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BP Business Economic Loss Claim Appeal 2016-2370: Manufacturer/Seller of Pipe Protection Products Financials “Presumptively Matched” Since None of Policy 495’s Seven Criteria Were Triggered


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

On this BEL claim by a Breaux Bridge, La manufacturer/seller of pipe protection products, BP’s first “bite at the apple” was to assert the presence of Moratoria losses prohibited by the Settlement Agreement. Once the Program’s Moratoria Team investigated and found no such losses, BP now reappears and on its second “bite” at this substantial award ($373,360 pre-RTP with a 1.25 RTP) questions the Program’s alleged failure to apply Policy 495 to sufficiently match Claimant’s revenues and expenses. It argues that the Claimant’s P&Ls contain “significant indicia that the claim may not be sufficiently matched.” In support, BP points to what it describes as
variable margins that “vary wildly” from 46% in February 2007 to negative 2% in December 2008. It further points to “significant fluctuations” in Claimant’s reported monthly revenues, including $298,911 in February, 2010 vs. $489,520 in March 2010. It asserts that the Program accountants, in light of the size of this award, did
not review enough contemporaneous financial documentation to verify the accuracy of Claimant’s P&Ls and requests a remand for that purpose or alternatively proposes $0.
In this regard, BP seems to be taking a page from its strategy in pre-Policy 495 appeals. Had it proposed a more credible alternative than $0, this panelist in this baseball appeal would have been more tempted to look closely at its arguments of insufficient matching. This record has been reviewed on a de novo basis. None of
Policy 495’s “seven criteria” of insufficient matching were ever triggered, making the financials presumptively matched, at least “sufficiently,” which is all that is required by Policy 495. Out of an abundance of caution, Claimant even downloaded, with no obligation to do so, its invoices and credit memos for relevant months
questioned by BP.
This record is a textbook application of the proper adherence to Policy 495. As stated in said Policy, “consideration of whether revenues and expenses are sufficiently matched necessarily involves an element of professional judgment.” This panelist on this record cannot undermine the Program accountants’ judgment, nor does the record justify a remand that would merely further significantly delay an award that is merited under Policy 495 and the Settlement Agreement.
Accordingly, Claimant’s final proposal, adopting the Program’s award in toto, is hereby chosen in this baseball appeal.

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