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Claimant Id. 100212278 v. BP Exploration & Production, Inc.

United States Court of Appeals, Fifth Circuit

February 9, 2017

CLAIMANT ID 100212278, Requesting Party-Appellant,
v.
BP EXPLORATION & PRODUCTION, INCORPORATED; BP AMERICA PRODUCTION COMPANY; BP, P.L.C., Objecting Parties - Appellees.

         Appeals from the United States District Court for the Eastern District of Louisiana

          Before REAVLEY, ELROD, and GRAVES, Circuit Judges.

          PER CURIAM.

         The appellant is a company that filed Business Economic Loss claims under the Deepwater Horizon Economic and Property Damages Settlement Agreement on behalf of five of its stores. Each claim was denied by the Court Supervised Settlement Program, and each denial was affirmed by an Appeal Panel. The company sought review by the district court, which the district court denied in every case. In this consolidated appeal, the company challenges the district court's denial of discretionary review in each case. Because the district court did not abuse its discretion, we AFFIRM.

         I.

         This case involves BP's obligations under the Deepwater Horizon Economic and Property Damages Settlement Agreement. The appellant, which describes itself in its briefing as an automotive parts provider, sought to obtain compensation under the Settlement Agreement as a tourism business.[1]Designation as a tourism business would have relieved the appellant of the need to demonstrate loss causation. However, the Court Supervised Settlement Program (CSSP) and the Appeal Panel determined that the stores were not tourism businesses and denied the claims for failure to satisfy the causation requirement.

Exhibit 2 to the Settlement Agreement defines tourism as follows:
Tourism means businesses which provide services such as attracting, transporting, accommodating or catering to the needs or wants of persons traveling to, or staying in, places outside their home community. Therefore, if you are in one of the following businesses or work for such a business, you are in the Tourism Industry.

         Exhibit 2 then lists forty-one North American Industry Classification System codes (NAICS codes) identifying various categories of businesses that qualify as tourism businesses.

         The appellant claimed that it fell under NAICS code 452990 (All Other General Merchandise Stores), which is listed in Exhibit 2. It also argued, in the alternative, that it was a business "accommodating or catering to the needs or wants of persons traveling to, or staying in, places outside their home community." It claimed to be a tourism business on these grounds.

         Under the Settlement Agreement, the appropriate NAICS code for a claimant is to be determined based on review of: "(a) the NAICS code shown on an Entity Claimant's 2010 tax return, (b) 2010 business permits or license(s), and/or (c) other evidence of the Entity's activities necessary for the Settlement Program to determine the appropriate NAICS code." Claims Administrator Final Policy 480 v.2 clarifies that the "appropriate" NAICS Code for an entity shall be the one that "most accurately describes [its] primary business activities" during the relevant time frame.

         Claims Administrator Final Policy 289 v.2 further discusses the designation of a claimant as a tourism business. It states the Claims Administrator's finding that Exhibit 2's list of NAICS codes is illustrative, not exhaustive. Based on this finding, it states that a claimant without one of the NAICS codes listed in Exhibit 2 may be considered a tourism business "if the Claims Administrator determines in his discretion" and "based on the totality of the circumstances" that it "provide[s] services such as attracting, transporting, accommodating or catering to the needs or wants of persons traveling to, or staying in, places outside their home community." Finally, Policy 289 v.2 provides that when a claimant submits separate claims for separate facilities, as in this case, the Claims Administrator "will evaluate each facility separately to determine whether it meets the definition of Tourism . . ., notwithstanding what NAICS code may have been assigned to the Entity as a whole."

         The CSSP determined that the stores were not tourism businesses and that the appropriate NAICS code for each of the stores was 441310 (Automotive Parts and Accessories Stores), a code not listed in Exhibit 2. The Appeal Panel affirmed the CSSP determination for each store. In the first of its opinions, the Appeal Panel noted that the store in question advertised itself as an auto-parts store and that it did not fit the NAICS definition of "All Other General Merchandise Stores" because its auto parts line of products predominated over other product lines. It also explained that the store had not established with concrete evidence that it was engaged in the business of "accommodating or catering to the needs or wants of persons traveling to, or staying in, places outside their home community." According to the Appeal Panel, the claimant's observation that its website included a list of products that drivers should inspect and consider replacing before a long trip was insufficient to qualify it for designation as a tourist business. This was particularly true since the store was not located in a tourist area and the possibility of occasional tourists stopping by the store for auto ...


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