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BP Business Economic Loss Claim Appeal 2016-267: Lessor’s revenue should not be moved (decision overruled)


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 is a commercial landlord located in Huntsville, Alabama. It submitted its cash based P/Ls in support of its claim. The Vendor Accountants moved revenues from months it was received to months it was earned according to the leases. This reallocation of revenues resulted in the failure of the Claimant’s BEL claim. Claimant asserts it passes the V-Shaped tests when its cash based financials are utilized.

There appears to be no need for a first step “correction” under Policy 495. Exact matching of revenues and expenses is not required under Policy 495 and “sufficient” matching will be achieved through utilizing the AVM Methodology. The Vendor Accountants appear to be undertaking a transaction by transaction analysis which is not required by the court decisions or Policy 495. Further, numerous panel decisions have affirmed the Administrator when it uses the AVM Methodology to restate the Claimant’s P/Ls and achieve “sufficient” matching. To reallocate revenues from the month received to the month the Vendor Accountants believe it was earned often deprives the Claimant of its award. Frankly, had claimants known the Vendor Accountants would use their “discretion” in such a manner, many of these claimants may well have opted out of the class in favor of filing suit against BP.

The court decisions and panel decisions have rejected this revenue attribution argument of BP and require only “sufficient” matching which is achieved through the use of Policy 495/AVM.

This appeal is remanded to the Administrator with directions to review the claim using the contemporaneously prepared cash based P/Ls submitted by the Claimant and utilize the AVM Methodology if the Policy 495 criteria are triggered.

[Editor’s Note: This appeal panel decision was reversed by Judge Barbier under Discretionary Review.]

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