     Case: 16-30786      Document: 00513971788         Page: 1    Date Filed: 04/27/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit
                                      No. 16-30786                             FILED
                                                                           April 27, 2017

CLAIMANT ID 100247288,                                                    Lyle W. Cayce
                                                                               Clerk
              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. 2:16-CV-4028


Before JONES, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM:*
                                             I
       Felder’s Collision Parts, Inc. (“Felder’s”) is a merchant in the
aftermarket for auto parts in the Baton Rouge area, selling used parts to
collision and repair centers. It filed a Decline-Only Business Economic Loss
(“BEL”) claim with the Court-Supervised Settlement Program (“CSSP”). As a



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-30786
Zone D Decline-Only BEL claimant, Felder’s needed to satisfy the three prongs
described in Part III.C of Exhibit 4B of the Settlement Agreement. Only the
second prong is at issue in this appeal. The second prong requires a Zone D
Decline-Only BEL claimant to provide:
      Specific documentation identifying factors outside the control of
      the claimant that prevented the recovery of revenues in 2011:
            • The entry of a competitor in 2011
            • Bankruptcy of a significant customer in 2011
            • Nearby road closures affecting the business
            • Unanticipated interruption resulting in closure of the
                business
            • Produce/Source replacement by Customer,
            • Loss of financing and/or reasonable terms of renewal
      Felder’s’ initial claim was denied by the CSSP because Felder’s failed to
provide any documentation purporting to satisfy the second prong. It sought
re-review of the denial, submitting a one-paragraph letter from Whitney Bank
indicating that it had been denied a commercial line of credit in “late 2011.”
The CSSP concluded that the Whitney Bank letter did not sufficiently identify
a factor outside Felder’s’ control that prevented it from recovering revenues in
2011 and again denied the claim. Felder’s sought reconsideration of the second
denial based on the same documentation and was denied a third time. It then
appealed to the CSSP Appeal Panel.
      In support of its appeal, Felder’s provided (1) an additional letter from
Whitney Bank clarifying that the line of credit Felder’s had sought from the
bank was for an immediate cash infusion in late 2011, and (2) documents
describing a program by General Motors (“GM”). The program, called “Bump
the Competition,” provided collision centers with new parts at or below cost so
as to destroy aftermarket competition.
      The Appeal Panel denied Felder’s’ appeal, holding that: (1) the Whitney
Bank letters did not show with sufficient specificity how the denial of the line

                                         2
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                                       No. 16-30786
of credit affected Felder’s revenues in 2011; and (2) because the documentation
provided by Felder’s regarding the Bump the Competition program showed
that it had been in place since 2009, those documents also did not show with
sufficient specificity how the program prevented Felder’s’ revenues from
recovering in 2011. After failing to convince the Appeal Panel, Felder’s sought
discretionary review by the district court, which was denied. It now appeals to
this court, arguing that the district court abused its discretion in denying
review. We AFFIRM.
                                             II
       Felder’s argues that the Whitney Bank letters and/or the documentation
it provided describing the Bump the Competition program are sufficient to
satisfy the second prong. We address each in turn. 1
       A. The Whitney Bank Letters
       In its submission to the Appeal Panel, Felder’s provided two letters from
Whitney Bank. The first, addressed to “Mr. & Mrs. Felder,” stated only that
“Whitney Bank received a request for a commercial line of credit in late 2011.
Based on the financial information provided at that time, Whitney Bank was
not able to approve the request.” The second follow-up letter added that “the
purpose of this loan request was for an immediate cash injection to sustain
business operations of Felder[’s] Collision Parts, Inc. in 2011.” The letters do
not indicate the amount of the requested line of credit or how the loan might
have been used to recover revenues in 2011. Indeed, to the extent it indicates
anything at all, the second letter tends to show that the loan was intended



       1 The parties argue extensively regarding the proper way to interpret the second
prong’s text as it is articulated in Exhibit 4B. They dispute at length, for example, over
whether the bulleted list of factors described is illustrative or exclusive. We need not reach
this or any other question of textual interpretation, however, because Felder’s’ contentions
fail even if we accept its interpretation of the provision.

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                                      No. 16-30786
merely to sustain Felder’s’ status quo in 2011, and not to expand operations or
recover lost revenues. We therefore agree with the Appeal Panel that the
Whitney Bank letters are “insufficient to show a factor outside Claimant’s
control that prevented a recovery of revenue in 2011.” 2
       B. The Bump the Competition Program
       The documentation provided by Felder’s regarding GM’s Bump the
Competition program is insufficient on a number of fronts. Felder’s provided
the Appeal Panel with: (1) a document, evidently given to the owner of Felder’s
by an employee of a competitor and dated January 1, 2009, which described
the Bump the Competition program and included spreadsheets listing prices
for specific parts within the program; and (2) a sworn affidavit from the owner,
stating that he was personally aware of at least one competitor who
participated in the Bump the Competition program. Felder’s argues that these
documents are sufficient to establish that its competitors used the Bump the
Competition program in 2011, and that said participation prevented recovery
of Felder’s’ revenues.
       We disagree. First, the documentation provided does not establish that
any of its competitors participated in the Bump the Competition program in
2011. The documents from 2009 are obviously insufficient on this front. And
the owner’s affidavit is also insufficient, in light of the Claim Administrator’s
Policy 474, which provides that “[a] document prepared by the claimant . . . or
the claimant’s attorney is not sufficient on its own to satisfy” the second prong
of the Decline-Only BEL test. Furthermore, the owner did not testify that any




       2 The Appeal Panel noted that, because the loan was denied in “late 2011,” it was more
likely that “any effect a granted credit line would have had would more likely have occurred
in 2012.” Because we hold that the letters are too vague to show that the cash infusion might
have impacted 2011 business operations, we need not evaluate the reasonableness of the
Appeal Panel’s determination on this front.
                                             4
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                                       No. 16-30786
competitor was, in fact, participating in the Bump the Competition program in
2011. 3
       In short, these documents are woefully inadequate to establish that the
Bump the Competition program prevented Felder’s’ revenue from recovering
in 2011. 4
                                             III
       The documents Felder’s provided to the CSSP and Appeal Panel were
inadequate to satisfy the second prong of the Zone D Decline-Only BEL test as
described in Exhibit 4B to the Settlement Agreement. The district court’s
denial of discretionary review is therefore AFFIRMED.




       3  The owner did testify that “[t]he effects of the Bump the Competition program – lost
sales to [a named competitor] – were felt by Felder’s in 2011 and prevented any recovery in
revenue by Felder’s in 2011.” But this statement is (1) too conclusory to be worth crediting,
and (2) does not actually claim that any competitor was participating in the Bump the
Competition program in 2011.
        4 The parties argue at length as to whether the “in 2011” language in Exhibit 4B

requires that the factor preventing recovery of revenues must have been unique to 2011, or
only that it existed in 2011. The Appeal Panel concluded that the former interpretation was
correct. We do not reach the issue because, even accepting the latter interpretation, the
documentation provided by Felder’s was insufficient.
                                              5
