I. CLAIMANT AND CLAIM INFORMATION › docs › ...The Settlement Agreement is the law of the case arrangement that has been carefully followed by this panel member. In this Claim,

APPEAL PANEL DECISION FORM

I. CLAIMANT AND CLAIM INFORMATION

Claimant Name Last/Name of Business First

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Claimant ID Claim ID

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 .25

Prior Payment Offset $0

Claimant’s Final Proposal

Compensation Amount $93,496.82



Remand to Claims Administrator

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. Error in documentation review.

Error in calculation.

Error in RTP multiplier.

Error in Prior Spill-Related Payment Amount.

No error.

Comment (optional):

filed this Business Economic Loss claim under the Settlement Agreement. The Settlement Program awarded Claimant $93,496.82, pre-RTP. BP appeals. BP advances three points of error, two of which are overruled, and one of which requires a remand based on this record.

ksmithTypewritten Text2013-860

BP’s initial point of error complains of the classification of certain expenses as fixed rather than variable. The Settlement Agreement provides to the contrary and the Settlement Program faithfully applied the Agreement. The second point of error relates to officer compensation. Claimant’s 2009-2011 tax returns reflect officer compensation while Claimant’s P & L statements do not expressly show officer compensation at all. A memorandum from Claimant might have been helpful on this issue. It could be, for example, that payroll includes such compensation. This issue needs to be resolved and requires a remand on this and only this issue. BP’s final point of error relies on an interpretation of the Settlement Agreement that has been expressly rejected by the Supervising Federal Court in various Orders. Those Orders are controlling here and dispositive of this issue. The matter is remanded on the sole issue of officer compensation.




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Risk Transfer Premium 0




Risk Transfer Premium 1.50







No error.

Comment (optional): In this appeal BP challenges the accounting methodology used to calculate claimant's award.The adverse March 5,2013,decision of USDJ Barbier and his related April 9,2013,order are dispositive in this appeal and claimant must prevail.There is no error in the calculations made.Remand is not appropriate or warranted..The award is affirmed and the appeal of BP is hereby denied.





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II. DECISION







Compensation Amount $228,107


Prior Payment Offset $424,900






No error.

Comment (optional): My initial review suggests that the Claims Administrator was correct on the fixed v variable expense issue (leasehold expense). However, the "baseball" format limits me to selecting one of the final proposals. Thus, I have selected the Claimant's proposal, as BP's zero proposal is rejected. (Had BP proposed the amount determined by the Claims Administrator, I would have selected BP's final proposal.) (The other issues raised by BP were addressed by Judge Barbier's March 5th Order.)




Claimant Name Last/Name of Business

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No error.

Comment (optional): The Claims Administrator correctly analyzed claimant's expenses and income. The other grounds for BP's appeal are governed by the Court's previously Orders. Accordingly, the correct result is Claimant's Final Proposal.




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No error.

Comment (optional): This is an appeal by BP of a Business Economic Loss award to a Florida, based construction, repair, roofing and waterproofing business. In the Notice of Appeal, under the heading “BP Comment”, it is recited that the Award Amount was incorrectly calculated because the determination classified certain fixed expenses as


variable expenses. It further stated that there were significant inconsistencies and anomalies in the financial data provided by the Claimant and request was made for revision to correct those errors. However, in its memorandum in support of its Initial Proposal, BP only asserts error on the part of the Claims Administrator in (1) failing to assign Claimant’s revenue to the months in which it was actually earned; and (2) failing to subtract from revenue corresponding variable expenses incurred to generate that revenue. In a footnote, BP states that “[t]hese issues are governed by the Court’s prior orders and are appealed solely for the purposes of preserving further rights of appeal.” The memorandum makes no mention of erroneous classification of fixed expenses as variable in calculating Claimant’s compensation amount. Accordingly, that claim will be treated as having been withdrawn. Once again, assignments of error (2) and (3) raise the now rejected issue of matching of revenue and expenses and are, therefore, insupportable. Judgment must be entered herein in favor of the Claimant’s Final Proposal. It is so ordered.



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No error.

Comment (optional): The expenses at issue were properly classified by the Claims Administrator.





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No error.

Comment (optional): The Settlement Agreement is the law of the case arrangement that has been carefully followed by this panel member. In this Claim, the Administrator granted an RTP multiplier designation for this Claimant that does not meet the formal definition agreed upon by the Parties in Ex. 2. Therefore, this panel member finds for BP in this case.




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No error.

Comment (optional): The award in favor of claimant is affirmed. Claimant was properly classified as a tourist business since it clearly caters to the needs or wants of persons staying in places outside their home community. It is of no


consequence that the claimant leases out condos on behalf of local residents to tourists. The settlement agreement does not draw this type of distinction. Further, BP's arguments for the exclusion of certain revenue has no basis. There was no error in the classification of expenses and alleged financial discrepancies raised by BP were resolved. BP's other arguments have already been addressed and dismissed by the District Court.




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No error.

Comment (optional):





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II. DECISION







Compensation Amount $4,330,066.45








No error.

Comment (optional): Attached .pdf Decision Comment Decision was uploaded. Opinion uploaded.


BP argues that “some” of Claimant’s losses “may be related” to the federal moratoria. That is rebutted by Claimant’s F inal P roposal ( hereafter “C FP”) w hich ex plains that, in di scussion with t he Settlement Program, any such losses were excluded from its claim calculations. BP next argues generally that “the Settlement Program failed to apply f inancial data corrections to the periods in which the financial data reporting errors occurred,” and then argues specifically: (1) Annual y ear-end inventory adjustments should h ave be en r eassigned t o certain pr ior m onths. CFP counters that it in the ordinary course of business has always conducted a physical inventory in December and made adjustments to its financial statements accordingly. December is not a month chosen by it for inclusion in the Compensation Period. The Settlement Agreement allows a claimant discretion to select the Compensation Period most beneficial to its claim computation. (2) C laimant’s y ear-end adjustments t o sales f or s ales tax sh ould have been a llocated t o certain p rior months. CFP explains a special situation that arose from a State of Louisiana sales tax audit in December 2000 and, moreover, declares that the year-end adjustments to sales tax are posted in December of each year to reconcile with the numerous taxing authorities Claimant deals with, and are consistently recorded in t he ordinary course of business. December is not a month selected by Claimant for inclusion i n the Compensation Period. (3) Claimant recorded “virtually all” of its annual profit sharing expenses in December 2007 and 2008 but much l ess in D ecember 2 010 m aking 2007/ 2008 e xpenses “ understated i n pr ior m onths, w hich likely included months in the Benchmark Period.” CFP explains that all year-end profit sharing expenses and employee bonuses are made in the sole discretion of its owner and CEO, after actual annual results are known. T he S ettlement P rogram i nquired a bout how pr ofit s haring e xpenses w ere r ecorded a nd determined that the procedure was proper. Employee bonuses are not “earned” until the owner determines whether t hey should be paid. These p ractices a re p art o f C laimant’s l ong-standing o rdinary c ourse of business. Lastly, B P ar gues that C laimant’s o perating ex penses f or “ shop supplies/materials” sh ould h ave b een classified b y the Program as “variable” r ather than “fixed.” B P acknowledges t hat Attachment A to Exhibit 4D of the Settlement Agreement includes “Supplies” in its catalog of “Fixed Costs” but points to the inclusion of “Cost of Goods Sold-Variable” in the catalog of “Variable Costs.” Given the over-arching theme o f t he S ettlement A greement t hat i t sh ould b e i nterpreted m ost f avorably t o cl aimants an d t he discretion accorded to the Claims Administrator to implement the program, BP’s argument in this regard is unavailing. The Panel sees no justification for a remand and upholds the award to Claimant.




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No error.

Comment (optional): Two of BP's grounds for appeal are the familiar "smoothing over" arguments consistently rejected in orders of the Court. However, its third argument, of misclassified expenses, requires greater scrutiny. BP correctly notes that Claimant listed "office supplies, general" as variable, yet classified "office supplies, sales" as fixed. This


panelist would have appreciated a reply or explanation from Claimant on this issue, but none could be found in the record. As a result, the matter should be remanded for reexamination of this single issue of the classification of "office supplies, sales."



Claimant Name Last/Name of Business First Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned


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): This appeal presents an interesting issue as to which factors may be considered in the Decline Only Revenue Pattern causation test to show why revenue did not rise back up to the "required" level in 2011. Both parties make good arguments. On balance, I am more persuaded by Claimant that the list of factors to be considered is not exclusive ("such as"), and I reject BP's attempt to limit the factors to Claimant-specific factors (One of the examples is the entry of a competitor, which in certain markets and/or professions would effect persons and/or entitites beyond the Claimant.) The denial is overturned and the matter is remanded in order for the Claims Administrator to process the claim using the Decline Only Revenue Pattern test.





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No error.

Comment (optional): The award in favor of claimant is affirmed. The company explained that "miscellaneous income" was revenue from customers that were not under long term contracts and the the income was listed on the company's tax return. With respect to the classification of supplies, the company indicated the supplies in question were general expenses for its office and warehouse and not for a particulair job. Both of these explanations are reasonable and support an award in claimant's favor.





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No error.

Comment (optional): The issues raised by BP on this appeal are governed by Judge Barbier's order of March 5, 2013.




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No error.

Comment (optional): Most of the issues raisede by BP have been addressed by Judge Barbier. Regarding the treatment of sales commissions, I agree with BP that the Settlement Agreement suggests that this is a variable and not a fixed


expense. Thus, this matter is remanded in order for the Claims Administrator to look at this expense again. Claimant is invited to submit any additional documentation that would assist the Claims Administrator in properly classifying this expense.




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II. DECISION



Compensation Amount $1,826.588.59












No error.

Comment (optional): see written reasons submitted by other panelist This appeal by BP of an award to a concrete and related business in La., was assigned to a three-member panel. the sole issue raised by BP is the alleged misclassification by the


Administrator of "supplies" in claimant's profit and loss statements as a fixed expense. In so doing, BP notes that under the settlement agreement there is an item labeled "supplies" which is designated a fixed expense.BP asserts, however, that the "supplies" item in the settlement agreement is intended to cover such items as office supplies and does not include items used to produce, deliver or install product. BP surmises that the "supplies" on claimant's P&L statements are used to produce, deliver and/or install product and are therefore part of claimant's COGS. Claimant responds that the "supplies" on its P&L's are are indeed supplies used in its physical plant such as coffee, cleaning supplies etc. and are not part of COGS. There is nothing in the record to allow this panel to overturn the decision of the Administrator on this issue without engaging in speculation. The panel unanimously finds that accepting claimant's final proposal is the appropriate decision.




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No error.

Comment (optional): BP makes four arguments in this appeal of a BEL claim. Two of its arguments amount to the same variable expense and smoothing over issues that have been consistently rejected by orders of the court. Its third argument is that "tools" should have been considered a variable, and not a fixed expense. This argument is undermined by Exhibit 4D, which specifically provides otherwise. The same result applies to its fourth argument


re "miscellaneous expenses." Not only is this category also deemed as fixed under Exhibit 4D, but also a close review of this record reflects detailed examinations and communications by the Claims Administrator with Claimant's representatives concerning this very issue. No alternative basis for remand exists.




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No error.

Comment (optional):

Several of the issues raised by BP have been addressed by Judge Barbier. Additionally, the Claims Administrator properly considered government payments as revenue. Finally, BP did not offer sufficient evidence to overturn the treatment of certain expenses.





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No error.

Comment (optional):

filed this Business Economic Loss claim under the Settlement Agreement. The Settlement Program awarded $96,928.92, pre-RTP. BP appeals.


On appeal, BP asserts three points, only the first of which has merit: (1) the Settlement Program erred by (1) failing to reconcile substantial discrepancies between Claimant’s federal tax returns and the profit and loss statements provided by Claimant; (2) failing to allocate year-end bonuses versus the entire year; and (3) failing to subtract variable expenses incurred in generating revenue from the revenue produced. BP cites multiple discrepancies in its briefing. Claimant even agrees with respect to one large category. Despite Claimant’s willingness to concede the point on a partial basis, there are too many questions unanswered. This appeal is remanded to the Claims Administrator on this and only this point of error. BP’s second and third points rely on interpretations of the Settlement Agreement. This has, on multiple occasions, been rejected by the Supervising Federal Court. The various Orders by the Court are controlling here and are dispositive of these two points of error.




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No error.

Comment (optional): BP's "smoothing and matching" arguments are governed by the Court's March 5, 2013 order. BP's argument that "cost of insurance" should have been classified as variable instead of fixed is adequately refuted by the Claimant explaining that this item is a general insurance policy (liability, equipment, etc.) and the Settlement Agreement. There is no error.




Claimant Name Last /Name of Business First

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Claim Type VoO Charter Payment

Law Firm

Vessel Name Hull ID

Federal Registration

Number

State Registration

Number

II. DECISION

Denial Upheld

Denial Overturned






No error.

Comment (optional):





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Vessel Name

Hull ID


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Number

II. DECISION

Denial Upheld

Denial Overturned






No error.

Comment (optional): Claimant in this VoO claim appeals denial of an award under that program. Claimant has established his vessel operated under auspices of the VoO program and was paid therefor during the months of July thru Oct. 2010, before the VoO program concluded on Nov. 26, 2010. Although Claimant did not retain its copy of the MVCA (and nothing in the Settlement Agreement requires retention or submission by a Claimant of an MVCA, just proof of its execution), all records reviewed preponderate that an MVCA was in fact executed, and that the contract was with Danos and Curole, an entity that, while not specifically enumerated as one of the 5 presumed BP subcontractors under the Settlement Agreement, nevertheless held itself out in writing that it was administering part of the VoO program "for BP." I find that said contractor is one of the "or any other subcontractors" mentioned in the Settlement Agreement as eligible contractors, and that Claimant is thus entitled to recovery under the VoO program..




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II. DECISION





Prior Payment Offset $140,617.42










No error.

Comment (optional): Written reason emailed to Appeals Coordinator.


BOWERS CONSTRUCTION SERVICES, INC.

This claim presented a novel issue for this panelist. BP’s Initial Proposal Memorandum statedthat BP asserts that the Compensation Amount should be $147,000.00 instead of the Claimant’sInitial Compensation Amount of $175,227.76. However, BP’s entry on the portal was $0. Aninquiry about this discrepancy was made to the Claims Administrator. It’s response was:

“We do see instances where BP enters $0 on the portal for the Final Proposal butputs a different number in the memo. Our policy is that what BP puts in theportal controls.”

After reviewing the file materials, this panelists determined that the Claims Administratorappears to have properly categorized Claimant’s fixed and variable expenses. Given the choicebetween an award of $0 or $175,227.75, the Claimant’s Final Proposal is the correct result.




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No error.

Comment (optional):

BP appeals this award raising those same "matching" issues previously decided adversely to it by Judge Barbier. It also contends claimant and the Administrator determined that some of claimant's labor expense was a variable COGS instead of "payroll", which is part fixed and part variable under the settlement agreement. Claimant states that it uses contract labor to install commercial poultry equipment and the "contract labor"


involved here was properly treated as a variable expense.The settlement agreement does treat contract labor as a variable expense--exhibit 4D. Nothing in the record suggests an error in this treatment of the labor expense here. Claimant's final proposal is accepted.




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No error.

Comment (optional): BP candidly admits that the only basis for its appeal is its “revenue smoothing” argument rejected by Court Order. That Order is binding on the appellate judges. Independent review of the record and the arguments confirms documentation supporting the award to Claimant, which would be approved under the terms of the Settlement Agreement even absent the language of the Court Order.





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No error.

Comment (optional): Except for one, BP's grounds for appeal are governed by the prior Orders of the Court. As for the other issue, the Claims Administrator correctly characterized Claimant's expenses. If BP were correct on the expense issue, the compensation amount would be reduced by $6950, yet BP's final proposal is $0. Claimants Final Proposal is the correct result.





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II. DECISION

Denial Upheld

Denial Overturned






No error.

Comment (optional): Claimant's appeal is granted and this matter is remanded for further consideration. PolicyID302 stated that the NAICS Code used on the 2010 return is not conclusive and that no presumptions should be made regarding the nature of Claimant's business. A review of ALL documents in the file, including Claimant's affidavit, leads me to conclude that Claimant doesn't fall within the oil and gas exclusion. BP made a compelling case for reaching the oppositie conclusion. However, I find that the evidence tilts slightly in favor of the Claimant. Thus, this matter is remanded for further consideration in light of my finding that the oil and gas exclusion does NOT apply to Claimant.





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No error.

Comment (optional): BP raises appeal issues that are controlled by prior court orders and thus are denied. award is affirmed to Claimant.




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No error.

Comment (optional):





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No error.

Comment (optional): See attached opinion uploaded in the portal.


DWH: Claim ID:

BP appeals this Business Economic Loss award to a company headquartered in , which repairs and refurbishes containers and vehicles for Waste Management

Companies throughout the Gulf Coast region. The appeal alleges error on the part of the Claims Administrator in (1) failing to evaluate whether some of Claimant’s alleged losses were moratoria related; (2) by not assigning revenue to the months in which it was earned; (3) by not subtracting variable expenses from the revenue generated by those expenses; and (4) failing to assign financial data corrections to the periods in which the errors actually occurred.

It is noted, at the outset, that assignments (2) and (3) are foreclosed by prior orders and rulings of Judge Barbier. BP contends, in assignment (4), that Claimant failed to record certain revenue it earned in 2010, apparently due to an accounting error which was not realized until the end of 2011. At that point, it recorded a $125,253 correction. According to BP, this omission of revenue earned in 2010 but not recorded until the following year “may have understated Claimant’s post-Spill Financial Performance and improperly inflated its award.” Although this point might well be dismissed on the same basis as assignments (2) and (3), above, Claimant, in response, completely refutes that claim. It notes that while the August, 2010 revenue report submitted by the Claimant was $343,480, the revenue figure recorded by the Claims Administrator for that month was $227,686.67. Thus, the error was noted and the correct figure for that month was utilized in the Claims Administrator’s calculations.

Appellate assignment (1) has to do with moratorium claims. BP claims that this business appears to fall within an industry type subject to automatic review by the Claims Administrator for potential moratoria losses. Pointing to Settlement Agreement Exhibit 19, it asserts that Claimant’s NAICS code is 811310, which indicates that Claimant engages in commercial and industrial machinery repair and maintenance, construction machinery repair and maintenance, and/or industrial machinery repair and maintenance “potentially covered by the Moratorium.” It further notes that said code is specifically included as an industry type for which automatic review for potential moratoria losses is required and that there is no evidence that the Claims Administrator performed the required analysis.

At the outset, it is clear that Section 3 of the Settlement Agreement deals with Expressly Reserved Claims. Section 3.3 states that Claims of Natural Persons and Entities for MORATORIA LOSSES, “are not recognized or released under the Agreement, and are reserved to the Economic Class Members . . .” Settlement Agreement Exhibit 16 defines MORATORIA LOSSES as “any loss whatsoever caused by or resulting from federal regulatory action or inaction directed at offshore oil industry activity – including shallow water and deep water activity – that occurred after May 28, 2010, including the federal moratoria on offshore permitting and drilling activities imposed on May 28, 2010 and July 12, 2010 . . .”

Claimant responds by asserting that Exhibit 19 also includes welding repair services, which is not an industry type subject to such question. It states simply that it is “a welding repair service that repairs the bottom of garbage dumpsters” and does not provide any support services to the oil and gas industry. Indeed, in its sworn BEL claim form, in response to question 10, Claimant denied providing significant services, goods, and/or supplies to businesses in the offshore oil and gas industry in the Gulf of Mexico. It stated further that its total revenues from the provision of such services equaled zero. Consequently, this assignment of error likewise cannot be sustained.

A brief review of the Claims Administrator’s analysis of Claimant’s underlying financial records and data, as recorded in the Eligibility Notice, reveals that it is accurate.

Accordingly, judgment must be entered herein in favor of Claimant’s Final Proposal.

It is so ordered.

Decision: July 9, 2013



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No error.


Comment (optional): In this VoO payment appeal, Claimant has been offered payment as a "non-working" VoO participant on the basis that the charterer he worked for for approximately 100 days helping with spill operations, National Response Corporation, was not an authorized "charterer" under Section 38.17 of the Settlement Agreement. Claimant has provided evidence through invoices, trip sheets, and other relevant data, that his vessel did in fact perform these operations under an executed MVCA agreement. I find that National Response Corporation qualifies as a "charterer" under Section 38.17, which includes under said definition "any other BP subcontractor utilized by BP to implement the VoO program."




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No error.

Comment (optional): The Claims Administrator correctly analyzed claimant's financials and correctly categorized claimant's expenses. BP's other grounds for appeal are covered by the Court's prior rulings. Accordingly, Claimant's Final Proposal is the correct result.





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No error.

Comment (optional):

filed this Business Economic Loss claim under the Settlement Agreement. The Settlement Program awarded Claimant $66,027.38, pre-RTP. Claimant made a final proposal in that amount. BP countered with a final proposal of $60,000 (see BP’s Final Proposal).


BP asserts two arguments in favor of a remand or the lower award: (1) the Program misclassified “Bank Charges” as a fixed, rather than variable, expense; and (2) the Program failed to subtract variable expenses from the revenue those expenses generated. Both arguments fail. There is no evidence in the record demonstrating that the “Bank Charges” being complained of are credit card fees. At most, there is an allegation that the charges “are unusually high and likely reflect credit card fees.” This is supposition, not evidence. BP’s second point is based upon an interpretation of the Settlement Agreement that has been expressly rejected by the Supervising Federal Court on multiple occasions. The various Orders entered by the Court on this topic are controlling here. I find for the Claimant.



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No error.

Comment (optional):

is a law firm in . It filed this Business Economic Loss claim under the Settlement Agreement. The Settlement Program awarded $1,300,486.24 to Claimant. BP appeals. All of BP’s appellate points are based upon an interpretation of the Settlement Agreement that has been rejected by the Supervising Federal Court in its Orders of March 5, April 5, and April 9, 2013. Those Orders are


binding on this Panel and are dispositive of this appeal. We uphold the award to Claimant. The Appeal Panel, having reviewed the record and conferred, unanimously finds that the Claim Administrator's award was correct and should be affirmed. Written reasons emailed to Appeals Coordinator

WRITTEN REASONS FOR PANEL’S DECISION

CLAIM ID 74221

The Claimant is a law firm located in . The Settlement Programawarded Claimant the sum of $1,300,468.24 in pre-RTP losses. BP appealed on threegrounds. First, it claims the Claims Administrator erred by treating payments received asrevenue earned entirely during the month of receipt. Second, the Claims Administrator failed tosubtract variable expenses from the revenue they generated. BP admits that the above issuesare governed by Judge Barbier’s prior Orders. Thus, BP’s appeal on these issues is withoutmerit.

Finally, BP alleges the Claims Program failed to properly determine whether some ofClaimant’s expenses were fixed or variable. The Panel unanimously holds that the classificationof Claimant’s expenses was handled correctly by the Claims Administrator. The Panel wouldfurther point out that even by BP’s calculation, its proposed reclassification would subtract atotal of $51,545.00 (pre-RTP) from the Claimant’s Final Proposal. BP’s Final Proposal is $0. Obviously, the Claimant’s Final Proposal, under the baseball process, is the appropriate choice. This Panel unanimously rules in favor of the Claimant’s Final Proposal.




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No error.



DWH:

Claim ID:

In this appeal of a Business Economic Loss award to an based private law practice and after noting that the Claimant is located more than 100 miles from the Gulf of Mexico, BP assigns error to the Claims Administrator in (1) failing to measure Claimant’s revenue in the months in which it was actually earned; and (2) failing to subtract variable expenses incurred in generating revenue from the revenue which it produced. The prefatory statement regarding Claimant’s location is meaningless in view of the fact that it is clearly located in Zone D and just as clearly passed the causation test prescribed by the Settlement Agreement. The issues raised in points (1) and (2) have been heard and determined adversely to BP by Judge Barbier in prior orders. It acknowledges as much in its Final Proposal and states that it has appealed these issues solely for the purposes of preserving further appellate rights. For these reasons, this appeal cannot be sustained. A brief review of the Claims Administrator’s analysis of Claimant’s financial records, as reported in the Eligibility Notice, finds all to be in order.

Accordingly, judgment must be entered herein in favor of Claimant’s Final Proposal.

It is so ordered.




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Claim Type Individual Economic Loss

Law Firm

II. DECISION















No error.

Comment (optional): Interestingly, both Claimant and BP disagreed with the Claims Administrator's award. I agree with Claimant's interpretation of the Rules Governing The Appeals Process. Thus, I accept the new documentation; remand is not necessary; and I adopt the Claimant's calculation.





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No error.

Comment (optional): BP appeals based on matching arguments which have been decided adversely to it by Judge Barbier. It also contends the Administrator included governmental agricultural program payments in its calculations. As best this panelist can tell all appeal panel members who have been presented with this issue have determined the Claims Administrator properly considered such payments as revenue. Claimant's final proposal is accepted.





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No error.

Comment (optional): BP appeals the award to this farm, arguing that the Settlement Program failed to match revenue and expenses to the months in which it was earned and that 2008 sales of wheat were improperly included since the farm did not sell wheat in 2010.


The first argument is governed by Judge Barbier's March 5, 2013 order which reflected the "smoothing and matching" argument BP advances. After a thorough review of Claimant's financial records, I can find no basis to overturn the Claims Administrator's decision, even less to support BP's suggested award of $0.00. The award to the Claimant is hereby affirmed.




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No error.

Comment (optional):

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

Settlement Program awarded $513,081.50, pre-RTP. BP appeals. On appeal, BP advances four points of error: (1) the Program misclassified several of Claimant’s expenses; (2) the Program erroneously excluded certain income from the calculations of Claimant’s revenue; (3) the Program


failed to allocate year-end data to the months in which the data reporting errors occurred; and (4) failed to subtract variable expenses from the revenue the expenses generated. See, BP’s Initial Proposal, adopted by reference in BP’s Final Proposal. There is no merit to any of the points of error. First, BP argues that several expenses were misclassified. The Settlement Agreement itself, however, supports the classification of the Settlement Program. BP is a party to that Agreement and cannot now redefine its terms. BP’s second point of error borders on the frivolous. It assets errors based on the exclusion from December 2010 revenue of $97,191.73 in “Unknown Income” category. BP states “Neither Claimant nor the Settlement Program appear to know what this significant income consists of or where it came from….” BP’s Initial Proposal, at 7. This is false. See, Exhibit A, Memorandum in Support of Final Proposal. BP’s final two points of error rest on an interpretation of the Settlement Agreement that has been expressly rejected by multiple Orders of the Supervising Federal Court. Those Orders are controlling here and are dispositive of the points. The award to Claimant is affirmed.



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No error.

Comment (optional): The Claim Administrator's original determination of zone/RTP multiplier was correct. Therefore, the revised award is reversed.




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II. DECISION















No error.

Comment (optional): BP appeals this BEL claim by a real estate management company on three grounds. First, that certain charges such as contract labor and maintenance were wrongly classified as fixed when they vary in proportion to the Claimant's economic activity. The Settlement Agreement clearly lists such charges as fixed. Secondly, BP argues


certain suspicious discrepancies between Claimant's bank statements and its tax returns and P and L statements, noting that income seems too concentrated in very short periods of the year. The record reflects that the Claims Administrator carefully reviewed these items and satisfied itself as to their accuracy. It seems to this panelist that this is simply a more creative argument by BP to reintroduce its long rejected "smoothing over" argument. BP's last argument is in fact the "smoothing over" attack that has been consistently rejected in Judge Barbier's orders. With BP holding at zero as its final proposal, this panelist's decision is quite an easy one.




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II. DECISION















No error.

Comment (optional): In this single issue appeal BP again challenges the accounting methodology used to calculate the award to claimant.The adverse March 5,2013, order of USDJ Barbier and his related order of April 9,2013, are dispositive of this issue and claimant must prevail. There is no error in the calculations made and the requirements of the Settlement Agreement are fully met.Remand is not appropriate or warranted.The award is affirmed and the appeal of BP is hereby denied.





Middle



Law Firm

II. DECISION















No error.

Comment (optional): Other than the now-familiar "revenue smoothing/expense matching" argument, which has been resolved adversely to BP by Judge Barbier's serial orders on point, BP argues in this appeal that the Settlement Program misclassified one of Claimant's variable expenses as fixed. Claimant responds through its accountant that the single line item in question "results in less than a 2.0% difference to the total claim amount." Because BP's Final


Proposal is for an award of "$0" and appeal panelists are limited in authority to making an "either/or" "baseball" choice between the two final proposals, the Eligibility Notice compensation amount of $119,518.00, which is Claimant's Final Proposal amount, must be selected. A remand is not deemed warranted.




Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned






No error.



Claim ID

Claimant, a jewelry store located in , appeals the denial of its Business Economic Loss claim upon the assertion that the Claims Administrator utilized incorrect income statements in determining whether it passed the requisite causation test and thus was entitled to recover under the Settlement Agreement. Specifically, it contends that an income statement which only records revenue for the first 6 months of the year 2011 was utilized, resulting in its failure of the requisite later upturn in the V Shaped Revenue Pattern and denial of the claim. A careful examination of the June 13, 2011 income statement, together with monthly income statements for the entirety of that year, as well as other exhibits, memorandum and support of appeal attached to Claimant’s brief, support this claim.

Counsel for BP has advised that it does not object to this claim being remanded for a causation determination based upon complete financial documents, as well as a determination regarding what compensation, if any, Claimant might be entitled to under the Settlement Agreement.

Accordingly, for the foregoing reasons, judgment will be entered herein overturning the denial of this claim and remanding it to the Claims Administrator for further consideration.

It is so ordered.



Claimant Name


First

Middle



Law Firm

II. DECISION

Denial Upheld

Denial Overturned






No error.

Comment (optional): Claimant makes a valiant effort to expand the Settlement Agreement to include Claimant as a participant in the VoO program. But I am bound by the plain words of the Agreement as to who is considered a participant. Claimant was not, thus the revenue earned transporting workers was properly included in the causation calculation.





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Law Firm

Vessel Name Hull ID


Number

State Registration

Number

II. DECISION

Denial Upheld

Denial Overturned






No error.

Comment (optional): I am aware that another claimant has applied for discretionary review by Judge Barbier on the issue presented in this appeal. The majority of Panelists have ruled in favor of BP on this issue. In the interest of consistency, I deny Claimant's appeal.





First

Middle


Claim Type Seafood Compensation Program

Law Firm

II. DECISION















No error.

Comment (optional):

filed this Shrimp Vessel Owner Claim under the Settlement Agreement. The Settlement Program awarded $33,751.06, pre-RTP and other factors. In choosing between the two proposals, the key issue is whether was a freezer vessel or an ice vessel. If it was a freezer vessel, then BP’s proposal is correct. If an ice vessel, then Claimant is correct.


The Settlement Program determined it was a freezer vessel. The record supports this finding. The critical evidence is found at Exhibits 3 and 4 of BP’s Initial Proposal (adopted by reference in the Final Proposal). Exhibit 3 is the Claimant’s Claim Form. At page 3 of that form, Claimant characterized the vessel type as “Freezer.” Exhibit 4 is a repair receipt dated May 15, 2009 for repairs to the freezer system. The award of the Settlement Program, embodied in BP’s Final Proposal, is upheld.




First

Middle



Law Firm

II. DECISION















No error.

Comment (optional): The award in favor of claimant is affirmed. The now familiar arguments by BP concerning matching expenses and income,and assigning revenue when earned have already been rejected by the District Court, as these arguments are not in accord with the terms of the settlement agreement.


BP also contends that certain costs relating to tools and machinery

Documents

I. CLAIMANT AND CLAIM INFORMATION › docs › ...The Settlement Agreement is the law of the case arrangement that has been carefully followed by this panel member. In this Claim,