even though the claimant is part of one of the world's largest companies the settlement program the appeal panel in the district work nonetheless all in gauged in a fiction but that's the fact that they're one of the world's largest companies that's not scenario where it never had the prior period of operations and they were only opening for the st time in this location less than eighteen months before the spill and if i agree that's correct it doesn't matter whether it's wal mart the wiggly or whatever but the but i think it does make a difference here and the reason for that is because the test for determining whether or not you are a standard bell claimant or a start up business claiming you're looking at the totality of circumstances to determine w is operating history one does that operating history and so when you're taking into account that they operated beginning in two thousand and three for almost two years and then you have this period of dormancy when they go back and they block with thirty four destroyed crews who building new through work they expanded the size of the store and reopened at the same location it's the same business line but you're owner of a good back to the question where you started sporting good which had basically a mall kiosk rate that looks like an actual start up business here when they reopen the steward in october of two thousand and nine they're not starting fresh they are building them off of an existing infrastructure for sourcing inventory they've gotten name recognition both nationally from advertising but also they have the name recognition from their prior the prior steward in that scene location they have massive amounts of capital that they can draw upon in order to begin their operations and contrast that to three thousand and thirteen that would be different if they had i mean if the if they've never built the we have the language of the agreement itself and the language of the definition of a start up business this is a contract that were interpreted in thirty eight dollars which is the definition of a start up business it says that it's it's you're looking at are their business operations do they have more than eighteen months of operations at the time of the spill so that doesn't say anything about continuity of operations which is essentially what the clean man's position requires that's what the appeal panel decision here requires is that you're inserting a new requirement into the definition of start up business in thirty eight point one three seven and so our interpret is i'd agree with you to some extent iran or that if this were an opening that occurred for the st time at that location within eighteen months of the spill we would be dead in the water we wouldn't have an argument it wouldn't matter if it were piggly wiggly it wouldn't matter if it were a mom and pop nonspecifically challenge the policy you're right it's not binding on the court the language of the agreement is what's binding three hundred and sixty two i think provides hopeful flavor to understanding this the other thing that will refer you to your honor i don't think any of the parties cited it in the breeze but there actually is a decision from this court that talks they think almost directly to your question and that's the whole decision it's if we we'll back the clock about fifty deepwater horizon cases back to tw claimant was essentially arguing that it was i think an automobile dealership and maybe they started in the scene cars and they tried to make an argument that leasing was a new line of business and therefore they were a start up  it doesn't work like that the entity is but it is the claim and not be business law and so i don't know if that gets exactly what you're getting at the other the other point i think is that the last sentence of policy three  stores i think in the eastern gulf coast and the filed clean's on behalf of i think it's about nine separate still worse but you wouldn't take the position that therefore we consider all analysis is carried out and i think that's how the analysis was performed at d c s s p level and at the appeal panel level so and just to be open we were here a couple of weeks ago arguing about  are five of the other stores which were consolidated all together those stores were separate claims they were as i said consolidated and they had completely separate issues and they were treated as standard bell claimants not as a start up business claim you well but but so to get back to your question we are looking at this specific store as the entity but as we started off with the fact that it is part of this essentially massive application of the start up business nomenclature to this particular claim and even when you're doing it on a store by store basis simply flies in the face of common sense it's speaking of common sense if we agree with you that  that what the reason they don't qualify under the bell framework is because they were making more money in the post spill period they have this argument that there has to be more money going to work than in the priest bill so  they start up so if you look at the free markets in the benchmark period they open in october two thousand and nine and essentially from the get go they're making millions of dollars i think october two thousand and nine it's something like two million nine  dollars even though it's not a full month then for the remainder of two thousand and nine which is one of the benchmark periods on an average monthly basis they're earning something like four two or four million three hundred thousand i don't remember the exact number but i know we have it in in the brief and then in the post bill period the compensation period under the bill framework there compensate their revenue their their their profits that it goes up they're making more money in the period immediately after the spill than they are before it that's why they don't qualify under the bill framework now they make this argument a structural argument and i think it's notable that they've they've they've pivoted to making the structural argument because the plain language doesn't help them but their structural argument essentially is because we don't have revenue from every month in two thousand and nine we were and i think they see this in a footnote because we don't have revenue for all of up to hoover two thousand and nine we essentially can't even get in the in benchmark periods are in the post spill period and so the idea behind the framework of course is that if you're a start up business if you're entering into operations less than eighteen months before the spill then the still it's that sort of up and everything and if you're a new business you just don't have the track record to to have the revenue and build up profits to be able to qualify as a bill clean whereas if you look purely in p determine the compensation in benchmark periods that makes it somewhat easier for a brand new business to qualify so that i think is the logic behind the start up framework as opposed to the bell framework you the argument is made that there's nothing really in the settlement agreement that contemplated the situation that hang on this dominance dominance the dominance the period i don't remember that you are the you're council opposite but that seems to it's interesting that b p didn't come in and say well they don't have a claim because the settlement agreement doesn't cover that you didn't make that argument so because it's ambiguous it seems that makes it all the more discretionary on the part of the appeals panel so i disagree that it's ambiguous i think there is a fundamental distinction in contract law be too well ok then do you agree it's not contemplated in the settlement agreement well i disagree with that i'd look at the plain language in the plain language of thirty point one three seven does not have a reply are meant for continuity of business operations for the eton months before the spill full stop that's where the analysis those lawyers and business men and women were sitting down in conference rooms hearing out this settlement agreement did somebody sit there and how foremost in their mind the dormancy scenario i honestly don't know i think it's just as likely that they didn't as they did but you don't even get to that unless the make the threshold showing that built that the agreement is unclear and it's not it does not have this continuity requirement that they are focus on and i think you see that most clearly in that the hand i believe the language in the agreement does contemplate this situation and i think b p has some artful language attempt to create an ambiguity that does not exist there is simply no question in our mind on behalf of wal mart that this was a new store prior to the building of the store which did not begin construction until october of two thousand and eight in its completion  physical store was but it was an operating business it had that store like many other stores had then an operating business but it did not like to meet the appeal decision in three  seven where that business the metal products business it never stopped operating it continued to operate it did not sell as much but the appeal decision makes clear that they continued to sell position as i recall that it should be classified as a b in that i'm sorry that's not correct they took the position apologized and they took the position that it should be treated as a start up business and the claimant prevailed in his position of political year none of those things were true none of those things happened more would have happily kept the store open but it was destroyed by hurricane and i seen pictures in you three and they look pretty bad it doesn't look like it was totally destroyed wal mart then destroy it we did that wal mart had to go ahead and bring if you've seen the pictures you can see part of the walls are still up but because of safety issues and engineering issues the entire main was torn down and i i didn't grow up here i live in houston but to understand what happened in the past was the community it wasn't just at the store was destroyed there were no customers for that store for many years because the community was badly badly impacted in people did not come back and start moving in as i understand it so the community rebuilt for many years that that paid in your claim yes there's a reference in one of the footnotes to an article that describes the and so because we were not physically present because we didn't have any customers it's not until fall of two thousand and nine october that the store gets open fall of two thousand and nine and they showed no activity until october of two thousand and nine when wal mart that wal mart store began doing what it does which is selling goods to its customers but nd they came back to us to me and asked us for further evidence and we provided them because they asked for it which was our business license we didn't have the right to conduct business at that location prior to october two thousand and nine after the destruction our store we had to obtain and get a license to do that and to collect sales taxes that leads to sort of the argument you reference that one can which is it is position the way they have articulated that this is a heads b p wins tails wal mart losing position but not for the reasons i think my colleague has clearly articulated one of the requirements required in order to comply with the explicit written requirements of the agreement this all struck me i'm just trying to think of this logically it's a car you get in trouble and this is wal mart the change the lack of data for that period was nothing to do with the oil spill it was everything to do that can't be lost for example it's worth like to me we're now goes to the basketball player who yes he doesn't have the income or whatever but it's not because of the oil spill it's because you're comparing something like a casually loss it is just logically if you're following up my argument or errant thinking here and i think the difference here is your and it goes to a question also just like us and i think like college degrees is if walmart had not built a store ever in pass christian until but again if we opened a nd store in pass christian mississippi that too would be a different story here i think the distinction is and it's why i think the appeal panel decision is relevant the  one that involves the watersports business is like that this was an instance where the business wasn't in existence it was destroyed and the agreement from a either one or the other but here to start a business is designed to get people who don't have enough experience in a track record because they know that when you start from scratch it's going to take time to get customers  and that typically speaking they're giving a benefit of the doubt to start up and it takes a lot of get legs whereas this is been a store that had legs and as soon as it opened up its legs or even stronger it's not a typical able to take off not all wal mart's almost wal mart stores succeed and in this instance they were coming back into a community that had been devastated they did not know how big their customer base would be i also want to address because my colleague also mentioned this i think it's a bit of a false dichotomy but this notion that we were more profitable in two thousand and ten than two thousand and nine is in fact not accurate and we addressed this in one of our footnote too and it's not accurate for a couple of reasons st is this story is in what's called zone a of the settlement agree which means there's no causation requirement that's not we're not having to prove how much we would covered it better the nd part is the numbers they have quoted to you which suggest a higher monthly average revenue in two thousand  than two thousand and ten is simply based on the fact that they treated all of october as a poor as a month when we were in operations but the exhibits and that they submitted to the appeal panel made clear from the news articles did not open until october th we have a license to begin october one but the store did not open until october th and if you simply make the adjustment of treating our two and having two and a half months of revenues and dividing the full revenues for two thousand and i'd like two five instead of three it dramatically shows that in fact this store was doing better in tw there's no evidence the store opened october th that's not correct and the record excerpts that we have submitted that they are the ones who originally gave to the appeal panel particularly if you look at our can overturn judge barbie is decision not to grant discretionary review which is if there's a split in the appeal panels it is but i really think a careful review of those shows that's not the case as i mentioned the metal products from january two thousand and eight till two thousand and thirteen so they weren't impacted by a hurricane or by an act of god they didn't lose their store in their physical operations they didn't lose their customers and they never stopped doing business concedes they were wiped out their store went out they had no location they had no inventory they had no sales and then they decided to open a new store in two thousand and eight and the panel found that s with you judge duncan about wal mart being a big corporation i agree with you i do not think that's relevant at all and i think the council has now conceded as he said is that they're not using wal mart's sort of general corporate existence as a basis to deny particular location from being a start up business and all of the claims that have been submitted to date have been treated separately and i just want to clarify yes the five cases five other claims forty five stores in repeal they were not consolidated into one claim the claims were consolidated because it was and that case involves some accounting issues that were consistent that was a consistent accounting issue across all five and rather than have five separate arguments on accounting procedures we both mutually agreed to do that all in one yes but that other panel dealing with the five stores and we'll go look at the docket of course in the briefing but those issues have nothing to do with the so called dormancy issue nothing whatsoever i'm sure my colleague will agree those there is no overlap of any issues or frankly fact business claim they did what they were charged with doing and they did it properly they looked at our financials they looked at our profit and loss activity and the lack of activity prior to october of two thousand and nine which was only six months before the spill well with the eighteen month period for a start of business and they looked importantly i think the business license business license issue it's in october of two thousand and nine the appeal panel whitely concluded that that that this storm that the start of business requirements and the district court properly declined discretionary i mean our if we agreed with you our rule here is as an appellate panel is not to go unresolved in this issue with respect to you know what is the subtle me correctness of a discretionary administrative decision in the facts of a single case and i believe that decision is of some relevance here and unless there are any further questions from the panel thank you for to give me a little bit of advice  your honors in this case begins and ends with the plain language of thirty eight point one three seven and that's why your honor we can't just say that judge barbie didn't abuse his discretion denying review one of the prongs for when he is required to exercise review is a substantial mis application of this store it's the exact scene business you're on are they doing the same thing there at the scene location wal mart assigned the exact same store number that the the one of the key benefits of our approach in following the pla language it gets you it gets judged barbie it gets the appeal panels the c s s p out of the business of having to draw these lines are they completely out of business are they dormant what are they doing you don't have to do that t there was a period where they were wiped out by i think there is this claim and three thousand eight hundred and thirteen i'm not specifically aware of other clean instep were in operation before katrina they were knocked out and then they resume operations in the immediate preschool period three thousand five hundred and thirty seven however is still directly relevant to answer your question your honor this metal product that's correct your honor and we position in that case was that should be evaluated in the start business that's right and we lost that and so to then it can't be the case that the rules are different if the claimant is taking the position or p is taking the position the panel took a position in that case we argued consistent with what the panel said there to just say that that claimant had a downturn in business however dramatically i think  actually happened there and if you look at the the panel decision it's in in our record excerpts at thirty five dollars and what they say is that claim an experienced new sales between the months of january two thousand and eight in april two thousand and nine that's not just a downturn in business these guys were getting wiped out they had they didn't report any coggs they didn't report any salaries or any contract labor on their tax returns four hundred and twenty thousand and eighty two or two thousand and but the easiest approach is just to follow what the language says not add any new requirements into it and look in see are they in operations more than eighteen months before the spill or not and here it's been disputed in the face of the policy about the quality of the circumstances because i don't know what all the evidence was that was putting them on the devastation to the past christiana area there was quite an impact on that area that would affect your customer base and so you can say well wal mart with a big store ok will consider that a big company but on the other hand what was their customer base they're just so many factors and that's why we have these discretionary decisions within requirements satisfies the requirements from october two thousand and nine until the spill and there isn't no question that katrina had an impact but there's also no question that looking at the pleasing text satisfies the requirement