Class Counsel Opposition

Case 2:10-md-02179-CJB-SS Document 9087 Filed 04/02/13 Page 1 of 37
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA
In re: Oil Spill by the Oil Rig Deepwater Horizon in the Gulf of Mexico, on April 20, 2010 This Document Relates to: Nos. 12-970 and 13-492
MDL No. 2179 SECTION: J JUDGE BARBIER MAGISTRATE SHUSHAN
OPPOSITION TO BPS MOTIONS FOR PRELIMINARY INJUNCTION The Economic Settlement Class, by and thru appointed Class Counsel, respectfully submits the following Opposition to BPs Motions for Preliminary Injunction filed in MDL No. 2179 and Bon Secour Fisheries, et al vs. BP, No. 12-970 [Rec. Doc. 8910] and in BP vs. Deepwater Horizon Court Supervised Settlement Program and Patrick Juneau, No. 13-492 [Rec. Doc. 4]: MAY IT PLEASE THE COURT: On BPs Motion, the Court appointed and ordered Patrick A. Juneau to faithfully administer and apply the Settlement Agreement, and to direct payments adjudicated in accordance therewith. In the event of any dispute over the interpretation or implementation of the Settlement Agreement, Mr. Juneau is required to follow the terms of the Agreement as interpreted by the Court. In this case, the Courts interpretation is eminently correct, for all of the reasons stated in the Courts own ruling and the Class previous submissions on the issue. Nevertheless, even if the Courts interpretation of the Settlement Agreement were arguably wrong, the Claims Administrator would still be required under the Settlement Agreement, the
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Trust Agreement, and Court Order, to implement, apply and administer the Program in conformity with the interpretation of the Court. To enjoin the Claims Administrator as proposed by BP would itself violate the express terms of the Settlement and Trust Agreements that BP negotiated, agreed to, and supported, and would in effect be asking the Court to enjoin the Claims Administrator from enforcing the Courts own prior instructions. (Or, stated another way: BP effectively asks the Court to enjoin itself.) For these reasons, for the reasons previously submitted, and for the reasons further outlined below, BPs Motions for Preliminary Injunction should be summarily rejected.
TABLE OF CONTENTS Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 2 4 4 5 7 7 9 11 14 16 16
Table of Contents
Overview and Summary of the Argument
Why the Injunction Should Be Denied Why BP Should Lose . Procedural Background . . . . .
Three Strikes, Two Preliminary Injunction Motions, and One New Complaint The Ever-Expanding Record . . . . . . .
BPs Effective Motion for Reconsideration of the Denial of its Previous Motion for Reconsideration Should be Denied (Again) as Improper . . . . BPs Requested Relief is Impossible to Grant There is No Emergency . . . . . . . . . . . . . . .
BPs Allegations of Fictitious Losses are Baseless and Self-Serving
The Entire Purpose of the Settlement Was to Reduce Potential Causation and Compensation Disputes to Predictable and Acceptable Resolutions According to Uniform, Transparent and Objective Determinations . . BP Itself Paid Many of these So-Called Fictitious Claims thru GCCF
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BP Fails to Meet the Requirements For a Preliminary Injunction
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After Trying, and Failing, to Re-Write the Settlement Three Times, BP Cannot Make Any Showing that it is Likely to Succeed on the Merits . There is No Merit to the Proposition that a Claims Administrator and Trustee Can Be Enjoined from Fulfilling His Duties under the Controlling Instruments as Interpreted and Directed by the Court . . . Even if this Court Were to Ignore Its Previous Two Rulings and the Claims Administrators Decision, the Language of the Settlement Agreement, Industry Standard Accounting Principles, and the Parties Own Intent Unequivocally Demonstrate That the Courts Interpretation of the Settlement Agreement is Correct . The Courts Interpretation of Variable Profit is Correct and Reflects the Intent of the Parties . . . . . BP Clearly Agreed that Actual Losses Would be Determined and Compensated in Accordance with the Objective Causation and Compensation Frameworks, without Any Subjective Inquiry Into Potential Alternative Causation . . . .
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BPs Strained Effort to Shoehorn Its New Methodology (which Itself is Undefined and Undetermined) Into the Language of the Settlement Has No Basis In Law or Lexicography . . . . . A Preliminary Injunction Will Not Serve the Public Interest in Promoting Court-Approved Settlements . . . . . . . List of Exhibits Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . .
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Certificate of Service .
OVERVIEW AND SUMMARY OF THE ARGUMENT

Why the Injunction Should Be Denied On BPs Motion, the Court appointed and ordered Patrick A. Juneau to faithfully administer and apply the Settlement Agreement, and to direct payments adjudicated in accordance therewith. 1 In the event of any dispute over the interpretation or implementation of the Settlement Agreement, the Claims Administrator is required to follow the terms of the Agreement as interpreted by this Court. 2 The Courts interpretation of Variable Profit under the Agreement is correct. 3
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See PRELIMINARY APPROVAL ORDER (5/2/2012) [Rec. Doc. 6418], 23 (The Court appoints Patrick Juneau as Claims Administrator to oversee the Claims Administration Vendors, who will process the claims in accordance with the Settlement Agreement); and, 28 (The Court approves the Economic and Property Damages Trust Agreement and the appointment of Patrick Juneau as Trustee); FINAL APPROVAL ORDER (12/21/2012) [Rec. Doc. 8139], 5 (The Court reconfirms the appointment of Patrick Juneau as Trustee); 17 (The Court expressly incorporates the terms of the Settlement Agreement in this Order and Judgment and further orders that the Court retains continuing and exclusive jurisdiction over the Parties, the Economic Class Members, the Court Supervised Settlement Program and the Settlement Agreement, to interpret, implement, administer and enforce the Settlement Agreement, in accordance with its terms); and, 18 (The Court also retains continuing jurisdiction over (2) the Settlement Trust; (3) the Trustee; and (4) the Directed Trustee); SETTLEMENT AGREEMENT [Rec. Doc. 6276-1], 4.3.1 (The Claims Administrator shall faithfully implement and administer the Settlement, according to its terms and procedures, for the benefit of the Economic Class, consistent with this Agreement, and/or as approved by the Court); and, 5.12 (Settlement Trust Provisions); TRUST AGREEMENT [Doc. 6114-3], 1.6 (The Trustee shall make distributions from the Funds, and the Directed Trustee shall make distributions as directed by the Claims Administrator from the Economic Settlement Trust Account to the General Claims Fund in accordance with the Settlement Agreement or as otherwise may be required by the Court); 2.1 (The Trustee and the Directed Trustee are and shall act as the fiduciaries of the Settlement Trust in accordance with the provisions of this Trust Agreement, the Settlement Agreement, and the Preliminary Approval Order), and, 3.1 (The Settlement Trust, the Trustee and the Directed Trustee shall be subject to the continuing jurisdiction and supervision of the Court). See SETTLEMENT AGREEMENT, 4.3.4 (Issues or disagreements that cannot be unanimously resolved by the Claims Administration Panel will be referred to the Court for resolution); see also, SETTLEMENT AGREEMENT, 4.3.1 (The Claims Administrator shall be responsible to the Court, serve as directed by the Court, and faithfully implement and administer the Settlement as approved by the Court); and, 38.40 (defining Court as the United States District Court for the Eastern District of Louisiana, Judge Carl J. Barbier, presiding). See REVIEW OF ISSUE FROM PANEL (Matching of Revenue and Expenses) (3/5/2013) [Rec. Doc. 8812]; see also, CLASS COUNSELS REQUEST FOR FORMAL POLICY STATEMENT (12/16/2012) [Rec. Doc. 8963-48]; CLASS COUNSELS IN CAMERA SUBMISSION (1/23/2013) [Rec. Doc. 8963-26]; CLASS COUNSELS IN CAMERA SUBMISSION IN OPPOSITION TO BPS MOTION FOR RECONSIDERATION (2/18/2013) [Rec. Doc. 8963-54]; and EXHIBITS [Rec. Docs. 8963-56 thru 8963-87].
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Even if the Courts interpretation were hypothetically incorrect, Mr. Juneau would still be required to interpret, apply and administer the Settlement Agreement as interpreted by the Court. 4 The injunction BP seeks would itself violate the express terms of the Settlement and Trust Agreements that BP negotiated, agreed to, and supported. 5 BP is effectively asking the Court to enjoin itself.
Why BP Should Lose Congress specifically enacted OPA after the Exxon Valdez tragedy to expand the law in order to provide compensation to businesses that might be indirectly, as well as directly, affected by an oil spills widespread interruption of a nearby regions economy. 6 The GCCF was widely criticized for applying OPAs expansive compensation in a subjective, secretive, and inconsistent way. In designing the Court-Supervised Settlement Program, therefore, neither BP nor Class Counsel wanted a claims administrator or other fact-finder to engage in individualized and subjective inquiries. Rather, BP intended and agreed that compensation would be provided to a defined set of Class Members in a uniform, transparent, and objective way. In particular, BP agreed in the Settlement Agreement to define Actual Losses under the objective Causation and Compensation Frameworks, without any subjective inquiry into possible alternative causes or effects upon a business or industry. 7
4
See PRELIMINARY APPROVAL ORDER, 23; FINAL APPROVAL ORDER, 17; SETTLEMENT AGREEMENT, 4.3.1, 4.3.4; TRUST AGREEMENT, 1.6, 3.1. See, e.g, JOINT MOTION FOR PRELIMINARY APPROVAL (4/18/2012) [Rec. Doc. 6266]; BP FINAL APPROVAL BRIEF (8/13/2012) [Rec. Doc. 7114-1]; BP REPLY BRIEF IN SUPPORT OF FINAL APPROVAL (10/22/2012) [Rec. Doc. 7731]; JOINT PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW IN SUPPORT OF FINAL APPROVAL (11/19/2012) [Rec. Doc. 7945].
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See, e.g., Robertson, OPA 90: Searching for the Line (9th Judge Alvin B. Rubin Conference, May 13, 2011) [Rec. Doc. 2400-1, pp.1-43].
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See LETTER FROM MARK HOLSTEIN TO PATRICK JUNEAU (Sept. 28, 2012) (re: Issues Raised by Class Counsel or Settlement Program) [Rec. Doc. 8963-67]; JOINT PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW IN SUPPORT OF FINAL APPROVAL [Rec. Doc. 7945], at 126, p.39; BPS MEMORANDUM IN SUPPORT OF FINAL APPROVAL [Rec. Doc. 7114-1], at p.33; DECLARATION OF HOLLY SHARP [Rec. Doc. 7114-18], p.10, 17; ANNOUNCEMENT OF POLICY DECISIONS REGARDING CLAIMS ADMINISTRATION (Oct. 10, 2012), No.2 [Rec. Doc. 8963-71]; E-MAIL FROM JUDGE BARBIER RE MEETING TODAY RE NON-PROFITS AND SIP (Dec. 12, 2012) [Rec. Doc. 8963-75]. 5
BP could have, but did not, limit the Class Geography. Rather, BP sought to obtain, and has obtained, a Classwide Release with respect to the entire States of Louisiana, Alabama and Mississippi.8 BP could have, but did not, insist upon the exclusion of construction, agricultural and professional service businesses. BP could have, but did not, attempt to place a limit or cap on the total Business Economic Loss payouts. 9 BP could have, but did not, insist (or even suggest) that underlying Cash Basis monthly financials could not be submitted. 10 BP could have, but did not, insist (or even suggest) that Causation not be extended to businesses with greater total annual profit in 2010 than in 2007-2009. BP could have, but did not, insist (or even suggest) that an alternative framework be applied to construction, agricultural or professional service industry claims. The members of the Class not BP are the Beneficiaries of the Settlement Trust and the Settlement Agreement. 11 BP expressly agreed that the Claims Administrator would be required to interpret the Class Members financials in a way that maximizes the Claimants recovery. 12
See SETTLEMENT AGREEMENT, Exhibit 22 (Map of Gulf Coast Area) [Rec. Doc. 6276-40].
While it is not clear that Class Counsel would have accepted (or that the Court would have approved) a capped settlement for Business Economic Loss Claims, Class Counsel did agree to (and the Court did approve) guaranteed funding of $2.3 Billion for Seafood Compensation Claims. Indeed, BP emphasized the importance of relying on monthly profit and loss statements (and/or other financial records) as they were prepared and maintained in the ordinary course of business. See, e.g., SETTLEMENT AGREEMENT, Exhibit 4A; see also, e.g., LETTER FROM MARK HOLSTEIN TO PATRICK JUNEAU (Sept. 28, 2012) (re: Sept. 25th Policy Announcements) [Rec. Doc. 8963-68], p.2 (Monthly P&Ls or alternate source documents establishing monthly revenues and expenses are essential to implementing the BEL frameworks methodology of evaluating causation and damages based on the actual monthly financial experience of claimants). TRUST AGREEMENT, 3.8 (Any person or entity appointed as Trustee shall be independent of BP Parties); SETTLEMENT AGREEMENT, 4.3.1 (The Claims Administrator shall faithfully implement and administer the Settlement for the benefit of the Economic Class). SETTLEMENT AGREEMENT, 4.3.8 (The Claims Administration Vendors shall evaluate and process the information in the completed Claim Form and all supporting documentation under the terms in the Economic Damage Claim Process to produce the greatest Economic Damage Compensation Amount that such information and supporting documentation allows under the terms of the Economic Damage Claim Framework) (emphasis supplied); see also, 4.3.7. 6
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The interpretation that BP is attacking is not the Claims Administrators interpretation. It is the interpretation of the Court. 13 Procedural Background. A. Three Strikes, Two Preliminary Injunction Motions, and One New Complaint. BP has lost all three of its attempts to re-write the definition of Variable Profit in the
I.
Settlement Agreement. First, its attempt to re-write the Agreement was rejected by the Claims Administrator. Specifically, on December 16, 2012, over six months after the Settlement
Program began accepting Business Economic Loss (BEL) claims, Class Counsel requested a broad set of formal Policy Statements from the Claims Administrator that would hopefully lay to rest a number of questionable arguments and appeals that BP was raising. See Rec. Doc. 896348. 14 BP submitted, and then supplemented, its written response, arguing that costs should be matched and revenue should be smoothed. See Rec. Doc. 8963-19, at pp.9-25. After
meeting with the parties, and considering their respective positions, the Claims Administrator came to an independent and neutral decision on January 15, 2013. See Rec. Doc. 8963-50. The Claims Administrator rejected BPs argument regarding the determination of corresponding variable expenses for both Causation and Compensation: In performing these calculations, the Claims Administrator will typically consider both revenues and expenses in the periods in which those revenues and expenses were recorded at the time. The Claims Administrator will not typically re-allocate such revenues or expenses to different periods. 15
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8812].
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REVIEW OF ISSUE FROM PANEL (Matching of Revenue and Expenses) (3/5/2013) [Rec. Doc. See generally, SUPPLEMENTAL DECLARATION OF STEPHEN J. HERMAN (April 1, 2013), 9-18. Rec. Doc. 8963-50. 7
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On January 23, 2013, BP filed an appeal with this Court by letter, attaching a power point presentation and numerous expert submissions not previously provided to the Claims Administrator. See generally, Rec. Doc. 8963-20 thru 8963-25. BP again attempted to re-write the Settlement Agreement, advancing the same arguments as it did before the Claims Administrator namely, that the term corresponding as used in the definition of Variable Profit somehow compels monthly costs to be matched and/or monthly income to be smoothed. See Rec. Doc. 8963-21. On January 23, 2013, Class Counsel filed a response. See Rec. Doc. 8963-26. On January 30, 2013, after the respective positions were argued in camera to the Court, the Courts decision was communicated to the Claims Administrator and the Parties via e-mail. See Rec. Doc. 8963-31. The Court agreed with the Claims Administrators interpretation, as set forth in his January 15, 2013 Memorandum: While the Court acknowledges that this may sometimes cause apparent anomalies (in either direction) in claim determinations, this appears to be the result of the objective, straight-forward mechanisms set forth in the Settlement Agreement. BP's proposed remedy does not appear to be based on any generally accepted accounting principle, and might only result in adding another level of complexity and subjective analysis to the BEL calculation. 16 On February 18, 2013, BP filed its formal motion for reconsideration. See Rec. Doc. 8963-35. 17 BPs motion for reconsideration raised the identical arguments as its initial briefing to this Court. (The Court had unilaterally withdrawn its January 30th e-mail ruling and instructed the parties to attempt mediation. Mediation was conducted, but was unsuccessful. 18) On
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Rec. Doc. 8963-31.
A Draft Motion for Reconsideration had been previously circulated to Judge Shushan and Class Counsel for their consideration.
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See March 5, 2013 Order [Rec. Doc. 8812], at 1 n.1. 8
February 18, 2013, Class Counsel simultaneously submitted its written response. See Rec. Doc. 8963-54. On March 5, 2013, this Court ruled on BPs motion for reconsideration. The Court followed its previous email ruling and again rejected each of BPs arguments. See March 5, 2013 Order [Rec. Doc. 8812], at 2-5. The Court, citing BPs own experts and emails, found that the Settlement Agreement did not support a reading of matching or smoothing variable profit; that such a reading would not create absurd results; and that BPs own counsel understood that variable profit would generally not be matched or smoothed. Id. Ten days after the Courts second ruling, BP filed a Motion for Preliminary Injunction in the MDL proceeding, [Rec. Doc. 8910], and also filed a second, identical Motion for Preliminary Injunction with a brand new Complaint naming the Settlement program and the Claims Administrator as defendants. BP Exploration & Production, Inc., v. Deepwater Horizon Court Supervised Settlement Program, No. 13-492, Complaint [Rec. Doc. 1] and Motion for Preliminary Injunction, [Rec. Doc. 4]. Both Motions and the Complaint argue the exact same issues, and seek the same general relief that was denied in the January 15, 2013 Claims Administrator decision, the Courts January 23, 2013 e-mail ruling, and the March 5, 2013 Court ruling on BPs motion for reconsideration. B. The Ever-Expanding Record. With every repetitive filing, BP increases the number of declarations, e-mails, memoranda, and other types of (allegedly) supporting documentation. BP has even taken to submitting multiple declarations from the same people in the purported hope of explaining something they forgot to explain or repudiating their prior declarations.
BPs initial December 2012 submissions to the Claims Administrator included no exhibits. See Rec. Doc. 8963-19, at pp.9-25. With its January 23, 2013 appeal to this Court, BP attached three expert declarations (Finch, Hall, and Oustalniol), a PowerPoint presentation, and an October Memo from the Claims Administrator. See Rec. Doc. Nos. 8963-20 thru 8963-25. With its February 18, 2013 motion for reconsideration, BP attached 18 total exhibits, including 12 declarations the three declarations previously submitted with its January 23rd filing; three supplemental declarations from each of those same experts; and 6 new expert declarations (Alexander, Dietrich, Sider, Polinsky, Rose, Weil). See Rec. Doc. Nos. 8963-35 thru 8963-53. With its fourth and latest filing, BP attached 41 total exhibits, including 20 declarations the 12 previous declarations, 6 new expert declarations (Sharp, Richardson, Dietrich, Fishkind, Henley, and a supplemental declaration from Sider), and two BP counsel declarations (Moskowitz and Karron). See Rec. Doc. 8910. In all, BP has paid 13 experts to draft 16 declarations. At least three experts submitted multiple declarations for different submissions. And some of the experts who supported BPs Motion for Final Approval have now come back to repudiate (or explain) their prior declarations. Adding all submissions together, BP has attached 64 exhibits, many duplicative, and the vast majority of which were paid for and created at BPs direction. While BP (and the Class) should arguably be limited to the clear and express language of the Settlement Agreement itself; or, perhaps, the documentation that was originally submitted to the Claims Administrator; Class Counsel will defer to the Courts considerable discretion on this
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matter. At some point, however, it is respectfully suggested, the multiple filings and the growing record should be closed.
II.
BPs Effective Motion for Reconsideration of the Denial of its Previous Motion for Reconsideration Should be Denied (Again) as Improper. Procedurally, BPs Motions are a request for an injunction that would itself violate the
Settlement Agreement.
As a practical matter, however, this is not really a Motion for
Preliminary Injunction, but a collateral attack on the Courts March 5th Order. The Court has now rejected twice BPs attempt to re-write the Settlement on the matching/smoothing issue. A formal Order has been posted on PACER. Yet rather than adhere to the Courts resolution as BP agreed per Section 4.3.4 of the Settlement Agreement, (or otherwise address the Courts ruling in a frank and straightforward way), BP has sued the independent Administrator, (whom BP proposed), requesting relief that the Administrator could never give because it would violate the Settlement Agreement, the Trust Agreement, the Final Approval Order, and the March 5th interpretation of the Court. Cutting through the procedural gamesmanship, this is effectively just a second motion for reconsideration. Just two months ago, this Court commented on the extraordinary showing that must be made: Although a district court has inherent power to reconsider an interlocutory order, reconsideration must be exercised sparingly in order to forestall the perpetual reexamination of orders and the resulting burdens and delays. Further, the decision of the district court to grant or deny a motion for reconsideration will only be reviewed for an abuse of discretion. Lightfoot v. Hartford Fire Ins. Co., No. 074833, 2012 WL 711842, at *2 (E.D.La. Mar.5, 2012) (citations omitted). Courts in this district have generally considered four factors in deciding a motion for reconsideration: (1) whether the motion is necessary to correct a manifest error of
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law or fact upon which the judgment is based; (2) whether the movant presents newly discovered or previously unavailable evidence; (3) whether the motion is necessary in order to prevent manifest injustice; or (4) whether the motion is justified by an intervening change in controlling law. Id. In re Oil Spill by Oil Rig DEEPWATER HORIZON in Gulf of Mexico, on April 20, 2010, MDL 2179, 2013 WL 160339, at *1 (E.D. La. 2013) (Barbier, J.). To the extent the Court might treat BPs Motions for Preliminary Injunction as a Motion for Reconsideration under Federal Rule of Civil Procedure 59(e): A court's reconsideration of an earlier order is an extraordinary remedy, which should be granted sparingly. See Fields v. Pool Offshore, Inc., No. Civ. A. 97-3170, 1998 WL 43217, at *2 (E.D. La. 1998), aff'd, 182 F.3d 353 (5th Cir.1999); Bardwell v. George G. Sharp, Inc., Nos. Civ. A. 93-3590, 93-3591, 1995 WL 517120, at *1 (E.D. La. 1995). The Court must strike the proper balance between the need for finality and the need to render just decisions on the basis of all the facts. Edward H. Bohlin Co., 6 F.3d at 355. To succeed on a motion for reconsideration, a party must clearly establish either a manifest error of law or fact or must present newly discovered evidence. Ross v. Marshall, 426 F.3d 745, 763 (5th Cir. 2005) (quoting Pioneer Natural Res. USA, Inc. v. Paper, Allied Indus., Chem. & Energy Workers Int'l Union Local 4-487, 328 F.3d 818, 820 (5th Cir.2003)). Kelly v. Bayou Fleet, Inc., No.05-6871, 2007 WL 3275200, at *1-2 (E.D. La. 2007) (Barbier, J.). BPs Motions are little more than a thinly-veiled challenge to the Courts March 5th Order. 19 BPs Motions seek essentially the same relief BP requested in its initial appeal to the Court and the second time in its motion for reconsideration a modification of the Claims Administrators independent interpretation of variable profit. Support of Emergency Motion for a Preliminary Injunction, at 1 See BPs Memorandum in
BP tries to argue by analogy that such relief is possible by looking to Fed. R. App. Proc. 8(a) and 28 U.S.C. 1292(b) (allowing for permission to appeal). BP Memorandum in Support, at 10. However, these two provisions apply in situations where the appellant/movant is transitioning from one court to another. Here, BP is simply challenging one ruling in the same court by using a different procedural vehicle to get the relief previously denied it. 12
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In fact, BPs motion is a point by point rebuff of the March 5th Order. See, e.g., BPs Memorandum, at 1 ([B]P submits that the Courts March 5, 2013 . . . does not correct these errors.); id at 12 (In affirming the Claims Administrators policy decision, the Courts March 5 Order does not address the definition of the key term revenue.); id. at 13 (citing the March 5 Order and arguing [p]roperly recording revenues when earned has nothing to do with smoothing revenues, and BP has never asked the Claims Administrator to smooth revenues); id. at 16 (Yet the Courts March 5 Order does not address how the word expenses should be interpreted and applied.); id. at 17 (Although it notes BPs argument, the Courts March 5 Order does not give meaning to corresponding.); id. at 20 (The Courts March 5 Order observes that the Agreement does not use the word matched or matching.); id. (citing the March 5 Order and arguing [n]or is Exhibit 4A, which concerns documentation requirements, inconsistent with the plain language of Exhibit 4C regarding compensation); id. at 21 n.9 (citing the March 5 Order and arguing that BPs interpretation does not introduce alternative causation); id. at 23 (citing the March 5 Order and arguing that the three examples in Exhibit 4Cs addendum do not support the Claim Administrators position); id. (citing the March 5 Order and arguing nor can BEL Policy Decisions be supported by 3 lines of a 9 page, 249 line e-mail from BPs counsel during negotiations); id. at 25 (citing the March 5 Order and noting that the Court quotes a letter from BP counsel Mark Holstein saying that false positives will necessarily exist); id. at 26 (citing the March 5 Order and arguing that BP is not facing rare or anomalous false positives that sometimes occur); id. ([T]he March 5 Order suggests that the three-month Compensation and Benchmark Periods should protect BP against anomalous results.); id. at 26 n.11 (noting that the March 5 Order cites to a portion of a BP expert declaration); id. at 29 (citing the March 5 Order and arguing that there is no
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subjectivity in ensuring that accurate data is used for the Settlements objective economic tests). In this case, the Court has already ruled on the matching/smoothing issue twice. BP has not raised any new arguments since the previous two decisions. BP has not articulated, much less proven, any manifest error of law or fact. BP has not pointed to any new, previouslyunavailable evidence. BP has not pointed to any new, intervening change in the law. BPs motion for reconsideration of its motion for reconsideration should be denied. See Rosemond v. AIG Ins., No. 081145, 2009 WL 1211020 (E.D. La. 2009) (Barbier, J.) (A Rule 59(e) motion should not be used to relitigate prior matters that should have been urged earlier or that simply have been resolved to the movant's dissatisfaction.) (quoting SPE FO Holdings, LLC v. Retif Oil & Fuel, LLC, No. 073779, 2008 WL 3285907, at *3 (E.D. La. 2008)). III. BPs Requested Relief Is Impossible to Grant. Putting aside the issue of whether BP dressed up a motion to reconsider in preliminary injunctions clothing, the relief BP has requested is fundamentally backwards and exposes BPs attempted end-run around the Courts March 5th Order. BP is requesting the Court to issue an injunction prohibiting the Claims Administrator from acting in accord with the resolution of the Court. BP frames the relief requested as follows: Accordingly, BP seeks a preliminary injunction against the Claims Administrator and Settlement Program to enjoin the BEL Policy Decisions and awards and payments of BEL claims based on the BEL Policy Decisions or in the alternative against awards and payments to BEL claimants in the agriculture, construction, professional services, real estate, manufacturing, wholesale trade, and retail trade industries pending conclusion of the claims administration process.
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BPs Memorandum, at 34. BP argues that the relief is justified based upon its twice-rejected arguments concerning the meaning of variable profit. Id. at 9-24. Yet, the March 5th Order definitively settled this issue. Accordingly, the Court has revisited the issue of whether the Claims Administrator has correctly interpreted the terms of the Economic and Property Damage Settlement Agreement as it applies to the calculation of Variable Profit for Business Economic Loss Claims. March 5, 2013 Order, at 1. As a result, the Operative Order with which the Claims Administrator is processing and paying claims is the March 5th Order not the Claims Administrators January 15, 2013 Policy Decision. BPs requested relief does not make any sense because it requests the Court to issue an order prohibiting the Claims Administrator from following the March 5th Order without asking the Court to vacate the March 5th Order itself. The Claims Administrator does not have the authority to change, alter, overrule or defy the Courts March 5, 2013 Order. The Claims Administrator is bound to follow the March 5th Order by the dictates of the Settlement and Trust Agreements, by the Preliminary and Final Approval Orders, and as an officer of the Court. Granting BPs relief would have the perverse result of issuing an injunction that is without legal effect i.e. enjoining a Court-appointed Administrator from enforcing a Policy Decision that has now been superseded by an Order of the Court. BP does not facially challenge the March 5th Order. The relief requested would prevent the Claims Administrator from following the Settlement Agreement as interpreted by the Court. It is the Order that would need to be challenged, not the Claims Administrators dutiful conduct thereunder. BP is effectively asking the Court to enjoin itself.
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IV.
There is No Emergency. BP fictitiously styles its pleading an emergency motion. It was not an emergency
when the issue was first raised to the Claims Administrator in December 2012. It was not an emergency when BP brought it to the Court for the first time in January 2013. It was not an emergency when BP requested reconsideration in February. It was not an emergency when BP requested mediation. Apparently, it needs to be denied three times before it becomes an emergency. The Settlement Agreement was negotiated over a period of many months. The
Settlement Agreement was filed into the court record almost one year ago on April 18, 2012. The Settlement Program went into effect on June 4, 2012. The Settlement Program began paying Business Economic Loss (BEL) claims shortly thereafter. It is likely that the Settlement Program has paid hundreds of these challenged claims before BP ever raised the issue for the first time with Class Counsel. BPs motion should not be treated as an emergency. It should be treated as an attempt to get a fourth bite at the apple. V. BPs Allegations of Fictitious Losses are Baseless and Self-Serving. At the heart of BPs motion is its unfounded contention that the Settlement Program is paying claimants who, by some yet undefined and subjective standard, have allegedly not incurred any losses as a result of the largest environmental disaster in this countrys history. BP has even labeled these claims as fictitious. Before addressing how BP is just plain wrong on the facts, the general goals of the settlement should be recalled.
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A. The Entire Purpose of the Settlement Was to Reduce Potential Causation and Compensation Disputes to Predictable and Acceptable Resolutions According to Uniform, Transparent and Objective Determinations. This settlement was and is designed to provide an objective, transparent and structured formula agreed to by the parties. The formula may not necessarily reflect what some might consider to be the most accurate depiction of the losses suffered by each class member. Rather, the formula represents an agreed-upon compromise. But, in any event, it is the formula and not some subjective analysis that determines causation. 20 Indeed, the Causation and Compensation Frameworks in this Settlement Agreement for BEL Claims were purposefully negotiated to avoid any subjective inquiry. BP agreed to this objective and uniform framework, in exchange for a classwide release. 21 The Causation and Compensation Frameworks together provide for an objective compensation model based on as little as three consecutive months revenue as compared to the same three months of the previous year. 22 This was the product of thoughtful negotiations that were specifically designed and intended to allow for seasonal variances and to account for changing economic conditions. Although just a handful of months were used, the Compensation Amount was intended to compensate all damages and losses over the life of the claimant past, present, and future. Claimants can incur losses indefinitely into the future. Losses can be delayed and not appear on the books for months, or years. There are a myriad of different ways that claimants sustain losses over time.
20
See, e.g., PRELIMINARY APPROVAL PRESENTATION (April 25, 2012) (submitted herewith).
See, e.g., Sullivan v. DB Investments, Inc., 667 F.3d 273, 339 (3d Cir. 2011) (Scirica, J., concurring) (From a practical standpoint . . . achieving global peace is a valid, and valuable, incentive to class action settlements . . . . [A defendant] may be motivated to pay class members a premium and achieve a global settlement in order to avoid additional lawsuits . . . .).
21
More specifically, Causation, where not presumed, is determined by the comparison of at least three months of Revenue; Compensation is determined by a comparison of Variable Profit, as defined in the Settlement. 17
22
BP, along these lines, ignores the fact that OPA was specifically enacted to expand the scope of available compensation to those businesses and industries which may suffer indirect as well as direct losses as the result of an oil spill. 23 By singling out three categories of businesses construction, farming and professional services (three categories of businesses that BP intentionally decided to include in the Class Settlement) BP is demonstrating that the problem is not the Settlement Agreement or the BEL Frameworks or any misapplication thereof. Rather, the problem for BP is that the objective frameworks apparently yield higher outcomes than what BP had originally projected. The Frameworks, which provide an objective and uniform measure of compensation to all members of the Economic Class, is apparently fine for the vast majority of the BEL claims. By definition, there can be no fictitious losses under the Causation and Compensation Frameworks. Rather, BP agreed that Actual Losses would be objectively and uniformly defined by the BEL Framework, irrespective of the surrounding circumstances. To label certain business claims as having fictitious losses shows a fundamental misunderstanding (or misrepresentation) of the Settlement Agreement. It also demonstrates a level of irresponsible disregard for the complexities of the claims and a willingness to use generalizations to achieve a calculated end. Even a cursory review of BPs purported list of fictitious loss claims shows how off base BP really is. B. BP Itself Paid Many of these So-Called Fictitious Claimants thru GCCF It is extremely disingenuous and misleading for BP to contend that claims for compensation that BP agreed would be due as a result of the Spill are somehow fictitious
See, e.g., Robertson, OPA 90: Searching for the Line (9th Judge Alvin B. Rubin Conference, May 13, 2011) [Rec. Doc. 2400-1, pp.1-43].
23
18
based on nothing more than cold accounting records. BP, in this regard, has listed hundreds of such purported examples in Appendix B to its Motions and, based on nothing more than a paragraph (without discovery, depositions, or even speaking with the claimants), has irresponsibly portrayed them as fictitious claims. Indeed, many of the claims that BP now points to as allegedly fictitious were actually recognized by BPs OPA-designated agent as valid and legitimate. By comparing the businesses that received emergency or other partial payments from the GCCF to the businesses that are listed by BP on Appendix B, it appears that BP has identified numerous companies that BP itself had previously elected to pay. See, e.g., Claim 40681 (construction company paid by GCCF); Claim 60664 (construction company paid by GCCF); Claim 11533 (construction company paid by GCCF); Claim 79934 (plumbing contractor paid by GCCF); Claim 21791 (construction company paid by GCCF); Claim 1237 (professional services business paid by GCCF); Claim 99124 (professional services business paid by GCCF);Claim 60211 (real estate company paid by GCCF); Claim 14987 (real estate company paid by GCCF); Claim 74180 (other business paid by GCCF); Claim 23951 (manufacturer paid by GCCF); Claim 16606 (building materials dealer paid by GCCF); Claim 84690 (plumbing and heating supplier paid by GCCF); Claim 1195 (metals manufacturer paid by GCCF); Claim 16163 (wholesale trade agent paid by GCCF); Claim 33885 (sporting goods store paid by GCCF); Claim 95807 (building materials dealer paid by GCCF); Claim 23522 (gas station chain paid by GCCF); Claim 43807 (bar paid by GCCF); Claim 64859 (gas station chain paid by GCCF). And, on the claims in which a cursory review is not enough to determine whether the loss was (directly and/or indirectly) caused by or as a result of the Spill, it is equally irresponsible to label this compensation which BP agreed to pay as fictitious. BP merely
19
speculates that the identified claimants could not prove causation under some vague and subjective notion if they were called upon to do so. The Settlement Agreement was specifically drafted to ensure there would be no need for formal discovery related to causation or even a narrative from the claimant explaining how the spill may have directly or indirectly impacted the business. No proof of causation is required under the Settlement other than as set forth in the Causation Framework and no other proof of causation would have been submitted by the Claimant. BP is somewhat candid about why it filed its Motions: BP projects that that the
Settlement Program may pay billions of dollars in excess of what BP originally estimated it would pay under the settlement. The uncapped nature of the potential payments was a seminal feature of the Settlement Agreement. No value was placed on the settlement for good reason, namely, the exceeding difficulty in determining the damage caused by the oil spill on a macro level. The safest, most responsible manner of addressing different types of claims concerning different types of business was to allow an organic objective and uniformly applied formula to take hold. Simply because the value of the overall payments in certain industries exceeds what BP estimated does not make the individual claims fictitious. VI. BP Fails to Meet the Requirements For a Preliminary Injunction. BPs Motions acknowledge that they must, under controlling Fifth Circuit precedent, demonstrate a substantial likelihood of success on the merits, but understates the exacting nature of this requirement. While it is true, as noted in Janvey v. Alquire, 647 F.3d 585, 590 (5th Cir. 2011) that to obtain a preliminary injunction, the moving party must present a prima facie case but need not show that he is certain to win, this is a far from casual burden. BP must show more than a mere possibility of relief; rather, BP must make a strong showing that [it] is likely
20
to succeed on the merits. Moore v. Tangipahoa Parish Sch. Brd., ___ F.3d ___, 2013 U.S. App. LEXIS 877, at *8 (5th Cir. Jan. 14, 2013) (citing Niken v. Holder, 556 U.S. 418, 434 (2009)). As shown above, BP has no basis for the relief for which it prays. BP has not even attempted to show that it is entitled to an injunction requiring the Settlement Administrator to disregard his responsibilities under the Settlement Agreement, the Trust Agreement, and the Preliminary and Final Approval Orders, in contravention of the Courts March 5, 2013 interpretation. If, alternatively, the Court treats BPs present Motions as a motion to reconsider the Courts denial of BPs previous motion to reconsider its interpretation of the Settlement Agreement, BP makes no such strong showing that its yet-to-be-explained BEL payment system has any basis in, is even remotely consistent with, or can be objectively and predictably derived from, the language of the executed and court-approved Settlement Agreement. BPs showing fails under any standard the United States Supreme Court or the Fifth Circuit have required for the extraordinary relief of a preliminary injunction. As the Fifth Circuit reconfirmed in Tex. Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 579 (5th Cir. 2012) (vacating preliminary injunction), We have cautioned repeatedly that a preliminary injunction is an extraordinary remedy which should not be granted unless the party seeking it has clearly carried the burden of persuasion on all four requirements. 24 667 F.3d at 524 (citing Lake Charles Diesel, Inc. v. Gen. Motors Corp., 328 F.3d 192, 195-96 (5th Cir. 2003)). Moreover, an absence of likelihood of success on the
To be entitled to a preliminary injunction, the applicant(s) must show (1) a substantial likelihood that [they] will prevail on the merits, (2) a substantial threat that [they] will suffer irreparable injury if the injunction is not granted, (3) [their] substantial injury outweighs the threatened harm to the party whom [they] seek to enjoin, and (4) granting the preliminary injunction will not disserve the public interest. 667 F.3d at 574 (citing Bluefield Water Assn, Inc. v. City of Starkville, Miss., 577 F.3d 250, 252-53 (5th Cir. 2009)). 21
24
merits is sufficient to make the district courts grant of a preliminary injunction improvident as a matter of law. 667 F.3d at 574; Lake Charles Diesel, 328 F.3d at 203. A. After Trying, and Failing, to Re-Write the Settlement Three Times, BP Cannot Make Any Showing that it is Likely to Succeed on the Merits.
As noted above, there is nothing pending before the Court which formally seeks reversal of the Courts March 5, 2013 Order that correctly rejected BPs arguments for matching and/or smoothing. Without changing that ruling, there is literally no chance of success on the merits. 25 BP has attempted to re-write the Settlement Agreement three times. BP lost the
matching/smoothing issue once before the Claims Administrator and twice before this Court. As discussed above, BPs motion is a poorly veiled second motion for reconsideration of the denial of its first motion for reconsideration. The definitive merits-based denial of BPs
arguments is contained in the Courts March 5th Order. The March 5th Order framed the exact issue that is raised in BPs new motion: [T]he Court has re-visited the issue of whether the Claims Administrator has correctly interpreted the Economic and Property Damage Settlement Agreement as it applies to the calculation of Variable Profit for Business Economic Loss Claims. March 5, 2013 Order, at 1. This Court denied the same arguments and the same evidentiary support presented here. When BP argued that a reading of the Settlement Agreement supported smoothing the revenue, the Court cited line and verse of the Settlement Agreement in disagreement. Id. at 1-3. When BP argued that corresponding meant matching the variable expenses to the revenue, this Court returned to the clear language of the Settlement Agreement, the examples provided,
The merits under the Preliminary Injunction analysis could more aptly be described as the legal basis or authority for the enjoining of a Claims Administrator to apply the Settlement Agreement contrary to the way in which the Agreement has been interpreted by the Court. There is no merit to that argument, either; and no likelihood or even chance of success. 22
25
and the very purpose of the settlement itself. Id. at 4-5. This Court found that BPs evidence supported the Claims Administrators independent interpretation. In addition to the plain wording of the Settlement Agreement, and in denying BPs first motion for reconsideration, this Court quoted and cited BPs own economic experts Henry Fishkind, James Henley, Jr., and A. Mitchell Polinsky for the proposition that certain anomalies may result from imperfect financial record keeping. Id. at 4-5. Lastly, this Court looked to BPs own counsels statements to determine the meaning of Variable Profit. The Court found telling the statements by BP lead counsel Richard Godfrey: The word comparable and phrase comparable months of is used throughout the document in the context of comparing the months selected by the Claimant in 2010 to compare against the same months in the Benchmark Period. Id. at 3 (emphasis in original) (citing E-Mail from Richard Godfrey to Joe Rice and Calvin Fayard (Feb. 17, 2012) [Rec. Doc. 8963-58], at 1). In sum, this Court has already denied on the merits the very arguments that BP has put forth in this third attempt at reconsideration. The Court looked at the Settlement Agreement, the examples, the history of negotiations, and the statements of BPs own counsel and experts. By losing on the merits twice before, BP can not show that it is likely to succeed on the merits. B. There is No Merit to the Proposition that a Claims Administrator and Trustee Can Be Enjoined from Fulfilling His Duties under the Controlling Instruments as Interpreted and Directed by the Court. BP can point to absolutely no legal authority that would support the proposition that a Claims Administrator and Trustee could be enjoined from fulfilling his duties under the controlling Trust and/or Settlement Agreements as interpreted and directed by the Court.
23
C. Even if this Court Were to Ignore Its Previous Two Rulings and the Claims Administrators Decision, the Language of the Settlement Agreement, Industry Standard Accounting Principles, and the Parties Own Intent Unequivocally Demonstrate that the Courts Interpretation of the Settlement Agreement is Correct. As an initial matter, Class Counsel adopt and incorporate by reference all previous submissions on this issue. 26 Given the exhaustive briefing that the Court has already been subjected to, Class Counsel offer the following summary: 1. The Courts Interpretation of Variable Profit is Correct and Reflects the Intent of the Parties. The Compensation Framework for Business Economic Loss (BEL) claims found in Exhibit 4C of the Settlement Agreement defines the term Variable Profit as follows: Variable Profit: This is calculated for both the Benchmark Period and the Compensation Period as follows: 1. Sum the monthly revenue over the period 2. Subtract the corresponding variable expenses from revenue over the same time period. 27 The term corresponding instructs the Program to subtract the variable expenses that are recorded over the same time period as the revenue is recorded. This Courts correct interpretation on this point is supported by: The language used throughout Exhibit 4C consistently and uniformly corresponds i.e. compares revenue and expenses experienced during the same time periods. 28
See CLASS COUNSELS REQUEST FOR FORMAL POLICY STATEMENT (12/16/2012) [Rec. Doc. 8963-48]; CLASS COUNSELS IN CAMERA SUBMISSION (1/23/2013) [Rec. Doc. 8963-26]; CLASS COUNSELS IN CAMERA SUBMISSION IN OPPOSITION TO BPS MOTION FOR RECONSIDERATION (2/18/2013) [Rec. Doc. 8963-54].
26 27
Rec. Doc. 8963-56. Rec. Doc. 8963-56. 24
28
When read together with the Documentation provisions set forth in Exhibit 4A, 29 it is clear that the Program was to focus on monthly revenue and expenses experienced or recorded contemporaneously during the Benchmark Period and Compensation Period. The Examples contained within the Settlement Agreement reflect a comparison of the revenue and expenses recorded during the Benchmark Period and the Compensation Period. 30 The Expert Declarations and Briefs submitted by BP in support of final approval of the Settlement refer to expenses and revenue over the same comparable time periods. 31 A Memorandum prepared by BPs counsel towards the end of the negotiations directs that costs and revenue recorded during the relevant Benchmark and Compensation Period months be compared to one another, without any indication that the Compensation Framework would require the Program to average revenue across the entire time period it might have been earned or match the variable expenses to the revenue that was earned during the Benchmark or Compensation Period. 32 The powerpoint presentation prepared by the Program and presented to the Appeal Panelists in August without objection by BP defines Variable Profit as the sum of monthly revenue minus variable expenses from revenue over the same time period. 33 The position taken by BP in response to the Claims Administrators inquiry regarding the necessity of monthly profit and loss statements emphasized the BEL Frameworks focus on monthly revenue and expenses actually experienced during the Benchmark and Compensation Periods in question. 34 Despite the exchange of numerous Examples during negotiations, BP never suggested that the Compensation Framework be applied in the manner BP is now suggesting. 35
29 30 31 32 33
Rec. Doc. 8963-57. Rec. Doc. 8963-56. See Rec. Docs. 8963-61 and 8963-62. Rec. Doc. 8963-58. Rec. Doc. 8963-63. Rec. Doc. 8963-68.
34 35
See generally, Rec. Doc. Nos. 8963-84 and 8963-86; see also, Supplemental Declaration of John Tomlinson (April 1, 2013). 25
With respect to the Test Claims provided by the Parties to the Program, BP never suggested that the Compensation Framework be applied to those Test Cases in the manner BP is now suggesting. 36 Although neither BPs current interpretation nor its proposed compromise solutions adhere to Generally Accepted Accounting Principles, it is clear that the parties did not intend to incorporate GAAP definitions of Variable Profit or other terms, as evidenced by the formal amendment of the Settlement Agreement to eliminate the requirement of CPAs to certify that the claims were submitted in conformity with GAAP in order to qualify for the Accountant Reimbursement Compensation. 37 BPs interpretation leads to a moving target of undefined and ever-changing criteria that are impractical, subjective, and inconsistent with prevailing accounting standards and principles. 38
These points, combined with the Parties emphasis on uniform and objective application of the Settlement Frameworks, make it clear that the Courts interpretation and application of the Settlement Agreement was and is the correct one. 2. BP Clearly Agreed that Actual Losses Would be Determined and Compensated in Accordance with the Objective Causation and Compensation Frameworks, without Any Subjective Inquiry Into Potential Alternative Causation. In support of its Motion for Final Settlement Approval, BP submitted the Declaration of Holly Sharp, in which both BP and its expert confirmed that: Once a business meets the causation requirements, for purposes of quantifying causation, all revenue and variable profit declines during the claimant-selected compensation period are presumed to be caused by the spill, with no analysis required to determine whether the declines might have been due, at least in part, to other
See Rec. Doc. Nos. 8963-84 and 8963-86; and, Supplemental Declaration of John Tomlinson (April 1, 2013).
36
Compare Section 4.4.13.4 in the original Settlement Agreement [Rec. Doc. 6276-1] (April 18, 2012), with Section 4.4.13.4 within Amendment No. 1 [Rec. Doc. 6414-6] (May 2, 2012).
37
See generally, Rec. Doc. Nos. 8963-77, 8963-78, 8963-79, 8963-80, 8963-81, 8963-82, 896384, 8963-85, 8963-87, and Supplemental Declaration of Allen Carroll (March 25, 2013).
38
26
causes. 39 Then, BPs Counsel, in a September 28, 2012 letter to the Claims Administrator, reiterated that: One of the cornerstones of the Settlement Agreement is the use of transparent, objective, data-driven methodologies designed to apply clearly-defined standards to a claimants contemporaneously-maintained financial data submitted in compliance with documentation requirements. These methodologies and requirements were carefully negotiated by the parties and are set forth in the Settlement Agreement as mandatory requirements. Among other reasons, these methodologies and requirements were negotiated in response to concerns voiced by some that the prior GCCF process was too dependent on accounting judgments that were not transparent. [T]he Settlement Agreement does not allow for the use of professional judgment or discretion as a substitute for expressly articulated standards or requirements . . . . 40 Around the same time, Mike Juneau, on behalf of the Claims Administrator, had posed the following inquiry to the parties: As to BEL claims, once a claimants financial records satisfy the causation standards set out in Exhibit 4B, does the Settlement Agreement mandate and/or allow the Claims Administrator to separate out losses attributable to the oil spill vs. those that are not? Stated another way, once a claimant passes the causation threshold, is the claimant entitled to recovery of all losses as per the formula set out in Exhibit 4C, or is some consideration to be given so as to exclude those losses clearly unrelated to the spill? I will give a hypothetical situation to try to illustrate the question we are asking:
Declaration of Holly Sharp [Rec. Doc. 7114-18], at 10, 17 (quoted in BPs Memorandum in Support of Final Approval [Rec. Doc. 7114-1], at 33, (emphasis supplied)). See also, Declaration of Henry Fishkind [Rec. Doc. 7114-5], at 10, 31 ([P]rojected earnings during a Claimant-selected postDWH spill compensation period are compared to actual earnings during that period and the difference is deemed a compensable loss) (emphasis supplied). Letter from Mark Holstein to Patrick Juneau, (Sept. 28, 2012) (re: Sept. 25th Policy Announcements) [Rec. Doc. 8963-68], at 1 (emphasis supplied).
40
39
27
Hypo: A small accounting corporation / firm is located in Zone B. They meet the V-shaped curve causation test. 41 The explanation for the drop in revenue is that one of the three partners went out on medical leave right around the time of the spill. Their work output, and corresponding income, thus went down by about a third. The income went back up 6 months later when the missing partner returned from medical leave. Applying the compensation formula under Exhibit 4C of the Settlement Agreement, the accounting firm can calculate a fairly substantial loss. Is that full loss recoverable? 42 In response to the question and hypothetical, BPs Counsel confirmed that: If proper application of the methodology with accurate financial data yields a determination that causation is satisfied, BP agrees with Class Counsel that all losses calculated in accordance with Exhibits 4C of the Settlement Agreement are presumed to be attributable to the Oil Spill.
* * *
[I]f the accurate financial data establish that the claimant satisfies the BEL causation requirement, then all losses calculated in accord with Exhibit 4C are presumed to be attributable to the Oil Spill. Nothing in the BEL Causation Framework (Ex. 4B) or Compensation Framework (Ex. 4C) provides for an offset where the claimant firms revenue decline (and recovery, if applicable) satisfies the causation test but extraneous non-fictional data indicate that the decline was attributable to a factor wholly unrelated to the Oil Spill. Such false positives are an inevitable concomitant of an objective quantitative, data-based test. 43 Based on BPs response, the Claims Administrator issued a formal Policy Statement on October 10, 2012, further confirming that there would be no inquiry into potential alternative
41
See, e.g., Preliminary Approval Hearing Presentation (April 25, 2012) (submitted herewith). E-Mail from Mike Juneau to Parties (Sept. 25, 2012) [Rec. Doc. 8963-66].
42
Letter from Mark Holstein to Patrick Juneau, (Sept. 28, 2012) (re: Issues Raised by Class Counsel or Settlement Program) [Rec. Doc. 8963-67], at 1 & 3 (emphasis supplied). 28
43
causes of the claimants losses. 44 Several weeks later, in the Joint Proposed Findings, the Parties again confirmed that: Once the causation tests are satisfied, all revenue and variable profit declines during the Compensation Period are presumed to be caused entirely by the spill, with no analysis of whether such declines were also traceable to other factors unrelated to the spill. 45 When BP, nevertheless, argued just several days later that Mr. Juneaus Supplemental Information Program spot was misleading because claims for losses which (in BPs subjective opinion) were not caused by the Spill are (allegedly) fraudulent, the Claims Administrator requested the Court to confirm, in a formal Court-Approved Policy Statement, that the Settlement Agreements Compensation Framework would be applied as written. The question was posed by the Court to Counsel for BP, and BPs Counsel re-confirmed that it agreed with the Claims Administrators October 10th Policy Statement on this issue. 46 BP is an extremely sophisticated party, represented throughout the negotiations by preeminent lawyers from distinguished firms such as Kirkland & Ellis, Arnold & Porter, and SRDenton, as well as an army of economic and accounting experts and consultants who were crunching the numbers at every turn. Despite the Settlements clear focus on the uniform application of an objective quantitative data-based test, BPs current argument is nothing more than an attempt to reintroduce some vague and subjective notion of alternative causation. The absurdities that BP complains of are nothing more than the (arguable) false positives that
Announcement of Policy Decisions Regarding Claims Administration (Oct. 10, 2012) [Rec. Doc. 8963-71], No.2. Joint Proposed Findings of Fact and Conclusions of Law in Support of Final Approval [Rec. Doc. 7945], 126, at 39 (emphasis supplied). E-Mail from Judge Barbier re Meeting Today re Non-Profits and SIP (Dec. 12, 2012) [Rec. Doc. 8963-75]. See also, Supplemental Declaration of Stephen J. Herman (April 1, 2013), 9-11. 29
46
44
45
were, or certainly should have been, foreseeable to BP and its team from the beginning. 3. BPs Strained Effort to Shoehorn Its New Methodology (which Itself is Undefined and Undetermined) Into the Language of the Settlement Has No Basis In Law or Lexicography. BP resorts, throughout its brief, to strained interpretations of the language of the Settlement Agreement, taking words and phrases out-of-context and hypothesizing new meanings that have no basis in the document. One particularly glaring example of BPs resort to an alternative lexicographical universe is its selective definition of the word comparable, devised to escape the Settlements plain requirement that the claimant-selected months of the Compensation Period are compared with the same months in the Benchmark Period. To BP, comparable no longer means the same, or like: January is no longer
comparable to January, or June to June. Instead comparable now means something indirect, vague, and mysterious. To support this new meaning, BP cobbles together the following
patchwork of partial definitions from multiple dictionaries: The comparable months are those. that hav[e] enough like characteristics or qualities to make comparison appropriate, and are suitable for matching, coordinating, or contrasting. WEBSTERS THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED 461 (Philip Babcock Gove, ed., 1976) (emphasis added). They are the months worthy of comparison; proper or fit to be compared. 2 THE OXFORD ENGLISH DICTIONARY 708 (1933) (emphasis added). The plain meaning of the word comparable is capable of being compared; . . . having enough like characteristics or qualities to make comparison appropriate. However, in the very Websters edition to which BP cites, BP has cut off the last two words of the definition. It actually says (missing words in bold): suitable for matching, coordinating, or contrasting: Equivalent; Similar. WEBSTERS THIRD NEW INTERNATIONAL DICTIONARY OF THE E NGLISH LANGUAGE UNABRIDGED, at 461 (1976) (emphasis supplied).
30
The very definition BP cites says that comparable = same. And similarly (or comparably) in the Oxford dictionary that BP cites, BP has cited the secondary definition; the Primary is able to be likened to another; similar. These are not isolated examples. The weight of lexicography is behind the plain meaning of comparable. The American Heritage Dictionary defines comparable as similar or Websters Collegiate Dictionary defines
equivalent; pianists of comparable ability.
comparable as similar, like. BPs recourse to case law is likewise unavailing. When courts are faced with defining comparable, Websters straightforward meaning is, likewise, their choice. Thus, While the word comparable can mean capable of being compared, such an interpretation would give the word no substantive content in this context. The other-obviously intendedmeaning of comparable is similar. Thus, in ordinary parlance, if the prices at one store or restaurant are ten times those of a competitor, one would not say that the prices are comparable, even though they can obviously be compared. See MerriamWebsters Collegiate Dictionary 234 (10th ed. 1997) (definitions for comparable include similar, like as in fabrics of comparable quality). United States v. Cinemark USA, Inc., 348 F.3d 569, 575-75 (6th Cir. 2003). 47 D. A Preliminary Injunction Will Not Serve the Public Interest in Promoting CourtApproved Settlements. Of the myriad of cases BP musters in purported support of its novel interpretation of the Settlement Agreement, none has any relation to the type of agreement involved here: a courtapproved settlement agreement. BP attempts to re-frame the subject of its motion as a mere private contract, a routine business agreement, or other commercial instrument. But the
Settlement Agreement involved here is no mere private contract: it is a document in which not
Other courts agree. According to Websters Dictionary, we note that comparable means like or equivalent. WEBSTERS II DICTIONARY 289 (1984). Joseph v. Henry, 958 F.Supp. 238, 242 n.9 (D.V.I. 1997). 31
47
only the thousands of class members have an interest, but one in which the public has a stake as well. There is a long-recognized and overriding public interest in the implementation and completion of voluntary settlements, especially class action settlement agreements. Kincade v. General Tire & Rubber Co., 635 F.2d 501, 507 (5th Cir. 1981); quoting, Cotton v. Hinton, 559 F.2d 1326, 1331 (5th Cir. 1977). This policy was recently reaffirmed to enforce a preliminarily approved class settlement about which a settling defendant had second thoughts: A strong public policy exists, which is particularly muscular in class action suits, favoring settlement of disputes, finality of judgments and the termination of litigation. Ehrheart v. Verizon Wireless, 609 F.3d 590, 593 (3d Cir. 2010). In Ehrheart, Verizon, the settling defendant, unsuccessfully sought to vacate its obligations under a class action settlement agreement, when a change in the law, via legislation enacted shortly after preliminary approval, arguably eliminated the plaintiffs cause of action. The court of appeal refused to allow this escape, invoking the strong presumption in favor of voluntary settlement agreements. Id. at 594. This presumption is especially strong in class actions and other complex cases where substantial judicial resources can be conserved by avoiding formal litigation . . . an interest which ties into the strong policy favoring the finality of judgments and the termination of litigation. Id. at 595. Ehrheart is unequivocal: By vacating its preliminary approval of the settlement and by granting Verizon a judgment on the pleadings, the District Court permitted Verizon to void its settlement agreement when it became unpalatable and digressed from the federal policy of encouraging class action settlement agreements. Id. BP now finds a specific portion of the settlement agreement unpalatable for far weaker reasons than those rejected as insufficient in Ehrheart v. Verizon. There, the defendant had bad timing: a long-negotiated settlement was signed just shortly before the law on which the case
32
against it was based changed in its favor. Ehrheart noted Verizon might have seen this coming yet it made a calculated and deliberate choice, which hindsight reveals was . . . probably wrong. Id. at 596. The point of Erheart is that settling parties must live with the choices they make. The choice to settle inherently acknowledges calculated risks and, in the end, reflects the deliberate decision of both parties to opt for certainty in terminating this litigation. Id. at 595. Here, no law has changed at any stage of the Settlement approval or implementation process, or changed the legal landscape against which the parties negotiated, and jointly requested this Court to approve, their agreement. Courts should not confound public policy by allowing parties to escape the consequences of bargains regretted in hindsight; each party must bear the consequences of its informed, counseled and voluntary decision to settle. Ehrheart, 609 F.3d at 595 (citing Coltec Industries, Inc. v. Hobgood, 280 F.3d 262, 273 (3d Cir. 2002)). Here again, the consequences do not come from a change whether unforeseen or predictable in the legal landscape, nor from intervening new facts. Instead, it is merely dissatisfaction with the calculable consequences of one of the economic formulae of claims determination; and one that no one overlooked. Rather, it was part of the larger, interlocking system of settlement claims determinations and payouts that the parties negotiated on an intensive, tested, and informed basis over a prolonged negotiation, drafting, settlement approval, and claims program implementation period. The provision for determination and payout of Class Member Claims during the pendency of the settlement approval process is an integral feature and major benefit of the agreement, as approved by the Court. A preliminary injunction that halts or hampers the
determination process is at odds with a fundamental term of the agreement, which instead should be enforced.
33
EXHIBITS 48 1. From Preliminary Approval Hearing Presentation (April 25, 2012). 2. Supplemental Declaration of W. Allen Carroll, Jr. (March 25, 2013). 3. Supplemental Declaration of Stephen J. Herman (April 1, 2013). 4. Supplemental Declaration of John Tomlinson (April 1, 2013). 5. Affidavit of David Wolf, on behalf of Walls Gator Farm (March 26, 2013). 6. Affidavit of Malcolm Dugas, Jr., on behalf of Chef John D. Folse & Company (March 29, 2013). 7. BP Appeal of No. 88168 (redacted), dated March 13, 2013. 8. BP Appeal of No. 88708 (redacted), dated March 23, 2013.
Class Counsel respectfully incorporate and adopt all EXHIBITS to Class Counsels In Camera Submission in Opposition to BPs Motion for Reconsideration, which are listed in Rec. Doc. 8963-55 and have been entered into the Record as Rec. Doc. Nos. 8963-56 thru 8963-87. Class Counsel also respectfully adopt and incorporate CLASS COUNSELS REQUEST FOR FORMAL POLICY STATEMENT (12/16/2012) [Rec. Doc. 8963-48]; CLASS COUNSELS IN CAMERA SUBMISSION (1/23/2013) [Rec. Doc. 8963-26]; CLASS COUNSELS IN CAMERA SUBMISSION IN OPPOSITION TO BPS MOTION FOR RECONSIDERATION (2/18/2013) [Rec. Doc. 8963-54]; and the Courts REVIEW OF ISSUE FROM PANEL (Matching of Revenue and Expenses) (3/5/2013) [Rec. Doc. 8812].
48
34
Conclusion For the above and foregoing reasons, for the reasons provided in the Courts March 5, 2013 Review of Issue from Panel, and Class Counsels previous submissions on the issue, BPs Motions for Preliminary Injunction should be summarily dismissed and denied. This 1st day of April, 2013.
Respectfully submitted, /s/ Stephen J. Herman Stephen J. Herman, La. Bar No. 23129 HERMAN HERMAN & KATZ LLC 820 OKeefe Avenue New Orleans, Louisiana 70113 Telephone: (504) 581-4892 Fax No. (504) 569-6024 E-Mail: sherman@hhklawfirm.com Lead Class Counsel /s/ James Parkerson Roy James Parkerson Roy, La. Bar No.11511 DOMENGEAUX WRIGHT ROY & EDWARDS LLC 556 Jefferson Street, Suite 500 Lafayette, Louisiana 70501 Telephone: (337) 233-3033 Fax No. (337) 233-2796 E-Mail: jimr@wrightroy.com Lead Class Counsel
ECONOMIC & PROPERTY DAMAGES CLASS COUNSEL

Brian H. Barr LEVIN, PAPANTONIO 316 South Baylen St., Suite 600 Pensacola, FL 32502-5996 Office: (850) 435-7045 Telefax: (850) 436-6187 E-Mail: bbarr@levinlaw.com Jeffrey A. Breit BREIT, DRESCHER & IMPREVENTO Towne Pavilion Center II 600 22nd Street, Suite 402 Virginia Beach, Virginia 23451 Office: (757) 670-3888 Telefax: (757) 670-3895 E-Mail: jbreit@bdbmail.com Robin L. Greenwald WEITZ & LUXENBERG, PC 700 Broadway New York, NY 10003 Office: (212) 558-5802 Telefax: (212) 344-5461 E-Mail: rgreenwald@weitzlux.com Rhon E. Jones BEASLEY, ALLEN, CROW, METHVIN, PORTIS & MILES, P. C. 218 Commerce St., P.O. Box 4160 Montgomery, AL 36104 Office: (334) 269-2343 Telefax: (334) 954-7555 E-Mail: rhon.jones@beasleyallen.com
35
Elizabeth J. Cabraser LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP 275 Battery Street, 29th Floor San Francisco, CA 94111-3339 Office: (415) 956-1000 Telefax: (415) 956-1008 E-Mail: ecabraser@lchb.com Philip F. Cossich, Jr. COSSICH, SUMICH, PARSIOLA & TAYLOR 8397 Highway 23, Suite 100 Belle Chasse, LA 70037 Office: (504) 394-9000 Telefax: (504) 394-9110 E-Mail: pcossich@cossichlaw.com Robert T. Cunningham CUNNINGHAM BOUNDS, LLC 1601 Dauphin Street, P. O. Box 66705 Mobile, AL 36660 Office: (251) 471-6191 Telefax: (251) 479-1031 E-Mail: rtc@cunninghambounds.com Alphonso Michael Mike Espy MORGAN & MORGAN, P.A. 188 East Capitol Street, Suite 777 Jackson, MS 39201 Office: (601) 949-3388 Telefax: (601) 949-3399 E-Mail: mike@mikespy.com Calvin C. Fayard, Jr. FAYARD & HONEYCUTT 519 Florida Avenue, SW Denham Springs, LA 70726 Office: (225) 664-4193 Telefax: (225) 664-6925 E-Mail: calvinfayard@fayardlaw. Ervin A. Gonzalez COLSON HICKS EIDSON 255 Alhambra Circle, Penthouse Coral Gables, FL 33134 Office: (305) 476-7400 Telefax: (305) 476-7444 E-Mail: ervin@colson.com
Matthew E. Lundy LUNDY, LUNDY, SOILEAU & SOUTH, LLP 501 Broad Street Lake Charles, LA 70601 Office: (337) 439-0707 Telefax: (337) 439-1029 E-Mail: mlundy@lundylawllp.com Michael C. Palmintier deGRAVELLES, PALMINTIER, HOLTHAUS & FRUGE 618 Main Street Baton Rouge, LA 70801-1910 Office: (225) 344-3735 Telefax: (225) 344-0522 E-Mail: mpalmintier@dphf-law.com Paul M. Sterbcow LEWIS, KULLMAN, STERBCOW & ABRAMSON 601 Poydras Street, Suite 2615 New Orleans, LA 70130 Office: (504) 588-1500 Telefax: (504) 588-1514 E-Mail: sterbcow@lksalaw.com Scott Summy BARON & BUDD, P.C. 3102 Oak Lawn Avenue, Suite 1100 Dallas, TX 75219 Office: (214) 521-3605 Telefax: (214) 599-1172 E-Mail: ssummy@baronbudd.com Conrad S.P. Duke Williams WILLIAMS LAW GROUP 435 Corporate Drive, Suite 101 Maison Grand Caillou Houma, Louisiana 70360 Office: (985) 876-7595 Fax No. (985) 876-7594 E-Mail: duke@williamslawgroup.org
36
Joseph F. Rice MOTLEY RICE LLC 28 Bridgeside Blvd. Mount Pleasant, SC 29464 Office: (843) 216-9159 Fax No. (843) 216-9290 E-Mail: jrice@motleyrice.com
CERTIFICATE OF SERVICE WE HEREBY CERTIFY that the above and foregoing Opposition has been served on All Counsel by electronically uploading the same to Lexis Nexis File & Serve in accordance with Pretrial Order No. 12, and that the foregoing was electronically filed with the Clerk of Court of the United States District Court for the Eastern District of Louisiana by using the CM/ ECF System, which will send a notice of electronic filing in accordance with the procedures established in MDL 2179, on this 1st day of April , 2013. /s/ Stephen J. Herman and James Parkerson Roy
37
Case 2:10-md-02179-CJB-SS Document 9087-1 Filed 04/02/13 Page 1 of 7
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
MDL NO. 2179

* * * * Damages * * * * * * * *
Economic and Property Medical Settlement
Settlement
Case 2:10-md-02179-CJB-SS Document 9087-1 Filed 04/02/13 Geographical Location Gulf Coast Areas
Page 2 of 7
Standard Approach
Causation Documentation Calculate Compensation Apply RTP (if applicable) Deduct Cash Credits (if applicable)
13
Zone Presumptions
Presumption Zone B
Presumption Zone A
Zone C
Zone D
Seafood Industry Primary
Gets Presumption Gets Presumption
Gets Presumption Gets Presumption
Gets Presumption Gets Presumption Required to meet Causation Nexus Required to meet Causation Nexus Required to meet Causation Nexus Seafood Presumption
Gets Presumption Required to meet Causation Nexus Required to meet Causation Nexus Required to meet Causation Nexus Required to meet Causation Nexus Proof
Secondary Tourism Industry Restaurants Other Industry Causation
Gets Presumption
Gets Presumption
Gets Presumption Gets Presumption All Presumption
Gets Presumption Required to meet Causation Nexus Seafood/Tourism Presumption
14
Summary of Revenue Pattern Requirements for Causation Tests

Zone A Zone B (Non-Tourism and Non-Seafood) Zone C (Non-Seafood) Zone D
Test
Down Up Down Up Down Up Down Up
V-Test Modified V-Test* Down Only test*
N/A
-8.5%
5%
-8.5%
5%
-15%
10%
N/A
-5%
5%
-5%
5%
-10%
7%
N/A
-8.50%
N/A
-8.50%
N/A
-15%
N/A
*= For the Modified V-Test and the Down Only Test, additional requirements apply, as described in Exhibits. 15
Business Economic Loss Framework

April 20, 2010
Benchmark Years
Compensation Period
May Jun Jul Aug Sep Oct Nov Dec
2007
2008
2009
2010
Benchmark Period same months claimant selected for compensation period averaged if use < 2009
Claimants Selects any 3 months or more consecutive
16
Excluded Industries And Entities

State Municipalities Opt Outs Court Employees BP (or other defendants) Employees Banking Industry Funds, Trusts and Other Financial Vehicles Defense Contractors and Their Sub-Contractors and Suppliers Gaming Industry Insurance Industry Oil & Gas Industry Real Estate Developers or Sellers BP Branded Fuel GCCF Fully Released Claims
39
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA
In re: Oil Spill by the Oil Rig Deepwater Horizon in the Gulf of Mexico, on April 20, 2010 This Document Relates to: Nos. 12-970 and 13-492
MDL No. 2179 SECTION: J JUDGE BARBIER MAGISTRATE SHUSHAN
DECLARATION OF STEPHEN J. HERMAN I, Stephen J. Herman, respectfully declare, under penalty of perjury, that the following is true and correct to the best of my knowledge, recollection, and belief: 1. I am licensed to practice law in the State of Louisiana, the United States District Court for the Eastern District of Louisiana, the U.S. Fifth Circuit Court of Appeals, and the U.S. Supreme Court. 2. James Parkerson Roy and I have been appointed by the Court to serve as Co-Lead Class Counsel for the Economic & Property Damages Settlement Class. 3. This Declaration is submitted in response to the Declaration of Keith Moscowitz, dated March 15, 2013 [Doc. 8910-13]. 4. Mr. Moskowitzs Declaration fails to account for the fact that the process generally described in Paragraphs 4-6 of the Moskowitz Declaration was typically followed where input from the Parties was sought by the Program to address a question raised by the Claims Administrator and/or one of the Program Vendors; by contrast, the notion that costs should be matched and/or that revenue should be smoothed originated from and was urged by BP.
Background 5. I hereby adopt and incorporate the statements in the Declaration of Stephen J. Herman, dated July 23, 2012 [Doc. 7104-5]. 6. Since approximately June of 2012, I, along with other Class Counsel, have participated in numerous in-person and e-mail communications with BP Counsel, the Claims Administrator, and other representatives of the Settlement Program and its Program Vendors regarding the interpretation, implementation and application of the Economic & Property Damages Settlement Agreement and the administration of the Court-Supervised Settlement Program. 7. In conjunction with this effort, a compendium generally described by Mr. Moskowitz in Paragraph 6 of his declaration has been created and maintained by the Program. Many of the topics relate to administrative or procedural issues or policies regarding the submission, processing and/or appeal of Class Members claims. Some of the topics relate to purely internal administrative issues and procedures for the Program Vendors to follow. Some of the topics relate to clarifications by the Seafood Neutral with respect to the interpretation or application of the Seafood Compensation Plan. Finally, there have been clarifications and/or interpretations of the substantive provisions of the Settlement Agreement, which include: a. Claims Administrator Interpretations. b. Clarifications or Interpretations Agreed to by the Parties. c. Court-Approved Interpretations. 1
While Mr. Moskowitzs Declaration refers to a total of approximately 340 issues, many of them, as noted, are purely for internal Program administrative purposes, and many of them overlap. I believe that the Program is currently in the process of attempting to harmonize related issues and revised or superseded policies so that they are current, accurate and complete. I understand that approximately 64 of these interpretations and/or policies have already been finalized and made available to Class Members on the Settlement Program Website, and that the remainder of the relevant compendium items will be made available once complete. Of course, many of these policies and/or interpretations were previously made available by the Program to Class Members, in the form of Policy Statements, Alerts, FAQs, Instructions, etc., as well as thru Class Counsel, and via individualized communications between the Program Vendors and Claimants (and/or the Claimants CPAs and/or attorneys).
1
8. Within this hierarchy, each type of decision is accorded different weight. A Claims Administrator Interpretation is binding on the Program Vendors, and is provided to the Settlement Program Appeal Panelists; however, either a Class Member or BP is free to argue to an Appeal Panelist or Panel that the Claims Administrators interpretation is inconsistent with the provisions or intent of the Settlement Agreement, and the Settlement Program Appeal Panelist or Panel is free to apply the Settlement Agreement differently with respect to that individual Claim. A Clarification or Interpretation Agreed to by the Parties is binding, not only on the Program Vendors, but also on the Settlement Program Appeal Panelists and Panels. Theoretically, the clarification or interpretation could be overruled by the Court, on discretionary review of a Settlement Program Appeal in which the Class Member argues that Class Counsels agreement does not accurately reflect the provisions or intent of the Settlement Agreement. Finally, a Court-Approved Interpretation is binding on the Program Vendors, the Claims Administrator, and the Settlement Program Appeal Panelists and Panels. 2 Events Leading up to Class Counsels Request for Formal Policy Statement 9. Despite the fact that BP had expressly agreed, not only in the Settlement Agreement itself, but also in direct response to Michael Juneaus inquiry of September 25, 2012, 3 that once a Class Member satisfied Causation, all losses set forth in the Compensation Framework would be deemed to have been caused by the Spill, without any inquiry into potential alternative causation, 4 (thereafter formalized in a Policy Statement of October 10, 2012), 5 BPs Counsel took the position in late November and/or early December of
Class Counsel understood, intended and agreed that the Courts interpretation would be final, pursuant to Section 4.3.4 of the Settlement Agreement. See also, Section 38.40 (which defines Court as the United States District Court for the Eastern District of Louisiana, Judge Carl Barbier, presiding, in In Re: Oil Spill by the Oil Rig Deepwater Horizon in the Gulf of Mexico, on April 20, 2010, MDL No. 2179). BP apparently takes the position that the Courts interpretation may be subject to further challenge or review.
3
See Michael Juneau E-Mail to the Parties (Sept. 25, 2012) [Doc. 8963-66]. See Letter from Mark Holstein to the Claims Administrator (Sept. 28, 2012) [Doc. 8963-67]. See Claims Administrators Announcement of Policy Decisions (Oct. 10, 2012) [Doc. 8963-71].
4 5
2012, in response to television announcements authored and delivered by the Claims Administrator in connection with the Supplemental Information Program, 6 that the submission of a Claim by someone who might have subjective doubts about whether the loss was caused by the Spill was somehow fraudulent even though the Claim satisfied the objective Causation Framework set forth in Exhibit 4B of the Settlement Agreement, to which BP agreed. 10. Around this same time, the Parties and the Claims Administrator appeared before the Court in connection with a dispute over the question of whether grants and other donations to non-profits should be considered revenue under the Settlement Agreement, pursuant to Section 4.3.4. 11. While in Court, Michael Juneau, on behalf of the Claims Administrator, raised the issue of alternative causation, as revealed through the discussions regarding approval of the Supplemental Information Program, and BP confirmed to the Court (and to the Claims Administrator as well as Class Counsel) that once a Class Member satisfied the Causation Framework, all losses set forth in the Compensation Framework would be deemed to have been caused by the Spill, without any inquiry into potential alternative causation. 7 12. Nevertheless, Counsel for BP were continuing to make these types of arguments, expressly and/or implicitly, in communications with the Settlement Program and within individual Settlement Program Appeals. 13. Among other things, Counsel for BP, as recounted in Paragraphs 7-9 of the Moskowitz Declaration, repeatedly attempted to question the Program Accountants about why they were not smoothing revenue and/or matching expenses and/or otherwise inquiring into potential alternative causation (and/or lack of Causation) culminating in the E-Mail
6 7
See Settlement Agreement, Section 4.4.15.

See E-Mail from Judge Barbier re Meeting Today re Non-Profits and SIP (Dec. 12, 2012) [Doc. 8913-
24].
from Dan Cantor to Michael Juneau re Accountant Questions dated December 11, 2012. 8 14. Most, if not all, of the compendium items referenced in Paragraph 6 of the Moskowitz Declaration involved issues for which the Settlement Program sought input from the Parties due to some question or confusion on the part of the Claims Administrator or Program Vendors. 15. In this case, by contrast, the Program appeared to be interpreting and applying the Settlement Agreement correctly. 16. Indeed, to Class Counsels knowledge, neither the Claims Administrator nor the Program Accountants had any questions or confusion about how to apply the Business Economic Loss Frameworks [Settlement Agreement Exhibits 4A-4C] in this regard. 17. Rather, BP appeared to be questioning, and implicitly attacking, the Program Accountants (correct) interpretation and application of the Settlement Agreement. 18. Class Counsel, therefore, submitted the Request for Policy Statement on December 16, 2012, 9 in order to prompt a Clarification or Interpretation Agreed to by the Parties, or, if necessary, a Court-Approved Interpretation, with the hope that it would prevent BP from filing what Class Counsel considered to be dilatory and largely frivolous appeals. (Or, at the very least, to prevent any Settlement Program Appeal Panelist or Panel from being persuaded by such baseless or disingenuous arguments by BP.) Consideration of BPs Position 19. Prior to the issuance of the Policy Statement by the Claims Administrator on January 15, 2013, BP was afforded the opportunity to submit a lengthy position paper, which was attached as Exhibit 2 to the Claims Administrators Referral of the Panel Issue to Judge
8 9
Doc. 8963-74.
Doc. 8963-48.

WALL'S GATOR FARM, LLC
Landowner Alliance River Properties LLC Barbara Collura Bertrand Foch & Frederick Schafer Borgnemouth Realty Co. Clyde Giordano Delacroix Dorothy Gonzales Molero Emile Meyers Eustin Becnel/Hayes Thompson Foster Dartus/Anthony Palazzo Frank Priola Gladys Ansardi Guy Collora Howard Hingle James Martin Jesse Camille LeBlance, III Ken Savastano Properties Kenneth Savastano Leonard Lauga Livaudais Co, LLC Millard Ciaccio Morgan City Land & Fur Co. LLC O S Livaudais Estate Peter Moss et al (Big Mar) Planche-Bopp Properties Raymond Lambert Robert Lobrano et al SGH Marshland Properties Shingle Point, LLC The Livaudais Co, LLC TOTAL Permitted 70 70 105 385 140 25,000 280 35 105 70 175 105 105 105 105 105 175 105 70 1,120 70 910 70 245 525 105 280 4,600 70 175 35,480 Actual Collected Egg Loss 70 15 42 385 63 17,314 280 16 53 26 79 4 105 15 45 51 76 40 30 1,120 18 368 70 245 525 48 134 3,222 70 175 24,704 Actual Hatch Rate Normal Hatch Rate 85% 85% 85% 85% 85% 85% 85% 85% 85% 85% 85% 85% 85% 85% 85% 85% 85% 85% 85% 85% 85% 85% 85% 85% 85% 85% 85% 85% 85% 85% Deviation from normal Hatch Rate -85.00% -9.00% -7.00% -85.00% -8.00% -18.00% -85.00% -11.00% -6.00% -5.00% -6.00% -10.00% -85.00% -8.00% -7.00% -7.00% -8.00% -7.00% -7.00% -85.00% -6.00% -8.00% -85.00% -85.00% -85.00% -8.00% -7.00% -7.00% -85.00% -85.00% Hatchling Loss 60 18 40 327 60 16,100 238 16 48 24 73 14 89 20 42 47 73 39 28 952 18 356 60 208 446 45 124 2,835 60 149 22,609 Mortality Rate 5% 5% 5% 5% 5% 5% 5% 5% 5% 5% 5% 5% 5% 5% 5% 5% 5% 5% 5% 5% 5% 5% 5% 5% 5% 5% 5% 5% 5% 5% Loss Adjusted for Mortality 57 17 38 311 57 15,295 226 15 46 23 69 13 85 19 40 45 69 37 27 904 17 338 57 198 424 43 118 2,693 57 141 Returns at 12% 7 2 5 39 7 1932 29 2 6 3 9 2 11 2 5 6 9 5 3 114 2 43 7 25 54 5 15 340 7 18 Saleable Gators (net of Returns) 49 15 33 272 50 13,363 198 13 40 20 61 11 74 17 35 39 60 32 23 790 15 296 49 173 370 38 103 2,353 49 123 Cost per Egg Cost to Raise per Gator $7.00 $7.00 $7.00 $7.00 $7.00 $16.00 $7.00 $7.00 $7.00 $7.00 $7.00 $7.00 $7.00 $7.00 $7.00 $7.00 $7.00 $7.00 $7.00 $7.00 $7.00 $7.00 $7.00 $7.00 $7.00 $7.00 $7.00 $7.00 $7.00 $7.00 $52.00 $52.00 $52.00 $52.00 $52.00 $52.00 $52.00 $52.00 $52.00 $52.00 $52.00 $52.00 $52.00 $52.00 $52.00 $52.00 $52.00 $52.00 $52.00 $52.00 $52.00 $52.00 $52.00 $52.00 $52.00 $52.00 $52.00 $52.00 $52.00 $52.00 Sale Price per cm $7.00 $7.00 $7.00 $7.00 $7.00 $7.00 $7.00 $7.00 $7.00 $7.00 $7.00 $7.00 $7.00 $7.00 $7.00 $7.00 $7.00 $7.00 $7.00 $7.00 $7.00 $7.00 $7.00 $7.00 $7.00 $7.00 $7.00 $7.00 $7.00 $7.00 Ave cm per Gator 27.00 27.00 27.00 27.00 27.00 27.00 27.00 27.00 27.00 27.00 27.00 27.00 27.00 27.00 27.00 27.00 27.00 27.00 27.00 27.00 27.00 27.00 27.00 27.00 27.00 27.00 27.00 27.00 27.00 27.00 Ave Sale Price per Gator $189.00 $189.00 $189.00 $189.00 $189.00 $189.00 $189.00 $189.00 $189.00 $189.00 $189.00 $189.00 $189.00 $189.00 $189.00 $189.00 $189.00 $189.00 $189.00 $189.00 $189.00 $189.00 $189.00 $189.00 $189.00 $189.00 $189.00 $189.00 $189.00 $189.00 Total Loss per Landowner $5,823.27 $1,732.30 $3,925.57 $32,027.96 $5,843.82 $1,430,840.77 $23,293.06 $1,535.58 $4,714.40 $2,378.24 $7,135.70 $1,321.25 $8,734.90 $1,952.51 $4,154.58 $4,612.61 $7,097.53 $3,772.89 $2,769.72 $93,172.24 $1,802.77 $34,857.38 $5,823.27 $20,381.43 $43,674.49 $4,439.38 $12,147.62 $277,477.11 $5,823.27 $14,558.16 $2,067,823.75
55 63 77 7,686 19 52 44 96 101 90 60 54 99 65 40 52 542
76% 78% 77% 67% 74% 79% 80% 79% 75% 77% 78% 78% 77% 78% 78% 79% 77%
57 146 1,378
77% 78% 78%
10,776
EXHIBIT A
! ! ! ! ! ! ! ! ! !
EXHIBIT A
! !
! !
Experience Great Cajun & Creole Food and Recipes with Chef John Folse & Co.
10/16/12 2:48 PM
CHEF JOHN D. FOLSE, CEC, AAC Chef John Folse, born in St. James Parish in 1946, learned early that the secrets of Cajun cooking lay in the unique ingredients of Louisianas swamp floor pantry. Folse seasoned these raw ingredients with his passion for Louisiana culture and cuisine, and from his cast iron pots emerged Chef John Folse & Company. When Folse opened Lafittes Landing Restaurant in 1978 in Donaldsonville, he set out to market his restaurant by taking a taste of Louisiana worldwide. He introduced Louisianas indigenous cuisine to Japan in 1985, Beijing in 1986 and Hong Kong and Paris in 1987. In 1988, Folse made international headlines with the opening of Lafittes Landing East in Moscow during the Presidential Summit between Ronald Reagan and Mikhail Gorbachev. In 1989, Folse was the first non-Italian chef to create the Vatican State Dinner in Rome. Promotional restaurants also included London in 1991 and 1993, Bogota in 1991, Taipei in 1992 and 1994 and Seoul in 1994. In 1988, the Sales and Marketing Executives of Greater Baton Rouge named Folse Marketer of the Year and the Louisiana Legislature gave him the title of "Louisianas Culinary Ambassador to the World. The international success of Folses cornerstone property, Lafittes Landing Restaurant, spawned the incorporation of several other Chef John Folse & Company properties. White Oak Plantation in 1986 established Folses catering and events management division. Chef John Folse & Company Publishing, since 1989, has produced eight cookbooks in his Cajun and Creole series, plus a novel, two childrens books and a religious memoir by other authors. A Taste of Louisiana is Folses international television series produced by Louisiana Public Broadcasting since 1990. Chef John Folse & Company Manufacturing, since 1991, is one of the few chef-owned food manufacturing companies in America producing custom-manufactured foods for the retail and food service industry. In January 2005 a new USDA manufacturing plant opened in Donaldsonville, and in 2007 growing demands pushed the plant to expand. In 2008, Folse cut the ribbon of his expanded 68,000 square-foot food manufacturing plant. The Chef John Folse Culinary Institute at Nicholls State University in Thibodaux, La., opened in October 1994 and is dedicated to the preservation of Louisiana's rich culinary and cultural heritage. In August 1996, Folse began
http://www.jfolse.com/mm_biography.htm Page 1 of 3

August 1996, Folse began broadcasting his radio cooking talk show, Stirrin It Up. In 2001, Stirrin It Up expanded to a television cooking segment during the 5 p.m. newscast on WAFB-TV Channel 9 in Baton Rouge, La. Exceptional Endings, the pastry division, was launched in 1996 to create specialty desserts, pastries and savories. In October 1998, a fire destroyed the 200-year-old Viala Plantation, which housed Lafittes Landing Restaurant, and in May 1999 Folse opened his former Donaldsonville home as Lafittes Landing Restaurant at Bittersweet Plantation offering fine dining and bed and breakfast accommodations. In the year 2000, Folse incorporated Digi-Tek Productions, a full service digital recording studio. Expanding on the catering services of White Oak Plantation, Chef John FOLSEvents Management & Catering fulfills the special events needs of clients both regionally and nationally. In 2002, Bittersweet Plantation Dairy opened, offering a full line of fresh and aged cheeses. Folse has received numerous national and international accolades. In 1987, the Louisiana Restaurant Association named him Louisiana Restaurateur of the Year. In 1989, Nations Restaurant News inducted Lafittes Landing Restaurant into its Fine Dining Hall of Fame. In 1990, the American Culinary Federation (ACF) named Folse the National Chef of the Year. In 1992, Johnson & Wales University in Providence, R.I., recognized Folse with an honorary doctor of Culinary Arts Degree, as did Baltimore International Culinary College in 1995. In 1994, he assumed the role as national president of the American Culinary Federation, the largest organization of professional chefs in America. In 1995, Folse was one of 50 people recognized in Nations Restaurant News Profiles of Power. In 1996, Lafittes Landing Restaurant received the Award of Excellence from Distinguished Restaurants of North America (DiRNA). Folse served two terms as DiRNA Chairman from 2000 to 2001, and he served on the National Dairy Council Chefs Advisory Panel. In 1998, Chef John Folse & Company Manufacturing received TGI Fridays Inc. Procurement Product Development Award for assisting in the development of Fridays Jack Daniels Glaze. In 1998, Food Arts magazine awarded Folse the Silver Spoon Award for his sterling performance and contributions to the food service industry. In 1999, the Research Chefs Association (RCA) named Chef John Folse & Company "Pioneers in Culinology" because of the efforts of Folse's culinary research team. In 2001, Folse was elected to RCAs Board of Directors. In November 1999, the Acadiana Chapter of the American Culinary Federation inducted Folse into the Louisiana Chef's Hall of Fame for his lifetime contributions to the promotion of Louisiana cuisine. Additionally, Folse received the Antonin Carme Medal in November 2000. Folse also served as president of RCA. In 2007, Folse served as the American Judge for the Bocuse dOr World Cuisine Contest in Lyon, France. In October 2008 Folse was awarded the Louisiana Governors Cultural Economic Development Arts Award and Southern Foodways Alliance Lifetime Achievement Award. Thirty years of culinary excellence later, Folse is still adding ingredients to the corporate gumbo he calls Chef John Folse & Company, which is as diverse as the Louisiana landscape, and he would not want it any other way.
10/16/12 2:48 PM
http://www.jfolse.com/mm_biography.htm
Page 2 of 3
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Return Home | Meet the Man | Find a Recipe | Contact
Copyright 2009 Chef John Folse & Company. 2517 South Philippe Ave. Gonzales, LA 70737 (225) 644-6000 FAX (225) 644-1295
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! ! ! ! ! ! ! ! ! !
EXHIBIT B
! !
! !
Chef%John%Folse%&%Company,%LLC% %
! ! Chef%Owned%&%Operated%USDA%Cook%&%Chill%Manufacturing%Plant%located%in% Donaldsonville,%LA%%% % Content!from!Chef!John!Folse!&!Company! (http://www.jfolse.com/newusda/index.htm)! ! At!Chef!John!Folse!&!Company,!we!are!committed!to!providing!the!exceptional! service!and!quality!products!that!our!distinguished!clientele!have!come!to!expect.! Let!us!expand!our!wealth!of!experience!into!a!successful!business!venture!with!you.! Where!success!meets,!great!relationships!grow.! ! The!food!manufacturing!and!sales!division!of!Chef!John!Folse!&!Company!was! created!in!1990!by!Chef!John!Folse!based!on!his!vision!of!a!changing!food!industry!in! ! 1!
America.!From!its!humble!beginnings,!the!manufacturing!division!has!grown!to! national!prominence!with!a!customer!base!extending!from!the!Gulf!Coast!to!the! Canadian!borders!and!from!the!West!Coast!to!the!Eastern!seaboard.!The! manufacturing!of!entres,!vegetables,!soups,!sauces!and!specialty!products!for! foodservice!distribution,!retail!sales!and!national!restaurant!chains!forms!the! foundation!of!our!organization.! ! Our!USDA!cook!and!chill!manufacturing!plant!in!Donaldsonville!is!capable!of! producing!150!tons!of!fullyVcooked!and!readyVtoVserve!products!weekly.!From!our! stateVofVtheVart!Chester!Jenson!kettles!to!our!Cryovac!OnVPack!2000!packaging! system,!our!plant!is!designed!to!exceed!USDA!standards.!Our!Quality!Assurance! Department!is!our!tool!to!ensure!this.! ! Plant%Floor% Our!USDA!manufacturing!facility!is!capable!of!producing!50!million!pounds!of!frozen! or!fresh,!fully!cooked!and!ready!to!serve!product!on!a!single!shift!per!year.!Our! packaging!capacity!ranges!from!cryovac!boilVinVtheVbag!to!55Vgallon!drums,!as!each! customer's!needs!are!different.!Our!minimum!batch!size!for!specialty!product!is! 1000!pounds,!or!62!(16Vpound)!cases.!! !
Chef%John%Folse%&%Company%Products:%
Food%Service%Line:% ! ! Chef!John!Folse!&!Company!Manufacturing!services!a!wide!variety!of!customers!in! the!foodservice!industry,!from!your!favorite!casino!buffet!to!the!restaurant!down! the!street,!you!will!find!Chef!John!Folse!&!Company!products!on!the!menu.!People! everywhere!are!enjoying!our!products:!residents!in!nursing!homes!and!employees! at!manufacturing!facilities,!hospitals!and!many!other!places!of!business.! ! The!diversity!of!customers!is!not!just!in!the!type!of!patron!but!also!in!the!areas! serviced.!You!can!find!Chef!John!Folse!&!Company!products!all!over!the!map!from! Las!Vegas!to!Kansas!City.!If!we!are!not!in!your!neighborhood!now,!we!will!be!soon.! !
Soups
1. Bourbon Street Seafood Gumbo (CJF item #3044311) Nothing says Louisiana better than a steaming bowl of seafood gumbo. Shrimp and crab are combined with the smoky flavored andouille sausage, onions, celery, bell pepper and garlic to finish this classic bayou dish. 2. Bourbon Street Seafood Gumbo Base - no protein (CJF item #3044339) Sought out by visitors from all over the world, gumbo remains the most popular dish in South Louisiana. Whether you add chicken, sausage or game, you'll find this base perfect for your special version.
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3. Acadiana-style Seafood Gumbo (CJF item #3044395) A South Louisiana favorite, crab, shrimp and okra are combined in a rich seafood broth thickened with a dark Cajun roux, the inclusion of the trinity (onions, celery and bell pepper) round out the flavors of this Cajun classic. 4. Seafood Bisque Base - no protein (CJF item #3044346) Nothing says Louisiana better than a steaming bowl of seafood gumbo. Shrimp and crab are combined with the smoky flavored andouille sausage, onions, celery, bell pepper and garlic to finish this classic bayou dish. 5. Plantation-style Chicken and Sausage Gumbo (CJF item #3044326) A classic dark brown roux simmering with onions, celery and bell pepper is combined with boneless chicken and andouille sausage to create this Louisiana favorite. 6. Louisiana Chicken and Sausage Gumbo (CJF item #3044396) Our newest version of this Creole Classic is spicy and smooth. It begins with a dark Cajun roux base. 7. Creole Corn and Shrimp Soup (CJF item #3044315) With a medley of shrimp and corn accented by a hint of tomatoes and a blend of herbs, it is no wonder that Corn & Shrimp Soup is as popular in Louisiana as Gumbo. 8. Crawfish, Corn and Potato Soup (CJF item #3044314) The main social event of Cajun Country, the crawfish boil, is captured in the combination of the three main ingredients of the boil simmered in crawfish stock and cream. When flavored with a hint of Zatarain's Liquid Crab Boil spice, it's as close as you'll get to Bayou Country. 9. "Olde" Tyme Baked Potato Soup (CJF item #3044331) Remember the aroma of hot baked potatoes fresh from the oven? This is the flavor we have recreated by combining potatoes, smoky bacon and sweet cream, just like in the "olde" days! 10. Creole Onion Soup (CJF item #3044347) Our Creole Onion Soup is made with simmering beef stock chock full of onions, garlic, red wine and herbs. When finished in your kitchen, top with toasted French bread and Parmesan cheese. 11. Tomato Bisque (CJF item #1044118) Tomato soup in its most refined form. Creamy and rich with creole seasonings to complement that luscious tomato flavor. Enjoy as is or add shrimpit is truly special either way.
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12. Sweet Corn and Crab Bisque (CJF item #3044379) Many said this dish was born in the cast iron pots of Louisiana. Recreating this magnificent soup is a Louisiana "Birth right." The marriage of rich crab stock, white crabmeat and sweet golden corn come together to create an explosion of flavor in the pot. You may have eaten corn and crab soup, but you havn't sampled any this good. 13. Sweet Corn, Crab and Shrimp Bisque (CJF item #3044341) A classic Louisiana style creamy bisque by birthright. This particular soup explodes with flavor when we add sweet golden corn with gulf crab and shrimp. You won't taste many this good. 14. Grilled Chicken Tortilla Soup (CJF item #3044495) We have combined this Tex-Mex recipe with Louisiana flavor. You'll feel as though you are on the border when this creation hits your taste buds. 15. Red Bean and Sausage Soup (CJF item # 3044409) 16. Broccoli, Cheese and Bacon Soup (CJF item #5044321) When the trinity of onions, celery and bell peppers is combined with broccoli florets, minced carrots and cheddar cheese, a soup unlike any other emerges from our black iron pots. 17. Bayou Garden Vegetable and Beef Soup (CJF item #3044325) This recreation of a Cajun favorite combines fresh sweet potatoes, squash, zucchini, carrots, broccoli, cauliflower, okra and red beans with tender sirloin strips and a rich beef stock to give this soup the perfect finish.
Sauces
18. Veal Demi-Glace (CJF item #3044440) A true fully prepared demi-glace? Yes!! This rich veal stock twice reduced becomes the mother sauce for most classical brown sauces. One taste and you'll know that this sauce is authentic. 19. Hollandaise (CJF item #3044369) Our version of the culinary classic is smooth, rich and creamy and resistant to separation under high heat. 20. Bechamel (CJF item #3044358) The richness and roundness of flavor in this product is a great starting point for any cream sauce. 21. Sicilian-style Marinara Sauce (CJF item #3044338) Unlike its sweet, smooth American cousin, this island-style marinara is ! 4!
chock-full of chunky Roma tomatoes with a slight touch of acidity just as the Sicilians love their spaghetti sauce. 22. Italian-style Marinara Sauce (CJF item #3044322) A robust and flavorful tomato sauce prepared with diced tomatoes and fresh herbs. 23. Alfredo Sauce (CJF item #3044332) What more can we say? This is the traditional sauce of Romecream lightly boiled with butter, cheese, egg yolk and herbs. Add a Bayou Country twist with a touch of diced tasso. 24. Acadiana Crawfish Sauce (CJF item #3044447) A magnificent combination of crab, shrimp and crawfish stock married with classical herbs and spices. We recommend this sauce as the perfect accompaniment under fish or chicken and should be considered the ideal pasta sauce when using vegetables and shellfish. 25. Creole-style Remoulade Sauce (CJF item #3044056) Our New Orleans style remoulade sauce is spicy mustard and mayonnaise based sauce, sweetened with a bit of ketchup, fresh herbs and seasoning. Remoulade sauce is delicious served as a dipping sauce with shrimp, crabs or served over salads. 26. New Orleans-style White Remoulade Sauce (CJF item #3044343) New Orleans has two classic rmoulades: the red, sweet tomato-based sauce and the white, spicy rmoulade featured at most great New Orleans eateries. The white rmoulade is flavored with Creole mustard and horseradish and is most often served with boiled seafood or Louisiana crab cakes. 27. New Orleans Creole Sauce (CJF item #3044352) A versatile and spicy tomato sauce made with brown roux, onions, celery, bell peppers, garlic, shrimp stock and seasonings. Adding shrimp or any seafood will round this dish out beautifully. 28. Southern-style Turkey Gravy (CJF Item #3044406) Classic giblet gravy flavored with slow roasted vegetables and aromatic spices. 29. Mushroom Gravy (CJF Item #3044424) A savory sauce of button mushrooms, enhanced with onions and garlic.
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Red Beans
30. French Market Red Beans (CJF item #3044319) Just enough andouille sausage is added to this Monday lunch favorite to give it flavor. We recommend serving a link of heavily smoked sausage on the side. 31. New Orleans-style Red Beans (CJF item #3044385) This version uses turkey sausage for its flavor and was created for our customers in need of pork-free items. 32. Louisiana Red Beans and Sausage (CJF item #3044432) Sliced smoked sausage has been added to this version. Just ladle it over steamed white rice for the perfect lunch entree.
Entres
33. Louisiana-style Crawfish Etouffee (CJF item #3044433) Crawfish (CJF item #3044323) Many etouffees with an origin from deep in the swamps of Louisiana start with a darker roux than the Creoles of New Orleans. This nutty-flavored concoction is what gives the Cajun etouffees, as this fantastic version with crawfish, their unique flavor you just don't find outside Louisiana. 34. Bayou Country Crawfish Etouffee (CJF item #3044394) A staple on the bayou country table. This Etouffee is seasoned with ripe tomatoes and spiced with parsley, thyme and bay leaves. 35. Bayou Country Shrimp Creole (CJF item #3044328) As common as Red Beans and Rice on Mondays, Shrimp Creole can be found on tables throughout Louisiana for Friday lunch or dinner. Our version combines sauted gulf shrimp with tomatoes, onions, celery, bell peppers and garlic to create this classic Creole dish. 36. Dressing MIx for Dirty Rice (CJF item #3044477) Rarely would a holiday table be set without this Louisiana staple. We prepare a slow-cooked dressing of beef, pork and chicken livers. To serve, simply heat the dressing mix and combine with steamed white rice, prepared separately, for a wonderful marriage of flavors that makes any day feel like a holiday. 37. Chicken Pot Pie Filling (CJF item #3044481) What could one do to enhance the flavor of this traditional family favorite? Well, first you add a rich chicken stock along with fresh sweet peas, potatoes and carrots. Then, you blend it with a butter roux and finish it with sweet whipping cream. Now, thats an improvement. ! 6!
38. River Road Shrimp Stew (CJF item #5044313) Rarely can a week go by in South Louisiana where you cannot find shrimp stew in someone's pot on the Mississippi River Road. You will find no potatoes or carrots in the stews of the southern parishes. We begin with a traditional dark brown roux and end with a unique flavor that you won't soon forget. 39. Fiesta Chili with Beans (CJF item #5044377)
Jambalaya
40. Jambalaya or Pastalaya Base with Tasso & Andouille (CJF item #3044324) Creole Style Rice Base (red) with Tasso and Andouille Jambalaya has become the best-known rice dish in America. This Cajun classic combines tasso, andouille and chicken into a tasty one pot meal as the Cajuns did or as an authentic side dish like the Creoles. Weve added a recipe for using your favorite pasta in place of rice for another unique and interesting option. 41. World Champion Jambalaya Base (CJF item #30445373) 42. Jambalya Base with Chicken and Smoked Sausage (CJF item #3044388) Cajun Style Rice Base (brown) with Chicken and Smoked Sausage Jambalaya has become the best-known rice dish in America. This Cajun classic combines chicken and smoked sausage into a tasty one pot meal as the Cajuns did or as an authentic side dish like the Creoles. With our version, simply fold in cooked rice and enjoy.
Vegetables
43. Corn Maque Choux (CJF item #0044052) Exactly how the Indian word for corn, Maque, and the French word for cabbage, Choux, became the name of this corn and tomato dish is a mystery to us in Cajun Country. The early explorers found this interesting combination of corn and tomatoes strange but delicious. Today, it is one of Louisiana's favorite vegetable dishes. 44. Sweet Potato Souffle (CJF Item #3044001) Luxuriously smooth and rich pure of sweet potatoes with a touch of cinnamon and other spices. 45. Okra and Tomatoes (CJF Item #3044370) Tender cuts of okra slowly simmered in a Creole-style sauce of tomatoes and aromatic vegetables.
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46. Carrot Souffle (CJF Item #3044356) A silky smooth puree of carrots sweetened with vanilla. This airy mixture bakes to a beautiful golden brown and is sure to please any palate.
Rouxs
47. Cajun Dark Brown Roux (CJF item #400361) Classic Cajun dark brown roux with onions, celery and bell peppers. Perfect for gumbos, stews, fricassees and any dish requiring a dark roux. Packed 50 lbs. 48. Creole Butter Roux (CJF item #400371) Slow cooked and perfect for all light roux dishes. Packed 50 lbs. 49. Blonde Roux (CJF item #400351) Our lightest roux, the blond roux is perfectly blended, but never allowed to brown. Packed 50 lbs.
Miscellaneous
50. Bourbon Whiskey Sauce (CJF item #3044006) 51. Spinach and Artichoke Dip (CJF item #3044427) This classic marriage of two vegetables was first seen in New Orleans in the early 1800s. Our rich dip is further enhanced with Pecorino Romano, Mozzarella and Parmesan cheeses. Serve it hot as a dip or thin it with stock and cream for a beautifully flavored impromptu soup. %
Seafood Products for Sale Through Online Company Store:

1. Acadiana Seafood Gumbo 64 oz. Bag: This product is packaged in a cryovac boiling bag, 16 servings from freezer to table in 15 minutes. Code: 3000 Price: $24.99 Shipping Weight: 8 2. Acadiana Seafood Gumbo 28 oz. Tub: Nothing says Louisiana better than a steaming bowl of seafood gumbo. Shrimp and crab are combined with smoked andouille sausage, onions, celery, bell pepper and garlic to finish this classic bayou dish. This product is packaged in a cryovac boiling bag,7 servings from freezer to table in 15 minutes. Code: 3001 Price: $16.99 Shipping Weight: 5.00 ! 8!
3. Creole Corn & Shrimp Soup 64 oz. Bag: With a medley of shrimp and corn accented by a hint of tomatoes and a blend of herbs, it is no wonder that corn & shrimp soup is as popular in Louisiana as Gumbo. This product is packaged in a cryovac boiling bag, from freezer to table in 15 minutes. Code 3002 Price $24.99 Shipping Weight 8 4. Creole Corn & Shrimp Soup 28 oz. Tub: With a medley of shrimp and corn accented by a hint of tomatoes and a blend of herbs, it is no wonder that corn & shrimp soup is as popular in Louisiana as Gumbo. This product is packaged in a cryovac boiling bag, 7 servings from freezer to table in 15 minutes. Code 3003 Price $16.99 Shipping Weight 5 5. Crawfish, Corn & Potato Soup 64 oz. Bag: The main social event of Cajun Country, the crawfish boil, is captured in the combination of the three main ingredients of the boil simmered in crawfish stock and cream. When flavored with a hint of Zatarains Liquid Crab Boil spice, it's as close as you'll get to Bayou Country. This product is packaged in a cryovac boiling bag, from freezer to table in 15 minutes. Code 3004 Price $26.99 Shipping Weight 8 6. Crawfish, Corn & Potato Soup 64 oz. Bag: The main social event of Cajun Country, the crawfish boil, is captured in the combination of the three main ingredients of the boil simmered in crawfish stock and cream. When flavored with a hint of Zatarains Liquid Crab Boil spice, it's as close as you'll get to Bayou Country. This product is packaged in a cryovac boiling bag, from freezer to table in 15 minutes. Code 3004 Price $26.99 Shipping Weight 8 7. Crawfish, Corn & Potato Soup 28 oz. Tub: The main social event of Cajun Country, the crawfish boil, is captured in the combination of the three main ingredients of the boil simmered in crawfish stock and cream. When flavored with a hint of Zatarains Liquid Crab Boil spice, it's as close as you'll get to Bayou Country. This product is packaged in a cryovac boiling bag, from freezer to table in 15 minutes. Code 3005
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Price $16.99 Shipping Weight 5 8. Sweet Corn & Crab Bisque 28 oz. tub: Many said this dish was born in the cast iron pots of Louisiana. Recreating this magnificent soup is a Louisiana "birthright." The marriage of rich crab stock, white crabmeat and sweet golden corn come together to create an explosion of flavor in the pot. You may have eaten corn and crab soup, but you haven't sampled any this good. Code 3008 Price $16.99 Shipping Weight 5 9. Sweet Corn & Crab Bisque 64 oz. Bag: Many said this dish was born in the cast iron pots of Louisiana. Recreating this magnificent soup is a Louisiana "birthright." The marriage of rich crab stock, white crabmeat and sweet golden corn come together to create an explosion of flavor in the pot. You may have eaten corn and crab soup, but you haven't sampled any this good. Code 3009 Price $26.99 Shipping Weight 8 10. Louisiana Style Crawfish Etouffe 28 oz. Tub: any etouffes with an origin from deep in the swamps of Louisiana start with a darker roux than the Creoles of New Orleans. This nutty flavored concoction is what gives the Cajun etouffes, like this fantastic version with crawfish, its unique flavor you just don't find outside Louisiana. This product is packaged in a cryovac boiling bag, from freezer to table in 15 minutes. Code 4001 Price $16.99 Shipping Weight 5 11. Louisiana Style Crawfish Etouffe 64 oz. Bag: any etouffes with an origin from deep in the swamps of Louisiana start with a darker roux than the Creoles of New Orleans. This nutty flavored concoction is what gives the Cajun etouffes, like this fantastic version with crawfish, its unique flavor you just don't find outside Louisiana. This product is packaged in a cryovac boiling bag, from freezer to table in 15 minutes. Code 4000 Price $26.99 Shipping Weight 8
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12. Louisiana Style Crawfish Etouffe 28 oz. Tub Many etouffes with an origin from deep in the swamps of Louisiana start with a darker roux than the Creoles of New Orleans. This nutty flavored concoction is what gives the Cajun etouffes, like this fantastic version with crawfish, its unique flavor you just don't find outside Louisiana. This product is packaged in a cryovac boiling bag, from freezer to table in 15 minutes. Code: 4001 Price: $16.99 Shipping Weight: 5.00 13. French Market Red Beans 64 oz. Bag In Louisiana, red beans, rice and sausage are as common on Monday as the New Orleans Jazz Brunch is on Sunday. Our red beans are simmered with onions, celery, bell peppers, garlic and diced andouille for the perfect smoked flavor. We recommend serving a link of heavy smoked sausage on the side. This product is packaged in a cryovac boiling bag, from freezer to table in 15 minutes. Code: 4004 Price: $24.99 Shipping Weight: 8.00 14. New Orleans Red Beans with Smoked Sausage 28 oz. Tub Our red beans are simmered with onions, celery, bell peppers, garlic and sliced smoked sausage for the perfect smoked flavor. Just ladle it over steamed white rice for the perfect lunch entre. This product is packaged in a cryovac boiling bag, from freezer to table in 15 minutes. Code: 4005 Price: $16.99 Shipping Weight: 5.00 15. Creole Jambalaya Mix 64 oz. Bag Jambalaya has become the best known rice dish in America. This classic combines tasso, andouille and chicken into a tasty "one pot meal" as the Cajuns did or as an authentic side dish like the Creoles. This Creole style jambalaya is characterized by a smooth tomato base. All you need to do is add two cups of uncooked rice or three cups of uncooked pasta to create a fabulous meal. Code: 4006 Price: $24.99 Shipping Weight: 8.00
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Retail Sales Product List (sold to grocery stores, etc): Chef John Folse & Company Manufacturing began producing retail products in 1994 and selling labeled 64-ounce Cryovac boiling bags. Due to the continued growth of retail sales, Chef John Folse created a new package in 1999. The boiling bag continues to sell well in the southern region, but the new 28-ounce tub can be purchased at major grocery chains in Missouri, Oklahoma, Arkansas, Tennessee, Kansas, Texas, Mississippi, Alabama, Georgia, Florida, South Carolina, and of course, Louisiana. Our products can also be found in your favorite grocer's deli department served as part of their lunch or dinner specials or also as part of their home meal replacement program. !
Retail Tubs
1. NEW! Crawfish Bisque - seasonal (6, 22 oz) Many trace the origin of this dish to Nantua, France, where crawfish or lobster meat was pured into quenelles, then cooked in a rich, shellfish-based cream or Nantua sauce. Here in Louisiana, crawfish bisque is a Lenten tradition often found on Good Friday and Easter Sunday tables. Cajun families gather the week before Easter to boil the crawfish, grind the tail meat with seasonings then stuff the mixture into the shells. These stuffed heads are then simmered in a rich, roux-based crawfish sauce. 2. Creole Corn & Shrimp (6, 28 oz): With a medley of shrimp and corn accented by a hint of tomatoes and a blend of herbs, it is no wonder that Corn & Shrimp Soup is as popular in Louisiana as Gumbo. 3. Acadiana Seafood Gumbo (6, 28 oz) A South Louisiana favorite, crab, shrimp and okra are combined in a rich seafood broth thickened with a dark Cajun roux, the inclusion of the trinity (onions, celery and bell pepper) round out the flavors of this Cajun classic. 4. Crawfish, Corn & Potato Soup (6, 28 oz) The main social event of Cajun Country, the crawfish boil, is captured in the combination of the three main ingredients of the boil simmered in crawfish stock and cream. When flavored with a hint of Zatarain's Liquid Crab Boil spice, it's as close as you'll get to Bayou Country. 5. Louisiana Style Crawfish Etouffee (6, 28 oz) Many etouffees with an origin from deep in the swamps of Louisiana start with a darker roux than the Creoles of New Orleans. This nutty-flavored concoction is what gives the Cajun etouffees, as this fantastic version with crawfish, their unique flavor you just don't find outside Louisiana.
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6. Sweet Corn & Crab Bisque (6, 28 oz) A classic Louisiana style creamy bisque by birthright. This particular soup explodes with flavor when we add sweet golden corn with gulf crab and shrimp. You won't taste many this good.
Retail Soups
7. Bourbon Street Seafood Gumbo (4, 4 lb boiling bags) Nothing says Louisiana better than a steaming bowl of seafood gumbo. Shrimp and crab are combined with the smoky flavored andouille sausage, onions, celery, bell pepper and garlic to finish this classic bayou dish. 8. Acadiana-style Seafood Gumbo (4, 4 lb boiling bags) A South Louisiana favorite, crab, shrimp and okra are combined in a rich seafood broth thickened with a dark Cajun roux, the inclusion of the trinity (onions, celery and bell pepper) round out the flavors of this Cajun classic. 9. Plantation-style Chicken and Sausage Gumbo (4, 4 lb boiling bags) A classic dark brown roux simmering with onions, celery and bell pepper is combined with boneless chicken and andouille sausage to create this Louisiana favorite. 10. Louisiana Chicken and Sausage Gumbo (4, 4 lb boiling bags) Our newest version of this Creole Classic is spicy and smooth. 11. Creole Corn and Shrimp Soup (4, 4 lb boiling bags) With a medley of shrimp and corn accented by a hint of tomatoes and a blend of herbs, it is no wonder that Corn & Shrimp Soup is as popular in Louisiana as Gumbo. 12. "Olde" Tyme Baked Potato Soup (4, 4 lb boiling bags) Remember the aroma of hot baked potatoes fresh from the oven? This is the flavor we have recreated by combining potatoes, smoky bacon and sweet cream, just like in the "olde" days! 13. Sweet Corn and Crab Bisque (4, 4 lb boiling bags) Many said this dish was born in the cast iron pots of Louisiana. Recreating this magnificent soup is a Louisiana "Birth right." The marriage of rich crab stock, white crabmeat and sweet golden corn come together to create an explosion of flavor in the pot. You may have eaten corn and crab soup, but you havn't sampled any this good. 14. Broccoli, Cheese and Bacon Soup (4, 4 lb boiling bags) When the trinity of onions, celery and bell peppers is combined with broccoli ! 13!
florets, minced carrots and cheddar cheese, a soup unlike any other emerges from our black iron pots. 15. Crawfish, Corn and Potato Soup (4, 4 lb boiling bags) The main social event of Cajun Country, the crawfish boil, is captured in the combination of the three main ingredients of the boil simmered in crawfish stock and cream. When flavored with a hint of Zatarain's Liquid Crab Boil spice, it's as close as you'll get to Bayou Country.
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EXHIBIT C
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10/12/12 2:15 PM
Chefs: Real gumbo heads to England
Show caption
Advocate staff photo by ADAM LAUChefs John Folse and Calvin Coleman, from left, add alligator sausage to an Olympic-size batch of gumbo at the Chef John Folse & Co. manufacturing plant outside Donaldsonville on July 17. The two will be heading to London as part of BP's "Spirit of the Gulf" program to feed Team USA, families, and visitors at the 2012 Summer Olympics.
BY BETH COLVIN Assistant Food editor Chef John Folse is among a cadre of Gulf Coast chefs who will journey to the Olympics as part of BPs Spirit of the Gulf series of events for Team USA. The group, including Folse and Galatoires Michael Sichel from Louisiana, chefs Chris Sherrill and Alec Naman from Alabama, Mississippi chefs Chris Poplin and Calvin Coleman, and chef Paul Stellato of Florida, will prepare fresh seafood dishes for U.S. Olympians, their families and visitors.
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Case 2:10-md-02179-CJB-SS Document 9087-6 Filed 04/02/13 Page 27 of 35 We got some real gumbo, Folse said. Theyre still trying to figure it out over there. Were gonna bring them a taste. Folse and Coleman, who operates Naomis Catering in Biloxi, Miss., whipped up a whopping batch of alligator sausage and seafood gumbo July 17. The gumbo, along with the other chefs recipes, was prepared in Folses Donaldsonville manufacturing plant, chilled to minus 40, then shipped to London via UPS.
10/12/12 2:15 PM
Youre going to feed 1,000 athletes a day, Folse said, but probably after they compete. All the chefs have great catering experience and are used to volume feeding. But we dont want to find ourselves chopping onions. Folse called on his companys experience catering international events to pull off a fais do do of Olympic proportions. The recipes had to be tweaked to comply with USDA and U.K. food laws. For instance, Colemans gumbo couldnt contain the oysters he originally planned and his sausage had to be special ordered to omit processed pork. The reputation of John Folse had a lot to do with this, Coleman said. One mistake and we got 30 pounds of gumbo sitting on a dock. Folse said the logisitics of getting that much Gulf seafood to London took a lot of skill and a lot of trust. We all know what we want. The chefs put a lot of trust in us here, Folse said. Its authentically produced as the chef would have it done. Coleman couldnt stop grinning once all 160 pounds of his gumbo, prepared using his grandmothers recipe, was done and out of its enormous kettle. This is the same way I make a gallon, he said as the vat of steaming gumbo was weighed and wheeled off for packaging. Its perfect. Once packaged, it was put into color-coded boxes and flash frozen for shipping. The frozen boxes will then go across the pond, where they will be met by Mosimanns, headed up by Sir Anton Mosimann.
Whats on Lolos plate?

Veteran Olympian and former LSU hurdler Lolo Jones is familiar with eating Olympicstyle. Its kind of like eating in a college cafeteria, just exponentially huge, she said of noshing in the Olympic Village. Instead of different fraternities or whatever, you have
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Case 2:10-md-02179-CJB-SS Document 9087-6 Filed 04/02/13 Page 28 of 35 athletes from different countries speaking different languages. And theres always at least one familiar face. Just in case theres nothing youre familiar with, everybody is familiar with McDonalds, she said.
10/12/12 2:15 PM
While British food may get a bum rap, Jones says theres one thing they do well: sugar. They have some of the most amazing chocolate cake, its weird. At the meets Ive been there for, they always have chocolate cake, she said. The Brits love their sweets. They absolutely love their sugar stuff. So its a good place to end a race because you can just indulge in everything tea, biscuits and just amp up on the sugar. Lets hope she ends her races in gold. Advocate staff writer Sheldon Mickles contributed to this report.
Copyright 2011, Capital City Press LLC 7290 Bluebonnet Blvd., Baton Rouge, LA 70810 All Rights Reserved
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EXHIBIT D
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Case Case 2:10-md-02179-CJB-SS 2:10-md-02179-CJB-SS Document Document 9087-6 6430-7 Filed Filed 04/02/13 05/03/12 Page Page 30 1 of 35 6
EXHIBIT 3
ATTACHMENT A - SEAFOOD DISTRIBUTION CHAIN DEFINITIONS Seafood shall be defined as fish and shellfish, including shrimp, oysters, crab, and finfish, caught in the Specified Waters of the Gulf of Mexico. Seafood shall exclude menhaden. This document shall establish Seafood distribution chain definitions, as set forth below: 1. Commercial Fishermen, Seafood Crew, Oyster Leaseholders and Seafood Vessel Owners Economic loss claims by Commercial Fishermen, Seafood Crew, Oyster Leaseholders and Seafood Vessel Owners shall be governed by the Seafood Program. Definitions for Commercial Fisherman, Seafood Crew, Oyster Leaseholder and Seafood Vessel Owner are set forth below: a. Commercial Fisherman shall be defined as a Natural Person or entity that holds a commercial fishing license issued by the United States and/or the State(s) of Alabama, Florida, Louisiana, Mississippi and/or Texas and derives income from catching and selling Seafood that he caught. The following additional definitions are relevant with regard to the Commercial Fisherman definition: i. Shrimp Fisherman shall be defined as a Commercial Fisherman that catches shrimp. ii. Oyster Harvester shall be defined as a Commercial Fisherman that harvests oysters. iii. Crab Fisherman shall be defined as a Commercial Fisherman that catches crab. iv. Finfish Fisherman shall be defined as a Commercial Fisherman that catches finfish. b. Seafood Crew shall be defined as the Seafood Boat Captain, Seafood First Mate, Seafood Second Mate, Seafood Boatswain, Seafood Deckhand, working for a Commercial Fisherman. i. Seafood Boat Captain shall be defined as a Natural Person who owns or operates a Commercial Fishing vessel. In addition, the Seafood Boat Captain may plan and oversee the fishing operation, the fish to be sought, the location of the best fishing grounds, the method of capture, the duration of the trip, and the sale of the catch. A person with the job of skipper will be considered to satisfy this definition. ii. Seafood First Mate shall be defined as a Natural Person who assists a Seafood Boat Captain and assumes control of the Commercial Fishing vessel when the Seafood Boat Captain is off duty, and who assists in directing the fishing operations and sailing responsibilities of the Seafood Deckhands, including the operation, maintenance, and repair of the vessel and the gathering, preservation, stowing, and unloading of the catch. iii. Seafood Second Mate shall be defined as a Natural Person who assists in performing the duties of a Seafood First Mate.
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iv. Seafood Boatswain shall be defined as a Natural Person who is a highly skilled Seafood Deckhand with supervisory responsibilities on a Commercial Fishing vessel, and who directs the Seafood Deckhands as they carry out sailing and fishing operations. v. Seafood Deckhand shall be defined as a Natural Person who provides services on marine vessels (not personally owned or leased) to any type of Commercial Fisherman, including, but not limited to, the following: 1. 2. 3. 4. 5. 6. 7. c. Operating fishing gear; Letting out and pulling in nets and lines; Extracting the catch; Washing, salting, icing and stowing the catch; Ensuring the decks are clear and clean at all times; Loading equipment and supplies prior to departure; and/or Unloading the catch.
An Oyster Leaseholder shall be defined as a Natural Person or entity that is a lessee holding one or more private oyster leases.
d. Seafood Vessel Owner shall be defined as a Natural Person or entity that owns a vessel and earns income from leasing or renting that vessel to a Commercial Fisherman and/or Oyster Leaseholder. A Seafood Vessel Owner may also be a Commercial Fisherman and/or an Oyster Leaseholder. 2. Primary Seafood Industry The Primary Seafood Industry shall be comprised of entities and Natural Persons that satisfy the definitions of Landing Site, Commercial Wholesale or Retail Dealer A, and Primary Seafood Processor, and Natural Persons employed by a Landing Site, Commercial Wholesale or Retail Dealer A, or Primary Seafood Processor, including Seafood Dockside Workers. Economic loss claims by entities and Natural Persons claiming losses related to business income required to be reported on Internal Revenue Service Form 1040 Schedules C, E or F, and that satisfy the Primary Seafood Industry definition above shall be compensated pursuant to the Compensation Framework for Business Economic Loss Claims. Economic loss claims by Individuals satisfying the Primary Seafood Industry definition above shall be compensated pursuant to the Framework for Individual Economic Loss Claims. Definitions of Landing Site, Commercial Wholesale or Retail Dealer A, Primary Seafood Processor, and Seafood Dockside Worker are set forth below: a. Landing Site shall be defined as a business at which boats first land their catch, including facilities for unloading and handling Seafood. A landing site may also include the provision of ice, fresh water fuel and boat repair or service in connection with the landing of Seafood. The following additional definition is relevant with regard to Landing Site: i. Seafood Dockside Worker shall be a Natural Person performing services for a Landing
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Site. b. Commercial Wholesale or Retail Dealer A shall be defined as an entity or Natural Person that holds a commercial wholesale or retail dealer license issued by the State(s) of Alabama, Florida, Louisiana, Mississippi and/or Texas for which 75% or more of the 2009 cost or weight in pounds of the product it purchases constitutes Seafood purchased directly from Commercial Fisherman or Landing Site and re-sells to Primary Seafood Processors, Seafood Distributors, Seafood Wholesalers and Seafood Retailers. c. Primary Seafood Processor shall be defined as an entity or Natural Person that receives and prepares Seafood purchased from a Commercial Fisherman, Landing Site, or Commercial Wholesale or Retail Dealer including, but not limited to, cleaning, cooking, canning, smoking, salting, drying or freezing, grading by size, packing storing Seafood for shipment.
3. Secondary Seafood Industry The Secondary Seafood Industry shall be comprised of entities that satisfy the definitions of Commercial Wholesale or Retail Dealer B, Secondary Seafood Processor, Seafood Wholesaler or Distributor, and Seafood Retailer, and Natural Persons employed by a Commercial Wholesale or Retail Dealer B, Secondary Seafood Processor, Seafood Wholesaler or Distributor, or Seafood Retailer. Economic loss claims by entities and Natural Persons claiming losses related to business income required to be reported on Internal Revenue Service Form 1040 Schedules C, E or F, and that satisfy the Secondary Seafood Industry definition above shall be compensated pursuant to the Compensation Framework for Business Economic Loss Claims. Economic loss claims by Individuals satisfying the Secondary Seafood Industry definition above shall be compensated pursuant to the Framework for Individual Economic Loss Claims. Definitions of Commercial Wholesale or Retail Dealer B, Secondary Seafood Processor, Seafood Wholesaler or Distributor, and Seafood Retailer are set forth below: a. Commercial Wholesale or Retail Dealer B shall be defined as an entity or Natural Person that holds a commercial wholesale or retail dealer license issued by the State(s) of Alabama, Florida, Louisiana, Mississippi and/or Texas for which less than 75% of the cost or weight in pounds of the product it purchases constitutes Seafood purchased directly from a Commercial Fisherman or Landing Site, and re-sells to Primary Seafood Processors, Seafood Distributors, Seafood Wholesalers and Seafood Retailers. b. Secondary Seafood Processor shall be defined as an entity or Natural Person that purchases Seafood from a Primary Seafood Processor in order to add further value including, but not limited to, cleaning, cooking, canning, smoking, salting, drying or freezing, grading by size packing and storing Seafood for shipment. c. Seafood Wholesaler or Distributor shall be defined as an entity or Natural Person that purchases Seafood in bulk quantities and sells to retailers such as restaurants, fish shop and supermarkets.
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d. Seafood Retailer shall be defined as an entity that is an end user of Seafood such as a restaurant, fish market or super market for which 25% or more of total food costs for 2009 constitute Seafood.
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Case 2:10-md-02179-CJB-SS Document 9087 Filed 04/02/13 Page 1 of 37

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

MDL No. 2179 SECTION: J JUDGE BARBIER MAGISTRATE SHUSHAN

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TABLE OF CONTENTS Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 2 4 4 5 7 7 9 11 14 16 16

Overview and Summary of the Argument

BPs Allegations of Fictitious Losses are Baseless and Self-Serving

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BP Fails to Meet the Requirements For a Preliminary Injunction

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OVERVIEW AND SUMMARY OF THE ARGUMENT

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Rec. Doc. 8963-31.

See March 5, 2013 Order [Rec. Doc. 8812], at 1 n.1. 8

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As a practical matter, however, this is not really a Motion for

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Rec. Doc. 8963-56. Rec. Doc. 8963-56. 24

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equivalent; pianists of comparable ability.

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ECONOMIC & PROPERTY DAMAGES CLASS COUNSEL

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MDL NO. 2179

Economic and Property Medical Settlement

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Seafood Industry Primary

Gets Presumption Gets Presumption

Gets Presumption Gets Presumption

Secondary Tourism Industry Restaurants Other Industry Causation

Gets Presumption Gets Presumption All Presumption

Gets Presumption Required to meet Causation Nexus Seafood/Tourism Presumption

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Summary of Revenue Pattern Requirements for Causation Tests

V-Test Modified V-Test* Down Only test*