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BP Business Economic Loss Claim Appeal 2017-871:Claimants Not Required to Submit Independent Evidence of Causation Beyond Requirements of Exhibit 4B

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

BP appeals a BEL award of award of $74,501.60, pre-RTP to a headstone and burial vault company in Troy, Alabama (Zone D). Matching criteria were triggered and the AVM methodology was used to restate the financials. BP appeals, mounting no challenge to the application of Policy 495 nor the Claims Administrator’s calculation of the award. Instead, BP asserts for its sole assignment of error that it was implausible and suspicious for Claimant to attest on its claim form that its loss was due to the spill.
In support of this position, BP adopts a new twist to an old argument. While acknowledging that the 5 Circuit has held that claimants are not required to submit evidence of causation, BP nevertheless argues that claims for which the attestation is implausible and suspicious do not qualify for compensation. Citing In re: Deepwater Horizon,
744 F. 3d 370 (5 Cir. 2014) (Deepwater Horizon III), BP argues that the 5 Circuit specifically reserved to the Settlement Program the right to investigate and challenge any claimant’s attestation under penalty of perjury that its loss was due to the spill. BP therefore argues that the Settlement Program must address such attestations and deny claims that are “manifestly suspect.”  BP argues that an oil spill in the Gulf of Mexico could not result in economic loss for a business that installs vaults, headstones and markers in inland Alabama. More broadly, BP says that a claimant may not swear to a spill-related loss where none exists.
In response, Claimant points to the causation criteria set out in Exhibit 4B, emphasizing that the BEL framework is part of a negotiated settlement agreed upon by BP. Claimant cites a number of appeal panel decisions in which panelists have declined to apply the “implausible or suspicious” criteria to claims that otherwise satisfied the causation requirements of Exhibit 4B. Claimant also points to the District Court’s express unwillingness to require a claim-by-claim analysis of whether each claim is “fairly traceable” to the spill. See, Order & Reasons [Doc 12055].
This panelist is unpersuaded by BP’s arguments. The 5 Circuit has confirmed that claimants are not required to submit independent evidence of causation beyond the objective requirements of Exhibit 4B. The 5 Circuit explicitly recognized that BP and Class Counsel negotiated and agreed that the required causal connection between the spill and a claimant’s loss would be satisfied by the filing of a verified claim form. Here, BP simply disputes this Claimant’s attestation of such nexus as being implausible. BP’s argument is actually another form of the alternative causation arguments advanced unsuccessfully in the early days of the Settlement Program. Contrary to this contention, alternative causes of losses are irrelevant if the financial figures support that a loss occurred. See, Deepwater Horizon III, 732 F. 3 at 338.
For the foregoing reasons, BP’s appeal is denied and Claimant’s Final Proposal is selected.

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