economic law settlement agreement first there were substantial indications that burke's alters primary business activity at the relevant time was as a specialty trade contractor for oil and gas companies which is a business category that's expressly excluded from the settlement class the appeal panel nevertheless found burkhalter eligible to recover based on superficial representations by burkhalter the it that the appeal panel led by without any scrutiny court looked at what the proper code was and how but it was still explainable in this oil and gas exclusion was a critical deal point for b p an interesting into the settlement and if it just goes by with rubber stamping and there's no real effort to look overwhelmingly in favor of it being an oil and gas business for several reasons first there's evidence number of cultures website and that's well documented in the record that the website it's from pages two seventy two to seventy six o the website they say they provide complete solutions engine ear to heavy lifting rigging and transport solutions for petrochemical and other industries surely do provide services to other industries but it's telling that petro chemical is the first one that they list they go on to say that they make soup or they make complicated super sized heavy refinery projects run smooth and say that's page two seventy two of the record and they tout their expertise in operating in within the highly complex environment of a quote active much not ten percent of the been well so we we have an expert affidavit in the record this is a two sixty three to two sixty five of the record and our expert is somebody with forty plus years of experience in the trolling engineering industry looked at this and said and this is paragraph five lifting in rigging cranes are integral to the support of her fineries and petro chemical plant plants in the performance of certain maintenance and affidavit that code two three seven one two zero which is the oil and gas pipeline and related structures construction code reflects the largest segment of their operations now that it's the c e o affidavit  manufacturing industries there's no effort to confront the evidence it's actually in the record of who the customers were mind you this affidavit came in at the very last step of the process in the appeal panel so we didn't have an opportunity to scrutinize or respond to it  but he could have responded to the evidence that is in the record sales registers which are at eleven of nine to thirty five of the record that's what our figures are based on are we calculated our industry experts calculated we  know these companies because we're b p we're in the industry and we know who these folks are and based on our calculation it appears i can't say it's conclusive because we don't have discovery in this process but we have a well informed reason to believe that sixty seven percent of the customers of revenue for twenty eleven were in the oil and gas industries or contractors that serve that you know and gas industry let me turn back to standby this is still cases the test is whether or not it's going to involve pressing questions of the settlement agreement of interpretation or implementation going forward in other cases what evidence do you have i mean what argument do you have that this is more than just this case and you think that if they handled it incorrectly well it's it's these cases about these threshold exclusions have come up a number of times i think that there's a  nother case on the oil and gas exclusion that's going to be before a panel of this court the very next night the next month and in the may setting the oil and gas exclusion the financial institutions exclusion the real estate development it's all these things come up all the time and the issue is that if if claimants can get into the class just on based on sort of a box checking exercise just kind of a summary assertion and there that would be subject to no scrutiny whatsoever that really destroys the fundamental balance that the parties had in mind when they entered into the settlement i mean this is you can almost think of this issue as sort of jurisdictional in a way because if they are not a class member then their station be a stranger to this program that standards and causation standards and there are very good reasons for b p to carve out certain types of industries the oil and gas industry being one of them from that regime and if if evidence did well but then they go on to say does it say that they say there is no they did says it in overview of the record shows that will claim it is certainly a special trade specialty trade contractor there's no support for decisions were appealed past appeal panels and said you know we have to look looking at customers looks may creates absurd results and i think the example that was given was a catering business you know just you have a catering business the fact that they happen to  the oil and gas industry exclusion that expressly covers contracting companies construction companies to provide services to active refineries in the building of other kinds of structures used in their  one problem right there is that reads up twenty a lot twenty eleven and twenty twelve are critical years because we know from section two point two point four of the settlement agreement that the focus for this inquiry as to the end i had in a zero many of them are manufacturing type industries because it's manufacturing that supports the oil and gas industry so he setting these two things up it's mutually exclusive but it just indicates that he's applying a different standard he's thinking about oil and businesses are subject to special rules that are strict described in exhibit five in the concepts that we intended to capture there is that the settlement is disposed to address and localized harm to businesses in the gulf coast so if it's one zero zero two five zero zero two two if that helps you and in that case we said in reaching our decision that the district court did not abused its discretion in denying discretionary view of the appeal panel decision in this instant case we need not examine whether the administrator was actually correct and refusing to classify a certain reading room as a facility and there are other cases that to talk about specifically this facility determination i factual thing and we don't have to decide whether they were correct because it's not the type of decision that can be abuse of discretion for the district court but the problem here is a process problem the peel panel simply abdicated responsibility to ensure that that fact finding and factual inquiry was actually done on this because there this was these were sales offices one was near nashville tennessee and the other was in houston which is outside that often steria and it's very haven't had record of their expenses but how would you allocate your overall revenue to the sailors department well you're honored a judge daves i think the way you do it is that if if for example the nashville tennessee office made a job it's an interesting question there may be issues to do there to be explored that could be explored arena and that's exactly why the program hires lots of highly trained accountants to work through these kinds of situations that that is the principle that there are sales offices outside that zone and then somebody needs to figure out what portion of the claimants business was attributable that and that's an easy get backed out of the settlement calculator one one one exclusion not we cannot that did not to do not that they that they did not they do not break out the revenue by location that's irrelevant under the settlement agreement because it simply whether it's capable of being done now they cannot gets a little closer to review counsel absolute not particularly go into that and since this appeal has been briefed this court has handed down a number of opinions a number of opinions including some from these panel including some in the last week but certainly several since we brief this appeal that i would like to at least point out to this panel obviously there have been a number of appeals brought in this court  by aggrieved claimants who were unsuccessful below others by b p sometimes on large awards this obviously is one of the latter a couple of of cases i would like to but that needs to be unpacked just a little bit because this court has had a lot of things to say recently about that standard this court has found that the district court below abuses discretion if it declines to review a decision that actually contradicts or misapplies the settlement agreement that part of the abusive standard discretion is the one sided about b p in this case b p alleges a misapplication of the settlement agreement  but simply raises the correctness of a discretionary administrative decision in the facts of the single claimants case believe joe rudd was pointing in that direction earlier with her question and then interestingly in that case the ts claim and did not raise a recurring issue on which we'll panels are split or involve a pressing question of how some of them should be interpreted eighteen days three of seven seven eight was an opinion handed down just two weeks ago on judge roberts also on the panel that affirming an award involving a hockey team i won't repeat the standards as they are they are similarly what's the nature of your business what do you do see some revenue items that say these certain things what what one of those accounts mean a season expense items that are these particular expenses what it does me settlement agreement points to documents such as the two thousand and ten tax return or documents like in this case in mississippi businesses are required without any reports with secure stay and those documents have a place to indicate your business and wisely the settlement agreement negotiated by b p and class council look to what businesses said they were before they knew about the spill before the spill even happened before the selma agreement even happened so when you're talking about is as council upset who is in and who is out who did you say you were before you knew what these rules were and in this case w about this code the substantive nature of the business b p is focusing on the substance and the claims administrator has referred to is that the a t c c or the c s s p court supervised settlement program they did hire highly skilled workers both accountants and program than theirs to review these sorts of matters they did make inquiries into the nature of claims business i think cou and said they did not they ask questions that we've looked at your website explain this in this in this questions about the website but if you encourage you are to look at the opinion from the appeal panel if you read nothing else look at two forty five into forty six in the record it's a two page opinion from the vent in india feel panel decision below which the district judge did not review the exercises discretion not to review it the appeal panel walk through these two arguments that are presented by b p number one the oil and gas exclusion and number two the facility issue the appeal panel set out b p s arguments and b p s claims and then the appeal panel set out to claim its contents and laid out both arguments from both sides then concluded based upon a the novo review that the record shows that there's no support for b p s contention that climate activities are primarily related to only gas pipeline and related work for any customer with some relation to the ball and gas industry it was just tiny which brings me this point i want to the record is luminous i want to understand how we came about this point and this goes back to earlier question judge davis in connection with processing these claims the administrator routinely ask claimants for documents supporting financial information revenue information and so the question that was asked that that led to these customers is provide me with support for your revenues from the months of made in november two thousand and nine through two thousand and eleven in a seven month time period over three years so it's it's not every customer they had in this time period so what b p did is they they said they know and see i wrote it down we know these companies is what so we know these companies and they're only gaston's what they did they don't know is what kind of work is being done for these companies but nevertheless b p appeals and argues that burke alters business  during that time period a plurality during one year was relatable and guess business and sixty seven percent in another year with later on has been i've never seen that math there's nothing in the record to support it other than an unsworn conclusory statement the expert they refer to doesn't doesn't mention it doesn't do the calculations i invite you to ask counsel absent where in the record that is because it doesn't exist but we engage in a bit of a briefing more at the appeal stage with supplemental bruce being filed once b p was pressed on that they listed some companies that are rolling as companies and they engage in some irresponsible googling because some of their customers or actually it was just a totally different one it wasn't even b s t was an example they said oh that's it so it's a company a big oil and gas company it was a totally different company so we've never got perspective closing point is b p is trying to brand this company culture with a code that's never used before ever there's no it's not anywhere it's never been used they have taken some sales information that includes some customers done some sort of math and tried to contort the business in something that it's not and but most importantly the appeal panel considered that and so the idea that b p in their opening brief repeatedly thought this was interesting now kind of see it a little bit more while they were doing it b p is opening brief they said this the appeal panel here adopted a rule that requires the settlement program to ignore a specially contractors customer list when analyzing whether the contractor falls into the old and gas exclusion that is not true that is not in the  pressed with that in our opposition brief owner reply b p came back with a slightly softer approach but still they declare that the panel refused to even consider the customer list that's what b p said in the did consider these things but rejected them and that is the type of approach that this circuit has refused to reverse it's a it's a discretionary decision in a one off actual  conducted and over review and ruled in our favor so counsel opposites mentioned earlier the panel this is his quote he said the panel excluded evidence of customers that's not what the panel did that's that's factually just not true and they also said that there's just no scrutiny whatsoever the record does not support that and in our brief we cited to numerous record citations where the claim center ask questions of of us of our culture and our culture responded with the information with respect to the facilities issue briefly that was a question that was repeatedly asked and the information on that issue spans the arc of the claim the very first day the claim was filed in two thousand and twelve sometimes i feel like surely i have to be the last plane coming through here but two thousand and twelve on the claim form itself burkle to disclose the existence of one or two man sales offices in different locations and and said i don't think that meets the definition of a multiplicity claima the what we called it's called the purple form it's the claim forms on the very first day call it a ringing informed the sediment program of that now that fact in two thousand and sixteen there were a round of questions about the website and the locations of the business in two thousand and seventeen there were another round of questions about the facility issue and b p and the culture answered all of years eleven thousand is where that the call to responded thirteen fifty four is another series of questions and answers and information provided and then i just say this your question thirteen fifty two is where the climate responded back in twenty fifteen where the claim center and ask what are your business operations what are your projects those are the questions that they are and what type of business and that's the investigation it was not a cursory review by any means the claims thought in november two thousand and twelve and all the awards came out in the fall of two thousand and seventeen what was the scope of the inquiry did that  about multiple office locations and multiple project locations and here's what they said the accounts noted from the claimants website at the claimant listed multiple office locations council confirmed sites what what the  you know what we submitted and then it says multiple project locations notes from the client on its website so we know they were the website and we know they ask is very pointed and detailed questions that follow the fifteen zero one you'll see questions from the claims center at fifteen of the sea responses to those questions including the nature of their projects and the nature of the business and the sales offices so you know it's  of time but this is exactly the type of case that has little to do with any other case or the ministrations there are no recurring issues b p can't get there they don't even in the brief they don't argue that issues are occurring they don't mention in light of the cases that have come down it's since the briefings been complete b p s briefing itself does is it's not satisfactory to meet the standard  quick points with questions first one is i want to make sure you've had an opportunity and i think you have to to please articulate what is the new rule or not an end and to to to establish a rule that customer evidence evidence about who claim its customers are is properly considered as that with my second question i don't see in the appeals panel decision that appeals panel formulated to rule the customers are irrelevant to determining the proper classification as it says and i just fifteen sixteen that's not anywhere in the appeals panel decision generally we think that's by far the most reasonable reading i mean often these appeal panel decisions aren't models of clarity this one is no exception but if you look at what was being urged to the appeal panel what burkhalter urging its pretty thing was that this there's this notion that you look at customers in determining the appropriate in a i c code in a in a i c s code that's simply not done and and they cited a number of appeal decisions that say that they're in the record the ones they cited the three twenty eight three fifty six of one of them appeal panel as a rule it doesn't say it expressly but that we think that's the only reasonable way to to read it because other appeal panels have done that and that was the rule that was being urged at this appeal panel and then they said there is no support if they looked at the customers they would have said there's no support they they might have said we find some support but we find it's outweighed by this other stuff your honor i want to briefly address the standard are of us and i'm going to get this from texas golf seated but i believe it's been articulated elsewhere as we read th decisions there's two step prongs one is if the settlement agreement is contradicted or misapplied or if the ruling of the appeal panel has the clear potential to contradict or misapplied the settlement agreement we think we meet that  standard there is a separate alternative prong which is that there's a recurring issue on which appeal panels are split we we haven't briefed that but since the claimants council believes that we have to meet that in order to get reviewed i wan say they have made that case for us as well because they're citation of this long string of appeal decisions shows that this is a recurring issue and what's more it also shows that appeal tables are split because some of the appeal panel decisions that are cited did consider customers and i think those are actually useful is when you can't argue this can you will we don't i mean you have abundant knowledge of these cases and you know this is been the standard for years before it was even for two thousand and seventeen this is the standard and we're not some new thing from yesterday writing we think there is a contradiction or a misapplication but said he didn't brief that and we didn't brief it but i'm hearing today  to her had used this particular in a i c s and on oil and gas one for in tax returns a policy called policy for eighty was promulgated a minute made a very clear reversal of what the previous regime had been the administrator will not apply any presumptions regarding the selection of that in a i c s code to classify the entity properly instead it's to be determined based on all evidence available regarding the actual business activities of the claim counsel also referred to the test for oil and gas and oil and gas exclusion as it's turning on the word primarily and i wholeheartedly agree with that in fact i looked at exhibit seventeen in the word primarily i lost count after seeing that it was use ten times and i think what that means is it doesn't have to be exclusively oil and gas and we don't contend that they don't provide any services to other industries but councils now acknowledge that they do work for the oil and gas industry in our opening brief on page thirteen but no four we listed the sixty customers that the industry experts identified as players in this industry that per call to provide services to their grief was silent on that and even the morning i heard him talk about one of the sixty b s t he says we got the name wrong that's that it's shame on us for getting b s t wrong but that leaves another fifty nine that simply have not been addressed the appeal panel on the program have a critical