     Case: 18-31022      Document: 00515018913         Page: 1    Date Filed: 07/02/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                    No. 18-31022                             July 2, 2019
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
CLAIMANT ID 100145392,

              Requesting Party – Appellant,

v.

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

              Objecting Parties – Appellees.




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:18-CV-6838


Before HIGGINBOTHAM, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       Claimant Clickbooth.com, LLC appeals from the district court’s denial of
discretionary review of its claim under the Deepwater Horizon Economic and
Property Damages Settlement (Settlement Agreement). Because Clickbooth
qualifies as a “Start-Up Business” under the Settlement Agreement, and
because Clickbooth challenges a fact-based, discretionary administrative


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 18-31022
decision by the Claims Administrator, we AFFIRM the district court’s
judgment.
                                        I.
      Clickbooth is an internet marketing company in Sarasota, Florida, that
was formed as part of the reorganization of an entity called IntegraClick, Inc.
In October 2009, IntegraClick transferred substantially all of its assets and
certain specified liabilities to Suncoast Holdings, LLC in exchange for all of the
membership units in Suncoast Holdings.         The following month, Suncoast
Holdings transferred the same set of assets and liabilities to Eternal
Strategies, LLC, which then divided the assets and liabilities among four
newly-formed subsidiaries, one of which was Clickbooth. Thus, Clickbooth
began operating in November 2009, approximately six months before the
Deepwater Horizon oil spill occurred in April 2010.
      Clickbooth filed a claim pursuant to the Settlement Agreement in
November 2012. At the time, the Claims Administrator’s Policy 354 was in
place. The policy discussed the effect of various types of business organization
changes on the processing of a claim under the Settlement Agreement. During
the pendency of Clickbooth’s claim, however, the Claims Administrator
withdrew Policy 354 by agreement of the parties.
      Although Clickbooth had filed a Business Economic Loss claim, the
Claims Administrator reclassified Clickbooth as a Start-Up Business, which
the Settlement Agreement defines as “a business with less than 18 months of
operating history at the time of the Deepwater Horizon Incident.” Clickbooth
twice submitted additional documentation in an effort to challenge this
reclassification, but the Claims Administrator ultimately denied the claim for
failure to meet the Settlement Agreement’s causation standard for Start-Up
Businesses. Clickbooth sought reconsideration, and the Claims Administrator
again concluded that Clickbooth was not entitled to an award.
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                                  No. 18-31022
      Clickbooth then appealed to an Appeal Panel, arguing that it was not a
Start-Up Business because it was a “mere continuation” of IntegraClick, which
had been operating since 2003. The Appeal Panel disagreed. It determined
that the Claims Administrator had properly classified Clickbooth as a Start-
Up Business because “Clickbooth was merely a subsidiary of the purchasing
entity and acquired only some of IntegraClick’s original assets and liabilities.”
Because this court has made clear that a claimant cannot “tack onto the
transferor’s operating history” under those circumstances, Clickbooth had
operated for less than 18 months before the oil spill and therefore qualified as
a Start-Up Business. The district court denied discretionary review.
                                       II.
      We review the district court’s denial of discretionary review for an abuse
of discretion. Holmes Motors, Inc. v. BP Expl. & Prod., Inc., 829 F.3d 313, 315
(5th Cir. 2016). The district court abuses its discretion if it declines to review
a decision that “actually contradicted or misapplied the Settlement
Agreement,” but it is “wrong to suggest that the district court must grant
review of all claims that raise a question about the proper interpretation of the
Settlement Agreement.” Claimant ID 100212278 v. BP Expl. & Prod., Inc.,
848 F.3d 407, 410 (5th Cir. 2017) (citation omitted). The district court also
abuses its discretion if it denies a request for review that “raises a recurring
issue on which the Appeal Panels are split if ‘the resolution of the question will
substantially impact the administration of the Agreement.’” BP Expl. & Prod.,
Inc. v. Claimant ID 100094497 (Texas Gulf Seafood), 910 F.3d 797, 800 (5th
Cir. 2018) (quoting Claimant ID 100212278, 848 F.3d at 410). In contrast, the
district court does not abuse its discretion by denying a request for review that
“involve[s] no pressing question of how the Settlement Agreement should be
interpreted and implemented, but simply raise[s] the correctness of a


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                                   No. 18-31022
discretionary administrative decision in the facts of a single claimant’s case.”
Id. (alterations in original) (citation omitted).
                                        III.
      Clickbooth advances two arguments on appeal: (1) the district court
erred in denying discretionary review because Clickbooth is not a Start-Up
Business under the Settlement Agreement; and (2) the Claims Administrator’s
withdrawal of Policy 354 while Clickbooth’s claim was pending implicated the
doctrine of judicial estoppel and violated Clickbooth’s due process rights.
                                        A.
      Clickbooth first contends that it does not qualify as a Start-Up Business
because no change in operations occurred during the reorganization—it simply
continued IntegraClick’s line of business. We have rejected this argument in
previous cases. Holmes Motors, 829 F.3d at 315–16 (“At least in the context of
a ‘Start Up Business,’ the plain meaning of ‘a business’ is a business entity, not
a line of business.”); see also Claimant ID 100009540 v. BP Expl. & Prod., Inc.
(Bayou Oyster), 680 F. App’x 263, 267 (5th Cir. 2017) (“[T]he E & P Settlement
makes clear that the proper claimant is the ‘entity’ asserting a business
economic damages claim, and not . . . the business . . . that is operated by that
entity.”).
      Clickbooth also emphasizes that it received all of IntegraClick’s
“revenue-generating” assets that were “related to the [b]usiness” and assumed
IntegraClick’s liabilities. However, the documents Clickbooth submitted to the
Claims Administrator clarify that IntegraClick retained certain identified
liabilities in the asset sale, and that at least some of IntegraClick’s assets were
distributed to the other three Eternal Strategies subsidiaries. Thus, while we
have acknowledged that “under certain circumstances, a business claimant
that reorganizes or changes its form may still recover even if the change occurs
after the oil spill,” Clickbooth’s formation does not present appropriate
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                                  No. 18-31022
circumstances to place it outside of the Start-Up Business category. See BP
Expl. & Prod., Inc. v. Claimant ID 100169608 (Adams Produce), 682 F. App’x
256, 259 (5th Cir. 2017). Instead, like in Adams Produce, some of the assets
and liabilities of the transferor entity—here, IntegraClick—were not
transferred to Clickbooth in the asset sale. See Adams Produce, 682 F. App’x
at 261; see also Bayou Oyster, 680 F. App’x at 267–68 (holding that a claimant
was a Start-Up Business where it purchased only the assets of the business
and the transferor entity retained the liabilities). Clickbooth was properly
classified as a Start-Up Business under the Settlement Agreement.
      Even if Clickbooth could persuasively argue that it was incorrectly
classified as a Start-Up Business, BP would prevail under the standard for
discretionary review by the district court.      Clickbooth merely raises the
“correctness of a discretionary administrative decision in the facts of a single
claimant’s case” and does not identify a “recurring issue on which the Appeal
Panels are split.” Texas Gulf Seafood, 910 F.3d at 800. The district court did
not err in declining to review this issue.
                                        B.
      In support of its Policy 354 argument, Clickbooth refers the court to
excerpts from the policy under which it contends that it would not qualify as a
Start-Up Business. Upon review of the record, we disagree. Even if Policy 354
had still been in effect when Clickbooth’s claim was denied, it is not clear that
Clickbooth would necessarily have been outside of the definition of a Start-Up
Business. Accordingly, we do not reach Clickbooth’s judicial estoppel and due
process arguments regarding Policy 354.
                                       IV.
      For the reasons described, we AFFIRM the district court’s denial of
discretionary review in this case.


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