accord months this court has issued a series of opinions that discussed causation issues and settlement program peels three things from those cases are going to form the framework for my argument here first this court has observed as a general rule that a claimant who satisfies the last compensation formula in the settlement agreement is entitle to come to a second neither this court nor the settlement agreement recognizes an unclean hands exception to that general rule her the only exception that this court has articulated to the general implausible causation exception is no justification for what the appeal panel did here the general rule is well established as zones see claimant who  appeal panel that the claimant hear her failed to comply we have the last compensation formula in exhibit four bait was your position both that it would misapplied the settlement agreement because it doesn't exclude or disqualify claimants like this and that there are appeal panel splits on this yes and if so if you were describing the settlement agreement argument is the close the most direct split with what i think of as nine sixty four is opinion one sixty four i think creates the most direct conflict split it was an opinion and sixty four that the appeal panel characterized exactly the same argument that b p might see her as complete nonsense and an improper causation analysis foreclosed by this court's opinion in deep water is a great judge barbier you probably know his law and he's been pretty darn attentive to a lot he did deal with this unclean hands notion in the andrea law firm matter that ring a bell to you now i can't say that i'm familiar with it but i guess i mean i'm in the brace but also in my head there are occasionally absurd hypotheticals it would be a priest spill loss to bank robbers would not be something one would think the settlement agreement would allow them to claim and yet it's hard to point to something in the settlement agreement that says that what's the rule of law you would propose if you win in your back in front of carl barbier well and as we've said in the brief i think that there is a complete difference between a claimant that is a wholly illegal enterprise and a claimant that is alleged to have there is that simple hoof issue in my mind or a nexus issue but i'm asking for if your argument is the settlement agreement doesn't disqualify and it doesn't talk about it anywhere that argument almost is is is sort of too broad right because none of us would think that someone who is a criminal enterprise could su we all agree with that but in the context of what this case is and this particular climate i again go back to the way that the court analyzed the settlement agreement in deepwater horizon three of the limit the limiting principle would be that the what the way that federal courts interpret maritime contracts under maritime laws of contract construction and the the that we're getting closer to their unclean hands must be implicit in the agreement and you're just then disagreeing about did they prove unclean hands well no because the principle issue of contract interpretation is what does the contract side it is not the role of the court to really write a contract for the parties and to argue as b p does that some equitable principle overrides the rule of construction just don't see in the contract something that keeps out disqualifies a claimant that we're all i think here today would  somehow disqualified oh i would i would phrase it differently ok i agree there's nothing in the contract that for bids b p for making the argument but i don't think that's the proper analysis i think the proper analysis is what in the contract in abel's b p to argue what its argument in fact that this court recognized exactly the same thing in deepwater horizon three they did nothing what if the f t c had investigated and obtained a conviction oh well then you probably wouldn't have an appeal panel conflict the appeal panel conflict on the illegal on the illegality issue arises from the fact that several appeal panels have in fact required indictments and convictions and you accept but oh well i would accept that it would eliminate the appeal panel issue but the more fundamental issue is does b p even get to it's unclean hands argument i don't think that it does well i isn't open and b p is just trying to open it a little wider so i'm not hearing from you and i may because you don't want to say what is it that would give the appeal panel authority properly to interpret the settlement agreement even to allow that p essentially made the same kind of argument by saying the settlement agreement does not forbit b p from challenging causation this court said well wait a second you foreclosed that you w and i don't know drone when you know that goes with it is that even though the contract doesn't look at these sorts of issues it's only you fit within the zone you fit the other parameters of of the requirement that even though there is no specific that will be addressed as we move along course his court keeps thinking we've moved all the way through but here you are so as we move along it seems to me that's part of what b p is arguing here that and maybe these sets of facts don't fit some sort of working through this by the settlement by the claims of mr rader cetera but i think we recognize that regardless of what we said in that particular case about how the parties and b p meticulously agreed you know in this processing of claims we're not going to worry about certain factual nexus issues so long as you fit within our you know parameters or specific crime they steal our ways of the claims  straight or should be dealing with us i think it's absolutely figure that the claims administrator has broad discretion this court has recognized that and has applied that rule many times but the key to that broad discretion is the discretion has to be exercised within the parameters that this court has recognized both within the settlement agreement itself and its cases like deepwater horizon interpret  then to be fair the court has on occasion found that not only that the appeal panel got it wrong but that the district court of used its discretion and failing to exercise its discretionary somebody matters to you people who are sitting on that side of a courtroom but in the end in the scheme of things how often does this come up and we near the end of the claims process is just something that this stage so less than a month ago so the court has not reached the point where it is saying a time out no more of these cases it's still sending some back and in this case the issue has come up with quite a bit of frequency require some substantial proof of wrongdoing such as an indictment or cook or conviction and there are other cases like this one where the appeal panel has been content to rely upon hearsay that affects onl opinions that we've cited go back to school early as two thousand and eleven and the most recent one who believe we cited was from two thousand and sixteen one thing i do want to emphasize to the court before i run out of time it is that in its more twenty sixth and march twenty eighth opinions the court discussed the parameters that it would place on the implausible causation exception to the general rule and i think the principles and those cases are significant the court in those cases recognized that an implausible causation or argument may arise in a couple of situations here there's never been an argument that the client's at a taste at a station with suspicious there's never been an argument that the claimants financial data or supporting documents were false fictitious or fraudulent in any way  ultimately what b p argues is that there is something to suggest that the claimant may have derived some of its revenues from allegedly illegal activity this court in its march twenty sixth and march twenty eighth opinions have emphasized that for the implausible causation exception to iran it's the evidence must be held it must be more than something that is respectfully in this case mere hearsay the f t c declination in the f w a reconsideration neither had explanations today gotten arps think in the record it is it's gotten in the claims administrator still didn't deny two weeks later that's correct saying it was cramming but no evidence is that true to say at the claim administrative level the claims administrator claims administrator cited only the senate staff report the florida settlement agreement only became an issue at the appeal panel stage and because the appeal panels are not split on the issue presented here this case involves the straightforward application of the principle that a claimant that is structured to engage in illegal activity and is revenue in fact comes from that illegal activity cannot recover compensation under the deepwater horizon settlement agreement that true more you do how do you respond to the doubts marty exists to so a couple of points on that you honor as a threshold matter the claim it admits in their opening brief that the federal rules of evidence don't apply here so to the extent you're talking about can we even consider the senate report that has been answered in the parties are in adjudication under the f r e e they have that right they could have opted out of the settlement agreement and then they could come into federal court and they could have proven their claims under the federal rules of evidence they would have had to prove causation mind you but in this case the claimant didn't opt out they opted for the streamlined adjudication under the settlement program and the federal rules of evidence don't apply in virtually every one of these claims there is a dispute among the parties about some evidentiary issue and it falls to the settlement program in the first instance to decide those disputes and in this instance there was overwhelming evidence to support the finding of the settlement sing you asked about the letter that comes from scattering arms that is in the record and that document actually corroborate it's a great deal and certainly doesn't dispute over your position is just barbie didn't abuse his discretion or reviewing it because they were non responsive and this just reduces actually to fact disputes about giving data to support you are pressing that so or you are well to clarify and i do apologize for the court there was a response  to the initial question of the settlement program about the revenues and expenses associated with the that's just me you know i did took me quite a bit of time to track that down if your for if your brief makes an argument relies on it that they were non responsive asserts it without a record site which is page twelve of the brief and then you'll tell us we apologize that should have been done in a letter or it shouldn't be because i now asked the question understand and i apologize both to the court and the claimant and the claimants casso that that non responsiveness argument is out of this case this case presents the issue that the appeals panel decided on which is that unclean hands disallow correct your honor and on that point i think there are two issues one is the question that you sort of lead with two appellants which is can you have a situation where a claimant who is engaged in illegal  illegal conduct are they allowed to recover and our position that we've taken throughout that the appeal panels have i think consistently taken no appeal panel has taken the opposite position and said that you can recover as a matter of the settlement agreement putting aside factual disputes except at nine sixty four panels so knowledge is not foreclosed because you're profiting from wrongdoing this is complete nonsense it is not sanctioned by the settlement agreement so nine sixty four is a pure alternative causation case and that's not what we're arguing here in nine sixty four this the case of a lawyer who gets incarcerated and suspended and after various remain ams the argument that was made is that the reason that that particular claimant that their losses wasn't caused by the spill that their losses were associated with the fact that they were in jail and suspended from the practice of law that's alternative causation the argument here i think is completely different because you can imagine a situation where you have a claimant that's in gauged in illegal activity and they might not have a causation issue but they still would be excluded from the settlement agreement because they've engaged in illegal conduct and that's the source of their revenues so for example suppose you have a bank robber and the bank robber of course happens to keep p and l statements reflecting their their revenues and their expenses well it may well be the case that because there's less money in the region due to the spill that there decline in revenue is because of the spill there's less money to rob from the banks so they can satisfy obviously that presents a harder question which is why you asked it and i think one of the related question that is factual which is not hypothetical is let's say the florida a g said your restitution amount is just teeny would they be foreclosed from making a claim because it work so i think what some conduct that runs afoul of the law but at its core a t m t is a legitimate business enterprise and what the record here shows is that the claim is organized from the ground up to engage in illegal conduct and those are the findings in the senate report and and it's hard to say i'm not saying the whole corporate structure is fraudulent and yet when the louis freeh crowd the f w a looked at it they reconsidered and when the f t c was given the whole pile they declined or civil what's the limiting principle to you that doesn't just turn pether people because of a congressional hearing absolutely and that's an important consideration your honor and we have a couple response  number one in terms of the f w a if you look at rule twenty six of the appellate procedure rules and this is actually cited and it's in the claimants brief as well and i think it's ours but rule twenty six describes the circumstances when the  different from the situation here the p l c or may be totally legitimate it's just that the underlying conduct here is what's problematic brit purpose exactly and the revenues the susi did with that in terms of the f decision as we all know the decision of an agency enforcement agency not to prosecute can can be reflective of any number of things i think it's telling that the f t c decision and again we only know but one thing g well i would look in the first instance in the senate report as a threshold matter though let me just disagree with the premis because we're here on discretionary review and so the issue is not is this court settlement had to our recent decision saying if this is just a fact the speed about whether you qualify are not on the settlement agreement the district court is not required to exercise its discretion  certainly that's our characterization of the case is that at bottom it is a factual dispute about whether there was sufficient evidence for the settlement program to say you are engaged in illegal activity your revenue is coming from illegal activity and therefore you don't get to recover the act test asian cases that the claimants have relied upon are that's essentially the same thing as alternative causation here we've never made in that test asian argument in this particular case and again you can imagine a situation where you could have a claimant that could plausibly attest to a spill related loss that nonetheless wouldn't be permitted to recover because it has engaged in illegal activity and  essentially baked into its very corporate structure and judge who can say no i want to get back to your question even though as i said i disagree with the premis about the evidentiary threshold i think if you look at the senate report next to arps document that the claimant has relied upon both of which are in the record the senate report it there are multiple places in the record seven hundred seventy eight is one one place where you find the senate report and the the the letter and the document that the claimant files i can get six hundred fifty four and the senate report explains in great detail that companies that are engaged in cramming are structured in a very particular way they use these complex structures precisely to of the detection and to conceal their illegal activities from the public and from the phone companies the report goes on to identify about half a dozen different specific sets of facts the susi did with this specific claimant that support the conclusion that it's engaged in criminal most of those specific facts are not actually disputed some of which are even confirmed in the white  the senate report as hearsay this skadden arps report it has it's undated it's unsigned it's unverified in any way it doesn't even have a letterhead at the top of it it's just a set of papers and so if if if they gave it to the f t c we have no idea that they gave it to the f t c alleges that what aside the washington mess agreed it's to look at the end or to turn a general am i right or wrong factually that the restitution the refunds ordered were just a percentage point or two of total revenues and if they were just a percentage point or two how can we decide that the entire structure was approaching i agree with your with your honor's characterization of the florida a g settlement and that's why we relied more heavily on the senate report and again comparing that next to the white paper and i can just give a couple of examples to show the way in which this illegal activity is baked into the structure of the claimant why would the florida agena out of pursuit why would they agree to a no my ability settlement and get refunds for just a fraction if it's so convincing in the senate report so one possibility your honor is that to paragraph two point eight of the florida a g settlement indicates that as of the time that that settlement was entered into it had been months since the claimant had ceased processing any bills for flor arps paper and i believe it stayed that the f t c is decision not to proceed with an enforcement action was in the summer of two thousand and thirteen paragraph two point eight of the florida e g settlement states that they had ceased business operations well i think at bottom it is an evidentiary dispute that i didn't at bottom just decide this is improper unconvincing evidence from a senate committee with whatever motivations they may have had and whatever degree of investigation that may have done all these other things which are really sort of a war for you that are not very helpful it does seem to me that it could be good evidence was looked at as being pretty minor so to two responses number one is that again virtually every claim has a factual dispute where is the claimant located is it a multi facility claimant what are its revenues and we have this process where it is  intrusted to the settlement program to make these decisions and to decide to make competing decisions about the evidence and again if if if what the claimant wanted was a full blown adjudication with the federal evidence they could have opted out but when they accepted this streamlined approach i don't think they get to come in and say well that's hearsay and that's not reliable because we haven't trusted the settlement program to make these don't write my understanding your honor and i don't know where that number came from my understanding is that within the fifth circuit that the universe of cases is on the order of around one hundred i'm sorry this multi  that's my understanding yes your honor is that i'm not aware we have looked and i'm not aware of other other i mean i'm not trying i'm sorry i didn't i mean would you have these things go through the system i would you know many would be well at it because once it gets to for example the appeal panel steve that's really the stage at which we have insight into what the claim is about and so my understanding is that we don't have any with this issue but and i knew i'd mention it a couple times but  with the time that remains i do just want to address this factual issue because i've alluded to the senate report compared to the white paper and just a couple of quick facts here the senate report news for example that in twenty  that this clean men of two hundred thirty thousand cancellations of the service two hundred thousand were a susi it it with the types of reasons for cancellation that are suggested of cramming for example people who didn't authorize or it's a business number and the service is supposed to be for personal personal profit or it's a business number and the person who authorized is not in fact authorized to make those decisions the claimant doesn't dispute that they're only response in this way in their white paper is that will only a small number were specifically classified as not authorized but the senate report indicates that one of the strategies that they using cramming is to call business numbers they call the main number so that you get a random person and you talk them into this service that they don't want so the white paper essentially confirms what the senate report the same the senate reports  detailing calling multiple numbers a susi added with a service total protection plus that is supposed to be these are numbers provided by the claimant and they're supposed to be personal who numbers every single one that the senate committee calls is a business these are the claimants own numbers and again that's perfectly consistent with how cramming a curse a legal question assuming if the settlement agreement does not address whether you can recover conduct you're not a business economic loss claim and just as a matter of the agreement itself you're an illegal actor and for the reasons that you wouldn't allow a you know a fraudster a bank robber a drug dealer to pass themselves off as a business economic loss claim it with business revenue the scene should apply here if there are no further questions we asked that the district court's decision tonight if you'd be a few very brief points number one i absolutely agree that federal rules of evidence don't apply but they are certainly very useful to any panel in determining whether evidence is credible and that is the standard that this court articulated most recently in its march twenty sixth of march twenty eight cases the florida settlement agreement states on twice that it's no evidence at all it's very difficult for b p to take the position that the settlement agreement is somehow credible evidence of wrongdoing when the settlement agreement says and it's close but it's not the senate staff report is no different than not a complaint filed in federal court on a daily basis it is an accusation it may evidence that the senate staff reports accusations fail is that the into t actually charged with prosecuting for cramming the f t c dismissed all charges against the claimant it's company still exists the company is not doing the kind of business that it was doing at the time of the white paper so in that sense it's it's no longer continuing analysis b p agrees that oh sure a t n t could participate and the settlement agreement because it's a legitimate business we have ourselves said that  illegitimate business could not participate in settlement agreement but even the senate staff report on which he relies does not say that the climate was a wholly illegitimate business does not say that the client  claimant serves no legitimate purpose and the white paper confirms on its face that the claimant they that offer significant services that were legitimate on their face  the revenue figures that are in the record at nine o five show that the refunds that were paid to the florida attorney general were for a fraction of the revenues that the claimant actually received over the compensation last period and ultimately the fundamental flaw in all of this is that there's just no legal framework  settlement agreement premise they didn't do it either i thought i'd agree with that and i think ultimately of the principle that works that op would operate there would just be the public policy but applies the and into t that is illegitimate on the face of a drug dealer a bank robber as you described earlier they would be thrown out again outside policy say if a portion of the revenues that you are claiming from the bill period were illegally gotten whether your larger business is good or not that public policy would say those can't be recovered there i would i would disagree there is no public policy case that would let b p do that because obviously  segregate money i'd like to know if any of what you're really requesting relates to cramming but then you gave it to them i brought this specific request was tell us how much you paid in refunds and in the record page nine o