thank you may it please the court i'm stanton jones and i represent b p the district court abused its discretion by denying review of this twenty seven million five hundred thousand dollar award because the settlement program misapplied the settlement agreement by failing to reconcile and resolve massive discrepancies between the claimants tax returns and the p n l's and also because appeal panels are split on this issue of whether the settlement agreement requires a book to tocs reconciliation and resolution of large discrepancies there is no question here that the discrepancies exist that they total hundreds of millions of dollars and that the settlement of the program did not perform a book to tocs reconciliation or resolve the discrepanc one of the largest awards ever issued under the settlement agreement but according to the claimants tox returns it should have been zero the book to tocs discrepancies here could not be more stark and just a decreased it went down by ninety three million dollars from the benchmark period two thousand and seven to two thousand and nine to the compensation period in two thousand and ten and ninety three million dollars revenue decrease according to the pianist but according to the claimants tax returns in the same time period the claimants revenue actually increased by sixty five million dollars that's a one hundred and fifty eight million dollars swing between what the p n l's tell you and what the tox returns tell you it is a radical difference it's the difference between a company whose financial performance plummeted after the spill if you heed the p l o s versus a company that was healthy and growing whose financial performance was substantially improving in the same period after the spill and again it's the difference between a twenty seven dollars and a half one million dollars award and no award at all and yet despite the discrepancies the settlement program did not perform a reconciliation or attempts to resolve them on the misapplication of the settlement agreement both the relevant legal principles and the facts are straight forward on the law exhibit forty eight of the settlement requires every claimant to submit complete federal tox returns in order to ensure that the revenue and expense figures on the claimants p n l's are accurate and this is critically important to calculating accurate awards that compensate for real economic losses tox returns are an ideal way of verifying the accuracy of the p n l's because the toxic terms are submitted to the federal government under penalty of perjury the claimed administrators policy to seventy four dollars states that the claims administrator will reconcile the tax returns and p n l's and that if there is a material discrepancy that the claims administrator will seek to resolve it and in order to resolve it exhibits for a authorizes the claims administrator to request additional documentation or information from the claimant and here in this case again it is undisputed that for every single year at issue from two thousand and seven the route two thousand and eleven there are just enormous discrepancies totaling hundreds of millions of dollars per year between the revenues reported on the p n l's and the tax returns and that's true for both the divisional pianos the contemporaneous pianos that the claimant originally submitted which combines the financials for both the cleaning facility as well as a non claiming facility out of the economic loss and it's also true for th the gap is huge is you're articulating it in sonus so for the system seems to work pretty well throughout all these p p claims that cetera et cetera how is such a gargantuan twenty seven million dollars to zero discrepancy maybe at the beginning of this process so well everything's not in place you're not used to it it's just strikes me that the way you argue get through the process and yet you know you say this is unmistakable error you know by the claims administrators at that level much less reversed entire awards maybe not to the degree of twenty seven dollars and a half one million dollars but this court has reversed entire or that should not have been issued at all which we know we have and i probably didn't c frame a question i guess just from the standpoint of this not accounting sort of methodological weighted is framed i guess a put it that way come up repeatedly during the administration of the settlement agreement and appeal panels have to take in different approaches to it in the cases that we cited the appeal panel decisions that we cited appeal panels have held that the settlement agreement and policy to seventy four require banding a book to touch reconciliation and also mandate that when there are material discrepancies identified that they be resolved in some manner other appeal panel decisions cited most prominently by the claimant itself in its appeal panel brief at record on appeal page seven hundred and eighty one dollars they hold the opposite they hold that the settlement agreement doesn't require a book to tax reconciliation and gives discretion is the word that both the claimant and these other appeal panels have used gives discretion or whether the settlement program will look at the tax returns with the p n l's to see if they match and what if there are discrepancies whether they will be resolved so this issue has come up a lot it has prompted a disagreement among the appeal panels and i think at the urging of claimant hear the appeal of the national excuse the settlement programs stale you to perform a book to tocs reconciliation or to resolve the material discrepancies as i said the issue isn't enormous significance here because of the amount of money that's at stake and because the discrepancies are so large performing reconciliation and resolving them could zero out the twenty seven dollars and a half one million dollars award on the relevant legal principles exhibits for a  as i said requires every claimants to submit federal tax returns and policy to seventy four dollars requires the reconciliation and resolution of discrepancies and because of the discrepancies here are so substantial it would zero out the board so i can just give you a few more numbers that are really striking according to the p n l's the average revenues for this claimant from two thousand and seven to two thousand and nine were three hundred and eighty six million dollars and then in two thousand and ten were two hundred and ninety three million dollars that's the ninety three million dollars decrease but according to the tox returns the claimants average ever driven is for the benchmark period of five hundred and thirty million dollars and then went up to five hundred and ninety five one million dollars in two thousand and ten an increase of sixty five million dollars that tops are turns and the p n l's are painting portraits of two who leave different companies and one is healthy and growing and the other is gravely ill it's the difference between a company that sees a revenue decrease year over year of twenty four percent going down versus a company that sees a revenue increase of twelve d percent year over year and again that's the scene for whether you're looking at the division claimant specific pianos that were created for purposes of this claim and the the settlement program didn't even attempt to resolve the discrepancy klayman itself repeatedly admitted before both the appeal panel and the district court that the settlement program failed to reconcile the piano's and the taj returns much less to resolve the massive discrepancies that exist and we in this case because it's on to spew did that the p n l's the claimant specific pianos that were used to calculate this claim we know that they had other major errors that needed to be corrected at the appeal panel phase the settlement program in creating these p l z years after the fact the rooney asli included related party transactions that should have been excluded the settlement program also the rooney asleep failed created for purposes of this claim are wrong and when you compare the p n l's to the toxic turns and they disagree by hundreds of millions of dollars it is not sufficient simply to say we're exercising discretion not to inquire claimant says that the settlement program made an informed decision not to pursue any book to tocs reconciliation so st of all that's not the decision informed or otherwise that the settlement agreement authorizes the program to take the set up the settlement agreement requires a book to touch reconciliation but in any event this informed decision argument is belied by the record st the settlement programs calculation which are intended to provide a comprehensive look at the claim don't even mention the book to  settlement program was not informed in its appeal panel briefing the claimant argued that the program ignored the discrepancy because the tax returns don't actually reflect its sales  based on some complicated transfer pricing model but claimant concedes that quote the record does not contain detailed information about the transfer pricing model so the settlement program and the appeal panel couldn't possibly make an informed decision about an issue that the claimant acknowledges they don't understand or hav fundamental issue requiring re manned we embedded a chart that showed the discrepancies for every year in our supplemental appeal panel briefing we had a whole section titled claimants tox returns belie claimants briefing under an entire section titled there is no need for any remain and because the settlement program properly exercised its discretion not to require a book to tax reconciliation that was claim please the court mike ybor for the claimant this court has repeatedly held that judge bar be a need not grant discretionary review of a request that involves no pressing question of how the settlement agreement itself should be interpreted or implemented but instead simply raises the correctness of a discretionary decision in the facts of a single case and everything my friend mr jones just said relates to the facts of this case whether the documentation was sufficient what precise steps were taken by the settlement program accountants and other factual findings made by the appeal panel this is the quintessential decision where b p is ultimately challenging the record in the facts of the case rather than as you alluded to judge stuart something of systematic importance to the overall administration of the settlement now b p tries to cloak its appeal in the language of the settlement policy to seventy four dollars but those arguments alternately run headfirst into the specific fact findings that the appeal panel made the appeal panel are there's an important distinction which is that b p did mention discrepancies to the appeal panel but it did so in the context of a factual challenge to the reliability of the claim award the appeal panel addressed that head on and found in favor of the claima and evidently credited the response that in part these purported discrepancies are due to a tax accounting methodology rather than a true discrepancy that undermines the reliability of the piano was what b p failed to do was to raise it interpretive argument about whether book tax discrepancies must be resolved in the way that b p contends is required by policy to seventy four in fact b p never even mention policy to seventy four to the appeal panel now in make these findings about the reliability of the p and ls the appeal panel also expressly found that the accountants had not only exercise their discretion in an acceptable manner but that they did so in a way that was sound and proper now th findings ultimately doom b p s appeal for several reasons the st of which i want to emphasize is that the settlement agreement prohibits the relief that the overarching command of the settlement wants to deal with economic reality to all of its facilities found separate tax return for the salvation of the claimant here is part of its parent company files consolidated tax returns and the only entry in the tax returns relevant to the claimant is a cons picture of the company was there any attempt to try to distinguish on the tax return the amounts on the tax return as you did on the p and you know as i did as i understand it how you engage in an exercise of carving out this particular facility  i mean i realize in the back to turn is what i did but it was there any attempt in addition to what you do know the be and how to try to explain the tax differential so yes when the issue was teed up before the appeal panel the claimant submitted two affidavits from its parent company's c f o is the chief financial officer of a public company and he explained why you should not expect a correspondence between the tax returns and the piano's precisely because the tax returns are measuring the consolidated economic performance of the parent company and the way it works is the parent companies and you are industries they have a dozen entities within their standard products  division in the ordinary course every sale for from those twelve entities gets bundled together into one entity for internal reporting purposes but then when the tax returns are being prepared they need to redistribute that back to the entities and they use  fundamentally judging the heart you can not take the tax returns on their face and look more granularly to split up the claiming entity in order to look at their claiming facility as opposed to the other the only way to do that is to look at transaction level evidence and that's precisely what the set of the program did here i'm very little from b p just now and nothing in their reply brief about the transaction level sales  the divisional pianos we submitted in combination with half a one million transaction level records now those records are so detailed they identify every single sale by the claiming facility of a product ship a rd party so the claims of ministries are rather than looking at the entity level picture from the tax returns was able to and did look at the facility level picture from the source documentation and that's particularly important because that's the process the settlement contemplates in exhibit four a which is the only reference to the word discrepancy in the sullivan agreement self the exhibit says if there is a discrepancy the claims administrator may request additional information mation and source documentation in this case the claims minister have the source documentation it had been submitted about a year before the tax issue ever came up so it may be true that in the ordinary course of the issue were teed up and the program realized there was this great difference between the p and l some tax returns that perhaps there are some obligations that call for supplemental documentation but on the facts of this case the program had that documentation they had the five hundred thousand records for at the transaction level and they made an informed decision that there was absolutely no need for further documentation what b p seems to be suggesting is that the program had a an obligation to audit the tax accounting methodology and bring in the tax accountants and make sure that the transfer pricing model was valid no that just doesn't point any support in the text of the settlement and  can challenge that they can say that the program administrator has made the wrong decision on the facts but that's a fact bound challenge to what the program did here it's simply not an issue of systematic importance to the overall administration of the settlement  going back to the comparison that b p is making not only is it misleading because of this entity versus the syllabi issue it's also misleading because the tax returns only reflect your over your revenue whereas the p an reflects monthly revenue and as the f as the power of those the causation tests are based on a benchmark period a compensation period with particular months it's not y over year it's not two thousand and ten versus two thousand and nine in part because the spill happened in the middle of two thousand and ten the begin the only way to look at the month to month comparison the truth now has to happen is to look at the monthly piano information that we submitted and there's no real question from being from b p but that is based off of contemporaneous documentation that was provided by by the claimant and also that mr martin testified that the books and records that were supplied t settlement program are the very same books and records that ultimately were recalibrating in order to form tax returns i mean he he testifies that it's the same books and records and explains the purported difference that's evidence that the that the appeals panel is allowed to credit and on that point also emphasize that it may be true that the record has been about exactly what the program accountants thought about the transfer pricing model there was there was a conference call that took place this is documented in tab three of our record exhibits and our eight hundred and ten the settlement program was aware of these differences they're there obviously we agree with that if you look at the two numbers there are great differences several program knew that contacted us held a conference call with the p c counting team including their supervisor for multipass that he claims on the one hand and with the professional accounting consultants from the claimant on the other it received an explanation evidently found that explanation satisfactory know the details of it are in the record all acknowledge that but still it's b p s burden to show clear error which i don't think they can do based on an ambiguous record where all the are francisco in our favor but even setting aside administrator there's a difference between that and the expanded record that was before the appeal panel we submitted three affidavits to the appeal panel and don't all know that rule thirteen h of the rules governing the appeal process expressed we authorizes a claimant in the position of m c t c to submit additional supporting documentation and affidavits during the appeal panel process that at that evidence is undisputed i mean there's no realistic challenge from b p that says the affidavits wrong or that it shouldn't be credited for some reason we were were talking about someone with expertise about the issues answered every single specific point that b p raised in their briefing at the very least p can't show clear error because the appeal panel was allowed to credit that evidence and that establishes that there is no genuine disk rep and see even if on st appearance it looks like there's a big difference a discrepancy only exists when there is a difference because you expect a different result and the difference calls into question the reliability of what you're looking at now that may have been true at st glance but once the accounting team receives an explanation from the discretion to do exhibit for a does not include any mandatory terms about exactly how a reconciliation must proceed and even to seventy four dollars the policy that they rely on heavily it's not a part of the settlement agreement itself but even that policy expressly says that reconciliation may be performed in the professional judgment of the claims administrator and that the question of how to resolve discrepancies is not a mandatory resolution of them the language of polic question under two hundred and seventy four is whether there are efforts taken to resolve it and whether those efforts are reasonable b p can say that they're not reasonable we think that's overwhelmingly refuted by the evidence but that was the program's decision to make  thought finally the tax returns are particularly important as well because another difference between the pianos and the tax return numbers but that the piano is include not only external sales that are relevant in fact the only relevant information for a claim but the piano and and the tax returns also include internal sales which have to be excluded the claim the ministry was able to exclude the internal sales from the was but that can't be done for the tax returns so the tax return numbers are going up and down in ways that b p claims are suspicious but in part that reflects the operations of another facility it reflects  variation in internal sales from year to year as well as the transfer pricing models differential accounting of how those internal sales should be credited to one entity or another b p it mentions that the over not enough to reverse judge bar b a's discretion to accept the appeal panel's finding that the pianos were indeed reliable and the two errors that b p is referring to don't go into what those were in any depth and that's because even b percent and they do not call into question the overall reliability of the pianos that the program used in fact b p zoning expert relied on the source documentation we provided when he copulated a corrective for those two unintentional in technical error so if anything the ability of their expert to recalculate the numbers and fix the errors shows why the underlying information was in fact liable now b p claims that we acknowledged that there was no actual reconciliation performed i think that's simply not accurate there are some strange statements in the record that refer to the word reconciliation but the precise meaning of that term was never an issue until this appeal this goes back to the lever point judge taken about them which is that b p never said that the program had failed to perform a reconciliation and that it had a legal duty to do so so the exact meaning of what reconciliation means particularly in the context of the seventy four which is rather unique in its structure was never presented until this case the statements in the record are also qualified where we've consistently argued that the settlement program heard mr jones basically acknowledge that our interpretation of that is right he said in his opening that policy to seventy four refers to quote reconcile and result that's two distinct steps which is what we argue in our brief step one reconciliation is simply the comparison of the two documents in order to identify a difference that may require further inquiry it's undisputed that that happened here all of the evidence shows a particularly the tab three of our record exhibits shows that the so program was aware of the differences held a conference call and the precise topic they were talking about is why are these differences there that's a reconciliation in our interpretation of the word and within the structure of policy to seventy four to needs to review and there's you know an avalanche if it's circuit authority for that principal particularly when the appeal panel made express findings that the steps taken here to resolve the discrepancy were reasonable under all the circumstances and you know i don't i don't have much time but in particular the transaction level sales records show very granular information that confirms that the calculation was exactly right that's a spreadsheet that was so large we had to put it on a different website couldn't even be accepted by the claims portal and in full disclosure the whole spreadsheet isn't even in the th circuit record there's an excerpt of it and there's a summary of all the fields if we added it to the record it would double the size of the records five thousand pages all of that is very granular granular information that supports exactly what the claims program did plus the affidavits from mr martin that explain this tax differential and why it should be expressed  i'm like to turn briefly to the appeal panel split issue i think the court can resolve that rather easily based on the florida restaurants case that judge higginbotham and judge stewart were on the panel for that's a decision from april of this year it addressed in the book tax issue this court consider the same five decisions that b p cited in their brief here and said there's no genuine appeal panel split because all of those results ultimately turned on the facts of the case as opposed to an issue of legal interpretation now b p retreats in their reply brief and tries to cite a few additional decisions that hadn't been cited previously to anyone but those fall into the same pattern they involve different claimants none of them seem to involve a multi facility business none of them involve a company that has a complex transfer pricing methodology and the documentation is fundamentally different all of the three each of the three cases cited in the reply brief involve a specific finding  where the source documentation had been provided there hadn't been an explanation for discrepancies or even a confession of error was made by the claimant or the claims administrator this case involves the exact opposite circumstance the appeal panel mean express findings of fact none of those are clearly erroneous and there's overwhelming evidence in the record that the claims minister did precisely what i'm supposed to do and to the extent b p challenges that it's a question of fact that the claimants counsel acknowledged that there are massive discrepancies doesn't dispute that the discrepancies between the toxic turns and the p n l's that were used to calculate this award total hundreds of millions of dollars a year doesn't deny that the toxic turns and those p n l's paint pictures of two completely different companies unfamiliar to each other and claimants council further acknowledged that the settlement program apparently decided not to conduct any reconciliation and not to pursue the issue any further that contradicts the settlement agreement which requires the book to t reconciliation and resolution of material discrepancies but it's even worse than that because that phone call only related to the divisional pianos that contemporaneous p n l's that were originally submitted by the claimant those pianos were not used to calculate this award at some point after that phone call new pianos were created and were used to calculate the award  and there is no indication whatsoever in the record that the settlement program ever even acknowledged the massive discrepancies between those claimants specific pianos and the tox returns but the claimant points to and that's this transfer pricing model which they say is very complicated but but it's not just that the tox returns don't match the p perfectly dollar for dollar this is a situation where the top returns are so radically different or super cool or opposite from the pianos that it just it raises a looking at the divisional p l z chose not to pursue a book to talks reconciliation is an undisputed fact that the record contains no indication that the that the settlement program ever even in the knowledge to the discrepanc between the claimant specific pianos created later and the taj return it's an undisputed fact and you can review the settlement programs calculation notes the record on appeal pages ignored the claimant said a couple of times that the appeal panel apparently or presumably credited their explanation of why the tox returns are so d radically different from the but there's no indication of that in the appeal panel's decision and if you look at the claimants briefing to the appeal panel it argued that the settlement program has discretion not to perform a book to tax reconciliation discretion not to follow up on huge discrepancies between the toxic terms and the pianos and the a ppeal panel's decision just doesn't it doesn't say that they credited the claimants explanation for the discrepancies the florida restaurant case doesn't resolve d the appeal pema split issue st of all both parties briefs in this case cite additional different appeal panel decisions that crystallized the split the split is over whether the settlement program is required to conduct the reconciliation and also to resolve the discrepancies or whether the settlement program has discretion simply to ignore those issues as occurred here but in any event the former restaurant case didn't say that there was no split