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 appeals the denial of its Start-Up Business Claim.
Claimant acquired some twenty two locations from [XXXXX] pursuant to a bankruptcy sale occurring on October 6, 2010. Claimant originally filed its Claim as a Start-Up Business.
Claimant’s Start-Up Business Claim was denied. The Settlement Program relied on Policy 362, which states that a Start-Up Business must be doing business or operating in the Gulf Coast Areas or Specified Gulf Waters as of April 20, 2010, the date of the Spill.
In its request for Reconsideration, Claimant requested that it be considered a “newly acquired business,” as set forth under former Policy 354. If a “newly acquired business” meets certain criteria, then the business is treated as a standard business under the BEL rules.
However, in order to be considered a standard business under the BEL rules, Claimant was required to produce financials from prior ownership. After the initial denial of its claim, and after filing its request for Reconsideration, Claimant focused on obtaining and submitting ’s financial records, which were in possession of a CPA representing [XXXXX] in the bankruptcy proceedings. The bankruptcy trustee repeatedly opposed the release of these records. Ultimately, the bankruptcy court ordered the financials released to Claimant. However, the release came too late for the financials to be considered by the Settlement Program on Reconsideration. Thus, the Settlement Program only reconsidered Claimant’s Start-Up Business Claim and once again denied the Claim.
On appeal, Claimant seeks to overturn the denial of its Start-Up Business Claim. Claimant also seeks a remand to be given an opportunity, now armed with the financials of to assert a “newly acquired business” claim.
This panelist is in accord with the denial of the Start-Up Business Claim, as Claimant failed to establish an operating history as of April 20, 2010. However, under the circumstances, the matter is remanded in order to give the Claimant an opportunity to assert a “newly acquired business” claim. This Panelist does not take a position on whether or not Claimant qualifies under this framework, only that Claimant be given an opportunity to assert the claim.
It should be noted that BP is amenable to a remand in its Opposition Brief: “If, however, Claimant has obtained further documentation that would support a claim under the Framework for Business Economic Loss Claims, BP, while reserving all rights and without admission, does not object to Claimant filing its claim under that framework.”