BP Oil Spill: BP's Motion For Restitution and Injunctive Relief

IN THE UNITED STATES DISTRICT COURT
FOR THE 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 all actions.

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MDL NO. 2179

SECTION J

HONORABLE CARL J. BARBIER

MAGISTRATE JUDGE SHUSHAN

BPS MOTION FOR
RESTITUTION AND INJUNCTIVE RELIEF

Defendants BP Exploration & Production, Inc. and BP America Production Company
(collectively, BP) respectfully move the Court for restitution and injunctive relief.
First, BP moves for an order declaring that BP is entitled to restitution, plus interest, from
(i) those claimants who have been overpaid as a result of application of the erroneous matching
policy in the full amount of the overpayment plus interest and (ii) professionals (lawyers,
accountants, and others) who have been paid a proportional amount of any overpayments, plus
interest. In support of that order, BP requests that the Court order the recalculation of
previously-paid awards to claimants that were appealed by BP on matching grounds applying the
now-approved Policy 495 granting declaratory relief.
Second, BP seeks an injunction preventing the claimants identified in Exhibit B to the
Declaration of Brian Gaspardo from dissipating the portions of their awards identified as
possible overpayments in Exhibit B pending the recalculation of their compensation amounts.
The grounds supporting these requests are set forth in the Memorandum filed herewith in
support of this motion.
Case 2:10-md-02179-CJB-SS Document 13073 Filed 06/27/14 Page 1 of 3

55654365
Jun 27 2014
12:32PM

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June 27, 2014

Mark Holstein
BP AMERICA INC.
501 Westlake Park Boulevard
Houston, TX 77079
Telephone: (281) 366-2000
Telefax: (312) 862-2200
Respectfully submitted,

/s/ Kevin M. Downey
Kevin M. Downey
F. Lane Heard III
WILLIAMS & CONNOLLY LLP
725 Twelfth Street, N.W.
Washington, DC 20005
Telephone: (202) 434-5000
Telefax: (202) 434-5029

Daniel A. Cantor
Andrew T. Karron
ARNOLD & PORTER LLP
555 Twelfth Street, NW
Telephone: (202) 942-5000
Telefax: (202) 942-5999

Robert C. Mike Brock
COVINGTON & BURLING LLP
1201 Pennsylvania Avenue, NW
Telephone: (202) 662-5985
Telefax: (202) 662-6291

Jeffrey Lennard
Keith Moskowitz
DENTONS US LLP
233 South Wacker Drive
Suite 7800
Chicago, IL 60606
Telephone: (312) 876-8000
Telefax: (312) 876-7934

OF COUNSEL
/s/ Don K. Haycraft
S. Gene Fendler (Bar #05510)
Don K. Haycraft (Bar #14361)
R. Keith Jarrett (Bar #16984)
LISKOW & LEWIS
701 Poydras Street, Suite 5000
New Orleans, Louisiana 70139
Telephone: (504) 581-7979
Telefax: (504) 556-4108

Richard C. Godfrey, P.C.
Wendy L. Bloom
KIRKLAND & ELLIS LLP
300 North LaSalle Street
Chicago, IL 60654
Telephone: (312) 862-2000
Telefax: (312) 862-2200

Jeffrey Bossert Clark
Dominic E. Draye
655 Fifteenth Street, N.W.
Washington, D.C. 20005
Telephone: (202) 879-5000
Telefax: (202) 879-5200

ATTORNEYS FOR BP EXPLORATION & PRODUCTION INC.
AND BP AMERICA PRODUCTION COMPANY

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CERTIFICATE OF SERVICE
I hereby certify that the above and foregoing pleading 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 27th day of June, 2014.

/s/ Don. K. Haycraft
Don K. Haycraft


In Re: Oil Spill by the Oil Rig Deepwater
Horizon in the Gulf of Mexico, on
April 20, 2010


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MDL NO. 2179

SECTION J



BPS MEMORANDUM IN SUPPORT OF
MOTION FOR RESTITUTION AND INJUNCTIVE RELIEF

COUNSEL FOR SUBMITTING PARTIES ARE LISTED AT END OF MEMORANDUM

Case 2:10-md-02179-CJB-SS Document 13073-1 Filed 06/27/14 Page 1 of 25

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TABLE OF CONTENTS
INTRODUCTION ...........................................................................................................................1
FACTUAL AND PROCEDURAL BACKGROUND.....................................................................2
ARGUMENT ...................................................................................................................................5
I. BP IS ENTITLED TO RESTITUTION ..............................................................................6
A. Equity Requires Recalculation and Restitution for Awards Made Under
the Now-Invalidated Policy .....................................................................................6
B. Rule 23 Concerns Require Equal Treatment of Similarly Situated
Claimants ...............................................................................................................11
II. BP IS ENTITLED TO AN ORDER ENJOINING THE DISSIPATION OF
FUNDS ..............................................................................................................................12
A. BP Is Substantially Likely To Succeed on the Merits of Its Restitution
Claims ....................................................................................................................14
B. BP Faces a Substantial Threat of Irreparable Injury ..............................................15
C. The Balance of Equities Favors the Entry of a Preliminary Injunction .................17
D. The proposed injunction will promote the public interest .....................................18
CONCLUSION ..............................................................................................................................19


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TABLE OF AUTHORITIES
FEDERAL CASES
Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) .................................................................11
Atl. Coast Line R.R. v. Florida, 295 U.S. 301 (1935) ......................................................................6
Balt. & Ohio R.R. v. United States, 279 U.S. 781 (1929) ......................................................6, 7, 15
Bank of U.S. v. Bank of Wash., 31 U.S. 8 (1832).............................................................................6
Broadcom Corp. v. Qualcomm Inc., 585 F. Supp. 2d 1187, 1188 (C.D. Cal. 2008) .......................8
Calagaz v. DeFries, 303 F.2d 588 (5th Cir. 1962) (per curiam) .............................................12, 13
Caldwell v. Puget Sound Elec. Apprenticeship & Training Trust, 824 F.2d 765
(9th Cir. 1987) ............................................................................................................................7
Fed. Sav. & Loan Ins. Corp. v. Dixon, 835 F.2d 554 (5th Cir. 1987) .....................................13, 17
Hinchman v. Ripinsky, 202 F. 625 (9th Cir. 1913) ..........................................................................7
In re Deepwater Horizon, 732 F.3d 326 (5th Cir. 2013) .................................................3, 4, 15, 17
In re Enron Corp. Sec., Derivative & Erisa Litig., No. MDL-1446, 2004 WL
2889891 (S.D. Tex. Dec. 9, 2004) ...........................................................................................18
In re Estate of Ferdinand Marcos, Human Rights Litig., 25 F.3d 1467 (9th Cir.
1994) ........................................................................................................................................13
In re Fredeman Litig., 843 F.2d 821 (5th Cir. 1988) .........................................................13, 15, 16
Iowa Elec. Light & Power Co. v. Atlas Corp., 654 F.2d 704 (8th Cir. 1981) .................................8
Janvey v. Alguire, 647 F.3d 585 (5th Cir. 2011)......................................................................12, 17
Ruiz v. Estelle, 650 F.2d 555 (5th Cir. 1981) (per curiam) ............................................................15
Strong v. Laubach, 443 F.3d 1297 (10th Cir. 2006) ..................................................................7, 18
Strouse Greenberg Props. VI L.P. v. CW Capital Asset Mgmt. LLC, 442 F. Supp.
2d 313 (E.D. La. 2006) ............................................................................................................19
Tisino v. R & R Consulting & Coordinating Group, L.L.C., 478 F. Appx 183 (5th
Cir. 2012) (per curiam) ............................................................................................................16
United States v. First Natl City Bank, 379 U.S. 378 (1965) ...................................................14, 16

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United States v. Morgan, 307 U.S. 183 (1939) ................................................................................6
USACO Coal Co. v. Carbomin Energy, Inc., 689 F.2d 94 (6th Cir. 1982) .............................13, 19
STATE CASES
Berger v. Dixon & Snow, P.C., 868 P.2d 1149 (Colo. Ct. App. 1993) ............................................8
Bernoskie v. Zarinsky, 927 A.2d 149 (N.J. Super. Ct. App. Div. 2007) ....................................8, 19
Fleer Corp. v. Topps Chewing Gum, Inc., 539 A.2d 1060 (Del. 1988) ...........................................8
Schock v. Nash, 732 A.2d 217 (Del. 1999) ......................................................................................8
OTHER AUTHORITIES
11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice
and Procedure 2948.1 (3d ed. 2013) .....................................................................................13
Federal Rule of Civil Procedure 23 .........................................................................................11, 12
Restatement (Third) of Restitution and Unjust Enrichment 18 (2011)...................................7, 19


INTRODUCTION
Between August 2012 and October 2013, the Deepwater Horizon Economic Claims
Center (DHECC) made overpayments totaling hundreds of millions of dollars to certain
claimants as a result of an erroneous construction of the Settlement Agreements compensation
framework. Some claimants were paid who would not even have qualified for any payment.
BP objected to the contractual interpretation of the BEL framework that led to these
payments, and sought unsuccessfully an injunction during the pendency of the resulting
litigation. Those payments, which were paid pursuant to a now-discredited methodology,
constitute (or include) windfalls. Now that this Court has ordered the Settlement Program to
apply Policy 495 to claims going forward, principles of equity and Rule 23 entitle BP to recover
overpayments made pursuant to the now-invalidated interpretation of the Settlement Agreement.
To do otherwise would be to create discrepancies between similarly-situated claimants based
solely on the happenstance of when the awards were made.
BP is entitled to restitution, plus interest, of money wrongly paid. BP thus moves the
Court (i) to order restitution (payable to BP) of the overpayments, and (ii) to stop dissipation of
excess payments pending their re-evaluation pursuant to Policy 495. Both the claimants who
received the inflated or unwarranted awards and the professionals who shared in them through
contingency fee or other arrangements should return their share of the improperly-calculated
awards.
BPs right to restitution is clear, and equity demands that windfall payments in breach of
the settlement agreement should be refunded.


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FACTUAL AND PROCEDURAL BACKGROUND
Exhibit 4C to the Agreement sets forth the compensation framework for BEL claimants,
which compensates these claimants for any reduction in profit between the 2010 Compensation
Period selected by the claimant and the comparable months of the Benchmark Period.
Agreement Ex. 4C, Rec. Doc. 6430-1, at 1.
Disagreement about the BEL Framework arose in the latter part of 2012. In early
November 2012, BP began to file appeals challenging BEL awards. In early December 2012, BP
requested specific information concerning the manner in which the Claims Administrator was
implementing the BEL framework. See Declaration of Keith Moskowitz in Support of BPs
Emergency Motion for a Preliminary Injunction (Moskowitz Decl.), Rec. Doc. 8964-12 9.
Class Counsel then asked the Claims Administrator to issue a formal Policy Statement
providing that, [w]hen a business keeps its books on a cash basis, revenue is earned during the
month of receipt, and also that corresponding variable expenses associated with monthly
revenue are the expenses that are expended or incurred during the Benchmark and Compensation
months in question. Rec. Doc. 8964-20, at 2. The Claims Administrators ensuing Variable
Profit policy statement formally endorsed Class Counsels cash-in, cash-out approach to
accounting. Rec. Doc. 8964-22. The policy statement provided that, [i]n performing the
calculations required by the Agreement, the Claims Administrator will typically consider both
revenues and expenses in the periods in which those revenues and expenses were recorded and
will not typically re-allocate such revenues or expenses to different periods. Id. at 3 (emphasis
added). The Claims Administrator acknowledged that this method would result in awards for
certain claimants that appear disproportionate, but explained that he did not believe it within
his authority to adopt a different interpretation. Rec. Doc. 8964-21, at 2.

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Over BPs objection, the Court adopted the Claims Administrators interpretation of the
Variable Profit provision, stating on March 5, 2013, that the analysis is to be based on revenue
and expenses during the relevant periods, and that expenses need not be matched to
revenues. Rec. Doc. 8812, at 1, 4. BP promptly filed an emergency motion to enjoin further
payments and awards for BEL claims based on non-existent, artificially calculated losses.
Rec. Doc. 8910-3, at 1. This Court denied BPs motion for a stay and injunction pending appeal
on April 5, 2013, and entered a minute order on April 8, 2013, reflecting that denial. BP
appealed this courts March 5, 2013 order, Rec. Doc. 9106, and filed an emergency motion for
an injunction and stay pending appeal of this courts decision, seeking to stop the payment of
inflated awards based on the Claims Administrators erroneous policy statement. That motion
was denied, and payments flowed under the now-reversed policy for six additional months until
the Fifth Circuit reversed the Claims Administrators interpretation of the BEL framework on
October 2, 2013, and remanded for further factual development with respect to the interpretation
of Exhibit 4C. In re Deepwater Horizon, 732 F.3d 326 (5th Cir. 2013). The next day, October 3,
2013, this Court entered an order suspending the issuance of any final determination notices or
any payments with respect to those BEL claims in which the Claims Administrator determines
that the matching of revenues and expenses is an issue and for the first time halted the payment
of BEL claims for which the appropriate methodology of matching revenues to expenses was
contested. Rec. Doc. 11566.
On December 24, 2013, after consideration of evidence concerning the negotiation of the
Agreement, this Court adopted BPs position and held that the provision for subtracting
corresponding variable expenses requires that revenue be matched with the variable expenses
incurred by a claimant in conducting its business, and that does not necessarily coincide with

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when revenue and variable expenses are recorded. Rec. Doc. 12055, at 5 (emphasis added).
Accordingly, the Court reversed its March 5, 2013 order and remanded the matter to the Claims
Administrator with instructions to develop an appropriate protocol or policy for handling BEL
claims in which the claimants financial records do not match revenue with corresponding
variable expenses. Id.
The Administrator has now issued a final Policy No. 495, Business Economic Loss
Claims: Matching of Revenue and Expenses, which this Court approved on May 5, 2014. Rec.
Doc. 12817. The finalized Policy No. 495 requires the following principles to be applied in
evaluating BEL claims under Exhibit 4C of the Settlement Agreement:
1. Loss calculations are to be based upon accounting records that sufficiently match
revenue with expenses.
2. The Settlement Agreements provision for subtracting corresponding variable
expenses requires that revenue must be matched with the variable expenses incurred
by a claimant in conducting its business, and that does not necessarily coincide with
when revenue and variable expenses were recorded. Rec. Doc. 12055, at 5.
3. Some claimant-submitted contemporaneous accounting records inherently match
revenues with expenses sufficiently for purposes of the Settlement Agreement, while
others do not (unmatched claims).
4. For unmatched claims, the claimant-submitted accounting records are to be
adjusted in light of the necessity of revenue and expense matching to realistic
measurement of economic loss. In re Deepwater Horizon, 732 F.3d at 346-47.
See Policy No. 495, at 1. Once the CSSP has determined that a particular claim is not
sufficiently matched,

it adjusts the claimant-submitted accounting records pursuant to the

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appropriate methodology. Claims are assigned to an industry type for the purpose of
determining the correct methodology. The default methodology is the Annual Variable
Margin methodology,
1
while four industries construction, agriculture, educational
institutions, and professional services are calculated under industry-specific methodologies.
2

This Courts May 28, 2014, Order Dissolving Preliminary Injunction Related to BEL
Claims & Implementation of Policy 495: Matching of Revenue and Expenses ordered the Claims
Administrator to resume the processing and payment of claims in accordance with the terms of
the Settlement Agreement, and further ordered that Policy 495, with limited exceptions, shall
be applied to all BEL claims currently in the claims process at any point short of final payment,
including those claims currently in the claims appeal process. Rec. Doc. 12948, at 12. The
order does not, however, require the Claims Administrator to recalculate claims previously paid
pursuant to his now-invalidated policy. See id. at 2 n.3. Claimants who received an improper or
inflated award continue to hold and dissipate monies that do not rightfully belong to them.
ARGUMENT
The Court should order the restitution of amounts paid pursuant to the Claims
Administrators erroneous implementation of the BEL framework. Courts have long recognized
that restitution should be made where a party benefited from a subsequently-invalidated
judgment. Moreover, serious Rule 23 concerns arise unless all claimants are treated equally.
Pending calculation of the amounts improperly paid, the Court should enjoin dissipation of the
funds received by the claimants listed in Exhibit B to the Declaration of Brian Gaspardo. For

1
The Annual Variable Margin Methodology is described in Attachment B to Policy No. 495.
2
See Attachment C to Policy No. 495 (construction claims); Attachment D (agriculture
claims); Attachment E (educational institutions claims); and Attachment F (professional
services claims).

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them, the amount of the prior overpayment (and thus the amount of the requested injunction) can
be estimated with reasonable reliability.
I. BP IS ENTITLED TO RESTITUTION
A. Equity Requires Recalculation and Restitution for Awards Made Under the
Now-Invalidated Policy
BP is entitled to restitution of claims previously paid under the now-invalidated policy.
The Supreme Court affirmed almost a century ago that the right to recover what one has lost by
the enforcement of a judgment subsequently reversed is well established. Balt. & Ohio R.R. v.
United States, 279 U.S. 781, 786 (1929);
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see also United States v. Morgan, 307 U.S. 183, 197
(1939) (What has been given or paid under the compulsion of a judgment the court will restore
when its judgment has been set aside and justice requires restitution.); Atl. Coast Line R.R. v.
Florida, 295 U.S. 301, 309 (1935) ([W]hat has been lost to a litigant under the compulsion of a
judgment shall be restored thereafter, in the event of a reversal, by the litigants opposed to him,
the beneficiaries of the error.); Bank of U.S. v. Bank of Wash., 31 U.S. 8, 17 (1832) (On the
reversal of the judgment, the law raises an obligation in the party to the record, who has received
the benefit of the erroneous judgment, to make restitution to the other party for what he has
lost.).
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In Baltimore & Ohio Railroad Co., the Supreme Court found that railroads benefiting from
an invalid order of the Interstate Commerce Commission were obligated to make restitution
after the reversal of the judgment sustaining that ICC order. 279 U.S. at 786.
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Other courts to address this issue have similarly affirmed that litigants are entitled to
restitution of claims paid pursuant to a subsequently reversed judgment. See, e.g., Strong v.
Laubach, 443 F.3d 1297, 1299 (10th Cir. 2006) (Should the judgment be reversed on
appeal, a district court may, on motion or sua sponte, order the judgment creditor to restore
the benefits obtained.) (citing Balt. & Ohio R.R. v. United States, 279 U.S. 781, 786 (1929));
Caldwell v. Puget Sound Elec. Apprenticeship & Training Trust, 824 F.2d 765, 767 (9th Cir.
1987) (Well established principles of restitution permit a court, after being reversed, to
order restitution.); Hinchman v. Ripinsky, 202 F. 625, 627 (9th Cir. 1913) (As it respects
the restitution awarded by the District Court, that was a relief very properly granted . . . .

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The Restatement recognizes this principle. A party that transferred property in
compliance with a subsequently reversed judgment has a claim in restitution. See Restatement
(Third) of Restitution and Unjust Enrichment 18 (2011) (A transfer or taking of property, in
compliance with or otherwise in consequence of a judgment that is subsequently reversed or
avoided, gives the disadvantaged party a claim in restitution as necessary to avoid unjust
enrichment.). The commentary to the relevant section of the Restatement further explains,
Although the present section refers only to a judgment that is subsequently reversed or
avoided, the same principle governs any case of unjust enrichment in consequence of a judicial
or administrative order (such as a preliminary injunction or a regulation) that is subsequently
dissolved or withdrawn. Restatement (Third) of Restitution and Unjust Enrichment 18 cmt. a
(2011).
This Court, of course, recently ordered repayment of an improperly granted award, citing
the Restatement as authority. Order & Reasons re Return of Payments Made to Casey C. Thonn
and Others (Thonn Order), Rec. Doc. 12794, at 23 (stating that the concept embodied in
Section 18 of the Restatement (Third) of Restitution and Unjust Enrichment is based on the
general principle that one should not be permitted to keep that which in equity and good
conscience should be restored to another (citations omitted)). In ordering restitution from the
professionals who assisted Mr. Thonn, the Court stated that restitution is often ordered where

[t]he decree of the trial court stood reversed and annulled, and the appellant was entitled to
have that returned to him which was taken away by an erroneous judgment.); Iowa Elec.
Light & Power Co. v. Atlas Corp., 654 F.2d 704, 706 (8th Cir. 1981) ([C]ourts have
frequently held that, when a benefit has been conferred in compliance with a judgment
subsequently reversed, restitution may be required.); Bernoskie v. Zarinsky, 927 A.2d 149,
152 (N.J. Super. Ct. App. Div. 2007) (Restitution on reversal of a judgment is dictated by
principles of fairness to the parties and public policy concerns. Between the parties, while the
proceeds were obtained lawfully pursuant to a judgment then valid, retention after reversal of
that judgment unjustly enriches the recipient.).

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there is no fault. Thonn Order at 22; see also Berger v. Dixon & Snow, P.C., 868 P.2d 1149,
115253 (Colo. Ct. App. 1993) (A claim for equitable restitution does not depend upon a breach
of substantive duty in tort or contract; restoration of a benefit may be ordered without a finding
of fault or misconduct.); Schock v. Nash, 732 A.2d 217, 23233 (Del. 1999) (Restitution is
permitted even when the defendant retaining the benefit is not a wrongdoer. Restitution serves to
deprive the defendant of benefits that in equity and good conscience he ought not to keep, even
though he may have received those benefits honestly in the first instance, and even though the
plaintiff may have suffered no demonstrable losses. (internal quotation marks and footnote
omitted)); Fleer Corp. v. Topps Chewing Gum, Inc., 539 A.2d 1060, 1063 (Del. 1988) (The
remedy of restitution may be invoked regardless of whether or not the party retaining the benefit
is found to be a wrongdoer.). And the Court further noted that fraud was not a prerequisite for
clawback. Thonn Order at 22-23, 26.
Another district court opinion applying these principles is instructive. In Broadcom
Corp. v. Qualcomm Inc., the district court considered Qualcomms request for a return of the
royalties it had paid to Broadcom on a patent (the 686 patent) pursuant to an injunction that
had since been reversed. 585 F. Supp. 2d 1187, 1188 (C.D. Cal. 2008). Following a finding of
infringement, the district court had entered a permanent injunction against Qualcomm, ordering
it to pay to Broadcom an ongoing royalty of 6% of all revenues received by Qualcomm for sales
after a particular date of 686 Infringing Products, and Qualcomm had thereafter paid
Broadcom approximately $11 million in royalties. Id. When the Federal Circuit found the
patent invalid and therefore not infringed, Qualcomm moved for the return of the royalty
payments. Id. at 1189. The district court recognized that [i]t is black letter law that when
money is paid pursuant to a court order that is subsequently reversed, the disadvantaged party

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has a right to restitution, and it held that under the law of restitution, Qualcomm is entitled to
restitution of the royalties, plus interest. Id. at 1189, 1191.
Applied here, these legal principles establish BPs right to restitution of the overpayments
made pursuant to the former erroneous policy and the March 5, 2013 order. Application of
Policy 495 leads to dramatically different calculations of lost profits compared with the
calculations that led to these overpayments. A vast number of claimants received awards well in
excess of what they are entitled to under the Settlement Agreement (as calculated under Policy
495), and some received entirely unwarranted awards under the correct application of the
Agreement. They were unjustly enriched. Although lacking in some cases all of the facts
necessary to fully apply Policy 495, as the attached declaration demonstrates, BPs assessment
indicates that were the awards correctly calculated, they are sometimes millions of dollars
smaller than those calculated under the Settlement Administrators now-invalidated policy. The
claims identified to date for which restitution is likely to be appropriate are contained in Exhibit
A. By way of example, the following awards
5
bear no relationship to reality (economic,
contractually agreed to, or otherwise) and are representative of common errors in claims listed in
Exhibit A:
Claimant 03 sells animals and animal skins. The Settlement Program awarded
Claimant $7.3 million pre-RTP ($16.9 million post-RTP). This award presents a classic
example of how the failure to properly match revenue and expenses led to distorted
award calculations. During the five-year period from 2007-2011, Claimant never had
annual variable profit higher than $ million in any benchmark year but their award
implied 2010 variable profit of $ million. In order for this award to be correct, it
would mean that in the absence of the spill, Claimants 2010 variable profit would have
more than over any other year. This enormous award resulted from the failure to

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For each of the examples, access to additional data, further analysis and full application of
Policy 495 may show that the overpayment amounts exceed these estimates or that the
claimant no longer passes the Exhibit 4B tests and therefore is not entitled to any
compensation. In addition, these estimates do not include accounting fees, which must be
recalculated pursuant to Section 4.4.13.8 of the Settlement Agreement.

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match corresponding variable expenses with the revenue associated with those expenses.
This company purchased more than $ million of inventory between January and
March of 2009 and reflected those purchases as expenses. Because the sales of the
products did not occur until later months, the approximately $ million in expenses
were not matched with the revenue from the sales, giving the false impression of
excessive costs in January and March 2009 and inflated profits (untethered to the actual
costs) in later months. Based upon the available data, it is estimated that the Settlement
Programs use of insufficiently matched data resulted in an estimated overpayment to this
claimant of approximately $14 million.
Claimant 30 is a construction company located hundreds of miles from the Gulf of
Mexico. The Settlement Program awarded Claimant $10.1 million pre-RTP ($13.2
million final paid award). This award was based on the use of inaccurate financial data.
For example, in December 2009, Claimant recorded only $ of revenue against
more than $ million dollars in costs of goods sold to correct for overstatements of
monthly revenue earlier in the year. Yet, prior to the implementation of Policy 495, the
Settlement Program did not apply this correction to the months in which the error actually
occurred. Likewise, in both August and October 2010, the Claimant understated monthly
revenues leading to negative variable profits in those months and excess revenues and
variable profits in the months where the misstatements were corrected. Once again, prior
to the implementation of Policy 495, the Settlement Program did not apply the
corrections to the months in which the misstatements occurred. By using incorrect
monthly revenues, and not accurately matching revenues and expenses, the Settlement
Program inflated Claimants pre-spill performance and artificially depressed Claimants
post-spill performance, leading to an inflated award. Based upon the available data, it is
estimated that the Settlement Programs use of insufficiently matched data resulted in an
estimated overpayment to this claimant of approximately $8.4 million.
Claimant 37 is a construction contractor in Alabama. The Settlement Program
awarded Claimant more than $2 million pre-RTP ($2.7 million final paid award), more
than double the annual variable profit for the previous two calendar years. This award
was based on financial data that Claimant admits was incorrect. An external review of
Claimants financial records revealed an understatement of Claimants May 2009 to April
2010 expenses of more than $ million. Claimant corrected its reviewed annual
financial records and its tax returns, but the misstatement was not corrected on the
monthly P&Ls submitted to the Settlement Program. The Settlement Program used
Claimants uncorrected and admittedly erroneous monthly P&Ls. In addition,
Claimants monthly financial data for May, 2010 recorded $ in negative revenue.
Revenue is never actually negative and Claimant acknowledged to the Settlement
Program that this entry was a correction for an earlier error. Yet, the Settlement Program
nonetheless used the claimed negative revenue in its calculation, thus materially
understating Claimants post-spill performance and further overstating the award. In fact,
the claimant actually lost money during the May 2009 to April 2010 fiscal year, and had
nearly identical variable profit during the May 2010 to April 2011 fiscal year. Based
upon the available data, it is estimated that the Settlement Programs use of insufficiently
matched data resulted in an estimated overpayment to this claimant of approximately
$2.0 million.

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Claimant 18 is an advertising firm that received a $2.9 million pre-RTP ($3.8 million
final award paid). This award was made despite the claimants 2010 variable profit
increasing % over the benchmark year variable profit. The award implied the
Claimants 2010 variable profit would have been more than times the variable profit in
the 2009 benchmark year. The Settlement Program failed to match corresponding
variable expenses with revenue. Specifically, in August 2010, the Claimant spent $
million dollars to purchase media for its client. During that same month, Claimant only
recorded $ in revenue. By failing to associate the $ million in media expenses
with the revenue those expenses generated in other months, the Settlement Program
erroneously concluded that the Claimant had suffered a nearly $ million loss in the
month in question. Based upon the available data, it is estimated that that Settlement
Programs use of insufficiently matched data resulted in an estimated overpayment to this
claimant of approximately $3.3 million.
Restitution for such inappropriate awards vindicates the correct interpretation of the BEL
framework and prevents unjust enrichment of claimants who received inflated payments, as well
as the attorneys and others who benefited from their doing so. For these reasons, BP respectfully
requests this Court order that improperly calculated awards be repaid in the amount of
overpayment.
B. Rule 23 Concerns Require Equal Treatment of Similarly Situated Claimants
One of the hallmarks of the Settlement Agreement is that it seeks to treat similarly-
situated claimants in a similar fashion. The parties agreed on this principle, and Federal Rule of
Civil Procedure 23 requires it. Cf. Order & Reasons Responding to Remand of Business
Economic Loss Issues, Rec. Doc. 12055 (finding that the parties were in agreement that
similarly situated claimants must be treated alike, and that in order to achieve a class settlement
agreement, it was necessary that there be a transparent, objective methodology adopted to
determine lost profits). Rule 23(a) and 23(b) focus court attention on whether a proposed class
has sufficient unity so that absent [class] members can fairly be bound by decisions of class
representatives, and [t]hat dominant concern persists when settlement, rather than trial, is
proposed. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 621 (1997). The superiority
requirement of Rule 23(b)(3) seeks to achieve economies of time, effort, and expense, and

12
promote uniformity of decision as to persons similarly situated. Id. at 615 (emphasis added)
(quoting Fed. R. Civ. P. 23 advisory committees note (1966 amends.)). Requiring that paid
claims be recalculated consistent with Policy 495 would ensure compliance with Rule 23.
Absent such recalculation, two similarly situated businesses, with similar financial performance
before and after the Spill, would get very different awards based solely on whether the Claims
Administrator processed the claim before or after October 3, 2013.
This Court recognized the importance of reliable, common methodologies when, in
approving the Settlement Agreement, it described the Settlement Program as calculat[ing]
awards using public, transparent frameworks that apply standardized formulas derived from
generally accepted and common methodologies, and ensuring that similarly situated class
members are treated similarly. Rec. Doc. 8138, at 8. Allowing award calculations for similarly
situated claimants pursuant to vastly different compensation policies would upend the common
methodologies integral to the Settlement Agreement.
II. BP IS ENTITLED TO AN ORDER ENJOINING THE DISSIPATION OF FUNDS
In addition to a restitution order, BP seeks a preliminary injunction prohibiting certain
BEL claimants (Exhibit B) from dissipating awards they received under the Administrators
now-invalidated interpretation of the Agreement. In order to secure a preliminary injunction, the
movant must establish four elements:
(1) a substantial likelihood of success on the merits, (2) a
substantial threat of irreparable injury if the injunction is not
issued, (3) that the threatened injury if the injunction is denied
outweighs any harm that will result if the injunction is granted, and
(4) that the grant of an injunction will not disserve the public
interest.

Janvey v. Alguire, 647 F.3d 585, 595 (5th Cir. 2011) (internal quotation marks omitted). In
deciding a motion for preliminary injunction, the Courts task is to balance the relative

13
conveniences of the parties, Calagaz v. DeFries, 303 F.2d 588, 589 (5th Cir. 1962) (per
curiam), bearing in mind that [p]erhaps the single most important prerequisite for the issuance
of a preliminary injunction is a demonstration that if it is not granted the applicant is likely to
suffer irreparable harm. 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,
Federal Practice and Procedure 2948.1 (3d ed. 2013); Calagaz, 303 F.2d at 589. An injunction
should issue in this case because BP meets all four required elements and is certain to suffer an
irreparable injury without prompt relief.
In addition, an injunction preventing the further dissipation of erroneous BEL awards is
within the inherent equitable authority of this Court. The Fifth Circuit has noted that case law
does allow a district court to exercise its equitable powers in ordering a preliminary injunction to
secure an equitable remedy such as restitution, Fed. Sav. & Loan Ins. Corp. v. Dixon, 835 F.2d
554, 560 (5th Cir. 1987), and further that case law provides several examples of courts properly
freezing assets prior to a final determination on the merits, id. at 561. It has held that general
equitable powers give the district court the authority to freeze assets when necessary, as here, to
preserve meaningful equitable remedies. Id. at 563; see also In re Fredeman Litig., 843 F.2d
821, 827 (5th Cir. 1988) ([A]n injunction may issue to protect assets that are the subject of the
dispute.); USACO Coal Co. v. Carbomin Energy, Inc., 689 F.2d 94, 96 (6th Cir. 1982)
(affirming a district courts grant of a preliminary injunction restraining the corporate defendants
from disposing of their assets, noting that the district court issued the injunction upon finding a
substantial likelihood that plaintiffs would ultimately prevail on a claim for restitution based on
the allegation of a breach of fiduciary duty); In re Estate of Ferdinand Marcos, Human Rights
Litig., 25 F.3d 1467, 1476 (9th Cir. 1994) (stating that [i]t is unquestionable that it is within the
district courts authority to issue a preliminary injunction where final equitable relief is sought

14
and upholding the district courts entry of a preliminary injunction prohibiting the defendants
from transferring, secreting or dissipating assets).
A preliminary injunction freezing the awards paid to the identified BEL claimants is a
reasonable measure to preserve the status quo. United States v. First Natl City Bank, 379 U.S.
378, 385 (1965) (internal quotation marks omitted).
6
The amount of overpayments to these
claimants is identifiable at this stage with reasonable reliability. For the claims identified in
Exhibit B, BPs accounting expert has estimated and set forth a likely value of the overpayment
resulting from the CSSPs use of insufficiently matched data. For these claims, it is possible that
full application of Policy 495 will reveal that the overpayment is different than estimated or that
the claimant no longer passes the Exhibit 4B tests and therefore is not entitled to any
compensation. Accordingly, this Court should exercise its inherent equitable powers to enter an
injunction prohibiting the further dissipation of BEL awards pending recalculation of these
claims.
A. BP Is Substantially Likely To Succeed on the Merits of Its Restitution Claims
BP is entitled to injunctive relief because it is substantially likely to succeed on the merits
of its claims for restitution against individual claimants who received inflated awards under the
Claims Administrators erroneous interpretation of the BEL Framework. As discussed in Part I
supra, a partys right to recover what one has lost by the enforcement by a judgment
subsequently reversed is well established. Balt. & Ohio R.R., 279 U.S. at 786. This court has

6
In United States v. First National City Bank, the United States was attempting to collect taxes
owed to it by a taxpayer, a foreign corporation. 379 U.S. 378, 379 (1965). While attempting
to obtain personal jurisdiction over the taxpayer, the government sought a preliminary
injunction ordering the bank, over which the court clearly had personal jurisdiction, to freeze
the taxpayers accounts in its foreign branches. Id. at 37980. The district court obliged, and
the Supreme Court approved the injunction, stating, The temporary injunction issued by the
District Court seems to us to be eminently appropriate to prevent further dissipation of
assets. Id. at 385.

15
already confirmed in its December 24, 2013, Order that the Settlement Agreement requires
matching of corresponding revenues and expenses, and ordered the Claims Administrator to
establish policies and protocols implementing the matching directive. Now that Policy No. 495
has been finalized and approved by this Court, the proper amount due to BEL claimants as
compensation can be calculated using the correct methodology. Once that figure is known, there
is no basis for a claimant to retain funds paid by the Claims Administrator beyond what they are
due pursuant to the Settlement Agreement.
B. BP Faces a Substantial Threat of Irreparable Injury
An order maintaining the status quo is appropriate when . . . denial of the order would
inflict irreparable injury on the movant. Ruiz v. Estelle, 650 F.2d 555, 565 (5th Cir. 1981) (per
curiam) (internal quotation marks omitted); In re Fredeman Litig., 843 F.2d at 827.
Here, the harm threatening BP is irreparable because, as a practical matter, once
claimants have spent their awards, BP is unlikely to be able to recover fully the monies
improperly paid. Both prior precedent and the facts here demonstrate the injury that BP will
suffer and, indeed, is suffering on an ongoing basis. The Fifth Circuit has already recognized the
irreparable injury that BP suffered upon distribution of the awards. See In re Deepwater
Horizon, 732 F.3d at 345 (finding irreparable harm when, absent a preliminary injunction barring
further payouts of BEL claims, BP stood to lose hundreds of millions of dollars of
unrecoverable awards); see also id. at 332 n.3 (noting that improper awards will have been
distributed to potentially thousands of claimants and BP will have no practical way of recovering
these funds should it prevail). An order enjoining further dissipation is the only means by
which not to compound this injury. A preliminary injunction preventing the enumerated
claimants from spending the overpayments described in Exhibit B would only enjoin conduct

16
that might be enjoined under a final order. In re Fredeman Litig., 843 F.2d at 827. In these
circumstances, a preliminary injunction is eminently appropriate to prevent further dissipation
of [those] assets. First Natl City Bank, 379 U.S. at 385.
7

The record also demonstrates that the corporate structure of many of the claims recipients
heightens the risk of dissipation. The legal and tax structure of most closely-held businesses
incentivizes the distribution of profits and excess cash to owners, primarily by structuring the
business as a pass-through entity such as a Limited Liability Corporation (LLC), partnership,
or S-corporation. These structures allow business profits to be taxed directly to owners, allowing
owners to receive cash payments without any additional tax liability. Thus the movement of
monies out of claimants with such a structure is easily accomplished, making dissipation more
likely. BPs accounting expert reviewed the annual income tax returns of 205 claimants, and
found that more than three quarters of them were structured as pass-through entities. See
Declaration of Brian Gaspardo 17-30.
BPs accounting expert further evaluated whether the claimants structured as pass-
through entities would have sufficient other resources or assets to repay the portion of their claim
awards that represents an overpayment, if the claim award was disbursed outside the corporate
form. For many of the claimants, he found that the paid awards represented a payment many

7
Tisino v. R & R Consulting & Coordinating Group, L.L.C., 478 F. Appx 183 (5th Cir. 2012)
(per curiam), is instructive. In that case, plaintiffs in a class action lawsuit sued to recover
settlement funds that had been paid improperly to a disbarred attorney who had illegally
solicited class members. Id. at 184. The district court issued a preliminary injunction
freezing the defendants assets derived from those settlement proceeds. The Fifth Circuit
affirmed, explaining that [t]he significant risk that [the] settlement funds would be
dissipated and placed beyond Appellees reach constitutes a threat of substantial irreparable
injury. Id. at 186. As in Tisino, BP here faces a substantial risk that the erroneous awards
will be dissipated before the compensation amounts due under the now-approved Policy No.
495 is recalculated.


17
times greater than existing net worth and a cash infusion well in excess of annual earnings. Id.
Under these circumstances, it is highly likely that many of these claimants would lack sufficient
financial resources to return in full any overpayment from general corporate assets beyond the
overpayment. As such, BP faces a high likelihood of irreparable injury if these claimants are not
enjoined from further dissipating their BEL awards before Policy No. 495 is applied to them.
C. The Balance of Equities Favors the Entry of a Preliminary Injunction
The balance of equities favors freezing probable overpayments from previously-paid
BEL awards until the correct compensation amount under Policy No. 495 is determined. First,
the proposed injunction will not affect claimants who have received or are seeking awards for
individual economic loss, property damage, subsistence, vessels of opportunity, and vessel
physical damage. These claimants will continue to have their claims processed and, if
appropriate, paid by the Settlement Program. Cf. Janvey, 647 F.3d at 601 (finding that the fact
that plaintiff reached an agreement to allow defendants to use all but certain discrete categories
of compensation supported balance of harms favoring preliminary injunction).
As for BEL claimants who received erroneous awards, they have no legitimate interest in
retaining that portion of awards that represent payments they are not entitled to under the terms
of the Settlement Agreement. Cf. In re Deepwater Horizon, 732 F.3d at 345 (The interests of
individuals who may be reaping windfall recoveries because of an inappropriate interpretation of
the Settlement Agreement and those who could never have recovered in individual suits for
failure to show causation are outweighed by the potential loss to [BP] and its public shareholders
of hundreds of millions of dollars of unrecoverable awards.); Dixon, 835 F.2d at 563
(preliminary injunction was appropriate to preserve right to restitution of unjustified payments to
bank officers, regardless of whether these officers knew that [their] compensation was not
justified). To the extent that they might have compensable claims even under the appropriate

18
matching protocol, any effect of an injunction is temporary. On the one hand, the claimant faces
only delay in potential spending of the portion of the award that represents overpayment; on the
other hand, BP faces the very real prospect that money, once spent, will not be recoverable. Cf.
In re Enron Corp. Sec., Derivative & Erisa Litig., No. MDL-1446, 2004 WL 2889891, at *6
(S.D. Tex. Dec. 9, 2004) (While there may be some delay in payment, . . . any perceived harm
is outweighed by the significant and irreparable harm that will be inflicted on the [moving party]
if the [assets] are depleted . . . .).
Further, BP disputed in court the Claims Administrators interpretation of the BEL
framework from the outset, creating the risk to claimants that BP would eventually prevail on
this issue. Cf. Strong v. Laubach, 443 F.3d 1297, 1300 (10th Cir. 2006) (By executing on their
judgment and receiving [the property] during the pendency of the appeal, the [plaintiff] assumed
the risk that [it] might have to repay the money if [defendants] prevailed on appeal.). Every
claimant from whom BP is seeking restitution pursuant to this motion was specifically and
expressly put on notice when BP appealed the claimants award within the CSSP. Moreover, BP
made every effort to prevent this situation from occurring by seeking an injunction pending
appeal both from this Court and from the Fifth Circuit. Class Counsel resisted that approach and
instead insisted on running the risk that BP would prevail and claimants would be obligated to
repay excessive awards. Under these circumstances, the balance of equities favors granting the
injunction and preventing the paid awards from being dissipated while the Claims Administrator
calculates the proper amounts due to BEL claimants under Policy No. 495.
D. The proposed injunction will promote the public interest
The public interest is served by a correct interpretation and implementation of the
Settlement Agreement. There is no public interest in permitting dissipation of assets to which

19
claimants had no right. See USACO Coal Co., 689 F.2d at 99100 ([W]e conclude that the
public interest is no way disserved by the order prohibiting defendants from dissipating and
concealing assets until the plaintiffs equitable claims are resolved.). By contrast, there is a
strong public interest in ensuring that funds remain available to satisfy BPs claims for restitution
once the proper amounts due to BEL claimants under Policy No. 495 are calculated. Cf. Strouse
Greenberg Props. VI L.P. v. CW Capital Asset Mgmt. LLC, 442 F. Supp. 2d 313, 321 (E.D. La.
2006) (concluding that there is a greater public interest in granting injunctive relief to assure
that the funds remain available to enforce a contract than in allowing the funds to be used for
other efforts).
Finally, a strong public interest exists in ensuring that parties who pay claims in
compliance with a judgment that is later reversed are able to receive repayment of their claims.
As a matter of policy, there is a need to remedy [a] misapplication of the coercive force of
legal process and avoid discouraging compliance with lawful orders not stayed pending appeal.
Bernoskie v. Zarinsky, 927 A.2d 149, 152 (N.J. Super. Ct. App. Div. 2007) (alteration in
original) (quoting Restatement (Third) of Restitution and Unjust Enrichment 18 cmt. e).
CONCLUSION
BP respectfully requests that this Court enter an order directing that BP is entitled to
restitution, plus interest, from claimants who were overpaid as a result of the erroneous matching
policy or should not have been paid at all. To the extent that professionals (lawyers, accountants,
or others) have been paid a proportional amount of those recoveries, they must repay that amount
as well, plus interest. These awards should be recalculated under the now-approved Policy No.
495. In addition, BP respectfully requests that this Court enter an injunction preventing the BEL
claimants identified in Exhibit B from dissipating the overpaid portion of those awards pending
the recalculation of their compensation amounts under Policy No. 495.

20
June 27, 2014

Mark Holstein
BP AMERICA INC.
501 Westlake Park Boulevard
Houston, TX 77079
Telephone: (281) 366-2000
Telefax: (312) 862-2200
Respectfully submitted,

/s/ Kevin M. Downey
Kevin M. Downey
F. Lane Heard III
WILLIAMS & CONNOLLY LLP
725 Twelfth Street, N.W.
Telephone: (202) 434-5000
Telefax: (202) 434-5029

Daniel A. Cantor
Andrew T. Karron
ARNOLD & PORTER LLP
555 Twelfth Street, NW
Telephone: (202) 942-5000
Telefax: (202) 942-5999

Robert C. Mike Brock
COVINGTON & BURLING LLP
1201 Pennsylvania Avenue, NW
Telephone: (202) 662-5985
Telefax: (202) 662-6291

Jeffrey Lennard
Keith Moskowitz
DENTONS US LLP
233 South Wacker Drive
Suite 7800
Chicago, IL 60606
Telephone: (312) 876-8000
Telefax: (312) 876-7934

OF COUNSEL
/s/ Don K. Haycraft
S. Gene Fendler (Bar #05510)
Don K. Haycraft (Bar #14361)
R. Keith Jarrett (Bar #16984)
LISKOW & LEWIS
701 Poydras Street, Suite 5000
New Orleans, Louisiana 70139
Telephone: (504) 581-7979
Telefax: (504) 556-4108

Richard C. Godfrey, P.C.
Wendy L. Bloom
300 North LaSalle Street
Chicago, IL 60654
Telephone: (312) 862-2000
Telefax: (312) 862-2200

Jeffrey Bossert Clark
Dominic E. Draye
655 Fifteenth Street, N.W.
Washington, D.C. 20005
Telephone: (202) 879-5000
Telefax: (202) 879-5200

ATTORNEYS FOR BP EXPLORATION & PRODUCTION INC.
AND BP AMERICA PRODUCTION COMPANY

21
CERTIFICATE OF SERVICE
I hereby certify that the above and foregoing pleading 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 27th day of June, 2014.

/s/ Don. K. Haycraft
Don K. Haycraft


In Re: Oil Spill by the Oil Rig
Deepwater Horizon in the
Gulf of Mexico, on April 20, 2010


*
*
*
*
*
*
*
*
*
*
*
MDL NO. 2179

SECTION: J


DECLARATION OF BRIAN L. GASPARDO
I, Brian L. Gaspardo, declare and state as follows:
1. I am over the age of 18 and am a resident of the State of Illinois. Unless
otherwise stated, I have personal knowledge of the facts set forth herein, and, if called to do so,
could testify truthfully thereto.
2. I am the Managing Member of ONeill & Gaspardo, LLC, a Consulting and CPA
firm located in Mokena, Illinois. I am a Certified Public Accountant and have over 20 years of
professional experience performing audit, tax, accounting, business valuation, financial analysis,
and consulting services for clients throughout the United States. I received a B.A. in economics
from Harvard University in 1991 and an M.B.A. from the University of Chicago in 2001. I serve
on the Boards of Old Plank Trail Bank and La Rabida Childrens Hospital in Chicago. I have
testified and submitted reports as an expert witness on a variety of topics, including business
performance, business valuation, accounting, and financial reporting.
3. BP retained me to assist in the review of the accounting records and claim files
for numerous BEL awards issued by the Court Supervised Settlement Program (CSSP). To
2
date, my firm has reviewed thousands of BEL awards made by the CSSP and the claim files
associated with those claims.
4. In this Declaration, I explain the analysis that I am undertaking to identify certain
previously paid claims that, as a result of the Settlement Programs use of insufficiently matched
financial data, resulted in significant overpayments to claimants. I have not yet completed that
analysis, but I describe the results of the analysis with regard to 793 claims. In addition, I
address the heightened risks that (i) claimants in receipt of overpayments are likely to disburse
the overpayments out of the business and (ii) once the overpayments are disbursed, it will in
many cases be difficult for claimants to reimburse the overpayment.
I. Background
5. From the opening of the Settlement Program on June 4, 2012 until October 2,
2013, the CSSP did not take steps to match claimants revenue with corresponding variable
expenses. The Settlement Program issued and paid more than $2 billion in BEL awards between
August 2012-October 2, 2013, many of which were based on insufficiently matched financial
data.
6. I understand that on October 2, 2013, the United States Court of Appeals for the
Fifth Circuit reversed and remanded the Claims Administrators prior policy that did not require
the matching of revenue and corresponding expenses. Among other things, the Fifth Circuit
explained that:
The difficulty is that subtracting temporally related revenues and expenses
recorded by cash basis claimants would not result in numbers that could fairly be
said to represent actual economic losses or lost variable profits. In re
Deepwater Horizon, 732 F.3d 326, 336 (5th Cir. 2013).
3
Exhibit 4C should be interpreted as requiring an accrual style framework for
calculation of lost profits, meaning that revenues and expenses must be properly
matched: [O]nly matching provides a realistic chance of achieving the ostensible
goal of the settlement of compensating claimants for real losses. Id. at 338.
[T]he interpretation urged by the Administrator is completely disconnected from
any reasonable understanding of calculation of damages. Id. at 339.
7. Compliance with the Fifth Circuits directives to adopt an accrual style
framework for calculation of a realistic measure of actual economic losses consistent with
economic reality required consideration of the proper allocation of monthly revenue and the
identification of corresponding variable expenses that relate to that revenue so that the revenue
and corresponding variable expenses can be sufficiently matched for purposes of applying the
Exhibit 4C BEL Compensation Framework. For example, on November 21, 2013, BP submitted
a detailed proposal setting forth a framework for evaluating BEL claims for matching issues and
correctly attributing revenue and expenses for insufficiently matched claims.
8. On December 24, 2013 the District Court held that the provision [in Exhibit 4C]
for subtracting corresponding variable expenses requires that revenue must be matched with the
variable expenses incurred by a claimant in conducting its business, and that does not necessarily
coincide with when revenue and variable expenses are recorded. Rec. Doc. 12055 at 5. The
District Court instructed the Claims Administrator to adopt and implement an appropriate
protocol or policy for handling BEL claims in which the claimants financial records do not
match revenue with corresponding variable expenses. Id.
4
9. In response to the District Courts Order, the Claims Administrator issued Policy
495: Business Economic Loss Claims: Matching of Revenue and Expenses on March 12, 2014,
which this Court approved on May 5, 2014. Rec. Doc. 12817
10. All work described herein was performed by me or by my staff under my
direction.
II. Identification of Certain Paid Claims With Overpayments
11. The Settlement Programs prior use of insufficiently matched financial data
potentially impacted a large universe of paid awards. For purposes of my initial analysis, I have
focused on paid awards that BP appealed on matching grounds.
12. I use the District Court approved Policy 495 for purposes of my analysis
described below, because it reflects the District Courts adoption of a comprehensive matching
policy that was developed as a result of an extensive process that involved consultations among
the CSSP accounting vendors and the parties. In some cases, I do not currently have access to all
of the facts necessary to fully apply Policy 495. Working with the available data, I have
performed an assessment to: (a) identify whether a claim likely received an overpayment due to
the use of insufficiently matched financial data, and (b) for selected claims, estimate the likely
amount of the overpayment resulting from the use of insufficiently matched data (access to
additional data may reveal that the actual amount of overpayment is different than I have
estimated). These assessments, while reliable for the purposes for which I am using them, are in
no way a replacement for the full application of Policy 495. In addition, it is possible that
submission of additional information by a claimant might change the results of my analysis.
13. I have set forth on Exhibit A a list of previously paid BEL awards that BP
appealed on matching grounds for which the Settlement Programs use of insufficiently matched
5
financial data likely resulted in an overpayment. The following describes my analysis in
identifying the claims on Exhibit A:
The first step under Policy 495 involves the correction of errors and mismatching
in a claimants financial data. Once it is completed, Policy 495 uses seven criteria
to identify whether indicia of an unmatched claim remain notwithstanding the
corrections. If so, applicable methodologies are applied to further address the
matching problem. Where the claim file does not contain sufficient detail,
however, I am unable to fully perform the first step. Therefore, initially, I
applied, solely as a screening tool and without first evaluating the claim for errors
and mismatching, the seven criteria indicative of an unmatched claim to the paid
claims that BP had appealed on matching grounds. The presence of one or more
of the criteria suggests that the claim may contain insufficiently matched data and
requires further analysis. If a claim did not meet any of the seven criteria, for
purposes of this evaluation only I removed it from further consideration.
1

As a second step in the screening process, for those claims (other than
professional services claims) that contained one of more of the Policy 495 criteria
for an insufficiently matched claim, I applied the applicable Policy 495 general
methodology for correcting matching problems annual variable margin
(AVM), construction, agriculture (using an August to July revenue convention
assigned to an April to November growing season), and educational institutions,
again without first correcting errors or mismatching in the financial data. Once
more, this was done simply to assist in screening those claims that likely had an
overpayment; specific corrections of errors and mismatching is necessary in order
to fully apply Policy 495, and, any errors and mismatches related to the
independent variable would remain wholly uncorrected even after applying the
appropriate Policy 495 general methodology.
I next compared the estimated compensation calculated using the financial data
resulting from the above screening process to the original award amount
calculated and paid by the Settlement Program. If the original award amount
exceeds the result derived as a result of the screening process, this provides a
strong indication that the claimant likely received an overpayment, and I therefore
included the claim on Exhibit A. Because I am only using screening tools for the
claims on Exhibit A, calculation of the precise amount of overpayment requires
additional analysis.
Professional services claims require a different approach for my screening
analysis. Under Policy 495, revenue for professional services claims is measured
in one of two ways. As a general rule, Policy 495 allocates professional services

1
It should be noted that while the seven criteria for identifying unmatched claims set forth in Policy 495 are very
helpful, they are not exhaustive and will not identify all unmatched claims. My use of the seven criteria should not
be interpreted to suggest that the claims not included on the list do not have matching problems.
6
revenue evenly across the months included in the duration of each underlying
customer or client engagement. Alternatively, the claimant may try to provide
sufficient objective records from which an allocation based on the level of effort
over the life of the matter may be made. I do not have access to information
necessary to perform either of these revenue allocations. However, as the
professional services general methodology reflects, these claims overwhelmingly
fail matching criteria due to revenue not being reflected as earned. Cash
accounting and contractual provisions lead to spikes in monthly revenues
unrelated to economic reality. These accounting conventions, coupled with the
BEL frameworks mathematical formula, results in distorted award calculations.
Eliminating the artificial revenue spikes created by the failure to match will
generally reduce optimal compensation calculated under the BEL framework.
Thus, with regard to professional services claims, the presence of one or more of
Policy 495s seven criteria leads me to conclude that application of matching
likely will lower the award by eliminating the revenue spike distortions.
14. As explained above, the claims on Exhibit A likely have matching problems that
resulted in an overpayment. For a subset of those claims, I have estimated and set forth on
Exhibit B a likely value of the overpayment resulting from the CSSPs use of insufficiently
matched data. For these claims, my analysis was limited to the documents and explanations
previously provided by the claimant, and it is possible that full application of Policy 495 would
reveal that the overpayment is different than I have estimated or that the claimant no longer
passes the Exhibit 4B tests and therefore is not entitled to any compensation. I describe below
my analysis used to arrive at the estimates on Exhibit B:
I first reviewed the profit and loss statements for the benchmark years, 2010, and
2011, and evaluated the monthly statements for misstatements, errors and
mismatching of revenue and expenses which in my judgment could be
specifically identified and corrected. Where sufficient information existed to
make a correction, I did so.
I next applied the seven criteria for identifying unmatched claims as required by
Policy 495 to ascertain whether the specific corrections of errors and mismatching
discussed above had resulted in sufficient matching. If the corrected financial
data did not contain any of the seven criteria -- for purposes of this evaluation
only I deemed the financial data sufficiently matched and applied the BEL
framework to the corrected data.
2
If the corrected financial data still contained

2
As explained above, there are situations where none of the seven criteria are triggered, but the
financial data is nonetheless insufficiently matched.
7
one or more of the criteria of an insufficiently matched claim, as required by
Policy 495, I applied the applicable Policy 495 methodology to match revenue
and corresponding variable expenses. As explained earlier, such an analysis
could not be done for any professional services claimants, and, in this specific
review, agriculture growing seasons and related revenues were evaluated
specifically to the extent possible with the information provided.
Consistent with Policy 495, I next applied the appropriate tests set forth in Exhibit
4B of the Settlement Agreement. If a claim does not pass the applicable 4B test,
the claimant is not entitled to any compensation under the Settlement Agreement,
and thus the full value of the prior payment constitutes an overpayment.
For those claims that pass the applicable Exhibit 4B test, I then used the financial
data resulting from the above steps to perform the calculations set forth in the
BEL framework to estimate whether a claimant is entitled to compensation and, if
so, the estimated amount of compensation.
Once I arrived at an estimated award consistent with Policy 495 (subject to the
data limitations discussed herein) I subtracted the estimated award amount from
the previously paid amount. The difference represents an estimate of the
approximate amount of overpayment that occurred due to the Settlement
Programs use of insufficiently matched financial data. The previously paid
amount includes the 5% overpayment penalty that was previously charged to BP
and paid to the claimant when BP originally lost the appeal. BP lost the appeal
because the Appeals Panel followed the now reversed CSSP policy that did not
require matching. Had the CSSP required matching from the beginning, BP
would not have lost the appeal and the claimant would not have received an
additional overpayment in the amount of the 5% penalty paid by BP.
15. The following examples illustrate some of the types of overpayment that result
from the failure to match revenue and corresponding expenses; a problem that is common in the
claims listed in Exhibits A and B.
(a) Claimant 03 sells animals and animal skins. The Settlement
Program awarded Claimant $7.3 million pre-RTP ($16.9 million final paid award). This
award presents a classic example of how the failure to properly match revenue and
expenses leads to distorted award calculations. During the five-year period from 2007-
2011, Claimant never had annual variable profit higher than $ million in any
benchmark year but their award implied 2010 variable profit of $ million. In order
for this award to be correct, it would mean than in the absence of the spill, Claimants
2010 variable profit would have more than doubled over any other year. This enormous
award resulted from the failure to match corresponding variable expenses with the
revenue associated with those expenses. This company purchased more than $ million
of inventory between January and March of 2009 and reflected those purchases as
expenses in the months of purchase. Because the sales of the products did not occur until
8
later months, the approximately $ million in expenses were not matched with the
revenue from the sales, giving the false impression of excessive costs between January and
March 2009 and inflated profits (untethered to the actual costs) in later months. Based on
the data available to me, I estimate that the Settlement Programs use of insufficiently
matched data resulted in an estimated overpayment to this claimant of approximately $14
million. Access to additional data and further analysis may change my analysis and my
estimate.
(b) Claimant 30 is a construction company located hundreds of miles from
the Gulf of Mexico. The Settlement Program awarded Claimant $10.1 million pre-RTP
($13.2 million final paid award). This award was based on the use of inaccurate financial
data. For example, in December 2009, Claimant recorded only $ of revenue
against more than $ million dollars in costs of goods sold to correct for overstatements
of monthly revenue earlier in the year. Yet, prior to the implementation of Policy 495,
the Settlement Program did not correct the revenue overstatement in the months in which
the misstatement actually occurred. Likewise, in both August and October 2010, the
Claimant understated monthly revenues leading to negative variable profits in those
months and excess revenues and variable profits in the months where the misstatements
were corrected. Once again, prior to the implementation of Policy 495, the Settlement
Program did not apply the corrections to the months in which the misstatements occurred.
By using incorrect monthly revenues, and not accurately matching revenues and
expenses, the Settlement Program inflated Claimants pre-spill performance and
artificially depressed Claimants post-spill performance, leading to an inflated award.
Based on the data available to me, I estimate that the Settlement Programs use of
insufficiently matched data resulted in an estimated overpayment to this claimant of
approximately $8.4 million. Access to additional data and further analysis may change
my analysis and my estimate.
(c) Claimant 37 is a construction contractor in Alabama. The Settlement
Program awarded Claimant more than $2 million pre-RTP ($2.7 million final paid
award), more than double the annual variable profit for the previous two calendar years.
This award was based on financial data that Claimant admits was incorrect. An external
review of Claimants financial records revealed an understatement of Claimants May
2009 to April 2010 expenses of more than $ million. Claimant corrected its reviewed
annual financial records and its tax returns, but the misstatement was not corrected on the
monthly P&Ls submitted to the Settlement Program. The Settlement Program used
Claimants uncorrected and admittedly erroneous monthly P&Ls. In addition,
Claimants monthly financial data for May, 2010 recorded $ in negative revenue.
Revenue is never actually negative and Claimant acknowledged to the Settlement
Program that this entry was a correction for an earlier error. Yet, the Settlement Program
nonetheless used the claimed negative revenue in its calculation, thus materially
understating Claimants post-spill performance and further overstating the award. In fact,
the claimant actually lost money during the May 2009 to April 2010 fiscal year, and had
nearly identical variable profit during the May 2010 to April 2011 fiscal year. Based on
the data available to me, I estimate that that Settlement Programs use of insufficiently
matched data resulted in an estimated overpayment to this claimant of approximately
9
$2.0 million. Access to additional data and further analysis may change my analysis and
my estimate.
(d) Claimant 18 is an advertising firm that received a $2.9 million pre-
RTP ($3.8 million final paid award). This award was made despite the claimants 2010
variable profit increasing % over the benchmark year variable profit. The award
implied the Claimants 2010 variable profit would have been more than times the
variable profit in the 2009 benchmark year. The Settlement Program failed to match
corresponding variable expenses with revenue. Specifically, in August 2010, the
Claimant spent $ million dollars to purchase media for its client. During that same
month, Claimant only recorded $ in revenue. By failing to associate the $ million
in media expenses with the revenue those expenses generated in other months, the
Settlement Program erroneously concluded that the Claimant had suffered a nearly $
million loss in the month in question. Based on the data available to me, I estimate that
that Settlement Programs use of insufficiently matched data resulted in an estimated
overpayment to this claimant of approximately $3.3 million. Access to additional data
and further analysis may change my analysis and my estimate.
III. Heightened Risk of Dissipation of Assets By Claimants Receiving Overpayments

16. I have also been asked to assess whether there is a heightened risk in this case that
overpayments received by the claimants would be particularly difficult to recover if they are
disbursed outside the corporate form. Specifically, I examined whether claimants which
previously received overstated awards and payments due to a failure to match revenue and
expenses: (i) are likely to disburse the overpayments outside of the corporate form, and, if so,
(ii) whether those same claimants likely lack sufficient means to reimburse BP for such
overpayments should they be ordered to do so. As explained below, there is a high risk that
claimants who received overpayments will disburse their awards outside of the corporate form.
Based on a sampling of affected claims, many of the claimants who received overpayments are
pass-through entities that are specifically set up to allow for the tax efficient transfer of earnings
to their shareholders. Even those Claimants which are not set up as pass-through entities will
have a strong incentive to move their earnings out of the entity, whatever the form.
17. Moreover, the results of my sampling of affected claims show that if
overpayments are disbursed outside of the corporate form, many claimants will have difficulty
10
reimbursing the overpayments. That is because as a general matter the overpayments resulting
from the Claims Administrators erroneous policy often far exceeded claimants earnings and net
worth.
A. Many Recipients of Overpayments Are Structured to Distribute Earnings To
Shareholders

18. One important indicator of the likelihood of a recipient disbursing the
overpayment outside of the corporate form is the corporate structure of the claimant. For
example, most closely held businesses are structured to facilitate the distribution of any profits
and excess cash to owners. This goal is principally achieved by structuring the business as a
pass-through entity such as a Limited Liability Corporation (LLC), partnership or S-
corporation for tax purposes. These structures allow business profits to be taxed directly to the
owners, and owners are then eligible to receive cash payments without any additional tax
liability. Business owners specifically select pass-through entity status to allow easy,
discretionary and tax free distribution of business profits.
19. From a practical standpoint, pass-through entities allow business owners to
regularly distribute funds from businesses to pay taxes and to avoid exposing wealth to potential
liability of the company. It is the norm for accountants and other financial advisors to
recommend to their closely held clients to distribute earnings outside of the corporate form.
Failing to do so is typically counterproductive to the intent of structuring an entity with pass-
through benefits. In my experience, rational business owners that receive overpayments would
likely disburse the overpayments outside of the corporate form.
20. I reviewed the annual income tax returns of over 200 claimants who received an
award from the CSSP that was based on financial data that did not match revenue and
11
corresponding expenses. 78% of the claimants I reviewed were structured as pass-through
entities.
21. Where a claimant received a sum of money that is in excess of the claimants
actual loss, or where, as in many actual cases, the claimant incurred no loss whatsoever, the
likelihood that the claimant will transfer the funds to its shareholders is heightened even further.
That is because such a payment would represent funds in excess of the required capital and
normal operating cash flow needed to run the business. Any overpayment, or other payment
untethered to an actual loss, is unnecessary for the operation of the business.
B. Many Recipients of Overpayments Would Have Difficulty Reimbursing the
Overpayment If the Overpayment Leaves the Corporate Form

22. If overpayments from the CSSP to a claimant were to be disbursed or otherwise
removed from the corporate form, it becomes appropriate to ask whether the claimant would
have sufficient other resources or assets to reimburse the full amount of the overpayment
resulting from the Claims Administrators erroneous policy regarding matching.
23. In order to evaluate whether there is a heightened risk that many claimants who
disburse their overpayments outside of the corporate form would not have sufficient other
resources or assets to repay the overpayment, I compared for a sample (203) of the claims at
issue, the size of the CSSP award to well-accepted measures of the claimants financial strength.
These measures include the claimants assets (as reflected on tax returns), the claimants net
worth (as reflected on tax returns), and the claimants average annual cash flow (as reflected on
tax returns). The results of this comparison are as follows, and demonstrate that many claimants
would be unable to repay overpayments received from the CSSP if the overpayments are
disbursed out of the corporate form.
12
24. I reviewed the most recent tax returns available on the CSSP Portal for 203
determined claims, brought by claimants whose awards were appealed for matching issues. Of
those claimants, 24% had negative cash flow. For claimants with a negative cash flow,
overpayments would likely be consumed by corporate liabilities and expenses, and therefore
recovery of an overpayment would be difficult. For the remaining 76% of the claimants
sampled, their average CSSP payment was equal to 12.2 times their annual cash flow. A rational
economic actor receiving such a disproportionately high award would disburse the overpayment
to the owners. And once this disbursement occurs, because the overpayment is so much greater
than the claimants cash flow, recovery of the overpayment from continuing operations would be
difficult.
25. As another measure of the difficulty of claimants to reimburse overpayments from
ongoing operations, I evaluated the net worth of claimants relative to the size of the CSSP award.
A companys net worth represents the total amount of money owners have invested and retained
in the business; their total amount at risk. Of the 203 claimants sampled, 29% of claimants
reflected negative net worth on their most recent tax returns available on the CSSP Portal. As
with claimants having negative cash flow, awards to claimants with negative net worth would be
difficult to recover.
26. Of the 203 claimants studied, the 71% which had positive net worth were paid an
average award equal to 15.0 times net worth. This implies that the claimants received awards 15
times larger than their investment in the business, and these awards on average represented a
1,500% return on invested capital in a single payment. Given the relatively small amount of net
worth of these businesses when compared to the BEL award, it would likely be difficult for the
13
claimant to return the overpayment should the paid award be distributed to shareholders or paid
to creditors.
27. Finally, as yet another measure of claimants difficulty to repay overpayments, I
evaluated the book value of assets for the sample population of 203 claimants. Book value of
assets is a more encompassing measure than net worth for it includes not only the investments of
the owners but also investments from all other sources, including lenders. Thus, where an award
is disproportionally large in relation to the book value of assets, that is a particularly strong
indicator that it would be difficult for the claimant to repay the overpayment if the overpayment
is disbursed. For the 203 claimants reviewed, the average CSSP award payment was 9.7 times
the total net assets of the business. In other words, claimants received an average payment that
would have allowed them to replace all the assets in the business nearly 10 times over. Once
again, these metrics show that recipients would be likely to disburse the overpayments by the
CSSP as there seldom would be a reason to expand a business by 970% of the asset base. And,
once again, the metrics show that the value of the overpayments overwhelms the value of the
claimant, meaning that it be difficult for the claimant to repay the overpayment once it is
disbursed.
28. The following are some examples that illustrate the disparity between the size of
the CSSPs award, on the one hand, and the claimants financial wherewithal independent of the
overpayment. For example:
Claimant 55 is a crop farmer in northeastern Louisiana more than 250 miles
from the Gulf. Claimant received a $3,140,000 award despite having invested net
worth of $ and annual cash flow of $ . The award is more than
times the invested equity and more than times annual cash flow. Claimant is
organized as a partnership with pass-through tax status and has an estimated
overpayment of approximately $3,044,000. Access to additional data and further
analysis may change my analysis and my estimate.

14
Claimant 94 is a salvage company in the south Florida. Claimant received a
$570,000 award while having invested net worth of $ and annual cash flow
of $ . The award is more than times the invested equity and more than
times annual cash flow. Total revenue for the business was $ ( % of the
award) in the 2009 benchmark year. Claimant is organized as an S-corporation
with pass-through status and has an estimated overpayment of approximately
$538,000. Access to additional data and further analysis may change my analysis
and my estimate.
Claimant 49 is a construction company in Louisiana. Claimant received a
$5,599,000 award while having invested net worth of $ and annual cash
flow of $ . The award is more than times the invested equity and more
than times annual cash flow. Claimant is organized as an LLC with pass-
through status and has an estimated overpayment of approximately $4,943,000.
Access to additional data and further analysis may change my analysis and my
estimate.
Claimant 49 is a wholesale supplier located in Texas. Claimant received a
$1,069,000 award while having invested net worth of $ and annual cash
flow of $ . The award is more than times the invested and retained
equity and almost times annual cash flow. Claimant is organized as a
partnership with pass-through tax status and has an estimated overpayment of
approximately $992,000. Access to additional data and further analysis may
change my analysis and my estimate.
Claimant 85 is a bar/restaurant located over 100 miles from the Gulf.
Claimant received a $309,000 award while having invested net worth of $
and annual cash flow of $ . The award is over times the invested and
retained equity and over times annual cash flow. Claimant is organized as an
S-Corporation with pass-through tax status and has an estimated overpayment of
approximately $181,000. Access to additional data and further analysis may
change my analysis and my estimate.
Claimant 59 is a real estate sales business located approximately 200 miles
from the Gulf. Claimant received an award of $1,179,000 while having invested
net worth of $ and annual cash flow of $ . The award is over
times the invested and retained equity and almost times annual cash flow.
Claimant is organized as an S-Corporation with pass-through tax status and has an
estimated overpayment of approximately $643,000. Access to additional data and
further analysis may change my analysis and my estimate.
Claimant 38 is a construction company in Louisiana. Claimant received an
award of $702,000 while having invested net worth of $ and annual cash
flow of $ . The award is almost times the invested equity and more than

Exhibit A

Filed Under Seal

Exhibit B

Filed Under Seal

In re: Oil Spill by
the Oil Rig Deepwater Horizon
in the Gulf of Mexico, on April 20, 2010

This document relates to:
All Cases and No. 12-970

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MDL NO. 2179

SECTION J

Honorable CARL J. BARBIER

Magistrate Judge SHUSHAN

[PROPOSED] ORDER
[Granting BPs Motion for Restitution and Injunctive Relief]
Before the Court is BPs Motion for Restitution and Injunctive Relief (Rec. Doc. ____).
After consideration of this Motion, the Court hereby GRANTS BPs Motion for
Restitution and Injunctive Relief, and it is hereby ORDERED that:
1. BP is entitled to restitution, plus interest, from each claimant who was overpaid as a
result of the erroneous matching policy, in an amount equal to the amount of the
overpayment, plus interest.
2. To the extent professionals (lawyers, accountants, and others) have been paid a
proportional amount of those excessive recoveries, they are jointly and severally
liable with their clients to the extent of their share of those recoveries, plus interest;
3. Previously-paid awards that BP appealed on matching grounds identified in Exhibit A
to the Declaration of Brian Gaspardo shall be recalculated consistent with the now-
approved Policy 495. A final order shall enter requiring such repayment when the
calculations are completed;
2

4. In the interim period, BEL Claimants identified in Exhibit B are enjoined from
dissipating the portions of those awards identified as overpayments in Exhibit B
pending the recalculation of their compensation amounts.
5. Within 30 days from the date of this order, the BEL Claimants identified in Exhibit B
shall file with the Court a notice of all professionals who assisted them with their
claims and who were paid a proportion of the excessive recoveries as fees and the
total amounts of such fees paid to each such professional.
6. Professionals who assisted the Exhibit B claimants shall be enjoined from dissipating
the proportion of their fees derived from overpayment.
Accordingly, the motion is GRANTED.
New Orleans, Louisiana, this ____ day of _________, 2014.

__________________________________
CARL J. BARBIER
United States District Judge


BP Oil Spill: BP's Motion For Restitution and Injunctive Relief

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF LOUISIANA

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