then in two thousand and nine in december of two thousand and nine the o c generated one point one billion dollars in revenue as a residential home builder however number of projects that it had anticipated working specific requirements for eligibility as a member of the settlement plan as laid out in section one point two and one point three of the settlement have not been satisfied and the claimant has not provided specific documentation indicating it was doing business are operating  gulf coast areas at the time of the oils though april twentieth two thousand and ten now that's standard who said that this  on basic on the on the grounds that you didn't if they had made a numerous efforts on that part to get you to sport your claim with evidence and it was not forthcoming but yes sure they were accepting the interpretation that was applied request well first boyer we disagree with the evidence or was that they were asking they were asking those for that information because they were in jeopardy of the settlement to require affirmative evidence beyond what was ask you to supply that you did not supply it was it wrong for them to even ask you about their whip i we assume would everything points to that they're asking us to provide his documents showing that we were expanding some minimal us to provide evidence of plastic membership beyond that that's required the settlement every more chance well they're requiring us to show some minimal level of economic activity on the first day of this bill and that's just not it's just not require need to provide a monthly profit loss statements for the relevant period here was two thousand and nine to two thousand and eleven as well as federal tax returns showing that we were in the gulf coast area it was at that time section one point two of the geographic description drive that says the entity is doing business or operating in the gulf coast area is that in one point two point two our service business is with one or more full time employees including the owner operators such as our client j d ossie who perform the fulltime services law physically present the gulf coast areas at any time from people twenty two thousand and ten table sixteen two thousand and twelve claims administrator and that the bill panel adopted an interpretation that requires us to be you know doing business are operating at a certain level on april twentieth two thousand and ten and they're completely dismissing the next two ideas you want and then additionally under section one point three which was mentioned here those are the image categories one point three is entities who meet the geographic descriptions of section one point two which i just discussed above are included in the economic class only if their claims meet the definition exclusions are set forth in exhibit eighteen you know based on the substance of nature of the business nothing in the settlement exhibits sixteen through nineteen or anywhere else of the twelve or a page accord mentions norms whether or not a business applies for months that if you are revenue patterns meet a certain say in this case the same pattern with meet those special need is conclusively presumed that all revenue loss during the benchmark period is because of the oils in this case we had the one point one million dollars in december of two thousand and nine and there was no revenue in the first quarter months of two thousand and ten the settlement specifically addresses that step to compensation your honor if you were doing better in the first one months of two profits of the firm basically dried up and then after the things for kerry and early two thousand weapon he came back from sick leave for the purposes of the hypothetical it's assumed that the skill had nothing whatsoever to do with the drop in revenue however the firm's profit was state statements that the v c compensation that met the v shaped causation patterns and they were therefore eligible to recover compensation in the hypothetical was under these circumstances are they able to recover even though that claims over the past three years this court has repeatedly held that the district court is under no general obligation to exercise discretionary review this court has only begun to fight two sets of cases where the district court might abuse that to determine whether a business was whether claimant was doing business or operating at the time of the spill so most easily of course a business that's earning revenue around april twenty tend to be doing business or operating but there isn't an absolute requirement  friend on the other side said of revenues so if a claim that has an unusual slowdown at the appeal panel will also look to evidence of expenses so one of these cases come up in the landlord contacts so landlord that it's maintaining premises in a ready to lease condition and i was actively searching for a tenet and his advertising is generally held to be doing business or operating at the time of the skill in contrast a business that shows no activity like j d did here no advertising no bidding no it's help to secure any business it's held not to be doing business or operating the question of dorm  membership so section one point three of the remote defines the economic damages category as a loss of income earnings or profits and a dormant business by definition has no loss of income earnings or profits and so wouldn't fit within the class is similarly section one point two requires doing business or operating and you know j t contractor here was not doing business or operating around the time of the spill and so i think there are two separate questions that deserve separate treatment first of all there's the question of whether the business is doing business or operating and there are a lot of businesses that will remain in operation even as the sole proprietor you know even as the sole proprietor becomes ill so those businesses are still going to pay dispenses they're still going to have the cost of an ongoing concern and there's a second question of whether that i my number i mean i think that would be a very related to a house painter still probably would have advertisements on going there would still probably be advertisements posted there are going to be costs related to say doing businesses tax returns and the like so i think that there are cause you know it's still going to have to maintain insurance and its business licenses so i do think there are costs that a house painter even would face as an ongoing concern of i think the second issue which is what is being addressed in the letter that my friend on the other side cites with questions of causation and this does not involve causation at all so you know the essence of causation is whether certain facts trigger a certain result in this case whether the whether the spill caused an economic loss and luke requirement to be doing business or operating is a causation standard in all business that is doing business or operating might suffer losses as a result of the spill but it might suffer losses for reasons that are totally unrelated what the doing business or operating the pharma gets to is a threshold requirement of class membership that business which is not a claim that which is not doing business or operating i could not have suffered the relevant this court has articulated two sets of cases in which the district court might abuse its discretion denying discretionary review first is where the claimant raises the recurring issue in which the appeal panels are split and resolution of the question will substantially impact  administration's agreement and second if the appeal panel's decision contradicts or misapplies the settlement agreement or has the clear potential to do so so as i mentioned a moment ago this case does not fall within the split on appeal panel august twentieth eleven because the proprietor was working for another business and in contrast the appeal panels have approved claims where the landlord did not have an immediate tenet to continue to pay for upkeep and advertising costs and so even though they had no revenue they had evidence that they were doing business and operating and similarly were real estate agent had no revenue because the nature of his business was sporadic large deals but where he could show evidence that he had advertised the most recent deal in which  tons began all the way in january twenty town and similarly the product of the profit loss statement showed no revenue and it showed no expenses that were consistent with an ongoing business there was no evidence that j d s advertising there was no evidence that they were bidding on projects and not getting it just shows a complete shutdown of the business throughout twenty ten j t performance last construction job in december two thousand and nine and it remained dormant all the way until may twenty  i'm not sure your honor they do this in a dress i tried finding the address and i'd not like to know your honor there's no evidence that there was rather utility payments during this time when there's really no evidence that it was basically so and there are some there are some miscellaneous items in the profit and loss statements that appear to be items that were incurred in previous years but simply recorded twenty but there's no evidence that there's no evidence that they earn even if the business had a temporary hiatus say because the proprietor bets that you would expect to continue to be paid o j did also cannot show that the appeal panel's decision contradicts or misapplies the settlement agreement as i understand that their argument is that the that the settlement agreement does not require anywhere that the business be operating at the time of this bill but i think that words that they were doing business or operating at the time of this bill that's true but we think there are two things that are important here first there it's a reasonable inference both from section one point three of which requires the loss of income earnings or profits that a dormant business of course it doesn't have any income earnings the profits to lose and secondly think the doing business at the time of the spill is also an appropriate interpretation of section one point to this requirement to be doing business claim is supported by this this and this so the only way that the claim is supported is that they're entitled in their revenue statements to put zero dollars rather than and they are not a political because their argument is that they're getting zero you know that they're putting zero dollars in the benchmark here in the in the period after the spill and before the spill because they're not doing business or operating at all not because they're doing business and upward and operating and failing to get businesses so they do m the they will meet in the shape cost but they only need to be shaped asked if they're entitled to put zero dollars into the formula and that's what we dispute is appropriate here we think a business that isn't even trying to earn a revenue is that decisions even those that raise claims about the proper interpretation of the settlement agreement and so no matter whether you think we're right or wrong on the doing business or operating and the fact remains that doing that there is nothing in the settlement agreement that explicitly contradicts hasn't shown expenses to indicate that it was functioning none of the decisions has ever held that legal existence is enough this court in somewhat analogous contexts has also not accepted that mere legal existence is enough so in february this poor rule of a claim by artsy enterprises l l c which challenge the amount that it was awarded under the settlement program and art c argued that it should have been classified as a failed business rather than failed start up business and the distinction between the two is whether they commenced operations on or after november first two thousand and eight now based on conflicting evidence this court described art sees actual dat operations as a moving target but critically the court did not take judicial notice of when artsy was formed and held that that was independently sufficient to be doing business are going to be operating under the settlement agreement so both the settlement program and the previous decisions of this court have understood operation to mean something more than legal existence this court or also decided to case back in june which we cite in our rule twenty eight j letter where the doing business or operating framework was i question now the part of what is true in that case the parties didn't challenge the legal interpretation of what doing business or operating meant but this court was also silent  and accepted the idea that doing business or operating meant something more than legal existence and again you know we think this case begins and ends in the denial of discretionary review and that would be an auto mission if  we have at least revenue in may june of two thousand and eleven therefore by their definition operating that is within the last period story in this case a particular client is a residential home builder he tax preparation bills things like that are quite as an owner operator and it says i section one point two point two service businesses with you know full time employees including owner operators who perform their full time services of physically present the gulf coast or is that any time between april twentieth two thousand and ten and april sixteenth two thousand and twel but they file their tax returns as a schedule c to my client's personal tax returns before the kind of work they did i mean it would sort of outsource yes sir and so it's not exactly your honor so it's not inconsistent at all with the type of business that it is he had some projects that were supposed to solidify in the first four months of two thousand and ten and all and all the real estate developers backed away banks stop lending then of course the still came on top of that some was a double whammy and this was this this is a space a particular claim that was devastated the time that's in accordance with the compensation framework that the parties agreed to because our client provided the piano as they passed causation under four b and in exhibit four see that those pianos are subjected to a number of other  objective database tests and that compensate that calculates compensation but what i think goes to the point b p here that there's some garden variety case that doesn't work of you couldn't book we could not disagree any more than  put this in the twenty eight jailer that was submitted yesterday all of a sudden the ultimate causation saga that played out in this court in the district court back in two thousand and thirteen in two thousand and fourteen and was put to bed finally in the rule seventy nine nonprofit  and my time is up but we believe that this was put forth be a sort of mission creep through policy three sixty two which applies to start a business economic loss claims policy three sixty two and interject some to tell you the circumstances test to determine whether or not a start up business was doing business or operating on the first day of the oil spill now whether or not you know this is the economic loss claim not a start up plane or whether or not a business was doing you know was doing business operating neither had pianos or you did not this is simply an alternate causation test that b p is trying to get in through the back door your honour's and with the hundreds of cases already reported right now worth hundreds of millions of dollars if this really low you know if it's into one of the categories we're not going to be opining you know about the efficacy of the claims and so on and so on that's not what the sample we have yeah i hear your argument and we understand