please the court i'm stand in jones from arnold and porter and i represent b p this is an extreme case where this claimant a business located more than two hundred miles away from the gulf received a compensation award of more than six million two hundred thousand dollars despite being entitled to no award at all under the settlement agreement and the district court abused its discretion by denying review of this massive windfall award for three reasons the st two issues on appeal today involving the decline only revenue pattern causation test and the station requirement both stem from the same critical flaw in this claim and that is this claimant didn't suffer and can't establish that its losses were caused by the spill and this is a rare case where you don't have to take my determination of their contract in a detailed legal complaint filed in august two thousand and eleven this claimant said over and over again that the direct t v terminations in november two thousand and eight devastated its business that the claimant said there that the terminations lead to dire economic straits that the claimant was making no income that it had no opportunity to generate money to pay its outstanding bills the claimant said that its cash was being depleted at approximately a one million dollars per month it had to fire one hundred and seventy five dollars people even before the end of two thousand and eight and stated  bankruptcy at claimant said all of this in all just two thousand and eleven that was after the spill a year and a half after the spill if you read the complaint if you read this claimants legal complaint against direct t v it makes exceedingly clear that the direct t v contract terminations in two thousand was the catastrophic event that grew in that this claimants business and it's fundamentally inconsistent with the notion that the losses here were caused by the oil spill years later under the settlement agreement this all bars claimants claim for two independent reasons the st claimant hasn't and can't plausibly attest that its losses were caused by the spill under the attestation requirement and nd claimants can't satisfy any of the causation test that are required for zone d d claimants those located farthest away from the scale under exhibit or bodies to rehab so you mean more claims there or they told us about six months ago we were nearing the very end so it is certainly winding down in the big picture there are more than forty claims last or terria stages i will say despite that being a relatively small number of claims there's a great deal of money at stake just next month i have two dollars more of these appeals coming up that are worth tens of millions of dollars there are other everyone over a one million dollars it's an appeal face to face no we're in this face maybe that's not accurate it just for a while we were seeing a one every single month at every on every day so that that's not accurate at all there are reams of claims more than a one million dollars but in this last space i don't i don't mean totally in the whole grand scheme of things them saying in the end they seem to be big claims about a lot of money the new you're not disagreeing with that you were just telling us that you have tens of millions of dollars ones certainly b p is exercising reasonable discretion in which sought discretionary review in the district court which was denied that was of course an interlocutory decision there was no award at all yet the appeal panel had remanded to the claims administrator much less than a requirement that a litigant appeal an intra locket or a decision of the district court to this court and so the peace failure to to pursue an interlocutory appeal following appeal panel one decision simply has no  impact on its ability to raise that issue here what do we do with the a pupil no one's determination that the injury of the six competitors independently satisfied this sort of declining only revenue decline only test test ation or the other issue we've raised the issue there is that the claimant never even mentioned this supposed entry of competitors before the claims administrator that was raised for the  st time and documents were submitted for the st time at the appeal panel phase and so the claims administrator never had an opportunity to evaluate that and should have so if the court believes as we've  directv terminations cannot qualify as the outside factor for purposes of the decline only test at a minimum the decision should be vacated in this matter sent back to the claims administrator to evaluate this new evidence you know and whether it's good enough but we find it going to one find it sufficient in my misunderstanding what they're saying it's on record to a seven hundred and nineteen yeah i mean the the issue as i said was that that evidence had never been submitted to the claims administrator so the claims of insurer had no opportunity to evaluate it there's no there's no decision from the claims administrator that b p could appeal to an appeal panel if the claims administrator found it sufficient this is just it's out  order the claims administrator evaluates these issues in the st instance and claimants aren't permitted simply to not present arguments to the claims administrator and then raise them but this issue of the direct t v terminations it bears not only on the decline only revenue pattern test but also the even more fundamental issue of this claimants inability to plausibly attest to losses caused by the spill so under this court can i ask you one question about argument one or more can you discuss why it's not just a single decision that this will be relevant to argument three asa why isn't this just a single discretionary decision that such that there is no error in the district court refusing to take it up sure so this for argument one further decline only test the argument is a legal one that the appeal panel misses misinterpreted misapplied the settlement agreement by fine by allowing an outside factor that negatively impacted the claimants read i mean every legal decision that's wrong does not mean if it's a one off you don't get to it's not for use of discretion by the district court if it's a one off it's not likely to repeat so it's not a one off here there's actually an appeal panel split on this issue there's needs to be unique to two thousand and eleven meaning that the factor needs to affect the claimant revenues for the st time in two thousand and eleven and that appeal panel decision explains and it's clear common sense and logic that that is that would essentially amounts to an argument that because there are only forty more of these claims totaling potentially hundreds of millions of dollars that the court should just declare that nothing is an abuse of discretion i'm asking you  this is what you know you've got to show that it matters in other cases at this point that this court's precedents established that the district court abuses its discretion into circumstance one when there is an appeal panel split on an issue that goes to the fair administration of the settlement this case meets that there is an appeal panel split and this is on an issue that is at the very core of this settlement agreement who which claimants are entitled to recover compensation on the pieces of lost caused by the spill it absolutely goes to the heart of the settlement agreement and it is the subject of these public and the other standard of review factor is whether the appeal panel's decision contradicts or misapplies the settlement agreement and this one does as well on the attestation if i can pivot back this your argument to this is argument to in the briefs correct so in two recent decisions that are discussed in our recent twenty eight day letter this court vacated and remanded for evaluation of questionable or suspicious at how stations those are the the foundation case into the basketball team case and in both of those cases the core specifically ordered an assessment of the claimants attestation under the new standards that were announced and set out by the court in two other recent decisions of this court those are the david west and howard industries cases all four of those decisions are from this year west and howard establish standards for evaluating potentially implausible or suspicious at test ations and the court in the foundation basketball team cases emphasized importantly that when the district court denied discretionary review of this issue it didn't have the benefit of west and now and all of that is true here when the district court denied review here it was before west was before howard attestation requirement and takes it out of the realm of causation and into just a sort of you're just testing that the documents are what they purport to be but it's significant that the claim even now is not claiming that it can plausibly attest to a loss caused by the spill there's a good reason why the claimant isn't saying that because it can't the claim itself cl said that and they can't with thirty seconds left i'd like to just briefly touch on the expense misclassification issue issue three in our briefs texas gulf sea food holds that the district court abuses its discretion by denying review when the appeal panel focused on the label of an expense rather than its nature that's exactly what happened here you can look at the claimants brief to the appeal panel claimant told the appeal panel you should focus on the label rather than the nature because they said that this court had never held to the contrary that was true at the time but then this court decided texas gulf seafood so now it's wrong and on the merits these are variable expenses for the reasons described in our  opinions post texas coffee say just the misclassification itself is can be a single one off discretionary thing that is not going to be error there are multiple decisions of this court that so there are i don't know without knowing exactly which one you're talking about there are opposed to texas gulf seafood cases where the or where this court says that there's not a sufficient  s to conclude that the appeal panel in fact even the word the nature of an expense situations where it was ambiguous what happened claimant tries to fit itself into those cases the difference here is that again if you the appeal panel to hold that the focus for expense classifications is on the label assigned by the claimant not the substantive nature of the expense because this court had never said anything to the texas gulf seafood because of the spiel all you've heard about is directv ok you haven't heard anything about the other revenue streams that this company generated and that has to do with furniture mattress number of instances it wasn't until the early two thousand the directv came about and actually retained or entered into a contract for a call center that my client provide my client operated off of i twenty revenue streams are running like they have for years i mean as a child i would watch this man the president of this company go on t v and advertise his appliances he was extremely successful just recently i went to houston and i went to the ma amount of the award i have no idea but that is not what the settlement agreement is you attest to almost a plausible explanation which is exactly what michael and then you go to the to the causation framework before i don't i don't mean to interrupt because i want to hear that too but yes while we're still on at this station b p has pointed out and we have several cases as b p is explaining where after our decisions and david west n the other one that came two or three days right behind it we've sent these back for evaluation under the standards under the act to station standards that the court is articulated i'm not sure i heard in your answer judge all right why that wouldn't be inappropriate you may have compelling arguments to make about why the review should still be denied it but why wouldn't we just send it back the way we have with these other cases for reconsideration there's the west case is an individual economical is case as opposed to the over twenty thousand pages and a good number of that is customer make stuff almost all of the customer mix data is not related to directv so to answer your question those cases involved a situation where the claimant had essentially one line of revenue and could not reasonably attest to the fact that the spill harmed them on that one line to reveal there's no doubt in this case and when you consider the amount of money spent with this business for purposes of additional lines of revenue if the spill in some way affected this this client remarked most of my wife's happiness i have an entire house full of appliances and furniture from this this claim and so does thousands of other of other homes throughout not only north louisiana but throughout all zones and just as an example this is just something i picked up this warning out of the customer mix two hundred and nineteen thousand six hundred and seventy two electronic record of people seventeen thousand purchased by one individual for appliances for a home same page eleven that appliances and furniture purchased by one individual v but when directv terminated it led to the lawsuit when they terminated the agreement with basic i didn't just terminated two thousand and eight like b p would have you believe there was a post terminations agreement that allowed for revenues through september of twenty nine the problem was directv says that we're taking your phone and we'll we'll throw you a call you know we'll pay you correct evasion but my client had one hundred and twenty five thousand people upstairs above the short room with nothing to say no phone but my point is there was revenue that was still being derived up until late twenty teens because of the post terminations how did this spill affect those activations because what my client did was listen is important when it comes to the fixed expenses that i'll talk about in just a nd they purchased yellow book advertisements all over the country and spent millions of dollars in advertisements not just for direct t v but for their business downstairs but most of those had to your terms they were fixed expenses by their substantive nature because it didn't matter how much money they made for revenue those debts were owed so directv does acknowledge look basic as these obligations that they're not going to be able to pay so we're going to pay them because people in the gulf countries who weren't going to buy direct t v satellites absolutely now to what extent we don't know that but that's why there's a causation framework in the cellar but without a doubt you know they say that we don't a test all we say is we attest to the accuracy of the documents we do it is to the accuracy of the documents we hired a professional accounting firm and they did an absolute a great job in providing those documentations but basics certainly attest to the fact that they suffered a loss because of the spill now the want to cation of that loss is above my pay grade five quite frankly but we do view of appeal put on a woman but then they didn't appeal to this court and they the way they brief the argument only you know competitors i'm not sure that they haven't waive that right before this court because i don't believe it's even addressed in their opening brief but my point is basic as has satisfied causation the nd prong of causation which is the only issue of causation they don't they don't argue one they don't argue three th causation we think they have very little argument as it pertains to classification of expenses but if there is anything that has any scintilla of near it would be the argument on expenses so i want to at least take a couple as you know this court has heard the arguments before as to whether expenses should be classified as fixed versus variable and is i'm sure the court is very familiar with texas go seafood which has been cited  knowledge of the law opinion but it's it's out there and we don't necessarily disagree with what takes texas gulf coast seafood shares is that you have to look at the substance of nature of the expenses there is no indication in this case that the claims administrators or the appeal panel did not look at the subsystem nature of the expense so that we did not simply defer to the labels that's b p s argument we do not believe that they did discussion seems to say the classification of these expenses appear to comply with exhibit four b i soon that really means for d not for b and i would essentially agree with that rockers because four b is causation right but even giving spotting it that it means sales ma'am it's calculated based on the sales right based on the revenue right ok and it's the types of costs that would be fixed so that your argument is correct th p argues that the advertiser calls should be considered variable that would be deducted from the revenue for purposes of compensation that we disagree with and we say that they were appropriately categorized as fixed expenses so they're not  from and part of that goes back to what i was explaining your honor how this business operated they purchased all these advertisements and then they were left on the hopeful i mean it's a two year contract you have to pay that out it's and so the substance of nature of these expenses are fixed as opposed to bird that's the st issue you're on the st argument as it pertains three percent of its advertising costs but only seven thirty two percent of that yearly revenue in the same month in march of two thousand and nine revenue went up by twenty point one percent compared  and the nd reason that b p s argument fails is again there's no indication of the claims administrator did not consider the expense of this fish what we talked about regarding that particular federal appendix case i will point three issues that b p parings up in this case one is at this stage we believe that has no merit based on basics basic suffering a clear loss we can't quantify the loss that's what the summer program does but the basic has attested to a loss the nd is causation we've met causation and we've met the nd prong of causation of not one but two month and the rd of the expenses and we just discussed why those expenses should be classified as fixed versus bare now we've been through this seven years this basic is filed their claim in this matter we've been through to appeal panels to to now is a discretionary view thank you on attestation cleamons council said that the claimant did suffer a loss caused by this bill for the st time today they did not say that in their brief in this court or in the proceedings below they instead argued that the attestation requirement has nothing to do with causation i would point you again to page seventeen of their brief in this court it says all claimant certified was that its documentation was accurate and complete they go on at the bottom of that page to say nothing else they said in their brief that they're not testing to causation they stand here today and say they are attesting to causation on this record i think that the statements today are implausible but they are at least suspicious based on the direct t v terminations and the complaint related to the terminations the fact that claimants didn't say can attest to a loss caused by the spill until today and it's triply suspicious because this claimant indisputably can't satisfy either of the v's shaped revenue pattern causation tests we don't believe that they can satisfy the decline only that last decline only test either but at best it hangs together by a thread so that's absolutely suspicious and we think implausible the claimants council was asked why this case shouldn't be remanded for consideration in light of the west and howard industries cases that set forth and announce the standards for evaluation about a station as happened in the foundation and basketball team cases there was no satisfactory answer it was said that the west case involved an individual loss claim where is this is a business but the attestation requirement applies equally to both of them and in any event the howard industries claim was a business claim so it's just there's no distinction there why are they why did they not exercise independent judgment by referring to the baseball process so i said that exercise an independent judgment under texas gulf seafood the independent judgment that needs to be exercised is in classifying the expenses as fixed or variable on the baseball process the appeal panels reference to the baseball player process is wrong in irrelevant percent from more than six million dollars to about eight hundred thousand dollars and in that case in fact the appropriate baseball offer would absolutely have been b p s not claims so the statement is simply wrong and in any event the baseball process has no ability on b p s a ability to pursue the expense misclassification issue here because b p of course had also raised the decline only argument in the at his station and if b p was correct on either of those the appropriate award was so that was why b p offered in a word of zero and that shouldn't foreclose b p from raising the expense misclassification issue particularly as i said when it's a five and a half one million dollars issue that with a delta of eighty five percent for the claimants claim the these claimants council said that nature of the advertising expenses is is fixed but it's not for two reasons st those expenses literally vary they vary in relatively close proportion to the claimants revenue and we put those numbers year over year revenue  advertising numbers on page thirty two dollars of our opening brief that's not relevant whether or not the decision was actually correct or not whether the decision is actually correct or not whether it's variable or fixed is not an issue that would allow you to get the district court back involved the issue is that the expenses were classified on the basis of their label not their nature and that was the way that they were classified because dot is  and now is that on the merits and that's not relevant sure that could be that should be addressed below i would agree with that that the proper classification can be addressed below the issue on for this court is that the the the appeal panel again at page two thousand six hundred and seventy two dollars of the record on appeal that that the expenses should be classified on the basis of their label not their nature that was done the appeal panel did that and said it was doing that it said as claimant no