BP EXPLORATION & PRODUCTION, INCORPORATED; BP AMERICA PRODUCTION COMPANY; BP, P.L.C., Requesting Parties - Appellants,
CLAIMANT ID, Objecting Party - Appellee.
from the United States District Court for the Eastern
District of Louisiana
HIGGINBOTHAM, ELROD, and DUNCAN, Circuit Judges.
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
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
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
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 post-spill
"loss" that was "caused by" the oil spill
despite filing a certified Claim Form indicating that it had.
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,
which the district court denied. BP now appeals.
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 Fed.Appx. 199,
203-04 (5th Cir. 2015)).
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" ...