     Case: 18-31134      Document: 00514948028         Page: 1    Date Filed: 05/08/2019




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


                                    No. 18-31134
                                                                                FILED
                                                                             May 8, 2019
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
CLAIMANT ID 100260597,

              Requesting Party - Appellant

v.

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

              Objecting Parties - Appellees



                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:18-CV-8148


Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
       La Tour, LLC, a golf course operator, appeals from the district court’s
denial of discretionary review under the Deepwater Horizon Economic and
Property Damages Settlement Agreement. We find no abuse of discretion in
the district court’s denial of review. Therefore, we AFFIRM.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-31134
      After the Deepwater Horizon oil spill, BP Exploration & Production, Inc.,
BP America Production Company, and BP, p.l.c. (collectively, “BP”), entered
into a settlement agreement with a class of plaintiffs suffering economic and
property damages in connection with the spill. See generally In re Deepwater
Horizon, 785 F.3d 986, 989 (5th Cir. 2015) (describing history of settlement
agreement). Pursuant to the settlement agreement, a business suffering an
economic loss from the spill can submit its claim to the settlement program.
The claims administrator then determines whether the spill caused the
claimant’s loss and whether the claim is eligible for compensation. Dissatisfied
parties can seek review of the claims administrator’s determination from an
appeal panel.
      As is relevant here, claimants in geographic “Zone C” can show that the
spill caused their losses by satisfying the “Decline-Only Revenue Pattern,”
outlined in Exhibit 4B to the settlement agreement. To do so, the claimant
must show an 8.5% decline in revenues during a post-spill period, as compared
to a similar period before the spill. The claimant must also provide “[s]pecific
documentation identifying factors outside the control of the claimant that
prevented the recovery of [post-spill] revenues.” The settlement agreement
lists examples of such outside factors, such as the entry of a competitor, nearby
road closures affecting the business, or an unanticipated interruption that
results in the closure of the business. In the alternative, Exhibit 4B also
provides that claimants may show the spill caused their losses by satisfying
the “V-Shaped Revenue Pattern,” which compares revenue periods before,
immediately after, and a year after the oil spill. To demonstrate causation
under this test, the claimant must show that its revenue fell immediately after
the oil spill, as compared to the periods before and after the spill.




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                                 No. 18-31134
      Also relevant in this case are two policies that guide the claims
administrator’s review. First, Policy 328 v.2 states that the claims
administrator will exclude from the calculation of a claimant’s revenue certain
items “not typically earned as revenue under the normal course of operations,”
including “related party transactions that are not arm’s length transactions.”
Second, Policy 495 requires the claims administrator to “match” all unmatched
profit and loss statements. See In re Deepwater Horizon, 858 F.3d 298, 301-02
(5th Cir. 2017). Otherwise put, “the Claims Administrator must ensure that
costs are registered in the same month as corresponding revenue, regardless
of when those costs were incurred.” Id. at 302.
      Here, claimant La Tour, LLC (“La Tour”), which operates a golf course
located in Zone C, filed a claim for business economic losses under the
settlement agreement. The claims administrator denied La Tour’s claim,
finding that La Tour failed to satisfy the causation tests set forth in Exhibit
4B. La Tour appealed, arguing that the claims administrator erred by
classifying $11,812.50 as revenue in the claim calculation. The inclusion of this
revenue meant that La Tour could no longer satisfy the V-shaped revenue
pattern test. La Tour argued that the $11,812.50 amount was a new-member
credit it gave to a golf club member as an incentive to purchase a home from
La Cote, LLC (“La Cote”), its sister company, which sells real estate bordering
La Tour’s golf course. Because La Cote and La Tour are related parties, La
Tour reasoned, the $11,812.50 should have been excluded as related-party
income under Policy 328 v.2. And even if the $11,812.50 should have been
included, La Tour argued that Policy 475 required that the amount be recorded
as earned on a monthly basis, rather than in one lump sum. In the alternative,
La Tour argued that it had submitted sufficient evidence to show that factors
outside of its control contributed to the downturn of its revenue and, thus, it
could satisfy the decline-only revenue pattern test.
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                                 No. 18-31134
        The appeal panel affirmed the denial of La Tour’s claim. The appeal
panel found that the claims administrator “followed existing, governing law”
when it included the credit in La Tour’s revenue and that La Tour’s
documentation was insufficient to show that outside factors prevented the
recovery of revenues after the spill. The district court denied La Tour’s request
for discretionary review. La Tour appeals.
      We review the district court’s denial of discretionary review for an abuse
of discretion. Claimant ID 100212278 v. BP Expl. & Prod., Inc., 848 F.3d 407,
410 (5th Cir. 2017). The district court abuses its discretion to deny review
when:
      (1) the request for review raises an issue that has split the Appeal
      Panels and would substantially impact the Settlement
      Agreement’s administration once resolved; (2) the dispute
      concerns a pressing question about how to interpret or implement
      the Settlement Agreement’s rules; (3) the Appeal Panel misapplied
      or contradicted the Settlement Agreement, or had the clear
      potential to do so; or (4) the district court’s decision was premised
      on an error of law.

Claimant ID 100190818 v. BP Expl. & Prod., Inc., 718 F. App’x 220, 222 (5th
Cir. 2018) (unpublished). We have made clear that discretionary review is not
mandatory review: “The district court need not review a claim that raises a
non-pressing Settlement Agreement interpretation issue, or that merely
challenges ‘the correctness of a discretionary administrative decision in the
facts of a single claimant’s case.’” Id. (quoting Claimant ID 100212278, 848
F.3d at 410); see also Holmes Motors, Inc. v. BP Expl. & Prod., Inc., 829 F.3d
313, 316-17 (5th Cir. 2016).
      We find that the district court did not abuse its discretion by denying
review. On appeal, La Tour makes the same arguments it made to the appeal
panel. But none of La Tour’s arguments compels the district court to review its
claim. La Tour does not argue that there is a split among appeal panels on
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                                       No. 18-31134
these issues. Nor has it shown that its issues concern “pressing questions”
about the settlement agreement’s rules. La Tour’s only argument in favor of
discretionary review is that the appeal panel misapplied the settlement
agreement. La Tour’s highly individualized complaints are not the type of
recurring or substantial errors warranting review. Even if the appeal panel
had misapplied the settlement agreement, we have made clear that the district
court does not abuse its discretion by declining to review “non-pressing
Settlement Agreement interpretation issue[s].” 1 Claimant ID 100190818, 718
F. App’x at 222. To hold otherwise would “turn[] the district court’s
discretionary review into a mandatory review [and] would frustrate the clear
purpose of the Settlement Agreement to curtail litigation.” Holmes Motors, 829
F.3d at 316-17 (quoting In re Deepwater Horizon, 785 F.3d at 999). Therefore,
the district court did not abuse its discretion by denying review of this case.
       The judgment of the district court is therefore AFFIRMED.




       1 Moreover, it is not clear that the appeal panel erred. Most of La Tour’s complaints
concern problems of its own making. For example, La Tour argues that the membership
credit was a related-party transaction because it entered into the transaction with La Cote.
But it did not present evidence to support this claim to the claims administrator. In fact, it
did not submit such evidence until its reply memorandum to the appeal panel, despite the
settlement agreement’s rules prohibiting new evidence on appeal. See Rules Governing the
Appeals Process 13(h); Rules Governing the Appeals Process 14. Likewise, although La Tour
argues that the credit should have been matched with its costs per Policy 495, its original
financial statements recorded the credit as revenue earned in September 2010; La Tour did
not explain why it later altered its financials, which showed the costs as being incurred over
several months. And finally, La Tour’s provision of a news article and flyers related to a
nearby construction project are insufficient to satisfy the decline-only revenue pattern test.
None of these documents sheds light on how the construction project affected nearby
businesses, much less La Tour. And without comparative data, it is impossible to determine
the significance of La Tour’s weather-related data. La Tour argues that a nearby business
received different treatment on “the exact same factors.” But the appeal panel decision from
that case indicates that the claimant provided additional information beyond what La Tour
provided to show that outside factors caused its decline, including evidence that the area had
been declared a “major disaster” and that two competing businesses entered into its service
area.
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