may please the court george hicks for the b p appellants by its own admission the tampa bay performing arts center foundation is going to receive every penny of a twenty million dollar donation that it recorded as revenue this isn't the  case this isn't saying i didn't make as much when i got what i wanted in the contract this is the question of so people give donations to an entity every year they're going to get this twenty million but my fave gotten another twenty million without the b p oil spill i think that's what they're talking about this is not in my view maybe my colleagues can disagree and i think this is where we're talking about one guy with one contractor can only play basketball for one team at a time and he's get exactly what he was supposed to get i don't think they're saying they didn't get this twenty million because of the oil spill i think they're saying that goes into the bucket of donations that we then can say was not as much the next year but your honor i think it does have to do with west but i think there's also a causal element to it as well and i think that  certainly have application here because what the west court said was that claims can only be brought by those who quote experienced losses and it had to go on to determine what the loss is under the settlement agreement and it defined a loss as quote an unexpected diminution in income that could otherwise support a claim for civil damages and only claimants who suffer unexpected damages can submit a claim and i think what we have here is and i don't think there's really any dispute that the loss here from two thousand and nine to two thousand and ten was entirely expected because you had a front loaded twenty million dollars donation in two thousand and nine and it's all that's assuming that the twenty million dollars itself i mean this is kind of hard so i would just say like use checks because dollars are kind of fungible checks or not so they're receiving a check for twenty million irish say they didn't it was a commitment or whatever but a check for twenty million in your argument is that check somehow get invalidated after the oil spill that check is still extant but the argument could be what we were hoping for check me another twenty million and we didn't get it that's different from west's argument he only get one contract at a time unless i'm missin somethin in basketball you can only play for one team at a time i hope so him the argument is a little different so i'm saying if that is the argument that check being never materialized from some other donor why can't that prevail well i think if that is the arguments that they're making and i'm not and with respect i'm not sure that it is because they didn't even submit a response to our twenty jailer on west but going with that argument i think the response would be well then you have to talk about is there any nexus whatsoever between the two thousand and nine front loaded donation and the happenstance of the spill in two thousand and ten that would somehow then m was you know and very unusual situation but we in the west i was on the west panel we in the west case could not undo the prior you know eight years or whatever it is a cases from our court that says we don't start over again with cars nation you know who did the car wreck caused the heart attack or not or whatever the typical cause ation trial is not part of the settlement instead you have to do your add to station and the reason west lost is because the evidence completely refuted any potential cause ation and undercut his had to station but here we kind of don't know so why isn't this just one of those typical maybe my restaurant was going down the drain anyway but after the oil spill i made less money at my restaurant then before and in a normal case you could have shown that my food was now bad instead of that it was the oil spill but you're just stuck with the fact that i lost money  unusual case but i will also submit that this is a similarly unusual case precisely because you have this twenty million dollars donation that is a twenty year long stream of cash but by virtue of the fact that they are able to record it in two thousand and nine as an unconditional pledge and just to put a pin in it we do have some disputes about whether it's actually unconditional but to assume that it actually is unconditional is the only reason why they are able to put all of that in two thousand and nine and so even at the beginning of two thousand and ten before there's ever any deepwater horizon incident whatsoever it's completely expected that there's going to be a drop in income from twenty million dollars to  historical baseline of a couple one hundred allison and we know that because when the foundation went to the c s s p in the st instance it got a award it got an award of a couple one hundred thousand dollars and it's only after it went back to the c s s p and said wait a nd you forgot about our twenty million dollars donation that we received front loaded in two thousand and nine and that's when the c s s p then said ok we're going to give you a twenty million dollars award so i do that and i'm still in the st part of my answer which is that you know this this was a completely expected decrease in revenue from twenty million dollars to you know essentially de minimus which is what the foundation has had throughout but the nd part of my question is that you know if even if you put aside west you do then run into the question of nexus between the supposed to last and the spill and that this court has not completely excluded the idea you know almost like a g d r in light of west or a remake and that basically and they could conclude that last doesn't apply for the reason i said that maybe you thought you could get another twenty million but because of the oil spill nobody had the money anymore mean and to be clear we would be fine with a if you want to call it a g d r in light of west which came out after the briefing briefing here and to which there really hasn't been any response by the other side but also a we'll ask but but but also to be clear you know we think that  is more in line with your separate opinion in west to have a remained to resolve any other questions about you know what else could they have gotten in two thousand and ten but without that twenty million dollars in the equation because it's the the prior cases too and we have case after case after case that says we can't start over again with weather and the car wreck cars your heart attack or you just we're going to get one anyway and we are to start over again with causing a shit about was the restaurant making bad sandwiches or was it the lack of people in new orleans after the oil spill and so we have you know dozens of cases to that effect west was just a very extreme example of someone taking advantage of the sort of minimal causing ssion requirement but i don't think that's opening the door to now every case we've got to start from scratch and get a really causing or were you just a bad restaurant or a bad boy or a bad foundation i don't disagree at all that that and we're not asking for the door to be opened but you know two responses number one use the words taking advantage of and you know with all respect when you get in are guaranteed a twenty million dollars donation and the guarantee is exactly what lets you record it in two thousand and nine and then claim the other twenty million dollars you know i think it comes close to that wind was like when the last time they received two million dollars they have never received response i want to make regarding the west you know again fully conceding that it applies to a narrow case of unusual situations you know but i will also say that there was a case after west the howard industr case and judge duncan you were on this panel and at the very end of that decision it also talks about now it denied a claim there i will say i will grant you that but that was because in that case b p had argued that there were other causal factors that went into the decline market conditions the recession etc and at the very end of that decision the panel recognized that there would be cases where there was suspicion of a nexus or there was the sole superseding cause of the loss and i think that is exactly what we have here there is no other basis for the claims loss here other than the fact that this one time extraordinary donation was front loaded in two thousand and nine and therefore on paper there was an enormous loss from two thousand nine to two thousand and eleven that was completely known and expected at the beginning of two thousand and let me ask you how the d v r pro west would look we would have to send it back to the district court to say the district court abused its discretion in not granting or to send it back to the district or to reexamine whether to exercise discretion to hear this case in a lot of west which one would we be doing in your g r approach well i think what you'd be doing is you'd be sending it back to sort of the status quo ante which is that the district court you know then gets to exercise its discretion however i think it would still have the option not to you would have the option not to get that i p o batter and you know it might be a better option to simulate how many how much longer we're going to happen there it is my understanding that there are actually fewer than one hundred dollars claims remaining in the c s s p and like they all come to us and that seems inconsistent with the notion of discretion in the district court that we keep ending up having to do the work on it well with all respect around it these are the last claims because they are the biggest and the most important and the denominator in these is like hundreds of thousands and the only reason we're here and i'm here today is for the claims that you know with all respect have you know the markings of suspicion or where there's a sole superseding cause of the loss and i think that's what we have here and in my remaining time for it's i just want to ask you i know we've been talking about wants to look at there are plenty of other issues let's say hypothetically we falling outside class membership is a jurisdictional defect this entire settlement program it is the court supervised settlement program it's under the district court's jurisdiction and if i point you to record twenty four thousand eight hundred and seventy nine this is section four three point two of the settlement agreement the court shall retain ongoing and exclusive jurisdiction over the settlement program the claims administrator is appointed by the court and in the even more important section eighteen point one and this is that record two dollars to sixty eight dollars the court chilled retain continuing and exclusive jurisdiction over the administration and for of the agreement and the distribution of its benefits to economic class members so therefore an entity can file a claim and obtain an award only because of the jurisdiction and if entity is outside the class they cannot invoke the jurisdiction of the district court either by filing a claim with the court supervised settlement program or obtaining an award so if an entity is not a class member the district court has impress upon it there's i don't think any real argument that they are not a member of the class the only way that they try to claim a member of the class is by saying that they have full time employees which is one of the requirements but literally the same form in which they claim they point to they also say that they they tell you they quote have no full time employees and if you look at the table that they point to you know there's no contradiction because there's nothing in that table as we explained in our brief that explains why they have any full time employees so it's completely consistent they don't have any full time they have to be paid employees time or has to be pay well it all the so much as one or more full time employees i don't think we have to get into what's an employee what's director of programs who was a retired lawyer who had plenty of money and was just doing this because they cared about the foundation and they weren't being paid but they came in every day wore a suit worked on their computer did a bunch of stuff forty hours a week with that be a full time employee i don't know if someone who doesn't receive any compensation from the entity would count as as a full time employee just under what we think of as employee but certainly they haven't pointed to anyone like that has on behalf of the claimant is going to start with what was the main thrust of the argument for this case is not the westies why not and why didn't you respond to the twenty well under the rules that said that we are we're entitled to respond but i didn't i  contract that required him to play basketball for the hornets he couldn't as a result he couldn't go play for someone else and the contract set forth exactly excuse me exactly what he would receive in the years that followed there is nothing there's no contract that prevent us from getting a similar donation in the postal carrier you are agreeing with my check a in check be an absolute i'm talking about not getting this twenty million we're talking about the next guy that shows up with a checkbook for twenty so there's additional in dish of reliability in our case but there's nothing there's no reason that the foundation couldn't have received an postal period a very similar donation to someone else it is a large donation or whatever this is or that that wit one with no one else but i got the st twenty million with an oil spill what evidence is there that let me back up what evidence is there that this kind of donation ever showed up at this place except this one happened stance nature of non profits there's a lot of work that goes into getting donations donations and so we have actually a full time director of planned giving forty hours a week is reflected in the tax returns it's also worth who pays that person but ultimately we pay the person the payment comes initially through the center and then you can see throughout the record evidence that we are ultimately responsible for paying the person coming out and we the foundation i mean how that works physically i'm director of plan giving i get a check every week or two weeks whose name is on the check and i believe is the center seems on the ok and then how does that become the foundations money if there is an the administrative services agreement is in the record several times including an odd one thousand nine hundred and seventy seven you can also look at the un sworn declaration of mary beth rossi and the foundation and that's in the record at five hundred and fifty four sort of explains the process of the reimbursement and this is also backed up by the financial data that's in the record because there are some questions that went back and forth between that between counsel and the settlement program asking questions about the payroll and why it fluctuated over time so there is payroll information that was submitted in the center issues my check i get the one thousand dollars does then the foundation have to pay the center the one thousand dollars so you're saying that the center is just operating as kind of the h r department if you will because they know ultimately responsible for reimbursing the center for any cost that they've hey i would have found a thing arca the argument that you appear to be making now which is the nature of your loss is that somebody else might cut you a check for twenty million  but for the oil spill appears to be what you're saying does that assume that a twenty million dollars donation like that is revenue typically earned yes well it is used as the paper is it yes the type of revenue typically donor are you going to rename the next twenty million dollars donation after the next i don't know the answer on the naming rights but i can tell you that st of all this was a factual determination that the settlement program made b p argue that this is a typical installment program based on the record before me i don't find this a typical because non profits don't receive regular revenue the way other corporations it doesn't mean we couldn't have received it in the postal period but the fact that there's not a regular pattern that you can look at he does he said was not a typical the donations like this are typical for non profits and it is possible to cumulate twenty million dollars in contributions in the aggregate without a single donor giv twenty million dollars absolutely and i must tell you that there are other significant as that ever happened in the history it's not in the record not that i'm aware of and there are others say i mean the whole this whole director plan giving plain giving is exactly that people put it in their will and die and suddenly you get all this money people they do a capital campaign and start jumping on the people that have supported them in the past and smaller mounts and try to get the bigger amounts and you don't know when that's going to materialize but i guess the problem is if we loosely are still feeling like all of this has to be sort of a substitute i mean my understanding in west and the other cases it's sort of a substitute for the normal proof of causation but it still has to kind of harken back to the notion that there was but something to do with it so we would have to conclude that all these rich donors who might have been writing one million dollars checks twenty of them are now so upset and affected by the oil spill that they no longer interested in doing that if you nonprofits are specially they were able to things like that to changes in the market like this because people don't have extra income to give to nonprofits so nonprofit suffer more and it could take time when the economy is down in the gulf coast area because of the not because of the oil spill because that's something you do after you meet your basic needs not like businesses that have to pay certain bills or that have certain things this is something that happens after you've and he works full time forty hours a week for the population so why not say that why is a tax return working on what doesn't it's the same tax return that also shows that he works forty hours a week for that foundation relates to the wasik worked forty hours a week exclusively for the foundation if you look at the same document in the same document i'm reading from tax return is in the record a number of times as i'm sure you're aware and so my record numbers that i have here are going to be a little different than an actual document you're looking at but but you're basing the evidence that you're saying that shows mr foster's the full time employee of the foundation is in the same obligations under the settlement agreement that if they have any problems with the board anything that they think that we don't qualify as a class member because we don't have sufficient damages and using that suggests that we're not it's hostile or because we fall outside the geographical area they raise it and that's the time that they have to giving forty hours for related organizations and then he reportable conversation from related organizations and it has his salary which i will say out loud and that's it under d d reportable compensation from the organization it's there zero but there is a figure higher than zero for mary beth rossi of warren shepherd and bill fawcett under the reportable compensation from  consistent with the fact that the compensation was paid through the center and i agree with that but but he worked full time for the foundation this relates to the geographic is this the same form that i was reading from earlier at eighteen eighty three this you so there's evidence i thought you said there's evidence that this change in the mr fossett actually became an employee of the foundation so what i'm saying is that the records aren't developed on this point i think it does change but it changes in a period that's outside the record and that's a reason that it's very significant they didn't raise it or so why not do the j v are that sounds like everybody then gets another shot at really developing the record and that's the better place to be send it back to judge darby and a look at hey now we have west you know we have some more explanation about how to handle these cases you can then if you send you back to the settlement in a straight or you can put on this evidence to show that fossett became an employee and all that so why not do that because the standard here on his abuse of discretion standard we're hearing today is whether judge abused his discretion the issue that if to the extent we're talking about whether or not the center has or the foundation has full time employees and whether or not they qualify under the consider whether it's the district court there's multiple levels of it here because for article three standing i don't think the settlement can define that they can't decide whether we have article three jurisdiction i i think the settlement can define who's a class is something that the court can address so we have jurisdiction we the federal courts over that then if we conclude the person is lax standing well then of course they leave but the question of the class membership needs to be addressed and you're saying it never was ever raised or raised they never raised it blue and so there's and we are the people really well equipped to decide these facts right bunch of appellate judges we don't really generally decide that we decide whether the evidence supports something yes facts matter a lot we are usually the one saying you look like you're telling the truth and you know and this there are additional reasons in this case there's really been a waiver because the rules governing the disc rights discretionary review for example say that the district court can address something that wasn't raised to the appeal panel there are rules under the appellate rules that say that you have to raise all your issues in your notice of the b p s to raise all the issues that it intends to appeal in its notice of appeal support to show up at this late time waived it's well on to something that seems pretty clearly i will at least spes sort of a legal issue i mean whether this foundation is a pass through entity or not is do you disagree that there is an appeal panel split on how we assess whether an organization is a passthrough or i do agree that i do disagree that there's a split you disagree there's a disagree there is no split those cases turn on their facts they address different facts and under those different we have to know a settlement programs determination that that's not an abuse of discretion so in this case the settlement program looked at everything it looked at all the evidence the arguments that b p made and it is at record two hundred and forty seven dollars and it said in the instant appeal the record does not support the claim it was merely a pastor can see same except still nations from which of his expenses makes investments maintains a cash surplus and makes charitable distribution constitutes fix versus variable expenses and yet we have decided fairly recent case that you know the appeals panel wasn't looking at this the right way to send it back for reconsideration there is no appeal panel decision that considers an or for a particular need and then it almost immediately flowing out any for pay for any that is not what we have here we have a separate standing policy separate investment policies we seek to grow our endowment which is one of the very important things that this court looked at in the  nonprofit decision in two thousand and fifty that's a business activity of that that's not in the flow through activity that's a business activity for a nonprofit and so the record in this case supports the discretionary administrative decision what the foundation be able to turn the money over that they get from their donors to any entity other than the tampa bay performing arts center maybe and that is actually cited in our piece there is a language in it that under appropriate circumstances they can actually change the beneficiary i don't think so but it could it has discretion and this is not i would be it's not like they can say well we'd also like to support the st petersburg performing arts center and the tampa bay they would have to actually switch and say tampa bay we're done with you were going to go to st petersburg  me that's correct there's a they can only really support one entity but they could change the entity of site tampa bay did something wrong they decided to go to st peter didn't qualify you know they didn't qualify but even if they just before support the performing arts center it doesn't change the fact that they had separate activity like you're on or assume you disagree that there is no appeal split with respect to the criteria for we do disagree your honor for all the reasons we set forth in our review and i won't go through those here today but you know but i do think that the it to any other entity is significant about this thing she just read about think it change they could go from tampa bay to see here yet there's one parade and i mean this one provision that says that you know in the event that the tampa bay performing arts center decide no longer wants to be a public charity and you know get give up the business of putting on performing arts that there can be a substitute entity that also has to be the end of entity of the past so it doesn't actually change the past the nature of the foundation it just passes it through to a new entity so just just a few points and rebuttal st of all you know there's still hasn't been any statement that the loss here from two thousand and one to two thousand and ten was unexpected or that there was any connection to the spill that would satisfy this court's cases that are admittedly it's a small window but you know that as judge haynes as you said there has to be at least a little something there number two great legal standard a little something well there scintilla we didn't use that language right and that's really what the at a station requirement is kind of doing it square it's squaring the circle and making sure that there is a loss caused by the spill to some minimal degree and you know still i don't think that we have seen that here today my nd about the general notion that after such a devastating impact people stop you know they kind of hone in they start just focusing on making sure their kids can go to college making sure they've got they're paying their electricity work on their mortgage and not writing big checks to charities anymore you are st of all i think that we're talking about you the difference between a twenty million check and all other checks i mean there were still checks written in two thousand ten so it's not as if it completely dried up so what we're talking about here because it's the sole driver of the loss even without the twenty million dollars right here there yet as the as the c s s be found in the st instance there was a couple one hundred thousand dollars loss you know we  not dispute that it's only when this one time twenty million dollars donation came into the picture that you know is the sole driver of this award and so you know the question here is not whether there were other causal factors that might have affected other to the the the class membership requirement i mean to have standing in order to bring a claim at all that you have to have injury and there's no injury if you're not in the settlement class and of course this is a to bring that up i mean this is a weird hybrid because frankly you don't need article three standing to go to a contractually based settlement committee you have to happen to go to the federal court and so we've got this bizarre scenario that's been reported throughout the  cases and frankly we could really examine whether we should have even started down this path but that's water under the bridge so to speak you have this situation here where challenging the class membership i think is something we have about but i my st process i don't think there's any realistic dispute over the full time employees and i think you know they say it in the exact same form to the i r s that they have no full time employees and that is literally the exact same language that the settlement agreement players one or more full time employees they say the exact opposite is the settlement agreement defined at the same way as irenaeus and the phrase full time ploy the same way the i r s does i don't have the answer to that but you know but that's a problem with us deciding stuff like that i mean sure and just the last point i do want to make if i may is just that you know we also don't know whether this two thousand and nine donation was only able to be reported in two thousand and nine because it's unconditional you know we don't even have the full pledge agreement because the appendix is not it was never submitted not appended to self according to the pledge contains quote details regarding the gift and it's payment and if there's even one detail in that missing appendix that this donation conditional in any respect then none of this could have been recorded in two thousand and nine and the entire thing goes away as well thank you much of your argument and that concludes the cases for today we will resume argument on morning at nine am thank you