with the court supervised settlement agreement for the b p oil dispute today's issue while likely less complicated than some that this panel has had to address is nevertheless very important we're here today because the district court erred  unambiguous provision in the contract in four ways first he used a fairness analysis when both parties agree that today's contract provision is ambiguous intent and fairness should never have come into play you we love when lawyers tell us things are i mean ambiguous and we love it even more when they tell us things are clear you know chief judge i struggled with this when i started reading the briefings of the parties and i thought if everybody agrees that this is so clear then how are we here and the judge king actually summarized it well she wrote about an interpretation of a maritime contract in shamble and both parties agreed it was unambiguous and she said just because there are different interpretations does not mean it's ambiguous and so certainly there is more than one interpretation but we still fall under the guise of the well accepted principle that this isn't a noble review of an unambiguous provision in the contract on stand i just job security there's a lot of these the second reason is that the judge performed the contract by adding the term calendar before a month when the contract simply doesn't require it in fact by adding calendar he's affirmatively added in a step of analysis and in doing so reform that contract third he found policy to eighteen and food giant to be instructive policy to eighteen is a provision that both parties agreed on its face does not apply nor has it ever been officially blessed by this court and food giant as an unpublished opinion that while referencing to eighteen the court said was really just a matter of a calculation error that the parties were fighting about and we'll get into details on that later and finally he failed to follow this court's published opinion that the parties reference as policy for ninety five opinion it's one of the many opinions that that spurred from the  whether or not you could match revenues but that opinion unequivocal a state that the claimant gets to choose its own compensation period and that opinion had come out several months before the district court issued its opinion and he failed to even  every period is made to be consistent the purpose of doing a four for five financial is so that when you compare your quarter's your quarterly revenue you have a more consistent comparison for workdays ok let's get to that point where the court did each quarter  without fail i admit it lee did not count the exact day on that instead of just focusing on the four four and five and instead in fact judge king the focus is not on the exact same number of challenger days the same number of days same number of working days now same number of day i don't know the answer to that your honor some years it would some years i think there would be a winner today difference well it seems to me if there are one or two die different she would have to do some adjustment you three months means three months some way or another and if your definition it seems to you have to be consistent year to year with three months me if there's a discrepancy between two thousand and two thousand in two thousand eleven you pick a three month period you have to have the same number of days at least it would seem to me to make it apples to apples and it's not it seems like to me there would have to be some adjustment of the data i'd either exclude a day at a day whatever i agree with that but i think that the way that cisco did their financials actually gets you to the same conclusion although they look at the same number of working days so what the court is focusing on is the same number of calendar days you know thirty months in a one year maybe not here apple apples you still have to look at the same number of days right to get from the reason i'm asking if your calculation did that and if so tell did they look at the same actual number of days not working days right and my answer to you  believe that there would be slight variations from year to year but that oh if there are it seems to me there are very intense variations but just the data because if one has more days and the other my counter to that would be we think about it like the leap year every fourth year february would have less days and the settlement agreement as far as i'm aware doesn't account for that and the claims administrators don't adjust based on that which actually means that cisco's way of doing things would be more fair because it focuses on number of business things rather than as we only look well you're right but if you're worried about the practical application of the day's changing so that it makes for an inaccurate comparison i actually think cisco's model does a better job of you can picture last seven but you have to do it for apples apples three year and for have every day whatever your three month period has to be the same number of days in the following period it's not clear to me that that days at least well and that's what that's what the discrepancy becomes is when the settlement agreement only says months and there are different ways of doing that doesn't mean that we necessarily have to go back to the same number of days in a calendar month or like the settlement agreement says can the claimants prefer to provide their contemporaneous records even if they're not done on gap accounting principles and other than a few instances that we've seen that i can walk the court through the court has consistently held that the claims administrators can use those contemporaneous financials and that they don't need to move i think what the court is suggesting well it seems like a very commonsense analysis you could argue that that's been moving smoothing in reallocating your brand new to ensure consistency that this court said in the policy for ninety five opinion is simply not allowed the court said that may well be the fair alternative but that's not what's provided for in  and you are smoothing anything else you're just those are those the brackets for comparable period at a minimum and if you want to ditch argue that well you look at weeks she would still have to take the same number of days it seems to m ake it apples to apples right so what i'm trying to get did is that what your calculations do are not yes our calculations seem to make it apples to apples on a business day business week comparison a great example i think i thought of to make this simple for myself was a law firm in may of two thousand and seventeen there might be twenty billable days in that law firm because the month starts on a monday and then in may of two twenty eighteen there might be one thousand billable days so your revenue going to necessarily look lower all other things staying equal and in the next year even though it was really just because there were less working days your attorneys weren't billing as many days so i thought of this is the same way what b p does every what cisco does is they seem to eliminate that variability and have the same number of working days so they are comparing apples to apples and every you know when they submit their claims their month they actually do title their months as january february march and in doing so they keep them consistent with four week four week and five week but it's not as clean as what the court is suggesting on it starts on january first overdue it starts on january second going back to the plain language of the contract nowhere in the settlement agreement does it require the gorean months or the idea that if you start on the first day of one month that you have to pick it up at the exact same time the next year and in fact the agreement suggests that the parties knew how to distinguish that in section five point three point two point one and five point three point six point two it distinctly states that the businesses may maintain financials on a calendar or fiscal year so there we see the word calendar inserted or fiscal considered instead when we talk about month we only see the word month which suggests to me that the parties certainly knew how to narrow that if they had wanted to and they did they chose not to similarly the court approved policy for four ninety five policy for ninety five has it in this is that record on appeal three four three nine and no one it suggests that the climate's can choose and submit financials on a means because it's cases are not as broad as it suggests but what it's asking this court to do is take those cases and extrapolate that determine that you have to add calendar month it looks at a nine hundred fifty three fifth circuit opinion vocal that one was actually provisions and in that sense in that they were looking at when six months at a crude and it started on december nineteenth and the appellant there was trying to get creative and said well you have to do one hundred eighty days not six months and the court said no we're going to look at other r s provisions and that kind of indicates to us that was not perfectly clear if you're starting on december nineteenth you've got to go six calendar months from that they also supreme court opinion from eight hundred sixty four sheets and similar see she didn't establish a bright run line rule it was looking at a lease agreement that said rent is due on the first of the month and if you haven't paid by the following month then you're in breach of the lease agreement and one party said that that meant thirty days the other one said calendar month court said in this context at the least i think we can agree on one you just roll two july one out i would like to call the cour said policy to eighteen simply doesn't apply and that you can absolutely use the four five four financials that it's the claimants choice those are excellent examples of the very basic analysis i think this court should undertake and those are at three three seven one three three seven seven and three four one five and the appeal panel decision in this case followed that that same analysis at three four and four that quickly through giant is not instructive for several of policy for ninety five they said they had waived that it said yes to eighteen has been referenced for the ability to take orderly financials and turn them into monthly financials but in that case the claimant had already turned their own quarterly financials into monthly so the claimant hadn't made the argument that two eighteen shouldn't apply the court said really what we seem to be arguing about here is just the way things were calculated it was a simple miscalculation error so that shouldn't be taken to say that that this court approved of using policy to eighteen which is for please the court i'm stanton jones and i represent the appellee here the district court correctly concluded that the word months in exhibit four b to this settlement agreement system without a conversion to calendar months does not work under that the formula in the calculations that this settlement agreement requires and that allowing cisco to use its system not actually one year long in the way that we think of one year having three hundred sixty five days cisco's fiscal years are different periods of time and begin on different  dates and on different dates every cycle every year so there are three fiscal years at issue here and you can find all of this in the record on appeal on pages seven twenty two to seven twenty four the first fis year and i'm going to use year even though it's not really a year runs from june twenty ninth two thousand and eight to june twenty seventh two thousand and nine the second  year at issue runs from june twenty eighth two thousand and nine to july third two thousand and ten and the third fiscal year at issue runs from july four twenty ten to july second twenty eleven and cisco's counsel said that each quarter under cisco's system has four weeks about what month things short of tell you the exact dates and this is on specifically on pages you can find this on the record on appeal pages seven twenty two to seven twenty three and then you also want to look at page six thirty three which was cisco's claim calculation form that shows that the period that they picked they picked the repairs that they refer to as period for period five  and twenty ten period for ran from october third to october thirtieth period five in two thousand and ten ran from october thirty first  november twenty seventh so it actually spans two calendar months periods six in two thousand and ten the third period or a month that cisco selected in tw ten ran from november twenty eighth two thousand and ten to january first twenty eleven that period that month as cisco called it periods or months that they picked for in two thousand and ten and in two thousand and nine happened to how the same number of days they both had ninety one days that was not necessarily the case and that goes to the point that i was about to make earlier that when cisco's counsel said that each of their order has four weeks four weeks and five weeks without fail that's wrong that's not correct it says in their briefs in their submissions to the claims administrator and the appeal panel and it shows very clearly in their accounting system which you can find on the pages of the record that i gave to you every sixty year the year in cisco's accounting system has four weeks four weeks and six weeks not four weeks four weeks and five weeks like the first five years in the cycle  the final quarter of the year to be just four if you're looking apples apples to try to compare what revenues and and expenses were all that if they chose anyone one day period at twenty two and twenty nine in two thousand and nine why isn't that a good approximation of three months so it's got even if you look at the gallery  close to ninety days they're not going to be ninety days on the net that there are there are three separate reasons or on earth that when exhibit four b to a settlement agreement says in the months it means it means some claimants keep this for four or five or four or five for system there have been some claimants that keep their books on a on a quarterly basis and those in the food giant case this court affirmed converting those to a calendar month basis exactly as  plan the under the underlying principle the underlying rationale of policy to eighteen is that when this settlement agreement repeatedly directs claimants to shoes and i'm quoting from exhibit four b it says this twenty five different times it says the claimant meet shoes three consecutive months between may and december and it doesn't say you can't pick  three soon a logic to it meet it means that it means that very very clearly and long standing precedent of the united states supreme court this court and other federal courts confirms one hundred fifty years ago the united states supreme court in the sheets case said this and i'll quote the term months is not technical and when the parties to a contract  themselves given it a definition it must be construed in its ordinary and general sense and there can be no doubt that in this sense calendar months are always under december it when it says month it specifically refers to calendar months later in exhibit four be the parties to offered a series of examples of how the calculations were supposed to be done in every single one of those examples the clip the hypothetical claimant chooses three counter months in all of the exhibit floor being both the directions about how these calculations were to be done as well as the examples that the parties constructed and offered to illustrate how they should be done there are exclusively references to calendar months and there are tons of references to calendar months it says may december june july august there are exclusively and repeatedly references to calendar months there are no references to any period or measure of time other than a calendar month and the supreme court this court in the focal case as long ago as one thousand nine hundred fifty three i have said again the month the word month is not a technical term and when undefined in the contract it is commonly understood to mean a calendar month again the supreme court said there is no doubt that the word m a contract if not defined differently by the parties is always understood to mean calendar months because that's that's the u s supreme court and this court and other federal courts think that when the parties here drafted this contract and directed clamens over and over again in exhibit four be tuesday to select the re consecutive months between may and december it's exceedingly clear particularly against the backdrop of that case law that the parties meant to select the rican second of calendar months like may or december or as the exit is examples at the back of exhibit four b specify june july august or august september october pick three calendar months and regardless of the manner in which any particular claimant and there are hundreds of thousands of claimants and this settlement agreement needs to be applied in a uniform consistent way to all of them that's very important there's no question touch with the parties intended that the settlement be applied uniformly and consistently of claimants that the way to do that is rigor of how any one or two or five claimants may choose to keep their own books that those books be converted if they're not kept on a counter month basis be converted to a calendar month basis using what this court described in the food giant case as simple arithmetic and it is it is simple arithmetic adding and subtracting to convert either ciscos four four five system or a four five four system or a thirteen period system which is the  alternative accounting system described specifically in policy two eighteen or the quarterly basis accounting system that was in at issue in food giant any of those non calendar month accounting systems can be converted using simple arithmetic adding subtracting and dividing two to be converted to a calendar month basis so that this settlement a causation income and claims calculations can be conducted on a consistent basis incidents similarly situated claimants are treated the same and that claims don't rise or fall on the basis of the idiosyncrasies of any one claimants accounting system and your honor at the anomalies that would arise if cisco's alternative approach were accepted or are many and they're very ten and two thousand and nine that was not necessarily the case if cisco had picked its periods ten eleven and twelve from the relevant fiscal years third so like a week left in may to july third it was it was six weeks long that's forty two days now if you go look  at the similar period twelve in two thousand and nine and this is page seven twenty four of the record cisco is twelve period was may twenty fourth to june twenty seventh that's five months that's thirty five days if cisco had picked those periods cisco would be comparing not only apples and oranges in terms of dates that don't match up between the two years but cisco would be comparing one forty two day period to a thirty five day period that doesn't it doesn't make any sense ok and and the other thing is that this settlement agreement exhibit four b very clear it says the claimant must select three consecutive months between may and december twenty ten for the periods that cisco selected here into january first twenty eleven you are taking revenue from the incorrect year so even if you somehow believe that the word months means something other than calendar month should just be the end of this it it doesn't work it isn't correct instead what the district court did was exactly right what the district court said is that consistent with the underlying principle the rationale of policy to  and the food giant case when a claimant uses an alternative non calendar month accounting system the settlement program accountants so the small army of accountants from pricewaterhouse that actually do these calculations should simply use but this court described in food giant as simple arithmetic basic math to convert a claimant's non calendar month counting system to have that where each period spans two sometimes three months some periods span across multiple calendar years some again are going to have forty two days in one period in one year but thirty five days in the consecutive months between ne in december may in december our calendar months of course and in the examples says a hypothetical claimant hooches june july and august in june july and august are calendar months there's no there's thank you john we're back at the exact same thing that this court had to face in issuing the policy for ninety five opinion which is b p realizes that it forgot to clarify something that it probably should have and it thinks it's going to create results that are inconvenient for it or th might be complicated and what this court said in the policy for ninety five opinion and what members of this panel have said and other opinions interpret it and interpret ing the settlement agreement is that these alterations may be fair but it cannot be implemented because it is inconsistent with the plain text of the settlement agreement what the court said when it looked at whether or not industry specific methodology is can be used in the policy for ninety five opinion the issue was similar to what the peace council just said they came up to the court they said this is into insistent we've got these different industries and they're providing different financials so their expenses are all over the place they don't match with their revenue we need this court to tell us that we can apply policy for ninety five and then we can move all of that around and the court basically said you know what that might make more sense it might be more convenient for b p but that's not what's in the language of the contract and the same rings true here he says that there would be  that this doesn't work and it would create anomalies but i would encourage the court to go back and look at the appeals panel decisions that dealt with this exact issue they found no problem they did exactly what the settlement agreement and policy for ninety five allows which is they review certainly a sticking point to focus on your are but a kid i don't i won't tell you that you know run straight through that one but given that it allows the claimant to choose either their and their their fiscal or their calendar year then i think right well the idea would be that you you start it i think it's pretty clear that the contract is trying to compare three consecutive months or a quarter and in this case the quarter starts in  the year prior i agree with the court that that's not it's not as clear as i would like it to be i'd like to speak to b p s position that this is stated that it's stated directly over and over again in the contract and it's exceedingly clear that counter months are required i think that the policy opinions implemented in through the court supervised settlement program have shown that that can't be the case and look at it policy to eighteen policy to eighteen is title thirteen period or thirty and i want to be in precise claimants with thirteen month reporting periods so already we see that the claims of ministers are left with a question mark when you get when you have thirteen periods instead of twelve what are you supposed to do so then they develop policy to eighteen and without getting into that policy in the fact that it hasn't necessarily been directly blessed by this court it's still evidence of the fact that i think it's an overstatement to say that it's exceedingly clear and directly over and over again mandated that calendar print months be used and b p doesn't think that calendar months always have to be used because they argued in the four ninety four four ninety five opinion that you needed to move smooth and reallocate revenue because when you did work in a calendar month or for four or five that sometimes there was going to create anomalies because expenses and revenue were going to be accrued different times and this court said that's the way the parties contracted we can't write that in and now b p says no a month is absolutely sacrosanct and you can't you can't pull that out of calendar month but they've certainly made arguments differently in the past you know going back to the plain language of the district court's opinion he said in order to fairly interpret it interpret the contract you had to apply calendar months so in where we started which is that calendar is simply