     Case: 18-30562      Document: 00514900461         Page: 1    Date Filed: 04/03/2019




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

                                                                                 FILED
                                                                               April 3, 2019
                                      No. 18-30562
                                                                              Lyle W. Cayce
                                                                                   Clerk
BP EXPLORATION & PRODUCTION, INCORPORATED; BP AMERICA
PRODUCTION COMPANY; BP, P.L.C.,

               Requesting Parties - Appellants

v.

CLAIMANT ID 100195328,

               Objecting Party - Appellee




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:18-CV-3215


Before STEWART, Chief Judge, SOUTHWICK and ENGELHARDT, Circuit
Judges.

PER CURIAM:*
       The claimant in this Deepwater Horizon settlement program appeal
operates a motor vehicle dealership. The Claims Administrator awarded a
substantial sum on the claim. BP appealed, arguing it was a misapplication of
the settlement to remove from the relevant calculations of lost profits the



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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revenue allocable to related-party transactions but not the expenses. The
Appeal Panel declined to make any adjustment, and the district court denied
discretionary review. BP appeals from that denial. We conclude that the
Appeal Panel misapplied the Settlement Agreement in a manner that required
the district court to accept review. We REMAND to the district court.


              FACTUAL AND PROCEDURAL BACKGROUND
      This case arises out of the Settlement Agreement negotiated between BP
and class action representatives in response to the catastrophic discharge of oil
after BP’s Deepwater Horizon offshore drilling rig exploded and sank in 2010.
The Settlement Agreement permits individuals and entities that experienced
economic and property damage from that disaster to recover from BP through
a Court Supervised Settlement Program (“Settlement Program”). Business
Economic Loss claims are calculated under the Settlement Agreement by
comparing the “actual profit of a business during a defined post-spill period in
2010 to the profit that the claimant might have expected to earn in the
comparable post-spill period of 2010.”
      There are several steps used to calculate a claimant’s total award under
the Settlement Agreement. This appeal focuses on the calculation of “Step 1
Compensation.”    That compensation reflects the reduction in a claimant’s
profit between a period selected by the claimant that post-dates the Deepwater
Horizon discharge of oil into the Gulf of Mexico, called “the 2010 Compensation
Period,” and comparable months of the “Benchmark Period” prior to the
discharge. Step 1 Compensation is a calculation of any reduction in Variable
Profit from the earlier period to the later one. Variable Profit is the sum of the
monthly revenue over the relevant period minus “the corresponding variable
expenses from revenue over the same time period.”


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                                No. 18-30562
      At issue in this appeal is Policy 328 v.2 adopted by the Claims
Administrator. It directs the Settlement Program’s accountants to review
claims to exclude in their Business Economic Loss calculations any income of
the kind “not typically earned as revenue under the normal course of
operations.” This Policy directs exclusion of “related party transactions that
are not arm’s length transactions.”        It also states that the “Claims
Administrator in his discretion may require that the claimant provide further
explanation and/or additional documentation underlying the monthly revenue
and related expense accounts in question.”
      The claimant here operates a motor vehicle dealership. The claimant
filed a claim under the Settlement Agreement in March 2013. The Claims
Administrator requested information concerning transactions between the
claimant and two related entities. The claimant submitted the information,
which generally showed that certain vehicles purchased by the claimant were
sold to the two related entities at cost. The Claims Administrator could not
determine whether transactions between the claimant and the related entities
were arms-length transactions, and therefore decided to exclude the revenue
from those transactions due to Policy 328 v.2. It did not exclude the earlier
costs of those same vehicles from the calculation. The Claims Administrator
ultimately awarded the claimant about $2.5 million.
      The central point on this appeal is that the Claims Administrator
calculated Variable Profit for the post-disaster period by removing related-
party revenue from the revenue total for that period but did not remove the
corresponding related-party expenses. The result was that the Variable Profit
for the post-disaster period was lower, i.e., the loss was greater, than if the
related-party revenue remained in the calculation or the related-party




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expenses had been removed. 1 Here, as the Variable Profit in the period after
the disaster decreases, the award for lost profits to the claimant increases.
      BP sought review of that award by an Appeal Panel. BP challenged the
Claims Administrator’s treatment of the claimant’s related-party transactions.
BP claimed that the Claims Administrator erred by failing to remove
corresponding related-party expenses when it removed the related party
revenue from the Variable Profit calculations. BP’s appeal included a proposed
award of $0, whereas the claimant’s proposed award was the amount awarded
by the Claims Administrator. The Appeal Panel ruled in favor of the claimant,
finding that it was proper to exclude the related-party revenue from the
calculation of compensation and that the related-party expenses were properly
included because the claimant “had to buy and pay for the vehicles that it sold
to the related party at cost.”
      Pursuant to the “baseball appeals” process required by the Settlement
Agreement in which an Appeal Panel selects the party’s Final Proposal closest
to the correct result “and no other amount,” the claimant’s Final Proposal was




      1An illustration follows.
     Pre-Disaster Period        Pre-Disaster Variable Profit (Rev. – Exp.)
              Revenues: $300                         $300 – $100 = $200
              Expenses: $100
                                Post-Disaster Variable Profit                Loss Calc.
     Post-Disaster Period       Scenario #1: Include All Rev. & Exp.         $200 – $100 =
                                                     $200 – $100 = $100               $100
     Revenues: $200
          Non-Related: $175 Scenario #2: Exclude Rel. Rev.                   $200 – $75 =
         Related-Party: $25                      $175 – $100 = $75                    $125
     Expenses: $100
          Non-Related: $75 Scenario #3: Exclude Rel. Rev. & Exp.             $200 – $100 =
         Related-Party: $25                      $175 – $75 = $100                    $100



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accepted and BP’s was rejected. BP then sought discretionary review in the
district court, which was denied.


                                 DISCUSSION
      This court reviews “the district court’s denial of discretionary review for
abuse of discretion.” Claimant ID 100212278 v. BP Expl. & Prod., Inc., 848
F.3d 407, 410 (5th Cir. 2017). To determine if the district court abused its
discretion, this court decides “whether 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.” Id.
(quoting Holmes Motors, Inc. v. BP Expl. & Prod., Inc., 829 F.3d 313, 315 (5th
Cir. 2016)). “It may [also] be an abuse of discretion to deny 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.’” Id. (quoting In re Deepwater Horizon, 632 F. App’x 199, 203-04
(5th Cir. 2015)).
      BP claims that the district court abused its discretion when it declined
to review the Appeal Panel’s decision in this claim because the Settlement
Program contradicted or misapplied the Settlement Agreement. Specifically,
BP emphasizes that Variable Profit must be calculated by summing the
monthly revenue over the time period, then subtracting the corresponding
expenses.   If related-party revenue is removed from the Variable Profit
calculation, BP argues that not subtracting related-party expenses from the
remaining non-related-party revenue would violate the terms of the
Settlement Agreement.
      As to the claimant’s arguments, it is correct that Policy 328 v.2 requires
the exclusion of related-party revenue but says nothing about excluding
associated costs. The claimant also states that expenses may be considered in
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the Claims Administrator’s discretion under the Policy but the consideration
is for the purpose of determining if related-party revenue should be excluded,
not to include the expenses themselves.
      The claimant also argues that if related-party revenue were to be
removed for the period before the discharge of oil instead of after the discharge
as it was here, BP would benefit because it would reduce overall recovery to
claimants. Because the effects of the application of this Policy will vary,
sometimes benefitting and other times disadvantaging BP, the claimant
argues this is a “technical accounting issue that will turn on the unique
circumstances of every claimant’s business.” The problem with that argument
is that the calculations need to be properly made to uphold the interests of
claimants and BP. If BP is advantaged by an improper calculation at times,
then on those occasions a claimant has been harmed.
      The claimant also relies on the fact that the district court in June 2018
held that Policy 328 v.2 did not authorize the exclusion of related-party
expenses. Even if Policy 328 v.2 has already been interpreted by the district
court in a manner consistent with what was done in this case, it is the
Settlement Agreement that binds the parties and governs this dispute. See,
e.g., In re Deepwater Horizon, 858 F.3d 298, 300-01 (5th Cir. 2017).
      We now turn to whether the Policy as interpreted is consistent with the
Settlement Agreement, which requires that Variable Profit be calculated by
summing the monthly revenue over the relevant period, then subtracting “the
corresponding variable expenses from revenue over the same time period.” The
Settlement Agreement states that only corresponding variable expenses
should be subtracted from the revenue included in the calculation to determine
Variable Profit. Because we apply admiralty law to our interpretation of the
terms of this agreement, we must avoid rendering terms meaningless. See
Chembulk Trading LLC v. Chemex Ltd., 393 F.3d 550, 555 (5th Cir. 2004).
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      Consequently, we must avoid making the word “corresponding”
irrelevant. If revenue is removed pursuant to Policy 328 v.2, and that revenue
is from related-party transactions, there may well be corresponding expenses
as there were here. The expenses that remain from related-party transactions
no longer correspond to anything in the monthly revenue, because the
attendant revenue was excluded. We acknowledge that the Policy is concerned
with the distortions caused by revenue from related-party transactions, and
the corresponding expense side likely did not involve related parties.
Apparently, it did not here. Still, if the related-party expenses are included in
calculating Variable Profit and the corresponding revenue is not, the
calculation is inconsistent with the Settlement Agreement because the
subtracted expenses do not “correspond” to revenue.
      We conclude that the Settlement Agreement is not being followed given
the manner in which Policy 328 v.2 is being applied, or that an inadequate
explanation for that approach has been provided. It is also the case that
several examples of the application of this Policy appear to exist.
Consequently, “the decision not reviewed by the district court actually
contradicted or misapplied the Settlement Agreement.” Holmes Motors, Inc.,
829 F.3d at 315 (citation omitted). Therefore, with respect, we conclude the
district court abused its discretion when it declined to grant review.
      We REMAND to the district court in order to remove the expenses from
the calculation of Variable Profit that correspond with related-party revenue,
or to have the Claims Administrator provide a sufficient accounting
justification demonstrating there is no violation of the Settlement Agreement.
The claimant’s request for sanctions is hereby DENIED.




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