where the parties discussed every single issue as the documents that are before you the steps it was an arm's length transaction well represented parties and there were given take an agreement that will reduce providing them eleven hundred pages was submitted to the court notice was given and the claim in a stranger's had a limited authority to implement the sum again that's not what the fixed cost for compensation for these people the wife's wedding garcia tax records were part of their filing and their claim was calculated based on a  profit calculation and those tax records are not in this record there's in the dictionary exhibits that were submitted there's a statement as to their total recovery which would include their loss of a profit margin for future time that they chose their benchmark period it's not in this record for the total about eight hundred thousand dollars  what i'm getting at i don't understand the evidence you say your candidates come up with and thirty thousand they have these v if they had put in the total compensation these people said they were entitled to let's assume it was seven hundred thousand dollars if they put that plug that number into the bill klein it said these are our fix negotiated economic loss claims for the individuals it was a basic presentation of what i made in the bitch market which is the preschool period and i could pick up to ninety but i had to have ninety days or more in the situation five for mr killings and there they have a calculation of the total monthly income in the benchmark period which would mean the reported amount ok how much was that was anywhere near seven hundred nine thousand dollars actual compensation during the benchmark period what these three men's compensation was what would that have been my understanding if you take the compensation that was treated as a  draftsman at that firm who's getting paid thirty thousand a year have the right under the settlement to find file and i know that if they could they have a right to file but yeah post their class member yeah and then they would have to follow exhibit a and they would have to show by their records that they suffered a loss if you did not suffer a loss you would not be entitled to receive the well if the whole farm lost nearly a million dollars presumably some people weren't working for a period of time or maybe that was not a variable cost that was expended but if you look at the records they the owners put money into the business in two thousand and ten to cover so i do not believe that but supposed to work if you're an owner if your own office or your compensation is a fixed cost are she supposed to put in what your actual compensation for that been smart period was three days of thick skulls for expense was eight hundred sixty two thousand in two thousand and ten they used three hundred seven thousand because that was their actual expense and in calculating their claim they can use three  was that the fixed compensation cost for the b l i don't understand what the difference because in the ideal framework they were told to take ninety days or more of their past and this is in this case they took nine months and compare what they made in the year of the spill and the difference was their loss and they got a point two five zero or t p on top of that that was the methodology that was agreed to for an individual it was calculat or not yes they used what they spent which is what their actual fixed expense was ok it's a lot less real seven hundred seven three hundred seven thousand is that is that's two thousand and ten right which is the period that she's asking me about thousand and ten which is in the record and shows that it's only about an eighty thousand dollars benefit to the architecture for a still understand and like unless we know what number they are using the benchmark  know that the expenses for these three individuals as their compensation is owners and officers in two thousand and ten was three hundred seven thousand dollars that's in and i know that when you calculate their combine the good to wage loss it's in excess of seven hundred fifty thousand dollars that's ones i can tell you that i have the data for the actual time but i don't have anything in this record that gives me the fleischmann garcia or potential firms claim that said oh isn't officers we're not going to treat you as an individual economic losses but there's nothing in the document to support that well let me ask you a question though obviously a previous panel of this court thought that this was a very significant issue how many people are there in this position who could allegedly claim for a professional corporation and as an individual economic loss i only have  would not have any way to know the actual number so what was it the fifty or seventy five in the size you know the multi billions that we're talking about ours is not a lot so why are you so upset about all this well for two rigs i mean i know you're representing your client that i'm a mr rice doesn't come to the fifth circuit for nothing will thank you i've been here several times  business against the owners and officers both of which are class members both of which were told by the court in the final document that nothing's there one classman receives will interfere with what any other yet that's exactly what's happened here well no wait i mean is it a conflict or isn't it said alternatives it's a i believe it to a conflict two hundred because there is no offset provisions provided and what we try to do in front of the panel and in front of the district court is to show that you work creating this conflict because you were pitting a recovery and that makes it worse is if you apply three sixty three and it has been applied this way it's first come first serve so that if the employees get there first they get paid and then if the business comes in later it gets paid with an offset but if the business comes first he gets paid and when the employees come that you bargain well how many employ i mean service exactly exactly where the employees and officers file a joint a tax return because they're all the awnings during the negotiations we had a map that gave us the ability to circle an area at a time and businesses that were in that area but now you let me ask you one of the question since your time is technically out but this is they make the argument that you waived this broader issue about do open double compensation because all you asked for in the lower regions or whatever the other process you know the preceding process was for an offset that's incorrect ok if you look at the documents are people br ok thank you i just want to make sure i understand the process is a hypothetical matter let's assume that i'm not suggesting at all this is what your clients do but let's assume you have owner operators and by the benchmark period they put in a lowball number for compensation for themselves and that results in a higher profit under the b l that not right if the company had a actual not to the extent of the iowa coverage but the point i think you're getting to needs to be prim is that we're using tax records to do this that were created before the settlement came about i'm just saying yeah  business with tons of experts at the table in an eleven hundred page document that does everything in the for you can imagine to try to explain itself nothing not one word is mentioned about owners and often being treated differently  the tax records that are being used will continue for a measly retain maintain records from a period of time where they had no idea what the sun was going me if there was going to be a son or so there's no li y please the court on geoff clark from kirkland else here in the house of b p let me start with judge owens series of questions about the numbers because i think i can help there in terms of why mr rice's approach is really an apples and oranges did work closely with the economists and i understand the way in which the b e l program was set up so it's a variable profit analysis that looks at to a change from the benchmark period to the period after the spill to look for  impacts the spill might have so variable profits are not revenues minus variable expenses so fixed expenses if something is classified as a fixed expense it's not going to be subtracted so if you wind up in a period where you know you in the post bill period voluntarily reduced executive compensation because you had last you had a harder economic situation to deal with your  benefited by the fact that exhibit four d specifically provides that fixed expenses that all is in owner officer compensation is going to be treated as a fixed expense because even if you reduced it even if it really worrying  variable expense it's not going to be treated that way that's favorable for you so what mr rice offered to do it's kind of clever but the district court very easily rejected it he said well we're going to have our accountants assume that the owner officer compensation were actually treated as a variable expense and then if it is treated like that in the hypothetical world we're going to run some numbers i'm going to see how much that actually benefited us and then we're going to offer to give that back if you look at eight hundred four zero six of the record on appeal you'll see where the appeal panel spotted that that's what mr rice was offering to do to give back that sometimes i call it b yell sweetness and the problem with that is that that's just entirely foreign to the way the settlement agreement works in exhibits for a through deed and the district court said that in its opinion very clearly furthermore the court does not read the settlement as permitting claimants to choose to have owner officer compensation reclassified as a variable cost under the b l framework or to have their ideal claims set off by the amount of compensation the firm contradicted by the text of the settlement agreement and the way that it works it's just a hypothetical way that mr rice formulated with some accountants to try to create a fact issue and some sort of doubt about whether they were being made whole or not under the settlement agreement so at that point let me talk about mr rice's make whole argument so his argument about what makes claimants whole is circular because it assumes exactly what he's trying to prove he's trying to prove that he should get really three things the base b e l compensation all of the i p l compensation on top of that and the b l sweetener from this special off fixed cost one size fits all treatment that exhibit off for four d supplies the reality is that if for if you were a situation where say someone were injured by this bill to a tune of one hundred thousand dollars and under the arguments we were making you know the owner officers even if you netted together the b l word they were only getting ninety thousand dollars right then you could make an argument of b p s interpret nation is leaving people in a position where they're not being made whole but that's not the situation we're dealing with here it's very important to understand that once you get a b e l word once you get to the notion of how much variable profit was lost from the benchmark period to the period after the spill you don't just stop there you apply other variables like a growth factor and most critically you apply with the agreement refers to an exhibit fifteen as an r t p a risk transfer premium so what that does is it takes the award that makes you whole makes the business whole and it adds additional compensation on top of them so here on r g p for a zone c business in tampa is zero point two five that doesn't mean you get twenty five percent of the compensation will make you whole it's an additive multiplier so it means you get one hundred twenty five percent of what would have made you whole so the whole notion this whole kind of concept of you know this these folks are not being made whole is also a time era because they're getting one hundred  twenty five percent of of the us plus they're also getting this favorable treatment in exhibit four d that provides that fixed costs and then i'm sorry the owner offs are compensation regardless of the matter as a matter of fact of whether it would be variable or not because a business might rationally reduce its executive compensation in response to the spill it's going to be treated in all instances in a completely favorable way across the board for everybody else up kids how many of these one i've been on about fourteen and that helps maybe three that special master frees involved in as opposed to b p where he is you know either defending or or potentially taking appeals against what happened in the court supervise with respect to push drilling the settlement agreement in different kinds of coins which are you in disputes about this particular economic law settlement agreement there were and there was one appeal i should also point out where the issues involved pose the medical settlement that's the only appeal i know of so there's just one medical peel settlement but it actually was kind of a combined economic loss and medical settlement appeal ok well our human stain the answer because it's about  d at least i mean i saw you last month and that was you know another peel concerning the settlement agreement and the layers below decisions of whether people were you know in this corporate firm versus yes ariel's were getting where it's a dispute under the so much agreement not about the original you know who got harmed but appeals where we're being called upon to construe the compensation was comparable to what you're claiming now i'm not sure i understand that question i think that there are there is no dispute i don't think that there be no award was properly calculated and so that you don't know what their officer compensation was in that calculation it wouldn't have been in the calculation you're out of that's what i was trying to explain because it would have been treated as a fixed cost right so the only reason why there's a calculation about  know you said they didn't look at fixed cost at all yet because if you're doing a variable profit analysis you're just a crack to the variable expenses no so you know i say as an example in terms of the way i learned this in economics class right if you had a building right that you had sort of purchased and own you know you don't if you're sort of figuring out whether your business is a on going basis is economically viable or not you don't really look at you know what you know the costs are related to that building if they're not variable cost if they're fixed cost they're sort of there are a son if that makes sense so that's what the economists focus on variable profit here and not revenues minus your total expenses you're looking at this all operating profit right right you're looking at your this economic concept of variable profit and that's what the parties agreed would be the baseline for doing the analysis the other reason why the numbers don't line up is because and i think this or i said this in his answer to you the two programs have entirely different set of variables right so you're you're doing one entirely different set of variables like you know maybe four or five variables i'd be you know another set for  owner operator compensation so i think if you take a step back to the stage where we're negotiating i would say that there were alternatives right we could have decided to just say look as most economists would say executive compensation because it can change as a result of some of it is a variable expense and not a fixed we decided across the board to give this fixed expense treatment as a favorable you know way to  increase compensation having done that then that's why there can't be yelled compensation because that's what the double recovery but they could have requested either one if they had decided essentially to fo controls in general about owner officer compensation and provides that it will always be treated as as fixed costs it was at their corresponding special and i think this does not apply to operat expense which inherently makes b l awards pop up and get bigger if it wasn't intended to exclude and judge barbie and enter and judge barbie a that's that's how the judge barbie it read the agreement in that in the in the prior appeal the you know the remainder occurred because the court wanted judge harvey's views being the most familiar with the agreement on this issue and you know i frankly submit to you that he didn't think that the question was was very hard so you know it could could there have been a you know another reference and exhibit a day to eliminate any ambiguity you know perhaps but i think he may ar ambiguity i think we are that's what we're arguing in terms of the double recovery point right if if the agreement if you look at the agreement as being ambiguous then you should construe it as this court did in the walker fishing i think we've argued that in the alternative your honor in you know that we've argued the double recovery point right i think the double recovery point it's not you know free standing where is it it would be conceivable if there are two programs and they clearly said you get a double recovery you know you would be able to say ok we'll ignore the text of the agreement was it a give you an example you have special compensation programs for shrimpers and doctors evidently how many special compensation programs do you have there about ten of those each one of those say you cannot get i yell compensation if you're in this program you know you're the point though you know that because because the opposite of that is that every person in every one of those programs who also files the sub s or something could were separately negotiated and then you know he uses this point of kind of w two wages to almost be a confer like these are sort of little folks you know look if you had a business i think steak like let's say mcdonald's filed a right there could be lost business profits by mcdonald's and also the people who work at mcdonald's can file on yelp claims the only dispute is what happens when you're talking about this special problem which is exactly what exhibit four d is designed to solve but i get that of meal contract where we're construing it against a drafter i mean it's not it's a very sophisticated agreement over one hundred pages negotiated by both that so there's no construe against a draft but i've been on some of these which is to say b p knew how in the negotiation to nail it down put a rivet in it put concrete in it put everything in it but only other here in the pacific where at least is arguable you know  no other it's to say b p would never have agreed to x if it were meant to be you know whacked so to speak so not argue the specific language in there but are going step back understand in now specific provision that says you know you have to do matching it was deduce from the logic of the fact that in exhibit four c you have this variable profit test which you know takes revenues and then subtract corresponding you know variable expenses from it and so if you're going to do that you can't it doesn't work economically if you could do what was happening before that decision disciplined it and said that was incorrect under the settlement agreement you would just get you know an economic mission you get something that doesn't make any sense the whole the whole point of these exhibits series for a three four d is to produce this economically rational result and what's happening here with the special problem of owner officer compensation which is a very special issue because insiders can control whether earnings are retained or whether they get paid out that's why we settled after extensive to go see asians on this special note in exhibit forty and that's what we're trying to enforce as a textual matter but i think it's actual matter but even if you if you were to view it as you might be suggesting chief judge stuart as as being potentially a big us you know i think that that's where the the anti double recovery notion comes in which the court did adopt in the walker fishing fleet case a prior c s s p appeal and so both on that the text the economic logic and the notion of it being ambiguous is tied to no double recoveries full of those things we think they all judge barbadoes this agreement i'll take a shot at seeing if i can get this offset concept you know him to adopt that and he was flatly rejected that argument as well so you're backing off the labor argument now what you wrote i think that's part of the strategic choice i think he mr rice is correct and made this argument at the c s s he his full blown argument and his argument of if you do my math my hypothetical math it doesn't comport with the settlement agreement that you know as an alternative i also went  that ground but when i got to judge barbier he really put his eggs in the basket of give me the offset as a matter of fact there is no double recovery here because i'll pay back the b e l sweetener that comes in with the exhibit forty treatment and there's no negotiating agreements you expect those agreements to be follow their contracts that if the court approves and they're binding and there's nothing in this contract that b p can rely on that excludes an owner of an officer that but they have got nothing that's still two hundred nine thousand per per guy right but if you look at their historical wages they were making two in three or four hundred thousand it well in their view to wages i understand that's and if you get ill two thousand t b did they not the company did get that yes correct so that they divided up three ways i'll betcha and that you know buys a nice new boat for each one of them well number one the fleischer garcia records are in the settlement agreement does not give an individual taxpayer an option they have to file under the detail plan there is no i did they would be because it also requires the business to file under the issue only matching in the previous appeal was because a cruel accounting did matching and cash accounting was being interpreted be cashel cash there was an internal inconsistency that's what made that ambiguous there's no internal inconsistency here whatsoever well and in the claim form area seems that they pay their people their compensation for the boy the right so you take a gross revenues as if there was nothing except pain the electrical bill and a few draftsman every month and therefore the the revenue the operating profit is much higher than it would have been a few factored in final approval this was not in during the certification process of doing consideration it's now after is complete it's a binding contract and judge bar b wasn't wrong when he said the claims framework function so as to ensure that event if it paid one member of the class will in no way reduce or interfere with the benefit attained by another that's at the final approval of seventy seven seventy eight the these parties these men sophisticated