IN THE UNITED STATES COURT OF APPEALS FOR …...2019/03/21 · No. 2179, Civ. A No. 2:17-CV-13224 The undersigned counsel of record certifies that the following listed persons and

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 18-30394

BP EXPLORATION & PRODUCTION, INCORPORATED; BP AMERICA PRODUCTION COMPANY; BP P.L.C.,

Requesting Parties-Appellants,

v.

CLAIMANT ID 100281817,

Objecting Party-Appellee.

_______________________

On Appeal from the United States District Court Eastern District of Louisiana

Civil Action No. 2:17-CV-13224 _______________________

BRIEF OF OBJECTING PARTY-APPELLEE DAVID WEST

_______________________

Stephen H. Kupperman, (LA 7890)David N. Luder, (LA 33595) BARRASSO USDIN KUPPERMAN FREEMAN & SARVER, LLC 909 Poydras Street, 24th Floor New Orleans, LA 70112 Telephone: (504) 589-9700 Facsimile: (504) 589-9701 Attorneys for David West

August 3, 2018

Case: 18-30394 Document: 00514586068 Page: 1 Date Filed: 08/03/2018

i

CERTIFICATE OF INTERESTED PERSONS

In re Deepwater Horizon, No. 17-30987 MDL

No. 2179, Civ. A No. 2:17-CV-13224

The undersigned counsel of record certifies that the following listed persons and entities described in the fourth sentence of Rule 28.2.1 have an interest in the outcome of this case. These representations are made in order that the judges of this Court may evaluate possible disqualification or recusal.

BP ENTITIES:

The Requesting Parties – Appellants are BP Exploration & Production Inc., BP America Production Co., and BP, plc (“BP Entities” or “BP”).

ATTORNEYS FOR BP ENTITIES:

Lisa S. Blatt Jeffrey Bossert Clark David J. Weiner Aaron L. Nielson Robert Leider Kirkland & Ellis LLP William C. Perdue 655 Fifteenth Street, NW ARNOLD & PORTER, Washington, DC 20005 KAYE SCHOLER LLP (202) 879-5000 601 Massachusetts Ave., NW Washington, D.C. 20001 (202) 942-5000

DAVID WEST:

The Objecting Party – Appellee is David West. ATTORNEYS FOR DAVID WEST:

Stephen H. Kupperman David N. Luder BARRASSO, USDIN, KUPPERMAN, FREEMAN & SARVER, L.L.C. 909 Poydras Street, 24th Floor New Orleans, LA 70112 (504) 589-9728


ii

RELATED CLASS PLAINTIFFS:

The overarching class suit of which this appeal is a part was brought by fifteen class representatives: Lake Eugenie Land & Development, Inc.; Bon Secour Fisheries, Inc.; Fort Morgan Realty, Inc.; LFBP # 1, LLC d/b/a GW Fins; Panama City Beach Dolphin Tours & More, LLC; Zeke’s Charter Fleet, LLC; William Sellers; Kathleen Irwin; Ronald Lundy; Corliss Gallo; John Tesvich; Michael Guidry; Henry Hutto; Brad Friloux; and Jerry J. Kee.

The class representatives represent the Economic and Property Damages Class that the District Court certified, for settlement purposes only, on December 21, 2012. See MDL 2179, D.E. 8138, 8139. The absent class members together comprise a “large group of persons [who] can be specified by a generic description, [such that] individual listing is not necessary.” 5th Cir. R. 28.2.1.

ATTORNEYS FOR CLASS PLAINTIFFS (PLAINTIFFS’ STEERING COMMITTEE/CLASS COUNSEL):

Stephen Jay Herman (Co-Lead Class Counsel) Soren E. Gisleson Herman Herman & Katz, LLC 820 O’Keefe Avenue New Orleans, LA 70113 (504) 581-4892

James Parkerson Roy (Co-Lead Class Counsel) Domengeaux, Wright, Roy & Edwards Suite 500 556 Jefferson Street Lafayette, LA 70501 (337) 233-3033

Elizabeth Joan Cabraser Lieff, Cabraser, Heimann & Bernstein, LLP 29th Floor 275 Battery Street San Francisco, CA 94111 (415) 956-1000

Samuel Issacharoff New York University School of Law 40 Washington Square, S., Suite 411J New York, NY 10012 (212) 998-6580


iii

Brian H. Barr Levin, Papantonio, Thomas, Mitchell, Echsner & Proctor, PA 316 South Baylen Street, Suite 600 Pensacola, FL 32502 (850) 435-7045

Jeffrey A. Breit Breit Drescher Imprevento, P.C. 999 Waterside Drive, Suite 1000 Norfolk, VA 23510 (757) 670-3888

Philip F. Cossich, Jr. Cossich, Sumich, Parsiola & Taylor, LLC 8397 Highway 23, Suite 100 Belle Chasse, LA 70037 (504) 394-9000

Robert T. Cunningham Cunningham Bounds, LLC 1601 Dauphin Street, P.O. Box 66705 Mobile, AL 36660 (251) 471-6191

Alphonso Michael “Mike” Espy Morgan & Morgan, P.A. 188 East Capitol Street, Suite 777 Jackson, MS 39201 (601) 949-3388

Calvin C. Fayard, Jr. Fayard & Honeycutt 519 Florida Avenue, SW Denham Springs, LA 70726 (225) 664-4193

Ervin A. Gonzalez Colson Hicks Eidson 255 Alhambra Circle, Penthouse Coral Gables, FL 33134 (305) 476-7400

Robin L. Greenwald Weitz & Luxenberg, PC 700 Broadway New York, NY 10003 (212) 558-5802

Rhon E. Jones Beasley, Allen, Crow, Methvin, Portis & Miles, P.C. 218 Commerce Street, Montgomery, AL 36104 (334) 269-2343

Matthew E. Lundy Lundy, Lundy, Soileau & South, LLP 501 Broad Street Lake Charles, LA 70601 (337) 439-0707

Michael C. Palmintier Degravelles, Palmintier, Holthaus & Frugé 618 Main Street Baton Rouge, LA 70801-1910 (225) 344-3735

Joseph F. Rice Motley Rice LLC 28 Bridgeside Blvd. Mount Pleasant, SC 29464 (843) 216-9159


iv

Paul M. Sterbcow Lewis, Kullman, Sterbcow & Abramson 601 Poydras Street, Suite 2615 New Orleans, LA 70130 (504) 588-1500

Scott Summy Baron & Budd, P.C. 3102 Oak Lawn Avenue, Suite 1100 Dallas, TX 75219 (214) 521-3605

Conrad S.P. “Duke” Williams Williams Law Group 435 Corporate Drive, Suite 101 Maison Grand Caillou Houma, LA 70360 (985) 876-7595

Mikal C. Watts*1 Watts Guerra Craft, LLP Four Dominion Drive, Building 3, Suite 100 San Antonio, TX 78257 (210) 447-0500

/s/ Stephen H. Kupperman Attorney of Record

* Mr. Watts has resigned as counsel for Class Plaintiffs. In the interest of completeness, however, his prior involvement has been noted here for purposes of evaluating possible disqualification or recusal.


v

STATEMENT REGARDING ORAL ARGUMENT

David West respectfully submits that oral argument will not aid the Court’s

resolution of this appeal. The present dispute easily is resolved by a straightforward

application of the terms of the Deepwater Horizon Economic and Property Damage

Settlement Agreement, the validity of which this Court has affirmed many times.

Oral argument, therefore, is unnecessary.


vi

TABLE OF CONTENTS

INTRODUCTION ..................................................................................................... 1

STATEMENT OF JURISDICTION.......................................................................... 3

STATEMENT OF ISSUES ....................................................................................... 3

STATEMENT OF THE CASE .................................................................................. 4

A. BP Agrees To The E&P Settlement To Avoid Litigating Thousands Of Claims Arising From The Deepwater Horizon Disaster. ................................................................................... 4

B. Through The E&P Settlement, BP Agrees That

Individual Economic Loss Claims Will Be Evaluated Pursuant To Objective Formulas And, For Certain Claimants, Causation Will Be Presumed. ............................................. 5

C. West Suffers Lost Earnings Under The Settlement’s

Agreed Formulas, And Applies For And Receives Compensation Through The Settlement Program. ................................ 6

SUMMARY OF ARGUMENT ................................................................................. 7

STANDARD OF REVIEW ....................................................................................... 9

ARGUMENT ............................................................................................................. 9

I. WEST UNDOUBTEDLY SUFFERED A LOSS UNDER THE FORMULAS PROVIDED IN EXHIBIT 8A, THE ONLY DEFINITION APPLICABLE TO THIS MATTER. ...................................... 9

A. Under the Plain Terms of Exhibit 8A, West Suffered A

Loss ...................................................................................................... 10

B. BP Specifically Agreed To This Definition Of Loss And It Controls Here. .................................................................................. 11


vii

C. BP’s Analogy To Dormant Business Cases Is

Unpersuasive Under This Court’s Precedent ...................................... 14

D. If BP’s Subjective Standard Of Loss Somehow Applies, West Is Still Entitled To The Awarded Compensation. ...................... 17

II. BP’S UNDERSTANDING OF THE ATTESTATION

REQUIREMENT CONTRAVENES THE DECISIONS OF THIS COURT AND THE DISTRICT COURT, AS WELL AS THE PLAIN MEANING OF THE SETTLEMENT AGREEMENT. ................... 20

A. West In Good Faith Attested To The Accuracy of the

Documentation He Provided. .............................................................. 20 B. If Any Party has Violated The Covenant Of Good Faith

and Fair Dealing, It Is BP. ................................................................... 23 C. If BP’s Theory Somehow Controls, The Result Is No

Different. ............................................................................................. 24

III. BP’S NEW VISION OF THE SETTLEMENT AGREEMENT IS UNTENABLE AND FUNDAMENTALLY UNFAIR. ................................ 26

IV. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN DENYING DISCRETIONARY REVIEW. ............................................. 27

CONCLUSION ........................................................................................................ 29


viii

TABLE OF AUTHORITIES

CASES

Cia Anon Venezolana De Navagacion v. Harris 374 F.2d 33 (5th Cir. 1967) ........................................................................... 24

Claimant ID 100187856 v. BP Expl. & Prod., Inc.

No. 17-30167 (5th Cir. Jan. 29, 2018) ......................................... 12, 15, 16, 17 Claimant ID 100212278 v. BP Expl. & Prod., Inc.

848 F.3d 407 (5th Cir. 2017) ......................................................................... 28 Ctr. for Biological Diversity v. BP Am. Prod. Co.

704 F.3d 413 (5th Cir. 2013) ........................................................................... 4 In re Deepwater Horizon (“Deepwater Horizon III”)

744 F.3d 370 (5th Cir. 2014) ..................................................................passim In re Deepwater Horizon

No. MDL 2179, 2013 WL 10767663 (E.D. La. Dec. 24, 2013) ............. 21, 27 In re Deepwater Horizon 753 F.3d 509 (5th Cir. 2014) .................................................................. 22, 23 Fontenot v. Mesa Petroleum Co.

791 F.2d 1207 (5th Cir. 1986) ................................................................. 12, 24 Fortier v. Hamblin

610 So. 2d 897 (La. App. 1st Cir. 1992) ....................................................... 14 Lake Eugenie Land Dev., Inc. v. BP Expl. & Prod.

785 F.3d 986 (5th Cir. 2015) ......................................................................... 12 MassMutual Asset Finance LLC v. ACBL River Operations, LLC

220 F. Supp. 3d 450 (S.D.N.Y. 2016) ........................................................... 12 Thomas v. Louisiana

534 F.2d 613 (5th Cir. 1976) ......................................................................... 14 Trinity Universal Ins. Co. v. Cowan

945 S.W.2d 819, 823 (Tex. 1997) ................................................................. 13


ix

Washington v. McCauley 62 So. 3d 173 (La. App. 2d Cir. 2011) .......................................................... 13

OTHER AUTHORITIES

37 APD 2017-370 (Mar. 23, 2017) .......................................................................... 16 Restatement (Second) of Contracts .......................................................................... 24


1

INTRODUCTION

In this appeal, BP yet again “seeks to dismantle the complex framework of

exemptions, presumptions, and formulas that allow business claimants to submit

evidence of their income and expenses before and after the BP-caused disaster.” In

re Deepwater Horizon (“Deepwater Horizon III”), 744 F.3d 370, 376 (5th Cir.

2014). BP’s efforts have been rejected by this Court and others time and again. The

present appeal should end no differently.

The subject of BP’s latest attempt is Appellee David West, a professional

basketball player who was a member of the then-New Orleans Hornets at the time

of the Deepwater Horizon Spill. It is uncontested that West suffered “Lost Earnings”

as that term is defined under Exhibit 8A to the Deepwater Horizon Economic and

Property Damage Settlement Agreement (“E&P Settlement”). It is likewise

uncontested that West is within the class of claimants for whom irrefutable causation

is presumed by the E&P Settlement. Under the unambiguous terms of that

agreement, therefore, West is entitled to compensation. Following those clear terms,

the Settlement Program rightly awarded West compensation for his losses. That

decision has been affirmed by multiple levels of review.

BP, however, has decided it would prefer not to pay West’s claim. Because

West’s claim is compensable under the terms of the E&P Settlement, BP now argues,


2

without support from the precedent of this or the district court, that such claims must

additionally satisfy some extra-contractual conception of loss to which the parties

never agreed. Specifically, BP argues that loss in “ordinary parlance” requires a

showing that a claimant’s Lost Earnings be “‘undesirable,’ ‘unpredictable,’ or

‘disadvantage[ous]’” in order to be compensable. Because West’s decline in

earnings was “predetermined” by his pre-Spill employment contract — itself a faulty

premise — BP maintains he cannot show economic loss nor can he in good faith

attest that any such loss was caused by the Spill.

BP’s position is untenable and fundamentally unfair. If BP’s position were

adopted, the Settlement Program would be required to conduct the level of claim-

by-claim gatekeeping that the parties specifically contracted to avoid, therefore

losing the important efficiency gains sought by all parties to this agreement. Worse,

it would result in similarly situated claimants being treated differently because BP

still has yet to identify any principled basis for distinguishing between claimants that

otherwise satisfy all of the E&P Settlement’s requirements.

More fundamentally, BP’s formulation of “loss” is nowhere to be found in the

E&P Settlement Agreement. Instead, that Agreement establishes a framework for

compensating individuals for “Claimant Lost Earnings” — a defined term in the

agreement that specifically provides for compensation eligibility and amount to be

determined by objective formulas. BP agreed to the specific mechanisms for


3

showing loss and causation provided in the E&P Settlement — both of which West

satisfies. Under long-established principles of contract law, those mechanisms carry

the day, even if BP now regrets the results of its bargain. In any event, West can

show that he suffered a loss that was “‘unpredictable’” and can attest in good faith

that the same loss is traceable to the Spill because the Spill prevented him from

securing a lucrative contract extension during his final years in New Orleans, which

happen to overlap with the Settlement’s Compensation Period. Therefore, even if

BP’s position were correct (which it is not), the answer as to West remains the same.

West has satisfied every requirement of the E&P Settlement. His claim

clearly is compensable under the plain terms of that agreement, and there is no

support for BP’s request to look outside that agreement for additional roadblocks for

claimants. His award should be affirmed.

STATEMENT OF JURISDICTION

West agrees with BP’s statement of jurisdiction.

STATEMENT OF ISSUES

Whether the district court abused its discretion under the E&P Settlement by

declining to review the Appeal Panel’s approval of an award to a claimant who has

established Lost Earnings and causation under the objective formulas and criteria

provided by that agreement and who in good faith attested to the accuracy and

completeness of the statements and documents used to make that determination.


4

STATEMENT OF THE CASE

A. BP Agrees To The E&P Settlement To Avoid Litigating Thousands Of Claims Arising From The Deepwater Horizon Disaster.

On April 20, 2010, an oil spill began from the Deepwater Horizon, a mobile

offshore drilling unit that was at the time drilling the Macondo oil well on the seabed

of the Gulf of Mexico. BP had hired Transocean Ltd. to drill that well. Transocean

was using the Deepwater Horizon to complete that task. The overall horror and

impact of that disaster has been recounted for this Court numerous times. See, e.g.,

Ctr. for Biological Diversity v. BP Am. Prod. Co., 704 F.3d 413 (5th Cir. 2013).

West will not retread that ground here. Suffice it to say that by the time the well was

finally “killed” by the completion of a relief well on September 19, 2010, millions

of gallons of oil had been spewed into the Gulf of Mexico, permanently damaging

the natural environment and devastating the local economies that depend on it. Id.

at 418-20.

To avoid litigating what was certain to be thousands of claims, BP rightly

entered into a number of settlements shortly after the Spill. One of those was the

E&P Settlement, which controls the claim that is the subject of this appeal. The E&P

Settlement was designed to compensate individuals and businesses that suffered

Spill-related economic and property damage, as defined by a series of calculations

and objective formulas enshrined in the Settlement.


5

B. Through The E&P Settlement, BP Agrees That Individual Economic Loss Claims Will Be Evaluated Pursuant To Objective Formulas And, For Certain Claimants, Causation Will Be Presumed.

Among the claims resolved by the E&P Settlement are Individual Economic

Loss Claims, or “claims by Individuals . . . who seek compensation for lost earnings

from employment due to or resulting from the DWH Spill . . . .” ROA.18-

30394.2325. Exhibit 8A to the Settlement provides the terms through which

compensable “Lost Earnings” are calculated. Specifically, “Lost Earnings” are

defined as “the difference between (i) a claimant’s Expected Earnings for a specified

period of time and the DWH Spill and (ii) a claimant’s Actual Earnings over the

same specified period.” ROA.18-30394.2325; 2328. That difference is calculated

through a multi-step process that specifically defines the terms “Expected Earnings”

and “Actual Earnings” through objective, mathematical calculations.

Expected Earnings are calculated by combining the claimant’s earnings from

a selected Benchmark Period — either calendar year 2009, the average of 2008-

2009, or the average of 2007-2009 — with one or more Earnings Growth Factors,

which are designed to reflect the rate at which the claimant’s earnings would be

expected to grow over time. ROA.18-030394.2327; 2329; 2338-39. Actual

Earnings are calculated by identifying the claimant’s actual revenue from selected

months within the Compensation Period — defined as May 2010 to December 2010.

ROA.18-030394.2339-41. Once Lost Earnings are calculated, total compensation is


6

determined by adding a Risk Transfer Premium to those Lost Earnings, which is

designed to account for other possible injuries, including unknown future injuries.

ROA.18-030394.2340-42.

A claimant “seeking compensation for an economic loss for a job in which he

. . . was employed by a business located in Zone B that meets the definitions of

Tourism . . . is not required to provide any evidence of causation.” ROA.18-

30394.2337. 2

C. West Suffers Lost Earnings Under The Settlement’s Agreed Formulas, And Applies For And Receives Compensation Through The Settlement Program.

In March of 2014, West timely submitted a claim for Individual Economic

Loss. ROA.18-30394.983-1025. To substantiate his Lost Earnings, West submitted

tax forms and other earning documents from the relevant years. ROA.18-

30394.1027-1125. At the end of his claim form, West truthfully attested that “the

2 Exhibit 8A expressly provides that when “the claimant is an Individual

seeking compensation for an economic loss for a job in which he or she was employed by a business in Zone B that meets the definition of Tourism, the claimant is not required to provide any evidence of causation relating to that Claiming Job.” ROA.18-30394.2337 (emphasis original). Sports teams are expressly included within the definition of Tourism. ROA.18-30394.2233. Zone B encompasses much of the Central Business District of New Orleans. ROA.18-30394.2193. The Hornets — which have filed a Business Economic Loss claim, established causation and received an award in the Settlement Program — are the only sports team headquartered in Zone B, a fact BP surely knew when it negotiated the Settlement Agreement and therefore should have expected Hornets employees such as West to submit claims. Causation for West is presumed under the Settlement Agreement.


7

information provided in this Claim Form is true and accurate to the best of my

knowledge, and that the supporting documents attached to or submitted in

connection with this form and the information contained therein are true, accurate,

and complete to the best of my knowledge . . . .” ROA.18-30394.1011; 1025.

Based on the information West submitted, and the objective formulas to which

BP agreed, the Settlement Program calculated $470,891.02 in Lost Earnings and a

total compensation figure of $1,412,673.06. ROA.18-30394.1652. BP appealed that

decision to the Appeal Panel, maintaining that despite West’s satisfaction of the

compensation requirements outlined in the Settlement, he was entitled to zero

compensation. ROA.18-30394.1702-03. The Appeal Panel disagreed, and affirmed

West’s award. ROA.18-30394.1876-77. BP sought discretionary review by the

district court, which was denied. ROA.18-30394.11. The present appeal followed.

SUMMARY OF ARGUMENT

BP’s arguments fail under this Court’s precedent and the unambiguous terms

of the E&P Settlement.

First, West unquestionably suffered “Lost Earnings” as that term is used in

Exhibit 8A to the E&P Settlement, the only usage that controls this appeal. BP

contracted for specific formulas that would be used to identify and quantify what, if

any, Lost Earnings claimants submitting Individual Economic Loss Claims suffered.

BP does not contest that under those terms West suffered Lost Earnings and that the


8

Settlement Program accurately applied the relevant formulas to arrive at that

calculation. Under well-worn principles of contract law, those unambiguous

definitions and formulas establish the definition of “loss” to be applied to Individual

Economic Loss Claims and BP is bound by that definition. West, therefore, suffered

a loss under the E&P Settlement. BP’s efforts belatedly to import an alternative

definition of loss have no effect on this claim and should be rejected. Regardless,

even under BP’s new terms, West suffered a loss because the Spill prevented him

from receiving a lucrative contract extension during his final years in New Orleans.

Second, the plain language of the certification on the claim form reflects that

all that West was required to certify was that his responses and accompanying

documentation were accurate. They were, and BP does not contend otherwise. West

likewise has a good faith belief that he has satisfied all of the objective standards and

criteria set forth in the Settlement for establishing causation. BP’s arguments to the

contrary are untenable. In any event, even if some greater threshold of causation

applies — which BP has never identified — West has a good faith basis for believing

that his claim would satisfy that threshold because, absent the Spill and the

accompanying economic harm suffered by the Hornets, West could have expected

to have signed a contract extension during the Compensation Period.


9

Finally, the district court did not abuse its discretion because the Appeal Panel

faithfully applied the terms of the E&P Settlement and there is no split among the

Panels with regard to these issues.

STANDARD OF REVIEW

West agrees with BP’s summary of the standard of review.

ARGUMENT

I. WEST UNDOUBTEDLY SUFFERED A LOSS UNDER THE FORMULAS PROVIDED IN EXHIBIT 8A, THE ONLY DEFINITION APPLICABLE TO THIS MATTER.

The cornerstone of BP’s argument is that because West “received precisely

the post-spill earnings that his lucrative pre-spill contract provided for,” he cannot

establish a “loss” as required by the E&P Settlement. Br. at 25. According to BP,

claimants are only entitled to recover under the E&P Settlement if they can establish

a loss as that word is used “[i]n ordinary parlance.” Id. at 29. The parlance BP

contends controls here is derived from Webster’s New International Dictionary,

Black’s Law Dictionary, and other extra-contractual sources.

But BP, as parties to a contract often do, specifically contracted for the

definition of loss to apply to West’s claims — namely, “Lost Earnings.” As BP

freely admits, “Exhibit 8A of the E&P Settlement provides the compensation

framework for Individual Economic Loss Claims” — that is, the framework and

formulas for determining: (1) which Individual Economic Loss claimants are entitled


10

to compensation; and (2) how much compensation to which each is entitled. Br. at

9. Under those objective formulas, West suffered a loss and is entitled to

compensation in the amount $1,412.673.06. BP does not contest that figure

represents an accurate application of the formulas to which it agreed. This admission

should end the matter. In any event, West indeed suffered a “loss” as that term is

used in everyday language because he missed out on a potentially lucrative contract

extension with the Hornets in the season after the Spill. Even if some subjective,

extra-contractual definition of “loss” applies, the result is the same.

A. Under The Plain Terms Of Exhibit 8A, West Suffered A Loss.

Exhibit 8A of the E&P Settlement governs compensation for Individual

Economic Loss Claims like West’s. “Individual compensation for lost earnings is

calculated as the difference between (i) a claimant’s Expected Earnings for a

specified period of time after the DWH Spill and (ii) a claimant’s Actual Earnings

over the same specified period.” ROA.18-30394.2325. That loss — or, more

specifically, “Lost Earnings” — is required is not in dispute. But BP’s argument is

sidetracked when it fails to acknowledge that Exhibit 8A provides the specific

definitions of that expectation and baseline that BP agreed to for such claims.

Under the terms agreed to by BP, an individual claimant’s “baseline earnings”

are defined as that claimant’s earnings during the selected “Benchmark Period” —

either 2009, the average of 2008–2009, or the average of 2007–2009. ROA.18-


11

30394.232; 2329; 2338–39. This Benchmark Period is then used to calculate the

claimant’s “Expected Earnings,” another capitalized term defined by Exhibit 8A.

“Expected Earnings equal the Benchmark Period earnings calculated in Step 2

increased by the applicable Growth Factors (from Step 3).” ROA.18-30394.2339.

Nowhere in either Exhibit 8A or the E&P Settlement writ large is there any

suggestion that an Individual Economic Loss claimant’s “expectation” refers to any

other number or method of calculation. Finally, “Claimant Lost Earnings” are

defined as “(a) the difference between (i) the claimant’s Expected Earnings during

the Compensation Period (Step 4) from all Claiming Jobs and (ii) the claimant’s

Actual Earnings during the Compensation Period, as adjusted, if relevant (Step 5)

from all Claiming Jobs, reduced by (b) any applicable Offsetting Earnings.”

ROA.18-30394.2341.

BP does not contest that under these definitions West has established Lost

Earnings of $470,891.02, the very “loss” for which BP contracted to compensate

Individual Economic Loss claimants for. West therefore undoubtedly suffered a loss

under the terms BP agreed would govern such a determination. BP’s arguments to

the contrary are nothing but misdirection.

B. BP Specifically Agreed To This Definition Of Loss And It Controls Here.

BP now wishes to disclaim the objective formulas it previously devised

because they provide a result in this case BP does not like. In their place, BP wishes


12

to substitute an augmented definition of loss that requires a claimant’s Lost Earnings

additionally to be “‘undesirable,’ ‘unpredictable,’ or ‘disadvantage[ous]’” as

measured by some unidentified, subjective standard. Br. at 31. BP argues there was

nothing “undesirable” about West’s result because West’s post-Spill compensation

was “predetermined” by his pre-Spill contract — itself a faulty premise as shown

infra. at 17-20. Br. at 25. Because BP is bound by the definition it bargained for,

however, its newly-embraced subjective standard of loss cannot defeat West’s claim.

That a settlement agreement is governed by what the parties actually stated in

the agreement is axiomatic. “When parties enter into a settlement agreement, the

terms of that agreement govern disputes arising from the agreement’s

implementation.” Claimant ID 100187856 v. BP Expl. & Prod., Inc., No. 17-30167,

slip op. at 6 (5th Cir. Jan. 29, 2018) (citing Lake Eugenie Land Dev., Inc. v. BP Expl.

& Prod., 785 F.3d 986, 994 (5th Cir. 2015)). Under federal maritime law, much like

Louisiana law, a “contract should be read as a whole, and the court should not look

beyond the written language of the contract to determine the intent of the parties

unless the disputed language is ambiguous.” Fontenot v. Mesa Petroleum Co., 791

F.2d 1207, 1214 (5th Cir. 1986) (citations omitted). Unless the chosen definition of

a defined term in a contract is ambiguous, courts should not look beyond the selected

definition when construing the term. MassMutual Asset Finance LLC v. ACBL River

Operations, LLC, 220 F. Supp. 3d 450, 455 (S.D.N.Y. 2016) (looking to “plain


13

meaning” to construe terms in a maritime contract because the terms were not

“expressly defined in the contract”); Washington v. McCauley, 62 So. 3d 173, 179

(La. App. 2d Cir. 2011) (“Where a policy of insurance contains a definition of any

word or phrase, this definition is controlling.”) (citations omitted); Trinity Universal

Ins. Co. v. Cowan, 945 S.W.2d 819, 823 (Tex. 1997) (“And when terms are defined

in an insurance policy, those definitions control.”) (citations omitted).

Here, BP does not argue there is any ambiguity to the defined terms and

objective formulas it agreed would govern Individual Economic Loss Claims. It is

therefore bound by those definitions and formulas, which confirm West is entitled

to the awarded compensation.

There is nothing unusual or unreasonable about holding BP to its defined

contract terms because parties regularly contract for and are held to a transaction-

specific definition of loss. Perhaps the most repeated example is insurance coverage.

There, whether a plaintiff has adequately alleged loss as defined in the insuring

agreement often is of central importance to any coverage dispute. Because loss often

is a defined term in the insuring agreement, the parties’ chosen definition, not that

supplied by a dictionary, controls when determining what risks are included in and

excluded from coverage. See, e.g., Washington, 62 So. 3d at 179 (affirming

summary judgment dismissing plaintiff’s direct action for recovery for personal

injuries because “plaintiffs have offered no authority to support their claim that the


14

word ‘loss’ as defined in the [relevant] policy is directed at personal injuries arising

from the accident”) (emphasis supplied); Fortier v. Hamblin, 610 So. 2d 897, 900

(La. App. 1st Cir. 1992) (affirming grant of partial summary judgment dismissing

insured’s claim for punitive and exemplary damages where policy expressly

excluded coverage for punitive and exemplary damages).

The E&P Settlement Agreement’s definitions control here. Those definitions,

like the Settlement as a whole, are “binding, final, and as conclusive of rights as a

judgment.” Thomas v. Louisiana, 534 F.2d 613, 615 (5th Cir. 1976) (citation

omitted). To ignore them would be to disregard a fundamental principle of contract

law. BP has provided no authority, or reasoning, to suggest otherwise.

BP agreed to compensate individuals for Lost Earnings. It likewise agreed to

a specific definition of that loss that would be determined by the application of

objective formulas. Parties regularly contract for and are held to transaction-specific

definitions of loss. The Court should hold BP to its bargain.

C. BP’s Analogy To Dormant Business Cases Is Unpersuasive Under This Court’s Precedent.

The only doctrinal support BP provides for its position that “West’s

compliance with Exhibit 8A’s documentation and compensation calculation

requirements” is not sufficient to establish loss is its analogy to the case of a business

that was dormant for the entirety of the Compensation Period. Br. at 33-35; 37-39.

The analogy fails for two reasons.


15

To begin, unlike West, a business that is dormant for the entirety of the

Compensation Period cannot satisfy the E&P Settlement’s documentation

requirements. BP may disagree, but that preciously is what this Court has said is the

problem with such claims. Claimant ID 100187856, slip op. at 6-7 (denying dormant

business’ claim because “program accountants could not have calculated an amount

to award JAD because JAD was inactive during the entire compensable period”).

Indeed, as this Court repeatedly stressed in Claimant ID 100187856, businesses that

are dormant for the entirety of the Compensation Period present noncompensable

claims because they do “not provide sufficient documentation for the Program

Accountant to calculate an award.” Id. at 12; see also id. at 3-4 (“If a class member

has no documentary support of their expected earnings, program accountants cannot

calculate compensation.”); id. at 7 (dormant business’ claim denied because “it did

not provide the CSSP with adequate documentation to calculate profits JAD

expected to generate between May and December 2010, as the Agreement

required”).

West does not fit this category. As described above, West fully satisfies

Exhibit 8A’s documentation and calculation requirements such that he is entitled to

compensation under the terms of the E&P Settlement Agreement. BP has not

challenged West’s satisfaction of these requirements. This fact alone is sufficient

materially to distinguish his claim from that of a dormant business.


16

More fundamentally, the analogy is flawed because the approach to dormant

business cases endorsed by this Court and the Appeal Panel is designed to prevent

compensation to businesses that did not exist during the time periods relevant to the

E&P Settlement, not to impose some additional, extra-contractual requirements to

the showing of loss. The reason for denying these claims really is rather simple:

Business Economic Loss claimants have to be businesses during all periods relevant

to the Settlement.

In denying such claims, the Appeal Panel regularly stresses the lack of

ongoing business activity, rather than the lack of expected profits, as the basis for

denial. See, e.g., 37 APD 2017-370 (Mar. 23, 2017) (“Maintaining a premises as a

property owner, without more, does not rise to that level of operating it as an ongoing

business.”). This, moreover, is why businesses that can show they were actively

seeking work during the Compensation Period can be entitled to compensation even

though they cannot show any revenues during that period. Such operations do not,

on their own, “establish[] a baseline expectation of revenue” as BP contends, or

connect the lack of revenue to the Spill. Br. at 38. Instead, they merely show that

the claimant is an ongoing business during the periods covered by the Agreement.

This Court’s language in Claimant ID 100187856 also lends further support

to this position. Not once in that opinion did this Court reason that dormant

businesses are ineligible for compensation because they had no “baseline


17

expectation of revenue” or satisfy Article III’s traceability requirement.3 Instead,

this Court based that decision on the failure of the claimant to provide sufficient

documentation to allow for a compensation calculation or to establish the ongoing

existence of the business. Claimant ID 100187856, slip op. at 8-9; 12.

BP has never suggested that, throughout the entirety of the Compensation

Period, West was not employed by the New Orleans Hornets, that the Hornets were

not engaged in a tourism industry business, that the Hornets were not located in Zone

B or that the Hornets have not been deemed to be an eligible employer. Therefore

none of the concerns that foreclose recovery for dormant or extinguished businesses

are present in West’s case. BP’s analogy is a last-ditch effort to impose heightened

requirements on claimants beyond what it agreed to in the E&P Settlement. The

analogy is strained and does not bear the weight necessary for BP to prevail.

D. If BP’s Subjective Standard Of Loss Somehow Applies, West Is Still Entitled To The Awarded Compensation.

The Court should decline BP’s invitation to redraft the terms of its bargain.

Yet even under BP’s newly-supplied definition of loss, West is still entitled to

compensation. BP’s arguments to the contrary are the product of a fundamental

misunderstanding of how the contracts of professional athletes typically work.

3 In fact, the Court expressly held that such businesses still would satisfy Article

III’s traceability requirement so long as they could establish class membership, which Claimant 100187856 did. Claimant ID 100187856, slip op. at 9-10. BP concedes here that West is a member of the class. Br. at 28.


18

West agreed to a five-year, multi-million dollar contract with the then-New

Orleans Hornets in 2006. ROA.18-30394.821; 815. That contract was

“frontloaded,” meaning that it provided for West to be paid more in the first year of

the contract than he would be in the remaining years. But it does not follow from

this that West’s post-Spill compensation was “predetermined.” Br. at 25. At least

three facts suggest otherwise.4

First, as BP points out, the Spill occurred during the penultimate year of

West’s contract, a time period when teams across sports typically seek to renegotiate

or extend the contracts of valuable players to avoid those players becoming free

agents. Indeed, as the record reflects, there was some speculation in the news shortly

after the Spill as to whether the Hornets would extend West’s contract before the

start of the next season. ROA.18-30394.815. This dynamic of contract extensions

is unaccounted for by BP’s theory. It likewise undermines BP’s understanding that

once a professional athlete signs a long-term contract, his or her compensation is

“predetermined” for the lifetime of the contract.

4 West, of course, was never asked to provide evidence that his Lost Earnings

were “unpredictable” or “undesirable.” Indeed, there is no question on West’s claim form asking whether his Lost Earnings were “predetermined.” These facts further confirm that such evidence has never been a part of the Settlement Agreement. If such evidence were required and had been asked for, West would have provided it, and the record on this point would be even more developed.


19

Second, the New Orleans Hornets suffered a post-Spill decline in revenue for

which they have been awarded substantial compensation from the Settlement

Program and which may have inhibited their ability to extend West’s contract.

Absent the decline in revenue experienced by the organization, it would have been

reasonable that a player like West — who was a regular starter averaging 19.8 points

and 8.2 rebounds per game across the first four years of his contract — might expect

a lucrative extension. ROA.18-30394.812.

Third, as BP admits, once West became a free agent he signed a contract with

an annualized salary substantially greater than that of his final contract year with the

Hornets, thereby suggesting that a post-Spill extension could have provided West

with substantially more compensation than he actually made during the

Compensation Period. Br. at 15.

Where this evidence is most telling, however, is that it demonstrates just how

unreasonable BP’s theory of loss is. If BP has its way, the Settlement Program would

now be forced to examine whether West’s allegations as to his missed contract

extension demonstrate that the decline in earnings West experienced was sufficiently

“‘undesirable,’ ‘unpredictable,’ or ‘disadvantage[ous]’” to qualify as a “loss” as BP

now defines the term. BP gives no thought or suggestion as to how this

determination should be made. This approach would be a complete rebuke of the

settlement framework BP agreed to and would lose the very efficiency gains and


20

predictability that the objective formulas were designed to capture. On its own

terms, BP’s position is untenable.

II. BP’S UNDERSTANDING OF THE ATTESTATION REQUIREMENT CONTRAVENES THE DECISIONS OF THIS COURT AND THE DISTRICT COURT, AS WELL AS THE PLAIN MEANING OF THE SETTLEMENT AGREEMENT.

In the alternative, BP argues West “cannot attest in good faith that his loss

was caused by the spill.” Br. at 41 (emphasis original). That statement is wrong.

West has fully satisfied the attestation requirement, which BP misunderstands.

Every level of review correctly has rejected BP’s argument that West cannot in good

faith attest that his Lost Earnings were caused by the Spill. West has a good faith

basis for that attestation, whether it is construed only to refer to the accuracy of the

documentation satisfying the objective standards and criteria set forth in the

Settlement (as West rightly maintains) or if it requires a more robust conception of

causation (as BP wrongly insists). BP’s arguments to the contrary are unavailing.

A. West In Good Faith Attested To The Accuracy Of The Documentation He Provided.

The only reading of the attestation signed by West that comports both with

the plain meaning of the terms used in the attestation itself and with this Court’s

precedent is that he was attesting in good faith his injury is traceable to the Spill as

defined by the objective standards and criteria set forth in the Settlement. In fact,

any other attestation would be meaningless, because it would be completely divorced

from the plain terms of the Settlement itself.


21

First, the attestation West signed on his claim form provided only that “the

information provided in [the] Claim Form is true and accurate to the best of [West’s]

knowledge, and that supporting documents attached to or submitted in connection

with this form and the information contained therein are true, accurate, and complete

to the best of [West’s] knowledge.” ROA.18-30394.1025. At no point does West’s

attestation affirm that his Lost Earnings were “caused by” or “related to” the Spill

based on any metric other than the materials he submitted and answers he provided.

Second, any claim that BP insisted on a broader vision of the attestation

requirement is belied by its own statements with regard to causation. As the district

court has recognized, Mark Holstein, managing attorney for BP America Inc.,

admitted in his representations to the Claims Administrator that BP understood

certain “‘false positives’” — meaning claims where “‘the claimant’s firm’s revenue

decline (and recovery, if applicable) satisfies the causation test but extraneous non-

financial data indicates that the decline was attributable to a factor wholly unrelated

to the Oil Spill’” — were “‘an inevitable concomitant of [the] objective quantitative,

data-based test’” adopted to measure causation for Business Economic Loss

claimants. In re Deepwater Horizon, No. MDL 2179, 2013 WL 10767663, at *22

(E.D. La. Dec. 24, 2013) (quoting Letter from Mark Holstein to Patrick Juneau,

Claims Administrator, Deepwater Horizon Settlement Program (Sept. 28, 2012)).

There is no evidence that BP felt any differently about Individual Economic Loss


22

claimants. If BP at the time it negotiated the Settlement truly believed the terms of

its bargain foreclosed claims that met the prescribed tests for causation but were

otherwise “implausible,” then this representation regarding so-called false positives

would be nonsensical.

Third, this Court’s opinion in Deepwater Horizon III does not impose any

greater causation standard upon that attestation nor is such a standard “essential to

the validity of the entire E&P Settlement.” Br. at 43. There, this Court held only

that a claimant attests “that his claim in fact was due to the Deepwater Horizon

disaster,” not that such an attestation referred to the satisfaction of some other

causation requirement not included in the Settlement Agreement. Deepwater

Horizon III, 744 F.3d at 377. If this Court intended to impose a causation

requirement through this certification other than what was already provided for in

the Settlement itself, such an imposition would be express in the opinion. Deepwater

Horizon III provides no support for such a position. If there was any doubt as to the

exclusivity of the causation mechanisms provided for in the E&P Settlement after

Deepwater Horizon III, the very same panel settled the question when it considered

BP’s motion for rehearing of that decision. There, this Court noted those causation

mechanisms were “the compromise reached by the parties on how an extremely

difficult part of the claims process was to be handled,” and, critically, “that

compromise still controls even when its accuracy as a substitute for direct evidence


23

of causation as to a particular claim is questionable.” In re Deepwater Horizon, 753

F.3d 509, 515 (5th Cir. 2014).

Moreover, Deepwater Horizon III expressly rejected the level of gatekeeping

BP now seems to advocate. There, this Court refused to adopt Judge Clement’s view

in dissent that the claims administrator be required to “‘ensure that claims are not

paid that are not plausibly traceable to the spill,’” noting: “We do not agree that we

should order the claims administrator to perform that gatekeeping function.”

Deepwater Horizon III, 744 F.3d at 378.

Finally, this position does not reanimate BP’s concerns under Article III, Rule

23, or the Rules Enabling Act. In affirming the district court’s order in Deepwater

Horizon III, this Court expressly affirmed “the district court’s reject[ion of] BP’s

arguments with respect to . . . whether Article III, Rule 23, and the Rules Enabling

Act permitted the parties to agree to a settlement that dealt with causation in” the

manner articulated for Business Economic Loss claimants. Id. at 374. Those

concerns are likewise not reanimated for Individual Economic Loss claimants such

as West.

B. If Any Party Has Violated The Covenant Of Good Faith And Fair Dealing, It Is BP.

BP’s arguments as to the covenant of good faith and fair dealing strain all

credulity. By following the letter of the E&P Settlement Agreement, West

unquestionably is behaving “consisten[t] with the justified expectations of the other


24

party.” Restatement (Second) of Contracts § 205, cmt. a. Indeed, it is hard to

imagine what would be more consistent with the parties’ expectations than that their

agreement would be applied as written. In striking this bargain, the parties were

negotiating with the well-worn default rules of contracting and settlements as a

backdrop. Therefore, the parties must have expected that, in applying this

agreement, courts would follow well-established principles of contract

interpretation, namely that in construing unambiguous, defined terms they would

“not look beyond the written language of the contract to determine the intent of the

parties . . . .” Fontenot, 791 F.2d at 1214 (citations omitted). Likewise, the parties

would be justified in expecting that the “settlement agreement once entered into

cannot be repudiated by either party and will be summarily enforced.” Cia Anon

Venezolana De Navagacion v. Harris, 374 F.2d 33, 35 (5th Cir. 1967) (citations

omitted). If any party is in violation of the covenant of good faith and fair dealing,

it is BP in attempting to redraft the terms of this unambiguous bargain.

C. If BP’s Theory Somehow Controls, The Result Is No Different.

Finally, for the same reasons that West would satisfy BP’s unwritten

definition of loss identified supra at 17-20, West has a good faith basis for attesting

that the Spill caused his losses even under BP’s understanding of that requirement.

BP claims that after Deepwater Horizon III, claimants must have a good faith

basis for believing that their Lost Earnings were related to the Spill. BP does not


25

suggest anything more onerous than belief. As the record shows, West has a good

faith basis for believing that but-for the Spill he would have been offered a contract

extension in the fall of 2010 that would have netted him substantially more money

during the Compensation Period than he actually earned. Whether such evidence

would be sufficient to establish that the Spill was the but-for cause of West’s Lost

Earnings is unclear. Even under BP’s arguments, however, but-for causation is not

required to be proven or even evidenced. And in fact such a requirement is

foreclosed by the holding of Deepwater Horizon III. Deepwater Horizon III, 744

F.3d at 373 (affirming, in the context of business claimants, district court ruling that

“the Settlement Agreement did not require those submitting claims for certain

business losses to provide evidence of causation”). BP simply insists that causation

be plausibly alleged. West has done that.

BP may now regret not insisting on a more onerous causation standard. But,

“[t]he Settlement Agreement contained many compromises. One of them was to

provide in only a limited way for connecting the claim to the cause.” Deepwater

Horizon III, 744 F.3d at 378. As this Court has held time and again, and should

reaffirm here: “There is nothing fundamentally unreasonable about what BP

accepted but now wishes it had not.” Id. at 377.


26

III. BP’S NEW VISION OF THE SETTLEMENT AGREEMENT IS UNTENABLE AND FUNDAMENTALLY UNFAIR.

The bargain BP struck with claimants was practical, and to allow BP to

redefine that bargain now would be untenable. As this Court has noted, common

sense furnishes the logic for the objective criteria chosen in the Settlement

Agreement. “Why businesses fail or, why one year is less or more profitable than

another, are questions often rigorously analyzed by highly-paid consultants, who

may still reach mistaken conclusions.” Deepwater Horizon III, 744 F.3d at 377.

These difficulties are amplified in the mass claims context. Indeed, “[t]here may be

multiple causes for a loss,” and “[t]he difficulties of a claimant’s providing

evidentiary support and the claims administrator’s investigating the existence and

degree of nexus between the loss and the disaster in the Gulf could be

overwhelming.” Id. Measuring loss and causation by objective criteria and

documentation was the most practical way to address this disaster at the time of the

Settlement, and it remains so now. BP’s continued manipulation threatens to destroy

the very practical benefits its initial bargain enshrined.

Beyond its practical problems, BP’s position as to loss and causation is

fundamentally unfair. In its most simple form, BP is arguing that there are some

claimants who, although they qualify for compensation based on the objective

criteria in the Settlement Agreement, are not entitled to the benefits of this bargain.

BP has yet to articulate any principled basis for picking and choosing between


27

claimants who otherwise would qualify for compensation under the terms of the

Agreement. Indeed, as this Court has noted, BP has never concerned itself with the

“when, by whom, and how of analyzing such suspicious claims after they are

submitted.” Deepwater Horizon III, 744 F.3d at 378. Without such principled

distinctions, BP’s approach threatens to treat similarly situated claimants differently.

But, “it is clear that the parties did discuss and were in agreement that similarly

situated claimants must be treated alike, and that in order to achieve a class

settlement agreement, it was necessary that there be a transparent, objective,

methodology adopted to determine lost profits.” In re Deepwater Horizon, 2013

WL 10767663, at *2.

This appeal is just the latest in a series of efforts by BP to avoid paying

qualifying claims whenever it thinks it can get away with it. BP may suffer no public

relations backlash for fighting West’s claim. But such PR calculations do not

provide fair criteria for adjudicating mass claims, especially those already resolved

by unambiguous settlement agreements, as here.

IV. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN DENYING DISCRETIONARY REVIEW.

BP asserts that the district court abuses its discretion to deny discretionary

review only when (1) “the decision not reviewed by the district court actually

contradicted or misapplied the Settlement Agreement, or had the clear potential to

contradict or misapply the Settlement Agreement”; or (2) the district court denied


28

review of “a recurring issue on which the Appeal Panels are split [and] the resolution

of the question will substantially impact the administration of the Agreement.”

Claimant ID 100212278 v. BP Expl. & Prod., Inc., 848 F.3d 407, 410 (5th Cir. 2017).

Neither situation is present here.

First, as demonstrated above, the Appeal Panel did not contradict or misapply

the Settlement Agreement. To the contrary, by awarding compensation to West the

Appeal Panel rightfully followed the letter of the Settlement Agreement and adhered

to this Court’s precedent. For all the reasons stated above, there was no abuse of

discretion here.

Second, the split among the Appeal Panels BP identifies is manufactured.

Indeed, much of this “split” requires that the Court accept BP’s failed analogy to

dormant business cases, which it should not. BP argues that because “‘Panels

consistently deny claims where [a business] shows no revenue or expenses for [the

compensation] period and also presents no documentation evidencing an ardent

attempt to find work,”’ in affirming West’s claim the Appeals Panel below “split”

from those that have heard similar claims on this “recurring issue.” Br. at 53-54

(citations omitted). As described above, West’s claim is not materially similar to

those presented by dormant businesses. Unlike West, the claimants there can neither

provide the Program Accountants with sufficient documentation to calculate

expected earnings nor establish that they were eligible claimants during the relevant


29

periods defined by the Settlement Agreement. There is no split among the Appeals

Panels regarding the arguments BP uses to resist West’s claims. To the contrary,

Appeal Panels regularly reject BP’s efforts to rehash its Alternative Causation

theories. For these reasons, the district court’s exercise of its discretion was sound.

CONCLUSION

For all of the above reasons, Appellee David West’s award should be

affirmed.

August 3, 2018 Respectfully Submitted,

/s/ Stephen H. Kupperman

Stephen H. Kupperman, (LA 7890) David N. Luder, (LA 33595) BARRASSO USDIN KUPPERMAN FREEMAN & SARVER, LLC 909 Poydras Street, 24th Floor New Orleans, LA 70112 Telephone: (504) 589-9700 Facsimile: (504) 589-9701 Counsel for David West

1500386_5


30

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing appellate

brief was filed electronically on August 3, 2018, and will, therefore, be served

electronically upon all counsel.

/s/ Stephen H. Kupperman Stephen H. Kupperman


31

CERTIFICATE OF COMPLIANCE

The undersigned certifies that the foregoing brief complies with Fed. R. App.

P. 32(a)(7)(B) and (C) because it contains 6,772 words. The brief also complies with

the typeface and style requirements of Fed. R. App. P. 32(a)(5) & 32(a)(6) because

it has been prepared in a proportionally spaced, roman style typeface of 14 points or

more.

/s/ Stephen H. Kupperman Stephen H. Kupperman


Documents

IN THE UNITED STATES COURT OF APPEALS FOR …...2019/03/21 · No. 2179, Civ. A No. 2:17-CV-13224 The undersigned counsel of record certifies that the following listed persons and