player who received everything he was promised under a contract with the new orleans hornets for two reasons the district court abused its discretion by not reviewing this decision first the appeals panel read the settlement agreement to require payment to claimants who suffered no loss and second the appeals panel deemed it irrelevant whether a claim it has any good faith basis to attest to a spill related loss first on the issue of loss the claim made here is david west who some who signed a five year contract with the new new orleans hornets in two thousand and six he secured a front loaded contract in which the team agreed to pay him descending amounts in each year in two thousand and nine he was paid one point seven million in two thousand i'm sorry that was two thousand and eight in two thousand and nine it was a point seven million and in two thousand and ten it was eight point five million because mr west received everything he was promised under this contract he suffered a loss and had no claim the settlement agreements tax structure and purpose incorporate the ordinary understanding of the word loss like i ask you about that there's a sentence in your brief on this point that is interesting to me that this is on page thirty of the opening brief and it says in order to recover under exhibit a which is the thing i think you were just referring to that incorporates the settlement terms a claimant must show that his or her earnings after the spill were lower than the earnings he or she reasonably in legitimately would have expected to receive during that period but those words reasonably illegitimately don't appear in exhibit a some i'm looking at page two three three nine of exhibit eight a and it says calculate expected earnings it's going to formula there it doesn't say anything about reasonably and legitimately and so i guess my principle question is why do we not use this when we're trying to figure out whether he suffered a loss or whether his excuse it expected earnings went down over the benchmark period jurors out with the twenty three twenty nine or twenty three thirty nine is quoting from the compensation formulas which go to basically damage when you know that that show you how to compensate an amount of loss and he under that compensation formula you're correct the expected earnings were greater than the actual arden's the tax i'm relying on judge oldham is not related to the compensation formula and is not tied to the compensation formula and that's on record excerpt twenty seven which is twenty three twenty five and that defines the underlying claim as one as a claim for lost earnings and that is expected earnings minus actual earnings and most significantly definition k which is on page thirty one that defines expected earnings is the amount of earnings to claim it would have expected in absence of the spill not tied to any formula and here we know that's exactly the same mrs actually our names so his expected earnings were dictated by the contract that's eight point five million and his actual earnings are dictated by the contract so your the point is that that the latter two  prevail over this calculation particularly in our position is that the the copyright compensation calculation formulas kick in when the claimant has a loss to begin with and then you go to how you calculate damages but the settlement agreement and the provisions i just read you do not dispose with the notion that you're supposed to have a loss in the first place and we think this court's very recent decision in j d sort of compels that conclusion and they're  claimant the formula actually showed a loss because the expected earnings were greater than actually learning but that was only because the actual arnie's rizzi around in the claimant was not in operation but the computation formulas absolutely just like in this case showed a loss and this court held that just producing a number under the loss amount doesn't entitle you to recovery when the loss about is divorced from economic reality and in j d the claimant the formulas assumed that the type of claimant who could have actual earnings has to be actually trying to earn money and here the copy of the compensation for news that you read to assume that mr west has some sort of basis for expecting a receiving a penny more than the eight point five seven million dollars he got in two thousand and ten in the language you give me the beginning from twenty three twenty five that's the overview thing to some it defines the claim and then it says it's expected earnings minus actual earnings and then there are two definitions of definition d is the definition i think of actual earnings but definition k is the critical definition of expected earnings those in two thousand and ten that you expected an absence of the spill here in absence of this bill he expected exactly what he got and we also think in terms of just that's the text and in terms of the structure we think other provisions of the settlement agreement use the word loss it shows the parties thought they were compensating for people who actually separate some sort of loss and were not in hot being a k why do you think both the claims administr actually make a false statement that you can't even with a straight face contend that the claimant caused a spell but as long as the financial information you provide as i did in dr your tax returns so there's a fundamental disagreement in the parties there's other cases that present this issue about what the at a station requirement means it's a very very important to b p obviously because not just this case which only involves a million have to ours but there are other cases that involve significantly larger amounts of money and we think that this case is an excellent vehicle to resolve that issue because some up here saying that even though they gave a very liberal proof of causation which is pretty much zero they still ex people to come in and say yeah i had a loss because of the spill i mean the blue form says the individual economic loss claims is for individuals who have experienced income losses caused by the spill you didn't require much in a way approve of that but you are the really saying yes we  had at the self serving affidavit works but it needs to be there it's like you're saying i've said that better so thank you there's just one other one extra page the very next page you cited that is another at a station that says i'm a basketball player that's on nine nine eight hi i'm a basketball player i work for the new york new orleans hornets and that's the job for which i suffered a loss of earnings due to the spill and in our view that that's that's laughable now the other side says all we had to do is not lie on our tax returns but your formulation was exactly right the settlement agreement dispensed with any and all evidentiary requirements so even if so long as you just sort of like i said with a straight face can say i think this bill caused me some harm you don't have to come forward any proof i mean that that's why we lost deepwater horizon three but the court said five times no less than five times that you actually have to attest in fact to at least a belief that this bill cause you harm you have to prove it you just have to decide to sign a form and or penalty of perjury so when mr west went to sign that form could he reasonably have looked at the language i asked you at the beginning on and on exhibit a and said well i'm looking at this and it looks like i suffered a loss because all it says is here's benchmark period once i did that math and then i apply this coefficient and then i compare it to my period my my my earnings in the subsequent period and turns out like you know one is better than the other so i mean you're not saying he couldn't have done that right when he signed the attestation i think well i don't yet to station is not only to a loss that it was caused by the spill and no i don't think just meeting the formula shows anything it just says he thinks he clearly had a good faith basis for thinking his revenue dropped is that's what he agreed to but he had absolutely no basis for thinking that anything to do with the spill in in the gulf of other professional athletes well claims now he would only want to figure this out that he could do this yes as far as i know i mean we probably i think there may have been four hundred thousand claims and we've seen it you know like one hundred thirty thousand with the very tail end of the settlement process and i think there's just it doesn't let that's what us yesterday tale and so that means there are one hundred thousand more degrees all new no no no b p has paid one hundred thirty thousand there's probably less than a couple dozen in the claims administrator now the ones that are in the appeals panel stage and in the district court and before this court numbers at about one hundred twenty one hundred thirty yeah you know yeah so but that's out of like five hundred thousand claims that have been filed why it's so while what is the significance  of ruling on this and if it is if you're ruling is that there's a fair number of pills before this court that raise it raise which the attestation requirement that totals one hundred fifty million dollars just in three cases not this case so hundred fifty million is a lot of money and orchestra was tourism right well but when the one yesterday on the other hand had an ad to station issue in the appeal panel to be offered jack to death to station issues or something like that yeah and i know that it just changed sat on a panel that had an anticipation issue too and there the appeals panel actually just resolved the factual dispute here there was no fact to dispute the appeals panel just said there was no anticipation requirement i mean there's not i know he says well maybe we might coulda negotiated something better something like that but there's not really any dispute about the way this contract was set up and what income it god and didn't get so there's nothing for like the equivalent of a jury to decide the  panel are the claims and straighter again you're absolutely right what we have is conjecture speculation that's unsubstantiated it's purely conclusory he says on page you just get the exact page on page nineteen that there's a speculation that he might have been provided more money in two thousand and ten but the two scenarios he raises are legally impossible so i don't even think if he pled this it would pass article three because it's just not plausible the first scenario is he might have got more money in two thousand and ten but they were at the team was at the salary cap the second scenario which i think is equally legally irrelevant and it goes to the document he cited was talking about contract extensions and extension the money would kick in in two thousand and eleven and this one is clear the settlement agreement is polluted at the compensable here it has to be two thousand and ten so sometime in two thousand and ten he has to have the base isn't receiving more money back to your issue one if we were to articulate what that you know you're saying that what was a deep water three said we were not going to kind of define the average we don't have to define the average we're good with this case what would be your definition of the average then so and you clearly how that there's no or no per se obligation by the claims administrator to review and attestation in every case but we do want you to hold which is what the appeals panel erred as a matter of law that that that panel said there was a per se prohibition no matter how implausible the attestation is so our standard is if the settlement program is presented with any credible evidence that the sole basis for the spill i'm sorry the sole basis for a decline in revenue was something other than this bill like the sole basis for the decline in revenue here was the contract it just couldn't have possibly been the spill there's a duty to investigate and it's an abuse of discretion not to we don't set the parameters we just say the claims administrator needs to look at this and it should not be prohibited from looking at yeah but you signed a contract before the spell where you agreed to accept less money in two thousand and ten and there's no other basis so the spill could have possibly caused harm is basically an article three standard this court avoided all the rules enabling act in article three standard this court all courts lack article three jurisdiction to award relief under a judicially administered contract ok so then let's get back to the one other thing which is what we're supposed to be doing although we end up often having to do more which is reviewing judge barbie a failure to review this discretionary so in that prism what would we be saying here just that that i would i would do it under he just misread the settlement agreement either as to l a station he felt i'm sorry he didn't is read it the appeals panel did all the district court and is an abuse of discretion for not revealing an appeals panel decision so he should have reviewed it when the appeals panel made two legal holdings one that you don't need a loss and two that have please the court this court's established it to be a class a member you only need to allege a loss now ordinarily were a class action proceeds to trial claimants are going to prove matters such as injury and causation later at the trial state and that proof can come in various forms can be documents fact witnesses expert witnesses but the parties are also free voluntarily to reach a settlement and avoid a trial just as defendants like b p do all the time for global peace the results of the settlement questioning on which case they go right now well i understand and that was their choice  the settlement settlements a result of the negotiation and compromise the parties give and take each determine what they can give up in return for what they can get and they're free to do a way they can agree to do away with proof or to or substitute requirements for proof that's what happens in virtually every settled they hear the party's negotiated at arm's length and they reached a resolution each side gave something up the claimants among other things gave up the right to present fact witnesses and and expert witnesses it was all based simply on documentation that is what the agreement requires the documentation b p agreed to substitute an objective mathematical formula for other methods of proving loss and causation now importantly b p has admitted that mr west is a member of the class which means attestation i will tell you is a false argument here because they admit that mr west is a member of the class which means under deepwater horizon two that he adequately properly alleged that he suffered a loss i'm sorry you know that's what seems to be such a broad principle that it would invalidate a bunch of cases where we have in fact ruled claim no i think i will not have to do is say bring me here's mine here's my form i'm in my class gimme my money i understand what you're saying now your honor but i don't think that's the case when i do think however is that what happened here the settlement that was agreed to by b p and the class substituted different forms of proof for loss and causation than would otherwise be required if the case went to trial now under that formula b p does not say that i mean b p admits mr west a proper application that formula results in the compensation that he's been awarded they don't contesting the math but they're correct adding to the man yes however the settlement is a matter of contract and here obviously the class action the added benefit of oversight by the courts for absent class members like wes but it's a meeting is a matter of the contract interpretation it's not articles three despite what counsel said in fact in the in the in the agreement specifically says that it has to be due to the deepwater horizon oil spill that i believe that what we're talking about there your honor is the part where counsel first also reads the expectation the expected revenue issues actually at it's in different part because i was was talking in this black about exactly that question and she reminds the court that at the framework for individual economic loss claims specifically says that you have to if you can only see cost compensation for last earnings report due to all resulting from the deepwater horizon spill and if that's before you get to any expected  understand that however in addition to that though what she's also said is that that is based on mr wes good faith belief which one they have said he had by acknowledging and i know we may disagree your honor but that they said he had by acknowledging that he is a proper class member they don't contest that that's really what the attestation issue in terms of suffering the loss goes to or you really a class member they don't challenge that now what does happen here is with regard to the in if i can digress a second when i have in mind the expected earnings issue where she talks about the expectation the expectation she cites to a kind of general view of what's expected but i want to draw your attention back to exhibit eight a on page fifteen actually has not the generic oh you have to have suffered a loss you have to have expected earnings expected earnings is defined in a mathematical formula in eight and a page fifteen expected earnings equal the benchmark period earnings calculat and step to increase by the applicable growth factors from step three under that mathematical formula to which b p agreed west suffered a compensable loss for which she can recover now the the i think the basic idea here is that obviously specific terms of the settlement can substitute for other forms of proof and that's what happened here would be peace really arguing is your file you sign the eye test station and then you go to the compensation for them because if you're a class a member they have agreed what your class will be a look at the formula and you see are you entitled to compensation they admit is a class member now you look to the formula and they acknowledge under the formula used to one point four million but what b p is now trying to do is insert an intermediate step between class certification and the application of the settlements formula and they say wes failed that step what you did with deep water three claims for which the at and station is impossible suspiciously not qualify for compensation according to plane the parties explicitly contract and traceability between the defendant's conduct and a claimant injury would be satisfied at the proof stage that is in the submission of a claim by certification on the document yes and that is exactly what happened the fifth day admitted the fifth circuit held that suspicious forms would be subject to investigation and claims administrator parties and look to see in my view what the settlement sets up is a view to look to see are the claims implausible based on the materials documents based on what the settlement says you have to submit that's what they look to see on suspicion that is not that did not happen here based on what they agreed would be submitted the contract seems awfully implausible when you look at the contract take anything for any reason one they did not in fact that does not require a con to require document under the settlement agreement however let me tell you that the way that this case the way that this contract and the way that this contract was set up to front end load is precisely because some basketball players like that because of the opportunity to renegotiate and extend the contract in the last year or two of the country wasn't part of the doc i have no idea how they got the contract and it's not in the record anywhere in fact they take issue the we say things outside the record pointing to b p s own vice president and his statement that they expect some false positives and that they will not book two nonfinancial data down the road to determine that's exactly what they're doing now but b p acknowledged it would not do that that's in the record they said it wasn't it is it's attached at the briefing earlier strangely of course they bring in stuff that's not in the record where people meet with so when something is in the record that you have to show when you do your expected earnings calculation yet even under the agreement that they made and substituted the proper proof if you pointed out that the claims earning in the compensation period in the claiming job that would have been expected in the absence of the deepwater horizon spill right that is one of the inputs into the formula and i've been the absence all right mr les but believe that he was going to be able to read negotiate that agreement in the last year and in fact we can't forget that the hornets now known as the pelicans but the hornets at the time which was his basketball team also have a claim and have been awarded more than ten million dollars by the appeals panel the claims administrator and the lower court now he tells the hornets i'm sorry he's using their recent term the hornets part of the problem there is they enter that last year when they can renegotiate mess contract they don't have the ability to do that west expects a renegotiation he doesn't  spill the pell suffer a loss to the point of suffer a loss i'm sorry the hornets don't know where they are going to stand or what they're going to be able to bring forward they cannot go ahead and renegotiate his contract by the way the issue of whether there's a salary cap issue or not is unclear that's certainly not in the record something that claims administrator should have at least investigated and maybe what you're arguing for is that it's not a reverse and render but why isn't it a reverse and remain in for at least why isn't someone at least looking at this well i can give you two answers to that when one is i don't think that in this particular case the settlement agreement says it should be no but about deep horizon three that i possibly and maybe it's not under your zero i'm not really i don't yes i don't think it is implausible because of that however i can still answer that question implausible yes i understand what you're saying but section first of all mike my first argument is b p has not said that this intermediate step that i'm talking about how you come forward and prove they set forth no principle no standard for judging when is it suspicious and how is that resolved well they can i mean that's precisely why we're here because this is an easy case if you're going to set a standard this being a case where the plaintiff had a contract the contract was fulfilled precisely according to its terms and therefore he suffered no loss he got the benefit of sparking except that had there hand or a standard because we do have article three we did not the concept that despite this somewhat mike wristing unique settlement we as the court still shouldn't just be judging staff or fine there has to be a case o controversy and so how do you get past that with a case or concept be a standard and what is that one how would you define the case a controversy issue in deepwater horizon to this court said that the standard to be applied is not a matter this is once you've gotten into the class membership which is it's not an article three standing issue it's a matter of interpretation of the settlement so it's not a constitutional issue i just want to make that part because whether we should be spending time on someone who has not suffered a loss but see that's where we disagree because mr west had the expectation that he would in fact obtain a revised contract and that's what i was going to head there not been a settlement he could have gone to court that one to approve that that wouldn't have occurred until two thousand and eleven is not correct because his contract now two thousand and ten or oh no usually what happens is they attempt to renegotiate the prior will now that actually fit exactly at the time well i'm sorry that's the speculation business that's if you want to hold if you're if you're trying to hold b p to the contract it's one thing but you're trying to hold your never would have that may or may not be true i am not i let me let me go back to the other issue because i keep interrupting my scalp but i'm sorry i noted that b p has this i step and doesn't point to anything in the settlement agreement no provision whatsoever in the settlement agreement that allows this i want to point out that section five point three point six point two in the settlement agreement actually says that the framework governing the individual economic loss clintons that's the formula shall apply to all claims by all natural persons within the economic class definition now they admit he's in the economic class definition that language in there to me indicates that once you are a member of the class and they recover it all depends on whether the application of the formulas will apply to allow that because basically all you're saying is that the formula is the formula is the formula and therefore you get to recover you know what i'm saying is that because you're you're not allowing any scope for review of the claimant's underlying fact what i'm saying here is in this particular case i think there's been no knowledge that is a class member and therefore there's no need to look at it in terms of your hypothetical issue where you have someone else at what baltar's me are concerned i haven't given a tremendous amount of thought to that because it doesn't apply here however what bothers me about it again is the lack of any principle when does the claims administrator look when who decides whether it's suspicious how does the claims administrator now it what is the appeals panel do and what how does a judge barber or the appeals panel or the claims administrator actually look and apply yes there's a difference between a color if you will and a meritorious claim in this particular it could be the same could be different in this particular case i think what deepwater horizon two said is you need a colorable claim what the colorable claim that money why can't i get well mr west had a reasonable expectation which they acknowledge but the fact is that mr west did have that expectation one of the problems here is we keep talking about things  i admit it's not in the record and it's not an organisation be a collective bargaining none of this is in the round one reason it's not in the record i think it's precisely because the settlement agreement risk tricks the information that can be submitted to certain information that is listed in the settlement agreement and request until another reason it's not the record is because no one is look the claim i mean it because of the way this is governed us the everyone's denied the discretionary review and so what we're left with is it all we know is a contract that says that mr west was going to be paid x well with or without the deepwater horizon oil spill well the contract itself is not in the record e the case so i can develop a record somewhere other than in the fifth circuit i don't believe he was required to take the case i think you saw his discretion properly and i do think that so did the appeals panel they looked at all of this there could have been information submitted at the time it was not by opposing counsel by by b p and then they waived well you know i'm not i'm not arguing one way or the other not waver but i'm saying that's why it isn't in the record i don't think it is incumbent on me because i fit the terms of the following the facts of what the facts what we assume the facts to be which is the existence of a contract running through the year two thousand and ten with annually declining amounts of money i am not going to deny that your honor that is accurate i can only tell you what the expectation was of mr west as a result  assigning a case on facts that are in the record but you decide a legal question so the claims administration stage b p is not even involved so we don't see any of this so that's why b p can't put anything in the record at the appeals panel stage we raised the issue because of the publicly available contract and it should have just been gone back to the claims administrator to sort this out so this is something that's publicly out there yeah while the month website are short he just admitted to it but yes i know but i mean we ask lawyers to speak to us honestly as officers the court that doesn't change that an appellate record is irrelevant right at the appeals panel we said hey this guy and this insistent with his tax returns they matched the documents that say what his five year record were wise and we said hey he didn't attest in good faith to us by related loss and he did suffer a loss and the claims and the appeals panel said that's irrelevant i don't care if he suffered a loss so our role isn't to say what the contract says it's to say the appellate panel or the district court should have looked further it and develop this record exactly they applied a legal standard that was wrong and so what is the t ell me on the at a station what do we do about the fact that he keeps saying thirty forty times i had this expectation i thought i was going to make more money just like if i owned a little shrimp shop dress i would have thought i was going to make some more money even if things weren't looking good for two thousand and ten or whatever and i can then recover even though nobody like mushrooms right was shrimp shop owner doesn't have an exclusive contract with the new orleans hornets where there's only one source of revenue but to david weiss is never said that under as you just heard a lawyer say it that my client expected had an expectation let him you're saying he misses attested or he lied in his act has station and his lawyer is saying oh no  he really thought he was going to get more money out of the hornets and elvis yet with all due respect know his lawyer said i don't have to all i need is a last calculation formula he sees it three different things i don't have to attest to enough and i have to test  class member oh and my lai promise you my client on remand can attest to a good faith related to the loss make him say the third one on reman please make sure that david west will say in good faith that he expected more money because he wasn't at the salary cap or that more money would have come in in two thousand and ten the new pay him of course we've been paying in paid eleven billion so far we brought this case for a reason because we don't think david west will say that under oath if he wants to say it that's fine good for him he can say that on the on the bit about the class members so that the first time i've ever heard is he had to station with a class membership the that's a that's incorrect for two reasons remember in j d this court went out of its way to say you're a class member you still lose your class memory and said b p don't bring his class member arguments anymore we don't want to hear them so fine he's a class member you still lost even though you met the formula we don't care that you met the formula you didn't have the documentation to show you were working here there's dearth that i'm alleging something the courts a five times you have to test to cause a nexus ok i'll tell you what concerns me about this case this is shockingly whatever on the part of mr west so that seems like an easy case for you but what worries me is that we then decide we issued opinion and as has impact on other people on the janitor and people like that who you all chose to give a pretty light burden to prove causation in exchange for this buying of the piece that you all did and you can buy arson a piece but buying yourselves piece and presumably at least putting some cap on the ultimate outcome here so what do you do about that i mean there is the next guy that's what you're worried about the worried about it to the next guy who isn't so obviously so the next guy remember we lose if the appeals but if the claims administrator resolves facts against us so there's more we send it back you're saying west could still win and you'll live with that we have to yet remember you said the has been arguing a bunch of the other peels personally i'm sorry kirkland and i sat on one of their appeals where the question was the in her petition whether a claimant had the right to characterize whether something was fixed or variable expands and we held as a matter of law over an objection by one of our panel members as a matter of law that not fixed excuse me ok so we held that as a matter of law it wasn't a question and i we i guess we re mandate it but only for purposes of calculation right now i don't think you need to remain because in develop this i mean it seems to me that if you if this contract is not in the record his expectations aren't in the record that doesn't argue perverse and render that argues for sending it back to the district court to say look you need to exercise your discretion and consider all this  outcome is he could have said something that was actually not ridiculous he said two things that were legally impossible and when you put that in your brief and you don't put any substantiation it is also within your discretion just to say we win but it is also a to remain and it and let the claims administrator develop the record you know i mean that's because we're deciding whether the court failed to grant discretionary review properly which i think is clear for me to be a little bit different than just deciding the merits of the case as we do in all the other case yes i mean you could say that he did the settlement agreement requires an end to station it actually has teeth he didn't and he didn't say anything it argument that made him you know any sense he didn't explain why there was no why there was no salary cap that's part of the public record and how he could have got more money in anything other than in two thousand and eleven but just change your rate i mean a lot of times judges want to court of appeals judges say hey this isn't my problem i want to remit another time in it's our problem but we don't develop facts you don't but you insist that parties make enough allegations in their pleadings and in their briefs elop facts on you don't say on appeal that you're going to remain and so the plaintiffs can take another shot because he screwed it up the first time it is that all along he had the opportunity to make an allegation as you said he was told that he didn't have to in fact he was told he couldn't i mean you know so if the if these all of these entities were applying the wrong law it's sort of like it the wrong bur proof was applied you don't just go will apply and we'll find you send it back for the right byrne to be applied so here of all of these entities who are saying look buddy you've done all you need to do more for one point five million years you want point five million it seems unfair although again i have no sympathy for mr west but i'm not here to judge people it's in there who are here to judge the case just because a matter of law here and so but it is a matter of law we're saying he should have put on evidence of x y z when he was told no no no no no no no just give us these documents that doesn't seem fair i'm making a different point i agree with you what i'm saying as a matter of law is we know already that there are no documents because the arguments he's making are legally irrelevant he can't say in two thousand and eleven the last year my contract i would have got more money because nobody cares what happens in two thousand and eleven that's beyond the compensable period so he can just sit there and say i want to remain so i can put a clown suit on but wearing a clown suit doesn't get you relief so you don't need to remember that that's my only point on that one