     Case: 18-30835   Document: 00514888433     Page: 1   Date Filed: 03/26/2019




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

                                                                   FILED
                                No. 18-30835                 March 26, 2019
                              Summary Calendar
                                                              Lyle W. Cayce
                                                                   Clerk
BP EXPLORATION & PRODUCTION, INCORPORATED; BP AMERICA
PRODUCTION COMPANY; BP, P.L.C.,

             Requesting Parties – Appellants,

v.

CLAIMANT ID 100141850,

             Objecting Party – Appellee.




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


Before HIGGINBOTHAM, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM:
      This case presents another appeal arising out of the Deepwater Horizon
disaster and the resulting BP Deepwater Horizon Economic and Property
Damages Settlement (Settlement Agreement).           Here, BP contends that
Claimant was not entitled to the $65 million award it received pursuant to the
Settlement Agreement because it did not suffer a loss that was caused by the
oil spill despite submitting a claim form certifying that it did. Because the
district court did not abuse its discretion in declining discretionary review, we
AFFIRM.
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                                 No. 18-30835
                                       I.
      Claimant is a manufacturer of electrical transformers and other
industrial products. In November 2012, it filed a Business Economic Loss
Claim Form (Claim Form) pursuant to the Settlement Agreement. The Claim
Form explains that Business Economic Loss (BEL) Claims are for businesses
“that assert economic loss due to the Spill,” and instructs claimants to “submit
certain Supporting Documentation to prove [their claims].” The Claim Form
also requires claimants to certify under penalty of perjury that the information
provided is “true and accurate” and that the supporting documents are “true,
accurate, and complete.” Prior decisions of this court have referred to this
certification as the “attestation.” E.g., In re Deepwater Horizon (Deepwater
Horizon III), 744 F.3d 370, 376–77 (5th Cir. 2014).
      As a class member located in economic loss Zone D, Claimant also had to
satisfy one of the causation tests set out in Exhibit 4B to the Settlement
Agreement to recover on its economic loss claim. The parties do not dispute
that Claimant satisfied one of these tests: the V-shaped revenue pattern test.
      After reviewing the Claim Form, the Claims Administrator awarded
Claimant $65 million. BP appealed to a three-member Appeal Panel, arguing
inter alia that “the claim does not comply with the attestation requirement as
recognized in” this court’s opinion in Deepwater Horizon III. BP also noted the
following in its recitation of the facts: (1) due to the economic recession and
regulatory changes, Claimant’s revenue decreased significantly from 2007 to
2009 and increased in 2010; and (2) in 2009, Claimant entered into an
unfavorable take-and-pay contract which required it to purchase more steel
than it needed at above-market prices. While BP did not brief the issue fully
before the Appeal Panel due to a stipulation by the parties, its briefs on appeal
make clear that it believes these facts prove that Claimant did not suffer any


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                                      No. 18-30835
post-spill “loss” that was “caused by” the oil spill despite filing a certified Claim
Form indicating that it had.
       The Appeal Panel unanimously ruled in favor of Claimant. Rejecting
BP’s attestation argument, the Panel emphasized that “[t]his position has been
rejected by every Panel that has considered it and it will be rejected here as
well,” although the issue was preserved for appeal. It further noted that the
information BP provided regarding market factors that affected Claimant’s
business was not “material to the assessment of this appeal.” BP sought
discretionary review by the district court, 1 which the district court denied. BP
now appeals.
                                             II.
       We review the district court’s denial of discretionary review for an abuse
of discretion. Claimant ID 100250022 v. BP Expl. & Prod., Inc., 847 F.3d 167,
169 (5th Cir. 2017). The district court abuses its discretion if the underlying
Appeal Panel 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 is
also 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.’”                  Claimant ID
100212278 v. BP Expl. & Prod., Inc., 848 F.3d 407, 410 (5th Cir. 2017) (quoting
In re Deepwater Horizon, 632 F. App’x 199, 203–04 (5th Cir. 2015)).




       1 BP’s request for discretionary review raised two additional issues separate from its
attestation argument. However, BP does not mention these issues in its briefs on appeal, so
they are forfeited. Norris v. Causey, 869 F.3d 360, 373 n.10 (5th Cir. 2017) (failure to
adequately brief an issue constitutes forfeiture).
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                                  No. 18-30835
                                       III.
      BP contends that the district court erred in denying discretionary review
for two reasons: (1) Claimant did not suffer a post-spill “loss,” a “threshold
requirement” separate from the Exhibit 4C loss compensation formula; and
(2) Claimant’s attestation that its loss was “due to the Spill” was not made in
good faith. We will address each in turn.
                                        A.
      Beginning with BP’s arguments regarding post-spill loss, BP believes
that financial data submitted by Claimant demonstrates that Claimant did not
suffer a loss after the oil spill. Specifically, BP points out that Claimant
experienced a “dramatic drop in revenues” between 2007 and 2009, and that
from May to December 2010 its “revenues actually increased . . . compared to
the same months in 2009.” Citing evidence it presented to the Appeal Panel,
BP offers several market-related explanations for this revenue decline:
regulatory changes, the significant impact of the 2008 economic recession on
the electrical transformer industry, and an unfavorable take-and-pay contract
that Claimant entered into in 2009. BP insists that these facts prove that
Claimant did not suffer any lost profits after the spill.
      As the Appeal Panel correctly concluded, none of this information is
material to the question on appeal. We indicated as much in our Policy 495
Opinion, where we rejected BP’s argument in favor of using industry-specific
calculation methodologies to determine the compensation owed under the
Settlement Agreement. In re Deepwater Horizon (Policy 495 Opinion), 858
F.3d 298, 303 (5th Cir. 2017).     There, acknowledging that the accounting
methods in some industries may result in higher awards, we held that the
Claims Administrator may not reallocate a claimant’s revenue to “ensur[e] that
damages are awarded to those who have suffered real losses”—to do so would
not comport with the plain language of the Settlement Agreement, which gives
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                                  No. 18-30835
each claimant the right to choose its Compensation Period. Id. at 303–04.
Significantly, we emphasized that a claimant who “did not suffer economic
losses pursuant to tort principles” may still have “suffer[ed] economic losses
pursuant to the Settlement Agreement.” Id. at 303. Thus, under the Policy
495 Opinion, it is the loss compensation formula set out in Exhibit 4C of the
Settlement Agreement—and not BP’s definition or the plain meaning of
“loss”—that determines whether a claimant has suffered a post-spill loss.
Because BP’s arguments regarding Claimant’s lack of loss rely on financial
information and market factors not considered in that loss compensation
formula, BP has not demonstrated that Claimant did not suffer a post-spill
loss. The district court accordingly did not err in denying discretionary review
on this basis.
                                        B.
      BP next contends that Claimant’s attestation in its Claim Form that its
loss was “due to the Spill” was implausible and made in bad faith, and that the
district court erred by declining to address this implausibility issue. BP’s
argument on this point relies on the same evidence it presented in support of
its “loss” point of error: that any loss Claimant suffered resulted from market
factors such as the recession and an unfavorable contract, not the oil spill. BP
cites our decision in Deepwater Horizon III as requiring the Claims
Administrator and district court to investigate “suspicious forms” and “resolve
real examples of implausible claims” that arise during the claims process.
      In Deepwater Horizon III, we explained that “[c]ausation for BEL claims
is primarily addressed in Exhibit 4B to the Settlement Agreement,” which
“provides for the use of proof of loss as a substitute for proof of causation.” 744
F.3d at 375. As BP points out, however, we also emphasized that at the claim
submission stage, proof of causation is made by the claimant’s “certification on
the document that the claimant was injured by the Deepwater Horizon
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                                 No. 18-30835
disaster.” Id. at 376. Thus, a claimant need not provide evidence that its
economic loss was caused by the oil spill, as BP made a “contractual concession”
to limit the causation inquiry in processing claims. Id. at 376–77.
      Relevant here, we then provided an example to illustrate that a claimant
may be entitled to an award under the Settlement Agreement even if its
economic losses may have resulted in part from an alternative cause: Three
accountants were partners in a small firm in a region affected by the spill.
Shortly after the spill, one of the partners took medical leave. Although at
least some of the resulting decrease in profits may have been due to the
partner’s leave, the Settlement Agreement permits payment of the firm’s claim
without regard for this alternative cause. Id. at 377. As we explained:
      These are business loss claims. . . . [W]hy one year is less or more
      profitable than another [is a] question[] often rigorously analyzed
      by highly-paid consultants, who may still reach mistaken
      conclusions. There may be multiple causes for a loss. . . . The
      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. at 377. Thus, to facilitate efficient resolution of claims, the Settlement
Agreement substitutes “a formal assertion of the causal nexus” for the in-depth
causation analysis required in a typical business economic loss case. Id.
      BP appears to agree that the above framework controls the resolution of
BEL claims under the Settlement Agreement, but it insists that the evidence
it presented warrants an investigation into the plausibility of Claimant’s
causation attestation.   Our Deepwater Horizon III opinion forecloses any
categorical duty on the part of the Claims Administrator “to ensure that
implausible claims are adequately scrutinized such that those lacking a causal
nexus are rejected.” Id. at 378; see also In re Deepwater Horizon (Deepwater
Horizon IV), 753 F.3d 509, 513 (5th Cir. 2014) (concluding that the Claims
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                                  No. 18-30835
Administrator does not have an “additional duty . . . to ensure that every claim
contains a direct causal nexus to BP’s conduct”).              And the Claims
Administrator’s October 2012 policy statement, which BP did not object to,
clarifies that the Claims Administrator will not evaluate potential alternative
causes for a claimant’s losses. Deepwater Horizon III, 744 F.3d at 378.
      Here, Claimant satisfied the causation formula set out in Exhibit 4B of
the Settlement Agreement and formally attested to the fact that its losses were
caused by the oil spill.     While the evidence BP presents may indicate
additional, market-related causes for Claimant’s loss, the existence of these
alternative causes does not eliminate the possibility that the oil spill
contributed to cause Claimant’s loss, nor does it preclude Claimant from
recovering under the Settlement Agreement. In our view, Claimant’s case is
akin to the accountant example, where alternative causes may exist, but
determining the loss attributable to those alternative causes versus that
attributable to the oil spill would require the kind of “rigorous analysis” that
the Settlement Agreement was intended to avoid.
      To be sure, our Deepwater Horizon III opinion acknowledges that
“[s]uspicious forms [will] be subject to investigation” and suggests that district
courts “resolve real examples of implausible claims.” Id. at 377–78. But we do
not believe this case presents such a claim.         This does not foreclose the
possibility that in some other case—where, for example, the Claimant’s
attestation plainly gives rise to suspicion or BP has presented credible evidence
of a sole, superseding cause for a claimant’s loss—an investigation into the
plausibility of the attestation may be warranted. Here, however, because BP
has not demonstrated that Claimant’s attestation is implausible, the district
court did not err in denying discretionary review.




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                                No. 18-30835
                                     IV.
         For the reasons described, we AFFIRM the judgment of the district
court.




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