the morning your honors may have please the court on stands and jones from arnold and porter and their represent b p the seventy seven million dollar compensation award in this case is one of the most extreme and unjustified windfalls gifted to any claimant under the deepwater horizon settlement agreement the claimant here is a global commodities trader and merchandise with offices in twenty two different countries it purchases and sells ammonia and fertilizer in literally dozens of countries around the globe and critically while this settlement agreement limits class membership to both business and individual claimants that suffered a loss as a result of the spill this claimants financial performance skyrocketed in the period after the spill and i'll get into some of the specific numbers which are staggering but the bottom line is by any metric no matter how you slice it this claimant did astronomically better financially in the relevant time and capabilities of the attorneys arguing this i what interested me was under the west sort of howard theory did you present the credible evidence of a sole superseding cause to the claims administrator so your honor a little bit of background b p is not present in the proceedings before the claims administrator b p doesn't have any visibility into what's happening that claimants submit claims to the claims administrator that happens completely outside of what in your in your briefs there are heavy citations to the record and i saw the citations to stern finch and what's the other fellow gasparo as part of correct and they did in october of two thousand and eighteen there exhibits are pretty clear there's a huge price bubble that explains all the loss that could be attributed yes that's two thousand and eighteen but then when you look at the record in d back in th you have the financial analyst for the claims administrator saying we're concerned whether the losses from the spill we are very concerned could you know could you send us evidence of of what the revenue structure was and so did the claims administrator ever get given this triggering event of credible evidence there is a sole other cause sue the claims administrator had the claimants p l since you could see that there was this price spike in two thousand and that was certainly there what didn't happen and what should have happened the claims administrator did not conduct any investigation into whether this claimant could plausibly attest to a lost cause by the spill under the holding of the score in cases like deepwater horizon three subsequent decisions after the entire claims process here unlike howard industries the foundation and basketball team decisions and importantly when this case none of those were even issued prior to judge barbie is ruling sad broader horizon three was that's the the inception of this implausibility exceptions that in my right legally yes that's correct although and i would get to this is a little bit done out of order but in the more recent foundation and basketball team cases this court vacated and remanded because specifically because the district court had denied discretionary review on the attestation issue before west and howard in the same that's the same here and that's exactly the scene here so we believe that this is a case where the record is clear that  so the law the structure was there and then you've given these three declarations the appeals panel but they say that's rejected by physical law no argument is that's changed now but then the last paragraph says in any event you they wouldn't doesn't that suggest that they looked at the material and they concluded it wasn't a zero or no your honor quite kicked quite the opposite and this is critically important the appeals panels decision in this case very clearly contradicts the settlement agreement in the exhibit four b yet of the settlement agreement and that is all that is required and that because they didn't see in advance neither did barbie or change the law which is what you're asking for right well in but but but the next paragraph i'm sure you know the conclusion that says but even if the law didn't disallow that they wouldn't win so my wrong in the conclusion  suit i see the reference i don't think it means what you're describing if b p is correct about either the attestation or loss issues if the claimant can't plausibly attest the loss by the loss cause by the spill or if the claimant didn't suffer any actual loss at all under the rubric of west i think it would be undisputed that that the award should be serio clearly the the appeal panel's determination to award to affirm the full award rather than accept the peace offer and zero is based on the the appeal panel's explanation in the decision it simply didn't believe that there was any attestation requirement and to the correctness of the numbers that get plugged into the settlement agreements formulas and i know but we've never seen an implausible case before wes that what that's what we said in west itself this is that remarkable implausible but there you had a basketball player's contract that was determinant in then we get to howard and we're looking at market fluctuation arguments in our courts as well that's much more like what we've been seeing throughout which is there are alternative causes  in some ways your honor in an important respect this case is even more extreme than the west case at least in the west the basketball players income it did go down in the year after the spill now it turned out that that was attributable to the contract but at least from this spill to the period after the spill his income went down this claimants this commodities traders income and it didn't just go up it went up by leaps and bounds and let me just give you a couple of numbers in revenue increase in the year after the spill as their position been throughout they have never tried to explain that they simply say there can be no inquiry or have they ever tried to say there were multiple cause they have never said n commodities transactions at issue here never touch never touched the gulf certainly don't touch tampa i think at best they said in their right it is a change now we've done it in these two remains but but i think in you anticipated the question i'm going ask you what's the limiting principle you did say this is be a teeny little subset am i correct that the subset would be where the claimant where you where you've offered credible evidence that there is a e dramatic upward trajectory of the claimants finances after the spill and also pointing to this historically anomalous two thousand and eight price spike that is the sort of glitch in the face is not a suspicious form yes but the other example it hasn't been that ok perfect so the limiting principle is there should be and it's a little odd because here judge bar b actually did grant review so what would be the relief you would say we would he didn't abuse his discretion in refusing so he repeats it he refused discretionary or the you on the issues that we have raised in this appeal thought he granted it but then said you were so conclusory in presenting this one he wouldn't reachin i believe he said that he was refusing review or wasn't reaching the issue you get the exact language but i don't know what but it could be important if you're wrong he didn't refuse review instead he grandview but then on a procedural ground he said i'm going to reach that because i don't see anything given to me to briefing that lays all of that out the the discretionary view briefs are limited to three pages so to some extent they're sort of everything is conclusory compared to what this court is is used to seeing   settlement program i don't believe that the subsequent outcomes of those cases at the claims administrator phase or the district court would affect the outcome of this appeal this court in the in its decisions in the foundation and basketball team cases held that vacated the denial of discretionary view and sent it back for a factual investigation the determination of whether the claimant could actually  whenever there's a potential showing of souls who proceed and cause that and that but later you say credible evidence given of it it would have to be the latter correct the language of howard industries as credible and under any standard we've met it here a business a multibillion dollar global commodities trader that made eight hundred and ten million dollars more in the year after the spill does not have it in lost much less a lost cause by this spill both sides appeared to think there was tension between howard and west so i'm not really sure and i think you went too far as to say howard's and correct it would seem to me if they're the issue there are two separate issues there's the question of whether a plane and has lost an actual loss the sort of injury component of article three if you will and then separately can the claimant at plausibl attest that its loss was caused by the spill i would sort of liken that to the traceability or causation component of article three on the station issue can claimant plausibly attest that it's purported loss was caused by the spill there is harmony from deepwater horizon through running all the way through this court's precedents through the foundation case the basketball team case this court's recent decision in a case involving potential illegal conduct by claimants also acknowledges the attestation requirement and harmony in the appeals panels two there is not harmony in the appeals panels this case is a prime example the appeals panel here said very clearly be on the mathematical formalism exhibit or be nothing more is required that ruling by the appeal panel just squarely reads the attestation remainer up did you know your times when you were going to say but in some sense there's tension or not yes there is a separate issue on the last issue the sort of basic injury component which is separate from the attestation issue howard addressed both of them howard i think as i say is in harmony with all the other decisions decision claimant got that wrong in its brief it just mixed up the dates so west is st in time and ruled that the because the settlement agreement doesn't define loss you have to look to the ordinary meaning in the ordinary meaning prior opinions of this court cases like policy for ninety five or the howard case for business economic loss claim it to stablish causation basically requires following the shaped curve  exhibit four beat and if west overturned that in some fashion if west changed the law then their argument has a great deal more merit because then all the sudden there's an independent causation requirement  as been read and that was something that and i just want to mention one example from policy for ninety five dollars where the court goes back to the example of the farmers to set up there the shape curve allowing for the planting season to be in the non revenue part and the harvesting season to be after the back part of the e and the court says under normal tort principles there would be no economic loss here however under the settlement there would be and so i think we need to go back to the settlement because a settlement has thirteen different categories of loss and most of the cases that this court has seen come from the business economic loss side and the business economic los side is the only place where you have this v shaped curve st abolition causation which is the language that was used in policy for ninety five it's a language that judge things and used in the criminal conduct case so what how do you explain west well it turns out that the heart of their claim is on page five of their reply brief where they say there's no difference between the individual economic claims as this court has said time and again i know judge engelhard most of the opinions that you've been on have not been published but in two years on the court you've magic's by my count to be on thirteen of these panels that by my assessment have all said the same bit but in four b the requirement for causation is stated on page five and it says simply causation requirement to zone t these are facilities and zone d and it just says the shape revenue pattern and that's it and then it gives three different ways to do the revenue pattern that's the only mention of causation in four b that's it whereas if you look at the framework for individual economic loss in exhibit eight which is what controls the west case and the court was very careful about the west case the court had to find ambiguity in the in the settlement language about what's constitutes causation which no other panel has found with regard to exhibit four b and it says individual who bring a claim as a business with us so right on the face of the instrument you see that there is a clear distinction between individual economic losses and these are going to be mostly i mean the west case is exceptional most of these folks are not going to have regular employment or not and have regular they have a nd job it's hard to maintain which were part of this bill which were affected by this bill which were not and so there's very specific causation requirements all through exhibit eight which do not appear in exhibit four now there that that that is what judge haynes said in her concurring dissenting view correct yes but yes by judge jones and our olbermann the published majority the wes case seems to go a little further you know the west case reversed on the grounds that the individual economic loss had not been established there because of the contract being for declining amounts over time there's no question between the majority in and the concurrence of sent there that this is all governed by the aiel by the ok but then but but both judge toler and judge chains are on foundation and basketball team and they're both taking west as harmonious with howard in business claims and sending it back yesterday they're taking them and they're saying sometimes you have to look further and it's important that both of those were denials of discretionary view where they said there is some reason to look further here  at the same time but in each case the language is sort of the same verbatim it's nice to say business claims with west and with howard let's just give judge barbie a nd look at a case that even if you look at the language of of howard that last passage of course they have to reject the entire holding of our which is almost identical to this case the same lawyers on both sides the same single expert who says i have another alternative universe theory under which they did just fine all that was exactly the same both in both rejected and howard there was no discretion or view and the court was affirmed on that this court affirmed change barbie but on the howard dicta at the very end it says that it may help toward the further in ministration of the cases that there is the sense that this is some presidential now we have an issue that we've raised i don't want to put too much stock on it but there's just not that many cases left it's not clear what is going to happen with whatever this court does i mean because the challenge here though really is the appeals panel was quite categorical that is all that's required we don't even need to look to establish causation under four b i think that is the holding of this court in deepwater horizon in a policy for ninety five dollars but if we do have this narrow exception there's a gatekeeping job when there's credible evidence of a so superseding costs just in what it says is under those circumstances the court to grant discretion or view the court here did grant discretionary review and it looked at but he refused to reach this issue he refused he what he said was that they didn't brief it to him and they put it in a cursory fashion but he had the record below below it's true that b p does not participate at the claims process level but b p does participate at the pellet level before the claims it means before the claims and so they were there but it was difficult for me about your brief as you said well as to argue to the district court they only gave three reasons they were computational yes but when you look at what they said to judge barbie there is a th and it's bolted th yes and so that was a little bit right think this is the alpha in the room because if you look at the finch statement and stearns and gasparo they presented to the appeals panel an enormous amount of evidence that seventy seven million was due to these fluctuations can i find  anywhere in the record that your client actually said no here's what opening statement in the claims process the client begins by describing the nature of the business describing so what's the record say for that because my nd question that's very think she's with your claim and please provide detailed explanation as to this spike crash baba yes where in the record did you provide the claims administrator an answer to the revenues where will i find it in the record i will have to provide that your honor but that's really important because otherwise the position is legally we don't even need to we don't need to discuss that i think that is our position legally that if we meet the criteria for before causation purposes that's the end of the inquiry to what is credible evidence of a completely different cause i thought arc our court is making a little bit of a course direction i don't think so i think that this policy for ninety five continues to be good wall and howard cites for ninety five is controlling authority then the example of the farmers who suffered no economic loss as this court described it nonetheless in a qualified because they need the v shape for b that's described there is that these facilities shipped through the gulf gulf shipping was disrupted and there was a generalized disruption and this is the point that judge southwick made in deepwater horizon three that if once you have a any kind of causal connection any finances it's going to be extraordinarily difficult to disentangle what happened here what happened there and i think howard case to the electronics industry lots of that's exactly the howard case it's very hard to distinguish this case from howard on the facts and in fact indeed this is a more compelling fact case than howard because this is a company that howard was an electronics company just happened to have manufacturing facilities in the affected area but this is a company that ships fertilizer up and down the gulf the gulf coast and does it heavily by by sea so it's it's obvious that this is a facility that is going to be affected when there's an oil spill in fact the coast guard shut down shipping during the deepwater horizon spill as it shuts down shipping during many many spills of much lesser much lesser size so i think that that's they made that claim and they  said we were affected we were affected because our shipping was affected now does that explain the economic loss that explain all of those details that's exactly what the settlement was of designed to avoid doing is designed to avoid a fact by fact accounting of each company's what is attributable to this because let me give you an example let's say that they made five hundred dollars in the period after th spill but they would have made five hundred thousand that's a loss now it's a loss not because they made less money than they had before but it's a loss because the adverse effects of the spill may have been a factor  if they made much less than they would have now these kind of counterfactuals are horrible and they're difficult to prove they're difficult to litigate and the settlement compromise as this court has said over and over again was that it took out that question of causation and instead just asked the question whether or not there was this is the shape to be shaped performance in in revenues and that is the definition of causation it's very hard to reconcile the position there there really claiming that west overturned policy for ninety five because policy for ninety five or the non profits opinion or any of these opinions is over and over saying that causation is presumed and as the language that b p presented at the settlement approval causation is conclusive it's your rebuttal that if you need for p that's the end of the inquiry and this court has never really debated that point it's never really departed from the point just come in deepwater horizon one you are descent your opinion your opinion there and your dissenting before horizon three was based on four c and based upon the calculation of the actual damages policy for ninety five stay with the baby if you will because the part where class council was pst it was approving the matching of revenues and expenses over different periods of time which was the concern going back to deepwater horizon one but on the causation side the nd part of the where the court where the clinton administration had come up with independent testing mechanisms for certain industries that would come out on causation that would defeat for b because it would not allow them to pick the relevant periods on that the court rejected it unanimously and deepwater horizon three does say there could be an implausibility in possibility case and howard reiterates that in that in using terminology sole superseding cause so that exists as a gatekeeping causation is a question as to when the district court might have to exercise its discretionary authority to review the court has never said that is a substantive standard and never in our word it is say it was a substantive standard and howard the court had exactly the same record is did in tramp the court had before it the claim oh no there was a downturn in the electronics industry we have a forensic accountant who can show that that's the explanation and the court said and judge barbie didn't even grant discretion review and the court said that's fine that's fine we affirm that was the holding of howard there is a difference between holding and dicta and the holding of howard was we affirm and we firm in part based on policy for ninety five now the pinion the position they take in their commit if there's this credible evidence of a completely different cause than the spill wouldn't the alabama bingo case at least be an example of a panel that did look and reject the claim there is a separate part of the settlement this is a mass know better now i do know there are different parts of this on the question of causation for business economic loss there is no split you need in fact the howard court cites the appeals panel in that case and doesn't challenge it cites quotes the appeals count in that case saying no appeals panel has ever created the argument that they are making here which is that a claimant who needs for b for a business economic loss when he is not one of these extreme extrinsic factors such as an individual involved such as fraud such as crime many of the of the specified exceptions and settlement agreement what they said was no appeals panel has ever denied critical terms of us but you may just that you almost are forced to say foundation in basketball team or dodges we're just being lazy we picked up on west and we're sending business claims back where the variable fix is a little too difficult figure out now we've got this well  take a closer look at barbie i mean at this too long to think that i'm going to tell a court that it's being lazy but foundation of basketball team around well because foundation basketball i go back to this claim i said earlier i don't think that there is much there but foundation in basketball both had some element that was critical one was this pass through entity and there is a specified section in the in the agreed to parrot the so superseding book case there you had the individual owner bringing a claim and so there was a real question whether he felt under the business that anomic was side or under the individual economic law side there's a concern at the time of the settlement that people not be able to double dip that is make a claim as the owner of a business and also make a claim on behalf of the business so there are special provisions that deal with that so one can explain those under those particular circumstances but what they cannot explain is the holding of how because under their theory howard had to every minute because how we didn't even get discretionary review and the holding is what's critical in howard in these subsequent cases which if my memory serves are both unpublished do not purport to challenge that the holding of power and so i would suggest to the court that that this is not he did point out that your brief was unfortunately mistaken howard is subsequent to us yes and they spanked us and i thank them for not doing it too hard i was counsel in how i was counsel in howard i read it st i couldn't shake it out of my mind that that was the st case but petition if i can just say one more thing they petition this court the court on bond for review on howard on the grounds that howard is clearly wrong after west and nobody has to call the court thank you a few quick points so that st that counsel focus is overwhelmingly on on the west which addresses the last issue but overwhelmingly ignores all of this this court's other decisions attestation issues are separate from the west and the question of loss you have a series of this court's unbroken decisions acknowledging that every single claimant business and otherwise must plausibly attest to a loss caused by the spill it starts in deepwater horizon three and it goes all the way through all the rest of the attestation cases that is separate from the loss issue in west it's an independent reverse for failure to look into other causation of a minor i believe foundation and basketball team which site both west and howard industries interchangeably are together for these loss and attestation concepts those are the two examples that i'd point to claimants council relies on the policy for ninety five decision heavily that cases about matching of revenues and expenses it's not it doesn't address either the loss or causation attestation issues in this appeal and the distinction between those sets of issues goes all the way back to deepwater horizon one deepwater horizon one remanded for further consideration of for two sets of issues one was matching that got followed up in the policy for ninety five decision deepwater horizon one separately remanded or additionally remanded for further consideration of the loss and causation issues to assure that the settlement agreement in both its language and implementation complied with article three those issues are addressed in under the crossing his argument to us today being one legally howard is this case and we didn't send it back and then factually at seven  and seventy three will see that his client his client actually did say there were multiple causes so let me respond to both of those points your honor st howard is distinguishable on the facts st of all in this case you have a claimant whose financial performance just astronomically skyrocketed after the spill which i think separates this case from others secondly in how are the clean by b p and i acknowledge we made it and didn't win but the claim was that they were  a riot of factors that contributed to the clay purported losses including the economic recession in two thousand and eight and other market factors that variety of contributing factors is just it's both qualitatively and quantitatively different than what we have here here there is a a single solitary d soul reason that this company qualifies for an award under the settlement agreement and it's that minimum that we did was at yes but at a minimum it should be read what about then factually he says no no it was answered a lot of the lawsuits because they couldn't ship across the court so they were given numerous briefs they're out this entire process at the appeal panel phase the district court phase and thirteen thousand words in a brief in this court b p has been arguing consistently at every stage that they cannot plausibly attest to loss caused by the spill and they never thirty two dollars on page thirty two dollars they say that they can recover seventy seven million dollars here even if all that was there were all of the loss was caused by something other than this bill just in have any loss at all much less a loss caused by the spill and article three does not permit federal courts to preside over such massive giveaways thank you owners you know today's cases will be