When the BP Deepwater Horizon Economic & Property Damages Settlement was approved in 2012, scant attention was paid to Section 6, titled “Claims Appeal Process.” In fact, the section comprises only six of the document’s 1,200 pages. The expectation was that the much touted “claimant-friendly” nature of the Settlement would result in few appeals, by either BP or claimants.
Unfortunately, since early 2013, BP has shown a propensity for appealing a large number of Business Economic Loss (BEL) Claims, regardless of merit. It has become painfully clear that Settlement negotiators should have paid greater attention to Section 6, particularly the penalty imposed upon BP for filing frivolous appeals. Such appeals at a minimum delay payment by months to deserving claimants, and often take advantage of pro se claimants or those represented only by claims “consultants,” CPA’s or other non-attorney para-professionals.
Navigating an appeal without the counsel of an attorney experienced in this unique BP claims appeal process is a fool’s errand.
As of the latest report available from the Claims Administrator (July 31, 2014), BP has appealed 3,955 claims. This represents a BP appeal rate of approximately 21%. Claimants have appealed 1,340 claims (either appealing outright denials or contesting the amount awarded). Of the BEL appeals that have been resolved, the Claimant has persuaded the Appeal Panelist(s) to increase the award amount in 56 instances, while BP has succeeded in lowering the amount in 461 claims. In 1,149 instances the amount awarded has remained the same post-appeal.
BP may appeal any pre-RTP compensation award in excess of $25,000. The time period within which BP must file a Notice of Appeal varies with the size of the award. Smaller awards must be appealed within 10 days of the Claims Administrator’s issuance of an Eligibility Notice. Larger awards must be appealed within 15-20 days. BP must pay nonrefundable appellate fees ranging from $400 to $5,000 for each appeal initiated, again depending on the amount contested. In addition, should BP lose the appeal, it must pay a penalty to the Claimant of 5% of the pre-RTP compensation amount.
In hindsight, plaintiff negotiators should have fought for a more painful appellate penalty, as the 5% “cost” to BP for filing frivolous appeals has proven to have little preventative teeth.
Before a Claimant may initiate an appeal with the Appeals Coordinator, he must first seek Reconsideration from the Claims Administrator. Once the Claims Administrator issues a Post-Reconsideration Notice, the Claimant has 30 days to file a Notice of Appeal. Claimant appeals involve either disputes over outright denials (causation, zone disputes, exclusions) or the compensation amount.
Appeal Process – Baseball
Disputes over compensation amounts are handled using a “baseball process.” Either party may appeal based on compensation calculation errors. The Appellant initiates the appeal within the applicable time periods by filing a Notice of Appeal with the Appeals Coordinator. The Appellant must state all of its reasons for the appeal in the original Notice of Appeal.
Within 15 days, both the Appellant and Appellee must submit Initial Proposals with any supporting memoranda or documents. However, the Appellant is not permitted to raise any new issue not originally included in the Notice of Appeal (with the possible exception described in Rule 19 of the Rules Governing the Appeals Process and Rules 7 & 8 of the Appeal Panel Procedures). The Appellee may raise new issues in the Initial Proposal (the Appellant is permitted to respond to such issues in his Final Proposal). Before the submission of Final Proposals, either party may accept the other party’s Initial Proposal amount.
Within 25 days of the Notice of Appeal, both parties must submit their Final Proposals. Either party may accept the other’s Final Proposal amount within 5 days of filing. After 5 days, the appeal is sent to an Appeals Panelist (or panel of three in claims where the contested value exceeds $1M). The Appeals Panelist must choose either party’s Final Proposal amount, but no other. There can be no “splitting of the baby.”
At any time before the Appeals Panelist rules, the parties may jointly confer and resolve the appeal. If no resolution occurs, the Appeals Panelist’s decision is final (with discretionary review at the option of the Court).
Appeal Process – Non-Baseball
Non-baseball appeals occur when the claimant seeks appellate review of a claim denial. Since the dispute does not involve the amount of compensation but rather the right to receive any compensation, there is no need for the baseball process as the outcome can only be a binary one. When a claimant receives a Denial Notice he must first seek Reconsideration from the Claims Administrator before initiating an appeal.
Assuming the claimant does so and a Post-Reconsideration Denial Notice is issued, the Claimant can then file a Notice of Appeal with the Appeals Coordinator. Within 10 days the Claimant must file an Opening Memorandum explaining why the denial was error. Within 25 days of the Notice of Appeal BP must submit its Opposition Memorandum. The Claimant may then submit a Reply Brief responding to BP’s Opposition memorandum within 35 days of the Notice of Appeal. The dispute will then be decided by an Appeals Panelist.
The exception to this process is an Incompleteness Denial issued to a claimant who has failed to submit adequate documentation to support his claim. Denial for incompleteness must be resolved within the Claims Administrator’s Office of the Document Reviewer. Such reviews are not within the purview of the Appeals Coordinator.
Record on Appeal
The record on appeal consists of the Settlement Agreement and all Exhibits, Court rulings on similar issues, prior Appeal Panelists rulings on similar issues (non-binding), Claims Administrator policies issued pursuant to the Formal Administrative Review Process discussed in Section 4.3.4 of the Settlement Agreement, the Claims Administrator’s entire claim file associated with the disputed claim, the Claims Administrator’s Summary Review of the claim, and the Initial and Final Proposals and supporting memoranda.
The Standard of Review is de novo.
Common Appellate Issues
Common errors raised in appeals by both BP and Claimants include zone designation errors, failure to properly apply the tourism classification, determination of NAICS codes for exclusion or moratoria purposes, and valuation errors by the Claims Administrator.
BP also frequently argues matching issues and its catch-all causation position (which has been soundly rejected by the Court). Other recent groundless appeal tactics by BP include regularly filling its appellate memos with cites to webpages, screenshots, and other “new documentation” that is outside of the Record on Appeal.