non-local

customers and a negative 122.61% revenue decline from Zone A-C customers.) Customer Mix

data cannot include “total revenue” if the data does not reconcile with the P&Ls. Policy 345 also

confirms this requirement by providing illustrations of Customer Mix calculations where the

Customer Mix data does not reconcile with the P&Ls. Requiring Customer Mix data for all

revenue, as reflected in a Claimant’s P&Ls, ensures that a claimant cannot engineer a subset of

Customer Mix data that guarantees a passing Customer Mix Test result.

BP draws attention to two decisions issued by the supervising district court on May 5, 2017,

which have direct bearing on this issue. In Case 2016-1949, the Court declared:

Under the Customer Mix Test, as applied under Policy 345 v.3, revenue from a customer

whose address is “unknown” is considered to be local (or outside Zones A-C) during the

Benchmark Period and non-local (or inside Zones A-C) during the Compensation Period. Rather

than treat “unknown” revenue in this manner, the Settlement Program appears to have ignored

entirely Claimant’s “unknown” revenue and based its computation upon only revenue for which

Customer Mix data was provided. This contradicted not only Policy 345 v.3 but also Settlement

Exhibit 4B, upon which that Policy is based. (See Settlement Exh. 4B p. 4 (requiring claimant to

demonstrate decline in 10% “in the share of total revenue generated by non-local customers”)

(emphasis added))

In Case 2016-1865, the Court expressed its agreement with the Claims Administrator’s Policy

345 v.3 approach to “unknown” customers, whereby:

A claimant who cannot establish the location for all of its customers does not

automatically fail the Customer Mix Test; however, revenue from “unknown” customers during

2009 is deemed to be “local” (or from customers outside Zones AC), while revenue from

“unknown” customers during 2010 is deemed to be “non-local” (or from within Zones A-C). (Id.

at 3 & 4) In this manner, Policy 345 v.3 prevents claimants from benefitting from their failure to

provide complete customer mix data.

In a footnote to its expression of approval for that approach, the Court observed: “Policy 345

v.3’s interpretation flows in part from the fact that the Customer Mix Test compares the share of

‘total revenue’ generated by non-local or Zone A-C customers from two time periods. ‘Total

revenue’ means the revenue recorded on the claimant’s profit and loss statements for the selected

period, not just the revenue for which the claimant is able to produce Customer Mix data.”

As to Claimant’s contention that reconciliation is not possible because its “financial statements

can include additional components derived from activities that are not patient care,” BP

asserts that Claimant does not adequately explain why these additional components cannot be

tied to specific customers. Moreover, without the requisite documentation, Claimant cannot

satisfy the Customer Mix Test, as the document requirements are mandatory.

Claimant counters:

In the healthcare context, all of the customers are patients and all the patients are known.

The risk that some customers were not identified does not exist; all medical care is documented.

There is no question that some subset of patients was created to meet the customer mix test, so

the usual reason cited for a comparison between customer revenues and financial statement data

does not come into play at. If the goal of the customer mix test is to determine whether there was

a percentage drop in the Zone A-C or non-local customers in 2010, the consideration of non-

customer revenue adds nothing to that inquiry. And the use of non-customer revenue to create

fictitious customers is entirely inappropriate in the healthcare context. Appeal Panel decisions

2017-81 and 2017-108 have recognized the lack of any basis for reconciliation of customer

revenues with the financial statements. (However, BP cited Appeal Panel decisions that hold that

there was nothing improper in the Program's treatment of certain revenue information due to the

discrepancy between the mix data and the P and L's, as a measure to ensure consistency).

Other than stating generically that non-patient activities that generate revenue “can include, for

example medical-legal work like independent medical examinations, workers’ compensation

evaluations, participation in medical review panels, preparing expert reports, and deposition or

trial testimony,” Claimant has offered no specifics about the revenues recorded in its P&Ls that

are at variance with its Customer Mix data. It has not said it can’t identify and explain them.

Arguably, certain of the categories Claimant has listed could have a “customer” associated with

them in the form of the attorney engaging Claimant’s services for the forensic service, if not the

“underlying” patient.

In the final analysis, the panelist considers the Court’s footnote to its decision in Case 2016-1865

to be controlling, and to require consideration of all “the revenue recorded on the claimant’s

profit and loss statements for the selected period, not just the revenue for which the claimant is

able to produce Customer Mix data.” Therefore, the panelist rejects this ground of Claimant’s

appeal.

Claimant’s challenge of Policy 345’s treatment of P.O Box and incomplete addresses as

unknown, is disposed of by the fact that the District Court has approved Policy 345, noting that it

“agrees with the Claims Administrator’s method of treating revenue from ‘unknown’ customers.

These provisions were the product of intense negotiation between Class Counsel and BP.”

Finally, Claimant’s contention that this claim should be remanded based on its newly submitted

Customer Mix data (even assuming Claimant’s untimely submission can be considered),

Claimant would still fail the Customer Mix Test. Once these additional addresses are included in

the Customer Mix calculation, Claimant fails the Customer Mix Test with revenue increases

from non-local

customers and from Zone A-C customers. Thus, Claimant’s revised Customer Mix data does not

change the outcome of this appeal.

Denial upheld and appeal denied.




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II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):

Claimant,a property owner in Vermilion Parish,Louisiana,appeals the denial of his Wetlands Real Property Claim (WRPC) on

the basis the subject parcel was not located in the WRPC zone.Claimant asserts he presented evidence to the Settlement Program(SP) that not only showed the parcel was in the WRPC zone but also it was oiled and should be added to it.

A review of the record discloses that claimant submitted other similar claims for nearby parcels he owned which were

found eligible for compensation.After denial notice issued for this claim,claimant sought post-denial relief and submitted to the SP additional information as reflected in the post re-review and post reconsideration denial notices. These submissions

included revised or corrected parcel legal descriptions,geographical maps,parish public records and ERMA mapping data.The SP referred these submissions to its mapping experts who determined that the subject parcel was still not located

in the WRPC zone and should not be added to it because the parcel was not oiled.A review of the record and the evidence contained therein confirms this determination was not in error.Accordingly,the decision of the Claims Administrator is

affirmed and the appeal of claimant is denied.

2017-3131



Claimant Name


First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned








No error.

Comment (optional):

See reasons uploaded

2017-3132

CLAIMANT:CLAIM ID:

Claimant is a Metairie, Louisiana commercial construction company. The SettlementProgram analyzed the claim under the Construction Methodology of Policy 495 and denied theclaim. Per the rulings and orders of the supervising Federal Courts, this matter is remanded tothe Settlement Program for analysis under the AVM Methodology of Policy 495. TheSettlement program shall refrain from reallocating revenues except to correct errors.




First Middle



Law Firm

II. DECISION

















No error.

Comment (optional):

Reasons uploaded

2017-3133

CLAIMANT:CLAIM ID:

Claimant, a scrap metal recycler in Pensacola, Florida was awarded $77,013.29 (pre -0.25 RTP) by the Settlement Program (SP) on Claimant’s Start-Up BEL Claim. BP appeals theaward.

BP asserts the SP erred in its classification of Claimant’s “ASR Disposal Fees” as a fixedexpense. BP asserts the “ASR Disposal Fees” are the costs of disposing of scrap metal thatcannot be recycled and sold. BP asserts the fees should have been classified as Costs of GoodsSold - Variable. While not conceding any error by the SP, Claimant asserts that classificationsof the fees as variable would increase the Compensation Amount to $96,558.84 (pre - 0.25RTP) and enters a Final Proposal in that amount. Claimant asserts its Final Proposal is obtainedby applying the AVM Methodology of Policy 495.

First, the SP determined that Claimant’s financials did not trigger any of the Policy 495tests and it analyzed the claim under the General BEL Framework. Second, Exhibit 4B of theSettlement Agreement provides that fees such as the “ASR Disposal Fees” here are deemedfixed.

The SP’s award of $77,013.29 (pre - .025 RTP) is the correct result. Therefore, theclaim is remanded to the Settlement Program to issue a Post-Appeal Eligibility Notice in the sumof $77,013.29 (pre - 0.25 RTP).



Claimant Name


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Law Firm

II. DECISION
















No error.

Comment (optional):

See uploaded decision

2017-3134

– Claim

Claimant is a site contractor for real estate developers and builders in Vancleave,

Mississippi (Zone D). On November 15, 2009, Claimant entered into a contract with a

developer to provide site preparation and other services for a lot subdivision which

included delivering and compacting fill dirt, overlaying the subdivision roads with asphalt,

and providing signage and striping for the roads. The total contract price was $461,000.

On November 9, 2010, the developer notified Claimant that it had stopped

construction and would not be finishing the remaining houses planned for the

subdivision, explaining that although some houses had been sold, sales calls on the

remaining houses had stopped since the spill. Claimant was unable to find a replacement

contract as most construction in the area had come to a standstill in the wake of the spill.

Claimant submitted a BEL claim for the canceled contract and the Settlement Program

awarded $107,753.44 (pre-RTP). BP appeals the award.

At the time of the contract cancellation, Claimant had begun work and had laid

approximately 10 slabs to that point. A review of the record reveals a detailed account of

the nature of the work and how the Program utilized the information to calculate the

award. See Calculation Note 5, Doc ID .

BP contends the Program’s timeline is “overly simplistic” and fails to accurately

reflect the nature of construction projects. BP argues that the timeline is “not realistic” and

further contends that the Program improperly calculated the variable margin it used to

estimate the expenses for Claimant’s canceled contract. BP argues that it is “likely” that

the variable margin was inflated due to fiscal year-end adjustments and that “it is possible

that the Settlement Program did not take into account . . . large negative adjustments made

in June 2009, thereby inflating the variable margin for the May to December 2009 period.”

BP seeks a remand so that these issues can be investigated and the award recalculated

and, alternatively, submits a final proposal of $0. Notably, BP offers no evidence of how the

award should have been calculated.

A de novo review of the record satisfied the panel that the Program’s approach was

reasonable. In calculating the award, the Program noted that completion of the contract by

the method utilized would fall outside the compensation period of December 31, 2010 and

any payments that would have been due to Claimant after that date were excluded from the

award. The panel concludes that remand is not appropriate and that there is no support in

the record for BP’s final proposal of $0 nor does BP offer an alternative method to calculate

the award. Accordingly, Claimant’s final proposal is selected as the correct result in this

baseball appeal.




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II. DECISION
















No error.

Comment (optional):

2017-3135


Claim ID

BP appeals a BEL award in the pre-RTP amount of $1,259,111.94 to a Captiva, Fl (Zone A) resort village. It preserves three issues on appeal. First, BP asserts Program error in its elimination of Claimant's 2009 year-end adjustment of alleged workers compensation costs in the amount of $1,128,065.00, claiming that these costs should have been reallocated over the entire 2009 year. A de novo review of the record reflects that the Program did not have to resort to Policy 495, since Claimant's financials were sufficiently matched, and none of that Policy's criteria were triggered. As Claimant points out, the referenced amounts represented not only workers compensation costs, but also (nearly half of the total sum) accruals for vacation allocations. These accruals were specifically pointed out to the Program reviewers, in the record, who made the judgment call in their discretion to accept them.

Secondly, BP assails the Program's designation of "activity" and "linen" expenses as Fixed, when the financials reflected certain months when no recurring expense was recorded. It asserts that accordingly, the said expenses were the classic COGS, and therefore merited a Variable expense designation under Exhibit 4D of the Settlement Agreement. Claimant's response is admittedly terse and conclusory, representing that these expenses remained the same despite varying volumes of bookings and therefore were correctly deemed Fixed.. More significant to this panel is the fact that the above expenses could easily be categorized as "Cleaning and Housekeeping Costs" or "Supplies," each of which by stipulation in Exhibit 4D merited a status as a Fixed expense.

Lastly, in an assertion ignored by Claimant, BP claims that the expense entitled "S&M Promotional--Other" (S&M designating Sales and Marketing, in contrast to other potential connotations) was misclassified as Variable. BP itself represents that this category of expense is for "discounts and rebates" received in Claimant's Sales and Marketing department, and should be considered Fixed rather than Variable. The problem with BP's argument, though ignored by Claimant, is that Exhibit 4D specifically designated by stipulation of the parties that "Discounts and Rebates" is a Variable expense.

BP should be praised for at least making a credible final pre-RTP proposal of $795,191.94, although this number goes largely unexplained in its submission. Accordingly, in this baseball appeal, faced with the alternative of choosing an unexplained proposal or one that proposes the affirmation of the Program reviewers' discretion and their ultimate award amount in its entirety, this panel after due deliberation unanimously chooses the Claimant's final proposal.




First

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Law Firm

II. DECISION
















No error.

Comment (optional):

filed this Individual Economic Loss claim under the Settlement Agreement. The Settlement Program determined was due a Compensation Amount of $33,520.55, pre-RTP. BP appeals.

BP raises two issues. First, BP contends is ineligible to recover under the IEL Framework because he is an owner of . Second, BP contends the SWS-12 filed by is insufficient.

2017-3136

With respect to the first issue, BP’s analysis is straight-forward. No claimant, who is an owner to any degree of a business, can recover losses related to business income if such income must be reported on IRS Form 1040 Schedules C, E, or F. Claimant rejoins that is eligible because his employer did not receive an Eligibility Award payment through the Settlement Program. Instead, obtained compensation through court-appointed neutrals who were not bound by any methodology or framework. This is an unusual situation. On balance, the Settlement Program’s determination carries the most weight despite the potential for double-recovery. The Settlement Program is charged with providing a consistent approach to handling IEL claims and in construing the Settlement Agreement. Absent specific evidence of a double-recovery or clear legal direction to the contrary, this close call is made in favor of the Claimant. BP’s second issue is weak. The SWS-12 articulates three specific jobs lost in Pensacola, Pensacola Beach, and Tallahassee, Florida. It also states the specific fee revenues lost for each project. In addition, the Settlement Program found the SWS-12 sufficient. Claimant’s Final Proposal prevails as it adopts the correct Final Award, which was calculated by the Settlement Program.



Claimant Name


First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned








No error.

Comment (optional):


2017-3137

1


Claim #

September 19, 2017

Claimant failed causation. Specifically, Claimant failed what is

commonly referred to as the Customer Mix Test, which is one of the

components of the Decline-Only Revenue Pattern causation test.

The below chronology is pertinent to this Panel’s decision in this

matter:

1. Claimant’s Opening Memorandum argued that the Program had

misapplied the Customer Mix test to Claimant’s Customer Mix data.

Specifically, Claimant complained that had it known that the Program was

going to reclassify certain expenses, Claimant could have provided updated

data.

2. This Panel gave the Claimant an opportunity to submit updated data.

Claimant did so.

3. This updated data was provided to the Program by this Panel with the

request that the Program review and determine whether or not the outcome

of the Claim would change.

4. The Program responded, stating that “[u]sing the Claimant’s most

recently submitted Customer Mix data . . . , Program Accountants determined

that the Claimant does not pass the Customer Mix Test.”

5. Claimant responded to the Summary of Review by arguing that the

Program committed numerous mistakes. Specifically, Claimant pointed out

mistakes in the classification of customers based on their addresses,

particularly those that the Program had classified as “unknown.”

6. In light of this response, this Panel requested that Claimant “create a list

of all customers whose address information Claimant contends was

misclassified by the Program and submit that ‘corrections’ list to this Panel

for review.” The Claimant responded by submitting a list which contained

corrected addresses and corrected mileage for those customers that the

Program had previously classified as “unknown.”

7. Upon receipt of this list, this Panel submitted the updated list to the

Program along with the following question: “Assuming that Claimant’s

corrections are accurate, does Claimant now pass causation?”

8. The Program’s response was a good news-bad news one for Claimant.

According to the Program, if Claimant’s corrected list were accepted as is,

2

Claimant would pass causation. However, the Program noted that the

corrected list contained 123 customers for which the Claimant provided

updated mileage distance but for which only P.O. Boxes were provided as

addresses. Treating these 123 addresses as “unknown” (per Policy 345 v.3,

Part C, Subpart (b)) would result in the Claimant failing the Customer Mix

Test.

As the above chronology shows, if the Program had classified the 123

customer addresses as known rather than as “unknown,” Claimant may have

satisfied the Customer Mix Test.

The Program’s automatic classification of customers with P.O. Boxes

addresses as “unknown” has generated considerable consternation among

claimants. Many have pointed out that Policy 345 v.3, Part C, Subpart (b)’s

requirement that a customer must have a street address can result in a “non-

local customer” (based on that customer’s city address) mistakenly being

classified as “unknown.”

The significance of whether a customer is classified as known or

“unknown” is critical: Revenue from “unknown” customers during 2009 is

deemed “local;” while revenue from “unknown” customers during 2010 is

deemed “non-local.” In other words, the greater number of “unknown”

customers, the less likely a claimant will satisfy the Customer Mix Test.

The Program follows the guidelines set forth in Part C of Policy 345

v.3 in determining the distance between the claimant’s business and the

customer. Relevant to this appeal is Subpart (b), which reads in pertinent

part as follows:

For any customer address provided in the form of a P.O Box

and/or any customer address in which the mapping software

company’s geo-coder can only identify the city and/or Zip Code,

the Claims Administrator will consider the . . . distance between

the customer and the claimant to be unknown.

To date, every Panel that has addressed the P.O Boxes (Subpart (b))

provision in Policy 345 v.3 has followed it, though some Panels, including

this one, have expressed concerns.

The District Court’s seminal decision on the Customer Mix Test is set

forth in Appeal Decision 2016-1865 (Claim ID ). That portion of the

decision relevant to the central issue in this appeal reads as follows:

Thus, the Customer Mix Test requires the location of the

claimant’s customers and the date and amount of revenue

transactions from the customers. In Policy 345 v.3, the Claims

3

Administrator acknowledged that “it is difficult or even

impossible for some claimants . . . to satisfy this test because

they do not have documentation to establish the

addresses/locations of their customers.” (Policy 345 v.3 at 2)

Nevertheless, the Claims Administrator views Exhibit 4B’s

documentation requirements as mandatory and does not

interpret the Settlement as giving him discretion to waive those

documents. (Id.) Furthermore, the Claims Administrator

interprets the Settlement as placing the burden on the claimant

to demonstrate that it has satisfied the requirements of the

Customer Mix Test. (Id. at 1) Consequently, if a claimant cannot

establish in the requisite manner the location of all of its

customers, Policy 345 v.3’s approach is to assume that the

revenue associated with “unknown” customers would weigh

against the claimant for purposes of the Customer Mix Test.

The Court’s position on customers can be summarized as follows: The

Customer Mix Test requires the location of the claimant’s customers. The

claimant has the burden of showing the location of its customers. If a

claimant cannot establish the location of its customers, the customer (and

that customer’s revenue) shall be classified as “unknown.

Although the Court clearly approves of the general principles set forth

in Policy 345 – e.g., the claimant has the burden of showing the location of its

customers – the Court’s decision does not specifically address the P.O. Boxes

issue. Hence, while somewhat instructive, the Court’s decision does not

appear to this Panel to be controlling on the central issue in the instant

appeal – whether or not Policy 345 v.3, Part C, Subpart (b) accurately reflects

the intent of Exhibit 4B of the Settlement Agreement, or whether Part C,

Subpart (b)’s treatment of P.O. Box addresses inappropriately modifies

Exhibit 4B’s Customer Mix Test.

As always, one must first look to the Settlement Agreement in order to

determine the appropriateness of all or part of a Claims Administrator’s

policy. Regarding the Customer Mix Test, Exhibit 4B of the Settlement

Agreement contains the following footnote:

A Customer shall be considered a “non-local customer” if they

reside more than 60 miles from a claimant business location.

Although Exhibit 4B requires the claimant to submit documents that

reflect the location of customers, Exhibit 4B contains no language as to the

method for determining the distance between the customer’s residence and

the claimant’s business.

4

Claims Administrator’s policies are usually designed to help fill in

gaps in the Settlement Agreement. In the case of the Customer Mix Test, the

Claims Administrator created a section (Part C) in Policy 345 v.3 entitled

“Verification of Economic Loss Zones of Customers and Distance Between

Customers and Claimant.”

Part C states that, generally, the Claims Administrator will use

mapping software to verify the distance. Part C goes on to address specific

situations. As noted earlier, relevant to this appeal is Subpart (b), which

provides that the distance between the claimant’s business and a customer

whose address is a P.O. Box will be treated as “unknown.”

No exception to this guideline appears in Part C. For example, if the

customer’s P.O. Box address is located in a city that is clearly greater than 60

miles from the claimant’s business, that customer is still classified as

“unknown.” Hence, there is the possibility that a customer who is in fact

“non-local” instead gets classified as “unknown” for purposes of the

Customer Mix Test calculations.

This Panel understands the underlying rationale of Subpart (b). The

Settlement Agreements defines a non-local customer as one who resides

more than 60 miles from the claimant’s business. A P.O. Box is not a specific

location. No one resides at a P.O. Box. [This Panel suspects that part of the

motivation for adopting this guideline is the inability of the mapping

software to deal with P.O. Box addresses.]

That said, nothing in the Settlement Agreement automatically

excludes customers with P.O. Box addresses. Rather, the criteria is that the

claimant show that a customer resides more than 60 miles from the

claimant’s business. As long as the claimant can show that a customer in fact

resides more than 60 miles from the claimant’s business, then that customer

is entitled to non-local status.

It is the opinion of this Panel that Part C, Subpart (b) of Policy 345 v.3

has created a requirement – that a customer’s address contain a street name

– that inappropriately modifies the Settlement Agreement.

This Panel recognizes that a claimant may not be able to meet this

burden in connection with P.O Box addresses. For example, it may not be

sufficient to rely solely upon the customer’s city. To do so might lead to a

customer who resides less than 60 miles for the claimant’s business, but

whose mail goes to a P.O. Box greater than 60 miles, mistakenly qualifying as

a non-local customer. But the difficulty of meeting that burden should not

preclude a claimant from having the opportunity to satisfy the criteria set

out in Exhibit 4B.

5

In light of the above, this matter is remanded with the following

instructions:

1. Regarding the 123 addresses referenced in the Program’s Summary of

Review dated August 22, 2017;

2. The Program shall identify the customer names (and, if possible, the

corresponding numbers on Claimant’s Customer Mix data list) and provide

this information to Claimant;

3. The Claimant shall then be given a reasonable amount of time to submit

documentation that shows that these 123 customers reside more than 60

miles from Claimant’s business.

[Note: It is not clear from the record how many of the 123 addresses

would need to be reclassified from unknown to non-local in order for the

Claimant to satisfy the Customer Mix Test. Nor is it clear that the Program

performed an analysis of the second prong (“outside factors”) of the Decline-

Only Revenue Pattern causation test.]




First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

Claimant is a retail paint store located in Broussard, Louisiana. The Settlement Program (SP) awarded Claimant, $98,975.22 ($123,719.03 post-RTP). BP appeals on three grounds: 1. The SP erred by allocating costs of goods sold (“COGS”) incurred by the divisions to the individual stores..2. The SP misclassified a number of Claimant’s variable expenses, erroneously consolidating them into a single expense lineitem, in violation of the Settlement Agreement.

2017-3138

3. The SP failed to obtain sales and use tax returns, as required by the Settlement Agreement claiming this is a mandatory requirement. These issues have been reviewed and considered by other panelists in other related appeals and determined adversely to BP. See e.g., decisions in claim numbers

This panelist is in agreement with those decisions and finds no reason to depart from them. Accordingly, the decision of the SP is affirmed and the appeal of BP is denied.




First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

Claimant is a paint store located in Hammond, Louisiana. The Settlement Program (SP) awarded Claimant $139,897.58 pre-RTP ($174,871.98 post-RTP). BP appeals on the ground that the SP erred by failing to obtain sales and use tax returns, as required by the Settlement Agreement. More specifically, BP argues that the Settlement Agreement requires a BEL claimant to provide certain documents “[i]n order to be eligible for compensation.” Settlement Agreement, Ex. 4A at 1. BP argues that

2017-3139

“retail claimants must provide “[m]onthly sales and use tax returns” for “the years included in the Benchmark Period, 2010, and, if applicable, 2011.” BP suggests in this appeal (like in several other similar appeals) that the SP did not obtain Claimant’s monthly sales and use tax returns as required by Exhibit 4A, and thus Claimant is not entitled to compensation. This issue (among others) has been thoroughly reviewed and considered by other panelists in other related appeals and determined adversely to BP. See e.g., decisions in claim numbers ;

. This panelist is in agreement with those decisions and finds no reason to depart from them. Accordingly, the decision of the SP is affirmed and the appeal of BP is denied.




First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

Claimant is a paint store located in Key West, Florida. The Settlement Program (SP) awarded Claimant, $112,789.21 ($281,973.03 post-RTP). BP appeals on three grounds: 1. The SP erred by allocating costs of goods sold (“COGS”) incurred by the divisions to the individual stores.2. The SP misclassified a number of Claimant’s variable expenses, erroneously consolidating them into a single expense lineitem, in violation of the Settlement Agreement.

2017-3140

3. The SP failed to obtain sales and use tax returns, as required by the Settlement Agreement.As to the 3 grounds, these issues have been reviewed and considered by other panelists in other related appeals anddetermined adversely to BP. See e.g., decisions in claim numbers ;

. This panelist is in agreement with those decisions and finds no reason to departfrom them.Accordingly, the decision of the SP is affirmed and the appeal of BP is denied.




First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

Claimant is a paint store located in Nederland, Texas. The Settlement Program (SP) awarded Claimant, $152,344.66 ($190,430.83 post-RTP). BP appeals on three grounds: 1. The SP erred by allocating costs of goods sold (“COGS”) incurred by the divisions to the individual stores..2. The SP misclassified a number of Claimant’s variable expenses, erroneously consolidating them into a single expense lineitem, in violation of the Settlement Agreement.

2017-3141

3. The SP failed to obtain sales and use tax returns, as required by the Settlement Agreement. This is a mandatory requirement under the Settlement Agreement. These issues have been reviewed and considered by other panelists in other related appeals and determined adversely to BP. See e.g., decisions in claim numbers ;





First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

See previous uploaded Decision Comment.

2017-3142


Claim ID

The Settlement Program awarded $115,395.82, pre-RTP to the Claimant’s retail facility in New Orleans, Louisiana. The AVM methodology was used to resolve matching issues. BP appeals, raising three assignments of error. First, BP asserts that the Settlement Program misclassified a number of Claimant’s variable expenses, erroneously consolidating them into a single expense line item, in violation of the Settlement Agreement. Second, the Settlement Program failed to obtain sales and use tax returns, as required by the Settlement Agreement. Finally, the Settlement Program failed to properly address cross-year revenue and expense issues. Claimant’s P&Ls include a line item entitled “72_ALL_OTHER.” This category includes a number of miscellaneous expenses which the program accountant classified as 100% fixed. BP argues that this category includes repairs and a number of other expenses that are variable. BP appears to argue that this line item should have been allocated 50% fixed and 50% variable. Claimant responds that it has received over 80 BEL awards and that BP has not questioned the classification of the “72_ALL_OTHER” expenses in numerous companion appeals. Beyond that, Claimant points out that this expense category consists of expenses that are fixed as opposed to variable in nature. The Calculation Notes reflect that the program accountant examined this category and determined that the expenses were properly classified as fixed:


Although BP argues that this error reduces Claimant’s compensation, no misapplication of Exhibit 4D has been shown. This assignment of error is without merit. BP also argues that as a retail business, Claimant was obligated under Exhibit 4A to provide monthly sales and use tax returns for the Benchmark Period, 2010 and if necessary, 2011. BP complains that the Settlement Program erred in failing to require the Claimant to furnish these documents because it is a retail store. BP argues that Claimant is not entitled to compensation absent the submission of these documents but fails to explain how the sales and use tax returns would have altered the award. Claimant points out that the Settlement Program assigned it NAICS Code 325510 - Paint and Coating Manufacturing. This industry comprises establishments primarily engaged in mixing pigments, solvents and binders into paints and other coatings and/or manufacturing allied paint products such as putty and paint remover. The Settlement Program presumably assigned this code based on the fact that Claimant is engaged in the manufacturing and purchasing of paint as well as its retail and commercial sales. Hence, Claimant argues that sales and use tax returns are not required. This was a reasonable approach by the Settlement Program based on the overall nature of Claimant’s business operations. No error has been shown. BP points out that Claimant recorded $52,225 in bad debt charges in December 2010, but it appears, however, that Claimant was able to recover on that bad debt in the following year because it recorded a total of negative $49,558 in bad debt recovery in 2011. BP contends that the Settlement Program should have reallocated Claimant’s 2011 bad debt recovery expense to December 2010, as that is when the expense was incurred. Claimant counters that “it appears, however, that Claimant was able to

recover on that bad debt in the following year …” is simply speculation on the part of BP. In response to this panelist’s request for a Summary of Review relative to this issue it was learned that the DWH Accountant used contemporaneous Profit and Loss Statements as provided by the Claimant. Claimant confirms that P&Ls are maintained at the retail store level in the normal course of business. Additionally, Claimant maintains its books and records on an accrual basis and revenue and expenses entries are booked as they are incurred. The DWH Accountant noted that the Claimant consistently records "43_BD_CHGOFF" and "44_BD_RECOV" on a monthly basis, and the increase in "43_BD_CHGOFF" in December 2010 did not trigger any matching flags per the Declaration Analysis. Based on the aforementioned, the DWH Accountant did not inquire further into the nature of the increase in "43_BD_CHGOFF" in 2010 and the increase in the negative value of "44_BD_RECOV" in 2011 as these expenses were deemed to be accounting estimates, made in the normal course of business using the best available information at the time. As such, the claim has been appropriately processed under the Annual Variable Margin Methodology. The Program Accountants were provided the discretion and authority to investigate each claim in a reasonable manner, and the Program Accountants decided further investigation was not necessary. Although BP submitted a Final Proposal of $100,335.82, no error has been demonstrated that would require remand or justify selection of BP’s Final Proposal. Claimant’s Final Proposal is the correct result and is therefore selected.




First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

Claimant is a retail paint store located in Picayune, Mississippi. The Settlement Program (SP) awarded Claimant, $79,426.69 ($99,283.36 post-RTP). BP appeals on three grounds: 1. The SP erred by allocating costs of goods sold (“COGS”) incurred by the divisions to the individual stores..2. The SP misclassified a number of Claimant’s variable expenses, erroneously consolidating them into a single expense lineitem, in violation of the Settlement Agreement.

2017-3143

3. The SP failed to obtain sales and use tax returns, as required by the Settlement Agreement claiming this is a mandatory requirement. These issues have been reviewed and considered by other panelists in other related appeals and determined adversely to BP. See e.g., decisions in claim numbers ;





First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

Claimant is a retail paint store located in Starkville, Mississippi. The Settlement Program (SP) awarded Claimant $73,674.65 ($92,093.31 post-RTP). BP appeals on three grounds: 1. The Settlement Program erred by allocating costs of goods sold (“COGS”) incurred by the divisions to the individualstores.

2017-3144

2. Failure to obtain sales and use tax returns, as required by the Settlement Agreement. 3. Failure of the claim comply with the attestation requirement as recognized in the Fifth Circuit’s March 3, 2014 opinion. (By stipulation this ground of appeal has been preserved without waiver by either party to this appeal.) As to the first 2 grounds, these issues have been reviewed and considered by other panelists in other related appeals and determined adversely to BP. See e.g., decisions in claim numbers ;





First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

Claimant is a retail paint store located in Tupelo, Mississippi. The Settlement Program (SP) awarded Claimant, $46,909.71 ($58,637.14 post-RTP). BP appeals on three grounds: 1. Misclassification of a number of Claimant’s variable expenses, erroneously consolidating them into a single expense lineitem, in violation of the Settlement Agreement.2. Failure to obtain sales and use tax returns, as required by the Settlement Agreement.

2017-3145

3. Failure of the claim comply with the attestation requirement as recognized in the Fifth Circuit’s March 3, 2014 opinion. (By stipulation this ground of appeal has been preserved without waiver by either party to this appeal.) As to the first 2 grounds, these issues have been reviewed and considered by other panelists in other related appeals and determined adversely to BP. See e.g., decisions in claim numbers ;




Claimant Name


First Middle



Law Firm

II. DECISION
















No error.

Comment (optional):

2017-3146

- Claim ID

After issuing five incompleteness notices in an effort to determine if the Claimant was an

excluded defense contractor, the Settlement Program finally issued an Eligibility Notice awarding

$103,210.86, pre-RTP. Policy 495 criteria were triggered and the AVM methodology was used to

address matching issues. Apparently satisfied with the defense contractor determination, BP appeals,

arguing that the program accountant was inconsistent in adjusting Claimant’s revenue to correct for

errors.

Claimant is a moving and storage company in Theodore, Alabama (Zone C). Prior to 2009,

Claimant used the cash basis of accounting but changed to accrual accounting in 2009. The

accounting vendor removed the year-end accrual to cash adjustments in December 2007 and

December 2008. BP argues that a comparable adjustment in January 2008 and January 2009 to

reverse these adjustments was required but not performed. BP urges that the failure to remove the

adjustment amounts resulted in revenue being inflated.

In response, Claimant points out that neither January 2008 or January 2009 has any affect on

the causation determination nor any direct affect on the award calculation. Claimant further points

out that the 2009 P&Ls and tax returns reconcile without any adjustment. Thus, Claimant sees BP’s

argument as a red herring with no bearing on the outcome of the claim.

The Calculation Notes reflect that the program accountant was aware of the year-end accrual

to cash adjustments and determined that no further adjustments were necessary:

The Claimant explained that year-end adjustments were made to theP&Ls in 2007 and 2008 to convert the basis of revenues from accrualto cash for tax reporting purposes. (Doc ID )Accounting Review created adjustments to exclude the accrual tocash year-end adjustments from the profit and loss statements in orderto maintain a consistent method of accounting throughout all periods. The Claimant’s explanation included a reversal in January 2009;

however, the profit and loss statements reconcile to the Claimant’saccrual tax returns in 2009 indicating that the reversal is not includedin the profit and loss statements.

BP is correct that Policy 495 requires the vendor accountants to correct for errors where

revenue or expenses are incorrectly recorded in the P&Ls. It is clear that the year-end adjustments

were made so that Claimant’s accrual P&Ls would match its cash basis tax returns. In concluding

that the January reversal is not included in the P&Ls, the program accountant engaged in an

appropriate exercise of his professional adjustment. No abuse of that judgment vested by Policy 495

has been demonstrated.

Accordingly, BP’s appeal cannot be sustained. Claimant’s Final Proposal is the correct

result.

2




First

Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned







No error.

Comment (optional):


2017-3147


Claim ID

The Subsistence claim of was dismissed due to a failure to provide

evidence of licensure for all the species for which he claimed losses. Specifically, did not

provide proof he was licensed to hunt deer. Claimant's initial Teal Form and Subsistence

Interview Form asserted losses of 500 pounds of deer. The revised Interview Form ultimately

omitted deer from the list of claimed species. BP suggests that "Claimant may not circumvent the

requirement that he provide license documentation applicable to all claimed species simply by

submitting a new interview form that omits species for which he could not provide a license."

Despite this contention, Panel decisions have consistently recognized that the omission of a

license for 1 species should not be fatal to the entire claim.

Nevertheless, as BP points out, claimant did not file the requisite Memorandum in support of his

appeal. Further, the Appeal Notice merely states "Please reconsider claim and uploaded docs.

Subst. interview form revised and uploaded." The inadequate specificity in the Notice and

absence of any Memorandum makes this appeal procedurally deficient and is arguably grounds

to dismiss the appeal on this basis alone.

Additionally, this claimant was the subject of an FWA Investigation and BP argues that the catch

and consumption totals are implausible. Claimant asserts catch and consumption totals of over

7,000 pounds for him and a family member. Since these totals only apply to a 7 month period per

claimant's filing, and since one must presume there are other items in claimant's diet, there is a

finding that the asserted totals are implausible. Due to the various defects in this appeal, the

denial by the Settlement Program is affirmed.




First

Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned








No error.

Comment (optional):

Claimant,a resident of Mobile,Alabama,appeals the denial of his Subsistence claim on the basis he failed to submit proper

documentation to fish for certain listed species,including shrimp.Claimant asserts he provided such documentation including his lifetime license issued to him by the State of Alabama.The Settlement Program denied the claim in its entirety because

claimant did not show the means by which he harvested shrimp.BP in response acknowledges remand is appropriate since

claimant has amended his claim form to remove shrimp as a harvested species.Accordingly,this claim is remanded to the Claims Administrator for further evaluation and processing in light of the amended claim form.

2017-3148