call the third case of the morning number eighteen hyphen three zero six five nine b p exploration versus claimant i d one zero zero zero one three nine one three two one my personal campaign is from now on to identify claimant because i can't do five digit numbers and in this case the claimant is the well known law firm phelps dunbar i know you know it and i know it and now the world would like to start with the one that is the most significant and easily warrants remand specifically this court should be reversed in remand because the new orleans appeal panel failed to conduct a did novo review don't have the information to make that determination nature of the settlement agreement is a b p doesn't really know any of the underlying facts until the appeals panel rules right that's correct all we can do is ask the peals panel to investigate things that's right the profit and loss statement you have don't show they don't break out london that's correct do you agree that there is a when you go to the appeals panel it's a baseball process which means that you take one of the other number that the appeal panel can't come up with the middle ground like a lot of arbitrators actually like to do they can also remain and do you agree that in that type of baseball appeal process where you've got a zero in a nine million dollars that the panel should only remained if it's a material difference with those numbers or was it if it's twenty thousand dollars off isn't there some some ability for the panelists a as i think they did in the new orleans claim with the copying expenses they said we don't really have to decide this because it's not it's such a small fraction that when it changes our have that discretion if it only makes ten thousand dollar difference and they have to choose between zero and nine million it why why shouldn't there be a materiality requirement i think when you look at the settlement agreement  the baseball process right but the baseball if there if they have to remain every time the two numbers aren't precisely correct we're going to be here another decade it seems to me but that's but this where there's supposed to explain why something is not material so the or otherwise the possibility of judicial review is is nonexistent that's right certainly explaining here would have given us more to work with to understand what the appeal panel meant by saying it's not material but we think it will not amount was so small that it wouldn't have count favored them going for the zero award b p proposed the appeal panel didn't make that determination and in fact we're talking about hundreds of thousands of dollars of recurring fees here and so again while if you look at the settlement agreement as a whole look at the very purpose of the appeal panel to assure that there's been it here insta the terms of the settlement agreement and so on in chromo have an office in london the firm does you have any idea how much it costs to maintain just off those premises personally i do not that i imagine it's quite expensive this right and therefore in order to justify an expensive investment like that london being one of the most expensive property markets the entire world you've got to generate fees and here where you see the appeal panel merely accepting at face value phelps dunbar's assertion that there are no revenues that's not consistent with the appeal panel's obligation to conducted an overall review to look at the complete record and in particular while b p isn't involved in the settlement program the back and forth and doesn't come into the appeal b p did put in what evidence it asset to the firm and in particular states that the attorneys use that office when working with clients and when performing rather providing legal services and that matches up precisely with the definition of a facility under exhibit five and policy for sixty seven of the settlement agreement not only is this an incredibly important issue here in this case given the centrale any of the limitation of economic damages as loss of rising in the gulf coast area but it's also  an important issue because we've seen appeal panels coming out different ways in terms of what's required of them to assure that out of zone losses are not included in a claimant's award there's just a decision issued yesterday on wh assure that out of zone losses are not included so for example we cite in our brief one one appeal panel decision number twenty sixteen dosh eleven seventy three where it's fairly similar to what happened here in that you had a claimant who represented that they had a soft and that saw office they said was in was in destin florida there wasn't any further analysis of that at the program level at the appeal b b p can point to no revenue associated with this office phelps maintains that the firm uses the location strictly for marketing when the lawyers housed at the office and noj revenue generated from the site without any evidence the revenues were generated from the london office blah blah blah but again part of b p has no access to that financial information does it and that's i mean i will say that seems to be a recurring refrain in some of these appeals by b p the the appeals panel and maybe it's because the baseball program is  inherently strange but the appeals panel apparently quite often says well the claimant says that's ok b p loses and we think that initial and final proposal b p explained that because of these issues because of the the out of the only or the only issues where the tupelo office which unless i'm mistaken couldn't have been too large unless there's a lot in elvis's historical monument there or the copying charges which were one hundred fifty thousand dollars or so or the london office so how c be p i mean whatever b p was doing may have been speculation but why zero the reason b p put in zero was because b p took the position that remain and was the appropriate recourse specifically that the record was did they didn't make any decision actually i'm failed to apply it independent judgment to look at the substance of these fees and make a determination as to whether they constituted revenue and if they constituted revenue than the government agreement and policy three seventy three requires that they be included in the calculation of the claimants award that's on the b p website also say the phelps engages in arbitration in london or allude to something like that i think there are a number of indications on fox dunbar's website of work that they do in london with the insurance market in london and european insurance market but with that particular reference i'm not positive on the photocopying in printer expenses what's what language and clearly says this is revenue there isn't language in the settlement agreement that says  the appeal panned out or the c s s p needed to make a determination but if you look at a common understanding of rather what revenue means it's income from the sale of goods or services and that's not disputed that these fees were received associated with them included and we didn't bring down the overall income numbers because it all just excluded because i think their argument is look we make these deals with clients sometimes we make money sometimes we lose depending on how many expended would have been noted out as business expenses but there were a b p wasn't saying that the entire gross return from this had to be calculated right right why there were different offices different facilities these were two separate claims and they were consolidated and before this court and what are the worst what are the other two facilities one was that's a different question judge jones we have represented a couple of people not a lot of people we represented several claimants as even the appeals panel noted but that's not relevant this court has concluded that's just saying that phelps numbers i mean frankly it is it's tacky that's all i have to say well i don't know if that was your honour's implying but all the law firms are try to grandstand and make money when off of this oil spill when the firm's revenue increase the firm is representing clients in connection with the oil spill it just seems to me like  argues the gross revenue increase because of the acquisition of the not the law firm and in thirty different time keepers of the year twenty ten with respect to whether it's tacky  approved asia honored no other law firms applications for all reimbursement in compensation because of their losses not because they're trying to grandstand not because they're trying to add ice into a cupcake but because they've had actual losses that have been documented by a small army of c p a s from pricewaterhouse that have been reviewed b they have quote losses because this is one of the worst deals in history from the standpoint of the compensation scheme but that's neither here nor there and i don't mean to distract you i'm just talking about the professional reputation of legal issue me explain to you my fear about this and i know i know exactly i'm not sure you know i have no idea how this is going to come out but just mine my problem with the argument is as i understand the settlement program the accountants take the first cut and they have certain responsibilities to oversee what the claim is according to the terms of the settlement agreement and so on and then if b p object p files an objection and then the appeals panel and they have to stay reasons why and the appeals panel has to look into those reasons and document them but b p does not have access to the underlying financial data right it's judge you read my notes that was what i wanted to address that is that is incorrect ok the financial data which included our tax returns our audited financial statements both monthly and yearly our gross revenues those were all of vailable that the tax returns judge jones that kind of financial data was available to be paid off on the claims that administrators chordal they even signed it to those financials and in fact judge jones specifically to address your comment when we were before the appeals panel b p first in their initial proposal made a suggestion of an adjustment of seventy five thousand dollars down wood from the award they went to the final proposal just let me spit out problems i'll be quick and then when they go to judge barbie and they ask him for his discretionary review they say well that would reduce it by a couple hundred thousand dollars so they'd know the financials they're not in the dark i mean they have their they've got armies of accountants and lawyers they know exactly what the financial numbers are they've looked at those financial numbers and frankly the two issues they've raised one is the photocopying is judge cost of lou did a moment ago in the other one is the london office the photocopying is basically one twelve to one twenty seventh of the total amount of the panels that were unanimous all right but the definition of facility is not necessarily in accord with tax on where you identify revenues and the and the real i've sat on two facility cases and in one of them you had salesman who just worked remotely where the manufacturing plant was in new orleans and everybody could understand why those who because london is extraordinarily expensive and the firm says we have a lawyer working out of london all the time now the firm is not going to have lawyers sitting in a high members of this panel that phelps dunbar does not have a lawyer assigned to its london office it does not have a lawyer there at all and monthly it does not have them lawyer licensed in london it has a london office as we've represented and as the panels both paddles unanimous slee agree that it is for marketing purposes and that's what the claims administrator said b p has not proved otherwise the all b p has done as the appeals panel said is speculate about what the london office was so here's my theory because my theory would be that the thing should be remanded to  i suggest the auto they have all of those records they had everything that was available that they wanted we gave to them they made several different inquiries to phelps for information price either accepting blindly the representations about what was fixed versus variable cops thought of the contrary to basic accounting principles in mind theory of the up as i understand the facility definition it says where you generate revenue outside of the zone covered by the b p oil spill that is not to be included for purposes of that goes back to a point the cost which is the baseball policy that's a policy that b p negotiated b p submitted to this court and to the district court and it got approval and then it's signed off on the b p the baseball policy is judge cost that recognized and as i know the other members of this panel know says you look the pavel's look at the position  and the position of the claimant and they take the one that is closest to being accurate that's with the appeals panel did even though they acknowledged just months later to judge barbie there was some validity to the award is just they disagreed as to the accuracy of the amount awarded period but the the fact is both both of them said that now your honour's under the framework of the settlement agreement there needs to be some legal care i mean that they can't just be questions about the facts a second guessing the facts of the appeals panel and the claims administrator because that's not an abuse of what russia a p and that's where judge higginbotham asked a moment ago that's got i understand all those argument but let me go back to what i suggested to you because you have not responded to what i suggested you say the b p had all the evidence in front of it did b p have access to evidence that would have shown that lawyers in the london office were billing hours because you i don't see how you can stand there and tell me that that the the rather than have cocktail parties is par party so claire inches you didn't go and you chose to have a full time facility there and then you must have somebody there doing something because your website says b p had every right to take that at face value and those lawyers who are there must be billing hours in some ways some form or fashion therefore it is a facility generating revenue how could claims administrator in terms of documents and then again to both appeals panels the new orleans appeals panel concluded that all b p could do was speculate they didn't want to do anything just like are your record sites to show that it is not a facility it is not a facility because there is no revenue stream and under policy for sixty seven which b p accepted it's not it's not a facility that's where i can't that's where i look you're out of then you would have to negate for sixty seven there isn't a law firm in the world that has an office i would side of its home office that doesn't deem manda an income stream calculable to that office there is unless phelps mine dunbar is the richest or the most unusual law firm that exists and that all i'm saying common sense not have people working at the london office full time i mean they are it it's period that is what the the appeals panel concluded and what this  the baseball policy and rewrite the discretion given to a dish for a judge because the standard is judge higginbotham asked is abuse of discretion it's fact based it's not a legal error it is well again this is this is strictly factually very rugged situation where does the facility definition say that you don't have to or you just you just said something that went way out say about the baseball policy i'm talking only about the definition of a facility and not that is in policy for sixty seven and that's what is included if there is the revenue stream could not be determined to a specific location which is with what occurred according to the factual determination by what do you feel panel then that then you go to four sixty seven and it's not considered us to a separate facility and what i am saying is that in law firms unlike manufacturing companies located in new orleans for instance every lawyer is a profit center and that's the way law firms treat every lawyer now so when the lawyer goes to london the lawyer is the profit center who has to whose income or or their group of income has to generate sufficient revenue to pay the costs of the of the out of town facility of that war can build time and create profits by charging at the new orleans office which is what hours while he's in london i am saying that is part of the facility cost of the london office i understand which you've said judged the revenue i understand exactly what you said but that is not what the record shows that's not what twenty six thousand pages show that's not with the appeals panel concluded that's not what the accountants can times because they were missed defining facility where your authors i don't i don't i don't with all due respect i don't believe there was any misc definition of the syllabi and there's not been an argument to that effect even by b p before this court i mean the fact is all b p does is call the claim by phelps to be suspicious and there's no proof of that there's there's absolutely nothing other than name calling as judge higginbotham is having been a member of two here and give you about thirty seconds to make up part of the problem and you have represented other claimants but a big part of the problem with this settlement is that the architecture of the settlement going from the baseball to the accountant to the settlement to judge barbie is discretion which she hardly ever exercises to us is that we have we have less basis for a cheat thing stari decisis in this matter in this whole program than we have in any other area of the law as far as and that because the whole thing was jury rigged and you know judge jones if i could just use by thirty seconds to hopefully respond to that quickly you don't have to respond that was my speech you can say whatever you want and theories well i am going to say this and it's a it's a written response to your speech which is that he negotiated the settlement agreement b p negotiated these policies b p negotiated this baseball policy this was all part and parcel of the framework that b p negotiated approved and signed off on so far all of a sudden the p to be able now to change the rules of the road is not cricket as you would say and i would suggest to you respectfully and the other members of the panel that we're operating under the framework of the an agreement and the policies and b p doesn't get to to change that at at the eleventh hour or in this particular case what is determinative is whether there is any abuse of discretion and there is absolutely no abuse of discretion in this case regarding the correctness of the did ministre to decision that's what this court said in homes versus motor back in twenty sixteen that's what this court has repeatedly said in its opinions in fact i looked in within the last of thirty days it was keep i would go back to for the last four months at least peons not asking for the settlement agreement to be written all that we're asking for is that it be properly applied and here where you have an appeal panel having completely missed the issue with respect to whether the london office is an out of zone facility whose revenue expenses should be excluded that's a legal error that shouldn't be allowed to stay so you have more than enough for trinity to look through the records and billing records asked to see the time of attorneys that was spent in the london office that di i've not seen a cite for that i didn't hear counsel provide a cite for that and that's precisely the problem here is that the the p didn't probe this issue just accepted that representation the implausible representation that there are no revenue or expenses for the london office and similarly the appeal panel did the same thing didn't didn't look into this issue and didn't consider the website that b p had submitted and because of that it's not the case that merely because revenue hasn't yet been identified or hasn't been segregated out in the information that's been provided that it can't be done and here to your point judge jones we think it can be done and that there should have been that this case should be remanded so that the settlement program looked at the revenue and expenses for that out of their own facility of any other facility issues arisen in regard to law firms i can think of a one in an unpublished decision from this l had been provided for each and every office and here you have an entire office that is unaccounted for and in addition setting aside this imposible representation that is accounted for it's wrapped into the new orleans office that's right it's not you want to be the claimants accounting practices will exhibit five actually indicates that and for example if a multi business a multi facility business doesn't keep separate you know it has a consolidated financial exhibit five requires the separating out and the breaking out of that information and that's what should have happened here because you have a separate you have a and out of his own eye facility whose revenue and expenses hasn't been separated out and just briefly to touch on the point about council indicated that there was no increase in revenue because but then but then says well there was but it was because b acquired another firm how many more of these appeals are wriggling to be hearing i know there are still cases in the pipeline and cases that are still in the settlement program so i hate to be  horizon the end is near and then we read something about twelve hundred or twenty four hundred or something like that last i heard we were in the hundred one hundred s is my understanding but if i may just we know what we read we may not know what the other panel sor