CLAIM SUMMARY / DETERMINATION FORM

Claim Number : N10036-1535

Claimant : Justin M Audibert

Type of Claimant : Private (US)

Type of Claim : Loss of Profits and Earning Capacity

Amount Requested : $15,000.00

FACTS: 

On or about 20 April 2010, the Mobile Offshore Drilling Unit Deepwater Horizon (Deepwater 

Horizon) exploded and sank in the Gulf of Mexico. As a result of the explosion and sinking, oil 

was discharged. The Coast Guard designated the source of the discharge and identified BP as a 

responsible party (RP). BP accepted the designation and advertised its OPA claims process. On 

23 August 2010, the Gulf Coast Claims Facility (GCCF) began accepting and adjudicating 

claims for certain individual and business claims on behalf of BP.

CLAIM AND CLAIMANT:

On 1 November 2011, Mr. Justin M. Audibert (the Claimant) presented a claim to the Oil Spill 

Liability Trust Fund (OSLTF) seeking $15,000.00 in loss of profits and impairment of earnings 

capacity allegedly resulting from the Deepwater Horizon oil spill.

1

At the time of the oil spill, the Claimant was working at Outback Steakhouse in Lafayette, 

Louisiana. 2 The Claimant alleged that following the Deepwater Horizon oil spill, his wages and 

hours were reduced due to lack of customer confidence in seafood, and a general decrease in 

patronage. 3 The Claimant alleged that this resulted in the restaurant’s loss in revenue and in a 

reduction in the Claimant’s working hours and wages.4

The Claimant stated that he worked forty hours each week prior to the oil spill, and that his hours 

were reduced to twenty per week as of 1 May 2010.5

 The Claimant alleged that he continued to 

work at this reduced hourly rate until 30 April 2011.6

The Claimant alleged to have lost approximately $15,000.00 in income from 1 May 2010 until 

30 April 2011, due to the reduction in his working hours, and tips, allegedly as a result of the 

Deepwater Horizon oil spill.

Prior to presentment to the NPFC, the Claimant presented a First Quarter Interim Claim 

(ICQ12011) to the RP/GCCF, seeking loss of profits damages. The Claimant was assigned 

Claimant ID 3486417 and the ICQ12011 was assigned Claim # 9211141. This claim was denied 

by the RP/GCCF on 15 April 2011.7

1 Optional OSLTF Claim Form, dated 3 August 2011. 

2 Letter from the Claimant to the GCCF, dated 19 August 2011. 3 Letter from the Claimant to the GCCF, dated 19 August 2011.

4 Letter from the Claimant to the GCCF, dated 19 August 2011.

5 Letter from the Claimant to the GCCF, dated 19 August 2011.

6 Letter from the Claimant to the GCCF, dated 19 August 2011. 7 GCCF Denial Letter on Interim Payment/Final Payment Claim, 15 April 2011.

 
The Claimant also submitted a Full Review Final (FRF) claim to the RP/GCCF, which was 

assigned Claim # 9364138. The FRF claim was also denied on 15 April 2011.8

On 1 November 2011, the Claimant submitted this claim to the NPFC, seeking $15,000.00 in 

loss of profits damages resulting from the Deepwater Horizon oil spill. The NPFC may 

adjudicate this claim to the extent that these damages have first been presented to the RP/GCCF. 

Any damages now before the NPFC, which were not first presented to the RP/GCCF, are denied 

for improper presentment.9

REQUEST FOR RECONSIDERATION:

On January 2, 2012, the Claimant sent a request for reconsideration to the NPFC stating he 

would like the NPFC to reconsider his claim. 

The NPFC denied the claim originally on November 14, 2011 because in order to prove a claim 

for loss of profits and impairment of earnings capacity, a Claimant must demonstrate (1) that he 

sustained an actual financial loss, and (2) a causal link between the loss and the Deepwater 

Horizon oil spill.

The Claimant alleged that his working hours at Outback Steakhouse in Lafayette, Louisiana, 

were reduced following the Deepwater Horizon oil spill due to a lack of business at the 

restaurant. The Claimant did not, however, provide any documentation to indicate that Outback 

Steakhouse actually lost business, or to show that the alleged loss of business was in any way 

related to the Deepwater Horizon oil spill. 

The NPFC contacted Outback Steakhouse in Lafayette, Louisiana in order to see how or if the 

restaurant was actually affected by the Deepwater Horizon oil spill.10 Two restaurant managers 

and a restaurant owner would not respond to our requests for information, and as of the date of 

this letter, an email from the NPFC to the Executive Vice President of Outback Steakhouse has 

not responded. 11 

Furthermore, the Claimant has not provided documentation to substantiate his claim that his 

working hours were reduced following the Deepwater Horizon oil spill. The NPFC advised the 

Claimant that should he choose to pursue this claim on reconsideration, the Claimant should 

provide pay stubs or bank account statements showing the Claimant’s earnings in the months 

leading up to, and then following the oil spill. The Claimant’s financial documentation should 

demonstrate that the Claimant was working a certain hourly rate in the months leading up to the 

oil spill, and that his hours were only reduced in the months following the oil spill. 12 The 

Claimant was informed also that he should provide evidence to show that the alleged decrease in 

hours was actually caused by the Deepwater Horizon oil spill as opposed to any other factor. 

This claim was denied because the Claimant failed to meet his burden to demonstrate (1) that he 

sustained a loss in the amount of $15,000.00, and (2) that the alleged loss is due to the injury, 

destruction or loss of property or natural resources as a result of a discharge or substantial threat 

of a discharge of oil.

8 GCCF Denial Letter on Interim Payment/Final Payment Claim, 15 April 2011.

9 33 C.F.R. §136.103(a).

10 PHONECONS: NPFC Staff and Outback Steakhouse owner/managers, 2, 4, 9 November 2011. 11 Email from NPFC to Mr. Joseph Kadow, 4 November 2011. 12 The Claimant indicated in a PHONECON on 9 November 2011 that he is not able to provide pay stubs beyond the 

two submitted in his application package.

 
RECONSIDERATION CLAIM ANALYSIS:

The Claimant requested reconsideration which was received by the CRDS mail facility on 

January 13, 2012. The Claimant provided a three-page letter that requested his claim be 

reconsidered because the Claimant stated he feels the NPFC’s denial of his claim for lack of 

financial documentation is ludicrous since he states he provided tax returns some pay vouchers

and an itemization that he states more than indicated his loss. The Claimant also provided a copy 

of five pay stubs from various time periods which are for pay period ending 12/31/08, 1/28/09, 

12/30/09, 5/5/10, and 7/14/11.

NPFC Determination on Reconsideration

Under 33 CFR 136.105(a) and 136.105(e)(6), the claimant bears the burden of providing to the 

NPFC all evidence, information, and documentation deemed necessary by the Director, NPFC, to 

support the claim. Under 33 CFR § 136.233, a claimant must establish loss of profits or 

impairment of earning capacity and that the loss was due to the destruction or injury to real or 

personal property or natural resources. The NPFC considered all the documentation submitted 

by the Claimant. The request for reconsideration must be in writing and include the factual or 

legal grounds for the relief requested, providing any additional support for the claim. 33 CFR 

136.115(d). 

The NPFC performed a de novo review of the entire claim submission upon reconsideration. 

The NPFC performed a complete review of the documentation presented by the Claimant. The 

request for reconsideration was a three-page letter and five various pay stubs from the period of 

December 2008 through July 2011. The Claimant asserts that he more than provided enough 

evidence to document a loss. The Claimant also asserts that he has no reason or legal obligation

to retain copies of his pay stubs. The Claimant further asserted that the NPFC is unjustly, 

unfairly and likely illegally penalizing him for his uncooperative employer who is not party to 

his claim. Finally, the Claimant asserted that the NPFC has put up unreasonable roadblocks in 

granting his valid claim.

Upon review of all of the Claimant’s information, the Claimant did not produce the necessary 

documentation that would persuade the NPFC to change its original denial determination. While 

the Claimant produced three pre-spill pay stubs, the information contained is not sufficient for 

the NPFC to be able to determine why there were hour fluctuations pre-spill vice post-spill.

Additionally, when doing a comparison of the annual wages for years 2008 – 2010 as identified 

in the Income Tax Returns provided, the Claimant earned $17,162.28 in 2008, $19,662.82 in 

2009, and $17,174.84 in 2010. The difference in annual income from 2009 to 2010 is only 

$2,487.98. Furthermore, the Claimant has not provided evidence to indicate the causation of his 

annual reduction in pay in 2010. The Claimant has not proven that the reduced income was a 

result of the discharge or substantial threat of a discharge of oil as opposed to other economic 

factors, business decisions made by his employer or any other possible reason such as taking 

time off.

The NPFC disagrees with the Claimant’s assertion that the NPFC is unjustly, unfairly and likely 

illegally penalizing him for his uncooperative employer who is not party to his claim. The 

regulations clearly state that under 33 CFR § 136.233, a Claimant must establish loss of profits 
or impairment of earning capacity and that the loss was due to the destruction or injury to real or 

personal property or natural resources therefore without more detailed information on the hours 

worked for consecutive pay periods preceding the spill and following the spill along with 

information from the Claimant’s employer that would corroborate the assertions made by the 

Claimant, it is impossible for the NPFC to determine what the cause was for a reduction of 

annual income of $2,487.98 between 2009 and 2010. More importantly, the Claimant asserts an 

alleged loss of $15,000.00 which is not supported by the Income Tax information provided by 

the Claimant in this case.

As such, the Claimant has again failed to demonstrate that he has suffered a loss in the amount of 

$15,000.00 or that his alleged loss is due to the injury, destruction or loss of property or natural 

resources as a result of a discharge or substantial threat of a discharge of oil.

Based on the foregoing information, this claim is denied upon reconsideration.

Claim Supervisor: Thomas Morrison

Date of Supervisor’s review: 2/13/12

Supervisor Action: Denial on reconsideration approved

Supervisor’s Comments: