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BP Business Economic Loss Claim Appeal 2016-2052: Claimant Provided Specific Documentation That Identified Factors Outside Its Control That Prevented Revenue Recovery in 2011

The following is an Appeal Panel Decision issued pursuant to Section 6 of the BP Deepwater Horizon Economic & Property Damages Settlement Agreement and the Rules Governing the BP Appeals Process. Links may have been added to assist the reader. The original decision may be found here, as well as a glossary of BP Settlement terms.

Claimant, a used car dealership in Pensacola, Florida, appeals the denial if its BEL claim which was dismissed due to a failure to satisfy causation under the
Decline-Only Causation Test. Specifically, the Program found that Claimant did not provide specific documentation that identifies factors outside the control of the Claimant that prevented the recovery of revenues in 2011.
Nevertheless, Claimant did submit a document from the Florida Department of Motor Vehicles which contains a list of new dealer licenses issued for Pensacola for the years 2010 and 2011. This list shows 14 new car dealers licensed in Pensacola in 2010 and 10 new dealers licensed in Pensacola in 2011.
BP makes the dubious argument that “Claimant’s own list shows that eleven new independent motor vehicle dealers were licensed in 2010 but only 9 such dealers were
licensed in 2011. In other words, the rate of increase in alleged competitors was slower in 2011 than in 2010.” This is simply an attempt by BP to add some new requirement that clearly does not exist in the Settlement Agreement. One of the viable qualifying factors demonstrating factors outside the control of Claimant preventing the recovery of revenues in 2011 is the entry of a competitor in 2011. There is no suggestion that a Claimant must demonstrate that the factors in 2011
preventing the recovery of revenues were somehow worse than similar factors that may have existed in previous years. Some of the examples enumerated, such as the entry of a competitor in 2011, are fairly limited in scope and the entry of 10 competitors in the same market would certainly seem to be sufficient.
BP also suggests that some of the alleged competitors were small volume dealers and, therefore, could not have been ” in direct competition” with Claimant. BP offered pictures of 2 of these dealers to show they were small operators. Undoubtedly, not all of the new entities were large volume dealers but with 10 new dealers listed (including***).
This Panelist finds that Claimant has provided adequate third party documentation that identifies factors outside the control of Claimant that prevented the recovery of revenues in 2011. The requirements of the Settlement Agreement must be achievable by reasonable elements of proof. This case is returned to the Settlement Program
for processing of the award.

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